MCMANUS v. BARNEGAT REHABILITATION AND NURSING CENTER et al

Filing 82

OPINION filed. Signed by Judge Brian R. Martinotti on 5/29/2018. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

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Plaintiff,
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v.
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BARNEGAT REHABILITATION AND
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NURSING CENTER and CROWN EQUIPMENT :
CORPORATION,
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Defendants.
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KEVIN MCMANUS,

Civil Action No. 15-2109 (BRM)(LHG)

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are (1) Defendant Crown Equipment Corporation’s (“Crown”) Motion
for Summary Judgment (ECF No. 65) and (2) Defendant Barnegat Operating Company, L.P. d/b/a
Barnegat Nursing and Rehabilitation Center’s (“Barnegat”) Motion for Summary Judgment (ECF
No. 66). Plaintiff Kevin McManus (“McManus”) opposes both motions. (ECF Nos. 73 & 69.)
Pursuant to Federal Rule of Civil Procedure 78(b), the Court did not hear oral argument. For the
reasons set forth below, Crown’s Motion for Summary Judgment is GRANTED, and Barnegat’s
Motion for Summary Judgment is DENIED.
I.

BACKGROUND

This personal injury lawsuit “arises out of a one-person accident [(the “Accident”)] that
occurred on August 3, 2012, while [McManus] was unloading a pallet of materials with a manual
pallet truck at [Barnegat].” (Crown’s Statement of Undisputed Material Facts in Supp. of its Mot.
for Summ. J. (ECF No. 65-2) ¶ 2); Pl.’s Resp. to Crown’s Statement of Material Facts (ECF No.
74) ¶ 2.) McManus alleges Barnegat failed to provide a safe means to make deliveries to its
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building and claims the pallet truck (the “Pallet Truck”), which Crown manufactured,
malfunctioned during the Accident. (Barnegat’s Statement of Undisputed Material Facts in Supp.
of its Mot. for Summ. J. (ECF No. 66) ¶¶ 1-2); Pl.’s Resp. to Barnegat’s Statement of Material
Facts (ECF No. 70) ¶¶ 1-2.) On July 25, 2014, McManus filed a six-count Complaint (ECF No. 11) in the Superior Court of New Jersey, Ocean County, Law Division, under Docket Number OCNL2120-14, asserting a claim for negligence against Barnegat (Count I), and a claim for negligence
and/or strict liability against Crown (Count III). 1 On March 24, 2015, Crown removed the case to
this Court. (ECF No. 1.)
A. The Pallet Truck
McKesson Medical purchased the Pallet Truck, which was delivered fully assembled. (ECF
No. 74-1 ¶ 29; ECF No. 75-1 ¶ 29.) The Pallet Truck was from the Crown PTH 50 series (“PTH
50”). (ECF No. 65-2 ¶ 6; ECF No. 74 ¶ 6.) McManus and Crown dispute the age of the Pallet
Truck. (McManus’s Additional Statement of Undisputed Material Facts in Opp’n to Crown’s Mot.
for Summ. J. (ECF No. 74-1) ¶ 5); Crown’s Resp. to Pl.’s Additional Statement of Material Facts
(ECF No. 75-1) ¶ 5.) McManus claims the Pallet Truck “was a brand new pallet jack and had been
purchased from Crown by McKesson [Medical] within three (3) months prior to” the Accident.
(ECF No. 74-1 ¶ 5.) Crown disputes this and contends McManus never identified the serial number
for the Pallet Truck, which prevented Crown from producing a sales invoice for the item. (ECF

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McManus also asserted: (1) a negligence claim against Heartland Rehabilitation Services, which
he alleged is the parent company of Barnegat (Count II); (2) a claim for negligence and/or strict
liability against John Doe defendants, which he alleges are Crown’s parents and/or successors in
interest (Count IV); (3) a claim for negligence and/or strict liability alleged jointly and severally
against all defendants; and (4) a claim for discovery against his employer, McKesson Medical, for
discovery. (ECF No. 1-1.) Heartland Rehabilitation Services was terminated pursuant to the Notice
of Removal. (ECF No. 1-4.) After the Court denied McManus’ Motion to Amend the Complaint
to assert a fraudulent concealment/spoliation claim against McKesson Medical (ECF No. 62) the
parties agreed McKesson Medical should be dismissed from the case. (ECF No. 78.)
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No. 75-1 ¶ 5.)
The PTH 50 “is controlled using a spring-loaded metal handle that can be positioned from
vertical to almost horizontal. (ECF No. 65-2 ¶ 7; ECF No. 74 ¶ 7.) The PTH 50’s handle features
an actuating lever. (ECF No. 65-2 ¶ 8; ECF No. 74 ¶ 8.) To raise pallets, a user adjusts the PTH
50’s actuating lever to the “raise” position and then pumps the handle to cause the forks to lift the
pallet via hydraulics. (ECF No. 65-2 ¶ 8; ECF No. 74 ¶ 8.) To move the PTH 50, a user adjusts the
actuating lever to the “neutral” position. (ECF No. 65-2 ¶ 9; ECF No. 74 ¶ 9.) Finally, a user
adjusts the actuating lever to the “lower” position to lower the forks. (ECF No. 65-2 ¶ 10; ECF
No. 74 ¶ 10.) The farther the actuating lever is pulled up toward the handle, the faster the forks
will lower. (ECF No. 65-2 ¶ 11; ECF No. 74 ¶ 11.) The PTH 50 is designed so the handle’s
position—whether upright perpendicular to the ground, or lowered—does not affect the mechanics
of lowering the forks. (ECF No. 65-2 ¶ 12; ECF No. 74 ¶ 12.)
B. Deliveries to Barnegat and The Accident
At the time of the Accident, McManus working for McKesson Medical as a lead
driver/dispatcher, which required him to make deliveries once or twice a week. (ECF No. 65-2 ¶¶
3, 5; ECF No. 74 ¶¶ 3, 5.) Prior to the Accident, McManus had been to Barnegat twice before with
his colleague, Edward Thurston, who routinely made deliveries to Barnegat. (ECF No. 66 ¶ 7; ECF
No. 70 ¶ 7.) McKesson Medical employees had made deliveries to Barnegat every Friday since
McManus became a lead driver for the company in the summer of 2012. (ECF No. 66 ¶¶ 3, 11;
ECF No. 70 ¶¶ 3, 11.) McManus claims Barnegat required drivers to make deliveries to the rear
of the facility, which sloped downward toward the door. (ECF No. 65-2 ¶ 17; ECF No. 74 ¶ 17;
ECF No. 66 ¶ 12; ECF No. 70 ¶¶ 12.) McKesson Medical drivers had complained about making
deliveries to Barnegat, because on two occasions the truck was unloaded while on a slope and this
caused pallets to roll out of control. (ECF No. 66 ¶ 13; ECF No. 70 ¶ 13.) Because of this slope,
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McManus believed it was safer for two people to deliver pallets to Barnegat. (ECF No. 65-2 ¶ 20;
ECF No. 74 ¶ 20.) One of the workers would steer the pallet by holding the handle of the pallet
truck, while the other would hold the loaded pallet to slow it down. (ECF No. 74-1 ¶ 44; ECF No.
75-1 ¶ 44.) If the pallet load gained momentum, the pallet truck operator would lower the forks of
the pallet truck to drop the load and stop the momentum of the pallet truck. (ECF No. 74-1 ¶ 45;
ECF No. 75-1 ¶ 45.) However, on the date of the Accident, McManus made the delivery to
Barnegat by himself. (ECF No. 65-2 ¶ 22; ECF No. 74 ¶ 22; ECF No. 66 ¶ 15; ECF No. 70 ¶ 15.)
McManus received training on using the PTH 50 from McKesson Medical and received
training at least once a year on the general use of manual pallet trucks. (ECF No. 65-2 ¶ 13; ECF
No. 74 ¶ 13.) However, he did not receive any training on how to operate a pallet truck on a slope.
(ECF No. 74-1 ¶ 47; ECF No. 75-1 ¶ 47.) On the day of the Accident, McManus performed routine
inspections of the Pallet Truck. (ECF No. 74-1 ¶¶ 5-6; ECF No. 75-1 ¶¶ 5-6.) McManus made
several deliveries before the delivery to Barnegat and used the Pallet Truck at each of them. (ECF
No. 74-1 ¶ 35; ECF No. 75-1 ¶ 35.)
When he was making the delivery at Barnegat, McManus slid the Pallet Truck’s forks
under the pallet and began to back the pallet away from the interior wall of the truck in an “S” like,
or zigzag, manner “so the full weight of the pallet was not on him.” (ECF No. 74-1 ¶ 53; ECF No.
75-1 ¶ 53.) McManus made it halfway through the truck when the Pallet Truck suddenly picked
up momentum. (ECF No. 74-1 ¶¶ 61-62; ECF No. 75-1 ¶¶ 62-62.) To slow the Pallet Truck down,
McManus testified he hit the release lever, but the pallet did not drop. (ECF No. 74-1 ¶ 63.) Crown
denies the Pallet Truck malfunctioned. (ECF No. 75-1 ¶ 63.) McManus testified his arm became
tangled in the handle of the Pallet Truck, which dragged him to the back of the truck. (ECF No.
74-1 ¶ 65.) Despite this episode, McManus was able to complete the delivery to Barnegat, after
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which he radioed his supervisor at McKesson Medical, Eric Lambert (“Lambert”), and informed
him he had had an accident at Barnegat. (ECF No. 74-1 ¶¶ 68, 70; ECF No. 75-1 ¶¶ 68, 70.)
C. McKesson Medical’s Post-Accident Inspection of the Pallet Truck
McManus testified several McKesson Medical employees observed an inspection of the
Pallet Truck after the Accident in which the Pallet Truck did not function properly. (ECF No. 741 ¶¶ 72-74.) Specifically, the Pallet Truck’s forks did not drop properly unless the device’s handle
was positioned upright at a 90-degree angle. (Id. ¶ 74.) When the Pallet Truck’s handle was
positioned completely upright, the forks dropped immediately, but if the handle was in any other
position the forks dropped slowly. (Id. ¶¶ 75-76.) Lambert testified he tested the Pallet Truck after
the Accident and found the forks did not drop unless the handle was completely upright. (Id. ¶ 78.)
The Pallet Truck was stored at McKesson Medical’s warehouse after the accident, but the Pallet
Truck disappeared months later when the warehouse was demolished. (Id. ¶¶ 87-91.)
II.

LEGAL STANDARD

Summary judgment is appropriate “if 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 a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party,” and it is material only if it
has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks,
455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary
judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in
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his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,
(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “If the moving party will bear the
burden of persuasion at trial, that party must support its motion with credible evidence . . . that
would entitle it to a directed verdict if not controverted at trial.” Id. at 331. On the other hand, if
the burden of persuasion at trial would be on the nonmoving party, the party moving for summary
judgment may satisfy Rule 56’s burden of production by either (1) “submit[ting] affirmative
evidence that negates an essential element of the nonmoving party’s claim” or (2) demonstrating
“that the nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” Id. Once the movant adequately supports its motion pursuant to Rule
56(c), the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475
U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). 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 factfinder. Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be “no genuine issue as to any material fact,” however, if a party 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 322-23. “[A] complete
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failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).
III.

DECISION
A. Crown’s Motion for Summary Judgment

Crown argues it is entitled to summary judgment because: (1) the report of McManus’s
product liability expert, Thomas J. Cocchiola, P.E., C.S.P. (“Mr. Cocchiola”), is inadmissible; (2)
McManus has failed to proffer a prima facie products liability claim; and (3) even if Mr.
Cocchiola’s report were admissible, McManus has offered no proof of a manufacturing defect.
(Crown’s Br. in Supp. of its Mot. for Summ. J. (ECF No. 65-6) at 1-2.) The Court considers these
arguments in turn.
1. The Admissibility of Mr. Cocchiola’s Expert Report
Federal Rule of Evidence 702 governs the admissibility of expert testimony. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993). The Third Circuit has held “Rule 702
embodies three distinct substantive restrictions on the admission of expert testimony:
qualifications, reliability, and fit.” Karlo v. Pittsburgh Glass Works, LLC, 849 F.3d 61, 80 (3d Cir.
2017) (quoting Elcock v. Kmart Corp., 233 F.3d 734, 741 (3d Cir. 2000) (citing In re Paoli R.R.
Yard PCB Litig., 35 F.3d 717 (3d Cir. 1994))).
First, the witness must be qualified to testify as an expert.
Qualification requires that the witness possess specialized expertise.
We have interpreted this requirement liberally, holding that a broad
range of knowledge, skills, and training qualify an expert as such.
Second, the testimony must be reliable. In other words, the 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. An assessment
of the reliability of scientific evidence under Rule 702 requires a
determination as to its scientific validity. Third, the expert testimony
must fit, meaning the expert’s testimony must be relevant for the
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purposes of the case and must assist the trier of fact.
Calhoun v. Yamaha Motor Corp., U.S.A., 350 F.3d 316, 321 (3d Cir. 2003) (quotations and
citations omitted). Crown argues Mr. Cocchiola’s testimony is inadmissible based on all three
criteria. (ECF No. 65-6 at 7-8.)
a. Mr. Cocchiola’s Qualifications
The Third Circuit has held the standard for an expert’s qualifications is a liberal one.
Calhoun, 350 F.3d at 321; see also Elcock, 233 F.3d at 742. “For a court to qualify a witness to
testify as an expert, Rule 702 requires the witness to have ‘specialized knowledge’ regarding the
areas of testimony.” Waldorf v. Shuta, 142 F.3d 601, 625 (3d Cir. 1998). The expert can base his
or her specialized knowledge on practical experience or formal training. Id. (citations omitted).
The Third Circuit has stated the qualification standard is liberal, though “at a minimum, a proffered
expert witness . . . must possess skill or knowledge greater than the average layman.” Id. (quoting
Aloe Coal Co. v. Clark Equip. Co., 816 F.2d 110, 114 (3d Cir. 1987)).
Crown argues Mr. Cocchiola does not satisfy the “qualifications” criterion because “he has
no relevant prior training or experience in pallet truck manufacture or design that could qualify
him to testify in this matter.” (Id. at 9.) Crown also contends Mr. Cocchiola “has never been
involved in the manufacturing, designing, or proposing warnings for any material handling
equipment on the market today.” (Id. at 10.) Crown relies on Calhoun, in which the Third Circuit
affirmed the district court’s exclusion of a marine safety expert and a naval architecture/marine
engineering expert called to testify regarding the adequacy of a jet ski’s warning. (Id. at 10 (citing
350 F.3d at 318-19, 323).) The Third Circuit held, although an expert’s “background, education,
and training may provide an expert with general knowledge to testify about general matters, more
specific knowledge is required to support more specific opinions.” Calhoun, 350 F.3d at 322.
Crown argues Mr. Cocchiola should be similarly excluded because, while he is an engineer, he has
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no specific knowledge related to the design and manufacture of a product like the Pallet Truck.
(ECF No. 65-6 at 10.)
McManus argues Mr. Cocchiola satisfies the qualifications criterion. (Pl.’s Br. in Opp. to
Crown’s Mot. for Summ. J. (ECF No. 73) at 15.) McManus cites Mr. Cocchiola’s twenty-seven
years as an engineering consultant, including testifying as an engineering expert in twenty-one
other cases. (Id. at 16.) McManus points out Mr. Cocchiola’s service as an expert consultant in a
case involving a “walkie rider pallet truck,” which McManus argues is a product similar to the
Pallet Truck in this case. (Id. (citing Cocchiola Dep. 2 at 26:3-18).) Finally, McManus cites Mr.
Cocchiola’s affiliation with the American Society of Mechanical Engineers, the National Society
of Professional Engineers, the National Academy of Forensic Engineers, and the American Society
of Safety Engineers. (Id. at 16.)
The Court finds Mr. Cocchiola is satisfies the qualifications criterion. Mr. Cocchiola has
nearly three decades of engineering experience and has testified as an engineering expert in
numerous other cases. Significantly, he served as an expert consultant in a case involving a rider
pallet truck. Crown’s contention that Mr. Cocchiola is not qualified because he has not been
involved with the design or manufacture of a product like the PTH 50 overstates the standard the
Third Circuit has applied. Mr. Cocchiola’s qualifications relate to mechanical engineering, which
is the subject about which he testifies. This is distinguishable from the disqualification of the
marine safety expert and a naval architecture/marine engineering expert called to testify about
safety warnings in Calhoun. 350 F.3d at 323; see also Aloe Coal, 816 F.2d at 110 (finding the
district court abused its discretion in allowing a tractor sales representative with no engineering or

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Both McManus (ECF No. 73-9) and Crown (ECF No. 65-5) cite portions of Mr. Cocchiola’s
deposition. The Court cites from both parties’ portions herein but for uniformity refers only to the
transcript’s page and line numbers.
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mechanical experience to testify as to the cause of a tractor fire).
b. Mr. Cocchiola’s Reliability
“In order for expert testimony to meet Daubert’s reliability standard, it must be based on
the methods and procedures of science, not on subjective belief and unsupported speculation.”
Karlo, 849 F.3d at 80-81 (quoting In re TMI Litig., 193 F.3d 613, 703-04 (3d Cir. 1999)). In order
to be admissible, the expert’s opinion does not need “the best foundation,” or to be “supported by
the best methodology or unassailable research.” Id. at 81 (quoting TMI, 193 F.3d at 665). Instead,
the expert’s testimony must be supported by “good grounds.” Id. (citing TMI, 193 F.3d at 665).
The Third Circuit has held “[t]he standard for reliability is ‘not that high.’” Id. (quoting TMI, 193
F.3d at 665). Among the factors the Third Circuit has stated courts should consider to assess an
expert’s reliability are:
(1) whether a method consists of a testable hypothesis; (2) whether
the method has been subject 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.
Elcock, 233 F.3d at 745-46 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742 n.8 (citing
Daubert, 509 U.S. 579; United States v. Downing, 753 F.2d 1224, 1238-41 (3d Cir. 1985))).
Crown argues Mr. Cocchiola does not satisfy the reliability criterion because he has not
inspected the Pallet Truck or tested any of his opinions. (ECF No. 65-6 at 10.) Crown argues
McManus’s testimony provided Mr. Cocchiola’s only basis for the conclusion that the Pallet
Truck’s forks lowered too slowly. (ECF No. 65-6 at 12.) Crown further contends, “Mr. Cocchiola
did not perform any testing of the exemplar pallet truck he inspected.” (Id. at 13.) Crown points
out Mr. Cocchiola identified variables other than manufacturing defect, such as the load weight,
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the speed the Pallet Truck was moving, and the angle of the slope, that could have contributed to
the Accident. (Id. (citing Cocchiola Dep. at 74:23-75:1; 80:12-25).) Crown notes Mr. Cocchiola
testified he did not attempt to recreate the Accident in any way. (Id. at 13-14 (citing Cocchiola
Dep. at 68:11-70:8).) Finally, Crown argues Mr. Cocchiola identified alternative explanations for
the Accident but failed to negate these explanations. (Id. at 15-16.) Crown cites Mr. Cocchiola’s
report, which states factors such as “wear and tear,” “inadequate maintenance,” or “a build-up of
debris” could contribute to the slow lowering of the Pallet Truck’s forks. (Id. at 15 (citing
Cocchiola Engineering Report (ECF No. 65-6) at 10-11).)
McManus argues Mr. Cocchiola satisfies the reliability criterion. (ECF No. 73 at 17.) He
points out the Pallet Truck was lost, which prevented Mr. Cocchiola from testing the product. (Id.
at 18.) McManus contends Mr. Cocchiola’s inspection of the exemplar was sufficient, as “[a] test
of the internal variables of the exemplar pallet jack . . . would not have aided the trier of fact in
determining whether there was a manufacturing defect in with the discarded defective jack.” (Id.
at 20.) Rather, McManus argues, Mr. Cocchiola’s inspection of the exemplar confirmed how the
PTH 50 is intended to function. (Id.) Finally, McManus points out Mr. Cocchiola based his
conclusion not solely on McManus’s testimony, but on the testimony of three other McKesson
Medical employees who described similar problems with the Pallet Truck. (Id. at 19 (citing Dep.
of Timothy Collins (ECF No. 73-5) at 53:22-54:2; Dep. of Marcus Steward (ECF No. 73-6) at
71:3-11; and Lambert Dep. (ECF No. 73-3) at 94:8-15).)
The Court finds Mr. Cocchiola satisfies the reliability criterion. Mr. Cocchiola’s inspection
of the exemplar allowed him to determine the proper function of the PTH 50. (ECF No. 65-5 at 34.); see Mendez v. Shah, 28 F. Supp. 3d 282, 298 (D.N.J. 2014) (finding a product alleged to have
a manufacturing defect may be measured against the same product manufactured according to the
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manufacturer’s standards). Mr. Cocchiola considered other factors that could have interfered with
the Pallet Truck’s ball check valve movements, such as debris buildup. (Id. at 11.) Mr. Cocchiola
ruled out faulty maintenance as the cause of the Accident. (Id. at 13.) Mr. Cocchiola acknowledged
the Pallet Truck “would have to be disassembled to identify the specific condition(s) that prevented
the forks from lowering when the actuating handle was pulled.” (Id.) The Pallet Truck had been
discarded, however. Therefore, Mr. Cocchiola relied on four first-hand accounts of how the Pallet
Truck functioned, as well as how long the Pallet Truck had been in service at McKesson Medical.
(Id. at 6-7.) In this respect, the Court finds Mr. Cocchiola’s “method consist[ed] of a testable
hypothesis.” Elcock, 233 F.3d at 747 (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d at 742
n.8). To the extent Crown disputes Mr. Cocchiola’s conclusions, “[v]igorous 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.” Karlo, 849 F.3d at 83 (quoting
Daubert, 509 U.S. at 596).
c. The Fit of Mr. Cocchiola’s Testimony
“[T]he expert testimony must fit, meaning the expert’s testimony must be relevant for the
purposes of the case and must assist the trier of fact.” Calhoun, 350 F.3d at 321; McGarrigle v.
Mercury Marine, 838 F. Supp. 2d 282, 289 (D.N.J. 2011). In other words, “the scientific
knowledge must be connected to the question at issue.” Paoli, 35 F.3d at 745 n.13; McGarrigle,
838 F. Supp. 2d at 293. “A court ‘must examine the expert’s conclusions in order to determine
whether they could reliably flow from the facts known to the expert and the methodology used.’”
Oddi v. Ford Motor Co., 234 F.3d 136, 145 (3d Cir. 2000) (quoting Heller v. Shaw Indus., Inc.,
167 F.3d 146, 153 (3d Cir. 1999)); McGarrigle, 838 F. Supp. 2d at 293.
Crown argues, “Mr. Cocchiola’s opinion lacks fit because it is neither relevant nor helpful
to the trier of fact.” (ECF No. 65-6 at 18.) Crown contends Mr. Cocchiola’s “conclusions are based
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entirely on [McManus]’s testimony, meaning they are supported by no independent facts,
measurements, data, or standards.” (Id.)
McManus disputes Crown’s claims and cites Mr. Cocchiola’s reliance on the testimony of
several fact witnesses who testified to the problems with the Pallet Truck’s forks. (ECF No. 73 at
22 (citing Cocchiola Dep. at 86:15-87:2; 90:12-17).) McManus argues Mr. Cocchiola’s testimony
would assist the trier of fact in resolving a factual dispute, namely the Pallet Truck’s manufacturing
defect. (Id.)
The Court finds Mr. Cocchiola’s testimony satisfies the “fit” criterion. As noted, Mr.
Cocchiola inspected an exemplar to determine how the PTH 50 was designed to operate. He
reviewed the testimony of several McKesson Medical employees who used and/or inspected the
Pallet Truck. Mr. Cocchiola’s “conclusions . . . could reliably flow from the facts known to [him]
and the methodology used.” Oddi v. Ford Motor Co., 234 F.3d 136, 145.
Therefore, the Court finds Mr. Cocchiola’s testimony satisfies the all three criteria:
qualifications, reliability, and fit, and is admissible. See Karlo, 849 F.3d at 80 (citing Elcock, 233
F.3d at 741).
2. McManus’s Prima Facie Products Liability Claim
Crown argues McManus cannot assert a prima facie products liability claim because the
Pallet Truck is a complex instrumentality, which requires expert testimony to meet the burden of
proof. (ECF No. 65-6 at 19 (citing Toms v. J.C. Penney Co., Inc., 304 F. App’x 121, 125 (3d Cir.
2008); Lauder v. Teaneck Volunteer Ambulance Corps, 845 A.2d 1271, 1277 (N.J. Super. Ct. App.
Div. 2004)).) Crown contends Mr. Cocchiola’s opinions are inadmissible and it is it therefore
impossible for McManus to assert a prima facie claim. (Id. at 20.)
Because the Court has found Mr. Cocchiola’s opinions are admissible, it need not consider
Crown’s argument regarding McManus’s assertion of a prima facie products liability claim.
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3. McManus’s Proof in Support of the Alleged Manufacturing Defect
The New Jersey Products Liability Act, N.J.S.A. §§ 2A: 58C-1, et seq. (“PLA”) provides
plaintiffs with the sole cause of action to prosecute a product liability claim. Tirrell v. Navistar
Int’l, Inc., 591 A.2d 643, 647 (N.J. Super. Ct. App. Div. 1991). The PLA specifically defines a
“product liability action” to mean “any claim or action brought by a claimant for harm caused by
a product, irrespective of the theory of the underlying claim, except for harm caused by breach of
an express warranty.” N.J.S.A. § 2A:58C-1. “In a products liability case in which the plaintiff
alleges a manufacturing defect under the [PLA], the plaintiff has the burden to prove ‘the product
causing the harm was not reasonably fit, suitable or safe for its intended purpose.’” Myrlak v. Port
Auth. of New York & New Jersey, 723 A.2d 45, 51 (N.J. 1999) (quoting N.J.S.A. 2A:58C-2). A
plaintiff may prove a manufacturing defect by direct evidence or circumstantial proof. Id. at 52
(citation omitted). A plaintiff does not need to prove a specific manufacturer’s defect, only “that
‘something was wrong’ with the product.’” Id. (quoting Scanlon v. General Motors Corp., 326
A.2d 673 (N.J. 1974)). However “[t]he mere occurrence of an accident and the mere fact that
someone was injured are not sufficient to demonstrate the existence of a defect.” Id. (citing
Scanlon, 326 A.2d at 673; Zaza v. Marquess and Nell, Inc., 675 A.2d 620 (N.J. 1996)).
If a plaintiff cannot prove a specific manufacturer’s defect, he or she may rely on the
indeterminate product test. Id. at 56. Under the indeterminate product test, a plaintiff must
“establish [1] that the incident that harmed him is of the kind that ordinarily occurs as a result of a
product defect, and [2] that the incident was not solely the result of causes other than product defect
existing at the time the [product] left [the manufacturer]’s control.” Id. at 57 (citing Restatement
(Third) of Torts § 3(a) and (b)).
Crown argues McManus has failed to satisfy the second prong of the indeterminate
products test, i.e. the Pallet Truck did not malfunction solely due to causes other than a
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manufacturing defect. 3 (ECF No. 65-6 at 22-23.) McManus disputes the application of
indeterminate product test and argues he has proffered sufficient circumstantial evidence to create
a question for the trier of fact as to whether a manufacturing defect existed. (ECF No. 73 at 25.)
The Court finds the indeterminate product test applies. While McManus is correct that a
plaintiff can rely on circumstantial evidence to prove a product defect (see id.), circumstantial
evidence alone is appropriate only when a plaintiff alleges a specific defect, Myrlak, 723 A.2d at
52. “If a plaintiff cannot prove a specific defect, then it is permitted to rely on the indeterminate
product defect test.” Franklin Mut. Ins. Co. v. Broan-Nutone, LLC, No. 10-cv-4845, 2014 WL
2920622, at *5 (D.N.J. June 27, 2014). “The indeterminate product defect test is mainly applied
under circumstances in which the product at issue has been destroyed or [is] not available for
testing.” Id. (citations omitted).
McManus concedes he has not alleged a specific manufacturing defect. (ECF No. 73 at 2425, 27.) He also argues he does not need to negate other causes of the Pallet Truck’s failure. 4 (Id.
at 28.) The Court finds McManus has failed to negate other causes of the Pallet Truck’s failure as
being the sole cause of the alleged malfunction.
Mr. Cocchiola’s testimony reveals other factors could have been the sole cause of the
Accident. He testified McManus’s failure to read the PTH 50’s operator manual, as well as

3

Crown also argues McManus cannot satisfy the first prong of the indeterminate product test,
because Mr. Cocchiola’s opinion must be excluded. (Crown’s Reply Br. in Supp. of its Mot. for
Summ. J. (ECF No. 75) at 4.) Because the Court has found Mr. Cocchiola’s opinion is admissible,
it need not consider this argument.
4

In support of this argument, McManus relies on two cases that predate the New Jersey Supreme
Court’s adoption of the indeterminate product test in Myrlak—Moraca v. Ford Motor Co., 332
A.2d 599 (N.J. 1975) and Sabloff v. Yamaha Motor Co., 283 A.2d 321 (N.J. 1971). (ECF No. 73
at 38.) McManus also relies on Ebenheoch v. Koppers Indus., Inc., 239 F. Supp. 2d 455, 472 n.16
(D.N.J. 2002), but that case involved an alleged specific manufacturing defect and is therefore
inapposite.
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potentially inadequate training by McKesson Medical could have contributed to the Accident.
(Cocchiola Dep at 107:7-108:10.) Mr. Cocchiola also cited McKesson Medical’s decision to keep
the Pallet Truck in service despite complaints about its function also could have caused the
Accident. (Id. at 109:12-110:13.) Mr. Cocchiola also testified a pallet truck accident can occur on
a slope—like the one at Barnegat—even when there is no product defect. (Cocchiola Dep. at
106:25-107:6.) Indeed, McManus’s own engineering expert, Wayne F. Nolte, Ph.D., P.E. (“Dr.
Nolte”), initially concluded Barnegat’s “failure . . . to provide a level surface for the McKesson
Medical delivery caused [the] [A]ccident.” (Report of Wayne F. Nolte (ECF No. 69-5) at 13.) In
view of McManus’s failure to negate other factors as the sole cause of the Accident, the Court
finds summary judgment is appropriate and Crown is entitled to judgment as a matter of law. See
Snell v. Bostrom Products Co., 2005 WL 2654304, at *5 (N.J. Super. App. Div. Oct. 19, 2005)
(affirming dismissal of manufacturing defect claim when plaintiff could “not demonstrate that the
incident was not solely the result of other likely causes”).
Therefore, Crown’s Motion for Summary Judgment is GRANTED.
B. Barnegat’s Motion for Summary Judgment
“It is well recognized that the common law imposes a duty of care on business owners to
maintain a safe premises for their business invitees because the law recognizes that an owner is in
the best position to prevent harm.” Romeo v. Harrah’s Atlantic City Propco, LLC, 168 F. Supp.
3d 726, 729 (D.N.J. 2016) (quoting Stelluit v. Casapenn Enter., LLC, 1 A.3d 678, 691 (N.J. 2010)).
This rule applies to independent contractors and their employees. Moore v. Schering Plough, Co.,
746 A.2d 1, 4 (N.J. Super. Ct. App. Div. 2000) (citing Rigatti v. Reddy, 723 A.2d 1283 (N.J. Super.
Ct. App. Div. 1999)). The landowner has “no duty to protect an employee of an independent
contractor from the very hazard created by doing the contract work.” Id. (quoting Rigatti, 723 A.2d
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at 1283). “This exception to the landowner’s general duty exists because ‘[t]he landowner may
assume that the worker, or his superiors, are possessed of sufficient skill to recognize the degree
of danger involved and to adjust their methods of work accordingly.” Olivo v. Owens-Illinois, Inc.,
895 A.2d 1143, 1150-51 (N.J. 2006) (citing Muhammad v. N.J. Transit, 821 A.2d 1148, 1156 (N.J.
2003) (quoting Wolczak v. Nat’l Elec. Prods. Corp., 168 A.2d 412, 417 (N.J. Super. Ct. App. Div.
1961))). The exception does not apply when the landowner “retain[s] control over the means and
methods of the execution of the project.” Id. at 1151 (quoting Muhammad, 821 A.2d at 1156).
Barnegat argues it is entitled to summary judgment because (1) the slope of the driveway
was open and obvious, and (2) Barnegat was not required to protect McManus from hazards
inherent in making deliveries with a pallet truck. (ECF No. 66 at 6.) Barnegat also denies it retained
control over the means through which McManus made the delivery because he had the ability to
control the weight and size of the pallets he delivered. (Id. at 9.)
As a threshold matter, the Court must determine whether Barnegat “retain[ed] control over
the means and methods” of McManus’s work and is therefore not entitled to the exception to the
landowner’s duty of care. Olivo, 895 A.2d at 1151 (quoting Muhammad, 821 A.2d at 1156). The
Court finds Barnegat did retain such control.
Under New Jersey law, courts must consider “the degree to which the landowner
participated in, actively interfered with, or exercised control over the manner and method of the
work being performed at the time of the injury.” Sanna v. Nat’l Sponge Co., 506 A.2d 1258, 1262
(N.J. Super. Ct. App. Div. 1986) (citing Gibilterra v. Rosemawr Homes, 115 A.2d 553, 555 (N.J.
1955); Wolczak, 168 A.2d at 417). “[S]pecific instances of direct interference which proximately
cause injury . . . such as . . . the giving of a single authorized direction thwarting the [independent

17

contractor]’s effort to provide safeguards” will abrogate the landowner’s 5 immunity. Wolczak, 168
A.2d at 415. If the landowner “gives directions for the work . . . or retains control over any part of
it, he is required to exercise reasonable care for the protection of others; and he must likewise
interfere to put a stop to any unnecessarily dangerous practices of which he becomes informed.”
Mavrikidis v. Petullo, 707 A.2d 977, 985 (N.J. 1998) (citation omitted).
Here, Barnegat exercised control over deliveries to its building. McKesson Medical drivers
had complained about making deliveries to Barnegat, because the slope caused pallets to roll out
of control on two occasions. (ECF No. 66 ¶ 13; ECF No. 70 ¶ 13.) Nevertheless, Barnegat did not
provide a different delivery location. (ECF No. 66 ¶ 13; ECF No. 70 ¶ 13.) Barnegat was informed
of a potentially dangerous practice but declined to change that practice. Mavrikidis, 707 A.2d at
985. Barnegat’s argument that it did not exercise control because McManus could have controlled
the size and weight of the pallets he delivered is unavailing. (See ECF No. 66 at 9.) The extent to
which McManus’s negligence could have contributed to his injuries is a question for the trier of
fact. Brodsky v. Grinnell Haulers, Inc., 853 A.2d 940, 944 (N.J. 2004).
McManus has proffered testimony from which a jury could conclude Barnegat “retain[ed]
control over the means and methods” of McManus’s work and is therefore not entitled to the
exception to the landowner’s duty of care. Olivo, 895 A.2d at 1151 (quoting Muhammad, 821 A.2d
at 1156). Further, McManus’s engineering expert, Dr. Nolte, has offered testimony that the slope
at Barnegat’s facility represented a hazardous condition. (ECF No. 69-5 at 12.) The Court,
accepting McManus’s evidence as true and drawing all justifiable inferences in his favor, finds a
reasonable jury could find Barnegat was liable for his injuries. See Marino, 358 F.3d at 247

5

While Wolczak concerned a general contractor’s liability for a subcontractor’s injury, New
Jersey courts apply the same standard to landowners and general contractors in instances where
either controls the manner or means of a contractor’s work. Muhammad, 821 A.2d at 1156.
18

(quoting Anderson, 477 U.S. at 255).
Therefore, Barnegat’s Motion for Summary Judgment (ECF No. 66) is DENIED.
IV.

CONCLUSION

For the foregoing reasons, Crown’s Motion for Summary Judgment (ECF No. 65) is
GRANTED, and Barnegat’s Motion for Summary Judgment (ECF No. 66) is DENIED. An
appropriate Order will follow.

Date: May 29, 2018

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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