ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plаintiffs claim that a Sunbeam heating pad ignited an upholstered divan and caused a fire that burned down their house. Viewed in a light most favorable to the Plaintiffs, there is enough evidence the heating pad was defective to survive Defendant’s motion for summary judgment.
I. Factual Background 1
The Plaintiffs, Gerry and Linda Moores, sustained significant property damage to their real and personal property at thеir Lubec, Maine home as a result of a fire on April 21, 2003. Def.’s Statement of Material Facts at ¶ 1 (Docket # Yl){DSMF); Pis.’ Resp. to Def.’s Statement of Material Facts at ¶1 (Docket #19)(PRDSMF). The fire originated on the outer seating of the divan recliner (“the divan”) in the living room. PRDSMF at ¶¶ 2-3. The evening of the fire, Mrs. Moores sat on the divan and used a Sunbeam heating pad. DSMF at ¶ 4.
When she retired for the evening, Mrs. Moores left the heating pad on the seat cushion of the divan. DSMF at ¶ 6. The heating pad never sparked or smoked before, but Mrs. Moores occasionally experienced difficulty turning it off. DSMF at ¶ 5; PRDSMF at ¶ 5. She believes she turned the switch off before going to bed; however, she also believes it is possible she just changed the setting as the same control operates the temperature settings and the on and off switch. PRDSMF at ¶ 6. Around midnight, Mrs. Moores was awakened by the sound of a smoke detector and discovered thе fire. DSMF at ¶ 7.
Mrs. Moores was a pack-a-day smoker. DSMF at ¶ 8. She usually smoked cigarettes only in the kitchen of her house— not in the living room where the divan was located. DSMF at ¶ 9. Although she has on occasion smoked a cigarette on the divan, the night of the fire, she did not have a cigarette while sitting there. 2 *154 DSMF at ¶¶ 10, 12; PRDSMF at ¶¶ 10, 12. During the evening of the fire, she smoked five or six cigarettes, but each time, she left the living room and smoked in the kitchen. DSMF at ¶ 11.
Three experts evaluated the fire: Robert Long, a cause and origin expert; John C. Morse, a state fire investigator; and William K Hurteau, a cause and origin expert. By process of elimination, Mr. Long determined there was only one source of ignition in the area of the surface of the seat cushion of the divan: the Sunbeam heating pad. PRDSMF at ¶¶ 14, 17. After identifying the heating pad as the heаt source, Mr. Long sent the remains of the pad to Steve Thomas, an electrical engineer, for inspection and analysis. DSMF at ¶ 17; PRDSMF at ¶ 17. Little remained of the heating pad and what remained was insufficient even to place it on the divan in reconstructing the scene. Pis. ’ Suppl. Statement of Additional Material Facts at ¶ 26 (Docket # 19)(PSSAMF ). 3 All that survived was a collection of fine wires, the remains of a power cord, and what appeared tо be the control. PSSAMF at ¶ 27.
Mr. Morse concluded that the fire originated on the divan in the living room as a result of overheating or malfunction of a heating pad device. DSMF at ¶ 15. He opined that the heating pad was definitely capable of igniting the fire, and believed the malfunction could have been a problem with resistance heating within the pad. 4 PRDSMF at ¶ 16. There was nothing, however, аbout the physical condition of the remains of the heating pad that caused him to conclude it was the source of the fire. Id. William K. Hurteau, a fire investigator retained by Sunbeam, agreed the origin of the fire was the seat cushion of the divan, and conceded the heating pad was a potential source. DSMF at ¶¶ 14, 18-19; PRDSMF at ¶¶ 18-19. He agreed that if Mrs. Moores’ testimony is accurate, the heating pad is the only source of ignition. PSSAMF at ¶ 36.
The deadline for the plaintiffs disclosure of expert witnesses expired on January 4, 2006. DSMF at ¶ 24. Steve Thomas has not been identified as an opin *155 ion witness concerning the cause of the fire. DSMF at ¶ 23. Mr. Long was the only witness identified as a potential expert on the cause and origin of the fire. 5 Id.; PRDSMF at ¶ 23. His expertise does not extend past the identification of the heat source. PRDSMF at ¶ 23. 6
II. Discussion
a. Sunbeam’s Motion
After the close of discovery, Sunbeam moved for summary judgment, bаsed on a single issue: “Sunbeam moves for summary judgment because the plaintiffs have designated no opinion witness who is expected to testify that that (sic) the heating pad was defective and caused the fire. Therefore, a critical element of the plaintiffs’ Complaint cannot be proven.” Def.’s Mot. for Summ. J. at 1 (Docket # 16).
b. Standard of Review
Summary judgment will be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The First Circuit has defined “material” to mean “a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant.”
McCarthy v. Nw. Airlines, Inc.
c.Strict Liability
Plaintiffs assert a claim for strict liability under 14 M.R.S.A. § 221, bаsed on the following allegations:
24. That heating pads designed, manufactured, inspected, sold and distributed by Sunbeam would be used on occasion by residential homeowners was reasonably foreseeable to Sunbeam.
25. That Sunbeam had a duty to design and manufacture its heating pads so as to reasonably reduce the foreseeable harm that may occur in the event of a product defect within the heating pad itself.
26. The subject heating pad was sold in a defective condition that was unreasonably dangerous to Plaintiffs.
*156 27. That the subject heating pad was expected to and did reach its owner, the Plaintiffs, before the fire without significant change in the condition in which it was sold.
28. That as a direct and proximate result of the defective condition, Plaintiffs sustained significant damage to their property, both real and personal, as set forth above.
Compl. at ¶¶ 24-28 (Docket # 1).
i. Relevant Law
Maine’s strict liability statute reads:
One who sells any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller or supplier might reasonably hаve expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it is sold. This section applies although the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product from or entered into any contractual relation with the seller.
14 M.R.S.A. § 221.
A product “can be in a defective condition, unreasonably dangerous to the user or consumer as a result of an error in the manufacturing or design process or the failure to warn of a product hazard.”
Bernier v. Raymark Indus., Inc.,
The narrow issue is whether the Plaintiffs have produced sufficient evidence, absent direct proof of a specific defect, to survive summary judgment. Sunbeam concedes, probably wisely, that Maine law incorporates section 3 of the Restatement (Third) of Torts: Products Liability (1998):
It may be inferred that the harm sustained by the plaintiff was caused by а product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.
*157
Id.
(Restatement).
See Mem. in Support of Def.’s Mot. for Summ. J.
at 3-4 (Docket
#VS)(Def.’s Mem.)-, TNT Road Co. v. Sterling Truck Corp.,
No. 03-37-B-K,
ii. Application to the Facts of this Case
Sunbeam’s first argument — that the Plaintiffs have not eliminated other potential causes — is hopeless. Def.’s Mem. at 5 (“House fires have many potential causes, two of which have been identified in the circumstances of this case, a defective product and careless disposal of smoking materials.”). Summary judgment practice’ requires the Court to view the facts in a light most favorable to the Plaintiffs and Mrs. Moores’ testimony is sufficient to negate the possibility that improper disposal of cigarettes caused the fire. Sunbeam has not suggested any other culprit and this Court is left with an upholstered chair and Sunbeam’s heating pad.
Sunbeam’s second argument is more substantive: that “Plaintiffs cannot meet their burden of proof as to any Count because they lack the requisitе opinion testimony: no opinion witness is expected to testify that defendant’s product was defective and caused the fire”. Def.’s Mem. at 1.' Sunbeam argues this incident was not of a kind that ordinarily occurs as a result of a product defect, and thus Plaintiffs cannot meet their burden under section 3 of the Restatement. This Court, however, does not reach the question Sunbeam seeks to generate: the exact quantum or quality of proof needed to withstand summary judgment absent proof of a specific product defect, the issue presaged in Walker and TNT Road. Here, Inspector Morse expressed an expert view that a problem with resistance heating within the heating pad caused the fire. 8 His opinion, however well founded, must be viewed in a light most favorable to the Plaintiffs.
Mrs. Moores’ tеstimony isolating the heating pad, as opposed to cigarettes, as the sole source of ignition on the divan, Mr. Long’s determination that the origin of the fire was the divan and his elimination of causes other than the heating pad, and Mr. Morse’s opinion that a malfunction *158 in resistance heating within the heating pad could have caused the fire, when combined and credited, genеrate genuine issues of material fact sufficient to withstand summary judgment. This Court DENIES Defendant’s motion for summary judgment on strict liability grounds.
d. Negligence
Plaintiffs claim negligence on the part of Defendant:
15. Sunbeam owed a duty to Plaintiffs to carefully and properly design, manufacture, inspect, sell and distribute the heating pad in question.
16. Sunbeam breached its duty to Plaintiffs by negligently, carelessly and improperly designing, manufacturing, inspecting, selling and distributing the heating pad and its component parts and failing to warn of the dangers, risks and defects associated with the heating pad and its component parts.
17. As a direct and proximate result of Sunbeam’s negligence, Plaintiffs suffered significant damage to their property, both real and personal, as set forth above.
Compl. at ¶¶ 15-17. While Defendant’s motion is largely focused on the strict liability claim and applicable case law in Maine, Sunbeam asserts that “Plaintiffs cannot meet their burden of proof as to any Count because they lack the requisite opinion testimony [on product defect]”. Def.’s Mem. at 1 (emphasis supplied). Therefore, Defendant’s argument regarding the lack of proof regarding the existence of a product defect extends to the negligence count as well.
Such an extension is reasonable. In
Stanley,
the Maine Law Court (Law Court) noted that “negligence and strict liability theories overlap in that under both theories the plaintiff must prove that the product was defectively designed thereby exposing the user to an unreasonable risk of harm”.
*159 This Court DENIES Defendant’s motion for summary judgment on negligence grounds.
e. Breach of Warranty
Plaintiffs also assert claims of breach of express and implied warranty:
19. Sunbeam impliedly warranted that the subject heating pad was physically fit for the purposes fоr which it was intended.
20. Sunbeam expressly warranted that the heating pad was suitable for use by residential homeowners.
21. Sunbeam breached its express and implied warranties by failing to design and manufacture the heating pad so it was devoid of any product defect that would render it unsafe for residential homeowners.
22. As a direct and proximate result of Sunbeam’s breach of warranties, Plaintiffs sustained significant damage to their property, both real and personal, as set forth above.
Compl.
at ¶¶ 19-22. Although there is no evidence in this record of any express or implied warranties, Sunbeam did not move for summary judgment on that basis, relying instead solely on its assertions that there is evidence of another causative agent, namely the cigarettes, and no evidencе of a specific defect. As to each issue, the analysis under breach of warranty claims is identical to the strict liability and negligence analysis and the result is the same.
See Walker,
This Court DENIES Defendant’s motion for summary judgment for breach of warranty.
III. Conclusion
Defendant’s motion for summary judgment (Docket # 16) is DENIED.
SO ORDERED.
Notes
. Consistent with the "conventional summary judgment praxis,” the Court rеcounts the facts in a light most hospitable to Plaintiffs’ theory of the case, consistent with record support.
Gillen v. Fallon Ambulance Serv.,
. The parties iterate and reiterate multiple facts about whether Mrs. Moores’ cigarette smoking may or may not have been the source of the fire. However, oncе it is assert *154 ed and admitted that Mrs. Moores testified "she did not have a cigarette while sitting on the divan recliner on the evening of the fire”, DSMF at ¶ 12; PRDSMF at ¶ 12, this Court is required to view the evidence in a light most favorable to her and assume she is telling the truth. The Court has ignored the parties' squabbles about whether ash trays or other physical evidence of smoking were absent from the living room, whether a cigаrette could have ignited the divan without some form of insulation, whether the burn pattern is or is not consistent with cigarettes as the cause of the fire, whether Mrs. Moores told someone at some other time that she had smoked a cigarette on the divan, and whether that person told another person that Mrs. Moores had told him that she had smoked a cigarette on the divan. See, e.g., DSMF at ¶¶ 12-14, 20-22; PRDSMF at ¶¶ 12-13, 20; PSSAMF аt ¶¶ 28-35. For purposes of this motion, the cigarette, as a potential cause of the fire, is snuffed.
. Throughout the reply statement of material facts, Defendant "denies” or "qualifies” Plaintiffs’ proffered supplemental facts and then proposes substituted statements and record citations identical to Plaintiffs’. This is improper and wastes time. This Court has treated these denials and qualificatiоns as admissions. See Local Rule 56(f)("Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted ”)(emphasis supplied); Local Rule 56(d)(requiring denials or qualifications of an opposing party’s additional facts to be supported by a record citation).
. Sunbeam asserted Inspector Morse "could not testify as to the 'failure mode of the heating pad.” DSMF at ¶ 16. But, this assertion was denied by the Plaintiffs. PRDSMF at ¶ 16.
. This statement illustrates one difference between summary judgment and trial. Although the Plaintiffs admitted they had designated only Mr. Long as an expert, Sunbeam itself put Inspector Morse’s testimony before the Court for purposes of the pending motion by citing his opinions in its statement of material facts. To rule on thе motion, this Court must accept Mr. Morse’s opinions to the extent Plaintiffs have admitted them. This Court expresses no view as to whether his testimony will be allowed at trial in view of what appears to be the Plaintiffs’ choice not to designate him.
. Defendant attached to its Reply to Plaintiffs’ Supplemental Statement of Additional Material Facts a “Supplemental Statement of Additional Material Facts in Support of Defendant’s Reply.” (Docket #21). Such a supplement is not procedurally proper; the reply statement must consist of "a separate, short, and concise statement of material facts which shall be limited to any additional facts submitted by the opposing party." Local Rule 56(d). This Court will not consider the Defendant’s additional facts, рaragraphs 39 and 40 of the Reply filing.
. A manufacturer "has a responsibility to inform users and consumers of dangers about which he either knows or should know at the time the product is sold.”
Lorfano,
. To rule on this motion, this Court assumes that as a state fire investigatоr, Mr. Morse has sufficient expertise to express such an opinion and views his testimony in a light most favorable to the Plaintiffs. Although there may be some contrary evidence, it was Sunbeam that proffered Mr. Morse’s opinions in its statement of material fact. DSMF at ¶¶ 15, 16. Whatever questions remain about whether Inspector Morse may be called as an expert witness, DSMF at ¶ 23, the precision of his testimony about a specific defect, DSMF at ¶ 16, the depth of his investigation, DSMF at ¶ 16; PRDSMF ¶ 16, and the scope of his expertise, DSMF at ¶ 16, these are matters for trial.
. See Mem. in Support of Pis.' Opp'n to Def.’s Mot. for Summ. J. at 4 (Docket # 18)("Since the elements of Plaintiffs’ various claims for strict liability, breach of warranty and negligence are all intimately related and often overlap, Plaintiffs can meet their burden of proof as to all three Counts.-.. ”).
. This is hardly controversial. One manifestation is
res ipsa loquitur.
As the Restatement (Second) of Torts § 328D (1965), adopted by the Law Court in
Ginn v. Penobscot Co.,