Wells et al v. Howard Berger Company, Inc. et al, No. 5:2012cv00190 - Document 234 (E.D. Ky. 2014)
Court Description: OPINION AND ORDER: (1) 179 Motion for Summary Judgment re pain and suffering is DENIED. (2) 180 Motion for Summary Judgment re punitive damages is GRANTED. (3) 181 Motion in Limine re the malfunction theory is DENIED. (4) Plas' 182 Motion for Summary Judgment is DENIED. (5) Parties shall confer re availability for trial and submit proposed trial dates to the Court NLT 7/11/2014. Signed by Judge William O. Bertelsman on 7/2/2014. (SCD)cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION AT LEXINGTON CIVIL ACTION NO. 2012-190 B WOB SHEILA WELLS, as Executrix of the Estate of CHARLES WELLS, ET AL. VS. PLAINTIFFS OPINION AND ORDER HOWARD BERGER COMPANY, INC., ET AL. DEFENDANTS This matter is before the Court on Defendants motion for summary judgment regarding pain and suffering (Doc. 179), Defendants motion for summary judgment regarding punitive damages (Doc. 180), Defendants motion in limine regarding the malfunction theory (Doc. 181), and Plaintiffs motion for summary judgment (Doc. 182). The Court held oral argument by telephone conference call on these motions on Monday, June 30, 2014. Dale Golden attended for the Plaintiffs, and Michael Casey and Guy Hughes attended for the Defendants. Official Court Reporter Joan Averdick recorded the proceedings. Having conducted oral argument and reviewed the parties briefs, the Court issues the following Opinion and Order. Analysis A. Pain and Suffering Summary judgment for the Defendants on the issue of pain and suffering is improper. record from conscious which prior to a Plaintiffs have identified evidence in the jury his could death reasonably and infer therefore the decedent experienced pain was and suffering. See Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000); Spaulding v. Tate, No. 3:11-18-DCR, 2012 WL 3845411 (E.D. Ky. 2012). Although Defendants did not move to strike the expert testimony of Plaintiffs pain and suffering expert, Dr. Shraberg, or the lay testimony of fire chief, Jim Kanavy, or fire investigator, Kevin Dunn, Defendants contend the testimony is barred by Federal Rule of Evidence 702 and/or 701. The Court finds the testimony of Plaintiffs expert, Dr. Shraberg, to be admissible under Federal Rule of Evidence 702, and the lay testimony of Kanavy and Dunn to be admissible under Federal Rule of Evidence 701. A jury may make its own reasonable inferences about the credibility and reliability of such testimony. B. Punitive Damages Summary judgment for the Defendants on the issue of punitive damages is appropriate. KRS 411.184 allows recovery for punitive damages if Plaintiffs prove Defendants acted toward the Plaintiffs with oppression, fraud or malice. Kentucky common law allows for recovery of punitive damages where gross negligence, defined as wanton or reckless disregard for the safety of other persons, Williams v. Wilson, 972 S.W.2d 260, 262-265 (Ky. 1998). is shown. Plaintiffs argue their evidence withstands summary judgment as to the latter standard. However, Plaintiffs have failed to identify any record evidence of Defendants gross negligence. Plaintiffs have not pointed to any record evidence of a pattern of fires caused by the subject space heater or Defendants knowledge of other fires being caused by the subject space heater. Therefore, summary judgment for Defendants on the issue of punitive damages is appropriate. C. Malfunction Theory In their motion in limine, Defendants argue Plaintiffs may not rely upon the malfunction theory, or circumstantial evidence of a product defect, because Plaintiffs electrical engineering expert, Beth Anderson, has opined that the cause of the defect of the space heater at issue was its crimp connector. Kentucky law does not limit Plaintiffs to a single theory of recovery when evidence, each liability. and the they of has multiple which could valid theories establish the supported by Defendants the sole Therefore, Anderson s testimony about the crimp connector res ipsa loquitur testimony conflict and are admissible. of fire chief Kanavy do not See Siegel v. Dynamic Cooking Sys., Inc., 501 Fed. App x 397 (6th Cir. 2012); Kentucky Farm Bureau Mutual Ins. Co. v. Broan-NuTone, LLC, No. 1:11cv-66-JHM, 2013 WL 5740107 (W.D. Ky. 2013). D. Plaintiffs Motion for Summary Judgment Plaintiffs fail to meet their burden of proof on their summary judgment motion. When a plaintiff is the moving party for summary judgment, the burden is high: When the movant is a plaintiff he must ordinary do more than defeat the opposing party s affirmative defenses in order to obtain a final [rather than partial] judgment. Since, in addition to asserting an affirmative defense, the defendant will likely have denied the plaintiff s allegations, the plaintiff must also establish all of the essential elements of his claim. Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986) (internal quotations and citations omitted). and issues Plaintiffs of have credibility not met for their There remain many disputed facts the jury burden, to and resolve. summary As such, judgment is improper. Therefore, the Court having heard oral argument, and the Court being sufficiently advised, IT IS ORDERED: (1) Defendants motion for summary judgment regarding pain and suffering (Doc. 179) is DENIED; (2) Defendants motion for summary judgment regarding punitive damages (Doc. 180) is GRANTED; (3) Defendants motion in limine regarding the malfunction theory (Doc. 181) is DENIED; (4) Plaintiffs motion for summary judgment is DENIED; and (5) The parties shall confer regarding availability for trial and submit proposed trial dates to the Court no later than Friday, July 11. This 2nd day of July, 2014. TIC: 38 mins.
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