The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Defendant Ford Motor Company ("Ford") moves for summary judgment dismissing Plaintiff Ronald Borsack's ("Borsack") product liability action. The action arises from the following agreed upon facts: Borsack's wife, Lesley Borsack, was driving her 1998 Ford Expedition northbound on Route 15, a four lane divided highway in Sparta Township, New Jersey, on the evening of May 8, 2002. While traveling at a speed between 53 to 65 miles per hour, she swerved to avoid a raccoon in the highway, lost control of the vehicle, and drove into the grass median. The Ford Expedition rotated counter-clockwise, dug into the bank of the median, and then rolled over four times, before coming to rest in the opposite, southbound lanes of the highway. Mrs. Borsack was ejected from the vehicle and came to rest on the median, at least 50 feet away from the vehicle. She died at the scene of the accident.
Borsack alleges that Mrs. Borsack was wearing her seatbelt and that it came unlatched and the driver's side door opened, causing her to be ejected through the door. According to the Amended Complaint, Mrs. Borsack's injuries were substantially caused by the design defects in the seatbelt and the door latch. Borsack filed the claim on April 29, 2004.*fn1 The Amended Complaint, filed July 7, 2005, alleges seven causes of action: (1) strict liability, (2) breach of implied warranty, (3) breach of express warranty, (4) negligence, (5) fraud, (6) negligent infliction of emotional distress, and (7) willful and reckless misconduct.
Ford now moves for summary judgment on all claims. Oral argument was heard March 27, 2007. Subsequent to the oral argument, Borsack moved to file a second amended complaint to include a claim for punitive damages. For the reasons discussed below, Ford's motion for summary judgment is denied; and Borsack's motion to amend is denied.
I. Discussion of Applicable Law
Jurisdiction in this Court is based on diversity. Accordingly, in making our choice of law, we follow the law of the forum state, New York, to ascertain what law is applicable to this lawsuit. Under New York's "interest analysis" approach, New York looks to the law of the jurisdiction with the more significant interest in, or relationship to, the dispute. See White v. ABCO Engineering Corp., 221 F.3d 293, 301 (2d Cir. 2000). "In deciding which state has the prevailing interest, [the court] look[s] only to those facts or contacts that relate to the purpose of the particular laws in conflict. 'Under this formulation, the significant contacts are, almost exclusively, the parties' domiciles and the locus of the tort.'" AroChem Int'l v. Buirkle, 968 F.2d 266, 270 (2d Cir. 1992) (quoting Schultz v. Boy Scouts of Am., Inc., 491 N.Y.S.2d 90, 95 (1985)). The following facts point to New Jersey's interest: Plaintiff is a domiciliary of New Jersey (as was the decedent); the accident and the decedent's death occurred in New Jersey; and the vehicle was shipped to, sold and licensed in New Jersey. Both parties agree that New Jersey law applies as it has the most significant interest (see Oral Arg. Tr. 2); accordingly, New Jersey law is applicable.
While Borsack alleges seven claims, all of them (except express warranty) are subsumed into the first claim of strict liability. After the enactment of the New Jersey Product Liability Act, "virtually all common law tort claims in New Jersey were combined into a single theory of recovery." Canty v. Ever-Last Supply Co., 296 N.J. Super. 68, 79 (Super Ct. Law Div. 1996).*fn2
As to the strict liability claim, the Amended Complaint alleges that the Ford Expedition's seatbelt and door latch designs rendered the vehicle and its components "unreasonably dangerous for their intended use," because they were not "crashworthy" in violation of New Jersey Product Liability Act, N.J.S.A. § 2A:58C-2. (Am. Compl. ¶¶ 52-67.) A plaintiff must show that the alleged defect was a "substantial factor" in producing an injury that would not have occurred, or would have been substantially diminished, in the absence of the defect. See Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 54-55 (Super Ct. App. Div. 2000). Under the statute, manufacturers will not be liable if there was no feasible alternate design when the product left the manufacturer's control.*fn3
"Crashworthiness" is defined as the ability of a motor vehicle to protect its passengers from enhanced injuries after a collision. See id. at 51 (citing Barris v. Bob's Drag Chutes & Safety Equip., Inc., 685 F.2d 94, 100 (3d Cir. 1982)). Strict liability is imposed on a manufacturer for injuries sustained in an accident involving a design or manufacturing defect that enhanced the injuries, but did not cause the accident. See Poliseno, 328 N.J. Super. at 52 (citing Seese v. Volkswagenwerk, A.G., 648 F.2d 833, 839 (3d Cir. 1981), cert. denied, 454 U.S. 867 (1981)).
The manufacturer is liable only for enhanced injuries, that is, injuries over and above the injuries that would have resulted from the accident, absent the alleged design defect. Poliseno, 328 N.J. Super. at 52 (citing Larsen v. Gen. Motors Corp., 391 F.2d 195, 503 (8th Cir. 1968)). "Enhanced injury refers to the degree by which a defect aggravates collision injuries beyond those which would have been sustained as a result of the impact or collision absent the defect." See Poliseno, 328 N.J. Super. at 52 (citing Barris, 685 F.2d at 100).*fn4
It is generally agreed that the plaintiff in a crashworthy case has the burden of establishing that the alleged defect was a substantial factor in increasing the harm beyond that which would have resulted from the collision. See Poliseno, 328 N.J. Super. at 52 (citing Restatement (Third) of Torts: Products Liability § 16 cmt. a (1997)).
Ford now moves for summary judgment. Borsack argues that, but for the design defects on the seatbelt and door latch, the decedent would have remained inside the vehicle and would not have been thrown from the vehicle. Ford contends that Borsack has no competent proof that there was any violation of New Jersey's Product Liability Act. Ford argues that Borsack cannot establish that the product design of the seatbelt or the door latch was defective; nor that the defects existed when the product left Ford's manufacturing facility; nor that the defects caused injury to a reasonably foreseeable user. Further, Ford asserts that Borsack cannot prove that there is a safer alternative feasible design which would have prevented the injury, nor has Borsack offered proof to support a risk utility analysis of the alternative design.
B. Summary Judgment Standard
In a motion for summary judgment, the moving party bears the burden of establishing that there are "no genuine issues of material fact" in dispute and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); SCS Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The moving party may satisfy this burden "by showing-that is pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and citations omitted).
A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact . . . ." Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir. 1993) (internal quotation marks and citation omitted). A dispute regarding a material fact is genuine, "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523. "Viewing the evidence produced in the light most favorable to the non-movant, if a rational trier could not find for the non-movant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992) (citation omitted).
When a motion for summary judgment is supported by sworn affidavits or other documentary evidence permitted by Rule 56, the nonmoving party may not rest "upon the mere allegations or denials of the [nonmoving] party's pleading." Fed. R. Civ. P. 56(e); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Rather, "the [nonmoving] party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Fed. R. Civ. P. 56(e). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotations and citations omitted). Similarly, a party may not rely on conclusory statements or an argument that the affidavits in support of the motion for summary judgment are not credible. See Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
C. Expert Testimony and Summary Judgment
Ford contends that Borsack's experts' testimony on the defective designs of the seatbelt (Pozzi) and door latch (Gilberg) is inadmissible under Federal Rule of Evidence 702. If so, there is no genuine issue of material fact and Ford would be entitled to summary judgment. If admissible, however, then it may be fairly said that there are sufficient questions of fact and that Ford is not entitled to summary judgment.
In these circumstances, the Court must decide questions of admissibility, including expert opinion evidence, on a motion for summary judgment. Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997).*fn5 This is so because on a summary judgment motion, a "district court properly considers only evidence that would be admissible at trial." Nora Beverages v. Perrier Group of Am., 164 F.3d 736, 746 (2d Cir. 1998). Evidence contained in an expert's report therefore must be evaluated under Rule 702 before it is considered in a ruling on the merits of a summary judgment motion. If a proffer of expert testimony in the form of an expert report ...