Ebenhoech v. Koppers Industries, Inc., No. 00-5641(JBS).

CourtU.S. District Court — District of New Jersey
Writing for the CourtSimandle
Citation239 F.Supp.2d 455
PartiesAlbert W. EBENHOECH and Gail Ebenhoech, h/w, Plaintiffs, v. KOPPERS INDUSTRIES, INC., et al., Defendants.
Docket NumberNo. 00-5641(JBS).
Decision Date24 December 2002
239 F.Supp.2d 455
Albert W. EBENHOECH and Gail Ebenhoech, h/w, Plaintiffs,
v.
KOPPERS INDUSTRIES, INC., et al., Defendants.
Civil No. 00-5641(JBS).
United States District Court, D. New Jersey.
December 24, 2002.

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Gary F. Piserchia, Esquire, Parker, McCay & Criscuolo, P.A., Marlton, NJ, for Plaintiffs.

Stuart M. Goldstein, Esquire, Hollstein, Keating, Cattell, Johnson & Goldstein, P.C. Marlton, NJ, for Defendant

OPINION

SIMANDLE, District Judge.


This Court is presently called upon to decide, among other issues, an issue of first impression, namely whether an action may lie in New Jersey products liability law when a tank car used to transport a hazardous chemical has some of the hazardous chemical on its exterior and causes injury to an employee of the consumer of the chemical. For the reasons that follow, this Court finds that a plaintiff injured by the chemical spill may allege that the tank car, with the spill on its exterior, suffers from a manufacturing defect.

This Court will also decide the issues presented in the following motions: (1) plaintiffs' motion to bar testimony of, or admission into evidence of, various incident reports of plaintiffs employer and testimony or evidence of the amount of plaintiffs lump sum retirement payment, (2) defendant's motion to strike plaintiffs' products liability claim, (3) defendant's motion to dismiss plaintiffs' cause of action and damage claim, (4) defendant's motion to strike plaintiffs' claim of future wage loss and preclude evidence thereof, (5) defendant's motion to admit evidence regarding plaintiffs conduct at trial, (6) defendant's motion to preclude opinions of plaintiffs' expert, and (7) defendant's motion to deem its requests for admissions be admitted. Several aspects of these motions have been resolved.1

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The Court thus needs to decide the issues presented in five motions: (1) plaintiffs' motion to bar admission into evidence of Solutia's unusual incident report, (2) defendant's motion to preclude opinions of plaintiffs' expert, (3) defendant's motion to admit evidence regarding plaintiffs conduct at trial, (4) defendant's motion to dismiss plaintiffs' cause of action and damage claim, and (5) defendant's motion to strike plaintiffs' products liability claim.

This Court will first consider the evidentiary motions and will grant plaintiffs motion by finding the unusual incident report is inadmissible, will grant defendant's motion to preclude the strict liability opinion of plaintiffs expert, and will grant defendant's motion to admit conduct evidence subject to restrictions on the use of the evidence. Then the Court will consider the two motions relating to plaintiffs causes of action and will deny the negligence motion and will deny in part the products liability motion, so that the negligence claim and manufacturing defect products liability claim will proceed to trial.

I. BACKGROUND2

On November 2, 1998, plaintiff Albert Ebenhoech, as chief chemical operator at Solutia, Inc., slipped and fell about fifteen feet off the side of a tank car and severely injured his left leg. Plaintiff alleges that defendant Koppers Industries should be liable under a negligence or products liability theory for spilling a hazardous chemical called phthalic anhydride on the rail ear and for not cleaning it off prior to shipping the car to Solutia. Phthalic anhydride ("PAA") is a liquid chemical that solidifies in ambient conditions and can cause thermal burns, allergic respiratory reactions, and eye and skin burns. When solidified, PAA appears as a white crystalline substance.

On November 2, 1998, plaintiff was asked to decontaminate a tank car that had arrived at Solutia's facilities about one week prior. The tank car was lea‹ed to Solutia by defendant Koppers for use in transporting the PAA. Plaintiff says that when he observed the PAA crystalized on the sides of the rail car when it arrived at Solutia, he was aware that he would need to clean the spill. Plaintiff was assisted in the clean-up operation by another worker, Ed Tokley.

Solutia's PAA cleaning process included two steps. First, a large plastic drum with two holes in the bottom was positioned either on a flat domed platform or directly on top of the rail car to be cleaned. Next, soda ash was mixed with warm water from a hose inside the drum. As the solution mixed, it would flow out of the bottom drum holes and over the PAA on the sides of the rail car and would break up the solidified PAA. The PAA would then fall off the side of the rail car and into a catch pan.

At the time of plaintiffs accident, plaintiff says he was on the top of the tank car

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with the drum in the area where the PAA had spilled, which was outside the protected domed platform area. Plaintiff, handling the hose that was supplying the warm water, slipped and fell as he walked across the top of the rail car toward the platform area. He acknowledged that "personal fall protection" was available at Solutia for certain jobs, but he did not use such equipment during the clean up. Instead, he wore only a hard hat, gloves, work shoes, and safety glasses. Plaintiff also testified that he never wore fall equipment when he had performed similar rail car cleanings in the past.

On October 4, 2000, plaintiff filed this action in New Jersey Superior Court, Camden County. On November 16, 2000, defendant removed the case to this Court, citing diversity jurisdiction. On July 6, 2001, defendant filed a motion for summary judgment which was denied by this Court on January 16, 2002. [Docket Items 11-1.] Since then, the parties have filed the seven motions in limine at issue here.

II. DISCUSSION

A. Standard of Review

This Court may hear the present motions in limine because it has the inherent authority to manage cases brought be fore it.3 Luce v. United States, 469 U.S. 38, 40 n. 2, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). An "in limine ruling on evidence issues is a procedure which should, in the trial court's discretion, be used in appropriate cases." In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir.1983), rev'd on other grounds sub nom., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). One such appropriate case is where the court can shield the jury from unfairly prejudicial or irrelevant evidence. See United States v. Romano, 849 F.2d 812, 815 (3d Cir.1988). The in limine motion then fosters efficiency for the court and for counsel by preventing needless argument at trial. New Jersey Civil Procedure § 16-2:2 (citing Bradley v. Pittsburgh Bd. of Educ, 913 F.2d 1064, 1069 (3d Cir.1990)). However, the ruling should not be made prematurely if the context of trial would provide clarity. Japanese Elec, 723 F.2d at 260.

B. Analysis

1. Plaintiffs motion to bar admission of Solutia's "Unusual Incident Report"

In this motion, plaintiffs seek to exclude an unusual incident report created

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by plaintiffs employer after the accident. Plaintiffs argue that the Solutia report should be excluded because it is not relevant4 since it deals with Solutia's actions and not Koppers, and because it is hearsay.5 (Pis.' Br. at 3-6.) Defendant argues that it is relevant to the issue of fault and that it is admissible under either the records of regularly conducted activity exception, Fed.R.Evid. 803(6), or the statement against interest exception, Fed.R.Evid. 804(b)(3), to the hearsay rule. (Def.'s Br. at 2-8.) This Court finds that the report is relevant, but is inadmissible hearsay.

The report is relevant evidence of the accident's occurrence and cause. It describes the chronology of the incident and determines that its primary cause was the "at-risk behavior of working at an elevated location without fall protection." (Pis.' Br., Ex. C.) The report includes observations that form the basis for the conclusion, such as plaintiffs lack of personal fall protection, Solutia's improper facilities for cleaning PAA, and the soda ash solution's "extremely" slippery nature when used on smooth tank cars. (Id. at 2.) The report also includes information directly relevant to defendant Koppers' liability. On page one of the report, the description of the accident begins with a statement that "Koppers phthalic anhydride car GATX 31772 had been received on 10/23 with spilled/solidified material on top and down the sides of the car." (Id. at 1.) The report is therefore clearly relevant not just to the accident's cause, but also to the issue of when and how the PAA appeared on the exterior of the tank car.

However, while the report is relevant, this Court finds that it is not admissible. Defendant admits that it is hearsay, but argues that the regularly conducted activity exception and the statement against interest exception to the hearsay rule allow the admission of the report. This Court finds that neither exception applies.6

The report does not fit within the exception for reports of regularly conducted activities which allows admission if: the witness who lays the foundation for the admission of evidence testif[ies]: (1) that the declarant in the records had knowledge to make accurate statements; (2) that the declarant recorded the statements contemporaneously with the actions which were the subject of the reports; (3) that the declarant made the record in the regular course of the business

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activity; and (4) that such records were regularly kept by the business. United States v. Furst, 886 F.2d 558, 571 (3d Cir.1989), cert, denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990) (citing Fed.R.Evid. 803(6)).7

Plaintiffs argue that the reports should be excluded because they were not made in the regular course of business. (Pis.' Br. at 4.) In support of their argument, they cite Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87...

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  • Knipe v. Smithkline Beecham, Civil Action No. 06-3024.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 30, 2008
    ..."It imposes a duty on manufacturers to produce a defect-free product, regardless of fault." Ebenhoech v. Koppers Indus., Inc., 239 F.Supp.2d 455, 472 (D.N.J.2002). "To prevail on a products liability action, plaintiff must show: (1) that defendant is a manufacturer, (2) that the product was......
  • Thakore v. Universal Mach. Co. of Pottstown, Inc., No. 05 C 5262.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 25, 2009
    ...of an accident is not part of the normal course of the trucking business." The court in Ebenhoech v. Koppers Industries, Inc., 239 F.Supp.2d 455 (D.N.J.2002), concluded that a post-accident report did not fall within Rule 803(6): "while the report is relevant, this Court finds that it is no......
  • Hindermyer v. B. Braun Med. Inc., Civil Action No. 19-06585 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 30, 2019
    ...a product cannot deviate from another identical product when both suffer from the same inherent flaw. Ebenhoech v. Koppers Indus. , 239 F. Supp. 2d 455, 473 (D.N.J. 2002) (explaining that, to show a manufacturing defect, a plaintiff must prove that the disputed product deviated from the def......
  • Worrell v. Frantz, Civil Action No. 09–4443.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 28, 2011
    ...defects are products that are physically flawed, damaged, or incorrectly assembled.” Ebenhoech v. Koppers Industries, Inc., 239 F.Supp.2d 455, 473 (D.N.J.2002) (citing Restatement (Third) of Torts § 2 (comment)). To establish the presence of a manufacturing defect, a plaintiff is required t......
  • Request a trial to view additional results
34 cases
  • Knipe v. Smithkline Beecham, Civil Action No. 06-3024.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 30, 2008
    ..."It imposes a duty on manufacturers to produce a defect-free product, regardless of fault." Ebenhoech v. Koppers Indus., Inc., 239 F.Supp.2d 455, 472 (D.N.J.2002). "To prevail on a products liability action, plaintiff must show: (1) that defendant is a manufacturer, (2) that the product was......
  • Thakore v. Universal Mach. Co. of Pottstown, Inc., No. 05 C 5262.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • September 25, 2009
    ...of an accident is not part of the normal course of the trucking business." The court in Ebenhoech v. Koppers Industries, Inc., 239 F.Supp.2d 455 (D.N.J.2002), concluded that a post-accident report did not fall within Rule 803(6): "while the report is relevant, this Court finds that it is no......
  • Hindermyer v. B. Braun Med. Inc., Civil Action No. 19-06585 (FLW)
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 30, 2019
    ...a product cannot deviate from another identical product when both suffer from the same inherent flaw. Ebenhoech v. Koppers Indus. , 239 F. Supp. 2d 455, 473 (D.N.J. 2002) (explaining that, to show a manufacturing defect, a plaintiff must prove that the disputed product deviated from the def......
  • Worrell v. Frantz, Civil Action No. 09–4443.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • June 28, 2011
    ...defects are products that are physically flawed, damaged, or incorrectly assembled.” Ebenhoech v. Koppers Industries, Inc., 239 F.Supp.2d 455, 473 (D.N.J.2002) (citing Restatement (Third) of Torts § 2 (comment)). To establish the presence of a manufacturing defect, a plaintiff is required t......
  • Request a trial to view additional results

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