TUCKER CLAYTON, ETC. VS. LA CAJA CHINA, INC. (L-5007-11, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4407-15T1
TUCKER CLAYTON, by and through
his Parents and Natural Guardians,
CHAD CLAYTON and DIANA CARNEY
and CHAD CLAYTON and
DIANA CARNEY, individually,
Plaintiff-Appellant,
v.
LA CAJA CHINA, INC.,
RBG INVESTMENTS, LLC and
BRET BAKER,
Defendants,
and
LC CH, INTERNATIONAL, INC.,
Defendant-Respondent.
_________________________________
Submitted February 12, 2018 – Decided July 10, 2018
Before Judges Messano, Accurso, and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
5007-11.
Law Offices of S.P. DiFazio, attorneys for
appellant (Salvatore P. DiFazio, on the
brief).
Donna Adelsberger & Associates, PC, attorneys
for respondent (Donna L. Adelsberger, on the
brief).
PER CURIAM
On June 19, 2010, plaintiff, 14-month-old Tucker Clayton, his
mother, father and other relatives went to Bret Baker's eight-acre
farm for a pig roast. The party was in progress with dozens of
other guests in attendance when plaintiff and his parents arrived.
Baker was roasting the pig using a product manufactured and sold
by defendant LC CH International, Inc.1 The device required Baker
to place and light charcoal on a tray that sat above the meat and
then close the lid of the cooking "box." During the cooking
process, the charcoal tray was temporarily removed, spent ashes
were disposed of, the pig was turned, its skin was scored, and it
was returned to the cooking box, before the charcoal tray was
replenished and replaced to crisp the pig's skin.
Baker was familiar with the product, having purchased and
used a similar model years earlier. On this occasion, he discarded
the spent ash near a cinder block wall, approximately twenty-five
feet from the roaster and fifteen feet from his guests' tables.
1
La Caja China, Inc., is the trade name of a line of products
manufactured by defendant RBG Investments, LLC (RBG), which is
apparently the current owner of the trade name. Any relationship
between defendant and RBG is not disclosed in the record.
2 A-4407-15T1
Plaintiff and his parents had not yet arrived when Baker orally
warned his other guests that the ashes were still quite hot.
At some point, plaintiff strayed from his parents'
supervision and placed his hands in the hot ashes, causing
significant and permanent burn injuries. Plaintiff settled his
claims against Baker and proceeded to trial against defendant,
alleging the pig roaster was defectively designed and lacked
adequate warnings.
The jury concluded that plaintiff failed to prove a design
defect but found the pig roaster lacked adequate warnings.
However, the jury also concluded the lack of adequate warnings was
not a proximate cause of plaintiff's injuries. The court entered
judgment for defendant, and plaintiff moved for a new trial,
alleging various legal errors. The judge denied that motion, and
this appeal followed.
Before us, plaintiff argues the judge should have granted his
in limine motion to bar the report and subsequent testimony of
defendant's expert, Robert Nobilini, Ph.D., as a net opinion, and
the judge committed additional error by permitting Nobilini to
testify about the need to exercise "common sense" in using the pig
roaster. Plaintiff also argues the judge's instructions on the
"heeding presumption" were erroneous. See, e.g., Coffman v. Keene
Corp., 133 N.J. 581, 595 (1993) (defining "heeding presumption"
3 A-4407-15T1
as "a presumption that plaintiff would have 'heeded' or followed
a warning had defendant given one"). Lastly, plaintiff contends
the judge erred by denying his pretrial in limine motion, and his
directed verdict motion at trial, as to whether it was objectively
reasonable for defendant to anticipate Baker's method for
disposing of the hot ashes.
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
I.
One cannot fairly consider plaintiff's arguments regarding
Nobilini's report and testimony without examining the report and
testimony of plaintiff's expert, Robert E. Moro, a mechanical
engineer who qualified as "an expert in consumer products." Moro's
report cited regulations and standards regarding "labeling for
consumer products," but he did not cite any specific regulation
regarding the pig roaster or any similar product. Moro opined
that "[a] reasonable alternative safe design" would have included
a warning about "the potential of . . . injury when . . . handling
hot spent ashes." He noted the roaster's instructions had been
modified since Baker's purchase; they now advised consumers to
"[a]dd water to ashes to ensure they don't cause fire, or bodily
harm." Moro noted defendant now offered an "ash disposal system,"
4 A-4407-15T1
constructed of metallic components with a metallic lid. He opined
that this was a "reasonable safe design alternative."
However, Moro also noted that instead of disposing of the ash
in proximity to his guests,
[a]n alternative common sense safety
consideration would have been for . . . Baker
to dispose [of them] in a metallic container
with a cover. Another alternative
consideration would have been to dump the hot
spent ashes at another location on his
property, since it consists of [eight] acres
of land, where there was no possibility of his
guests coming into contact with the contents.
In his testimony before the jury, Moro explained that the
failure to provide an ash receptacle was a design defect and
industry standards required consumer products to warn of any
hazards presented by the product. A sufficient warning would have
provided precautionary measures, which, in this case might be "put
spent ashes in a closed metal container or . . . a significant
distance from where any people may be participating in an activity
related to the cooking." Moro cited a specific regulation, 16
C.F.R. § 1500.121 (1984), that required warnings to be placed on
consumer products similar to the roaster.
At the conclusion of direct examination, the following
colloquy took place:
Counsel: Did you evaluate Mr. Baker's conduct
in this case as well?
5 A-4407-15T1
Moro: Yes, I did.
Counsel: And did you have an opinion as to
the propriety of the manner in which he dumped
the ashes?
Moro: Based on my review of the available
discovery documentation he dumped the ashes
anywhere between ten to [twenty-four] feet
from where the plaintiff was sitting . . . .
Counsel: And in your mind would that adhere
with a safe distance?
Moro: Me personally, I think that was
insufficient distance.
On cross-examination, Moro acknowledged that the regulation he
cited dealt with a requirement to place warnings on bags of
charcoal briquettes and "d[id] not address any burn potential[.]
[I]t addresse[d] a carbon monoxide issue once the coals are
lit . . . ." The regulation had nothing to do with the roaster
box.
In his report, Nobilini noted that Baker was obviously aware
of the dangers of the hot ashes because he warned his guests. He
agreed with Moro that a "common sense" alternative was for Baker
to use a covered metal container, but Nobilini opined the container
would also get quite hot and would need to be located far away
from Baker's guests. Nobilini also agreed with Moro that common
sense dictated Baker place the ashes further away from his guests,
6 A-4407-15T1
and he proposed other alternatives, such as burying the ashes,
soaking them in water or barricading the area to prevent access.
Nobilini disputed the need to place a warning on the roaster
because "[w]arnings are necessary to alert consumers of the
presence of hazards that are not open and obvious." He opined
that knowing the ashes were very hot, Baker's actions were not
"reasonable or foreseeable." Nobilini disputed the federal
regulations cited by Moro applied at all, opining they dealt solely
with the dangers of carbon monoxide inhalation from burning
charcoal. He cited instructions on bags of charcoal that warn of
the dangers of charcoal briquettes and the need to dispose of them
safely.
Lastly, Nobilini took issue with Moro's suggestion that an
ash disposal box as part of the roaster would alleviate safety
concerns. He noted the design defendant later implemented in
other models of the roaster still required the very hot ash box
be kept away from guests. Nobilini opined that the design of the
roaster was not a cause of plaintiff's injuries nor were warnings
required. He placed responsibility solely with Baker.
At trial, when Nobilini tried to explain that warnings were
not required because "[c]ertain things are totally obvious,"
plaintiff's counsel objected. He argued that pursuant to N.J.R.E.
702, Nobilini could not testify about "common sense or what people
7 A-4407-15T1
should know as a matter of common sense." The judge required
Nobilini to answer in terms of his engineering expertise.
Nobilini opined there was no duty to warn about obvious
dangers in using a product and no violation of federal regulations.
According to Nobilini, under federal law, a manufacturer had no
duty to advise the Consumer Products Safety Commission unless it
knew its product contained "a defect that create[d] a substantial
product hazard," and Moro had acknowledged that defendant was
unaware of any injuries caused by using the roaster. Nobilini
opined that Baker's actions were the cause of plaintiff's accident.
Plaintiff moved in limine before trial to bar Nobilini's
report as a net opinion. The judge noted Nobilini, who had fully
examined discovery in the case, was in large part criticizing
Moro's report, in particular, Moro's discussion of federal
statutes and regulations. While neither report was "the greatest
expert report" he had ever seen, the judge noted a lack of
standards regarding the "hot box" made it difficult for both
experts. He denied plaintiff's motion.
At the close of all the evidence, plaintiff renewed his
request to strike Nobilini's testimony as a net opinion, arguing
Nobilini's emphasis upon Baker's lack of "common sense" violated
N.J.R.E. 702, and Nobilini cited no scientific or engineering
data. The judge denied the motion, reasoning:
8 A-4407-15T1
[T]he question is, ultimately, did Dr.
Nobilini say anything other than it's common
sense. Well, yes, he did. He talked about
the Consumer Product Safety Act and the
Consumer Product Safety Commission. He gave
some wherefores. Was it the greatest opinion,
no, not at all.
Neither was Mr. Moro's, quite frankly.
And, you know, I remember reading the reports
and Mr. Moro basically blamed Mr. Baker and
then said, and by the way, you know, the
Consumer Product Act and he talked about
charcoal. He didn't talk about this
particular unit. And then Dr. Nobilini, his
report basically said, yes, what he said is
correct. So they're both, for lack of a better
phrase, lousy opinions.
But there's enough there to get them to
the jury. In my mind this case goes to the
jury. It's that simple, because there's fact
questions up and down, as to whether Mr. Baker
is the one who is solely responsible.
Before us, plaintiff renews his objections, arguing
Nobilini's report and testimony contained only net opinions
largely premised upon common sense, a subject not beyond the ken
of the average juror. See, e.g., Scully v. Fitzgerald, 179 N.J.
114, 127 (2004) ("A jury does not need a fire expert to explain
to it the dangers that might follow when a lit cigarette is thrown
into a pile of papers or other flammable material."). We find no
reason to reverse.
"The admission or exclusion of expert testimony is committed
to the sound discretion of the trial court," Townsend v. Pierre,
9 A-4407-15T1
221 N.J. 36, 52 (2015), and an appellate court "appl[ies] [a]
deferential approach to a trial court's decision to admit expert
testimony, reviewing it against an abuse of discretion standard."
Id. at 53 (second alteration in original) (quoting Pomerantz Paper
Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)). "The net
opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids
the admission into evidence of an expert's conclusions that are
not supported by factual evidence or other data.'" Id. at 53-54
(alteration in original) (quoting Polzo v. Cnty. of Essex, 196
N.J. 569, 583 (2008)). "An expert's conclusion 'is excluded if
it is based merely on unfounded speculation and unquantified
possibilities.'" Id. at 55 (quoting Grzanka v. Pfeifer, 301 N.J.
Super. 563, 580 (App. Div. 1997)).
Here, we agree entirely with the judge's assessment of both
experts' reports and testimony, i.e., they rested upon the thinnest
of expert reeds. However, Nobilini properly expressed
disagreement with Moro's conclusion that the lack of adequate
warnings violated federal regulations or an alternative design
using an attached covered metallic ash box would have avoided the
accident. Nobilini did so in the context of engineering principles
that warrant express warnings only when use of the product posed
non-obvious dangers. It follows that more than simply expressing
something within the knowledge of average jurors, i.e., common
10 A-4407-15T1
sense, Nobilini explained why warnings were not necessary in this
case. Finally, Moro specifically addressed Baker's lack of common
sense in choosing to dispose of the ashes in close proximity to
his guests. We see no reason why the judge should have foreclosed
defendant from pointing out its expert's agreement with that
premise.
II.
Baker testified that when he purchased his first roaster, he
read and followed the instructions to assemble the product and
read the cooking instructions on the side of the roaster. When
Baker bought his second roaster, he threw the instructions away
because he knew how to assemble the product. Baker was aware and
did not need to be told the ashes were hot, but he did not realize
how hot they remained until he examined ashes left from a previous
roast and found they were still warm days later.
During the charge conference, plaintiff argued defendant
failed to adduce any proof that Baker would not have heeded a
warning had one been provided. Defendant argued there was evidence
that Baker already knew of the risk posed by hot ashes and failed
to read the instructions actually provided. Defendant contended
whether Baker would have heeded a warning was a fact question for
the jury.
11 A-4407-15T1
The judge proposed modifying Model Jury Charges (Civil),
5.40C, "Failure to Warn/Instruct" (rev. Oct. 2001), by telling the
jury plaintiff had introduced evidence Baker read the instructions
provided. Plaintiff continued to object to submitting the issue
to the jury but agreed to the following language, and the judge
instructed the jury,
In this case the plaintiff[] claim[s] the
roaster was defective because there was no
adequate warning or instruction. If you find
that the roaster was defective because
adequate warnings or instructions [were] not
given, then you must decide whether the lack
of an adequate warning or instruction was a
proximate cause of the accident.
The defendant LC CH has introduced evidence
seeking to show that defendant Bret Baker
would not have read and followed an adequate
warning or instruction even if one had been
provided by the defendant. Plaintiff has
introduced evidence that defendant did read
the instructions. It is for you the jury to
decide if he actually read the instructions.
You have to decide whether Bret Baker would
have read and heeded a warning or instruction
had one been given or that he would not have
read and heeded a warning or instruction had
one been given.
Plaintiff has the burden to prove by a
preponderance of the credible evidence that
Mr. Baker would have followed an adequate
warning instruction if it had been provided.
[(emphasis added); see id. at 8-9.]
In products liability litigation, "[w]hen the alleged defect
is the failure to provide warnings, a plaintiff is required to
12 A-4407-15T1
prove that the absence of a warning was a proximate cause of his
harm." Coffman, 133 N.J. at 594. The heeding presumption serves
to ease a plaintiff's burden of proof on the issue of causation.
Id. at 603. "[O]nce the heeding presumption comes into play, the
burden of coming forward with evidence, i.e. the burden of
production, shifts to the defendant to overcome or rebut the
presumption." Sharpe v. Bestop, Inc., 314 N.J. Super. 54, 67
(App. Div. 1998), aff'd o.b., 158 N.J. 329 (1999). There are
generally two methods a defendant could use to rebut the heeding
presumption: the first is "by offering evidence concerning the
plaintiff's knowledge of the very risk that the absent warning was
supposed to address." Id. at 74. The second is by "introduc[ing]
evidence of plaintiff's attitudes and conduct apart from knowledge
of the product's risk that demonstrates an indifference to safety
warnings." Ibid. "[I]f defendant presents sufficient evidence
to rebut the presumption, . . . the presumption disappears and the
plaintiff, consistent with his original burden of persuasion, must
prove by a preponderance of the evidence that the failure to warn
was a proximate cause of his injury." Id. at 67.
Here, defendant argued that Baker's testimony, if believed,
rebutted the presumption in both manners outlined in Sharpe. We
agree. The judge's instructions fairly placed the issue before
13 A-4407-15T1
the jury where it properly belonged, and we find no reason to
reverse.
III.
Plaintiff moved pretrial to bar the jury from considering
Baker's comparative fault because it was foreseeable that those
using the pig roaster would dump the ashes on the ground. See,
e.g., Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993) (citations
omitted) ("[A] defendant may still be liable when a plaintiff
misused the product, if the misuse was objectively foreseeable.").
At the time, the judge denied the motion, reasoning it was not an
appropriate in limine request, and there was a jury question
presented as to "how much . . . the manufacturer [is] supposed to
foresee."
At trial, plaintiff read the deposition testimony of Roberto
Guerra, defendant's principal, and later called Guerra as a witness
before the jury. In particular, Guerra recounted his use of the
pig roaster at a resort with celebrity chef Bobby Flay for a
broadcast on The Food Network. During the segment, Guerra dumped
spent coals onto nearby grass and sand, and he recalled how the
resort's management was upset because of the damage done to the
premises. Guerra said the incident led him to develop an
alternative model, mainly for commercial use, that contained a
receptacle for spent ashes.
14 A-4407-15T1
At the conclusion of all testimony, plaintiff moved for a
directed verdict on the issue of objective foreseeability. See,
e.g., Brown v. United States Stove Co., 98 N.J. 155, 168 (1984)
(citation omitted) ("[T]he doctrine applies to those future
occurrences that, in light of the general experience within the
industry when the product was manufactured, objectively and
reasonably could have been anticipated."). The judge denied the
motion, concluding that although it was entirely foreseeable that
the ashes needed to be discarded somewhere, there was "a jury
question as to whether or not it's objectively foreseeable that
the end user is not going to do something smart with it."
Before us, plaintiff contends that because Baker's decision
to dump the ashes was objectively foreseeable, his negligence
could not be a proximate cause of plaintiff's injuries and the
judge should have directed a verdict on that issue and never
submitted it to the jury. The verdict sheet contained a specific
interrogatory immediately prior to consideration of Baker's
negligence: "Was the manner in which . . . Baker dumped the ashes
on his property 'Objectively Foreseeable' to [defendant]?"
Initially, we note that because the jury concluded any failure
to warn was not a proximate cause of plaintiff's injuries, it
never reached the issues of whether Baker's use or misuse of the
product was objectively foreseeable or his comparable fault.
15 A-4407-15T1
However, plaintiff contends the denial of his in limine motion and
motion for a directed verdict, together with Nobilini's testimony,
placed Baker's conduct squarely before the jury and tainted its
consideration of the evidence. We therefore address plaintiff's
claim.
"The absence of misuse [of a product] is part of the
plaintiff's case. Misuse is not an affirmative defense." Jurado,
131 N.J. at 386. "[P]roduct misuse" may be using the product for
an "improper purpose" or using it in an improper manner. Ibid."[T]he plaintiff in a design-defect products-liability suit may
succeed even if the product was misused, as long as the misuse or
alteration was objectively foreseeable." Ibid.However, even if misuse of the product was objectively
foreseeable, "[p]roduct misuse theoretically could relate to the
existence of a defect, the issue of causation, or that of
comparative fault." Id. at 387. See also Wallace v. Ford Motor
Co., 318 N.J. Super. 427, 432 (App. Div. 1999) (quoting Johansen
v. Makita USA, Inc., 128 N.J. 86, 102-03 (1992)) ("[A] plaintiff's
conduct may be relevant to the 'question of proximate cause,' in
that a jury may find that plaintiff's conduct 'had been the sole
cause of the accident.'").
In this case, it was foreseeable that using the pig roaster
would entail discarding hot ashes. But, whether it was reasonably
16 A-4407-15T1
foreseeable that Baker would use the pig roaster in an arguably
improper manner by discarding the ashes in close proximity to
dozens of guests, presented a factual issue at best. We find no
error.
Affirmed.
17 A-4407-15T1