Rehberger v. Honeywell International, Inc.

Filing 162

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 11/23/15. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PAUL REHBERGER,

)
)
Plaintiff,
)
v.
)
)
HONEYWELL INTERNATIONAL, INC., )
)
Defendant.
)

No. 3:11-cv-0085
Judge Sharp

MEMORANDUM
Pending before the Court is Defendant’s Motion for Summary Judgment (Docket Entry
No. 116), to which Plaintiff filed a response in opposition (Docket Entry No. 134) and Defendant
filed a reply (Docket Entry No. 148).1
RELEVANT FACTS AND PROCEDURAL HISTORY
Plaintiff, Paul Rehberger (“Plaintiff” or “Rehberger”) purchased a model F50F in-duct
electronic air cleaner, manufactured by Honeywell International, Inc. (“Defendant” or
“Honeywell”) in 2004 from Ferguson’s Plumbing.2 Shortly after purchasing the air cleaner,
Plaintiff installed it himself. He purchased the air cleaner without reading any Honeywell product
literature but did read the manual before installing the cleaner in his home.

One reason he

selected a Honeywell air cleaner was because Honeywell was the dominant brand he saw being
installed in homes.

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Plaintiff initially filed this suit on November 4, 2010 in the United States District Court for the District
of New Jersey. On January 28, 2011, the parties consented to an Order transferring the case to this Court,
pursuant to 28 U.S.C. § 1404(a). (Docket Entry No. 24).

2

Unless otherwise noted, the facts are drawn from the parties’ statements of material facts and related
declarations and exhibits. Based upon the record, the specific facts set forth in this Court’s summary
appear to be a fair characterization of the facts relevant to the issues presented in the filings.
1

After running the unit for approximately one year, Plaintiff and his family noticed a
strange odor, which they attributed to the house. They also began to suffer various respiratory
illnesses.3

In 2010, Plaintiff discovered that, if he ran the F50F air cleaner without the

removable cells, the odor disappeared. Since then, Plaintiff has used a paper filter in the F50F,
and his family’s health issues have subsided. At that time, Plaintiff again read the product
manual, and it was clear to him that the air cleaner produced ozone.
Whole-house electronic air cleaners such as the F50F clean and filter the air by capturing
airborne particles that pass through the air cleaner. The F50F includes electronic cells that use
electricity to charge the particles in the air so that they may be collected by collector plates with
an opposite electric charge. When electricity interacts with oxygen, ozone can be created as an
incidental byproduct. The F50F is packaged with a product data sheet that states that the air
cleaner produces between 5 and 10 ppb of ozone; these numbers are repeated in the F50F
owner’s guide. The product data sheet notes that the U.S. Food and Drug Administration
recommends that indoor ozone concentration should not exceed 50 ppb.

Ozone exists

everywhere. Ozone exists in ambient air, both indoors and outdoors.
Plaintiff’s sole expert, industrial hygienist Patrick Rafferty, conducted testing of
Plaintiff’s air cleaner in January 2013. During Mr. Rafferty’s testing, Plaintiff’s air cleaner ran
for 3.5 hours without an observable increase in ozone concentrations. In order to measure ozone
potentially contributed to the air by Plaintiff’s air cleaner, Plaintiff’s expert first took
“background” measurements without the air cleaners operating. Plaintiff’s expert measured
background ozone levels ranging from 1.9 ppb to 4.3 ppb without Plaintiff’s air cleaner
operating. Plaintiff’s expert measured ozone from all sources, including the air cleaner, and
reported measurements ranging from 1.6 ppb to 13.5 ppb. Ultimately, Rafferty concluded the
3

Plaintiff is not seeking damages for his personal injuries in this case.
2

“findings in this study are consistent with other [] testing that has shown ozone concentrations in
excess of 10 ppb above average background when Honeywell EACs are in use . . .”.
ANALYSIS
I.

Summary Judgment Standard
A party may obtain summary judgment if the evidence establishes there are not any

genuine issues of material fact for trial and the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Covington v. Knox County School Sys., 205 F.3d 912, 914 (6th
Cir. 2000). The moving party bears the initial burden of satisfying the court that the standards of
Rule 56 have been met. See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any genuine issue of material fact that is
disputed. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

If so, summary judgment is

inappropriate.
To defeat a properly supported motion for summary judgment, the nonmoving party must
set forth specific facts showing that there is a genuine issue of material fact for trial. If the party
does not so respond, summary judgment will be entered if appropriate. Fed. R. Civ. P. 56(e).
The nonmoving party’s burden of providing specific facts demonstrating that there remains a
genuine issue of material fact for trial is triggered once the moving party shows an absence of
evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 325. A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court must
construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable

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inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
II.

Motion for Summary Judgment
A. Fraud Claims
Plaintiff has brought claims against Defendant for fraud, fraud by omission, and negligent

misrepresentation. In order to prevail on a common law fraud claim, a plaintiff must show that a
defendant: (1) made a representation or omission of a material fact; (2) with knowledge of its
falsity; (3) intending that the representation or omission be relied upon; (4) which resulted in
reasonable reliance; and that (5) plaintiff suffered damages. Depolink Court Reporting & Litig.
Servs. v. Rochman, 430 N.J.Super. 325, 333 (App.Div. 2013) (citing Jewish Ctr. of Sussex Cnty.
v. Whale, 86 N.J. 619, 624, 432 A.2d 521 (1981)). Plaintiff must prove each element by “clear
and convincing evidence.” Stochastic Decisions, Inc. v. DiDomenico, 236 N.J.Super. 388, 395,
565 A.2d 1133 (App.Div. 1989), certif. denied, 121 N.J. 607, 583 A.2d 309 (1990). Plaintiff’s
claim for fraud by omission requires the common-law fraud elements and, in addition, a duty to
disclose the allegedly withheld information. United Jersey Bank v. Kensey, 704 A.2d 38, 43-44
(N.J. Super. Ct. App. Div. 1997).
Negligent misrepresentation is “‘[a]n incorrect statement, negligently made and
justifiably relied upon, [and] may be the basis for recovery of damages for economic loss ...
sustained as a consequence of that reliance.’” Green v. Morgan Props., 215 N.J. 431, 457 (2013)
(quoting H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 334 (1983), superseded on other grounds,
N.J.S.A. 2A:53A–25). In order to sustain a cause of action based on negligent misrepresentation,
the plaintiff must establish that the defendant negligently made an incorrect statement of a past
or existing fact, that the plaintiff justifiably relied on it and that his or her reliance caused a loss

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or injury. Kaufman, supra, 165 N.J. at 109 (finding that the “element of reliance is the same for
fraud and negligent misrepresentation”). The principle of indirect reliance applies to negligent
misrepresentation as well as fraud. Id. at 108–09.
Defendant insists that Plaintiff’s testing confirms that Honeywell did not make a material
misrepresentation about the F50F air cleaner. Defendant continues,
Honeywell disclosed to Plaintiff that the F50F emits about 5–10 ppb ozone. (ECF
No. 88-4 at 13.) In testing the F50F, Plaintiff’s expert industrial hygienist
measured a peak ozone level—which contained ozone from all sources—of 13.5
ppb. (Rafferty Rep. at 9.) Plaintiff’s expert also measured a peak background
ozone reading—when the air cleaner was not operating—of 4.3 ppb. (Rafferty
Rep. at 10; Rafferty Dep. at 159:10–23.) Subtracting the peak background from
the peak total concentration results in a net contribution of just 9.2 ppb, which is
squarely within Honeywell’s representation. Indeed, for every one of Mr.
Rafferty’s 1,398 measurements, subtracting the peak background level yields a
result below ten.
At his deposition, Mr. Rafferty suggested that the average of his background
measurements should be subtracted, rather than the peak background level.
(Rafferty Dep. at 177:8–25.) If so, Honeywell’s representation remains true. Mr.
Rafferty testified that the average background ozone level in the Rehberger home
was 2.95 ppb. (Id. at 173:24–174:25.) Subtracting the background 2.95 ppb from
his single peak reading of 13.5 ppb yields a maximum of 10.5 ppb. (Id. at 177:16–
25.) Mr. Rafferty agreed that 10.5 ppb is “about” 10 ppb (id.), and thus
Honeywell’s statement that the F50F would emit “about” 5–10 ppb is true.

(Docket Entry No. 117 at 9).

Plaintiff counters that he has confirmed that Honeywell’s

representation that its air cleaners produce five to ten parts-per-billion ozone is false. (Docket
Entry No. 134 at 5). Specifically, Plaintiff states,
Plaintiffs’ industrial hygiene expert, Mr. Patrick Rafferty conducted testing at the
Rehbergers’ home on January 21 and 22, 2013. (Rafferty Report, Ex. B, at 8).
Using an ozone monitor described by Honeywell’s testing expert as “quite
consistent and reliable,” Mr. Rafferty tested the Rehbergers’ air cleaners when
they were running continuously, consistent with both the manufacturer’s
instructions and the Rehbergers’ use for significant periods. (Rafferty Report, Ex.
B, at 8). Mr. Rafferty placed a monitor in the Rehbergers’ kitchen; the monitors
confirmed that the Honeywell air cleaners contributed, over background, above

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the “10 parts per billion ozone” represented by Honeywell to be the upper limit
for the device’s ozone generation. (Product Manual, Ex. L, at BHWL 14895).
Plaintiffs have again confirmed what many earlier tests have shown – that
Honeywell’s representations significantly understate the ozone produced by its air
cleaners.
(Id.).
Defendant replies,
Despite the centrality of this issue, Plaintiff’s opposition nowhere mentions or
attempts to explain this clear testimony. Rather, Plaintiff falsely asserts that Mr.
Rafferty reached a different conclusion. For example Plaintiff writes:
Mr. Rafferty’s testing very directly corroborates Plaintiffs’ [sic] claim that
Honeywell’s ozone representations in its product literature are false and in and of
itself renders Honeywell’s Motion for Summary Judgment dead on arrival.
(Pl.’s Mem. at 6 (ECF No. 134).) Plaintiff does not cite any record support for this
assertion. Even at the highest one-minute ozone reading, Mr. Rafferty testified
that—after subtracting background ozone—the ozone contributed by the
Honeywell air cleaner was about 10 ppb. (Rafferty Dep. at 177:16–25.)
(Docket Entry No. 148).
Although Plaintiff claims Honeywell’s representation is false, it neglects to provide any
record support for this assertion. The Court has reviewed the record in this case. Plaintiff’s
expert report does, indeed, state the “findings in this study are consistent with other [] testing that
has shown ozone concentrations in excess of 10 ppb above average background when Honeywell
EACs are in use . . .” When questioned in his deposition, Rafferty testified,
Q. So would it be safe to say that -- or true to say that the Rehbergers’ F50F
contributes on average seven to 10 parts per billion of ozone to the indoor
environment above what would be expected without the air cleaners?
A. As a broad generalization, yes. Of course there were peaks that may go   go
beyond that.
(Rafferty Dep. at 219:15–20). There is nothing in the record to negate Honeywell’s literature
that states its “[e]lectronic air cleaners generate a very small amount of ozone, about 0.005 to
0.010 parts per million (ppm).” (emphasis added). Because Plaintiff fails to raise a genuine
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issue of material fact regarding whether his F50F emits more than “about 5–10 ppb” ozone,
summary judgment should be granted in favor of Honeywell on all claims based on alleged
affirmative misrepresentation.
Even if the Court were to side with Plaintiff on the element of misrepresentation, Plaintiff
still cannot overcome the elements of reliance and proximate cause. The record shows that
Plaintiff did not read or review any Honeywell product literature before purchasing his air
cleaner. (P. Rehberger Dep. at pp. 65, 67–68, 104, 106, 120, 125). He did not read any
Honeywell statement about ozone until 2010, six years after he purchased and installed his air
cleaner. (Id. at 104, 120). Rehberger testified as follows:
Q. I’m talking – let’s be clear. I want to talk about before you installed –
A. On, no, no. no. I had no idea.
Q. Okay. Before you installed your air cleaner, did you read anything in the
Honeywell manual about ozone?
A. No.
Q. When [was the] very first time that you ready anything at all from Honeywell
regarding ozone?
A. After I discovered the problem.
Q. In 2010?
A. Yeah.
Q. Okay. So the very first time you read anything in Honeywell’s manual about
ozone was in 2010; correct?
A. Yes.
(P. Rehberger Dep. at 104:2–17). Plaintiff attempts to deflect the fact that he did not read and
rely on the allegedly fraudulent statement by arguing,
Honeywell seeks summary judgment with respect to the Rehbergers’ [claims]
claims based on its contention that [] Rehberger did not read the Honeywell
manual when he purchased his air cleaner. This is simply incorrect. Here is the
relevant testimony, elicited from Paul Rehberger by Honeywell’s counsel:

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Q: So the first time you would have looked at the manual would have been when
you were ready to clean your manual – or clean your unit, correct?
A: No, I – I think I read through it, though, when I first got it just to see what the
machine was capable, you know, cleaning and what it did.
(Rehberger Depo., Dkt. No. 119-6, at 103:6-14 (Dkt. #119)). In fact, Paul
Rehberger stated that he read the manual every time he cleaned his air cleaners:
Q: Do you recall whether you reviewed the cleaning instructions once or more
than once?
A: I think every time I went to clean them I pulled it out because it was pretty
explicit directions on how to clean this thing and wanted to make sure I did it
right.
(Id. at 101:4-9).
(Docket Entry No. 134 at 11).
This argument does not get Plaintiff past the issue of reliance. Even viewing the evidence
in the light most favorable to Plaintiff, drawing all justifiable inferences in his favor, the Court
finds Plaintiff’s fraud claims cannot survive.4
B. NJCFA Claim
Similar to the above claims, Defendant asserts Plaintiff’s claim for violation of the New
Jersey Consumer Fraud Act (“NJCFA”) should be dismissed because a NJCFA claim “also
requires a material misrepresentation” by Honeywell. (Docket Entry No. 117 at 12).
The NJCFA was enacted to “protect against fraudulent and unconscionable practices in
the sale of goods and services.” Marascio v. Campanella, 298 N.J.Super. 491, 500, 689 A.2d 852
(App.Div.1997). The purposes of the NJCFA are: (1) to compensate the victim for his or her

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In support of his fraud claims, Plaintiff makes the argument that Honeywell has misled consumers by
concealing at least two types of material information  first, that a class of consumers are highly sensitive
to ozone and cannot tolerate the ozone generated by Honeywell air cleaners and, second, that the levels
generated by those devices subjects consumers to an increased risk of death. (Docket Entry No. 134 at 34). Unfortunately for Plaintiff, this argument alone, without evidence of reliance, cannot survive.

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actual loss; (2) to punish the wrongdoer through the award of treble damages; and (3) to attract
competent counsel to counteract the “community scourge” of fraud by providing an incentive for
an attorney to take a case involving a minor loss to the individual. See Lettenmaier v. Lube
Connection, Inc., 162 N.J. 134, 139, 741 A.2d 591 (1999). The NJCFA is “remedial legislation
and should be liberally construed to accomplish its dual objectives of deterrence and protection.”
Joe D'Egidio Landscaping v. Apicella, 337 N.J.Super. 252, 258, 766 A.2d 1164 (App.Div.2001)
(citing Lettenmaier v. Lube Connection, Inc., supra, 162 N.J. at 139, 741 A.2d 591).
The Legislature enacted the NJCFA in 1960 to give consumers relief from fraudulent
practices in the marketplace and to deter merchants from employing those practices. Cox v.
Sears Roebuck & Co., 138 N.J.2, 21, 647 A.2d 454 (1994). Today, the NJCFA makes it
unlawful for a person to use “any unconscionable commercial practice, deception, fraud, false
pretense, false promise [or] misrepresentation . . . in connection with the sale or advertisement of
any merchandise.

N.J.S.A. 56:8-2.

The Act protects against knowing misrepresentations,

omissions of material fact, and violations of administrative regulations, whether or not the
merchant acts in bad faith. N.J.S.A. 56:8-2; Cox v. Sears Roebuck & Co., supra, 138 N.J. at 1617, 647 A.2d 454; Gennari v. Weichert Co. Realtors, 148 N.J. 582, 605, 691 A.2d 350 (1997).
As the Court stated supra, the record in this case along with Plaintiffs’ arguments, when
construed in a light most favorable to Plaintiffs, fail to create a genuine issue of material fact as
to proximate cause for the NJCFA claim.
C. Unjust Enrichment Claim
Finally, as Plaintiff contends that Defendant has been unjustly enriched by retaining the
economic benefit it received from the F50F sales. According to Plaintiff, “Honeywell’s retention
of the economic benefit it received violates the fundamental principles of justice . . . because

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Honeywell knowingly and intentionally concealed the nature and quality of the [F50F], [and]
knowingly sold Plaintiff a defective product . . .” (Docket Entry No. 88, Amended Complaint at
27-28).
Under New Jersey law, unjust enrichment can be established by demonstrating that the
defendant received a benefit from the plaintiff and that allowing the defendant to keep this
benefit would be unjust. VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 641 A.2d 519, 526
(1994). Importantly, any benefit that is conferred must be direct. Maniscalco v. Brother Int'l
Corp., 627 F.Supp.2d 494, 506 (D.N.J.2009). There is no separate tort cause of action for unjust
enrichment in New Jersey; instead, unjust enrichment provides the underlying logic for several
torts, and also provides the basis for establishing quasi-contract liability. Castro v. NYT
Television, 370 N.J.Super. 282, 851 A.2d 88, 98 (N.J.Super.Ct.App.Div.2004). The Restatement
of Torts does not recognize unjust enrichment as an independent tort cause of action. Unjust
enrichment is of course a familiar basis for imposition of liability in the law of contracts. See
Restatement (Second) of Contracts § 345(d) (1981). However, the role of unjust enrichment in
the law of torts is limited for the most part to its use as a justification for other torts such as fraud
or conversion. See Restatement of Restitution Ch. 7 (Introductory Note) (1937) (noting that
“[t]here are a number of differences between a tort action which, though restitutionary, is based
primarily in wrongdoing, and a quasi-contractual action in which the wrong by the defendant is
only incidental to his unjust enrichment.”).
Here, Plaintiff bases his unjust enrichment claims on the same allegations about fraud
that form the basis of his other claims. As such, Plaintiff’s unjust enrichment claim will be
dismissed.5
5

This Court entered a Memorandum Opinion on February 28, 2011, which included a thorough analysis
of Plaintiff’s claims and concluded his claims fall outside the scope of the New Jersey Product Liability
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CONCLUSION
For all of the reasons stated, the Court will grant Defendant’s Motion for Summary
Judgment (Docket Entry No. 116).6
An appropriate Order shall be entered.

_________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

Act. See (Docket Entry No. 41). Defendant has nevertheless asked this Court to revisit this issue because
the Court earlier decided not to rely on a New Jersey state court decision, DeBenedetto v. Denny’s, Inc.,
because it was unpublished  and it has since been published. This Court declines to revisit or overturn
its previous rulings in this regard. Nevertheless, considering the Court’s ruling on Defendant’s instant
motion, this argument is moot.
6

Also pending before the Court is Honeywell’s Motion to Exclude Plaintiff’s Proposed Expert Testimony
of Mr. Patrick Rafferty, CIH. (Docket Entry No. 126). This motion will be denied as moot.
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