Flaherty v. CNH Industrial America

No. 119,704

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUANE EDWARD FLAHERTY,
Appellant,

v.

CNH INDUSTRIAL AMERICA, LLC,
Appellee,

and

STRAUB INTERNATIONAL, INC.,
Defendant.

SYLLABUS BY THE COURT

1.
Discovery orders will not be disturbed on appeal in the absence of a clear abuse of
discretion.

2.
Evidentiary privileges in the law are not favored because they operate to deny the
fact-finder access to relevant information.

3.
Evidentiary privileges are to be strictly construed.

4.
Parties objecting to discovery on the basis of an evidentiary privilege bear the
burden of establishing that it applies.

1
5.
The work-product privilege only applies to documents and tangible things. K.S.A.
2018 Supp. 60-226(b)(4)(A).

6.
The non-testifying expert privilege in K.S.A. 2018 Supp. 60-226(b)(5)(D) applies
to an in-house expert who has been specially employed in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness at trial.

7.
The party claiming waiver of an evidentiary privilege bears the burden of proof to
establish the waiver.

8.
Waiver is the intentional relinquishment of a known right. Intention may be
inferred from conduct.

9.
In the case of a corporation, the power to claim or waive a privilege generally rests
with corporate management. A corporate employee cannot waive the corporation's
privilege.

Appeal from Saline District Court; PAUL J. HICKMAN, judge. Opinion filed June 28, 2019.
Affirmed.

Cynthia J. Sheppeard and N. Larry Bork, of Goodell, Stratton, Edmonds & Palmer LLP, of
Topeka, for appellant.

Patrick A. Edwards, of Stinson Leonard Street LLP, of Wichita, and D. Christopher Robinson,
pro hac vice, of Frost Brown Todd LLC, of Louisville, Kentucky, for appellee.

2
Before ARNOLD-BURGER, C.J., HILL, J., and STUTZMAN, S.J.

ARNOLD-BURGER, C.J.: Duane Edward Flaherty brought claims for breach of
express and implied warranty against CNH Industrial America, LLC (CNH) after his
2014 Case IH Patriot 2240 Sprayer (Sprayer), manufactured by CNH, caught fire. The
district court granted summary judgment to CNH, finding that Flaherty failed to prove
that the Sprayer had a defect which caused the fire. Flaherty appealed.

Flaherty makes two arguments on appeal.

First, Flaherty argues that the district court erred in refusing to allow him to
depose CNH's in-house expert and employee, Robert Hawken. A party ordinarily may
not "discover facts known or opinions held by an expert who has been retained or
specially employed by another party in anticipation of litigation or to prepare for trial and
who is not expected to be called as a witness at trial." K.S.A. 2018 Supp. 60-
226(b)(5)(D). Whether an in-house expert like Hawken is "retained or specially
employed" is an issue of first impression in Kansas. Because Hawken only inspected the
Sprayer at the request of CNH's legal department in anticipation of litigation, we find that
CNH specially employed him for the purposes of the privilege. And we find that Flaherty
has failed to prove that CNH waived the privilege at any time.

Second, Flaherty argues that he did not have to show specific evidence of a defect
in the Sprayer to survive a summary judgment motion and, even if he did, there was
enough circumstantial evidence to prove the existence of a defect. We disagree. To
prevail on his claims, Flaherty had to show that the Sprayer had a defect. Moreover,
while a party may use circumstantial evidence to show a defect, Flaherty does not have
enough circumstantial evidence here to prove a defect.

Accordingly, the district court's grant of summary judgment to CNH is affirmed.

3
 FACTUAL AND PROCEDURAL HISTORY

Flaherty bought the Sprayer from Straub International, Inc. (Straub) in February
2014. CNH manufactured the Sprayer. Straub is an authorized dealer of CNH products.
Prior to making the purchase, Flaherty reviewed materials about the Sprayer on CNH's
website. He also discussed the Sprayer with Straub sales representative Eric Everhart
who told Flaherty "that the Sprayer was a good product that would do what [Flaherty]
needed it to do and that Straub would stand behind its product." The Sprayer came with a
Warranty and Limitation of Liability Agreement (Warranty Agreement) which provided:
"If a defect in material or workmanship is found in a unit and reported during the
Warranty Period, [CNH] will pay parts and labor costs to repair the defect if the services
are performed by an authorized [CNH] dealer at the dealer's location." A limitations and
exclusions provision in the Warranty Agreement stated that the Warranty Agreement
contained the entire warranty, and that CNH made no other express or implied
warranties.

On September 11, 2014, Flaherty brought the Sprayer to Straub for scheduled
maintenance and a spray hose adjustment intended to reinforce the Sprayer's boom
supports. Several months earlier, Straub had received a general Product Improvement
Program (PIP) bulletin to inspect the routing of 2014 Case IH Patriot 2240 Sprayers,
particularly the right-hand side hydrostatic drive hoses at the engine starter to make sure
they do not come in contact with the battery terminal on the engine starter. Flaherty left
the Sprayer at Straub with the door unlocked and the keys in the ignition. A Straub
mechanic was present and aware that the keys were in the Sprayer when Flaherty left.
The Sprayer had a full tank of diesel fuel and a full tank of diesel exhaust fluid. The
mechanic told Flaherty that he would move the Sprayer into the shop when he was ready
to work on it.

4
 Three days later, at 2 a.m. on September 14, 2014, a passerby saw the Sprayer
engulfed in flames and reported the fire to the Saline County Sheriff's Office. No one
from Straub had interacted with the Sprayer from the time Flaherty dropped it off.

Lieutenant Jeremiah Hays investigated the scene of the fire that night and prepared
an incident report. He reported: "At this time, the cause of the fire is unknown. There is
no evidence of an arson at this time. It is possible the fire started due to a faulty electrical
system."

Captain Jim Hughes went to the scene of the fire the following morning to try to
determine the cause of the fire. He reviewed surveillance video from Straub. While there
were several cameras, none were directed at the scene of the fire. Hughes observed no
foot or vehicle traffic in the two hours preceding the fire. Troy Long, a fire investigator
with the Salina Fire Department, accompanied Hughes because Hughes had no fire
expertise. But Long was not there in an official capacity and conducted no formal
investigation. After inspecting the Sprayer, Long told Hughes that the battery box on the
rear left side of the Sprayer was the origin of the fire and he "suspected some type of
electrical issue was more than likely the cause."

Flaherty had two experts inspect the Sprayer. David Higday, a certified fire
investigator, examined the Sprayer on September 17, 2014. In his report, he opined that
the fire originated in the cab of the Sprayer. He could not determine the cause of the fire.
He stated: "It is possible there was an electrical short within the cab, although it is a
remote possibility. It is also possible that someone intentionally set the cab of the sprayer
on fire." He noted that because the cameras were not facing the Sprayer, "[a] person on
foot could have gained access to the sprayer without being detected by the security
cameras." He discovered that Straub installed the cameras because there had been several
incidents of theft on the property. Because of a disability, Higday was unable to continue
working on the case. Kent Grier, President and Chief Investigator at Kent Grier Fire

5
Investigations, Inc., reviewed and adopted Higday's opinions. During a deposition, Grier
was clear that he was not offering an opinion that a defect in the design or manufacture of
the Sprayer caused the fire. He had no evidence to suggest that a defect caused or
contributed to the fire.

Ghattas Bitar investigated the scene of the fire on September 22, 2014, on behalf
of Flaherty's insurance company. Bitar is a senior technical consultant with Independent
Forensic Investigations Corporation. After examining the Sprayer, Bitar concluded that
the cause of the fire in the cab was undetermined. He believed it would not be possible to
conclusively determine the cause of the fire because of the extent of the damages.

Robert Hawken, a product safety specialist for CNH, investigated the Sprayer over
a month later. In an affidavit, Hawken stated that he inspected the Sprayer at the request
of CNH's legal department and in anticipation of litigation against CNH.

Flaherty sued CNH and Straub. The suit listed several causes of action, including
negligence, strict liability, breach of express warranty, breach of implied warranty of
merchantability, failure to warn, violations of the Kansas Consumer Protection Act
(KCPA), and negligent misrepresentation. Flaherty designated Grier and Bitar as his
expert witnesses. During discovery, Flaherty filed a notice of deposition duces tecum
informing the other parties of his intention to depose Hawken. CNH replied with a
motion to quash and asked the court for a protective order prohibiting Flaherty's
discovery of documents and information related to Hawken's inspection of the Sprayer
based on two statutory privileges. The district court granted CNH's motion and did not
allow Flaherty to depose Hawken. This will be addressed in more detail later.

CNH subsequently moved for summary judgment, mainly arguing that Flaherty
failed to prove that a defect in the Sprayer caused the fire. Flaherty settled with Straub
while the motion for summary judgment was pending.

6
 The district court granted CNH's motion for summary judgment. The court first
held that Flaherty's product liability and implied warranty claims failed because Flaherty
could not show that a defect in the Sprayer caused the fire. In doing so, the court noted
that the Kansas Product Liability Act (KPLA) governed the claims. The purpose of the
KPLA, the court held, was "to consolidate all product liability actions into one theory of
legal liability." This included Flaherty's claims for negligence, strict liability, implied
warranty, and failure to warn. In order for Flaherty to succeed on his defective product
claims, he had to prove that the Sprayer was defective. The existence of a defect could
not be inferred from the mere fact that the Sprayer was involved in a fire. The court held
that Flaherty failed to prove that there was a defect in the Sprayer because Flaherty's
experts "were unable to reach a conclusion as to the origin or the cause of the Fire, and
neither expert could offer testimony that the Sprayer was defective in any way."

The district court also relied on the economic loss doctrine to reject Flaherty's tort
claims. The court explained that this "doctrine precludes buyers of allegedly defective
goods from suing under negligence or strict liability theories where the only injury
consists of damage to the goods themselves." When a claim is purely for economic loss,
the damages are the same as they would be in a contract action. Thus, the court found that
"when the actual damages that could be recovered under a tort claim are the same as
those that could be recovered for breach of contract, the economic loss doctrine precludes
the tort claim."

The district court also rejected Flaherty's express warranty claim. Flaherty argued
that express warranties were created by the Warranty Agreement, claims on CNH's
website, and statements by a Straub sales representative. But the district court noted that
the Warranty Agreement stated that it contained the entire warranty, and that CNH made
no other representations or warranties, express or implied. The district court held that the
Warranty Agreement controlled, and "where an express warranty provides that a product
is free of defect in material and workmanship, the claimant must identify evidence of a

7
defect in the material or workmanship to overcome a motion for summary judgment." As
with the previous issue, Flaherty failed to demonstrate that a defect in the material or
workmanship of the Sprayer caused the fire.

Finally, the district court rejected Flaherty's claim that CNH violated the KCPA in
its Warranty Agreement by excluding, modifying, or limiting the implied warranty of
merchantability or fitness. The limitations and exclusions clause did state that it
"SPECIFICALLY EXCLUDES THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE." That said, it
then acknowledged that some states may not allow such a limitation, and that the stated
limitation would not apply if applicable state law did not allow such limitations. Because
CNH's implied warranty disclaimer only applied if state law permitted it, and Kansas law
does not permit it, the district court held that CNH did not violate the KCPA.

Flaherty appealed.

ANALYSIS

There are three primary issues in this appeal: whether the district court erred in
granting summary judgment to CNH on Flaherty's express warranty claims; whether the
district court erred in granting summary judgment to CNH on Flaherty's implied warranty
claims; and whether the district court erred in prohibiting discovery on Hawken's
inspection of the sprayer. Because the discovery issue impacts whether summary
judgment was premature here, we will begin with it.

I. The district court did not err in granting CNH's motion to quash the notice of
depositions duces tecum and request for protective order.

8
 A. We examine the facts giving rise to this claim of error.

Hawken, a product safety specialist for CNH, examined the Sprayer over a month
after the fire and after Flaherty's experts had already inspected it. In an affidavit, Hawken
stated that he inspected the Sprayer at the request of CNH's legal department and in
anticipation of litigation against CNH. He also said that he only reported his findings to
CNH's legal department and outside counsel. However, in Straub's answer to CNH's
interrogatory, Straub stated that "[d]uring the post-fire inspection of the Sprayer
performed by CNH's representative, CNH's representative told Straub General Manager
Bruce Spidle that it was his opinion that the fire started in the starter area, based on what
he saw from the pattern of the burn and the damage to the machine."

Flaherty filed a notice of deposition duces tecum informing the other parties of his
intention to depose Hawken. CNH replied with a motion to quash and asked the court for
a protective order prohibiting Flaherty's discovery of documents and information related
to Hawken's inspection of the Sprayer. CNH claimed that this information was protected
from discovery for two reasons. First, K.S.A. 2018 Supp. 60-226(b)(5)(D) protected
information gathered by Hawken because he is a non-testifying expert who prepared his
mental impressions and opinions in anticipation of litigation. Second, Hawken's materials
and opinions were protected by the work-product doctrine codified at K.S.A. 2018 Supp.
60-226(b)(4)(A) because Hawken inspected the Sprayer at the direction of CNH's in-
house counsel and only reported his findings to members of CNH's legal department.
Flaherty replied that CNH waived any work-product privilege related to Hawken's
inspection and report because Hawken disclosed his opinions to Spidle. Flaherty added
that CNH had waived any consulting expert privilege under K.S.A. 2018 Supp. 60-
226(b)(5) in two ways: First, Hawken's disclosure of his opinions to Spidle, and second,
by having Hawken sign its interrogatory answers. After a telephonic hearing in which the
parties presented oral argument, the district court granted CNH's motion for the reasons
provided in CNH's motion (work-product privilege and non-testifying witness privilege)

9
and did not allow Flaherty to depose Hawken, nor serve him with a subpoena duces
tecum.

Flaherty challenges both grounds of the order. If we find the district court erred in
prohibiting discovery, then summary judgment would be premature, and we would need
to remand the case for further discovery. So we begin with this claim of error.

B. Our standard of review for discovery error is abuse of discretion.

"[A] trial court is vested with broad discretion in supervising the course and scope
of discovery." Miller v. Johnson, 295 Kan. 636, 688, 289 P.3d 1098 (2012). "[O]rders
concerning discovery will not be disturbed on appeal in the absence of a clear abuse of
discretion." In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 (2004).
A judicial action constitutes an abuse of discretion if (1) no reasonable person would take
the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on
an error of fact. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 74, 350 P.3d
1071 (2015).

C. Privileges in the law must be strictly construed.

"Privileges in the law are not favored because they operate to deny the factfinder
access to relevant information." Adams v. St. Francis Regional Med. Center, 264 Kan.
144, Syl. ¶ 3, 955 P.2d 1169 (1998). "Because they are exceptions to the general rule that
parties may obtain discovery regarding any matter that is relevant to a party's claim or
defense, evidentiary privileges are to be strictly construed." Rockhill Pain Specialists v.
Hancock, 55 Kan. App. 2d 161, Syl. ¶ 7, 412 P.3d 1008 (2017). But as Justice Powell
wrote in United States v. Nobles, 422 U.S. 225, 237, 95 S. Ct. 2160, 45 L. Ed. 2d 141
(1975):

10
 "In performing his various duties, however, it is essential that a lawyer work with a
certain degree of privacy, free from unnecessary intrusion by opposing parties and their
counsel. Proper preparation of a client's case demands that he assemble information, sift
what he considers to be the relevant from the irrelevant facts, prepare his legal theories
and plan his strategy without undue and needless interference."

He went on to point out that "attorneys often must rely on the assistance of investigators
and other agents in the compilation of materials in preparation for trial." 422 U.S. at 238.
Thus, we have two statutory privileges in Kansas that seek to protect this information
from disclosure so that an attorney can properly represent his or her client: the work-
product privilege and the non-testifying expert privilege. Parties objecting to discovery
based on an evidentiary privilege bear the burden of establishing that it applies. Cypress
Media, Inc. v. City of Overland Park, 268 Kan. 407, 425, 997 P.2d 681 (2000).

We will explain the application of each in turn.

D. The work-product privilege protected the disclosure of any documents or
tangible things Hawken produced in anticipation of litigation.

The work-product privilege protects "documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative, including the other party's attorney, consultant, surety, indemnitor, insurer
or agent." K.S.A. 2018 Supp. 60-226(b)(4)(A). There is an exception when a "party
shows that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial equivalent by other means." K.S.A. 2018 Supp.
60-226(b)(4)(A)(ii). But Flaherty does not assert that this exception applies.

The work-product privilege only applies to "documents and tangible things."
K.S.A. 2018 Supp. 60-226(b)(4)(A). Thus, as Flaherty notes, it would not "apply to
testimony about [Hawken's] inspection, what he told Spidle, the basis for what he said, or
11
whether the statements Spidle attributes to him are correct." To the extent the district
court relied on the work-product privilege to prohibit Hawken's statements about his
investigation, this was error. But the privilege clearly extends to any documents or
tangible things that would have been the subject of the requested subpoena duces tecum.

Yet Flaherty argues that the privilege does not apply to any documents or tangible
things prepared by Hawken because CNH's legal department did not supervise their
preparation in anticipation of litigation. But Hawken submitted an affidavit stating that he
inspected the Sprayer in anticipation of litigation. We find that it was not an abuse of
discretion for the district court to accept this testimony. As CNH notes, Flaherty had
already had two of his own experts inspect the Sprayer before Hawken's inspection. It
was reasonable for CNH to anticipate litigation in this scenario.

While the work-product privilege does not protect oral testimony from Hawken, it
does protect any documents or tangible things he prepared for CNH and the district court
did not abuse its discretion in so finding.

E. The non-testifying expert privilege in K.S.A. 2018 Supp. 60-226(b)(5)(D)
applies to in-house experts like Hawken.

Flaherty next asserts that the non-testifying expert exception to discovery does not
protect Hawken's findings. It provides:

"Expert employed only for trial preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions held by an expert who has
been retained or specially employed by another party in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness at trial." K.S.A. 2018
Supp. 60-226(b)(5)(D).

12
There are a couple of exceptions to this general rule, but Flaherty does not argue that they
apply here. See K.S.A. 2018 Supp. 60-226(b)(5)(D)(i)-(ii). The issue is whether Hawken
qualifies as an expert employed only for trial preparation. If so, his opinions and reports
are privileged and not subject to disclosure as part of discovery.

This issue requires interpretation of the language in K.S.A. 2018 Supp. 60-
226(b)(5)(D). Interpretation of a statute is a question of law over which appellate courts
have unlimited review. Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d
469 (2015).

Both parties acknowledge that Hawken is a CNH employee. They dispute whether
an in-house expert like Hawken qualifies for the non-testifying expert privilege. Flaherty
argues that because CNH employs Hawken as a product safety specialist, he was not
"retained or specially employed" to prepare for the case. CNH argues that the privilege
attaches to Hawken because he was not "involved in the factual underpinnings of this
matter and was asked to inspect the fire scene by CNH's in-house counsel." When CNH's
counsel "designated and assigned [Hawken] to apply his expertise to this specific matter
in anticipation of litigation" Hawken became specially employed to investigate the fire.

Whether the non-testifying expert privilege applies to in-house experts is an issue
of first impression in Kansas. That said, Kansas' privilege is much like that in the Federal
Rules of Civil Procedure. The federal rule provides:

"Expert Employed Only for Trial Preparation. Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions held by an expert who has
been retained or specially employed by another party in anticipation of litigation or to
prepare for trial and who is not expected to be called as a witness at trial." Fed. R. Civ.
Proc. 26(b)(4)(D) (prior to 2010 known as 26[b][4][B]).

13
"The [federal] rule is designed to promote fairness by precluding unreasonable access to
an opposing party's diligent trial preparation." Durflinger v. Artiles, 727 F.2d 888, 891
(10th Cir. 1984). Both parties cite federal caselaw applying the rule to in-house experts.
And both can find support for their respective interpretations.

Federal judges have recognized that "[t]he concept of an in-house, non-testifying
expert witness is not specifically addressed under Rule 26." ZCT Systems Group, Inc. v.
FlightSafety Intern., No. 08-cv-447-JHP-PJC, 2010 WL 1257824, at *3 (N.D. Okla.
2010) (unpublished opinion). One federal judge noted that "[a] number of courts have
found that in-house experts never fall within the ambit of Rule 26(b)(4)(D)." Hartsock v.
Goodyear Dunlop Tires North America LTD, No. 2:13-cv -00419-PMD, 2014 WL
11022097, at *3 (D.S.C. 2014) (unpublished opinion). But the judge acknowledged that
other courts "have recognized instances where an in-house expert can be considered
'specially employed in anticipation of litigation' and thus fall within the protection of the
rule." 2014 WL 11022097, at *3. In their treatise on federal practice and procedure,
Wright and Miller noted that "[i]t may be that no parsing of the rule and Advisory
Committee Note will afford a fully satisfactory answer to that question." 8A Wright &
Miller, Federal Practice and Procedure: Civil § 2033 (3d ed. 2010). But the question has
arisen and thus this court must address it.

Flaherty's suggestion that the rule does not cover in-house experts finds support
from the Federal District Court for the Eastern District of Virginia in Virginia Electric &
Pow. Co. v. Sun Shipbuilding & D. D. Co., 68 F.R.D. 397 (E.D. Va. 1975). There, the
court observed that an expert is someone who can "'see all sides of a subject.'" 68 F.R.D.
at 406 (quoting Black's Law Dictionary [4th ed. 1951]). An expert is "expected to owe his
allegiance to his calling and not to the party employing him. In order to be an expert one
must be in a position to testify as an expert and not as a partisan." 68 F.R.D. at 406. The
defendant argued Rule 26(b)(4) should apply to an expert who was already employed by
a business who then assigns said employee to work on the matter at issue. But as the

14
court noted, that interpretation of the rule would "not take into account the fact that an
expert should be impartial, should owe his allegiance to his calling, should not be a
partisan and should be able to 'see all sides' of the issue." 68 F.R.D. at 407. The court
added that "[a] regular employee, assigned as an expert, meets none of these
prerequisites." 68 F.R.D. at 407.

The court went on to say that "'specially employed'" refers only to situations in
which the expert is "put on the payroll for the specific purpose of deriving facts and
opinions for use in trial preparation or anticipated litigation." 68 F.R.D. at 407. But the
term specially employed troubled the court. The court reasoned the term created two
possible distinctions between employee experts: "(1) an expert 'who is simply a general
employee,' and (2) an expert who was simply a general employee but who has been
specially assigned to the case." 68 F.R.D. at 407-08. That said, the court held that the
repetition of the term added nothing to its meaning. The court held that the term "merely
covers instances of employment of an expert for purposes of the specific litigation." 68
F.R.D. at 408. The court found that an in-house expert should be treated, "for purposes of
discovery, as an ordinary witness." 68 F.R.D. at 408.

CNH's suggestion that the rule does cover in-house experts finds support in several
cases.

First, in a case that arose after an explosion at a Shell Oil refinery, the Federal
District Court for the Eastern District of Louisiana found two Shell employees met the
definition of non-testifying experts under the rule. In re Shell Oil Refinery, 132 F.R.D.
437, 442 (E.D. La. 1990). At the request of Shell's legal counsel and in anticipation of
litigation, two Shell employees (R.E. Nordstrom and Paul A. Nelson) performed tests on
material removed from the explosion site. The plaintiffs sought to depose Nordstrom and
Nelson. Shell objected, asserting that Nordstrom and Nelson were non-testifying experts
and protected by the non-testifying expert privilege. The plaintiffs argued that Nordstrom

15
and Nelson "should be treated as ordinary witnesses under Fed. R. Civ. P. 26(b)(1)
because they are in-house experts who would have performed the tests in question as part
of their regular duties regardless of litigation." 132 F.R.D. at 441. The federal court had
to determine whether Nordstrom and Nelson were "retained or specially employed"
within the meaning of the rule:

"[T]he persuasive authority favors application of Rule 26(b)(4)(B) to non-testifying in-
house experts. To rule otherwise would encourage economic waste by requiring an
employer to hire independent experts to obtain the protection of Rule 26(b)(4). Protection
of an in-house expert's opinion's [sic] supports improved public safety and other social
benefits of self-analysis. That the work of an in-house expert is used not only to defend a
lawsuit but also to improve a company's operations or product design does not remove
him from the parameters of Rule 26(b)(4)(B).

"Not all in-house experts fall within the parameters of the retained or specially
employed language of Rule 26(b)(4)(B). The Advisory Committee Notes exclude from
the scope of Rule 26(b)(4)(B) 'an expert who is simply a general employee of the party
not specially employed on the case.' Those in-house experts who are not retained or
specially employed should be treated as ordinary witnesses under Rule 26(b)(1), and if
their work was in anticipation of litigation or preparation of trial, then discovery must be
analyzed under the work product doctrine, Rule 26(b)(3).

"Neither the Rule nor the Notes explain when a general employee may become
retained or specially employed. Some courts have found that the terms retained or
specially employed mean 'something more than simply the assignment of a current
employee to a particular problem raised by current litigation.' See Kansas-Nebraska
Natural Gas Co., Inc., 109 F.R.D. at 16. To the contrary, other authority suggests that 'a
regular employee may become specially employed when he is designated and assigned by
a party to apply his expertise to a particular matter in anticipation of litigation or for
trial.' See Pielemeier, Discovery of Non-Testifying In-House Experts, 58 Ind.L.J. at 605
(citing Graham, Discovery of Experts Under Rule 26(b)(4), 1976 U.Ill.L.F. note 3, at
942.)" 132 F.R.D. at 441-42.

16
The court decided that "[w]hether an in-house expert is retained or specially employed
must be decided case-by-case." 132 F.R.D. at 442. It then held that Shell's employees
"were retained or specially employed by Shell in preparation for trial." 132 F.R.D. at 442.
It reasoned:

"Shell's attorneys engaged Nordstrom and Nelson to perform specific tasks to help them
defend the lawsuit. At the direction of Shell's legal department and outside counsel,
Nordstrom and Nelson investigated and studied the cause of the explosion, and prepared
preliminary reports. Copies of the reports were sent only to Shell's outside counsel.
Although Nordstrom and Nelson might have studied the cause of the explosion regardless
of litigation, their usual duties do not include litigation assistance. That Nordstrom and
Nelson were not paid additional compensation or assigned exclusively to the litigation is
not conclusive. An in-house expert may be specially employed without additional
compensation or an exclusive assignment." 132 F.R.D. at 442.

Second, the Federal District Court for the District of Kansas reached a similar
result in Seiffer v. Topsy's International, Inc., 69 F.R.D. 69 (D. Kan. 1975). There,
defendant Touche, Ross, & Company moved for a protective order for the deposition of
John Van Camp. Van Camp was a partner at Touche. Touche argued that Van Camp
qualified as an expert who was retained or specially employed in anticipation under Rule
26(b)(4)(B) and that it did not intend to call Van Camp as a witness at trial. The
defendant underwriters in the case argued that Van Camp was clearly deposable because
he worked for Touche.

The district court held that Van Camp was "'specially employed'" for the purposes
of the privilege based on the facts of the case. 69 F.R.D. at 72. The court first focused on
the fact that Touche's law firm specifically requested that Van Camp assist in potential
litigation arising out of Touche's audits of the plaintiff's engagements. Second, Van Camp
was not involved in the audits. Third, Van Camp only revealed his report to Touche's
legal counsel. Finally, Van Camp would not be called as a witness at trial. Noting the

17
policies underlying discovery and privileges, the court reasoned that "[w]hile facts are not
to be hidden, nor necessary discovery improperly obstructed, neither is a party allowed to
delve at will into an expert mind solely to sustain its own burden of preparing for
litigation." 69 F.R.D. at 72.

Finally, the court in Tellabs Operations, Inc. v. Fujitsu Ltd., 283 F.R.D. 374, 387
(N.D. Ill. 2012), performed an in-depth analysis of the issue but refused to determine
whether an in-house expert was "'specially employed'" for the purposes of the rule
because the evidence was clear that the employees had not been working in anticipation
of litigation. Yet the court's review of the caselaw is informative. The court noted that
cases holding that an in-house expert could never be "'retained or specially employed'"
did so for three reasons: "the definition of an expert, the (supposedly) plain language of
Rule 26(b)(4), and the accompanying Advisory Committee Notes." 283 F.R.D. at 384
(citing Matter of Kegg, 116 F.R.D. 643 [N.D. Ohio 1987]; United States v. 22.80 Acres of
Land, 107 F.R.D. 20 [N.D. Cal. 1985]; Kansas-Nebraska Natural Gas v. Manhattan Oil
Co., 109 F.R.D. 12 [D. Neb. 1983]; Virginia Electric, 68 F.R.D. 397).

Despite the cases finding otherwise, the Tellabs court found that "the text and
structure of the Rule and the Advisory Committee Note are indeed susceptible of an
interpretation that supports a result contrary to those cases that have concluded that in-
house experts are not within the scope of the Rule." 283 F.R.D. at 385.

"If in-house experts were intended to have been excluded, one would have
expected the Rule to have ended with the words 'who have been specially retained.' In
common parlance, employees already on the job are not specially retained, no matter
what the task. The addition of the words, 'or specially employed,' presumably was
intended to signal a broader scope. To exclude in-house employees from the ambit of the
Rule is effectively to read out the phrase 'specially employed.' But that would contradict
of the basic principle that statutes should be construed to give effect to each word." 283
F.R.D. at 385.

18
The court also found that the Advisory Committee Note supported the idea that in-house
experts could be protected by the privilege:

"The impression that in-house experts are within the intended scope of the Rule
is further bolstered by the phrasing of the Advisory Committee Note, which, immediately
after stating that the Rule deals with an expert who has been retained or specially
employed by the party in anticipation of litigation or preparation for trial includes the
following parenthetical: '(thus excluding an expert who is simply a general employee of
the party not specially employed on the case).' (Emphasis supplied). If in-house experts
were intended to be excluded under the Rule, the Advisory Committee Note would have
ended with the words 'general employee of the party.' There would have been no need to
add the qualifier 'not specially employed on the case.' Adding that phrase denotes that a
'general employee of the party' is protected if specially employed on the case, but not
otherwise. In short, while the Advisory Committee Note is perhaps not decisive, its
explanation goes far to support an interpretation of the Rule that in-house experts are
within the ambit of the Rule if specially employed to perform a task in anticipation of
litigation." 283 F.R.D. at 385.

The Tellabs court also rejected the Virginia Electric court's reasoning that experts
must be impartial, and employees are not impartial. 283 F.R.D. at 385. The court called
this "a questionable basis for narrow interpretation of Rule 26(b)(4)(D)." 283 F.R.D. at
385. The court added that "[t]he premise that an expert is by nature impartial is based on
either an incorrect a priori assumption that bitter experience has long since proven to be
false or a dubious dictionary definition of 'expert' as one who possesses not only expertise
but impartiality as well." 283 F.R.D. at 385.

We find that the non-testifying expert privilege in K.S.A. 2018 Supp. 60-
226(b)(5)(D) applies to in-house experts like Hawken. As explained by the Tellabs court,
the reasoning of courts that refuse to apply the privilege in this situation is not persuasive.
First, as the Tellabs court explained, the Virginia Electric court's definition of expert is a
questionable basis for deciding this issue. Tellabs, 283 F.R.D. at 385. Virginia Electric

19
suggested that employees cannot be impartial. The court implied that employees would
lie or conceal facts unfavorable to their employer out of loyalty. See Virginia Electric, 68
F.R.D. at 407. But nothing guarantees that an expert will be impartial, just as nothing
guarantees that an employee will be dishonest when asked to investigate an issue in
anticipation of litigation.

Second, while some courts like Virginia Electric rely on the Advisory Committee's
Notes, the Notes are not conclusive on the subject. As noted in Tellabs, the Advisory
Committee Notes state that the Rule excludes experts who are simply general employees
of a party and not specially employed. Tellabs, 283 F.R.D. at 385. By adding the phrase
"not specially employed," the drafters of the Advisory Committee Notes may have
intended to provide the privilege to general employees when they are specially employed.
283 F.R.D. at 385. That said, Kansas did not adopt the Advisory Committee's Notes and
they are not directly relevant to determining the intent of the Kansas Legislature. While
they may be useful in divining the intent of the persons who drafted the Federal Rules of
Civil Procedure, Kansas has its own rules for interpreting statutes.

Two of these rules of statutory interpretation are important in deciding this issue.
An appellate court must first attempt to ascertain legislative intent through the statutory
language enacted, giving common words their ordinary meanings. Ullery v. Othick, 304
Kan. 405, 409, 372 P.3d 1135 (2016). And, Kansas courts presume the Legislature does
not intend to enact meaningless legislation. In re Marriage of Traster, 301 Kan. 88, 98,
339 P.3d 778 (2014). K.S.A. 2018 Supp. 60-226(b)(5)(D) covers experts who are
"retained" or "specially employed." The use of the term "employed" suggests that the
Legislature intended to cover employees of a party. If it did not intend to cover
employees, then the Legislature could have limited application of the rule only to retained
experts.

20
 The rule does not cover all employees—they must be "specially" employed.
Courts applying the rule to in-house experts have only applied the privilege to employees
who are working on a project they would not normally be working on. See Tellabs, 283
F.R.D. at 387. The Shell Oil court found that Nordstrom and Nelson were "specially
employed" by Shell. 132 F.R.D. at 442. The employees only investigated the explosion at
the request of Shell's attorneys. Even though "Nordstrom and Nelson might have studied
the cause of the explosion regardless of litigation, their usual duties do not include
litigation assistance." 132 F.R.D. at 442. Similarly, in Seiffer, the court noted that the
partner was not involved in the facts giving rise to the litigation and only assisted in
preparing for the litigation at the request of Touche's law firm. 69 F.R.D. at 72. In both
cases, the employees only reported their findings to their employers' legal counsel. Shell
Oil, 132 F.R.D. at 442; Seiffer, 69 F.R.D. at 72.

Here, Hawken's affidavit reveals that he investigated the Sprayer at the request of
CNH's legal department in anticipation of litigation and only reported his findings to
CNH's legal department. This makes his situation analogous to the employees in Shell Oil
and Seiffer. In this scenario, we find that facts known or opinions held by Hawken are
privileged under K.S.A. 2018 Supp. 60-226(b)(5)(D).

There remains the issue of whether Hawken waived this privilege, and we will
next address waiver as to both privileges asserted by CNH.

F. We examine waiver, in general.

The party claiming waiver of an evidentiary privilege bears the burden of proof to
establish the waiver. Lindley v. Life Investors Ins. Co. of America, 267 F.R.D. 382, 394
(N.D. Okla.) (noting majority view is that the party claiming waiver has the burden of
proof on that issue), aff'd in part as modified, No. 08-CV-0379-CVE-PJC, 2010 WL
1741407 (N.D. Okla. 2010) (unpublished opinion); Rhoads Industries v. Building

21
Materials Corp., 254 F.R.D. 216, 223 (E.D. Pa.) (party claiming waiver has the burden of
proof as to waiver), order clarified 254 F.R.D. 238 (E.D. Pa. 2008); Johnson v.
Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000) (party asserting waiver of work-product
immunity, rather than the party asserting the work-product protection, should have the
burden to establish waiver); Carmona v. State, 941 S.W.2d 949, 953 (Tex. Crim. App.
1997) ("party seeking to benefit by a finding of waiver has the burden of going forward
with evidence that supports a finding of waiver"). Waiver is described as the "intentional
relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 464,
58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Intention may be inferred from conduct.
Foundation Property Investments v. CTP, 286 Kan. 597, 609, 186 P.3d 766 (2008).
"Relinquishment" is defined as "[t]he abandonment of a right or thing." Black's Law
Dictionary 1482 (10th ed. 2014).

Waiver of privilege is governed by K.S.A. 60-437. The relevant portion of this
statute provides:

"A person who would otherwise have a privilege to refuse to disclose or to
prevent another from disclosing a specified matter has no such privilege with respect to
that matter if the judge finds that such person or any other person while the holder of
the privilege has . . . without coercion, or without any trickery, deception, or fraud
practiced against him or her, and with knowledge of the privilege, made disclosure of any
part of the matter or consented to such a disclosure made by anyone." K.S.A. 60-437.

There is no similar all-inclusive waiver provision under federal law. Given that,
some federal courts have concluded that the non-testifying expert provisions of Fed. R.
Civ. Proc. 26(b)(4)(D) are not subject to waiver at all. See Ludwig v. Pilkington North
America, Inc., No. 03 C 1086, 2003 WL 22242224, at *3 (N.D. Ill. 2003) (unpublished
opinion) (finding that when a party enjoys protection under Rule 26[b][4][B], the
protection is not subject to waiver); Vanguard Sav. and Loan Ass'n, VSL Service Corp. v.
Banks, No. CIV. A. 93-4627, 1995 WL 71293, at *2 (E.D. Pa. 1995) (unpublished
22
opinion) (finding, after non-testifying expert disclosed report to third party, it was
irrelevant whether expert violated work-product privilege because he still had a non-
testifying expert privilege that was not subject to waiver).

Other federal courts have suggested, however, that the protections afforded by
Rule 26(b)(4)(D), prior to 2010 known as Rule 26(b)(4)(B), can be waived. In Hartford
Fire Ins. v. Pure Air On The Lake Ltd., 154 F.R.D. 202 (N.D. Ind. 1993), the court
considered whether the defendant waived the protections of Rule 26(b)(4)(B) by issuing a
short press release concerning its non-testifying expert's conclusions. The court held that
"[a]rguably, the protections afforded under Federal Rule of Civil Procedure 26(b)(4)(B)
are waivable." 154 F.R.D. at 211. The court noted that generally waiver of a privilege
occurs when actions taken by the holder make it unfair to insist that the privilege remains
intact. The court also stated that courts have found a waiver when the holder of a
privilege "'voluntarily discloses . . . any significant part of the privileged matter.'" 154
F.R.D. at 211. The court found that no waiver occurred because the "minuscule"
disclosure in the press release did not make it unfair to insist that the protection remained.
154 F.R.D. at 211. The court also found that the disclosure did not constitute a significant
portion of the privileged material because the defendant did not "begin to recite all of [the
expert's] studies, factual findings or conclusions." 154 F.R.D. at 211.

Finally, even where a federal court finds that a party waived protections afforded
by Rule 26(b)(4)(D), the waiver may be limited in scope. Hollinger Intern. Inc. v.
Hollinger Inc., 230 F.R.D. 508, 521-22 (N.D. Ill. 2005). In Hollinger, the court found
that when the plaintiff disclosed part of its expert's findings, it only waived the
protections of Rule 26(b)(4)(B) as to the items actually disclosed. The court found that
the partial disclosure of the non-testifying expert's findings "did not automatically forfeit
the protection of Rule 26(b)(4)(B) as to the withheld information or place the entirety of
his work at issue." 230 F.R.D. at 522.

23
 With these general principles in mind we move on to Flaherty's claims of waiver
here.

G. Flaherty has failed to establish that CNH waived the work product or the non-
testifying expert privileges.

Flaherty contends that even if Hawken's investigation was protected by an
evidentiary privilege, CNH waived the privilege in two key ways: by having Hawken
verify its interrogatory answers, and by Hawken's alleged disclosure of his findings to
Spidle. But, after a careful review of these facts and the relevant caselaw, we find that
Flaherty's claim of waiver fails for three reasons.

For each, we assume for purposes of our analysis that Hawken made the
statements attributed to him by Spidle although we understand that fact is in dispute, with
an affidavit from Hawken revealing that he disclosed his opinions only to the CNH legal
team, and Straub's response to interrogatories that Hawken told Spidle that he had
concluded that the fire started in the starter area. Because the district court did not issue a
written order and there is no transcript of the telephonic hearing, it is impossible to
determine how the court dealt with this conflicting evidence in finding the privileges had
not been waived. In the end, it makes no difference in our analysis, so we will simply
assume that Hawken made the statement that Spidle attributes to him.

(1) Hawken could not waive the privilege on behalf of CNH.

In the case of a corporation, the power to claim or waive a privilege generally rests
with corporate management—ultimately with the officers and board of directors.
Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348, 105 S. Ct. 1986,
85 L. Ed. 2d 372 (1985); United States v. Hooker Chemicals & Plastics Corp., 112
F.R.D. 333, 338 (W.D.N.Y. 1986) (finding no waiver occurred because only the holder of

24
the privilege related to non-testifying experts, the defendant, could waive the
protections). A corporate employee cannot waive the corporation's privilege. Sprague v.
Thorn Americas, Inc., 129 F.3d 1355, 1371 (10th Cir. 1997). Here, the client was CNH,
and CNH retained the privilege against disclosing information gathered from its non-
testifying expert employee. Hawken, a nonlawyer CNH employee, could not waive that
privilege on behalf of the corporation, and Flaherty presents no evidence that CNH
consented to any of Hawken's disclosures to Spidle. Moreover, the statement made by
Hawken was in October 2014, after Flaherty's own experts had examined the Sprayer.
When CNH replied to interrogatories submitted to it during discovery by Flaherty—in
which he asked about any inspections CNH conducted on the Sprayer—CNH asserted
both the work-product privilege and the non-testifying expert privilege. This shows that
CNH had no intention of waiving those privileges. There must be a distinct and
unequivocal waiver to authorize the disclosure of privileged communications. Novak v.
Chicago Fraternal Life Ass'n, 136 Kan. 609, 612, 16 P.2d 507 (1932).

(2) Hawken's verification of the interrogatory answers on behalf of CNH
did not constitute a waiver of the work-product privilege or the non-
testifying expert privilege.

If a party to a lawsuit is a corporation, interrogatories directed to the corporation
must be answered "by any officer or agent, who must furnish the information available to
the party." K.S.A. 2018 Supp. 60-233(b)(1)(B). As an employee of CNH, there was
nothing irregular about Hawken answering the interrogatories directed to CNH. We fail
to see how the mere verification of answers to interrogatories waived the statutory
privileges, and Flaherty cites no caselaw to directly support his claim. This does not seem
at all unusual or untoward for a CNH employee who is on the litigation team in the case.
Hawken did not disclose or authenticate any facts or opinions he compiled related to the
cause of the fire. In his role as a CNH employee authorized to answer the interrogatories,
he verified that the responses were not all within his personal knowledge but that no one

25
employee had personal knowledge of all the interrogatory answers. He stated the answers
had been compiled by CNH employees who have informed him that the answers were
correct.

In sum, we do not find that the district judge abused his discretion in finding that
Hawken did not waive any of CNH's statutory privileges.

(3) Even if the district court erred by denying Flaherty the opportunity to
depose Hawken, the error was harmless.

Even if the district court erred by denying Flaherty the opportunity to depose
Hawken, the error was harmless. "Harmless error is error which does not prejudice the
substantial rights of a party. It affords no basis for a reversal of a judgment and must be
disregarded." Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715
P.2d 2 (1986); see also K.S.A. 2018 Supp. 60-261 (court to disregard errors that do not
affect substantial rights).

If Hawken waived the privilege by talking to Spidle, Flaherty would only be able
to discover the contents of that conversation. The waiver statute provides that a person
who discloses a privileged matter to a third-party no longer has a privilege in that
"specified matter." K.S.A. 60-437. It does not provide that the privilege is waived as to
matters not discussed with the third party. Even if Hawken's conversation with Spidle
were discoverable, the facts divulged by Hawken would not help Flaherty succeed in his
case. As will be explained below, Flaherty needed to prove that the Sprayer had a defect
to succeed on his express and implied warranty claims. Hawken did not tell Spidle that he
believed there was a defect.

That said, Flaherty asserts that Hawken's statements to Spidle strengthen his
implied warranty of merchantability claim by adding to the circumstantial evidence that

26
an electrical fault in the Sprayer caused the fire. He asserts that "it directly supports the
possibility that the Fire may have begun in the starter area, in agreement with Bitar's
documented observation that, when he inspected the machine, there was a break in an
energized cable between the starter and the alternator." Flaherty adds that Hawken's
statements also support "the possibility the fire started as a result of contact between
exposed steel braids in a hydrostatic cable and battery terminals on the starter, as
contemplated in the PIP." Contrary to Flaherty's assertion, the possibility that the fire
began in the starter area is unsupported by Bitar's report. Bitar traced the cables from the
battery to the starter and found them to be in good shape with no signs of electrical
activity. And, as will be discussed later, the district court found that the PIP was
inadmissible as evidence of a defect because none of Flaherty's experts had established a
causal relationship between the fire and the PIP.

As discussed above, none of the experts here determined that the Sprayer had a
defect. Even though his own experts would not opine on the existence of a defect,
Flaherty asks this court to speculate that a defect existed based on select portions of the
expert reports. Speculation is not a basis for liability. "Because liability in a products
liability action cannot be based on mere speculation, guess or conjecture, the
circumstances shown must justify an inference of probability as distinguished from mere
possibility." Mays v. Ciba-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348 (1983). Even if
the district court had allowed Flaherty to depose Hawken, there is no indication that
Hawken would have identified an actionable defect in the Sprayer. At most, his testimony
would add to the already varied possibilities and speculation on the cause of the fire.

Finally, any erroneous application of the work product or non-testifying expert
privileges did not deny Flaherty access to information vital to his claim. His experts
examined the Sprayer over a month before Hawken. They had access to all the same
information Hawken's did regarding external observations of the unit. The information
disclosed was available from other sources, including Flaherty's own hired experts.

27
 Finding no error in the granting of a protective order regarding Hawken, we next
turn to the appropriateness of the granting of CNH's summary judgment motion.

II. The district court did not err in granting summary judgment to CNH on Flaherty's
express and implied warranty claims.

Flaherty argues that the district court erred in granting summary judgment on his
express and implied warranty claims.

A. Our standard of review is de novo.

In an appeal from the district court's ruling on a summary judgment motion, we
consider the motion de novo and apply the same standards which the district court
applied. We owe no deference to the district court decision or rationale. Cady v. Schroll,
298 Kan. 731, 734, 317 P.3d 90 (2014).

Summary judgment is appropriate only when the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, show that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. K.S.A. 2018 Supp. 60-256(c)(2). Any court considering the motion
must resolve all facts and inferences which may reasonably be drawn from the evidence
in favor of the party against whom the summary judgment motion is sought. When
opposing a motion for summary judgment, an adverse party must come forward with
evidence to establish a dispute as to a material fact. To preclude summary judgment, the
facts subject to the dispute must be material to the conclusive issues in the case. The
court must deny a motion for summary judgment if reasonable minds could differ over
the conclusions drawn from the evidence. See Armstrong v. Bromley Quarry & Asphalt,
Inc., 305 Kan. 16, 24, 378 P.3d 1090 (2016).

28
 B. The district court denied Flaherty's express and implied warranty
claims.

Flaherty brought claims for breach of both express and implied warranties. He
alleged that CNH made three express warranties. One arose from the text of the Warranty
Agreement. The other two were based on "descriptions on the CNH . . . website and the
representations by Straub's salesman, Everhart, that the Sprayer was a good product and it
would do what Plaintiff needed it to do." Flaherty also argued that the UCC created an
implied warranty of merchantability applicable to the Sprayer.

The district court held that the only express warranty applicable to the case was
the one in the Warranty Agreement. It denied Flaherty's other express warranty argument
because the written warranty "disclaim[ed] any express warranty created by CNH's
generic descriptions of the Sprayer on its website and/or alleged statements by a Straub
salesman." The district court then denied the express and implied warranties because
Flaherty failed to prove that a defect in the Sprayer caused the fire. The issues we must
determine are: (1) Did the Warranty Agreement disclaim any express warranties that
may have arisen out of descriptions of the product; and (2) do the warranties that applied
to the Sprayer require Flaherty to prove that the Sprayer had a defect? If the answer to the
second question is yes, then we must determine whether Flaherty provided sufficient
evidence of a defect to survive summary judgment.

C. The Warranty Agreement disclaimed any express warranty created by
descriptions of the Sprayer on its website or by statements made by the sales
representative.

The Warranty Agreement provided: "If a defect in material or workmanship is
found in a unit and reported during the Warranty Period, [CNH] will pay parts and labor

29
costs to repair the defect if the services are performed by an authorized [CNH] dealer at
the dealer's location." A limitations and exclusions clause further provided:

"THIS DOCUMENT CONTAINS THE ENTIRE [CNH] WARRANTY. [CNH]
MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESSED
OR IMPLIED, AND SPECIFICALLY EXCLUDES THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR
PURPOSE.* [CNH] WILL NOT BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES RESULTING FROM A BREACH OF THE
WRITTEN WARRANTY OR ANY IMPLIED WARRANTY IMPOSED BY
LAW.*
*These limitations and exclusions may not be allowed by some states or provinces, and
they shall not apply to the extent such limitations or exclusions are not allowed by
applicable state/provincial law."

Flaherty argues that this Warranty Agreement did not disclaim any express
warranties created by CNH's website or statements made by the Straub sales
representative. The first issue is determining whether the descriptions of the Sprayer on
the website or the claims by Straub's sales representative created express warranties. If
they do, then the next issue is determining whether the Warranty Agreement disclaimed
them.

(1) Flaherty fails to identify any specific descriptions of the Sprayer on the
website or in written materials he was provided upon which he relied.

Under Kansas' UCC, "[a]ny description of the goods which is made part of the
basis of the bargain creates an express warranty that the goods shall conform to the
description." K.S.A. 84-2-313(1)(b). "It is not necessary to the creation of an express
warranty that the seller use formal words such as 'warrant' or 'guarantee' or that he have a
specific intention to make a warranty," however, "an affirmation merely of the value of

30
the goods or a statement purporting to be merely the seller's opinion or commendation of
the goods does not create a warranty." K.S.A. 84-2-313(2).

CNH argues that Flaherty failed to identify specific factual representations from
its website that he relied on in purchasing the Sprayer. In his response to CNH's motion
for summary judgment, Flaherty alleged that he "reviewed materials about the Sprayer on
CNH's website." He cited his own deposition testimony in support of this statement. In
the deposition, CNH asked Flaherty "What marketing materials did you review in the
decision-making process to buy this sprayer?" He replied, "There might have been some
flyers and brochures out by then." He also looked at pictures of the Sprayer on CNH's
website. But he did not have the flyers or brochures that he looked at, nor did he have any
specific details of what he saw on the website. When opposing a motion for summary
judgment, an adverse party must come forward with evidence to establish a dispute as to
a material fact. Without knowing what claims CNH made about the product on its
website, this court cannot determine whether they created an express warranty. Flaherty's
failure to prove the facts relevant to this claim precludes this court, as it did the district
court, from finding that an express warranty arose from representations on brochures and
on the website.

(2) Comments by the sales representative were merely expressions of
opinion and created no express warranty.

Flaherty also contends that an express warranty was created when a Straub sales
representative told him "that the Sprayer was a good product that would do what I needed
it to do and that Straub would stand behind its product." CNH argues that this comment
was merely an expression of opinion and created no express warranty. We agree.

"A seller's oral representation may constitute an express warranty." Golden v.
Den-Mat Corporation, 47 Kan. App. 2d 450, 482, 276 P.3d 773 (2012). But a "general,

31
though unquantifiable, expression[] of quality or superiority cannot form the basis of an
express warranty." 47 Kan. App. 2d at 482. For example, "[a] seller's representations that
goods are 'first rate' or 'the finest around' are examples of sales talk or puffing that would
not create an express warranty." 47 Kan. App. 2d at 482. Here, the seller's statement
constitutes a mere opinion and created no express warranty. The portion of the statement
that the Sprayer is a "good product" is an expression of quality. The portion of the
statement that the Sprayer would "do what [Flaherty] needed it to do" is a general,
unquantifiable statement given the facts before this court. If Flaherty had provided
evidence that the sales representative promised that the Sprayer would perform some
specific function, and the Sprayer did not perform that specific function, than Flaherty
would have a better case.

"The line which separates a case of mere puffing and commendation from an
affirmation of a fact is sometimes indefinite." Topeka Mill & Elevator Co. v. Triplett, 168
Kan. 428, 435, 213 P.2d 964 (1950). The Kansas Supreme Court has said that "[i]n such
cases it is ordinarily the province of the jury to determine as a matter of fact whether a
warranty was intended." 168 Kan. at 435; see Young & Cooper, Inc. v. Vestring, 214
Kan. 311, 325, 521 P.2d 281 (1974). That said, it is unnecessary for us to remand this
issue for jury determination because even if an express warranty exists, the Warranty
Agreement effectively disclaims it.

(3) Even if the sales representative's puffery were an express warranty, the
Warranty Agreement disclaimed it.

As for limitation of warranties, the UCC provides:

"Words or conduct relevant to the creation of an express warranty and words or
conduct tending to negate or limit warranty shall be construed wherever reasonable as
consistent with each other; but subject to the provisions of this article on parol or

32
 extrinsic evidence (K.S.A. 84-2-204) negation or limitation is inoperative to the extent
that such construction is unreasonable." K.S.A. 84-2-316(1).

In other words, a written disclaimer is ineffective if it is inconsistent with the express
warranty. Here, the Straub salesperson's comment that "the Sprayer was a good product
that would do what [Flaherty] needed it to do" is consistent with the Warranty
Agreement, providing that CNH would pay the cost for any defect in material or
workmanship. If there was no defect in the product, then it would be a "good product"
that did "what [Flaherty] needed it to do." The only reason the Sprayer would not do what
Flaherty needed it to do would be if there was some defect in material or workmanship.
This is not a case in which CNH extended its liability beyond product defects. CNH did
not warrant that the Sprayer would operate or perform in a certain manner, other than a
normal manner free of defects. Assuming for the sake of argument that Everhart's
comment created an express warranty, it is consistent with the Warranty Agreement.
Thus, the district court did not err in holding that the Warranty Agreement disclaimed
any express warranty created by the Straub salesperson.

D. The Warranty Agreement required Flaherty to prove that the Sprayer had a
defect in material or workmanship.

Flaherty next argues that the district court erred in holding that his claim for
breach of express warranty required him to prove that the Sprayer had a specific product
defect.

Whether a claim for breach of express warranty requires proof of a specific
product defect presents a question of law subject to unlimited review. See Thomas v.
Board of Shawnee County Comm'rs, 293 Kan. 208, Syl. ¶ 2, 262 P.3d 336 (2011).

33
 The district court cited a federal case, Sithon Maritime Co. v. Holiday Mansion,
983 F. Supp. 977 (D. Kan. 1997), for the proposition that "where an express warranty
provides that a product is free of defect in material and workmanship, the claimant must
identify evidence of a defect in the material or workmanship to overcome a motion for
summary judgment." Flaherty asserts that Sithon Maritime does not state this proposition.
Rather, he argues, "[t]he Sithon Maritime court simply suggests summary judgment could
be avoided by showing either a product defect or the product failed within the warranty
period while being used in a way covered by the warranty."

Flaherty is correct that not all warranty cases require proof of a specific defect.
Our Supreme Court has stated:

"A manufacturer may by express warranty assume responsibility in connection with its
products which extends beyond liability for defects. All express warranties must be
reasonably construed taking into consideration the nature of the product, the situation of
the parties, and surrounding circumstances. However, defects in the product may be
immaterial if the manufacturer warrants that a product will perform in a certain manner
and the product fails to perform in that manner. Defects may be material in proving
breach of an express warranty, but the approach to liability is the failure of the product to
operate or perform in the manner warranted by the manufacturer." Huebert v. Federal
Pacific Electric Co., Inc., 208 Kan. 720, 725, 494 P.2d 1210 (1972).

See also K.S.A. 84-2-313 Kansas Comment 5 ("[I]n an express warranty case it is not
necessary for a buyer to show a defect. Instead, a buyer must show only that the goods do
not conform to the representation."). But here CNH made no warranty that extended
beyond liability for defects. The Warranty Agreement covers only "DEFECT[S] IN
MATERIALS OR WORKMANSHIP." Thus, while not all express warranty actions
require proof of defects, this one does because defects are the only thing that the warranty
protects against.

34
 Flaherty cites several distinguishable cases on this point. First, he relies on
Scottsdale Ins. Co. v. Deere & Co., 115 F. Supp. 3d 1298 (D. Kan. 2015). There, Chris
and Karly Chereny purchased two John Deere combines. Like the Warranty Agreement
here, Deere's express warranty provided that it would "repair or replace any covered part
that is found to be defective in material or workmanship during the warranty term." 115
F. Supp. 3d at 1302. A fire destroyed one of the combines during harvest operations. The
Cherenys' insurance company, Scottsdale Insurance Company, sued John Deere for
breach of express warranty and breach of the implied warrant of merchantability.

The federal court held Scottsdale's expert was not qualified to testify about a
defect in the combine. 115 F. Supp. 3d at 1302. The court granted John Deere summary
judgment on the implied warranty claim but held summary judgment was improper on
the express warranty claim. 115 F. Supp. 3d at 1306-07. The court noted Scottsdale had
to "prove that the combine suffered from a defect in material or workmanship to prevail
on its breach of express warranty claim." 115 F. Supp. 3d at 1308.

John Deere argued Scottsdale could not prove there was a defect because the court
did not allow Scottsdale's expert to testify. But Scottsdale had other evidence of a defect,
namely that shortly before the fire, the combine was shooting flames from the exhaust.
John Deere did "not counter with evidence that flames shooting from the exhaust are a
normal part of operation for [the combine]." 115 F. Supp. 3d at 1308. Instead, it asserted
that the flames were "likely caused by crop debris accumulated on the combine over the
course of a seven-hour day of harvesting." 115 F. Supp. 3d at 1308. The district court
rejected John Deere's motion for summary judgment because of this factual dispute:

"Deere's contentions of fact indicate that the fire was not caused by a component
failure; Scottsdale's contentions of fact indicate that some emissions component ignited
within combine's exhaust system, evidencing a defect. This factual dispute is material
because it affects the determination of whether the combine suffered from defective

35
 materials or workmanship. The dispute is genuine because a reasonable juror might
conclude that fire shooting from the combine's exhaust, together with a lack of definitive
proof of other causes and an expert opinion that the fire originated near the DPF, is
sufficient evidence to prove a defect." 115 F. Supp. 3d at 1308.

This case is distinguishable for two reasons. First, there is no factual dispute that would
preclude summary judgment. The parties both accept the experts' reports and use them to
argue their respective positions. Second, and more important, Flaherty has not provided
evidence of a defect that could cause a fire or evidence that the Sprayer was acting in a
way that suggested a defect. This is in contrast to Scottsdale, which had evidence that the
combine was shooting flames out of its exhaust before the fire. Flaherty's failure to
provide evidence of a defect is fatal to his claim.

Flaherty also relies on Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d
525, 571 P.2d 48 (1977). There, Ruth Scheuler brought a wrongful death action, premised
on breach of express and implied warranties, against Aamco Transmissions, Inc. She
alleged that a problem with a car transmission installed by Aamco caused her father's
(George Utter) death. The evidence showed that Utter turned on the car and that the car
spontaneously put itself in reverse. The car ran over Utter, killing him. Aamco argued
that it did not breach the express warranty because there was no evidence of a specific
defect in the transmission. But this court found that Aamco's warranty extended beyond
defects. 1 Kan. App. 2d at 529. This court held that through its advertising materials,
Aamco expressly warranted the installation and performance of the transmission. 1 Kan.
App. 2d at 528. Because Aamco warranted the performance of the transmission,
Scheuler's "burden was only to demonstrate that it did not perform in the manner
warranted. Proof of a specific defect was not required." 1 Kan. App. 2d at 529.

In Scheuler, there was "considerable evidence concerning Aamco advertising." 1
Kan. App. 2d at 527-28. Here, however, Flaherty made vague claims that he "reviewed
materials about the Sprayer on CNH's website." He did not identify the marketing
36
materials on which he relied. Thus there is no basis for this court to find that the
advertising materials formed an express warranty related to the Sprayer's performance.
Again, Flaherty had to establish that the Sprayer did not perform in the manner
warranted, which required proving that the Sprayer had a defect in material or
workmanship.

Flaherty cites Cricket Alley Corp. v. Data Terminal Systems, Inc., 240 Kan. 661,
Syl. ¶ 3, 732 P.2d 719 (1987), for the Kansas Supreme Court's statement that "[t]he buyer
is not required to prove what defect or shortcoming in the design or manufacture of the
product prevented its functioning as warranted." There, Cricket Alley Corporation
bought computerized cash registers from Data Terminal Systems, Inc. (DTS). DTS told
Cricket Alley that the cash registers would be able to communicate with Cricket Alley's
Wang computer in the general office. After purchasing the DTS cash registers, Cricket
Alley discovered that they could not communicate with the Wang computer. The court
noted that there was sufficient evidence that DTS created an express warranty that its
products could communicate with the Wang computer. 240 Kan. at 664. An expert
testified that the DTS equipment was at fault for the communication problems. DTS
complained on appeal that Cricket Alley failed to provide evidence of a specific defect in
its cash registers. The court rejected this argument, stating that Cricket Alley only had to
prove that the DTS equipment did not perform as warranted. 240 Kan. at 666. In other
words, Cricket Alley only had to prove that the DTS cash registers could not
communicate effectively with the Wang computer.

Here, the Warranty Agreement provided that the Sprayer would be free of defects
in materials or workmanship. To prove that the Sprayer did not perform as warranted,
Flaherty needed to show a defect in materials or workmanship. Unlike Cricket Alley,
Flaherty has not proven that CNH's equipment is at fault for the fire. For similar reasons,
other cases Flaherty cites are distinguishable. See Cantrell v. R. D. Werner Co., 226 Kan.
681, 684-85, 602 P.2d 1326 (1979) (holding that plaintiff did not have to show a specific

37
defect in a ladder which collapsed and injured him because, while the express warranty
covered defects in material or workmanship, the manufacturer of the ladder also
warranted that the product was good quality, light, strong, and safe); Huebert, 208 Kan.
725 (holding that plaintiff, who was electrocuted after opening a panel box even though
the switch showed that the power was off, did not have to show a specific defect in an
electrical switch because the manufacturer of the switch expressly warranted that no
electric current would run through the panel when the switch was in the off position);
Voelkel v. General Motors Corp., 846 F. Supp. 1468, 1478 (D. Kan. 1994) (noting that
the plaintiff did not have to prove the existence of a specific defect in a seat belt buckle
because the manufacturer expressly warranted that the seat belts were "'trouble-free, safe,
of superior craftsmanship, built and manufactured with high quality materials and
workmanship'").

Finally, Flaherty briefly mentions Stair v. Gaylord, 232 Kan. 765, 659 P.2d 178
(1983), to support his argument. In Stair, a commercial strawberry grower bought an
irrigation system. The system included a hose manufactured by Goodyear Tire & Rubber
Company. Goodyear's five-year warranty ensured that "the hose would be 'free from
defects in material and workmanship.'" 232 Kan. at 770. But the hose developed a hole
which caused a loss of water pressure and resulted in a shutdown of the irrigation system.
Goodyear offered to fix the hose, but the grower did not receive a new hose until after his
crop was severely damaged. The grower sued Goodyear and others alleging, among other
things, breach of express warranty and breach of the implied warranties of
merchantability and fitness. The district court entered a directed verdict in favor of the
defendants. The Kansas Supreme Court reversed the district court insofar as it ruled that
there was no evidence of breach of the express warranty. 232 Kan. at 770-71. The court
held that the existence of the hole was evidence that the product was defective. 232 Kan.
at 770. Goodyear's willingness to replace the hose provided further evidence of a defect.
The court concluded that the issue should have been submitted to a jury. 232 Kan. at 771.
This case works against Flaherty's argument. The Kansas Supreme Court reversed the

38
directed verdict because there was evidence of a defect. Here, there is no evidence of a
defect. The Sprayer was on fire, but there was no evidence that a defect caused the fire.

The Warranty Agreement created an express warranty against defects in materials
or workmanship. Unlike in many cases Flaherty cited, there were no additional warranties
created. To prevail on his express warranty claim, Flaherty had to prove that the Sprayer
did not have the properties warranted which meant he had to show a defect in material or
workmanship. Neither of Flaherty's experts could identify a defect in the Sprayer. Bitar
did not believe it was possible to identify what caused the fire. And Grier specifically
stated that he had no opinion about whether a defect in the design or manufacture of the
Sprayer caused the fire. Thus, the district court did not err in granting summary judgment
to CNH for Flaherty's failure to identify evidence of a defect in the material or
workmanship.

E. Flaherty was also required to prove the existence of a defect to succeed on his
implied warranty claim.

The UCC creates an implied warranty of merchantability, providing: "Unless
excluded or modified . . . , a warranty that the goods shall be merchantable is implied in a
contract for their sale if the seller is a merchant with respect to goods of that kind."
K.S.A. 84-2-314(1). The parties agree that an implied warranty exists here. The district
court rejected Flaherty's implied warranty claim because Flaherty failed to prove that
there was a defect in the Sprayer. Flaherty now asserts that he presented sufficient
evidence that a product defect caused the fire and that he negated speculation that arson
caused the fire.

Under an implied warranty of merchantability, goods must be "fit for the ordinary
purposes for which such goods are used." K.S.A. 84-2-314(2)(c). The comments to the
statute state that "[t]o make out a breach under this paragraph, a buyer must show that the

39
goods were defective and that the defect was present when the goods left the seller's
control." K.S.A. 84-2-314 Kansas Comment 4; see also Black v. Don Schmid Motor, Inc.,
232 Kan. 458, 467, 657 P.2d 517 (1983) ("Kansas case law has interpreted this to mean
that the buyer must show the goods were defective and the defect existed at the time of
the sale."). A product liability case may be proven by circumstantial evidence. Butterfield
v. Pepsi-Cola Bottling Co., 210 Kan. 123, 126, 499 P.2d 539 (1972).

F. Flaherty Did Not Provide Sufficient Circumstantial Evidence to Prove That the
Sprayer Had a Defect.

Flaherty acknowledges that he does not have direct evidence of a specific defect
but argues that he proved a defect through circumstantial evidence.

The Kansas Supreme Court explained what circumstantial evidence is required in
a products liability action:

"For circumstantial evidence to make out a prima facie case, it must tend to negate other
reasonable causes, or there must be an expert opinion that the product was defective.
Because liability in a products liability action cannot be based on mere speculation, guess
or conjecture, the circumstances shown must justify an inference of probability as
distinguished from mere possibility. While a plaintiff is not normally required to prove
his case at the summary judgment stage, he must present some facts to support the
elements of his claim." Mays, 233 Kan. at 54.

Flaherty argues that, while he has no expert opinion that the product was defective, he
has negated other reasonable causes of the fire.

Flaherty reviews all the evidence which purportedly supports his argument that the
Sprayer had a defect. But the district court found that much of this evidence was
inadmissible for the purposes Flaherty wishes to use it—to prove the existence of a

40
defect. Kansas statute provides the standards governing how a party may introduce
testimony in the form of opinions or inferences.

"(a) If the witness is not testifying as an expert, the testimony in the form of
opinions or inferences is limited to such opinions or inferences as the judge finds:
(1) Are rationally based on the perception of the witness; (2) are helpful to a clearer
understanding of the testimony of the witness; and (3) are not based on scientific,
technical or other specialized knowledge within the scope of subsection (b).

"(b) If scientific, technical or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue, a witness who is qualified
as an expert by knowledge, skill, experience, training or education may testify thereto in
the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or
data; (2) the testimony is the product of reliable principles and methods; and (3) the
witness has reliably applied the principles and methods to the facts of the case." K.S.A.
2018 Supp. 60-456.

Flaherty begins by noting that Long, a fire investigator for the Salina Fire
Department, told Captain Hughes that a battery box was the origin of the fire and that
some sort of electrical issue was likely the cause. The district court held that Long's
testimony was insufficient circumstantial proof of a defect. The district court was correct.
Long's opinion about the origin of the fire is the type of scientific, technical, or other
specialized knowledge discussed in K.S.A. 2018 Supp. 60-456. Long admitted that he
conducted no formal investigation of the Sprayer. And, Flaherty never tried to designate
Long as an expert witness. So his conclusions about the cause of the fire do not help
Flaherty's case.

Next, Flaherty recites specific portions of his experts' reports as circumstantial
evidence that a defect existed. However, Flaherty's experts did not find enough evidence
to infer that the Sprayer was defective. Higday's report called the idea of an electrical
short within the cab a "remote possibility" while also noting that it was "possible that

41
someone intentionally set the cab of the sprayer on fire." Grier, who certified Higday's
report after he was unable to continue in the case, was very clear that he had no evidence
to suggest that a defect caused or contributed to the fire. Bitar was also unable to
determine the cause of the fire.

Flaherty also relies on the 2014 PIP bulletin issued by CNH. This bulletin called
for inspection of the hydrostatic drive hoses at the engine starter. If the inspection found
exposed steel braids, the bulletin recommended replacing the hydrostatic drive hose.
Flaherty asserts that Bitar noted a break in an energized cable between the starter and the
alternator. This, Flaherty argues, "support[s] the possibility the fire started due to contact
between exposed steel braids in a hydrostatic cable and battery terminals on the starter, as
contemplated in the PIP." However, the district court ruled that evidence of the PIP was
inadmissible because it was too speculative. Flaherty does not challenge the district
court's admissibility determination regarding the PIP in this appeal. Furthermore, Bitar's
report does not support Flaherty's factual contention that there was an electrical problem
with the starter. His report provides:

"My inspection of the subject sprayer revealed severe fire damage in the cab area as well
as to the engine. The electrical batteries and cables associated with the batteries to the
engine revealed no signs of melting, arcing or beading which would have indicated
electrical activities on the cables from the battery to the starter and alternator. I traced all
these cables and identified that they were in good shape and exhibited no signs of
electrical activity."

While Flaherty uses Bitar's report to support his contention that the fire started because of
a problem with the battery terminals on the starter, Bitar found no signs of electrical
activity on the cables from the battery to the starter.

Finally, Flaherty argues that he sufficiently negated the possibility of arson as the
cause of the fire. As stated above, "[f]or circumstantial evidence to make out a prima
42
facie case, it must tend to negate other reasonable causes, or there must be an expert
opinion that the product was defective." Mays, 233 Kan. at 54. Flaherty notes that
Hughes, Hays, and Long did not find any physical evidence of arson at the scene.
However, as the district court noted none of these people were qualified to offer an
opinion about the cause of the fire. Flaherty's own experts found that arson was a
possibility. The evidence supporting arson was just as inconclusive as the evidence
supporting a defect.

In sum, Flaherty asks the court to make inferences that his experts would not make
because they did not find evidence to support the inferences. "Before liability can result
from a breach of implied warranty there must be evidence from which an inference is
permissible that the product was defective at the time it left the hands of the defendant."
Querry v. Montgomery Ward & Co., Inc., 217 Kan. 104, Syl. ¶ 2, 535 P.2d 298 (1975).
Flaherty's own experts refused to infer the presence of a defect. The district court did not
err in holding that it would be inappropriate to ask a jury to make an inference based on
the same evidence, especially as the jurors likely do not have the scientific, technical, or
other specialized knowledge necessary to determine that a defect was present.

G. Flaherty also failed to prove that the goods were defective at the time the
Sprayer left CNH's control.

To prove breach of the implied warranty of merchantability, Flaherty also had to
show that the defect existed at the time the Sprayer left CNH's control. K.S.A. 84-2-314
Kansas Comment 4; see Black, 232 Kan. at 467. Because Flaherty cannot prove that a
defect existed, it is impossible to determine whether the defect existed at the time it left
CNH's control. We need go no further.

But even if we were to find that a defect existed at the time of the fire, Flaherty
cannot prove that the defect existed at the time it left CNH's control. To reiterate,

43
Flaherty's theory is that the fire started because of an electrical issue. For purposes of this
analysis we will accept—for the sake of argument—that such an electrical defect existed
at the time of the fire.

The district court held that Flaherty failed to provide sufficient evidence on this
point. The court relied on the fact that Flaherty had used the Sprayer for about 100 hours
when he brought it to Straub, the Sprayer had several repairs before the fire, and Flaherty
had modified the Sprayer to add a rear-view camera. We will examine each finding.

That Flaherty operated the Sprayer for about 100 hours before the fire is not fatal
to his implied warranty claim. In Dieker v. Case Corp., 276 Kan. 141, 73 P.3d 133
(2003), buyers of a combine brought an implied warranty claim against the manufacturer
of the combine after the combine caught on fire. They had used the combine for around
120 hours at the time of the fire. The manufacturer argued that there was insufficient
evidence that a defect existed when the combine left its control. The Kansas Supreme
Court did not challenge the fact that the combine had been used before the fire. Instead,
the court focused on the fact that no one had performed any maintenance or other work in
the area of the alleged defect. See 276 Kan. at 162-63. Flaherty used the Sprayer here for
less time than the combine was used in Dieker. Thus, his use of the Sprayer should not
defeat his implied warranty claim.

Likewise, the fact that Flaherty installed a rear-mount camera on the Sprayer is not
fatal to his implied warranty claim. At the time of purchase, the Sprayer was equipped for
installation of a rear-mount camera that would allow the operator of the Sprayer to view
traffic behind the Sprayer. Flaherty bolted the camera on to the Sprayer and plugged in
the monitor. In Dieker, the court focused only on whether the area of the alleged defect
had been altered since the combine left the manufacturer's control. 276 Kan. at 162-63.
The installation of the rear-mount camera did not affect the areas where Flaherty alleged

44
that a defect caused the fire. As a result, this modification does not defeat a finding that
the defect existed at the time the Sprayer left CNH's control.

But the district court's third basis for finding insufficient evidence on this element
is sound. Flaherty admits that he had switches on the Sprayer repaired before the fire. He
states: "To the extent the fire may have originated in electronics in the cab . . . two
repairs had been done to electrical systems in the cab." This admission shows that the
electrical system was not in the same condition that it was when the Sprayer left CNH's
control. Flaherty asserts, without support, that because the repairs were done under
warranty by an authorized dealer the repairs did not break the chain of causation.
However, Flaherty failed to establish that a defect existed at the time the Sprayer left
CNH's control—a failure that is fatal to his implied warranty of merchantability claim.
See Black, 232 Kan. at 467.

Because we find that there is no genuine issue as to any material fact and CNH is
entitled to judgment as a matter of law, we affirm the district court's grant of summary
judgment in favor of CNH.

III. The district court did not err in holding that Flaherty could not prevail on his
remaining tort claims.

The Kansas Product Liability Act (KPLA) governs all product liability claims in
Kansas. Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 756, 861 P.2d 1299
(1993). Flaherty brought several additional causes of action against CNH that sounded in
tort including negligence, strict liability, failure to warn, and negligent
misrepresentation—all of which are covered under the KPLA. See K.S.A. 60-3302(c).
But the KPLA does not apply to damages for economic loss. K.S.A. 60-3302(d); Golden,
47 Kan. App. 2d at 498 ("[T]he KPLA does not apply to claims for 'direct or

45
consequential economic loss.'"); see also K.S.A. 84-2-314 Kansas Comment 5 ("The
KPLA does not apply to warranty cases involving only economic loss.").

Flaherty requested $196,057 for the cost of the Sprayer, $300 for diesel fuel in the
Sprayer, $1,000 for a rear-mount camera system installed on the Sprayer, and $75 for
diesel exhaust fluid. The district court correctly noted that these are economic losses. See
Koss Construction v. Caterpillar, Inc., 25 Kan. App. 2d 200, 207, 960 P.2d 255 (1998)
("[D]amage which is limited to the defective product itself is essentially economic loss.").
Flaherty does not appear to challenge this holding on appeal. Instead, he alleges that the
district court held that his warranty claims were barred by the economic loss doctrine.
Yet nothing in the district court's opinion suggests that it denied Flaherty's express or
implied warranty claims under the economic loss doctrine. Rather, the court relied on the
doctrine to dismiss Flaherty's tort claims, a finding with which we agree and one that
Flaherty does not challenge on appeal.

Affirmed.

46