On appeal from Superior Court of New Jersey, Law Division, Union County, L-2843-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Alvarez.
This appeal is from an order barring the testimony of plaintiff's expert as an inadmissible net opinion and awarding summary judgment to defendants Yale Materials Handling Corporation, Yale North America, and NACCO Materials Handling Group, Inc. We affirm.
On August 28, 2003, plaintiff Corey Uzzell worked at a Lowe's Home Improvement store. Plaintiff was operating a Yale model sit-down counterbalanced forklift truck on an asphalt loading area to the rear of the store, parallel to the rear wall of the building. As he approached the end of the rear wall, plaintiff began to quickly turn the forklift to his left. It tipped and, after turning nearly 180 degrees, fell on its right side. As the forklift fell, plaintiff reached out to break his fall with his right hand and arm outside the forklift's cage. His hand was crushed by one of the forklift's uprights, resulting in the amputation of part of two fingers. This complaint seeking damages followed. All of the named defendants other than the three involved in this appeal were dismissed by stipulation.
Plaintiff filed suit against these defendant manufacturers on theories of strict liability, negligence, and statutory claims under the New Jersey Products Liability Act (PLA), N.J.S.A. 2A:58C-1 to -11. Plaintiff's expert, a mechanical engineer, supplied four reports, dated July 12, 2006, April 27, 2007, July 13, 2007, and August 21, 2007, and was deposed on June 15, 2007, and August 22, 2007. Plaintiff's expert opined that the forklift design was defective because no handgrip was provided on the inside of the forklift for an operator to hold in the event of a tip-over, and because the forklift cage should have been fully enclosed in order to adequately protect the operator from injury. The expert also opined that the forklift warnings were inadequate.
In his February 29, 2008 decision, Judge Wertheimer described the expert's opinions as no different from the assertion that the forklift had to be defective because it "tipped over and was involved in an accident." As Judge Wertheimer noted, plaintiff's expert acknowledged that the forklift in question substantially exceeded applicable industry standards in design and construction.
Plaintiff first contends that the trial court's conclusion that the expert's opinion was an inadmissible net opinion was simply erroneous. Plaintiff also urges that the motion judge's failure to conduct an N.J.R.E. 104 hearing prior to barring the expert's report and awarding defendants summary judgment was error.
The expert's conclusion that a handgrip on the interior of the forklift would have minimized the risk of amputation or serious injury to the operator was propounded in the absence of any testing or other supporting data. The expert did not explain the difference between an operator holding on to the forklift's steering wheel, as opposed to a handgrip. Similarly, although the expert report contends that the injuries suffered by plaintiff would have been avoided by virtue of an enclosed cage, no testing was performed to verify this purported additional safety feature. This was of particular importance because the ability to see outside of the cage is a critical aspect of forklift design that has to meet industry standards for visibility.
Essentially, by speculating that the absence of a handgrip and the absence of an enclosed cage were design defects, the expert's conclusions fell squarely within the meaning of "net opinion" as defined in 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 or 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)).
Furthermore, plaintiff acknowledged having been trained and certified to operate the forklift in accord with OSHA requirements. He said at his deposition that as part of his operator training, he read the operating manual, and understood it, including several warnings related to tip-overs and the protocol to be followed by an operator in the event of such an accident. This included the instruction that an operator hold on to the steering wheel and lean away from the fall, which plaintiff admittedly did not do. Operator training for this particular model included not only reviewing the written manual, but actual hands-on training and the review of warnings, photographs, and a videotape.
The expert also opined that the forklift lacked adequate warnings about the "possibility of amputation or serious injury from interacting with the roll cage during a rollover." In this case, plaintiff acknowledged not only that he read the warnings, but that he understood them and did not follow them. If he did not heed the existing warnings, it is mere speculation to suggest that warnings more specifically describing injuries to an operator's hand would have been effective.
Even plaintiff's expert agreed that if plaintiff had followed the manufacturer's warnings, he would not have been injured. In light of these facts, the expert nonetheless concluded that the warnings were inadequate. There is a legal presumption that all such warnings would be heeded if read. Coffman v. Keene Corp., 257 N.J. Super. 279, 285 (App. Div. 1992), aff'd, 133 ...