JAMES H. MAYNARD v. PELICAN LEISURE SPORTS, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5946-08T25946-08T2

JAMES H. MAYNARD,

Plaintiff-Appellant,

v.

PELICAN LEISURE SPORTS, INC.,

PELICAN SPORTS CENTER, INC.,

MARKER USA and its successor

in interest MARKER VOLKL/USA,

INC.,

Defendants-Respondents.

 
 

Argued May 25, 2010 - Decided

Judges Wefing, Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2192-06.

Fred Shahrooz Scampato argued the cause for appellant.

D. Scott Conchar argued the cause for respondent, Pelican Sports Center, Inc. (Law Offices of William E. Staehle, attorneys; Mr. Conchar, on the brief).

Scott H. Casher argued the cause for respondent, Marker USA and its successor in interest Marker Volkl/USA, Inc. (Edwards Angell Palmer & Dodge, attorneys; Mr. Casher, on the brief).

PER CURIAM

In March 2005, plaintiff was seriously injured when he fell while skiing in Vernon, New Jersey, and one of his ski bindings failed to release. He filed a complaint under the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11, against Pelican Leisure Sports, Inc. (Pelican), which sold him the ski equipment, and Marker Volkl/USA, Inc. (Marker), the manufacturer of the bindings. Plaintiff now appeals from the June 30, 2009 order of the trial court granting defendants' motions for involuntary dismissal at the conclusion of his case at trial. We affirm.

The evidence pertinent to our decision may be summarized as follows. Plaintiff testified that he started skiing at a young age but that at the age of eleven, he witnessed a skier suffer a serious accident and it traumatized him to the extent that he "stopped skiing for 20 years." When he resumed skiing, he first rented equipment and then in December 2004, he purchased ski equipment from Pelican. He purchased skis manufactured by Volkl, bindings manufactured by Marker, ski poles and boots. He testified that, because of his childhood experience, safety was a top priority in selecting equipment.

His first skiing trip with the new equipment was in Colorado; plaintiff testified that he skied for five days and never fell. While skiing in Colorado, however, the boots which plaintiff had purchased from Pelican bothered him, so he purchased new ski boots from Aspen Sports. Plaintiff acknowledged that when he purchased the new ski boots, the salesperson at Aspen had to make adjustments to the settings on his skis and bindings. Plaintiff stated, "they explained to me they have to set the new boots to the bindings and the skis. Or that there are settings that had to be made. . . . I said I'd like the settings to be correct and everything to work the right way."

A few weeks later, plaintiff went skiing at the Mountain Creek resort in Vernon. He took two "warm up[]" runs. Plaintiff testified that on his third run, he gained speed and lost control where "the snow was thin and it was a little icy in patches." His "right ski popped off[]" but his left ski "stayed right there like . . . a vice . . . . The entire weight of [his] body was pulling . . . and twisting his leg around." Plaintiff heard "a big pop" followed by "an immense amount of pressure . . . ." Plaintiff testified that he believed that his accident was caused by "the bindings on the left leg not opening . . . ."

Sometime after his accident, plaintiff brought his skis, bindings and boots to Steven French, who owns a ski shop in Far Hills called Sports People. French prepared a report and testified at trial as an expert on behalf of plaintiff. French described himself as a "graduate mechanical engineer . . . working in the ski industry for over 35 years doing all aspects of the business, including mounting bindings, releasing bindings." He was proffered by plaintiff, and accepted by defendants, "as an expert in the field of a certified ski binding technician."

French explained how the settings on ski bindings are correlated to the particular physical characteristics of the skier, including height, weight, age and skiing style. A "visual setting" is obtained from the manufacturer's binding adjustment chart taking the above factors into account. The bindings are then set to that visual indicator which corresponds to the bindings' range of release values. French stated that the visual setting on plaintiff's bindings was properly set at 6.5.

French performed a torque test. He testified that the left ski binding was defective because it did not "release at the proper torque for a 6.5 visual indicator." This led to the following colloquy on direct examination:

Q And because of that, do you know what the source, what the origin of that problem was?

A I have to assume that there was something I would expect with the bindings.

Q What does that mean?

A Basically the bindings should have released within the 15 percent plus or minus, they did not, so there's something amiss and I can't tell you what that is. It could be --

Q Why can't you tell us what that is, specifically, as to why they don't release or didn't release within 15 percent when they should have?

A It could be . . . as simple as . . . the line on the indicator was printed out of skew.

Q And who would do that?

A It would obviously be the manufacturer.

Q Okay. Any other explanations that you can offer as to why bindings that should have released within 15 percent were not releasing within . . . [what] you have defined is the appropriate torque range?

A Other than accumulation of possible variations within the different parts that go into the binding.

Q And again at what point would that happen?

A Somewhere in the manufacturing.

. . . .

Q Mr. French, bindings that are manufactured correctly, when set to the appropriate [visual setting] and in this case 6.5, what is the appropriate range for their release?

A They should be releasing within the inspection range.

Q The 15 percent range?

A To my knowledge, yes.

. . . .

Q I want you to assume that when the incident took place, [plaintiff's] right ski binding released and his left ski binding did not.

A Uh-huh.

Q What if any significance does that have to your opinions in this case? How does it come into play with the test results that you obtained?

A Obviously . . . the one ski was set at a higher setting, but I can't verify that that was the cause of his injury.

Plaintiff's counsel then attempted to have French render an opinion as to whether the defect he found to exist in the left binding was "a manufacturing defect." French responded: "Again, I can only tell you that it did not release in the proper torque range for the visual setting." When counsel pursued this line of questioning, defense counsel objected on the grounds that French had not been qualified as an expert in the manufacture of ski bindings. Plaintiff's counsel asked French, "[w]hose responsibility is it, as you understand it, to insure in the first place that [bindings] release within the proper specifications?" French responded: "It's a combination of the manufacturer and the final binding mechanic."

On cross-examination, French stated that he thought plaintiff had purchased all of his ski equipment in Colorado. He opined that the boots plaintiff purchased in Colorado would be "pushing the envelope" as to whether they were "appropriate for someone of [plaintiff's] ski level . . . ." French stated that, "[t]ypically every time the binding and boots get adjusted, the binding needs to be released check [sic] with a mechanical testing device. And . . . that person would be the responsible party for the final adjustment."

At the conclusion of French's testimony, plaintiff rested with respect to liability. Defendants moved for involuntary dismissal pursuant to Rule 4:37-2(b). After hearing arguments, the trial judge rendered an oral decision from the bench on the following day.

In granting the motions, the judge found first that it was plaintiff's burden to prove that "a manufacturing defect . . . caused the injury[,]" citing N.J.S.A. 2A:58C-2(a), which provides:

A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it . . . deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae . . . .

Noting that French "is a highly qualified ski binding technician or mechanic[,]" the judge nonetheless concluded:

However for all of the qualifications that he has as one who works with bindings, Mr. French testified to no experience, no training and no particular expertise with respect to the manufacture of ski bindings. This is a case about a manufacturing defect in a ski binding. And Mr. French in going through his qualifications, and he testified at some length, did not say anything about any training he has ever received with respect to the manufacture of Marker and any other ski bindings.

Yes, he has attended seminars, he had reviewed videos, he has read the [M]arker manual and is intimately familiar with the details that one might derive from that kind of reading and study and training. However he did not testify that any of it involves the manufacture of ski bindings. He did not testify that he has ever visited a Marker manufacturing facility. He did not testify that the seminars, the manual, the video tells him anything about the methodology by which ski bindings are manufactured.

And so for that reason, . . . the fact that the [p]laintiff offered the testimony of one who is an expert in a related field, but not in the field at issue here, which is the manufacture of ski bindings, the proof does not support the claim of manufacturing defect and in effect the [j]ury would be left to speculate as to whether in fact there was a manufacturing defect on the basis of an opinion offered by one who is not learned in the field at issue . . . .

The judge also found that French's testimony and report constituted a "net opinion."

Mr. French's testimony was, as he said on cross examination, based on an assumption. It is true that the [p]laintiff . . . need not prove the precise defect. . . . [O]ffering evidence that would permit an inference that a dangerous condition existed prior to sale would be sufficient and such things as age and usage and durability, effective operability without maintenance are the kinds of factors that one would consider in that . . . circumstance.

However here, although Mr. French did allude to those factors, in the end his testimony both on direct, where he never used the word "defect", but even were one to afford him the inference that he was testifying that there was a defect and that defect would be the fact that when the binding left Marker's hands the setting was outside of the inspection range and never brought back within that inspection range and that was the defect in and of itself, . . . his testimony was that he assumed -- by virtue of that, . . . that something was, in his words, amiss.

When pressed on cross examination for the standard . . . by which he was offering his opinion and there was a debate between whether it was an assumption or an educated guess, he said that it was assumption.

In acknowledging that, Mr. French's testimony is that of a net opinion. The fact that the binding was outside of the inspection range, he concluded from that that something . . . is wrong based on an assumption and that is not sufficient . . . . He assumed the bindings were out of spec. He assumed something was amiss. He assumed that there was some departure or some deviation in manufacture, although he said he had no evidence of an assembly issue or a deviation from standards of manufacture and in fact said that the bindings could have been easily adjusted to bring the release point back to within the inspection range.

So simply equating the release torque to a defect is insufficient in this case, because it is simply based on an assumption, because an adjustment could have been made and in fact the skis were in the hands of Pelican for sale and the Colorado shop for adjustment at the time that the . . . boots were purchased and all that results in Mr. French's testimony being offered on the basis really of a net opinion that . . . the bindings released outside of the inspection range, therefore there must have been a defect. That testimony is insufficient.

On appeal, plaintiff contends that the trial judge erred in granting the involuntary dismissal because (1) his "witnesses [sic] supplied sufficient evidence to permit an inference that a dangerous condition existed prior to the sale to [plaintiff]"; and (2) French's opinion was not a net opinion. Having reviewed these contentions in light of the record and the controlling legal principles, we are satisfied that they lack "sufficient merit to warrant discussion in a written opinion[,]" Rule 2:11-3(e)(1)(E); we affirm substantially for the reasons stated by Judge Robert J. Brennan, in his decision rendered from the bench on June 30, 2009. R. 2:11-3(e)(1)(A). We add only the following comments.

Giving plaintiff the benefit of all fair inferences to be derived from French's testimony, while French did opine that the left binding was "defective," he nonetheless failed to establish that such a defect existed at the time of manufacture, as opposed to arising from plaintiff's post-purchase use and adjustment of the bindings, particularly when plaintiff purchased new boots in Colorado thereby necessitating an adjustment to the bindings.

To prevail in a products liability action, a plaintiff must demonstrate "'that the product was defective, that the defect existed when the product left the defendant's control, and that the defect caused injury to a reasonably foreseeable user.'" Becker v. Baron Bros. 138 N.J. 145, 151 (1994) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 449 (1984)). Here, plaintiff established a prima facie case as to the first and third elements, but not as to the second.

"[T]he age and prior usage of the product in relation to its expected life span, durability and effective operability without maintenance are the most important considerations in determining whether an inference is permissible that the defective condition existed prior to sale[,]" when a plaintiff is unable to show directly a defect in the product's manufacture. Scanlon v. Gen. Motors Corp., 65 N.J. 582, 593 (1974). The trial judge properly found that plaintiff established no basis permitting such an inference. French stated that the "defect" in the left binding was readily correctable by a mechanical adjustment; he was unable to "give an opinion" as to why the binding did not release. Plaintiff presented no evidence as to what adjustments were made to his bindings when he purchased new ski boots in Colorado. That was a significant intervening event between plaintiff's purchase of the bindings and the fall resulting in his injuries. Had this case been submitted to the jury, that jury would clearly be left to speculate as to what bearing that intervening event had on the failure of the left binding to release when plaintiff fell.

Finally, we are satisfied that French's testimony constituted a classic "net opinion." To "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, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. Such expert, however, must base his/her opinion on "facts or data . . . ." N.J.R.E. 703.

In addition to determining whether a witness is qualified to testify as an expert, the trial court must also decide the closely related issue as to whether the expert's opinion is based on facts and data. As construed by applicable case law, N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial. Under the "net opinion" rule, an opinion lacking in such foundation and consisting of bare conclusions unsupported by factual evidence is inadmissible. The rule requires an expert "to give the why and wherefore" of his or her opinion, rather than a mere conclusion.

[Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (citations omitted).]

See also State v. Townsend, 186 N.J. 473, 494 (2006) (the net opinion rule "forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data"). Here, the only "why and wherefore" proffered by French was that something was "amiss." Moreover, French's only basis for linking the manufacturer of the bindings to something being "amiss" was his "assumption."

Affirmed.

 

"Torque" is defined as "a force that produces or tends to produce rotation or torsion . . . ." Merriam-Webster's Collegiate Dictionary 1245 (10 ed. 1994). "Torsion" is defined as "the twisting or wrenching of a body by the exertion of forces tending to turn one end or part about a longitudinal axis while the other is held fast or turned in the opposite direction . . . ." Ibid.

Rule 4:37-2(b) provides, in pertinent part, that after a plaintiff has presented his trial proofs "on all matters other than . . . damages[,] . . . the defendant . . . may move for a dismissal of the action . . . on the ground that upon the facts and . . . the law, the plaintiff has shown no right to relief."

(continued)

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A-5946-08T2

 

August 13, 2010