LOUIS A. MAGDON VS. HARLEY-DAVIDSON USA (L-4363-16, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5527-17T4
LOUIS A. MAGDON,
Plaintiff-Appellant,
v.
HARLEY-DAVIDSON USA,
HARLEY-DAVIDSON MOTOR
COMPANY, INC., and HANNUM'S
HARLEY-DAVIDSON,
Defendants,
and
HARLEY-DAVIDSON MOTOR
COMPANY GROUP, LLC, and
LIBERTY HARLEY-DAVIDSON,
Defendants-Respondents.
______________________________
Argued May 1, 2019 – Decided May 30, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4363-16.
Paul F. O'Reilly argued the cause for appellant (Law
Offices of James Vasquez, PC, and Paul F. O'Reilly,
attorneys; Paul F. O'Reilly, on the brief).
Travis E. Romero-Boeck (Quarles & Brady, LLP) of
the Wisconsin bar, admitted pro hac vice, argued the
cause for respondent Harley-Davidson Motor Company
Group, LLC (Eckert Seamans Cherin & Mellott, LLC,
Mark Kircher (Quarles & Brady, LLP) of the Wisconsin
bar, admitted pro hac vice, Eric Matzke (Quarles &
Brady, LLP) of the Wisconsin bar, admitted pro hac
vice, and Travis E. Romero-Boeck,
attorneys; Christopher E. Torkelson, of counsel and on
the brief).
Michael Keith Willison argued the cause for respondent
Liberty Harley-Davidson (Dickie Mc Camey &
Chilcote PC, attorneys; Michael Keith Willison, on the
brief).
PER CURIAM
Plaintiff Louis Magdon appeals from the June 22, 2018 order granting
defendants Harley-Davidson Motor Company Group, LLC, (Harley-Davidson)
and Liberty Harley-Davidson (Liberty) summary judgment and dismissing
plaintiff's complaint. The trial judge found plaintiff's expert report was an
inadmissible net opinion, and, therefore, plaintiff was unable to support his
products liability and negligence claims. Because we find the expert report was
A-5527-17T4
2
supported by factual evidence and provided "whys and wherefores," 1 it is not a
net opinion. We reverse the trial judge's ruling, and vacate the summary
judgment order.
Plaintiff purchased a new Harley-Davidson motorcycle in 2010 at Liberty,
a Harley-Davidson dealership. Over the next several years, plaintiff serviced
the motorcycle at Liberty, usually before going on a long trip. During those
visits, plaintiff expected Liberty employees to "go over the whole bike," and fix
any problems.
In 2012, Liberty performed maintenance on the motorcycle — changing
the oil, installing a cable antenna, and servicing the gaskets and spark plugs. On
August 16, 2014, Liberty again changed the oil and provided a new oil filter.
Plaintiff also recalled getting new tires and rear brake pads from Liberty, but
was unsure when those services were performed.
The Harley-Davidson owner's manual for this particular motorcycle
instructs that the brake system should be flushed and the brake fluid should be
changed every two years. Liberty did not perform any service or work on the
brake system during the noted service visits. Prior to his accident in August
1
Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div.
2002).
A-5527-17T4
3
2014, plaintiff had not experienced any problems with the motorcycle's brakes
and he had not asked Liberty to check the brakes for any reason.
On August 30, 2014, plaintiff was riding his motorcycle on New York
State Highway 55. He was familiar with the roadway and was operating his bike
within the speed limit. As plaintiff rode through a curve, he applied the brakes
but "felt no pressure" in the front brake. Consequently, plaintiff lost control of
the motorcycle and hit a ditch. The motorcycle landed on top of plaintiff,
severely injuring him.
The motorcycle was towed from the scene. After plaintiff's insurance
carrier deemed the bike "totaled," it was removed from the tow yard and sold at
auction.
Plaintiff's complaint alleged products liability – manufacturing defect –
and negligence claims against Harley-Davidson and Liberty respectively. 2
Plaintiff retained George Meinschein, P.E. as his expert witness. Meinschein
thereafter authored three reports.
In preparation of his first report, Meinschein advised he had reviewed the
accident report, plaintiff's deposition testimony, documents produced by Harley-
2
Plaintiff dismissed all other claims prior to the summary judgment motion
hearing.
A-5527-17T4
4
Davidson, including its owner's manual, aerial and street views of the accident
scene, as well as photographs, measurements, and video recordings taken during
his physical examination of the scene. He concluded that plaintiff's accident
was caused "by a defect in the brake system that prevented [plaintiff] from
slowing to a speed that would have allowed him to negotiate the subject curve
on August 30, 2014 without incident."
The expert stated that the motorcycle was equipped with an anti-locking
brake system (ABS) feature. He opined that the ABS feature was a design defect
that caused the brake fluid to absorb moisture, reducing the motorcycle's braking
ability and ultimately initiating the August 30, 2014 brake failure. He further
concluded that an alternative design and manufacturing process would have
corrected the defective ABS design. Meinschein also noted the motorcycle was
included in Harley-Davidson's January 2018 recall of its motorcycles with the
ABS feature. The recall was to correct the ABS defect, which allowed moisture
to enter the brake fluid, causing contamination that could "increas[e] the risk of
a crash."
Meinschein's second report responded to Harley-Davidson's supplemental
interrogatory that advised plaintiff's motorcycle was not equipped with an ABS
feature. The expert maintained that the photographs he reviewed of the
A-5527-17T4
5
motorcycle showed it had "speed sensors for the front and rear wheel s," which
were only found on motorcycles with an ABS feature.
Thereafter, an engineer for Harley-Davidson issued an expert report,
opining that plaintiff's accident was unrelated to any ABS brake system failure
because the "motorcycle was not equipped with ABS." He advised a motorcycle
with ABS had additional hydraulic brake lines under the gas tank and the
photographs taken of plaintiff's motorcycle after the accident did not show a
hydraulic brake line. The engineer attributed the accident to "rider error."
In his third report, Meinschein conceded the motorcycle did not have the
ABS feature. As a result, he withdrew his opinions regarding the ABS defect.
He reiterated, however, that a brake system defect caused the accident, and an
alternative design and manufacturing process would have corrected the
defective brake system. In explaining his opinion, Meinschein stated:
I did not observe any evidence of brake fluid leakage or
defective front brake hoses, calipers, pads, or rotors in
my review of the post-crash photographs of the subject
motorcycle. As such, it is my opinion that the cause for
the front brake failure described by [plaintiff] was a
defect in the operation of the front brake master
cylinder. It is my further opinion that [plaintiff's]
testimony that he felt nothing, no pressure, when he
applied the front brake and the absence of any visible
post-crash defects in the front brake system is
consistent with failure of a piston seal in the front brake
master cylinder due to contamination of the brake fluid.
A-5527-17T4
6
Contaminated brake fluid softens and swells the piston
seals in the brake system and prevents the system from
building pressure when the piston assembly is
depressed. The first notice of brake fluid
contamination typically occurs when the brakes fail if
the contamination and resulting swelling of the internal
rubber components of the master cylinder is not
discovered during a routine maintenance procedure. As
the subject motorcycle was serviced by [Liberty]
fourteen days before the August 30, 2014 crash, it is my
opinion that either the contaminated brake fluid was not
discovered during that routine maintenance procedure
or contaminated brake fluid was inadvertently
introduced into the front brake master cylinder
reservoir at that time.
....
. . . Any contaminated brake fluid in the front brake
system of the subject motorcycle would have been a
Harley-Davidson product that would have been either
the original brake fluid that was used in the subject
motorcycle's manufacture or that which would have
been added by [Liberty].
The odometer reading at the time of the August 16,
2014 service by [Liberty] is recorded on the
corresponding work order as 14,995 miles. It is my
opinion that in order to compensate for fluid level drop
due to normal brake pad wear, the subject motorcycle's
front brake fluid reservoir was topped off with either
contaminated or incorrect Harley-Davidson brake fluid
during the August 16, 2014 service by [Liberty]. [3]
....
3
Plaintiff asserts the brake fluid in the motorcycle should have been changed
every two years in accordance with Harley-Davidson's owner's manual.
A-5527-17T4
7
. . . The improper service provided by [Liberty] on
August 16, 2014 was a causative factor in the August
30, 2014 crash and the subsequent injuries suffered by
[plaintiff].
Defendants moved for summary judgment, alleging Meinschein's report
was a net opinion as it was unsupported by any facts. Without an expert, Harley-
Davidson argued plaintiff could not show a manufacturing defect existed at the
time the motorcycle left the manufacturer. Liberty asserted plaintiff had not
demonstrated a breach of duty as there was no evidence of any contaminated
brake fluid.
In response, plaintiff argued that Meinschein's opinions were supported
by the factual evidence. The expert had examined weather reports and
photographs of the motorcycle, performed a physical examination of the
accident site, and reviewed plaintiff's deposition testimony and Liberty's service
records. The expert had ruled out all other possible causes of the brake failure.
He also noted the recall notice, which described how contaminated brake fluid
could cause a loss of brake function on the affected wheel.
As to Liberty, plaintiff argued the dealership's service employees failed to
follow the servicing requirements in Harley-Davidson's owner's manual.
Although plaintiff requested a complete check-up of his bike on each occasion
A-5527-17T4
8
he brought it in for service, Liberty had not complied with plaintiff's request or
the manufacturer's recommendations regarding brake fluid.
The motion judge concluded that because there was "no analysis," "no
testing," and no "why's or where[fore's]," the report was "pure speculation and
conjecture," and, therefore, a net opinion. As a result, the court granted the
motions for summary judgment.
On appeal, plaintiff argues Meinschein's opinions were based on factual
evidence and explained the causal connection between the contaminated brake
fluid and the brake system malfunction.
We review a summary judgment order de novo, applying the same
standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We
"consider whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
To grant the motion, the evidence in the record must be "so one-sided that one
party must prevail as a matter of law." Ibid. (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)).
A-5527-17T4
9
Here, the trial court was "confronted with an evidence determination
precedent to ruling on a summary judgment motion," and it properly addressed
the evidence issue first. Townsend, 221 N.J. at 53 (quoting Estate of Hanges v.
Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010)). Our review "of the
trial court's decision[] proceeds in the same sequence, with the evidentiary issue
resolved first, followed by the summary judgment determination of the trial
court." Ibid. We review the determination of the expert report as net opinion
for an abuse of discretion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 371 (2011).
N.J.R.E. 703 governs the admissibility of expert testimony. 4 It provides
an expert opinion to be "grounded in 'facts or data derived from (1) the expert's
personal observations, or (2) evidence admitted at the trial, or (3) data relied
upon by the expert which is not necessarily admissible in evidence but which is
the type of data normally relied upon by experts.'" Townsend, 221 N.J. at 53
(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).
The doctrine barring the admission of net opinions is a "corollary of
[N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's
4
Defendants did not dispute Meinschein's qualifications to render an expert
report. The judge also noted there was no dispute as to the expert's
qualifications.
A-5527-17T4
10
conclusions that are not supported by factual evidence or other data." Id. at 53-
54 (alterations in original) (quoting Polzo, 196 N.J. at 583). The net opinion
principle mandates that experts "give the why and wherefore" supporting their
opinions, "rather than . . . mere conclusion[s]." Id. at 54 (quoting Borough of
Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). An expert
must "explain a causal connection between the act or incident complained of and
the injury or damages allegedly resulting therefrom." Buckelew v. Grossbard,
87 N.J. 512, 524 (1981). Expert testimony that is "based merely on unfounded
speculation and unquantified possibilities" should be barred. Vuocolo v.
Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990).
However, "[t]he net opinion rule is not a standard of perfection."
Townsend, 221 N.J. at 54. An expert may ground an opinion in his or her
personal experience and training. See State v. Townsend, 186 N.J. 473, 495
(2006) (finding the expert's opinion was not a net opinion due to her "education,
training, and most importantly, her experience"); Rosenberg v. Tavorath, 352
N.J. Super. 385, 403 (App. Div. 2002) ("Evidential support for an expert opinion
is not limited to treatises or any type of documentary support, but may include
what the witness has learned from personal experience."). An opinion that may
be subject to attack on cross-examination for not including other meaningful
A-5527-17T4
11
considerations, does not make it a net opinion. Rosenberg, 352 N.J. Super. at402 (citing Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div.
1990)); see also Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 16-
17 (App. Div. 1994) (declining to strike an expert's testimony as a net opinion
as "[a]ny shortcoming in his method of analysis was explored and it was for the
jury to determine the weight his opinion should receive").
We turn to Meinschein's third, and final, report to determine its
admissibility under N.J.R.E. 703. Meinschein first concluded "[t]he sudden and
unexpected loss of braking ability as the subject motorcycle approached the
curve where the August 30, 2014 crash occurred was caused by a failure of the
front brake master cylinder." He arrived at this conclusion using factual
evidence: his observation of the post-crash photographs of the motorcycle, and
plaintiff's deposition testimony stating he felt no pressure when he applied the
front brake.
Next, Meinschein explained "why" he thought there was a failure of the
front brake master cylinder, which caused plaintiff's crash. See Townsend, 221
N.J. at 53-54; Buckelew, 87 N.J. at 524. He stated that plaintiff's description of
not feeling any pressure when he applied the front brake before the crash, and a
lack of evidence of "brake fluid leakage or defective brake hoses, calipers, pads,
A-5527-17T4
12
or rotors," as observed in the photographs, was "consistent with failure of a
piston seal in the front brake master cylinder due to contamination of the brake
fluid." The expert explained that contaminated brake fluid causes a failure of
the front brake, stating it "softens and swells the piston seal in the brake system
and prevents the system from building pressure when the piston assembly is
depressed." He found the contaminated brake fluid was either introduced when
the motorcycle was manufactured or by Liberty during the August 2014
servicing.
Meinschein further concluded that the "brake failure and subsequent crash
was caused by either the failure of [Liberty] to discover contaminated brake
fluid during the August 16, 2014 routine maintenance procedure or by their
addition of contaminated Harley-Davidson brake fluid into the front brake
master cylinder reservoir at that time." The expert supported this conclusion
with factual evidence, stating:
The odometer reading at the time of the August 16,
2014 service by [Liberty] is recorded on the
corresponding work order as 14,995 miles. It is my
opinion that in order to compensate for fluid level drop
due to normal brake pad wear, the subject motorcycle's
front brake fluid reservoir was topped off with either
contaminated or incorrect Harley-Davidson brake fluid
during the August 16, 2014 service by [Liberty].
A-5527-17T4
13
We are satisfied Meinschein did not present a report with "mere
conclusion[s]." Townsend, 221 N.J. at 54. He provided a factual basis for both
of his conclusions, drawing on his training, experience, and education for
support. See Rosenberg, 352 N.J. Super. at 403. Therefore, it is not a net
opinion. His conclusions, of course, are subject to cross-examination at trial
and a jury can decide whether to accept or reject part or all of his opinions. See
Rosenberg, 352 N.J. Super. at 402; see also Glowacki, 270 N.J. Super. at 16-17.
As a result of his conclusion that plaintiff's expert report was a net
opinion, the trial judge granted defendants summary judgment. We vacate that
ruling.
To prevail on a product liability claim under the New Jersey Products
Liability Act (PLA), N.J.S.A. 2A:5C -1 to -11, a plaintiff must demonstrate three
prima facie elements: "[1] the product was defective, [2] that the defect existed
when the product left the manufacturer's control, and [3] that the defect
proximately caused injuries to the plaintiff, a reasonably foreseeable or intended
user." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 97 (1999) (citations
omitted).
"To prove both the existence of a defect and that the defect existed while
the product was in the control of the manufacturer, a plaintiff may resort to direct
A-5527-17T4
14
evidence, such as the testimony of an expert who has examined the product, or,
in the absence of such evidence, to circumstantial proof." Id. at 98 (citations
omitted). Additionally, "[a] plaintiff may [also] establish a defect by 'negat[ing]
other causes of the failure of the product for which the defendant would not be
responsible, in order to make it reasonable to infer that a dangerous condition
existed at the time the defendant had control [of the product].'" Id. at 99 (third
and fourth alterations in original) (quoting Scanlon v. Gen. Motors Corp., 65
N.J. 582, 593-94 (1974)). "[A] plaintiff does not have to negate all possible
causes of failure, only those likely causes of failure." Ibid. (citing Scanlon, 65
N.J. at 594).
Here, plaintiff has presented expert opinions as to a manufacturing defect
– contaminated brake fluid. A jury might also infer from the proffered
circumstantial evidence that a defect existed while the motorcycle was in the
control of Harley-Davidson. The motorcycle only had 14,995 miles on it at the
time of plaintiff's accident. Plaintiff took the bike to Liberty for regular service
and maintenance. Plaintiff had not repaired or modified the bike, nor had he
installed any after-market parts. We are satisfied there was sufficient
circumstantial evidence for a jury to infer that the front brake failure would not
have occurred at this point in the motorcycle's lifespan absent a defect
A-5527-17T4
15
attributable to Harley-Davidson. We consequently reverse and vacate the grant
of summary judgment to Harley-Davidson.
In addressing the dismissal of the negligence claim against Liberty, we
similarly find the trial judge erred in granting summary judgment to the
dealership. Plaintiff contends Liberty was negligent in failing to service the
motorcycle as he requested and by not following the maintenance instructions
in the owner's manual.
As we have already stated, plaintiff produced Meinschein's expert report
to support his claim against Liberty. The owner's manual required changing the
brake fluid and flushing the brake system every two years. However, Liberty's
service records do not reflect any work was performed on the bike's brake system
during the service visits. Therefore, in viewing the evidence in a light most
favorable to plaintiff, there is sufficient evidence to establish both that Liberty
had a duty to change the brake fluid and that Liberty breached that duty. The
expert report established the causal relationship between the breach of duty and
plaintiff's resulting accident and damages.
We reverse and vacate the summary judgment order. We remand to the
trial court for further proceedings. We do not retain jurisdiction.
A-5527-17T4
16