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October 1, 1996

BETTCHER INDUSTRIES, INC., et al., Defendants.

The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Plaintiff Pedro Oquendo was injured when his hand was caught in a meat press manufactured by defendant, Bettcher Industries, Inc. ("Bettcher"). The injury may have occurred because plaintiff's employer had removed certain safety devises installed by Bettcher at the time of manufacture. Bettcher now moves for summary judgment on both counts of the complaint--one based on common-law negligence and the other based on products liability. Plaintiff opposes Bettcher's motion and cross-moves to amend the complaint to name his employer, Quality Foods, L.P. ("Quality"), as an additional defendant. *fn1"

 Under New Jersey law plaintiff's negligence claim is subsumed in the products liability count. Because plaintiff has adduced insufficient evidence to permit a reasonable fact finder to conclude the meat press, as manufactured, was a defective product, the Court will grant defendant summary judgment. The Court will deny plaintiff leave to amend his complaint to add Quality as there is nothing in the record to suggest a basis for avoiding the workers' compensation tort bar.


 On April 27, 1994, plaintiff sustained personal injuries while at work using a meat press manufactured by defendant Bettcher. When Bettcher sold the meat press to Quality in April 1980, it contained several safety features including a point-of-operation guard. This guard is essentially a plastic door connected to the circuitry of the meat press. To press meat, the guard must be completely shut, preventing operator contact with the point of operation. When slid open to retrieve the finished product, the guard halts operation of the meat press. The day before the accident, an inspector from the United States Department of Agriculture directed that Quality remove the point-of-operation guard for cleaning and repair. Quality complied and removed the guard accordingly. Despite warnings to the contrary, Quality also rewired the meat press's circuitry to bypass the interlock mechanism, so that the meat press would not sit idle during the guard's cleaning and repair.

 Defendant Bettcher designed the meat press for use by one operator. To engage the press's hydraulics, two buttons (away from the point of operation) need be pressed, one with each of the operator's hands. This feature also promoted worker safety in that an operator pressing the necessary buttons with both hands is safely and physically removed from the point of operation. Despite warnings to the contrary, plaintiff's employer assigned two operators to the meat press.

 Defendant Bettcher equipped the meat press with various warnings designed to reinforce the above safety features. A plate on the point-of-operation guard read,

CAUTION. The electrical and hydraulic circuits of this machine have been designed to provide interlocks and safety precautions to minimize risk of injury to operators and personnel working around the machine. Unauthorized alteration to these circuits may cause injury to the personnel or damage to the equipment.

 Watson Aff. at P 11. *fn2" Metal plates affixed beside the guard similarly warned users to "keep [the] guard in place while [the] machine is in operation." Caution plates and stickers, and the press's technical manual additionally warned that the machine was designed for one-man loading. See Defendant Bettcher's Ex. E. *fn3"

 From the depositions and the expert testimony, it is clear that on the day of the accident, the meat press point-of-operation guard was removed and the machine rewired, and plaintiff was one of two individuals operating the machine. See Oquendo Tr. at 62 (noting that at the time of the accident the press "didn't have this door [the point-of-operation guard]."); id. at 71 (describing operation by two workers); Plaintiff's Ex. A at 1 (Patton Expert Report).


 A. Jurisdiction

 The Court's jurisdiction over the case rests on 28 U.S.C. § 1332, which permits district courts to hear cases where the "matter in controversy" exceeds $ 50,000 and is "between . . . citizens of different states." Id. (providing for diversity jurisdiction); see also Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 2 L. Ed. 435 (1806) (requiring complete diversity--that each plaintiff is from a different state than each defendant). As plaintiff is a citizen of the State of New Jersey and defendant is an Ohio corporation with its principal place of business in a state other than New Jersey, jurisdiction is proper. See 28 U.S.C. § 1332(c)(1) (deeming a corporation to be a citizen of the state "by which it has been incorporated and of the state where it has its principal place of business").

 B. Motion to Amend

 In his opposition to defendant's motion to dismiss, plaintiff moves to amend his complaint pursuant to Federal Rule of Civil Procedure 15(a) to name his employer, Quality Foods, L.P., as an additional defendant. As plaintiff's time to amend his pleading as a matter of course has expired, he seeks to amend by leave of court. See Fed. R. Civ. P. 15(a).

 The Rule states that leave to amend "shall be freely given" and, while a court has discretion to deny leave, that discretion is circumscribed by the liberal amendment philosophy behind the rule. Fed. R. Civ. P. 15(a); see also Snyder v. Baumecker, 708 F. Supp. 1451, 1456 (D.N.J. 1989). Indeed, the moving party ought to be afforded an opportunity to test his claim on the merits, if the underlying facts and circumstances may be a proper subject for relief. See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995) (permitting denial if amendment is futile); Fishbein Family Partnership v. PPG Indus., Inc., 871 F. Supp. 764, 768 (D.N.J. 1994) ("Futility is an appropriate ground for denying leave to amend a complaint."); 6 Charles Alan Wright et al., Federal Practice and Procedure § 1484, at 637 (2d ed. 1990) ("If the proposed change clearly is frivolous or advances a claim or defense that is legally insufficient on its face, the court may deny leave to amend.").

 Under New Jersey law, workers' compensation is the exclusive remedy afforded an employee injured in the course of his employment. See Workers' Compensation Act, N.J.S.A. § 34:15-8 (exclusivity provision); see also Wilson v. Faull, 27 N.J. 105, 116, 141 A.2d 768, 774 (1958) (succinctly setting forth the reasons for the exclusiveness of the remedy). For plaintiff to avoid the exclusivity bar, he must show that his employer's conduct was sufficiently flagrant as to constitute an "intentional wrong." This is a difficult hurdle. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 179, 501 A.2d 505, 514-15 (1985) ("Although defendants' conduct in knowingly exposing plaintiffs to asbestos clearly amounts to deliberately taking risks with ...

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