THOMPSON et al v. HARRAH'S ATLANTIC CITY HOLDING, INC. et al

Filing 170

OPINION. Signed by Judge Joseph H. Rodriguez on 3/29/2018. (dmr)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________
____
HOWARD THOMPSON and
:
DEBORAH THOMPSON, h/w
:
:
Plaintiffs,
:
:
v.
:
:
HARRAH’S ATLANTIC CITY
:
HOLDING, INC., et. al.
:
:
Defendants. :
_______________________ :

Hon. Joseph H. Rodriguez
Civil Action No. 14-2397

Opinion

These matters arise out of an incident that occurred on May 30, 2012, at Harrah’s
Casino in Atlantic City. Plaintiff claims that he suffered extensive burns to his feet while
walking across the outside pool deck. He filed a three-count complaint against several
defendants alleging violations of New Jersey’s Product Liability Act, N.J. Stat. Ann. §
2A:58C-1, negligence, and his wife’s loss of consortium. Generally, he alleges that
defendants designed, manufactured, assembled, processed, distributed, reconditioned,
maintained, services, installed, inspected and made available for use and/or advertise
the pool and sundeck in question, and/or more of its component parts, which are
hereinafter referred to as “the product” or “the pavers” which were ultimately sold or
leased to the hotel defendants and/or one or more of defendant John Doe Corporations,
and which ultimately caused the Plaintiffs’ injuries and damages.1

1.

The Thompsons were on the sundeck at Harrah’s between 10:30 a.m. and 2:00 p.m. Deborah Thompson Dep.,
Ex. J., 13:4-8. Howard Thompson did not feel any burning or injury at the time he was enjoying the sundeck and
he did not experience any immediate blistering, bleeding, fluid or weeping. Howard noticed a small red spot a
few days after his visit to Harrah’s and a blister formed. Howard Thompson Dep., Ex. C., 82:25, 83:1-8.
Deborah Thompson began to treat Howard’s burn with a topical ointment, but the redness and pain did not abate.
But Howard continued to work; he was a booter for the Philadelphia Parking Authority. Then, on or about June 2nd

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On April 27, 2017, the Court granted summary judgment in favor of Defendant
Roofblok. Presently before the Court are several independent motions for summary
judgment filed by the remaining defendants: Associated Indemnity Insurance Company,
Thomas Company, Inc., Oldcastle, Inc., T.N. Ward Company, Harrah’s Atlantic City
Operating Company, and Friedmutter Group, LLC.
Associated Indemnity Insurance Company provided insurance coverage for
defendant T.N. Ward, which is seeking indemnification. T.N. Ward, the general
contractor on the project, moves for summary judgment because it is not the designer or
manufacturer of the product and it received no warnings as to the product’s fitness for
the application, it is, therefore, not liable under a negligence or product’s liability theory.
Thomas Company, Inc., installed the original pavers and moves for summary judgment
because there is no allegation that the pavers were incorrectly installed. Some of the
pavers were replaced over time and Thomas Company, Inc. did not do the replacement
installation. Plaintiff is unable to state whether his injury occurred on a replacement tile
or on an original tile. Oldcastle, Inc., also known as Westile, manufactured the original
tiles at issue and supplied them to a distributor, who eventually sent them to the
Harrah’s project. Westile moves for summary judgment because there is no evidence of
a defect in the tiles and because Plaintiff is unable to state whether his injury occurred
on a replacement tile or on an original tile. Harrah’s Atlantic City Operating Company
moves for summary judgment as to the product’s liability claims because it is not a

or 3rd, 2012, the blister on Howard’s foot began to leak clear fluid and the pain markedly increased. The Thompsons
went to the Emergency Room and Howard recounted his visit to the sun deck at Harrah’s in response to the doctors’
inquiries. Howard was treated for a third degree burn, but complications arose and ultimately Howard endured 3
surgical procedures and several infections. Howard injuries eventually required an amputation of three toes on his
foot, and then a trans-metatarsal amputation of a majority of his left foot. Id.

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manufacturer or designer of the paver and is therefore not amendable to suit on this
basis. Likewise, as to the negligence claim, Harrah’s argues that because there was no
notice that there was a problem with the pool deck, it is not liable for Mr. Thompson’s
injury. Finally, the Friedmutter Group, LLC is the architect of the pool deck seeks
summary judgment because Plaintiff failed to get an affidavit of merit in support of its
claim of professional negligence, as required by New Jersey's Affidavit of Merit Statute,
2A:53A-27. Friedmutter claims that allegations of professional malpractice against an
architect are subject to the Affidavit of Merit Statute.
The Court has considered the written submissions of the parties and the
arguments advanced at the hearing on September 26, 2017. For the reasons stated on
the record during the hearing, and those that follow, summary judgment is granted in
favor of all defendants as to the product liability claims and denied as to the negligence
claims against Defendant Harrah’s.
I.

Standard of Review

A court will grant a motion for summary judgment if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the non-moving
party, the moving party is entitled to judgment as a matter of law. Pearson v.
Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will
enter summary judgment only when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56 (c).
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An issue is “genuine” if supported by evidence such that a reasonable jury could
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a
dispute about the fact might affect the outcome of the suit. Id. In determining whether
a genuine issue of material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
the moving party has met this burden, the nonmoving party must identify, by affidavits
or otherwise, specific facts showing that there is a genuine issue for trial. Id.;
Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to
withstand a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those offered by the
moving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter, but to determine
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of
N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
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II.

Analysis

Summary judgment is granted as to the product liability claims because Plaintiff’s
expert is unqualified to render an opinion on defectiveness and because there is no
evidence in the record to demonstrate that the pavers were defective. In addition,
summary judgment is granted as to the claims against Friedmutter because Plaintiff
failed to file an affidavit of merit pursuant to N.J.S.A. 2A:53A-27 and because, even if
that failure is not fatal, Plaintiff’s expert is unqualified to opine on matters related to
architecture. Finally, as to Plaintiff’s claims of negligence, summary judgment is denied
as to Defendant Harrah’s.
A. Product’s Liability Claims
To establish a right to relief under New Jersey’s Product Liability Act (“PLA”), “a
plaintiff must show that the defendant manufactured the product, that a reasonably
foreseeable user was injured, that the product was defective, that the defect existed
when it left the defendant's control, and that the defect was the actual and proximate
cause of the plaintiff's injury.” Worrell v. Elliott & Frantz, 799 F. Supp. 2d 343, 350
(D.N.J. 2011) (citing Myrlak v. Port Auth. of N.Y. and N.J., 723 A.2d 45, 52 (N.J. 1999)).
Summary judgment is granted as to the product’s liability claims because Plaintiff’s
expert cannot establish that the pavers were defective and or that the architect deviated
from the requisite standard of care.
1.

Affidavit of Merit Statute, N.J.S.A. 2A:53A-27

Summary Judgment is granted as to Defendant Friedmutter because Plaintiff failed
to timely file an Affidavit of Merit pursuant to N.J.S.A. 2A:53A-27. Mr. Meshulam

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testified that he is not a licensed engineer and that he has never applied with any state to
become a licensed engineer. Meschulam Dep., 12:22-13:8. Friedmutter is a professional
architecture firm. Plaintiff’s claims against Friedmutter include, interalia, that "the
floor of the sundeck was inadequate, improper and/or not in accordance with the
applicable laws, regulations, and codes and that Friedmutter negligently used materials
for the flooring of the sundeck that become excessively hot in the sun, otherwise,
causing a hazardous condition for persons walking barefoot on the sundeck. The claims
against Friedmutter require an Affidavit of Merit (“AOM”) pursuant to N.J.S.A. 2A:53A27.
The AOM statute provides:
In any action for damages for personal injuries [or] wrongful death ...
resulting from an alleged act of malpractice or negligence by a licensed
person in his profession or occupation, the plaintiff shall, within 60 days
following the date of filing of the answer to the complaint by the defendant
provide each defendant with an affidavit of an appropriate licensed person
that there exists a reasonable probability that the care, skill or knowledge
exercised in the treatment, practice or work that is the subject of the
complaint, fell outside acceptable professional or occupational standards
or treatment practices. The court may grant no more than one additional
period, not to exceed 60 days, to file the affidavit pursuant to this section,
upon a finding of good cause.
N.J.S.A. 2A:53A–27.
The Affidavit of Merit Statute imposes a strict deadline by when the plaintiff must
serve an Affidavit of Merit: within sixty (60) days of the professional defendants filed
answer. N.J.S.A. 2A:53A-27; see also Janelli v. Kepper, 317 N. J. Super. 309, 312 (Law
Div. 1998). A plaintiff may apply for an extension, however the Affidavit of Merit may
not be served more than 120 days after the Answer has been filed. Id. In other words, an
extension renders a 120–day deadline from the filing of the relevant answer (the original
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60 day period, plus an additional sought-and-granted-for-good-cause period not
exceeding 60 days) an “end of the line ... drop-dead date[.]” Douglass v. Obade, 359 N.J.
Super. 159, 160 (App. Div. 2003); Familia v. Univ. Hosp., 350 N.J. Super. 563, 569
(App. Div. 2002) (an extension acts as “an outer time limit ... beyond which no
extension could be granted[.]”)
The failure of a plaintiff to produce an Affidavit of Merit within this timeframe is
considered a failure to state a cause of action requiring the dismissal of the complaint
with prejudice N.J.S.A. 2A:53A-29; see also Nuveen Mun. Trust v. Withumsmith Brown,
P.C., 692 F.3d 283, 305; see also Cornblatt v. Barow, 153 N.J. 218 (1998).
Here, Plaintiffs failed to serve the Affidavit of Merit within the prescribed timeframe
and never sought an extension from the Court. Plaintiffs did submit a "sworn statement"
in lieu of the Affidavit of Merit; however, the filing was made outside the permissible
window. N.J.S.A. 2A:53A-29; see also Nuveen Mun. Trust, 692 F.3d at 305; see also
Cornblatt, 153 N.J. 218 (1998).
The Court will now consider whether an AOM is required under the circumstances
here. In order to assist courts in determining whether an affidavit of merit is required,
the Couri Court articulated a three-element test. Courts should ask:
(1) whether the action is for “damages for personal injuries, wrongful death
or property damage” (nature of injury); (2) whether the action is for
“malpractice or negligence” (cause of action); and (3) whether the “care,
skill or knowledge exercised or exhibited in the treatment, practice or work
that is the subject of the complaint [ ] fell outside acceptable professional or
occupational standards or treatment practices” (standard of care).
Id. at 1137 (quoting N.J.S.A. § 2A:53A–27). If all three elements are satisfied, then the
claim falls within the purview of the AMS, and the affidavit is required. Calender v.

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NVR, Inc., No. 10-CV-4277 NLH KMW, 2011 WL 4593759, at *4 (D.N.J. Sept. 30, 2011),
aff'd, 548 F. App'x 761 (3d Cir. 2013)
All three Couri elements are satisfied. First, as an architect group, defendant
Friedmutter is considered a “licensed person.” Second, the claim seeks damages for
personal injury. Third, the nature of the claim necessarily involves a contention about
the professional standard of care for a protected, licensed class—architect.2 The Affidavit
of Merit statute applies to the Plaintiff's design defect claim. An affidavit of merit was
therefore required to proceed under that theory of liability. It is undisputed, however,
that Plaintiff did not file an affidavit of merit.3
Plaintiff argues that the reason an AOM was not filed was the result of Friedmutter’s
alleged failure to supply documents requested by Plaintiff. Friedmutter argues that it

2

In deposition, Mr. Meshulam was unable to provide an expert opinion setting forth Friedmutter's alleged deviation
from the standard of care.
Q: ...How did the Friedmutter Group deviate from the accepted standards of care for architectural
practice with respect to your opinion there in No. 10?
A: Well, it appears that that was not: taken into account
Q: What's the standard, sir? What's the architectural standard of care for what needs to be taken into
account?
A: The usage of the materials in the building.
Q: And what's the source of that information?
A: My experience working with architects.
Q: I want to know what the basis of your opinion is that they should have considered
these materials and how the standard of care requires that?
A: Okay. I'm not going to be able to sit today and quote you from a book that says Standard of
Care on it.
Meshulam Dep., Ex. 6, 188:17-189:15.

3

The relevant procedural history is as follows. At the time of the filing of the original complaint, no Affidavit of
Merit was produced. The Complaint was amended several times as follows. Plaintiff filed a Third Amended
Complaint [Dkt. No. 38] on January 30, 2015 and Defendant Friedmutter filed an Answer [Dkt. No. 50] on April 9,
2015. An Affidavit of Merit, with an extension of time, would have been due in June 2015. Plaintiff failed to file
any document purporting to satisfy the AOM statute at this time or in August 2015, when, in the event a second
extension was given, the AOM would have been due. The parties engaged in motion practice, including a motion by
Friedmutter to dismiss on the basis of the lack of an AOM pursuant to N.J.S.A. 2A:53A- 27. On September 29,
2015, Plaintiff filed an Affidavit in Lieu of an Affidavit of Merit pursuant to N.J.S.A. 2A:53A. See Waldron Cert.,
Ex. G. The motion to dismiss was denied as moot because Plaintiff filed a Fourth Amended Complaint [Dkt. No.
96] on February 10, 2016. Friedmutter filed its Answer [Dkt. No. 122] on July 1, 2016. Plaintiff never filed an
AOM or requested an extension during this period of time.

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supplied all of the documents in its possession and that Super Storm Sandy impeded its
ability to produce more documentation; however, the documents Plaintiff requested
were in the possession of other named defendants. See Waldron Cert., Ex. G. The
documents Plaintiff requested included architectural drawings, plans and specifications,
allegedly necessary for obtaining an AOM. Id.; Ex. H. Friedmutter maintains that
Affidavit in Lieu is insufficient because Plaintiff is attempting to bypass the Affidavit of
Merit Statute by claiming it has not received certain documents from Friedmutter,
documents which are available from Atlantic City Township and Defendant Harrah’s.
Plaintiffs’ claims in this regard, that they have not received crucial documents from
Friedmutter, is unavailing and there is no evidence tending to show that Friedmutter is
in possession of the requested documents. The failure to file an affidavit of merit results
in dismissal with prejudice of the claim. Cornblatt, 708 A.2d at 413; see also Calender v.
NVR, Inc., No. 10-CV-4277 NLH KMW, 2011 WL 4593759, at *8 (D.N.J. Sept. 30, 2011),
aff'd, 548 F. App'x 761 (3d Cir. 2013).4
2. Federal Rule of Evidence 702 and Daubert
The guiding principles that inform the Court's judgment are found in Federal
Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct.
2786, 125 L.Ed.2d 469 (1993). Federal Rule of Evidence 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or

4

In addition, Mr. Meshulam is not qualified to opine on an architecture design. His expertise is generalized
construction. There is no indication that Plaintiff is offering Mr. Meshalum as a construction expert as relates to
Friedmutter. To the extent Plaintiffs claim that Mr. Meshalum is qualified to render an expert opinion as to the
Friedmutter, the expert report is devoid of any methodology or inspections performed by Mr. Meshalum that are
widely accepted within the architectural community. In addition, Mr. Meshulam did not review the architectural
design of the building, has never reviewed the specifications of the building in question, and has no knowledge of
the appropriate standard of care in the State of New Jersey. As a result, he is not qualified to render an opinion as to
the architectural implications of Plaintiff’s injury. See Fed. R. Evid. 702.

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education, may testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. Consistent with that Rule, Daubert established a “trilogy of
restrictions” on the admissibility of expert testimony relating to scientific knowledge.
See Calhoun v. Yamaha Motor Corp., 350 F.3d 316, 321 (3d Cir. 2003). This “trilogy”
consists of “qualification, reliability and fit.” Id. The Third Circuit liberally construes the
qualifications of an expert, noting that “a broad range of knowledge, skills, and training
will qualify a witness as an expert ...” See Yarchak v. Trek Bicycle Corp., 208 F.Supp.2d
470, 495 (D.N.J. 2002) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d
Cir. 1994) (“Paoli II” )) (internal quotations omitted).
With respect to reliability, the focus is on the “principles and methodology, not
on the conclusions that they generate.” Daubert, 509 U.S. at 595. Four benchmarks help
determine whether a theory or technique qualifies as “scientific knowledge” such that it
will assist the trier of fact. See Daubert, 509 U.S. at 593. The Court considers: (1)
whether the theory can be or has been tested; (2) whether the theory or technique has
been subjected to peer review and/or publication; (3) the rate of error; and (4) whether
the theory or technique has been generally accepted within the putative expert's
respective community. Id. at 593–94. The Third Circuit adds other factors, including:
(5) the existence and maintenance of standards controlling the technique's operation;
(6) the relationship of the technique to methods which have been established to be
reliable; (7) the qualifications of the expert testifying based on the methodology; and (8)
the non judicial uses to which the method has been put. Paoli II, 35 F.3d at 742 n. 8.
When considering these factors, the Court's inquiry must be a “flexible one.” Id.
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As for the third prong, Rule 702 requires that the “proffered expert testimony
must ‘fit’ within the facts of the case.” Yarchak, at 208 F.Supp.2d at 496. The fit
requirement mandates that the testimony “in fact assist the jury, by providing it with
relevant information, necessary for a reasoned decision of the case.” Id. (citing
Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584, 595 (D.N.J.
2002)). Thus, even if an expert is qualified and relies on sound methodology, he must
still “apply this expertise to the matter at hand.” See Calhoun, 350 F.3d at 324. These
factors are not exclusive. They “are intended to serve only as ‘useful guideposts, not
dispositive hurdles that a party must overcome in order to have expert testimony
admitted.’” Yarchak, 208 F.Supp.2d at 495 (quoting Heller v. Shaw Industries, Inc., 167
F.3d 146, 152 (3d Cir. 1999)). With the help of these guideposts, the Court performs its
essential gatekeeper role under Federal Rules of Evidence 702.
The Court will first address the defendants’ collective claim that Plaintiff’s expert
fails to offer any scientific explanation or methodology for his conclusions, and,
therefore, comprise an impermissible net opinion, falling short of the standards set forth
in Daubert.
Setting aside, Mr. Meshulam’s qualifications as a generalized construction project
worker, the Court finds that the lack of methodology is fatal to the admissibility of his
opinion on the product liability claims and professional negligence claim against
Friedmutter. Mr. Meshulam does not hold any specialized licenses or degrees; rather,
he has a long career, which spans over thirty six years, in the construction industry
which has afforded him the opportunity to work alongside engineers and architects. His
experience, as explained by Plaintiff, provides him with practical qualifications related
to the architectural testing of products using a hands-on approach to the test the
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performance, functionality, and suitability of products integrated into a building
scheme. Mr. Meshulam’s report, as he explained in deposition, concludes that the usage
of the pavers, as integrated into the design of the pool deck was defective. Meshulam
Dep., p. 200:3-20. In this regard, Mr. Meshulam agrees that the pavers themselves are
not defective. There is no competent evidence in the record to demonstrate that any
pavers manufactured by Westile were defective when they left Westile’s manufacturing
plant.
The outdoor pool deck at Harrah’s was constructed in 2007 with concrete pavers
installed by defendant Thomas Company, Inc. According to Thomas, the manufacturer
of the installed concrete pavers was Westile. See M. Thomas Dep. at 15-16. Thomas
completed the original installation of the concrete pavers at Harrah’s in April of 2007.
Thomas subsequently sold replacement pavers to Harrah’s in 2011 and 2013. According
to Michael Thomas, Harrah’s would call from time to time to obtain replacement pavers
to replace broken ones.
Mr. Meshulam conducted a physical evaluation of the pool deck on a day with
similar weather conditions as those present on Harrah’s pool deck on May 30, 2012.
Mr. Meshulam used a temperature gage to measure the heat of the tile in the area
Plaintiff claims he was injured.5 According to his reading using an infrared camera, the
tile attained a temperature of 137.7 degrees. There is no dispute that this temperature
could cause injury, but there is a dispute as to the actual temperature and whether

5

Plaintiff did not immediately recognize his injury because his diabetic condition diminishes his ability to feel pain.
A few days after his visit to Harrah’s he went to a doctor to investigate a red, painful mark on the bottom of his foot.
As previously discussed, during his discussion with doctors about how and where his foot may have become burned,
he came to equate the genesis of the injury with his time at Harrah’s.

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Meshulam’s readings can be attributed to the conditions that existed on the day of
Thompson’s injury.
Mr. Meshulam could not be certain whether the tile that injured Plaintiff was a
replacement tile, or an original tile from Westile. In order to assure himself of the
circumstances, he relied on the testimony of Plaintiff. Because Plaintiff did not file a
complaint with Harrah’s that the time of the alleged injury, ostensibly because he did
not recognize that he had been injured, Plaintiff’s own testimony provides the only clues
to area on the pool deck where the injury may have occurred.
Mr. Meshulam opines that the configuration of the pool deck as being bordered
on the East by the Bay View Tower with a 200’ wide by 237’ tall glass wall, with highly
reflective windows. Meshulam Rep., Ex. P. Between the East tower and the pool deck is
a swimming pool covered by the glass and steel skylight structure, which also
incorporates reflective glass windows. Id. According to Mr. Meshulam, the position of
the sun at the time Plaintiffs used the pool deck caused the “sunlight [to] reflect from all
exposed glass surfaces like an infinite number of bouncing balls, from glass to deck or
from glass to glass to deck.” Id. The reflection caused an effect similar to a laser to heat
the pavers in a manner that caused them to accumulate more heat than that could be
achieved from normal sun exposure. Id. Mr. Meshulam used Google Earth to construct
the configurations of the distance between the glass structures and the area traversed by
Plaintiffs. Id. Based on those measurements and the arc of the sun during early
afternoon, he created a diagram to show the path of the deflected sunlight onto the deck
below. Id. Based on these calculations, he posits that a “deathray” caused the pavers to
superheat and injure Plaintiff. Id.

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Mr. Meshulam agrees that he does not have the expertise to opine on matters of
architecture and states that his knowledge is based on the fact that others may have
experienced deflected heat as a result of architectural design.
Q: So you said, "Reasonable care requires that one take into account the
sun's position." Is there any published standard that sets that forth?
A: Well, I showed you some articles where people have experienced
difficulties because of the sun's reflection on reflective glass, and there are
more such things.
Q: Okay. The published articles we talked about before, but are you aware
of any published standards, such as ASTM standards, that require an
architect to take into account the sun's position?
A: ASTM is a testing method, so I don't know if it would be in their domain.
Q: Are you aware of any standards?
A: Sitting here today, I cannot think of standards that are out there for that.
Meshulam Dep. at 158:20-159 25
Mr. Meshulam also agrees that he is and was not aware of any standards or codes
requiring an architect and/or design professional to consider surrounding reflective
surfaces and the anticipated use of the floor surface in the preparation of construction
documents.
Q: Okay. Now, look at No. 11, with regards to exterior walking surfaces and
the design and selection of materials for those surf aces, in a construction
project such as the one at Harrah's, who is generally responsible for the
design and selection of materials?
A: Generally it's the architect, but if you have a general contractor,
sometimes they can influence that decision and you can also have the owner
influencing the decision.
Q: Is there any code that requires a design professional such as an architect
or contractor or the property owner to take into account surrounding
reflective materials when selecting materials for an exterior walking
surface?
A: Not that I'm aware of, but that doesn't relieve them of their professional
responsibility to look at the project in its entirety and to make judgments
that are specific to that project.
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Q: Again, is there a published standard that requires an architect,
contractor, property owner to take into account surrounding reflective surf
aces when installing exterior walking surfaces?
A: I’m not aware of it.
Q: As we sit here today, do you have an understanding of what the standard
of care is for an architect in the State of New Jersey?
A: Specifically in the State of New Jersey, no.
Id. at 161:24-l62:7; 184: 11-184:19.
To support his conclusions, Mr. Meshulam highlights an online article, dated
June 30, 2016, in which a casino patron, in 2010, posted on Instagram that the pool
deck was 107.6 degrees. Id. In addition, Meshulam’s Report includes an excerpt from
the National Association of Home Builders article titled “Sunlight Reflected from
Double-Paned Low-E Windows, and Damage to Vinyl Siding and other Materials.” The
article explains the phenomenon of light and heat transferring from reflective glass onto
surrounding objects, and includes a 2013 photograph of onlookers watching an egg fry
from the heat of reflected sunlight. Id. A diagram shows how a “skyscraper can turn the
sun into a ‘deathray’.” Meshulam also references a government website that explains
how reflective glass reflects solar heat. Id. Based on the forgoing, Mr. Meshulam opines
that Harrah’s should have known about the dangerous condition on its pool deck and
offers several solutions for improvement.
Mr. Meshulam’s opinion does not allege that the tiles were improperly installed
or that they were manufactured incorrectly. Even under the liberal standards governing
a proposed expert’s qualifications, Mr. Meshulam lacks the requisite qualifications to
opine on the component parts of the pavers and/or the design or formulas used to
manufacture the pavers. In short, he lacks the “broad range of knowledge, skills, and
training qualify an expert” as to the composition and placement of the pavers. In re
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Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (“Paoli II”). Moreover, his
opinions as to the design of the pool deck, placement of the tiles, and general
architecture of the space are speculative and lack the hallmarks of reliability. Second,
the testimony must be reliable. Id. at 742 (“[T]he 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.”) (quoting
Daubert, 509 U.S. at 590, 113 S. Ct. 2786); see also Calhoun v. Yamaha Motor Corp.,
U.S.A., 350 F.3d 316, 321 (3d Cir. 2003). References to diagrams and articles without
calculations and testing relevant to the materials at issue here constitutes mere
speculation, insufficient under Daubert. The record is devoid of evidence of the testing
of alternative pavers or products for use on the Harrah’s pool deck. As a result, Mr.
Meshulam cannot opine as to whether the product pavers “w[ere] defective, that the
defect existed when it left the defendant's control, and that the defect was the actual and
proximate cause of the plaintiff's injury.” Worrell, 799 F. Supp. 2d at 350. (citation
omitted). Summary judgment is granted as to the design defect claims and the liability
that flows from them.
During oral argument, Plaintiff argued that even if the design defect claims are
defunct, there is a failure to warn claim against the manufacturer of the pavers. “A
manufacturer has a duty to make sure that its manufactured products placed into the
stream of commerce are suitably safe when used for their intended or reasonably
foreseeable purposes.” Brown v. U.S. Stove Co., 98 N.J. 155, 484 A.2d 1234, 1239 (N.J.
1984) (citing Soler v. Castermaster, Div. Of H.P.M. Corp., 98 N.J. 137, 484 A.2d 1225,
1229 (N.J. 1984)).

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The PLA provides:
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. Stat. Ann. § 2A: 58C–2.
Therefore, a plaintiff may assert a strict liability cause of action against a product
manufacturer based on an unsafe design defect, manufacturing defect, or failure to warn
theory of liability. To plead a prima facie cause of action under the PLA, a plaintiff must
show that the defendant manufactured the product, that a reasonably foreseeable user
was injured, that the product was defective, that the defect existed when it left the
defendant's control, and that the defect was the factual and proximate cause of the
plaintiff's injury. Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 723 A.2d 45, 52
(N.J. 1999); Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 675 A.2d 620, 627 (N.J. 1996);
Jurado v. W. Gear Works, 131 N.J. 375, 619 A.2d 1312, 1317 (N.J. 1993).
In New Jersey, a plaintiff must establish the same elements to state a claim under
a theory of design defect, manufacturing defect, or failure to warn; the only difference is
the nature of the alleged defect. Zaza, 675 A.2d at 629; Matthews v. University Loft Co.,
387 N.J. Super. 349, 903 A. 2d 1120, 1128 (N.J. Super. Ct. App. Div .2006). Here,
Plaintiff’s claims are predicated upon the testimony Mr. Meshulam. As a result, the
evidence suffers from the same insufficiencies identified above with respect the design
defect. Mr. Meshulam’s lack of testing of the pavers at issue coupled with his

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insufficient qualifications to opine on whether the pavers are defective or that the defect
existed when it left the defendant's control. Myrlak , 157 N.J. 84. Summary judgment is
granted in favor of defendants Friedmutter, T.N. Ward, Thomas Company, Inc., and
Westile.6
B.

Plaintiffs’ Claim of Negligence against Defendant Harrah’s

The claims against Harrah’s sound in general negligence, despite Plaintiff’s
attempt to frame the case under the PLA.7 To establish a claim for common law
negligence,
[A] plaintiff must prove tortious conduct, injury and proximate cause.
“Proximate cause” has been defined as “any cause which in the natural and
continuous sequence, unbroken by an efficient intervening cause,
produces the result complained of and without which the result would not
have occurred.” The burden of proof rests upon the plaintiff to prove a
causal relationship by a preponderance of the evidence. Thus, a plaintiff
must show that a defendant’s conduct constituted a cause-in-fact of his
injuries.
Dawson v. Bunker Hill Plaza Associates, 673 A.2d 847, 853 (N.J. Super. App. Div. 1996)
(citations omitted).
Although, generally, “a possessor of land is not liable to his invitees or physical
harm caused to them by any activity or condition on the land whose danger is known or
obvious to them,” this limitation does not apply if the “possessor should anticipate the
harm despite such knowledge or obviousness.” La Russa v. Four Points at Sheraton

6
Summary judgment is also granted in favor of Associated Indemnity Insurance Company because the claims
against it by T.N. Ward are derivative.
7
Summary judgment is granted as to the product liability claims against Harrah’s for the same reasons set forth as to
the other defendants. In addition, Harrah’s is not a proper products liability defendant because it is not a
manufacturer or seller of the pavers pursuant to N.J. Stat. Ann. § 2A: 58C–2.

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Hotel, 821 A.2d 1168, 1172-73 (N.J. Super. Ct. App. Div. 2003) (quoting Restatement
(Second) of Torts § 343A(1) (1965)). Comment f. to Section 343A of the Restatement
summarizes this principle: There are, however, cases in which the possessor of land can
and should anticipate that the dangerous condition will cause physical harm to the
invitee notwithstanding its known or obvious danger. In such cases, the possessor is not
relieved of the duty of reasonable care which he owes to the invitee for his protection.
This duty may require him to warn the invitee, or to take other reasonable steps to
protect him, against the known or obvious condition or activity, if the possessor has
reason to expect that the invitee will nevertheless suffer physical harm. Restatement
(Second) of Torts § 343A, cmt. f. (1965) (emphasis added).
Although Harrah’s has a number of warnings promulgated near the pool area,
there are no warnings related to the potential heat of the sun deck. See Vitale Cert.,
Ex. G. Likewise, there are no signs directing users of the sundeck to wear footwear.
According to Harrah’s head of general maintenance, there are no signs warning
patrons to wear footwear on the sun deck at Harrah’s. Heide Dep., Ex. Q., 32:8-15;
32:15-19. However, signs requiring footwear exist for the use of the indoor pool area.
Id.
There are genuine issues of material fact related to whether Harrah’s exercised
reasonable care for its patron’s use of the sun deck. Although Mr. Meshulam’s opinion
that the pavers used on Harrah’s pool deck were not reasonably fit, suitable, or safe for
their intended purpose cannot sustain a claim under the PLA, his observation and
thermographic readings of the pool deck measured the heat of the pavers on a day with
allegedly similar conditions to those allegedly present during Mr. Thompson’s stay. In
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this regard, Mr. Meshulam is qualified to take the measurement of heat through
thermographic readings and opine as to the nature of his findings. Specifically, Mr.
Meshulam’s report states that “Plaintiff was seriously burned through contact with
extremely hot pool deck pavers, which reached 137ºF, or even hotter as the afternoon
progressed.” See Meshulam Report, Ex. G. Although Meshulam cannot definitively state
that the pavers were the cause of Howard Thompson’s burns, there are other facts in the
record that create a genuine issue of material fact related to whether the hot pavers are
connected to Thompson’s injury.
Defendant’s own Medical Expert, Dr. Michael Downey DPM, opines that a
temperature of 110 degrees would be sufficient to create a third-degree burn. Vitale
Cert., Ex. M. Plaintiff’s own medical records also demonstrate that he sustained a
third degree burn on his foot in close proximity to his time at Harrah’s. In this regard,
any dispute about the temperature of the pavers is immaterial because Harrah’s agrees
the temperature as measured was greater than the 110 degrees its own expert opines
could cause a third degree burn.
Because the temperature of some of the pavers on the sundeck were— and could
be—hot enough to burn Plaintiff’s feet, there are questions of fact related to whether
Harrah’s knew or should have known of the potentially dangerous condition on the
sundeck. It is not unreasonable to think that some patrons will utilize the sundeck
without footwear. While the fact that Harrah’s did not have any complaints filed with
management related to the temperature of the sundeck may inform an analysis about
whether Harrah’s knew that the deck was dangerous, it is not dispositive of the
question of whether Harrah’s should have known. Harrah’s has team members who

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rove the grounds looking for dangerous conditions. The temperature of the deck is
knowable and there are questions of facts as to whether Harrah’s “should [have]
anticipate[d] the harm despite such knowledge or obviousness.” La Russa, 821 A.2d at
1172-73. Summary judgment is denied as to the negligence claim against Harrah’s.
III.

Conclusion

For the reasons set forth above and those stated on the record during the hearing
on September 26, 2017, summary judgment is granted in favor of Associated Indemnity
Insurance Company, Thomas Company, Inc., Oldcastle, Inc., T.N. Ward Company, and
Friedmutter Group, LLC. Summary judgment is granted as to the claims under the PLA
in favor of Harrah’s Atlantic City Operating Company. Summary judgment is denied as
to the claims of negligence against Harrah’s Atlantic City Operating Company. Summary
judgment is denied as to Deborah Thompson’s claim of loss of consortium.
An appropriate Order shall issue.
Dated: March 29, 2018
s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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