2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 BROTHERHOOD MUTUAL Case No. 3:24-cv-00037-ART-CSD 5 INSURANCE COMPANY, ORDER 6 Plaintiff, v. 7 ASPEN PUMPS, 8 Defendant. 9 10 This case arises from a fire at Grace Community Church of Reno on 11 September 27, 2020. Plaintiff Brotherhood Insurance Company sued Defendant 12 Aspen Pumps, Inc. alleging that the fire started in a condensate pump 13 manufactured by Defendant. (ECF No. 1-1.) On May 13, 2025, the Court heard 14 oral argument on several pending motions: Plaintiff’s motion in limine to exclude 15 Defendant’s expert reports (ECF No. 35); Defendant’s motion to strike Plaintiff’s 16 reply (ECF No. 52); Plaintiff’s motion for summary judgment (ECF No. 37); and 17 Defendant’s motion for partial summary judgment (ECF No. 61). For the following 18 reasons, the Court denies all four motions. 19 I. DISCUSSION 20 A. Motion in Limine and Motion to Strike 21 During discovery, both parties disclosed expert reports to support their 22 theory of what caused the fire. Plaintiff disclosed an initial report by Michael J. 23 O’Connor, an engineer. (ECF No. 35-1.) Defendant disclosed two rebuttal reports 24 by Gerard Moulin, an engineer, and Steve Moore, a fire causation expert. (ECF 25 No. 45-1.) 26 In its motion in limine, Plaintiff argues first that Defendant’s disclosure 27 was untimely because they did not consent to service via email. (Id. at 7.) Plaintiff 28 disclosed its initial expert report by the deadline for initial expert disclosures of 1 August 23, 2024. (ECF No. 35 at 2.) Defendant disclosed its two rebuttal expert 2 reports via email on the deadline for rebuttal expert disclosures of September 27, 3 2024. (Id.) After Plaintiff raised the issue of email service, Defendant mailed those 4 reports to Plaintiff, who received them on October 3, 2024. (ECF No. 45 at 3.) As 5 Plaintiff conceded at oral argument, the issue of email service was previously 6 addressed by the Magistrate Judge, who noted that the parties had a prior 7 practice of conducting discovery via email. (ECF No. 60.) The Court adopts the 8 same analysis here and finds that Defendant’s disclosure was timely. 9 Plaintiff next argues that Defendant’s expert reports should have been 10 disclosed as initial reports rather than rebuttal reports. (ECF No. 35 at 8–10.) 11 Plaintiff argues that Mr. Moulin’s report improperly advances “independent 12 theories of causation” and that Mr. Moore’s report, because it relies in part on 13 Mr. Moulin’s report, also improperly puts forth alternative theories of causation. 14 (Id. at 9–10.) Defendant responds that both reports are proper rebuttal reports 15 because contradict, rebut, and discuss the deficiencies in Mr. O’Connor’s report. 16 (ECF No. 45 at 10–12.) 17 Rebuttal expert opinions are proper when they directly address and refute 18 the affirmative expert opinions on the same subject matter. Baker v. SeaWorld 19 Entertainment, Inc., 423 F. Supp. 3d 878, 896 (S.D. Cal. 2019); see also F.R.C.P. 20 26(a)(2)(D)(ii). Rebuttal reports may respond to new unforeseen facts brought out 21 in the other side’s case but cannot be used to advance new arguments or new 22 evidence. Id. “Rebuttal testimony is proper as long as it addresses the same 23 subject matter that the initial experts address.” Id. (internal quotation marks and 24 citation omitted). However, “strict adherence to a rule that would require a 25 rebuttal expert to rely solely on material used by an initial, opposing expert is 26 inadvisable.” Freteluco v. Smith’s Food & Drug Centers, Inc., 336 F.R.D. 198, 204 27 (D. Nev. 2020) (internal quotation marks and citation omitted). 28 Plaintiff’s arguments that Defendant’s reports are improper rebuttal 1 reports are unavailing. Plaintiff’s expert report, by Mr. O’Connor, describes site 2 and laboratory observations and concludes that the fire started in the condensate 3 pump. (ECF No. 35-1 at 5.) Mr. Moulin’s rebuttal report analyzes Mr. O’Connor’s 4 methodology and conclusions and provides his opinion that the condensate 5 pump was not the cause of the fire. (ECF No. 45-1 at 9.) Mr. Moore’s report also 6 discusses deficiencies in Mr. O’Connor’s methodology, concluding that Mr. 7 O’Connor’s “conclusions are replete with expectation bias and confirmation bias.” 8 (ECF No. 45-1 at 53.) Both reports directly refute and address the same subject 9 matter as Mr. O’Connor’s report. 10 Because Plaintiff’s motion fails to demonstrate that Defendant’s expert 11 reports were untimely or improper, the Court denies Plaintiff’s motion in limine 12 to exclude Defendant’s expert reports. (ECF No. 35.) That conclusion moots 13 Defendant’s motion to strike Plaintiff’s reply. (ECF No. 52.) 14 B. Plaintiff’s Motion for Summary Judgment 15 At oral argument, Plaintiff conceded that its motion for summary judgment 16 could only be successful if its motion in limine were granted. Because the Court 17 denies Plaintiff’s motion in limine, Plaintiff’s motion for summary judgment is 18 also denied. (ECF No. 37.) 19 C. Defendant’s Motion for Partial Summary Judgment 20 Defendant moves for summary judgment on Plaintiff’s manufacturing 21 defect, design defect, and failure-to-warn product liability theories. (ECF No. 61 22 at 7.) It does not seek summary judgment on Plaintiff’s other claims (negligence 23 and implied warranty of merchantability). (Id. at 2.) It seeks to narrow Plaintiff’s 24 product liability claim to an “unexpected, dangerous malfunction theory.” (Id.) 25 Plaintiff does not object to summary judgment on the failure to warn theory but 26 argues that factual issues remain which preclude summary judgment on its 27 manufacturing defect and design defect theories of liability. (ECF No. 62.) The 28 Court agrees. 1 Summary judgment is appropriate if the movant shows “there is no genuine 2 dispute as to any material fact and the movant is entitled to judgment as a matter 3 of law.” Fed. R. Civ. P. 56(a), (c). A fact is material if it “might affect the outcome 4 of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 5 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable 6 jury could return a verdict for the nonmoving party.” Id. The party seeking 7 summary judgment bears the initial burden of informing the Court of the basis 8 for its motion and identifying those portions of the record that demonstrate the 9 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 10 323 (1986). The burden then shifts to the non-moving party to set forth specific 11 facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. 12 Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The Court views 13 the evidence and reasonable inferences in the light most favorable to the non- 14 moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th 15 Cir. 2008). 16 To show strict product liability in Nevada, a plaintiff must demonstrate that 17 “(1) the product at issue was defective, (2) the defect existed at the time the 18 product left the manufacturer, and (3) the defect caused the plaintiff’s injury.” 19 Ford Motor Co. v. Trejo, 402 P.3d 649, 653 (Nev. 2017). “A plaintiff may bring a 20 strict product liability claim on the theory of defect by failure to warn, defect by 21 design, or defect by manufacturing.” Underwood v. O'Reilly Auto Parts, Inc., 699 22 F.
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2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 BROTHERHOOD MUTUAL Case No. 3:24-cv-00037-ART-CSD 5 INSURANCE COMPANY, ORDER 6 Plaintiff, v. 7 ASPEN PUMPS, 8 Defendant. 9 10 This case arises from a fire at Grace Community Church of Reno on 11 September 27, 2020. Plaintiff Brotherhood Insurance Company sued Defendant 12 Aspen Pumps, Inc. alleging that the fire started in a condensate pump 13 manufactured by Defendant. (ECF No. 1-1.) On May 13, 2025, the Court heard 14 oral argument on several pending motions: Plaintiff’s motion in limine to exclude 15 Defendant’s expert reports (ECF No. 35); Defendant’s motion to strike Plaintiff’s 16 reply (ECF No. 52); Plaintiff’s motion for summary judgment (ECF No. 37); and 17 Defendant’s motion for partial summary judgment (ECF No. 61). For the following 18 reasons, the Court denies all four motions. 19 I. DISCUSSION 20 A. Motion in Limine and Motion to Strike 21 During discovery, both parties disclosed expert reports to support their 22 theory of what caused the fire. Plaintiff disclosed an initial report by Michael J. 23 O’Connor, an engineer. (ECF No. 35-1.) Defendant disclosed two rebuttal reports 24 by Gerard Moulin, an engineer, and Steve Moore, a fire causation expert. (ECF 25 No. 45-1.) 26 In its motion in limine, Plaintiff argues first that Defendant’s disclosure 27 was untimely because they did not consent to service via email. (Id. at 7.) Plaintiff 28 disclosed its initial expert report by the deadline for initial expert disclosures of 1 August 23, 2024. (ECF No. 35 at 2.) Defendant disclosed its two rebuttal expert 2 reports via email on the deadline for rebuttal expert disclosures of September 27, 3 2024. (Id.) After Plaintiff raised the issue of email service, Defendant mailed those 4 reports to Plaintiff, who received them on October 3, 2024. (ECF No. 45 at 3.) As 5 Plaintiff conceded at oral argument, the issue of email service was previously 6 addressed by the Magistrate Judge, who noted that the parties had a prior 7 practice of conducting discovery via email. (ECF No. 60.) The Court adopts the 8 same analysis here and finds that Defendant’s disclosure was timely. 9 Plaintiff next argues that Defendant’s expert reports should have been 10 disclosed as initial reports rather than rebuttal reports. (ECF No. 35 at 8–10.) 11 Plaintiff argues that Mr. Moulin’s report improperly advances “independent 12 theories of causation” and that Mr. Moore’s report, because it relies in part on 13 Mr. Moulin’s report, also improperly puts forth alternative theories of causation. 14 (Id. at 9–10.) Defendant responds that both reports are proper rebuttal reports 15 because contradict, rebut, and discuss the deficiencies in Mr. O’Connor’s report. 16 (ECF No. 45 at 10–12.) 17 Rebuttal expert opinions are proper when they directly address and refute 18 the affirmative expert opinions on the same subject matter. Baker v. SeaWorld 19 Entertainment, Inc., 423 F. Supp. 3d 878, 896 (S.D. Cal. 2019); see also F.R.C.P. 20 26(a)(2)(D)(ii). Rebuttal reports may respond to new unforeseen facts brought out 21 in the other side’s case but cannot be used to advance new arguments or new 22 evidence. Id. “Rebuttal testimony is proper as long as it addresses the same 23 subject matter that the initial experts address.” Id. (internal quotation marks and 24 citation omitted). However, “strict adherence to a rule that would require a 25 rebuttal expert to rely solely on material used by an initial, opposing expert is 26 inadvisable.” Freteluco v. Smith’s Food & Drug Centers, Inc., 336 F.R.D. 198, 204 27 (D. Nev. 2020) (internal quotation marks and citation omitted). 28 Plaintiff’s arguments that Defendant’s reports are improper rebuttal 1 reports are unavailing. Plaintiff’s expert report, by Mr. O’Connor, describes site 2 and laboratory observations and concludes that the fire started in the condensate 3 pump. (ECF No. 35-1 at 5.) Mr. Moulin’s rebuttal report analyzes Mr. O’Connor’s 4 methodology and conclusions and provides his opinion that the condensate 5 pump was not the cause of the fire. (ECF No. 45-1 at 9.) Mr. Moore’s report also 6 discusses deficiencies in Mr. O’Connor’s methodology, concluding that Mr. 7 O’Connor’s “conclusions are replete with expectation bias and confirmation bias.” 8 (ECF No. 45-1 at 53.) Both reports directly refute and address the same subject 9 matter as Mr. O’Connor’s report. 10 Because Plaintiff’s motion fails to demonstrate that Defendant’s expert 11 reports were untimely or improper, the Court denies Plaintiff’s motion in limine 12 to exclude Defendant’s expert reports. (ECF No. 35.) That conclusion moots 13 Defendant’s motion to strike Plaintiff’s reply. (ECF No. 52.) 14 B. Plaintiff’s Motion for Summary Judgment 15 At oral argument, Plaintiff conceded that its motion for summary judgment 16 could only be successful if its motion in limine were granted. Because the Court 17 denies Plaintiff’s motion in limine, Plaintiff’s motion for summary judgment is 18 also denied. (ECF No. 37.) 19 C. Defendant’s Motion for Partial Summary Judgment 20 Defendant moves for summary judgment on Plaintiff’s manufacturing 21 defect, design defect, and failure-to-warn product liability theories. (ECF No. 61 22 at 7.) It does not seek summary judgment on Plaintiff’s other claims (negligence 23 and implied warranty of merchantability). (Id. at 2.) It seeks to narrow Plaintiff’s 24 product liability claim to an “unexpected, dangerous malfunction theory.” (Id.) 25 Plaintiff does not object to summary judgment on the failure to warn theory but 26 argues that factual issues remain which preclude summary judgment on its 27 manufacturing defect and design defect theories of liability. (ECF No. 62.) The 28 Court agrees. 1 Summary judgment is appropriate if the movant shows “there is no genuine 2 dispute as to any material fact and the movant is entitled to judgment as a matter 3 of law.” Fed. R. Civ. P. 56(a), (c). A fact is material if it “might affect the outcome 4 of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 5 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable 6 jury could return a verdict for the nonmoving party.” Id. The party seeking 7 summary judgment bears the initial burden of informing the Court of the basis 8 for its motion and identifying those portions of the record that demonstrate the 9 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 10 323 (1986). The burden then shifts to the non-moving party to set forth specific 11 facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. 12 Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The Court views 13 the evidence and reasonable inferences in the light most favorable to the non- 14 moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th 15 Cir. 2008). 16 To show strict product liability in Nevada, a plaintiff must demonstrate that 17 “(1) the product at issue was defective, (2) the defect existed at the time the 18 product left the manufacturer, and (3) the defect caused the plaintiff’s injury.” 19 Ford Motor Co. v. Trejo, 402 P.3d 649, 653 (Nev. 2017). “A plaintiff may bring a 20 strict product liability claim on the theory of defect by failure to warn, defect by 21 design, or defect by manufacturing.” Underwood v. O'Reilly Auto Parts, Inc., 699 22 F. Supp. 3d 1049, 1058 (D. Nev. 2023). In some cases, “proof of an unexpected, 23 dangerous malfunction may suffice to establish a prima facie case for the plaintiff 24 of the existence of a product defect.” Stackiewicz v. Nissan Motor Corp. in U.S.A., 25 686 P.2d 925, 928 (Nev. 1984). “The Stackiewicz rule, which is a type of burden 26 shifting mechanism, places the burden of showing a malfunctioning product was 27 not designed or manufactured defectively on the manufacturer because they, 28 rather than the consumer, are in the best position to understand and ensure the 1 || safety of the product.” Prall v. Ford Motor Co., No. 214CV001313MMDGWFEF, 2017 2 || WL 361545, at *6 (D. Nev. Jan. 24, 2017). 3 Defendant requests summary judgment on Plaintiffs design and 4 || manufacturing theories, but both of those theories are subject to the Stackiewicz 5 || rule. In requesting that the Court grant summary judgment on all theories except 6 || the “unexpected, dangerous malfunction theory,” which comes from Stackiewicz, 7 || Defendant is necessarily allowing Plaintiffs design and manufacturing theories 8 || to proceed. (ECF No. 61 at 2; see ECF No. 62 at 6.) As the court explained in Prall, 9 || the Stackiewicz rule is a method of proving manufacturing defect or design defect. 10 || The Court therefore denies Defendant’s request for summary judgment on those 11 || theories. 12 Because Plaintiff concedes that it is not advancing a failure to warn theory, 13 || the Court grants Defendant’s motion for partial summary judgment only insofar 14 || as it requests summary judgment on that theory of strict product liability. 15 II. CONCLUSION 16 The Court therefore orders that Plaintiffs motion in limine (ECF No. 35) is 17 || denied. 18 Defendant’s motion to strike (ECF No. 52) is denied as moot. 19 Plaintiffs motion for summary judgment (ECF No. 37) is denied. 20 Defendant’s motion for partial summary judgment (ECF No. 61) is granted 21 || as to the failure-to-warn theory and denied in all other respects. 22 23 DATED: May 19, 2025 24 en 25 Ares jlosent 26 ANNER TRAUM 27 UNITED STATES DISTRICT JUDGE 28