FRANKLIN MUTUAL INSURANCE COMPANY AS SUBROGEE OF LAKISHA WILLIS v. BROAN-NUTONE, LLC et al

Filing 31

OPINION FILED. Signed by Judge Noel L. Hillman on 6/27/14. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

FRANKLIN MUTUAL INSURANCE
COMPANY AS SUBROGEE OF
LAKISHA WILLIS,
Plaintiff,

CIVIL NO. 10-04845(NLH)(JS)

OPINION

v.
BROAN-NUTONE, LLC, JOHN DOE
1- 5 AND ABC CORP. 1-5,
Defendants.

Appearances
STEVEN A. KLUXEN
METHFESSEL & WERBEL, PC
3 ETHEL ROAD, SUITE 300
PO BOX 3012
EDISON, NJ 08818-3012
Attorney for the plaintiff
CHRISTOPHER R. CARTON
K&L GATES LLP
ONE NEWARK CENTER, 10TH FLOOR
NEWARK, NJ 07102
Attorney for defendant Broan-Nutone, LLC

HILLMAN, District Judge
Before the Court is defendant’s motion for summary
judgment.

For reasons explained below, defendant’s motion will

be granted.
I.

BACKGROUND

This product liability action arises from a
residential fire caused by a ceiling fan.

The insured, Lakisha

Willis, was paid by her insurance company, plaintiff Franklin
Mutual Insurance Company, for her property loss.

As a result of

this payment, plaintiff has become subrogated to the rights and
causes of action of its insured.
Willis had purchased a ceiling-mounted exhaust fan
unit designed and manufactured by defendant Broan-Nutone, LLC.
On March 26, 2009, Willis was using the fan at her home when a
fire occurred.

The fire marshal determined that the “fire

originated in the ceiling exhaust fan from an unknown
catastrophic failure which ignited the available combustibles.”
Plaintiff alleges that defendant’s fan caused the fire
causing damage to Willis’ real and personal property.

Plaintiff

brings product liability, negligence, and breach of warranty
claims against defendant.
II. JURISDICTION
Plaintiff is a New Jersey corporation with its
principal place of business in New Jersey.

Defendant is a

limited liability company whose members are Nortek, Inc., a
Delaware Corporation with its principal place of business in
Rhode Island, and Nutone, Inc. a Delaware corporation with its
principal place of business in Ohio.

Plaintiff states that the

amount in controversy exceeds $75,000.00, exclusive of interests

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and costs. 1
III. DISCUSSION
A.

Negligence and Breach of Warranty Claims

Defendant seeks dismissal of plaintiff’s claims for
negligence and breach of warranty because they are subsumed
within the New Jersey Products Liability Act (PLA).

New Jersey

law is clear that the PLA provides one unified, statutorily
defined theory of recovery for harm caused by a product.

See

Calender v. NVR, Inc., No. 10–4277, 2012 WL 4482009, at *3–4
(D.N.J. Sept. 26, 2012) (granting summary judgment to defendant
on negligence and implied breach of warranty claims because they
were subsumed by the PLA); Gupta v. Asha Enterprises, LLC, 422
N.J.Super. 136, 144-45, 27 A.3d 953 (App.Div. 2011) (affirming
dismissal of claims for negligence, violations of the CFA and
breach of implied warranty insofar as they were based upon

1 In opposition to summary judgment, plaintiff raised for the
first time that it could not meet the “amount in controversy”
requirement for diversity jurisdiction. The Court issued an
Order to Show Cause directing plaintiff to file a detailed
affidavit attesting to its knowledge of the factual basis for
its initial claim for damages. Plaintiff filed an affidavit
affirmatively stating it believed the amount in controversy
exceeded the $75,000 jurisdictional threshold at the time of the
commencement of this action, and raised no concerns that the
required amount was not in controversy at the time. Therefore,
the Court found [Mem.& Op. Doc. No. 24] that it has subject
matter jurisdiction in this matter.
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product defect); Koruba v. Am. Honda Motor Co., 396 N.J.Super.
517, 935 A.2d 787, 795 (2007) (explaining that “the PLA ‘no
longer recognizes negligence or breach of warranty (with the
exception of an express warranty) as a viable separate claim for
“harm[,]” [including personal injury,] caused by a defective
product’ or an inadequate warning.”) (citation omitted).
Plaintiff does not contest defendant’s motion
regarding these claims.

Accordingly, plaintiff’s negligence and

breach of warranty claims shall be dismissed.
B.

Plaintiff’s Expert’s Certification

Defendant also moves to have the certification of
plaintiff's expert, Larry Wharton, stricken on grounds that the
certification fails to comply with Fed.R.Civ.P. 56(e) which
requires a sworn affidavit.
Rule 56 was amended in 2010 so that a formal affidavit
is no longer required.

The advisory committee notes for the

2010 amendments state in pertinent part "Subdivision (c)(4)
carries forward some of the provisions of former subdivision
(e)(1).... A formal affidavit is no longer required. 28 U.S.C. §
1746 allows a written unsworn declaration, certificate,
verification, or statement subscribed in proper form as true
under penalty of perjury to substitute for an affidavit."

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Therefore, a certification, rather than a formal affidavit, is
permissible pursuant to Fed.R.Civ.P. 56(c)(4).
However, under the revised Rule, Wharton did not
include the words “I certify under penalty of perjury that the
foregoing is correct."

See 28 U.S.C. § 1746.

Section 1746

requires that an unsworn certification be “... in substantially
the following form:... ‘I declare (or certify, verify, or state)
under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)’.”

Here, Wharton states, “I

hereby certify that the foregoing statements made by me are
true. I understand that if any of the foregoing statements made
by me are willfully false, I am [s]ubject to punishment.”
Although the Court may consider this statement to be in
“substantially” the form required by Section 1746, it
technically does not include any statement that Wharton
understands that he makes his statements under penalty of
perjury.

In addition, Section 1746 requires an execution date.

Wharton did not date his certification.
Given the lack of proper wording together with the
fact that it is not dated, the certification does not conform to
the requirements of 28 U.S.C. § 1746.

Accordingly, the

certification is not in a proper form and, therefore, the Court

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will not consider it.

See Phillis v. Harrisburg School Dist.,

430 Fed.Appx. 118, 122 (3d Cir. 2011) (affirming district
court’s disregard of nonconforming declaration because
“[u]nsworn declarations are permissible at the summary judgment
stage if they conform to 28 U.S.C. § 1746's requirement that
declarants state that the contents of their declarations are
true, subject to penalty of perjury. Fed.R.Civ.P. 56(c)”). 2
C.

New Jersey Product Liability Act

Although the unsworn certification of plaintiff’s
expert will not be considered, plaintiff submitted expert
reports which will be considered in deciding the motion for
summary judgment.

Defendant moves for summary judgment on

grounds that plaintiff cannot prove his PLA claims.

Defendant

argues that plaintiff has failed to identify or produce any
evidence of a particular design, manufacturing, or warning
defect.

Plaintiff concedes that it is not raising a failure to

warn claim, but appears to allege claims for design defect and
manufacturing defect.
Under the New Jersey Product Liability Act (PLA),

2 Because the Court rejects Wharton’s declaration for failure to
conform, the Court does not address defendant’s additional
argument that the declaration should be disregarded because it
is self-serving.
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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 PLA,
namely, claims for design defect, manufacturing defect, or
warnings defect.

Roberts v. Rich Foods, Inc., 139 N.J. 365,

375, 654 A.2d 1365 (N.J. 1995); Dziewiecki v. Bakula, 361
N.J.Super. 90, 97-98, 824 A.2d 241 (App.Div. 2003).

The

standard of liability is that the product “was not reasonably
fit, suitable or safe for its intended purpose.”

Cornett v.

Johnson & Johnson, 414 N.J.Super. 365, 998 A.2d 543 (App.Div.
2010).
To prove a defect, a plaintiff must be able to show
that: (1) the product was defective; (2) the defect existed when
product left the hands of the defendant; and (3) the defect
caused the injury to a reasonably foreseeable user.’”

McGarvey

v. G.I. Joe Septic Service, Inc., 293 N.J.Super. 129, 142, 679

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A.2d 733 (App.Div. 1996)(citing

Jurado v. Western Gear Works,

131 N.J. 375, 385, 619 A.2d 1312 (1993)).

“To prove both the

existence of a defect and that the defect existed while the
product was in the control of the manufacturer, a plaintiff may
resort to direct evidence, such as the testimony of an expert
who has examined the product, or, in the absence of such
evidence, to circumstantial proof.”

Myrlak v. Port Authority of

New York and New Jersey, 157 N.J. 84, 723 A.2d 45, 52 (N.J.
1999) (citing Scanlon v. General Motors Corp., 65 N.J. 582, 591,
326 A.2d 673 (1974); Manieri v. Volkswagenwerk A.G., 151
N.J.Super. 422, 430-31, 376 A.2d 1317 (App.Div. 1977)).

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plaintiff may also establish a defect by “negat[ing] other
causes of the failure of the product for which the defendant
would not be responsible, in order to make it reasonable to
infer that a dangerous condition existed at the time the
defendant had control [of the product].”

Id. at 53 (citing

Scanlon, 65 N.J. at 593-94).
Under New Jersey product liability law, “the injured
plaintiff is not required to prove a specific manufacturer’s
defect.”

Id.

at 52 (citing Moraca v. Ford Motor Co., 66 N.J.

454, 458, 332 A.2d 599 (1975)).

“Proof that a product is not

fit for its intended purposes ‘requires only proof ... that

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‘something was wrong’ with the product.’”
65 N.J. at 591, 326 A.2d 673).

Id. (citing Scanlon,

However, the “mere occurrence of

an accident and the mere fact that someone was injured are not
sufficient to demonstrate the existence of a defect.”

Id.

1. Specific Proof of a Product Defect
For a design-defect claim, the plaintiff “must prove
under a risk-utility analysis the existence of an alternate
design that is both practical and feasible,” and “safer” than
that used by the manufacturer.

Diluzio-Gulino v. Daimler

Chrysler Corp., 385 N.J.Super. 434, 438, 897 A.2d 438 (App.Div.
2006) (citing Lewis v. Am. Cyanamid Co., 155 N.J. 544, 571, 715
A.2d 967 (1998)).

For a manufacturing defect claim, a plaintiff

must be able to show that the manufacturing defect 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.”

Myrlak, 723 A.2d at 51 (citing N.J.S.A. 2A:58C-2a).
“[W]here the allegedly defective product involves a

complex instrumentality, a plaintiff is required to provide
expert testimony.”

Lauder v. Teaneck Volunteer Ambulance Corps,

368 N.J.Super. 320, 331, 845 A.2d 1271 (App.Div. 2004) (citing
Rocco v. NJ Transit Rail Operations, 330 N.J.Super. 320, 341,

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749 A.2d 868 (App.Div. 2000)).

“Expert testimony is necessary

to assist the fact finder in understanding ‘the mechanical
intricacies of the instrumentality’ and in excluding other
possible causes of the accident.”

Id. (citing Jimenez v. GNOC

Corp., 286 N.J.Super. 533, 546, 670 A.2d 24 (App.Div.), certif.
denied, 145 N.J. 374, 678 A.2d 714 (1996)).

“Expert testimony

in conclusionary terms is insufficient to meet that burden.”
Diluzio-Gulino, 385 N.J.Super. at 438 (citing Smith v. Keller
Ladder Co., 275 N.J.Super. 280, 285-86, 645 A.2d 1269 (App.Div.
1994)).

There is no dispute that expert testimony is required

in this case.
Defendant argues that plaintiff has failed to offer an
expert opinion articulating any theory of defect.

Defendant

proceeds on the assumption that plaintiff is relying on a theory
of design defect and argues that plaintiff failed to offer any
alternative designs or a cost/utility analysis as required under
the PLA.

Defendant also states that plaintiff’s expert failed

to propose or test an alternative design for the fan.
It is not clear whether plaintiff is relying on a
theory of design defect or manufacturing defect.

Assuming

plaintiff intends to advance a claim under a design defect
theory, such claim must fail.

Plaintiff’s expert did not

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identify a specific design defect, and did not propose an
alternative design.

See Toms v. J.C. Penney Co., Inc., 304

Fed.Appx. 121, 124 (3d Cir. 2008) (affirming dismissal of design
defect claim where plaintiff neither offered evidence of a
reasonable alternative design, nor made a showing that the risks
involved in wearing the robe outweighed its utility
notwithstanding the lack of a reasonable alternative design);
Smith v. Keller Ladder Co., 645 A.2d 1269, 1271 (N.J.Super.A.D.
1994) (A plaintiff in a design-defect case is required to show
the existence of “a safe and reasonably feasible alternative to
[the] defendant's product.”).

Therefore, plaintiff has not

presented any specific evidence of a design defect.
Assuming that plaintiff is advancing a theory of
manufacturing defect, such claim must also fail.

Under New

Jersey law, a plaintiff may demonstrate the existence of a
manufacturing defect by three separate means: (1) direct
evidence that the defect arose in the hands of the manufacturer;
(2) circumstantial evidence which would permit an inference that
a dangerous condition existed prior to sale; for instance, “the
age and prior usage of the product in relation to its expected
life span, durability and effective operability without
maintenance”; or (3) by negating other causes of the failure of

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the product for which the defendant would not be responsible, in
order to create an inference that the defect was attributable to
the manufacturer.

See Toms, 304 Fed. Appx. at 125.

Plaintiff has provided no direct evidence that a
defect existed when it left the hands of the manufacturer.
Plaintiff has not presented any evidence regarding the age of
the fan, its prior usage, its durability or operability.
Plaintiff also has not negated other causes for the failure of
the fan for which the defendant would not be responsible.
Although plaintiff has presented evidence that the fire
originated in the fan, it has not ruled out other causes for
failure of the fan such as faulty repair or poor maintenance.
Plaintiff argues that it can prove a defect because:
(1) the ceiling exhaust fan had an internal fault that caused a
fire; (2) its expert concluded that there was an “internal
fault” in the motor coil; and (3) property owned by plaintiff’s
insured was damaged by the fire.

Although plaintiff has

presented expert testimony, it has not provided sufficient
evidence that could sustain its claim of a manufacturing defect.
“To demonstrate a manufacturing defect, a plaintiff must prove
that the product was not manufactured according to its design
specifications.”

Toms, 304 Fed.Appx. at 125 (citing Myrlak, 723

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A.2d at 52).

Plaintiff has presented no evidence that the fan

was not manufactured according to its design specifications.
All that plaintiff has shown is that the fan caught fire and
that fans do not normally catch fire.

However, “the mere

occurrence of an accident is not sufficient to establish that
the product was not fit for ordinary purposes.”
A.2d at 677.

Scanlon, 326

Thus, plaintiff has not presented any specific

evidence of a manufacturing defect.
Alternatively, plaintiff argues that it can rely on
the “indeterminate product defect test” to create an inference
that the fan was defective.

For the reasons explained below,

plaintiff has insufficient proof to meet this test.
2. Indeterminate Product Defect Test
If a plaintiff cannot prove a specific defect, then it
is permitted to rely on the indeterminate product defect test.
This test allows the fact finder to draw an inference that a
product is defective where the incident that harmed the
plaintiff was (1) of a kind that ordinarily occurs as a result
of a product defect; and (2) was not, in the particular case,
solely the result of causes other than a product defect existing
at the time of sale or distribution.

See Restatement (Third) of

Torts: Products Liability § 3 (1997), as adopted by Myrlak, 723

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A.2d at 55-56.
Defendant argues that the indeterminate product defect
test only applies in cases where the product was destroyed thus
prohibiting an expert from conducting the necessary testing to
determine causation.

Defendant states that since the fan was

preserved and plaintiff’s expert was able to conduct a complete
forensic examination of the fan that the indeterminate product
defect test is unavailable to plaintiff.
The indeterminate product defect test is mainly
applied under circumstances in which the product at issue has
been destroyed or not available for testing.

See Electric Ins.

Co. v. Electrolux North America, Inc., 2011 WL 5825981, at *6
(D.N.J. Sept. 19, 2011) (applying indeterminate product defect
test where fire destroyed the product creating uncertainty as to
the actual composition of the components at the time of the
fire); Jerista v. Murray, 185 N.J. 175, 185, 883 A.2d 350 (N.J.
2005) (permitting indeterminate product defect test/res ipsa
loquitur charge since it was more than ten years after the
accident that plaintiff retained an expert, 3 and it could not be

3

Plaintiffs’ first attorney failed to inform them that
their case had been dismissed and plaintiffs then brought a
legal malpractice claim.
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determined that the automatic doors observed were the same ones
that had been in place at the supermarket on the day they
unexpectedly closed on the plaintiff causing injuries); Great
Northern Ins. Co. v. Schwartz, 2011 WL 2304135, at *3
(N.J.Super.A.D. June 1, 2011) (indeterminate product defect test
applied where hospital bed caught fire and plaintiff’s expert
could not identify a specific malfunction or the mode of failure
in the electrical components because of the damage caused by the
fire and firefighting efforts); Amato v. Federal Express, Inc.,
2007 WL 3396499, at *1 (N.J.Super.A.D. Nov. 16, 2007)
(indeterminate product defect test considered where mechanic
determined that a broken right front control arm was the cause
of the front end of a truck inexplicably collapsing while
plaintiff was driving, but the control arm was discarded since
no one ever requested that it be preserved).
It has, however, also been applied in cases where the
product was only partially destroyed.

See New Jersey Mfrs. Ins.

Group v. Hearth & Home Technologies, 2011 WL 1099002, at *2, *8
(D.N.J. March 22, 2011) (test applied where flames extended
beyond fire grill of fireplace and insurance investigator found
hole in the fireplace screen and burn patterns on the ceiling
above the fireplace area; State Farm Fire & Cas. Co. v. Kaz,

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Inc., 2008 WL 2122639, at *2-3 (N.J.Super.A.D. May 22, 2008)
(indeterminate product defect test applied where fan in bedroom
caught fire and plaintiff’s expert was able to examine the
remains of the fan, but finding plaintiff did not satisfy the
second prong of the test); Myrlack, 157 N.J. at 92-93 (where
some uncertainty existed whether chair examined by plaintiff’s
expert was the same chair that was involved in the accident, and
where plaintiff’s expert was not permitted to disassemble the
chair, perform a failure analysis on it, or test any of its
internal parts); see also, Snell v. Bostrom Products Co., 2005
WL 2654303, at *1, *5 (N.J.Super.A.D. Oct. 19, 2005) (finding
plaintiff failed to meet elements of indeterminate product
defect test, although opinion unclear whether the seat was
severely damaged or unavailable for inspection).
Thus, a plaintiff may not only rely on the
indeterminate product defect test in cases where the product is
destroyed or otherwise not available for testing, but also in
cases where the product has been partially destroyed.
case, the fan was partially destroyed by fire.

In this

Plaintiff’s

expert, John P. Oakley Jr., states in his report that the
“exhaust fan unit sustained significant internal fire damage.”
Plaintiff’s other expert, Larry Wharton, states in his report

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that during his site investigation that “remains of the fan
remained mounted within the ceiling,” that the “plastic blower
wheel had been consumed,” and that “[c]harred insulation
remained on the flexible cord for the motor.”

These statements

demonstrate that the fan was partially destroyed by fire.

Under

such conditions where the product is partially destroyed,
application of the indeterminate product defect test is
appropriate.
Finding that the indeterminate product defect test
applies, plaintiff must show that the incident that harmed the
plaintiff: “(a) was of a kind that ordinarily occurs as a result
of a product defect; and (b) was not, in the particular case,
solely the result of causes other than product defect existing
at the time of sale or distribution.”

Myrlak, 157 N.J. at 104.

In support of the first element, plaintiff has presented facts
that the Fire Marshall, as well as plaintiff’s experts,
determined that the fire originated in the fan.

There is no

contrary evidence to plaintiff’s assertion that a fan does not
normally catch fire unless there is a defect.
With regard to the second element, plaintiff’s expert
has opined that the fire “was caused by a failure in the coil of
the Jakel motor.”

He further opines that “the localized melting

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of aluminum wire within the motor coil was the result of an
internal fault and could not have been caused by exposure to
heat from a fire... .”

Thus, plaintiff’s electrical expert

examined and eliminated other electrical components in the area
of the ceiling fan.

He ruled out that the fire was caused by an

external source such as an attic fire since other components
were not damaged in a way that would be consistent with an
external fire.
However, while plaintiff has presented evidence to
rule out an external fire or other potential ignition sources,
plaintiff has not presented any evidence concerning the age or
maintenance history of the fan.

Given that the indeterminate

product defect test is a circumstantial test, it is incumbent
upon the plaintiff to come forward with circumstantial proof.
In Kaz, the court found that the plaintiff presented sufficient
proofs by way of certifications to suggest that a defect existed
at the time of sale or distribution.
*6.

Kaz, 2008 WL 2122639, at

Specifically, the court in Kaz found that plaintiffs’ “...

certification explained their use of the fan and established
that they simply removed the fan from the box, placed it in
their child's room, plugged it in and used it for the first time
during the summer of 2005. In a subsequent certification, they

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represented that they neither ‘modified, adjusted, maintained or
damaged [the fan] in any way.’”

Id.

Here, plaintiff has not presented any facts concerning
the maintenance or use of the fan.

There is no evidence as to

the exact or even approximate age of the fan, the length the fan
had been in use, whether it had any prior owners, how often it
was used and under what conditions, whether it was modified in
any way, or whether any maintenance or repairs were performed.
See Scanlon, 326 A.2d at 678-79 (“[]the age and prior usage of
the product in relation to its expected life span, durability
and effective operability without maintenance are the most
important considerations in determining whether an inference is
permissible that the defective condition existed prior to
sale.”); Amato v. Federal Express, Inc., 2007 WL 3396499, at *56 (N.J.Super.A.D. Nov. 16, 2007) (finding plaintiff failed to
establish that any defect existed when the truck left GMC's
control because truck was six years old with 103,000 miles, and
because the service records for more than five years after the
truck was purchased did not exist); Snell v. Bostrom Products
Co., 2005 WL 2654303, at *5 (N.J.Super.A.D. Oct. 19, 2005)
(plaintiff could not establish second element of test because he
presented no evidence to rule out that the malfunctioning of the

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seat was the product of wear and tear upon it given its prior
use and lack of maintenance).
Thus, plaintiff has not presented sufficient evidence
that could show that the incident was not solely the result of
causes other than the alleged defect in the fan.

Accordingly,

plaintiff cannot meet the elements of the indeterminate product
defect test.
III. CONCLUSION
For the foregoing reasons, defendant’s motion for
summary judgment shall be granted.
An appropriate Order shall accompany this Opinion.

s/Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:

June 27, 2014

At Camden, New Jersey

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