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
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the lift truck had, at some point prior to the accident, been
replaced by 60" forks manufactured by Dyson Corp.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
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
"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
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.
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.
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.
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). ...