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DOCKET NO. A-4458-09T3







May 5, 2011


Argued January 3, 2011 - Decided


Before Judges Lisa, Reisner, and Sabatino.


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1786-09.


Jacqueline C. Herritt argued the cause for appellant (Kimmel & Silverman, P.C., attorneys; Ms. Herritt, on the brief).


Kevin M. McKeon argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. McKeon, on the brief).


Plaintiff Mayur S. Patel, the dissatisfied purchaser of a 2008 Acura TL-S, appeals summary judgment granted by the Law Division to defendant American Honda Motor Co. Inc. ("the manufacturer"). The trial court's ruling dismissed plaintiff's three-count complaint against the manufacturer asserting claims under the New Jersey Motor Vehicle Warranty Act ("the Lemon Law"), N.J.S.A. 56:12-29 to -49; the Magnuson-Moss Federal Trade Commission Improvement Act (the "Magnuson-Moss Act"), 15 U.S.C.A. 2301 to 2312; and the Uniform Commercial Code (the "U.C.C."), N.J.S.A. 12A:1-101 to :12-26. We affirm.

We summarize the pertinent facts, viewing them in a light most favorable to plaintiff, the party against whom summary judgment was sought. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see R. 4:46-2.

Plaintiff bought the Acura TL-S new in July 2008 from a New Jersey dealership. The vehicle was sold with a four-year, 50,000-mile limited warranty from the manufacturer. Shortly after his purchase, plaintiff began to perceive various difficulties with the Acura, which included noise, vibration, and braking problems. He brought the Acura to authorized dealers of defendant for repairs on nine separate occasions within nineteen months. He alleges that none of those repairs resolved the problems with the car.

Plaintiff contends that the problems that he identified with the Acura were substantial, and that they constitute defects that entitle him to relief under the Lemon Law and the other statutes he invokes. Even so, plaintiff managed to accumulate over 24,000 miles on the Acura in sixteen months of usage through December 2009.

The main problem that plaintiff complained about was an allegedly-persisting vibration in or around the gas pedal and, to a lesser extent, in the steering wheel, when the Acura was driven at certain speeds. He also complained about rattling within the car and a "clicking" noise.

To support his claims, plaintiff relied upon a report from an automotive expert, Scot Turner, who inspected the car and performed a road test. Turner detected the vibration, opining that it was "foot-numbing" at a speed of 65 mph. Turner further noted a vibration when the vehicle was slowing and reaccelerating, as well as other miscellaneous problems. In Turner's opinion, these defects caused the Acura to be in only "fair" condition. He estimated that the difference in the value of the car if it were in excellent condition, versus its supposedly fair condition, is 13.7 percent.

After defendant moved for summary judgment, Judge Nelson Johnson heard oral argument and issued a written decision. Applying the Brill standard to the record facts, the judge concluded that the problems with the Acura complained about by plaintiff were insufficient to rise to the level of a compensable defect. In particular, as to the main complaint of vibration, the judge found that plaintiff had failed to demonstrate that "the vibration felt falls outside of the normal performance standards of the vehicle." In the course of his analysis, the judge rejected Turner's expert report as an improper net opinion.

Plaintiff now appeals. He argues that the trial judge erred in dismissing his claims under the three statutes cited in the complaint. He further argues that the judge erred in excluding Turner's expert report as a net opinion.

In reviewing the order granting summary judgment, we apply de novo the same standards that govern trial courts under Brill and Rule 4:46. Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). Having done so, we concur that summary judgment was appropriately granted because the pleadings, discovery, and other materials on file "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We therefore affirm the trial court's disposition, substantially for the reasons set forth in Judge Johnson's written opinion dated April 16, 2010. Only a few comments are warranted.

The mere existence of a defect in a vehicle is insufficient to establish a claim under the Lemon Law. The defect must rise to the level of a substantial nonconformity that impairs the use, value, or safety of the vehicle. N.J.S.A. 56:12-30. Whether an alleged defect causes substantial impairment depends on both subjective and objective evidence. Berrie v. Toyota, 267 N.J. Super. 152, 157 (App. Div. 1993). "[T]he facts must be examined from the viewpoint of the buyer and his circumstances," while bearing in mind "what a reasonable person in the buyer's position would have believed." G.M.A.C. v. Jankowitz, 216 N.J. Super. 313, 335 (App. Div. 1987) (quoting 67A Am. Jur. 2d Sales 1203 (1985)).

The record reflects that the noise and vibration problems reported by plaintiff are essentially subjective in nature and objectively do not constitute a substantial impairment. The dealership explained to plaintiff that the Acura TL Type-S, with its high-powered engine and sport struts, was a sportier model than the Acura TL that he had previously owned, and that greater vibration was normal in the TL Type-S.

During his deposition, plaintiff notably described the main problem with the car in minimal terms, as "a very small vibration" one that is "less than a cell phone." Although plaintiff's expert Turner detected the vibration at high speeds, he never stated in his report that the level of vibration was abnormal. Given these facts, the trial judge did not err in concluding that the vibration did not substantially impair the use, value, or safety of the Acura. See N.J.S.A. 56:12-30. Nor do any of the other miscellaneous defects identified by plaintiff meet the required degree of severity under the statute.

Plaintiff's claims under the Magnuson-Moss Act and the U.C.C. are likewise inadequate. Even viewing the record in a light most favorable to plaintiff, the proofs do not establish a breach of the manufacturer's limited warranty under the Magnuson-Moss Act simply because the vibration and other perceived minor flaws with the car were not eliminated. Nor do the proofs show that the warranty failed to achieve its essential purpose. See Jankowitz, supra, 216 N.J. Super. at 330; 15 U.S.C.A. 2310(d)(1). In addition, plaintiff's proofs fall short of demonstrating under the U.C.C. that the Acura was not "reasonably fit for the general purpose for which it is manufactured and sold." Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 370 (1960).

The exclusion of Turner's expert report under the net opinion doctrine was sound. An expert's "bare conclusions, unsupported by factual evidence" are inadmissible as a net opinion. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The expert is required "to give the why and wherefore of his expert opinion, not just a mere conclusion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). A net opinion is insufficient to satisfy a plaintiff's burden on a motion for summary judgment. Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008); Smith v. Estate of Kelly, 343 N.J. Super. 480, 497-98 (App. Div. 2001).

Here, Turner did not provide a sufficient "why or wherefore" to support his conclusory opinion that the vibration and various other aspects of the Acura amounted to substantial defects. Turner pointed to no objective standards for unacceptable vibration in a sports car. Nor did he explain why the rest of the physical aspects of the car that emerged in the road test fell below industry standards. The 13.7 percent diminution in value that Turner ascribes to the car perhaps an objective finding on the surface artificially ties a number to what amounts to bare, subjective conclusions about the vehicle's condition. The trial judge consequently did not err in finding that Turner's expert opinions in this case were insufficient to present to a jury.