THOMPSON I.G., LLC, Plaintiff-Appellant, v. EDGETECH I.G. INC., Defendant-Appellee.
No. 13-2652
United States Court of Appeals, Sixth Circuit
Oct. 30, 2014.
I respectfully dissent. The district court improperly found as fact that “the officers positioned themselves in a way that they were not applying direct pressure to Campbell‘s back or blocking his airways,” PID 2865, when the evidence on that point was conflicting.
Several hours after the incident, Officer Bauman, who had arrived on the scene after Defendant Smith, stated that Hatter was “straddling” Campbell and “holding his shoulders to the ground.” PID 2504. Defendant Smith stated on the day of the incident that Hatter “bear hugged Mr. Campbell holding him to the floor.” PID 2502. And Defendant Wallace stated that Hatter “was on Campbell‘s back, Officer Smith was holding Mr. Campbell‘s feet, and I was knelt down on the blanket holding Mr. Campbell‘s right shoulder. Mr. Campbell was struggling harder and harder to get up.” PID 2503. Summary judgment was improper given the conflicting testimony regarding whether weight or pressure were applied to Campbell‘s back as he lay in prone restraint. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); see also King v. Taylor, 694 F.3d 650, 663 (6th Cir.2012) (reversing grant of summary judgment in officer‘s favor in excessive-force case, observing, “What exactly happened just before King was shot is a question for the jury, as both sides’ theories of what transpired are sufficiently supported by evidence in the record.“).
I also disagree with the majority‘s characterization of Dr. Peters‘s report as lacking “facts or analysis bearing on the reasonableness of the officers’ conduct.” Maj. Op. at 527. Dr. Peters‘s report is not conclusory, see Williams v. Ford Motor Co., 187 F.3d 533, 543-44 (6th Cir.1999) (a conclusory expert report is insufficient to defeat summary judgment); it discusses Defendants’ training in managing the mentally disabled, describes Defendants’ conduct during the incident based on their own reports and reports of others at the scene, and sets forth a timeline of the incident based on those reports. Dr. Peters opined that Defendants acted unreasonably by 1) unnecessarily escalating the situation by confronting Campbell, and 2) failing to identify, despite their training, that Campbell was in medical distress (suffering from excited delirium) and that the situation was a medical emergency necessitating medical attention. On the latter point, Hatter told Defendant Wallace when he arrived on the scene that Campbell should be taken to Eastern State Hospital, a mental-health facility. PID 2845. But Defendants did not summon medical help until after Campbell stopped breathing, around 3:55 p.m. PID 1768-69, 1460.
Given Dr. Peters‘s report and the factual record on which it is based, I conclude that the reasonableness of Defendants’ use of force was a question for the jury, and would reverse.
DAMON J. KEITH, Circuit Judge.
This case presents a commercial dispute arising from a contract for the sale of window parts. Plaintiff-Appellant Thompson I.G., LLC (“Thompson“) is a Michigan company that manufactures windows. Thompson bought foam “spacers” from Defendant-Appellee Edgetech I.G., Inc. (“Edgetech“), an Ohio corporation, for use in its windows. Thompson sued Edgetech based on allegations that the spacers were defective, asserting claims for breach of contract, breach of express warranty, breach of implied warranty, and fraud. The district court dismissed Thompson‘s breach of implied warranty claim and granted summary judgment on the others. Thompson appeals from the district court‘s final judgment. For the reasons that follow, we AFFIRM the judgment of the district court.
Thompson manufactures insulated glass (“IG“) units. IG units are large window parts consisting of two panes of insulated glass. Edgetech manufactures smaller window parts called spacers. Apparently, in 2003, Edgetech marketed a spacer called Super Spacer to Thompson. Super Spacer maintains the glass panes in IG units at the desired air space, thus promoting insulation. In contrast to traditional aluminum spacers, Super Spacer is made of foam. Although Edgetech manufactures more than one type of Super Spacer, this case concerns the Super Spacer whose foam contains ethylene propylene diene monomer (“EPDM“). Unless otherwise noted, “Super Spacer” refers to the EPDM-type Super Spacer.
In January 2005, Thompson and Edgetech held a meeting at Edgetech‘s Ohio facility. There, Edgetech employee Larry Johnson made a PowerPoint presentation. Thompson‘s former president, Russell Manser, states that Johnson made a misrepresentation during the presentation. Manser asserts that Johnson falsely stated that Super Spacer had passed testing standards of the American Society for Testing and Materials. R. at 1767.1 Likewise, Thompson asserts that the presentation‘s slides show that Edgetech represented that Super Spacer had passed various tests from other standards organizations. R. at 2083, 2093. But Gerhard Reichert, a former senior-level Edgetech employee and coinventor of Super Spacer, states that Super Spacer had failed some of these tests and that Edgetech knew so. R. at 2050-51. Reichert also states that, from 2004 to 2011, numerous Edgetech customers complained that Super Spacer had failed the “fogging test,” which means that the window assemblies using the Super Spacer fogged up during testing. R. at 2480.2
Manser adds that, during the same meeting, Johnson and another Edgetech representative recommended that Thompson use Fenzi polysulfide (“polysulfide“) as a secondary sealant. According to Thompson, one must use a secondary sealant with EPDM because EPDM outgasses at or above 60°C and the secondary sealant prevents the outgassing.34 Manser further asserts that the Edgetech representatives discussed using hot melt butyl or polyurethane as a secondary sealant instead of polysulfide. The Edgetech representatives did not recommend hot melt butyl. They knew that Thompson planned to install some of the IG units in RVs and concluded that hot melt butyl would melt under the intense heat that the exposed RV windows would experience. Manser does not explain why polyurethane was not selected. R. at 2495. For his part, Reichert states that he knew that “EPDM was
In February 2005, the Parties entered into a Usage Purchase Agreement (“Contract“). R. at 1815. Thereby, Thompson agreed to purchase a minimum of sixty million linear feet of Super Spacer over approximately five years. R. at 1815-16. The Contract incorporated the terms of a document titled Terms and Conditions of Sale (“Terms“). R. at 1814. Paragraph 4 of the Terms is titled “Limited Warranty.” Under paragraph 4, Edgetech expressly guaranteed that the Super Spacer would be “free of manufacturing defects at the time of shipping from Edgetech.” R. at 1814. For its part, paragraph 19 states that the Contract “shall be governed by the laws of the State of Ohio.” R. at 1814.
According to Thompson engineer Ed Wilson, Thompson started receiving defective IG units in February/March 2011.5 R. at 1458. Around that time, Wilson instructed Thompson employees to preserve the returned IG units. R. at 1458. On or around March 31, 2011, Thompson filed suit against Edgetech in Michigan state court. On June 30, 2011, Edgetech removed the case on the basis of diversity jurisdiction. Thompson filed an amended complaint on August 29, 2011. The amended complaint asserted claims for breach of contract, breach of implied warranty, breach of express warranty, and fraud. For reasons irrelevant here, the district court granted a motion to dismiss the implied warranty claim.
Edgetech moved to disqualify Reichert and Stephen H. Howes as Thompson‘s experts. The district court granted the motion to disqualify Reichert. Noting that Reichert had been a “longstanding, high-ranking employee of Edgetech,” the district court reasoned that “[a]llowing Reichert to serve as an expert is analogous to an expert switching sides mid-litigation.” R. at 549. Yet the district court did not conclude that Reichert could not testify as a fact witness and Edgetech has not so argued. For his part, Howes was not disqualified. Thompson tendered Howes to testify that Super Spacer was incompatible with polysulfide and that this incompatibility caused the windows in question to outgas. Howes intended to base his testimony on testing he conducted “when trying to create a competitive product....” R. at 2414. Thompson also proffered Howes‘s opinion that five returned windows were defective because their Super Spacers outgassed.6 Edgetech urged the district court to disqualify Howes because (1) he failed to save any data or material from his tests supposedly showing that Super Spacer was incompatible with polysulfide; and (2) he only visually examined the five returned windows and failed to break them open and examine the actual fog. Although the district court noted that the scientific basis of Howes‘s opinion was “attenuated” and “[might] not withstand
Edgetech also moved for sanctions, alleging that Thompson spoliated evidence and committed fraud on the district court. Edgetech argued that Thompson failed to preserve the defective windows and obstructed the efforts of its expert, William Lingell, to inspect the five windows that Howes visually examined. Thompson itemized the defective windows in a “Warranty Report” purporting to show that its customers returned 277 windows due to defective Super Spacer. Manser stated that the warranty report constituted Thompson‘s “best guess” of all the Super Spacer failures. R. at 1739. Manser acknowledged that the warranty report does not show whether the windows had Super Spacers or metal (i.e., aluminum) spacers. R. at 1739-40. Likewise, two Thompson customers stated that some of the claims in the report were for metal spacers. R. at 1848-58, 1860. Another Thompson customer stated that it never submitted certain claims in the report. R. at 1861. At any rate, it is undisputed that Thompson failed to produce these windows. Thompson blamed this failure on the difficulty of removing the windows without breaking their glass and at least two customers’ destruction of the units and/or failure to return them. R. at 1398, 1402-03, 1408. Yet Manser stated that Thompson received defective IG units in the 2004-2011 period and estimated that it discarded 375 such units at its Michigan facility. R. at 1183. Although Manser later stated that the 375 estimate was “way off,” he did not disavow his earlier statement that Thompson discarded some IG units. Paul Lewis, a Thompson sales representative, also stated that Thompson discarded returned IG units. R. at 1431. Thompson downplays the extent to which the discarded IG units contained Super Spacer. Thompson also asserts that it notified its employees as early as May 2011 that the Super Spacer units needed to be preserved. R. at 1492, 1494. But other evidence indicates that Thompson failed to notify some of its employees to preserve the Super Spacer units and failed to institute a procedure to prevent their disposal until some time between January and March 2013. R. at 1157, 1183, 1205. Nonetheless, the district court denied Edgetech‘s motion for sanctions. In reaching this conclusion, the district court reasoned that (1) Thompson sought to safeguard the windows early in the case; and (2) Thompson‘s alleged spoliation did not preclude Lingell from forming his opinion that poor workmanship by Thompson caused the failures.
Edgetech moved for summary judgment. Among other things, Edgetech argued that: (1) Thompson could not demonstrate breach or causation on its breach of contract and breach of express warranty claims; and (2) Michigan‘s economic loss doctrine barred Thompson‘s fraud claim. On November 14, 2013, the district court entered an opinion and order granting Edgetech‘s summary judgment motion and dismissing the case. See R. at 2603. The district court held that Thompson submitted insufficient evidence to show that the Super Spacers outgassed or that any outgassing caused the damages detailed in the warranty report. R. at 2611-12. The district court also held that Thompson‘s fraud claim failed as a matter of law under Michigan‘s economic loss doctrine, which Thompson conceded barred said claim. The district court applied Michigan law because Michigan was the forum state and it saw no rational reason to apply Ohio law.
Thompson appealed. Thompson argues that the district court overlooked evidence supporting its contract and warranty claims. For instance, Thompson customer
II. STANDARD OF REVIEW
We review a district court‘s grant of summary judgment de novo. Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.1988) (citations omitted). Summary judgment is proper “if 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.”
III. ANALYSIS
A. Breach of Contract and Breach of Warranty
The district court held that Thompson submitted insufficient evidence to show that the Super Spacers outgassed or that any outgassing caused the damages detailed in the warranty report. Thompson contends that its circumstantial evidence creates genuine disputes of material fact on the issues of breach and causation. Edgetech responds that Thompson‘s evidence is insufficient in this regard.
The district court applied Ohio law to Thompson‘s breach of contract and warranty claims. The Parties agree that Ohio law applies to these claims. Unless otherwise indicated, we treat these claims in tandem as they present overlapping issues.
Under the Ohio version of the Uniform Commercial Code, to prevail on a breach of express warranty claim, the plaintiff must show that: (1) an express warranty exists; (2) the product under warranty is defective; (3) the plaintiff provided the defendant with reasonable notice of the defect; and (4) the plaintiff suffered an injury as a result of the defect. See Litehouse Prods., Inc. v. A.M.I. Int‘l, Ltd., No. 46834, 1984 WL 4539, at *3 (Ohio Ct.App. Mar. 8, 1984); McKinney v. Bayer Corp., 744 F.Supp.2d 733, 753 (N.D.Ohio 2010) (citations omitted); cf.
In this case, Thompson‘s evidence was insufficient for a reasonable juror to conclude that the Super Spacer units were defective. Manser conceded that the warranty report was only his best guess as to the identity and number of the defective Super Spacer windows. Furthermore, Manser acknowledged that the report did not show whether the listed windows had foam or aluminum spacers, and Thompson‘s customers stated that some of the listed windows had aluminum spacers. Therefore, although some of the windows in the report could have contained defective Super Spacer, a juror would have to rely on “mere speculation, conjecture, or fantasy” to so conclude. See Lewis, 355 F.3d at 533.
The evidence was also inadequate to reasonably conclude that Super Spacer caused the windows to outgas. Thompson failed to preserve the windows in the warranty report and the report does not list the five windows that Howes visually examined and determined failed due to outgassing. R. at 1458, 1821. Consequently, Thompson failed to present expert testimony on (1) whether the windows in the report outgassed and (2) whether Super Spacer caused the alleged outgassing. Although Ohio law does not always require expert testimony to prove that a design is defective, the causation issues here are too complex for the jury to decide without the help of expert testimony. Compare Grover Hill Grain Co. v. Baughman-Oster, Inc., 728 F.2d 784, 793-94 (6th Cir.1984), with Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 529 (6th Cir.2012). Even Howes stated that he did not know why the windows in the report failed. R. at 2269. Furthermore, although Howes visually examined five other windows and concluded that Super Spacer caused them to outgas, he stated that determining whether the fog was outgassing or mere “water fog” required a “destructive” test. R. at 1285, 1364, 1867. Heather Abbas, Thompson‘s director of quality, agreed that a destructive test was required. R. at 1891-92. Hence, it is unclear how a rational juror could conclude that Super Spacer caused the five visually examined windows to outgas.
Thompson contends that its circumstantial evidence creates triable issues on breach and causation. To that end, Thompson points to evidence purporting to prove that: (1) both EPDM and Super Spacer outgas; (2) Super Spacer field failures were heat-related as Howes predicted; (3) Super Spacer units failed much more than aluminum units; (4) Super Spacer was incompatible with polysulfide; and (5) Thompson has sound workmanship. We recognize that circumstantial evidence may suffice in some cases to show that a defective product caused a given injury. Rayco Mfg., Inc. v. Deutz Corp., 497 Fed.Appx. 515, 518 (6th Cir.2012) (citing State Farm Fire & Cas. Co. v. Chrysler Corp., 37 Ohio St.3d 1, 523 N.E.2d 489, 493-94 (1988)). However, we disagree that Thompson‘s circumstantial evidence creates genuine issues for trial. Thompson‘s counterargument overlooks the obvious. There is not enough evidence to reasonably conclude that the windows Thompson designates as defective contained Super Spacer. In any event, evidentiary items (1)-(3) share an infirmity: Thompson‘s and Howes‘s failures to preserve pertinent evidence and data preclude meaningful comparative analysis. It is unclear that
B. Fraud
Thompson asserts a fraud claim based on Edgetech‘s alleged misrepresentation that polysulfide was a suitable secondary sealant to use with Super Spacer. The district court applied Michigan law to Thompson‘s fraud claim and concluded that Michigan‘s economic loss doctrine barred it. Thompson concedes that Michigan law would bar its fraud claim. Appellant‘s Br. at 37; R. at 1977. Thus, we have no occasion to address this issue. Nevertheless, Thompson argues that the district court should have applied Ohio law to its fraud claim and that Ohio‘s economic loss doctrine does not bar said claim. We review a district court‘s choice-of-law determination de novo. Performance Contracting Inc. v. DynaSteel Corp., 750 F.3d 608, 611 (6th Cir.2014) (citing Mill‘s Pride, Inc. v. Cont‘l Ins. Co., 300 F.3d 701, 704 (6th Cir.2002)).
“Federal courts sitting in diversity must apply the choice-of-law rules of the forum state.” Muncie Power Prods., Inc. v. United Techs. Automotive, Inc., 328 F.3d 870, 873 (6th Cir.2003) (citations omitted). Michigan courts “apply Michigan law unless a ‘rational reason’ to do otherwise exists.” Sutherland v. Kennington Truck Serv., Ltd., 454 Mich. 274, 562 N.W.2d 466, 471 (1997) (quoting Olmstead v. Anderson, 428 Mich. 1, 400 N.W.2d 292, 302, 305 (1987)). Michigan courts employ a two-step approach to determine whether there is a rational reason to displace Michigan law. Id. First, the court “must determine if any foreign state has an interest in having its law applied.” Id. “If no state has such an interest, the presumption that Michigan law will apply cannot be overcome.” Id. But if a foreign state has an interest in applying its law, the court “must then determine if Michigan‘s interests mandate that Michigan law be applied[] despite the foreign interests.” Id. “Although this balancing approach most frequently favors using [Michigan law], Michigan courts nonetheless use another state‘s law where the other state has a significant interest and Michigan has only a minimal interest in the matter[.]” Hall v. Gen. Motors Corp., 229 Mich.App. 580, 582 N.W.2d 866, 868 (1998). The following nonexhaustive list of considerations informs this determination: (1) whether the
Here, Michigan‘s interests in applying its law to Thompson‘s fraud claim dwarf any countervailing interests on Ohio‘s part. Although Edgetech made the alleged misrepresentation in Ohio, the vast bulk of the outgassing (i.e., the alleged injury) took place in Michigan. Likewise, while Edgetech manufactured the Super Spacer in Ohio, the other relevant commercial activity primarily took place in Michigan. For instance, Thompson relied on the alleged misrepresentation in Michigan by entering into the Contract at its Fenton office, see R. at 1816, issued purchase orders and payment in Michigan, and manufactured the defective IG units in Michigan. Furthermore, most of Thompson‘s customers are located in Michigan, the units failed largely in Michigan, and Thompson‘s remedial efforts took place in Michigan. As to factors (3) and (4), Michigan‘s interests outweigh Ohio‘s because Thompson is a Michigan company and the district court had a general interest in applying Michigan law. Regarding factor (5), Thompson seeks the application of Ohio law to obviate an unfavorable outcome under Michigan law. Although Thompson could counter that Edgetech also seeks a favorable outcome under the law of another state, Edgetech is a foreign defendant seeking the application of the law of the forum state. Thus, Edgetech‘s conduct does not suggest “law shopping.” Cf. Ferens v. John Deere Co., 494 U.S. 516, 539, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) (Scalia, J., dissenting). As for factor (6), Ohio conflict-of-law rules would mandate the application of Michigan law. Under Ohio law, “a presumption is created that the law of the place of the injury controls unless another jurisdiction has a more significant relationship to the lawsuit.” Morgan v. Biro Mfg. Co., Inc., 15 Ohio St.3d 339, 474 N.E.2d 286, 289 (1984) (citing
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
DAMON J. KEITH
UNITED STATES CIRCUIT JUDGE