RUGGIERO v. YAMAHA MOTOR CORPORATION, U.S.A. et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/31/2017. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
Civil Action No.
YAMAHA MOTOR CORPORATION,
Gary David Ginsburg, Esq.
GINSBURG & O’CONNOR, P.C.
3000 Atrium Way, Suite 330
Mount Laurel, NJ 08054
Attorney for Plaintiff
James Simon Coons, Esq.
Robert A. Assuncao, Esq.
ANSA ASSUNCAO LLP
Two Tower Center Blvd., Suite 1600
East Brunswick, NJ 08816
-andRichard A. Mueller, Esq.
THOMPSON COBURN LLP
One US Bank Plaza
St. Louis, MO 63101
Attorneys for Defendant
SIMANDLE, Chief Judge:
In this products liability action, Plaintiff Angela
Ruggiero (hereinafter, “Plaintiff”) alleges that Defendant
Yamaha Motor Corporation, U.S.A. (hereinafter, “Defendant” or
“Yamaha”) failed to provide adequate warnings when Plaintiff
fell off a personal watercraft and sustained serious injuries.
Defendant has moved to strike the reports and testimony of
Plaintiff’s expert William Kitzes, and asserts that without his
report and testimony, Plaintiff has insufficient evidence for a
reasonable jury to conclude Defendant is liable for a failure to
For the reasons that follow, Defendant’s motion to strike
will be granted, and its motion for summary judgment will be
A. Factual Background2
On June 30, 2012, Plaintiff suffered a severe rectal
laceration when she fell off a 2009 Yamaha FZR WaveRunner
personal watercraft (“FZR” or “PWC”)3 just off of Brigantine
Township Beach. (Def. Statement of Material Facts at ¶¶ 1, 3.)
Plaintiff’s boyfriend, Thomas Fimple was the owner and operator
of the FZR at the time of the incident, with Plaintiff holding
on behind him as a passenger. (Id. at ¶ 2.)
As Mr. Fimple
The Court has diversity jurisdiction over this action pursuant
to 28 U.S.C. § 1332.
2 The Court distills this undisputed version of events from the
parties’ statements of material facts, affidavits, and exhibits,
and recounts them in the manner most favorable to Plaintiff, as
the party opposing summary judgment.
3 The 2009 Yamaha FZR WaveRunner is a two-person, water jetpropelled, recreational boat. (Def. SMF at ¶ 16.)
approached the beach, he accelerated his FZR towards a large
boat producing a large wake. (Id. at ¶¶ 8-9.)
Contrary to his
usual practice of warning Plaintiff before he would accelerate
his FZR (so Plaintiff could hold on), in this instance, Mr.
Fimple did not advise Plaintiff that he was going to accelerate.
(Id. at ¶¶ 10-11; Ruggiero Dep. 48:24-25 – 49:1-4.)
result, Plaintiff did not hold on, fell off the vessel, and hurt
her back. (Id. at ¶ 13.)
Plaintiff was wearing a two-piece
bathing suit when the incident occurred, as she was not wearing
a wetsuit bottom or other protective clothing at the time of her
injury. (Id. at ¶¶ 4-5.)
Mr. Fimple purchased the FZR from Deptford Honda Yamaha on
July 19, 2009 and had owned it for nearly three years at the
time of the incident. (Id. at ¶ 15.)
Defendant, the wholesaler,
had originally sold the FZR to Deptford Honda Yamaha (Id.)
Prior to the accident, Mr. Fimple had modified the FZR in a
variety of ways to make it accelerate faster, while also
installing a decorative decal wrap that covered all the original
equipment warning labels on the FZR except for the Uniform Label
located on the glove box door below the handlebars. (Id. at ¶¶
When he purchased the FZR, Mr. Fimple received the
Owner’s Manual, a Riding Practice Guide, a waterproof Riding
Instructions Placard, and a thick plastic Ziploc bag to store
the information. (Id. at ¶ 18.)
At the time of sale, Mr. Fimple’s FZR had two warning
labels affixed to the watercraft that specifically addressed the
risk of orifice injuries and the need to wear protective
These labels were located on the handlebars (on the
lid of the glove box) and at the rear of the craft (next to the
rear boarding deck). (Id. at ¶ 22.)
The contents of these warning labels is not challenged by
Plaintiff, only their placement on the watercraft.
The label on
the glove box (“Uniform Label”)4 specifically stated:
To reduce the risk of SEVERE INJURY or DEATH: . . . WEAR
PROTECTIVE CLOTHING. Severe internal injuries can occur if
water is forced into body cavities as a result of falling
into water or being near jet thrust nozzle. Normal swimwear
does not adequately protect against forceful water entry
into rectum or vagina. All riders must wear a wet suit
bottom or clothing that provides equivalent protection (See
(Id. at ¶ 23.)
Plaintiff never read this label. (Kitzes Dep.
The second warning label, affixed behind the seats of
the FZR above the boarding platform, states:
Severe internal injuries can occur if water is forced into
body cavities as a result of being near jet thrust nozzle.
Wear a wetsuit bottom or clothing that provides equivalent
protection. Do not board PWC if operator is applying
(Def. SMF at ¶ 27.)
Plaintiff testified she never read this
label either because Mr. Fimple had covered it up with a
decorative decal. (Kitzes Dep. 19:15-19.)
The Uniform Label is used by every PWC manufacturer in the
United States. (Def. SMF at ¶ 24.)
Owner’s Manual instructs all riders to read the manual and
warning labels before riding the PWC, and warnings about the
potential risk of orifice injuries and the need to wear
protective clothing are found on page 6, 7, 12, 61, 62, and 64
of the Owner’s Manual. (Id. at ¶ 29-30.)
Plaintiff began riding as a passenger on Mr. Fimple’s FZR
in 2011, but Mr. Fimple never told her about the requirement to
wear protective clothing as stated in the safety literature and
on-product warnings that accompanied the FZR when he purchased
it, nor did he ask her to review any of the materials or the onproduct warnings on the craft, or to read the Owner’s Manual.
(Id. at ¶¶ 38-41.)
Plaintiff also never read any of the
warnings on the FZR, nor did she read any warning (on the
product, in the product literature, or otherwise) for the FZR
that discussed the risk of orifice injuries and how to avoid the
risk (by wearing protective clothing). (Id. at ¶¶ 45-47.)
fact, Mr. Fimple has never reviewed the safety information for
any PWC he has owned or used. (Id. at ¶ 51.)
Mr. Fimple first
learned to operate a PWC in 1993, and explained that
“[e]verything that I’ve been taught, I’ve been taught through my
uncle, who was a boater, my grandfather, who was a boater, my
aunt, who is a boater, their entire lives. So them teaching me
physically how to properly do things, I didn’t feel those
warning labels would affect me at all because they’ve taught be
all the safety I needed to know . . . And those warning labels,
I just look at them and say that’s something that I already
probably know, and just kind of blow them off.” (Id. at ¶¶ 53,
B. Procedural Background
Plaintiff filed her Complaint against Defendant in the
Superior Court of New Jersey, Burlington County, on June 23,
2014. [Docket Item 1.]
Defendant properly removed the case to
this Court under 28 U.S.C. § 1441(a). (Id.)
Complaint consists of four counts: (1) strict products liability
against Defendant for design defect and failure to warn; (2)
negligence against Defendant for inadequate instructions and
warnings for the FZR; (3) a strict products liability claim
identical to the First Count but directed against fictitious
individuals, and (4) a negligence claim identical to the Second
Count but directed against fictitious individuals.5
pretrial discovery, Defendant filed this motion for summary
judgment [Docket Item 24], which has been fully briefed.
Court held a Daubert hearing and oral argument on March 17,
2017. [Docket Item 31.]
The parties agree that Plaintiff has now confined this action
to a failure-to-warn theory only. (Opp’n at 18.)
STANDARD OF REVIEW
Summary Judgment Standard, Generally
Summary judgment is appropriate if “there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.”
Alabama v. North Carolina, 560
U.S. 330, 344 (2010) (citations and internal quotation marks
omitted); see also FED. R. CIV. P. 56(a).
In evaluating Defendant’s motion for summary judgment, the
Court must view the material facts in the light most favorable
to the non-moving party, Plaintiff, and make every reasonable
inference in that party’s favor.
See Scott v. Harris, 550 U.S.
372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.
An inference based upon “‘speculation or conjecture,’”
however, “‘does not create a material factual dispute sufficient
to defeat summary judgment.’”
Halsey, 750 F.3d at 287
Rather, the non-moving party must support
each essential element with concrete record evidence.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,” the
Court may grant summary judgment.
Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A. Motion to Strike Expert Testimony of William Kitzes
The Court first addresses Defendant’s motion to strike at
the outset, as it impacts the outcome of Defendant’s motion for
In support of her theory of liability against
Defendant, Plaintiff has produced the expert report,
supplemental report and testimony of William F. Kitzes, J.D.
(Pl. Statement of Additional Material Facts at ¶ 1.)
testified at his deposition that he has offered testimony in
approximately eight other cases involving personal watercraft in
his career, with two involving orifice injuries. (Id. at ¶ 12.)
He has opined about the location of the warning on Mr. Fimple’s
PWC, that “an additional [third] label needed to be placed on
the seat in front of the passenger so that they got directly the
information they needed to protect themselves.” (Id. at ¶ 31.)7
In Mr. Kitzes’ view, this “failure to provide an adequate
warning in the location where it can be used by the person who
needs it” is creates an “unreasonable risk of catastrophic
injury, particular to women, under foreseeable conditions well-
The parties dispute whether expert testimony is actually needed
in this case. See infra Part IV.B.
7 Regarding the color of the warning, Mr. Kitzes has also opined
that the safety warnings were inadequate because the Uniform
Label on the glove box of the FZR uses white letters on a black
background instead of black letters on a white background. (Ex.
19 to Def. Br. at 49:10 to 50:8.) Plaintiff withdrew this
opinion at the Daubert hearing, so the Court will only address
Mr. Kitzes’ opinion regarding the location of the warning.
known to Yamaha for nearly 20 years.” (Id. at ¶ 25; Kitzes Dep.
Plaintiff does not take issue with the actual
wording of the two warnings on this watercraft, which are not at
Defendant moves to exclude Mr. Kitzes’ reports and
testimony under Daubert v. Merrill Dow Pharma., Inc., 509 U.S.
579 (1993) because (a) he is not qualified to express the
opinion that he offers, (b) his opinion is not reliable, (c) his
“method” to derive these opinions is not scientific, and (d) his
generic views about warnings are not helpful to the jury. (Def.
Br. at 1.)8
Federal Rule of Evidence 702 “embodies a trilogy of
restrictions on expert testimony:  qualification, 
reliability, and  fit.”
Schneider v. Fried, 320 F.3d 396,
404 (3d Cir. 2003) (citing In re Paoli R.R. Yard PCB Litig., 35
F.3d 717, 741–43 (3d Cir. 1994)); see also FED. R. EVID. 702.
Defendant first attacks Mr. Kitzes’ qualifications as an
expert in the present matter.
The qualification prong requires
“that the witness possess specialized expertise.” Schneider v.
Fried, 320 F.3d 396, 405 (3d Cir. 2003).
The Third Circuit has
An expert in a products liability case offered to testify
regarding inadequate warnings must meet the Daubert criteria.
Milanowicz v. Raymond Corp., 148 F. Supp. 2d 525, 541 (D.N.J.
“interpreted this requirement liberally,” holding that “a broad
range of knowledge, skills, and training qualify an expert as
such.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d
Cir. 1994). The basis of “specialized knowledge” can be from
“practical experience as well as academic training and
credentials.” Kane Builders, Inc. v. Southern New Jersey
Building Laborers Dist. Council, No., 2007 WL 2416470, at *6
(D.N.J. 2007) (quoting Waldorf v. Shuta, 142 F.3d 601, 625 (3d
Cir.1998)). The Third Circuit has interpreted the “specialized
knowledge” requirement liberally, finding that “Rule 702's
liberal policy of admissibility extends to the substantive as
well as the formal qualifications of experts.” In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). “[I]f the
expert meets the liberal, minimum qualifications then the level
of the expert's expertise goes to credibility and weight, not
admissibility.” Kannankeril v. Terminix Int'l Inc., 128 F.3d
802, 809 (3d Cir. 1997).
Mr. Kitzes received his bachelor’s degree in history with a
minor in political science from the University of Wisconsin and
his law degree from the American University Washington College
of law. (Def. SMF at ¶¶ 59-61; Kitzes Dep. 25:8-18.)
school, he worked as an attorney at the Consumer Product Safety
Commission, and after six years there, he joined the Institute
for Safety Analysis as Vice President and General Manager. (Ex.
C. to Opp’n.) For the last thirty-four years, Mr. Kitzes has
worked at Consumer Safety Associates, a consulting company he
founded that includes himself and his wife. (Kitzes Dep. 27:2123.) He has spoken at dozens of seminars and workshops on
safety-related issues, and has written a wide range of articles
on consumer product safety. (Ex. C to Opp’n.) Several
manufacturers, including Dick’s Sporting Goods and a large
vending machine company, have hired Mr. Kitzes over the years to
consult on product safety issues, specifically regarding the
development of on-product warning labels. (Id.)
Despite his experience, Mr. Kitzes has no degrees in
engineering, psychology, communications theory, or any science
field, nor does he have a degree in industrial safety
management. (Def. SMF at ¶¶ 61-62.)
Furthermore, Mr. Kitzes has
never owned a PWC, has only ridden a PWC four times in his life,
has not ridden a PWC in over ten years, and has never ridden the
FZR model WaveRunner. (Def. SMF ¶¶ 63-66.)
He did not visit the
accident location, nor did he inspect the subject FZR or an
exemplar FZR. (Id. at ¶¶ 67-68.)
He also did not personally
speak with Plaintiff, Mr. Fimple, or Mr. Chiaradonna (Mr.
Fimple’s friend who accompanied them that day) to discuss the
accident. (Id. at ¶ 70.)
Plaintiff claims that Mr. Kitzes is “eminently qualified to
testify regarding products safety warnings based on the
knowledge, skill, and training he has acquired over the course
of his 30 year career in safety management consulting,” as he
has “specialized expertise regarding products safety warnings
based on his knowledge of safety management literature and
standards and his years of work in consulting.” (Opp’n at 24.)
As such, he has knowledge that is superior to the average layman
in regards to warnings.
On the other hand, Defendant argues
that “[w]ith no education or training in PWC design or
operation, or human factors engineering, Mr. Kitzes is not
qualified to opine on the efficacy of on-product warning labels
on the FZR or alternate warning systems.” (Def. Br. at 20.)9
The Court finds that Mr. Kitzes has at least the minimum of
education, training, and experience to testify about warning
Despite the above deficiencies, exclusion of
an expert witness on grounds of qualifications alone is
“improper simply because an expert does not have the most
appropriate degree of training.” Yarchak v. Trek Bicycle Corp.,
208 F. Supp. 2d 470, 495 (D.N.J. 2002) (citing Diaz v. Johnson
Matthey, Inc., 893 F. Supp. 358, 372 (D.N.J. 1995)).
that Mr. Kitzes is not a “human factors” expert does not mean
that there is no “specialized knowledge” he can provide to
Human factors engineering “is concerned with an evaluation of
the human factors that are involved in the design and use of
products, equipment, and facilities.” Calhoun v. Yamaha Motor
Corp., U.S.A., 350 F.3d 316, 322 n.10 (3d Cir. 2003).
inform Plaintiff’s allegations that the PWC warnings were
inadequate due to their location on the PWC. See Holbrook v.
Lykes Bros. S.S. Co., 80 F.3d 777, 782 (3d Cir. 1996)(“[I]t is
an abuse of discretion to exclude testimony simply because the
trial court does not deem the proposed expert to be the best
qualified or because the proposed expert does not have the
specialization that the court considers most appropriate.”).
Given the liberal construction of the qualifications of a
putative expert under Daubert in the Third Circuit, see Yarchak,
208 F. Supp. 2d at 495 (observing same).
Construing Mr. Kitzes’
experience and education “liberally,” his “generalized
qualifications” satisfy the requirement of expertise for the
purposes of this case – the location of warnings. See Paoli, 35
F.3d at 741.
2. Reliability of Methodology
Absence of a methodology, on the other hand, presents a
In arguing that Mr. Kitzes’ reports and
testimony must be excluded, Defendant maintains that Mr. Kitzes
utilized no methodology whatsoever in producing his reports.
The reliability prong inquiries whether the expert’s conclusion
rests upon “the ‘methods and procedures of science’ rather than
on ‘subjective belief or unsupported speculation.’” Calhoun v.
Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003)
(quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993)); see also Kemly v. Werner Co., 151 F. Supp. 3d 496, 502
(D.N.J. 2015) (describing the same analytical framework); Krys
v. Aaron, 112 F. Supp. 3d 181, 189-90 (D.N.J. 2015) (same).10
“[T]he standard for determining reliability is not that high,
even given the evidentiary gauntlet facing the proponent of
expert testimony under Rule 702.” In re TMI Litigation, 193 F.3d
613, 665 (3d Cir. 1999).
Reliability, however, does not require
the proffering party to demonstrate the “correctness” of the
expert opinion. In re Paoli R.R. Yard PCB Litig., 35 F.3d 717,
744 (3d Cir. 1994) (concluding that the “evidentiary requirement
of reliability” amounts to a lower burden “than the merits
standard of correctness”).
Indeed, so “long as an expert's
scientific testimony rests upon good grounds ... it should be
tested by the adversary process—competing expert testimony and
active cross–examination—rather than excluded from jurors'
scrutiny for fear that they will not grasp its complexities or
satisfactorily weigh its inadequacies.” United States v.
Where the reliability turns upon the intricacies of an
expert’s scientific technique, Daubert (and its progeny) directs
courts to undertake an inquiry, in essence, into whether the
disputed technique has gained acceptance in the relevant
scientific community. See In re Paoli, 35 F.3d at 742 n.8
(listing the relevant factors). These “specific factors neither
necessarily nor exclusively applies to all experts,” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999); see also Kannakeril
v. Terminix Int’l, Inc., 128 F.3d 802, 806-07 (3d Cir. 1997)
Marshall, 365 F.3d 215, 244 (3d Cir. 2004) (citations
In certain circumstances, admissible expert testimony may
derive from an expert's knowledge and experience. Oddi v. Ford
Motor Co., 234 F.3d 136, 158 (3d Cir. 2000).
the applicability of Daubert to non-scientific experts. Kumho
Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)
scientific cases, such as here, the Daubert factors “may or may
not be pertinent in assessing reliability, depending on the
nature of the issue, the expert's expertise, and the subject of
his testimony.” Kumho, 526 U.S. at 150.
Thus, “the relevant
reliability concerns may focus upon personal knowledge or
experience.” Id. at 152.
The objective of Daubert's gatekeeping
role, however - “to ensure the reliability and relevancy of
expert testimony” -
remains unchanged. Id.
In any case, the
district court enjoys “considerable discretion” to “determine
the criteria for judging reliability under the particular
In assessing the reliability of an expert’s methodology under
Daubert, the trial court can consider various factors,
including: (1) whether a method consists of a testable
hypothesis; (2) whether the method has been subjected to peer
review; (3) the known or potential rate of error, (4) the
existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is generally
accepted; (6) the relationship of the technique to methods which
have been established to be reliable; (7) the qualifications of
the expert witness testifying based on the methodology; and (8)
the non-judicial uses to which the method has been put. In Re
Paoli, 35 F.3d at 742.
circumstances.” Betterbox Communications Ltd. v. BB
Technologies, Inc., 300 F.3d 325, 329 (3d Cir. 2002). “If the
witness is relying solely or primarily on experience, then the
witness must explain how that experience leads to the conclusion
reached, why that experience is a sufficient basis for the
opinion, and how that experience is reliably applied to the
facts.” Advisory Committee Notes, 2000 Amendments, Fed. R. Evid.
However, as the Supreme Court observed in Daubert,
“vigorous cross-examination, presentation of contrary evidence,
and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.” Daubert, 509 U.S. at 596.
Additionally, there are several additional “indicia of
reliability” that have particular relevance in a failure to warn
case such as this, including: (1) federal design and performance
standards; (2) standards established by independent
organizations; (3) relevant literature; (4) evidence of industry
practice; (5) product design and accident history; (6) whether
the expert uses illustrative charts and diagrams; (7) data from
scientific testing; (8) the feasibility of the suggested
modification, and (9) the risk-utility of the suggested
modification. Milanowicz v. The Raymond Corp., 148 F. Supp. 2d
525, 532-536 (D.N.J. 2001).12
Defendant argues that Mr. Kitzes’ testimony is not reliable
because it lacks a basis in sound principles, evidence, and
Specifically, Defendant argues that Mr. Kitzes’
“untested theory that a third orifice injury warning must be
placed on the seat has no support in data or authoritative
scientific literature or studies.” (Reply Br. at 9.)
Furthermore, Mr. Kitzes “offers no evidence regarding the
relative likelihood of a PWC rider to read a warning label
placed on the seat of the craft, as opposed to those on the
glove box directly in front of the operator or above the aft
deck.” (Def. Br. at 22.)13
Plaintiff responds that Mr. Kitzes “cites to articles and
medical literature establishing the chronology of when Yamaha
first became aware of the potential for orifice injuries
resulting from passengers falling off of personal watercraft,”
In addition to the general reliability criteria of Daubert, in
a warnings case, where an expert proposes alternate warnings, he
should at least either test the effectiveness of those warnings
or point to contemporaneous industry practice. Otherwise, the
reliability of the expert’s testimony on the proposed warning is
“extremely questionable.” Milanowicz, 148 F. Supp. 2d at 541
13 The Court also finds that Mr. Kitzes’ testimony in Colombo v.
BRP US Inc., 230 Cal.App.4th 1442 (4th Dist. 2014) makes his
opinion in this case unreliable. There, defendant did not have
a second on-product warning label on the rear of the craft, and
Mr. Kitzes called having a label there “a superior location and
it’s a superior concept.” (Ex. 2 to Reply Br.)
while he also cites “to the applicable . . . standards and
criticiz[ing] YMUS based on their failure to comport with those
standards.” (Opp’n at 31-32.)
Mr. Kitzes bases his opinion on
location of the warnings primarily on the voluntary American
National Standards Institute (ANSI) Z535.4 Standard for Product
Safety Signs and Labels.
Specifically, Section 9 of the ANSI
Standards addresses sign and label placement. It states:
9.1 Location: Product safety signs and labels shall be
placed such that they will: (1) be readily visible to the
intended viewer and (2) alert the viewer to the potential
hazard in time to take appropriate action.
(Kitzes Report at 14.)
Mr. Kitzes argues that Defendant’s
labeling on the PWC at issue fails to comply with this standard
because the front label is not “readily visible to the intended
viewer,” here, the passenger, and the warning label on the aft
portion beneath the seat may not be noticed by a passenger who
mounts the PWC from the side, as Plaintiff did in this instance.
The Court finds that Mr. Kitzes’ conclusion regarding the
location of the warning is not based upon any sufficiently
reliable methodology under Rule 702.
The problem with his
conclusion is that in developing it, he failed to perform any
tests or focus groups, take any measurements, rely on any
articles on location of warnings (besides the very generalized
ANSI standard itself), conduct any reenactments or even examine
the PWC itself, leaving his conclusion to be, at best, an
Speculation is not methodology. Completing any
of the above actions would have shed light on whether warning on
the seat would have made a difference in Ms. Ruggiero’s conduct
on the day of the accident. (Kitzes Dep. 74:3-7.)14
More specifically, Mr. Kitzes criticizes the placement of
two otherwise adequate warning labels on this small watercraft
by speculating that the passenger would not be able to notice
either of these labels during normal use.
The total distance
from the front handlebar (where the driver steers the PWC) to
the back of the passenger seat directly behind the driver is
only 39 inches.
The passenger typically rides by holding on to
the driver, sitting forward in the rear seat.
head is thus well less than 39 inches from the front warning
With no measurements or reconstruction, it is guesswork
whether a passenger would be apt to notice the front label while
Similarly, Mr. Kitzes applied no methodology to support
his presumption that a passenger boarding from the side of the
craft would not see the front label or the rear label.
Mr. Kitzes stated at the Daubert hearing that he did not need
to leave his house to have a reliable methodology for his
opinion, as he looked at photographs of the PWC to determine the
proper placement of the warning label. But Defendant’s expert,
Robert K. Taylor, P.E., in addition to reviewing the deposition
transcripts and photographs like Mr. Kitzes did, also completed
“on-water testing of an exemplar PWC, [reviewed] surrogate video
demonstrations with an exemplar PWC, inspect[ed] the subject PWC
and trailer, and inspect[ed] the launch sites used to launch the
subject PWC.” (Taylor Report at 2.) Further, another one of
Defendant’s experts, Kevin Breen, examined the subject PWC, the
incident site, and an exemplar PWC that he “utilized for various
operational and human factors evaluations.” (Breen Report at 6.)
label is positioned where a passenger will see it when boarding
from the water using the aft platform, and the seat support
itself slants forward so that even a passenger getting on or off
from the side may see the warning label from above the seat.
Mr. Kitzes takes none of these physical facts into account in
speculating that the rear label placement is not visible to a
Where the only criticism of Defendant’s warning
label system is the placement, rather than the content or
prominence of the labels, the lack of an expert methodology for
determining the adequacy of placement becomes a fatal
shortcoming of the proffered opinion.
Moreover, Mr. Kitzes’ opinions about the location of the
warnings are based on examining one portion of a voluntary
industry standard, as opposed to the peer-reviewed warning
system (the Uniform Label) developed in 1999 by experts in the
PWC industry, regulators in the recreational boating field, and
the organizations promulgating industry standards. (Def. Br. at
Mr. Kitzes claims that no elaborate testing needed to be
done here, but without any testing at all, his opinion is just
Mr. Kitzes’ “methodology” of reviewing photographs
and relying on a voluntary generalized industry standard that
proclaims that warning labels should be placed where they are
readily visible to the intended user does not pass muster under
Daubert and Kumho.
In Masterson v. BJ Stores, No. 03-3202, 2007 WL 6560686
(D.N.J. Mar. 20, 2007), a failure to warn case involving a
plaintiff who injured herself riding a bodyboard, the Court
excluded Mr. Kitzes’ testimony on reliability grounds because he
admitted that he “failed to test the effectiveness of such a
warning or point to industry practice at the time the bodyboard
was manufactured.” (Id. at 14.)
As a result, the court held
that Mr. Kitzes’ opinions were “extremely questionable” and not
reliable under Daubert.
The court explained that “Kitzes’
methodology would seem to only support his conclusions on how
[Defendant] should have performed and maintained a product
safety management program.” (Id. at 16.); see also S.S. Leatt
Corp., No. 12-483, 2013 WL 3714142, at *18 (N.D. Oh. July 15,
2013)(“Even acknowledging that Kitzes has expertise in the field
of ‘product safety management’ and that such expertise is or
could be relevant to some issue or issues raised in the case,
there is insufficient information and analysis in Kitzes's
report to conclude that Kitzes employed a ‘reliable’ methodology
in reaching his ‘conclusions’ such that his opinions are
Similarly, here, Mr. Kitzes has not tested
whether a warning on the passenger seat would be more effective
than the warnings in the front and the rear, nor could he point
to any manufacturer who put a warning on the passenger seat at
the time of the accident.15
The Court also finds Hickerson v. Yamaha Motor Corp.,
U.S.A., No. 13-2311, 2016 WL 4367141 (D.S.C. Aug. 16, 2016) to
be persuasive regarding the reliability of
Mr. Kitzes’ “move-
There, in a similar fact pattern to
the instant case, Plaintiff, wearing a two-piece bathing suit
and not a wetsuit, rode as a passenger on a PWC and fell off,
sustaining serious injuries. Hickerson, 2016 WL 4367141 at *1.
There were two warnings on the PWC, one below the handlebars in
front of the PWC’s operator, and another toward the rear of the
PWC, but Plaintiff did not read either warning. Id.
brought a failure to warn suit against Yamaha, and supported her
claim with expert testimony from Dr. Anand Kasbekar, who opined
that “the warnings and instructions used by defendants are
inadequate and insufficient given the potential for extremely
serious injuries.” Id. at *3.
Dr. Kasbekar proposed that an
additional warning should have been placed on the passenger
seat, but the court excluded his testimony “due to its
Plaintiff points out that the recently-released 2016 Kawasaki
Jet Ski has a label on the passenger seat, which demonstrates
feasibility. (Opp’n at 36-37; Reply Br. at 8.) But the court in
Masterson held that “[o]n its own, the warning that post-dates
the purchases of the bodyboard at issue here cannot be relied
upon to demonstrate what [Defendant] knew or should have known
the year prior.” Masterson, 2007 WL 6560686 at 15. As a result,
Mr. Kitzes cannot rely on the Kawasaki design as part of his
methodology in this case, as it is not relevant.
unreliability under the standards of Fed. R. Evid. 702,” since
he had “not tested his proposed alternative warning system,” and
that “he provides no specific relevant research or studies . . .
on which he relies.” Id.
Defendant argues that here, as in Hickerson, Mr. Kitzes’
theory that a third warning of the need to wear protective
bottoms to prevent orifice injury must be placed on the seat has
no support in data or authoritative scientific literature or
studies. (Reply Br. at 9.)
Plaintiff argues that Hickerson is
inapposite because that court’s ruling on the admissibility of
expert testimony “actually supports” Plaintiff’s position since
the court found Dr. Kasbekar “qualified as an expert” and that
unlike Dr. Kasbekar, Mr. Kitzes “has authored many warnings from
start to finish that would be ready to be placed on a product
and has written a peer reviewed article on warnings.” (Opp’n at
Here, while Mr. Kitzes relies on an ANSI standard
to opine on the placement of the warning location, he has failed
to articulate his methodology supporting how he arrived at the
conclusion that a passenger seat warning is “readily visible”
under the standard, and how the existing front and rear warning
system falls short.
He provides no reason why his conclusion is
not simply ipse dixit.
As a result, the Court finds that Mr.
Kitzes’ reports and testimony are unreliable.
analysis could stop here, for the sake of completeness, the
“fit” prong is Daubert is briefly examined below.
Finally, the “fit” requirement is based upon the text of
Rule 702, which requires that an “expert’s scientific, technical
or other specialized knowledge . . . help the trier of fact to
understand the evidence or to determine a fact in issue.” Fed.
R. Evid. 702(a).
To be helpful, expert testimony must be
“sufficiently tied to the facts of the case that it will aid the
jury in resolving a factual dispute.” United States v. Schiff,
602 F.3d 152, 173 (3d Cir. 2010)(quotation marks and citation
Conversely, “expert evidence which does not relate to
an issue in the case is not helpful.” United States v. Ford, 481
F.3d 215, 219 n.6 (3d Cir. 2007) (quotation marks and citation
omitted). “The standard is not that high, ‘but is higher than
bare relevance.’” Schiff, 602 F.3d at 173 (citation omitted).
Plaintiff argues that Mr. Kitzes’ report and testimony
“succinctly informs” where Defendant “has fallen short in its
attempt to warn the public, and female passengers in particular,
about the potential for these horrific injuries”; as a result,
Mr. Kitzes’ testimony “will assist the trier of fact in
understanding plaintiff’s position that the orifice warning
needs to be conspicuous and on the seat where a passenger such
as Ms. Ruggiero has an opportunity to read it and heed its
message.”(Opp’n at 38.)
But Mr. Kitzes’ testimony focuses more
on the general industry standards and the history of such
standards, and is not sufficiently tied to the facts of this
case, i.e., whether or not Ms. Ruggiero would have seen this
passenger seat warning, as well as why the Defendant’s labeling
system would not have been “readily visible” to a passenger, as
the ANSI standard states.
Mr. Kitzes’ opinion that the labels
are not visible to the passenger is not grounded to the actual
watercraft at issue here, which he never examined or measured.
Mr. Kitzes’ proposed testimony simply does not fit the actual
warning label system in this case.
A lay juror would be in as
good, or perhaps better, position to determine this issue of
fact, aided by actual measurements or observations, of the PWC
at trial, as discussed in Part IV.B, below.
For all of these reasons, Yamaha’s motion to exclude Mr.
Kitzes’s opinion on admissibility grounds under Federal Rule of
Evidence 702 will be granted.
B. Need of Expert Testimony
Plaintiff argues that even without Mr. Kitzes’ testimony,
she can still prove her claim of failure to warn because the
allegations of negligence against Defendant are “simple” and a
“juror who possesses average judgment and experience does not
need expert testimony to understand that a warning on a product
must be conspicuous and must be placed in a location where the
user of the product intended to be warned can see it.” (Opp’n at
On the other hand, Defendant argues that the FZR is a
complex instrumentality and that the “adequacy of the FZR’s
warnings system and the need for alternative warnings require
application of specialized knowledge in human factors
engineering, the use, operation, and transportation of the PWC,
the development and testing of the Uniform Label, and applicable
warning standards, all of which are beyond the ken of an average
juror.” (Reply Br. at 9.)
The Court tends to agree with
Plaintiff, as now discussed.
A plaintiff may prove the existence of a product defect by
relying on the testimony of an expert, or alternatively, a
plaintiff may proffer circumstantial evidence of a defect,
including use, handling, and operation of the product. Lauder v.
Teaneck Volunteer Ambulance Corps., 368 N.J. Super 320, 331 (App
However, expert testimony is required in a warning
defect case where the subject matter “falls outside of the
common knowledge of the factfinder and depends on scientific,
technical, or other specialized knowledge.” Jerista v. Murray,
883 A.2d 350, 364 (N.J. 2005); see also Butler v. Acme Mkts.,
Inc., 445 A.3d 1141, 1147 (N.J. 1982) (stating that expert
testimony is necessary where “the matter to be dealt with is so
esoteric that jurors of common judgment and experience cannot
form a valid judgment”); Macri v. Ames McDonough Co., 211 N.J.
Super. 636, 642 (App. Div. 1986) (requiring expert testimony
where subject matter is such that jurors of common judgment and
experience cannot “make a determination without the benefit of
the information and opinions possessed by a person with
Where an “average juror can deduce
what happened without resort to scientific or technical
knowledge, expert testimony is not mandated.” Jerista, 883 A.2d
The Court finds that Plaintiff can proceed without expert
testimony in this case.
While the PWC itself is certainly a
complex instrumentality, here, given that the contents of the
warnings are not at issue, it is not necessarily beyond the
common knowledge of an average juror to determine whether the
placements of the warnings were reasonably visible to a
passenger using the PWC.
The jury can observe at trial what
warnings are visible on the PWC and what warnings are not, and
Plaintiff can utilize eyewitness testimony.
The limited issue
of visibility therefore does not require expert testimony.
does not preclude Defendant from offering such testimony of
qualified experts who have used a reliable methodology
pertaining to this PWC or a prototype thereof.
C. Summary Judgment is Not Appropriate
Defendant argues that Plaintiff’s failure-to-warn claim
independently fails on summary judgment because Plaintiff cannot
prove that inadequate warnings proximately caused the damages
where she chose not to read the warnings. (Def. Br. at 28.)
Plaintiff responds that what is actually relevant is “what
plaintiff would have done if she saw and read a label warning of
the potential for orifice injuries prior to this accident.”
(Opp’n at 47.)
A cause of action for failure to warn is governed by the
New Jersey Products Liability Act (“PLA”), N.J.S.A. 2A:58C-1 et
Under Section 2 of the PLA, a plaintiff can prove that a
product was defective 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 . . .
failed to contain adequate warnings or instructions.
Id. at 2A:58C-2.
In a failure-to-warn claim, the defect
consists of the absence of an adequate warning concerning the
product’s potential for injury, and the plaintiff must prove
that the warning’s absence was the proximate cause of the harm.
Coffman v. Keene Corp., 628 A.2d 710, 716 (N.J. 1993).
manufacturer is not liable, however, where an adequate warning
is provided. N.J.S.A. 2A:58C-4; London v. Lederle Labs., 290
N.J. Super. 318, 327 (App. Div. 1996).
This statutory standard for determining the adequacy of a
product safety warning is essentially a codification of the
common law standard. Grier v. Cochran W. Corp., 308 N.J. Super.
308, 317 (App Div. 1998).
1. Adequate Warning
The PLA provides that “[i]n any product liability action
the manufacturer or seller shall not be liable for harm caused
by a failure to warn if the product contains an adequate warning
or instruction or, in the case of dangers a manufacturer or
seller discovers or reasonably should discover after the product
leaves its control, if the manufacturer or seller provides an
adequate warning or instruction. N.J.S.A. 2A:58C-4.
warning is defined as “one that a reasonably prudent person in
the same or similar circumstances would have provided with
respect to the danger . . . taking into account the
characteristics of, and the ordinary knowledge common to, the
persons by whom the product is intended to be used.” Id.; see
also Port Auth. of N.Y. and N.J. v. Arcadian Corp., 189 F.3d
305, 319 (3d Cir. 1999) (noting that the adequacy of the warning
is determined in part by “taking into account the
characteristics of, and the ordinary knowledge common to, the
persons by whom the product is intended to be used”); Repola v.
Morbark Indus., Inc., 934 F.2d 483, 491 (3d Cir. 1991)
(explaining that the PLA “adopts an objective negligence
standard in defining an adequate warnings”)(citations omitted).
Warnings may be included in printed materials packaged with the
product or on labels affixed to the product.
They may be in
words or pictures, and “pictorial symbols, rather than simply
words, may be required to adequately convey safety warnings to
some anticipated users.” Levey v. Yamaha Motor Corp., 361 N.J.
Super. 312, 318 (App. Div. 2003).
The form they take is
dictated by all of the circumstances, and the adequacy of the
chosen form is generally a question for the jury. Id.; see
Perlman v. Virtua Health, Inc., No. 01-651, 2005 WL 1038953, at
*4 (D.N.J. May 3, 2005)(explaining that the adequacy of a
product warning is a jury question); Grier v. Cochran Western
Corp., 308 N.J. Super 308, 317 (App Div. 1998)(same).
The Court finds that that there is a genuine dispute of
material fact as to whether or not the two existing warnings on
the PWC were adequate.
Plaintiff testified that she did not
read the front warning and “wasn’t aware” of its existence under
the handlebar. (Ruggiero Dep. 56:9-16.)
She also testified that
she never read the warning on the back of the PWC prior to or
after her injury.17 (Id. 62:8-17.)
testified that she has never operated a PWC, that she has only
been a passenger every time she has ridden a PWC, and that when
she boarded the day of the accident, Mr. Fimple was already on
the vessel. (Id. at 31:6-21; 46:7-14.)
on the PWC alone. (Id. at 45:10-11.)
Plaintiff also never sat
Plaintiff also points to
the testimony of Defendant’s expert Robert K. Taylor, P.E., who
The parties dispute whether Plaintiff actually saw or should
have seen the front and rear warnings, which cannot be resolved
on this summary judgment motion.
stated that “I would agree that once a passenger is seated on
the craft behind the operator, it would be difficult to read a
label in front of the handlebars or at the stern underneath the
grabhandle.” (Ex. F. to Opp’n at 27.)18
Mr. Taylor, when asked
if “when the passenger sits down that label may well be blocked
by the operator,” replied “[a]t that particular point in time
that may be true.” (Taylor Dep. at 52:7-15.)
a displayed warning would catch the attention of a reasonably
prudent passenger would contribute to the warning adequacy
As explained infra, the jury will be able to look at,
in a common sense way, whether the warnings were visible and in
a location where a reasonably typical passenger could see them.
2. Proximate Causation
Regarding causation, Defendant argues that even assuming
its warnings were inadequate, its warnings were not the
proximate cause of Plaintiff’s injury.
In failure to warn
cases, New Jersey has adopted a rebuttable “heeding
presumption,” affording a plaintiff “the use of the presumption
that he or she would have followed an adequate warning had one
been provided.” Coffman v. Keene Corp., 133 N.J. 581, 603
(1993); see also Mohr v. Yamaha Motor Co., Ltd., 2013 WL 3762719
Mr. Taylor also opined that “[t]he appropriate time to learn
of potential hazards and protective measures is well before you
are seated on the PWC and engaged in riding.” (Ex. F. to Opp’n
(App. Div. 2013).19
When the claim is a failure to warn, the
heeding presumption applies to shift the burden of production of
evidence to the defendant. Coffman, 133 N.J. at 603.
defendant must come forward with evidence such as “the
plaintiff’s knowledge of the very risk that the absent warning
was supposed to address,” or of “plaintiff’s attitudes and
conduct apart from knowledge of the product’s risk . . . .”
Sharpe v. Bestop, 314 N.J. Super. 54, 74 (App. Div. 1998); see
also id. at 77 (noting that it is “consistent with our evidence
rules” that a defendant “may only introduce rebuttal evidence of
a plaintiff’s failure to heed warnings if such evidence rises to
the level of habit or routine practice”).
At the outset, the Court has found no case in New Jersey
(or applying New Jersey law) where the heeding presumption was
utilized when there was already an existing warning on the
product, let alone two warnings, as in this case.
that the court adopts the heeding presumption, Defendant has
offered evidence, from Plaintiff’s deposition, where Plaintiff
states that it never occurred to her that she ought to have read
The heeding presumption “serves to reinforce the basic duty to
warn – to encourage manufacturers to produce safer products, and
to alert users of the hazards arising from the use of those
products through effective warnings.” Coffman, 133 N.J. at 599.
As one court has explained, “the heeding presumption was adopted
for the express purpose of making a plaintiff’s burden less
onerous on the issue of proximate cause with respect to a
product warning.” Perlman, 2005 WL 1038953, at *5.
the labels on the PWC to see what the warnings were about.
(Ruggiero Dep. 71:25 – 72:7).
Defendant argues that Plaintiff
cannot establish proximate causation and the heeding presumption
is therefore rebutted because neither Plaintiff nor Mr. Fimple
read, or ever thought they should read, any of the warning
labels on the PWC. (Id.; Fimple Dep. 45:7 to 46:3.)
words, Defendant contends there is no evidence that had there
been a warning on the passenger seat, that Plaintiff would have
read and heeded it. See Coffman, 133 N.J. at 602-03; see also
Hickerson, 2016 WL 4367141, at *4-*5 (“[T]he plain language of
the multiple warnings, both near the front and rear part of the
PWC . . . reasonably advise anyone who rides the PWC, including
a passenger, of the very types of dangers Plaintiff endured and
moreover provides specific recommendations to prevent such
injuries . . . the evidence does not clearly support that a more
adequate warning would have mattered anyway—that is, that the
inadequate warnings caused her injuries.”).
However, Plaintiff, upon being asked the question: “[a]nd,
was it your habit, before June of 2012, that when you saw there
was a sign that said warning, that you would read those
instructions so you can see exactly what it was that either the
manufacturer of the product or the company or the people who
placed that warning in there was trying to convey to you,”
responded that “[she] would look at it.” (Ruggiero Dep. 54:733
Further, she testified that she “wasn’t aware” of the
warning label in the front of the PWC, and presumably was not
aware of the warning label in the back because Mr. Fimple
covered it with a decal. (Id. at 56:13-16.)
There is no
evidence in the record that Ms. Ruggiero was aware of the risks
of using a PWC, and there is no evidence that she ignored any
warnings. Compare Scrofani v. Stihl Inc., 44 F. App’x 559, 563
(3d Cir. 2002) (affirming the entry of summary judgment for
defendant because plaintiff “acted in direct contravention of
numerous warnings contained therein” and that “[t]his disregard
of existing warnings demonstrates that [plaintiff] would have
ignored the most perfect of warnings”); Hickerson, 2016 WL
4367141, at *5 (noting that “the evidence does not clearly
support that a more adequate warning would have mattered
As a result, the Court finds that after a review of
Defendant’s rebuttal evidence, reasonable minds could differ as
Additionally, the following exchange occurred during
Q: Is it your habit – or was it your habit before June
30th, 2012, to read warnings and follow them?
A: If I see a warning, I read it.
Q: And follow it?
A: I follow it, just like I wear a seat belt every
day when I drive.
(Ruggiero Dep. 142:12-18).
to whether an adequate warning, if given, would have been read
and heeded by the plaintiff.
At the very least, this presents
the jury an opportunity to conclude that Plaintiff would have,
in response to an adequate warning, done something differently.
Thus, a genuine issue of material fact remains for trial.
In sum, Defendant’s motion to strike the reports and
proposed testimony of William Kitzes will be granted, and
Defendant’s motion for summary judgment will be denied.
accompanying Order will be entered.
March 31, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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