BENITEZ v. JMC RECYCLING SYSTEMS LTD. et al, No. 1:2013cv02737 - Document 68 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 6/28/2017. (dmr)
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BENITEZ v. JMC RECYCLING SYSTEMS LTD. et al Doc. 68 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY ANTHONY BENITEZ, : Hon. J oseph H. Rodriguez Plaintiff, : Civil Action No. 13-2737 : OPINION J MC RECYCLING SYSTEMS LTD., et al., Defendants. : This m atter is before the Court on m otion for sum m ary judgm ent filed by Defendant Strip Technology, Inc. [Dkt. No. 61]. The Court heard oral argum ent on the m otion on April 25, 20 17 and the record of that proceeding is incorporated here. For the reasons placed on the record that day, and those set forth below, Strip Technology Inc.’s m otion for sum m ary judgm ent will be denied. I. Background This case involves claim s arising from a workplace accident which occurred on May 5, 20 11 when Plaintiff Anthony Benitez was operating a m etal recycling m achine during the course of his em ploym ent at Form er Defendant Doctor Copper, a m etal recycling facility in Pennsauken, New J ersey. The m etal recycling m achine at issue is described as an “alligator shear” and is m anufactured and distributed by Form er Defendant J MC Recycling System Ltd. Defendant Strip Tech is a vendor of recycling equipm ent and sold the alligator shear at issue to Dr. Copper. See Com pl., Ex. A; see also Alexander Dep. Tr., Ex. C, at 22:21 -23; 34:10 -14; 14:7-9; 25:5-31:7 The alligator shear is a m achine used to cut and m anipulate scrap m etal, of various shapes and sizes, by placing the m etal between two blades that resem ble an alligator’s jaws. See Def. Sta. of Mat. Facts; Alligator Shear Operation and Maintenance 1 Manual, attached to Colem an Dec. as Ex. “D.” The m achine is operated through the use of a foot pedal that regulates the opening of the blades and the com pression of the blades through a m etal object. When the pedal is releases, the blades return to an open position. See id. at p. 1. The alligator shear m achine is equipped with a safety guard, also referred to as a “cage guard” or blade guard” that covers the blades during operation, if it is m anually pulled down. See Alexander Dep. Tr., Ex. C, at 44:5-45:2; see also Manual, Ex. D, at p. 18. If utilized, the cage guard also functions as an “infeed clam p,” which holds down the m etal m aterial that is being inserted into the shear to allow the user to cut m aterial without placing his or her hands near the blades. See Pl. Dep. Tr., Ex. B, at 46:9-22; see also Manual, Ex. D, at p. 18. Im portantly, the m achine operates even if the cage guard is not utilized. The cage guard was not utilized on the day Plaintiff was injured. Benitez Dep. at 61:18-62:12. According to Plaintiff, he was injured when he was using the alligator shear to cut a copper pipe and he tripped on m aterials and debris on the floor, causing him to lose his balance. See id. at 72:25-73:3; 82:15 -85:13; 86:20 -95:1. To brace him self for a fall, Plaintiff placed is left had onto the engaged alligator shear m achine, causing significant injury to three fingers on his left hand. See id. at 86:20 -95:1; 10 2:12-15. As against m oving Defendant Strip Tech, Plaintiff asserts violations of the New J ersey Products Liability Act (“NJ PLA”), N.J . Stat. Ann. § 2A:58C-2 (Counts II, II, IV), a claim of negligence (Count VI), and consum er fraud (Count V). Defendant J MC Recycling was dism issed from this action for lack of personal jurisdiction on April 10 , 20 15. The claim s against Doctor Copper were voluntarily dism issed by Plaintiff. [Dkt. No. 10 ]. 2 Strip Tech m oves for sum m ary judgm ent on all counts, arguing that it had Plaintiff fails to present adm issible expert testim ony to establish a prim a facie case of product liability. Strip Tech argues that the testim ony of Plaintiff’s expert, George H. Meinschein, P.E. is unreliable, based entirely on speculation and unsupported conclusions rather than upon facts in the record and scientific m ethodology. Defendant argues, therefore, Plaintiff cannot establish proxim ate cause for his design defect and failure to warn claim s. In addition, because Plaintiff fails to identify an affirm ation or prom ise m ade by Strip Tech, sum m ary judgm ent should be granted as to the breach of warranty claim . In his Opposition papers and on the record during argum ent, Plaintiff conceded that sum m ary judgm ent is appropriate on the claim of defective or inadequate warning and the claim for breach of express warranty. As a result, sum m ary judgm ent is granted in favor of Strip Tech as to those claim s. For the reasons that follow, the Court finds that genuine issues of m aterial fact preclude sum m ary judgem ent. Plaintiff’s expert’s testim ony is adm issible and questions of fact germ ane to the establishm ent of a prim a facie case of product liability and on causation m erit denial of the rem ained of Strip Tech’s m otion. II. Standards of Review A. Sum m ary J udgm ent Standard Federal Rule of Civil Procedure 56(a) generally provides that the “court shall grant sum m ary judgm ent if the m ovant shows that there is no genuine dispute as to any m aterial fact” such that the m ovant is “entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). Such a showing m ust be supported by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored 3 inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). A “genuine” dispute of “m aterial” fact exists where a reasonable jury’s review of the evidence could result in “a verdict for the non-m oving party” or where such fact m ight otherwise affect the disposition of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts, however, will fail to preclude the entry of sum m ary judgm ent. Id. In evaluating a m otion for sum m ary judgm ent, the court m ust view the evidence in the light m ost favorable to the non-m oving party, and m ust provide that party the benefit of all reasonable inferences. Scott v. Harris, 550 U.S. 372, 378 (20 0 7); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 20 14). Any such inferences “m ust flow directly from adm issible evidence[,]” because “‘an inference based upon [ ] speculation or conjecture does not create a m aterial factual dispute sufficient to defeat sum m ary judgm ent.’” Halsey, 750 F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d 360 , 382 n.12 (3d Cir. 1990 ) (citing Anderson, 477 U.S. at 255)). Accordingly, the m oving party initially has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the non-m oving party m ust identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Again, to withstand a properly supported m otion for sum m ary judgm ent, the non-m oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statem ents . . . .’” Trap 4 Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgm ent, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The m ovant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Finally, “[t]he standard by which the court decides a sum m ary judgm ent m otion does not change when the parties file cross-m otions.” United States v. Kram er, 644 F. Supp. 2d 479, 488 (D.N.J . 20 0 8). Consequently, the court’s evaluation of the pending m otions rem ains unaltered: “the court m ust consider the m otions independently and view the evidence on each m otion in the light m ost favorable to the party opposing the m otion.” Id. (citation om itted). B. The New J ersey Products Liability Act A m anufacturer or seller of a product shall be liable in a product liability action only if the claim ant 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: a. deviated from the design specifications, form ulae, or perform ance standards of the m anufacturer or from 5 otherwise identical units m anufactured to the sam e m anufacturing specifications or form ulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective m anner. N.J .S.A. § 2A:58C– 2. Three causes of action are established under the Act: claim s for design defect, m anufacturing defect, or warnings defect. Roberts v. Rich Foods, Inc., 654 A.2d 1365, 1380 (N.J . 1995). A successful design defect claim under the NJ PLA requires 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. J urado v. Western Gear Works, 619 A.2d 1312, 1317 (N.J . 1993). “Whether a product is defective depends on whether it ‘is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes.’” McGarvey v. G.I. J oe Septic Serv., Inc., 679 A.2d 733, 740 (N.J . Super. Ct. App. Div. 1996) (quoting J urado, 619 A.2d at 1317). To establish a design defect at the sum m ary judgm ent stage, a plaintiff m ust provide sufficient evidence such that a reasonable jury could find “either that the product’s risks outweighed its utility or that the product could have been designed in an alternative m anner so as to m inim ize or elim inate the risk of harm .” Lewis v. Am erican Cyanam id Co., 715 A.2d 967, 980 (N.J . 1998). The plaintiff thus bears a burden to dem onstrate “under a riskutility analysis the existence of an alternative design that is both practical and feasible.” Id. New J ersey courts use a seven-factor balancing test to determ ine whether a product is fit for its intended uses, considering: (1) the usefulness and desirability of the product; (2) the likelihood and seriousness of injury; (3) the availability of a substitute product; (4) the 6 m anufacturer's ability to elim inate the danger without im pairing the product’s utility; (5) the user’s ability to avoid danger by due care; (6) the user’s anticipated awareness of the danger considering general public knowledge or the obvious condition or the existence of suitable warnings or instructions; and (7) the feasibility of the m anufacturer's spreading the loss by setting the price or carrying liability insurance. McGarvey, 679 A.2d at 740 (citing J ohansen v. Makita USA, Inc., 60 7 A.2d 637 (1992)). C. Federal Rule of Evidence 70 2 and Daubert The guiding principles that inform the Court's judgm ent are found in Federal Rule of Evidence 70 2 and Daubert v. Merrell Dow Pharm ., Inc., 50 9 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Federal Rule of Evidence 70 2 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determ ine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, m ay testify thereto in the form of an opinion or otherwise, if (1) the testim ony is based upon sufficient facts or data, (2) the testim ony is the product of reliable principles and m ethods, and (3) the witness has applied the principles and m ethods reliably to the facts of the case. Fed. R. Evid. 70 2. Consistent with that Rule, Daubert established a “trilogy of restrictions” on the adm issibility of expert testim ony relating to scientific knowledge. See Calhoun v. Yam aha Motor Corp., 350 F.3d 316, 321 (3d Cir. 20 0 3). This “trilogy” consists of “qualification, reliability and fit.” Id. The Third Circuit liberally construes the qualifications of an expert, noting that “a broad range of knowledge, skills, and training will qualify a witness as an expert ...” See Yarchak v. Trek Bicycle Corp., 20 8 F.Supp.2d 470 , 495 (D.N.J . 20 0 2) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994) (“Paoli II” )) (internal quotations om itted). The qualifications of Mr. Meinschein are not at issue. 7 With respect to reliability, the focus is on the “principles and m ethodology, not on the conclusions that they generate.” Daubert, 50 9 U.S. at 595. Four benchm arks help determ ine whether a theory or technique qualifies as “scientific knowledge” such that it will assist the trier of fact. See Daubert, 50 9 U.S. at 593. The Court considers: (1) whether the theory can be or has been tested; (2) whether the theory or technique has been subjected to peer review and/ or publication; (3) the rate of error; and (4) whether the theory or technique has been generally accepted within the putative expert's respective com m unity. Id. at 593– 94. The Third Circuit adds other factors, including: (5) the existence and m aintenance of standards controlling the technique's operation; (6) the relationship of the technique to m ethods which have been established to be reliable; (7) the qualifications of the expert testifying based on the m ethodology; and (8) the non judicial uses to which the m ethod has been put. Paoli II, 35 F.3d at 742 n. 8. When considering these factors, the Court's inquiry m ust be a “flexible one.” Id. As for the third prong, Rule 70 2 requires that the “proffered expert testim ony m ust ‘fit’ within the facts of the case.” Yarchak, at 20 8 F.Supp.2d at 496. The fit requirem ent m andates that the testim ony “in fact assist the jury, by providing it with relevant inform ation, necessary for a reasoned decision of the case.” Id. (citing Magistrini v. One Hour Martinizing Dry Cleaning, 180 F.Supp.2d 584, 595 (D.N.J . 20 0 2)). Thus, even if an expert is qualified and relies on sound m ethodology, he m ust still “apply this expertise to the m atter at hand.” See Calhoun, 350 F.3d at 324. These factors are not exclusive. They “are intended to serve only as ‘useful guideposts, not dispositive hurdles that a party m ust overcom e in order to have expert testim ony adm itted.’” Yarchak, 20 8 F.Supp.2d at 495 (quoting Heller v. Shaw Industries, Inc., 167 8 F.3d 146, 152 (3d Cir. 1999)). With the help of these guideposts, the Court perform s its essential gatekeeper role under Federal Rules of Evidence 70 2. III. Analysis There are questions of fact related to whether Plaintiff satisfies his burden of dem onstrating defective design by satisfying the “risk-utility” analysis and whether the design defect is a proxim ate cause of the accident. In addition, the Court rejects Defendant Strip Tech’s argum ent that Mr. Meinschein’s opinion is an unreliable net opinion. Giving Plaintiff the benefit of every doubt and available inference, sum m ary judgm ent is denied because reasonable jurors could disagree as to whether the reasonably foreseeable risk of harm posed by the reasonably foreseeable use of the product could have been reduced or avoided by a reasonably alternative design and whether the defective design is a proxim ate cause of the accident. Here, the parties agree that the risks associated with the use of the m achine are high and that operation of the m achine can be hazardous. The tension in this case is created by the fact that the cage guard was not operational and that there was debris in the area of the m achine which created a tripping hazard for the operator. In addition, although the m achine cam e with various operational guidelines and warnings, Plaintiff’s em ployer Dr. Copper, which is not a party to this action, never properly trained Plaintiff on the use of the alligator shear and did not provide plaintiff with the Operations Manual. See Pl. Dep. at 12. Plaintiff testified that he never used the cage guard while operating the m achine and never saw any of his co-corkers use the cage guard when operating the m achine. See id. at 61:14-63:5; see also Manual, Ex. D, at p. 2-3, 9 & 18. 9 Q. Okay. J ust to go back to what Gio told you in term s of how to operate the shear he told you how to turn it on by pressing the green button; correct? A. Correct. Q. Was there anything else that he told you about how to operate this m achine? A. No. Q. Did anybody else at Dr. Copper provide you with any other inform ation on how to operate the m achine? A. No, Ma’am . Q. Did anybody ever tell you the type of m etal that could be used in the m achine? A. No, Ma’am . Q. Did anybody ever show you or tell you that this what I just referred to as a m etal cage was a guard? A. No. Q. Did you ever use the guard when you operated the m achine? A. I’ve never used the guard and neither has anybody else cause it wasn’t operable at the tim e. It was just there. I didn’t even know what it was for. Q. Okay. So during the entire time that you were at Dr. Copper you never saw anybody use this guard when using the shear? A. Never. Q. And during the entire tim e that you were at Dr. Copper you never used the guard when using the shear? A. Never. Q. Did you ever ask anybody what it was for? A. Yes, I did. I asked Gio what it was for. Q. And what did Gio tell you? A. He said it was supposed to be a safety thing but it doesn’t work. Pl. Dep. at pp. 12, 62. Plaintiff testified that Dr. Copper’s owner advised him that the cage guard was intended to be a safety m echanism , but that it was not operational. See Pl. Dep. Tr. Ex. B, at 61:14-63:5. In addition, he stated that debris in the area of the m achine was com m on. Q. What about other days, did you frequently see debris in that area? A. There was always debris. Q. You said you tripped two to three tim es a shift when walking throughout the – A. Correct. 10 Q. -- warehouse. Did you ever trip prior to the date of the accident near the alligator shear? A. I’ve tripped plenty of tim es near it. Q. What about while operating it, had you ever tripped before? A. Well, the day I was injured, yeah. I got – sam e incident kind of happened prior to m y injury. I used to always roll on the pipes that were on the floor. Q. So the sam e day of your accident you tripped while operating or rolled on the pipes while operating the m achine earlier that day? A. Not that day but prior to, m eaning it did happen so m any – It was frequent within the three m onths that I worked there. p. 74 Q. Did you ever talk to anyone from Dr. Copper about the fact that there was debris all over the floor while you were operating heavy m achinery? A. No. Com plaints were not – Nobody every com plained . Id. at 74. According to Plaintiff’s expert, Mr. Meinschein, inadequate guarding, am ong other factors, caused the accident at issue. See Meinschein Rep, Ex. F. In particular, the fact that the m achine is operational when the guard cage is not utilized creates an inherent danger, as seem ingly recognized by Defendant’s expert. See Dep. Karosas, p. 76: 8-21. Mr. Meinschein’s report m akes the following conclusion as to the risk-utility of the m achine and its relation to the cause of the accident: It is m y opinion that the design of the alligator shear in this case could have been m odified in accordance with the standard and accepted product design hierarchy to incorporate a guard that would have precluded access to the shear point and that would have prevented the accident wherein Mr. Benitez was injured. The article “Equipm ent Focus – Alligator Shears” that was published in the May/ J une 20 0 3 issue of Scrap Magazine details protective cages, two-handed controls, and hand restraints as three techniques to safeguard operators of alligator shears. Of the three safeguarding techniques referenced in the article, it is m y opinion that a protective cage or hand restraints offered feasible alternatives to the defective design of the subject alligator shear. Either of these safeguards would have prevented Mr. Benitez’s accident and would have a negligible effect on the m anufacturing cost of the shear. 11 In New J ersey, an injured plaintiff does not have “ ‘to prove a specific [design] defect.’ ” Myrlak v. Port Auth. of N.Y. & N.J ., 157 N.J . 84, 723 A.2d 45, 52 (1999) (citing Scanlon v. General Motors Corp., 65 N.J . 582, 326 A.2d 673 (1974); Manieri v. Volkswagenwerk A.G., 151 N.J . Super. 422, 376 A.2d 1317 (Ct. App. Div. 1977)). A showing that “ ‘som ething [is arguably] wrong’ with the product[]” is sufficient. Id. (citation om itted). An injured “plaintiff asserting a design defect in a products liability action “m ust 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 m anufacturer.” DiluzioGulino v. Daim ler Chrysler Corp., 385 N.J . Super. 434, 438, 897 A.2d 438, 441 (App. Div. 20 0 6) (quoting Lewis v. Am . Cyanam id Co., 155 N.J . 544, 571, 715 A.2d 967 (1998). Mr. Meinschein’s opinion offers five alternative designs, all of which are utilized in the industry. Defendant’s expert, Mr. Karosas seem s to agree with the availability and utility of three of the alternatives: a portal gated cage, lim iting switch, and a twohand control devices. See Karosis Rep., 57:24-58:15 (two handed controls), 41:743:4 (lim iting switch), 48:25-50 :20 , 47:22-24 (portal cage). Mr. Meinschein also proposes a protective cage and hand restraints, which restrain the hands from m oving under the shear. Against this evidence, a jury could conclude that “the reasonably foreseeable risk of harm posed by the reasonably foreseeable use of the product could have been reduced or avoided by. . .” one of the alternative designs offered by Mr. Meinschein. Indian Brand Farm s, Inc. v. Novartis Crop Prot. Inc., 617 F.3d 20 7, 227 (3d Cir. 20 10 ) (citing Lewis v. Am . Cyanam id Co., 155 N.J . 544, 715 A.2d 967, 980 (1998)) (em phasis in original); see also Diluzio– Gulino, 385 N.J . Super. 434, 897 A.2d at 441 (citation om itted). 12 Here, the fact that the m achine was operable without engaging the safety cage is a foreseeable m isuse of the product and Strip Tech owed Plaintiff a “ ‘duty to prevent an injury caused by the foreseeable m isuse of its product’ .” Truchan v. Nissan Motor Corp. in U.S.A., 316 N.J . Super. 554, 720 A.2d 981, 985 (Ct. App. Div. 1998). In addition, com m on sense portends and it is foreseeable that a m achine that cuts m etal, of all sizes and shapes, will be operated in a setting that is not pristine or devoid of debris. In addition, if the m achine is operable without the engagem ent of the safety function, com m on sense dictates that a foreseeable user will forgo utilizing the safety cage. See J urado v. Western Gear Works, 131 N.J . 375, 619 A.2d 1312, 1317– 1318 (1993) (discussing com m on sense exam ples of “product m isuse”). On this record, the Court finds that the circum stances of Plaintiff’s accident, using the m achine without the safety cage in a debris filled setting are foreseeable. In addition, the record evidence dem onstrates that the jury could find that the alternative designs, which Mr. Meinschein states could have elim inated the hazard posed by the m achine at nom inal cost, m erit denial of Defendant’s sum m ary judgm ent m otion on the basis of the risk-utility analysis. Meinschein Rep., Ex. F; Meinschein Dep., G, pp. 10 6-10 9. For all of these reasons, the Court finds that the record evidence fails to dem onstrate Defendant's entitlem ent to sum m ary judgm ent on the question of design defect because Plaintiff m akes a prim a facie case of design defect and the record contains disputed issues of m aterial fact to be resolved by the jury. Likewise, sum m ary judgm ent is denied on the issue of proxim ate cause. The record indicates several factors at play in the accident that injured Plaintiff. For exam ple, the safety cage was not engaged, debris surrounded the m achine, Plaintiff was never properly trained by his em ployer as to the use of the m achine, and Plaintiff claim s that 13 his steel-toed boot often becam e caught in the m echanism which engaged the pedal that activated the shears. A. I’ve always had an issue using the m achine. The m achine was very dangerous. I m ean I’ve had – m y biggest problem was m y boot getting stuck in the m achine. I had steel toe boots with a rubber toe and every tim e I would place m y foot in this peg as you can see the lip in the m etal I would place m y foot in it and the top of m y toe would get stuck on the top of this m etal (indicating). Q. Okay. A. So pulling m y foot out it would always get jam m ed in there. I would have to either shake it out or just kind of – There was som e kind of like little friction with m y boot and the pedal (indicating). Q. And just so the record is clear when you say peg we can just always say that you’re talking about a pedal; right? A. Yes. Q. Okay. And for the record you were pointing to the photograph Benitez-3. Did you ever tell anybody that you were having this issue with your boot getting stuck in the pedal? A. We spoke about it. Q. I understand you didn’t trip while operating the m achine. Had you tripped earlier that day on debris that was all over the ground? A. Not tripped and fell but tripped, yeah, and held m y balance. That was an everyday event. Pl. Dep. 79-80 . Plaintiff explains the accident as follows: I was cutting – I was cutting pipe. I don’t rem em ber the exact gauge but, you know, I was cutting pipes and I think I was – I want to say it was a chair at the tim e we had to cut and, you know, just held – it was I guess a copper pipe about three feet, four feet long, three feet, yeah, about three feet long. And I had to cut it in half. So I cut the pipe and I dropped the pipe on m y left hand after I m ade the cut and m y foot was in the peg. And as soon as I m ade the cut the m achine – the blade went up and som ehow I tried to pull m y foot out and it didn’t com e out. My left leg stepped on a sm all little pipe, I don’t rem em ber what I stepped on. I know I lost m y balance and to not fall into the m achine I kind of like – and not hit m y face I fell into the m achine and that’s when m y foot m iraculously just cam e out of the m achine. Cam e off the peg and the m achine went up after it already cut three of m y fingers. One was severed and the other two the bones were cut (indicating). . . . Then I want to rem ove m y right foot. This all happened – I went to rem ove m y foot from the pedal as the blade 14 was going up and I lost m y footing with m y left foot that was not in the peg. And when I lost m y footing I dropped the right pipe because I knew I was going to fall and I lost m y footing and placed m y hands on the m achine to prevent m y face from getting hit by the corner of the m achine. Q. Was your left foot stepped on som ething or was it flat on the surface? A. It was stepped – It was on debris. Q. It was on debris? A. Yes. Q. Do you know what kind of debris? A. Sm all pipes – Q. Okay. A. -- that rolled. Cause it wasn’t under m y foot obviously prior from m e cutting copper pipe som ehow. When I couldn’t get m y foot out of the pedal I m oved m y position a little bit and there was a pipe. Q. I see. So when your foot was stuck in the pedal do you think you put your weight back on your right foot – A. Yes. Q. -- at som e point and then stepped back down on your left? A. Correct. Q. And that’s when it stepped on top of the piping – A. Yes. Q. -- that caused you to fall? A. Yes. Q. So when you stepped back onto your right foot it would have depressed the pedal again, correct? A. Yes. Q. Causing the shear to close again, correct? A. Correct. Pl. Dep. pp. 86-7; 92. Although m any factors m ay have contributed to this accident, proxim ate cause is established in a design defect case when the alleged defect acts as a substantially contributing or concurring cause of the injury. See Kem ly v. Werner Co., 151 F. Supp. 3d 496, 50 7– 0 8 (D.N.J . 20 15) (citing N.J . Model Civil J ury Charges at § 5.40 1; Perez v. Wyeth Labs. Inc., 161 N.J . 1, 734 A.2d 1245, 1261 (1999) (“A proxim ate cause need not be the sole cause of harm . It suffices if it is a substantial contributing factor to the harm 15 suffered.”)). In Kem ly, a worker, perform ing duties on a platform m anufactured by the defendant, suffered injuries when he slipped and cut him self on the m etal locking m echanism for the platform 's collapsible legs. Id. As to whether sum m ary judgm ent was m erited on the issue of proxim ate cause, the district court recounted the considerations applicable when com peting factors contribute to an accident, apart from the defect alone. “[F]or exam ple, ‘if, in the present case, the accident had happened when a co-em ployee negligently bum ped plaintiff’ while he dism ounted the work platform , ‘the m anufacturer could [still] be found liable notwithstanding the untoward conduct of the co-em ployee.’ Id. (quoting J urado, 619 A.2d at 1319.) Under this analysis, Strip Tech could still be found liable for a design defect, even though Plaintiff m ay have caused, or contributed to his own fall and the accident. In other words, as noted in Kem ly, the fact that defective design m ay have contributed to or am plified “the severity of Plaintiff's injuries, even if factors unconnected to the defect (like Plaintiff's own carelessness) prim arily created the circum stances” underm ines sum m ary judgm ent. Kem ly, 151 F. Supp. 3d at 50 7– 0 8 (citing J ohnson v. Salem Corp., 97 N.J . 78, 477 A.2d 1246, 1255 (1984) (concluding, in a design defect case, that “the absence of a guard” constituted “at the very least a contributing casual factor in the happening of the accident”). The record in this case does not support granting sum m ary judgm ent on the issue of proxim ate cause. Strip Tech’s m otion is denied on this basis. See, e.g., Kaur v. Standex Int'l Corp., No. 0 6– 2425, 20 0 9 WL 20 160 73, *6 (D.N.J . J uly 7, 20 0 9) (denying a m otion for sum m ary judgm ent based upon factual issues relative to proxim ate cause); Cruz– Mendez v. ISU/ Ins. Servs. of San Francisco, 156 N.J . 556, 722 A.2d 515, 524 (1999) (“[T]he determ ination of proxim ate cause” is rem oved from the jury only “rare case[s].”). 16 Finally, the Court denies Strip Tech’s m otion to preclude the testim ony of Mr. Meinschein pursuant to Daubert. Strip Tech challenges the reliability of Mr. Meinschein’s report on several grounds. Mr. Meinschein did not interview Plaintiff before he prepared the report and Strip Tech claim s that there are inconsistencies in Mr. Meinschein’s report as to the facts Plaintiff alleges occurred. See Ex. G, Meinschein Dep. at 41:2-42:25; see Ex. F, Meinschein Rep., at p. 1; see also Ex. B, Pl. Dep. Tr., at 86:20 95:1. 41. As to Mr. Meinschein’s m ethodology, Strip Tech alleges that Mr. Meinschein speculates and did not provide sound, scientific m ethodology. In addition, Mr. Meinschein did not test the proposed alternative designs and, Defendant argues that he seem ed uncertain as to which alternative was best. For exam ple, Mr. Meinschein testified that “[t]here are an unlim ited num ber of possibilities out there. I haven’t done work to decide which one would be best.” Id. at 121:4-8. All of these argum ents form the basis for Strip Tech’s Daubert m otion. Mr. Meinschein lists a num ber of item s which inform ed his opinion. He relied upon the following in preparation of his report: 1. J MC Recycling System s 320 Shear Product Brochure 2. J MC Recycling System s 320 , 50 0 GT, 40 7i and 40 7 CAT Shear Operation and Maintenance Manual 3. Onsite Consultation Abatem ent Method Advice for: Metalworking Machinery, Michigan Occupational Safety & Health Adm inistration, Consultation Education & Training Division OSC-60 85 (Rev. 6/ 0 5) 4. Worker protection at crocodile (alligator) shears, Guidance Note PM 65, Health and Safety Executive, 1986 5. Purchase docum entation for the subject shear (4 pages) 6. Equipm ent Focus – Alligator Shears, Scrap Magazine Archive, May/ J une 20 0 3 7. Accident Prevention Manual, 11th Edition, National Safety Council, pages 4-5 8. Photographs from m y April 9, 20 13 physical exam ination of the subject alligator shear and accident site. 17 Ex. F, Meinschein Rep. p. 1. Som e of these references are attached to Meinschein’s Expert Report. Mr. Meinschein physically exam ined the m achine. He opines that “the design of the subject J MC Recycling System s Model 320 Shear is defective due to inadequate guarding.” Ex. F, Meinschein Rep., p. 2. Then, Mr. Meinschein sets forth the basis for his proposed alternatives. “The article ‘Equipm ent Focus- Alligator Shears’ that was published in the May/ J une issue of Scrap Magazine details protective cages, two-handed controls, and hand restraints as three techniques to safeguard operators of alligator shears.” Id. 1. The design of the subject J MC Recycling System s Model 320 shear is defective due to inadequate guarding. 2. The design of the subject alligator shear could have been m odified in accordance with the standard and accepted product design hierarchy to incorporate a guard that would have precluded access to the shear point and that would have prevented the accident wherein Mr. Benitez was injured. 3. Feasible alternatives to the defective design of the subject alligator shear include a protective cage or hand restraints, either of which would have prevented Mr. Benitez’s accident and would have had a negligible effect on the m anufacturing cost of the shear. Notably, while Mr. Meinschein opines as to the availability of a lim iting switch in deposition, that term does not appear in his report. Although “an expert is not strictly lim ited to the precise words contained within an expert report, it is axiom atic that an expert m ay not present new opinions on topics not tim ely included or otherwise disclosed in the expert's report.” Krys v. Aaron, 112 F. Supp. 3d 181, 20 7 (D.N.J . 20 15) (citing Fed.R.Civ.P. 26(a)(2)(B) (providing that an expert report “shall contain a com plete statem ent of all opinions to be expressed and the basis and reasons therefore”)). During deposition, Mr. Meinschein clarified that the lim iting switch 18 relates to the operation of the m achine despite the protective guard not being engaged or functional. Q. Even though that guard had not been lowered down, that m achine was still operational? A. Correct. Q. Okay. Are you aware of anything that would either activate or deactivate the operation of a m achine should a guard not by (sic) lowered? A. Sure. Q. What is it called? A. It’s either a lim it switch or a proxim ity switch or an inclination switch. Any one of them , in this case, would’ve done that. Q. Okay. And this m achine did not have that? A. Correct. Q. What is the cost for that? A. The cost of the hardware, even the m ost sim ple one would be less than $ 10 , let’s say. Ex. F., Meinschein Dep., 10 4:5-25. Mr. Meinschein ties Defendant’s conduct to Plaintiff’s injury by virtue of the fact that the m achine, as designed, rem ains operable without the engagem ent of the protective cage to the proxim ate cause of the accident. Q. Okay. With respect to that activator switch that triggers the use of the m achine when the guard is lowered, is that m echanism to be provided by the m anufacturer or by the end user? A. That would be the m anufacturer. Q. Okay. With respect to the cage—or the guard—not the cage but the guard with the portal, is that, once again, som ething from the m anufacturer’s end or the end user’s end? A. That would be the m anufacturer. Ex. F., Meinschein Dep., 135:13-25- 136:1. Here, a protective cage was installed on the m achine by Strip Tech. The record evidence suggests, and the parties agree, that the guard, even when utilized, still exposes the operator to a hazard because the m achine is designed to cut objects of various sizes leaving the guard in disparate positions of utility. In this instance, even Mr. Meinshein 19 agrees that when the accident occurred, even if the cage was em ployed, a window would have existed for Plaintiff’s hand(s) to access the shears. Ex. G. Meinschein Dep., 49:1525; Karosas Dep., 93:8-24. Although it appears from the record that the m achine always dangerous, Mr. Meinschein states that had the guard “been lowered sufficiently so that when he did lose his balance, if he reached over and grabbed the guard instead of the edge of the table, that would’ve prevented that.” Id. at 10 1:12-16. The fact that the m achine was operable even when the guard was either not used or not functional is in Meinschein’s opinion, evidence of a defect. Whether or not use of the guard would have prevented the accident at issue is a question for the jury. Mr. Meinschein’s testim ony in this regard is reliable, and to som e degree based on com m on sense. The rem ainder of Mr. Meinschein’s opinion as it relates to the alternative design is thin, but bears an adequate indicia of reliability which satisfies Fed. R. Evid. 70 2. The Court notes that the Rules of Evidence encourage adm issibility and do not require an expert to dem onstrate the correctness of their opinion. Id. Certainly, as dem onstrated in deposition, Mr. Meinschein’s testim ony is at tim es confusing, but that confusion appears to be the byproduct of Meinschein and opposing counsel holding different definitions of som e of the protections offered as alternatives. For exam ple, a large part of the Meinschein’s deposition centers on the contours of a “protective cage” versus a “protective guard.” Meinschein clarifies on cross exam ination that his references are consistent with the article attached to his report, but there is record evidence of conflation of the term s by Mr. Meinschein and opposing counsel. Ex. F., Meinschein Dep., 10 2: 6-25. Given Mr. Meinschein’s references to relevant industry recom m endations, which are already in the m arket place on som e m achines, the Court finds the testim ony reliable. Opposing counsel’s attem pt to underm ine Mr. Meinschein’s 20 testim ony is not without force as to the weight of the testim ony, but does not sufficiently undercut reliability for evidentiary purposes. Mr. Meinschein will be subject to vigorous cross-exam ination during trial, but given Mr. Meinschein’s references to relevant industry recom m endations and because Defendant’s Expert, Mr. Karosas seem s to agree to the availability and use of a portal gated cage and two hand control devices, and a lim iting switch, an adequate indicia of reliability exists. See Ex. F. Meinschein Dep., 10 6:24-10 7:1-24; Karosas Dep., 41:7-43:4; 10 5:17-10 6:9; 50 :16-51:1. Finally, Strip Tech’s attack on the reliability of the alternatives, because Mr. Meinschein did not perform any tests, does not render Mr. Meinschein’s opinion unreliable per se. This Court has previously noted that testing dem onstrates scrupulous scientific inquiry. Kolokowski v. Crown Equip. Corp., No. CIV.A 0 5-4257, 20 0 9 WL 2857957, at *7 (D.N.J . Aug. 27, 20 0 9). It also dem onstrates the feasibility of the proposed alternative design. Id. However, testing is not necessary where the alternative design is on the m arket, or recognized in the industry, perform ing “the sam e or very sim ilar function at lower risk and com parable cost.” Ixcopal v. Crown Equip. Corp., No. A-220 8-14T3, 20 17 WL 1456965, at *5 (N.J . Super. Ct. App. Div. Apr. 25, 20 17) (quoting Green v. General Motors Corp., 310 N.J . Super. 50 7, 524– 25 (App. Div.), certif. denied, 156 N.J . 381 (1998) (quoting Restatem ent (Third) of Torts: Products Liability § 2 com m ent f)). Here, because the alternatives are recognized within the industry and Strip Tech’s expert Mr. Karosis agrees, at least in part, to the utility of at least three of the five proposals, Mr. Meinschein’s failure to test does not underm ine the reliability of his proposals in this case. See Meadows v. Anchor Longwall and Rebuild, Inc., 30 6 Fed. Appx. 781, 788 (3d Cir. J an.13, 20 0 9) (observing evidence of industry practice is useful 21 in evaluating reliability in cases where technical issues like engineering arise (citing Pineda v. Ford Motor Co., 520 F.3d 237, 248 (3d Cir. 20 0 8))). As a result, Strip Tech’s m otion for sum m ary judgm ent [61] will be denied. An appropriate Order shall issue. Dated: J une 28, 20 17 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge 22