On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-0530-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Baxter and Koblitz.
Plaintiff Calvert Sims appeals from a September 29, 2009 Law Division order that granted the motion of defendant C & D Technologies, Inc. for a directed verdict. On appeal, plaintiff maintains that the judge erred by concluding that: his proposed liability expert, Mark J. Keith, P.E., lacked sufficient expertise to offer an expert opinion on the cause of the battery failure and ensuing emission of sulfuric acid; and Keith's opinion was an inadmissible net opinion. We agree with the latter conclusion and therefore do not reach the other basis upon which the judge relied when she excluded Keith's testimony. We affirm the order under review.
For approximately four years, plaintiff was employed by Ceres Terminals, Inc., which operated a facility for marine and rail transportation. Plaintiff worked at Ceres's Weehawken office, which included a dedicated air-conditioned room where the company's computer equipment was located. The computer equipment was connected to an uninterruptible power supply (UPS) unit, which provided emergency back-up power in the event that Ceres's computers lost power. The UPS incorporated a group of twenty rechargeable valve-regulated, lead-acid batteries (VRLA), all of which were manufactured by defendant C & D Technologies, Inc. (C & D).
On March 29, 2005, one or more of the batteries that comprised the UPS emitted sulfuric acid fumes as part of a "thermal runaway," a term used to describe the overheating of batteries and the resulting release of noxious battery fumes. Plaintiff alleged that he suffered serious health problems as a result of the exposure to the sulfuric acid during the thermal runaway. The manufacturer of the UPS, Eaton Corporation, was dismissed from the case on summary judgment, leaving C & D as the only remaining defendant. A different judge later granted C & D's motion for partial summary judgment, limiting plaintiff's cause of action against C & D to a claim that the VRLA batteries were defectively manufactured.
During the pretrial discovery period, plaintiff furnished an expert report from Keith, who was plaintiff's sole liability expert. Before describing Keith's September 3, 2008 report, we pause to describe the trial testimony concerning the service calls that Ceres initiated in the two months preceding the March 29, 2005 thermal runaway. In January 2005, Eaton technician David Thornton responded to a service call at Ceres regarding an unpleasant odor emanating from the batteries. Thornton concluded that the UPS was not malfunctioning, but the batteries "needed to be replaced." Thornton did not elaborate on his reason for so concluding. The actual replacement of the twenty batteries was completed by a company known as PowerServe. PowerServe technician John Lichtenstein replaced all twenty of the batteries and was satisfied that all of the newly-installed batteries were free of any defects and were functioning properly.
A few weeks later, on February 2, 2005, Thornton responded to another service call at Ceres because the UPS unit had shut down. Thornton was able to restart the UPS unit, which meant, according to Thornton, that the batteries had not failed because "[i]f it had been the batteries, the [UPS] unit wouldn't have restarted."
On the day in question, March 29, 2005, Thornton was again called to the Ceres facility in response to a strong "rotten egg" smell that was especially strong in the computer room where the UPS unit was located. By checking the "charging levels" of the UPS unit, Thornton was able to determine that the unit was not running properly. He shut down the UPS unit by placing it in bypass mode and proceeded to open the cabinet door to check the batteries. When he opened the cabinet door, he noted that the batteries were "very hot," some of them were leaking, and a strong "rotten egg" smell was present. Because the batteries were leaking and emitting the smell, neither of which was a normal condition for the batteries, Thornton arranged for the replacement of all twenty batteries, commenting that it was "unusual" to replace a full set of batteries after only seventy days of operation. Once the batteries were replaced, he was able to restart the UPS unit with no difficulty.
Thornton explained that VRLA batteries are designed with a "vent system" to reduce the internal pressure of the battery and release "the gas" if the battery begins to "overcharge" or develop excess pressure. He explained that because there was sulfuric acid gas coming out of the batteries on March 29, he ordered the replacement of the entire battery bank "to protect the customer," Ceres. The batteries that were removed were discarded and not preserved.
With those events as background, we turn to the opinions expressed by Keith. In his cover letter enclosing his September 3, 2008 report, Keith observed that a manufacturing defect in the batteries was one of three possible causes of the thermal runaway that had resulted in the release of sulfuric acid fumes on March 29, 2005. Keith was not, however, able to determine the precise role any such manufacturing defect would have played in the events of that day. He wrote:
[A] defectively manufactured battery, improper maintenance of the UPS system and negligent substitution of UPS batteries were the individual or combined causes of the incident that resulted in ...