In the unpublished decision of Magdon v. Harley Davidson, et al., 2019 N.J. Super Unpub. (App. Div. of N.J., Decided May 30, 2019), New Jersey’s Appellate Division reversed the trial court’s dismissal of a Plaintiff’s product liability complaint against Harley Davidson, and ruled that the plaintiff’s expert opinion was admissible.
Plaintiff purchased a new motorcycle from Defendant, Liberty Harley-Davidson (“Liberty”), in 2010. Over the next four years, Plaintiff had Liberty service the motorcycle twice, performing various routine maintenance tasks. No maintenance to the braking system was performed. Of note, the Harley-Davidson owner’s manual for the motorcycle indicated that the brake system should be flushed and the brake fluid should be changed every two years.
While Plaintiff was riding his motorcycle shortly after the second service visit with Liberty, he applied the brakes, but claimed he did not feel pressure in the front brake. Upon hitting a ditch, Plaintiff totaled the motorcycle and was severely injured. Plaintiff filed a products defect claim against Harley-Davison and a negligence claim against Liberty.
Plaintiff’s expert witness, George Meinschein, P.E., offered several opinions regarding the subject accident. Chief among them was that a brake system defect caused the accident. He first concluded that the plaintiff’s feeling of no pressure from the brakes, and the absence of visible post-crash defects in the front brake system, was consistent with failure of a piston seal in the front brake master cylinder due to contamination of the brake fluid. Mr. Meinschein also concluded that the contaminated fluid would either be a Harley-Davidson product used in the original brake fluid or added by Liberty. He based this conclusion on the most recent odometer reading by Liberty, opining that in order to compensate for the fluid level drop due to normal brake pad wear, the front brake fluid reservoir was topped off with either contaminated or incorrect Harley-Davidson brake fluid. Mr. Meinschein added that the brake failure and crash were caused by either Liberty’s failure to discover the contaminated brake fluid or by their addition of contaminated Harley-Davidson brake fluid.
The trial court barred Mr. Meinschein’s testimony, finding that it was a net opinion and speculation regarding the cause of the crash. In its reversal, the Appellate Division looked to Mr. Meinschein’s third and final report to determine its admissibility. The Court relied on N.J.R.E. 703, in addition to well established case law which provides that an expert’s opinion must be supported by factual evidence or other data to be deemed admissible. See Townsend v. Pierre, 221 N.J. 36, 53-53 (2015). In addition, experts must give the “why and wherefore” supporting their opinions, “rather than…mere conclusion[s].” Id. at 54. (internal citations omitted). Moreover, it has also been established that an expert opinion can be based on the expert’s personal experience and training. See State v. Townsend, 186 N.J. 473, 495 (2006).
With respect to Mr. Meinschein’s first conclusion (that the sudden and unexpected loss of braking ability of the motorcycle was caused by a failure to the front brake cylinder), the Appellate Division held that this was based on factual evidence. Specifically, the Appellate Division looked to the fact that this conclusion was established by Mr. Meinschein’s use of post-crash photographs of the motorcycle and Plaintiff’s deposition testimony stating that he felt no pressure when he applied the brake.
The Appellate Division also held that Mr. Meinschein sufficiently explained “why” he thought there was a failure to the front brake master cylinder. Again, the Appellate Division looked to Mr. Meinschein’s reliance on Plaintiff’s testimony regarding his application of the brakes and Mr. Meinschein’s review of photographs to establish the absence of post-crash defects in the front brake system being consistent his conclusion that the brake fluid was contaminated. The Court determined that Mr. Meinschein’s reliance on the factual evidence in the record, as well as his own training and experiencewas sufficientto support his conclusions
Finally, with respect to his conclusion that Liberty failed to discover the contaminated brae fluid or that they added contaminated brake fluid, the Appellate Division held that Mr. Meinschein’s conclusion was supported by factual evidence. The Court noted that the factual evidence for this argument was the recorded mileage of the bike, paired with Mr. Meinschein’s expert knowledge of brake fluid reservoirs and normal brake pad wear.
Although not precedential, the matter provides valuable insight into how New Jersey law deals with expert testimony in product defect actions. More specifically, experts are permitted to “rule out” potential causes of an accident to opine that the cause of an accident must have been a defect, without necessarily having tested a product to examine a specific claimed defect. Due to the trial court’s misapprehension of this, the plaintiff’s case was improperly dismissed.
For more information on this topic, please feel free to contact the authors, MK&C’s Jonathan Lee and Tom Emala, at (973) 822-1110.