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[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]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