Appellate Division reverses Trial Court holding that liability expert report in Products Liability action was a Net Opinion

The Appellate Division, in Magdon v. Harley-Davidson USA, et al, A-5527-17T4, recently provided a motorcycle operator an opportunity to continue his claim, against the manufacturer and one of its dealers, that faulty breaks caused his crash, indicating that the trial court erred in deeming his expert report inadmissible.

The plaintiff owner/operator bought a motorcycle, sold as new, in 2010 from Liberty Harley-Davidson (“Liberty dealership”), a dealer of Harley-Davidsons. After purchase, the plaintiff had his motorcycle serviced every couple of years. The servicing was conducted at the Liberty dealership, and the plaintiff claimed that he did not make any modifications, specifically additions, to the motorcycle after purchase. The owner’s guide, for the purchased motorcycle, indicated that the braking system be flushed and the fluid replaced every two years. The plaintiff alleged that the Liberty dealership never conducted these activities during its servicing of the motorcycle. Furthermore, the plaintiff claimed that the Liberty dealership never did any maintenance on the brakes during its servicing of the motorcycle. According to the owner’s manual, it was instructed that the brake system be flushed and the brake fluid replaced every two years, but the Liberty dealership did not perform any brake service during any of the recorded service appointments.

Four years after he purchased it, the plaintiff was involved in an accident while operating the motorcycle. The plaintiff claimed he applied his breaks before the accident, but they failed to activate. He felt a lack of pressure in the front brakes when he tried applying them, and ended up landing in a ditch with the motorcycle on top of him. The plaintiff was severely injured due to the accident and his motorcycle was deemed “totaled.”

The plaintiff filed suit against Harley-Davidson and the Liberty dealer, under theories of products liability, claiming that his injuries were caused by their negligence. The plaintiff claimed that manufacturing and design defects caused his accident, as well. Furthermore, the plaintiff provided expert testimony in support of his claim. The liability expert claimed to have reviewed the accident report, his client’s deposition testimony, the owner’s manual, audio/video from the site inspection, he conducted, and the accident scene in general, measurements, and written discovery provided by the defendants when preparing his report. The expert opined that a defect in the braking system prevented the plaintiff from slowing down and thus avoiding the accident. The expert further stated that, per his opinion, the master cylinder from the front brake was defective. He also opined that brake fluid, which was contaminated, also played a role in the failure, and he blamed this on the dealership for improperly servicing the motorcycle.

At the trial level, the defendants contended, in their motion for summary judgment , that the report provided by the plaintiff’s liability expert was not supported by the record, and was a “net opinion.” Harley-Davidson argued that the plaintiff failed to show that a manufacturing defect was present when the motorcycle left its manufacturing plant. The Liberty dealer argued that the plaintiff did not prove that the brake fluid that was contaminated, and thus it did not show that any duty was breached. In opposing summary judgment, the plaintiff combatted Harley-Davidson’s arguments by claiming that its expert did provide a basis for his report, specifically noting that he looked at weather reports, visuals of the motorcycle, the defendants’ document production, which included service records, as well as conducting site inspections. His review of these items helped, in part, rule out other causes for the brakes failing. The plaintiff combatted the Liberty dealer’s arguments by showing that they did not follow the Harley-Davidson owner’s manual as to servicing brakes.

The trial court granted the defendants’ motion believing the report of plaintiff’s expert to be a “net opinion.” The trial court held that the report, provided by plaintiff’s expert, provided "no analysis," "no testing," and no "why's or where[fore's]" in classifying it as a “net opinion.” In granting the motions for summary judgment, the trial court dismissed the actions against Harley-Davidson and the Liberty dealer. The plaintiff appealed arguing that his expert’s report was based on evidence. Furthermore, he argued that the report established a causal relationship between the fluid, which was allegedly contaminated, and the malfunctioning brake system.

In an unpublished decision, the Appellate Division held that the report of plaintiff’s liability expert was supported by evidence and was not a “net opinion.” The Court pointed to the evidence that the plaintiff’s expert listed, and that he relied upon, when forming the basis of his report and opinion on how the aforementioned defects caused the crash. Lastly, the Court stated that a jury may infer, from the circumstantial evidence presented, that the alleged failure to the front brakes would not have occurred but for a defect. The Appellate Division vacated the trial court’s dismissal and remanded it for further proceedings.

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