FREDERICK SNELL v. BOSTROM PRODUCTS CO., and MACK TRUCKS, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4414-03T14414-03T1

FREDERICK SNELL,

Plaintiff-Appellant,

v.

BOSTROM PRODUCTS CO.,

and MACK TRUCKS, INC.,

Defendants-Respondents,

and

NEW ENGLAND MOTOR FREIGHT,

Defendant.

______________________________________

 

Argued October 6, 2005 - Decided

Before Judges Conley and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Union County, docket no. L-5865-00.

Stuart S. Ball argued the cause for appellant.

Philip D. Priore argued the cause for respondent Bostrom Products Co. (McCormick & Priore; Mr. Priore and Michael Brubach, on the brief).

William Salmond appeared for respondent Mack Truck, Inc. (Mr. Salmond joins in the brief of respondent Bostrom Products Co.)

PER CURIAM

Plaintiff appeals a R. 4:37-2(b) involuntary dismissal of his products liability complaint at the end of his case. The dismissal was the result of two factors: 1) his liability expert was determined by the trial judge to be unqualified and offering only a net opinion, and 2) the alleged product defect could not be inferred from the circumstances. We affirm.

We need not set forth the procedural history of the litigation, involving a prior federal court diversity action, as it is immaterial. The pertinent facts are as follows.

As of the time of the incident which plaintiff alleges caused his injury, plaintiff was a tractor trailer driver employed by New England Motor Freight (NEMF) since 1996 and was driving a single axle Mack tractor, number 8920, to pull the trailers. The tractor was a few months old when plaintiff first began driving it. At the time of the incident, he had been driving it for six months and it had approximately 78,000 miles of use.

Plaintiff worked as a shuttle driver for NEMF. His route took him between Elizabeth and Pennsauken, which is about 72 miles each way. He would usually make three round trips, or 432 miles, per night. The tractor was also driven by another NEMF driver during the day.

The focus of plaintiff's lawsuit was the driver's seat. It was a Bostrom air seat which had a fore and aft isolator mechanism and several different adjustment settings designed for the comfort of the driver. The fore and aft mechanism controlled the seat's forward and backward movement. The tractor could be operated with that mechanism either engaged or locked.

Plaintiff admitted that before the incident, NEMF had frequently improperly loaded the trailers that the tractor pulled by placing the bulk of the load in the nose of the trailer. This caused an unbalanced load and increased by 25 to 50 times the normal impact upon the tractor with every bump it hit. Logically, that would impact upon the fore and aft mechanism of the Bostrom air seat. Plaintiff also admitted that a few weeks prior to the incident, the tractor was involved in an accident when the trailer it was pulling jackknifed.

In early December 1998, plaintiff noticed that a nut had fallen out of the driver's seat. He reported this to the company mechanic, but the seat was not repaired. Plaintiff later reported that a pin had fallen out of the seat, but it was not repaired either. And, although plaintiff filed daily reports with NEMF complaining of the deteriorating condition of the seat, nothing had been done to repair the problem as of December 23, 1998.

Nonetheless, plaintiff continued to drive the tractor even though he could have driven another one. Neither did he lock the fore and aft mechanism of the seat to prevent further deterioration.

On December 23, 1998, plaintiff was driving the tractor on a stretch of Interstate 295 that was under construction. He drove over a patch of uneven pavement and "the seat went flying." Plaintiff claimed the impact of the incident upon his back caused permanent injuries.

Plaintiff's liability expert was Dr. Howard Gage. Gage is a New York state licensed mechanical engineer who has a Bachelor's Degree and a Master's degree in Mechanical Engineering, as well as a Ph.D. in Occupational Biometrics. He prepared a report prior to the trial upon which his deposition was taken.

Gage had no experience with driver seats in tractor trailers and he conceded that he had no knowledge or experience with the fore and aft mechanism used in the Bostrom seat. His entire experience with an air seat such as the Bostrom was sitting in one for about five minutes. Moreover, he had never driven a tractor trailer or tested an air seat and he knew nothing about the manufacturing of such a seat. Further, he had never calculated the forces that would impact upon an air seat and its occupant under the type of circumstances plaintiff claimed occurred here. But he did look at photographs of the seat, read excerpts from the Bostrom operation and service parts manual, reviewed inspection reports of the tractor documenting the damage to the seat, and read depositions of witnesses concerning the deterioration of the seat and statements and documents pertaining to its repair after the incident.

The heart of the expert's liability opinion was as follows:

Several parties bear a measure of responsibility for the injury that [plaintiff] sustained in December 1998. These include the manufacturer of the seat, Bostrom Inc., which failed to detect that there was anything wrong with their seat before shipping it to Mack Truck Inc. for insertion into tractor number 8920, and Mack for distributing a truck with a defective seat. Although New England Motor Freight was apprised that there was a problem with this seat in mid-December, 1998, the company failed to properly evaluate its seriousness and recommend that the seat be removed and exchanged, or that the truck be taken out of service until the necessary parts could be secured and repairs made. They permitted an unsafe condition to persist in this vehicle, one that could place its drivers at increased risk of injury.

It is the opinion of the undersigned, within a reasonable degree of engineering certainty, that [plaintiff's] current condition involving his lower spine resulted directly from his operating a vehicle that contained a defective driver's seat. Specifically, the seat's fore and aft isolator had become defective, reducing the level of protection it provided to drivers. The seat in tractor 8920 failed after only eight months of regular service. This result strongly indicates the presence of a manufacturing defect. The seat simply should not have failed under these operating conditions. Since there are no records of the vehicle being driven in an unusual manner or being involved in a collision, it is most likely that this defect arose during the seat's original fabrication.

[Emphasis added.]

Thus, the thrust of Gage's liability opinion as to defendant Bostrom Products Co. was that because the seat failed a product defect must exist. Defendant Bostrom Products Co., of course, objected at trial to Gage's testimony on the basis that he was not qualified and that his opinion was net and without factual basis. The trial judge initially denied the motion. But after plaintiff testified, the motion was renewed and granted. Plaintiff then contended that there was sufficient evidence from which the jury could infer a manufacturing defect even without an expert. The trial judge disagreed, pointing out that the seat in question is "a complex piece of machinery . . . I think it's incumbent to have an expert explain why the product is defective, not just let the jury infer as to why a product may be defective." As a result, the R. 4:37-2(b) motion was granted.

On appeal, plaintiff contends:

POINT I: THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S CASE PURSUANT TO R. 4:37-2(b) BY FAILING TO ASSESS PLAINTIFF'S PROOFS UNDER THE INDETERMINATE PRODUCT DEFECT TEST.

A. PLAINTIFF'S PROOFS WERE SUFFICIENT TO RAISE A REASONABLE INFERENCE THAT THE FAILURE OF THE BOSTROM SEAT WAS THE KIND OF INCIDENT THAT ORDINARILY OCCURS AS A RESULT OF PRODUCT DEFECT.

B. PLAINTIFF'S PROOFS WERE SUFFICIENT TO RAISE A REASONABLE INFERENCE THAT THE FAILURE OF THE BOSTROM SEAT WAS NOT SOLELY THE RESULT OF CAUSES OTHER THAN DEFECT EXISTING AT THE TIME THE SEAT LEFT THE DEFENDANTS' CONTROL.

C. BASED ON THE NATURE OF PLAINTIFF'S PROOFS, AN EXPERT WITNESS WAS NOT REQUIRED TO INVOKE THE INDETERMINATE PRODUCT DEFECT TEST.

POINT II: THE TRIAL COURT ERRED IN EXCLUDING THE TESTIMONY OF PLAINTIFF'S EXPERT WITNESS.

We have considered these contentions in light of the record and applicable law. We reject them.

We first address the involuntary dismissal pursuant to R. 4:37-2(b). The judicial function on a motion for an involuntary dismissal under R. 4:37-2(b) should be "a mechanical one" where neither the trial nor appellate court is concerned with "the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5 (1969). However, "[a] dismissal at the close of a plaintiff's case invokes more searching appellate review than does one at the close of the entire case." Cameco, Inc. v. Gedicke, 157 N.J. 504, 509 (1999). "When reviewing [such] a dismissal . . . , [we accept] the truth of the plaintiff's evidence together with the legitimate inferences that the evidence supports." Ibid. Credibility of the witnesses is not a factor on such a motion. Id. at 510.

In a products liability case, plaintiff must prove that the product was not safe for its intended purpose, i.e., it contained a defect. Myrlak v. Port Auth., 157 N.J. 84, 96 (1999); N.J.S.A. 2A:58C-2. The defect may be a manufacturing defect, a design defect, or a lack of adequate warnings. Roberts v. Rich Foods, Inc., 139 N.J. 365, 375 (1995). Whatever type of defect is alleged, it must be shown to have existed when the product left the control of the manufacturer or distributor. Myrlak v. Port Auth., supra, 157 N.J. at 97. Usually, a products liability plaintiff will produce expert testimony to establish the defectiveness of the product. Where such expert testimony is not available, a plaintiff may establish certain circumstances which would allow a factfinder to infer that the product was defective at the time it left the manufacturer or distributor. Id. at 108.

Characterized in Myrlak as a "res ipsa-like method of circumstantially proving a product defect," Myrlak v. Port Auth., supra, 157 N.J. at 100, this is the indeterminate product defect method of proof adopted by the Restatement (Third) of Torts 3 (1997). See Jerista v. Murray, ___ N.J. ___, ___ (2005) (slip op. at 28-29 n.3). It is as follows:

It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

(a) was of a kind that ordinarily occurs as a result of a product defect; and

(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

[Myrlak v. Port Auth., supra, 157 N.J. at 104-05 (quoting Restatement (Third) of Torts 3) (1997).]

See also Model Jury Charge (Civil), 5.34(B), "Manufacturing Defect" (indeterminate product defect as alternate charge). Cf. Rose Enters. v. Henny Penny Corp., 317 N.J. Super. 477, 491 (App. Div.), certif. denied, 158 N.J. 74 (1999) ("Scanlon circumstantial evidence test requires proof sufficient to support a conclusion that 'in the normal course of human experience an injury would not have occurred at this point in the product's lifespan had there not been a defect attributable to the manufacturer.'" (quoting Scanlon v. Gen. Motors Corp., 65 N.J. 582, 592-93 (1974)).

But simply because a product fails is not enough to infer that the product was defective when it left the control of the manufacturer or distributor. Scanlon v. Gen. Motors Corp., supra, 65 N.J. at 593; Lauder v. Teaneck Volunteer Ambulance Corps., 368 N.J. Super. 320, 331-32 (App. Div. 2004). Even failure of a relatively new product will not necessarily support an inference of product defect. Myrlak v. Port Auth., supra, 157 N.J. at 98; Scanlon v. Gen. Motor Corps., supra, 65 N.J. at 592-93. Rather, the age and prior usage of the product in relation to its expected lifespan are factors to consider in conjunction with other evidence presented. Myrlak v. Port Auth., supra, 157 N.J. at 98.

Thus, a plaintiff who relies upon the indeterminate product defect test must establish two prongs. First, it must be shown that the occurrence which caused the harm would not have ordinarily happened without a product defect. Second, the occurrence must have been the result of causes other than product defect existing at the time of sale or distribution. Restatement (Third) of Torts 3 (1997). Both must be met.

Myrlack v. Port Auth., supra, 157 N.J. 84, provides an example of when the test may be available to a plaintiff. There, plaintiff was injured when the back of his worksite chair suddenly collapsed. At the time, the chair had been in use for five weeks prior to the collapse. It had a triple joint mechanism which permitted several adjustments and a tension control device for the back of the chair. Prior to the collapse, there was no evidence of misuse. Neither had there been prior similar incidents or complaints with the chair. At the time of the collapse, plaintiff had been seated in the chair for approximately one hour and forty-five minutes. He suddenly heard a loud noise after which the back of the chair cracked and gave way.

At trial, plaintiff unsuccessfully requested a res ipsa loquitur charge. The jury no caused as to the manufacturer. On appeal, we reversed, concluding the charge should have been given. The Court disagreed, id. at 90, but concluded the error was harmless. Id. at 107. However, for unrelated reasons, the Court determined a new trial on the product defect claim would be warranted. Id. at 108. In doing so, it noted that, in light of the particular facts, "plaintiff need not prove a specific defect in the chair if he can establish that the incident that harmed him is of the kind that ordinarily occurs as a result of a product defect, and that the incident was not solely the result of causes other than the product defect existing at the time the chair left [the manufacturer's] control." Ibid. (citing Restatement (Third) of Torts 3(a) and (b) (1997)).

Here, without knowing anything about the mechanics of the Bostrom seat's fore and aft device in relation to the way this particular tractor had been used, we do not think a reasonable factfinder could conclude that the failure of the device at the time plaintiff alleges he hit the uneven pavement, was a happening which would ordinarily occur because of a product defect. See Lauder v. Teaneck Volunteer Ambulance Corp., supra, 368 N.J. Super. at 331. Contrast Jerista v. Murray, supra, ___ N.J. ___ (supermarket automatic door closing on a customer is an occurrence bespeaking negligence).

But even assuming plaintiff could establish the first part of the test, he cannot establish the second. Simply put, plaintiff did not demonstrate that the incident was not solely the result of other likely causes. It is undisputed that prior to the December 23, 1998, incident, the tractor was subjected to excessive forces upon it caused by improper loading of the trailers it pulled, subjecting the fore and aft mechanism of the air seat to forces that were 25 to 50 times greater than would occur with proper loading. And too, the tractor was involved in a prior jackknifing accident which must have exerted additional force upon the fore and aft mechanism. Also, not of insignificance, is the fact that the seat components began to loosen two weeks prior to December 23, 1998, with first a nut coming off and, then, a pin. Over the course of these two weeks its parts loosened and were not repaired as they should have been. Plaintiff presented no evidence to rule out that the malfunctioning of the seat on December 23, 1998, was the product of wear and tear upon it, given its prior use and lack of maintenance. Contrast Moraca v. Ford Motor Co., 66 N.J. 454, 459 (1975) (manufacturing defect in the steering mechanism of plaintiff's six month old automobile which had been driven only 11,000 miles before the accident could be inferred because the totality of the circumstances shown by plaintiff negated any other possible causes for the accident - there was no indication that the car had been improperly handled, or that the condition of the roadway at the time of the accident was a causative factor), with Scanlon v. Gen. Motors Corp., supra, 65 N.J. at 599-600 (nine month old station wagon with approximately 4000 miles at time of malfunction does not ordinarily fail in the absence of a defect but plaintiff failed to negate the likely possibilities that the car received improper maintenance or adjustment and thus product defect could not be inferred); Lauder v. Teaneck Volunteer Ambulance Corp., supra, 368 N.J. Super. at 332 (product defect could not be inferred from collapse of hospital gurney where plaintiff did not discount the possibility that the legs of the gurney may not have been properly locked, a blanket may have been caught in the legs, or the gurney may not have been properly maintained). See also Rose Enters. v. Henny Penny Corp., supra, 317 N.J. Super. at 492-93.

Without the benefit of the indeterminate product defect test, plaintiff required expert testimony to explain to the jury what it was about the Bostrom seat, particularly its fore and aft mechanism, that was defective. See Lauder v. Teaneck Volunteer Ambulance Corp., supra, 368 N.J. Super. at 332 (complex locking mechanism on gurney required expert testimony to establish a defect). In this respect, plaintiff contends the trial judge erred in barring his expert.

Ordinarily, the trial judge's evidentiary rulings concerning expert testimony are within his or her sound discretion and absent a clear abuse, we will not interfere with the exercise of that discretion. Carey v. Lovett, 132 N.J. 44, 64 (1993); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960). Pursuant to N.J.R.E. 702, "[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, a witness qualified as an expert by knowledge, skill, expertise, training, or education, may testify thereto in the form of an opinion or otherwise." A witness is qualified as an expert where he or she possesses "the minimal technical training and knowledge essential to the expression of a meaningful and reliable opinion." Hake v. Manchester Twp., 98 N.J. 302, 314 (1985) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961)). "[T]he admissibility of expert testimony will depend on the facts and on the expert's qualifications. More particularly, the expert must be sufficiently qualified by education, knowledge, training, and experience in the specific field of science." Clark v. Safety-Kleen Corp., 179 N.J. 318, 338 (2004).

Here, Gage certainly had sufficient education and training in the field of engineering and biomechanics, but he had no prior experience with a tractor air seat such as the Bostrom seat. Neither did he have any particular knowledge of its critical component, the fore and aft mechanism. And he had no information as to the forces that the seat would be subjected to as used by plaintiff. What is more, critical to his liability opinion was that the tractor had never been involved in an accident or "driven in an unusual manner." The factual predicates for this conclusion do not exist in the record. The tractor was involved in a prior accident when the trailer it was pulling jackknifed. Further, plaintiff himself conceded that trailers the tractor pulled were frequently loaded in such a way as to cause excessive force upon the tractor and, obviously, the driver's seat. And too, the gradual loosening of its parts, perhaps a matter of simple wear and tear, was not corrected by the maintenance personnel prior to the accident. An expert's opinion that is premised upon facts which do not exist in the record is an inadmissible net opinion. State v. Odom, 116 N.J. 65, 82 (1989) (expert opinion cannot be based on facts that are not supported by the evidence). See also Johnson v. Salem Corp., 97 N.J. 78, 91 (1984).

 
Affirmed.

(continued)

(continued)

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A-4414-03T1

October 19, 2005