Marshall v. Lowe's Home Ctrs., LLC
| Decision Date | 10 August 2016 |
| Docket Number | Civil Action No.: 4:14-cv-04585-RBH |
| Court | U.S. District Court — District of South Carolina |
| Parties | Kelly Marshall, Plaintiff, v. Lowe's Home Centers, LLC, and GHP Group Inc., Defendants. |
This is a products liability design defect case. Plaintiff Kelly Marshall filed this action after sustaining severe burns allegedly caused by a propane tank top heater manufactured by Defendant GHP Group, Inc. ("GHP") and sold by Defendant Lowe's Home Centers, LLC ("Lowe's") (collectively, "Defendants"). See Complaint, ECF No. 1. The matter is before the Court for resolution of four pending motions:1 (1) Defendants' motion to exclude the testimony of Plaintiff's expert Bryan R. Durig; (2) Defendants' motion to exclude the testimony of Plaintiff's expert Richard W. Henderson; (3) Plaintiff's motion to exclude the testimony of Defendants' expert Allen W. Dudden; and (4) Defendants' motion for summary judgment. See ECF Nos. 43, 45, 47, & 55. The Court held a hearing on June 8, 2016, and took all motions under advisement. See ECF Nos. 73, 74, & 75. For the reasons set forth below, the Court denies the motions to exclude, and it grants in part and denies in part the motion for summary judgment.
Viewed in the light most favorable to Plaintiff, the facts are as follows. The product at issue is a Thermoheat Propane Tank Top Construction Heater, Model No. TT15CL ("the Heater"). Compl. at ¶ 4. It consists of a single burner assembly that radiates heat once connected to the top of a separately sold twenty-pound propane gas tank cylinder. User's Manual and Operating Instructions, ECF No. 47-8 at 1, 8, 10, 16-17. The burner itself, a heating element with a mesh screen, sits inside a round concave metal reflector. Id. at 10. A circular wire guard ("the GHP guard")—the design of which is at issue in this case—is affixed to the outer edges of the metal reflector and covers the front of the burner.2 Id. To turn on the Heater, a user must open a valve on the propane cylinder (which allows propane gas to flow to the burner), turn the regulator knob on the burner assembly to the "high" setting, depress the safety shut-off valve plunger, and light the burner with a match. Id. at 12. When the Heater is ignited and "on," the mesh screen on the lit burner glows red. Id. The user may control the desired level of heat by turning the regulator knob to the "low," "medium," or "high" setting. Id. The Heater was manufactured by GHP, an Illinois-based corporation, and was sold nationwide, including at Lowe's stores throughout South Carolina. Compl. at ¶¶ 4-5, 13.
The face of the metal reflector on the Heater is embossed with raised letters stating "CAUTION - HOT." See ECF No. 25-1 at 9. The Heater was sold in a box, and it came with hang tags and a user's manual and operating instructions. See ECF Nos. 47-8, 47-9, & 47-10. The box in which the Heater was packaged stated "Fast Convenient Heat to accompany you in any activity." ECF No. 47-10. The user's manual described the Heater as "a direct-fired tank top construction heater for eitherindoor construction or outdoor use" and contained the following warnings:
The hang tags attached to the Heater contained the following warnings:
On January 25, 2012, Plaintiff purchased the Heater from a Lowe's store in Myrtle Beach, South Carolina. Compl. at ¶ 14; Marshall Dep., ECF No. 59-1 at 6. She brought the Heater to her place of business, Mr. Microwave (an appliance repair shop located in Myrtle Beach), and used it multiple times between January 2012 and February 2013. Compl. at ¶ 15; Marshall Dep., ECF No. 43-13 at 2, ECF No. 47-2 at 18, & ECF No. 59-1 at 6. Plaintiff would habitually turn on the Heater by lighting it with a grill lighter, run it on the "medium" setting until her shop warmed up, and then turn it off. Marshall Dep., ECF No. 47-2 at 2-3 & ECF No. 44-8 at 7.
On February 18, 2013, Plaintiff was working inside Mr. Microwave and turned on the Heater, which remained on the "medium" setting and was located "[a]t least 10 feet" from her workbench with the burner facing the workbench. Compl. at ¶ 15; Marshall Dep., ECF No. 59-1 at 2. Approximately an hour and a half later, Plaintiff finished repairing a vacuum cleaner, brought it to the front of the shop, and began walking back to her workbench.3 Durig Report, ECF No. 21-1 at 6; Marshall Dep., ECF No. 47-2 at 4-5. While walking, Plaintiff heard a noise coming from the front of the store. Durig Report,ECF No. 21-1 at 6; Marshall Dep., ECF No. 47-2 at 4-8 & ECF No. 59-1 at 3, 6-7. She stopped for several seconds, turned around, and looked over her left shoulder, but seeing nothing, continued walking towards the workbench. ECF No. 47-2 at 4, 6-7, 9. Seconds later, Plaintiff "smelled something burning," "saw flames over [her] shoulders," and realized her cotton clothing was on fire. Marshall Dep., ECF No. 47-2 at 7-8; ECF No. 59-1 at 11. Plaintiff extinguished herself with water and called an ambulance. Durig Report, ECF No. 21-2 at 3-4.
As a result of the incident, Plaintiff sustained severe burns to approximately 40% of her body and spent approximately sixty days at the Joseph M. Still Burn Center in Augusta, Georgia, where she underwent multiple surgeries including skin grafts, debridement, and laser treatments. Giles Report, ECF No. 21-2 at 2; Marshall Dep., ECF No. 59-1 at 9-10. She incurred substantial past medical expenses and has future estimated medical expenses. Giles Report, ECF No. 21-2 at 22-41.
On December 3, 2014, Plaintiff filed this products liability action4 against Defendants alleging the GHP guard was defectively designed and seeking actual and punitive damages. ECF No. 1. She asserted four causes of action against both Defendants: strict liability, negligence, negligence per se, and breach of express and implied warranties. Compl. at ¶¶ 18-38. Defendants filed an answer denying liability. ECF No. 6. In support of her claims, Plaintiff identified several experts including Brian R. Durig, Ph.D. and Richard W. Henderson, Ph.D. ECF Nos. 21-1 & 21-3. Dr. Durig investigated the cause and origin of the fire, and he also collaborated with Dr. Henderson to develop an alternative prototype design for the front guard on the Heater (hereinafter referred to as "the alternative guard"). Durig Report, ECF No. 21-1. Dr. Henderson, besides collaborating with Dr. Durig, conductedtemperature and fabric ignition testing on the Heater to determine whether the temperatures in the vicinity of the GHP guard were high enough to ignite clothing materials such as the cotton shirt Plaintiff was wearing at the time of the accident, and whether the temperatures in the vicinity of the alternative guard were sufficiently reduced to prevent such clothing ignition. Henderson Report, ECF No. 21-3.
In opposition to Plaintiff's claims, Defendants identified several experts including Allen W. Dudden, P.E. ECF No. 25. Mr. Dudden was hired to rebut the conclusions of Plaintiff's experts and also to provide his own opinions regarding the Heater and Plaintiff's use of it. Dudden Report, ECF No. 25-1.
Following the completion of discovery, Defendants moved to exclude the testimony of Dr. Durig and Dr. Henderson, and they also moved for summary judgment. ECF Nos. 43, 45, & 47. Plaintiff subsequently moved to exclude Mr. Dudden's testimony. ECF No. 55. Defendants and Plaintiff filed their respective responses in opposition to the motions, as well as replies to the responses. ECF Nos. 57, 58, 59, 60, 61, 63, 65, & 66. The Court held a hearing on the motions on June 8, 2016, and took them under advisement. See ECF Nos. 73, 74, & 75.
Defendants make a core threshold argument applicable to each of Plaintiff's four causes of action; they contend the Heater at issue was sold as an indoor/outdoor construction heater, not as an indoor room heater for use in a residence or business. They generally argue that because the product was a construction heater, it was improper and unsafe for Plaintiff to use it to...
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