Case Information
*2 Before LUCERO , McKAY , and HARTZ , Circuit Judges.
LUCERO , Circuit Judge.
Danger lurked in Fred and Peggy Bitler’s basement, liability for which is the occasion for the present appeal. Mr. Bitler was severely burned when a gas explosion occurred in the basement of his home. On filing a products liability suit against, inter alia, White-Rodgers as manufacturer of the gas control installed in his basement water heater, a jury returned a verdict finding negligence and product defect and awarded damages to the Bitlers. White-Rodgers’ motions for JNOV and a new trial having been denied by the district court, the present appeal followed. In contesting the jury verdict imposing products liability on it for the explosion, White-Rodgers assigns as principal error the district court’s admission of plaintiffs’ expert testimony under Daubert principles. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
I
Fred and Peggy Bitler resided in a house provided for their use on the *3 Oldland Ranch outside of Meeker, Colorado where Fred Bitler was a ranch hand. On the evening of the accident, July 25, 1996, Bitler discovered that there was no hot water when he attempted to shower. Hot water was supplied to the Bitlers’ home by a liquid propane hot water heater located in the basement. Donning sweat pants, he proceeded to the basement door, unlatched it, and walked approximately two-third’s of the way down the staircase when a large explosion occurred, knocking him backwards. His wife, Peggy Bitler, was thrown off a sofa and onto the floor, which was later determined to have been raised several inches by the force of the explosion. Fred Bitler sustained severe burns, and after being flown by helicopter to a hospital, underwent multiple skin graft surgeries over the following weeks. It was established at trial that he has, in addition to general disfigurement, continuing problems with regulation of his body temperature, use of his hands, growth of hair follicles, and he will also need additional procedures in the future to develop nail growth on his hands. As a result of the injuries he sustained in this accident, he is no longer able to perform the duties appertaining to his former occupation as a cowboy and ranch hand.
There were three gas propane appliances in the Bitlers’ home – a cook stove in the kitchen, a furnace in a bedroom, and a space heater in one of the bedrooms. Gas was supplied to the water heater via unsupported, flexible copper tubing that ran along the basement ceiling joints. A “T-fitting” was located above *4 the hot water heater which provided branches running to the hot water heater and the space heater. Post-accident inspection revealed a minor leak at the inlet to the bedroom heater, and a leak at the “T-connector.”
White-Rodgers, a subdivision of Emerson Electric Co., manufactured the water heater gas control used in the Bitlers’ hot water heater. This gas control regulates the flow of gas to the pilot and main burner of the water heater, and is designed to fulfill a crucial safety role if the pilot light is extinguished. To avoid a gas leak that could lead to an explosion or fire, the gas control is designed to shut off all gas flow to the pilot when the pilot is extinguished. As is well known, a lit pilot heats a thermocouple which in turn creates an electric current energizing an electromagnet that holds the safety valve open against the force of a spring. So long as the pilot is lit, the safety valve remains open. If the pilot goes out, however, the thermocouple will no longer be heated and will no longer produce a current to energize the electromagnet, allowing the spring to snap the valve shut. The safety valve seat is made of rubber, and is designed to create a seal against a circular metal surface when closed to prevent the flow of gas to the pilot.
Copper sulfide is a frequent contaminate found in gas and propane lines. If copper sulfide particles of sufficient size become lodged on a safety valve seat when a pilot is extinguished, the particles may prevent the valve from sealing, *5 resulting in a gas leak. It was established that numerous accidents have occurred in this manner, and that copper sulfide contamination was a significant source of concern for White-Rodgers. As a consequence, White-Rodgers modified the design of the safety valve in 1978 and began installing a wire mesh screen in the gas inlet, upstream from the safety valve to prevent copper sulfide particles from migrating onto the rubber valve seat. In further recognition of the safety hazard caused by copper sulfide contamination, White-Rodgers recalled all gas controls lacking the mesh screen in 1980. Thereafter, White-Rodgers also began adding another safety feature to the mesh screen by installing a deflection “baffle” to aid in preventing debris from reaching the valve and to hold the edges of the mesh screen in place more effectively. The safety valve installed in the Bitler’s water heater was one of about 200,000 devices produced in the interim that contained the mesh screen, but did not contain the baffle.
As a result of their investigations, plaintiffs’ expert Elden Boh concluded that the water heater was the source of the accident, and plaintiffs’ expert Donald Sommer concluded that the leak was caused by copper sulfide contamination on the water heater’s safety valve seat. Elden Boh is a fire investigator hired by the Colorado Farm Bureau, and Donald Sommer is an engineer and accident investigator retained by the Bitlers. Although White-Rodgers contests the admissibility of these two experts on appeal, plaintiffs’ expert W. Alan *6 Bullerdiek, a chemical engineer, also testified concerning the history of copper sulfide-contamination-related accidents, and that the amount of contamination found on the Bitlers’ safety valve seat was at an unacceptable level.
During post-accident testing of the safety valve installed in the Bitlers’ water heater, the device was disassembled in the presence of representatives of both White-Rodgers and the Bitlers. Copper sulfide particulate contamination was discovered downstream of the mesh screen and found on the safety valve seat. During the teardown, a test of the valve revealed that it snapped shut as designed. Plaintiffs’ expert, Donald Sommer, opined at trial that a mix of copper sulfide particles and grease located on the safety valve seat caused the leak. Mr. Sommer testified that the valve seat was altered after the accident when the control was turned to the “off” position; furthermore, he testified that because copper sulfide contamination leads to intermittent leaks, the teardown test could not be determinative. Whether the particles found on the safety valve were large enough or of sufficient quantity to have caused the gas leak in the present case is hotly disputed.
Having marshaled their expert witnesses and having ruled out to their
satisfaction all other sources of the gas leak save for the gas control on the water
heater, the Bitlers filed suit in Colorado State Court against White-Rodgers, as
well as A.O. Smith Corporation, which manufactured the water heater, and
*7
National Propane Corporation, which installed and maintained the water heater
and propane piping in the house. After removing the case to federal district court,
defendants moved for summary judgment, contesting the admission of the
plaintiffs’ expert testimony as insufficiently reliable and lacking a firm
foundation in science. In an order denying the motion, the trial judge found that
the Bitlers’ proposed expert testimony was relevant and reliable in accord with
the standard required by Daubert v. Merrell Dow Pharms., Inc.,
II
We review de novo whether the district court properly performed its role as
“gatekeeper” in admitting or excluding expert testimony. Dodge v. Cotter Corp.,
A
White-Rodgers assigns as a principal source of error the district court’s
performance of its Daubert gatekeeping functions. We begin our inquiry into the
admissibility of the Bitlers’ expert testimony with Fed. R. Evid. 702. In accord
with Rule 702, the Supreme Court has determined that the trier of fact “must
ensure that any and all scientific testimony or evidence is not only relevant, but
reliable.” Daubert,
First, a district court must determine if the expert’s proffered testimony –
whether it concerns scientific, technical, or other special knowledge – has “a
reliable basis in the knowledge and experience of his [or her] discipline.” Id. at
592; see also, Kuhmo Tire Co. v. Carmichael,
The plaintiff need not prove that the expert is undisputably correct or that the expert’s theory is “generally accepted” in the scientific community. Instead, the plaintiff must show that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which sufficiently satisfy Rule 702’s reliability requirements.
Mitchell,
Providing guidance as to the kinds of factors that might bear on a judge’s
gatekeeping determination, the Supreme Court has suggested that a court
consider: (1) whether a theory has been or can be tested or falsified, (2) whether
the theory or technique has been subject to peer review and publication, (3)
whether there are known or potential rates of error with regard to specific
techniques, and (4) whether the theory or approach has “general acceptance.”
Daubert,
Accordingly, a trial court’s focus generally should not be upon the precise
conclusions reached by the expert, but on the methodology employed in reaching
those conclusions. Daubert,
Second, in fulfilling its Daubert obligations a trial court must also conduct
a further inquiry into whether proposed testimony is sufficiently “relevant to the
task at hand.” Daubert,
B
In fulfilling its Daubert gatekeeping function, the district court, in its order denying summary judgment to the defendants, focused on two expert witnesses proposed by the Bitlers: Elden Boh and Donald Sommer. On reviewing the record, we note that the actual testimony offered at trial does not differ in material respects from either Boh’s or Sommer’s depositions as analyzed by the district court on motions for summary judgment. Nonetheless White-Rodgers argues that the magistrate judge was required to perform a gatekeeping role by entertaining anew, during pre-trial proceedings, defendant’s objections to the testimony of Sommer; the magistrate judge instead treated District Judge Nottingham’s order denying summary judgment as law of the case, and refused to consider de novo the issue of whether to admit the Bitlers’ expert testimony. It is clear, however, that because White-Rodgers did not raise new issues concerning the reliability of the Bitlers’ expert witnesses, the district court did not fail to perform its Daubert role merely by refusing to reconsider the question of *14 admissibility that had already been decided. Daubert does not require a district court to linger at the “gate,” as if caught in Zeno’s paradox, unable to proceed to the main trial without first conducting a series of mini-trials with regard to every objection raised against a party’s expert witnesses.
As to reliability regarding Boh’s testimony, the district court specifically
found that Boh’s methodology in reaching his conclusion about the cause of the
explosion was sound. Employing his experience and knowledge as a fire
investigator, Boh observed the physical evidence at the scene of the accident and
deduced the likely cause of the explosion. Although such a method is not
susceptible to testing or peer review, it does constitute generally acceptable
practice as a method for fire investigators to analyze the cause of fire accidents.
See Kumho Tire Co.,
With regard to the testimony of Donald Sommer, as well as other experts testifying for the Bitlers, White-Rodgers argues that his testimony constituted impermissible speculation because he failed to test his theory that copper sulfide particles passed through and around the mesh screen to lodge on the safety valve *15 seat and thereby cause the gas leak. Furthermore, White-Rodgers argues that Sommer’s theory fails to “fit” the known facts that no particles of sufficient size to cause a leak were found on the seat of the valve. Finally, White-Rodgers contests the reliability of the so-called “differential diagnosis” method Sommer employed.
We turn to the issue whether the Bitlers’ experts, particularly Sommer,
were required to test their theory. No doubt, Daubert noted that a key factor in
valid scientific methodology is the practice of testing hypotheses to determine
whether they can be falsified. Daubert,
For example, in Truck Ins. Exch. v. Magnetek Inc.,
Whether the Bitlers established that the copper sulfide particles and grease
found on the valve seat caused this accident is a matter the district court
determined goes to the sufficiency of the evidence – not its scientific reliability.
Defendants misunderstand what is at stake in a reliability analysis when they
claim that the mere addition of a screen fundamentally and necessarily changed
the nature of the underlying science such that the district court abused its
discretion in admitting plaintiffs’ expert testimony. No doubt, presence of the
screen changed the causal analysis the jury was required to conduct based on the
conflicting evidence presented, but the presence of a screen did not change the
analysis into one that necessarily required further testing to determine its
scientific reliability. The core science – that copper sulfide particles are the kind
of thing that when lodged on the valve seat can cause leaks – is sufficiently well-
established that the district court did not abuse its discretion in finding it reliable.
The core dispute – whether copper sulfide particles found on the valve seat in this
case were sufficient to cause a leak – is one the district court could properly
determine is a question for the jury. In light of this evidentiary dispute, the
Bitlers need only establish by a preponderance of the evidence that copper sulfide
particles caused the gas explosion in their basement. See, e.g., Kaiser Found.
Health Plan v. Sharp,
With regard to White-Rodgers’ argument that the Bitlers’ experts
impermissibly relied on a method of “differential diagnosis,” we note that the
term is being used analogically to its proper use in a medical context; nonetheless,
we conclude that in this circumstance it is a valid scientific technique to establish
causation.
[3]
Concerning the method he employed in his investigation, Sommer
*19
testified that he undertook a process of eliminating alternative possible causes,
determining that these possibilities were improbable sources of the explosion, and
arriving at a highly probable cause for the gas leak, calling it a method of
“differential diagnosis.” “Differential diagnosis,” is “the determination of which
of two or more diseases with similar symptoms is the one from which the patient
is suffering, by a systematic comparison and contrasting of the clinical findings.”
Stedman’s Medical Dictionary 492 (27th ed. 1995).
[4]
In the medical context,
differential diagnosis is a common method of analysis, and federal courts have
regularly found it reliable under Daubert. Goebel,
Here, however, the Bitlers’ experts use a general method more aptly
characterized as a process of reasoning to the best inference.
[5]
The Bitlers’
experts must reason, as it were, backwards to the cause of a single explosion, and
to do so requires a process of eliminating possible causes as improbable until the
most likely one is identified. For example, Sommer and Boh both testified to how
they eliminated the gas leaks in the bedroom and the T-connector above the water
heater as likely sources of the accident; the one was not located close enough to
the source of the explosion, and the other was itself most likely the result of
trauma caused by the explosion. Sommer testified that the force of the explosion
lifted the house off its foundation, and accordingly, was the most probable cause
of the leak at the T-connector, especially in light of its damaged physical
condition. Experts must provide objective reasons for eliminating alternative
causes when employing a “differential analysis.” See Clausen,
Finally, as to the “fit” between the expert testimony and the material issue
at stake in this case, White-Rodgers argues that the theory of copper sulfide
particulate contamination does not “fit” the facts that the safety valve at issue is a
screened valve, and no screened valve had ever been shown to allow sufficient
copper sulfide downstream so as to cause a gas leak; furthermore, the valve
functioned properly when tested after the accident. This argument confuses a
Daubert inquiry into relevant “fit” with the jury question of which theory,
plaintiffs’ or defendant’s, best captures the truth of the matter at issue. The
former inquiry is aimed at determining if “a valid scientific connection to the
pertinent inquiry,” Daubert,
Thus, in summation, we conclude that in fulfilling its gatekeeping role
pursuant to the Federal Rules of Evidence and Daubert, the district court did not
abuse its discretion in making its “preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and of
whether that reasoning or methodology properly can be applied to the facts in
issue.” Daubert,
III
White-Rodgers argues on appeal that safety valve models lacking an inlet screen are substantially dissimilar from models containing the mesh screen and therefore the district court abused its discretion in admitting plaintiff’s evidence of accidents involving the unscreened devices.
At trial, the Bitlers introduced evidence of accidents which involved a model of safety valves exactly the same as the one in the Bitlers’ water heater save for the absence of the inlet screen. These accidents occurred when copper sulfide particles contaminated the safety valve of unscreened safety controls, preventing the valve from closing fully and resulting in a gas leak. The purpose of this evidence was to demonstrate a key element of the Bitlers’ theory of causation: if copper sulfide particles are allowed downstream to contaminate the valve seat, then the safety valve system could fail. Furthermore, the Bitlers argue *24 that this evidence was necessary to prove notice to White-Rodgers of the potential for their safety valves to fail.
In response, White-Rodgers contends that they offered to stipulate to the failures of the unscreened device, and that therefore the admission of evidence involving accidents with unscreened controls was irrelevant. Although White- Rodgers admits that copper sulphide particles can cause leaks in unscreened models, they argue that there has been no demonstration that screened models are susceptible to sufficient contamination to cause leaks; therefore, they suggest that the presence of a screen makes the Bitlers’ safety control substantially dissimilar to unscreened devices. Moreover, because these other accidents involving unscreened controls resulted in injuries and deaths, White-Rodgers argues that the evidence was inherently prejudicial.
We review a district court’s decision to admit evidence for abuse of
discretion. Smith v. Ingersoll-Rand Co.,
With regard to the Bitlers’ proposed evidence of accidents involving
unscreened devices, the district court ruled that these prior accidents involved
substantially similar devices to the one involved in the present accident, and
accordingly denied the defendant’s motion in limine to exclude. In order to
demonstrate notice and the existence of a defect, namely the consequences of
copper sulfide contamination, the district court ruled that exact similarity between
the devices was not required and its absence would not compel exclusion. We
*26
have routinely held that federal law permits introduction of substantially similar
accidents to show notice, the potential existence of a defect, or to refute defense
witness testimony. Four Corners Helicopters, Inc.,
In light of the plaintiffs’ purposes of showing notice and defect, we do not
require a showing of exact similarity, and hence we cannot conclude that the
district court erred in admitting evidence it found substantially similar given the
circumstances surrounding the Bitlers’ accident. In order to demonstrate that
copper sulfide particles were capable of causing a gas leak when contaminating
the safety valve seat, it was reasonable and relevant for the plaintiffs to introduce
evidence of failures in substantially similar devices under substantially similar
circumstances. If contamination could cause gas leaks absent an inlet screen,
then if the plaintiffs could show that particles could get through or around the
screen – the essence of the plaintiffs’ case – it would be reasonable for jurors to
make a determination as to causation in the present case. Offering evidence that
the industry was aware as early as 1967 that copper sulfide contamination could
be a problem for gas control valves served the purpose of demonstrating notice to
White-Rodgers and of highlighting the potential existence of a defect – part of the
underlying theory of the plaintiff’s case which goes to establish a standard in this
case for “how substantial the similarity must be. . . .” Ponder v. Warren Tool
Corp.,
We see no error in the district court’s finding. Accordingly, we hold that the district court did not abuse its discretion in admitting evidence of prior accidents involving unscreened safety valves.
IV
White-Rogers argues that the district court erred by giving a jury
instruction on failure to warn of known and non-obvious defects in its safety
valve. Whether a jury was properly instructed in accord with the applicable law
and consistent with matters properly within its provence is a question we review
de novo. Gardetto v. Mason,
Arguing that the issue of a duty to warn was not supported by the evidence, and hence not a matter properly submitted to the jury, White-Rodgers objects to the district court’s presentation of the following instruction to the jury:
If A.O. Smith and White-Rodgers, a wholly-owned division of Emerson Electric, as manufacturers or sellers of a product know or in the exercise of *28 reasonable care should know that the use of the product may be harmful or injurious to a user, and such risk of harm or injury is not obvious to a reasonable user, then the manufacturer and seller must use reasonable care to warn the user of the risk of harm or injury if a reasonably careful person would under the same or similar circumstances. The failure to do so is negligence.
(
As a threshold matter, we are persuaded that White-Rodgers’ assignment of
error to the district court’s jury instruction on a duty to warn is not properly
preserved for appeal. At trial, White-Rodgers objected generally to the jury
instruction concerning a duty to warn, arguing only that there is neither a basis for,
nor an issue of, a failure to warn.
[8]
Defendant further objected that plaintiffs failed
to establish any evidence for the instruction. Rejecting White-Rodgers’ inchoate
objections, the district court found “that there is evidence sufficient to allow the
jury to determine that White-Rodgers knew prior to this accident of the migration
of copper sulfide around the screen only device, which the jury could conclude
required a duty to warn.” (
On appeal, White-Rodgers now asserts that the jury instruction on a failure
to warn was error because plaintiffs presented no evidence of proximate causation.
Specifically, Appellant now argues that plaintiffs provided no evidence that a
*29
warning would have been effective or what the content of that warning would have
been. However, at trial Appellants did not raise an objection as to proximate
causation distinctly and did not identify specifically the grounds of the objection
before the district court as required by Fed. R. Civ. P. 51(c)(1) (“A party who
objects to an instruction or the failure to give an instruction must do so on the
record, stating distinctly the matter objected to and the grounds of the objection.”);
see also Hynes,
Accordingly, because White-Rogers’ objections were not properly specific, the issue of supposed error in the district court’s jury instruction regarding failure to warn is not properly preserved for appeal.
V
In the alternative, failing success on its argument to reverse the jury verdict, White-Rodgers argues that the jury award of $150,000 for future wage loss and $75,000 for future medical expenses was not supported by any evidence. When we review a jury’s award of damages, we will sustain the award unless it is clearly erroneous or there is no evidence to support the award. Hudson v. Smith, 618 F.2d 642, 646 (10th Cir. 1980); Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1330 (10th Cir. 1996).
With regard to the evidence of future wage loss, Mr. Bitler provided tax returns for the years prior and subsequent to the accident and provided testimony concerning his current employment prospects. There is no doubt that evidence was presented that his earnings have declined as a consequence of the accident, and that although he remains employable in some settings, his employment prospects have been substantially diminished. Furthermore, evidence was also offered of benefits he received as a ranch hand, but no longer receives, such as use of the furnished house where the accident occurred and a replacement heifer worth $850, that go beyond his salary as reflected by his tax returns. In light of our highly deferential stance regarding jury determinations of damages, we cannot say that there was no evidence presented to support a jury finding of future lost wages in the amount of $150,000.
Concerning the evidence of future medical expenses, there is no doubt that
physician testimony and Mr. Bitler’s testimony did not establish precise costs of
any future procedures. One physician testifying, Dr. Hartford, described past
problems with infections involving Mr. Bitler’s skin grafts, and acknowledged a
possibility of future infections. Mr. Bitler’s plastic surgeon, Dr. Gordon, testified
to the future need for procedures to develop Mr. Bitler’s fingernails, which Bitler
has elected to defer to a later time. (
Therefore, as to the jury awards for future wage loss and future medical expenses, we affirm.
VI
With regard to the final issue in White-Rodgers’ appeal, appellant argues that the jury award of $25,000 for Mrs. Bitler’s physical and emotional injury was *32 excessive. Specifically, White-Rodgers argues that negligent infliction of emotional harm was not pled, and because Mrs. Bitler suffered only minor physical injuries in the accident, that the jury award is clearly excessive. We disagree. As appellant concedes, Mrs. Bitler may recover emotional injuries that flow from her own physical injuries. See, e.g., Williams v. Continental Airlines, Inc., 943 P.2d 10, 16 (Colo. App. 1996). Because the circumstance surrounding her admittedly minor physical injury to her knee when the force of the explosion in the basement forced her off the sofa and onto the floor is itself quite traumatic, we cannot conclude that the jury had no basis for finding the emotional injury associated with her own experience of, and physical injuries from, the explosion – quite apart from the emotional trauma of seeing the injuries sustained by her husband – are grossly excessive. Accordingly, as to the jury’s damage award for Mrs. Bitler’s negligence claim, we affirm.
VII
For the reasons set forth above, we AFFIRM .
Notes
[1] Determining whether proffered testimony is scientifically reliable can be
a considerable challenge for a trial judge. As Justice Breyer has noted, “this
requirement will sometimes ask judges to make subtle and sophisticated
determinations about scientific methodology and its relation to the conclusions an
expert witness seeks to offer – particularly when a case arises in an area where
the science itself is tentative or uncertain. . . .” Joiner,
[1] (...continued)
(Breyer, J., concurring). To fulfill this task, however, as Judge Posner has
observed, “we do not have to become philosophers of science and set forth the
necessary and sufficient conditions of ‘real’ science,” or endeavor to discover
“the essence of ‘science,’ if there is such an essence.” Rosen v. Ciba-Geigy
Corp.,
[2] As to alleged shortcomings of the proffered testimony, these go to “the
weight which the trier of fact should accord the evidence and do not make the
testimony incredible.” Orth v. Emerson Elec. Co.,
[3] Urging us to adopt the analysis in Stibbs v. Mapco,
[3] (...continued) downstream nor testimony as to how debris could have migrated past the screen.
[4] Used in its traditional medical sense, the term refers “to the diagnosis of disease, and refers to the process of identifying external causes of diseases and conditions as ‘determining cause’ . . . as the circumstances warrant.” Federal Judicial Center, Reference Manual on Scientific Evidence 444 (2d ed. 2000).
[5] Unlike a logical inference made by deduction where one proposition can be logically inferred from other known propositions, and unlike induction where a generalized conclusion can be inferred from a range of known particulars, inference to the best explanation – or “abductive inferences” – are drawn about a particular proposition or event by a process of eliminating all other possible conclusions to arrive at the most likely one, the one that best explains the available data.
[6] An expert must show that other causes are improbable when conducting differential diagnosis, but “[t]his is not to say that an expert, in order to testify on causation, must be able to categorically exclude each and every possible alternative cause. . . .” – to require otherwise “would mean that few experts would ever be able to testify.” Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 702–33 (8th ed. 2002). Indeed, “the underlying premise of differential diagnosis is that there is an established connection between certain possible causes and a condition or symptom—then all of the established causes are ruled out but one.” Id. at 702–35.
[7] As Judge Kozinski noted on remand in Daubert: “Not knowing the mechanism whereby a particular agent causes a particular effect is not always fatal to a plaintiff’s claim. Causation can be proved even when we don’t know (continued...)
[7] (...continued) precisely how the damage occurred, if there is sufficiently compelling proof that the agent must have caused the damage. . . .” Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1314 (9th Cir. 1995).
[8] White-Rodgers’ counsel opined generally: “If the product is found to be
defective then I guess liability exists. I don’t know what we’re supposed to warn
them about.” (