Kevin McManus v. Barnegat Operating Co

• Court: Court of Appeals for the Third Circuit
• Decided: October 2, 2020
• Docket: 19-3184
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 19-3184 _____________

KEVIN MCMANUS, Appellant

v.

BARNEGAT OPERATING COMPANY, L.P., doing business as Barnegat Rehabilitation and Nursing Center; HEARTLAND REHABILITATION SERVICES; JOHN DOES 1-5; CROWN EQUIPMENT CORPORATION; JOHN DOES 6-10; JOHN DOES 11-20; MCKESSON MEDICAL ________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 3-15-cv-02109) District Judge: Honorable Brian R. Martinotti ______________

Argued: September 9, 2020 ______________

Before: CHAGARES, HARDIMAN, and MATEY, Circuit Judges

(Opinion filed: October 2, 2020) ____________

William J. Martin [ARGUED] Martin Gunn & Martin 216 Haddon Avenue Suite 420 Westmont, NJ 08108

Counsel for Appellant Timothy I. Duffy Joseph C. Amoroso Coughlin Duffy 350 Mount Kemble Avenue P.O. Box 1917 Morristown, NJ 07962

Thomas J. Cullen, Jr. [ARGUED] Goodell DeVries Leech & Dann One South Street 20th Floor Baltimore, MD 21202

Counsel for Appellee Crown Equipment Corporation ____________

OPINION* ____________

CHAGARES, Circuit Judge.

Kevin McManus sued Crown Equipment Corporation (“Crown”) based on injuries

that he suffered while using a pallet jack manufactured by Crown, which he claims was

defective under New Jersey’s Products Liability Act. The District Court granted Crown’s

motion for summary judgment because it concluded that McManus could not prove a

manufacturing defect under the indeterminate product defect test. We hold that the

District Court should also have considered whether McManus could prove his product

defect claim under the circumstantial evidence test. Accordingly, we will reverse and

remand.

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

2 I.

We write solely for the parties and so recite only the facts necessary to our

disposition. The Crown PTH 50 Series pallet jack is a type of cart or truck used to lift

and transport heavy loads. Users operate the pallet jack via a handle that can be

positioned at various angles. The handle features a lever that can raise or lower two

forks, which are at the front of the pallet jack and bear the load to be moved. Because the

pallet jack’s forks are designed to lower rapidly, squeezing the pallet jack’s lever can

serve as an emergency stop function if the weight of a load causes the pallet jack to gain

momentum. The angle at which a user positions the pallet jack’s handle should not affect

the speed at which its forks lower.

McManus used a Crown pallet jack to deliver two pallets to Barnegat

Rehabilitation and Nursing Center, which required him to unload his delivery on a sloped

surface. One of the pallets picked up significant momentum as McManus moved it down

the slope. Though McManus squeezed the pallet jack’s lever to initiate an emergency

stop, the pallet jack’s forks did not lower quickly. McManus’s arm was caught in the

pallet jack’s handle, and he was injured as the pallet jack dragged him down the slope.

McManus filed suit against Crown, alleging that the pallet jack that he used

suffered from a manufacturing defect. He claimed that the pallet jack’s forks would only

lower as rapidly as designed if he held the handle fully upright, rather than at the angle at

which he held it during the accident. Because the pallet jack that McManus used had

been lost or destroyed, though, McManus’s engineering expert could not identify the

specific cause of the alleged malfunction. McManus instead sought to prove his

3 manufacturing defect claim through the “circumstantial evidence test,” which allows a

plaintiff to attribute a product defect to the manufacturer based on factors including the

product’s age, prior usage, and expected durability. Crown moved for summary

judgment against McManus and the District Court held that McManus could not rely

upon the circumstantial evidence test because he could not identify a specific defect with

the pallet jack. The District Court reasoned that plaintiffs who cannot identify specific

defects must instead rely on the indeterminate product defect test alone, and it granted

Crown’s motion for summary judgment because it concluded McManus could not satisfy

that test’s requirements. This timely appeal followed.

II.

The District Court had jurisdiction under 28 U.S.C. § 1332, and we have

jurisdiction under 28 U.S.C. § 1291. Our review of questions of state law is plenary.

Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 369 (3d Cir. 1996). We also

exercise plenary review over the District Court’s grant of summary judgment. Razak v.

Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020). We will affirm a grant of summary

judgment only where “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

III.

To prove a manufacturing defect claim under the New Jersey Products Liability

Act, a plaintiff must establish “that [a] product was defective, that the defect existed

when the product left the manufacturer’s control, and that the defect proximately caused

injuries to the plaintiff, a reasonably foreseeable or intended user.” Myrlak v. Port Auth.

4 of N.Y. & N.J., 723 A.2d 45, 52 (N.J. 1999). Establishing that a product was defective

“requires only proof, in a general sense and as understood by a layman, that ‘something

was wrong’ with the product.” Scanlon v. Gen. Motors Corp., 326 A.2d 673, 677 (N.J.

1974). It does not require proof of a specific defect. Moraca v. Ford Motor Co., 332

A.2d 599, 601 (N.J. 1975). New Jersey law traditionally provided three methods to prove

that the defect existed when the product left the manufacturer’s control: (1) offering

direct evidence of the product defect and when it arose; (2) showing that the accident

would not normally have occurred absent a product defect under the circumstantial

evidence test, such as by comparing the age and prior usage of the product to its

durability and expected life span; and (3) negating causes for the product failure that

could not be attributed to the defendant, to make it reasonable to infer that the defect was

attributable to the defendant. See Scanlon, 326 A.2d at 678–79.

In Myrlak, the New Jersey Supreme Court added one more method of proving a

product defect claim. The plaintiff in that case, who could not identify a specific defect,

sought a jury instruction on the traditional negligence doctrine of res ipsa loquitur. The

court determined that res ipsa loquitur would be inappropriate in a product defect case

because it originates from a materially different legal context, and the court instead

introduced the “indeterminate product defect test” as an effective substitute. See Myrlak,

723 A.2d at 54–55. Under this test, “[i]t may be inferred that the harm sustained by the

plaintiff was caused by a product defect existing at the time of sale or distribution,

without proof of a specific defect, when the incident that harmed the plaintiff: (a) was of

a kind that ordinarily occurs as a result of a product defect; and (b) was not, in the

5 particular case, solely the result of causes other than product defect existing at the time of

sale or distribution.” Myrlak, 723 A.2d at 55. The court explained that the indeterminate

product defect test was so called “because its use is limited to those product liability

cases in which the plaintiff cannot prove a specific defect.” Id. at 56.

The District Court cited the Myrlak opinion for the proposition that plaintiffs who

cannot allege a specific defect are limited to using the indeterminate product defect test,

while the circumstantial evidence test is limited to cases involving specific defects.

Because it found that McManus could not identify a specific defect in the pallet jack, the

District Court declined to consider whether McManus could raise a triable issue of fact

under the circumstantial evidence test.

We predict that the New Jersey Supreme Court would interpret its opinion in

Myrlak differently, though. Plaintiffs could rely on the circumstantial evidence test to

prove non-specific defect claims before Myrlak, and we hesitate to conclude that the

court limited the use of this long-established option by introducing the indeterminate

product defect test. There is not much language in Myrlak to clearly support such a

limitation on prior case law. While the Myrlak court noted that the indeterminate product

defect test is limited to cases where a plaintiff cannot prove a specific defect, that does

not necessarily mean a plaintiff who cannot prove a specific defect is limited to the

indeterminate product defect test.

Nor is the proposed limitation implied by the observation that, “[i]f [a] plaintiff

cannot satisfy [the] requirements [of the indeterminate product defect test], he is not

entitled to have the jury charged regarding an inference of a product defect, and [the]

6 plaintiff would be obligated to establish one or more manufacturing defects required by

the [New Jersey Products Liability] Act.” Id. at 57. On the contrary, that statement

implies that a plaintiff who cannot identify a specific defect or satisfy the indeterminate

product defect test can still “establish one or more manufacturing defects” by other

means. The court’s language throughout Myrlak reveals that the indeterminate product

defect test is an option that plaintiffs are permitted to use, rather than one that they are

required to use.

Crown argues that the indeterminate product defect test would be illogically

redundant if it did not limit the applicability of earlier methods of proof like the

circumstantial evidence test. Crown Br. 24–26. The indeterminate product defect test is

not necessarily redundant simply because it is consistent with other methods of proof,

though. The indeterminate product defect test “permits the jury to draw two inferences:

that the harmful incident was caused by a product defect, and that the defect was present

when the product left the manufacturer’s control.” Myrlak, 723 A.2d at 55. In contrast,

the three methods of proof discussed in Scanlon traditionally proved the timing of a

defect (i.e., that the defect existed when the product left the manufacturer’s control), and

plaintiffs retained the burden to prove the defect itself by showing “something was

wrong” with the product. See Scanlon, 326 A.2d at 677–79. Ultimately, the factual

context of Myrlak suggests that the New Jersey Supreme Court adopted the indeterminate

product defect test to address issues with the use of res ipsa loquitur, rather than with the

use of other tests that had already been adopted in products liability cases. See Myrlak,

723 A.2d at 55 (calling indeterminate product defect test “an alternative to a traditional

7 res ipsa loquitur instruction”); Jerista v. Murray, 883 A.2d 350, 364 n.3 (N.J. 2005)

(noting that indeterminate product defect test “does precisely what res ipsa loquitur does

in a negligence context”).

Accordingly, we conclude that the New Jersey Supreme Court’s opinion in Myrlak

does not preclude the use of the circumstantial evidence test when a plaintiff cannot

identify a specific defect. Because the District Court has not yet addressed whether

McManus could raise a genuine dispute of material fact under the circumstantial evidence

test, we will remand for the court’s consideration.

IV.

For the foregoing reasons, we will reverse the District Court’s Order and remand

for further proceedings.