ROBERT REYNOLDS v. ACTION ENTERPRISES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1093-10T4

ROBERT REYNOLDS,

Plaintiff-Appellant,

v.

ACTION ENTERPRISES, and

RAGHETTI-RIDOLFI,

Defendants-Respondents,

and

GOLD KARTS, YAMAHA SPORTSMAN

PACKAGE, and KART WAREHOUSE, U.S.A.,

Defendants.

__________________________________________________

December 6, 2011

Argued October 4, 2011 - Decided

Before Judges Messano and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0210-07.

Patrick B. Minter argued the cause for appellant (Graham Curtis, attorneys; Francis J. Sweeney, on the brief).

Randi S. Greenberg argued the cause for respondent Action Enterprises (J. Stewart Grad, attorney; Mr. Greenberg, on the brief).

Thomas G. Lynch argued the cause for respondent Raghetti-Ridolfi (Law Offices of Thomas G. Lynch, attorneys; Mr. Lynch, on the brief).

PER CURIAM

Plaintiff Robert Reynolds appeals from the Law Division's order denying reconsideration of a prior order granting defendants Action Enterprises (Action) and Raghetti-Ridolfi (Raghetti) summary judgment and dismissing plaintiff's products liability complaint with prejudice. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.

Plaintiff alleged that on October 25, 2005, while operating a go-kart purchased from and assembled by Action, the brakes failed causing him to crash and injure himself. His complaint also named as a defendant Raghetti, the go-kart's Italian manufacturer.

Discovery revealed that plaintiff had purchased a second, identical go-kart on the same day. He drove that go-kart in the parking lot of a business park without incident. On his fourth or fifth lap around the business park in the subject go-kart, plaintiff alleged he stepped on the brake and it failed. He steered the go-kart away from a building and crashed over a curb suffering multiple fractures of his right foot. Plaintiff inspected the go-kart "a few months after the accident." He noticed that the metal rod which linked the brake mechanism to the foot brake was no longer attached. A clevis pin that secured the connection was also missing.

During discovery, another defendant, Kart Warehouse U.S.A., produced the July 29, 2005 World Karting Association (WKA) pre-race technical guidelines and a McMaster-Carr catalog with technical drawings of the braking mechanism. The WKA guidelines described a "self locking clevis pin," "pass[ing] through the clevis and brake pedal," which, while "in position," "provides a positive retention." However the guidelines noted that "the clip is made of thin steel and may lose tension with use. It may also be inadvertently dislodged." Further, "[t]o be approved at pre-race tech, the clip must be secured with a wire tie . . . ." In answers to interrogatories, Raghetti certified that it sold the go-kart to Kart Warehouse in a "partly unassembled" state. The go-kart was built "exclusively for races." Raghetti provided no "manual/handbook," and "didn't provide any installation and/or maintenance service." Raghetti asserted that the "fixing system of the brake pump to the brake pedal . . . [was] still used and . . . [was] considered extremely safe." Raghetti was unaware of any clevis clip ever breaking and asserted "the loss of [the clip was] due to incorrect installation, probably caused by the driver or by the mechanic who took care of maintenance."

On January 9, 2007, plaintiff's expert, Ronald Saxon, P.E., inspected both go-karts and reviewed other documents in preparation of his report. Saxon observed:

The cart had only a single brake, . . . [and] did not have a redundant mechanical braking system . . . . However, such a device would only have utility if the brake pedal linkage failed, and properly designed, it was reasonable to expect that the mechanical linkage would be robust and reliable. The issue facing the designers, assemblers and distributers [sic] of the [k]art was thus whether or not the linkage, as designed, was robust and reliable.

Saxon's June 2, 2008, report stated that the "critical function" of the brake system was "dependent upon the integrity of a single link" which "[had to] be eminently reliable." Reliability depended upon "[s]trength and redundancy." As to strength, Saxon concluded "[t]here were no indications that the brake link itself had failed," or that any of the various components "were not strong enough for their intended application." But, Saxon noted, there was "no redundancy in the means for retaining the clevis pin -- the link between the brake pedal and the brake operating rod."

Saxon concluded that "a critical component of the braking system, an intentionally easy to remove clevis pin with a single level of security, came free during operation, causing the loss of brakes." Saxon further opined, "The design of the cart was fundamentally defective: a critical component of the braking system was inherently defective in that retention of the clevis pin relied on the uncertain security of a fragile clip, and there was but a single level of retention."

In his deposition, Ronald E. Shook, president of Action testified that his company assembled component parts on the go-karts for final sales to customers. Shook explained that six or seven different manufacturers "suppl[ied] the products to make a complete kart." In assembling the go-karts for individual consumers, Action "follow[ed] the World Karting Association technical regulations." He further explained that those guidelines are "accept[ed] . . . for racing in the State of New Jersey." A chapter of the guidelines explicitly "outline[d] [the] brake details."

The case was listed for trial on June 14, 2010. At that time, the only remaining defendants were Action and Raghetti.1 On the day of trial, both defendants moved in limine to bar plaintiff's liability expert's report as a net opinion and to dismiss plaintiff's complaint. Plaintiff was given an opportunity to oppose the motion.2

We were advised at oral argument that later the same day, the judge issued his oral opinion on defendants' in limine motion. He concluded that Saxon's report provided an inadmissible "net opinion." He explained his reasoning as follows:

First of all, the clip wasn't identified. The pictures were taken more than two months later. We have no idea whether that clip caused this accident.

In addition . . ., that goes also to the issue . . . of [Jurado].3 [Jurado] is very clear. The expert has to say it's not reasonably fit, suitable, and safe for its intended or reasonably forseeable purpose. The whole purpose of a defect design case is that there could have been a better way, for example, to design a matter. That it was a design problem and that it should have been prevented. . . . [F]irst of all, there should have been some knowledge that there was a problem with it.

There's nothing in this report about this. [Saxon] simply says . . . the clip isn't there, logically, I guess it must have broken. And clearly there should have been the redundant system. Well, why? What evidence is there that it's appropriate to establish a redundant system. . . . [Saxon] would have to say to me that a . . . go cart of this type needs a redundant system in order to make it reasonably fit, suitable, and safe for its intended purpose. He doesn't touch that topic at all.

So's there no factual underpinning in that he didn't see the clip.

. . . .

[H]e has no facts upon which he can conclude. I mean, maybe the guy's foot slipped off the brake, we don't know. Maybe something else happened. We have absolutely no idea. The clip is not available for inspection. The picture was taken more than two months later. . . . [T]here's no facts . . . underpinning his opinion .

An order reflecting these conclusions and dismissing the complaint was entered on June 24, 2010.

On July 14, 2010, plaintiff moved for reconsideration. Apparently while the motion was pending, on August 23, 2010, plaintiff amended his answers to interrogatories to include a supplemental one-page report by Saxon dated July 30, 2010. Saxon noted that his earlier report included mention of industry standards requiring the use of an additional "fastener" for the clevis pin, and that alternative clevis pin designs were available. He further noted that his use of the term "defective" in his original report was intended to mean that the braking mechanism was not "'fit, suitable and safe for its intended purpose.'" He further observed that when the go-kart was to be used on a "controlled track," the original equipment -- the clevis clip -- "was required to be wired in place."

On September 27, 2010, the judge denied the motion for reconsideration without oral argument. In a written statement of reasons that accompanied the order, the judge concluded that Saxon's report expressed a "net opinion" that "fail[ed] to 'explain a causal connection between the . . . incident complained of and the injury . . . resulting [therefrom].'" Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 526 (App. Div. 2007) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)), certif. denied, 194 N.J. 272 (2008). The judge denied the motion for reconsideration because plaintiff failed to demonstrate that, in dismissing his complaint, the court "acted in an arbitrary, capricious, or unreasonable manner." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). This appeal followed.

Plaintiff posits both procedural and substantive arguments before us. First, he argues that the motion in limine was a thinly-veiled motion for summary judgment because the complaint had to be dismissed if Saxon's report was excluded. Plaintiff contends, therefore, that the motion was not filed within the appropriate time limits and should not have been considered. See R. 4:46-1 (requiring motions for summary judgment to be returnable no later than thirty days before trial). Alternatively, plaintiff contends the motion in limine was procedurally infirm because it was not filed and served seven days prior to trial. See Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b) at 2606 (2012) (requiring a pre-trial information exchange, including in limine motions, seven days before trial).

Substantively, plaintiff argues two other points. First, he contends that having failed to depose Saxon, defendants were barred from moving to strike his report as a net opinion. Alternatively, plaintiff argues Saxon's report was not a net opinion and should not have been stricken.

We review a decision regarding the admission of expert testimony under an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "[I]n making relevance and admissibility determinations," the trial judge's exercise of his "broad discretion" "will not [be] disturb[ed], absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008). However, we accord no such discretion to a ruling that is "inconsistent with applicable law." Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2012).

We do not accept plaintiff's assertion that an opposing party must depose an expert or else relinquish the opportunity to exclude the expert as a witness at trial. In this regard, plaintiff misapplies our holding in McCalla v. Harinschfeger Corp., 215 N.J. Super. 160 (App. Div.), certif. denied, 108 N.J. 219 (1987), and the Law Division's holding in Ferrante v. Sciaretta, 365 N.J. Super. 601 (Law Div. 2003).

In those cases, objections to the "net" nature of the expert's opinions were based upon the lack of any detailed bases for the conclusions contained in the report, and the desire of the offering party to have the expert explain the bases through additional documentation not specifically contained or cited in the reports. In McCalla, supra, 215 N.J. Super. at 172, we concluded that a party "had no right to eschew discovery and then object to the admission of the materials that were fairly obtainable through interrogatories or depositions, and which logically flowed from the expert report already provided." See also Ferrante, supra, 365 N.J. Super. at 609.

Defendants here did not object to Saxon's report because it relied upon documents or information, previously unsupplied, to supplement the four corners of the document. See e.g., Conrad v. Robbi, 341 N.J. Super. 424, 440 (App. Div.) ("Expert testimony that deviates from the pretrial expert report may be excluded if the court finds the presence of surprise and prejudice to the objecting party.") (quotation omitted), certif. denied, 170 N.J. 210 (2001). Rather, defendants' essential contention was that Saxon's conclusions were speculative, not grounded in observation and lacking in any reference to an "objective standard."

While not accepting plaintiff's broad assertion that the failure to depose Saxon was the death knell of any challenge to his report, we nonetheless recognize the inherent unfairness of bringing a motion to strike a necessary expert's testimony on the day of trial. Initially, that procedure violates Rule 4:25-7(b), which, counsel asserted at argument before us, is honored more often in the breach. Considering a motion in limine filed on the day of trial implicitly condones this violation of the Rules. Moreover, presenting the motion on the day of trial does a disservice to the judge and opposing counsel. The Rule permits opposition to the motion in limine to be filed no later than two days before trial. See Pressler & Verniero, Current N.J. Court Rules, supra. The trial judge should have the opportunity to consider the motion in limine and any opposition in a manner that promotes comprehensive consideration of the issue and its potential implications for the trial.

Putting aside these procedural issues, we have repeatedly cautioned trial courts against consideration of such motions in limine. See Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988) (noting that "in limine rulings on evidence questions . . . should be granted only sparingly and with the same caution as requests for dismissals on opening statements"); Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 46-47 (App. Div. 1990) (noting that a hearing on motion in limine required judge to make factual determinations more properly left to the jury), modified and remanded, 125 N.J. 421 (1991); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 104 (2011). Heightened caution is appropriate when the motion in limine is made on the day of trial and has the potential to summarily dispose of the case, as happened here.4

Turning to the sufficiency of Saxon's report, it is axiomatic that in a design defect case, a plaintiff must prove that the product "was not reasonably fit, suitable or safe for its intended purpose because it . . . was designed in a defective manner." N.J.S.A. 2A:58C-2. A plaintiff has the burden of proving that (1) the product was defective; (2) the defect existed when the product left the hands of the defendant; and (3) the defect caused injury to a reasonably foreseeable user. Jurado, supra, 131 N.J. at 385.

An expert's bare opinion that has no support in factual evidence or similar data is a net opinion which is not admissible and may not be considered. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). Thus, an expert is required to state "the 'why and wherefore' of his opinion[s], not just . . . mere conclusion[s]." Koruba, supra, 396 N.J. Super. at 526 (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

Saxon had the benefit of plaintiff's testimony, which, for purposes of considering the sufficiency of the report, had to be credited as truthful. In this regard, plaintiff, an experienced driver, drove both go-karts on the day of purchase. He was able to apply the brake on the other go-kart without incident, and he utilized the brake on the subject go-kart several times before the crash. He testified that just prior to the crash, he stepped on the brake and it failed. The judge's speculation regarding plaintiff's misuse of the brake as a possible explanation for the crash was improper.

The judge's comments regarding Saxon's failure to examine the clevis pin assembly on the subject kart also prejudiced fair consideration of the report. Saxon did not examine the actual clevis pin because it was missing. However, he examined an identical kart that plaintiff purchased on the same day. At oral argument before us, counsel for Action conceded that failure to examine the product component that actually failed cannot, in and of itself, render the expert's opinion a net opinion. See e.g., Kimball Int'l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 615-16 (App. Div. 2000), certif. den. 167 N.J. 88 (2001)(complaint should not be dismissed where defense expert was unable to inspect an inadvertently discarded chair because plaintiff was not negligent in respect of its loss, there was equivalent evidence for inspection, and the adversary was not unduly prejudiced); Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 80 (3d Cir. 1994) (where plaintiff's theory of the case postulated that all defendant's products were defectively designed, the defendant could examine its other like products and, accordingly, was not prejudiced by plaintiff's missing product).

These background facts were all instrumental to plaintiff's proof of a design defect that caused the accident. In other words, plaintiff asserted that the circumstantial evidence supported Saxon's conclusion that the braking linkage failed because the clevis pin dislodged or broke, and the lack of redundancy in the system rendered the go-kart "not reasonably fit, suitable or safe for its intended purpose."5

Circumstantial proof of a product defect has long been recognized as acceptable and sufficient. See e.g., Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 98 (1999); Moraca v. Ford Motor Co., 66 N.J. 454, 458 (1975); Scanlon v. Gen. Motors Corp., 65 N.J. 582, 591 (1974). In Lee's Hawaiian Islander, Inc. v. Safety First Prods., Inc., 195 N.J. Super. 493, 503 (App. Div.), certif. denied, 99 N.J. 205 (1984), we specifically applied such analysis to a design defect case, noting our agreement with the trial judge's conclusion that "the triggering failure [of a fire suppression system] itself created an inference of defect." In Moraca, supra, 66 N.J. at 459, the court held that a jury issue is presented where "[t]he totality of the evidence and circumstances, if plaintiff's proofs are credited, tend to negate other possible causes of the accident and indicate that more likely than not a critical malfunction in the steering system occurred." Such reasoning applies in this case to the unexpected failure of the brakes in plaintiff's newly-purchased go-kart.

Saxon offered an explanation for that failure, i.e., the failure of the clevis pin linkage. He also provided an opinion, which, on the record presented to us, was specific as to the design defect and rooted in industry standards regarding the brake assembly. In other words, because the specific clevis pin used might fail, the design required redundancy. Such a design standard was not a personal, speculative opinion held by Saxon. The record indicates that the WKA required such redundancy before any go-kart was used in racing conditions. Raghetti acknowledged that the go-kart purchased by plaintiff was manufactured to be raced competitively. In short, we do not believe Saxon's report was a net opinion, and the decision to strike the report was a mistaken exercise of the judge's discretion.

R

1 It is unclear from the record how the claims against the other defendants were disposed of.

2 The record does not include the actual motions filed by defendants or plaintiff's opposition. Our consideration of the issues presented on appeal includes items contained in plaintiff's appendix. Defendants have lodged no objection to these items being outside the record created in the trial court.

3 Jurado v. Western Gear Works, 131 N.J. 375 (1993).

4 Our words should not be construed as accepting plaintiff's argument that the time constraints of Rule 4:46-2 apply. We believe that argument lacks sufficient merit to warrant any discussion. R. 2:11-3(e)(1)(E).

5 We recognize that Saxon's initial report did not use the statutory definition. However, in our view, the conclusion was obvious, and any shortcomings created by the report's inartful language could have been easily cured had Saxon been permitted to testify.