July 2012

(gabrielle.hils@dinsmore.com) who supervised this project with the support of the following publication committee members:
James Comodeca (Practice Group Chair)
Anne Harman
Anthony Sammons
David Schaefer
Kara Stewart
Marilena Walters
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I.
II.
The Kentucky Product Liability Act ..................................................................................... 5
Theories of Recovery .......................................................................................................... 6
A.
Negligence ........................................................................................................................... 7
B.
Breach of Warranty ............................................................................................................. 8
C.
Strict Liability ....................................................................................................................... 8
III.
Determining Whether a Product is Defective ..................................................................... 9
A.
Design Defects .................................................................................................................. 10
1.
Crashworthiness ........................................................................................................... 12
2.
Designed by Buyer ........................................................................................................ 12
B.
Manufacturing Defects ..................................................................................................... 13
C.
Inadequate Warnings ........................................................................................................ 13
IV.
Post-Sale Duties ................................................................................................................ 15
V.
Unavoidably Unsafe Products ........................................................................................... 16
VI.
Causation .......................................................................................................................... 16
VII.
Alternate, Enterprise, Market Share, and Concert of Action Theories of Liability ........... 17
VIII.
Successor Liability ............................................................................................................. 18
IX.
Defenses ............................................................................................................................ 18
A.
Service of Process on Foreign Corporations ..................................................................... 18
B.
Superseding Cause ............................................................................................................ 18
C.
Contributory Negligence/Fault ......................................................................................... 19
D.
Alteration by Plaintiff ........................................................................................................ 19
E.
Seat Belt Defense .............................................................................................................. 20
F.
Damage to the Product Itself ............................................................................................ 20
G.
Privity of Contract ............................................................................................................. 20
H.
Governmental Immunity ................................................................................................... 21
I.
Statutes of Limitations and Repose .................................................................................. 21
J.
Federal Preemption of State Law Claim ........................................................................... 22
K.
Common/Consumer Knowledge Doctrine ........................................................................ 23
L.
Middleman Statute ........................................................................................................... 24
X.
M.
Illegal Acts ..................................................................................................................... 24
Damages ............................................................................................................................ 24
A.
Economic Loss ................................................................................................................... 24
B.
Proof of Damages .............................................................................................................. 25
C.
Negligently Inflicted Emotional Distress ........................................................................... 25
D.
Reduction of Future Damages to Present Value .............................................................. 26
E.
Punitive Damages ............................................................................................................. 26
XI.
Special Evidentiary Concerns ............................................................................................ 29
A.
Evidence of Subsequent Remedial Measures ................................................................... 29
B.
Expert Testimony .............................................................................................................. 29
3

1.
Gatekeeping Function of Trial Court ............................................................................. 29
2.
Cross-Examination of Experts ....................................................................................... 30
C.
Prior Accidents or Claims .................................................................................................. 31
D.
Evidence of Plaintiff’s Comparative Fault ......................................................................... 31
E.
Collateral Source Rule ....................................................................................................... 32
F.
Spoliation of Evidence ....................................................................................................... 32
G.
Admissibility of Government Studies and Police Reports ................................................ 32
XII.
Jury Instructions ................................................................................................................ 33
XIII.
Contribution, Indemnity, and Apportionment of Liability ................................................ 34
XIV.
Obesity Claims ................................................................................................................... 36
XV.
Drug and Medical Device Litigation .................................................................................. 36
A.
Product Identification and Proof of Defect ...................................................................... 36
B.
Medical Monitoring .......................................................................................................... 36
C.
Privity of Contract, Breach of Warranty, and The Kentucky Consumer Protection Act ... 37
1.
Breach of Express and Implied Warranty ..................................................................... 37
2.
The Kentucky Consumer Protection Act ....................................................................... 38
D.
Learned Intermediary ....................................................................................................... 38
E.
Unavoidably Unsafe Products ........................................................................................... 39
F.
Parties Liable ..................................................................................................................... 39
APPENDIX A ................................................................................................................................... 41
APPENDIX B ................................................................................................................................... 43
4

I.
The Kentucky Product Liability Act
In 1978, the Kentucky General Assembly passed the "Product Liability Act of Kentucky,"
KRS 411.310 to 411.340 .
1
At the time it was enacted, the PLA codified established Kentucky law that a manufacturer, under whatever legal theory, is not liable for injuries following the alteration, destruction or mutilation of its product, or by its misuse which was not reasonably foreseeable.
Monsanto Co. v. Reed , 950 S.W.2d 811 (Ky. 1997).
Although the language of the PLA has a pro-defendant flavor, its significance has been greatly diminished by subsequent judicial decisions, primarily due to the introduction of comparative fault principles into Kentucky law in the 1980s. In Owens Corning Fiberglas Corp. v.
Parrish , 58 S.W.3d 467, 474 (Ky. 2001), the Kentucky Supreme Court held that the 1988 enactment of the comparative fault statute, KRS 411.182, repealed by implication the contributory negligence bar of KRS 411.320(3). In Caterpillar, Inc. v. Brock , 915 S.W.2d 751 (Ky. 1996), the Kentucky
Supreme Court held similarly that KRS 411.320(1) had been repealed by implication. Caterpillar notwithstanding, the Kentucky Supreme Court relied upon both KRS 411.320(1) and (2) in reaching its decision the following year in Monsanto, supra ..
The Caterpillar and Monsanto opinions appear to be in conflict on this issue and are difficult to reconcile. Subsequently, in Wells v. Portman Equipment Co.
, 2006 U.S. Dist. LEXIS 86312 (E.D. Ky.
2006), Judge Hood squarely held that KRS 411.320(1) “was neither negated nor overruled by” KRS
411.182. In Jarrett v. Duro-Med Industries , 2007 WL 628146 (E.D. Ky. February 26, 2007), Judge
Coffman noted that the continued validity and relevance of 411.320(1) and (2) is open to question and needs to be clarified by the Kentucky Supreme Court or General Assembly.
In
Low v. Power Tool Specialist, Inc.
, 803 F.Supp.2d 655 (E.D. Ky. 2011), Judge Thapar predicted that Kentucky state courts would hold that KRS 411.182 supersedes KRS 411.320.
Under KRS 411.310, a product is presumed, until rebutted by “a preponderance of the evidence to the contrary,” to be not defective under the following circumstances: (1) if the damage occurred more than five years after the date of sale to the first consumer, or if the damage occurred more than eight years after the date of manufacture; or (2) if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art at the time the design was prepared and the product was manufactured. The Kentucky Supreme Court has suggested, but has never actually held, that such language indicates a “shifting of the burden of proof and the creation of a jury issue.” See Owens-
Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 415 (Ky. 1998)
1
The Product Liability Act is attached as Appendix A.
5

The Kentucky Court of Appeals has held that a mere post hoc conclusion from an engineer that a different design might have prevented the plaintiff's injury is insufficient to prove a product is defective and unreasonably dangerous. As such, the testimony was insufficient to rebut the statutory presumptions and to warrant submitting the issue of strict liability to the jury . Ingersoll-
Rand Co. v. Rice , 775 S.W.2d 924, 928-29 (Ky. App. 1988).
Additionally, the Kentucky Court of Appeals held that the presumption contained in KRS
411.310(2), that a design is not defective if it conforms to generally recognized standards, may be rebutted by evidence that the product is defective; the statute does not require evidence that the design did not conform to prevailing standards or was not state of the art at that time. Murphy v.
Montgomery Elevator Co., 957 S.W.2d 297 (Ky. App. 1997). Circumstantial evidence surrounding the explosion of a spray paint can was held insufficient to overcome the presumptions found in the
PLA in Coleman v. Rust-Oleum Corp.
, 405 F.Supp.2d 806 (W.D. Ky. 2005).
II.
Theories of Recovery
In Kentucky, a product liability action includes any action brought for personal injury, death or property damage resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, advertising, packaging or labeling of any product. See KRS 411.300.
A plaintiff may bring a product liability action under the theories of strict liability, negligence, or breach of warranty. Williams v. Fulmer , 695 S.W.2d 411, 413 (Ky. 1985). Liability in tort for a defective product is not liability without fault, even in a strict liability case. The strict liability standard is no different from that of negligence, except that the seller is presumed to have knowledge of the actual condition of the product when it leaves his hands. Causes of action in both strict liability and negligence are jural rights protected under the Kentucky Constitution.
Perkins v. Northeastern Log Homes , 808 S.W.2d 809, 816 (Ky. 1991). A contractual breach of warranty action is governed by the Uniform Commercial Code, KRS 355.1-101 et. seq .
The existence of a "defect" is a prerequisite to recovery under strict liability, negligence, or implied warranty. Hurley v. Beech Aircraft Corp., 355 F.2d 517, 521 (7th Cir.), cert. denied , 385 U.S.
821 (1966). See also Tipton v. Michelin Tire Co.
, 101 F.3d 1145 (6th Cir. 1996). Under any theory, there must be proof of causation.
However, while the same evidence may prove one, two or all three theories, liability as defined under each is different and each carries different implications. See Williams , 695 S.W.2d at 414; Monsanto Co. v. Reed , 950 S.W.2d 811 (Ky. 1997); Tipton v. Michelin Tire Co., 101 F.3d
1145 (6th Cir. 1996) (in negligence claims, the focus is on the actor; in strict liability, on the condition of the product). Although submitting multiple theories to the jury is sometimes unnecessary and confusing, the Kentucky Supreme Court has held that both strict liability and negligence instructions may be warranted. Clark v. Hauck Mfg. Co.
, 910 S.W.2d 247 (Ky. 1995). See also Ingersoll-Rand Co. v. Rice , 775 S.W.2d 924, 932 (Ky. App. 1989); Tobin v. Astra Pharmaceutical
6

Prods., Inc., 993 F.2d 528, 535 (6th Cir.), cert. denied , 510 U.S. 914 (1993). A jury’s verdict finding that the product was not defective for purposes of the strict liability claim, but was defective for purposes of the negligence claim, was legally inconsistent and warranted judgment for the defendant. Tipton, 101 F.3d 1145 (6th Cir. 1996). A jury’s verdict that a forklift was defective for purposes of strict liability but not defective for purposes of negligence was legally inconsistent, and a verdict and judgment in favor of the plaintiff was consequently reversed and remanded for a new trial. Crown Equipment Corp. v. Crowe , No. 2000-CA-002333-MR (Ky. App. March 22, 2002)
(unpublished).
There is no private right of action for violations of the reporting requirements of the
Consumer Product Safety Act. In re: Yamaha Motor Corp. Rhino ATV Products Liability Litigation ,
2010 U.S. Dist. LEXIS 109418 (E.D. Ky. 2010).
A.
Negligence
A plaintiff can maintain an action under a negligence theory by proving (1) there was a duty owed by the defendant to the plaintiff; (2) there was a breach of that duty; (3) injury proximately resulted from that breach; (4) the defendant was the manufacturer or seller of the product; (5) the defendant knew or should have known at the time of distribution or sale that the product was defective and unreasonably dangerous to the foreseeable users. In C. D. Herme, Inc. v. R. C.
Tway
Co.
, 294 S.W.2d 534, 538 (Ky. 1956), the court concluded that the plaintiff made a prima facie negligence case by proving: (1) existence of a defect; (2) that the defect caused damage to him in the normal use of the product; (3) the defect existed at the time of manufacture; and (4) that the manufacturer could have discovered the defect by the use of available tests.
The injury must be foreseeable before liability can be imposed. In a case arising from the
1997 shootings at Heath High School in Paducah, the Sixth Circuit Court of Appeals held that (1) it was not foreseeable that a boy would shoot his classmates after playing video games, watching a violent movie, or viewing an internet site; and (2) the boy’s criminal actions were a superseding cause (see Section 9(b), infra ) of the victim’s deaths.
James v. Meow Media, Inc ., 300 F.3d 683 (6 th
Cir. 2002), cert. denied , 537 U.S. 1159 (2003).
Section 388 of the Restatement (Second) of Torts addresses “Chattel Known to Be
Dangerous for Intended Use.” This section limits the supplier’s liability to foreseeable users or bystanders. Thus, for Section 388 to apply, the defendant must have supplied the product for the purpose for which the plaintiff was using it when the injury occurred. Monsanto Co. v . Reed , 950
S.W.2d 811 (Ky. 1997). In Monsanto , thirty-seven plaintiffs sued the manufacturer of PCBs claiming injurious exposure. The Kentucky Supreme Court held that the dismantling of the transformers for recovery of component parts did not constitute intended or foreseeable use.
In Martin v. Cincinnati Gas and Electric Co.
, 561 F.3d 439 (6 th
Cir. 2009), the Sixth Circuit affirmed the dismissal of a secondhand (“household”) asbestos exposure suit, finding that the injury was not foreseeable to the defendants and thus no legal duty existed.
7

B.
Breach of Warranty
A breach of warranty claim is governed by the terms of the contract and the Uniform
Commercial Code (“UCC”), KRS Chapter 355. Williams v. Fulmer , 695 S.W.2d 411 (Ky. 1985).
Kentucky law requires privity for action on a contract. In Kentucky, KRS 355.2-318 governs product liability cases based on breach of warranty and restricts the class of plaintiffs to “any natural person who is in the family or household of [the] buyer or who is a guest in his home.” See Real
Estate Mktg., Inc. v.
Franz , 885 S.W.2d 921 (Ky. 1994). A plaintiff not in privity of contract with the manufacturer cannot maintain an action for breach of implied warranty against the manufacturer under Kentucky law. Compex International Co., Ltd. v. Taylor , 209 S.W.3d 462 (Ky. 2006).
Purchase of a product “as is” may bar a warranty action in accordance with KRS 355.2-316, but it does not bar an action under tort theories. Thornton v. Deere & Co.
, 2001 WL 1781892 (W.D. Ky.).
Similarly, limitations of liability contained in an express warranty do not preclude recovery in tort.
Catholic Mutual Group v. Taco, Inc.
, 2008 WL 4530716 (Ky. App. 2008).
C.
Strict Liability
Kentucky adopted Section 402A of the Restatement (Second) of Torts in Dealers Transport
Co. v. Battery Distrib. Co.
, 402 S.W.2d 441 (Ky. 1966). Section 402A defines the elements of strict liability as follows:
(A) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(1) the seller is engaged in the business of selling such a product, and
(2) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(B) The rule stated in subsection (A) applies although
(1) the seller has exercised all possible care in the preparation and sale of his product, and
(2) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
8

Therefore, in a strict liability claim, a plaintiff must prove (1) that the product was sold by the defendant (who is engaged in the business of selling such a product); (2) in a defective condition unreasonably dangerous to the user or his property; (3) which caused physical harm, and (4) reached the user or consumer without substantial change in its original condition. See also Embs v. Pepsi-Cola Bottling Co ., 528 S.W.2d 703, 706 (Ky. 1975) (extending the possible plaintiffs under
402A to include "bystanders whose injury from the defective product is reasonably foreseeable").
Strict liability does not apply to a defendant who sells a product only occasionally or as an incident to the seller’s business. Griffin Industries, Inc. v. Jones , 975 S.W.2d 100 (Ky. 1998)
(company that assembled screw conveyor for its own use and subsequently sold it not strictly liable); Restatement (Second) of Torts § 402A cmt. f.
A wholesaler, retailer, or distributor may be liable under Section 402A. Embs, 528
S.W.2d at 705. One who provides a service, as opposed to a sale, is not subject to strict liability.
McKee v. Cutter Labs., Inc.
, 866 F.2d 219, 221-22 (6th Cir. 1989) (holding that under KRS
139.125, transactions in blood, blood products, and human tissue are services and, therefore, not subject to Section 402A). However, the courts may define a "seller" loosely for purposes of strict liability. See Taylor v. General Motors Corp.
, 537 F. Supp. 949 (E.D. Ky. 1982) (defendant, designer of a flex fan, was still liable although not the manufacturer, distributor, or retailer, because the designer played a substantial role in placing the product in "the stream of commerce"). No Kentucky case has yet extended Section 402A to apply to commercial renters .
See, e.g., Burke Enters., Inc. v. Mitchell, 700 S.W.2d 789, 791 (Ky. 1985) (holding that the issue need not be addressed because case centered on "garden variety" negligence, not strict liability).
III.
Determining Whether a Product is Defective
The manufacturer is presumed to know the qualities, characteristics, and actual condition of the product at the time he sells it. The question of liability is whether the product creates such a risk of this general type of accident that an ordinarily prudent company engaged in the manufacture of the product would not have put it on the market. Montgomery Elevator Co. v.
McCullough , 676 S.W.2d 776 (Ky. 1984); Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 433
(Ky. 1980); Boon Edam, Inc. v. Saunders , 324 S.W.3d 422, 430 (Ky. App. 2010); Stevens v. Keller
Ladders , 1 Fed. Appx. 452, 2001 WL 45237 (6th Cir. 2001) (concluding that “Kentucky has not adopted the risk-benefit analysis as the rule of liability in design defect cases, but that consideration of the relative risks and benefits of a particular design may be a proper factor to be considered . . . in determining whether an ordinarily prudent manufacturer would put the product on the market.”).
Expert testimony is required in product liability cases where the issues are outside the common knowledge of an ordinary person. Williams v. Toyota Motor Sales, U.S.A., Inc.
, 2012 U.S.
Dist. LEXIS 6724 (E.D. Ky. 2012) (van door handle); Luttrell v. TAMKO Building Products, Inc.
, 2010
9

U.S. Dist. LEXIS 117835 (W.D. Ky. 2010) (shingles); Siegel v. Kentucky Farm Bureau Mutual Ins. Co.
,
2010 U.S. Dist. LEXIS 74876 (W.D. Ky. 2010) (appliance regulator); Snyder v. American Honda
Motor Co.
, 2009 WL 2342733 (E.D. Ky. 2009) (ATV tie rod); Honaker v. Innova, Inc.
, 2007 WL
1217744 (W.D. Ky. 2007) (pressure cooker); Thomas v. Manchester Tank & Equipment Co.
, 2005
WL 3673118 (W.D. Ky. 2005) (water heater).
Occasionally a court incorrectly suggests that Kentucky uses the “consumer expectations test” to determine whether a product is defective. See Edwards v. Hop Sin, Inc.
, 140 S.W.3d 13, 15
(Ky. App. 2003). Although “consumer knowledge” is clearly one relevant factor, see Nichols v.
Union Underwear, 602 S.W.2d at 433, it is not the sole test.
Considerations such as the feasibility of making a safer product, patency of the danger, warnings and instructions, subsequent maintenance and repair, misuse, and the product's inherently unsafe characteristics are all factors bearing on the principal question concerning whether the product is defective and unreasonably dangerous. Montgomery Elevator Co. v.
McCullough , 676 S.W.2d 776 (Ky. 1984); Tobin v. Astra Pharmaceutical Prods., Inc., 993 F.2d 528
(6th Cir.), cert. denied, 510 U.S. 914 (1993). A product may be in a defective condition unreasonably dangerous to the user by virtue of (a) a defective design; (b) a manufacturing defect; or (c) inadequate warnings or directions.
A.
Design Defects
Design defect liability requires proof of a feasible alternative design. Toyota Motor Corp. v.
Gregory , 136 S.W.3d 35 (Ky. 2004). See also Hopkins v. Ford Motor Co.
, 2011 U.S. Dist. LEXIS
131498 (W.D. Ky. 2011); Low v. Lowe’s Home Centers, Inc.
, 771 F.Supp.2d 739, 741 (E.D. Ky. 2011)
(miter saw); Bigham v. Daimler-Chrysler Corp.
, 462 F.Supp. 2d 766 (E.D. Ky. 2006); Busch v. Ansell
Perry, Inc.
, 2005 U.S. Dist. LEXIS 12175 (W.D. Ky. 2005) (latex gloves). A post hoc conclusion that a different design would have been feasible and would have prevented the harm is not sufficient to establish a defective design. Jones v. Hutchinson Mfg. Inc.
, 502 S.W.2d 66 (Ky. 1973); Ingersoll-
Rand Co. v. Rice , 775 S.W.2d 924, 928-29 (Ky. App. 1989). The doctrine of res ipsa loquitur was held inapplicable to an airbag nondeployment allegation in Caudill v. Toyota Motor Corp.
, 2005 WL
314 9311 (E.D. Ky. Nov. 23, 2005).
A design defect is present if something in the product's design makes it "unreasonably dangerous." Ford Motor Co. v.
Fulkerson , 812 S.W.2d 119 (Ky. 1991). Presuming the manufacturer's knowledge of the condition, the courts ask "whether the product creates such a risk of an accident of the general nature of the one in question that an ordinarily prudent company engaged in the manufacture of such a product would not have put it on the market." Montgomery
Elevator Co. v. McCullough , 676 S.W.2d 776, 780 (Ky. 1984). See also Tipton v. Michelin Tire Co .,
101 F.3d 1145 (6th Cir. 1996).
The general standard is that a manufacturer is under a duty to use reasonable care to design a product that is reasonably safe for its intended use and for other foreseeable or probable
10

uses. The manufacturer is not required to design the best possible product, or one as good as others manufacture, as long as the product is reasonably safe. Jones v. Hutchinson Mfg., Inc., 502
S.W.2d 66, 69 (Ky. 1973); Sturm, Ruger and Co., Inc. v. Bloyd , 586 S.W.2d 19 (Ky. 1979); Tipton v.
Michelin Tire Co., 101 F.3d 1145 (6th Cir. 1996); Vaughn v. Alternative Design Mfg. and Supply, Inc.
,
2008 WL 4602960 (E.D. Ky. October 16, 2008).
The Kentucky Supreme Court has emphasized the importance of risk-utility analysis in design defect cases, reflecting the process undertaken by a manufacturer in assessing the risks and benefits presented by its design and other alternative designs. Ostendorf v. Clark Equipment Co.
,
122 S.W.3d 530, 535 (Ky. 2003). See also Walker v. Philip Morris USA Inc.
, 610 F.Supp.2d 785
(W.D. Ky. 2009) (“a social utility standard risk versus benefit analysis is used to determine whether a design is unreasonably dangerous as a matter of Kentucky law”).
Use of either a similar or a different design by others is important evidence bearing on the exercise of reasonable care, but neither is conclusive. KRS 411.310(2) indicates a presumption of no defect if the design and manufacturing techniques conformed to industry standards at the time of manufacture. See Jordan v. Massey-Ferguson , Inc.
, 100 F.3d 956 (Table), 1996 WL 662874 (6th
Cir. Ky.) (unpublished) (tractor manufacturer not liable for failure to assemble tractor with rollover protective structure ("ROPS") because plaintiff did not submit substantial evidence to rebut
Kentucky's statutory presumption). See also Murphy v. Montgomery Elevator Co.
, 957 S.W.2d 297
(Ky. App. 1997) (presumption may be rebutted by evidence that product was defective, and does not require proof that design did not conform to prevailing standards). "The cases where a member of industry will be held liable for failing to do what no one in his position has ever done before will be infrequent." Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir. 1991), cert. denied , 502 U.S. 820 (1991) (applying Kentucky law). However, when common knowledge and ordinary judgment will recognize unreasonable danger, what everyone does in the industry may be defective. Jones , 502 S.W.2d at 70. On the other hand, a variation in design from industry standards does not necessarily constitute a defect. Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197
(Ky. App. 1976). S ee also Brock v . Caterpillar, Inc., 94 F.3d 220 (6th Cir. 1996) (proof that technology existed, which, if implemented, would feasibly have avoided a dangerous condition, does not alone establish a defect) .
If using industry practice to show an alternative, feasible design, the plaintiff must focus on the designs of very similar equipment. In Brock v. Caterpillar, Inc ., 94 F.3d 220 (6th Cir. 1996), the
Sixth Circuit reversed a jury verdict for the plaintiff after ruling that a “comparison” by plaintiff’s liability expert was inadmissible. Plaintiff’s expert compared the brake design of the bulldozer in question with the brake design of a later model bulldozer that was heavier, more powerful, and more technologically advanced. The court concluded that such testimony was inadmissible under
FRE 403 because it “was analogous . . . to compar[ing] unfavorably the braking system on a 1974
Chevrolet made by General Motors with that company’s 1978 Cadillac automobile.” Brock , 94
F.3d at 225.
11

In Jarrett v. Duro-Med Industries , 2008 U.S. Dist. LEXIS 1670 (E.D. Ky. 2008) (transport chair wheel brake), and Fritz v. Campbell Hausfeld/Scott Fetzer Co.
, 2007 U.S. Dist. LEXIS 38887 (E.D. Ky.
2007) (pressure washer), Judge Coffman granted summary judgments because plaintiffs’ experts only offered alternative designs and did not assess industry standards or practices, the state of the art in the industry, similar accidents involving the same or similar products, or other factors relevant to the issue of whether the product as designed was actually defective.
1.
Crashworthiness
Kentucky courts recognize enhanced injury or “crashworthiness” claims. Toyota Motor
Corp. v. Gregory , 136 S.W.3d 35 (Ky. 2004). As set forth in Gregory , the elements of a prima facie crashworthiness claim are: (1) an alternative, safer design, practicable under the circumstances;
(2) proof of what injuries, if any, would have resulted had the alternative safer design been used; and (3) some method of establishing the extent of enhanced injuries attributable to the defective design. See also Martin v. Toyota Motor Sales U.S.A., Inc.
, 2011 U.S. Dist. LEXIS 53982 (E.D. Ky.
2011) (summary judgment granted in absence of sufficient evidence); Gray v. General Motors
Corp ., 133 F.Supp.2d 530, 535 (E.D. Ky. 2001), aff’d , 312 F.3d 240 (6 th
Cir. 2002) (directed verdict granted because plaintiff presented no evidence of safer alternative design, or that injuries would have been less severe if seatbelt had functioned properly); McCoy v. General Motors Corp., 47
F.Supp.2d 838, 840 (E.D. Ky. 1998); aff’d , 179 F.3d 396 (6 th
Cir. 1999). Ten years prior to the
Gregory decision, the Sixth Circuit correctly predicted that “use of a crashworthiness analysis does not conflict with existing Kentucky law.” O’Bryan v. Volkswagen of America , 39 F.3d 1182 (Table),
1994 WL 599450 n.6 (6 th
Cir. 1994) (unpublished).
2.
Designed by Buyer
When a product is manufactured according to plans and specifications furnished by the buyer, it is more difficult to hold the manufacturer liable for a defective design. If the alleged defect is open and obvious, the manufacturer is not strictly liable to the user. McCabe Powers
Body Co. v. Sharp , 594 S.W.2d 592 (Ky. 1980). In McCabe , the court noted that the specifications could contain design defects which were so extraordinarily dangerous that the manufacturer should decline to produce the product or to issue warnings as to the use of the product. However, the court did not express an opinion as to a concealed defect in design produced according to plans and specifications furnished by the buyer. McCabe , 594 S.W.2d at 595. Cf .
, Garrison v.
Rohm & Haas Co., 492 F.2d 346, 353 (6th Cir. 1974) (when product designed by user, the manufacturer has a duty to test for compliance with design, but no duty to test the design for safety). But see Crawford v. Line Power Mfg. Corp.
, 165 F.3d 26 (Table), 1998 WL 681220 (6th
Cir. 1998) (unpublished) (re-manufacturer of like-new product held not liable under same principles as McCabe ).
12

B.
Manufacturing Defects
A manufacturing defect can arise when a product is not manufactured or assembled in accordance with its own specifications. Greene v. B.F. Goodrich Avionics Systems, Inc.
, 409 F.3d
784 (6 th
Cir. 2005). The manufacturer is not liable, however, if the product is delivered in a safe condition and subsequent mishandling or other causes make it harmful. Monsanto Co. v. Reed ,
950 S.W.2d 811 (Ky. 1997). See also KRS 411.320 (1) (limiting a manufacturer’s liability to only that harm occurring if the product had been used in its original, unaltered and unmodified condition);
Cox v. General Motors Corp., 514 S.W.2d 197 (Ky. 1974).
The burden of proof that the product was in a defective condition at the time it left the hands of the manufacturer is on the plaintiff. Dealers Transport Co. v. Battery Distrib. Co ., 402
S.W.2d 441 (Ky. 1966); Morrison v. Trailmobile Trailers, Inc.
, 526 S.W.2d 822 (Ky. 1975); Ford
Motor Co. v. McCamish , 559 S.W.2d 507 (Ky. App. 1977). This burden can be overcome by circumstantial evidence that reasonably infers the product is defective and negates other possible causes of product failure. Kentucky Farm Bureau v. Hitachi Home Electronics (America), Inc.
, 2009
WL 2760956 (August 26, 2009) (factual dispute as to cause of fire); Perkins v. Trailco Mfg. and Sales
Co.
, 613 S.W.2d 855 (Ky. 1981) (trailer failed on maiden voyage). When a plaintiff opened a new bottle of shampoo, poured it on her hair and was burned, the jury could conclude that the shampoo or the unsealed bottle was defective, and the trial court erred in directing a verdict for the manufacturer. Wheeler v. Andrew Jergens Co., 696 S.W.2d 326 (Ky. App. 1985). Cf. Gordon v.
Proctor & Gamble , 789 F. Supp. 1384 (W.D. Ky. 1992) (manufacturer of dental rinse not liable for injuries sustained due to plaintiff's idiosyncratic reaction to the product). A claim based on an unidentified manufacturing defect and supported only by circumstantial evidence can be submitted to the jury only if the plaintiff has eliminated all other possible causes and all other reasonable theories of liability. Siegel v. Kentucky Farm Bureau Mutual Ins. Co.
, 2010 U.S. Dist.
LEXIS 124805 (W.D. Ky. 2010).
Claims for manufacturing defects may often turn on whether the plaintiff or someone else has subsequently made a substantial change in the product. See, e.g., Pike v.
Benchmaster Mfg.
Co., 696 F.2d 38 (6th Cir. 1982) (whether lowering foot pedal of punch press was a substantial change was a jury issue); C&S Fuel Co., Inc. v. Clark Equip. Co., 552 F. Supp. 340 (E.D. Ky. 1982)
(removal of 25% of deflector plate was a substantial change, precluding liability under Section
402A).
C.
Inadequate Warnings
Adequate warnings and instructions are evidentiary considerations that go to whether the product is defective and unreasonably dangerous. An adequate warning may terminate liability as to those who receive the warning, but it has no effect on those who do not, except in extraordinary circumstances. A manufacturer has a nondelegable duty to warn the ultimate user, and that duty is not abrogated by warning the immediate purchaser. For example, a subsequent warning to a department store concerning the unsafe condition of an escalator did not terminate
13

the liability of the manufacturer. Montgomery Elevator Co. v. McCullough , 676 S.W.2d 776 (Ky.
1984).
A manufacturer must give both adequate directions for use and adequate warning of potential dangers, including the dangers resulting from foreseeable misuse of the product. An
"adequate warning" is one that will afford the user, by the exercise of reasonable care on his own part, fair and adequate notice of the possible consequences of the use, or even misuse, of the equipment . Post v. American Cleaning Equip. Corp., 437 S.W.2d 516, 522 (Ky. 1969). Such a warning must be in a form calculated to attract the user's attention. Id.
at 521.
The seller may reasonably assume that a warning will be read and heeded. See
Restatement (Second) of Torts § 402A cmt. j; Snawder v. Cohen , 749 F. Supp. 1473, 1479 (W.D. Ky.
1990) (opining that Kentucky courts would follow the presumption contained in comment j).
A product bearing such a warning and/or instructions for safe use is not defective or unreasonably dangerous. Restatement (Second) of Torts § 402A, cmt. j.; Sturm, Ruger and Co., Inc. v. Bloyd , 586 S.W.2d 19 (Ky. 1979) (warning about shortcomings of the revolver's safety feature prevented the revolver from being unreasonably dangerous, and the manufacturer was not liable to a bystander who was injured when the gun was used contrary to the instructions). S ee also,
Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197 (Ky. App. 1976).
However, although a manufacturer must warn of dangers of foreseeable product misuse, unforeseeable misuse will not cause liability. Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. 1990). In
Watters , the court held that the "Dungeons and Dragons" game manufacturer had no reason to anticipate that the game might cause a user to commit suicide. Therefore, the manufacturer had no duty to warn of such a danger. Id.
at 381-82. See also James v. Meow Media, Inc ., 300 F.3d 683
(6 th
Cir. 2002), cert. denied , 537 U.S. 1159 (2003) (video, movie and internet site creators could not anticipate that viewer would shoot his classmates).
There is no duty to warn of a known danger or obvious risk. Edwards v. Hop Sin, Inc.
, 140
S.W.3d 13, 16 (Ky. App. 2003); Hutt v. Gibson Fiber Glass Prods. Inc., 914 F.2d 790, 793 (6th Cir.
1990). Common knowledge of certain dangers will also obviate the need for a warning . See, e.g.,
Hercules Powder Co. v. Hicks , 453 S.W.2d 583, 590-91 (Ky. 1970) (holding it unreasonable to blame manufacturer for failure to warn that dynamite explodes during careless handling). Cf ., Hill v. R. J.
Reynolds Tobacco Co.
, 44 F. Supp.2d 837 (W.D. Ky. 1999) (the plaintiff’s knowledge of the danger caused by smoking cigarettes may eliminate the need for a warning from the manufacturer). Sometimes knowledge is particular to a class of purchasers or users. For example, a steel supplier has no duty to instruct or warn an experienced contractor about how to guy reinforcing steel. McWaters v. Steel Serv. Co., Inc., 597 F.2d 79 (6th Cir. 1979). S ee also Ford
Motor Co. v. McCamish , 559 S.W.2d 507 (Ky. App. 1977) (unnecessary to provide automobile mechanic with a specific torque rating or warning about the obvious danger inherent in a loose wheel cylinder bolt).
14

However, in another case the Sixth Circuit found that the trial court did not err in refusing to instruct that a tire manufacturer had no duty to warn of the danger of the tire blowing out as a result of operation while under-inflated. Leonard v. Uniroyal, Inc., 765 F.2d 560 (6th Cir. 1985).
The argument that the danger was common knowledge to professional truck drivers was not supported by competent evidence.
A component part manufacturer whose product otherwise comported with state of the art industry standards and practice at the time of manufacture cannot be held liable under a strict liability theory of failure to warn. Worldwide Equip., Inc. v. Mullins , 11 S.W.3d 50 (Ky. App. 2000)
(manufacturer of cab-chassis had no duty to warn of dangers associated with failure to attach proper underride guard on finished truck). The Mullins court applied the “component parts doctrine” and held that the manufacturer of a component part “had no duty to warn end-users of the potential dangers arising from the end-users’ failure to comply with their legal duty.” Id . at 58.
Although most "failure to warn" cases are brought under a 402A strict liability theory, a supplier may also have a duty to warn arising out of general negligence principles under Section
388 of the Restatement (Second) of Torts . However, the plaintiff must prove that the supplier knew or should have known of the dangerous condition to establish liability on a theory of negligent failure to warn. C&S Fuel, Inc. v. Clark Equip. Co.
, 552 F. Supp. 340 (E.D. Ky. 1982).
Where warnings are necessary to a safe design, a manufacturer in a strict liability case is charged with hindsight regarding the potential risks involved. Tipton v. Michelin Tire Co.
, 101 F.3d
1145 (6th Cir. 1996). However, in negligence cases, a manufacturer is not charged with hindsight in failure to warn. Id. See also, Byrd v. Proctor & Gamble Mfg. Co., 629 F. Supp. 602 (E.D. Ky.
1986).
Expert testimony is generally required in a failure to warn case. West v. KKI, LLC , 300
S.W.3d 184, 197 (Ky. App. 2008): “Absent expert testimony, a jury would have no basis for determining that the warning given by the appellee was inadequate.” Logan v. Cooper Tire &
Rubber Co.
, 2011 U.S. Dist. LEXIS 66087 (E.D. Ky. 2011) (expert testimony needed to establish warnings claim in tire case).
IV.
Post-Sale Duties
A manufacturer has a continuing post-manufacture duty to review product designs. If a manufacturer knows or should have known of a defect in design, even after the manufacture and sale of the product, the manufacturer must “make an effort to notify the purchasers.” Clark v.
Hauck Mfg. Co.
, 910 S.W.2d 247, 251 (Ky. 1995).
However, in Kentucky there is no common law duty to retrofit a product that was not defective when it was sold. Ostendorf v. Clark Equipment Co.
, 122 S.W.3d 530 (Ky. 2003). A company undertaking a voluntary retrofit campaign can be liable if it performs its campaign negligently, but only if the voluntary program induced reliance on the part of the plaintiff or other
15

person. Ostendorf , 122 S.W.2d at 537-40. In Ostendorf , the Kentucky Supreme Court declined to adopt §11 of the Restatement (Third) of Torts: Products Liability, reasoning that §11 would discourage, rather than encourage, voluntary retrofit and recall campaigns. Liability for negligent performance of a voluntary retrofit or recall campaign is instead governed by §324A of the
Restatement (Second) of Torts (1965).
V.
Unavoidably Unsafe Products
Comment k under Section 402A of the Restatement (Second) of Torts discusses
“unavoidably unsafe products” as exceptions to strict liability for design defects. A highly useful and desirable product, which is attended by a known but reasonable risk, is not unreasonably dangerous so as to be defective. McMichael v. American Red Cross , 532 S.W.2d 7, 11 (Ky. 1975).
S ee also Tobin v. Astra Pharmaceutical Prods., Inc., 993 F.2d 528, 540 (6th Cir.), cert. denied , 510
U.S. 914 (1993); Snawder v. Cohen , 749 F. Supp. 1473 (W.D. Ky. 1990).
A provider of electricity is subject to strict liability only after the electricity is sold to the customer; electricity is considered sold when it passes through the customer's meter. C.G. Bryant v. Tri-County Elec. Membership Corp., 844 F. Supp. 347, 350 (W.D. Ky. 1994). Cf ., G & K Dairy v.
Princeton Elec. Plant Bd.
, 781 F. Supp. 485 (W.D. Ky. 1991) (holding that strict liability does not apply to non-metered electricity). It has been argued that internet transmissions should be treated like electricity because they involve electrical impulses. In James v. Meow Media, Inc ., 300
F.3d 683, 701 (6 th
Cir. 2002), cert. denied , 537 U.S. 1159 (2003), however, the ideas and messages allegedly contained in internet sites were held to be insufficiently tangible to constitute “products” for purposes of strict liability.
VI.
Causation
The plaintiff has the burden to establish legal causation. While causation may be established by circumstantial evidence, the evidence must support a reasonable inference that indicates that the defect is the probable, as distinguished from a possible, cause of the harm.
Briner v. General Motors Corp.
, 401 S.W.2d 99 (Ky. 1971); Ingersoll-Rand Co. v. Rice , 775 S.W.2d
924 (Ky. App. 1988); Gentry v. General Motors Corp ., 839 S.W.2d 576 (Ky. App. 1992); Kentucky
Farm Bureau Mutual Ins. Co. v. Deere & Co., 2008 U.S. Dist. LEXIS 8856 (W.D. Ky. 2008). See also
May v. Ford Motor Co.
, 2010 U.S. Dist. LEXIS 135765 (E.D. Ky. 2010) (plaintiff must show an identifiable, unreasonably dangerous defect that probably caused the accident); Calhoun v. Honda
Motor Co., Ltd., 738 F.2d 126, 132-33 (6th Cir. 1984). This is true whether the claim is negligence, breach of warranty or strict liability. Huffman v. SS. Mary and Elizabeth Hospital , 475 S.W.2d 631
(Ky. 1972).
If the plaintiff does not have evidence that establishes such "probability," the court may grant a motion for summary judgment or direct a verdict for the defendant. See Midwestern
Volkswagen Corp. v. Ringley , 503 S.W.2d 745, 747-48 (Ky. 1973) (jury verdict for plaintiff reversed because trial testimony failed to show that "out of round" brake drum was more than just one
16

"possible" cause among other possibilities; therefore, jury verdict was based on speculation and surmise); Turpin v. Merrell Dow Pharmaceuticals, Inc ., 959 F.2d 1349 (6th Cir.), cert. denied , 506
U.S. 826 (1992) (summary judgment affirmed where evidence demonstrated only a possibility, not a probability, that Bendectin caused birth defects); O’Bryan v. Volkswagen of America , 39 F.3d
1182 (Table), 1994 WL 599450 (6th Cir. 1994) (unpublished) (court granted defendant's motion for judgment as a matter of law because plaintiff failed to show sufficient probability of causation after he was ejected during a rollover accident when the door was pulled open by log, releasing his
2-point seatbelt); Hogan v. Cooke Pontiac Co.
, 346 S.W.2d 529 (Ky. 1961) (although evidence raised “possibility” that “something was wrong” with vehicle’s brakes, plaintiffs failed to prove specific defect).
In Bailey v. North American Refractories Co.
, 95 S.W.3d 868 (Ky. App. 2001), the Kentucky
Court of Appeals held that a jury question existed as to whether the defendant’s asbestos products were a substantial factor in causing the plaintiff’s asbestos disease in light of the “fiber drift” theory advanced by plaintiff’s expert.
In a warnings case, the plaintiff must present competent evidence that additional or different warning language would have changed the plaintiff’s behavior and prevented her injuries. Stewart v. General Motors Corp.
, 222 F.Supp. 2d 845 (W.D.Ky. 2002), aff’d 2004 U.S. App.
LEXIS 13872 (6 th
Cir. 2004) (summary judgment granted and affirmed in airbag deployment case).
VII.
Alternate, Enterprise, Market Share, and Concert of Action Theories of Liability
When two separate acts combine to produce a single injury and it is impossible to determine in what proportion each contributed to the injury, the burden of proof may shift to the defendants to establish causation. Embs v. Pepsi-Cola Bottling Co., 528 S.W.2d 703 (Ky. 1975);
Denney v. Buckeye Gas Prods., Inc., 695 S.W.2d 427 (Ky. App. 1985). However, Kentucky has not adopted the alternate, enterprise, or market share liability theories. Cox v. Cooper , 510 S.W.2d
530, 534 (Ky. 1974) (rejecting the theory of alternate liability); Montgomery v. Winfield Int’l , No.
97-CA-520-MR (Ky. App. July 31, 1998) (unpublished). But see Farmer v. City of Newport , 748
S.W.2d 162, 165 (Ky. App. 1988) (implying that use of market share and enterprise liability might be appropriate in future cases).
Kentucky does recognize a "concert of action" theory. Farmer , 748 S.W.2d at 164-65;
Dawson v. Bristol Laboratories, 658 F. Supp. 1036 (W.D. Ky. 1987). Under this theory, a plaintiff may sue a group of possible tortfeasors when he is unable to identify the one who actually caused the injury. The burden is then shifted to the defendants each to prove a lack of causation. But see
C.G. Bryant v. Tri-County Elec. Membership Corp., 844 F. Supp. 347 (W.D. Ky. 1994) (granting summary judgment in favor of defendant manufacturer on grounds that evidence was insufficient to identify one manufacturer among six to be the manufacturer of transformers that allegedly caused the plaintiffs’ injuries.)
17

Under Dawson , plaintiffs must be able to demonstrate an absolute inability to identify the particular defendant whose product caused plaintiffs' injury and establish a causal relationship between the defendants and the injury-causing product by (1) identifying the injury-causing product; (2) proving that each defendant marketed and promoted a generically similar product; and (3) establishing that the act of each defendant was a substantial factor in the action of defendants to market and promote this product. Also, plaintiffs must prove that defendants acted by express or tacit agreement to market and promote the defective product. Finally, the plaintiffs must establish that each defendant in the targeted group contravened the legal standard of care.
Dawson , 658 F. Supp. at 1039-40.
In Rushing v. Flerlage Marine Co.
, 2010 U.S. Dist. LEXIS 89009 (W.D. Ky. 2010), the federal court predicted that Kentucky would not adopt the so-called “apparent manufacturer” doctrine.
VIII.
Successor Liability
In Pearson v. National Feeding Systems , 90 S.W.3d 46 (Ky. 2002), the Kentucky Supreme
Court declined to adopt the “product line” exception to the general rule of non-liability for purchasing corporations and successors-in-interest. This result was predicted in Conn v. Fales
Division of Mathewson Corp.
, 835 F.2d 145 (6 th
Cir. 1987). A purchaser of an asbestos product distributor was held to be entitled to dismissal in Parker v. Henry A. Petter Supply Co.
, 165 S.W.3d
474 (Ky. App. 2005).
IX.
Defenses
A.
Service of Process on Foreign Corporations
Service of process by direct mail through the Kentucky Secretary of State upon a Japanese corporation does not comply with the requirements of the Hague Convention. Uppendahl v.
American Honda Motor Co., Inc.
, 291 F.Supp.2d 531 (W.D. Ky. 2003).
B.
Superseding Cause
Whether something is a superseding cause, so as to relieve a defendant of liability, is a matter of law for the court to decide. House v. Kellerman , 519 S.W.2d 380 (Ky. 1974). Facts sufficient to constitute a superseding cause are those of such "'extraordinary rather than normal,' or 'highly extraordinary, nature, unforeseeable in character, as to relieve the original wrongdoer of liability to the ultimate victim." Montgomery Elevator Co. v.
McCullough , Ky., 676 S.W.2d 776, 780
(1984) (quoting House , 519 S.W.2d at 382). See also Watters v. TSR, Inc., 904 F.2d 378, 383 (6th
Cir. 1990) (boy's suicide was intervening cause of his death).
An owner's failure to maintain machinery in a safe working condition may constitute a superseding cause so as to relieve the manufacturer of liability. Ulrich v. Kasco Abrasives Co., 532
S.W.2d 197, 201 (Ky. App. 1976). See also Hercules Powder Co. v. Hicks, 453 S.W.2d 583, 591 (Ky.
18

1970) (supervisor's knowledge of danger of unexploded dynamite in high spot was the superseding cause of employee's injuries); Sturm, Ruger & Co., Inc. v. Bloyd , Ky., 586 S.W.2d 19, 22 (1979)
(failure of the gun's owner to follow adequate warnings and instructions was the superseding cause of bystander's injury).
A gun manufacturer may assume that others will obey the criminal law and is not under a duty to anticipate an unlawful assault. Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp.
1206 (E.D. Ky. 1973). Likewise, the manufacturers of a drain cleaner, Liquid Fire, “were not required to anticipate” that a girl would choose their product “as a weapon with which she would intentionally harm appellant.” Briscoe v. Amazing Products, Inc ., 23 S.W.3d 228, 230 (Ky. App.
2000). See also James v. Meow Media, Inc.
, 300 F.3d 683 (6 th
Cir. 2002), cert. denied , 537 U.S.
1159 (2003) (boy’s criminal actions were superseding cause of the deaths of plaintiffs’ children).
However, even an intervening criminal act will not relieve a defendant from liability if the criminal act is "a reasonably foreseeable consequence of the defendant's negligent act." Waldon v. Hous.
Auth. of Paducah , 854 S.W.2d 777, 779 (Ky. App. 1991). S ee also Wheeler v. Andrew Jergens Co.,
696 S.W.2d 326 (Ky. App. 1985).
C.
Contributory Negligence/Fault
In answering a certified question from the Sixth Circuit, the Kentucky Supreme Court has held that KRS 411.320(1) was repealed by implication by the subsequently-enacted comparative fault statute, KRS 411.182.
2
Caterpillar, Inc. v. Brock , 915 S.W.2d 751 (Ky. 1996); answer to certified question conformed to, Brock v. Caterpillar, Inc., 94 F.3d 220 (6th Cir. 1996). The contributory negligence bar exemplified by Reda Pump Co. v. Finck , 713 S.W.2d 818 (Ky. 1986),
Conley v. American Motors Corp.
, 769 S.W.2d 75 (Ky. App. 1989), and Pinto v. Clairol, Inc.
, 324 F.2d
608 (6 th
Cir. 1963), no longer governs product liability cases.
KRS 411.182 requires allocating fault among the parties and statutorily mandates a pure comparative negligence scheme for “all tort actions, including products liability actions.” Under
KRS 411.182 and the comparative fault principles discussed in Hilen v. Hays , 673 S.W.2d 713 (Ky.
1984), fault must be apportioned among all parties. For purposes of allocation of damages, parties are "those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement." Baker v. Webb , 883 S.W.2d 898, 900 (Ky. App. 1994). S ee also Bass v. Williams , 839 S.W.2d 559, 564 (Ky. App. 1992); Adam v. J. B. Hunt Transport, Inc.
, 130
F.3d 219 (6th Cir. 1997). Parties brought in as third-party defendants qualify as “parties in the litigation” for apportionment purposes. Baker , 883 S.W.2d at 900.
D.
Alteration by Plaintiff
KRS 411.320(2) provides that if the plaintiff performed an unauthorized alteration or modification that was a substantial cause of the occurrence that caused his injury or damage, then
2
KRS 411.182 is attached as Appendix B.
19

the defendant shall not be liable, whether or not it was at fault or the product was defective. See
Monsanto Co. v. Reed , 950 S.W.2d 811 (Ky. 1997) (transformers dismantled during salvage process were “altered and modified” per KRS 411.320(2), precluding recovery).
E.
Seat Belt Defense
In a 1987 comparative negligence case, the Supreme Court of Kentucky recognized a defendant's use of the "seat belt defense." Wemyss v. Coleman , 729 S.W.2d 174, 178-81 (Ky.
1987). If a defendant introduces evidence to show that: (1) the claimant's failure to utilize an available seat belt was contributory fault in the circumstances of the case; and (2) such contributory fault was a substantial factor in contributing to the cause or in enhancing his injuries, the defendant is entitled to have the question of contributory fault submitted to the jury under the general duty to exercise ordinary care. The jury must decide whether the plaintiff negligently failed to exercise ordinary care in the circumstances presented.
F.
Damage to the Product Itself
The Kentucky Supreme Court has held in the context of a commercial product that when the injury is to the product alone, the purchaser cannot maintain a tort claim and is left with only his contractual remedy. Giddings & Lewis, Inc. v. Industrial Risk Insurers , 348 S.W.3d 729 (Ky.
2011) .
The Giddings & Lewis decision settled the confusion caused by previous cases, including
Falcon Coal Co. v. Clark Equip. Co., 802 S.W.2d 947, 948-49 (Ky. App. 1990), and Real Estate Mktg.,
Inc v. Franz , 885 S.W.2d 921, 926 (Ky. 1994). See also section X(A) regarding the economic loss rule.
G.
Privity of Contract
To maintain an action based upon breach of warranty, a plaintiff must meet the privity requirement of KRS 355.2-318, which provides that a seller's warranty extends only to any natural person who is in the family or household of the buyer or a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods. Compex International Co.,
Ltd. v. Taylor , 209 S.W.3d 462 (Ky. 2006); Williams v. Fulmer , 695 S.W.2d 411 (Ky. 1985); Real
Estate Mktg., Inc. v. Franz , 885 S.W.2d 921 (Ky. 1994). See also Childress v. Interstate Battery
System of America, Inc.
, 2010 U.S. Dist. LEXIS 13897 (W.D. Ky. 2010) (exploding truck battery, plaintiff not in privity with manufacturer); Snawder v. Cohen , 749 F. Supp. 1473 (W.D. Ky. 1990)
(oral polio vaccine, plaintiff not in privity with the manufacturer); Munn v. Pfizer Hosp.
Prods.
Group, Inc., 750 F. Supp. 244 (W.D. Ky. 1990) (patient was not in privity with manufacturer of medically-implanted femoral rod and could not maintain breach of warranty action against manufacturer); Halderman v. Sanderson Forklifts Co., Ltd., 818 S.W.2d 270 (Ky. App. 1991)
(construction machinery owned by employer). Therefore, the privity requirement of KRS 355.2-
318 limits the class of possible plaintiffs in a breach of warranty action to a much narrower group than in negligence and strict liability cases.
20

Privity is not necessary to maintain an action for negligent misrepresentation. Presnell
Construction Managers, Inc. v. EH Construction, LLC , 134 S.W.3d 575 (Ky. 2004) (adopting §552 of the Restatement (Second) of Torts).
H.
Governmental Immunity
When a manufacturer sells a product to the United States government, the manufacturer is immune from liability as a "government contractor" if (1) the government issued reasonably precise specifications, (2) the product conformed to the specifications, and (3) the manufacturer warned the United States about any dangers in the use of the product that were known to the manufacturer, but not to the government. Boyle v. United Technologies Corp., 487 U.S. 500, 512
(1988). When a plaintiff seeks damages under state law, the "government contractor defense” still applies and preempts state defenses. Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558
(6th Cir.), cert. denied , 510 U.S. 993 (1993).
Compliance with state specifications may extend sovereign immunity or exempt the contracting party from liability. City of Louisville v. Padgett , 457 S.W.2d 485, 488 (Ky. 1970); Rigsby v. Brighton Eng'g Co., 464 S.W.2d 279, 280-81 (Ky. 1971); McCabe Powers Body Co. v. Sharp , 594
S.W.2d 592, 594 (Ky. 1980).
I.
Statutes of Limitations and Repose
KRS 413.140 provides a one-year statute of limitations for personal injury. The two-year statute of limitations under the no-fault act applies to products liability cases involving automobiles. Worldwide Equipment, Inc. v. Mullins , 11 S.W.3d 50, 59 (Ky. App. 1999). Wrongful death actions must be commenced by the personal representative of the estate within two years of the date of death. Conner v. George W. Whitesides Co.
, 834 S.W.2d 652 (Ky. 1992). KRS
413.120 provides a five-year statute of limitations for property damage. However, KRS 355.2-725 contains a four-year statute of limitations for breach of express or implied warranties. In Williams v. Fulmer , 695 S.W.2d 411 (Ky. 1985), the court held that the four-year statute of limitations applied to a personal injury claim based upon the theory of breach of implied warranty. See also
Nucor Corp. v. General Elec. Co ., 812 S.W.2d 136, 145 (Ky. 1991).
The Kentucky General Assembly has attempted to pass certain statutes of repose for some products liability actions; however, such statutes have been held unconstitutional in Kentucky. See
Perkins v. Northeastern Log Homes , 808 S.W.2d 809 (Ky. 1991) (holding that KRS 413.135, a statute of repose for products liability actions against builders, violated Sections 14, 54, 59 and 241 of the
Kentucky Constitution). For this reason, defendants with potential statute of repose defenses should consider seeking the application of another state’s substantive law. See Rutherford v.
Goodyear Tire and Rubber Co.
, 943 F.Supp. 789 (W.D. Ky. 1996) (summary judgment based upon
Indiana’s statute of repose granted even though vehicle assembled in Kentucky).
21

In asbestosis and latent disease cases, the statute of limitations does not begin to run until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered not only that he has been injured, but also that his injury may have been caused by the defendant's conduct. Michals v. Baxter Healthcare Corp.
, 289 F.3d 402 (6 th
Cir. 2002); Louisville Trust Co. v.
Johns-Manville Prods., 580 S.W.2d 497 (Ky. 1979); Perkins v. Northeastern Log Homes , 808 S.W.2d
809, 819 (Ky. 1991). The discovery rule does not, however, operate to toll the statute of limitations to allow an injured plaintiff to discovery the identity of the wrongdoer unless there is fraudulent concealment or a misrepresentation by the defendant of his role in causing the plaintiff’s injuries. Jeffries v. Thermo Fisher Scientific , 2009 WL 3807103 (W.D. Ky. 2009);
McGregory v. Tractel, Inc.
, 2007 WL 2229321 (W.D. Ky. July 31, 2007). See also Hazel v. General
Motors Corp.
863 F.Supp. 435 (W.D. Ky. 1994) (in side-saddle fuel tank case, statute not tolled for fraudulent concealment or other equitable reasons, as plaintiff failed to use due diligence). In general, a "John Doe" allegation does not stop the running of the statute of limitations. Richmond v.
Louisville and Jefferson Co. MSD , 572 S.W.2d 601 (Ky. App. 1978).
The discovery rule is available only when the fact of injury or offending instrumentality is not immediately evident or discoverable with the exercise of reasonable care. Fluke Corp. v.
LeMaster , 306 S.W.3d 55 (Ky. 2010). A manufacturer’s alleged failure to disclose product defects to government agencies does not excuse the plaintiff’s failure to exercise reasonable diligence to discover his cause of action, and the identity of the tortfeasor, within the applicable limitations period. Id.
at 64-67.
J.
Federal Preemption of State Law Claim
A federal statute may preempt a Kentucky common law claim either explicitly or implicitly.
In Gills v. Ford Motor Co., 829 F. Supp. 894, 898-99 (W.D. Ky. 1993), the court held that Federal
Motor Vehicle Safety Standard 208, adopted pursuant to the National Traffic and Motor Vehicle
Safety Act, preempted the plaintiff's common law claim seeking damages for the automobile manufacturer's failure to install airbags in a 1988 vehicle. See also O’Bryan v.
Volkswagen of
America , 838 F. Supp. 319 (W.D. Ky. 1992) (lawsuit alleging that passive seat belt system should have incorporated an "active" component was preempted by Section 103(d) of the National Traffic and Motor Vehicle Safety Act). In Fisher v. Ford Motor Corp., 224 F.3d 570, 572 (6th Cir. 2000), the
Sixth Circuit found that FMVSS 208 impliedly pre-empted a plaintiff’s failure to warn claims in an airbag deployment case. The same result was reached in Stewart v. General Motors Corp.
, 222
F.Supp.2d 845 (W.D. Ky. 2002), aff’d 2004 U.S. App. LEXIS 13872 (6 th
Cir. 2004). In Greene v. B.F.
Goodrich Avionics Systems, Inc.
, 409 F.3d 784 (6 th
Cir. 2005), a helicopter crash case, the court held that plaintiff’s warnings claims were impliedly preempted by the Federal Aviation Act. See also
Cummins v. BIC USA, Inc., 628 F.Supp.2d 737 (W.D. Ky. 2009) (claim against cigarette lighter manufacturer not preempted by provisions of the CPSC). Wright v. General Electric Co.
, 242
S.W.3d 674 (Ky. App. 2007) (asbestos product liability suit against locomotive manufacturer preempted by Locomotive Boiler Inspection Act).
22

In drug and medical devices cases, preemption is now governed by the United States
Supreme Court opinions in Pliva, Inc. v. Mensing , 131 S.Ct. 2567 (2011) (claim preempted); Riegel v. Medtronic, Inc.
, 552 U.S. 312 (2008) (claim preempted) and Wyeth v. Levine , 555 U.S. 555 (2009)
(preemption rejected). Cases decided by Kentucky state and federal courts have resulted in similarly mixed outcomes. In Burnett v. Pfizer, Inc., 864 F. Supp. 25 (E.D. Ky. 1994) and Enlow v. St.
Jude Medical, Inc.
, 210 F.Supp.2d 853 (W.D. Ky. 2001), the federal courts held that the Medical
Device Amendments to the Food, Drug, and Cosmetic Act preempted product liability claims to recover for injuries allegedly caused by mechanical and artificial heart valves. See also Cooley v.
Medtronic, Inc., 2012 U.S. Dist. LEXIS 55878 (E.D. Ky. 2012) (all claims against device manufacturer preempted); White v. Stryker Corp.
, 2011 U.S. Dist. LEXIS 32568 (W.D. Ky. 2011) (Trident Hip device claim held preempted); Alfred v. Mentor Corp.
, 2007 WL 708631 (W.D. Ky. March 5, 2007) (finding preemption in breast implant case); Morris v. Wyeth, Inc.
, 582 F.Supp.2d 861 (W.D. Ky. 2008)
(federal preemption applies to failure-to-warn claims involving generic drugs approved under
Abbreviated New Drug Application procedures). But see Niehoff v. Surgidev Corp.
, 950 S.W.2d 816
(Ky. 1997) (state law negligence and strict products liability claims were not preempted by the
Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act, 21 U.S.C. § 360, et seq. for an investigational device); Leslie v. Cincinnati Sub-Zero Prod., 961 S.W.2d 799 (Ky. App. 1998);
Weiss v. Fujisawa Pharmaceutical Co.
, 464 F.Supp.2d 666 (E.D. Ky. 2006) (warning claim against drug manufacturer not preempted).
Product liability claims for vaccine-related injuries are subject to the exclusive original jurisdiction of the U.S. Court of Federal Claims, the so-called “Vaccine Court.” Ferguson v. Aventis
Pasteur Inc.
, 444 F.Supp. 2d 755 (E.D. Ky. 2006).
K.
Common/Consumer Knowledge Doctrine
Kentucky’s highest court first dealt with the common/consumer knowledge doctrine in
Nichols v. Union Underwear Co., Inc.
, 602 S.W.2d 429, 432 (Ky. 1980). By rejecting comment i to § 402A, the Nichols Court rejected the concept of public knowledge as an absolute defense to a strict liability claim. The common knowledge doctrine was rejected because it placed undue weight on the public’s understanding of certain risks and prevented the fact-finder from considering factors not known to the public, such as design and safety options available to the manufacturer. Nichols, 602 S.W.2d at 432-33. Normally, a product will not be insulated from liability simply because it is patently dangerous, or because it is no more dangerous than would be anticipated by the ordinary person. See also Hill v. R. J. Reynolds Tobacco Co.
, 44 F.Supp.2d
837 (W.D. Ky. 1999) (the plaintiff’s knowledge of the danger caused by smoking cigarettes may eliminate the need for a warning from the manufacturer).
Certain everyday products, however, by their very nature and function, can involve dangers that are so commonly understood and readily observable that courts can find them not unreasonably dangerous as a matter of law, even if an alternative design is alleged. In Walker v. Philip Morris USA Inc.
, 610 F.Supp.2d 785 (W.D. Ky. 2009), a case involving a ten-fatality house fire allegedly caused by contact between a lit cigarette and an upholstered chair, Judge
23

Simpson dismissed claims against the cigarette and furniture manufacturers: “We find here, without difficulty, that cigarettes which have burning embers and couches which might be lit on fire if brought in contact with a burning cigarette, are not thereby dangerous as a matter of law.” See also Byler v. Scripto-Tokai Corp.
, 944 F.2d 904 (Table), 1991 WL 181749 (6 th
Cir. 1991)
(cigarette lighter).
L.
Middleman Statute
KRS 411.340 codifies what is commonly known as the “middleman statute.” Subject to statutory exceptions, it provides a defense for retailers and non-manufacturing distributors. In
Morgan v. Cabela’s Inc., 788 F.Supp.2d 552 (E.D. Ky. 2011), the court denied summary judgment to a deer stand retailer where plaintiff alleged that an express warranty was created by the retailer’s advertisements that it field-tests all the products it sells. In Hicks v. CNH
America LLC , 2006 U.S. Dist. LEXIS 29871 (W.D. Ky. 2006), summary judgment was denied because of a factual dispute whether the dealership provided the plaintiff with the correct owners manual.
M.
Illegal Acts
As a matter of public policy, Kentucky law does not permit a plaintiff to recover in a legal or equitable proceeding when the basis for his action rests on his own illegal conduct. Foister v.
Purdue Pharma, L.P.
, 295 F.Supp.2d 693 (E.D. Ky. 2003) (denying recovery in product liability action by plaintiffs who procured and used OxyContin illegally).
X.
Damages
A.
Economic Loss
Kentucky courts do not allow tort recovery for damage only to the product itself. Recovery for such “economic loss,” at least in the commercial context, must be pursued contractually rather than in tort. Giddings & Lewis, Inc. v. Industrial Risk Insurers , 348 S.W.3d 729 (Ky. 2011). Damage to other property, on the other hand, is recoverable in tort. The Giddings & Lewis court held that the relevant product for purposes of the economic loss rule is the entire item bargained for by the parties and placed in the stream of commerce by the manufacturer. But see Gooch v. E.I. Du Pont de Nemours & Co.
, 40 F. Supp.2d 863, 874-76 (W.D. Ky. 1999) (interpreting Kentucky law and applying economic loss doctrine to bar claim for damage to corn crop caused by herbicide).
The Giddings & Lewis court held that the economic loss rule applies regardless of whether the product fails over a period of time or destroys itself in a calamitous event, and also that the rule’s application is not limited to negligence and strict liability claims but also encompasses negligent misrepresentation claims. The opinion also hints in a footnote that the rule would also apply in consumer transactions.
24

In Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc.
, 276 F.3d 845 (6 th
Cir.
2002), the court applied the economic loss rule and affirmed a summary judgment in favor of the manufacturer and distributor of heat-treated wood trusses which failed in a nursing home owned by the plaintiff. In Barton Brands, Ltd. v. O’Brien & Gere, Inc. of North America , 550 F.Supp.2d 681
(W.D. Ky. 2008), the court held that the economic loss rule required dismissal of negligence claims in the commercial product liability context, but did not require dismissal of negligent representation claims, because the tort of negligent representation defines an independent duty that exists separate and apart from contractural obligations. The Barton Brands holding was a departure from prior authorities, including Ohio Casualty Insurance Co. v. Vermeer Mfg. Co.
, 298
F.Supp. 2d 575 (W.D. Ky. 2004), and now appears inconsistent under Giddings & Lewis .
B.
Proof of Damages
In Kentucky state courts, damages based on conjecture or speculation are not recoverable.
Michals v. William T. Watkins Methodist Church , 873 S.W.2d 216 (Ky. App. 1994). There can be no recovery for damages for negligence arising from exposure to a toxic substance absent a present manifestation of a diseased condition or proof of some “harmful result” from the exposure. Mere ingestion of the toxic substance does not warrant recovery. Capital Holding Corp. v. Bailey , 873
S.W.2d 187 (Ky. 1994). Kentucky law does not recognize claims for “medical monitoring” in the absence of a present physical injury. Wood v. Wyeth-Ayerst Laboratories , 82 S.W.3d 849 (Ky.
2002).
The federal courts have generally agreed that recovery for exposure to toxic substance in
Kentucky must be accompanied by some proof of present physical harm. Moreover, a property damage plaintiff had no cause of action until asbestos created an “injury” through release and contamination. Farm Credit Bank of Louisville v. United States Mineral Prod., Co., 864 F. Supp. 643
(W.D. Ky. 1994).
C.
Negligently Inflicted Emotional Distress
In Kentucky, physical contact is still a prerequisite to the recovery of damages for emotional distress, but this requirement can be satisfied with contact that is only “slight, trifling or trivial.” Deutsch v. Shein , 597 S.W.2d 141, 146 (Ky. 1980). The physical contact must both precede and cause the emotional distress, but once the contact is proven, all consequential damages -- direct and indirect -- resulting from the negligent contact are recoverable. Steel Technologies, Inc. v. Congleton , 234 S.W.3d 920 (Ky. 2007); Capital Holding Corp. v. Bailey , 873 S.W.2d 187 (Ky.
1994). Courts in Kentucky have not yet allowed claims for pre-impact fear. In re Air Crash at
Lexington, Kentucky , 556 F.Supp.2d 665 (E.D. Ky. 2008). The Kentucky Court of Appeals has held that even unrelated bystanders can recover for negligent infliction of emotional distress.
Wheatley v. Kentucky Farm Bureau Mutual Insurance Co.
, 2004 WL 3015673 (Ky. App. December
30, 2004).
25

D.
Reduction of Future Damages to Present Value
The Kentucky Court of Appeals decision in Paducah Area Public Library v.
Terry , 655 S.W.2d
19 (Ky. App. 1983) is often cited for the proposition that Kentucky recognizes the "total offset" principle and does not require a reduction of future damages to present value. In Paducah Library , the court recognized the conceptual validity of reducing an award to present value but dismissed the importance of doing so because "the relationship of interest rates and rates of inflation are
'self-adjusting' . . . the two totally offset each other." Id.
at 25.
However, the United States Supreme Court has rejected such reasoning in Jones and
Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983). In Pfeifer , the Supreme Court recognized that two elements are necessary to determine the appropriate damages for future lost wages: (1) the amount that the injured party could have earned during each year that he could have been expected to work after the injury; and (2) the appropriate discount rate, reflecting the safest investment. Id.
at 537.
In Winston v. United States , 11 F. Supp.2d 948 (W.D. Ky. 1998), the court disapproved of the use of the Paducah Library total offset analysis. The Winston court held that it was not bound to follow Paducah Library and that the methodology for reducing damage awards to present value is suitable for expert testimony.
E.
Punitive Damages
The General Assembly enacted a punitive damages statute in 1988. KRS 411.184(1) provides that a plaintiff shall recover punitive damages only upon proving, by clear and convincing evidence, that the defendant acted toward the plaintiff with oppression, fraud, or malice. KRS
411.184(3) provides that punitive damages shall not be assessed against a principal for the acts of an agent or employee unless the principal authorized or ratified or should have anticipated the conduct in question. KRS 411.184(4) states that in no case shall punitive damages be awarded for breach of contract. See also Ford Motor Co. v. Mayes , 575 S.W.2d 480, 487 (Ky. App. 1979) (the
Consumer Protection Act, KRS 367.220(1), does not expand the right to claim punitive damages to include breach of contract).
The Kentucky Supreme Court struck down KRS 411.184(1)(c) as unconstitutional in
Williams v. Wilson , 972 S.W.2d 260 (Ky. 1998). The Williams decision held that the right to recover punitive damages for injuries received due to gross negligence was a “jural right” existing prior to, and preserved and protected by, Section 14 of Kentucky’s Constitution. At common law, the plaintiff could recover punitive damages for gross negligence using an objective, “reasonable person” standard. Under the definition of “malice” in KRS 411.184(1)(c), the statute imposed an impermissible, “heightened subjective awareness” standard in defining “malice.” Malice is defined as "conduct which is specifically intended by the defendant to cause tangible or intangible injury to the plaintiff or conduct that is carried out by the defendant both with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death
26

or bodily harm." KRS 411.184(1)(c). The court concluded that the imposition of this heightened subjective awareness standard limited punitive damages recovery and, thus, violated the jural rights doctrine and Section 54 of the Constitution. Williams , 972 S.W.2d at 268-269.
The Williams decision effectively returned the punitive damages standard to the common law standard utilized in Horton v. Union Light, Heat and Power Co.
, 690 S.W.2d 382 (Ky. 1985).
Horton articulated a gross negligence standard but made it clear that punitive damages can be imposed only when the defendant’s misconduct is “outrageous in character,” reflecting an “evil motive.” 690 S.W.2d at 389. In City of Middlesboro v. Brown , 63 S.W.3d 179 (Ky. 2001), the
Kentucky Supreme Court confirmed that the proper standard is gross negligence, which should be defined in the jury instructions as “reckless disregard for the rights, lives or safety of other persons.” Defining gross negligence as “the failure to exercise slight care” does not adequately communicate to the jury the necessary element of recklessness. 63 S.W.2d at 181. See also
Kinney v. Butcher , 131 S.W.3d 357, 359 (Ky. App. 2004) (“wanton or reckless disregard for the safety of other persons”).
A product’s compliance with government standards and regulatory testing requirements weighs against a claim for punitive damages and can entitle a manufacturer to partial summary judgment. Logan v. Cooper Tire & Rubber Co.
, 2011 U.S. Dist. LEXIS 62303 (E.D. Ky. 2011);
Cameron v. DaimlerChrysler Corp.
, 2005 U.S. Dist. LEXIS 24361 (E.D. Ky. 2005).
Under KRS 411.186, the jury shall determine, concurrently with all other issues presented, whether punitive damages may be assessed. If the jury determines that punitive damages should be awarded, then in determining the amount of its award the trier of fact is to consider the following factors: (a) the likelihood, at the relevant time, that serious harm would arise from the defendant's misconduct; (b) the degree of the defendant's awareness of that likelihood; (c) the profitability of the misconduct to the defendant; (d) the duration of the misconduct and any concealment of it by the defendant; and (e) any actions by the defendant to remedy the misconduct once it became known to the defendant.
The Williams opinion expressly refused to address the constitutionality of KRS 411.184(2), the portion of the statute which provides that a plaintiff must prove an entitlement to punitive damages by clear and convincing evidence. Williams , 972 S.W.2d at 269. The clear and convincing standard, therefore, remains controlling. See Anderson v. Wade, 33 Fed.Appx. 750 (6 th
Cir. Mar.
29, 2002) (unpublished); Estate of Embry v. GEO Transp. of Indiana, Inc.
, 478 F.Supp.2d 914 (E.D.
Ky. 2007); University Medical Center, Inc. v. Beglin , 2009 WL 102800 (Ky. App. January 16, 2009).
But see Clark v. Chrysler Corp.
, 310 F.3d 461, 480 n.3 (6 th
Cir. 2002) (questioning whether the clear and convincing standard is applicable when punitive damages are sought on the basis of gross negligence rather than fraud or oppression.) Proof by clear and convincing evidence is incapable of a definition any more detailed or precise than the words involved. It requires the party with the burden of proof to produce evidence substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt. Fitch v. Burns , 782 S.W.2d 618, 622 (Ky. 1990).
27

In Cooper Industries, Inc. v. Leatherman Tool Group, Inc.
, 532 U.S. 424 (2001), the United
States Supreme Court held that a jury’s award of punitive damages must be reviewed by the courts under a de novo standard to ensure that it is not constitutionally excessive. The de novo standard dictated by Leatherman was applied by the Kentucky Supreme Court in Sand Hill Energy,
Inc. v. Ford Motor Co.
, 83 S.W.3d 483 (Ky. 2002) (“Sand Hill I”), in which the Court affirmed the punitive damages award but reduced the award from $20,000,000 to $15,000,000. 83 S.W.3d at
493-96. The Sand Hill I court reaffirmed its previous decision in Owens-Corning v. Golightly , 976
S.W2d 409 (Ky. 1998), which held that successive awards of punitive damages for the same course of conduct do not violate the Due Process Clause. Sand Hill I was reversed and remanded by the
United States Supreme Court in light of State Farm Mutual Ins. Co. v. Campbell , 538 U.S. 408
(2003). On remand, the Kentucky Supreme Court vacated the $15,000,000 punitive damage award it had affirmed in Sand Hill I . Sand Hill Energy, Inc. v. Smith , 142 S.W.3d 153 (Ky. 2004)
(“Sand Hill II”). The Sand Hill II opinion applied State Farm and held that the trial court’s jury instructions improperly failed to include a limiting instruction concerning extraterritorial punishment. The suggested instruction set forth in Sand Hill II is the current “pattern” punitive damage instruction in Kentucky. 142 S.W.3d at 166-67 .
Several other Kentucky appellate courts have vacated punitive damage awards based on the due process concerns voiced by the United States Supreme Court in BMW of North America,
Inc. v. Gore , 517 U.S. 559 (1996), and State Farm.
In Crown Equipment Corp. v. Crowe , No. 2000-
CA-002333-MR (Ky. App. March 22, 2002) (unpublished), the Kentucky Court of Appeals held that a $329,000 punitive damages verdict was impermissibly based upon out-of-state conduct by the defendant which was not shown to be unlawful in the states where it occurred. In Hyman &
Armstrong, P.S.C. v. Gunderson , 279 S.W.3d 93 (Ky. 2008), a punitive award of $11.25 million was vacated because the trial court did not give the limiting instruction on extraterritorial conduct required by Sand Hill II. The Kentucky Court of Appeals affirmed a punitive damage award of nearly $3 million in a weed trimmer case in which the compensatory damages totaled $2.8 million.
Sufix, U.S.A., Inc. v. Cook , 128 S.W.3d 838 (Ky. App. 2004). The Sufix court held that the one-to-one ratio was within the guidelines established by BMW and State Farm . In Clark v. Chrysler Corp.
, 436
F.3d 594 (6 th
Cir. 2006), a $3 million punitive award in a door latch case was remitted to $471,258 to create a two-to-one ratio to the compensatory award. In Rockwell Intern. Corp. v. Wilhite , 143
S.W.3d 604 (Ky. App. 2003), a PCB case, the Kentucky Court of Appeals reversed a $210 million punitive award due to plaintiffs’ counsel’s improper closing argument, without reaching the constitutional issues.
At common law in Kentucky, in actions for punitive damages, the parties may not present evidence or otherwise advise the jury of the financial conditions of either side of the litigation.
Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998); Hensley v. Paul Miller
Ford, Inc., 508 S.W.2d 759 (Ky. 1974).
28

XI.
Special Evidentiary Concerns
A.
Evidence of Subsequent Remedial Measures
For a number of years, evidence of subsequent design changes was admissible in product liability actions in Kentucky state courts. Ford Motor Co. v. Fulkerson , 812 S.W.2d 119, 127 (Ky.
1991). The Fulkerson holding was subsequently codified as part of KRE 407, resulting in a significant difference between KRE 407 and FRE 407. In 2005 the Kentucky Supreme Court approved an amendment to KRE 407 to bring it into conformity with FRE 407. The amended version of KRE 407 went into effect on July 1, 2006. It is identical to FRE 407. Consequently,
Fulkerson has been superseded and, subject to the exceptions in the rule, subsequent remedial measures are inadmissible to prove a defect in both Kentucky state and federal courts.
In Harper v. Griggs , 2006 WL 2604663, 71 Fed. R. Evid. Serv. 227 (W.D. Ky. September 11,
2006), Judge Coffman used both FRE 407 and the “critical self-analysis” doctrine to exclude certain findings and recommendations made as a result of the defendant’s post-accident analysis of the subject incident.
B.
Expert Testimony
1.
Gatekeeping Function of Trial Court
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), controls the admissibility of scientific expert testimony under FRE 702. Under Daubert , a trial court must perform the "gatekeeping" role of screening out junk science by ensuring that an expert's proffered testimony is sufficiently reliable and relevant to assist the jury. The Kentucky Supreme
Court adopted Daubert , as applied to KRE 702, in Mitchell v. Commonwealth , 908 S.W.2d 100 (Ky.
1995), overruled on other grounds by Fugate v. Commonwealth , 993 S.W.2d 931 (Ky. 1999).
The United States Supreme Court subsequently held in Kumho Tire Co., Ltd. v.
Carmichael , 526 U.S. 137 (1999), that the trial court is to apply the Daubert analysis in connection with all forms of expert testimony, not just that which is deemed “scientific knowledge.” In Goodyear Tire & Rubber Co. v. Thompson , 11 S.W.3d 575 (Ky. 2000), the
Kentucky Supreme Court adopted the reasoning of Kumho Tire and held that the Daubert analysis applies to expert testimony based upon “technical” or “other specialized” knowledge, as well as “scientific” expert testimony. Id . at 577. Kumho Tire and Goodyear have been widely followed by Kentucky federal and state courts. See Demaree v. Toyota Motor Corp.
, 37 F.
Supp.2d 959 (W.D. Ky. 1999) (applying Daubert factors and excluding plaintiff's airbag expert who could not produce any publications or peer reviews of his theory and who had not performed tests or gathered any quantitative data to corroborate his theory); Gray v. General
Motors Corp ., 133 F.Supp. 2d 530 (E.D. Ky. 2001) (while plaintiff’s expert survived the Daubert analysis, he could not identify any specific defect with the seatbelt in question, thus warranting a directed verdict for the defendants); Hall v Teleflex, Inc.
, 2012 U.S. Dist. LEXIS 4806 (E.D. Ky.
29

2012); Clephas v Garlock, Inc.
, 168 S.W.3d 389 (Ky. App. 2004) (opinions of industrial hygienist sufficiently reliable in asbestos case). The Sixth Circuit applies a three-part test for the admissibility of differential diagnosis opinions. Best v. Lowe’s Home Centers , Inc.
, 563 F.3d 171
(6 th
Cir. 2009).
The Sixth Circuit held in Smelser v. Norfolk So. Ry. Co.
, 105 F.3d 299 (6 th
Cir. 1997), that it was reversible error to allow plaintiff’s expert, Ronald Huston, to render his opinion that a seat belt was defective, where he failed to show that his tests were based on scientifically valid principles, were repeatable, had been the subject of peer review or publication or were generally accepted methods for testing seat belts in the field of biomechanics. Similarly, in Clark v. Takata
Corp.
192 F.3d 750 (7th Cir. 1999), the Seventh Circuit affirmed the lower court’s order excluding the opinion testimony of the plaintiff’s seatbelt expert, James Lafferty, finding that Lafferty assumed facts, failed to consider facts, including the occupant’s height and weight, and his opinions had not been subjected to peer review. In Early v. Toyota Motor Corp.
, 486 F.Supp.2d
633 (E.D. Ky. 2007), the court excluded plaintiff’s expert, Jay Nogan, on the grounds that he was not sufficiently qualified and his opinions were unreliable. In Rossi v. CSX Transportation Inc.
, 2010
Ky. App. LEXIS 233 (Ky. App. 2010), plaintiff’s expert Tyler Kress, Ph.D. was precluded from testifying that a causal connection existed between plaintiff’s work environment and injuries.
The appellate standard of review for evidentiary rulings is abuse of discretion, and Daubert does not alter this rule for reviewing decisions to admit or exclude expert evidence.
General
Electric Co. v. Joiner , 522 U.S. 136 (1997). In Joiner , the Court held that the trial court did not abuse its discretion by excluding expert testimony relying upon animal studies that were factually dissimilar to the human medical facts at issue. Nor did the court abuse its discretion in finding the experts’ opinions to be without sufficient basis, scientifically and factually, to rise above
“subjective belief or unsupported speculation.” Nothing in Daubert requires the court to admit opinion evidence connected to data only by the “ipse dixit” of the expert. Kentucky appellate courts also utilize the abuse of discretion standard under KRE 702. Toyota Motor Corp. v. Gregory ,
136 S.W.3d 35, 39 (Ky. 2004); Sand Hill Energy, Inc. v. Ford Motor Co.
, 83 S.W.3d 483 (Ky. 2002).
Experts are not permitted to testify as to their interpretation of federal regulations. The meaning of federal regulations is a question of law for the court, not a factual issue to be resolved by a jury after a battle of experts. Cummins v. BIC USA, Inc.
, 2011 U.S. Dist. LEXIS 72194 (W.D. Ky.
2011).
2.
Cross-Examination of Experts
In Tuttle v. Perry , 82 S.W.3d 920 (Ky. 2002), the Kentucky Supreme Court overruled prior case authorities and held that experts can be cross-examined at trial as to the compensation paid to them. The Kentucky Supreme Court observed that “expert witnesses are often paid handsomely and it is widely believed that they may be expected to express opinions that favor the party who engaged them and who pays their fee.” 82 S.W.2d at 923.
30

C.
Prior Accidents or Claims
Evidence of similar product failures under similar conditions is relevant and admissible to prove design defects. Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky. 1984).
However, evidence of such prior accidents and injuries will be admitted only if both the equipment and the prior accidents are "substantially similar" to the equipment and the accident that form the basis of the lawsuit. Rye v. Black & Decker Mfg. Co.
, 889 F.2d 100, 102-03 (6th Cir. 1989). “[F]or evidence of other accidents to even be marginally relevant, it must bear similarities in critical respects to the accident at issue[.]” Hayes v. MTD Products, Inc.
, 2008 WL 2859223 (W.D. Ky. July
22, 2008). A high degree of similarity is required if the purpose of the evidence is to prove the dangerous propensities of the product. Haven Steel Products, Inc. v. Cowan , 2007 WL 1575310
(Ky. App. June 1, 2007). Evidence of this type has low probative value if there are only a “handful” of other incidents in a large population of users. Burke v. U-Haul Int’l, Inc.
, 2007 WL 403588 (W.D.
Ky. January 31, 2007). See also Volvo Car Corp. v. Hopkins , 860 S.W.2d 777, 779 (Ky. 1993) (holding that discovery includes the right to investigate other accidents to determine similarity).
A lack of prior accidents or claims may also be admissible if the "substantial similarity" test is met. Koloda v.
General Motors Parts Div., 716 F.2d 373 (6th Cir. 1983); Hines v. Joy Mfg. Co., 850
F.2d 1146 (6th Cir. 1988). The lack of prior accidents or claims may be admissible to prove (1) the absence of an alleged defect or condition; (2) the lack of a causal relationship; (3) the absence of an alleged unduly dangerous situation; or, (4) want of knowledge of a danger. Hines , 850 F.2d at
1154.
D.
Evidence of Plaintiff’s Comparative Fault
The Kentucky comparative fault statute, KRS 411.182, makes evidence of plaintiff’s causative fault admissible “[i]n all tort actions, including product liability actions.” In asbestos cases this includes evidence of a plaintiff’s smoking habit even though it does not concern the plaintiff’s specific use or misuse of the product. Owens Corning Fiberglas Corp. v. Parrish , 58
S.W.3d 467 (Ky. 2001).
In crashworthiness cases, the plaintiff seeks to prove that a defect in the vehicle caused a so-called “second impact” that enhanced the plaintiff’s injuries. It has been argued that what caused the accident itself (the so-called “first impact”) should be inadmissible. However, in Smith v. Toyota Motor Corp.
, 2004 WL 1595200 (6 th
Cir. 2004), the Sixth Circuit, in an unpublished opinion, affirmed the district court’s ruling that evidence of plaintiff’s fault in causing the underlying accident, including evidence of the plaintiff’s consumption of alcoholic beverages, was admissible for purposes of apportioning fault between the plaintiff and the vehicle manufacturer in a rollover roof crush case. The court relied upon the broadly inclusive language of KRS
411.182(1) and general causation principles. The court’s ruling is consistent with comment f to
§16 of the Restatement (Third) of Torts: Products Liability, which provides that “the contributory fault of the plaintiff in causing an accident that results in defect-related increased harm is relevant
31

in apportioning responsibility between or among the parties, according to applicable apportionment law.”
In Logan v. Cooper Tire & Rubber Co.
, 2011 U.S. Dist. LEXIS 86299 (E.D. Ky. 2011), a tire tread separation case, the court held that evidence of the plaintiff’s use and abuse of drugs and impairment at the time of the accident was relevant and admissible on the issue of his comparative fault. Evidence of a plaintiff’s drug and alcohol use prior to an accident can be independently relevant to prove impaired memory and for impeachment purposes. Grimes v.
Mazda North American Operations, 355 F.3d 566, 573 (6 th
Cir. 2004).
E.
Collateral Source Rule
The Kentucky Supreme Court held unconstitutional part of KRS 411.188(3), which stated that collateral source payments were admissible in any civil trial. O’Bryan v. Hedgespeth , 892
S.W.2d 571 (Ky. 1995). The court held that the statute was an unconstitutional legislative infringement on the judiciary's power to make rules governing the "practice and procedure" in the courts. Id.
at 576.
F.
Spoliation of Evidence
The Kentucky Supreme Court has refused to recognize spoliation of evidence as an independent tort. Monsanto Co. v. Reed , 950 S.W.2d 811 (Ky. 1997). Instead, the court stated that the issue of missing or destroyed evidence can be remedied by the application of evidentiary rules and missing evidence instructions. In cases litigated in federal court, federal law governs the issue of whether evidence should be excluded based on spoliation. Logan v. Cooper Tire & Rubber
Co.
, 2011 U.S. Dist. LEXIS 86286 (E.D. Ky. 2011). In KCH Services, Inc. v. Vanaire, Inc.
, 2009 WL
2216601 (W.D. Ky. July 22, 2009), Judge Coffman held that an adverse-inference instruction was an appropriate sanction for a party’s failure to preserve ESI.
G.
Admissibility of Government Studies and Police Reports
There is a special danger of admitting a government study in that the jury could give it undue deference because of the imprimatur of government authority. See e.g., Morales v.
American Honda Motor Co., Inc.
, 151 F.3d 500 (6th Cir. 1998) (allowing accident statistics from
Consumer Product Safety Commission to be introduced into evidence).
Police reports are generally admissible in federal court under FRE 803(8)(B) unless the officer’s sources of information or other circumstances indicate a lack of trustworthiness.
Dortch v. Fowler , 588 F.3d 396 (6 th
Cir. 2009).
32

XII.
Jury Instructions
Instructions should provide only the "bare bones," which can be "fleshed out" by counsel in their closing arguments. Cox v. Cooper , 510 S.W.2d 530, 535 (Ky. 1974); Ford Motor Co. v.
Fulkerson , 812 S.W.2d 119, 122 (Ky. 1991). In Fulkerson , the court held that the jury instructions misstated the design defect issue by trying to spell it out, thus they were unnecessarily specific and limiting. Fulkerson , 812 S.W.2d at 123. See also King v. Ford Motor Co.
, 209 F.3d 886, 897-98 (6 th
Cir. 2000).
The following jury instruction was formulated by the Kentucky Supreme Court in 1980 and has been used as the “pattern” design defect instruction ever since: "You will find for the plaintiff only if you are satisfied from the evidence that the material of which the T-shirt was made created such a risk of its being accidentally set on fire by a child wearing it that an ordinarily prudent company engaged in the manufacture of clothing, being fully aware of the risk, would not have put it on the market; otherwise, you will find for the defendant." Nichols v. Union Underwear Co., Inc.,
602 S.W.2d 429, 433 (Ky. 1980). Twenty-four years later, in Toyota Motor Corp. v. Gregory , 136
S.W.3d 35 (Ky. 2004), the Kentucky Supreme Court approved an instruction which also required the jury to find that the plaintiff had proposed a “feasible safer alternative design.”
The theories of defective design, defective manufacture, and failure to warn are three different and independent theories of recovery. Jury instructions should reflect those distinctions.
Therefore, it is reversible error to use the word “and” in the jury instructions in such a way that a jury must find a product to be defective and to have had inadequate warnings in order for the plaintiff to recover. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 250-51 (Ky. 1995).
The Kentucky Court of Appeals has held that it was not reversible error for the trial court to refuse negligence and warnings instructions and instruct only on strict liability in a products case, reasoning that negligence and warnings instructions were redundant. Lane v. Deere and Co.
, 2003
WL 1923518 (Ky. App. March 21, 2003). A similar ruling would have prevented the problem that arose in Tipton v. Michelin Tire Co.
, 101 F.3d 1145 (6 th
Cir. 1996), where the Sixth Circuit held that the jury reached a legally inconsistent verdict when it found that the product was not defective for purposes of a strict liability claim but was defective for purposes of the negligence claim. The
Tipton court held that the jury instructions, which were directed toward the actions of an
“ordinarily prudent” manufacturer that is “fully aware of the risk” of accidental injury, blurred the distinctions between the negligence and strict liability theories of recovery and bolstered the court’s finding of an inconsistent verdict. Id . at 1150-51. In Cardinal Industrial Insulation Co. v.
Norris , 2009 WL 562614 (Ky. App. March 6, 2009), the Court of Appeals relied on Lane v. Deere and held the trial court did not err in refusing to give negligence and negligent failure to warn instructions in an asbestos case, where the negligence instruction would have been redundant of a strict liability instruction. In Moeller v. Garlock Sealing Technologies, LLC , 2009 WL 1208179 (W.D.
Ky. May 1, 2009), Judge Heyburn held that it was not inconsistent for the jury to find the defendant negligent but not strictly liable in an asbestos case.
33

Under the Kentucky Supreme Court decision in Williams v. Wilson , discussed infra ,
Kentucky courts are no longer allowed to give instructions in punitive damages cases based upon the statutory definition of malice found in KRS 411.184(1)(c). Instead, courts must instruct on the common law gross negligence standard as set forth in City of Middlesboro v. Brown , 63 S.W.3d 179
(Ky. 2001).
XIII.
Contribution, Indemnity, and Apportionment of Liability
Historically, Kentucky recognized both contribution and indemnity in product liability cases.
See, e.g., Ohio River Pipeline Corp. v. Landrum , 580 S.W.2d 713 (Ky. App. 1979). The right of contribution is recognized by statute. KRS 412.030. However, KRS 411.182 now requires that the jury apportion damages among all parties in the lawsuit; therefore, the question of contribution becomes moot if a plaintiff elects to sue all the tortfeasors. Each defendant will owe the plaintiff only that percentage of the total damages apportioned to it by the jury because Kentucky now recognizes only several liability, not joint and several liability, among joint tortfeasors. See also,
Continental Marine, Inc. v. Bayliner Marine Corp., 929 S.W.2d 206, 208 (Ky. App. 1996) (holding that the defendant/third-party plaintiff had no claim for contribution or indemnity against the third-party defendant after the former settled with the original plaintiff).
The parties to be included in the allocation of fault under KRS 411.182 are "those who actively assert claims, offensively or defensively, as parties in the litigation or who have settled by release or agreement." Baker v. Webb , 883 S.W.2d 898, 900 (Ky. App. 1994). Stated another way,
“KRS 411.182 applies to persons named as parties, regardless of how named and those persons who bought their peace from litigation by way of releases or agreements.” Bass v. Williams , 839
S.W.2d 559, 564 (Ky. App. 1992). A released tortfeasor is included in the allocation of fault regardless of whether he or she was ever made a party to the litigation. Owens Corning Fiberglas
Corp. v. Parrish, 58 S.W.3d 467, 480 (Ky. 2001). The settlement of a workers’ compensation claim between the plaintiff and his employer constitutes a settlement under KRS 411.182 and allows the jury to apportion fault to the employer, assuming there is satisfactory proof of fault on the employer’s part. Id.
The filing of a third-party claim against a tortfeasor the plaintiff has chosen not to sue would thus entitle the defendant to an apportionment instruction including the fault of the third-party defendant. Baker , 883 S.W.2d at 899. Even an unknown motorist or “hit and run” driver can be third-partied into a case for apportionment purposes, if service of process requirements are met. Kentucky Farm Bureau Mutual Ins. Co. v. Ryan , 177 S.W.3d 797 (Ky. 2005).
But if the third-party defendant is entitled to sovereign immunity and is dismissed on those grounds prior to trial, then it should not be included in the apportionment instruction. Jefferson
Co. Commonwealth Attorney’s Office v. Kaplan , 65 S.W.3d 916, 922 (Ky. 2002). The Kaplan decision is based upon a literal construction of KRS 411.182(1), as a party dismissed prior to trial is no longer a “party to the action” or a “released party.” Kaplan appears to implicitly overrule the pre-statute case of Floyd v.
Carlisle Constr. Co., 758 S.W.2d 430, 432 (Ky. 1988), which held that a defendant who is dismissed prior to trial remains a party for the jury to consider in allocating fault.
34

It is important to note that an apportionment instruction is improper without sufficient evidence of that party’s fault. “Fault may not be properly allocated to a party, a dismissed party or settling nonparty unless the court or the jury first finds that the party was at fault; otherwise, the party has no fault to allocate.” Parrish , 58 S.W.3d at 471, n.5. See CertainTeed Corp. v. Dexter , 330
S.W.3d 64 (Ky. 2010) (discussing sufficiency of evidence for allocating fault to settling defendants in asbestos case).
In Adam v. J. B. Hunt Transport, Inc.
, 130 F.3d 219 (6th Cir. 1997), the court stated that if third-party defendants had been dismissed on the grounds that no evidence supported a finding of liability to plaintiffs, “it would doubtless have been error to include them in the apportionment instruction.” This holding was affirmed in Barnes v. Owens-Corning Fiberglas Corp.
, 201 F.3d 815
(6 th
Cir. 2000). The Kentucky Court of Appeals has expressly left open the question of whether a defendant would have a separate cause of action for contribution or indemnity against a tortfeasor who was not a co-defendant or otherwise included in the jury's allocation of fault under
KRS 411.182. Kevin Tucker & Assocs. v. Scott & Ritter, Inc., 842 S.W.2d 873, 874-75 n.5 (Ky. App.
1992).
Under KRS 412.030, the common law right of indemnity is still available where “the person seeking it and the person from whom it is sought are not in pari delicto .” Degener v. Hall
Contracting Corp ., 27 S.W.3d 775, 780 (Ky. 2000). In other words, indemnity has survived the advent of apportioned liability where the plaintiff recovers a judgment against a defendant who is only secondarily liable. Degener , 27 S.W.2d at 781 (expressly disapproving any language in
Continental Marine or Kevin Trucker that implies indemnity is no longer available to defendants who are only “constructively or secondarily liable”). See also ISP Chemicals LLC v. Dutchland, Inc.
,
771 F.Supp. 2d 747, 751 (W.D. Ky. 2011) (common law right of indemnity permitted where the party seeking indemnity is only constructively or secondarily liable to a plaintiff); Kroger Co. v.
Bowman , 411 S.W.2d 339, 342-43 (Ky. 1967) (retailer entitled to indemnity from bottler); Hutt v.
Gibson Fiberglass Prods ., 914 F.2d 790 (6th Cir. 1990) (houseboat manufacturer who was only passively at fault entitled to indemnity from light switch manufacturer who actively created the danger). But see Crime Fighters Patrol v. Hiles , 740 S.W.2d 936, 938-41 (Ky. 1987) (indemnity is grounded in equity, and active/passive labels are not determinative); Nucor Corp. v. General Elec.
Co.
, 812 S.W.2d 136, 147-48 (Ky. 1991) (supplier not entitled to indemnity for attorneys' fees and litigation expenses from manufacturer where manufacturer provided adequate defense).
Common law indemnity actions are governed by the five year limitations period set forth in
KRS 413.020(7), even if the claim is based on breach of contract rather than tort. Electric Ins. Co. v.
Freudenberg NOK General Partnership , 487 F.Supp.2d 894 (W.D. Ky. 2007).
For purposes of apportionment of liability, a distributor of a product cannot be found to be more at fault than a manufacturer, unless there is evidence that the distributor is more culpable. Strickland v. Owens Corning , 142 F.3d 353, 357 (6th Cir. 1998) (estate of decedent who died of asbestos-related form of lung cancer brought action against a former distributor of asbestos-filled insulation product).
35

A product manufacturer, sued as the result of a work-related injury, is entitled to bring a third-party claim for apportionment of fault and indemnity against the plaintiff’s employer, despite the exclusive remedy protections of the workers compensation act, where the employer’s fault contributed to the plaintiff’s injury. Smith v. Leveelift, Inc.
, 2005 WL 2219291
(E.D. Ky. September 13, 2005). However, a manufacturer of a defective product cannot obtain common law indemnity from a purchaser who negligently allowed an individual to use the defective product. Burton v. HO Sports Company, Inc.
, 2009 U.S. Dist. LEXIS 41036 (W.D. Ky.
2009).
XIV.
Obesity Claims
In 2005, the General Assembly passed the Commonsense Consumption Act, KRS
411.610-640. The statute protects food product manufacturers and sellers from civil liability for obesity, weight gain and related health conditions. It includes exceptions for food products that are, among other things, misbranded, adulterated or sold in violation of other laws.
XV.
Drug and Medical Device Litigation
Many of the issues applicable to products liability cases have particular importance in drug and medical device litigation. For a discussion of federal preemption in the drug and device context, please refer to section IX(J).
A.
Product Identification and Proof of Defect
Product identification is the plaintiff’s burden and is strictly required. Collins v. Ansell,
Inc.
, 2003 WL 22769266 (W.D. Ky. 2003) (latex glove case). Res ipsa loquitur analyses and socalled “malfunction” theories are ill-suited to medical device cases. In most such cases, the device is not in the exclusive control of the manufacturer when the injury occurs, and other possible causes of the injury cannot be eliminated. Enlow v. St. Jude Medical, Inc.
, 327
F.Supp.2d 738 (W.D.Ky. 2003) (granting summary judgment in mechanical heart valve case).
In Smith v. Wyeth, Inc.
, 657 F.3d 420 (6 th
Cir. 2011), the Sixth Circuit affirmed Judge
Russell’s opinion that the manufacturer of a brand-name drug cannot be liable for allegedly inadequate warnings when the plaintiff ingested the generic equivalent manufactured by a competitor. In Gibson v. Sanofi-Aventis U.S., LLC , 2009 WL 3490454 (W.D. Ky. 2009), Judge
Simpson granted summary judgment to the manufacturer of the sleeping pill Ambien, holding there was no evidence the drug was the cause of plaintiff’s “sleep-driving.”
B.
Medical Monitoring
Some jurisdictions specifically recognize medical monitoring as a cause of action.
Kentucky does not. Any recovery for medical monitoring must be part of an injured plaintiff’s
36

damage recovery for future medical expenses, because absent a present physical injury a plaintiff is not entitled to maintain a cause of action for medical monitoring. Wood v. Wyeth-
Ayerst Laboratories , 82 S.W.3d 849 (Ky. 2002). In Wood , a diet drug suit, the Kentucky Supreme
Court relied heavily upon Capital Holding Corp. v. Bailey , 873 S.W.2d 187 (Ky. 1994), an asbestos exposure case. In Bailey , the Kentucky Supreme Court ruled that plaintiff’s tort claims had not yet accrued when he had no present manifestation of a diseased condition. The Wood opinion contains an excellent discussion of the policy reasons supporting its holding.
The opinions in cases like Wood and Bailey do not prevent a plaintiff who has been diagnosed with one condition from waiting to file suit until a second, more serious, condition is diagnosed. Carroll v. Owens-Corning Fiberglass Corp ., 37 S.W.3d 699 (Ky. 2000). Rather than suing for the original diagnosis of asbestosis and recovering future medical expenses, the original plaintiff in Carroll waited until he was diagnosed with lung cancer eight years later to bring his cause of action. Carroll , 27 S.W.3d at 702. Due to the latency of asbestos-related diseases, and “the length of time between the diagnoses . . . , it is possible that an asbestosis suit could have been filed and adjudicated before he ever knew he had cancer, leaving him no direct remedy for the more serious disease.” Id . at 702.
C.
Privity of Contract, Breach of Warranty, and The Kentucky Consumer
Protection Act
Privity of contract is an essential element in any claim based on breach of express and implied warranties and/or violation of the Kentucky Consumer Protection Act.
The scope of privity of contract in Kentucky is fixed by the Uniform Commercial Code.
Williams v. Fulmer , 695 S.W.2d 411, 413-14 (Ky. 1985). Under the UCC, as adopted in Kentucky, privity extends from the seller to the seller's buyer and "any natural person who is in the family or household of the buyer or who is a guest in his home" and no further. KRS 355.2-318. Privity does not extend from a manufacturer to a consumer unless the manufacturer sells the product directly to the consumer.
1.
Breach of Express and Implied Warranty
Privity of contract is an essential element in breach of warranty claims brought against drug and medical device manufacturers who sell products to health care providers who then sell the products to their patients. See Snawder v. Cohen , 749 F. Supp. 1473 (W.D. Ky. 1990);
Munn v. Pfizer Hosp. Prod. Group. Inc.
, 750 F. Supp. 244 (W.D. Ky. 1990). In Munn , the Court addressed whether privity of contract existed between a patient and the manufacturer of a medical device implanted by the plaintiff's physician. Because the manufacturer sold the medical device to the physician, not to the patient, the court held that no privity existed between the manufacturer and the patient and dismissed the breach of warranty claim. Munn ,
750 F. Supp. at 247-48. See Snawder , 749 F. Supp. at 1481 (no privity between patient and
37

manufacturer of polio vaccine); Bland v. Abbott Laboratories, Inc.
2012 U.S. Dist. LEXIS 19669
(W.D. Ky. 2012) (medication purchased at Sam’s Club).
2.
The Kentucky Consumer Protection Act
The KCPA states that "unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." KRS 367.170(1). A private right of action for violations of the KCPA is permitted by KRS 376.220(1). One issue courts have faced is whether a plaintiff can maintain a cause of action under the KCPA against a manufacturer from whom they never purchased any products.
In Skilcraft Sheetmetal, Inc. v. Kentucky Mach., Inc.
, 836 S.W.2d 907, 909 (Ky. App.
1992), the Court of Appeals held that in order to maintain a private cause of action under KRS
367.170(1), a plaintiff must fit within the class of individuals defined in KRS 367.220. The court analyzed the language of the statute and held that a "subsequent purchaser may not maintain an action against a seller with whom he did not deal or who made no warranty for the benefit of the subsequent purchaser." Skilcraft , 836 S.W.2d at 909. The statute "plainly contemplates an action by a purchaser against his immediate seller." Id . (emphasis added). The court specifically held that privity of contract was necessary: "The legislature intended that privity of contract exist between the parties in a suit alleging a violation of the Consumer Protection Act."
Id . Subsequent decisions have uniformly upheld the privity of contract requirement. Anderson v. Nat’l Sec. Fire and Cas.
, 870 S.W.2d 432, 436 (Ky. App. 1993); Kentucky Laborers Dist. Council v. Hill & Knowlton , 24 F. Supp. 2d 755, 772 (W.D. Ky. 1998).
D.
Learned Intermediary
Although a drug or medical device manufacturer has a duty to provide adequate warnings to physicians regarding the dangers of the drug or device, that duty does not extend to patients directly. In Larkin v. Pfizer, Inc.
, 153 S.W.3d 758 (Ky. 2004), the Kentucky Supreme
Court adopted the learned intermediary doctrine as set forth in the Restatement (Third) of
Torts: Products Liability § 6(d), which provides that a seller’s duty to warn of potential risks with a prescription drug or medical device is satisfied if adequate warnings are given to the patient’s physician.
In Hyman & Armstrong, P.S.C. v. Gunderson , 279 S.W.3d 93 (Ky. 2008) (Parlodel case), the Kentucky Supreme Court found no error in the trial court’s failure to give a learned intermediary instruction at trial, on the basis that there was insufficient evidence that the drug manufacturer provided an adequate warning to the prescribing physician. Id.
at 109-12. The
Court made it clear that an instruction would be appropriate under different facts, because if the jury finds that the prescriber was adequately warned, the manufacturer cannot be liable.
Id.
at 110.
38

E.
Unavoidably Unsafe Products
Prescription drugs are treated differently than other products. All drugs have risks which cannot be eliminated, yet their therapeutic benefit to certain classes of patients makes them highly desirable and useful in the hands of a physician. For this reason, Kentucky federal courts have treated prescription drugs as “unavoidably unsafe products” under comment k of
§402A of the Restatement (Second) of Torts. Tobin v. Astra Pharmaceutical Products, Inc.
, 993
F.2d 528 (6 th
Cir.), cert. denied , 510 U.S. 914 (1993). See also R. Eades, Kentucky Products
Liability Law §7:5 at 58 (2008-2009 ed.) (“Prescription medicines are common products to be treated as unavoidably unsafe.”) Sellers of unavoidably unsafe products are “not to be held to strict liability for unfortunate consequences attending their use,” as long as the product is accompanied by adequate warnings. McMichael v. American Red Cross , 532 S.W.2d 7 (Ky.
1975) (blood products). Whether a particular drug is “unavoidably unsafe” is determined on a case-by-case basis; the doctrine does not provide blanket immunity. Weiss v. Fujisawa
Pharmaceutical Co.
, 2006 U.S. Dist. LEXIS 88737 (E.D. Ky. 2006).
F.
Parties Liable
In drug and medical device cases, plaintiffs often sue treating physicians or sales representatives in order to prevent removal of the case to federal court. In the diet drug litigation, Kentucky federal courts frequently held that such defendants were fraudulently joined. See Burns v. Wyeth, Inc.
, 352 F.Supp.2d 773 (E.D. Ky. 2004) (sales representatives);
Adams v. Duff , 2004 WL 3103778 (E.D. Ky. December 8, 2004) (treating physician); Smith v.
Wyeth Inc.
, 488 F.Supp.2d 625 (W.D. Ky. 2007) (pharmacies).
39

These materials have been prepared by Dinsmore & Shohl LLP for informational purposes only. Although Dinsmore & Shohl LLP used reasonable efforts to include accurate and up-to-date information in this Monograph, no one should rely upon the information contained in this Monograph without first seeking professional advice.
Care must be taken in the citation of unpublished opinions. Kentucky Civil Rule
76.28(4)(c) provides:
Opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state; however, unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.
Citation of unpublished opinions in the Kentucky federal district courts is controlled by
Joint Local Rule 7.1(h), and in the Sixth Circuit Court of Appeals by Sixth Circuit Rule 28(f) and
Federal Rule of Appellate Procedure 32.1(b).
Kentucky Court of Appeals (since 1996) can be accessed through the website of the Kentucky
Court of Justice: www.kycourts.net
.
Published and unpublished opinions from the Kentucky Supreme Court (since 1999) and
40

APPENDIX A
Product Liability Act
411.300. Definitions. - (1) As used in KRS 411.310 to 411.340, a "product liability action" shall include any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, advertising, packaging or labeling of any product.
(2) As used in KRS 411.310 to 411.340, a "plaintiff" shall mean a person asserting a claim and, if said claim is asserted on behalf of an estate, "plaintiff" shall include plaintiff's decedent.
411.310. Presumptions in product liability actions. - (1) In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the subject product was not defective if the injury, death or property damage occurred either more than five (5) years after the date of sale to the first consumer or more than eight (8) years after the date of manufacture.
(2) In any product liability action, it shall be presumed, until rebutted by a preponderance of the evidence to the contrary, that the product was not defective if the design, methods of manufacture, and testing conformed to the generally recognized and prevailing standards or the state of the art in existence at the time the design was prepared, and the product was manufactured.
411.320. Circumstances under which defendant is liable. - (1) In any product liability action, a manufacturer shall be liable only for the personal injury, death or property damage that would have occurred if the product had been used in its original, unaltered and unmodified condition. For the purpose of this section, product alteration or modification shall include failure to observe routine care and maintenance, but shall not include ordinary wear and tear. This section shall apply to alterations or modifications made by any person or entity, except those made in accordance with specifications or instructions furnished by the manufacturer.
(2) In any product liability action, if the plaintiff performed an unauthorized alteration or an unauthorized modification, and such alteration or modification was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.
(3) In any product liability action, if the plaintiff failed to exercise ordinary care in the circumstances in his use of the product, and such failure was a substantial cause of the occurrence that caused injury or damage to the plaintiff, the defendant shall not be liable whether or not said defendant was at fault or the product was defective.
41

411.340. When wholesaler, distributor or retailer to be held liable. - In any product liability action, if the manufacturer is identified and subject to the jurisdiction of the court, a whole-saler, distributor, or retailer who distributes or sells a product, upon his showing by a preponderance of the evidence that said product was sold by him in its original manufactured condition or package, or in the same condition such product was in when received by said wholesaler, distributor or retailer, shall not be liable to the plaintiff for damages arising solely from the distribution or sale of such product, unless such wholesaler, distributor or retailer, breached an express warranty or knew or should have known at the time of distribution or sale of such product that the product was in a defective condition, unreasonably dangerous to the user or consumer.
411.350. Short title. - KRS 411.300 to 411.340 shall be known as the "Product
Liability Act of Kentucky."
42

APPENDIX B
411.182. Allocation of fault in tort actions -- Award of damages -- Effect of release.
(1) In all tort actions, including products liability actions, involving fault of more than one party to the action, including third-party defendants and persons who have been released under subsection (4) of this section, the court, unless otherwise agreed by all parties, shall instruct the jury to answer interrogatories or, if there is no jury, shall make findings indicating:
(a) The amount of damages each claimant would be entitled to recover if contributory fault is disregarded; and
(b) The percentage of the total fault of all the parties to each claim that is allocated to each claimant, defendant, third-party defendant, and person who has been released from liability under subsection (4) of this section.
(2) In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed.
(3) The court shall determine the award of damages to each claimant in accordance with the findings, subject to any reduction under subsection (4) of this section, and shall determine and state in the judgment each party's equitable share of the obligation to each claimant in accordance with the respective percentages of fault.
(4) A release, covenant not to sue, or similar agreement entered into by a claimant and a person liable, shall discharge that person from all liability for contribution, but it shall not be considered to discharge any other persons liable upon the same claim unless it so provides.
However, the claim of the releasing person against other persons shall be reduced by the amount of the released persons' equitable share of the obligation, determined in accordance with the provisions of this section.
43

Cases
Adam v. J. B. Hunt Transport, Inc.
, 130 F.3d 219 (6th Cir. 1997) ............................................... 19, 35
Adams v. Duff , 2004 WL 3103778 (E.D. Ky. December 8, 2004) .................................................. 39
Alfred v. Mentor Corp.
, 2007 WL 708631 (W.D. Ky. March 5, 2007) ............................................... 23
Anderson v. Nat’l Sec. Fire and Cas.
, 870 S.W.2d 432, 436 (Ky. App. 1993) ................................. 38
Anderson v. Wade, 33 Fed.Appx. 750 (6 th
Cir. Mar. 29, 2002) ........................................................ 27
Bailey v. North American Refractories Co.
, 95 S.W.3d 868 (Ky. App. 2001) .................................... 17
Baker v. Webb , 883 S.W.2d 898, 900 (Ky. App. 1994) .................................................................... 19
Barnes v. Owens-Corning Fiberglas Corp.
, 201 F.3d 815 (6 th
Cir. 2000) .......................................... 35
Barton Brands, Ltd. v. O’Brien & Gere, Inc. of North America , 550 F.Supp.2d 681 (W.D. Ky. 2008) 25
Bass v. Williams , 839 S.W.2d 559, 564 (Ky. App. 1992) .................................................................. 19
Bennet v. Cincinnati Checker Cab Co., Inc., 353 F. Supp. 1206 (E.D. Ky. 1973) ................................ 19
Best v. Lowe’s Home Centers , Inc.
, 563 F.3d 171 (6 th
Cir. 2009) ................................................... 30
Bigham v. Daimler-Chrysler Corp.
, 462 F.Supp. 2d 766 (E.D. Ky. 2006) ........................................... 10
Bland v. Abbott Laboratories, Inc.
2012 U.S. Dist. LEXIS 19669 (W.D. Ky. 2012) ......................... 38
BMW of North America, Inc. v. Gore , 517 U.S. 559 (1996) ............................................................. 28
Boon Edam, Inc. v. Saunders , 324 S.W.3d 422, 430 (Ky. App. 2010) ................................................. 9
Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988) ........................................................ 21
Briner v. General Motors Corp.
, 401 S.W.2d 99 (Ky. 1971) ............................................................. 16
Briscoe v. Amazing Products, Inc ., 23 S.W.3d 228, 230 (Ky. App. 2000) .......................................... 19
Brock v . Caterpillar, Inc., 94 F.3d 220 (6th Cir. 1996) ................................................................ 11, 19
Burke Enters., Inc. v. Mitchell, 700 S.W.2d 789, 791 (Ky. 1985) ..................................................... 9
Burke v. U-Haul Int’l, Inc.
, 2007 WL 403588 (W.D. Ky. January 31, 2007) ....................................... 31
Burnett v. Pfizer, Inc., 864 F. Supp. 25 (E.D. Ky. 1994) .................................................................... 23
Burns v. Wyeth, Inc.
, 352 F.Supp.2d 773 (E.D. Ky. 2004) .............................................................. 39
Burton v. HO Sports Company, Inc.
, 2009 U.S. Dist. LEXIS 41036 (W.D. Ky. 2009) ....................... 36
Busch v. Ansell Perry, Inc.
, 2005 U.S. Dist. LEXIS 12175 (W.D. Ky. 2005) ......................................... 10
Byler v. Scripto-Tokai Corp.
, 944 F.2d 904 (Table), 1991 WL 181749 (6 th
Cir. 1991) .................... 24
Byrd v. Proctor & Gamble Mfg. Co., 629 F. Supp. 602 (E.D. Ky. 1986) ............................................. 15
C&S Fuel Co., Inc. v. Clark Equip. Co., 552 F. Supp. 340 (E.D. Ky. 1982) ........................................... 13
C. D. Herme, Inc. v. R. C.
Tway Co.
, 294 S.W.2d 534, 538 (Ky. 1956) ................................................. 7
C.G. Bryant v. Tri-County Elec. Membership Corp., 844 F. Supp. 347 (W.D. Ky. 1994) ..................... 17
Calhoun v. Honda Motor Co., Ltd., 738 F.2d 126, 132-33 (6th Cir. 1984) ........................................ 16
Cameron v. DaimlerChrysler Corp.
, 2005 U.S. Dist. LEXIS 24361 (E.D. Ky. 2005) ............................. 27
Capital Holding Corp. v. Bailey , 873 S.W.2d 187 (Ky. 1994) ...................................................... 25, 37
Cardinal Industrial Insulation Co. v. Norris , 2009 WL 562614 (Ky. App. March 6, 2009) ................. 33
Carroll v. Owens-Corning Fiberglass Corp ., 37 S.W.3d 699 (Ky. 2000) ......................................... 37
Caterpillar, Inc. v. Brock , 915 S.W.2d 751 (Ky. 1996) ........................................................................ 5
Catholic Mutual Group v. Taco, Inc.
, 2008 WL 4530716 (Ky. App. 2008) .......................................... 8
Caudill v. Toyota Motor Corp.
, 2005 WL 314 9311 (E.D. Ky. Nov. 23, 2005).................................... 10
44

CertainTeed Corp. v. Dexter , 330 S.W.3d 64 (Ky. 2010) .................................................................. 35
Childress v. Interstate Battery System of America, Inc.
, 2010 U.S. Dist. LEXIS 13897 (W.D. Ky. 2010)
................................................................................................................................................... 20
City of Louisville v. Padgett , 457 S.W.2d 485, 488 (Ky. 1970) .......................................................... 21
City of Middlesboro v. Brown , 63 S.W.3d 179 (Ky. 2001) .......................................................... 27, 34
Clark v. Chrysler Corp.
, 310 F.3d 461, 480 n.3 (6 th
Cir. 2002) .......................................................... 27
Clark v. Chrysler Corp.
, 436 F.3d 594 (6 th
Cir. 2006) ........................................................................ 28
Clark v. Hauck Mfg. Co.
, 910 S.W.2d 247 (Ky. 1995) ......................................................................... 6
Clark v. Takata Corp.
192 F.3d 750 (7th Cir. 1999) ......................................................................... 30
Clephas v. Garlock, Inc.
, 168 S.W.3d 389 (Ky. App. 2004) ............................................................ 30
Coleman v. Rust-Oleum Corp.
, 405 F.Supp.2d 806 (W.D. Ky. 2005) .................................................. 6
Collins v. Ansell, Inc.
, 2003 WL 22769266 (W.D. Ky. 2003) ........................................................... 36
Compex International Co., Ltd. v. Taylor , 209 S.W.3d 462 (Ky. 2006) ............................................... 8
Conley v. American Motors Corp.
, 769 S.W.2d 75 (Ky. App. 1989) ................................................. 19
Conn v. Fales Division of Mathewson Corp.
, 835 F.2d 145 (6 th
Cir. 1987) ........................................ 18
Conner v. George W. Whitesides Co.
, 834 S.W.2d 652 (Ky. 1992) ................................................... 21
Continental Marine, Inc. v. Bayliner Marine Corp., 929 S.W.2d 206, 208 (Ky. App. 1996) ............... 34
Cooley v. Medtronic, Inc., 2012 U.S. Dist. LEXIS 55878 (E.D. Ky. 2012) ........................................... 23
Cooper Industries, Inc. v. Leatherman Tool Group, Inc.
, 532 U.S. 424 (2001) .................................. 28
Cox v. Cooper , 510 S.W.2d 530, 534 (Ky. 1974) .............................................................................. 17
Cox v. General Motors Corp., 514 S.W.2d 197 (Ky. 1974) ............................................................... 13
Crawford v. Line Power Mfg. Corp.
, 165 F.3d 26 (Table), 1998 WL 681220 (6th Cir. 1998) ......... 12
Crime Fighters Patrol v. Hiles , 740 S.W.2d 936, 938-41 (Ky. 1987) ................................................. 35
Crown Equipment Corp. v. Crowe , No. 2000-CA-002333-MR (Ky. App. March 22, 2002)
(unpublished) ............................................................................................................................... 7
Cummins v. BIC USA, Inc.
628 F.Supp.2d 737 (W.D. Ky. 2009) ........................................................ 22
Cummins v. BIC USA, Inc.
, 2011 U.S. Dist. LEXIS 72194 (W.D. Ky. 2011) .......................................... 30
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ............................................... 29
Dawson v. Bristol Laboratories, 658 F. Supp. 1036 (W.D. Ky. 1987) ............................................... 17
Dealers Transport Co. v. Battery Distrib. Co.
, 402 S.W.2d 441 (Ky. 1966) ................................... 8, 13
Degener v. Hall Contracting Corp ., 27 S.W.3d 775, 780 (Ky. 2000) ................................................. 35
Demaree v. Toyota Motor Corp.
, 37 F. Supp.2d 959 (W.D. Ky. 1999) .......................................... 29
Denney v. Buckeye Gas Prods., Inc., 695 S.W.2d 427 (Ky. App. 1985) ............................................. 17
Dortch v. Fowler , 588 F.3d 396 (6 th
Cir. 2009) .............................................................................. 32
Early v. Toyota Motor Corp.
, 486 F.Supp.2d 633 (E.D. Ky. 2007) .................................................... 30
Edwards v. Hop Sin, Inc.
, 140 S.W.3d 13, 15 (Ky. App. 2003) .......................................................... 10
Electric Ins. Co. v. Freudenberg NOK General Partnership , 487 F.Supp.2d 894 (W.D. Ky. 2007) ...... 35
Embs v. Pepsi-Cola Bottling Co ., 528 S.W.2d 703, 706 (Ky. 1975) ..................................................... 9
Enlow v. St. Jude Medical, Inc.
, 210 F.Supp.2d 853 (W.D. Ky. 2001) ............................................... 23
Enlow v. St. Jude Medical, Inc.
, 327 F.Supp.2d 738 (W.D.Ky. 2003) ............................................. 36
Estate of Embry v. GEO Transp. of Indiana, Inc.
, 478 F.Supp.2d 914 (E.D. Ky. 2007) ....................... 27
Falcon Coal Co. v. Clark Equip. Co., 802 S.W.2d 947, 948-49 (Ky. App. 1990) ................................. 20
Farm Credit Bank of Louisville v. United States Mineral Prod., Co., 864 F. Supp. 643 (W.D. Ky. 1994)
45

................................................................................................................................................... 25
Farmer v. City of Newport , 748 S.W.2d 162, 165 (Ky. App. 1988) ................................................... 17
Ferguson v. Aventis Pasteur Inc.
, 444 F.Supp. 2d 755 (E.D. Ky. 2006) ............................................. 23
Fisher v. Ford Motor Corp., 224 F.3d 570, 572 (6th Cir. 2000) ........................................................ 22
Fitch v. Burns , 782 S.W.2d 618, 622 (Ky. 1990) ............................................................................... 27
Floyd v.
Carlisle Constr. Co., 758 S.W.2d 430, 432 (Ky. 1988) ......................................................... 34
Fluke Corp. v. LeMaster , 306 S.W.3d 55 (Ky. 2010) ........................................................................ 22
Foister v. Purdue Pharma, L.P.
, 295 F.Supp.2d 693 (E.D. Ky. 2003) ................................................. 24
Ford Motor Co. v.
Fulkerson , 812 S.W.2d 119 (Ky. 1991) ................................................................ 10
Ford Motor Co. v. Fulkerson , 812 S.W.2d 119, 127 (Ky. 1991) ........................................................ 29
Ford Motor Co. v. Mayes , 575 S.W.2d 480, 487 (Ky. App. 1979) ..................................................... 26
Ford Motor Co. v. McCamish , 559 S.W.2d 507 (Ky. App. 1977) ...................................................... 13
Fritz v. Campbell Hausfeld/Scott Fetzer Co.
, 2007 U.S. Dist. LEXIS 38887 (E.D. Ky. 2007) ................ 12
Fugate v. Commonwealth , 993 S.W.2d 931 (Ky. 1999) ................................................................... 29
G & K Dairy v. Princeton Elec. Plant Bd.
, 781 F. Supp. 485 (W.D. Ky. 1991) ..................................... 16
Garrison v. Rohm & Haas Co., 492 F.2d 346, 353 (6th Cir. 1974) .................................................... 12
General Electric Co. v. Joiner , 522 U.S. 136 (1997) .......................................................................... 30
Gentry v. General Motors Corp ., 839 S.W.2d 576 (Ky. App. 1992); Kentucky Farm Bureau Mutual
Ins. Co. v. Deere & Co., 2008 U.S. Dist. LEXIS 8856 (W.D. Ky. 2008) ............................................ 16
Gibson v. Sanofi-Aventis U.S., LLC , 2009 WL 3490454 (W.D. Ky. 2009) ....................................... 36
Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729 (Ky. 2011) ...................... 20, 24
Gills v. Ford Motor Co., 829 F. Supp. 894, 898-99 (W.D. Ky. 1993) .................................................. 22
Gooch v. E.I. Du Pont de Nemours & Co.
, 40 F. Supp.2d 863, 874-76 (W.D. Ky. 1999) .................... 24
Goodyear Tire & Rubber Co. v. Thompson , 11 S.W.3d 575 (Ky. 2000) ......................................... 29
Gordon v. Proctor & Gamble , 789 F. Supp. 1384 (W.D. Ky. 1992) ................................................... 13
Gray v. General Motors Corp ., 133 F.Supp.2d 530, 535 (E.D. Ky. 2001), aff’d , 312 F.3d 240 (6 th
Cir.
2002) ......................................................................................................................................... 12
Greene v. B.F. Goodrich Avionics Systems, Inc.
, 409 F.3d 784 (6 th
Cir. 2005) ............................. 13, 22
Griffin Industries, Inc. v. Jones , 975 S.W.2d 100 (Ky. 1998) ............................................................ 9
Grimes v. Mazda North American Operations, 355 F.3d 566, 573 (6 th
Cir. 2004) ............................ 32
Halderman v. Sanderson Forklifts Co., Ltd., 818 S.W.2d 270 (Ky. App. 1991).................................. 20
Hall v Teleflex, Inc.
, 2012 U.S. Dist. LEXIS 4806 (E.D. Ky. 2012) .................................................... 30
Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 916 (Ky. 1998) ............................... 28
Harper v. Griggs , 2006 WL 2604663, 71 Fed. R. Evid. Serv. 227 (W.D. Ky. September 11, 2006) .... 29
Haven Steel Products, Inc. v. Cowan , 2007 WL 1575310 (Ky. App. June 1, 2007)............................ 31
Hayes v. MTD Products, Inc.
, 2008 WL 2859223 (W.D. Ky. July 22, 2008) ....................................... 31
Hazel v. General Motors Corp.
863 F.Supp. 435 (W.D. Ky. 1994) .................................................... 22
Hensley v. Paul Miller Ford, Inc., 508 S.W.2d 759 (Ky. 1974) .......................................................... 28
Hercules Powder Co. v. Hicks , 453 S.W.2d 583, 590-91 (Ky. 1970).................................................. 14
Hilen v. Hays , 673 S.W.2d 713 (Ky. 1984) ....................................................................................... 19
Hill v. R. J. Reynolds Tobacco Co.
, 44 F. Supp.2d 837 (W.D. Ky. 1999) ......................................... 14
Hines v. Joy Mfg. Co., 850 F.2d 1146 (6th Cir. 1988) ....................................................................... 31
Hogan v. Cooke Pontiac Co.
, 346 S.W.2d 529 (Ky. 1961) ................................................................ 17
46

Honaker v. Innova, Inc.
, 2007 WL 1217744 (W.D. Ky. 2007) ........................................................... 10
Hopkins v. Ford Motor Co.
, 2011 U.S. Dist. LEXIS 131498 (W.D. Ky. 2011) ...................................... 10
Horton v. Union Light, Heat and Power Co.
, 690 S.W.2d 382 (Ky. 1985) ......................................... 27
House v. Kellerman , 519 S.W.2d 380 (Ky. 1974) ............................................................................. 18
Huffman v. SS. Mary and Elizabeth Hospital , 475 S.W.2d 631 (Ky. 1972) ....................................... 16
Hurley v. Beech Aircraft Corp., 355 F.2d 517, 521 (7th Cir.), cert. denied , 385 U.S. 821 (1966) ......... 6
Hutt v. Gibson Fiber Glass Prods. Inc., 914 F.2d 790, 793 (6th Cir. 1990) ........................................ 14
Hyman & Armstrong, P.S.C. v. Gunderson , 279 S.W.3d 93 (Ky. 2008) ............................................. 28
Hyman & Armstrong, P.S.C. v. Gunderson , 279 S.W.3d. 93 (Ky. 2008) ........................................ 38
In re Air Crash at Lexington, Kentucky , 556 F.Supp.2d 665 (E.D. Ky. 2008) ..................................... 25
In re: Yamaha Motor Corp. Rhino ATV Products Liability Litigation , 2010 U.S. Dist. LEXIS 109418
(E.D. Ky. 2010) .............................................................................................................................. 7
Ingersoll-Rand Co. v. Rice , 775 S.W.2d 924 (Ky. App. 1988) ............................................................ 16
ISP Chemicals LLC v. Dutchland, Inc.
, 771 F.Supp. 2d 747, 751 (W.D. Ky. 2011) .............................. 35
James v. Meow Media, Inc ., 300 F.3d 683 (6 th
Cir. 2002), cert. denied , 537 U.S. 1159 (2003) 7, 14, 19
Jarrett v. Duro-Med Industries , 2007 WL 628146 (E.D. Ky. February 26, 2007) ............................. 5
Jarrett v. Duro-Med Industries , 2008 U.S. Dist. LEXIS 1670 (E.D. Ky. 2008) ..................................... 12
Jefferson Co. Commonwealth Attorney’s Office v. Kaplan , 65 S.W.3d 916, 922 (Ky. 2002) ............. 34
Jeffries v. Thermo Fisher Scientific , 2009 WL 3807103 (W.D. Ky. 2009) .......................................... 22
Jones and Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523 (1983) ........................................................ 26
Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66, 69 (Ky. 1973) ......................................................... 11
Jordan v. Massey-Ferguson , Inc.
, 100 F.3d 956 (Table), 1996 WL 662874 (6th Cir. Ky.) (unpublished)
................................................................................................................................................... 11
KCH Services, Inc. v. Vanaire, Inc.
, 2009 WL 2216601 (W.D. Ky. July 22, 2009) ............................... 32
Kentucky Farm Bureau Mutual Ins. Co. v. Deere & Co.
2008 U.S. Dist. LEXIS 8856 (W.D. Ky. 2008) 16
Kentucky Farm Bureau Mutual Ins. Co. v. Ryan , 177 S.W.3d 797 (Ky. 2005) ................................... 34
Kentucky Farm Bureau v. Hitachi Home Electronics (America), Inc.
, 2009 WL 2760956 (August 26,
2009) ......................................................................................................................................... 13
Kentucky Laborers Dist. Council v. Hill & Knowlton , 24 F. Supp. 2d 755, 772 (W.D. Ky. 1998) .... 38
Kevin Tucker & Assocs. v. Scott & Ritter, Inc., 842 S.W.2d 873, 874-75 n.5 (Ky. App. 1992) ............ 35
King v. Ford Motor Co.
, 209 F.3d 886, 897-98 (6 th
Cir. 2000) .......................................................... 33
Kinney v. Butcher , 131 S.W.3d 357, 359 (Ky. App. 2004) ................................................................ 27
Koloda v.
General Motors Parts Div., 716 F.2d 373 (6th Cir. 1983) ................................................. 31
Kroger Co. v. Bowman , 411 S.W.2d 339, 342-43 (Ky. 1967) ........................................................... 35
Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137 (1999) ............................................................. 29
Landgraf v. McDonnell Douglas Helicopter Co., 993 F.2d 558 (6th Cir.), cert. denied , 510 U.S. 993
(1993) ........................................................................................................................................ 21
Lane v. Deere and Co.
, 2003 WL 1923518 (Ky. App. March 21, 2003) ............................................ 33
Larkin v. Pfizer, Inc.
, 153 S.W.3d 758 (Ky. 2004) ........................................................................... 38
Leonard v. Uniroyal, Inc., 765 F.2d 560 (6th Cir. 1985) ................................................................... 15
Leslie v. Cincinnati Sub-Zero Prod., 961 S.W.2d 799 (Ky. App. 1998) .............................................. 23
Logan v. Cooper Tire & Rubber Co.
, 2011 U.S. Dist. LEXIS 62303 (E.D. Ky. 2011) ............................ 27
Logan v. Cooper Tire & Rubber Co.
, 2011 U.S. Dist. LEXIS 66087 (E.D. Ky. 2011) ............................ 15
47

Logan v. Cooper Tire & Rubber Co.
, 2011 U.S. Dist. LEXIS 86286 (E.D. Ky. 2011) ............................ 32
Logan v. Cooper Tire & Rubber Co.
, 2011 U.S. Dist. LEXIS 86299 (E.D. Ky. 2011) ............................ 32
Louisville Trust Co. v. Johns-Manville Prods., 580 S.W.2d 497 (Ky. 1979) ........................................ 22
Low v. Lowe’s Home Centers, Inc.
, 771 F.Supp.2d 739, 741 (E.D. Ky. 2011) .................................... 10
Low v. Power Tool Specialist, Inc.
, 803 F.Supp.2d 655 (E.D. Ky. 2011) ........................................... 5
Luttrell v. TAMKO Building Products, Inc.
, 2010 U.S. Dist. LEXIS 117835 (W.D. Ky. 2010) ............... 10
Martin v. Cincinnati Gas and Electric Co.
, 561 F.3d 439 (6 th
Cir. 2009) ............................................. 7
Martin v. Toyota Motor Sales U.S.A., Inc.
, 2011 U.S. Dist. LEXIS 53982 (E.D. Ky. 2011) ................... 12
May v. Ford Motor Co.
, 2010 U.S. Dist. LEXIS 135765 (E.D. Ky. 2010) ............................................. 16
McCabe Powers Body Co. v. Sharp , 594 S.W.2d 592 (Ky. 1980) ...................................................... 12
McCoy v. General Motors Corp., 47 F.Supp.2d 838, 840 (E.D. Ky. 1998); aff’d , 179 F.3d 396 (6 th
Cir.
1999) ......................................................................................................................................... 12
McGregory v. Tractel, Inc.
, 2007 WL 2229321 (W.D. Ky. July 31, 2007) .......................................... 22
McKee v. Cutter Labs., Inc.
, 866 F.2d 219, 221-22 (6th Cir. 1989) .................................................. 9
McMichael v. American Red Cross , 532 S.W.2d 7 (Ky. 1975) ...................................................... 39
McWaters v. Steel Serv. Co., Inc., 597 F.2d 79 (6th Cir. 1979) ......................................................... 14
Michals v. Baxter Healthcare Corp.
, 289 F.3d 402 (6 th
Cir. 2002) .................................................... 22
Michals v. William T. Watkins Methodist Church , 873 S.W.2d 216 (Ky. App. 1994) ........................ 25
Midwestern Volkswagen Corp. v. Ringley , 503 S.W.2d 745, 747-48 (Ky. 1973) .............................. 16
Mitchell v. Commonwealth , 908 S.W.2d 100 (Ky. 1995) ................................................................. 29
Moeller v. Garlock Sealing Technologies, LLC , 2009 WL 1208179 (W.D. Ky. May 1, 2009) .............. 33
Monsanto Co. v. Reed , 950 S.W.2d 811 (Ky. 1997) .................................................. 5, 6, 7, 13, 20, 32
Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776 (Ky. 1984) ...................................... 14, 31
Montgomery v. Winfield Int’l , No. 97-CA-520-MR (Ky. App. July 31, 1998) (unpublished) .............. 17
Morales v. American Honda Motor Co., Inc.
, 151 F.3d 500 (6th Cir. 1998) .................................. 32
Morris v. Wyeth, Inc.
, 582 F.Supp.2d 861 (W.D. Ky. 2008).............................................................. 23
Morrison v. Trailmobile Trailers, Inc.
, 526 S.W.2d 822 (Ky. 1975) ................................................... 13
Mt. Lebanon Personal Care Home, Inc. v. Hoover Universal, Inc.
, 276 F.3d 845 (6 th
Cir. 2002) ....... 25
Munn v. Pfizer Hosp.
Prods. Group, Inc., 750 F. Supp. 244 (W.D. Ky. 1990) .................................... 20
Murphy v. Montgomery Elevator Co.
, 957 S.W.2d 297 (Ky. App. 1997) .......................................... 11
Nichols v. Union Underwear Co., Inc., 602 S.W.2d 429, 433 (Ky. 1980) ...................................... 9, 33
Niehoff v. Surgidev Corp.
, 950 S.W.2d 816 (Ky. 1997) .................................................................... 23
Nucor Corp. v. General Elec. Co ., 812 S.W.2d 136, 145 (Ky. 1991) .................................................. 21
O’Bryan v. Hedgespeth , 892 S.W.2d 571 (Ky. 1995) ....................................................................... 32
O’Bryan v. Volkswagen of America , 39 F.3d 1182 (Table), 1994 WL 599450 n.6 (6 th
Cir. 1994)
(unpublished) ............................................................................................................................. 12
O’Bryan v.
Volkswagen of America , 838 F. Supp. 319 (W.D. Ky. 1992) ........................................... 22
Ohio Casualty Insurance Co. v. Vermeer Mfg. Co.
, 298 F.Supp. 2d 575 (W.D. Ky. 2004) ................. 25
Ohio River Pipeline Corp. v. Landrum , 580 S.W.2d 713 (Ky. App. 1979) .......................................... 34
Ostendorf v. Clark Equipment Co.
, 122 S.W.3d 530 (Ky. 2003) ....................................................... 15
Owens Corning Fiberglas Corp. v. Parrish , 58 S.W.3d 467, 474 (Ky. 2001) ........................................ 5
Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 415 (Ky. 1998) .................................. 5
Paducah Area Public Library v.
Terry , 655 S.W.2d 19 (Ky. App. 1983)............................................. 26
48

Parker v. Henry A. Petter Supply Co.
, 165 S.W.3d 474 (Ky. App. 2005) ........................................... 18
Pearson v. National Feeding Systems , 90 S.W.3d 46 (Ky. 2002) ...................................................... 18
Perkins v. Northeastern Log Homes , 808 S.W.2d 809 (Ky. 1991) .................................................... 21
Perkins v. Trailco Mfg. and Sales Co.
, 613 S.W.2d 855 (Ky. 1981) ................................................... 13
Pike v.
Benchmaster Mfg. Co., 696 F.2d 38 (6th Cir. 1982) ............................................................. 13
Pinto v. Clairol, Inc.
, 324 F.2d 608 (6 th
Cir. 1963) ............................................................................ 19
Pliva, Inc. v. Mensing , 131 S.Ct. 2567 (2011) .................................................................................. 23
Post v. American Cleaning Equip. Corp., 437 S.W.2d 516, 522 (Ky. 1969) ....................................... 14
Presnell Construction Managers, Inc. v. EH Construction, LLC , 134 S.W.3d 575 (Ky. 2004) ............. 21
Real Estate Mktg., Inc. v.
Franz , 885 S.W.2d 921 (Ky. 1994) ....................................................... 8, 20
Reda Pump Co. v. Finck , 713 S.W.2d 818 (Ky. 1986) ....................................................................... 19
Richmond v.
Louisville and Jefferson Co. MSD , 572 S.W.2d 601 (Ky. App. 1978)............................. 22
Riegel v. Medtronic, Inc.
, 552 U.S. 312 (2008) ................................................................................ 23
Rigsby v. Brighton Eng'g Co., 464 S.W.2d 279, 280-81 (Ky. 1971) ................................................... 21
Rockwell Intern. Corp. v. Wilhite , 143 S.W.3d 604 (Ky. App. 2003) ................................................. 28
Rossi v. CSX Transportation Inc.
, 2010 Ky. App. LEXIS 233 (Ky. App. 2010) ..................................... 30
Rushing v. Flerlage Marine Co.
, 2010 U.S. Dist. LEXIS 89009 (W.D. Ky. 2010) ................................. 18
Rutherford v. Goodyear Tire and Rubber Co.
, 943 F.Supp. 789 (W.D. Ky. 1996) ............................. 21
Rye v. Black & Decker Mfg. Co.
, 889 F.2d 100, 102-03 (6th Cir. 1989) ............................................ 31
Sand Hill Energy, Inc. v. Ford Motor Co.
, 83 S.W.3d 483 (Ky. 2002) .......................................... 28, 30
Sand Hill Energy, Inc. v. Smith , 142 S.W.3d 153 (Ky. 2004) ............................................................. 28
Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir. 1991), cert. denied , 502 U.S. 820 (1991) .. 11
Siegel v. Kentucky Farm Bureau Mutual Ins. Co.
, 2010 U.S. Dist. LEXIS 124805 (W.D. Ky. 2010) ..... 13
Siegel v. Kentucky Farm Bureau Mutual Ins. Co.
, 2010 U.S. Dist. LEXIS 74876 (W.D. Ky. 2010) ....... 10
Skilcraft Sheetmetal, Inc. v. Kentucky Mach., Inc.
, 836 S.W.2d 907, 909 (Ky. App. 1992) ........... 38
Smelser v. Norfolk So. Ry. Co.
, 105 F.3d 299 (6 th
Cir. 1997) ............................................................. 30
Smith v. Leveelift, Inc.
, 2005 WL 2219291 (E.D. Ky. September 13, 2005) ................................... 36
Smith v. Toyota Motor Corp.
, 2004 WL 1595200 (6 th
Cir. 2004) ..................................................... 31
Smith v. Wyeth Inc.
, 488 F.Supp.2d 625 (W.D. Ky. 2007) ............................................................. 39
Smith v. Wyeth, Inc.
, 657 F.3d 420 (6 th
Cir. 2011) ........................................................................ 36
Snawder v. Cohen , 749 F. Supp. 1473, 1479 (W.D. Ky. 1990) ......................................................... 14
Snyder v. American Honda Motor Co.
, 2009 WL 2342733 (E.D. Ky. 2009) ...................................... 10
State Farm Mutual Ins. Co. v. Campbell , 538 U.S. 408 (2003) ......................................................... 28
Stevens v. Keller Ladders , 1 Fed. Appx. 452, 2001 WL 45237 (6th Cir. 2001) .................................... 9
Stewart v. General Motors Corp.
, 222 F.Supp. 2d 845 (W.D.Ky. 2002), aff’d 2004 U.S. App. LEXIS
13872 (6 th
Cir. 2004) .................................................................................................................. 17
Strickland v. Owens Corning , 142 F.3d 353, 357 (6th Cir. 1998) .................................................. 35
Sturm, Ruger and Co., Inc. v. Bloyd , 586 S.W.2d 19 (Ky. 1979) ....................................................... 11
Sufix, U.S.A., Inc. v. Cook , 128 S.W.3d 838 (Ky. App. 2004) ............................................................. 28
Taylor v. General Motors Corp.
, 537 F. Supp. 949 (E.D. Ky. 1982) ................................................. 9
Thomas v. Manchester Tank & Equipment Co.
, 2005 WL 3673118 (W.D. Ky. 2005) ....................... 10
Thornton v. Deere & Co.
, 2001 WL 1781892 (W.D. Ky.) .................................................................... 8
Tipton v. Michelin Tire Co.
, 101 F.3d 1145 (6th Cir. 1996) .........................................6, 10, 11, 15, 33
49

Tobin v. Astra Pharmaceutical Prods., Inc., 993 F.2d 528, 535 (6th Cir.), cert. denied , 510 U.S. 914
(1993) .......................................................................................................................................... 7
Toyota Motor Corp. v. Gregory , 136 S.W.3d 35 (Ky. 2004) ................................................. 10, 12, 33
Turpin v. Merrell Dow Pharmaceuticals, Inc ., 959 F.2d 1349 (6th Cir.), cert. denied , 506 U.S. 826
(1992) ........................................................................................................................................ 17
Tuttle v. Perry , 82 S.W.3d 920 (Ky. 2002) ..................................................................................... 30
Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197 (Ky. App. 1976)....................................................... 11
University Medical Center, Inc. v. Beglin , 2009 WL 102800 (Ky. App. January 16, 2009) ................. 27
Uppendahl v. American Honda Motor Co., Inc.
, 291 F.Supp.2d 531 (W.D. Ky. 2003) ...................... 18
Vaughn v. Alternative Design Mfg. and Supply, Inc.
, 2008 WL 4602960 (E.D. Ky. October 16, 2008)
................................................................................................................................................... 11
Volvo Car Corp. v. Hopkins , 860 S.W.2d 777, 779 (Ky. 1993) .......................................................... 31
Waldon v. Hous. Auth. of Paducah , 854 S.W.2d 777, 779 (Ky. App. 1991) ...................................... 19
Walker v. Philip Morris USA Inc.
, 610 F.Supp.2d 785 (W.D. Ky. 2009) ....................................... 11, 23
Watters v. TSR, Inc., 904 F.2d 378 (6th Cir. 1990) ........................................................................... 14
Weiss v. Fujisawa Pharmaceutical Co.
, 2006 U.S. Dist. LEXIS 88737 (E.D. Ky. 2006) ................... 39
Weiss v. Fujisawa Pharmaceutical Co.
, 464 F.Supp.2d 666 (E.D. Ky. 2006) ..................................... 23
Wells v. Portman Equipment Co.
, 2006 U.S. Dist. LEXIS 86312 (E.D. Ky. 2006) .................................. 5
Wemyss v. Coleman , 729 S.W.2d 174, 178-81 (Ky. 1987) ............................................................... 20
West v. KKI, LLC , 300 S.W.3d 184, 197 (Ky. App. 2008) ................................................................... 15
Wheeler v. Andrew Jergens Co., 696 S.W.2d 326 (Ky. App. 1985) ................................................... 13
White v. Stryker Corp.
, 2011 U.S. Dist. LEXIS 32568 (W.D. Ky. 2011) .............................................. 23
Williams v. Fulmer , 695 S.W.2d 411 (Ky. 1985) .................................................................... 8, 20, 21
Williams v. Toyota Motor Sales, U.S.A., Inc.
, 2012 U.S. Dist. LEXIS 6724 (E.D. Ky. 2012) ................... 9
Williams v. Wilson , 972 S.W.2d 260 (Ky. 1998) .............................................................................. 26
Winston v. United States , 11 F. Supp.2d 948 (W.D. Ky. 1998)...................................................... 26
Wood v. Wyeth-Ayerst Laboratories , 82 S.W.3d 849 (Ky. 2002) ............................................... 25, 37
Worldwide Equip., Inc. v. Mullins , 11 S.W.3d 50 (Ky. App. 2000) .................................................... 15
Wright v. General Electric Co.
, 242 S.W.3d 674 (Ky. App. 2007) ..................................................... 22
Wyeth v. Levine , 555 U.S. 555 (2009) ............................................................................................. 23
Statutes
21 U.S.C. § 360 ............................................................................................................................... 23
FRE 403 .......................................................................................................................................... 11
FRE 407 .......................................................................................................................................... 29
FRE 803(8)(B)................................................................................................................................. 32
KRE 407 .......................................................................................................................................... 29
KRE 702 .......................................................................................................................................... 30
KRS 139.125 .................................................................................................................................... 9
KRS 355.1-101 .................................................................................................................................. 6
KRS 355.2-316 .................................................................................................................................. 8
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KRS 355.2-318 ...................................................................................................................... 8, 20, 37
KRS 355.2-725 ................................................................................................................................ 21
KRS 367.170(1) .............................................................................................................................. 38
KRS 367.220 ............................................................................................................................ 26, 38
KRS 367.220(1) ............................................................................................................................... 26
KRS 376.220 .................................................................................................................................. 38
KRS 411.184(1)(c) ..................................................................................................................... 26, 34
KRS 411.184(2) ............................................................................................................................... 27
KRS 411.184(3) ............................................................................................................................... 26
KRS 411.184(4) ............................................................................................................................... 26
KRS 411.186 .................................................................................................................................. 27
KRS 411.188 ................................................................................................................................... 32
KRS 411.310 ..................................................................................................................................... 5
KRS 411.310 to 411.340 ................................................................................................................... 5
KRS 411.310(2) ........................................................................................................................... 6, 11
KRS 411.320(1) ........................................................................................................................... 5, 19
KRS 411.320(2) ............................................................................................................................... 20
KRS 411.320(3) ................................................................................................................................. 5
KRS 411.610-640 ........................................................................................................................... 36
KRS 412.030 ................................................................................................................................... 34
KRS 413.020(7) ............................................................................................................................... 35
KRS 413.120 ................................................................................................................................... 21
KRS 413.135 ................................................................................................................................... 21
KRS 413.140 ................................................................................................................................... 21
KRS Chapter 355 .............................................................................................................................. 8
Other Authorities
R. Eades, Kentucky Products Liability Law §7-3 at 63 (1994) ....................................................... 39
Restatement (Second) of Torts § 402A (1965) ................................................................................. 8
Restatement (Second) of Torts § 402A cmt. f (1965) ..................................................................... 9
Restatement (Second) of Torts § 402A cmt. j (1965) ...................................................................... 14
Restatement (Second) of Torts §324A (1965) ................................................................................ 16
Restatement (Second) of Torts §402A cmt. k (1965) .................................................................... 39
Restatement (Second) of Torts §552 (1965) ................................................................................... 21
Restatement (Third) of Torts: Products Liability § 6(d) (1998) .................................................... 38
Restatement (Third) of Torts: Products Liability §11 (1998) .......................................................... 16
Restatement (Third) of Torts: Products Liability §16 cmt. f (1998) ................................................ 31
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