The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Plaintiff commenced this product liability action seeking damages it sustained from paying an insurance claim arising from a residential fire. The fire allegedly started in a toaster manufactured by defendant. Plaintiff seeks to establish that a defect in the toaster caused the fire. Presently before the court is defendant's motion for summary judgment, which is predicated on the court excluding the testimony of plaintiff's key expert witness on liability and the likely cause of the fire. For the reasons set forth below, the motion will be denied.
Federal Rule of Civil Procedure 56 (c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. On September 11, 2004, at 11:20 p.m., Shirley Bastianini decided to toast two strawberry Kellogg's Pop-Tarts in a toaster manufactured by defendant. The toaster was situated on the kitchen counter of her residence. She routinely had used the toaster to cook Pop-Tarts and other toaster pastries for a number of years without experiencing an abnormal operation or mechanical problem. During the toasting cycle Ms. Bastianini heard her 18-month old granddaughter begin to cry, and she left the kitchen to tend to the child. She returned to the kitchen several minutes later with her granddaughter in her arms. When she focused on the toaster, she saw flames coming out of the bread slots, hitting the bottom of the cabinets directly above, and curling around the edges of the cabinet. She believed that pulling the plug would not have helped, so she exited the house with her granddaughter and called 911.
It is undisputed that the toaster was a Hamilton Beach/Proctor-Silex ("HBPS") T19 Model 24415 ("the subject toaster"). This particular toaster style and model number has not been produced by HBPS for at least four years.
Plaintiff investigated the fire pursuant to a claim under the Bastianini's homeowner's policy and ultimately determined that it resulted in property damage valued at $168,161.76. Plaintiff paid the claim and commenced this products liability action pursuant to its subrogation rights.
Plaintiff hired an electrical engineering consultant, Michael Wald ("Wald") of IEI Consulting, to assist in determining the cause of the fire. IEI Consulting had conducted investigations in at least six other fires that were determined to be caused by HBPS toasters, and more specifically, the failure of the toasters' end-of-cycle mechanism to trigger the carriage release. Of these, at least three had occurred in toasters in which the end-of-cycle components were identical to those in the subject toaster. Wald attempted to acquire a T19 Model 24415 for testing, but was unable to obtain one from defendant, the internet, retail outlets and other potential sources.
After reviewing the pertinent depositions, incident reports and discovery responses, and examining the actual subject toaster, Wald determined that the cause of the fire was the failure of the toaster's end-of-cycle mechanism to actuate the carriage release. Wald described the mechanical operation of the toaster as follows:
This design uses a bi-metal strip mounted vertically inside of the toasting chamber which bends as it becomes heated during the toasting cycle. The movement of the strip pushed on a small rod [push rod] located in the bottom of the chamber which travels [laterally] through a small cutout in the front plate of the toaster (bulkhead) where it pushes the moveable contact of a momentary contact switch. When the switch is pushed closed, energy is delivered to a solenoid which activates the carriage release. It is the bending of the strip, the movement of the rod, and the closing of the switch which constitutes the end of cycle mechanism.
Wald Expert Report (Doc. No. 38-3) at 2. Defendant does not dispute this description.
Wald posited that the design defect inherent in the T19 is its susceptibility to the accumulation of frosting or other sticky debris on the push rod which, in turn, can and did hinder its lateral movement through the bulkhead. When the push rod fails to trigger the contact switch, the heating elements continue to emit heat indefinitely. After several minutes the contents in the toaster erupt into flame. Wald based this assessment in part on testing he conducted on a HBPS T17 Model 22415 toaster in the case of Seeley v. Hamilton Beach/Proctor-Silex, 349 F.Supp.2d 381 (N.D.N.Y. 2004).
In Seeley, Wald conducted two rounds of testing on a T17 22415 Model toaster in order to determine whether a presumed defect had caused a Pop Tart to combust and set fire to the Seeley home. In the initial phase of testing, Wald toasted Pop Tarts at various settings, mostly medium to high. After 12 to 20 cycles, he observed the buildup of icing throughout the inner workings of the toaster chamber, including an area close to where the push rod passes through the bulkhead. Based on this observation he developed the hypothesis that debris such as frosting ...