Elwood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

ERRETT TANNER ELWOOD, )

)

Plaintiff, )

)

and )

)

HANOVER INSURANCE COMPANY, )

)

Intervening Plaintiff, )

)

v. ) No.: 3:24-CV-509-TAV-DCP

)

GENERAC POWER SYSTEMS, INC., )

)

Defendant. )

MEMORANDUM OPINION

This civil matter is before the Court on defendant’s motion for summary judgment

[Doc. 28]. Plaintiff Errett Tanner Elwood and intervening plaintiff Hanover Insurance

Company (“Hanover”) each responded [Docs. 31, 32, 34], and defendant replied [Docs.

33, 35]. Accordingly, this matter is now ripe for the Court’s review. See E.D. Tenn. L.R.

7.1(a). For the reasons explained below, defendant’s motion for summary judgment [Doc.

28] will be GRANTED, and this case will be DISMISSED.

I. Background

This is a products liability action. On January 11, 2024, plaintiff sustained severe

injuries, primarily to his hands and face, while opening the gas cap of a portable generator

running in the back of his work vehicle [Doc. 1 ¶¶ 16, 17]. Plaintiff brings claims against

defendant, which designed, manufactured, and sold the generator, alleging that the

generator “overheated and pressurized causing fuel to expel and ignite when [p]laintiff

opened the gas cap” [Id. ¶¶ 14, 16, 17; Doc. 7 ¶ 14].

A. Plaintiff’s Accident

In May 2023, plaintiff began work as a project manager at CFI Foam, Inc. (“CFI”),

a company that injects cinder block walls with expandable foam [Doc. 28-1, p. 2].

Plaintiff’s training involved learning how to mix a resin compound with a catalyst to create

the foam insulation and how to spray the foam [Id. at 4]. Plaintiff often worked with his

brother, Forrest Elwood, who was also employed by CFI [Id. at 9–10]. Plaintiff traveled

each week to inject spray foam into grocery store exterior concrete blocks [Id. at 5–6].

On January 11, 2024, plaintiff was transporting a generator manufactured by

defendant in a trailer attached to the back of his work truck [Doc. 28-1; Doc. 27-2, p. 3].

Plaintiff alleges that CFI owned the generator [Doc. 1 ¶ 15], which was using separate

tanks to power two submersible heaters, warming the resin and catalyst to create the spray

foam [Doc. 27-1, p. 10; Doc. 27-2, p. 3]. On that day, plaintiff and his brother worked at

a grocery store in Virginia, until approximately 6:15 p.m. [Doc. 28-1, pp. 7–8]. They

arrived at a hotel between approximately 7:00 p.m. and 7:30 p.m. [Id. at 12]. Plaintiff’s

brother filled the gas tank in the generator and started it before they retired to their separate

rooms for the night [Id. at 14, 18–20].

Later that evening, plaintiff stepped outside to examine the generator because he

heard it “bogging down” while he was in his hotel room [Id. at 13]. Without turning off

the generator, plaintiff untwisted the gas cap, and it immediately blew out of his hands and

exploded [Id. at 21–22]. The generator caught fire, and plaintiff sustained second and

third-degree burns to his hands and face [Id. at 21–23; Doc. 28-2, p. 7]. On December 30,

2024, plaintiff filed this action alleging strict products liability, negligence, breach of

implied warranties, and punitive damages [See Doc. 1].

B. Expert Witness Disclosures

Pursuant to Federal Rule of Civil Procedure 26(a)(2)(B), plaintiff alleges that it

disclosed its expert witnesses, including Dale J. Cagwin, a mechanical engineer, on

September 18, 2025 [Doc. 34, pp. 2–3; Doc. 35-1].1 Defendant alleges that it did not

receive this notice by the expert disclosure deadline [Doc. 35, p. 2].

In addition, defendant alleges that it disclosed two expert opinions in accordance

with the Court’s Scheduling Order: David H. Smith, a certified fire inspector, and Daniel

Adams, a professional engineer, certified fire and explosion investigator, and certified fire

investigation instructor [See Doc. 27; Doc. 29, p. 13]. In his report, Adams reviewed the

owner’s manual provided with the generator at issue to assess its compliance with codes

and industry standard safety warnings, including standards governed by the Code of

Federal Regulations, the Consumer Product Safety Commission, the Occupational Safety

and Health Administration, the National Fire Protection Association, and the American

National Standards Institute [Doc. 27-2, pp. 4–7]. Adams ultimately found that the safety

content in the owner’s manual met legal requirements and industry standards [Id. at 7].

1 United States Magistrate Judge Debra C. Poplin has granted defendant’s motion to

exclude the expert testimony of Cagwin based on plaintiff’s failure to comply with the disclosure

requirements of Federal Rule of Civil Procedure 26 as well as an actionable sanction pursuant to

Rule 37 [Doc. 41]. Accordingly, the Court will not consider that expert witness evidence in the

context of this motion for summary judgment.

In his report, Smith analyzed, among other things, the origin and cause of the fire,

the progression of the fire, and the use of the generator involved [Doc. 27-1, p. 4].

Ultimately, Smith concluded that: (1) the fire started in the enclosed trailer; (2) the

generator was altered prior to the fire occurring; (3) the generator was in a confined and

closed environment; (4) the generator was mounted in an unsafe manner in the immediate

proximity of combustibles and ignitable liquids; (5) the generator was used in a manner

inconsistent with the owner’s manual; (6) the “[o]pening of the gas cap while the generator

is operating was a misuse of the generator”; (7) a forensic examination could not be

conducted because the remains of the trailer, its contents, and the generator were not

retained; and (8) no expert opinions were provided by plaintiff [Id. at 24–25].

On October 9, 2025, the Court granted Hanovers’s motion to intervene [Doc. 25].

Hanover filed a complaint on October 10, 2025, incorporating by reference the allegations

contained in plaintiff’s complaint against defendant [Doc. 26]. Defendant has now moved

for summary judgment [Doc. 28].

II. Standard of Review

Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall

grant summary judgment 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.” In ruling on a

motion for summary judgment, the court must draw all reasonable inferences in favor of

the nonmoving party. McLean v. 988011 Ontario Ltd., 224 F.3d 797, 800 (6th Cir. 2000).

As such, the moving party has the initial burden of informing the court of the basis for its

motion and identifying portions of the record that demonstrate the absence of a genuine

dispute over material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The

moving party can satisfy this burden by presenting affirmative evidence that negates an

element of the nonmoving party’s claim or by demonstrating an absence of evidence to

support the nonmoving party’s case. Id.

To successfully oppose a motion for summary judgment, “[t]he non-moving

party . . . must present sufficient evidence from which a jury could reasonably find for

him.” Jones v. Muskegon Cnty., 625 F.3d 935, 940 (6th Cir. 2010) (citing Anderson v.

Liberty Lobby, Inc., 447 U.S. 242, 252 (1986)). A party opposing a Rule 56 motion has

the duty to affirmatively present and point out specific evidence in the record sufficient to

justify a jury decision in her favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal Corp. v.

Sponseller, 889 F.2d 108, 111 (6th Cir. 1989); Anderson, 477 U.S. at 256. The nonmoving

party cannot simply rely on the mere allegations or denials contained in the party’s

pleadings. Anderson, 477 U.S. at 256. And merely alleging that a factual dispute exists

cannot defeat a properly supported motion for summary judgment. Id. Further, “[o]nly

disputes over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Factual disputes that are irrelevant or

unnecessary will not be counted.” Id. at 248; accord McLemore v. Gumucio, 619 F. Supp.

3d 816, 823 (M.D. Tenn. 2021).

III. Analysis

In support of its motion for summary judgment, defendant primarily argues that

plaintiff cannot establish that the generator was unreasonably dangerous or defective

because plaintiff has not provided expert testimony as required under the prudent

manufacturer test [Doc. 29, pp. 11–15].

A. Products Liability Claims

Products liability suits in Tennessee are governed by the TPLA, which provides that

“[a] manufacturer or seller of a product shall not be liable for any injury to a

person . . . caused by the product unless the product is determined to be in a defective

condition or unreasonably dangerous at the time it left the control of the manufacturer or

seller.” Tenn. Code Ann. § 29-28-105(a).

In this case, plaintiff brings claims of strict products liability, negligence, and breach

of warranties, which are governed by the TPLA regardless of the theory of recovery [See

Doc. 1]. See Coffman v. Armstrong, Int’l Inc., 615 S.W.3d 888, 895 (Tenn. 2021) (“[T]he

TPLA superseded common law claims for personal injuries stemming from alleged defects

in products or failures to warn of the dangers associated with a product.”); see also

Strayhorn v. Wyeth Pharm., Inc., 882 F. Supp. 2d 1020, 1028 (W.D. Tenn. 2012) (finding

that the TPLA’s definition of “product liability action” was “cast so expansively as to cover

claims related to a defective product under legal theories of many kinds, whether sounding

in negligence, misrepresentation, or breach of warranty”).

To establish a prima facie products liability case under the TPLA, “the plaintiff must

show: (1) the product was defective and/or unreasonably dangerous, (2) the defect existed

at the time the product left the manufacturer’s control, and (3) the plaintiff’s injury was

proximately caused by the defective product.” Greene v. LEDVANCE LLC, No. 3:21-CV-

256, 2024 WL 1319712, at *14 (E.D. Tenn. 2024) (quoting Sigler v. Am. Honda Motor

Co., 532 F.3d 469, 483 (6th Cir. 2008)).

1. Defective and/or Unreasonably Dangerous

Turning to the first requirement under the TPLA, “defective conditions” and

“unreasonably dangerous conditions” are alternatives, so a plaintiff may rely on either or

both. Merrell v. Summit Treestands, LLC, 680 F. Supp. 3d 907, 915 (E.D. Tenn. 2023)

(citation omitted). “[A] plaintiff may demonstrate that a product was defective or

unreasonably dangerous through direct evidence, circumstantial evidence, or a

combination.” Greene, 2024 WL 1319712, at *14 (quoting Sigler, 532 F.3d at 483).

a. Unreasonably Dangerous

Defendant first argues that plaintiff cannot prove that the generator was

unreasonably dangerous under the prudent manufacturer test because he did not disclose

expert opinions prior to the deadline on September 17, 2025 [Doc. 29, pp. 11–13].

Defendant submits that the prudent manufacturer test applies in this case because the

generator at issue is “a complex piece of machinery” [Id. at 11]. In support, defendant

relies heavily on Adams’ expert report, which explains the process by which the generator

powers appliances and devices [Id.; Doc. 28-3]. Moreover, defendant argues that the only

alleged defect by plaintiff is that the generator “overheated and pressurized,” which

concerns “technical design details, engineering choices, flammability issues, fire hazards[,]

or failure to properly warn issues” [Doc. 29, p. 12]. Defendant asserts that these issues

cannot be examined based on the everyday experience of ordinary consumers, making the

generator more complex than a can opener or a coffee pot [Id.].

In response, plaintiff agrees that the prudent manufacturer test applies, and he relies

on his expert disclosure of Cagwin [Doc. 34, pp. 2–3].2

Hanover also responded to defendant’s motion for summary judgment, arguing that

the consumer expectation test applies because the generator is not so complex such that an

ordinary consumer would have no reasonable expectation of its safe operation [Doc. 32,

pp. 2–3]. In particular, Hanover submits that a person who often works with generators

would reasonably expect the engine and turbine not to catch on fire when the gas cap is

removed during operation [Id. at 3–4]. Hanover also maintains that defendant’s motion for

summary judgment is premature because the upcoming depositions of defendant’s

representatives could also inform whether the product was dangerous or defective [Id.].3

Hanover notes that it cannot present facts essential to justify its position because it was

unable to participate in significant discovery prior to its inclusion in the action, and it

attaches a declaration in support [Id. at 4–5; Doc. 32-1].

In response, defendant states that neither plaintiff nor Hanover have attempted to

disclose expert witnesses or requested or scheduled depositions [Doc. 33, p. 2]. Moreover,

defendant states that Hanover has not offered any factual, legal, or expert support for its

position that the consumer expectation test applies, yet defendant has provided expert proof

showing how the generator is complex [Id. at 2–3]. In addition, defendant responds that

2 As noted previously, Judge Poplin has already entered an order excluding plaintiff’s

expert witness testimony [Doc. 41].

3 Hanover further argues that defendant’s motion for summary judgment is premature

because the Court has not entered an order excluding plaintiff’s expert witness testimony [Doc.

32, p. 1]. However, the Court finds that this argument is now moot since the Court has entered an

order excluding Cagwin’s testimony [Doc. 41].

Hanover has not offered any rebuttal evidence to show that there was something wrong

with the generator that caused plaintiff’s injuries [Id. at 3]. Lastly, defendant contends that

Hanover delayed moving to intervene until mid-2025, months after this action was filed

[Id. at 4]. Defendant argues that Hanover has not served any formal or informal discovery,

and it has the owner’s manual because it was attached to defendant’s motion for summary

judgment [Id.].

Under the TPLA, a product is “unreasonably dangerous” if it is:

dangerous to an extent beyond that which would be contemplated by the

ordinary consumer who purchases it, with the ordinary knowledge common

to the community as to its characteristics, or that the product because of its

dangerous condition would not be put on the market by a reasonably prudent

manufacturer or seller, assuming that the manufacturer or seller knew of its

dangerous condition.

Tenn. Code Ann. § 29-28-102(8).

“Tennessee law provides two tests for determining whether a product is

unreasonably dangerous” — the “consumer expectation test” and the “prudent

manufacturer test.” Greene, 2024 WL 1319712, at *21 (quotation omitted). “The tests

‘are not exclusive of one another and therefore either one or both of [them] are applicable

to cases where the product is alleged to be unreasonably dangerous.’” Id. (quoting Jackson

v. Gen. Motors Corp., 60 S.W.3d 800, 806 (Tenn. 2001)).

“The consumer expectation test assesses ‘whether the product’s condition poses a

danger beyond that expected by an ordinary consumer with reasonable knowledge.’” Id.

(quoting Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 750 (Tenn. 2015)).

Under the consumer expectation test, “a product is not unreasonably dangerous if the

ordinary consumer would appreciate the condition of the product and the risk of injury.”

Id. (quoting Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527, 530 (Tenn. 1996)).

“Under this test, ‘[t]he manufacturer or seller’s conduct, knowledge, or intention is

irrelevant. What is determinative is what an ordinary purchaser would have expected.’”

Hill v. Century Arms, Inc., 760 F. Supp. 3d 576, 760 (E.D. Tenn. 2024) (quoting Ray ex

rel. Holman, 925 S.W.2d at 531). “Obviously, this test can only be applied to products

about which an ordinary consumer would have knowledge.” Id. (quoting Ray ex rel.

Holman, 925 S.W.2d at 531). “For example, ordinary consumers would have a basis for

expectations about the safety of a can opener or coffee pot, but, perhaps, not about the

safety of a fuel-injection engine or an air bag.” Id. (quoting Ray ex rel. Holman, 925

S.W.2d at 531).

Therefore, the consumer expectation test may not be used to “establish[] the

unreasonable dangerousness of a complex product about which an ordinary consumer has

no reasonable expectation.” Id. (quoting Brown v. Raymond Corp., 432 F.3d 640, 644 (6th

Cir. 2005)) (internal quotation marks omitted). The consumer expectation test is, “by

definition, buyer oriented[.]” Maness v. Boston Sci., 751 F. Supp. 2d 962, 968 (E.D. Tenn.

2010) (quoting Johnson v. Manitowoc Boom Trucks, Inc., 484 F.3d 426, 428−29 (6th Cir.

2007)). Because the test requires a jury to “employ its own sense of whether the product

meets ordinary expectations,” expert testimony is not required. Bradley v. Ameristep, Inc.,

800 F.3d 205, 210−11 (6th Cir. 2015) (quoting Jackson, 60 S.W.3d at 805−06).

On the other hand, the “seller oriented” prudent manufacturer test, Maness, 751

F. Supp. 2d at 968 (quoting Johnson, 484 F.3d at 428−29), “assesses whether, given the

imputed knowledge of the condition of the product, a prudent manufacturer would place

such a product into the stream of commerce.” Tatham, 473 S.W.3d at 750 (citing Ray, 925

S.W.2d at 530). The prudent manufacturer test “employs a risk-utility balancing of various

factors and . . . requires expert testimony with respect to the prudence of a defendant’s

decision to market the product.” Kines v. Ford Motor Co., 558 F. Supp. 3d 614, 628 (W.D.

Tenn. 2021) (citations omitted). The Western District of Tennessee summarized case law

on this issue as follows:

Courts interpreting Tennessee law have concluded that application of the

consumer expectation test is appropriate in cases involving seatbelts,

Jackson, 60 S.W.3d at 804–05 (“[a] seat belt is a familiar product whose

basic function is well understood by the general population”); tires, Tatham,

473 S.W.3d at 751 (a tire is not “complex” for purposes of applying the

consumer expectation test, despite the complexity of the manufacturing

process, because the “general driving populace understands the basic

function and purpose of a tire”); airbags, Sigler, 532 F.3d at 485–86 (an

airbag is a familiar product and consumers and manufacturers expected it to

deploy in the type of high speed frontal crash alleged by plaintiff); and ATVs,

Whirley v. Kawasaki Motors Corp., USA, No. 1:04cv1145 T/An, 2007 WL

9706819, at **8–9 (W.D. Tenn. Feb. 21, 2007) (the consumer popularity of

ATVs, along with their relatively simple design involving four wheels,

suspension, disc brakes, and a wide wheel base, provide sufficient familiarity

to give the ordinary consumer a reasonable expectation about ATV safety),

but not complex tools, Coffey v. Dowley Mfg., Inc., 89 F. App’x 927, 929–30

(6th Cir. 2003) (a novel automotive repair tool so complicated it was unlikely

even the average auto mechanic would have a reasonable expectation of its

safety without training should not be evaluated under the consumer

expectation test); car radiators, Simpson v. O'Reilly Auto. Stores, Inc., No.

2:13-cv-2684-SHLcgc, 2014 WL 11514969, at *6 (W.D. Tenn. Dec. 30,

2014) (consumer expectation test inapplicable because, despite their

commonness, “ordinary consumers do not have the sort of familiarity with

radiators that would engender expectations as to how they would perform”);

medical bronchoscopes, Young v. Olympus Am., Inc., No. 07-2547-STA,

2012 WL 252645, at **5–6 (W.D. Tenn. Jan. 26, 2012) (consumer

expectation test inapplicable because the ordinary consumer, lacking

knowledge that proper practice protocols for bronchoscope at issue required

cleaning and flushing with disinfectant between patients to prevent spread of

infection, would not have minimum safety expectations with respect to the

product); metal restraint rods on a sophisticated amusement park ride,

Alexander v. Zamperla, No. E2009-01049-COA-R3-CV, 2010 WL 3385141,

at **2, 7 (Tenn. Ct. App. Aug. 27, 2010) (finding prudent manufacturer test

more appropriate); industrial forklifts, Brown v. Raymond Corp., 432 F.3d

640, 642, 644–45 (6th Cir. 2005) (in products liability suit involving the

wheel well of a co-worker's industrial forklift's entry into the operator

compartment of plaintiff's forklift, the prudent manufacturer test was

“precisely the type of ‘situation’ in which the ‘ordinary consumer’ would not

have ‘an expectation regarding the safety of the product’ ”); and boom truck

cranes, Johnson v. Manitowoc Boom Trucks, Inc., 406 F. Supp. 2d 852,

857–58 (M.D. Tenn. 2005) (the prudent manufacturer test applied, as “the

appropriate design of a boom truck crane and the safety features of such a

crane are not within the ‘common knowledge of laymen’”).

Hill, 760 F. Supp. 3d at 590–91 (quoting Kines, 558 F. Supp. 3d at 628–29 (emphasis

added)).

Here, plaintiff and defendant agree that the prudent manufacturer test applies, while

Hanover argues that the consumer expectation test applies [See Doc. 29, pp. 11–13; Doc.

32, pp. 2–4; Doc. 34, p. 7]. To determine which test governs in this case, the Court must

examine whether an ordinary consumer has sufficient familiarity with a portable generator

to form a reasonable expectation as to its safety. See Brown, 432 F.3d at 644.

The record shows, via Adams’ expert report, that the generator at issue converts

“fuel into electrical power using an internal combustion engine and an alternator” [Doc.

27-2, p. 3]. The report further states that “[t]he engine produces mechanical rotational

energy, which is used to turn a rotor inside a stationary stator” [Id.]. It notes that this action

creates “an electric current by changing the magnetic field around coils of wire, a process

known as magnetic induction” [Id.]. Lastly, the report states that electricity is regulated by

a voltage regulator to provide stable current through the generator outlets for use by

appliances and devices [Id.]. Although a generator is not necessarily as complex as a boom

truck crane or a forklift, the Court finds that the ordinary consumer generally does not have

expectations regarding the characteristics and performance of the innerworkings of

portable generators as explained by Adams’ report. See Brown, 432 F.3d at 644–45

(explaining that an ordinary consumer does not have expectations regarding a forklift); see

also Johnson, 406 F. Supp. 2d at 857–58 (finding that the ordinary consumer does not have

expectations concerning the design of boom truck cranes). Thus, unlike a can opener or a

coffee pot, the generator at issue is complex, making it more like a fuel-injection engine or

an air bag. See Ray ex rel. Holman, 925 S.W.2d at 531.

Moreover, Hanover has not provided any expert testimony or other evidence in

support of its argument that the consumer expectation test applies [See Doc. 32]. Thus,

Hanover has not affirmatively presented and pointed out specific evidence in the record

sufficient to justify a jury decision in its favor. See Fed. R. Civ. P. 56(c)(1); InterRoyal

Corp., 889 F.2d at 111; Anderson, 477 U.S. at 256. Despite Hanover’s argument that

upcoming depositions of defendant’s representatives could inform whether the generator

was dangerous or defective, defendant represents that, as of October 31, 2025, no

depositions have been requested or scheduled by plaintiff or Hanover [Id. at 3; Doc. 33, p.

2]. Nevertheless, “[i]t is not enough to respond to a summary judgment motion by merely

asserting that future evidence will raise issues of material fact.” Williams v. Ford Motor

Co., No. 83-1225, 1986 WL 110681, at *3 (W.D. Tenn. Feb. 12, 1986) (citations omitted).

Additionally, Hanover’s argument that it cannot present facts to justify its position

is unpersuasive given that it waited nearly six months after the complaint was filed to move

to intervene, and defendant represented that Hanover has not served any formal or informal

discovery for information [See Docs. 1, 18, 24; Doc. 22, p. 4]. It also appears that Hanover

has at least some of the information it claims to need since defendant attached the owner’s

manual for the generator to its motion for summary judgment [See Doc. 28-3, pp. 70–95;

Doc. 32-1, p. 2].

Thus, given the complexity of the generator at issue, the Court finds that the prudent

manufacturer test is the appropriate standard in this case. As a result, plaintiff must offer

competent and admissible expert testimony “with respect to the prudence of a defendant’s

decision to market the product.” Kines, 558 F. Supp. 3d at 628 (citations omitted). Here,

Judge Poplin ruled that plaintiff’s expert report of Cagwin violates Rule 26, and she

excluded his expert testimony under Rule 37 [Doc. 41]. Plaintiff has not disclosed another

expert witness who can establish that the generator was unreasonably dangerous pursuant

to the prudent manufacturer test [See Doc. 36-1]. Therefore, plaintiff has not “present[ed]

sufficient evidence from which a jury could reasonably find for him.” See Jones, 625 F.3d

at 940 (citing Anderson, 447 U.S. at 252); see also Coffey, 89 F. App’x at 929–32

(recognizing that “expert testimony is essential to a claim based on the prudent

manufacturer test” and affirming a grant of summary judgment where the district court

excluded expert testimony presented by a plaintiff). Without Cagwin’s testimony, no

reasonable jury could conclude that the generator was unreasonably dangerous.

b. Defective Condition

Defendant also argues that plaintiff cannot establish that the generator was defective

because plaintiff cannot show that his injuries are traceable to a specific construction or

design error [Doc. 29, pp. 14–15]. Defendant also maintains that plaintiff failed to follow

basic safety procedures, and it warned consumers that opening the gas cap while the

generator was running is misuse of the generator [Id. at 15].

Plaintiff counters that misuse of a product is a question of fact for the jury to decide,

and plaintiff’s use should have been foreseeable by defendant [Doc. 34, p. 4].

In reply, defendant contends that plaintiff has not properly disclosed an expert

witness that can show that the generator was defective [Doc. 35, p. 6].

Hanover responds that there is a dispute as to whether plaintiff’s own actions

contributed or caused his injuries [Doc. 32, p. 4].

Defendant replies that Hanover has not offered any rebuttal evidence to show that

something was wrong with the generator that caused plaintiff’s injuries [Doc. 33, p. 3].

Under the TPLA, a product in a “[d]efective condition” means “a condition of a

product that renders it unsafe for normal or anticipatable handling and consumption[.]”

Tenn. Code Ann. § 29-28-102(2). “The mere fact that an injury or damage occurred is not

proof that the product is defective.” Langford v. Gatlinburg Real Est. & Rental, Inc., 499

F. Supp. 2d 1042, 1051 (E.D. Tenn. 2007) (citing Coffey, 187 F. Supp. 2d at 967). Rather,

to establish a defective condition, a plaintiff must identify a “specific error in construction

or design of the [product].” Fulton v. Pfizer Hosp. Prods. Grp., Inc., 872 S.W.2d 908, 912

(Tenn. Ct. App. 1993) (quoting Browder v. Pettigrew, 541 S.W.2d 402, 404 (Tenn. 1976)).

“[F]actors to consider in assessing a product’s defectiveness include technology,

knowledge, customary designs, etc., of similar products at the time of manufacture” as well

as “consumer knowledge about the risks inherent in the use of a product[.]” Silver v. Nat’l

Presto Indus., Inc., 884 F.2d 1393, 1989 WL 106290 (Table), at *4 (6th Cir. Sept. 15, 1989)

(citations omitted). “It is not required that [a product’s] design be perfect, or render the

product accident proof or incapable of causing injury.” Curtis v. Universal Match Corp.,

Inc., 778 F. Supp. 1421, 1430 (E.D. Tenn. 1991).

Here, plaintiff has not introduced any evidence from which a reasonable jury could

find that the generator was defective, such as proof regarding available technology,

customary designs, or evidence of similar products at the time that the generator was

manufactured [See Doc. 34]. See Silver, 1989 WL 106290, at *4; see also Jones, 625 F.3d

at 940 (citing Anderson, 447 U.S. at 252) (“The non-moving party . . . must present

sufficient evidence from which a jury could reasonably find for him.”). Considering Judge

Poplin’s ruling excluding Cagwin’s testimony [Doc. 41], plaintiff has also failed to

properly disclose an expert to render opinions on those topics, and the time for such

disclosures has passed. Conversely, plaintiff has submitted evidence that the safety alerts

in the generator owner’s manual met industry standards [Doc. 27-2, p. 7]. Based on the

record, no reasonable jury could conclude that the generator was defective. Thus, the Court

need not reach the issue of whether plaintiff misused the generator.

Since plaintiff cannot establish that the generator was unreasonably dangerous or

defective, defendant’s motion for summary judgment [Doc. 28] on plaintiff’s products

liability claims, including theories of strict liability, negligence, and breach of implied

warranties, is GRANTED.

B. Punitive Damages

Plaintiff’s only remaining claim is his punitive damages claim [Doc. 1 ¶¶ 50−58].

“[I]t is well-settled that a party is entitled to punitive damages only if it recovers actual

damages.” Bogle ex rel. Bogle v. Nighthawk Radiology Servs., LLC, No. M2014-01933-

COA-R3-CV, 2016 WL 1398931, at *12 (Tenn. Ct. App. Apr. 6, 2016); see also JWT, L.P.

v. Printers Press, Inc., No. M2001-02590-COA-R3-CV, 2002 WL 31397317, at *8 (Tenn.

Ct. App. Oct. 24, 2002). In other words, a claim for punitive damages depends on “a basis

for the recovery of compensatory damages.” Durham v. Johnson & Johnson, No.

3:20-CV-554, 2021 WL 3745730, at *5 (E.D. Tenn. Aug. 24, 2021) (quoting Beal v.

Walgreen Co., No. W2004-02925-COA-R3-CV, 2006 WL 59811, at *12 (Tenn. Ct. App.

Jan. 12, 2006)). Since plaintiff is not entitled to actual damages, defendant’s motion for

summary judgment [Doc. 28] as to the remaining claim for punitive damages is

GRANTED.

IV. Conclusion

For the reasons above, defendant’s motion for summary judgment [Doc. 28] is

GRANTED, and this case is DISMISSED. An appropriate order will follow.

IT IS SO ORDERED.

s/ Thomas A. Varlan

UNITED STATES DISTRICT JUDGE