United States District Court, D. New Jersey
H. RODRIGUEZ, UNITED STATES DISTRICT JUDGE.
Joseph H. Rodriguez This matter is before the Court on motion
for summary judgment filed by Defendant Strip Technology,
Inc. [Dkt. No. 61]. The Court heard oral argument on the
motion on April 25, 2017 and the record of that proceeding is
incorporated here. For the reasons placed on the record that
day, and those set forth below, Strip Technology Inc.'s
motion for summary judgment will be denied.
case involves claims arising from a workplace accident which
occurred on May 5, 2011 when Plaintiff Anthony Benitez was
operating a metal recycling machine during the course of his
employment at Former Defendant Doctor Copper, a metal
recycling facility in Pennsauken, New Jersey. The metal
recycling machine at issue is described as an
“alligator shear” and is manufactured and
distributed by Former Defendant JMC Recycling System Ltd.
Defendant Strip Tech is a vendor of recycling equipment and
sold the alligator shear at issue to Dr. Copper. See
Compl., Ex. A; see also Alexander Dep. Tr., Ex. C,
at 22:21 -23; 34:10-14; 14:7-9; 25:5-31:7.
alligator shear is a machine used to cut and manipulate scrap
metal, of various shapes and sizes, by placing the metal
between two blades that resemble an alligator's jaws.
See Def. Sta. of Mat. Facts; Alligator Shear
Operation and Maintenance Manual, attached to Coleman Dec. as
Ex. “D.” The machine is operated through the use
of a foot pedal that regulates the opening of the blades and
the compression of the blades through a metal object. When
the pedal is releases, the blades return to an open position.
See id. at p. 1. The alligator shear machine is
equipped with a safety guard, also referred to as a
“cage guard” or blade guard” that covers
the blades during operation, if it is manually pulled down.
See Alexander Dep. Tr., Ex. C, at 44:5-45:2; see
also Manual, Ex. D, at p. 18. If utilized, the cage
guard also functions as an “infeed clamp, ” which
holds down the metal material that is being inserted into the
shear to allow the user to cut material without placing his
or her hands near the blades. See Pl. Dep. Tr., Ex.
B, at 46:9-22; see also Manual, Ex. D, at p. 18.
Importantly, the machine operates even if the cage guard is
cage guard was not utilized on the day Plaintiff was injured.
Benitez Dep. at 61:18-62:12. According to Plaintiff, he was
injured when he was using the alligator shear to cut a copper
pipe and he tripped on materials and debris on the floor,
causing him to lose his balance. See id. at
72:25-73:3; 82:15 -85:13; 86:20-95:1. To brace himself for a
fall, Plaintiff placed is left had onto the engaged alligator
shear machine, causing significant injury to three fingers on
his left hand. See id. at 86:20-95:1; 102:12-15.
against moving Defendant Strip Tech, Plaintiff asserts
violations of the New Jersey Products Liability Act
(“NJPLA”), N.J. Stat. Ann. § 2A:58C-2
(Counts II, II, IV), a claim of negligence (Count VI), and
consumer fraud (Count V). Defendant JMC Recycling was
dismissed from this action for lack of personal jurisdiction
on April 10, 2015. The claims against Doctor Copper were
voluntarily dismissed by Plaintiff. [Dkt. No. 10].
Tech moves for summary judgment on all counts, arguing that
it had Plaintiff fails to present admissible expert testimony
to establish a prima facie case of product
liability. Strip Tech argues that the testimony of
Plaintiff's expert, George H. Meinschein, P.E. is
unreliable, based entirely on speculation and unsupported
conclusions rather than upon facts in the record and
scientific methodology. Defendant argues, therefore,
Plaintiff cannot establish proximate cause for his design
defect and failure to warn claims. In addition, because
Plaintiff fails to identify an affirmation or promise made by
Strip Tech, summary judgment should be granted as to the
breach of warranty claim.
Opposition papers and on the record during argument,
Plaintiff conceded that summary judgment is appropriate on
the claim of defective or inadequate warning and the claim
for breach of express warranty. As a result, summary judgment
is granted in favor of Strip Tech as to those claims. For the
reasons that follow, the Court finds that genuine issues of
material fact preclude summary judgement. Plaintiff's
expert's testimony is admissible and questions of fact
germane to the establishment of a prima facie case
of product liability and on causation merit denial of the
remained of Strip Tech's motion.
Standards of Review
Summary Judgment Standard
Rule of Civil Procedure 56(a) generally provides that the
“court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material
fact” such that the movant is “entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Such
a showing must be supported by “citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56
“genuine” dispute of “material” fact
exists where a reasonable jury's review of the evidence
could result in “a verdict for the non-moving
party” or where such fact might otherwise affect the
disposition of the litigation. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant
or unnecessary facts, however, will fail to preclude the
entry of summary judgment. Id.
evaluating a motion for summary judgment, the court must view
the evidence in the light most favorable to the non-moving
party, and must provide that party the benefit of all
reasonable inferences. Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273,
287 (3d Cir. 2014). Any such inferences “must flow
directly from admissible evidence[, ]” because
“‘an inference based upon [ ] speculation or
conjecture does not create a material factual dispute
sufficient to defeat summary judgment.'”
Halsey, 750 F.3d at 287 (quoting Robertson v.
Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir.
1990) (citing Anderson, 477 U.S. at 255)).
the moving party initially has the burden of demonstrating
the absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has met this burden, the non-moving party must
identify, by affidavits or otherwise, specific facts showing
that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally's Park Place, Inc., 870
F.Supp. 1254, 1258 (D.N.J. 1994). Again, to withstand a
properly supported motion for summary judgment, the
non-moving party must identify specific facts and affirmative
evidence that contradict those offered by the moving party.
Andersen, 477 U.S. at 256-57. “A nonmoving
party may not ‘rest upon mere allegations, general
denials or . . . vague statements . . . .'”
Trap Rock Indus., Inc. v. Local 825, Int'l
Union of Operating Eng'rs, 982 F.2d 884, 890 (3d
Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934
F.2d 497, 500 (3d Cir. 1991)). Indeed,
the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial.
Celotex, 477 U.S. at 322. The movant can support the
assertion that a fact cannot be genuinely disputed by showing
that “an adverse party cannot produce admissible
evidence to support the [alleged dispute of] fact.”
Fed.R.Civ.P. 56(c)(1)(B); accord Fed.R.Civ.P.
deciding the merits of a party's motion for summary
judgment, the court's role is not to evaluate the
evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Credibility determinations are the province of the
factfinder. Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Finally,
“[t]he standard by which the court decides a summary
judgment motion does not change when the parties file
cross-motions.” United States v. Kramer, 644
F.Supp.2d 479, 488 (D.N.J. 2008). Consequently, the
court's evaluation of the pending motions remains
unaltered: “the court must consider the motions
independently and view the evidence on each motion in the
light most favorable to the party opposing the motion.”
Id. (citation omitted).
The New Jersey Products Liability Act
A manufacturer or seller of a product shall be liable in a
product liability action only if the claimant proves by a
preponderance of the evidence that the product causing the
harm was not reasonably fit, suitable or safe for its
intended purpose because it: a. deviated from the design
specifications, formulae, or performance standards of the
manufacturer or from otherwise identical units manufactured
to the same manufacturing specifications or formulae, or b.
failed to contain adequate warnings or instructions, or c.
was designed in a defective manner.
N.J.S.A. § 2A:58C-2. Three causes of action are
established under the Act: claims for design defect,
manufacturing defect, or warnings defect. Roberts v. Rich
Foods, Inc., 654 A.2d 1365, 1380 (N.J. 1995).
successful design defect claim under the NJPLA requires that
the product was defective, that the defect existed when the
product left the defendant's control, and that the defect
caused injury to a reasonably foreseeable user. Jurado v.
Western Gear Works, 619 A.2d 1312, 1317 (N.J. 1993).
“Whether a product is defective depends on whether it
‘is not reasonably fit, suitable and safe for its
intended or reasonably foreseeable purposes.'”
McGarvey v. G.I. Joe Septic Serv., Inc., 679 A.2d
733, 740 ( N.J.Super.Ct.App.Div. 1996) (quoting
Jurado, 619 A.2d at 1317). To establish a design
defect at the summary judgment stage, a plaintiff must
provide sufficient evidence such that a reasonable jury could
find “either that the product's risks outweighed
its utility or that the product could have been designed in
an alternative manner so as to minimize or eliminate the risk
of harm.” Lewis v. American Cyanamid Co., 715
A.2d 967, 980 (N.J. 1998). The plaintiff thus bears a burden
to demonstrate “under a risk-utility analysis the
existence of an alternative design that is both practical and
Jersey courts use a seven-factor balancing test to determine
whether a product is fit for its intended uses, considering:
(1) the usefulness and desirability of the product; (2) the
likelihood and seriousness of injury; (3) the availability of
a substitute product; (4) the manufacturer's ability to
eliminate the danger without impairing the product's
utility; (5) the user's ability to avoid danger by due
care; (6) the user's anticipated awareness of the danger
considering general public knowledge or the obvious condition
or the existence of suitable warnings or instructions; and
(7) the feasibility of the manufacturer's spreading the
loss by setting the price or carrying liability insurance.
McGarvey, 679 A.2d at 740 (citing Johansen v.
Makita USA, Inc., 607 A.2d 637 (1992)).
Federal Rule of Evidence 702 and Daubert
guiding principles that inform the Court's judgment are
found in Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993). Federal Rule of Evidence 702
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if
(1) the testimony is based upon sufficient facts or data, (2)
the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and
methods reliably to the facts of the case.
Fed. R. Evid. 702. Consistent with that Rule,
Daubert established a “trilogy of
restrictions” on the admissibility of expert testimony
relating to scientific knowledge. See Calhoun v. Yamaha
Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003). This
“trilogy” consists of “qualification,
reliability and fit.” Id. The Third Circuit
liberally construes the qualifications of an expert, noting
that “a broad range of knowledge, skills, and training
will qualify a witness as an expert ...” See
Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d 470, 495
(D.N.J. 2002) (quoting In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 741 (3d Cir. 1994)
(“Paoli II”)) (internal quotations
omitted). The qualifications of Mr. Meinschein are not at
respect to reliability, the focus is on the “principles
and methodology, not on the conclusions that they
generate.” Daubert, 509 U.S. at 595. Four
benchmarks help determine whether a theory or technique
qualifies as “scientific knowledge” such that it
will assist the trier of fact. See Daubert, 509 U.S.
at 593. The Court considers: (1) whether the theory can be or
has been tested; (2) whether the theory or technique has been
subjected to peer review and/or publication; (3) the rate of
error; and (4) whether the theory or technique has been
generally accepted within the putative expert's
respective community. Id. at 593-94. The Third
Circuit adds other factors, including: (5) the existence and
maintenance of standards controlling the technique's
operation; (6) the relationship of the technique to methods
which have been established to be reliable; (7) the
qualifications of the expert testifying based on the
methodology; and (8) the non judicial uses to which the
method has been put. Paoli II, 35 F.3d at 742 n. 8.
When considering these factors, the Court's inquiry must
be a “flexible one.” Id.
the third prong, Rule 702 requires that the “proffered
expert testimony must ‘fit' within the facts of the
case.” Yarchak, at 208 F.Supp.2d at 496. The
fit requirement mandates that the testimony “in fact
assist the jury, by providing it with relevant information,
necessary for a reasoned decision of the case.”
Id. (citing Magistrini v. One Hour Martinizing
Dry Cleaning, 180 F.Supp.2d 584, 595 (D.N.J. 2002)).
Thus, even if an expert is qualified and relies on sound
methodology, he must still “apply this expertise to the
matter at hand.” See Calhoun, 350 F.3d at 324.
These factors are not exclusive. They “are intended to
serve only as ‘useful guideposts, not dispositive
hurdles that a party must overcome in order to have expert
testimony admitted.'” Yarchak, 208
F.Supp.2d at 495 (quoting Heller v. Shaw Industries,
Inc., 167 F.3d 146, 152 (3d Cir. 1999)). With the help
of these guideposts, the Court performs its essential
gatekeeper role under Federal Rules of Evidence 702.
are questions of fact related to whether Plaintiff satisfies
his burden of demonstrating defective design by satisfying
the “risk-utility” analysis and whether the
design defect is a proximate cause of the accident. In
addition, the Court rejects Defendant Strip Tech's
argument that Mr. Meinschein's opinion is an unreliable
net opinion. Giving Plaintiff the benefit of every doubt and
available inference, summary judgment is denied because
reasonable jurors could disagree as to whether the reasonably
foreseeable risk of harm posed by the reasonably foreseeable
use of the product could have been reduced or avoided by a
reasonably alternative design and whether the defective
design is a proximate cause of the accident.
the parties agree that the risks associated with the use of
the machine are high and that operation of the machine can be
hazardous. The tension in this case is created by the fact
that the cage guard was not operational and that there was
debris in the area of the machine which created a tripping
hazard for the operator. In addition, although the machine
came with various operational guidelines and warnings,
Plaintiff's employer Dr. Copper, which is not a party to
this action, never properly trained Plaintiff on the use of
the alligator shear and did not provide plaintiff with the
Operations Manual. See Pl. Dep. at 12.
testified that he never used the cage guard while operating
the machine and never saw any of his co-corkers use the cage
guard when operating the machine. See id. at
61:14-63:5; see also Manual, Ex. D, at p. 2-3, 9
Q. Okay. Just to go back to what Gio told you in terms of how
to operate the shear he told you how to turn it on by
pressing the green button; correct?
Q. Was there anything else that he told you about how to
operate this machine?
Q. Did anybody else at Dr. Copper provide you with any other
information on how to operate the machine?
A. No, Ma'am.
Q. Did anybody ever tell you the type of metal that could be
used in the machine?
A. No, Ma'am.
Q. Did anybody ever show you or tell you that this what I
just referred to as a ...