Myrlak v. Port Authority of New York and New Jersey

• Decision Date: 23 May 1997
• Parties: John MYRLAK, Plaintiff-Respondent/Cross-Appellant, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY and Port Authority Trans-Hudson Corporation, Defendants-Appellants, and Girsberger Industries, Inc., Defendant-Respondent/Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 1

302 N.J.Super. 1

694 A.2d 575

John MYRLAK, Plaintiff-Respondent/Cross-Appellant, v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY and Port Authority Trans-Hudson Corporation, Defendants-Appellants and Girsberger Industries, Inc., Defendant-Respondent/Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Jan. 29, 1997.

Argued March 12, 1997.

Decided May 23, 1997.

Ernest Blair and Donald F. Burke, for appellants Port Authority of New York and New Jersey and Port Authority Trans-Hudson Corporation (Hugh H. Welsh, attorney; Mr. Blair, on the brief).

Michelle Wall, Paramus, for respondent/cross-respondent Girsberger Industries, Inc. (Melli & Wright, P.C., attorneys; Ms. Wall, on the brief).

David L. Pennington, Cherry Hill, for respondent/cross-appellant John Myrlak (Pennington & Thompson, P.C., attorneys; Mr. Pennington and Sidney S. Liebesman, on the brief).

Before Judges SHEBELL, PAUL G. LEVY and BRAITHWAITE.

The opinion of the court was delivered by

PAUL G. LEVY, J.A.D.

Plaintiff, a very large man, injured his back while seated at his work station when his chair collapsed. He sued his federally regulated employer under the Federal Employer's Liability Act (FELA), alleging negligence in supplying him with an undersized chair that collapsed and caused injuries to his back, and he sued the chair manufacturer, alleging strict liability for producing a defective product that caused his injuries. A jury found the employer 100% negligent and awarded plaintiff $1.5 million; the manufacturer was found not liable. The trial judge denied the employer's motion for a new trial or remittitur, and the employer appeals, claiming the trial judge committed reversible error by admitting and excluding certain evidence. Plaintiff cross-appeals, contending the trial judge erred in not charging the jury that the manufacturer could be found liable pursuant to the doctrine of res ipsa loquitur. We reverse the verdict and remand for a complete new trial.

When plaintiff was injured on July 6, 1991, he was almost 43 years old, six feet six inches tall and weighed approximately 325 pounds. He began working for Port Authority Trans-Hudson Corporation (PATH) in 1976, was promoted throughout the years, and his title in 1991 was assistant trainmaster. As assistant trainmaster, his responsibilities included overseeing the movement and operation of the trains and taking care of whatever problems arose. He usually performed these tasks while seated on a movable desk chair at a semi-circular console, approximately eight feet long and three feet high, at which he observed the train control board and answered telephone and radio communications.

Viewing the trial testimony in a light most favorable to plaintiff, as we must pursuant to Dolson v. Anastasia, 55 N.J. 2, 5, 258 A.2d 706, (1969), when reviewing the status of a non-moving party, the pertinent facts are as follows. On July 6, 1991, plaintiff had been conducting his duties as an assistant trainmaster for approximately one hour and forty five minutes. He was seated in his chair at the console in the Hoban Control Center at Journal Square in Jersey City. Suddenly, he heard his chair make "a loud noise like a crack," the back of the chair gave way, and he fell backwards, parallel to the floor. As he fell, he grabbed the arms of the chair and pulled himself forward. Several other PATH employees heard a loud noise similar to that of grinding gears, and although they did not see plaintiff fall, they did see the back of the chair, collapsed and parallel to the ground. One co-worker tried to use the chair the next day but found it lacked back support.

The chair, manufactured by Girsberger Industries, Inc., had a high back seat with a triple joint construction that allowed the seat to follow the user's every movement through adjustment of two levers. One lever allowed the user to either put the chair in a free flowing or a locked mode, and the other lever adjusted the height of the chair. The chair also had a tension control underneath the seat which could be regulated to adjust for weight. Although plaintiff was not assigned to a particular chair, a PATH employee had informed him that the chair he was using was the best chair available for his size. No one ever gave him instructions as to how the chair worked. The chair was one of 500 chairs recently purchased by PATH from Girsberger, delivered to PATH on May 1, 1991 and placed in the Control Center about June 1, 1991. Aside from testimony that plaintiff barely fit into the chair, there was no evidence that the chair had been misused, although it had been used briefly by other PATH employees during the few months since it had been delivered.

I.

Dr. Howard Medoff, a mechanical engineer, reviewed the literature and drawings supplied by Girsberger showing the internal workings of the chair. Prior to trial he twice examined a chair, allegedly the one that collapsed under plaintiff, but he was not allowed to disassemble it or perform a failure analysis or test any of the internal parts; he was only allowed to "operate" the chair by using the various control levers. Doing so, Dr. Medoff found the lever controlling the back of that chair worked erratically. There were no warnings on that chair regarding any limitations on the size or weight of a user of the chair. However, he was unable to reproduce or replicate the accident as it was described by plaintiff. Since a person could sit on the chair that Dr. Medoff examined, he could not state that it was the very one that collapsed under plaintiff or, if it was that chair, whether it had been altered or modified since the accident.

He offered the opinion that the chair was too small for a man of plaintiff's size, and it was this opinion on which plaintiff based his claim that PATH was negligent in failing to provide a safe workplace. Specifically, Dr. Medoff said:

I think the chair was too small for somebody Mr. Myrlak's size. Mr. Myrlak is beyond what you would call the ninety-fifth percentile in terms of height and weight, meaning there are not many people from a percentage point of view that are taller or heavier than him, a combination of that, and I think this chair for a person of Mr. Myrlak's combination of weight and size was not suitable. (emphasis added).

Defendant PATH alleges that this was a net opinion, because Dr. Medoff did not provide a factual foundation for his conclusion that the chair was too small for plaintiff. The basic rule is that "an expert's bare conclusions, unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981). "When an expert's opinion is merely a bare conclusion unsupported by factual evidence, i.e., a 'net opinion,' it is inadmissible. In essence, the net opinion requires an expert witness 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, 670 A.2d 24 (App.Div.), certif. denied, 145 N.J. 374, 678 A.2d 714 (1996) (citations omitted).

PATH analogizes this case to Jimenez where we affirmed the trial court's exclusion of the testimony of an expert witness as a net opinion. Id. at 542, 670 A.2d 24. That plaintiff was injured on the defendant's escalator, and her expert testified that he could only speculate how the escalator handrail stopped because "escalator handrails do not stop unless there has been improper maintenance." Id. at 541, 670 A.2d 24. We held: In offering his opinion [plaintiff's expert] demonstrated no expertise; he merely stated what any lay person without any expert knowledge might guess was a potential cause. His testimony is nothing more than an effort to shift the burden of proof to defendants by suggesting that the mere fact of an incident is indicative of [defendant's] negligence. Therefore, his testimony is mere net opinion properly stricken by the trial judge.

[Id. at 543, 670 A.2d 24.]

"Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Dawson v. Bunker Hill Plaza Assoc., 289 N.J.Super. 309, 323, 673 A.2d 847 (App.Div.), certif. denied, 146 N.J. 569, 683 A.2d 1164 (1996) (citing Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J.Super. 289, 292, 573 A.2d 196 (App.Div.), certif. denied, 122 N.J. 333, 585 A.2d 349 (1990)). Supporting data and facts are vital to an expert's opinion "when the opinion is seeking to establish a cause and effect relationship." Rubanick v. Witco Chem. Corp., 242 N.J.Super. 36, 49, 576 A.2d 4 (App.Div.1990).

When plaintiff sat in the chair produced for pretrial discovery, Dr. Medoff observed "there was not a lot of room in between Mr. Myrlak's body and the sides of the chair." The statistical basis for Dr. Medoff's opinion of plaintiff's size ("there are not many people from a percentage point of view that are taller or heavier than him") was not challenged at trial. However, his bare conclusion that the chair was not suitable is only a net opinion because it does not "give the why and wherefore" of his opinion. Jimenez, supra, 286 N.J.Super. at 540, 670 A.2d 24. That opinion may have been the basis for the jury's verdict holding PATH liable and therefore reversal as to PATH is required.

II.

Additionally, the trial judge erred in rejecting certain opinion evidence from Stan Johnson, Girsberger's plant manager. It was proffered that he would testify as to "what would have had to have broken for [plaintiff's version of the accident] to have happened," and if the chair had broken as described by plaintiff whether it could then be placed in an upright position without any repairs. It is clear that Johnson knew how the Girsberger chairs were manufactured, how they operated and how they were tested at the plant before being shipped to dealers. His familiarity with the process and the...