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July 12, 2001


The opinion of the court was delivered by: Irenas, District Judge:


Presently before the court is Defendant The Raymond Corporation's Motion for Summary Judgment of Plaintiffs Michael and Lynne Milanowicz's products liability and consortium claims. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. For the reasons set forth below, Defendant's Motion for Summary Judgment is granted.


On August 20, 1997, Plaintiff Michael Milanowicz ("Plaintiff"), an employee at the General Motors Service Parts Distribution Facility in Bensalem, Pennsylvania, injured his hand while laterally adjusting the forks on a lift truck manufactured by Defendant Raymond Corporation ("Defendant" or "Raymond").

The "L"-shaped forks were mounted on pivots on the front of the lift truck. To prevent lateral movement, each fork was secured in place by a pin on the back of the vertical portion of the fork which fit into one of several holes on the front of the carriage. In order to laterally adjust each fork — to accommodate a wider or narrower load — the operator would pivot each fork upward toward the carriage to disengage the pin, shift the fork to a position in front of the desired hole, and then swing the fork down until the pin re-engaged in the new hole.

On or about July 1, 1999, Plaintiffs filed a Complaint alleging products liability claims of defective design, failure to warn, and inadequate instructions for use. Plaintiff Lynne Milanowicz also sought recovery for loss of consortium, society, and services.

During discovery, it was learned that the original 48" forks on the lift truck had, at some point prior to the accident, been replaced by 60" forks manufactured by Dyson Corp. and distributed by Andersen & Associates. The original forks, which were manufactured by Kenhar Corp. for Defendant Raymond, featured chamfered pins designed to facilitate proper pin alignment. In other words, each pin was 1/2" narrower at its end, thus increasing the alignment tolerance and reducing fork "hang-up." (Def.'s Supp. Br. Ex. D at 2).

In contrast, the 60" Dyson replacement forks were designed with square shoulders and no chamfer, and thus did not conform to Raymond's design specifications. (Id.; Ex. G at 3). Evidently, however, repeated re-indexing of the forks had worn down the shoulders of the pins so that they were slightly rounded and chamfered. (Pls.' Opp. Br. Ex. C at 64-66).

Defendant's two experts, Robert N. Rogers and Michael W. Rogers, both concluded that the absence of the chamfer on the replacement Dyson forks was a significant factor in the accident. (Def.'s Supp. Br. Ex. D at 2; Ex. G at 3). Specifically, the use of nonconforming forks increased the risk of fork hang-up, and thus the risk of injury. (Id.)

Plaintiff's expert, Paul R. Stephens ("Stephens"), came to a different conclusion, finding that Raymond's fork mounting and adjustment mechanism was defective because it necessitated an "inherently hazardous procedure" to manually adjust the forks. (Pls.' Opp. Br. Ex. B at 7). As a result, it was immaterial whether the original forks or the replacement forks were used. Rather, Stephens concluded, Raymond should have designed and manufactured its lift trucks with power-operated fork-positioning mechanisms. (Id.). Stephens also determined that Raymond had failed to provide adequate instructions regarding a safe adjustment procedure and adequate warnings on the lift truck regarding the risks involved. (Id. at 8).

On or about April 23, 2001, Defendant filed the instant Motion for Summary Judgment. Defendant claims that: 1) the replacement nonconforming forks marked a substantial modification; 2) Plaintiffs cannot establish a prima facie case as to the design defect claim because their expert's report is inadmissible; and 3) Plaintiffs cannot establish a prima facie case as to the failure to warn claim because the danger was open and obvious and there was no proximate cause.


"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).


In New Jersey, to sustain a products liability claim, a plaintiff must establish "that the product was defective, that the defect existed when the product left the defendant's control, and that the defect caused injury to a reasonably foreseeable user."*fn1 Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 675 A.2d 620, 627 (1996) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 479 A.2d 374, 384-85 (1984)). "Plaintiffs may show either a design defect, a manufacturing defect, or an inadequate warning defect rendering defendant's product not reasonably fit, suitable, or safe for its intended or foreseeable purposes." Reiff v. Convergent Techs., 957 F. Supp. 573, 578 (D.N.J. 1997) (Irenas, J.) (citing Zaza, 675 A.2d at 627). "Liability should be imposed only when the manufacturer is responsible for the defective condition." Id.; see also O'Brien v. Muskin Corp., 94 N.J. 169, 463 A.2d 298, 303 (1983) (articulating the rationale to "prevent[] the manufacturer from also becoming the insurer of a product"), superseded in part by N.J.S.A. 2A:58C-3, as recognized inDewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 577 A.2d 1239 (1990). The meaning of "defective condition," though, is not self-evident, and courts have looked to negligence principles for assistance. See Zaza, 675 A.2d at 628 ("[T]he ultimate question to be resolved in design-defect and failure-to-warn cases is whether the manufacturer acted in a reasonably prudent manner in designing and fabricating a product."); Feldman, 479 A.2d at 385 (noting that "strict liability analysis becomes almost identical to negligence analysis in its focus on the reasonableness of defendant's conduct").

"Even if a product is properly designed and manufactured, it may still be unsafe for its intended or foreseeable uses if it is not accompanied by adequate warnings or instructions." Reiff, 957 F. Supp. at 581 (citing Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 406 A.2d 140, 153 (1979)). Therefore, under New Jersey law, "[a] manufacturer has a duty to warn such foreseeable users of all hidden or latent dangers that would arise out of a reasonably anticipated use of its product." Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305, 309 (1984). To bolster this duty, New Jersey law incorporates a "heeding presumption" — "a presumption that plaintiff would have `heeded' or followed a warning has defendant given one." Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710, 716-20 (1993) (adopting presumption).

A. Substantial Modification

New Jersey courts have held manufacturers strictly liable for products, despite another's subsequent substantial alterations, when those alterations were objectively foreseeable and likely to cause injury. See Brown v. United States Stove Co., 98 N.J. 155, 484 A.2d 1234, 1239-41 (1984) (requiring a product to be "suitably safe after it has been . . . foreseeably altered"); Soler v. Castmaster, 98 N.J. 137, 484 A.2d 1225, 1232 (1984); McDermott v. TENDUN Constructors, 211 N.J. Super. 196, 511 A.2d 690, 698-99 (1986); cf. Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982) (imposing liability for negligent failure to reasonably foresee intentional, willful, or criminal acts of third persons that proximately cause injuries).

As this Court stated in Oquendo v. Bettcher Industries, 939 F. Supp. 357 (D.N.J. 1996) (Irenas, J.), aff'd without opinion, 118 F.3d 1577 (3d Cir. 1997), "objective foreseeability means reasonable foreseeability." Id. at 362. The standard "does not affix responsibility for future events that are only theoretically, remotely, or just possibly foreseeable, or even simply subjectively foreseen by a particular manufacturer." Brown, 484 A.2d at 1241. Rather, it "applies to those future occurrences that, in light of the general experience within the industry when the product was manufactured, objectively and reasonably could have been anticipated." Id.; see also McDermott, 511 A.2d at 698 (similarly requiring objective reasonable foreseeability).

Defendant contends that, because it sought to closely regulate the replacement forks authorized for use with its lift trucks, retrofitting the lift truck with nonconforming forks amounted to a substantial modification. (Def.'s Supp. Br. at 7-8). Defendant points to the "Factory Authorized Field Modification" form prepared by Raymond for the particular lift truck at issue here, which form indicates that only replacement forks conforming to a certain Raymond design were to be used. (Def.'s Reply Br. Ex. H). Defendant also includes an excerpt from its Operator's Safety Manual specifying that "[p]ursuant to Occupational Safety and Health Administration (OSHA) regulations, modifications and additions which affect capacity and safe operation shall not be performed by the customer or user without the prior written approval of The Raymond Corporation." (Id. at Ex. I). Defendants maintain that Andersen & Associates nevertheless outfitted the lift truck with Dyson forks which did not conform with Raymond's explicit specifications, and thus the replacement was not objectively foreseeable.

Plaintiffs counter that, because the fundamental defect was with the fork adjustment mechanism, the replacement of the forks did not materially alter the defective aspect of the lift truck's design. (Pls.' Opp. Br. at 10-11). They argue, based on Soler, that Defendant should be held liable unless the modification itself constituted the defect responsible for the injury. (Id. at 13 (citing Soler, 484 A.2d at 1231)). Moreover, Plaintiffs allege that Defendant must have been aware of the existence of after-market fork manufacturers and, as a result, it was objectively foreseeable that Raymond's customers might purchase forks manufactured by these rival suppliers.

In Oquendo, which involved injuries sustained by an plaintiff-employee while operating a meat press, this Court considered whether the customer-employer's removal of a point-of-operation guard from a meat press and rewiring the safety mechanism were objectively foreseeable. The Court dismissed the plaintiff's argument that the defendant manufacturer's warnings evinced objective foreseeability. The Court also found that the ease of modification did not necessarily suggest objective foreseeability, stating that the correlation is tenuous in the industrial context and that "[p]articularly with complex manufacturing equipment, detailed expert testimony is necessary to correlate safety-defeating ease with objective foreseeability, if such correlation is indeed possible." Id. at 363. The Court concluded that the modification at issue there was not objectively foreseeable and granted summary judgment for the defendant.

Unlike in Oquendo, the general modification at issue here — replacing the forks — was objectively foreseeable. The question is whether the specific modification — use of nonconforming replacement forks — was objectively foreseeable. For instance, on the one hand, Volkswagen would not be liable if one of its customers had an accident after replacing his or her brakes with a product intended for a Toyota, even if Volkswagen was aware of aftermarket manufacturers of brake pads designed for Volkswagens. On the other hand, Volkswagen would be on thinner ice if it sought to artificially restrict the market in replacement brake pads for its products by withholding its design specifications, not licensing their use, or denying its approval of competing, yet substantially conforming, products. Or, alternately, if the brake pads, however compatible, were not the cause of the injury, but rather the braking system as a whole was responsible, Volkswagen would remain liable.

The Court need not resolve this issue, though, because, as discussed below, the non-admissibility of Plaintiff's expert report is dispositive.

B. Admissibility of Plaintiffs' Expert Testimony

1. Rule 702, Daubert, and Kumho

In its Motion for Summary Judgment, Defendant contends that the report and testimony offered by Plaintiffs expert, Paul R. Stephens, are inadmissible under Fed.R.Evid. 702.

Rule 702 provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness 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 upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts in the case.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the Supreme Court clarified the operation and scope of Rule 702 with regard to scientific testimony. Finding that Rule 702 superseded the age-old "general acceptance" requirement announced in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923), the Court adopted a more liberal approach which, while eschewing rigidity, nevertheless mandated scrutiny of "the scientific validity — and thus the evidentiary relevance and reliability — of the principles that underlie a proposed submission." Daubert, 509 U.S. at 588-89, 595-96, 113 S.Ct. 2786. In so ruling, the Court highlighted the "gatekeeping role" of the trial judge. Id. at 597, 113 S.Ct. 2786.

As configured in the Third Circuit, Daubert compels a three-part analysis: (1) qualifications — whether the expert is qualified to speak with authority on the subject at issue; (2) reliability — whether the expert's methodology is sound and whether his or her opinion is supported by "good grounds;" and (3) fit — whether there is a relevant "connection between the scientific research or test result to be presented and particular disputed factual issues in the case." In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741-43 (3d Cir. 1994) ("Paoli II") (citations omitted); see also Oddi v. Ford Motor Co., 234 F.3d 136, 144-46 (3d Cir. 2000).

The crux of the analysis is evaluating the "relevance and reliability" of the scientific evidence. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786. "The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Id. To aid in this inquiry, the Court identified several factors, see id. at 593-94, 113 S.Ct. 2786, upon which the Third Circuit expanded in Paoli II. These factors are:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.

Paoli II, 35 F.3d at 742 n. 8. As the Court noted in Daubert, the inquiry is a flexible one. 509 U.S. at 594, 113 S.Ct. 2786.

Subsequent to the Court's decision in Daubert, there was significant confusion among the circuits over whether Daubert applied to technical experts as well as scientific ones, or whether observations based on the experts' skill or experience were admissible. Compare, e.g., Watkins v. Telsmith, Inc. 121 F.3d 984 (5th Cir. 1997) (applying Daubert to non-scientific experts), with, e.g., Compton v. Subaru of America, 82 F.3d 1513 (10th Cir. 1996) (rejecting Daubert and evaluating skill and experience), cert. denied, 519 U.S. 1042, 117 S.Ct. 611, 136 L.Ed.2d 536 (1996). ...

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