Allstate Indemnity Company v. Broan-Nutone, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-00743-PAB-MDB
ALLSTATE INDEMNITY COMPANY, an Illinois corporation
Plaintiff,
v.
BROAN-NUTONE, LLC., a Delaware limited liability company,
Defendant.
ORDER
This matter comes before the Court on Defendant Broan-Nutone, LLC’s Motion
for Summary Judgment Pursuant to F.R.C.P. 56 [Docket No. 44] and Defendant Broan-
Nutone, LLC’s F.R.E. 702 Motion to Exclude Plaintiff’s Engineering Report [Docket No.
47]. The motions filed by defendant Broan-Nutone, LLC (“Broan-Nutone”) relate to the
claims of plaintiff Allstate Indemnity Company (“Allstate”) for strict product liability,
negligence, breach of the implied warranty of merchantability, and breach of the implied
warranty of fitness. Docket No. 44 at 2; Docket No. 47 at 1. Allstate filed responses,
Docket Nos. 59 and 51, and Broan-Nutone filed replies. Docket Nos. 63 and 52. With
leave of Court, Allstate filed supplemental responses. Docket Nos. 77 and 78. Broan-
Nutone did not file supplemental replies. As explained later in this order, Allstate’s
supplemental briefs undercut the bases of both motions. The Court has jurisdiction
pursuant to 28 U.S.C. § 1332.
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I. BACKGROUND 1
A. Undisputed Facts on Summary Judgment
Allstate insured L&J Home Improvements, LLC (“L&J”), which was owned and
operated by Julie and Luis Hernandez. Docket No. 44 at 2, ¶ 1. In or around 2003, L&J
purchased a two-story, wood frame residence built in 1888 that is located at 231 N.
Walnut St. in Colorado Springs, Colorado (the “residence”). Id., ¶ 2. After the
purchase, L&J performed a remodel on the residence in or around 2006. Id., ¶ 3. 2 The
remodel included “updated electrical system and fixtures, plumbing, [ ] turning a dirt
crawl space into a full basement, [and stripping] [t]he original plaster walls . . . down to
the framing to re-wire the structure.” Id. at 3, ¶ 4. Apache Electric & Maintenance, Inc.
(“AEMI”) was hired by L&J as the electrical contractor for the remodel of the residence.
Id., ¶ 5. 3 AEMI installed three identical bathroom exhaust/ventilation fan/lights alleged
to have been purchased by AEMI in bulk from Home Depot approximately one to two
years prior to their installation into the residence during the remodel. Id., ¶ 6. 4 One
1 The following facts are undisputed unless otherwise noted.
2 Plaintiff partially disputes this fact, stating that L&J did not do the remodeling
work itself, but instead hired contractors and subcontractors to do the work. Docket No.
59 at 2, ¶ 3. The Court finds this distinction to be immaterial and deems this fact
admitted.
3 Plaintiff partially disputes this fact, stating that “it is unclear whether Apache
was hired by the insured or a general contractor.” Docket No. 59 at 2, ¶ 5. The Court
finds this distinction to be immaterial and deems this fact admitted.
4 Plaintiff partially disputes this fact, stating that the record only supports the fact
that the appliances at issue were “bathroom ventilation fans,” not “bathroom
exhaust/ventilation fan/lights.” Docket No. 59 at 3, ¶ 6. The Court finds this distinction
to be immaterial and deems this portion of the fact admitted. Plaintiff also states that it
is unclear whether the reference to the three fixtures refers to fixtures installed prior to
the remodel or during the remodel. Id. The Court has reviewed the portion of the
record defendants cited for this asserted fact, Docket No. 44-2 at 7, and finds that
defendants accurately characterized the record. Moreover, plaintiff does not appear to
argue that the fan involved in the fire was installed at a different time, so any dispute
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bathroom exhaust/ventilation fan/light was installed in the upper-level half bath, one
bathroom exhaust/ventilation fan/light was installed in the lower-level bathroom, and
one bathroom exhaust/ventilation fan/light was installed in the upper-level bathroom.
Id., ¶ 7. 5
As of 2021, approximately fifteen years after the remodel, several men assigned
to a group home through the El Paso County criminal justice system occupied the
residence. Id., ¶ 8. 6 They were living there when a fire occurred the evening of
February 25, 2021 (the “incident”). Id., ¶ 9. One man, who shared the upper-level
bathroom where the fan was located, said that the fan was often left on after bathroom
use, the fan had begun to make a noise when turned on several weeks before the
incident, and the circuit breaker for the bathroom and his bedroom had been tripping
regarding the installation date of the other fans is immaterial. The Court deems this fact
admitted.
5 Plaintiff partially disputes this fact, stating it is unclear whether all three fans
were “bathroom exhaust/ventilation fan/light” products. Docket No. 59 at 3, ¶ 7. For the
reasons discussed in the preceding footnote, the Court finds this distinction to be
immaterial and deems this fact admitted.
6 Defendant’s asserted fact states that four males lived in the house at the time of
the fire. Docket No. 44 at 3, ¶ 8. Plaintiff responds that it is unclear from the record
how many people lived in the house. Docket No. 59 at 3, ¶ 8. The Court agrees that
the portion of the record cited by defendant, Docket No. 44-2 at 3, does not identify the
number of people living in the house. The Court therefore deems this portion of the fact
admitted only insofar as it states that multiple people lived in the house. Plaintiff also
argues that it is unclear from the record when the remodel of the home was completed.
Docket No. 59 at 3, ¶ 8. The Court finds the exact nature of plaintiff’s dispute to be
unclear, given that plaintiff already admitted that “remodeling work occurred in our [sic]
around 2006.” Id. at 2, ¶ 3. If plaintiff is asserting that some remodeling work occurred
later than 2006, the Court finds this distinction to be immaterial. As will be discussed
later in this order, the significance of the time elapsed between the remodel and the fire
is relevant only to show that the fan was at least ten years old at the time of the fire, and
the undisputed facts demonstrate that the fan was manufactured in 2005. Docket No.
44 at 5, ¶ 16. Whether other remodeling work occurred at a later date is therefore
immaterial. The Court deems this fact admitted.
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over the week before the incident. Id., ¶ 10. On the evening of the incident, the breaker
had tripped again, causing the individual to reset it prior to the occurrence of the
incident. Id. at 4, ¶ 11.
The Colorado Springs Fire Department (the “CSFD”) conducted an investigation.
Id., ¶ 12. The CSFD considered the fan as an ignition source and noted that 1) the light
bulb was intact with minimal fire damage to the housing and wiring, 2) parts of the
plastic fan blade were melted, but appeared to have been exposed to heat, 3) wiring
going into the exhaust fan still had a portion of the plastic sheathing intact, and 4) the
exposed wires started a few inches away from the exhaust fan. Id., ¶ 14. Allstate’s
expert determined that the fan had a significant accumulation of lint following the
incident. Id. at 5, ¶ 15. 7
The fan was identified as a NuTone fan, model number 763RLN, that was
manufactured in or around the fall of 2005 (the “fan”), making the fan approximately 16
years old. Id., ¶ 16. 8 The motor within the fan was manufactured by Jakel, Inc., and the
7 Defendant’s asserted undisputed fact states “[i]t was further determined that the
Fan had significant accumulation of lint and dust build up following the Incident.”
Docket No. 44 at 5, ¶ 15. Plaintiff partially disputes this fact, stating that “[l]int
accumulation was found on the fan shroud and fan plate, not the entire fan as implied
by the statement.” Docket No. 59 at 5, ¶ 15. Insofar as plaintiff is challenging the
assertion that “dust” was present, the Court agrees that the cited portion of the record,
Docket No. 44-4 at 5, makes no mention of dust. The Court otherwise finds the
distinction plaintiff makes to be immaterial and therefore deems the remainder of the
fact admitted.
8 Plaintiff partially disputes this fact, stating that “[p]laintiff has relied on
Defendant’s representation that the fan was manufactured in or around the Fall of 2005,
but Defendant has failed to produce substantiating documentation to conclusively
establish the subject fan’s date of manufacture.” Docket No. 59 at 5, ¶ 16. Plaintiff
does not – and apparently cannot – cite to any portion of the record that contradicts this
fact. The Court deems this fact admitted.
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motor component was then placed into the fan. Id., ¶ 17. 9 Defendant Broan-Nutone
manufactured and sold the fan. Docket No. 59 at 10, ¶¶ 1-2. When the fan was
manufactured in the fall of 2005, it was required to meet the following certification
requirements: UL507, UL1004, and UL2111. Docket No. 44 at 5, ¶ 19. 10
The most probable ignition source of the fire was the failure of the exhaust fan
motor. Docket No. 59 at 10, ¶ 2. The existence of lint shows that the fire originated
from inside the subject fan rather than outside the fan. Id. at 11, ¶ 5. The most
probable fire spread scenario is that 1) combustible lint built-up inside the fan housing
was ignited by an arc from the motor windings; 2) heat from the burning lint, confined
inside the metal housing, ignited the plastic fan, and the heat from the motor also
burned a hole through the plastic grille; 3) heat from the burning lint and plastic fan
vented out the plastic damper/duct connections, igniting them, and hot gases entered
into the attic and impinged on nearby combustibles; and 4) the kraft paper backing on
9 Plaintiff partially disputes this fact, stating that it is unknown whether the motor
was manufactured before or after the other fan components. Docket No. 59 at 5, ¶ 17.
This is nonresponsive to the assertion that the motor component was placed into the
fan. The Court therefore deems this portion of the fact admitted. Plaintiff also argues
that, while the motor bears a “Jakel” stamp, no documentation has been provided to
show that Jakel was the manufacturer of the motor. Id. Plaintiff does not cite to any
portion of the record that contradicts this fact. The Court therefore deems this fact
admitted.
10 Plaintiff partially disputes this fact, stating “[i]t is unknown which UL standards
were ‘required’ in 2005 for all components of the fan, by whom, or to what ‘required’
references.” Docket No. 59 at 5-6, ¶ 19. The portion of the record that plaintiff cites in
support of its response, Docket No. 44-5 at 6, 75:15-23, merely states that Jakel tested
the motors for UL 2111 and 1004, and Broan-Nutone did not receive the results of this
testing. As plaintiff does not identify relevant evidence to refute the asserted fact, the
Court deems this fact admitted. However, for reasons that will be discussed later in this
order, the Court notes that plaintiff has identified additional disputed material facts that
call into question both whether these were the only applicable UL standards and also
whether defendant complied with those standards.
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the batt insulation next to and in contact with the vent fan was likely the first fuel ignited
outside the fan housing, and the fire spread to the wood framing. Id. at 10, ¶ 3. The
thermal cutoff (“TCO”) in the subject fan did not work as designed or intended in that it
failed to shut off the motor to prevent the arcing and overheating from occurring. Id. at
11, ¶ 8. The lead to the TCO was bent by Broan-Nutone when installing the Jakel
motor in the subject fan. Id. at 12, ¶ 16. The fan was not altered from the time it left
Broan-Nutone’s control to the time it reached L&J. Id. at 10, ¶ 1.
B. Additional Facts from October 2024 Document Production 11
Underwriters Laboratories (“UL”) issued bulletins on March 5, 1999, June 15,
2001, and May 30, 2003 directing manufacturers to note a new standard to be followed
when installing TCOs in fans like the fan at issue in this case. Docket No. 77 at 3. UL
issued this standard on September 26, 2003. Id.12 Broan-Nutone had a copy of this
new standard by September 26, 2003 at the latest, which was before the manufacture
date of the fan at issue in this case. Id. Broan-Nutone knew, or should have known, as
early as March 5, 1999 and no later than September 26, 2003, that the new UL
requirement would be implemented by September 26, 2005 and would need to be met
in order to receive UL certification. Id. at 4. The UL standard states that:
Leads and terminal parts shall be secured so that stress on them during
installation and normal use does not impair operation of the thermal-link.
11 As explained later in this order, plaintiff received additional documents from
defendant in October 2024. See Docket No. 70 at 2. Based on these documents,
plaintiff filed supplemental responses to defendant’s motion to exclude and motion for
summary judgment. Docket Nos. 77 and 78. Defendant did not file supplemental
replies, so it is not known whether defendant disputes the facts noted by plaintiff. The
Court will therefore treat these facts as additional disputed facts for purposes of the
summary judgment motion.
12 Plaintiff lists this date as “September 26, 2023,” but the Court understands this
to be a typographical error and notes that the portion of the exhibit that plaintiff cites,
Docket No. 77-1 at 7, lists the date as September 26, 2003.
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Thermal-links using seals with formed leads for use in appliances or components
shall not be bent less than 3 mm from the thermal-link seal.
Id. (emphasis omitted).
C. Expert Report
Allstate has designated Robert Longseth, PE, a forensic engineer with
experience investigating both electrical and mechanical systems, as an expert in this
case. Docket No. 47 at 3, ¶ 9; Docket No. 44-4 at 13. On December 29, 2023, Mr.
Longseth prepared an expert report regarding the cause of the fire. Docket No. 44-4.
Broan-Nutone does not appear to have deposed Mr. Longseth. Broan-Nutone seeks to
exclude at trial the opinions of Mr. Longseth regarding whether the TCO in the fan was
defective. Docket No. 47 at 15.
D. Procedural History
Broan-Nutone filed its motion to exclude expert testimony on May 23, 2024.
Docket No. 47. Allstate filed its response to that motion on June 12, 2024, Docket No.
51, and Broan-Nutone filed its reply on June 27, 2024. Docket No. 52.
Broan-Nutone filed its motion for summary judgment on April 29, 2024. Docket
No. 44. On May 16, 2024, the assigned magistrate judge granted a request from
Allstate for an extension of time to conduct expert discovery. Docket No. 46 at 1. The
magistrate judge also extended the deadline for Allstate to respond to the motion for
summary judgment to July 31, 2024. Id. at 1. On July 31, 2024, Allstate filed its
response. Docket No. 57. On August 6, 2024, the Court struck the response because it
did not comply with the Court’s practice standards. Docket No. 58. On August 7, 2024,
Allstate filed a response that complied with the practice standards. Docket No. 59. On
August 21, 2024, Broan-Nutone filed a reply. Docket No. 63.
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At a discovery conference on August 13, 2024, the magistrate judge found that
“[d]efendant’s expert relied on more than the materials listed in his report,” and ordered
that Broan-Nutone produce “any UL standards reviewed by the expert that pertain to the
fan/motor [and] any manufacturer literature or other information concerning the TCO in
this fan motor that this expert had access to when forming his opinions.” Docket No. 62
at 1-2. In a status report filed on October 11, 2024, Allstate argued that Broan-Nutone
had delayed complying with the magistrate judge’s August 13, 2024 discovery order.
Docket No. 70 at 2. Allstate stated that it did not receive the relevant documents until
October 4, 2024. Id. Allstate asked that it be given thirty days from the date of the final
pretrial conference for its expert to review the materials and asked for permission for its
expert to amend his report if needed. Id. At the final pretrial conference, held on
October 15, 2024, the magistrate granted Allstate’s request for “an additional 30 days to
review the materials and if needed, supplement its response to the summary judgment
motion.” Docket No. 72 at 1. The final pretrial order states that “[t]he Court admonishes
Defendant for its unreasonable approach in meeting its obligation to comply with the
Court's August 13th order.” Docket No. 73 at 8.
On November 13, 2024, Allstate filed a motion for leave to supplement its
responses to both the motion to exclude and the motion for summary judgment. Docket
No. 74. On February 18, 2025, the Court granted the motion, ordering that Allstate
could file supplemental responses by February 24, 2025 and that Broan-Nutone could
file supplemental replies by March 3, 2025. Docket No. 76.
On February 24, 2025, Allstate filed its supplemental responses. Docket Nos. 77
and 78. On March 3, 2025, the Court granted Broan-Nutone’s request to extend its
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deadline to file supplemental replies to March 17, 2025. Docket No. 80. Broan-Nutone
did not, however, file any supplemental replies.
II. LEGAL STANDARD
A. Federal Rule of Evidence 702
Rule 702 of the Federal Rules of Evidence provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if the proponent
demonstrates to the court that it is more likely than not that: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is
based on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the expert’s opinion reflects a reliable application
of the principles and methods to the facts of the case.
Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590–91
(1993). If challenged by a party opposing the testimony of an expert witness, “[Rule]
702 imposes upon the trial judge an important ‘gate-keeping’ function with regard to the
admissibility of expert opinions.” Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297,
1307 (10th Cir. 2015) (citation omitted). However, “[t]he proponent of expert testimony
bears the burden of showing that its proffered expert’s testimony is admissible.” United
States v. Nacchio, 555 F.3d 1234, 1241 (10th Cir. 2009). “[T]he proponent has the
burden of establishing that the pertinent admissibility requirements are met by a
preponderance of the evidence.” Id. (quoting Fed. R. Evid. 702 advisory committee's
note (2000)).
To determine whether an expert opinion is admissible, the court must perform “a
two-step analysis.” Roe v. FCA US LLC, 42 F.4th 1175, 1180 (10th Cir. 2022); see also
103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). First, the
court must determine whether the expert is qualified by “knowledge, skill, experience,
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training, or education” to render an opinion. Roe, 42 F.4th at 1180 (quoting Fed. R.
Evid. 702).
Second, if the expert is sufficiently qualified, the proffered opinions must be
assessed for reliability. Id. at 1180–81; Fed. R. Evid. 702(b)–(d) (requiring that the
testimony be “based on sufficient facts or data,” be the “product of reliable principles
and methods,” and reflect a reliable application of “the principles and methods to the
facts of the case”). To perform that function, a court must “assess the reasoning and
methodology underlying the expert’s opinion, and determine whether it is both
scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328
F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592–93). In assessing
whether a methodology is reliable, a court may consider several non-dispositive factors,
including “(1) whether the theory can be tested; (2) whether it is subject to peer review
and publication; (3) the known or potential error rate; (4) the existence and maintenance
of standards; and (5) the general acceptance in the relevant scientific community.”
United States v. Foust, 989 F.3d 842, 845 (10th Cir. 2021) (citing Daubert, 508 U.S. at
593-94). However, courts have “broad discretion to consider a variety of other factors.”
Etherton v. Owners Ins. Co., 829 F.3d 1209, 1217 (10th Cir. 2016).
Next, the court must assess whether the expert used sufficient facts and data as
required by the methodology and whether the expert reliably applied the methodology to
the facts of the case. United States v. Crabbe, 556 F. Supp. 2d 1217, 1223 (D. Colo.
2008); see also Roe, 42 F.4th at 1181. To demonstrate the reliability of an opinion that
is based solely on an expert’s experience, the expert “must explain how that experience
leads to the conclusion reached, why that experience is a sufficient basis for the
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opinion, and how that experience is reliably applied to the facts.” United States v.
Medina-Copete, 757 F.3d 1092, 1104 (10th Cir. 2014) (quoting Fed. R. Evid. 702,
advisory committee notes). Establishing reliability does not require showing that the
expert’s testimony is indisputably correct. United States v. Pehrson, 65 F.4th 526, 540
(10th Cir. 2023); see also Goebel v. Denver & Rio Grande W. R.R. Co., 346 F.3d 987,
991 (10th Cir. 2003) (discussing how the opinion is tested against the standard of
reliability, not correctness). However, “nothing in either Daubert or the Federal Rules of
Evidence requires a district court to admit opinion evidence that is connected to existing
data only by the ipse dixit of the expert. A court may conclude that there is simply too
great an analytical gap between the data and the opinion proffered.” Roe, 42 F.4th at
1181. “[T]he trial judge must have considerable leeway in deciding in a particular case
how to go about determining whether particular expert testimony is reliable.” Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
B. Summary Judgment
Summary judgment is warranted under Federal Rule of Civil Procedure 56 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); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
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Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
III. ANALYSIS
A. Rule 702 Motion
Broan-Nutone’s motion to exclude does not comply with the Court’s practice
standards regarding Rule 702 motions, which require the moving party to “identify with
specificity each opinion the moving party seeks to exclude [and to] identify the specific
ground(s) on which each opinion is challenged, e.g., relevancy, sufficiency of facts and
data, methodology.” See Practice Standards (Civil Cases), Chief Judge Philip A.
Brimmer, § III.G (emphasis omitted). While the motion intersperses Mr. Longseth’s
opinions, and objections to these opinions, throughout parts of the motion’s background
and argument sections, see Docket No. 47 at 4-5, 13-14, the motion does not
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individually discuss each opinion and the basis for challenging it. Nevertheless, the
Court will consider Broan-Nutone’s motion.
Broan-Nutone’s motion to exclude does not explicitly identify the provision of
Rule 702 upon which its arguments are based. Rather, the motion takes issue with Mr.
Longseth’s reliance on an article written in 2014 in reaching Mr. Longseth’s conclusions
regarding the TCO and the cause of the fire. Docket No. 47 at 13-15. The Court
understands the motion to challenge whether Mr. Longseth’s opinion about the TCO
and its role in the fire relies on “sufficient facts or data,” as required by Rule 702(b).
The article at issue is “Ventilation Fan Fires: Overheated Windings Lead to Failed
Thermal Limit Switch,” published in the journal Fire Technology in 2014. Docket No. 44-
8. The article describes a “recent increase in the occurrence of ventilation fan fires.” Id.
at 1. The focus of the paper is two models of Jakel motors that were manufactured
between 2000 and 2003 and were designed for ventilation in small rooms, such as
laundry rooms and bathrooms. Id. at 1-2. The article states that these fan motors are
“often used in Broan-Nutone exhaust fans.” Id. at 2. The article identifies two
“significant design modifications . . . in Jakel motors which appear to have resulted in
operational changes leading to winding degradation, ground faults, arcing, and fires.”
Id. at 4. The second of these changes was a switch to a Tamura-made TCO from a
TCO-type device manufactured by another company. Id.13 The article states that:
A number of contributing factors exist as to why the Tamura thermal link may not
function properly within the 2000 and newer Jakel motors. One potential factor is
that the Tamura TCO is not being installed per the recommendations of the
manufacturer. The current Tamura website recommends bending the lead wire
at least three millimeters from the body of the thermal linkage. The Tamura
13 The other “significant design modification” discussed in the article does not
appear to be relevant to this case.
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website also cautions against turning the lead wire against the body of the
phenolic case. Figures 7 and 11 depicted the manner in which Jakel installed the
Tamura TCO device in the motors manufactured post 2000. It is the author’s
opinion that a sharp bend in the TCO lead could damage the epoxy seal at the
end of the TCO. This is shown in Figure 11, where a crack is observable in the
epoxy adjacent to the bent lead. Damage to the seal may compromise the
integrity of the TCO package, allowing ambient air to enter that causes oxidation
of the resin flux and the fusible thermal link.
Id. at 10-12.
Mr. Longseth’s expert report states that “the lead to the thermal cut out was bent
significantly as part of its installation.” Docket No. 44-4 at 10. The report then states
that, “[w]hile the model number of the specific motor was not the same as the below
article the evidence is consistent with [the article’s] finding.” Id. at 11. Mr. Longseth’s
report then reproduces all but the first sentence of the above excerpt from the article.
Id. at 11.
The Court understands Broan-Nutone’s motion to make two arguments about Mr.
Longseth’s analysis. First, Broan-Nutone argues that the fans and TCOs tested in the
article may not have been the same as the fan and TCO at issue in this case. Docket
No. 47 at 13-14. The article, however, states that its analysis involves Tamura TCOs
installed in Jakel motors that were manufactured after the year 2000 and that were
“often” used in Broan-Nutone small-room ventilation fans, Docket No. 44-8 at 2, 10-12,
and each of those characteristics are present in the fan at issue in this case. Mr.
Longseth acknowledges that the model number of the motor involved in this case was
not the same as the model numbers in the article, but states his belief that the evidence
is “consistent with the findings of [the article].” Docket No. 44-4 at 11. The Court finds
that it is permissible for Mr. Longseth to rely on the article in reaching his conclusions.
Cf. Four Corners Helicopters, Inc. v. Turbomeca, S.A., 979 F.2d 1434, 1442 (10th Cir.
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1992) (holding that evidence of other incidents or experiments was admissible if the
conditions were “substantially similar.”).
Second, Broan-Nutone argues that the article, which references TCO installation
standards as of 2014, are of little or no value. Docket No. 47 at 14. The article, which
was published in 2014, states that “[t]he current Tamura website recommends bending
the lead wire at least three millimeters from the body of the thermal linkage.” Docket
No. 44-8 at 11. Broan-Nutone argues that any information about a standard that existed
in 2014 is not relevant, and that there is no evidence regarding “the state of
manufacturing and/or design knowledge . . . relevant to the fan at issue and its
manufacture and sale in 2005.” Docket No. 47 at 14.
But the documents that Allstate obtained through supplemental discovery directly
refute this argument. As Allstate explains in its supplemental response, notices of
industry standards that were published by Underwriters Laboratories between 1999 and
2003, and that were in Broan-Nutone’s possession by, at the latest, September 2003,
state that the lead to a TCO should not be bent closer than three millimeters from the
thermal-link seal. Docket No. 78 at 3-4. This standard regarding the bend in the TCO
lead is the same as the one discussed in the 2014 article that Mr. Longseth cites in his
report. Docket No. 44-4 at 11. The Court therefore finds that Mr. Longseth relied on
sufficient facts and data in reaching his conclusion and will deny Broan-Nutone’s motion
to exclude.
B. Motion for Summary Judgment
To prevail on its motion for summary judgment under Federal Rule of Civil
Procedure 56(a), Broan-Nutone must identify “a lack of evidence for the nonmovant on
an essential element of the nonmovant’s claim.” Bausman, 252 F.3d at 1115. Broan-
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Nutone’s motion focuses on the rebuttable presumptions found in the Colorado
Products Liability Act, Colo. Rev. Stat. § 13-21-403, and argues that Allstate lacks the
requisite expert testimony to rebut these presumptions. Docket No. 44 at 17-19.
Broan-Nutone therefore claims that, since Allstate cannot rebut the presumptions,
Broan-Nutone is entitled to summary judgment. Id. The two presumptions at issue
state that:
In any product liability action, it shall be rebuttably presumed that the product
which caused the injury, death, or property damage was not defective and that
the manufacturer or seller thereof was not negligent if the product: (a) Prior to
sale by the manufacturer, conformed to the state of the art, as distinguished from
industry standards, applicable to such product in existence at the time of sale; or
(b) Complied with, at the time of sale by the manufacturer, any applicable code,
standard, or regulation adopted or promulgated by the United States or by this
state, or by any agency of the United States or of this state . . . .
Ten years after a product is first sold for use or consumption, it shall be
rebuttably presumed that the product was not defective and that the
manufacturer or seller thereof was not negligent and that all warnings and
instructions were proper and adequate.
Colo. Rev. Stat. § 13-21-403(1), (3). As a threshold matter, the Court notes that the
statutory presumptions listed in Colo. Rev. Stat. § 13-21-403 are of limited value at the
summary judgment stage. See Haslett v. Keirton, Inc., 637 F. Supp. 3d 1172, 1180 (D.
Colo. 2022) (discussing Section 13-21-403(3) and citing Mile Hi Concrete, Inc. v. Matz,
842 P.2d 198, 205 (Colo. 1992) (footnote omitted)).
The Court finds that there is a genuine dispute of material fact regarding the
presumptions that precludes summary judgment. Broan-Nutone argues that “the record
in this case and at trial is wholly devoid of any 2005 in-force TCO manufacture and/or
installation standards, and no such opinions have been endorsed or could be offered at
trial.” Docket No. 44 at 18. Broan-Nutone further argues that “there is no evidence in
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the record at all that Broan – or any downstream components manufacturers – either
violated any known standards, or were aware of any defects or issues with component
parts, including the TCO, at the time the Fan was manufactured and/or sold.” Id. at 18-
19.
As for the first presumption, Allstate has, contrary to defendant’s assertions,
identified evidence of standards that were applicable at the time of the fan’s
manufacture, Docket No. 77 at 3-4, and evidence that the fan had a bend in the TCO
lead that may not comply with the standards. Docket No. 59 at 12, ¶ 16. While
compliance or non-compliance with safety standards might not, on its own, be outcome-
determinative, see City of Fountain v. Gast, 904 P.2d 478, 480 (Colo. 1995), the
Colorado Supreme Court has held that evidence of compliance with standards is
relevant, “especially in design defect cases,” and that “the trier of fact is greatly
dependent on expert evidence and industry standards in deciding whether a defect is
present.” Union Supply Co. v. Pust, 583 P.2d 276, 286 (Colo. 1978). The Court
therefore finds that Allstate has identified sufficient evidence to create a genuine dispute
of material fact, and that Broan-Nutone is not entitled to summary judgment on the first
presumption.
As for the second presumption, it is undisputed that the fan was at least ten
years old at the time of the incident. Docket No. 44 at 5, ¶ 16. But this presumption can
be rebutted by evidence that the fan was defective at the time of manufacture. See Mile
Hi Concrete, 842 P.2d at 204 (“Section 13-21-403(3) creates only a rebuttable
presumption that will prevail in the absence of evidence to the contrary.”) (emphasis
omitted). Again, Allstate has produced evidence of industry standards, Docket No. 77
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at 3-4, and expert testimony, Docket No. 44-4 at 9-12, sufficient to create a genuine
dispute of material fact as to whether the fan was defective at the time it was
manufactured. The Court will therefore deny Broan-Nutone’s motion for summary
judgment.
IV. CONCLUSION
It is therefore
ORDERED that Defendant Broan-Nutone, LLC’s Motion for Summary Judgment
Pursuant to F.R.C.P. 56 [Docket No. 44] is DENIED. It is further
ORDERED that Defendant Broan-Nutone, LLC’s F.R.E. 702 Motion to Exclude
Plaintiff’s Engineering Expert [Docket No. 47] is DENIED.
DATED March 26, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
___________________________
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