Michaels v. Mr. Heater, Inc.

• Decision Date: 30 January 2006
• Docket Number: No. 05-C-0369-C.,05-C-0369-C.
• Citation: 411 F.Supp.2d 992
• Parties: Elizabeth MICHAELS, Individually and as Special Administrator of the Estate of Travis J. Michaels, Deceased, Plaintiff, v. MR. HEATER, INC., Admiral Indemnity Co., and Westchester Fire Insurance Company, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

Page 992

411 F.Supp.2d 992

Elizabeth MICHAELS, Individually and as Special Administrator of the Estate of Travis J. Michaels, Deceased, Plaintiff, v. MR. HEATER, INC., Admiral Indemnity Co., and Westchester Fire Insurance Company, Defendants.

No. 05-C-0369-C.

United States District Court, W.D. Wisconsin.

January 30, 2006.

COPYRIGHT MATERIAL OMITTED

Erik T. Salveson, Gray, Plant, Mooty, Mooty & Bennett, P.A., Minneapolis, MN, for Plaintiff.

Richard J. Nygaard, Rider Bennett, David M. Dahlmeier, Foley & Mansfield, P.L.L.P., Minneapolis, MN, Brett L. Warning, Bollinger, Ruberry & Garvey, Chicago, IL, V. Thomas Fryman, Jr., Greenebaum Doll & McDonald PLLC, Lexington, KY, Mark J. Gherty, Gherty & Gherty, S.C., Hudson, WI, for Defendants.

OPINION AND ORDER

CRABB, District Judge.

In this civil action for monetary relief, plaintiff Elizabeth Michaels, proceeding on her own behalf and on behalf of the estate of her late husband, Travis Michaels, brings claims of strict liability, negligence and wrongful death against defendant Mr. Heater, Inc. for its design, manufacture and distribution of an allegedly defective portable propane gas heater. Jurisdiction is present under 28 U.S.C. § 1332.

On the afternoon of March 4, 2002, Daniel Michaels, owner of a business specializing in the delivery of water products, approached his son, Travis, and asked him to deliver bottled water to customers the following morning. Travis agreed to deliver the water, which was stored in the back of Daniel's truck. To prevent the water from freezing, Daniel had installed a propane heater, manufactured by defendant Mr. Heater, in the back of his vehicle. Daniel lit the heater on March 4, 2002, and left it in operation overnight. On the morning of March 5, 2002, Travis left his house and went to the truck. When he returned to his house shortly thereafter, his jacket was on fire. He was hospitalized for burns; five days later, he died. Plaintiff contends that Travis's injuries and death were the result of a malfunction in the heater, which caused propane gas to accumulate in the truck and explode.

On March 10, 2003, plaintiff commenced this lawsuit in the Circuit Court for St. Croix County, Wisconsin. On July 2, 2003, the case was removed to this court, but was remanded on June 3, 2004, when the addition of former defendants Daniel Michaels and Rural Mutual Insurance Company defeated diversity jurisdiction. On June 23, 2005, after plaintiff settled her claims against those defendants, the case was once again removed.

The case is now before the court on defendant Mr. Heater's motion for summary judgment, in which defendants Admiralty Indemnity Company and Westchester Fire Insurance Company have joined. In her brief in response to defendants' motion, plaintiff contends that this court should refrain from ruling on the motion because a similar motion for summary judgment was denied by the St. Croix County court. She relies on the "law of the case" doctrine, under which "as a general rule, courts should not reconsider issues which have already been decided in an action." Federal Deposit Ins. Corp. v. First Mortgage Investors, 485 F.Supp. 445, 450 (E.D.Wis.1980) (citing Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912)). The "law of the case" doctrine is prudential only and does not limit the power of a court to hear matters that may have been decided, in part or in whole, at an earlier stage in a lawsuit. Messinger, 225 U.S. at 444, 32 S.Ct. 739 (phrase "law of the case" "merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit to their power"). Where good reasons exist, prior rulings can be reevaluated taking into account changed circumstances. Id. In this case, the motion for summary judgment filed by defendants in state court covered some, but not all, of the issues defendants have raised in their present motion. In the end, plaintiff's objection is academic. Plaintiff has produced sufficient evidence from which a jury could find defendants liable on each of her theories of tort liability.

ADMISSIBILITY OF EXPERT TESTIMONY

As required by this court's procedures on motions for summary judgment, defendants' motion for summary judgment was accompanied by proposed findings of fact. Plaintiff responded to these proposed findings, placing some facts into dispute by citing to the testimony of her experts witnesses. Defendants replied by challenging the admissibility of the testimony of plaintiff's experts. In defendants' reply brief, they challenge also the admissibility of the testimony of plaintiff's experts David Sand and Richard Cox. Because arguments raised for the first time in a reply brief are waived, James v. Sheahan, 137 F.3d 1003, 1008 (7th Cir.1998); United States v. Spaeni, 60 F.3d 313, 317 (7th Cir.1995); United States v. Berkowitz, 927 F.2d 1376, 1391 (7th Cir.1991), I have not considered challenges to Sand and Cox in deciding defendants' motion. However, defendants have raised a timely challenge against the admissibility of testimony of three of plaintiff's experts: Marvin Salzenstein, Tarald Kvalseth and Dr. Maureen Lowe. Therefore, before determining the undisputed facts of this case, I must address whether the testimony of Salzenstein, Kvalseth and Lowe is admissible.

In a diversity case, state law governs substantive claims, while federal law governs all procedural and evidentiary issues, including the admissibility of expert testimony. Klonowski v. International Armament Corp., 17 F.3d 992, 995 (7th Cir. 1994). The question, then, is whether the testimony of Salzenstein, Kvalseth and Lowe meets the requirements of Fed. R.Evid. 702, which governs the admissibility of expert opinions in federal court. Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Defendants contend that Salzenstein, Kvalseth and Lowe employed unreliable methods in arriving at their opinions in this case and are not qualified experts. From my review of the parties' proposed findings of fact and the depositions and reports of these experts, I conclude that Salzenstein, Kvalseth and Lowe are qualified to testify to the opinions they have rendered in this case. Although defendants' challenges to these experts' qualifications are folder for cross-examination at trial, they do not demonstrate that the opinions fail to meet the requirements of Fed.R.Evid. 702.

A. Marvin Salzenstein

Marvin Salzenstein is a registered professional engineer, who holds a bachelor of science degree from the Illinois Institute of Technology. He has completed postgraduate course work at several universities. In addition, Salzenstein is a member of numerous professional organizations, including the American Society of Mechanical Engineers, the American National Standards Institute, the American Society of Safety Engineers, the National Safety Council and the Systems Safety Society. He has worked on hundreds of "propane matters," including a dozen or more cases involving portable heaters. (None of these portable heater cases involved propane gas leaks, however.)

Before rendering an opinion in this case, Salzenstein reviewed abstracts of other witnesses' deposition testimony and the reports and affidavits of other experts. He examined the valve from the heater involved in this case and observed photographs of the heater. In addition, he performed testing on the valve. In support of his conclusion that the valve was not properly secured, he relied on standards issued by the American National Standards Institute.

Defendants challenge Salzenstein's testimony in two ways. First, they contend that his testimony would not be helpful to a jury because (a) he was unable to identify an alternative valve that would fit into defendant's heater and (b) he has no evidence that propane gas passing through the regulator of a Copreci valve could discharge the safety valve. Second, they contend that Salzenstein's opinions "are not based on sufficient facts" because he relies upon voluntary industry standards as the basis for his opinion that the valve in question should have been constructed differently.

The facts show that Salzenstein observed the allegedly defective valve and performed testing on it. Defendants have not challenged the methods he used in the testing process. Moreover, despite defendants' assertions, Salzenstein did identify an alternative, safer valve that could have been used in defendant Mr. Heater's product. Although Salzenstein acknowledged that the recommended valve is not currently manufactured in dimensions that would fit the propane heater, he asserts that defendant Mr. Heater could have had the valve tailored to fit the dimensions of its product. It is true that Salzenstein has not shown that gas flowing through the Copreci valve dislodged the gasket; however, he has conducted tests demonstrating that the gasket can be displaced easily, with little force, creating a risk of gas leaks and combustion. Finally, Salzenstein's testimony regarding defendant Mr. Heater's failure to comply with voluntary industry standards is admissible, although certainly not conclusive evidence of negligence. See, e.g., Getty Petroleum Marketing, Inc. v. Capital Terminal Co., 391 F.3d 312, 326 (1st Cir.2004) (Although "voluntary standards do not irrefutably establish the standard of care in a negligence case ... they constitute one more piece of evidence upon which the jury could decide whether the defendant acted as a reasonably prudent...