Arbella Mutual Insurance Co. v. Field Controls, L.L.C.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 90, 91) AND MOTION IN LIMINE (DOC. NO. 92)

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE

         This is a products liability dispute arising out of a failure in the heating system of Kathleen and Timothy Chapin's home which was insured by Plaintiff Arbella Mutual Insurance Company (“Arbella”). Arbella brought suit against Defendants Field Controls, L.L.C (“Field Controls”) and Pacific Electronics Corporation (“Pacific Electronics”) for the cost of repairing the damage. Arbella's complaint alleged a single count of negligence against each of the two defendants. Doc. No. 1-1. The defendants each asserted crossclaims against the other for contribution and indemnification. Doc. Nos. 8, 21. At the conclusion of discovery, Field Controls and Pacific Electronics moved for summary judgment. Doc. Nos. 90, 91. Additionally, Field Controls moved to exclude the opinions and testimony of Arbella's expert. Doc. No. 92. For the reasons set forth below, the motions for summary judgment are DENIED IN PART AND ALLOWED IN PART, as described herein. The motion in limine is DENIED.

         I. BACKGROUND

         In February 2015, the heating system at the Chapins' home in Chatham, Massachusetts shut off and stopped operating, causing the pipes to freeze. Doc. No. 115 at 1-2. The frozen pipes, in turn, caused water damage to the home. Id. at 2. The Chapins submitted a claim to their insurance company, Arbella, which paid approximately $200, 000 to repair the home. Id. Arbella alleges that the heating system failed because of a faulty vent damper which was manufactured by Field Controls and Pacific Electronics.

         “A vent damper is installed on boiler vent ductwork to limit the amount of residual heated air that can exit a dwelling through the boiler vent, and also prevent cold air from entering the dwelling.” Id. at 4. Essentially, when the thermostat in the home calls for heat, “the damper's motor assembly is energized, and it rotates the damper from the ‘closed' position to the ‘open' position, ” which “allows products of combustion (such as carbon monoxide) to exit the dwelling during boiler operation.” Id. at 4-5. When the thermostat no longer calls for heat, the damper's motor assembly is again energized and it rotates the damper to the “closed” position, preventing outside air from coming into the home through the vent ductwork. Id. at 5. When a vent damper fails to operate properly, it is designed to remain in a “closed” position, which “prevents the boiler from calling for heat, which prevents potentially toxic gases (carbon monoxide) from building up in the home.” Id.

         The vent damper in the Chapins' home was manufactured by Field Controls. Id. at 8. The motor assembly inside the vent damper was manufactured by Pacific Electronics. Id. at 6. On multiple occasions, Arbella's experts, John Certuse and Victor DaCosta, tested the vent damper from the Chapins' home. See Doc. No. 104-6 at 3. Certuse offers an expert report in which he concludes that “the Pacific Electronics J206 motor to the Field Controls GVD 5 vent damper failed because of an internal manufacturing defect . . . and that this defect existed prior to the time it left Pacific Electronics' factory and Field Controls' assembly plant.” Id. at 19. Field Controls moved to exclude Certuse's and DaCosta's opinions and testimony. Doc. No. 92. Arbella opposed. Doc. No. 106.

         Both Field Controls and Pacific Electronics also moved for summary judgment against Arbella. Doc. Nos. 90, 91. Arbella opposed. Doc. Nos. 101, 103. Additionally, Field Controls moved for summary judgment against Pacific Electronics. Doc. No. 91. Field Controls argues that “[e]ven if Plaintiff could establish a manufacturing defect existed in the J-206 motor, Pacific Electronics, as the motor manufacturer, owes Field Controls common law indemnity” because Field Controls is without fault. Doc. No. 95 at 9-10. Pacific Electronics opposed. Doc. No. 99.

         The Court heard argument on each of the pending motions on March 25, 2019.

         II. LEGAL STANDARD

Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute “is one on which the evidence would enable a reasonable jury to find the fact in favor of either party.” Perez v. Lorraine Enters., Inc., 769 F.3d 23, 29 (1st Cir. 2014). “A ‘material' fact is one that is relevant in the sense that it has the capacity to change the outcome of the jury's determination.” Id. (citation omitted). The Court is “obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). However, the Court must ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009).

         III. DISCUSSION

         At the hearing and in its opposition to the motion for summary judgment, Arbella advanced five theories premised on three different causes of action upon which it believes it can recover: (1) negligent manufacturing defect, (2) breach of the implied warranty of merchantability because of a manufacturing defect, (3) negligent failure to warn, (4) breach of the implied warranty of merchantability because of a failure to warn, and (5) chapter 93A. As to the last four theories, the defendants contest Arbella's right to advance them at this stage of the litigation on grounds of fair notice. As to all five theories, the defendants contest the merits and argue that Arbella cannot survive summary judgment on any of the five theories. The Court considers each theory in turn.

         A. Negligent Manufacturing Claim

         Arbella's complaint asserts a single count of negligence against each defendant. Doc. No. 1-1. At the hearing, the defendants conceded that they had fair notice that Arbella was pursuing a negligence claim premised on a theory that the motor inside the vent damper had a manufacturing defect attributable to one or both defendants' negligence. Accordingly, the Court considers the merits of the negligent manufacturing defect theory, beginning with the elements of this claim under Massachusetts state law.

         “The basic elements of a products liability action founded on negligence are duty, breach of duty, cause in fact, and proximate cause.” Colter v. Barber-Greene Co., 525 N.E.2d 1305, 1313 (Mass. 1988). Liability is imposed “when a product's manufacturer or seller has failed to use reasonable care to eliminate foreseeable dangers which subject a user to an unreasonable risk of injury.” Id. “A defect from manufacturing, as opposed to design, occurs when a product differs from identical products issued from the same manufacturer.” Wasylow v. Glock, Inc., 975 F.Supp. 370, 377 (D. Mass. 1996). “In an action based on negligence, the plaintiffs have the burden of proving that a defect attributable to the manufacturer's negligence caused the injury.” Corsetti v. Stone Co., 483 N.E.2d 793, 805 (Mass. 1985) (quotation marks and citations omitted). “Where, as here, the accident occurs after the defendant has surrendered control of the instrumentality involved, it is incumbent upon the plaintiff to show that the instrumentality had not been improperly handled by himself or by intermediate handlers.” Id. at 805-06.

         In this case, whether Arbella has set forth sufficient facts to survive summary judgment on the negligent manufacturing claim depends initially on whether the Court allows Field Controls' motion to exclude the opinions and testimony of Arbella's experts. Thus, the Court first resolves the motion in limine, Doc. No. 92.

         On September 7, 2018, Arbella's expert, in the presence of representatives of defendants, conducted a “destructive” examination of the failed vent damper. Doc. No. 115 ¶ 19; Doc. No. 104-6 at 3. Based upon his review of the discovery (including the deposition of one of Field Control's engineers) and his examination of the vent damper and motor from the Chapins' home (both exterior and interior after disassembling the motor), he opined that the motor “had not been opened or manipulated since it left Pacific Electronics Chinese manufacturing facility.” Doc. No. 104-6 at 19.

         For purposes of making a comparison, Arbella's expert obtained a Pacific Electronics motor of the same make and model as the Chapins' motor (Pacific Electronics, J206). Id. at 4. For ease of reference, this is called the “comparison motor.” The comparison motor was made in 2006 and was estimated to have been in service until 2018, for a total of 4233 days. The Chapins' motor, made in 2004, was estimated to have been in service for 3881 days before it failed.^[1] Id. Based on an internal and external examination of the comparison motor, Arbella's expert concluded it was operating properly, and he provided experts from both Pacific Electronics and Field Controls access to both motors during the September 2018 destructive testing. Id. The record reveals nothing further regarding the conditions under which the comparison motor operated, such as operating environment or frequency of use. Arbella's expert reviewed no design specifications for the J206 motor and the record reveals no such specifications. However, he compared the characteristics of the comparison motor to the Chapins' motor and identified a number of differences which he concludes contributed to the motor's failure. Id. at 18-19. Additionally, when the expert placed the comparison motor into the Chapins' vent damper, the vent damper functioned. From the foregoing, Arbella's expert opined that the comparison motor was an exemplar of a J206 motor.

         Field Controls asserts that this method is not scientifically reliable because Arbella's experts did not have the design specifications with which to compare the motor from the Chapins' home. Doc. No. 97 at 8. Thus, Field Controls argues, without these design specifications, it is impossible to know whether the comparison motor was a true exemplar (meaning that it followed the design specifications). Id. Additionally, Field Controls argues that the lack of evidence in Arbella's expert report about the conditions under which the comparison motor ran before being used as a comparison negate the conclusion that it was a true exemplar against which to evaluate the motor from the Chapins' home.

         These arguments go to weight, not admissibility. Arbella has offered sufficient facts, which the Court accepts as true for purposes of summary judgment, upon which a reasonable jury could conclude that the comparison motor used was in fact a true exemplar and was therefore a proper basis against which to evaluate the motor from the Chapins' home.^[2] The strength and credibility of the use of the comparison motor as an exemplar is a question for trial.

         Based upon his examination of the Chapins' motor and the comparison motor, Arbella's expert ...