NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3996-15T3
JACK SUSER,
Plaintiff-Appellant,
v.
DELAVAN INDUSTRIES, INC. and
LOHR INDUSTRIES,
Defendants-Respondents,
and
C.F. BENDER CO. INC.,
Defendant/Third-Party
Plaintiff,
v.
S&J METAL MANUFACTURING INC.,
Third-Party Defendant/Fourth-
Party Plaintiff,
v.
M&G INDUSTRIES, INC.,
Fourth-Party Defendant.
____________________________________
Argued May 8, 2017 – Decided May 25, 2017
Before Judges Sabatino and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
1285-12.
Robert P. Altemus argued the cause for
appellant (Wertalik & Altermus, attorneys; Mr.
Altemus, on the briefs).
Douglas V. Sanchez argued the cause for
respondents (Cruser, Mitchell, Novitz,
Sanchez, Gaston & Zimet, LLP, attorneys; Mr.
Sanchez, of counsel and on the brief;
Georgeann Belcher, on the brief).
PER CURIAM
Plaintiff Jack Suser appeals from the entry of summary
judgment dismissing his products liability action with respect to
his claims against co-defendants Delavan Industries, Inc.
("Delavan") and Lohr Industries ("Lohr"). As a related aspect of
that appeal, plaintiff seeks reversal of the trial court's ruling
to exclude his liability expert under the "net opinion" doctrine.
Plaintiff also appeals from the trial court's denial of his motion
for leave to amend the complaint at the end of the discovery period
to include an additional defendant, and its subsequent order
declining to reconsider that denial. We affirm.
I.
We briefly summarize the facts and procedural history
presented in the record. Plaintiff was the owner and operator of
an automobile hauler trailer. The trailer was manufactured by
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Delavan and Lohr in 2000. Plaintiff purchased the trailer in
2007.
On the day of the accident, February 8, 2010, plaintiff was
injured as he was attempting to tie down a vehicle to the trailer.
As he was pulling on the tie-down apparatus, its metal chain broke,
causing plaintiff to lose his balance and fall off the trailer.
Plaintiff injured his neck, wrist, and knee as a result of that
fall.
Only a four-foot portion of the broken chain was preserved
after plaintiff's accident. A photograph of that partial chain
shows it had become rusty in spots. According to an expert
retained by Delavan and Lohr, the chain was an "aftermarket" item
that was not part of the original trailer they had manufactured.
Plaintiff filed suit in the Law Division initially against
Delavan, Lohr, and unnamed fictitious defendants. Although the
complaint asserted several legal theories, the essence of
plaintiff's case is that the chain tie-down apparatus was
defective, and that defendants are thereby strictly liable for
plaintiff's injuries. Plaintiff claims that the product was
unsafely designed, improperly manufactured, and lacked sufficient
warnings to place users such as himself on notice that the tie-
down apparatus might fail when applying force to tighten it.
3 A-3996-15T3
As the litigation progressed through discovery, the co-
defendants added several third-party defendants who might be
responsible for the alleged product defects, including C.F. Bender
Co. Inc. ("Bender"), S&J Metal Manufacturing Inc. ("S&J"), and M&G
Industries, Inc. ("M&G"). Plaintiff amended his own complaint to
add Bender as a direct defendant. However, none of the added
parties were conclusively shown to have manufactured the chain
that had ruptured.
Plaintiff obtained an expert report from a professional
engineer to support his contentions of product defect. The expert
inspected the remaining portion of the chain, but did not perform
any tests on it. He observed that the links were "old and badly
corroded." Although the expert did not inspect the trailer, he
reviewed photographs taken of it after the accident, as well as
the report of a company that had investigated the incident.
The liability expert concluded that the chain would not have
broken merely due to the force exerted by plaintiff when tightening
it, unless the chain was defective. The expert also criticized
the tie-down design selected by Delavan and Lohr. The expert
noted from Bender's then-current website that Bender offered a
"newer type" of tie-down system, utilizing fabric belts rather
than metal chains. The expert opined that such a fabric tie-down
method would have been safer. The expert also contended that the
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trailer had not been sold with adequate warnings of this potential
hazard.
Delavan and Lohr countered with their own expert report from
an engineer. Among other things, the defense expert pointed out
that woven fabric tie-down attachments have both advantages and
disadvantages. The defense expert further noted that federal
regulations specifically permit the use of metal tie-down chains,
and that such a system was prevalent in the industry at the time
when this trailer was manufactured.
S&J, Delavan, and Lohr all moved for summary judgment. As
part of their arguments, they asserted that the proposed testimony
of plaintiff's liability expert should be disallowed as improper
net opinion. Defendants argued that, without an appropriate expert
to support plaintiff's claims of product liability, his complaint
must be dismissed.
In its own summary judgment submission, S&J included an
affidavit dated January 27, 2016 from its owner, Lonnie Smith, who
had inspected photographs of the broken chain. Smith attested
that it was his "belief that the chain was manufactured and
distributed by Columbus McKinnon Corporation," ("Columbus
McKinnon") a company located in Amherst, New York. Apparently,
Smith's affidavit provided counsel with the first documented
evidence of the apparent true identity of the chain's manufacturer.
5 A-3996-15T3
Four days after receiving Smith's affidavit, plaintiff moved
for leave to amend its complaint to add Columbus McKinnon as an
additional defendant. Plaintiff also requested an opportunity to
conduct further discovery and have his expert revise his report
to consider this new information.
Upon hearing oral argument, Judge Charles E. Powers, Jr.
concluded that plaintiff's liability expert's analysis was indeed
improper net opinion and could not support plaintiff's cause of
action. The judge consequently granted summary judgment to S&J,
Delavan, and Lohr, for reasons detailed in a written opinion. The
judge also denied plaintiff's request for leave to amend the
complaint to add Columbus McKinnon, concluding in the written
Rider to his order that such an amendment would be a "futile"
exercise under the circumstances.
Subsequently, S&J stipulated to the dismissal of its fourth-
party complaint against M&G, and plaintiff stipulated to dismiss
his claims against Bender. Plaintiff moved for reconsideration
of the trial court's denial of his attempt to expand the complaint
to name Columbus McKinnon. The court denied that motion, and this
appeal by plaintiff followed.
II.
Plaintiff argues that the trial court's net opinion ruling
was erroneous and should be reversed and that his products
6 A-3996-15T3
liability claims should thus be reinstated against Delavan and
Lohr. 1 He further argues that the trial court abused its
discretion in declining his unopposed request for leave to amend
his complaint to add a new party.
Having considered these points, viewing the record in a light
most favorable to plaintiff and under the applicable law, we affirm
the trial court's rulings in all respects, substantially for the
sound reasons articulated by Judge Powers in the series of his
written decisions. We add only a few comments.
Under the New Jersey Products Liability Act ("PLA"), N.J.S.A.
2A:58C-1 to -11, a plaintiff has the burden of proving "a design
or manufacturing defect or a failure to warn [the product user]
adequately."2 Ford Motor Credit Co., LLC v. Mendola, 427 N.J.
Super. 226, 240 (App. Div. 2012) (citing N.J.S.A. 2A:58C-2). In
order to establish a design defect, a plaintiff must prove that
the defendant product maker's design was not reasonably safe, and
that "a practical and feasible alternative design existed [at the
time of manufacture] that would have reduced or prevented his
harm." Lewis v. American Cyanamid Co., 155 N.J. 544, 560 (1998)
1
Plaintiff does not seek to reinstate his claims against S&J.
2
Notably, the PLA preempts all claims and legal theories for harm
alleged by a product, except for harm caused by breach of an
express warranty. N.J.S.A. 2A:58C-1(b)(3).
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(internal citations omitted); see also N.J.S.A. 2A:58C-3.
Alternatively, to establish a warnings defect, a plaintiff must
prove a defendant had a duty to warn users of a product's dangers,
and that the defendant failed to provide such a warning that would
reasonably communicate those dangers to foreseeable users. See
Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 205 (1984);
N.J.S.A. 2A:58C-4.
Lastly, to establish a viable claim of a manufacturing defect,
a plaintiff must prove that the product "deviated from the design
specifications, formulae, or performance standards of the
manufacturer or from otherwise identical units manufactured to the
same . . . specifications or formulae[.]" N.J.S.A. 2A:58C-2; see
also Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 99 (1999).
Where, as here, the product involved is a complex
instrumentality and the substance of the claims are beyond the ken
of lay jurors, a plaintiff ordinarily must support his or her
defect claims with the admissible opinions of a qualified expert
witness. Jerista v. Murray, 185 N.J. 175, 197-99 (2005)
(recognizing this principle applies when an inference of
negligence cannot be based on "common knowledge" of a trier of
fact).
Apart from these substantive elements of products liability
law, we also must apply here well-established principles
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concerning expert testimony. In general, the admissibility of
expert testimony is "committed to the sound discretion of the
trial court[,]" and is thus entitled to deference on appeal.
Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). The trial court's
determination should not be disturbed on appeal unless it was "so
'wide of the mark' as to constitute 'a manifest denial of
justice[.]'" Hisenaj v. Kuehner, 194 N.J. 6, 25 (2008) (quoting
State v. Wakefield, 190 N.J. 397, 435 (2007)), certif. denied, 203
N.J. 94 (2010). Appellate courts reviewing admissibility rulings
relating to a summary judgment motion first consider the evidence
ruling under an abuse of discretion standard, and then review the
merits of the summary judgment motion de novo. Townsend, supra,
221 N.J. at 53, 59.
Here, in excluding the testimony of plaintiff's liability
expert, the trial court correctly applied the evidentiary
principles of the net opinion doctrine. As the Supreme Court has
reaffirmed in a recent line of cases, an expert may not present
testimony that "constitutes 'mere net opinion.'" Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). An
expert must instead "give the why and wherefore" supporting his
or her opinions, and not just "a mere conclusion." Ibid. (quoting
Pomerantz, supra, 207 N.J. at 372 (internal citations omitted)).
9 A-3996-15T3
If the expert "cannot offer objective support for his or her
opinions, but testifies only to a view about a standard that is
'personal[,]'" such testimony is an inadmissible net opinion.
Ibid. (quoting Pomerantz, supra, 207 N.J. at 373).
We agree with the trial court that plaintiff's engineer fell
short of these standards in rendering his various opinions about
the alleged defectiveness of the trailer's tie-down apparatus.
Unlike defendant's expert, who referred to federal regulatory
standards, plaintiff's expert identified no objective standards
to support his personal views that the trailer was defectively
made or designed, or that it lacked adequate warnings.
Plaintiff's expert's comparison of the alternative fabric
strap design for tie-downs shown on another company's website in
2016 is not competent evidence of what the "state of the art" was
when this trailer was manufactured in 2000. The expert fails to
provide competent proof that "[a]t the time the product left the
control of the manufacturer, there was not a practical and
technically feasible alternative design that would have prevented
the harm without substantially impairing the reasonably
anticipated or intended function of the product[.]" N.J.S.A.
2A:58C-3(a)(1); see also O'Brien v. Muskin Corp., 94 N.J. 169, 182
(1983).
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Similarly, plaintiff's engineer does not point to any
objective criteria for concluding that the trailer should have
been supplied with a warning to users that the metal chain might
break. Indeed, a warning theory is barely mentioned in the
engineer's report. The report does not identify where or how such
a warning should be posted, and what it should say. Nor does the
engineer appear to have any particular expertise in the contents
and placement of product warnings for chains used on trailers.
Further, as we have noted, the record shows the chain was an
"after-market" addition installed on the trailer at some later
time after Delavan and Lohr produced it. That provides further
legal support for the dismissal of those defendants on summary
judgment. See N.J.S.A. 2A:58C-9 (providing a complete defense to
certain product sellers who had nothing to do with defects in
products or product components they did not manufacture).
For these and the other cogent reasons noted by Judge Powers,
we are satisfied that the court did not abuse its discretion in
excluding the testimony of plaintiff's liability expert.
Moreover, the court had a sound basis to grant summary judgment
to appellants Delavan and Lohr, even viewing the motion record,
as we must, in a light most favorable to plaintiff. R. 4:46-2;
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
11 A-3996-15T3
As a final matter, we consider plaintiff's arguments
concerning the denial of his motion for leave to amend the
complaint to add Columbus McKinnon as an additional defendant. We
accept for purposes of our analysis the representation of
plaintiff's counsel that the trial court had orally extended the
discovery end date to accommodate counsel in completing the last
phases of fact and expert discovery. We appreciate that
plaintiff's counsel acted swiftly within four days to seek relief
once he received Smith's affidavit identifying the chain's
putative true manufacturer. We also recognize that leave to amend
a pleading is generally to be freely granted, subject to offsetting
considerations such as the age of a case and the associated burdens
imposed by adding a late party. Kernan v. One Washington Park
Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998).
That said, we affirm the trial court's denial of plaintiff's
requested late amendment because we agree with Judge Powers that
granting that request was likely to be "futile." See Notte v.
Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006). Plaintiff
theorizes that the metal chain was defectively manufactured
because rust spots appear on the photograph of the preserved
portion of the chain. Yet plaintiff's engineer never specified
in his report any objective criteria, such as standards of
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manufacturing or metallurgy, to support a contention that the
chain was defectively fabricated.
Although the apparent identity of the actual chain maker was
not known until the very end of the discovery period, plaintiff
has not demonstrated how that new information would have materially
changed the liability calculus. It is speculative to assume that,
if the complaint were amended, and discovery were further extended,
that added process would have cured the deficiencies in the
expert's net opinions or salvaged plaintiff's case. Under the
circumstances, we are unpersuaded by plaintiff's claim that the
trial court abused its discretion in disallowing the requested
eleventh-hour amendment.
Affirmed.
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