Liberty Mutual Insurance Company v. Broan-Nutone, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

LIBERTY MUTUAL INSURANCE

COMPANY as subrogee of MARC

RYSMAN,

Plaintiff,

No. 21-cv-11986-DLC

v.

BROAN-NUTONE LLC,

Defendant.

ORDER ON DEFENDANT’S MOTIONS

Cabell, U.S.M.J.

I. Introduction

Liberty Mutual Insurance Company (“Liberty”) has brought a

subrogation action against Broan-NuTone LLC (“Broan”) to recover

damages from a fire that allegedly started in a bathroom ceiling

fan manufactured and sold by Broan. The fire occurred in a home

owned and occupied by Marc Rysman and his family and insured by

Liberty. Liberty asserts claims for: (1) negligence; (2) breach

of implied warranty of merchantability; (3) breach of implied

warranty of fitness for a particular purpose; and (4) violation of

Massachusetts General Laws chapter 93A (“Chapter 93A”). (Id. at

¶¶ 11-24). In support of its claims, Liberty retained an expert

to investigate and form an opinion on the origin and cause of the

fire. Broan moves to exclude the expert’s opinion and moves also

for summary judgment on all four claims; Liberty opposes both

motions. (D. 35; 36; 38; 39). For the reasons explained below,

the court grants Broan’s motions.

II. Factual Background

On December 17, 2018, a fire occurred at the Brookline,

Massachusetts home of Marc Rysman and Michelle Ephraim. (D. 38,

p. 2).1 Ava Rysman, the couple’s daughter, was home alone when

she heard the smoke alarm. (D. 38, p. 2). Ava left the home

without going upstairs and called 911. (D. 37, p. 2; D. 38, p.

2). Liberty alleges that the fire started inside a ceiling fan

installed in the second-floor bathroom. (D. 1, ¶6). The subject

fan, a NuTone brand, model 763RLN, was installed prior to the

Rysman’s purchase of the home in 2006. (D. 37, p. 2). According

to the Rysmans, the fan was functioning properly before the fire.

(D. 37, p. 3).

Both parties hired experts to investigate the origin and cause

of the fire. Liberty retained Jeremiah Pratt (“Pratt”), a

1 Local Rule 56.1 requires a party filing a motion for summary judgment to

“include a concise statement of the material facts of record as to which the

moving party contends there is no genuine issue to be tried, with page references

to affidavits, depositions, and other documentation.” It also requires a party

opposing a summary judgment motion to include a similar statement of facts “as

to which it is contended that there exists a genuine issue to be tried.” Here,

somewhat confusingly, both parties provide statements of material facts that

merely identify the exhibits attached to the parties’ memoranda. However, as

each party includes a separate section in its memorandum that lays out the

relevant facts in a manner that complies with the rule, the court will simply

take the facts from those sections, supplementing them with references to the

exhibits where appropriate.

certified fire investigator and licensed professional engineer

with twenty-five years of firefighting experience. (D. 37-2, Pratt

Expert Report, p. 7). Pratt inspected the loss site twice: once

on December 20, 2018, three days after the fire took place, and

again as part of a joint scene examination on January 9, 2019.

(D. 38, p. 2).

Four categories of items were collected during the joint

examination: fan components from floor debris, ceiling fan

artifacts, an exemplar fan from the second-floor bathroom, and

wiring from the second-floor bathroom ceiling. (Id.). In addition

to examining these items, Pratt took a witness statement from Marc

Rysman, analyzed fire patterns and fire dynamics at the scene,

reviewed photographs taken of the scene, and created an arcing

map.2 (D. 37-2, p. 13).

Pratt summarized his findings in an expert report. (D. 37-

2). The report first considers the origin of the fire. (Id. at

pp. 10-14). After formulating three origin hypotheses, Pratt

evaluated each one based on evidence from the scene and determined

the most probable area of origin was the void space above the

ceiling of the second-floor bathroom. (Id. at pp. 13-14).

2 Arcing refers to “a high-temperature luminous electric discharge across a gap

or through a medium such as charred insulation”). National Fire Protection

Association, User's Manual for NFPA 921: Guide for Fire and Explosion

Investigations (“NFPA 921”), §§ 3.3.8-9, 11 (2024 ed.). Arc mapping is the

process of diagramming arcing events. Id. Pratt created a diagram of the

Rysman’s second floor bathroom, including blue lines to indicate arc patterns

and red circles to show where electrical activity occurred. (D. 37-2, p. 12).

Next, in a section titled “Cause Hypothesis Testing,” Pratt’s

report homes in on a more specific point of origin.3 (Id. at p.

15). Pratt hypothesized that the fire could have started in two

different locations within a fan in the ceiling, either in the

fan’s motor or in its connection junction box.4 (Id. at pp. 19-

20). Based on his examination of the physical evidence, Pratt

selected what he believed to be the more probable hypothesis,

namely that the fire started in the connection junction box. (Id.

at pp. 20-21).

After determining that the connection junction box was the

most probable ignition location, Pratt’s report asserts that the

fire was caused by electrical activity in the box that ignited

lightweight combustible dust and lint. (Id. at p. 22). The report

goes on to state that vibration from the fan caused a free-hanging

wire to rub against a metal divider in the box, wearing through

the wire’s insulation and eventually causing the electrical

activity that started the fire. (D. 37-2, pp. 7, 23). Based on

3 Although Pratt’s report refers to this section as a cause analysis, it is

really a more specific origin analysis. “Cause” refers to the circumstances or

conditions that brought about or resulted in a fire, whereas “origin” refers to

the physical location where the fire began. NFPA 921, §§ 3.3.28, 153.

4 As the name implies, a connection junction box is an electrical receptacle

(typically enclosed) where multiple wires are brought together and connected to

one another as necessary. See Donovan v. Daniel Constr. Co., 692 F.2d 818,

819-20 (1st Cir. 1982). Broan’s expert, Stephen Campolo, asserts that this

part of the fan is not really a junction box but rather the fan’s metal housing.

(D. 38-1, Campolo Deposition Transcript, pp. 124:20-125:4). This dispute is

ultimately immaterial, so the court will adopt Pratt’s terminology for clarity.

that conclusion, Pratt opined that Broan, as the fan’s

manufacturer, was responsible for the fire. (D. 37-2, p. 23).

III. Legal Standard

A. Summary Judgment Standard

The role of summary judgment is “to pierce the pleadings and

to assess the proof in order to see whether there is a genuine

need for trial.” Carrozza v. CVS Pharmacy, Inc., 992 F.3d 44, 56

(1st Cir. 2021) (internal quotation omitted). Summary judgment is

appropriate if there is no genuine dispute of material fact and

the moving party is entitled to judgment as a matter of law. Lima

v. City of E. Providence, 17 F.4th 202, 206 (1st Cir. 2021). “An

issue is ‘genuine’ if it can be ‘resolved in favor of either

party,’ and a fact is ‘material’ if it ‘has the potential of

affecting the outcome of the case.’” Feliciano-Muñoz v. Rebarber-

Ocasio, 970 F.3d 53, 62 (1st Cir. 2020) (quoting Tang v. Citizens

Bank, N.A., 821 F.3d 206, 215 (1st Cir. 2016)). The moving party

has the initial burden to demonstrate the absence of such a genuine

dispute. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

Once the moving party has satisfied its burden, the burden

shifts to the non-moving party to set forth specific facts showing

that there is a genuine, triable dispute. Celotex, 477 U.S. at

324. The court must view the entire record in the light most

favorable to the non-moving party and indulge all reasonable

inferences in that party’s favor. Friends of Merrymeeting Bay v.

Hydro Kennebec, LLC, 759 F.3d 30, 34 (1st Cir. 2014). However,

“[w]hen adjudicating a motion for summary judgment, a district

court customarily may consider only evidence that would be

admissible at trial.” Klauber v. VMware, Inc., 80 F.4th 1, 7 (1st

Cir. 2023) (discussing exception to rule that does not apply to

this case).

B. Daubert in the Context of Summary Judgment

Broan combines much of its summary judgment argument with the

separate but conceptually related argument that the court should

exclude a portion of Pratt’s expert opinion as unreliable. Expert

testimony may be admissible if “scientific, technical, or other

specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue” and if the proposed

witness is qualified as an expert by some specialized “knowledge,

skill, experience, training, or education.” Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579, 588 (1993) (quoting Fed. R. Evid.

702). Under the familiar Daubert standard, the court weighs

reliability and relevance in assessing “whether the reasoning or

methodology underlying [expert] testimony is scientifically valid

and . . . whether that reasoning or methodology properly can be

applied to the facts in issue.” Id. at 592–93; see Kumho Tire Co.

v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying that Daubert

applies to all expert testimony). That assessment considers

factors including whether the theory or technique has been tested;

whether it has been subjected to peer review and publication; in

the case of a technique, its known or potential rate of error as

well as the existence and maintenance of any standards controlling

its operation; and the extent of its acceptance within the relevant

scientific community. Daubert, 509 U.S. at 592–94.

Federal Rule of Evidence 702 (“Rule 702”) “incorporates the

reasoning of the Supreme Court of the United States in Daubert .

. . [and] ‘affirms the trial court’s role as gatekeeper.’”

Rodriguez v. Hosp. San Cristobal, Inc., 91 F.4th 59, 70 (1st Cir.

2024) (quoting Fed. R. Evid. 702 advisory committee’s notes to

2000 amendment). Rule 702 establishes that expert testimony may

be admitted into evidence only if it is “based on sufficient facts

or data,” is “the product of reliable principles and methods,” and

“reflects a reliable application of the principles and methods to

the facts of the case.” Id. at 71 (citing Fed. R. Evid. 702).

Under Daubert and Rule 702, the burden on the party who proffers

expert testimony is not to prove that an expert’s conclusion is

correct but rather that the expert reached their conclusion in a

scientifically sound and methodologically reliable way. Ruiz-

Troche v. Pepsi Cola of P.R. Bottling Co., 161 F.3d 77, 85 (1st

Cir. 1998).

Of note, the Rules Committee recently amended Rule 702 to

emphasize that (1) the proponent of expert testimony bears the

burden of demonstrating by a preponderance of the evidence that

the testimony is admissible and (2) “each expert opinion must stay

within the bounds of what can be concluded from a reliable

application of the expert’s basis and methodology.” Fed. R. Evid.

702 advisory committee’s notes to 2023 amendment.

The Daubert analysis contains an extra wrinkle when

confronted at the summary judgment stage. The court can apply

Daubert at summary judgment, but “[b]ecause the summary judgment

process does not conform well to the discipline that Daubert

imposes, the Daubert regime should be employed only with great

care and circumspection at [that] stage.” Cortés-Irizarry v.

Corporacion Insular De Seguros, 111 F.3d 184, 188 (1st Cir. 1997).

The problem is that courts typically have only a “truncated record”

at summary judgment, whereas Daubert requires a “complex factual

inquiry.” Id. Thus, “where Daubert intersects with summary

judgment practice, Daubert is accessible, but courts must be

cautious . . . not to exclude debatable scientific evidence without

affording the proponent of the evidence adequate opportunity to

defend its admissibility.” Id. Nonetheless, “[t]he [court’s]

obligation to perform this [Daubert] gatekeeping role necessarily

applies at the summary judgment stage of litigation given the

objective to avoid prolonging a case that lacks merit.” Hoover v.

Hyatt Hotels Corp., --- F.4th ---, 2024 WL 1714999, at *10 (1st

Cir. 2024).

Here, Broan’s motion for summary judgment is so closely

intertwined with its motion to exclude Pratt’s expert testimony

that the court cannot rule on the former without essentially ruling

on the latter. While trial typically “provide[s] the best

operating environment” for a Daubert assessment, id., here the

court will assess the evidence on record pursuant to Daubert to

resolve the motion for summary judgment. In doing so, the court

acknowledges the First Circuit’s caution against excluding

evidence without affording an adequate opportunity to defend its

admissibility. Here, Liberty had the chance to defend the

admissibility of Pratt’s testimony in its opposition to the motion

to exclude and again at oral argument after the court raised the

specific issues discussed below. Cf. United States v. Crater, 93

F.4th 581, 591 (1st Cir. 2024) (affirming district court’s

admission of expert testimony without conducting an evidentiary

hearing). Moreover, the court will consider Pratt’s testimony

from his deposition, where he was questioned about his conclusions

and given an opportunity to explain them.5

IV. Discussion

A. Daubert Analysis

Broan’s objection to Pratt’s testimony is a relatively narrow

one that attacks Pratt’s opinion as to what caused the fire. In

5 It bears noting that Liberty had the opportunity to ask its own questions of

Pratt at his deposition to clarify the bases for his opinions if it believed

such clarification was necessary.

fact, there are certain key points on which the parties appear to

agree. First, there is no dispute that Pratt’s extensive training

as a fire investigator and professional engineer, combined with

his degree in electrical engineering and his experience analyzing

fire patterns, qualify him as an expert. Second, the parties do

not dispute that the National Fire Protection Association’s Guide

for Fire and Explosion Investigations (“NFPA 921”), to which Pratt

cites, is a widely accepted and appropriate industry standard for

conducting fire investigations. (D. 38, p. 8; D. 40). Indeed,

courts often refer closely to NFPA 921 when weighing the relevant

Daubert factors in cases involving fire investigations. See

Netherlands Ins. Co. v. HP, Inc., 646 F. Supp. 3d 139, 145-46 (D.

Mass. 2022) (collecting cases). Third, Broan does not challenge

Pratt’s opinion that the fire started in the fan’s connection

junction box, at least for the purposes of the motion to exclude.

Zeroing in on their objection, Broan asserts that Pratt’s

opinion that the fan’s vibration caused its internal wiring

insulation to abrade, which then led to the fire, is scientifically

unsupported and unreliable, and thus inadmissible under Rule 702.

Specifically, Broan identifies three alleged deficiencies in

Pratt’s opinion: (1) Pratt had no evidence of unusual vibrations;

(2) Pratt had no scientific basis for his assumption that the

appliance wire insulation could be abraded away or how that might

happen; and (3) Pratt has no scientific basis for concluding that

arcing on the steel scroll in the connection junction box caused

the fire rather than arcing on nearby branch wiring. Of these,

Broan’s second argument ultimately prevails.6

Liberty contends that Pratt relied on NFPA 921 in reaching

each of his conclusions. As previously discussed, “NFPA 921 . .

. is widely accepted as the standard guide in the field of fire

investigation.” United States v. Hebshie, 754 F. Supp. 2d 89, 111

(D. Mass. 2010). However, “an expert who purports to follow NFPA

921 must apply its content reliably.” Russell v. Whirlpool Corp.,

702 F.3d 450, 455 (8th Cir. 2012); see also Werth v. Hill-Rom,

Inc., 856 F. Supp. 2d 1051, 1060 (D. Minn. 2012) (noting expert’s

purported reliance on NFPA 921 does not automatically make opinion

admissible). The question, then, is whether Pratt reliably applied

the principles of NFPA 921 in forming his opinion about the cause

of the fire.

Liberty devotes much of its argument to defending Pratt’s

utilization of “cognitive testing”. When properly conducted,

6 Because Broan’s second argument carries the day, the court only briefly

comments on the other two. Broan’s first argument does not go far because it

misapprehends Pratt’s causation theory. According to Pratt, the vibration that

caused the abrasion was the ordinary vibration that any bathroom fan would

experience as it operates. (D. 37-3, Pratt Deposition Transcript, p. 146:8-

14). As such, the theory does not depend on the existence of any unusual

vibrations. As to Broan’s third argument, Pratt, in the court’s view, could

have reliably concluded that the arcing event in the connection junction box

caused the fire based in part on his having narrowed the origin to that box.

See note 10, infra. That conclusion may ultimately be incorrect, but it is

sufficiently reliable to be admissible. See Ruiz-Troche, 161 F.3d at 85.

Ultimately, where Pratt’s opinion falters is not on his conclusion that the

arcing event caused the fire, but rather his conclusion that the fan’s vibration

caused abrasion of insulation on the fan’s internal wiring, and thus the arcing

event and the fire.

cognitive testing tests a hypothesis against relevant evidence.

See NFPA 921, § 19.6.4 (cognitive testing includes “set[ting] up

a premise and test[ing] it against the data”)7; Fireman’s Fund Ins.

Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1058 (8th Cir. 2005)

(“NFPA 921 requires that hypotheses . . . be carefully examined

against empirical data obtained from fire scene analysis and

appropriate testing.”). During cognitive hypothesis testing, an

investigator will use their knowledge, experience, “thinking

skills[,] and judgment to evaluate the empirical data and challenge

the conclusions of the final hypothesis.” Great N. Ins. Co. v.

Ruiz, 688 F. Supp. 2d 1362, 1373 (S.D. Ga. 2010) (quoting National

Fire Protection Agency, User’s Manual for NFPA 921: Guide for Fire

and Explosion Investigations 17 (2005)). Liberty is certainly

correct that cognitive testing is generally an acceptable method

for conducting fire investigations. See NFPA 921, § 19.6.4

(“Hypothesis testing may include any application of fundamental

principles of science, physical experiments or testing, cognitive

experiments, analytical techniques and tools, and systems

analysis.”)8 (emphasis added); see Woods Hole Oceanographic Inst.

7 NFPA 921 provides the following example of cognitive testing: “If it were

posited that the door was open during the fire and the hinges were found with

mirror image patterns, [which would be inconsistent with the door being open,]

then the hypothesis would be disproved.” NFPA 921, § 19.6.4.4.

8 This language from the 2024 edition of the NFPA 921 is not meaningfully

different from the standards articulated in the 2017 and 2021 editions on which

Pratt relied. (D. 37-3, Pratt Deposition Transcript, pp. 31:13-31:21).

v. ATS Specialized, Inc., Civil Action No. 17-12301-NMG, 2021 WL

9860239, at *5 (D. Mass. May 27, 2021) (“NFPA 921 specifically

provides that deductive reasoning and cognitive testing may

satisfy the testing requirement.”).

Examples of proper cognitive testing abound. In Woods Hole

Oceanographic Institution, the plaintiff retained an expert to

opine on the origin and cause of a fire that started in a trailer’s

left rear wheel. 2021 WL 9860239, at *1. The expert “inspected

the subject trailer four times, obtained and examined exemplar

components of the subject trailer, including a push-pull valve,

relay valve, and two-way check valve, and compared them with the

pneumatic schematics provided by the trailer manufacturer and

technical reference manuals.” Id. at *4. Next, the expert applied

his relevant training and experience to the evidence collected to

“formulate and test his hypotheses and ultimately render his

opinions in the case.” Id. Based on a comparison of the evidence

with pneumatic schematics, the expert identified a leak in the

push-pull valve, concluded that the leak caused the fire, and

explained how the leak created the conditions that allowed for the

fire to start. Id. at *2, *4. The court deemed the expert’s

testimony sufficiently reliable based on cognitive testing. Id.

at *5.

Cognitive testing can also consist of determining the most

likely of several competing hypotheses based on the evidence. For

instance, in Medina v. Daimler Trucks N. Am., LLC, Civil Action

No. 10-623 (JLL), 2014 WL 7405210 (D.N.J. Dec. 30, 2014), the

plaintiff engaged an engineer to determine what caused her

husband’s tractor-trailer to catch fire when it was involved in a

highway accident. The engineer opined that the most likely cause

of the fire was “electrical arcing that occurred when the battery

box separated from the truck.” Id. at *8. At his deposition,

defense counsel asked the engineer whether several other ignition

sources could have started the fire. Id. The expert conceded

that each was a possible source of ignition, but he explained why

each alternative was less likely than his electrical arcing theory

based on evidence such as witness statements and his knowledge of

the circumstances that would be required for each alternative to

cause a fire. Id. at *8-*9. The court found that the expert

applied NFPA 921 appropriately through this approach. Id. at *9;

see also Great N. Ins. Co., 688 F. Supp. 2d at 1373 (approving

expert’s use of a “process of elimination” to conclude that

spontaneous combustion of oil-stained rags was the most likely

cause of a fire).

Of course, there are limits to what qualifies as cognitive

testing. “[C]ognitive testing cannot produce reliable results

without some underlying basis for an opinion.” Del Baggio v.

Maytag Corp., Civil Action No. 3:05-378, 2010 WL 11566305, at *3

(W.D. Penn. Feb. 26, 2010); see also Oddi v. Ford Motor Co., 234

F.3d 136, 156 (3d Cir. 2000) (“Although Daubert does not require

a paradigm of scientific inquiry as a condition precedent to

admitting expert testimony, it does require more than [a]

haphazard, intuitive inquiry.”); Trusty v. Sunbeam Prods., Inc.,

No. 2:13-CV-02039, 2014 WL 1410259, at *5 (W.D. Ark. Feb. 19, 2014)

(“The court cannot find Durham’s testimony to be sufficiently

reliable unless it is based, at least in part, on something more

than Durham’s own speculation.”). It is insufficient for an expert

to conclude that a particular event caused a fire without

identifying some basis to believe that event likely occurred. See

Werth, 856 F. Supp. 2d at 1061 (“But as the emphasized language

above indicates, the Report simply describes ways in which a chip

could have broken free of the quartz tube and made its way to the

bassinet; it is replete with possibilities and conjecture.”)

(emphasis in original); Allstate Ins. Co. v. Ford Motor Co., No.

CV-08-2276-PHX-NVW, 2010 WL 1654145, at *7 (D. Ariz. Apr. 21, 2010)

(“For Mr. Hogge’s deductions to hold water, it must be at least

possible, if not probable, that brake fluid penetrated the ECU far

enough to come into contact with the energized circuitry.”).

Here, Pratt’s investigation into the fire’s origin

demonstrates that he is certainly capable of performing proper

cognitive testing. First, to determine the general area of origin,

Pratt formulated three hypotheses based on an initial evaluation

of evidence. (D. 37-2, p. 12). Pratt tested these hypotheses by

analyzing fire patterns, including the location of charring and

soot damage, and examining and ruling out potential ignition

sources. (Id.). Having considered the evidence, Pratt was able

to rule out the possibility that the fire had started in the

second-floor bathroom or the third-floor bathroom crawl space,

leaving the void space above the second-floor bathroom as the only

potential origin. (Id. at pp. 13-14).

Next, Pratt developed two hypotheses for possible ignition

locations, finding the fire most likely originated in either the

ceiling fan’s motor or its connection junction box.9 (Id. at pp.

19-20). Pratt determined that the fire most likely did not start

in the fan’s motor, in part because after the fire the motor was

still partially covered in a paper wrap that most likely would

have been consumed had the fire begun there. (Id. at p. 20). By

contrast, evidence of arcing between wiring in the connection

junction box and an internal steel divider made the box a more

likely origin. (Id.). At both stages, Pratt developed multiple

hypotheses, evaluated the hypotheses in light of the physical

evidence, and selected the hypothesis that best fit the evidence.

This is exactly the type of cognitive testing process that courts

often uphold as reliable. See Woods Hole, 2021 WL 9860239, at *5;

Medina, 2014 WL 7405210, at *9.

9 Pratt’s report is not crystal clear as to how he narrowed the area of origin

from the void space to the fan itself. Ultimately, this potential gap is not

relevant to the court’s ruling.

On the other hand, Pratt’s causation opinion stands in stark

contrast to the rest of his report. First, Pratt opines that

“electrical activity in the fan connection junction box” initially

ignited the fire, but the report does not explain how Pratt

determined that electrical activity started the fire apart from

vague statements that Pratt examined all available evidence in the

laboratory and collected and analyzed research and manufacturer

data.10 (D. 37-2, p. 21). Pratt goes on to conclude that vibration

from the fan during its operation caused an internal wire to rub

against a metal divider inside the fan, eventually wearing through

the wire’s insulation and causing the arcing event that started

the fire, but nothing in the report begins to explain how Pratt

reached that conclusion.11 (Id. at p. 22).

10 Notwithstanding the lack of clarity in his report, one can fairly infer that

Pratt based his conclusion that electrical activity in the connection junction

box started the fire on physical evidence that an arcing event occurred within

the connection junction box, such as the internal wire that was found fused to

a metal divider after the fire. (Id. at p. 16). Thus, giving Pratt the benefit

of the doubt, one could find that he conducted adequate cognitive testing as to

this portion of his opinion. See Great N. Ins. Co., 688 F. Supp. 2d at 1372-

73 (expert first determined area of origin, then eliminated possible causes

within that area).

11 In his report, Pratt raises the possibility of providing a supplemental report

if needed, including, for example, “[a] complete and thorough detailing of the

collection of data and analysis relative to cause.” (D. 37-2, p. 14).

Similarly, at his deposition, Pratt described his report as a “summary” or less

than a “full report,” indicating multiple times that he could supplement the

report if necessary. (D. 37-3, pp. 11:5-10, 70:9-11, 155:3-9, 157:4-6). At

that time, Pratt had not begun preparing a supplemental report. (Id. at p.

155:12-13). Nothing in the record indicates that Pratt ever wrote a

supplemental report or that Liberty asked him to do so. The court thus presumes

that Pratt’s report, as clarified at his deposition, is complete. See Fed. R.

Civ. P. 26(a)(2)(B)(i) (expert’s written report must contain “a complete

statement of all opinions the witness will express and the basis and reasons

for them”); Fed. R. Civ. P. 26(e)(2) (“[T]he party’s duty to supplement [expert

Pratt’s deposition testimony did not help him in this regard.

He testified that the vibration he mentions in his report is the

ordinary vibration that any fan would experience as it operates,

but he admitted to never having measured such vibration, and he

was not specifically aware of anyone else who had done so. (D.

37-3, Pratt Deposition Transcript, p. 146:8-147:1). Further, when

asked whether he knew if the wires specifically vibrated, Pratt

responded, “either the wires vibrated, or the metal shroud

vibrated.” (Id. at p. 147:15-18). Pratt explained he knew this

“because [the vibration] wore through the insulation and created

electrical activity” and “[b]ecause a fan that’s on is going to

have vibrations.” (Id. at p. 147:19-24). When asked whether he

tested the theory that vibration caused the wire insulation to

wear off, Pratt claimed he performed “cognitive[] test[ing],” by

“relying on [his] education, training, and experience.” (Id. at

p. 148:1-5). In essence, then, Pratt’s explanation for the arcing

event is that vibration abraded the wire’s insulation, and his

explanation for how he knows the vibration abraded the wire’s

insulation is that there was an arcing event.

This supposition is something less than true cognitive

testing. Pratt does not identify any evidence tending to show

that the wire rubbed against the metal divider or that any abrasion

disclosures] extends both to information included in the report and to

information given during the expert’s deposition.”).

occurred, cf. Woods Hole, 2021 WL 9860239, at *4, nor does he

identify or disprove any other hypotheses, cf. Medina, 2014 WL

7405210, at *8-*9. He also does not point to any evidence

suggesting that the vibration he describes could have worn through

the wire’s insulation, much less any evidence that such a result

was probable. See Allstate, 2010 WL 1654145, at *7. When asked

if he was aware of any physical test that shows it is possible for

wire insulation to wear through in this way, Pratt indicated that

he could only point to his “training, education[,] and experience.”

(D. 37-3, p. 148:11-17). As such, Pratt’s analysis is devoid of

any reference to empirical data, contrary to what NFPA 921 requires

for cognitive testing and contrary to his own origin analysis.

See Fireman’s Fund Ins. Co., 394 F.3d at 1058.

In sum, Pratt’s conclusion that the fan’s vibration led to an

abrasion of internal wiring insulation is not based on valid

cognitive testing, nor is it undergirded by any specific, generally

accepted scientific principles. See Daubert, 509 U.S. at 594.

The only connection between Pratt’s theory and the evidence of

electrical activity is his ipse dixit, which means “there is simply

too great an analytical gap between the data and the opinion

proffered” for the opinion to be admissible. General Elec. Co. v.

Joiner, 522 U.S. 136, 146 (1997). Therefore, the court will

exclude Pratt’s opinion that the fan’s vibration caused an internal

wire and the metal divider to rub together, which in turn abraded

the wire’s insulation and caused an arcing event and the fire.

B. Summary Judgment Analysis

Having resolved the admissibility of Pratt’s expert opinion,

the court now turns to the motion for summary judgment. As nothing

in the complaint raises any questions of federal law, and Liberty

and Broan are citizens of different states, (D. 44, Joint Statement

of the Parties), it appears that Liberty is invoking the court’s

diversity jurisdiction.12 See 28 U.S.C. § 1332(a)(1). The parties

both apply Massachusetts law in their filings, and so the court

will “accept the parties’ reasonable agreement that Massachusetts

law controls.” Martins v. Vt. Mut. Ins. Co., 92 F.4th 325, 328

(1st Cir. 2024); see Borden v. Paul Revere Life Ins. Co., 935 F.2d

370, 375 (1st Cir. 1991) (holding that “a federal court sitting in

diversity is free, if it chooses, to forgo independent analysis

and accept the parties’ agreement” as to what law controls).

1. Breach of Implied Warranty of Merchantability

Under Massachusetts law, there is no “strict liability in

tort for defective products.” Commonwealth v. Johnson Insulation,

682 N.E.2d 1323, 1326 (Mass. 1997). Rather, a duty is imposed on

merchants in the form of a warranty that is intended to “establish

liability as comprehensive as that to be found in other

12 The complaint erroneously cites to M.G.L. c. 212, § 3, as the basis for the

court’s jurisdiction over this action. (D. 1, ¶ 4). That statute concerns the

original jurisdiction of the Massachusetts Superior Court.

jurisdictions that have adopted the tort of strict product

liability.” Id. A products liability claim must be brought as “a

claim for breach of the implied warranties of merchantability

and/or fitness for a particular purpose under [M.G.L. c.] 106, §§

2–314 and 2–315, or of an express warranty under § 2-313.”

Phillips v. Medtronic, Inc., 754 F. Supp. 2d 211, 216 (D. Mass.

2010) (citing Commonwealth v. Johnson Insulation, 682 N.E.2d 1323,

1326 (Mass. 1997)). The implied warranty of merchantability

requires that goods be “fit for the ordinary purposes for which

such goods are used.” M.G.L. c. 106, § 2–314. “The ‘ordinary

purposes’ contemplated by this section include both those uses

which the manufacturer intended and those which are reasonably

foreseeable.” Back v. Wickes Corp., 378 N.E.2d 964, 969 (Mass.

1978). “‘Fitness’ is a question of degree that primarily, although

not exclusively, concerns reasonable consumer expectations.”

Haglund v. Philip Morris, Inc., 847 N.E.2d 315, 322 (Mass. 2006)

(citing Back, 378 N.E.2d at 694).

To prove a breach of implied warranty, a plaintiff must show

“a defect in the product or an unreasonably dangerous condition

which existed at the time the product left the [manufacturer’s]

control.” Enrich v. Windmere Corp., 616 N.E.2d 1081, 1085 (Mass.

1993) (citation omitted). “A product may be defective and

unreasonably dangerous because of a manufacturing defect, a design

defect, or a warning defect.” Evans v. Lorillard Tobacco Co., 990

N.E.2d 997, 1010 (Mass. 2013) (citing Restatement (Third) of Torts:

Products Liability § 2, at 14 (1998)). Here, Liberty alleges

either a design defect or a manufacturing defect. (D. 1, ¶¶ 14-

16). Typically, “[t]he presence of . . . a defect cannot be

inferred in the absence of expert testimony.” Enrich, 616 N.E.2d

at 1084; see also Esturban v. Mass. Bay Transp. Auth., 865 N.E.2d

834, 835 (Mass. App. Ct. 2007) (finding expert testimony was

required to prove narrowness of escalator caused plaintiffs’

injuries, as “an escalator is a complex, technical piece of

machinery, whose design and operational requirements are not

straightforward . . . and beyond the scope of an average person’s

knowledge”).

a. Design Defect

A product is defectively designed if, as designed, it is

“defective and unreasonably dangerous . . . for the ordinary

purposes for which it is fit.” Haglund, 847 N.E.2d at 322

(internal quotation marks and citation removed). To prove a design

defect, a plaintiff must show that the entire product line is

defective, not just the specific unit. Pub. Serv. Mut. Ins. v.

Empire Comfort Sys., Inc., 573 F. Supp. 2d 372, 380 (D. Mass.

2008). Moreover, the plaintiff must demonstrate that the defect

was present at the time the product was sold and that the defect

caused the plaintiff’s injury. Haglund, 847 N.E.2d at 322; Enrich,

616 N.E.2d at 1084.

Liberty’s only evidence of a defect in the subject fan is

Pratt’s opinion that the vibration of the internal wiring or the

metal divider caused abrasion of the wire’s insulation, and,

ultimately, the fire, combined with his related opinions on how

Broan could have designed the fan to avoid this abrasion.13 As

discussed above, Pratt’s conclusion on the wire abrasion is

inadmissible. Without this testimony, there is no other evidence

that the configuration of the wires, the insulation, or any other

component of the fan’s design was defective. Evidence that the

fire started in the fan’s connection junction box, without evidence

explaining how the fire started, is insufficient to prove a design

defect. See Enrich, 616 N.E.2d at 1084 (affirming directed verdict

for defendant where “[t]he evidence did warrant the conclusion

that the fan was the source of the fire, but there was no evidence

that some defect in the fan caused the fire”).14 Therefore, Liberty

cannot succeed on a design defect theory.

13 Pratt opines that Broan could have avoided the abrasion problem by utilizing

“internal strain relief, wire covering, or . . . terminal blocks” in the fan’s

design. (D. 37-2, p. 22). Because Liberty lacks admissible evidence to prove

that any abrasion occurred, Pratt’s opinion on how Broan could have avoided any

such abrasion does not move the needle here.

14 In some cases, through the doctrine of res ipsa loquitur, a jury may be able

to infer the existence of a defect from the occurrence of an accident that would

not ordinarily happen in the absence of some defective condition. Enrich, 616

N.E.2d at 1084-85. This is not such a case. See id. (finding, in case about

a fan catching fire, that “[t]he jury would not be warranted in finding that it

was more probable that the fire occurred because of a defect or malfunction in

the fan instead of some other cause for which the defendant is not responsible”).

For its part, Liberty acknowledged at oral argument that it could not prevail

without Pratt’s expert opinion.

b. Manufacturing Defect

“A defect from manufacturing, as opposed to design, occurs

when a product differs from identical products issued from the

same manufacturer.” Wasylow v. Glock, Inc., 975 F. Supp. 370, 377

(D. Mass. 1996) (citing Back, 378 N.E.2d at 970). As with a design

defect, the plaintiff must demonstrate that the alleged

manufacturing defect likely caused the complained-of injury.

Enrich, 616 N.E.2d at 1084.

Here, Liberty has adduced no evidence that the fan in the

Rysmans’ second-floor bathroom deviated in any way from any other

fan in the same product line, and there is no indication that the

one alleged defect Pratt identified, namely, the free-hanging wire

in the connection junction box, was unique to this one fan. At

most, Liberty offhandedly remarks in its opposition to Broan’s

Daubert motion that the steel divider in the connection junction

box clearly was not smooth based on photographs taken after the

fire. (D. 38, p. 14). Even so, there is no evidence that the

divider was not smooth prior to the fire or that it otherwise

deviated from the dividers in other identical fans. See Enrich,

616 N.E.2d at 1085 (“To impose liability on the defendant, the

plaintiff would need to prove a defect in the product or an

unreasonably dangerous condition which existed at the time the

product left the defendant’s control.”). Accordingly, Liberty

cannot meet its burden to show a manufacturing defect in the fan.

Based on the admissible evidence in the record, the court

finds that Liberty cannot demonstrate that Broan designed or

manufactured the subject fan defectively. Broan is therefore

entitled to summary judgment on the breach of implied warranty of

merchantability claim.

2. Negligence

Liberty argues that Broan was negligent in its design and/or

maintenance of the subject fan. Whereas breach of warranty focuses

on the product, negligence focuses on the actions of the

manufacturer. One Beacon Ins. Co. v. Electrolux, 436 F. Supp. 2d

291, 295-96 (D. Mass. 2006) (citing Correia v. Firestone Tire &

Rubber Co., 446 N.E.2d 1033, 1039 (Mass. 1983)). To prevail on

either a negligence or breach of warranty claim, the plaintiff

must present evidence of a defect. See Netherlands Ins. Co., 646

F. Supp. 3d at 146 (citing Mass. Prop. Ins. Underwriting Ass’n v.

LG Elecs. U.S.A., Inc., 902 F. Supp. 2d 173, 176 (D. Mass. 2012)).

As discussed above, Liberty lacks admissible evidence that shows

either a design defect or a manufacturing defect. Consequently,

Liberty cannot succeed on its negligence claim. See id.

3. Breach of Implied Warranty of Fitness for a Particular

Purpose

Under Massachusetts law, an implied warranty of fitness for

a particular purpose exists “[w]here the seller at the time of

contracting has reason to know any particular purpose for which

the goods are required and that the buyer is relying on the

seller’s skill or judgment to select or furnish suitable goods.”

M.G.L. c. 106, § 2-315. “A particular purpose differs from an

ordinary purpose in that it envisages a specific use by the buyer

which is peculiar to the nature of his business.” Pub. Serv. Mut.

Ins., 573 F. Supp. 2d at 381 (internal quotation marks omitted).

There is no implied warranty unless the purchaser communicates the

particular purpose he has in mind for the product to the seller.

Rule v. Fort Dodge Animal Health, Inc., 604 F. Supp. 2d 288, 297

(D. Mass. 2009), aff’d, 607 F.3d 250 (1st Cir. 2010).

Here, the subject fan was used for its intended, ordinary

purpose as a bathroom ceiling fan. A product’s ordinary purpose

is necessarily not a particular purpose giving rise to an implied

warranty. See id.; Pub. Serv. Mut. Ins., 573 F. Supp. 2d at 381.

Likewise, there is no evidence in the record that the Rysmans or

any previous owners of the home ever communicated with Broan about

their intended use for the fan. As such, Liberty cannot establish

the existence of an implied warranty of fitness for a particular

purpose and therefore cannot prove a breach of such a warranty.

4. Chapter 93A

Liberty’s Chapter 93A claim is premised on Broan’s alleged

breach of the implied warranties discussed above. (D. 1, ¶¶ 22-

24). When “[a]n implied warranty claim and a c. 93A claim are

based on the same economic theory of injury and the same set of

alleged facts, they should survive or fall under the same

analysis.” Iannacchino v. Ford. Motor Co., 888 N.E.2d 879, 889

(Mass. 2008). Because, as discussed above, Liberty cannot prevail

on its breach of implied warranty claims, it likewise cannot

prevail on its Chapter 93A claim.

V. Conclusion

For the foregoing reasons, the defendant’s motion to exclude

expert testimony is GRANTED, and the defendant’s motion for summary

judgment on all claims is also GRANTED.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: April 26, 2024