NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1101 & 20-3392
___________
KAREN TUCKER,
Appellant
v.
(HP) HEWLETT PACKARD, INC.;
HEWLETT PACKARD COMPANY (HP)
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1:14-cv-04699)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted pursuant to Third Circuit LAR 34.1(a)
August 20, 2021
Before: AMBRO, PORTER and SCIRICA, Circuit Judges
(Opinion filed: September 7, 2021)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Before the Court are consolidated appeals from pro se appellant Karen Tucker,
who brought products-liability claims against appellee HP Inc.,1 based on allegations that
she was burned and electrically shocked by her HP laptop as a result of a defective power
cord. After summary judgment was granted in favor of Appellee, Appellant filed three
motions for reconsideration, all of which were denied. For the reasons that follow, we
will affirm.
I.
Appellant initiated this pro se action in July 2014. Protracted litigation followed,
including the District Court’s October 2016 dismissal of the case, which this Court
vacated and remanded. See Tucker v. (HP) Hewlett Packard, Inc., 689 F. App’x 133
(3d Cir. 2017) (per curiam). In October 2018, following the close of discovery, Appellee
filed a motion seeking both summary judgment and to exclude Appellant’s proffered
expert from testifying regarding his opinions. Following an April 30, 2019 hearing, the
District Court granted both requests from the bench. Judgment was entered on May 1,
2019.
On August 15, 2019, Appellant filed a motion for reconsideration, pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure (hereinafter “First Motion for
1
Appellee asserts that it was incorrectly designated as Hewlett Packard, Inc. in
Appellant’s filings.
2
Reconsideration”).2 On December 31, 2019, the District Court denied it as meritless and
noted in a footnote that it was untimely. On January 13, 2020, Appellant filed a notice of
appeal. In February 2020, she filed a motion under Federal Rule of Civil Procedure 60(b)
to correct, dismiss and vacate the District Court’s December 31, 2019 order denying the
First Motion for Reconsideration, arguing that the Court erred in holding that it was
untimely (hereinafter “Second Motion for Reconsideration”). On June 29, 2020, the
District Court denied the Second Motion for Reconsideration, noting that it failed to
address the Court’s denial of the First Motion for Reconsideration as meritless. On July
14, 2019, Appellant filed another motion for reconsideration, citing both Rule 59(e) and
Rule 60(b), and seeking reconsideration of the District Court’s orders denying her prior
two motions for reconsideration (hereinafter “Third Motion for Reconsideration”). On
November 9, 2020, the District Court denied the Third Motion for Reconsideration, and,
on November 20, 2020, Appellant filed another notice of appeal. In this Court, the two
appeals were consolidated, and the parties have filed briefs.
2
After entering judgment, the District Court granted Appellant’s requests for a transcript
fee waiver and an extension of time to file a motion for reconsideration, directing her to
provide the Court with an email address to which the transcript could be sent when it was
ready and permitting her to file a motion for reconsideration within 14 days of receiving
the transcript. The transcript was docketed on May 30, 2019; however, it was not
emailed to Appellant until July 30, 2019. Appellant asserts that a District Court law clerk
told her on the phone that the District Court had given her an August 15, 2019 deadline to
file a motion for reconsideration.
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II.
We first consider our jurisdiction. In addition to challenging the orders denying
her three motions for reconsideration, Appellant appears to seek appellate review of the
May 1, 2019 Judgment excluding her expert from testifying and granting summary
judgment in favor of Appellee. Appellant had 30 days to appeal the May 1, 2019
judgment, see Fed. R. App. P. 4(a)(1)(A), but the January 13, 2020 notice of appeal was
filed well after the 30-day deadline. If the First Motion for Reconsideration had been
timely filed, i.e., within 28 days of the May 1, 2019 judgment, see Fed. R. Civ. P. 59(e),
she would have had 30 days from the entry of the order denying the First Motion for
Reconsideration to challenge the May 1, 2019 judgment on appeal, see Fed. R. App. P.
4(a)(4)(A)(iv). However, the First Motion for Reconsideration was filed on August 15,
2019, well after 28 days had passed. Although the District Court granted her request for
an extension of time to file the motion, the Court did not have authority to do so, and her
time to appeal the May 1, 2019 judgment therefore was not extended. See Fed. R. Civ. P.
6(b)(2) (providing that the time limit of Rule 59(e) may not be judicially extended); Long
v. Atl. City Police Dep’t, 670 F.3d 436, 444 n.16 (3d Cir. 2012); Lizardo v. United
States, 619 F.3d 273, 279-80 (3d Cir. 2010). Accordingly, we lack jurisdiction over the
May 1, 2019 judgment because Appellant’s notice of appeal was untimely as to that
decision.
We do have jurisdiction, however, over the orders denying Appellant’s motions
for reconsideration. See Long, 670 F.3d at 446 n.19 (stating that this Court has
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“jurisdiction to review a timely appealed order disposing of an untimely motion for
reconsideration”). “[A] proper Rule 59(e) motion . . . must rely on one of three grounds:
(1) an intervening change in controlling law; (2) the availability of new evidence; or (3)
the need to correct clear error of law or prevent manifest injustice.” Lazaridis v.
Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). Rule 60(b) provides for relief from
a judgment or order based on: (1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence; (3) fraud, misrepresentation or other misconduct of an
adverse party; (4) a void judgment; (5) the satisfaction, release or discharge of a
judgment or inequity in the prospective application of the judgment; or (6) any other
reason justifying relief from operation of the judgment. We review the denial of a motion
reconsideration for an abuse of discretion. See Budget Blinds, Inc. v. White, 536 F.3d
244, 251 (3d Cir. 2008) (Rule 60(b) motions); Max’s Seafood Cafe v. Quinteros, 176
F.3d 669, 673 (3d Cir. 1999) (Rule 59(e) motions); see also Long, 670 F.3d at 446
(stating that “our review of the order denying reconsideration is subject to a more
deferential and circumscribed standard of review than would apply if we also were to
have jurisdiction to consider the underlying dismissal order”). “To demonstrate an abuse
of discretion, [an appellant] must show that the District Court’s decision was arbitrary,
fanciful or clearly unreasonable.” Hart v. Elec. Arts, Inc., 717 F.3d 141, 148 (3d Cir.
2013) (quoting Moyer v. United Dominion Indus., Inc., 473 F.3d 532, 542 (3d Cir.
2007)).
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III.
Appellee argued in its motion for summary judgment that Appellant’s expert
should be precluded from testifying as an expert because he had failed to provide a
factual foundation for his conclusions, and that Appellee was entitled to summary
judgment because without a liability expert Appellant could not prove the elements of her
products-liability claims.
The following was established during discovery. In August 2014, Appellee
carried out a voluntary recall and replacement program for AC power cords provided
with Appellee’s notebook computers sold between September 2010 and June 2012
because they could pose a risk of fire or burn hazards. Appellant purchased her laptop
during that period, and her alleged injuries occurred in May 2013 and March 2014.
Appellant engaged an expert, who attended a session inspecting and testing the laptop
with Appellee’s expert. Appellant’s expert did not otherwise inspect or test the laptop.
Appellant’s expert prepared a report, which referenced the “defective” cord, and recall
thereof, and appeared at least once to link the cord to Appellant’s injuries. However, the
report noted that the two experts “physically inspected the power cord and power supply
for external physical damage and found none,” that an x-ray examination did not reveal
“any physical damage or possible inoperable defects,” and that “there [was] no evidence
to suggest any difference in functionality” between the original and replacement cords.
(Appellee’s App’x at 145, 148). Ultimately, Appellant’s expert’s conclusions were
unrelated to the power cord, instead opining that Appellee should have implemented a
6
software update to slow down the laptop to reduce the heat and installed a better fan and
a larger vent to disperse and release the heat.
At his deposition, Appellant’s expert stated that there was not a design defect in
the power cord; that, to his knowledge, there was not a manufacturing defect in the power
cord at the time of Appellant’s injuries; that, to his knowledge, there was not a failure to
warn Appellant with respect to the power cord; and that, “[t]he power cord had nothing to
do with her alleged injuries, to the best of [his] knowledge.” (Id. at 230-31). With regard
to the conclusions in his report, he acknowledged that he never personally inspected or
tested Appellant’s laptop and that he could not cite any national standards or peer-
reviewed literature supporting his conclusions.
At the April 30, 2019 hearing on the motion, Appellant’s expert claimed that he
had misspoken at his deposition with regard to the power cord and that it in fact was
defective and had caused Appellant’s injuries. The District Court was unpersuaded by
Appellant’s expert’s explanation, noting that he had stated at least three times during his
deposition that he was not opining that the cord was defective. The Court concluded also
that the expert had failed to cite any industry standards or studies to support his other
opinions and that he therefore would be excluded from testifying. The District Court
then stated that summary judgment would be granted in favor of Appellee because
Appellant would not be able to provide testimony from a liability expert.
In the First Motion for Reconsideration, Appellant challenged the District Court’s
decision to exclude her expert and argued that, even if exclusion was appropriate, the
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District Court’s grant of summary judgment was a clear error of law because the
evidence, particularly the evidence of the power-cord recall, was sufficient for her
products-liability claim to be submitted to a jury. Having carefully reviewed Appellant’s
expert’s report, his deposition testimony, and the April 30, 2019 hearing transcript, we
conclude that the District Court did not abuse its discretion in excluding the expert. The
District Court’s determinations that his proffered opinions regarding the role of the power
cord drastically changed without an adequate explanation, and that he failed to support
his conclusions with any industry standards or studies, were not arbitrary, fanciful or
clearly unreasonable. See Hart, 717 F.3d at 148; see also Fed. R. Evid. 702(c) (requiring
an expert’s testimony be “the product of reliable principles and methods”); Calhoun v.
Yamaha Motor Corp. U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (providing that “the
expert’s opinion must be based on the ‘methods and procedures of science’ rather than on
‘subjective belief or unsupported speculation’; the expert must have ‘good grounds’ for
his or her belief”) (citations omitted).
The District Court also did not abuse its discretion with regard to Appellant’s
argument that the Court clearly erred by holding that her products-liability claim could
not survive the exclusion of her expert testimony. A liability expert was necessary
because there was no evidence in the record that any alleged defect or failure to warn
caused Appellant’s injuries. See Zaza v. Marquess and Nell, Inc., 675 A.2d 620, 627
(N.J. 1996) (stating that a design-defect claim requires showing “that the product was
defective, that the defect existed when the product left the defendant’s control, and that
8
the defect caused injury to a reasonably foreseeable user”) (citations omitted); Coffman
v. Keene Corp., 628 A.2d 710, 716 (N.J. 1993) (“When the alleged defect is the failure to
provide warnings, a plaintiff is required to prove that the absence of a warning was a
proximate cause of his harm.”) (citation omitted); see also Manieri v. Volkswagenwerk
A. G., 376 A.2d 1317, 1322-24 (N.J. Super. Ct. App. Div. 1977) (holding that recalls may
be probative of whether the defect arose while the manufacturer possessed the product,
but that the plaintiff must independently establish that the defect existed at the time of the
accident) (citations omitted). Finally, the District Court did not abuse its discretion in
denying the Second and Third Motions for Reconsideration, which challenged the denial
of the First Motion for Reconsideration on timeliness grounds only, and largely raised
arguments previously rejected.
Accordingly, we will affirm the District Court’s denial of Appellant’s motions for
reconsideration. Appellant’s motion to file a supplemental appendix is granted.
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Karen Tucker v. HP Inc
Combined Opinion