779 F. Supp. 2d 1198
D. Kan.2011Background
- Plaintiff alleges injuries to her ear from an ear candle purchased from Wild Oats in 2003 after a procedure performed by Kenney in 2006.
- Wild Oats seeks summary judgment on plaintiff's product liability claims (negligence, gross negligence, strict liability, implied warranty).
- Wild Oats seeks indemnification against Wally's and United, who move for summary judgment on indemnity claims if Wild Oats is entitled to summary judgment.
- Ear candle was sold without packaging or warnings; plaintiff and Kenney lacked access to Wally's warning instructions during procedure.
- Court consolidates Wild Oats’ and Wally's/United's motions for summary judgment and evaluates evidentiary issues including an FDA letter and a Roth affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Defect existence under KPLA | Ear candle defective via lack of warnings/instructions and expert views. | No defect proven; lacks admissible evidence of defect. | Genuine dispute as to defect remains; not entitled to summary judgment on defect. |
| Implied warranty of fitness for a particular purpose | Wild Oats knew Plaintiff's particular purpose and relied on Oats' skill. | Cannot prove fitness-for-a-particular-purpose elements; lack of ordinary purpose clarity. | Issue of fitness-for-a-particular-purpose survives; not entitled to summary judgment. |
| Statute of limitations for implied warranty | Two-year product liability period applies from injury; suit timely. | Four-year statute; accrual at delivery; time barred. | KPLA 60-513 two-year period applies; timely filed within limitations. |
| Gross negligence vs punitive damages | Kansas recognizes gross negligence as a category and seeks punitive damages for wanton conduct. | Kansas does not recognize separate gross-negligence claim; punitive damages require wanton conduct proven by clear and convincing evidence. | Gross negligence claim barred; punitive-damages claim allowed if wanton conduct shown; issues for jury. |
| Negligence standard of care | Plaintiff need not rely on expert to establish ordinary negligence standard for product seller. | Requires expert for standard of care in professional actions. | No expert required; standard of care for ordinary negligence of a product seller governs; not entitled to summary judgment on this basis. |
Key Cases Cited
- Savina v. Sterling Drug, Inc., 247 Kan. 105 (1990) (three ways a product can be defective under KPLA)
- Lohmann & Rauscher, Inc. v. YKK (U.S.A.) Inc., 477 F.Supp.2d 1147 (D.Kan.2007) (implied warranties and reliance considerations)
- Willard v. City of Kansas City, 235 Kan. 655 (1984) (definition of ample issues for wanton conduct; jury question)
- Gruhin v. City of Overland Park, 17 Kan.App.2d 388 (1992) (reasonableness and fact-finder determinations in negligence contexts)
- Moore v. Associated Material & Supply Co., 263 Kan. 226 (1997) (expert testimony often required to establish professional-standard departures)