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August 24, 2005.


The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OPINION

Daniel Ortiz ("Plaintiff" or "Ortiz") brings this action against Yale Materials Handling Corp. ("Defendant" or "Yale") for injuries that Plaintiff sustained while operating a forklift manufactured by Defendant. Plaintiff alleges that Defendant's forklift is defective in design because it should have had (1) a latched rear door to restrain the operator, and (2) warnings advising the operator to stay inside the operator compartment in the event of a tip-over. Defendant maintains that the design of its forklift is not defective, the forklift is safe for its intended use, and that operators who remain in the operator compartment in a tip-over are at risk for more severe injuries.

In support of its defect claim, Plaintiff seeks to introduce the testimony of one expert, John B. Sevart ("Sevart"), and Defendant responds with the testimony of two experts. Plaintiff has moved to strike Defendants' experts. Defendant has moved for summary judgment, asserting that Plaintiff's claim against it must fail because the testimony of Plaintiff's expert is inadmissible. For the following reasons, the Court bars the proposed testimony of Plaintiff's expert, Sevart, finds that Plaintiff's motions are now moot because without an expert to support Plaintiff's alternative design theory, Plaintiff's products liability claim against Defendant fails,*fn1 and thus, grants summary judgment in favor of Defendant.


  A. The accident

  The following facts are not in dispute. On November 22, 2001, in the course of his employment with IKEA, Plaintiff was operating an open back, rear entry, stand-up forklift truck (model NR045AC), which was manufactured and assembled in October 1996 by Yale.*fn2 At the time of the accident, Plaintiff was using the forklift truck in an IKEA warehouse to place a couch on a rack when the forklift tipped over and fell to the ground. There were no eyewitnesses to the accident, but Plaintiff's co-worker heard the accident, and then discovered the forklift lying on its side and Plaintiff lying beside it with his left foot pinned beneath the forklift's overhead guard. Def. Mot. Summ. J. at 2. Plaintiff testified that he tried to stay in the forklift during the tip-over, but that he "naturally fell out." Ortiz Dep. at 76. Plaintiff also testified that he had been trained to jump from the forklift in the event of a tip-over, but because there was no room between the forklift and the wall, Plaintiff testified that his "best bet was to stay inside and try to ride it down." Id. at 86. As a result of the accident, Plaintiff's foot was amputated, and he has accumulated substantial medical bills. See Pl. Compl. ¶ 6. According to Plaintiff, he can no longer engage in many business and personal activities because of the injuries from the accident. See id.

  B. Procedural history

  Plaintiff filed suit against Yale, the manufacturer and distributor of the forklift, asserting claims of design defect and products liability. See id. ¶ 5. Plaintiff claims that the forklift is defective in design because it lacked a latching rear door to the operator's compartment and thus failed to protect the operator in the event of a tip-over. Id. ¶¶ 3-4.

  In its answer, Defendant denies the existence of a design defect and asserts that Plaintiff has failed to state a cause of action under the New Jersey Products Liability Act, 2A:58C-1 et. seq. Def. Ans. at 4. On April 7, 2005, Defendant filed a motion for summary judgment and moved to bar the proposed testimony of Plaintiff's engineering expert because such testimony does not meet the standards for admissibility set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).*fn3 Def. Mot. Summ. J. at 10. On July 7, 2005, the Court held a hearing pursuant to Fed.R.Evid. 104 to determine the admissibility of Plaintiff's expert's proposed testimony.


  To state a products liability claim in New Jersey, 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." Milanowicz v. The Raymond Corp., 148 F.Supp.2d 525, 528 (D.N.J. 2001) (citations omitted). "Liability should be imposed only when the manufacturer is responsible for the defective condition." Id. (quoting Reiff v. Convergent Techs., 957 F. Supp. 575, 578 (D.N.J. 1997) (citations omitted)). To prove the existence of a defect, a plaintiff may rely on the testimony of an expert who has examined the product or offers an opinion on the product's design. Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J.Super. 320, 331 (App.Div. 2004) (citing Scanlon v. General Motors Corp., 65 N.J. 582 (1974)). Alternatively, a plaintiff may produce circumstantial evidence of a defect, "such as proof of proper use, handling or operation of the product and the nature of the malfunction, [which] may be enough to satisfy the requirement that something is wrong with [the product]." Id. Where the allegedly defective product involves a complex instrumentality, a plaintiff is required to provide expert testimony. Lauder, 368 N.J.Super. at 331(citing Rocco v. New Jersey Transit Rail Operations, Inc., 330 N.J.Super. 320, 341 (App.Div. 2000)). Expert testimony is necessary to assist the fact finder in understanding "the mechanical intricacies of the instrumentality" and in excluding other possible causes of the accident. Lauder, 368 N.J.Super. at 331 (citing Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 546 (App.Div. 1996)).

  A. Standard of review

  Summary judgment is appropriate where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact is one that will permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a nonmoving party may not rest upon mere allegations, general denials, or vague statements in opposition to a summary judgment motion. Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Engineers, 982 F.2d 884, 890-91 (3d Cir. 1992) (internal citations omitted). Instead, the nonmoving party must set forth specific facts "by means of affidavits, depositions, answers to interrogatories, or admissions . . . that show there is a genuine issue for the trier of fact to resolve." Cooper v. Cape May County Board of Social Servs., 175 F.Supp.2d 732, 741 (D.N.J. 2001) (citations omitted). If the nonmoving party's evidence is merely colorable, or not significantly probative, summary judgment may be granted. Bowles v. City of Camden, 993 F.Supp. 255, 261 (D.N.J. 1998) (citations omitted). Conclusory allegations do not meet the non-moving party's duty to set forth specific facts showing that a genuine issue of material fact exists and a reasonable factfinder could rule in its favor. See Ridgewood Board of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). At the summary judgment stage, it is not the role of this Court to weigh ...

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