A New Jersey state court judge has granted the motion of defendants MacGregor Sporting Goods and Riddell Sports, Inc. to bar the report of a plaintiff ‘s expert witness on the grounds that the report had no basis in fact.
However, the court denied their motion to dismiss the claim of the plaintiff, who was allegedly injured while using the equipment made by the defendants. Specifically, it found that aspects of the plaintiff’s claim, which were targeted by the defendants, were best left for a jury to consider.
The impetus for the litigation was plaintiff Laura Vazquez’s claim that she was injured on June 16, 2008, while moving a volleyball stanchion manufactured by the defendants.
In support of the personal injury claim, the plaintiff retained John Tesoriero, who opined that a product defect led to the injury. The defendants’ expert countered that there was no defect and that the high school “was responsible for assembling the subject volleyball stanchion in accordance with manufacturer’s instructions.”
At deposition, Tesoriero changed his opinion from his initial report and agreed with Anderson to a point, alleging that “the defects were (1) the failure to provide proper labeling of the subject equipment for the proper assembly of the subject volleyball equipment; and (2) the failure to provide assembly instructions.”
The court agreed with the defendants, which argued in their motion that Tesoriero “has no experience or education in the field of labeling or instructions, and so his opinion as to the warning labels or lack thereof, should be barred.”
The defendants’ second argument – that “barring Mr. Tesoriero’s report and testimony precludes a finding of liability” – was less compelling.
“(A)ssuming that the plaintiff proceeds on a theory alleging a warning defect, summary judgment would not be appropriate, because, as discussed above, the adequacy of a warning label is ordinarily a question of fact for the jury,” wrote the judge.
“The defendants may argue that although the pole contained other warnings, there was no warning or instruction indicating which end to insert into the base, and therefore nothing to gauge the adequacy of. However, photographs taken of volleyball stanchions at the site of the subject accident reveal that the other warnings on the poles related to the use of the stanchion. When the poles are inserted properly, these warnings are visible and legible. When the poles are inserted upside-down, the warnings are also displayed upside down. A question for the jury is thus presented as to whether a reasonable person, under similar circumstances faced by the plaintiff, would know by looking at the warnings on the pole, whether the pole was inserted properly or upside down, and nevertheless attempt to move the stanchion.”
The court continued, noting that “not all products liability cases require expert testimony. (T)he need for expert testimony depends on the complexity of the subject matter. Some product issues are within the ken of the average juror and do not require the assistance of expert testimony. See Driver, Keefe & Katz, Current N.J. Products Liability & Toxic Torts Law (GANN) 9:4-1(a). Consequently, Ridenour v. Bat Em Out held that no expert was needed to support a claim that a warning against the foreseeable misuse of rocking or pushing should have accompanied a change-making machine capable of being tipped over by an eleven-year-old boy. 309 N.J. Super. 634, 643, 707 A.2d 1093 (App. Div. 1998).
“Conversely, expert testimony is only required to support a claim when the subject matter is so esoteric that jurors of common judgment and experience are unable to make a determination without the benefit of the information and opinions possessed by a person with specialized knowledge. Macri v. Ames McDonough Co., 211 N.J. Super. 636, 642, 512 A.2d 548 (App. Div. 1986). Macri also noted that in inadequate warnings cases, it is left to the court to determine whether, based on all the evidence presented, there is a need for expert testimony. Id. at 643.
“Applying these rules to the present case, the court holds that a juror of common experience and judgment can make a determination regarding the adequacy of warning labels on the volleyball poll. Summary judgment is denied, and the case may proceed without the plaintiff’s expert report and testimony regarding the adequacy of the warning/instruction.”
Laura Vazquez v. Riddell Sports, INC., et al.; Super. Ct. N.J. , Law Division, Essex County; DOCKET NO.: L-4007-10; 2012 N.J. Super. Unpub. LEXIS 2161; 9/4/12
Attorneys of Record: (for plaintiff) Walter M. Piccolo, Esq., Fusco & Macaluso LLC. (for defendants) Scott D. Samansky, Esq., Fishman McIntyre PC.
