6:14-cv-01183
D. Kan.Jul 14, 2015Background
- Scottsdale Insurance, as subrogee for Chris and Karly Chereny, sued Deere after a 2013 fire destroyed a John Deere S670 combine insured by Scottsdale; plaintiff alleges a defect in the Emissions Control System (ECS) caused the fire.
- The Cherenys bought two used 2012 S670 combines and received a purchase order front page that included a conspicuous all-caps disclaimer excluding implied warranties of merchantability and fitness.
- Deere’s standard express warranty (12 months for non-wear components) promises repair or replacement for parts defective in material or workmanship; parties’ pretrial order treats the Deere warranty as applicable.
- The ECS includes a Diesel Oxidation Catalyst (DOC) and a Diesel Particulate Filter (DPF) with passive and active regeneration controlled by computer/software; passive regeneration does not generate extra heat.
- On June 2, 2013 the combine caught fire during harvest; witness observed flames from the exhaust. Scottsdale’s expert Raymond Thompson opined the fire originated near the DPF; Deere’s expert offered alternative theories (crop debris) and called the cause undetermined.
- Deere moved for summary judgment on breach of implied and express warranty claims and sought exclusion/limitation of Thompson’s expert testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility and scope of Thompson’s expert testimony | Thompson is qualified to opine on origin and cause of fire; his report supports opinion that fire began near the DPF | Thompson lacks qualifications on complex diesel emissions systems and his Rule 26 report is deficient | Admissible only on point of origin (near DPF); not admissible to opine on defects in ECS/software; report violated Rule 26 but testimony not excluded under Rule 37(c) (harmless after deposition) |
| Rule 26 compliance for retained expert | Report disclosed opinion and photos; deposition provided further detail | Report failed to include basis, publications, prior testimony, and compensation as required by Rule 26(a)(2)(B) | Report deficient under Rule 26, but Rule 37(c) relief denied because deficiency was harmless/substantially justified after deposition |
| Exclusion of implied warranty of merchantability | Implied warranty should survive because insureds did not receive full written warranty | Implied warranty was conspicuously excluded in the purchase order and John Deere warranty | Implied warranty excluded as a matter of law (summary judgment for Deere on implied-warranty claim) |
| Breach of express warranty (defect in materials or workmanship) | Express warranty applies; evidence (flames from exhaust + Thompson’s origin opinion) creates a fact issue that a defect caused the fire | No evidence of a defect; probable cause was accumulated crop debris; DPF housing intact; cause undetermined | Summary judgment denied on express-warranty claim — genuine dispute of material fact exists as to whether a defect caused the fire |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (district court gatekeeping role for expert admissibility)
- United States v. Avitia-Guillen, 680 F.3d 1253 (10th Cir. 2012) (expert testimony must be relevant and reliable under Rule 702)
- United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009) (court must assess expert qualifications and methodology)
- Bitler v. A.O. Smith Corp., 400 F.3d 1227 (10th Cir. 2004) (fire investigators may reliably identify point of origin)
- Jacobson v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002) (district court discretion in Rule 37(c) sanctions analysis)
- Woodworker’s Supply, Inc. v. Principal Mut. Life Ins. Co., 170 F.3d 985 (10th Cir. 1999) (Rule 37(c) violation harmlessness factors)
- Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard — genuine issue for trial)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting principles)