KUHAR et al v. PETZL COMPANY et al

Filing 277

MEMORANDUM OPINION. Signed by Judge Jerome B. Simandle on 12/10/2018. (dmr)

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

NICHOLAS KUHAR, et al.,

HONORABLE JEROME B. SIMANDLE

Plaintiffs,
Civil Action
No. 16-395 (JBS/JS)

v.
PETZL COMPANY, d/b/a PETZEL,
et al.,

MEMORANDUM
OPINION

Defendants.

SIMANDLE, District Judge:
This matter is before the Court on the motion of
Defendant/Third Party Defendant Brighton Best, Inc.,
individually and as successor-in-interest to Porteous Fastener
Company, (hereinafter “Defendants Brighton and Porteous”)
seeking summary judgment. (See Brighton’s Mot. [Docket Item
192].) The motion is opposed by Plaintiffs Nicholas and Julie
Kuhar (hereinafter “Plaintiffs”) and by Defendant/Third Party
Plaintiff Uintah Fastener & Supply (hereinafter “Defendant
Uintah”). (See Pls.’ Opp’n [Docket Item 211]; Uintah’s Opp’n
[Docket Item 219].) For the reasons set forth below the Court
will deny Defendants Brighton and Porteous’ motion for summary
judgment.

1.

Factual and Procedural Background.1 The factual and

procedural background of this case was previously detailed
in the Court’s prior opinions, and shall only be repeated herein
insofar as necessary for the disposition of the present motion.
2.

Standard of Review. At summary judgment, the moving

party bears the initial burden of demonstrating that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(a);
accord Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once
a properly supported motion for summary judgment is made, the
burden shifts to the non-moving party, who must set forth
specific facts showing that there is a genuine issue for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In
reviewing a motion for summary judgment, the court is required
to examine the evidence in light most favorable to the nonmoving party and resolve all reasonable inferences in that
party’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey
v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

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For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to the Second Amended Complaint, [Docket
Item 103] when appropriate, Defendant Brighton and Porteous’
Statement of Material Facts, [Docket Item 192-11], Plaintiffs’
Response to Statement of Material Facts, [Docket Item 211, 1-2 on
the docket], Defendant Uintah’s Response to Statement of
Undisputed Facts and Counter Statement of Facts, [Docket Item 21817], and related exhibits and documents. Where not otherwise noted,
the facts are undisputed by the parties.
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3.

A factual dispute is material when it “might affect

the outcome of the suit under the governing law,” and genuine
when “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The
non-moving party “need not match, item for item, each piece of
evidence proffered by the movant,” but must present more than a
“mere scintilla” of evidence on which a jury could reasonably
find for the non-moving party. Boyle v. Cnty. of Allegheny, Pa.,
139 F.3d 386, 393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at
252).
4.

Discussion. In the present motion, Defendants Brighton

and Porteous seek summary judgment in their favor with regard to
all claims currently pending against them in this case. (See
B&P’s Br. [Docket Item 192-12].) Defendants Brighton and
Porteous assert (a) that they were not involved in the design or
manufacture of the bolt at issue in this suit, (b) that there is
no evidence that they supplied the bolt at issue in this suit,
and (c) that Plaintiffs have not filed an expert report that
implicates Defendants Brighton and Porteous in the accident at
the center of this suit. (See id.)2

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Defendant Brighton further asserts that there is no genuine
dispute of material fact in this case. (See B&P’s Br. [Docket Item
192-12], 16.) However, the Court shall not treat this as a separate
justification for granting summary judgment, because it is in fact
the standard by which Defendant Brighton’s other bases for relief
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a.

Involvement in Design and Manufacture. Defendants

Brighton and Porteous assert that they are entitled to summary
judgment because there has been no evidence presented that they
were involved in the design or manufacture of the bolt at issue
in this case. (B&P’s Br. [Docket Item 192-12], 10-11.)
Plaintiffs and Defendant Uintah respond that it is not necessary
to show that Defendants Brighton and Porteous were involved in
the design or manufacture of the bolt, because New Jersey law
attaches product liability not only to manufacturers, but also
to sellers, resellers, distributors, and other entities within a
product’s supply chain. (Pls.’ Br. [Docket Item 211], 2-3
(citing N.J. STAT. ANN. § 2A:58C-2; Straley v. United States, 887
F. Supp. 728, 744 (D.N.J. 1995); Oscar Mayer Corp. v. Mincing
Trading Corp., 744 F. Supp. 79, 84 (D.N.J. 1990)); Uintah’s Br.
[Docket Item 218], 4 (citing Soler v. Castmaster, Div. of H.P.M.
Corp., 98 N.J. 137, 145, (1984); McDermott v. TENDUN
Constructors, 211 N.J. Super. 196, 208 (App. Div. 1986).)
Defendant Uintah rightfully noted that Defendants Brighton and
Porteous relied on some of these same authorities. (See Uintah’s
Br. [Docket Item 218], 4.) New Jersey law states that “[a]
manufacturer or seller of a product shall be liable in a product
liability action . . . .” N.J. Stat. Ann. § 2A:58C-2 (emphasis

must be judged, as explained, supra, not a separate basis for
relief in itself.
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added). As such, evidence that Defendants Brighton and Porteous
participated in the design or manufacture of the bolt is not
necessary in order for Defendants Brighton and Porteous to be
assigned liability in this case as a “seller.” Therefore,
Defendants Brighton and Porteous’ motion shall not be granted on
this basis.
b.

Evidence of Position in Supply Chain. Defendants

Brighton and Porteous further assert that they are entitled to
summary judgment on the basis that there is no “proof” that
either Defendant Brighton or Defendant Porteous supplied the
bolt at issue in this case. (B&P’s Br. [Docket Item 192-12], 1113.) Plaintiffs respond that whether or not either Defendant
Brighton or Defendant Porteous supplied the bolt at issue in
this case is “an issue of material fact” and that “the jury
[should be] permitted to determine” whether they supplied the
bolt. (Pls.’ Br. [Docket Item 211], 2.) Defendant Uintah
responds that Defendants Brighton and Porteous admit that they
have sold the type of bolt at issue in this case continuously
since 1996 and that they supplied such bolts to Uintah during
the relevant time period. (See Uintah’s Br. [Docket Item 218], 5
(citing Defendants Brighton and Porteous’ Responses to
Interrogatories [Docket Item 192-5], ¶ 1; Deposition of Dustin
Henderson [Docket Item 192-8], 30:22-32:2).) Defendant Uintah
further notes that Defendants Brighton and Porteous have

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explicitly stated that they cannot deny that they supplied the
exact bolt involved in this case to Uintah. (Id. (citing
Deposition of Dustin Henderson [Docket Item 192-8], 36:10-17).)
Defendant Uintah further directs the Court’s attention to the
fact that neither Defendants Brighton and Porteous nor Defendant
Uintah are in possession of sales records from the relevant time
period to show definitively whether or not the bolt in question
was supplied to Defendant Uintah by Defendants Brighton and
Porteous. (Id. at 5-7.) However, Defendant Uintah has provided
evidence that it purchased the type of bolt in question in this
case from Defendants Brighton and Porteous for a long period of
time, beginning at least in 1996 and continuing to the present.
(Id. 5-9 (citing Defendants Brighton and Porteous’ Responses to
Interrogatories [Docket Item 192-5], ¶ 1; Deposition of Dustin
Henderson [Docket Item 192-8], 30:22-32:2); Sales Records
[Docket Items 218-3, 218-6, 218-7, 218-8, 218-9, 218-10, 218-11,
218-12, 218-13, 218-14, 218-15, 218-16]).) Taking all reasonable
inferences in the light most favorable to the non-moving
parties, in this case Defendant Uintah and Plaintiffs, the Court
finds that a continuing course of business between Defendants
Brighton and Porteous and Defendant Uintah, both before and
after the bolt in issue in this case was procured, can lead to
the reasonable inference that the bolt was procured by way of
this course of business. Therefore, the Court finds that there

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is sufficient circumstantial evidence on the record for a
reasonable finder of fact to find that Defendants Brighton and
Porteous supplied the bolt in question in this case to Defendant
Uintah. Therefore, Defendants Brighton and Porteous’ motion
shall not be granted on this basis.
c.

Expert Report. Defendants Brighton and Porteous

finally assert that they are entitled to summary judgment
because Plaintiffs have not produced an expert report that
specifically names Defendants Brighton and Porteous as liable
for the injuries in this case. (B&P’s Br. [Docket Item 192-12],
13-15.) However, Defendants Brighton and Porteous do not cite
any legal authority that stands for the proposition that a
plaintiff’s expert report in a product liability suit must
specifically name alleged sellers of the product in order for
liability to attach to those alleged sellers. (See generally
id.) Indeed, this argument appears to be a restatement of
Defendants Brighton and Porteous’ argument regarding the design
and manufacture of this bolt, addressed, supra. Defendant Uintah
responds to Defendants Brighton and Porteous’ argument by
asserting that whether they are specifically named in the expert
report “is meaningless to [Defendants Brighton and Porteous’]
potential liability.” (Uintah’s Br. [Docket Item 218], 9-10.)
The Court finds that it is not necessary for Defendants Brighton
and Porteous to be specifically named by Plaintiffs’ expert in

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order for the question of liability to go to trial. Therefore,
Defendants Brighton and Porteous’ motion shall not be granted on
this basis and their motion [Docket Item 192] shall be denied.
5.

Conclusion. For the reasons set forth above,

Defendants Brighton and Porteous’ motion for summary judgment
[Docket Item 192] shall be denied. An accompanying Order will be
entered.

December 10, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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