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Kuhar v. Petzl Co.

United States District Court, D. New Jersey

October 15, 2019

NICHOLAS KUHAR et al., Plaintiffs,
PETZL Co. et al., Defendants.


          JOEL SCHNEIDER, United States Magistrate Judge.

         This matter is before the Court on the “Motion for Summary Judgment” (“motion”) [Doc. No. 183] filed by defendant Quality Plating (“Quality” or “defendant”). The Court is called upon to address whether Quality is liable for an allegedly defective bolt it zinc plated for defendant Uintah Fastener and Supply, LLC (“Uintah”) which plaintiff contends caused his accident. The Court received the opposition filed by plaintiff [Doc. Nos. 212 and 331] and defendant's reply [Doc. No. 220]. The Court recently held oral argument. This Report and Recommendation is issued pursuant to 28 U.S.C. §636(b)(1). For the reasons to be discussed, it is respectfully recommended that Quality be GRANTED summary judgment pursuant to Fed.R.Civ.P. 56. The Court makes the following findings in support of this Recommendation.


         Insofar as Quality is concerned, the crux of this action concerns plaintiff's argument that a shoulder bolt in a micrograb purchased by plaintiff was defective and, as a result, caused him to fall thirty-seven (37) feet to the ground and sustain major injuries. Plaintiffs in this action are Nicholas and Julie Kuhar[1], husband and wife, and residents of New Jersey. Plaintiff commenced this action on December 23, 2015 in the Superior Court of New Jersey, asserting various claims against defendants Petzl America, Inc., Petzl Company (collectively, “Petzl”), and Bailey's Corporation (“Bailey's”), including allegations of product defect pursuant to the New Jersey Product Liability Act (“NJPLA”), N.J. Stat. § 2A:58C-1 - C-11. Mot. at 1. The complaint alleges that Petzl sold the defective bolt to Bailey's who then sold it to plaintiff in January 2006. Id. On January 22, 2016, defendants removed the case to federal court. Id.

         Plaintiff's claim arises out of an accident which took place on December 24, 2013 in Alloway, New Jersey, while he was working on the roof of a barn. Second Am. Compl. Factual Allegations ¶ 4 [Doc. No. 102]. The product underlying plaintiff's complaint is a “flip-line kit” (hereinafter “flip-line” or “kit”). Mot. at 1; see also Oral Arg. Hr'g Tr. 8:12-24. Plaintiff's kit consists of three component parts: a micrograb which contains the allegedly defective bolt, a carabiner, and a rope. See Oral Arg. Hr'g Tr. 8:12-24. On August 29, 2016, plaintiff amended his complaint and alleged he was “utilizing [defendants'] safety harness to clean gutters” when the “bolt attached to the carabiner of the safety harness snapped, ” causing plaintiff to fall thirty-seven (37) feet off the roof and “strike crushed concrete.” Am. Compl. Factual Allegations ¶ 4 [Doc. No. 43]. Plaintiff sustained serious injuries from the fall, which is alleged by him to have been caused by design and manufacturing defects associated with the flip-line and its component parts. Id. Plaintiff's amended complaint added Uintah Fastener and Supply, LLC (“Uintah”) as a defendant alleging it supplied the defective bolt to Thompson Manufacturing, Inc. (“TMI”) who then used it to make the micrograb pursuant to Petzl's instructions. Id. Summary of the Action ¶ 8.

         On May 30, 2017, Uintah filed a third-party complaint against Porteous Fastener & Supply, LLC (“Porteous”), its purchaser Brighton Best, Inc. (“Brighton”), and Quality. Mot. at 1. Uintah alleged the bolt in question was supplied by Porteous who has since been purchased by Brighton and that Quality zinc plated the bolt. See Third Party Compl. ¶¶ 16 and 18 [Doc. No. 83]. Uintah further alleged upon information and belief the process of zinc plating conducted by Quality “could have caused or contributed to [the] alleged failure of the subject bolt if the plating was performed improperly.” Id. ¶ 20. Plaintiff then filed a second amended complaint and added Porteous, Brighton, and Quality as defendants. Mot. at 1. The third-party complaint was further amended to include Fang Sheng Screw, Co., Ltd. (“YFS”) who is believed to have manufactured the subject bolt.[2]Am. Third Party Compl. ¶ 21 [Doc. No. 158].

         Pursuant to the Court's Scheduling Orders, plaintiff and defendants exchanged liability expert reports. Mot. at 1. Defendants Uintah and Bailey's filed motions to strike plaintiff's expert, Dr. Richard Lynch, alleging his report failed to satisfy the requirements of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993). See Doc. Nos. 185 and 196. This Court granted the motion and found that Dr. Lynch's report and testimony were unreliable and, therefore, should be stricken. See Kuhar v. Petzl Co., No. 16-0395, 2018 WL 7571319 (D.N.J. Nov. 27, 2017). Plaintiff appealed the decision and the Order was affirmed by the Honorable Renée Marie Bumb. See Doc. No. 322. Discovery proceedings have concluded, and defendants have filed motions for summary judgment.

         At oral argument, the parties disputed whether any evidence exists as to when the allegedly defective bolt broke.[3] In addition, plaintiff conceded, as he must, that he does not have a liability expert in the case. Oral Arg. Hr'g Tr. 12:19-21. Plaintiff also conceded that he used the allegedly defective micrograb four to five times a month for seven to eight years before the accident occurred. Id. at 22:14-17. Further, plaintiff clarified he is not pursuing a breach of warranty claim against any of the defendants and the only party against whom he is pursuing a failure to warn claim is Petzl. Id. Plaintiff admitted he raised his specific failure to warn claim against Petzl for the first time in his most recent reply brief. Id. at 24:1-13. Last, plaintiff conceded he is not pursuing a manufacturing defect claim against any defendant. Id. at 24:17-22.

         Quality moves for summary judgment alleging that: (1) Quality is neither a manufacturer, seller nor distributor and cannot be strictly liable pursuant to the New Jersey Product Liability Act (“NJPLA”), N.J. Stat. § 2A:58C-2 and C-8; and (2) Quality could only be liable under a negligence theory, but plaintiff cannot make a prima facie case of negligence without a liability expert. Mot. at 4-7. It is undisputed that no expert alleges that Quality's plating had anything to do with the fracture of plaintiff's bolt. Plaintiff's theory of liability against Quality relates to the possibility that during the zinc plating of the bolt in question, hydrogen embrittlement was created which ultimately weakened the bolt and contributed to the plaintiff's accident. See Mot. at 1; see also Oral Arg. Hr'g Tr. at 32:1-6. However, plaintiff's counsel agreed with the Court's statement that, “without an expert, [he] can't pursue that theory.” See Oral Arg. Hr'g Tr. at 32:1-6.


         A. Summary Judgment Standard

         Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any . . . demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal citations omitted). Summary judgment is not appropriate if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (citations omitted). The materiality of a fact turns on whether under the governing substantive law a dispute over the fact might have an effect on the outcome of the suit. Id. The Court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2009) (citation omitted).

         The moving party bears the initial burden of informing the Court of the basis for its motion and demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-23. Once the burden is met, the burden shifts to the non-moving party to "set forth specific facts showing that there [are] . . . genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. The party opposing summary judgment may not "rest upon mere allegation[s] or denials of his pleading," but must set forth specific facts and present affirmative evidence demonstrating that there is a genuine issue for trial. Id. at 256-57; Fed.R.Civ.P. 56(c)(1)(A). Additionally, "if the non-moving party's evidence 'is merely colorable, . . . or is not significantly probative, . . . summary judgment may be ...

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