April 26, 2010
THOMAS GREGORY, INDIVIDUALLY, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
ACKER DRILLING, AN ENTITY DOING BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT/ CROSS-APPELLANT, AND MOBILE DRILLING COMPANY, INC., AN ENTITY DOING BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT/CROSS-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3583-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: February 24, 2010
Before Judges Axelrad, Sapp-Peterson and Espinosa.
Plaintiff Thomas Gregory appeals summary judgment dismissal of his complaint for personal injuries sustained while operating a drill rig manufactured by defendant, Mobile Drilling Company, Inc. (Mobile), and refurbished by defendant, Acker Drilling (Acker). Plaintiff had alleged a number of design defects primarily centered on the fact that the drill rotation controls were set up differently from other hydraulic drill rigs used by plaintiff and owned by his employer, Warren George, Inc. (Warren George); violation of the New Jersey Product Liability Act, N.J.S.A. 2A:58C-1 to -11; failure to adequately warn of the risks and dangers posed by the rig on the part of Mobile; and negligent refurbishment of the rig by Acker. The court found plaintiff's expert report constituted a net opinion insufficient to create a triable issue of fact that the rig was defective in design or warnings, that either defendant created significant increased risk factors for injury, or that Acker had a duty to provide a safety hazard analysis at the time of its refurbishment. We affirm.
The facts are not in dispute.*fn1 Plaintiff worked as a geotechnical driller for Warren George for twelve years when he was assigned to a job site in Manhattan on January 7, 2005. The day of the accident was the first time he operated a Mobile B80 drill rig. The accident occurred at about 12:30 p.m., which was after plaintiff had been using the rig for about two to three hours. Plaintiff needed to attach another drill rod, requiring that he first "break the pipe" already attached, i.e., unscrew the rod from the drill head. Plaintiff injured his jaw when he was breaking the connection between the rod and the drill head on the rig. The Mobile B80 was not equipped with either a hydraulic break-out wrench or clamp attached to the rig, or a break-out table that prevents the rod from falling, thus requiring the manual application of a pipe wrench. To break the connection between the rod and the drill head, plaintiff or his helper affixed a 36-inch pipe wrench to the drill rod and backed the handle of the wrench up against the rig's derrick to prevent the wrench and rod from rotating with the drill head. This way, the drill head could be operated in reverse while the wrench held the rod steady, causing the rod to become unscrewed from the drill head. The rig's drill head rotation is controlled by a lever that requires pushing the lever in toward the rig to turn the head in reverse and pulling the lever out away from the rig to go forward. The parties do not dispute that plaintiff mistakenly operated the drill head to rotate in the wrong direction, pulling back on the controls, causing the drill head to rotate forward as it engaged and the handle of the wrench to swing quickly towards him and strike him in the jaw, knocking him unconscious.
Plaintiff admitted that he and his helper became aware of the direction that the rotation control operated when they used the drill rig at the job site that morning. They both saw that when plaintiff hit the control, the wrench they had attached turned in the opposite direction than what they had expected. Plaintiff's helper testified that when that happened, both he and plaintiff commented to each other that the wrench "came out." The helper testified that when he asked plaintiff if he saw that the wrench moved differently than how they expected, plaintiff told him that he did. The helper further testified that plaintiff told him to re-attach the wrench, which the helper did, and they then proceeded to use the rotation control correctly and without incident to attach the drill rod to the drill head.
Plaintiff explained, however, that although he noticed the unusual direction of the rotation control on the drill rig that morning, he, like other drill operators, typically operates the machines "by feel" and inadvertently pushed the lever in the direction to which he had grown accustomed. He related that the rotation control on the Mobile B80, which he had used for the first time in his career that day, operated in a direction that was the opposite of the considerable number of machines he had used while employed by Warren George. He explained that on the other machines the operator pushes the lever up to rotate the drill forward and pulls it down to rotate it in reverse.
Mobile had manufactured and delivered the rig to Warren George in 1987. The rig came equipped with black and yellow decals that indicated, among other things, the name of the controls and the direction that the controls functioned. Mobile's inspection sheet for the rig indicates that at the time of manufacture and delivery to Warren George, the rig's "serial number plate, decals, signs and warning plates are in place."
At the time of delivery Mobile also provided Warren George with a drilling safety manual authored by the National Drilling Association along with instructions for the rig itself.
Acker refurbished the rig in February 2004. William Jones of Acker testified that the work done on the rig consisted of changing the drill head from the original Mobile head to an Acker head and replacing various parts such as hoses, clamps and fluids, as described in the February 4, 2004 invoice. Acker made no changes to the design and left the head's rotation control lever operating in the same direction as the original rig. As part of the refurbishment, Acker installed new placards on the rig that identified the various levers on its control panel and indicated how they operated. Plaintiff acknowledged that the placard was legible on the day of his accident and correctly indicated the direction in which the rotation control lever operated. He also confirmed the rig's rotation control lever operated properly and consistently with the direction indicated by the placard.
Plaintiff's amended complaint asserted two causes of action against Mobile - strict liability and failure to warn. Plaintiff's claim against Mobile was that the rig was defective in design and failed to have adequate warnings at the time it was manufactured because he was injured at a job site when, despite using the rig without incident for some time on the date of the accident and admittedly knowing the direction of the rotation controls, he mistakenly placed the rotation control on the rig in reverse, causing the wrench attached to the drill rod to swing around and hit him in the face, breaking his jaw. He asserted three causes of action against Acker - strict liability, failure to warn, and negligence. Plaintiff alleged that Acker failed to warn of the dangers of the rig and created a defect and was negligent in reconfiguring the rig's controls in the manner it did.
In support of his position plaintiff presented a July 24, 2008 report by his engineer, Howard Medoff, PhD. In his report, Medoff posited, in pertinent part:
* there was no product safety signs and labeling alerting and reminding [plaintiff] of the potential personal safety hazards due to the direction of drill rod rotation . . . ;
* Acker and Mobile did not provide adequate information to operators to ensure that they were thoroughly familiar with the subject drilling rig, its controls and capability;
* Mobile and Acker could have designed or retrofitted the drilling rig's forward/reverse control to require the operator to make two (2) distinct movements of this control to engage the drill rod either in forward or reverse;
* this change in design should act to alert and inform the operator of the direction of the rod's rotation before final engagement (e.g., similar to automobile design);
* a design such as this should have been able to be done at minimal cost;
* during refurbishment by Acker, Acker could have reversed the hydraulic hoses for the B80 drilling rig (particularly given their ownership relationship with . . . Warren George) and installed a 'name plate' (to conform with the drill rod rotation) at minimal cost, which would have changed the drill rod rotation to conform with Acker hydraulic drill rigs, typical industry design as well as other drill rigs being used by [plaintiff's] employer;
* during refurbishment, Acker could have recommended installation of a hydraulic clamp and/or breakout wrench, either of which should have reduced or eliminated the potential that an operator such as [plaintiff] could be hit with a swinging manual wrench;
* during refurbishment, Acker should have identified the potential hazards to [plaintiff] and other drill operators using the subject B80 drilling rig involving the operating characteristics (i.e., rotational direction of the drill rod) . . .;
* longstanding and nationally recognized guidelines for product safety signs and labels (ANSI [American National Standards Institute] Z535.4) apparently were not considered by Acker when it refurbished the subject B80 drilling rig and considered any 'safety hazard' analysis of this drilling rig's operational characteristics;
* this incident and resulting injuries of [plaintiff] reasonably, logically and scientifically can be causally related to the operational characteristics of this drilling rig and the absence of proper safety signage and labels alerting and informing operators of the potential hazards associated with manual wrench use in breaking the drill rod . . .;
Medoff did not opine that there was any uniform industry standard that either defendant violated. He further acknowledged that as part of the refurbishment, Acker did install a placard that indicated the direction of the rotation control lever and that such placard properly identified the rotation control lever and the direction in which it operated.
On September 23, 2008, Acker filed a notice of motion for summary judgment. On October 14, 2008, Mobile filed a notice of cross-motion barring Medoff's testimony as a net opinion and for summary judgment. The court heard oral argument on November 7, 2008. On January 2, 2009, Judge Dumont set forth his decision on the record, finding Medoff's testimony contained in his report to be a net opinion and granted summary judgment in favor of both defendants, dismissing all claims and cross claims, memorialized in an order of the same date. Plaintiff appealed. Acker filed a protective cross-appeal, arguing the New Jersey Product Liability Act claim did not apply to it as a product seller.
Medoff was deposed on December 22, 2008, well after oral argument and just prior to the court's decision on summary judgment. There is nothing in the record indicating that the deposition testimony was considered by the court in its summary judgment determination. Nor did plaintiff move for reconsideration based on the deposition testimony of his expert. Nevertheless, plaintiff placed Medoff's deposition testimony in his appendix and referenced it in his brief on appeal. By order of June 26, 2009, another Appellate panel denied Mobile's motion to strike those portions of plaintiff's brief and appendix without prejudice, and deferred the motion for consideration by the merits panel. We will not consider Medoff's deposition testimony as it is improperly before us as evidentiary material that was not in the summary judgment record considered by Judge Dumont. See R. 2:5-4. We therefore base our review of Medoff's testimony solely on his July 24, 2008 report.
On appeal, plaintiff contends the court erred in holding that his expert report constituted a net opinion, improperly concluding that the absence of an industry standard precludes liability as a matter of law and ignoring plaintiff's theory regarding defendants' failure to recommend/install a break-out wrench as a standard feature. He also argues the court erred in granting summary judgment in defendants' favor, contending he asserted prima facie claims of products liability under the New Jersey Products Liability Act and negligent refurbishment against Acker, and established a prima facie case that the rig was sold in a defective manner by Mobile's failure to incorporate a break-out wrench as a standard feature or use another alternative design. We are not persuaded by any of plaintiff's arguments and affirm substantially for the reasons articulated by the motion judge. We add the following comments.
Medoff provided a sixteen-page report, which consisted largely of summaries of deposition testimony, the above quoted opinions, and two conclusory paragraphs in which he stated that, based upon the information set forth in the first fifteen pages of the report, it is his opinion that "the design of the subject Mobile B80 drilling rig, including operating controls and the absence of relevant property safety labeling information, did create significant increased risk factors for injury." He gave an equally conclusory opinion regarding Acker's refurbishment work, stating that it "should have included a safety hazard analysis, failed to properly identify and correct the causal elements of this incident and injuries of [plaintiff] (operating control characteristics and lack of corresponding product safety labeling information for the subject Mobile B80 drilling rig)." Although Medoff claims in his conclusion that it is his opinion "following nationally recognized ASTM [American Society of Testing and Materials] scientific practice and engineering methodology" that the rig was defective, nowhere in the report does he identify any scientific practices or engineering methodology upon which he relies or explain how it would support his opinions. Nor does Medoff reference any industry standards or written authority in support of his expert opinion that the rig was defective. Moreover, Medoff completely fails to enumerate what industry standards or guidelines, if any, exist regarding the information to be provided to drill rig operators. Furthermore, while he concedes that the manual provided with the rig contains a section entitled "BE SAFE," which sets out certain operating and safety warnings, and acknowledges that Acker did install a placard on the machine that indicates the direction of the rotation control lever, Medoff does not explain how those warnings were supposedly inadequate.
Thus Medoff's written report lacks any reference to industry standards, guidelines, studies, comparisons with other machines or analogies to other industries, and does not explain the significance of the facts in the record. Medoff also does not set forth any support for his position that there should be uniformity within the industry and that the controls as set up on the rig in question should be standard, or that all drill rigs should operate in the opposite manner as the controls for the rig that plaintiff was operating when he was injured. We are thus satisfied that because Medoff's report failed to give the "why and wherefore" of his opinion, the court properly found it to be a net opinion. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002).
We are also not persuaded the court accorded undue weight to the absence of industry standards, and in essence, treated that as an absolute bar to liability for a defective design. Sellers and manufacturers have a duty to either make a product safe for use or adequately warn of inherent danger regardless of whether industry safety standards exist. Freund v. Cellofilm Props., Inc., 87 N.J. 229, 242-43 (1981). Thus, the absence of such standards does not exempt entities in relatively unregulated industries from liability for harm caused by their defective products. See Mettinger v. W.W. Lowensten, Inc., 292 N.J. Super. 293, 311 (App. Div. 1996) (stating that "the failure of all the manufacturers in an industry to introduce [an available safety] device does not prevent their products from being defective and does not immunize any of them from liability"), aff'd, 153 N.J. 371 (1998). Indeed, holding manufacturers strictly liable for harm caused by defective products often motivates the development of industry-wide standards. Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 398 (1982).
However, plaintiff's reliance on Mettinger is misplaced. In Mettinger, the plaintiff was injured by the rotating blade on a slicing machine. It was alleged that an interlock device could have been installed on the slicing machine, which would cause the machine to become non-functional if the blade guard were removed. 292 N.J. Super. at 310. At the time the slicing machine was sold, the interlock device was not a standard feature. However, the slicing machines began to install the interlock device a few years after this particular machine that injured the plaintiff was sold. Id. at 311. While the experts in Mettinger all agreed that the installation of an interlock device on a slicing machine could be done for a nominal cost, id. at 310, here none of the experts rendered an opinion that the costs of a break-out wrench or similar safety device could be done for minimal cost. Furthermore, the interlock device in Mettinger would have actually prevented the injury or, at a minimum, reduced the severity of the injury suffered by the plaintiff since the blade would not have been rotating. Id. at 301. Here, however, there has been no opinion or conclusion reached by any expert that if a "safety device" were present on the rig, it would have prevented plaintiff's accident.
The manner in which the accident occurred in this case is clearly due to plaintiff's own negligence. Plaintiff presents no factual or legal basis for his position that uniformity in controls of all drill rigs is a standard that should be implemented by the industry or an obligation to which defendants should be held. The undisputed facts in the record indicate that plaintiff's injury was caused by the way he mistakenly operated the rig, not based on defendants' violation of any generally accepted scientific, technical or industry standards or guidelines. Since plaintiff's expert acknowledged that the manner of rotation, in and of itself, was not defective, plaintiff has failed to create a triable issue of fact.
As to plaintiff's claim that Mobile's design was defective in that it should have incorporated a two-step mechanism into its rotation control to minimize the probability that a foreseeable user would accidentally put the machine in reverse, Medoff provided no estimates of cost, examples of the alternative design's use on any other hydraulic drill rigs or any evidence of the design's feasibility. Indeed, Medoff failed to set forth the results of any study or investigation that would provide any factual basis for his opinion. See DiluzioGulino v. Daimler Chrysler, Corp., 385 N.J. Super. 434, 438-39 (App. Div. 2006) (holding that expert evidence was insufficient to create triable issue of fact where expert failed to present any data demonstrating the safety or feasibility of proposed alternative design). Nor did plaintiff provide any study or quantification of the risk posed by the absence of the break-out equipment or two-step control and compare that risk with the cost of including it as a standard feature. See Glen Wall Assocs. v. Twp. of Wall, 99 N.J. 265, 280 (1985) (cautioning that "the volume of information that is required to support an expert's opinion must be kept within practical and realistic limits," but that the opinion must nonetheless be adequately substantiated). Thus, plaintiff's expert evidence with respect to this theory of liability is purely speculative and conclusory, and insufficient to allow a jury to perform the required risk/utility analysis and evaluate the evidence in a meaningful way.
Moreover, plaintiff repeatedly emphasizes that he operates drill rigs largely "by feel" and that he learns of the operation of an unfamiliar rig by tinkering with the controls, essentially conceding that any warning of the sort he suggests would likely have gone ignored. Be that as it may, however, plaintiff presents no evidence that Mobile's manual and the placard Acker placed on the drill controls failed to provide adequate warnings of the safety risks inherent in the product they manufactured or refurbished.