United States District Court, D. New Jersey
REPORT AND RECOMMENDATION REGARDING THE MOTION FOR
SUMMARY JUDGMENT FILED BY QUALITY PLATING [DOC. NO.
SCHNEIDER, United States Magistrate Judge.
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.
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, 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.
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.
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.Am. Third Party Compl. ¶ 21 [Doc. No.
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.
argument, the parties disputed whether any evidence exists as
to when the allegedly defective bolt broke. 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.
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.
Summary Judgment Standard
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).
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 ...