July 22, 2008
JOSEPH C. LAND, PLAINTIFF-APPELLANT,
C AND M BALING SYSTEMS, INC.; REC COMPANY, RECYCLING EQUIPMENT CORPORATION; C&M COMPANY OF WINSTON-SALEM; B.E. EQUIPMENT, INC.; AND BILDERBACK ACQUISITION, INC., DEFENDANTS-RESPONDENTS, AND HAMPTON HYDRAULICS, INC., AND BAILEY SALES CORPORATION, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-3648-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 7, 2008
Before Judges Sabatino and Alvarez.
This appeal is from an award of summary judgment granted to defendants in accord with the "net opinion" rule. Because we find that the expert's report gave the "why and wherefore" of his opinion, and was therefore more than an unsupported conclusion, we reverse as to defendant REC, but affirm as to the remaining defendants. We also affirm the award of partial summary judgment as to REC's alleged failure to supply adequate operating instructions or safety warnings.
On December 13, 1999, plaintiff, Joseph C. Land, worked for third-party defendant Color Graphics, Inc., a recycling company. Plaintiff was attempting to wrap metal bands around a bale of paper near a piece of equipment known as a closed chamber heavy-duty horizontal baler, when either the exit door of the baler flew open and struck him, or struck a barrel which then struck him, causing personal injuries. His complaint seeking damages followed.
Defendant, C & M Company of Winston-Salem, manufactured the baler. Defendant Bilderback Acquisition, Inc., purchased the assets of C & M Company of Winston-Salem while they were in bankruptcy and is now known as C and M Baling Systems, Inc. (C&M). Defendant, Recycling Equipment Corporation (REC), rebuilt the baler in the spring of 1998. They had serviced the machine from the early 1990's forward, including after the date of the accident, on a time and material basis.
Plaintiff filed suit against REC, C&M and Bilderback, and B&E Equipment, on theories of strict liability, negligence, and statutory claims under the New Jersey Product Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. Plaintiff's expert, a mechanical engineer, supplied a report dated April 6, 2005, and was deposed on September 29, 2005. The expert performed a visual examination of the baler after repairs had been made by REC but did not actually operate the mechanism, nor did he examine other balers. For these and other reasons, defendants successfully sought to bar admission of the expert's testimony as inadmissible "net opinion," and obtained summary judgment.
In his report, the mechanical engineer described in detail REC's maintenance records for work performed on the baler, including service calls because of problems with the baler's door in the months prior to the accident. He notes that in the months prior to the accident, Color Graphics requested a price quote from REC for an alternate door safety mechanism. REC's service manager said when deposed, "that since it was a quote, and REC was very busy at the time, they never got around to responding to the request." The expert also notes that in REC's record of service performed on the door on December 16, 1999, a notation was made that "who-ever put new cyl[inder] on," had not welded the mechanism correctly.*fn1
The expert opined "within a reasonable degree of engineering probability," that the faulty door latch mechanism was the safety hazard which caused plaintiff's injuries. Furthermore, he concluded that the failure could have been avoided if REC had installed adequate hardware, and provided written operating and safety instructions. The report enumerates the additional materials the expert relied upon in formulating his opinion, including reports of others, depositions, his visual inspection of the baler, and various general safety publications. Notably, in his conclusion, the expert makes no mention of the manufacturer of the baler, C&M, only of REC, the rebuilder and maintenance provider.
The standard of review for an award of summary judgment is enunciated in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995) and Rule 4:46-2(c). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. Where no genuine issue of fact exists, the question becomes whether the trial judge's ruling is correct as to the law. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Plaintiff does not expound on the purported error committed by the judge in awarding summary judgment as to C&M or B.E. Equipment. Additionally, our independent review of the expert's report does not disclose any mention of conduct on the part of those defendants that would impose a standard of care upon them, a breach of that standard, or a causal connection between the breach and plaintiff's injuries. See Koruba v. Am. Honda Motor Co. 396 N.J. Super. 517, 526 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008). In fact, the report does not mention the conduct of C&M or B.E. Equipment whatsoever, other than indicating that C&M was the manufacturer of the baler.
Accordingly, the award of summary judgment as to those defendants is affirmed.
As to REC, however, we part company with the judge. We are cognizant that N.J.R.E. 703 assumes that an expert's opinion will be based on facts or data. An expert's bare conclusions, unsupported by testimony, facts or other data, is inadmissible as a net opinion. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). "The rule requires an expert 'to give the why and wherefore' of his and her opinion rather than a mere conclusion." Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).
The expert's reliance on factors REC does not consider important, does not make his testimony an inadmissible net opinion. Rosenberg, supra, 352 N.J. Super. at 402. Similarly, REC's contention that the expert's failure to review Color Graphic's deposition was a fatal flaw which made his opinion a "net opinion" is not correct. The expert's failure to cite to specific sections of the general treatises and manuals upon which he relied is not fatal either. Id. at 403. The absence of publications which specifically address safety requirements for balers, does not necessarily make his opinion a net opinion.
All of REC's complaints about the report go to the weight to be accorded to the expert's testimony, and no doubt will be addressed on cross-examination, but do not affect admissibility. From our review, the expert's opinion was based on his close inspection of records of repairs to the door both before and after the accident, his familiarity with the mechanics of the door latch on the baler, as well as general safety principles. This is a sufficient factual basis for him to reach his conclusions.
We concur, however, with the court's ruling dismissing claims which specifically arise from REC's failure to provide safety instructions or warnings. The expert's report in the conclusion portion states: "had the re-manufacturer provided . . . written Operating and Safety Instructions, this incident would have been prevented." Other than a passing reference to the 1969 National Safety Council Accident Prevention Manual, the expert articulates no other basis for this conclusion. Accordingly, we agree that partial summary judgment was properly granted as to REC's failure to warn or to provide operations instructions.
Therefore, as we find the expert testimony as to REC not to be a net opinion as to the design, maintenance, and installation of the door, we conclude summary judgment was improvidently granted on those discrete issues and reverse. In all other respects, the decision is affirmed.
Affirmed in part, reversed in part, and remanded.