Kemly v. Werner Co., Civil Action No. 13-7059 (JBS/KMW)

Decision Date08 December 2015
Docket NumberCivil Action No. 13-7059 (JBS/KMW)
Citation151 F.Supp.3d 496
Parties Robert R. Kemly and Gabrielle Kemly, his wife, Plaintiffs, v. Werner Co. and John Does 1-100, Defendants.
CourtU.S. District Court — District of New Jersey

Mark J. Molz, Hainesport, NJ, for Plaintiffs.

Michael J. Dunn, Law Offices of Michael J. Dunn, LLC, Cherry Hill, NJ, for Defendants.



, Chief Judge

While using Defendant Werner Co.'s (hereinafter, Defendant) AP20-MPJ Work Platform, a 41” tall portable aluminum work platform supported by two collapsible legs (hereinafter, the “work platform” or “platform”), Plaintiff Robert R. Kemly (hereinafter, Plaintiff) suffered injuries during dismount when his legs presumably slipped and came down across the metal locking mechanism for the platform's collapsible legs.

As a result of these injuries, Plaintiff brought claims against Defendant under New Jersey's Products Liability Act (hereinafter, the “PLA”), on the ground that Defendant sold its work platform “in a defective condition.” (See Compl. at ¶¶ 5-14.) Plaintiff claims, in particular, that the placement of the locking mechanism on the outside of the platform, where it was not shielded or recessed from “probable and foreseeable human contact,” constituted a design defect and the proximate cause of his injuries. (See id. at ¶¶ 9-13; see also Leshner Rep.)

Defendant now moves for summary judgment, arguing that Plaintiff's injuries resulted solely from platform misuse and, relatedly, that the placement of the locking mechanism did not, as a matter of law, proximately cause Plaintiff's injuries. (See Def.'s Br. at 6-13; Def.'s Reply at 7-9.) Defendant further claims that Plaintiff's case rests, almost entirely, upon the faulty and unreliable testimony of one engineering expert, Ervin Leshner. (See Def.'s Br. at 13-24; Def.'s Reply at 8-9.) Plaintiff, by contrast, submits that the inherently fact-sensitive product liability issues implicated here require a “weighing of evidence precluding summary judgment.” (Pl.'s Opp'n at 6-17.)

The principal issues before the Court concern whether the undisputed record creates an inference of a cognizable defect in Defendant's work platform, and whether this defect, if any, arguably contributed to (or, proximately caused) Plaintiff's injuries. For the reasons that follow, Defendant's motion for summary judgment will be denied.1

The Court finds as follows:

1. Factual and Procedural Background .2 Since 1984, Plaintiff has worked as an installer of “window films” (Pl.'s Dep. at 10:8-12:12:25), and has required an array of ladder systems and work platforms in order to reach otherwise “unreachable” windows. (Id. at 22:1-25:3.) As a result, Plaintiff purchased Defendant's work platform (see generally id. at 28:7-18), which consists of three principal components: (1) a “non-skid” work surface “for standing,” (2) platform “legs [that] lock securely in place when in use and fold underneath the platform for compact storage,” and (3) a step (built into the legs) for safe and stable access to the platform.3 (Ex. B to Def.'s Br.) The platform, in turn, bears prominent SAFETY INSTRUCTIONS ,” regarding the manner in which to SET UP ,” USE ,” MAINT[AIN] ,” and ACCESS the work plat form. (Exs. C, E, & I to Def.'s Br (emphasis in original).) As relevant here, the instructions direct users to engage the legs' locking mechanism prior to use, and then to [f]ace [the] platform” with “body centered between the side rails” when climbing up or down the steps. (Ex. E to Def.'s Br.) Given the nature of the platform, the instructions further advise users [n]ever [to] climb [the] platform from the side unless secured from sideways motion and tipping.” (Id. ) In order to dismount the platform, “a user would simply back off the platform, climb down to the step below,” and then descend “from the step” onto the ground. (Def.'s Br. at 5.) In other words, when used appropriately, “the user's body would remain at all times within the width of the platform” and its steps, and would not come into contact with the locking mechanism that rests on the exterior surface of the platform at the point of connection between the work surface of the platform and its legs. (Id. ; see also Ex. C to Def.'s Br.)

2. On July 27, 2011, Plaintiff mounted the work platform using the step system, in order to perform “a final cleaning” of a window prior to applying a privacy film. (Pl.'s Dep. at 66:1-68:17.) Following the cleaning, Plaintiff attempted to dismount the platform by directing his left foot down towards the step, while stabilizing his body on the platform with his right foot. (Id. at 70:1-72:16.) Plaintiff, however, somehow slipped and fell on the platform before making contact with the step, causing the inside of his right knee to slide down across the locking assembly (and to be cut by its protruding metal components).4 (Id. at 71:21, 79:18-81:3.)

3. As a result of these injuries, Plaintiff filed this litigation, alleging that the location of the locking mechanism on the exterior (or, outside) of the legs (rather than in a recessed position, or in the same position but protected by a deflective shield) constitutes a design defect.5 (See generally Compl.) Following the conclusion of pretrial factual discovery,6 the pending motion of summary judgment followed.

4. Standard of Review . Summary judgment is appropriate if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Alabama v. North Carolina , 560 U.S. 330, 344, 130 S.Ct. 2295, 176 L.Ed.2d 1070 (2010)

(citations and internal quotation marks omitted); see also Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment, the Court must view the material facts in the light most favorable to the non-moving party, and make every reasonable inference in that party's favor. See Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Halsey v. Pfeiffer , 750 F.3d 273, 287 (3d Cir.2014). An inference based upon ‘speculation or conjecture,’ however, ‘does not create a material factual dispute sufficient to defeat summary judgment.’ Halsey , 750 F.3d at 287 (citations omitted). Rather, the non–moving party must support each essential element with concrete record evidence. See Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” the Court may grant summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

5. Admissibility of Leshner Report . Because Plaintiff's theory of liability hinges upon expert testimony (and because the Court may consider only admissible evidence on summary judgment), the Court addresses, at the outset, Defendant's objections to the admissibility of Plaintiff's liability expert, Mr. Leshner.

6. Mr. Lesher, a registered professional engineer, issued a two-page expert report on September 29, 2014, in which he concluded, to a reasonable degree of engineering probability, that the placement of the locking mechanism “in a position where it [could] act as a can opener upon” anything “placed/dragged against it” constitutes a design defect7 and “an efficient proximate cause” of Plaintiff's injuries.8 (Leshner Rep.) Mr. Leshner then defended his opinion during his deposition, when he explained that he “instantly” recognized the “defect” upon inspection of the work platform, and stated that the nature of the protruding locking mechanism “contributed” to Plaintiff's injuries. (Leshner Dep. at 51:41-53:11, 86:14-87.6)

7. In claiming that Mr. Leshner's report and testimony prove “inadmissible and insufficient to support Plaintiff's product liability claims,” Defendant argues that Mr. Leshner “fundamentally erred” in rendering an opinion, because he supposedly refused to accept Plaintiff's testimony regarding how he “got on and off the platform” and concerning how he slipped from the platform.” (Def.'s Br. at 14-23.) Plaintiff, by contrast, claims that Mr. Leshner “appropriately describe[d] the facts he relies upon, the history of ladder type products and acceptable alternative designs,” and otherwise provided an admissible expert opinion. (Pl.'s Opp'n at 15.)

8. Federal Rule of Evidence 702

“embodies a trilogy of restrictions on expert testimony: [1] qualification, [2] reliability, and [3] fit.” Schneider v. Fried , 320 F.3d 396, 404 (3d Cir.2003) (citing In re Paoli R.R. Yard PCB Litig. , 35 F.3d 717, 741–43 (3d Cir.1994) ); see also Fed. R. Evid. 702. As relevant here,9 in determining reliability, courts focus upon whether the expert's conclusion rests upon “the ‘methods and procedures of science’ rather than on ‘subjective belief or unsupported speculation.’ Calhoun v. Yamaha Motor Corp., U.S.A. , 350 F.3d 316, 321 (3d Cir.2003) (quoting Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ).10 Reliability, however, does not require the proffering party to demonstrate the “correctness” of the expert opinion.

In re Paoli , 35 F.3d at 744

(concluding that the “evidentiary requirement of reliability” amounts to a lower burden “than the merits standard of correctness”). Indeed, so “long as an expert's scientific testimony rests upon good grounds ... it should be tested by the adversary process—competing expert testimony and active cross–examination—rather than excluded from jurors' scrutiny for fear that they will not grasp its complexities or satisfactorily weigh its inadequacies.” United States v. Mitchell , 365 F.3d 215, 244 (3d Cir.2004) (quoting Ruiz–Troche v. Pepsi Cola Bottling Co. , 161 F.3d 77, 85 (1st Cir.1998) ) (emphasis added). Even more, courts have ‘considerable leeway’ in determining the reliability of particular expert testimony under Daubert.” Simmons v. Ford Motor Co. , 132 Fed.Appx. 950, 952 (...

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