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Ruggiero v. Yamaha Motor Corporation, U.S.A.

United States District Court, D. New Jersey

March 31, 2017


          Gary David Ginsburg, Esq. GINSBURG & O'CONNOR, P.C. Atrium II Attorney for Plaintiff James Simon Coons, Esq.

          James Simon Coons, Esq. Robert A. Assuncao, Esq. ANSA ASSUNCAO LLP Two Tower Center Blvd., and Richard A. Mueller, Esq. THOMPSON COBURN LLP Attorneys for Defendant


          JEROME B. SIMANDLE Chief U.S. District Judge


         In this products liability action, Plaintiff Angela Ruggiero (hereinafter, “Plaintiff”) alleges that Defendant Yamaha Motor Corporation, U.S.A. (hereinafter, “Defendant” or “Yamaha”) failed to provide adequate warnings when Plaintiff fell off a personal watercraft and sustained serious injuries. Defendant has moved to strike the reports and testimony of Plaintiff's expert William Kitzes, and asserts that without his report and testimony, Plaintiff has insufficient evidence for a reasonable jury to conclude Defendant is liable for a failure to warn claim.

         For the reasons that follow, Defendant's motion to strike will be granted, and its motion for summary judgment will be denied.

         II. BACKGROUND [1]

         A. Factual Background [2]

         On June 30, 2012, Plaintiff suffered a severe rectal laceration when she fell off a 2009 Yamaha FZR WaveRunner personal watercraft (“FZR” or “PWC”)[3] just off of Brigantine Township Beach. (Def. Statement of Material Facts at ¶¶ 1, 3.) Plaintiff's boyfriend, Thomas Fimple was the owner and operator of the FZR at the time of the incident, with Plaintiff holding on behind him as a passenger. (Id. at ¶ 2.) As Mr. Fimple approached the beach, he accelerated his FZR towards a large boat producing a large wake. (Id. at ¶¶ 8-9.) Contrary to his usual practice of warning Plaintiff before he would accelerate his FZR (so Plaintiff could hold on), in this instance, Mr. Fimple did not advise Plaintiff that he was going to accelerate. (Id. at ¶¶ 10-11; Ruggiero Dep. 48:24-25 - 49:1-4.) As a result, Plaintiff did not hold on, fell off the vessel, and hurt her back. (Id. at ¶ 13.) Plaintiff was wearing a two-piece bathing suit when the incident occurred, as she was not wearing a wetsuit bottom or other protective clothing at the time of her injury. (Id. at ¶¶ 4-5.)

         Mr. Fimple purchased the FZR from Deptford Honda Yamaha on July 19, 2009 and had owned it for nearly three years at the time of the incident. (Id. at ¶ 15.) Defendant, the wholesaler, had originally sold the FZR to Deptford Honda Yamaha (Id.) Prior to the accident, Mr. Fimple had modified the FZR in a variety of ways to make it accelerate faster, while also installing a decorative decal wrap that covered all the original equipment warning labels on the FZR except for the Uniform Label located on the glove box door below the handlebars. (Id. at ¶¶ 16-17.) When he purchased the FZR, Mr. Fimple received the Owner's Manual, a Riding Practice Guide, a waterproof Riding Instructions Placard, and a thick plastic Ziploc bag to store the information. (Id. at ¶ 18.)

         At the time of sale, Mr. Fimple's FZR had two warning labels affixed to the watercraft that specifically addressed the risk of orifice injuries and the need to wear protective clothing. These labels were located on the handlebars (on the lid of the glove box) and at the rear of the craft (next to the rear boarding deck). (Id. at ¶ 22.)

         The contents of these warning labels is not challenged by Plaintiff, only their placement on the watercraft. The label on the glove box (“Uniform Label”)[4] specifically stated:

To reduce the risk of SEVERE INJURY or DEATH: . . . WEAR PROTECTIVE CLOTHING. Severe internal injuries can occur if water is forced into body cavities as a result of falling into water or being near jet thrust nozzle. Normal swimwear does not adequately protect against forceful water entry into rectum or vagina. All riders must wear a wet suit bottom or clothing that provides equivalent protection (See Owners' Manual).

(Id. at ¶ 23.) Plaintiff never read this label. (Kitzes Dep. 19:9.) The second warning label, affixed behind the seats of the FZR above the boarding platform, states:

Severe internal injuries can occur if water is forced into body cavities as a result of being near jet thrust nozzle. Wear a wetsuit bottom or clothing that provides equivalent protection. Do not board PWC if operator is applying throttle.

(Def. SMF at ¶ 27.) Plaintiff testified she never read this label either because Mr. Fimple had covered it up with a decorative decal. (Kitzes Dep. 19:15-19.) Furthermore, the Owner's Manual instructs all riders to read the manual and warning labels before riding the PWC, and warnings about the potential risk of orifice injuries and the need to wear protective clothing are found on page 6, 7, 12, 61, 62, and 64 of the Owner's Manual. (Id. at ¶ 29-30.)

         Plaintiff began riding as a passenger on Mr. Fimple's FZR in 2011, but Mr. Fimple never told her about the requirement to wear protective clothing as stated in the safety literature and on-product warnings that accompanied the FZR when he purchased it, nor did he ask her to review any of the materials or the on-product warnings on the craft, or to read the Owner's Manual. (Id. at ¶¶ 38-41.) Plaintiff also never read any of the warnings on the FZR, nor did she read any warning (on the product, in the product literature, or otherwise) for the FZR that discussed the risk of orifice injuries and how to avoid the risk (by wearing protective clothing). (Id. at ¶¶ 45-47.) In fact, Mr. Fimple has never reviewed the safety information for any PWC he has owned or used. (Id. at ¶ 51.) Mr. Fimple first learned to operate a PWC in 1993, and explained that “[e]verything that I've been taught, I've been taught through my uncle, who was a boater, my grandfather, who was a boater, my aunt, who is a boater, their entire lives. So them teaching me physically how to properly do things, I didn't feel those warning labels would affect me at all because they've taught be all the safety I needed to know . . . And those warning labels, I just look at them and say that's something that I already probably know, and just kind of blow them off.” (Id. at ¶¶ 53, 58.)

         B. Procedural Background

         Plaintiff filed her Complaint against Defendant in the Superior Court of New Jersey, Burlington County, on June 23, 2014. [Docket Item 1.] Defendant properly removed the case to this Court under 28 U.S.C. § 1441(a). (Id.) Plaintiff's Complaint consists of four counts: (1) strict products liability against Defendant for design defect and failure to warn; (2) negligence against Defendant for inadequate instructions and warnings for the FZR; (3) a strict products liability claim identical to the First Count but directed against fictitious individuals, and (4) a negligence claim identical to the Second Count but directed against fictitious individuals.[5] After pretrial discovery, Defendant filed this motion for summary judgment [Docket Item 24], which has been fully briefed. The Court held a Daubert hearing and oral argument on March 17, 2017. [Docket Item 31.]


         C. Summary Judgment Standard, Generally

         Summary judgment is appropriate if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Alabama v. North Carolina, 560 U.S. 330, 344 (2010) (citations and internal quotation marks omitted); see also Fed.R.Civ.P. 56(a).

         In evaluating Defendant's motion for summary judgment, the Court must view the material facts in the light most favorable to the non-moving party, Plaintiff, and make every reasonable inference in that party's favor. See Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014). An inference based upon “‘speculation or conjecture, '” however, “‘does not create a material factual dispute sufficient to defeat summary judgment.'” Halsey, 750 F.3d at 287 (citations omitted). Rather, the non-moving party must support each essential element with concrete record evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

         “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, ” the Court may grant summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).


         A. Motion to Strike Expert Testimony of William Kitzes

         The Court first addresses Defendant's motion to strike at the outset, as it impacts the outcome of Defendant's motion for summary judgment.[6] In support of her theory of liability against Defendant, Plaintiff has produced the expert report, supplemental report and testimony of William F. Kitzes, J.D. (Pl. Statement of Additional Material Facts at ¶ 1.) Mr. Kitzes testified at his deposition that he has offered testimony in approximately eight other cases involving personal watercraft in his career, with two involving orifice injuries. (Id. at ¶ 12.) He has opined about the location of the warning on Mr. Fimple's PWC, that “an additional [third] label needed to be placed on the seat in front of the passenger so that they got directly the information they needed to protect themselves.” (Id. at ¶ 31.)[7] In Mr. Kitzes' view, this “failure to provide an adequate warning in the location where it can be used by the person who needs it” is creates an “unreasonable risk of catastrophic injury, particular to women, under foreseeable conditions well- known to Yamaha for nearly 20 years.” (Id. at ¶ 25; Kitzes Dep. 47:17-20.) Plaintiff does not take issue with the actual wording of the two warnings on this watercraft, which are not at issue.

         Defendant moves to exclude Mr. Kitzes' reports and testimony under Daubert v. Merrill Dow Pharma., Inc., 509 U.S. 579 (1993) because (a) he is not qualified to express the opinion that he offers, (b) his opinion is not reliable, (c) his “method” to derive these opinions is not scientific, and (d) his generic views about warnings are not helpful to the jury. (Def. Br. at 1.)[8]

         Federal Rule of Evidence 702 “embodies a trilogy of restrictions on expert testimony: [1] qualification, [2] reliability, and [3] fit.” Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing In re Paoli R.R. Yard PCB ...

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