Opinion
DOCKET NO. A-4342-12T2
07-18-2014
SHANDEN VANN, an infant by his Guardian Ad Litem, REGINA VANN, and REGINA VANN, individually, Plaintiffs-Appellants, v. TOYS R US, Defendant, and RAZOR USA, LLC, Defendant-Respondent.
Dennis G. Polizzi argued the cause for appellants (Weiner & Mazzei, attorneys; Mr. Polizzi, of counsel and on the brief). Robert J. Machi argued the cause for respondent (Morgan Melhuish Abrutyn, attorneys; Mr. Machi, of counsel; Joshua A. Heines, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2421-11.
Dennis G. Polizzi argued the cause for appellants (Weiner & Mazzei, attorneys; Mr. Polizzi, of counsel and on the brief).
Robert J. Machi argued the cause for respondent (Morgan Melhuish Abrutyn, attorneys; Mr. Machi, of counsel; Joshua A. Heines, on the brief). PER CURIAM
Plaintiff Shanden Vann, then a ten-year old boy, sustained a severe facial laceration after falling off a Razor A-type kick scooter and striking the handlebar. Plaintiff Regina Vann, Shanden's mother, filed suit individually and on Shanden's behalf alleging that Razor USA LLC (Razor) had produced and sold a defectively-designed product, which contained an inadequate warning. Plaintiffs also sued the retailer, Toys R Us, but later voluntarily dismissed it from the case.
The Law Division granted Razor's motion for summary judgment. Plaintiffs appeal, arguing they proffered an adequate expert opinion in support of their design-defect claim, that they did not abandon their failure-to-warn claim, and that no expert testimony was required to sustain their failure-to-warn claim. We affirm.
I.
The following facts are set forth in plaintiffs' depositions. In December 2004, Ms. Vann bought Shanden a new Razor scooter from Toys R Us. The two-wheeled scooter has an aluminum-tube handlebar, the open ends of which are plugged by a plastic end cap. Each end of the handlebar has a foam rubber grip.
After about five months, the foam rubber grips on the scooter's handlebar became loose and started to "peel" and "disintegrat[e]." The grips fell off, Shanden pushed them back on, and Ms. Vann told Shanden to let her know if they fell off again. This sequence happened two more times. About a week before the accident, Ms. Vann threw the grips away, leaving the aluminum tube of the handlebar exposed.
On August 13, 2005, Shanden was riding the scooter without the foam rubber grips when he hit a bump and flipped over, with his chin landing on the left handlebar. It pierced his chin, causing a laceration that required sixty stitches and resulted in a scar.
On May 18, 2011, plaintiffs filed a complaint alleging that, due to its defective design, the scooter's "foam rubber handle had worn away, leaving a jagged edge exposed," which caused Shanden "severe and permanent injuries[.]" The complaint further alleged, among other things, that Razor, by manufacturing, distributing, and selling the scooter, had "negligently and carelessly failed to provide proper safeguards and/or warnings."
Plaintiffs retained George Meinschein, a forensic mechanical engineer, to render an expert opinion regarding the scooter's allegedly defective design. Meinschein issued a report concluding that "the plastic end caps used in the manufacture of" the scooter's handlebar "evidence a design defect." He opined that it was "reasonably foreseeable that the plastic end caps" would be "contact points" with sidewalks and other abrasive surfaces when the scooter was not in use because the "scooter design does not include a kickstand." He added that, "[d]ue to the end caps' flat outboard face, the protective edge wears rapidly during the normal use of the scooter and the underlying edge of the aluminum handlebar tubes becomes exposed," resulting in a laceration hazard whether or not the foam rubber grips were attached to the scooter.
Meinschein stated in his report that "[a] feasible alternative" to the flat-end-cap design "would have been to employ a rounded or bullet-nosed end cap," which, "in combination with the proper material selection," "would spread the [contact point] load across the face of the end cap instead of concentrating it at the narrow shoulder of its periphery." He claimed that his proposed alternate design "would eliminate the laceration hazard" at a cost "as low as $4.99/pair."
Meinschein acknowledged that some degree of force would still have caused a laceration regardless of the end cap design, but opined that his alternative design would have resulted in a less-severe injury because the force would have been distributed over a broader area. However, he admitted in his deposition that he had done no testing to determine either how long the scooter's flat plastic end cap would have to come in contact with an abrasive surface before it would wear down to form a "jagged edge," or how severe an injury Shanden would have received had Meinschein's alternate design been utilized. He also admitted that he could not opine on the extent of the resulting injury because he is not a "medical doctor or biomechanical engineer."
Instead, Meinschein based his conclusions on: (1) a physical examination of the scooter, which was missing the foam rubber grips; (2) the scooter's specifications and owner's manual; (3) plaintiffs' deposition transcripts; (4) online offers to sell alternative handlebar end caps; and (5) a review of the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to - 11. Meinschein claimed that testing was not necessary because he could calculate the "likely force that [Shanden's] face or head would have hit the handlebar." He stated that he did not calculate "what the actual force was in [Shanden's] particular incident," because he took "at face value[]" the testimony that "the end of the handlebar produced a laceration."
Razor moved for summary judgment and to bar Meinschein's report and testimony. Razor argued Meinschein offered an inadmissible net opinion, and was unqualified to offer an opinion regarding a safer alternative design. By order dated March 7, 2013, the motion court ruled that Meinschein offered only an inadmissible net opinion, and granted Razor's motion to bar Meinschein's report and testimony.
Razor's summary judgment motion also argued that plaintiffs could not establish the necessary elements of their design-defect claim without an expert, that plaintiffs had failed to produce expert testimony in support of their failure-to-warn claim, and that plaintiffs had abandoned that claim because they had not raised it since the complaint had been filed. The court did not address the motion for summary judgment in its oral decision or March 7 order.
On April 4, 2013, Razor filed a motion in limine seeking dismissal of plaintiffs' claims, again arguing that they had failed to proffer expert testimony to support either their design-defect or failure-to-warn claims, and that plaintiffs had abandoned their failure-to-warn claim. The motion court agreed, finding plaintiffs could not support either claim without expert testimony, and that plaintiffs had not "fairly apprised" Razor of their intent to pursue its failure-to-warn claim. The court entered an order on April 18, 2013, dismissing both of plaintiffs' claims with prejudice.
Plaintiffs appeal both the March 7 order barring Meinschein's testimony and the April 18 order dismissing their claims.
II.
Plaintiffs contend that the motion court's March 7 order improperly excluded Meinschein's testimony. We review a trial court's decision to admit or preclude expert testimony applying "an abuse of discretion standard." Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 371 (2011). A reviewing court will overturn a trial court's decision to preclude expert testimony only "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quotation marks omitted). We must hew to that limited standard of review.
Qualified expert testimony, "in the form of an opinion or otherwise," is admissible "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. However, such testimony is an inadmissible net opinion when the expert gives only "'a mere conclusion'" rather than "'the why and wherefore[s]' that supports the opinion." Pomerantz, supra, 207 N.J. at 372. "[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered." Ibid. "[I]f an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal,' it fails because it is a mere net opinion." Id. at 373.
To be admissible, an expert opinion must establish a "'causal connection between the act or incident complained of and the injury or damage allegedly' suffered." Kieffer v. Best, 205 N.J. 213, 220 n.4 (2011) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). Thus, an expert must "'establish a reliable scientific foundation for [the] purported expert opinion on the basis of [the expert]'s own research work, authoritative scientific literature or persuasive judicial decisions'" to demonstrate that the opinion is reliable. Brenman v. Demello, 191 N.J. 18, 32-33 (2007) (quoting Suanez v. Egeland, 353 N.J. Super. 191, 202-03 (App. Div. 2002)).
Here, the motion court properly found Meinschein's expert opinion was a net opinion because it lacked sufficient support. "[P]laintiff[s] asserting a design defect in a products liability action 'must prove under a risk-utility analysis the existence of an alternate design that is both practical and feasible,' and 'safer' than that used by the manufacturer." Diluzio-Gulino v. Daimler Chrysler Corp., 385 N.J. Super. 434, 438 (App. Div. 2006) (quoting Lewis v. Am. Cyanamid Co., 155 N.J. 544, 571 (1998)). Indeed, "the issue upon which most claims will turn is the proof by plaintiff[s] of a 'reasonable alternative design . . . the omission [of which] renders the product not reasonably safe.'" Green v. Gen. Motor Corp., 310 N.J. Super. 507, 518 (App. Div.) (quoting Restatement (Third) of Torts: Products Liability § 2(b)), certif. denied, 156 N.J. 381 (1998). "Expert testimony in conclusionary terms is insufficient to meet that burden." Diluzio-Gulino, supra, 385 N.J. Super. at 438.
Meinschein failed to provide sufficient support for his conclusion that his proposed alternative design was superior to Razor's current design. He concluded Razor's plastic end cap would foreseeably wear down to a "jagged edge," but provided no data on how long that would take. He offered no data showing how many injuries were caused by Razor's allegedly defective design. He opined that his alternative design "in combination with the proper material selection" would "eliminate the laceration hazard," but did not specify what the proper material selection was, and later admitted that some degree of force would still have caused a laceration regardless of the end-cap design. Meinschein declined to calculate the force of the impact involved in Shanden's accident, or to quantify how sharp and therefore how dangerous the handlebar had become.
Having acknowledged that his alternative end-cap design would not prevent an injury, Meinschein was obliged to show that his design was safer because it would cause less severe injuries. Instead, Meinschein stated that he could not opine on the relative extent of the injury Shanden would have sustained had his alternative design been utilized because he is not medical doctor. See Suanez, supra, 353 N.J. Super. at 196 (finding an expert who was "not a physician or medical researcher" and had "not himself conducted or observed tests of" the type of accident at issue was unqualified to opine on the relative safety of the product design). The absence of such medical testimony showed another area where his testimony was lacking in factual basis.
Plaintiffs argue that, because Meinschein identified rounded and bullet-nosed end caps for sale on Amazon.com, no testing was necessary to determine that design's relative safety because the product was already in the marketplace. As plaintiffs suggest, an expert may derive data regarding a product's relative safety from its use in the marketplace rather than through independent testing. Green, supra, 310 N.J. Super. at 524. However, Meinschein did not purport to have gathered any safety data from the marketplace, just that the alternative end caps could be bought on the internet. As the motion court noted, Meinschein cited "no testing that's been done by any other users of the proposed product that shows it's a superior product in terms of safety." Thus, Meinschein failed to "present an opinion, substantiated by empirical evidence, that 'the number of lives saved (or injuries avoided) by adopting [his] alternative design[] would be greater than the corresponding number of lives lost (or injuries sustained) as a result of such adoption.'" Diluzio-Gulino, supra, 385 N.J. Super. at 438-39.
Plaintiffs also rely on the reasoning set forth in comment f to the Restatement (Third) of Torts: Products Liability § 2, but that comment merely states that a plaintiff is not required to produce a prototype.
Meinschein simply showed that "Open Handlebar End Plugs" could be purchased for a "Kawasaki Cruiser Scooter Chopper Touring Street Bike Ninja." No evidence was offered to show that the Kawasaki product is equivalent to the Razor scooter or, more importantly, that the end plugs for sale on Amazon presented a safer alternative to Razor's end-cap design. Accordingly, the motion court did not abuse its discretion in precluding Meinschein's testimony as a net opinion.
III.
We turn now to plaintiffs' arguments regarding the April 4, 2013 dismissal of her design-defect and failure-to-warn claims. Although styled as a motion in limine, Razor sought the dismissal of plaintiffs' claims because they had failed to establish the necessary factual predicate for those claims. This was essentially a renewed request for summary judgment under Rule 4:46—2, which "provides that a court should grant summary judgment when '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 challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528–29 (1995). In reviewing this grant of summary judgment, we apply the same standard as applied in the motion court. Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 427 (App. Div. 2004); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
Dismissal of plaintiffs' design-defect claim was appropriate on summary judgment because, as set forth above, plaintiffs did not present competent evidence demonstrating the existence of a safer alternative design. Thus, plaintiffs have failed to make out a prima facie design-defect claim. See Mathews v. Univ. Loft Co., 387 N.J. Super. 349, 351—52 (App. Div.), certif. denied, 188 N.J. 577 (2006).
With respect to plaintiffs' failure-to-warn claim, summary judgment was appropriate on two grounds. First, by failing to address their failure-to-warn claim in their answer to question two of the Form A(2) Interrogatories propounded by Razor, plaintiffs abandoned their failure-to-warn claim.
The Form A(2) Interrogatories utilized by Razor are specifically tailored towards products liability actions. Question two is designed to require plaintiffs to specify their claims. Specifically, question two asked plaintiffs: "Do you claim (a) that the product was defectively designed; (b) that the product was defectively manufactured; and/or (c) that the labeling or warning on, attached to or accompanying the product were inadequate, misleading or insufficient?" Plaintiffs' entire response to the question was simply: "Yes, in the fact that the sharp edges of the steel handle bar were allowed to work through the protective coating of the handle." While this answer indicated defective design, it said nothing about labeling or warnings. Nor did plaintiffs "set forth all the facts" supporting a failure-to-warn claim, as question two requires. By failing to identify in this response to question two that they intended to pursue a failure-to-warn claim, plaintiffs waived their right to pursue such a claim. See Cole v. Jersey City Med. Ctr., 215 N.J. 265, 277 (2013) ("[W]aiver can occur implicitly if 'the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference.'").
Plaintiffs argue that Razor was apprised of their intent to pursue their failure-to-warn claim because it was pled in the complaint. A plaintiff may allege a claim in the complaint, and then abandon it because after further analysis or discovery plaintiff decides it is not viable, not needed, or not advantageous. Question two serves to inform parties of that decision. Razor was entitled to rely on plaintiffs' response to that question.
Plaintiffs next argue that their answer to question eleven of the Form A(2) Interrogatories indicated they intended to pursue their failure-to-warn claim. Question eleven asked: "Did the product have any words or symbols on it or its packaging, or any written or pictured warnings attached to it?" Plaintiffs replied simply: "No warnings on the scooter." Question eleven merely asks for factual information, not a statement of claims. Plaintiffs' answer did not indicate that they were claiming that the absence of warnings on the scooter itself made Razor's labeling and warnings inadequate, misleading or insufficient, particularly given that Razor also supplied an owner's manual containing warnings. The factual answer to question eleven did not erase plaintiffs' failure to specify a failure-to-warn claim in answering question two.
Indeed, it is undisputed that the scooter bore a label warning stating: "READ MANUAL BEFORE RIDING." The owner's manual states: "Always inspect your scooter before riding and regularly maintain it"; "properly inspecting your scooter can reduce the risk of injuries"; and "Replace worn or broken parts immediately."
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Plaintiffs also note that, in the deposition of Razor's representative Robert Hadley, counsel asked a few questions about the warnings contained in the Razor owner's manual. Hadley answered that the owner's manual warned users to inspect the scooter before riding it and to regularly maintain it. The questioning did not make clear that plaintiffs were dissatisfied with Hadley's answer. Especially considering plaintiffs' failure to include a failure-to-warn claim in their answer to question two, and their failure to amend their answers to the Form A(2) Interrogatories as required by Rule 4:17-7, this brief questioning was insufficient to show plaintiffs intended to pursue their failure-to-warn claim.
One of the purposes of interrogatories is "to require one's adversary to provide disclosure as to positions being taken in the litigation." Vitti v. Brown, 359 N.J. Super. 40, 46—47 (Law Div. 2003). Parties are required to amend their answers to interrogatories under Rule 4:17—7 because "[t]he discovery rules 'were designed to eliminate as far as possible, concealment and surprise in the trial of law suits to the end that judgments therein be rested upon the real merits of the causes and not upon the skill and maneuvering of counsel.'" Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000). Plaintiffs thus cannot neglect to include a failure-to-warn claim in their response to question two, and then claim that Razor should have been aware that plaintiffs still intended to pursue it.
Second, plaintiffs in any event failed to set forth a sufficient factual basis to support their failure-to-warn claim. To prevail on a failure-to-warn claim, "[i]nitially, the plaintiff[s] must establish that the defendant had a duty to warn." James v. Bessemer Processing Co., 155 N.J. 279, 297 (1998). "To establish such a duty, the plaintiff[s] must satisfy 'a very low threshold of proof in order to impute to a manufacturer sufficient knowledge to trigger the duty to provide a warning of the harmful effects of its product.'" Id. at 297—98.
Plaintiffs claim that Razor was required to provide a warning to prevent injuries resulting from Razor's allegedly defective end-cap design. However, as set forth above, plaintiffs failed to show the product was defective. Because of "the similarity and interrelation between design-defect and failure-to-warn causes of action . . . 'plaintiff[s] asserting a cause of action based on failure to warn must establish the same elements required for an action based on a defective product.'" Mathews, supra, 387 N.J. Super. at 362. Lacking evidence that Razor's end-cap design was defective, plaintiffs cannot show that Razor had a duty to warn of such a defect, and therefore cannot make out their failure-to-warn claim.
We recognize that "[a] failure to warn, or a failure to warn adequately, may constitute a defect in a product sufficient to support a cause of action in strict liability." Zaza v. Marquess & Nell, 144 N.J. 34, 57 (1996). To the extent plaintiffs argue that Razor had a duty to warn users not use the scooter after the end cap has worn away and the handlebar had been sharpened to "a jagged edge," "the obviousness of the danger is an absolute defense to plaintiff[s]' failure to warn action." Mathews, supra, 387 N.J. Super. at 362; see Restatement (Third) of Torts: Products Liability § 2 comment j (noting that warnings lose their efficacy if placed on instruments known to be dangerous).
We note the motion court further found "that an expert opinion is necessary to make out [plaintiffs'] case on warnings" because the sufficiency of the warning is not "common knowledge." However, because we have found Razor's failure-to-warn claim cannot survive summary judgment for the reasons discussed above, we need not reach that issue.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION