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Underhill v. Coleman Co., Inc.

United States District Court, S.D. Illinois

February 7, 2014

PAULA UNDERHILL, Individually and as Special Administrator of the Estate of Galen Underhill, and SEAN UNDERHILL, Plaintiffs,
v.
COLEMAN COMPANY, INC., Defendant.

MEMORANDUM AND ORDER

J. PHIL GILBERT, District Judge.

This matter comes before the Court on the following motions for summary judgment: (1) plaintiffs Paula Underhill's, Individually and as Special Administrator of the Estate of Galen Underhill, and Sean Underhill's (collectively "Plaintiffs") motion for summary judgment (Doc. 117), to which defendant Coleman Company, Inc. ("Coleman") responded (Doc. 133) and Plaintiffs replied (Doc. 137); (2) Plaintiffs' motion for summary judgment on Coleman's affirmative defenses (Doc. 119), to which Coleman responded (Doc. 134) and Plaintiffs replied (Doc. 136); and (3) Coleman's motion for summary judgment (Doc. 123), to which Plaintiffs responded (Doc. 135). For the following reasons, the Court denies Plaintiffs' first motion for summary judgment (Doc. 117), strikes Plaintiffs' second motion for summary judgment on Coleman's affirmative defenses (Doc. 119), and grants in part and denies in part Coleman's motion for summary judgment (Doc. 123).

1. Background

The parties agree on the following facts. On the night of April 9, 2010, Galen Underhill and his son, Sean Underhill, went camping in a pop-up camper in Alhambra, Illinois. To keep warm they used a PowerMate Model 5045 propane radiant heater manufactured by Coleman. During the night, the heater released deadly amounts of carbon monoxide ("CO"). As a result of then exposure to CO, Galen Underbill died and Sean Underbill suffered serious injury.

The PowerMate 5045 heater is a large commercial heater that is designed to operate off of a 20-pound or larger propane tank. Coleman designed this model of beater in 1994, and the heater at issue in this case was manufactured in 1995. It contained the following on-product warning:

• For outdoor or well ventilated construction use only. Never use hiside house, camper, tent, vehicle or other imventilated or enclosed areas....
• Never modify or alter heater in any way.

Doc. 123-6. On April 9, 2010, and previous occasions. Galen Underbill and/or Sean Underbill used the heater while camping.

On January 10, 2012, Plaintiffs filed then six-coimt complaint agahist Coleman in the Circuit Court for the Third Judicial Circuit, Madison Comity, Illinois. Thereafter, Coleman removed the case to the Southern District of Illinois based on diversity of citizenship pursuant to 28 U.S.C. § 1332. Since that time, Plaintiffs have filed four amended complaints. The relevant complaint in this order is the fomth amended complaint (Doc. 67).

Initially, Plaintiffs alleged a design defect theoiy, arguing improper placement of the thermocouple and the absence of an oxygen depletion sensor ("ODS") made the heater unreasonably dangerous. Plaintiffs' experts provided support for these theories based on then involvement in previous Coleman heater design defect cases and without inspection of the incident heater. Thereafter, the parties conducted an inspection of the incident heater and discovered that the thermocouple was not placed in accordance with design specifications. As such, Plaintiffs' expert, Dr. Gary Hutter, provided a Second Supplemental Report supporting a manufacturing defect theory. Coleman previously argued that Dr. Hutter's opinion did not provide support for a manufacturing defect claim in Plaintiffs' case-in-chief. Magistrate Judge Wilkerson, however, found Dr. Hutter's Second Supplemental Report properly provided support for a manufacturing defect claim and this Court affirmed that order. The parties' now seek summary judgment on various issues. The Court will consider each motion in turn.

2. Summary Judgment Standard

Summary judgment is appropriate where "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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties, " Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252.

3. Plaintiffs' Motion for Summary Judgment (Doc. 117)

In their first motion for summary judgment, Plaintiffs seek summary judgment on the following facts: (a) that the Coleman Powermate 5045 was the sole source of the CO that caused the death of Galen Underhill and the injury to Sean Underhill; (b) that neither Galen Underhill nor Sean Underhill read the on-product warning label present on the Powermate 5045 heater; (c) that neither Galen Underhill nor Sean Underhill noticed the on-product warning label present on the Powermate 5045 heater; and (d) that neither Galen Underhill nor Sean Underhill knew that CO was a byproduct of propane radiant heaters, including the Powermate 5045 heater.

As an initial matter, Coleman argues that this Court cannot enter summary judgment on these specific facts put forth by Plaintiffs. Coleman cites no support for this proposition. Federal Rule of Civil Procedure 56(g) indicates that the Court "may enter an order stating any material fact - including an item of damages or other relief - that is not genuinely in dispute and treating the fact as established in the case." Accordingly, this Rule indicates that the Court is authorized to declare that specific facts, not just entire claims or defenses, are established. The Court will consider each fact in turn.

a. Fact 1: The Heater was the Sole Source of CO that Caused the Injuries

First, Plaintiffs seek to establish the fact "that the Coleman Powermate 5045 was the sole source of the CO that caused the death of Galen Underhill and the injury to Sean Underhill." Plaintiffs refer to the deposition of Richard Roby, Coleman's expert, in support of their contention that the Powermate 5045 was the sole source of CO in the tent the night of the incident. Roby stated, "It is my opinion that the subject heater produced sufficient CO in its modified condition to result in the death of Galen Underhill, and that was the only source of CO in the trailer that night, " and "The same is true as the [sic] Sean's injuries as well."

Coleman's brief states "Coleman does not dispute that the evidence indicates that the incident heater was the only product that appears to have created CO that injured Plaintiffs." Doc. 133, p. 9. Thereafter, Coleman points to portions of Roby's report in which Roby states:

Based on witness testimony and evidence recovered from the scene, although all of the other combustion devices cannot be completely eliminated, the Coleman 5045 heater was the only combustion device that was known to have been operated and was still operating when Galen and Sean were discovered. Hence, the heater cannot be ruled out as the source of the [CO] which led to the death of Galen Underhill and injury of Sean Underhill.

Doc. 133-6, p. 5.

Here, Plaintiffs have not produced evidence that the Powermate 5045 heater was the sole source of CO. Roby's deposition testimony suggests that the heater produced sufficient CO to cause the injuries and was the only source in the camper. This leaves open the possibility that there were sources of CO outside of the camper. Further, Roby's report indicates there were other sources of CO in the vicinity that could not be "completely eliminated." Accordingly, this Court cannot conclude that this issue is not genuinely in dispute and denies summary judgment in that respect.

b. Fact 2: Neither Galen Underhill nor Sean Underhill Read the Powermate 5045's On-Product Warning Label

Second, Plaintiffs seek to establish "that neither Galen Underhill nor Sean Underhill read the on-product warning label present on the Powermate 5045 heater." To establish this fact, Plaintiffs point to Sean Underhill's deposition in which he stated that he did not look at these warnings. Further, Plaintiffs argue Coleman conceded this matter when it answered discovery requests for the content of the warning label as follows: "Coleman objects to this request as harassing as the evidence reveals that neither Sean Underhill nor Galen Underhill ever read the warnings on the heater." Coleman argues the Court should deny summary judgment on this matter because it is best left to the jury to evaluate Sean Underhill's credibility.

The Court agrees that this fact is best left for the jury's determination. The appearance and placement of the warning label itself provides some evidence from which a jury could conclude that either Galen Underhill or Sean Underhill read the warning. Accordingly, the Court cannot find that this fact is not genuinely in dispute and denies Plaintiffs' motion for summary judgment in that respect.

c. Fact 3: Neither Galen Underhill nor Sean Underhill Noticed the On-Product Warning Label on the Powermate 5045 Heater

Third, Plaintiffs seek summary judgment on the following fact: "neither Galen Underhill nor Sean Underhill noticed the on-product warning label present on the Powermate 5045." Plaintiffs again point to Sean Underhill's deposition testimony in which he testifies he did not read the product warnings, and the "concession" by Coleman that neither Sean Underhill nor Galen Underhill read the warnings. They further point to the opinion of Dr. Michael Wogalter, an expert in human factors engineering, in which he opines that the warning would not be noticeable to consumers. Coleman argues that the Court should deny this portion of Plaintiffs' motion because the referenced testimony refers to whether Sean Underhill read, not noticed, the warnings, and Coleman contends the jury should consider the warning label itself.

The Court agrees with Coleman. The referenced testimony only refers to whether Sean Underhill read the warning, not whether he noticed it. Further, the jury should have the opportunity to view the label on the side of the heater, consider the expert testimony, and then determine whether Galen Underhill and/or Sean Underhill noticed the warning. Accordingly, the Court cannot conclude that this fact is not genuinely in dispute and denies Plaintiffs' motion for summary judgment in that respect.

d. Fact 4: Neither Galen Underhill nor Sean Underhill Knew that CO was a Byproduct of Propane Radiant Heaters, ...


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