MOORE et al v. KRAUSE MFG. CO., INC. et al
Filing
69
OPINION. Signed by Judge Renee Marie Bumb on 11/30/2018. (dmr)
[Dkt. Nos. 39, 40]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
WILLIAM MOORE and JOANN MOORE,
Plaintiffs,
v.
Civil No. 15-8085 (RMB/JS)
OPINION
KRAUSE MFG. CO., INC., et al.,
Defendants.
APPEARANCES:
McVAN & WEIDENBURNER
By: Brian P. McVan, Esq.
162 S. Easton Road
Glenside, Pennsylvania 19038
Counsel for Plaintiffs
McCARTER & ENGLISH, LLP
By: Kenneth R. Meyer, Esq.; Ryan A. Richman, Esq.;
Steve H. Del Mauro, Esq.
Four Gateway Center
100 Mulberry Street, P.O. Box 652
Newark, New Jersey 07101-0652
Counsel for Defendant Terex Corporation
BUMB, UNITED STATES DISTRICT JUDGE:
Plaintiff William Moore (“Plaintiff”) brought this action
against Defendant Terex Corporation (“Defendant” or “Terex”)
under New Jersey’s Products Liability Act (the “PLA”). N.J.
Stat. Ann. § 2A:58C–1 et seq.
Plaintiff alleges that he
sustained injuries when he fell from a hydraulic lift
manufactured by Defendant, which Plaintiff contends lacked
proper warnings and was defectively designed.
Plaintiff’s wife,
Joann Moore (together with her husband, “Plaintiffs”), also
asserts a claim for loss of consortium.
Defendant now moves to
exclude the testimony of Plaintiff’s expert, Dennis Eckstine
[Dkt. No. 39], and for Summary Judgment [Dkt. No. 40].1 For the
reasons set forth below, the Court will grant both Defendant’s
motion to exclude Plaintiff’s expert’s testimony and the motion
for summary judgment.
I.
FACTUAL AND PROCEDURAL BACKRGROUND
A. The Krause Hydraulic Elevator Model R-68
The instant action stems from a serious workplace accident
wherein Plaintiff William Moore sustained serious injuries to
both legs while using a product known as the Krause Hydraulic
1
The Court offered to hold a Daubert hearing, but the parties
stipulated that no such hearing was necessary and requested that
the Court decide the Daubert motion on the papers at the same
time as the motion for summary judgment. See Letter from Brian
P. McVan [Dkt. No. 67].
2
Elevator Model R-68 (the “R-68”).
The R-68 is a hydraulic lift
mechanism that can be attached to a forklift by sliding the
forks through the base of the R-68.
See Defendant’s Motion for
Summary Judgment (the “MSJ”)[Dkt. No. 40-2], p.1. After
attaching the R-68 to a forklift, the forklift operator can
elevate the R-68 by raising the forks and the R-68 operator can
further elevate the bucket through controls in the R-68 bucket
itself. Id.
During discovery, the parties produced evidence that Krause
Manufacturing Company (“Krause”) began manufacturing the R-68
model in the mid-1960s in Milwaukee, Wisconsin.
See Defendant’s
Rule 56.1 Statement of Undisputed Material Facts in Support of
the Motion for Summary Judgment (the “SUMF”) [Dkt. No. 40-1], at
¶ 51; see also Plaintiffs’ Brief in Opposition to Defendant’s
Motion for Summary Judgment (“Pls.’ MSJ Opp.”)[Dkt. 46], p. 1.2
2
The Court notes that Plaintiffs failed to comply with Local
Rule 56.1(a), which requires the party opposing a motion for
summary judgment to submit a response to Defendant’s Statement
of Undisputed Material Facts “addressing each paragraph of the
movant’s statement, indicating agreement or disagreement.”
Generally, under Local Rule 56.1(a), “any material fact not
disputed shall be deemed undisputed for the purposes of summary
judgment.” Plaintiffs imply that their Brief in Opposition to
the Motion for Summary Judgment contains disputed facts, noting
that “Plaintiffs do not dispute the facts set forth by the
Defendants in their Motion for Summary Judgment except as set
forth below.” Pls.’ MSJ Opp., p. 1. Absent a proper response to
Defendant’s SUMF, such assertions of disputed fact in an
opposition brief would not comply with Local Rule 56.1. In any
event, the Court finds that the purportedly disputed facts in
3
Defendant provided testimony suggesting that no R-68 models have
been manufactured in at least 50 years, as the R-68 stopped
being produced prior to 1978. SUMF, at ¶¶ 51-55.
Although the
entity formerly known as “Krause” no longer exists, it appears
that Krause, through a series of sales and mergers, was
ultimately subsumed by Terex Aerials, Inc., a wholly owned
(albeit inactive) subsidiary of Terex Corporation, the Defendant
in this matter.3
B. Plaintiff’s Accident and Complaint
Since 2000, Plaintiff William Moore has been employed by
Micro-Tek, Inc., in Cinnaminson, New Jersey, as an extruder
operator and mill operator, also performing other minor
maintenance as necessary. SUMF, at ¶ 2.
Micro-Tek owned an R-
68, which the company’s employees, including Plaintiff, used in
conjunction with a Hyster forklift to perform various jobs, such
as changing light bulbs and fixtures in the factory, running
cables for video cameras outside the factory, accessing the
facility’s roof for repairs, and trimming trees.
Id., at ¶¶ 3-
Plaintiffs’ brief are immaterial. As such, the Court construes
the material facts in Defendant’s SUMF as undisputed.
3
Defendant extensively briefs the argument that summary judgment
is warranted because Terex Corporation was improperly named as a
Defendant and has no connection to Krause or the R-68. See MSJ,
p.16-21. However, the Court need not reach this issue or
Defendant’s statute of limitations argument, as the Court’s
decision on the PLA claims is dispositive.
4
4, 22.
Prior to his accident, Plaintiff had safely operated the
R-68 and the forklift on numerous occasions. Id., at ¶¶ 14-15.
On January 17, 2014, after completing repairs to the roof
of Micro-Tek’s building, Plaintiff attempted to descend from the
roof in the bucket of the R-68, with the assistance of MicroTek’s in-house mechanic, Paul Havir, who was operating the
forklift on the ground. Id., at ¶¶ 29-31.
Unfortunately, when
Mr. Havir backed up the forklift, the R-68 caught on the edge of
the building, causing the mechanism to become dislodged and
slide off the forks of the forklift. Id., at ¶ 32.
The R-68
detached from the forklift and fell towards the ground,
seriously injuring the Plaintiff. As a result of the fall,
Plaintiff sustained multiple ankle and leg fractures to both of
his legs that required surgery. Id., at ¶¶ 32-37.
Plaintiffs commenced this action on November 17, 2015 and
filed the operative Second Amended Complaint on February 24,
2016 (the “Complaint”)[Dkt. No. 19].
Plaintiff William Moore
contends that as the sole owner of the ultimate successor entity
to Krause, Terex Corporation is responsible for his injuries
under the PLA, for allegedly failing to warn and defectively
designing the R-68.
Specifically, Plaintiff argues that the R-
68 should have (1) contained explicit warnings about the risk
that the R-68 could become dislodged from the forklift, and (2)
been designed with a mechanism to safely secure the base of the
5
R-68 to the forklift. Plaintiff Joann Moore also asserts a claim
loss of consortium as a result of the injuries to her husband.
C. The History of Micro-Tek’s R-68
At his deposition, Plaintiff William Moore testified that
he did not know when or from where Micro-Tek acquired its R-68,
but that Micro-Tek already owned it when he began working for
the company in 2000.
SUMF, at ¶ 5.
Mr. Havir testified that he
was “70 percent certain” that Micro-Tek acquired the R-68, along
with the Hyster forklift, from McKean Machinery Sales in 1996.
Id., at ¶ 6.
The testimony regarding the condition of the R-68
when Micro-Tek’s acquired the unit suggests that it had been
subjected to extensive wear and tear.
According to Mr. Havir,
the R-68 was non-operational when Micro-Tek acquired it, as
there was no battery and no electrical switch to adjust the
height of the platform.
Id., at ¶ 8.
Although a brochure for
the R-68 from the early 1970s notes that the unit should include
a “[l]ocking chain for engagement with fork lift” and swivel
caster wheels for easy floor handling, the R-68 acquired by
Micro-Tek around 1996 contained neither.
Micro-Tek did not start using the R-68 until 2008,
approximately twelve years after acquiring it, when Micro-Tek’s
owner asked Mr. Havir to repair the R-68 by replacing the
battery, running wires up the mast, and installing a new
6
electrical switch.
Id., at ¶¶ 6-9.
The R-68 was also painted
yellow at some point after Micro-Tek purchased it. Id., at ¶ 10.
D. Plaintiff’s Expert Dennis Eckstine
In support of his claims, Plaintiff presents testimony from
Dennis Eckstine, a purported expert on industrial work and
machine design.
After inspecting the R-68 and reviewing
materials relevant to Plaintiff’s accident, Mr. Eckstine
prepared a report, dated July 29, 2017 (“Eckstine’s
Report”)[Dkt. No. 39-8], which concludes that the “product is
defective and unreasonably dangerous because the mechanism by
which the man-lift attaches to the forklift was defective.”
Eckstine’s Report, p.12.
Mr. Eckstine acknowledges that there may have previously
been a chain that secured the R-68 to the forklift, but opines
that “the mechanism of attachment should have been permanently
affixed to the man-lift such that it could not become lost or
misplaced over time.”
See id.
As alternative, viable
approaches that could have cured this defect, Mr. Eckstine
proposes either (1) permanently welding the retaining chain to
the man-lift so that it cannot be lost over time, or (2)
incorporating a “heel pin” into the lower corners of the R-68 to
facilitate safe attachment to the forklift.
At his deposition,
Mr. Eckstine clarified that the heel pin could be attached to
the R-68 using a lanyard or chain.
7
See id.
Mr. Eckstine did
not offer any opinions on warnings, or a lack thereof, in either
his deposition or his expert report.4
II.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
Fed. R.
A fact is “material” only if it might impact the
“outcome of the suit under the governing law.”
Gonzalez v.
Sec’y of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir.
2012).
A dispute is “genuine” if the evidence would allow a
reasonable jury to find for the nonmoving party. Id.
In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable inferences and doubts should be resolved in favor of
the nonmoving party.
Melrose, Inc. v. City of Pittsburgh, 613
F.3d 380, 387 (3d Cir. 2010).
However, a mere “scintilla of
evidence,” without more, will not give rise to a genuine dispute
for trial.
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
4
Plaintiffs attempted to produce a supplemental report from Mr.
Eckstine, dated February 20, 2018, containing his opinions on
the failure to warn issue, after the close of discovery.
However, Magistrate Judge Schneider granted Defendant’s motion
to preclude the February 20, 2018 report [Dkt. No. 57] and
Plaintiffs did not appeal that ruling to this Court. Therefore,
any of Mr. Eckstine’s opinions on the failure to warn issue have
already been deemed inadmissible.
8
2001).
Moreover, a court need not adopt the version of facts
asserted by the nonmoving party if those facts are “utterly
discredited by the record [so] that no reasonable jury” could
believe them.
Scott v. Harris, 550 U.S. 372, 380 (2007).
In
the face of such evidence, summary judgment is still appropriate
“where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party.”
Walsh v.
Krantz, 386 F. App’x 334, 338 (3d Cir. 2010).
The movant has the initial burden of showing through the
pleadings, depositions, answers to interrogatories, admissions
on file, and any affidavits “that the non-movant has failed to
establish one or more essential elements of its case.”
Connection Training Servs. v. City of Phila., 358 F. App’x 315,
318 (3d Cir. 2009).
“If the moving party meets its burden, the
burden then shifts to the non-movant to establish that summary
judgment is inappropriate.”
Id.
In the face of a properly
supported motion for summary judgment, the nonmovant’s burden is
rigorous: he “must point to concrete evidence in the record”;
mere allegations, conclusions, conjecture, and speculation will
not defeat summary judgment.
Orsatti v. New Jersey State
Police, 71 F.3d 480, 484 (3d Cir. 1995); accord. Jackson v.
Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC. v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)
(“[S]peculation and conjecture may not defeat summary
9
judgment.”).
Moreover, “the court need only determine if the
nonmoving party can produce admissible evidence regarding a
disputed issue of material fact at trial”; the evidence does not
need to be in admissible form at the time of summary judgment.
FOP v. City of Camden, 842 F.3d 231, 238 (3d Cir. 2016).
III. ANALYSIS
A. Plaintiff’s Expert
Defendant argues that the Court must exclude testimony from
Plaintiff’s purported expert, Dennis Eckstine, on the basis that
his opinion, that the R-68 was defectively designed, is
speculative and subject to exclusion under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Rule 702 of
the Federal Rules of Evidence.
This Court agrees.
Rule 702 states as follows:
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
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 in the case.
Rule 702 “requires that only reliable testimony, offered
with a sufficient factual basis be admitted.” JVI, Inc., v.
Truckform, Inc., No. 11–6218, 2012 U.S. Dist. LEXIS 181769, at
*10 (D.N.J. Dec. 26, 2012).
As applied in the Third Circuit, in
10
order for an expert's opinion to be reliable, the expert must
have “good grounds” for his belief. The opinion must be based on
the “methods and procedures of science” and not merely on
“subjective belief or unsupported speculation.” In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717, 742 (3d Cir.1994)
(quoting Daubert, 509 U.S. at 589); see also Oddi v. Ford Motor
Co., 234 F.3d 136, 144–46 (3d Cir.2000).
Defendant argues that Mr. Eckstine’s opinion, that the R-68
was defectively designed, must be excluded because it is based
on speculation, rather than facts or any “scientific, technical,
or other specialized knowledge.” See Defendant’s Motion to
Exclude Dennis Eckstine (the “Exclusion Motion”)[Dkt. No. 39-1],
p. 18-19. Mr. Eckstine admits that the R-68 may have previously
included a mechanism for securely attaching the R-68 to the
forklift, but states that he does not know for sure how that
previous mechanism was affixed to the R-68 or whether it was
intended to be permanent.
at ¶¶ 83-89.
See Eckstine’s Report, p. 12; SUMF,
Mr. Eckstine suggests welding a chain to the R-68,
as a permanent solution that would resolve the R-68’s defect,
but cannot say for sure that the R-68 was not originally
manufactured with a chain mechanism welded to the base. SUMF, at
¶¶ 83-89.
In fact, at his deposition, Mr. Eckstine admitted
that a broken weld mark on the base of Micro-Tek’s R-68 could
11
have been the location of a chain or loop that was once welded
to the R-68.
Id.
Plaintiff largely concedes that Mr. Eckstine does not
possess any unique background knowledge about the R-68 and that
his opinions are not based on any specialized methodology.
Rather, Plaintiff asserts that Mr. Eckstine’s opinion is based
on the “common sense” proposition that the original chain must
not have been “permanently” attached, if it is no longer affixed
to the R-68. Plaintiffs’ Brief in Opposition to the Motion to
Exclude Dennis Eckstine (“Pls.’ Exclusion Opp.”)[Dkt. No. 47-2],
p. 12.
However, as Defendant points out, it is also common
sense that a 50 year-old piece of construction equipment, with
signs of substantial wear and tear, may have sustained damage
that dislodged a component, intended as “permanent,” at some
point after it was manufactured, but before it was acquired by
Micro-Tek.
See Exclusion Motion, p. 19-21.
Mr. Eckstine fails
to support his conclusions with reasonable, fact-based,
methodical analysis, which renders his opinions unreliably
speculative.
Mr. Eckstine also fails to specify how a heel pin
affixed to the R-68 with a lanyard or a chain could properly be
considered “permanent.” SUMF, at ¶¶ 90-95.
This internal
inconsistency, too, is fatal to the reliability of Mr.
Eckstine’s opinions.
12
Because Mr. Eckstine’s speculative opinions are not based
on any “good grounds,” they do not meet the reliability
threshold for admission.
In this instance, the Court must
exercise its “gatekeeping role” and exclude the testimony of
Plaintiff’s expert. Daubert, 509 U.S. at 597, 113 S.Ct. 2786.
B. Plaintiff’s PLA Claims
In order to prevail on the design defect claim, Plaintiff
must prove that “(1) the product was defective; (2) the defect
existed when product left the hands of the defendant; and (3)
the defect caused [an] injury to a reasonably foreseeable user.”
Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993). “Whether a
product is defective depends on whether it ‘is not reasonably
fit, suitable and safe for its intended or reasonably
foreseeable purposes.’” McGarvey v. G.I. Joe Septic Serv., Inc.,
293 N.J.Super. 129, 142 (N.J.App.Div.1996) (quoting Jurado, 131
N.J. at 385).
With respect to the failure to warn claim,
Plaintiff “must establish all the same elements required for an
action based on a defective product.” Mathews v. Univ. Loft Co.,
387 N.J.Super. 349, 362 (N.J.App.Div.2006) (quoting London v.
Lederle Labs., 290 N.J.Super. 318, 326, (N.J.App.Div.1996),
aff'd as modified by Batson v. Lederle Labs., 152 N.J. 14
(1997)).
Defendant contends that summary judgment is warranted on
both Plaintiff's design defect and failure to warn claims due to
13
a lack of adequate evidence to establish that the product was
defective at the time it was manufactured by Krause.
p. 23-26.
See MSJ,
Both state and federal courts in New Jersey have
acknowledged that proving that a defect existed when the product
left the hands of the manufacturer is “particularly difficult”
when a product is old, as the R-68 here is, and there is no
direct evidence that any defective condition existed when the
manufacturer sold the product. See, e.g., Strumolo v. Steelcase,
Inc., No. 13-1932, 2016 WL 8677209, at *6 (D.N.J. Aug. 26,
2016), reconsideration denied sub nom. Strumolo, 2017 WL 1217129
(D.N.J. Mar. 30, 2017); H.T. Rose Enters., Inc. v. Henny Penny
Corp., 722 A.2d 587, 595 (N.J. Super. Ct. App. Div. 1999); see
also Scanlon v. Gen. Motors Corp., Chevrolet Motor Div., 65 N.J.
582, 593 (1974)(“Generally speaking, the older a product is, the
more difficult it is to prove that a defect existed while in the
control of the manufacturer”).
Given the difficulty of evaluating an older product like
the R-68, the proper test is whether the circumstantial evidence
supports a reasonable inference that it is more likely than not
that the defect existed prior to sale. H.T. Rose, 722 A.2d at
595. Stated differently, what is required is “proof sufficient
to support a conclusion that ‘in the normal course of human
experience an injury would not have occurred at this point in
14
the product's life span had there not been a defect attributable
to the manufacturer.’” Id.
The New Jersey Supreme Court has found that a product's
age, prior usage, expected life span, durability, and operation
without maintenance are “important considerations in determining
whether an inference is permissible.” Scanlon, 65 N.J. at 593;
see also Navarro v. George Koch & Sons, Inc., 512 A.2d 507, 517
(N.J. Super. Ct. App. Div. 1986) (dismissing manufacturing and
design defect claims against oven latch manufacturer where
evidence demonstrated that latches had been used daily for six
years and had been maintained minimally, if at all, finding that
it could not reasonably be inferred that the alleged defect
existed while the product was in the control of the
manufacturer).
In this matter, the testimony regarding the physical
condition of Micro-Tek’s R-68 unit indicates that the product
underwent substantial modifications during the half-century
between its production and Plaintiff’s accident.
During
discovery, the parties uncovered a Krause brochure for the R-68
from some point during the early 1970s. SUMF, at ¶¶ 64-66, 68.
The R-68 brochure notes that the mechanism should include a
“[l]ocking chain for engagement with fork lift” and swivel
caster wheels for easy floor handling.
Id.
However, the R-68
acquired by Micro-Tek around 1996 contained neither the locking
15
chain for engagement with the forklift nor the swivel caster
wheels.
Id. at ¶¶ 67, 69.
In addition to lacking a working
battery or control switch, Micro-Tek’s R-68 had also been
modified with two toggle-bolts (“T-bolts”) on the base. Id.
Furthermore, the R-68 had been so extensively and
indiscriminately painted-over in yellow that the parties could
not even initially determine the make and model of the
mechanism; the parties had to scratch away the paint to reveal
the original orange paint color and the nameplate identifying
the mechanism as an R-68 manufactured by Krause. See Pls.’
Exclusion Opp., p.2.
Given the absence of admissible expert testimony from
Plaintiff, the evidence of the significant age, wear, and
modifications to the R-68 unit in question, and the Krause
brochure showing that the R-68 was designed to include a chain
to secure the unit to a forklift, no reasonable fact-finder
could infer that the R-68 in question was defective when it left
the hands of the manufacturer.
Additionally, because the Court
previously granted Defendant’s motion to preclude Plaintiff’s
supplemental expert report, which offered testimony on the
failure to warn issue, the record is completely devoid of any
testimony supporting Plaintiff’s failure to warn claim. See
supra note 4.
Finally, because Plaintiff has failed to
establish any theory of liability against Defendant, the loss of
16
consortium claim by Plaintiff Joann Moore must also necessarily
fail. See Horvath v. Rimtec Corp., 102 F.Supp.2d 219, 236
(D.N.J.2000) (“[t]he right of the spouse to recover on a loss of
consortium claim depends upon the existence of tortious conduct
on the part of the defendants”).
IV.
CONCLUSION
For the reasons set forth above, Defendant’s motions to
exclude Mr. Eckstine’s testimony and for summary judgment will
be granted.
entirety.
Accordingly, this matter will be dismissed in its
An appropriate Order shall issue on this date.
DATED: November 30, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
17
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