Ford et al v. Ford Motor Company et al

BRIEF in Opposition

D.N.J.April 3, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JAMES FORD and JEANNE FORD, h/w, Plaintiff, v. FORD MOTOR COMPANY, and JOHN DOE CORPORATIONS (1-50) Defendants. NO.: 1:15-cv-00357-NLH-KMW Honorable Noel L. Hillman, USDJ PLYMOUTH ROCK ASSURANCE a/s/o JAMES FORD Plaintiff, v. FORD MOTOR COMPANY, FORD MOTOR CO., LTD., FORD RESEARCH & DEVELOPMENT, JOHN DOE 1-10 (fictitious name), ABC 1-10, ABC INSURANCE COMPANY (fictitious names) Defendants. NO.: 1:15-cv-06475-NLH-JS Honorable Noel L. Hillman, USDJ PLAINTIFF’S BRIEF IN SUPPORT OF ITS OPPOSITION TO FORD’S MOTION FOR SUMMARY JUDGMENT AND TO PRECLUDE THE TESTIMONY OF MICHAEL ZAZULA On the Brief: LOCKS LAW FIRM, LLC By: Michael A. Galpern, Esquire Neel Bhuta, Esquire 801 N. Kings Highway Cherry Hill, NJ 08034 BRITT, RIEHL & SPUDIC By: Mike Riehl, Esquire H. Jared Murphy, II, Esquire 58 West Main Street PO Box 1149 Freehold, NJ 07728 Attorneys for Plaintiffs James and Jeanne Ford and Plymouth Rock Assurance Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 1 of 20 PageID: 400 TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………… ......................................................... i,ii INTRODUCTION ........................................................................................................................ 1 PROCEDURAL HISTORY ......................................................................................................... 2 STATEMENT OF FACTS ........................................................................................................... 2 LEGAL ARGUMENT .................................................................................................................. 2 A. The Governing Legal Standard Permits Mr. Zazula to Provide His Opinions and Testimony for This Case. .......................................................................................................................... 3 B. Mr. Zazula’s Opinions and Testimony Are Relevant to Plaintiff’s Product Liability Claim. 3 C. Mr. Zazula’s Opinions Are Based on Reliable Facts, Data, and Principles. .......................... 5 D. Mr. Zazula is Qualified to Offer His Opinions and Testimony. ............................................ 7 E. The Defendant's Motion for Summary Judgment Should Be Denied 1. Standard on a Motion for Summary Judgment ....................................................... 7 2. There is a Material Question of Fact Regarding a Design Defect of the Subject Vehicle. ......................................................................................................................... 9 3. There is a Material Question of Fact Regarding a Manufacturing Defect of the Subject Vehicle. .......................................................................................................... 14 4. There is a Material Question of Fact Regarding a Warning Defect. ...................... 15 CONCLUSION ........................................................................................................................... 16 Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 2 of 20 PageID: 401 TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) ........................................................... 8 Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) ............................... 8 Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1986) ...................................................................... 7 Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 169 (1978) .................................. 9, 14 Crowley v. Chait, 322 F. Supp. 2d 530, 536 (D.N.J. 2004) ............................................................ 3 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) ................................... 3 Estate of Knoster v. Ford Motor Co., 200 Fed. Appx. 106 (3d Cir. 2006) ............................. 12, 13 Hunt v. Cromartie, 526 U.S. 541, 552 (1999) ................................................................................ 8 Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996) ............................. 8 In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994) ................................ 3, 6, 7 Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990) ................................... 8 Jakubowski v. Minn. Mining & Manufacturing, 42 N.J. 177, 184 (1964) .................................... 13 Medina v. Daimler Trucks N. Am., LLC, No. Civ.A.10-623 JLL (D.N.J. Mar. 31, 2015) ............. 4 Myrlak v. Port Authority, 157 N.J. 84, 103-04 (1999) ................................................................. 13 O’Brien v. Muskin Corp., 94 N.J. 169, 181 (1983)....................................................................... 15 Oddi v. Ford Motor Company, 234 F.3d 136, 144 (3d Cir. 2000) ..................................... 3, 4, 5, 6 Reiff v. Convergent Technologies, 957 F. Supp. 573, 577 (D.N.J. 1997) ....................................... 7 Scanlon v. General Motors Corp., 65 N.J. 582 (1974) ................................................................. 15 Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) ......................... 3 Stigliano by Stigliano v. Connaught laboratories, Inc., 140 N.J. 305, 317 (1995) ........................ 6 Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007) ...................................................................... 8 Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 49 (1996) .................................................................. 9 Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 3 of 20 PageID: 402 Statutes N.J.S.A. § 2A:58C-2 .................................................................................................................... 2,9 N.J.S.A. § 2A:58C-2a ................................................................................................................... 14 Rules Fed. R. Civ. P. 56(a) ....................................................................................................................... 7 Fed. R. Evid. 702, Advisory Committee Notes to 2000 Amendments ........................................... 3 Other Authorities Restatement (Third) of Torts: Products Liability ……………………………………………… 12 Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 4 of 20 PageID: 403 1 I. INTRODUCTION These consolidated cases arise out of a fire that originated in a 2000 Ford Windstar that was resting in Plaintiffs Jeanne and James Ford’s garage. Plaintiffs claim the fire originated inside the Windstar as a result of a defect in the vehicle. Defendant Ford Motor Company seeks to preclude Michael Zazula from offering any opinions because his testimony allegedly (1) will not help the trier of fact in this case; (2) is not based on reliable facts, data, or principles; and (3) is outside the area of Mr. Zazula’s expertise. But none of defendant’s claims are correct, and all at best challenge the weight—and not the admissibility—of Mr. Zazula’s opinions. Plaintiffs intend to offer Mr. Zazula’s opinions in this case to address potential factual issues in how the fire could have originated in the rear of the vehicle. Mr. Zazula is a properly qualified expert who, based on an over 25-year career in the investigation of fires resulting from the failure of mechanical and electro-mechanical components, is being offered to provide one set of narrowly defined and relevant opinions: that there was abnormal electrical activity present in the rear wiring harness that manifested itself as beading causing the subject fire. In fashioning this opinion, Mr. Zazula relied on 19 different sources, five physical investigations, and his substantial experience. Defendant is free to challenge those sources and that investigation and that experience during cross-examination, but not now. The Court should accordingly deny defendant’s motion. Additionally, the defendant moves for summary judgment as to all claims. In support of this argument the defendant essentially reiterates that Mr. Zazula’s opinions should be barred, and as a result, the plaintiffs cannot establish a prime facie cause of action under the New Jersey Product Liability Act. In the alternative, with respect to the claim for a design defect, the defendants argue that even if Mr. Zazula’s expert opinion is deemed admissible, he does not opine as to a reasonably feasible alternative design. With respect to the failure to warn claim, the Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 5 of 20 PageID: 404 2 defendants merely assert that because the plaintiffs cannot establish a design defect claim, they cannot establish a failure to warn claim. The defendant makes no argument with respect to the allegation of a manufacturer defect. It is respectfully submitted that for the reasons stated herein, that there exist material issues of fact from which a jury could infer that the subject incident occurred as a result of a design defect, a manufacturing defect, and a warning defect of the subject motor vehicle. II. PROCEDURAL HISTORY On November 26, 2014, James and Jeanne Ford filed a complaint against Ford Motor Company in New Jersey state court, seeking recovery for property damage arising from a fire that had originated in a Ford Windstar at their home on November 30, 2012. On July 28, 2015, Plymouth Rock filed a subrogation action against Ford Motor Company based on the same facts. Both complaints see recovery based on design defects and failure to warn, pursuant to New Jersey’s Products Liability Act, N.J.S.A. § 2A:58C-2. Defendant removed the cases to federal court based on diversity jurisdiction, and this Court consolidated the two cases for all purposes. Discovery is now complete, and this Court set a filing deadline for dispositive motions on March 10, 2017. III. STATEMENT OF FACTS Plaintiffs hereby rely upon and incorporate in full their Response to Defendant’s Statement of Undisputed Facts and Plaintiffs’ own Statement of Undisputed Facts, which are filed contemporaneously herewith. IV. LEGAL ARGUMENT A. The Governing Legal Standard Permits Mr. Zazula to Provide His Opinions and Testimony for This Case. Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 6 of 20 PageID: 405 3 Both sides agree on the governing standard for admissible expert testimony. To admit Mr. Zazula’s opinion under Federal Rule of Evidence 702, Plaintiffs must show—only “by a preponderance of evidence”—that his opinions are reliable. See In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 744 (3d Cir. 1994); Oddi v. Ford Motor Company, 234 F.3d 136, 144 (3d Cir. 2000). In particular, Plaintiffs must demonstrate that Mr. Zazula’s opinion meets three factors: fit, reliability, and qualifications. See Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003). The Court evaluates those three factors, acting as the “gatekeeper” for reliable expert evidence, but its “gatekeeper” role “is not intended to serve as a replacement for the adversary system” because “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Crowley v. Chait, 322 F. Supp. 2d 530, 536 (D.N.J. 2004) (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993)). The Advisory Committee Notes for Rule 702 instruct that “[a] review of the case law after Daubert shows that the rejection of expert testimony is the exception rather than the rule.” See Fed. R. Evid. 702, Advisory Committee Notes to 2000 Amendments. B. Mr. Zazula’s Opinions and Testimony Are Relevant to Plaintiff’s Product Liability Claim. As a general matter, Defendant disputes the “fit” of Mr. Zazula’s opinion. Its motion claims, for example, that his opinions “do not fit the facts of this case” or they are “of no use to trier of fact.” Docket Entry 35 at 39. But Defendant misunderstands the legal standard for “fit.” An expert’s opinion “fits” for admissibility purposes if it is relevant and would assist the factfinder. Oddi, supra, 234 F.3d at 145-46. The “fit” standard is “not intended to be a high one, nor is it to be applied in a manner that requires [parties] to prove their case twice—they do not have to demonstrate to the judge by Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 7 of 20 PageID: 406 4 a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their opinions are reliable.” Id. (internal citations omitted). “Fit” thus presents a more lenient standard that allows an expert’s opinions and conclusions to be admitted so long as they are based on “valid reasoning and reliable methodology,” leaving the analysis of those opinions and conclusions “for the trier of fact when the expert is subjected to cross-examination.” Id. At 146 (internal citations omitted). Applying that standard here, Mr. Zazula’s opinions and testimony relate to the factual issues in the case, which boil down to how the fire was actually caused. Mr. Zazula is the only potential expert in this case that was present for all five physical investigations that were set up and coordinated through the litigation process. Accordingly, Mr. Zazula’s testimony is relevant to the extent that there is a triable issue of fact as to how a fire could have developed in the rear of a stationary vehicle with the engine turned off. Plaintiffs have alleged a defect related to a missing connecter seal, and Mr. Zazula’s testimony is relevant in connecting that defect to the harm that certainly occurred. And to the extent that Defendant criticizes Mr. Zazula’s opinions about whether he looked at other areas of the car (or garage), those criticisms go to the weight of his opinions rather than their admissibility, and “are best left to the consideration of the jury, presented through cross-examination and other appropriate evidence at trial.” Medina v. Daimler Trucks N. Am., LLC, No. Civ.A.10-623 JLL, 2015 WL 1472156 at *4 (D.N.J. Mar. 31, 2015). The Court should therefore find that Mr. Zazula’s opinions are admissible because they are relevant to (and would assist the factfinder with) factual issues regarding how Plaintiffs’ alleged vehicular defect could have caused a fire in the right rear of the 2000 Ford Windstar. C. Mr. Zazula’s Opinions Are Based on Reliable Facts, Data, and Principles. Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 8 of 20 PageID: 407 5 Defendant also argues that Mr. Zazula’s opinions must be stricken because they are supposedly unreliable. Defendant contends that Mr. Zazula “relied on incomplete fire investigations” and did not use reliable methodology in connecting the defective vehicle component to the fire. Docket Entry 35 at 32, 36. Again, those contentions are false. Mr. Zazula researched and relied upon 19 separate sources of fact and data to form his expert opinions. Those 19 sources include (but are not limited to) information supplied by the National Highway Traffic Safety Administration, reference documents and standards from the National Fire Protection Association, official recall documents from Ford Motor Company, Ford wiring diagrams, photographs from on-scene investigators, and photographs and microscopy results from physical examinations (of which Mr. Zazula is the only potential expert to have attended all five during the course of litigation). And based on those various sources of reliable information, Mr. Zazula assessed the potential ignition sources that were available in the rear of the vehicle and how any one of those ignition sources could have caused this subject fire. Mr. Zazula then reasonably based his opinion about such a cause of the fire on the facts and data known to him. See Oddi, supra, 234 F.3d at 146. Even defendant’s own documents, written back in October 2002, describe the development of a fire in the rear of the vehicle, caused by abnormal electrical activity due to a missing body seal. That is exactly the chain of events that Plaintiffs are alleging here. And that is the very point that Mr. Zazula now makes in his opinions. Yet the real nub of defendant’s complaint is that it disagrees with a few of the resources that Mr. Zazula relied upon; namely, defendant disagrees with the conclusion reached by every single one of the independent, non-litigation-retained fire investigators here: that the fire Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 9 of 20 PageID: 408 6 originated in the rear compartment of the Ford vehicle. Mr. Zazula was only retained after that fact was established, and Mr. Zazula relies upon that fact in his opinion. This nitpicking goes to the weight—and not the admissibility—of Mr. Zazula’s opinions, and should therefore be considered by the factfinder at trial. See In re Paoli, 35 F.3d at 744. “The test of admissibility is not whether a particular scientific opinion has the best foundation or whether it is demonstrably correct,” but rather whether “the particular opinions is based on valid reasoning and reliable methodology.” Oddi, supra, 234 F.3d at 145-46. Nonetheless, Defendant conflates Mr. Zazula’s foundation with what his opinions are actually about. His report provides opinions about the cause of the fire—i.e., the identification of abnormal electrical activity present in the rear wiring harness of the subject vehicle that manifested itself as beading causing the subject fire. But his report does not provide definitive opinions about the origin of the fire— which is established by the pre-litigation inspectors that were not providing their opinion for the purpose of litigation. Those pre-litigation inspectors may be the only liability witnesses in this case who have not been retained in anticipation of trial, and so a factfinder could determine that their testimony is more credible (and worthy on which to be relied) than any other witness. Stigliano by Stigliano v. Connaught laboratories, Inc., 140 N.J. 305, 317 (1995) (“Without impugning the expert witnesses who may testify for either plaintiffs or defendants, the treating doctors may be the only medical witnesses who have not been retained in anticipation of trial. A jury could find the treating doctors’ testimony to be more impartial and credible than that of the retained experts”). It was therefore unnecessary for Mr. Zazula to consider corrosion rates or to excavate the garage for the purpose of his actual opinion. The Court should therefore find that Mr. Zazula’s opinions are admissible because they are based on sufficiently reliable facts, data, and principles. See Reiff v. Convergent Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 10 of 20 PageID: 409 7 Technologies, 957 F. Supp. 573, 577 (D.N.J. 1997) (“In other words, the focus is not what the experts say, but what basis they have for saying it.”) (internal citations omitted). D. Mr. Zazula is Qualified to Offer His Opinions and Testimony. The last of Defendant’s criticisms is the most far-fetched. Mr. Zazula is a properly qualified expert to offer his opinions and testimony for this case. In the Third Circuit, an expert’s qualification should be assessed “liberally” and that “a broad range of knowledge, skills, and training qualify an expert as such.” In re Paoli, supra, 35 F.3d at 741. As detailed above, Mr. Zazula’s opinion is about corrosion rates on the body or chassis of a car when exposed to a fire. It is not about excavating an entire garage and eliminating all other potential sources of ignition, as Defendant claims. It is about relying on other fire investigators to determine that the origin of the fire was inside the vehicle, and then exhaustively examining the vehicle to determine how a fire could have arisen out of that stationary vehicle. In other words, Mr. Zazula’s opinion is about the mechanics of a vehicle’s component functions, a topic on which he has adequate experience after working nearly more than 25 years in the investigation of fires resulting from the failure of mechanical and electro-mechanical components. Under these circumstances, the Court should find that Mr. Zazula is a properly qualified expert who provides opinions well within his realm of expertise. E. The Defendant’s Motion for Summary Judgment Should Be Denied. 1. Standard on a Motion for Summary Judgment. On a motion for summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); accord Celotex Corp., v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 11 of 20 PageID: 410 8 genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine dispute of material fact exists if the evidence is such that a reasonable jury could find for the non-moving party. Id. at 248. When the Court weights the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. Stated differently, in reviewing a motion for summary judgment, the Court is required to examine the evidence in light most favorable to the non-moving party, and resolve all reasonable inferences in that party's favor. Hunt v. Cromartie, 526 U.S. 541, 552 (1999); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). A factual dispute is material when it "might affect the outcome of the suit under the governing law," and genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, supra, 477 U.S. at 248. Even if the facts are undisputed, a disagreement over what inferences may be drawn from the facts precludes a grant of summary judgment. Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996). Furthermore, "any unexplained gaps in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment." Id. (quoting Ingersoll-Rand Fin. Corp. v. Anderson, 921 F.2d 497, 502 (3d Cir. 1990)) (internal quotations and alterations omitted). The non-moving party "'need not match, item for item, each piece of evidence proffered by the movant,'" but must simply present more than a "mere scintilla" of evidence on which a jury could reasonably find for the non-moving party. Boyle v. Cnty. of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Anderson, supra, 477 U.S. at 252). Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 12 of 20 PageID: 411 9 In the present matter, there exist material issues of fact from which a reasonable jury could infer that the product causing the plaintiffs’ harm, here a 2000 Ford MY Windstar, was not reasonably fit, suitable or safe for its intended purpose in that it contained a design defect, a manufacturing defect, and because defendant, Ford Motor Company failed to adequately warn the plaintiffs of the dangerous condition of the product. Accordingly, it is respectfully requested that the Court appropriately deny defendant, Ford Motor Company’s motion for summary judgment, with prejudice. 2. There is a Material Question of Fact Regarding a Design Defect of the Subject Vehicle. The New Jersey Product Liability Act (NJPLA) provides that a manufacturer or seller of a product shall be liable if the plaintiff proves by a preponderance of the evidence that “the product causing the harm was not reasonably fit, suitable, or safe for its intended purpose.” N.J.S.A. 2A:58C-2. The NJPLA defines three types of defects each of which may render a product not reasonably fit, suitable or safe for its intended purpose: (a) a manufacturing defect; (b) a failure to “contain adequate warnings or instructions;” and (c) a defective design. Id. In cases where the plaintiff alleges a manufacturing defect, the plaintiff has the burden of proving that there were deviations from the manufacturer’s intended design that caused a product to be unsafe. See Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 169 (1978). To establish a prima facie design defect claim, a plaintiff must prove: (1) that the product in question was defective; (2) the defect existed when the product left the hands of the manufacturer; and (3) the defect caused injury to a reasonably foreseeable user. Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 49 (1996). In the present matter, the report authored by Mr. Zazula, taken in conjunction with the recall records of FMC, clearly establish that the subject vehicle was defective when it left the Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 13 of 20 PageID: 412 10 control of defendant, FMC. More specifically, a letter written on behalf of FMC to the National Highway Traffic Safety Administration specifically states: Affect on Vehicle Operation - In some of the affected vehicles, contamination of the C432 connector (on main wiring loom 14A005) to the trailer tow module may cause a low resistance short circuit between the power and ground pins in the connector, potentially resulting in overheating, smoke, and fire in the right rear of the passenger compartment. See Exhibit H, Pg. 2. Moreover, in an attachment to that letter titled “Defect Information Report” a more specific description of the cause and effect of the defect is given as follows: 573.5 (c) (5) - Description of the Defect Exposure of the C432 electrical connector to water and environmental contaminants may bridge the positive and ground pins, causing carbon tracking and corrosion that results in a low resistance short circuit in the connector. The primary source of water and dirt in the connector results from missing body sealer between the joint line of the floor pan and the right body side. The location is at the body quarter panel inner behind the right hand wheelhouse inner and in front of the right hand D-Pillar trough. Contaminants enter the electrical connector through the body gap from tire splash. A low resistance short circuit in the electrical connector may cause overheating, smoke, or fire in the right rear quarter of the Windstar. Ford is aware of eight confirmed reports and three unconfirmed reports alleging fire related to this condition. There have been no reported accidents or injuries attributed to this condition. See Exhibit H, Pg. 3. Finally, in the report of Mr. Zazula he cites the subject recall notice of the National Highway Traffic Safety, which states: SUMMARY: IN SOME MINIVANS, WATER AND OTHER CONTAMINANTS (DIRT, SALT, ETC.) CAN ENTER INTO THE RIGHT REAR PASSENGER COMPARTMENT DUE TO A MISSING BODY SEALER. CONSEQUENCE: Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 14 of 20 PageID: 413 11 THIS COULD CAUSE A SHORT CIRCUIT IN THE ELECTRICAL CONNECTOR AT THE REAR WIRE HARNESS. A SHORT CIRCUIT CAN LEAD TO MALFUNCTIONS OF THE REAR LIGHTING SYSTEM, REVERSE PARK-AID SYSTEM, OR TRAILER TOW ELECTRICAL SYSTEM. A SUSTAINED SHORT CIRCUIT CAN RESULT IN MELTED CONNECTORS AND POTENTIALLY LEAD TO A FIRE. See Exhibit G, Pg. 6. Based on the foregoing, a reasonable jury could infer that the subject vehicle was defective, and that it was defective at the time it left the control of defendant, FMC. With respect to the third prong, Mr. Zazula specifically provided an opinion with respect to causation. Specifically, after conducting his investigation, Mr. Zazula concluded, “[t]he fire occurred due to the aforementioned electrical defect/anomaly observed as beading on the rear wire harness; consistent with the recall. These conductors have not been changed modified or altered as installed by Ford Motor Company when the vehicle was manufactured.” Exhibit G, Pg. 8. Therefore, it is respectfully submitted that there are sufficient issues of material fact from which a reasonable jury could infer: 1) that the subject vehicle was defective, 2) that the subject vehicle was defective at the time it left the control of defendant, FMC, and 3) that the defective product cause injury to the plaintiffs. In arguing that the plaintiffs’ claim for a design defect should be dismissed, defendant, FMC primarily argues that Mr. Zazula fails to set forth a technically feasible alternative design. It is respectfully submitted that the recall implemented by defendant, FMC, itself, was clear evidence of a technically feasible alternative design. Moreover, a document furnished by defendant, FMC entitled “Q & A For Use on Inquiry,” states: Q7. Why are vehicles produced before and after the dates covered by this recall not included in it? Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 15 of 20 PageID: 414 12 A. A different structural sealer was utilized in prior years. Following the dates of this recall, new sealing techniques and inspection processes have been instituted at the assembly plant. Thus, it is clear that at the time of the subject vehicle left the control of the defendant, an alternative design was available that would have avoided the subject defect. However, it is respectfully submitted that in a case such as this, the plaintiffs are not required to show a technically feasible alternative design. In Estate of Knoster v. Ford Motor Co., 200 Fed. Appx. 106, 113-115 2006 U.S. App. LEXIS 22869 (3d Cir. 2006), the Court set forth the relevant common law in New Jersey regarding the product liability analog to the doctrine of res ipsa loquitur. The matter concerned a motor vehicle accident involving the plaintiff driver, resulting in the death her husband, who was a passenger in the vehicle at the time of the accident. Suit was thereafter filed on behalf of the plaintiff, individually, as well as the decedent’s estate, alleging a claim for products liability against the manufacturer of the automobile. More specifically, the plaintiffs claimed that the accident occurred as a result of design defect, which caused the vehicle accelerate without the driver ever having stepped on the gas pedal. The plaintiffs’ theory was that the vehicle's electronic engine controls produced transient electrical signals capable of activating the cruise control and opening the throttle without any driver input. This failure would then pull the gas pedal to the floor and send the car careening forward. In bringing the appeal, the plaintiff’s argued that the District Court failed to instruct the jury under section 3 of the Restatement (Third) of Torts: Products Liability. That section states: It 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: Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 16 of 20 PageID: 415 13 (a) was of a kind that ordinarily occurs as a result of a product defect; and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution. Ultimately, the Third Circuit agreed with the plaintiffs. In doing so, the Court noted that the application of the res ipsa loquitur analog to products liability cases is well established in New Jersey. Id., citing Jakubowski v. Minn. Mining & Manufacturing, 42 N.J. 177, 184 (1964). Moreover, section 3 of the Restatement was adopted by the New Jersey Supreme Court without qualification in Myrlak v. Port Authority, 157 N.J. 84, 103-04 (1999). Thus, in reversing the decision of the District Court, the Third Circuit found that when a product’s failure is manifest, proof of a reasonable alternative design is unnecessary. It is respectfully submitted that the decision in Estate of Knoster is directly applicable to the case at bar. Here, the plaintiffs assert that they were caused to suffer damages as a result of a fire that originated in the subject vehicle. As has been previously established, the plaintiffs have set forth sufficient proof to create an issue of fact that the fire originated in the rear passenger side of the subject vehicle. Naturally, if a jury were to accept the plaintiffs’ theory, then the utter failure alleged, i.e. the subject components combusting, would be such that "common experience" indicates it would not have done so absent a defect. Thus, the first prong of section 3 of the Restatement is satisfied. The second prong of section 3 of the Restatement requires the plaintiff to exclude other possible causes of the incident. However, as noted by the Court in Estate of Knoster, the “[p]laintiffs need not exclude other causes beyond all doubt; the question is whether their evidence, if believed, "permit[s] an inference" of defectiveness. Here, as noted in the report of Mr. Zazula: Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 17 of 20 PageID: 416 14 All other potential ignition sources and scenarios have been eliminated by all fire investigators. There is no evidence this was an incendiary event. The vehicle fire occurred approximately 5 hours after the vehicle was turned off; eliminating the possibility of a mechanical/hot-surface or leaking fuel fire. Exhibit G, Pg. 8 Based on the foregoing, it is respectfully submitted that the plaintiffs’ have set forth sufficient facts to create an issue of fact with respect to whether or not the subject vehicle was defectively designed. Moreover, it is submitted that the incident was caused by a failure that was so manifest that "common experience" indicates it would not have done so absent a defect, regardless of whether the recall allegedly performed by or on behalf of defendant, FMC occurred and was performed properly. Therefore, while the plaintiffs maintain that there is evidence in this matter of a technically feasible alternative design, the plaintiffs further maintain that the standard to be applied in the present matter is section 3 of the Restatement (Third) of Torts: Product Liability. 3. There is a Material Question of Fact Regarding a Manufacturing Defect of the Subject Vehicle. In cases where the plaintiff alleges a manufacturing defect, the plaintiff has the burden of proving that there were deviations from the manufacturer’s intended design that caused a product to be unsafe. See Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 169 (1978). The NJPLA defines a manufacturing defect as a product’s “deviation from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae.” N.J.S.A. 2A:58C-2a. A plaintiff must prove both that a defect existed and also that it came into being while the product was under the control of the manufacturer. Scanlon v. General Motors Corp., 65 N.J. 582 (1974). An “apt illustration is a mass-produced product that comes off the assembly line missing a part.” O’Brien v. Muskin Corp., 94 N.J. 169, 181 (1983). Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 18 of 20 PageID: 417 15 In the document titled, “Q&A For Use on Inquiry,” the document explains that the subject defect was the result of variation in the body build of the vehicles, and due to inconsistency in the application of the sealer. Specifically, the document states: Q6. Why is this leakage happening? A. There was too much body build variability, and application of the sealer to seal the gap was not consistent. It is respectfully submitted that this document creates a question of material fact with respect to whether there is a manufacturing defect, insofar a jury could infer that the subject vehicle deviated from otherwise identical units manufactured to the same manufacturing specifications or formulae. 4. There is a Material Question of Fact Regarding a Warning Defect. Similar to the burden of proof in design defect cases, a plaintiff in a warning defect case must prove by a preponderance of the evidence that: (1) the warning issued was defective; and (2) the defective warning existed while under the control of the manufacturer. See Scanlon v. General Motors Corp., 65 N.J. 582 (1974). Here, as has been established, the subject vehicle was, in fact, defective when it left the control of defendant, FMC. However, there is absolutely no evidence in this matter that defendant, FMC warned the plaintiffs of the defect. Rather, there is evidence that defendant, FMC conscientiously declined to make a public statement regarding the recall. To wit, in the Recall Documents produced by Ford Motor Company, it specifically states: Ford does not plan to make a public statement concerning the subject matter of this action. A copy of the Notification letters to dealers and owners from Ford will be forwarded when available. Exhibit H, Pg. 4 In bringing the present motion the defendant does not even attempt to argue that adequate warnings were provided to the plaintiff. Instead, defendant, FMC argues that because there was no design defect, there can be no warning defect. Based on the fact that Ford Motor Company Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 19 of 20 PageID: 418 16 did not plan to make a public statement regarding the defect, it is submitted that a jury could find that it failed to adequately warn the plaintiffs of the subject defect. This is particularly true, in light of the fact that the plaintiffs were not the original owners of the vehicle. V. CONCLUSION For the foregoing reasons, Defendant’s motion for summary judgment and to preclude the testimony of Plaintiffs’ expert Michael Zazula should be denied. Dated: April 3, 2017 LOCKS LAW FIRM, LLC _/S/_____________________________ By: Michael A. Galpern, Esquire Neel Bhuta, Esquire 801 N. Kings Highway Cherry Hill, NJ 08034 Tel: (856) 663-8200 Fax: (856) 661-8400 BRITT, RIEHL & SPUDIC By: Mike Riehl, Esquire H. Jared Murphy II, Esquire 58 West Main Street PO Box 1149 Freehold, NJ 07728 Tel: 732-462-9700 Fax: 732-409-2516 Attorneys for Plaintiffs James and Jeanne Ford and Plymouth Rock Assurance Case 1:15-cv-00357-NLH-KMW Document 37 Filed 04/03/17 Page 20 of 20 PageID: 419 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 1 of 111 PageID: 420 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 2 of 111 PageID: 421 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 3 of 111 PageID: 422 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 4 of 111 PageID: 423 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 5 of 111 PageID: 424 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 6 of 111 PageID: 425 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 7 of 111 PageID: 426 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 8 of 111 PageID: 427 Case 1:15-cv-00357-NLH-KMW Document 37-1 Filed 04/03/17 Page 9 of 111 PageID: 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FORD MOTOR COMPANY, and JOHN DOE CORPORATIONS (1-50) Defendants. NO.: 1:15-cv-00357-NLH-KMW Honorable Noel L. Hillman, USDJ PLYMOUTH ROCK ASSURANCE a/s/o JAMES FORD Plaintiff, v. FORD MOTOR COMPANY, FORD MOTOR CO., LTD., FORD RESEARCH & DEVELOPMENT, JOHN DOE 1-10 (fictitious name), ABC 1-10, ABC INSURANCE COMPANY (fictitious names) Defendants. NO.: 1:15-cv-06475-NLH-JS Honorable Noel L. Hillman, USDJ CERTIFICATE OF SERVICE I, Michael A. Galpern, Esq., hereby certify that I have electronically filed the foregoing Opposition to Defendant Ford’s Motion to Preclude the Testimony of Michael Zazula and for Summary Judgment with the Clerk of the Court using the CM/ECF system which will send notification of such filing to those attorneys registered on this 3 rd day of April, 2017. Dated: April 3, 2017 LOCKS LAW FIRM, LLC _/S/_____________________________ By: Michael A. Galpern, Esquire 801 N. Kings Highway Cherry Hill, NJ 08034 Tel: (856) 663-8200 Fax: (856) 661-8400 Case 1:15-cv-00357-NLH-KMW Document 37-2 Filed 04/03/17 Page 1 of 1 PageID: 531 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JAMES FORD and JEANNE FORD, h/w, Plaintiff, v. FORD MOTOR COMPANY, and JOHN DOE CORPORATIONS (1-50) Defendants. NO.: 1:15-cv-00357-NLH-KMW Honorable Noel L. Hillman, USDJ PLYMOUTH ROCK ASSURANCE a/s/o JAMES FORD Plaintiff, v. FORD MOTOR COMPANY, FORD MOTOR CO., LTD., FORD RESEARCH & DEVELOPMENT, JOHN DOE 1-10 (fictitious name), ABC 1-10, ABC INSURANCE COMPANY (fictitious names) Defendants. NO.: 1:15-cv-06475-NLH-JS Honorable Noel L. Hillman, USDJ ORDER DENYING FORD’S MOTION FOR SUMMARY JUDGMENT AND TO PRECLUDE THE TESTIMONY OF MICHAEL ZAZULA The above matter came on for hearing before the Court on the ____________ day of _____________________, 2017, on Defendant Ford Motor Company’s Motion to Preclude the Testimony of Michael Zazula and for Summary Judgment. Appearances were noted for the record. Based upon the arguments memoranda of counsel and all affidavits filings, records, and proceeding herein, IT IS HEREBY ORDERED on this ________ day of ___________, 2017 that Defendant Ford Motors Company’s Motion to Preclude the Testimony of Michael Zazula and for Summary Judgment is DENIED. Case 1:15-cv-00357-NLH-KMW Document 37-3 Filed 04/03/17 Page 1 of 2 PageID: 532 DATED: ______________________, 2017 BY THE COURT: _________________________________ The Honorable Noel L. Hillman United States District Judge Case 1:15-cv-00357-NLH-KMW Document 37-3 Filed 04/03/17 Page 2 of 2 PageID: 533 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY JAMES FORD and JEANNE FORD, h/w, Plaintiff, v. FORD MOTOR COMPANY, and JOHN DOE CORPORATIONS (1-50) Defendants. NO.: 1:15-cv-00357-NLH-KMW Honorable Noel L. Hillman, USDJ PLYMOUTH ROCK ASSURANCE a/s/o JAMES FORD Plaintiff, v. FORD MOTOR COMPANY, FORD MOTOR CO., LTD., FORD RESEARCH & DEVELOPMENT, JOHN DOE 1-10 (fictitious name), ABC 1-10, ABC INSURANCE COMPANY (fictitious names) Defendants. NO.: 1:15-cv-06475-NLH-JS Honorable Noel L. Hillman, USDJ I. PLAINTIFFS’ RESPONSE TO DEFENDANT’S STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ITS OPPOSITION TO FORD’S MOTION FOR SUMMARY JUDGMENT AND TO PRECLUDE THE TESTIMONY OF MICHAEL ZAZULA 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 1 of 13 PageID: 534 7. Admitted and Denied. Admitted to the extent that the subject recalls had been noticed by Ford Motor Company. 8. Admitted to the extent that that is what his deposition testimony says. 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted to the extent that the testimony speaks for itself. 14. Admitted that this is an exhibit to Defendant’s expert report. 15. Admitted that this is an exhibit to Defendant’s expert report. 16. Denied. Mr. Domenico responded as the Fire Official/Fire Investigator for the Town of Hammonton. 17. Admitted. 18. Admitted to the extent that Mr. Domenico was the only government representative to ever conduct an official cause and origin analysis. 19. Denied. Mr. Domenico’s analysis clearly states that the fire originated in the rear of the minivan. 20. Denied. Mr. Domenico states in his report that he ruled out all other potential sources of the fire. 21. Admitted to the extent that this was his testimony. 22. Denied. Mr. Domenico examined all potential sources of ignition that were left to him. 23. Denied. Mr. McKendrick performed his investigation not for the sake of any pending litigation. He performed his work years before any case was filed, and he is now retired. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 2 of 13 PageID: 535 24. Admitted to the extent that Mr. McKendrick testified that he could not recall. 25. Denied. Mr. McKendrick performed his investigation not for the sake of any pending litigation. He performed his work years before any case was filed, and he is now retired. 26. Admitted. 27. Denied. Mr. McKendrick never claimed that he neglected to look at the other potential sources. He freely admitted that he did not recall his full investigation at the time of the deposition. 28. Denied. He never testified about those potential sources of ignition. 29. Admitted. 30. Admitted. 31. Admitted to the extent that the report speaks for itself. 32. Admitted to the extent that the report speaks for itself. 33. Denied. 34. Admitted. 35. Denied. The testimony speaks for itself. 36. Admitted. 37. Admitted to the extent that Mr. Zazula focused his investigation on the subject vehicle. 38. Admitted, as all of the fire investigators before Mr. Zazula came to that conclusion. 39. Admitted to the extent that the testimony speaks for itself. 40. Admitted. 41. Admitted that his CV is accurate. 42. Denied. He has worked toward obtaining a bachelor of science in Fire Science. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 3 of 13 PageID: 536 43. Admitted that Mr. Zazula, just like Defendant’s expert Colwell, does not have any manufacturing experience. 44. Denied. He has over 25 years of experience in motor vehicle examinations, analysis, and investigations, relative to motor vehicle fires involving mechanical and electrical component failures. 45. Denied. He has been working on electro-mechanical components that lead to vehicle fires. 46. Denied. While it is true that Mr. Zazula began his work in this case after others have determined the origin of the fire, it is his job to determine the cause. 47. Admitted. 48. Admitted that that was his testimony. 49. Admitted that that was his testimony. 50. Admitted that Mr. Zazula followed the work done by the official fire investigator for Hammonton, New Jersey. 51. Admitted that these were exhibits attached to Defendant expert Colwell’s report. 52. Admitted that this was an exhibit to Defendant expert Colwell’s report. Denied that this showed the extent of the excavation. 53. [This number is missing in Defendant’s statement of facts]. 54. Admitted. 55. Admitted. 56. Admitted that this was his expert opinion. 57. Admitted that this was part of his expert opinion. 58. Admitted that this is part of his expert report. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 4 of 13 PageID: 537 59. Denied. Mr. Zazula opined that the defective piece of wiring came from the right rear of the vehicle. 60. Admitted that Mr. Zazula cannot testify about the particular actions of other fire investigators. 61. Denied. Mr. Zazula’s expert report, and Defendant’s diagrams authenticated by Mark Hoffman, indicates this placement of the parts. 62. Denied. Defendant’s own recall documents indicate fires as a result of the defect that is tied to the wire harness identified by Plaintiffs’ expert. 63. Admitted to the extent that the resultant fire damaged the circuitry. 64. Admitted that there is no definitive evidence of a recall. 65. Admitted that the fire prevents the parties from identifying whether or not there was a seal 66. Admitted that this is a part of his expert report. 67. Admitted that Mr. Zazula did not conduct testing on corrosion rates. 68. Admitted that these are quotes from his expert report. 69. Admitted that these are quotes from his expert report. 70. Admitted that these are quotes from his expert report. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 5 of 13 PageID: 538 II. PLAINTIFFS’ STATEMENT OF ADDITIONAL UNDISPUTED FACTS IN SUPPORT OF ITS OPPOSITION TO FORD’S MOTION FOR SUMMARY JUDGMENT AND TO PRECLUDE THE TESTIMONY OF MICHAEL ZAZULA 71. Plaintiffs engaged in the services of Mr. Zazula to opine on the cause of the fire after official fire expert had already determined that the fire originated in the 2000 Ford Windstar. 72. Frank Domenico, the lead Fire Official and Fire Investigator for the Town of Hammonton, NJ, conducted an investigation of the scene on both the night of the fire and the following morning. He determined, in his official conclusion, “that the origin of the fire was in the rear of the mini van parked in the garage.” See Report of Frank Domenico, attached hereto as Exhibit A. 73. Mr. Domenico has been the fire official at Hammonton for over twenty years. See p. 12:13-12:15 of the transcript of Mr. Domenico’s March 24, 2016 Deposition, selected excerpts of which are attached as Exhibit B. 74. As the fire official and fire inspector, Mr. Domenico has been licensed by the state of New Jersey after completing tests required by the state. He is also required to attend continuing education training and courses. See Exhibit B, pp. 22:7-26:9. 75. In arriving at his conclusion as to the origin of the fire, Mr. Domenico looked at, and ruled out, the other potential ignition sources in the garage outside of the vehicle, including but not limited to the opposite bay, the interior wall with the shelving and electrical outlets, the other appliances, the chimney, the garage door opener, and the attic. See Exhibit B, pp. 38:19-40:20, 62:15-67:16, 69:1-69:20, 72:5-73:10, 87:14-88:9. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 6 of 13 PageID: 539 76. All of that investigation, including looking at the warp and distortion of the remaining vehicle, led Mr. Domenico to place the origin of the fire at the rear of the vehicle. See Exhibit B, 50:11-52:11. 77. James McKendrick also had the opportunity to investigate this fire soon after it occurred. 78. Mr. McKendrick has been working as a fire investigator for over 40 years, a career that includes a five year span as the Chief Fire Marshal for Burlington County. See pp. 5:25- 6:14 of the Transcript of James McKendrick’s March 15, 2016 Deposition, selected excerpts of which are attached hereto as Exhibit C. 79. Mr. McKendrick looked at every room in the house to determine the origin of the fire. See Exhibit C, p. 33:4-33:9. 80. Mr. McKendrick eventually determined that the fire originated in the rear on the vehicle, based upon the fire patterns, the fire intensity, and having eliminated the other potential sources of fire origin. See Exhibit C, pp. 20:17-21:14, 22:12-23:2, 26:16-26:18. 81. After determining the origin of the fire to be the rear of the vehicle, Mr. McKendrick recommended Mr. Zazula to determine the mechanics of the fire ignition in the vehicle, because of Mr. Zazula’s “expertise in electrical engineering and automotive engineering.” See Exhibit C, pp. 20:12-20:15, 34:17-35:2. 82. Every other fire investigator that has looked at the facts for non-litigation purposes has confirmed that the origin of the fire in Mr. and Mrs. Ford’s garage was the rear of the 2000 Ford Windstar. 83. Stanley Paluski was engaged to conduct origin and cause examination. He looked at the exterior burn patterns, the oxidation, the heat release rate, and the fire travel patterns. Mr. Paluski determined that the “fire originated at the right rear area of the interior Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 7 of 13 PageID: 540 compartment. The degree of burn patterns and fire related damage located at the region all support the point of origin.” “All evidence highly suggests that a wire overheated and caused the fire event.” See March 6, 2013 Origin and Cause Examination Report of Stanley Paluski, attached hereto as Exhibit D. 84. Mr. Paluski concluded that “it is the opinion of this technician that the fire originated from an electrical abnormality located at the right rear area of the interior compartment. Examination of the wiring in this area revealed they exhibited overheating and the wires were not connected to anything. All other potential causes such as incendiary have been ruled out. The burn patterns interpreted in this area as well as the overheated wires fully support that the fire was electrical in nature.” Exhibit D, p. 5. 85. Robert Disbrow, Jr. also conducted an origin and cause examination on three separate dates: December 18, 2012, December 19, 2012, and January 24, 2013. See Origin and Cause Examination Report of Robert Disbrow, Jr., attached hereto as Exhibit E. 86. Mr. Disbrow looked at the exterior burn patterns, the fire travel patterns, the exterior melt damage, the heat release rate, and he checked that all against the fire investigation references NFPA 921 and 1033. Mr. Disbrow found that the “fire movement patterns and the degree of damage indicate that the fire event was initiated in the cargo/trunk area of the vehicle.” He continues by stating that “Investigator James McKendrick from Palumbo Investigations was present for examination and concurs with the area of origin and cause of this fire event.” Exhibit E, p. 5. 87. Michael Zazula is a mechanical engineering consultant specializing in the investigation of fires, explosions, property damage claims, and personal injuries resulting from the Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 8 of 13 PageID: 541 failure of mechanical and electro-mechanical components. See Mr. Zazula’s CV, attached hereto as Exhibit F. 88. Mr. Zazula has over 25 years of experience in motor vehicle repair, examinations, analysis, and investigations, leading to an expertise in determining vehicle fire causation relative to defects in manufacturing, installation, incendiary events, and recalls. Exhibit F, p. 1. 89. Since 2005, Mr. Zazula has specialized in performing investigations of fires and economic loss incidents caused by mechanical and electro-mechanical equipment failures. Exhibit F, p. 2. 90. Mr. Zazula is a Certified Fire and Explosion Investigator (CFEI) through the National Association of Fire Investigators (NAFI): Cert. # 10293-4781. Exhibit F, p. 2. 91. Mr. Zazula’s professional affiliations include the New Jersey and Pennsylvania chapters of the International Association of Arson Investigators (IAAI), the National Association of Fire Investigators (NAFI), the National Fire Protection Association (NFPA), the American Society of Mechanical Engineers (ASME), and the Society of Automotive Engineers (SAE). Exhibit F, p. 3. 92. Finally, just in 2016, Mr. Zazula has conducted seminars in both Mechanical Component Failure/Defect Analysis and in Vehicle Fire Burn Investigation and Vehicular Failure. Exhibit F, p. 3. 93. Mr. Zazula clearly states in his report that his company, IEI Consulting, “was asked to assist in determining the cause of the fire,” as it related to the 2000 Ford Windstar. See p. 2 of Mr. Zazula’s expert report, attached hereto as Exhibit G. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 9 of 13 PageID: 542 94. Mr. Zazula was not retained to conduct an investigation of the entire garage or an investigation of the other potential sources of ignition in the home. In his report, he relies on the findings of the previous fire inspectors to establish that the origin of the fire was the rear cargo area of the vehicle. Exhibit G, pp. 2-3. 95. In addition to relying on the previous fire inspectors, Mr. Zazula conducted a physical investigation of the vehicle and its component parts on five separate occasions, including a microscopy exam of the rear wire harness. Exhibit G, pp. 3-4. 96. Mr. Zazula also reviewed Defendant’s recall documents, and Ford Motor Company describes Plaintiffs’ alleged defect in this manner: “Exposure of the C432 electrical connector to water and environmental contaminants may bridge the positive and ground pins, causing carbon tracking and corrosion that results in a low resistance short circuit in the connector. The primary source of water and dirt in the connector results from missing body sealer between the joint line of the floor pan and the right body side. The location is at the body quarter panel inner behind the right hand wheelhouse inner and in the front of the right hand D-Pillar trough. Contaminants enter the electrical connector through the body gap from tire splash. A low resistance short circuit in the electrical connector may cause overheating, smoke, or fire in the right rear quarter of the Windstar. Ford is aware of eight confirmed reports and three unconfirmed reports alleging fire related to this condition.” See p. 3 of Campaign 02S33 Safety Recall File, attached hereto as Exhibit H. Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 10 of 13 PageID: 543 97. Mr. Zazula relied on his personal inspection of the material and the definitions in the NFPA reference documents to describe the mechanics of the fire in pages 5-8 of his report. Exhibit G. 98. Mr. Zazula further relied on a recall notice of the National Highway Traffic Safety Administration, which states: SUMMARY: IN SOME MINIVANS, WATER AND OTHER CONTAMINANTS (DIRT, SALT, ETC.) CAN ENTER INTO THE RIGHT REAR PASSENGER COMPARTMENT DUE TO A MISSING BODY SEALER. CONSEQUENCE: THIS COULD CAUSE A SHORT CIRCUIT IN THE ELECTRICAL CONNECTOR AT THE REAR WIRE HARNESS. A SHORT CIRCUIT CAN LEAD TO MALFUNCTIONS OF THE REAR LIGHTING SYSTEM, REVERSE PARK-AID SYSTEM, OR TRAILER TOW ELECTRICAL SYSTEM. A SUSTAINED SHORT CIRCUIT CAN RESULT IN MELTED CONNECTORS AND POTENTIALLY LEAD TO A FIRE. See Exhibit G, p. 6. 99. Mr. Zazula further states, “It is evident that an ingress of corrosion is a contributing factor to this event.” Even if a recall was later performed on the vehicle, “the existing corrosion [that already occurred] may have adversely affected the components of the rear wiring harness.” Exhibit G, p. 7. 100. Additionally, Mr. Zazula noted: Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 11 of 13 PageID: 544 All other potential ignition sources and scenarios have been eliminated by all fire investigators. There is no evidence this was an incendiary event. The vehicle fire occurred approximately 5 hours after the vehicle was turned off; eliminating the possibility of a mechanical/hot-surface or leaking fuel fire. See Exhibit G, p. 8. 101. He finally opines that the “fire occurred due to the aforementioned electrical defect/anomaly observed as beading on the rear wire harness; consistent with the recall.” See Exhibit G, p. 8. 102. In a letter written on behalf of defendant, Ford Motor Company to the National Highway Traffic Safety Administration, the defendant admitted: Affect on Vehicle Operation - In some of the affected vehicles, contamination of the C432 connector (on main wiring loom 14A005) to the trailer tow module may cause a low resistance short circuit between the power and ground pins in the connector, potentially resulting in overheating, smoke, and fire in the right rear of the passenger compartment. See Exhibit H, p. 2. 103. A document furnished by defendant, FMC entitled “Q & A For Use on Inquiry,” states: Q6. Why is this leakage happening? A. There was too much body build variability, and application of the sealer to seal the gap was not consistent. Q7. Why are vehicles produced before and after the dates covered by this recall not included in it? Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 12 of 13 PageID: 545 A. A different structural sealer was utilized in prior years. Following the dates of this recall, new sealing techniques and inspection processes have been instituted at the assembly plant. See Exhibit H, p. 58. 104. Finally, in the Recall Document furnished by Ford Motor Company, it is indicated that FMC did not intend to make a public statement regarding the subject defect. See Exhibit H, p. 4. Dated: April 3, 2017 LOCKS LAW FIRM, LLC _/S/_____________________________ By: Michael A. Galpern, Esquire Neel Bhuta, Esquire 801 N. Kings Highway Cherry Hill, NJ 08034 Tel: (856) 663-8200 Fax: (856) 661-8400 BRITT, RIEHL & SPUDIC By: Mike Riehl, Esquire H. Jared Murphy II, Esquire 58 West Main Street PO Box 1149 Freehold, NJ 07728 Tel: 732-462-9700 Fax: 732-409-2516 Attorneys for Plaintiffs James and Jeanne Ford and Plymouth Rock Assurance Case 1:15-cv-00357-NLH-KMW Document 37-4 Filed 04/03/17 Page 13 of 13 PageID: 546