Opinion
DOCKET NO. A-5944-12T3
08-18-2014
AL SHABRAWY, INC., Plaintiff-Appellant, v. ARIPACK, INC., Defendant-Respondent.
Terry J. Finkelstein attorney for appellant. Finazzo Cossolini O'Leary Meola & Hager, LLC, attorneys for respondent (Robert J. Pansulla, on the brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Maven. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1121-12. Terry J. Finkelstein attorney for appellant. Finazzo Cossolini O'Leary Meola & Hager, LLC, attorneys for respondent (Robert J. Pansulla, on the brief. PER CURIAM
Plaintiff Al Shabrawy, Inc. appeals from the order granting summary judgment to defendant Aripack, Inc., and dismissing its complaint for damages with prejudice. We affirm.
The relevant facts are largely undisputed, as plaintiff did not contest Aripack's statement of material facts. See R. 4:46-2(b) (stating that all material facts in movant's statement that are sufficiently supported will be deemed admitted unless specifically disputed with record citations).
Plaintiff is a wholesale meat distributor who, in the course of its business, vacuum seals meat and ships the product to its customers. Aripack is an importer and distributor of plastic packing materials.
In 2010, plaintiff ordered 80,000 plastic pouch bags from Aripack. In October 2010, Aripack purchased the bags from a manufacturer in China. Aripack shipped the plastic bags to plaintiff on January 7, 2011, along with an invoice for $5120. Upon receipt, plaintiff used the plastic bags to vacuum seal meat at its facility prior to its distribution to customers.
Plaintiff learned approximately fifty percent of the bags were defective when some of the meat sealed in the bags spoiled both in plaintiff's distribution facility and during shipment. Upon receiving complaints from its customers, plaintiff advised them to throw away the spoiled meat. Plaintiff claims it paid a total of $70,000 to five clients for spoiled meat they received.
Plaintiff made a partial payment of $3120 to Aripack in May 2011, but did not mention any issues with the quality of the bags at that time. Aripack later learned of the potential problem with the bags when it contacted plaintiff regarding the outstanding balance on the invoice. One of Aripack's salesmen visited plaintiff's facility to discuss the potential problem and to attempt to coordinate an amicable resolution, which could have included the return of any unused bags for credit. Plaintiff did not provide Aripack any of the damaged products to inspect, or other proof of loss. Aripack asserts plaintiff refused to negotiate, but rather demanded $30,000 in damages.
In February 2012, plaintiff filed a two-count complaint against Aripack. The first count was based on breach of contract and sought damages resulting from the use of the defective bags, and the second count alleged Aripack fraudulently entered into a contract to provide defective bags. Defendant filed an answer and counterclaim for the remaining $2000 balance due on the contract.
Notably, plaintiff did not bring a products liability claim against the manufacturer of the bags.
Following discovery, Aripack moved for summary judgment seeking dismissal of plaintiff's complaint. Plaintiff did not oppose the dismissal of the fraud claim, or the counterclaim for the payment of the balance owed on the contract. At the motion hearing, Aripack argued plaintiff could not support its claim in count one without evidence of the actual damaged meat or damaged bags. Although Aripack acknowledged receiving several of the unused bags in discovery, it noted that some of those bags were not defective. Aripack maintained an expert was necessary to explain the defect to the jury. Aripack argued that without an expert opinion on the cause of the defect and the effect such a defect would have on plaintiff's meat product, any recovery to which plaintiff may be entitled was limited to the terms of the contract.
In response, plaintiff explained the plastic bags were intended to store cooked meats in vacuum-sealed, airtight pouches. However, due to defects in the bags, air was able to leak into the bags causing the meat to spoil. Upon showing a bag to the judge, plaintiff argued an expert was not necessary to establish that the bags were defective as the defect was readily apparent by applying pressure to the bag, which caused the sides to split.
The motion judge rendered an oral decision granting Aripack's motion, memorialized in an order of the same date. The judge determined that plaintiff's failure to provide an expert to establish the manufacturing and design defects of the bag entitled Aripack to summary judgment:
I'm satisfied that in this case, plaintiff requires an expert to prove that bags that were supposed to be air sealed were defective in some way. I don't believe that a lay person could conclude anything about the physical nature or manufacturing process of an airtight bag. Without expert
testimony, plaintiff does not prevail in this matter . . . .
The judge also dismissed the fraudulent conduct claim as unsubstantiated in the record. The judge noted that plaintiff did not challenged dismissal of this claim. Lastly, the judge ordered plaintiff to pay Aripack $2000 on the counterclaim, subject to receiving credit for any bags returned to Aripack.
This appeal followed in which plaintiff contends that the trial court erred in holding that plaintiff needed expert testimony to establish the defective nature of the bags. Plaintiff argues that a layman would be capable of forming a valid judgment with respect to the defects upon their examination of the bags. We disagree.
We review the trial court's grant of summary judgment de novo. Lapidoth v. Telcordia Techs., Inc., 420 N.J. Super. 411, 417 (App. Div.), certif. denied, 208 N.J. 600 (2011). We apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Pursuant to Rule 4:46-2(c), we "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Issues of law are also subject to our plenary de novo review, and we accord no special deference to the motion judge's interpretation of or conclusions on those issues. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Expert testimony is generally required when "a subject is so esoteric that jurors of common judgment and experience cannot form a valid conclusion." Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt v. Wyatt, 217 N.J. Super. 580, 591 (App. Div. 1987)). "[W]here the allegedly defective product involves a complex instrumentality, a plaintiff is required to provide expert testimony." Lauder v. Teaneck Volunteer Ambulance Corps, 368 N.J. Super. 320, 331 (App. Div. 2004). "Expert testimony is necessary to assist the fact finder in understanding 'the mechanical intricacies of the instrumentality' and in excluding other possible causes of the [defect.]" Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 546 (App. Div.), certif. denied, 145 N.J. 374 (1996)).
Based on our review of the record and applicable law, we are satisfied the motion judge correctly interpreted and applied the law in granting summary judgment in favor of defendant. Plaintiff asserts approximately half of the 80,000 bags were defective. However, it did not produce any of the defective bags in evidence. By its own claim, plaintiff had possession of some of the bagged, spoiled meat in its facility, yet failed to provide Aripack an opportunity to inspect the damaged items. Moreover, plaintiff has not presented any evidence to demonstrate that the bags were not damaged during the vacuum-sealing process at its facility.
Plaintiff argues the judge did not address the point that the defects are apparent because some of the "bags have sides that open when a hand is placed inside of them or come apart when they are held." While that may be true in a representative sample of the bags, we are convinced that there is no common knowledge held by an average jury member of the workings of vacuum-sealed bags for meat distribution. To allow a jury to consider whether fifty percent of the bags were defective by examining a relatively small sample of bags, without expert testimony to explain the bags' manufacturing process or the vacuum-sealing process, would require the jury to engage in pure speculation and "draw inferences which it was not qualified to draw." See Wyatt, supra, 217 N.J. Super. at 592. Thus, we conclude common knowledge does not allow one to draw the conclusion that the incidents of meat spoliation in issue here were caused by the defective plastic bags. Expert testimony is needed here to explain how the bags were defective and whether the meat spoliation was caused by this defect.
Aripack contends the judge found additional bases to support dismissal of the complaint. In view of our decision that dismissal of the breach of contract claim was warranted due to the lack of expert testimony, we need not address these alternative grounds for affirming the trial court's decision. Moreover plaintiff raised no claim of error regarding these alternative bases for the court's decision. Any issues related thereto are deemed waived and abandoned. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2014); Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011), aff'd in part, rev'd in part, ___ N.J. ___ (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION