                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4407-15T1

TUCKER CLAYTON, by and through
his Parents and Natural Guardians,
CHAD CLAYTON and DIANA CARNEY
and CHAD CLAYTON and
DIANA CARNEY, individually,

              Plaintiff-Appellant,

v.

LA CAJA CHINA, INC.,
RBG INVESTMENTS, LLC and
BRET BAKER,

              Defendants,

and

LC CH, INTERNATIONAL, INC.,

          Defendant-Respondent.
_________________________________

              Submitted February 12, 2018 – Decided July 10, 2018

              Before Judges Messano, Accurso, and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No. L-
              5007-11.

              Law Offices of S.P. DiFazio, attorneys for
              appellant (Salvatore P. DiFazio, on the
              brief).
          Donna Adelsberger & Associates, PC, attorneys
          for respondent (Donna L. Adelsberger, on the
          brief).

PER CURIAM

     On June 19, 2010, plaintiff, 14-month-old Tucker Clayton, his

mother, father and other relatives went to Bret Baker's eight-acre

farm for a pig roast.   The party was in progress with dozens of

other guests in attendance when plaintiff and his parents arrived.

Baker was roasting the pig using a product manufactured and sold

by defendant LC CH International, Inc.1   The device required Baker

to place and light charcoal on a tray that sat above the meat and

then close the lid of the cooking "box."       During the cooking

process, the charcoal tray was temporarily removed, spent ashes

were disposed of, the pig was turned, its skin was scored, and it

was returned to the cooking box, before the charcoal tray was

replenished and replaced to crisp the pig's skin.

     Baker was familiar with the product, having purchased and

used a similar model years earlier. On this occasion, he discarded

the spent ash near a cinder block wall, approximately twenty-five

feet from the roaster and fifteen feet from his guests' tables.




1
  La Caja China, Inc., is the trade name of a line of products
manufactured by defendant RBG Investments, LLC (RBG), which is
apparently the current owner of the trade name. Any relationship
between defendant and RBG is not disclosed in the record.

                                2                           A-4407-15T1
Plaintiff and his parents had not yet arrived when Baker orally

warned his other guests that the ashes were still quite hot.

     At    some       point,    plaintiff      strayed      from    his     parents'

supervision     and    placed    his   hands     in   the   hot    ashes,    causing

significant and permanent burn injuries.                 Plaintiff settled his

claims against Baker and proceeded to trial against defendant,

alleging the pig roaster was defectively designed and lacked

adequate warnings.

     The jury concluded that plaintiff failed to prove a design

defect    but   found    the    pig    roaster    lacked    adequate      warnings.

However, the jury also concluded the lack of adequate warnings was

not a proximate cause of plaintiff's injuries.                The court entered

judgment for defendant, and plaintiff moved for a new trial,

alleging various legal errors.           The judge denied that motion, and

this appeal followed.

     Before us, plaintiff argues the judge should have granted his

in limine motion to bar the report and subsequent testimony of

defendant's expert, Robert Nobilini, Ph.D., as a net opinion, and

the judge committed additional error by permitting Nobilini to

testify about the need to exercise "common sense" in using the pig

roaster.    Plaintiff also argues the judge's instructions on the

"heeding presumption" were erroneous.             See, e.g., Coffman v. Keene

Corp., 133 N.J. 581, 595 (1993) (defining "heeding presumption"

                                         3                                   A-4407-15T1
as "a presumption that plaintiff would have 'heeded' or followed

a warning had defendant given one").         Lastly, plaintiff contends

the judge erred by denying his pretrial in limine motion, and his

directed verdict motion at trial, as to whether it was objectively

reasonable   for   defendant   to   anticipate    Baker's   method   for

disposing of the hot ashes.

     We have considered these arguments in light of the record and

applicable legal standards.    We affirm.

                                        I.

     One cannot fairly consider plaintiff's arguments regarding

Nobilini's report and testimony without examining the report and

testimony of plaintiff's expert, Robert E. Moro, a mechanical

engineer who qualified as "an expert in consumer products." Moro's

report cited regulations and standards regarding "labeling for

consumer products," but he did not cite any specific regulation

regarding the pig roaster or any similar product.           Moro opined

that "[a] reasonable alternative safe design" would have included

a warning about "the potential of . . . injury when . . . handling

hot spent ashes."    He noted the roaster's instructions had been

modified since Baker's purchase; they now advised consumers to

"[a]dd water to ashes to ensure they don't cause fire, or bodily

harm."   Moro noted defendant now offered an "ash disposal system,"



                                    4                           A-4407-15T1
constructed of metallic components with a metallic lid.         He opined

that this was a "reasonable safe design alternative."

     However, Moro also noted that instead of disposing of the ash

in proximity to his guests,

           [a]n   alternative    common   sense    safety
           consideration would have been for . . . Baker
           to dispose [of them] in a metallic container
           with   a    cover.      Another    alternative
           consideration would have been to dump the hot
           spent ashes at another location on his
           property, since it consists of [eight] acres
           of land, where there was no possibility of his
           guests coming into contact with the contents.

     In his testimony before the jury, Moro explained that the

failure to provide an ash receptacle was a design defect and

industry standards required consumer products to warn of any

hazards presented by the product.       A sufficient warning would have

provided precautionary measures, which, in this case might be "put

spent ashes in a closed metal container or . . . a significant

distance from where any people may be participating in an activity

related to the cooking."      Moro cited a specific regulation, 16

C.F.R. § 1500.121 (1984), that required warnings to be placed on

consumer products similar to the roaster.

     At   the   conclusion   of   direct   examination,   the   following

colloquy took place:

           Counsel: Did you evaluate Mr. Baker's conduct
           in this case as well?


                                    5                             A-4407-15T1
            Moro:   Yes, I did.

            Counsel: And did you have an opinion as to
            the propriety of the manner in which he dumped
            the ashes?

            Moro:   Based on my review of the available
            discovery documentation he dumped the ashes
            anywhere between ten to [twenty-four] feet
            from where the plaintiff was sitting . . . .

            Counsel: And in your mind would that adhere
            with a safe distance?

            Moro:    Me personally,   I   think   that   was
            insufficient distance.

On cross-examination, Moro acknowledged that the regulation he

cited dealt with a requirement to place warnings on bags of

charcoal briquettes and "d[id] not address any burn potential[.]

[I]t addresse[d] a carbon monoxide issue once the coals are

lit . . . ."    The regulation had nothing to do with the roaster

box.

       In his report, Nobilini noted that Baker was obviously aware

of the dangers of the hot ashes because he warned his guests.         He

agreed with Moro that a "common sense" alternative was for Baker

to use a covered metal container, but Nobilini opined the container

would also get quite hot and would need to be located far away

from Baker's guests.     Nobilini also agreed with Moro that common

sense dictated Baker place the ashes further away from his guests,




                                  6                            A-4407-15T1
and he proposed other alternatives, such as burying the ashes,

soaking them in water or barricading the area to prevent access.

       Nobilini disputed the need to place a warning on the roaster

because    "[w]arnings        are   necessary   to   alert    consumers   of   the

presence of hazards that are not open and obvious."                     He opined

that knowing the ashes were very hot, Baker's actions were not

"reasonable       or   foreseeable."         Nobilini   disputed   the    federal

regulations cited by Moro applied at all, opining they dealt solely

with    the   dangers    of    carbon   monoxide     inhalation    from   burning

charcoal.     He cited instructions on bags of charcoal that warn of

the dangers of charcoal briquettes and the need to dispose of them

safely.

       Lastly, Nobilini took issue with Moro's suggestion that an

ash disposal box as part of the roaster would alleviate safety

concerns.      He noted the design defendant later implemented in

other models of the roaster still required the very hot ash box

be kept away from guests.           Nobilini opined that the design of the

roaster was not a cause of plaintiff's injuries nor were warnings

required.     He placed responsibility solely with Baker.

       At trial, when Nobilini tried to explain that warnings were

not    required    because     "[c]ertain     things    are   totally   obvious,"

plaintiff's counsel objected.           He argued that pursuant to N.J.R.E.

702, Nobilini could not testify about "common sense or what people

                                         7                                A-4407-15T1
should know as a matter of common sense."              The judge required

Nobilini to answer in terms of his engineering expertise.

     Nobilini opined there was no duty to warn about obvious

dangers in using a product and no violation of federal regulations.

According to Nobilini, under federal law, a manufacturer had no

duty to advise the Consumer Products Safety Commission unless it

knew its product contained "a defect that create[d] a substantial

product hazard," and Moro had acknowledged that defendant was

unaware of any injuries caused by using the roaster.                 Nobilini

opined that Baker's actions were the cause of plaintiff's accident.

     Plaintiff moved in limine before trial to bar Nobilini's

report as a net opinion.    The judge noted Nobilini, who had fully

examined discovery in the case, was in large part criticizing

Moro's   report,   in   particular,       Moro's   discussion   of   federal

statutes and regulations.     While neither report was "the greatest

expert report" he had ever seen, the judge noted a lack of

standards regarding the "hot box" made it difficult for both

experts.   He denied plaintiff's motion.

     At the close of all the evidence, plaintiff renewed his

request to strike Nobilini's testimony as a net opinion, arguing

Nobilini's emphasis upon Baker's lack of "common sense" violated

N.J.R.E. 702, and Nobilini cited no scientific or engineering

data.    The judge denied the motion, reasoning:

                                      8                               A-4407-15T1
          [T]he question is, ultimately, did Dr.
          Nobilini say anything other than it's common
          sense. Well, yes, he did. He talked about
          the Consumer Product Safety Act and the
          Consumer Product Safety Commission. He gave
          some wherefores. Was it the greatest opinion,
          no, not at all.

               Neither was Mr. Moro's, quite frankly.
          And, you know, I remember reading the reports
          and Mr. Moro basically blamed Mr. Baker and
          then said, and by the way, you know, the
          Consumer Product Act and he talked about
          charcoal.     He didn't talk about this
          particular unit. And then Dr. Nobilini, his
          report basically said, yes, what he said is
          correct. So they're both, for lack of a better
          phrase, lousy opinions.

               But there's enough there to get them to
          the jury. In my mind this case goes to the
          jury. It's that simple, because there's fact
          questions up and down, as to whether Mr. Baker
          is the one who is solely responsible.

     Before    us,     plaintiff   renews    his   objections,     arguing

Nobilini's    report   and    testimony   contained   only   net   opinions

largely premised upon common sense, a subject not beyond the ken

of the average juror.        See, e.g., Scully v. Fitzgerald, 179 N.J.

114, 127 (2004) ("A jury does not need a fire expert to explain

to it the dangers that might follow when a lit cigarette is thrown

into a pile of papers or other flammable material.").          We find no

reason to reverse.

     "The admission or exclusion of expert testimony is committed

to the sound discretion of the trial court," Townsend v. Pierre,


                                     9                              A-4407-15T1
221 N.J. 36, 52 (2015), and an appellate court "appl[ies] [a]

deferential approach to a trial court's decision to admit expert

testimony, reviewing it against an abuse of discretion standard."

Id. at 53 (second alteration in original) (quoting Pomerantz Paper

Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).     "The net

opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are

not supported by factual evidence or other data.'"     Id. at 53-54

(alteration in original) (quoting Polzo v. Cnty. of Essex, 196

N.J. 569, 583 (2008)).   "An expert's conclusion 'is excluded if

it is based merely on unfounded speculation and unquantified

possibilities.'"   Id. at 55 (quoting Grzanka v. Pfeifer, 301 N.J.

Super. 563, 580 (App. Div. 1997)).

     Here, we agree entirely with the judge's assessment of both

experts' reports and testimony, i.e., they rested upon the thinnest

of   expert   reeds.     However,    Nobilini   properly   expressed

disagreement with Moro's conclusion that the lack of adequate

warnings violated federal regulations or an alternative design

using an attached covered metallic ash box would have avoided the

accident. Nobilini did so in the context of engineering principles

that warrant express warnings only when use of the product posed

non-obvious dangers.   It follows that more than simply expressing

something within the knowledge of average jurors, i.e., common

                                10                           A-4407-15T1
sense, Nobilini explained why warnings were not necessary in this

case.   Finally, Moro specifically addressed Baker's lack of common

sense in choosing to dispose of the ashes in close proximity to

his guests.   We see no reason why the judge should have foreclosed

defendant from pointing out its expert's agreement with that

premise.

                                II.

     Baker testified that when he purchased his first roaster, he

read and followed the instructions to assemble the product and

read the cooking instructions on the side of the roaster.       When

Baker bought his second roaster, he threw the instructions away

because he knew how to assemble the product.   Baker was aware and

did not need to be told the ashes were hot, but he did not realize

how hot they remained until he examined ashes left from a previous

roast and found they were still warm days later.

     During the charge conference, plaintiff argued defendant

failed to adduce any proof that Baker would not have heeded a

warning had one been provided. Defendant argued there was evidence

that Baker already knew of the risk posed by hot ashes and failed

to read the instructions actually provided.    Defendant contended

whether Baker would have heeded a warning was a fact question for

the jury.



                                11                          A-4407-15T1
     The judge proposed modifying Model Jury Charges (Civil),

5.40C, "Failure to Warn/Instruct" (rev. Oct. 2001), by telling the

jury plaintiff had introduced evidence Baker read the instructions

provided.    Plaintiff continued to object to submitting the issue

to the jury but agreed to the following language, and the judge

instructed the jury,

            In this case the plaintiff[] claim[s] the
            roaster was defective because there was no
            adequate warning or instruction. If you find
            that the roaster was defective because
            adequate warnings or instructions [were] not
            given, then you must decide whether the lack
            of an adequate warning or instruction was a
            proximate cause of the accident.

            The defendant LC CH has introduced evidence
            seeking to show that defendant Bret Baker
            would not have read and followed an adequate
            warning or instruction even if one had been
            provided by the defendant.     Plaintiff has
            introduced evidence that defendant did read
            the instructions. It is for you the jury to
            decide if he actually read the instructions.
            You have to decide whether Bret Baker would
            have read and heeded a warning or instruction
            had one been given or that he would not have
            read and heeded a warning or instruction had
            one been given.

            Plaintiff has the burden to prove by a
            preponderance of the credible evidence that
            Mr. Baker would have followed an adequate
            warning instruction if it had been provided.

            [(emphasis added); see id. at 8-9.]

     In products liability litigation, "[w]hen the alleged defect

is the failure to provide warnings, a plaintiff is required to

                                12                          A-4407-15T1
prove that the absence of a warning was a proximate cause of his

harm."   Coffman, 133 N.J. at 594.       The heeding presumption serves

to ease a plaintiff's burden of proof on the issue of causation.

Id. at 603.    "[O]nce the heeding presumption comes into play, the

burden   of   coming   forward   with   evidence,   i.e.   the   burden    of

production, shifts to the defendant to overcome or rebut the

presumption."     Sharpe v. Bestop, Inc., 314 N.J. Super. 54, 67

(App. Div. 1998), aff'd o.b., 158 N.J. 329 (1999).               There are

generally two methods a defendant could use to rebut the heeding

presumption: the first is "by offering evidence concerning the

plaintiff's knowledge of the very risk that the absent warning was

supposed to address."     Id. at 74.    The second is by "introduc[ing]

evidence of plaintiff's attitudes and conduct apart from knowledge

of the product's risk that demonstrates an indifference to safety

warnings."    Ibid.    "[I]f defendant presents sufficient evidence

to rebut the presumption, . . . the presumption disappears and the

plaintiff, consistent with his original burden of persuasion, must

prove by a preponderance of the evidence that the failure to warn

was a proximate cause of his injury."        Id. at 67.

     Here, defendant argued that Baker's testimony, if believed,

rebutted the presumption in both manners outlined in Sharpe.               We

agree.   The judge's instructions fairly placed the issue before



                                   13                               A-4407-15T1
the jury where it properly belonged, and we find no reason to

reverse.

                                  III.

     Plaintiff moved pretrial to bar the jury from considering

Baker's comparative fault because it was foreseeable that those

using the pig roaster would dump the ashes on the ground.             See,

e.g., Jurado v. W. Gear Works, 131 N.J. 375, 385 (1993) (citations

omitted) ("[A] defendant may still be liable when a plaintiff

misused the product, if the misuse was objectively foreseeable.").

At the time, the judge denied the motion, reasoning it was not an

appropriate in limine request, and there was a jury question

presented as to "how much . . . the manufacturer [is] supposed to

foresee."

     At trial, plaintiff read the deposition testimony of Roberto

Guerra, defendant's principal, and later called Guerra as a witness

before the jury.   In particular, Guerra recounted his use of the

pig roaster at a resort with celebrity chef Bobby Flay for a

broadcast on The Food Network.     During the segment, Guerra dumped

spent coals onto nearby grass and sand, and he recalled how the

resort's management was upset because of the damage done to the

premises.   Guerra   said   the   incident   led   him   to   develop    an

alternative model, mainly for commercial use, that contained a

receptacle for spent ashes.

                                  14                              A-4407-15T1
     At the conclusion of all testimony, plaintiff moved for a

directed verdict on the issue of objective foreseeability.                   See,

e.g., Brown v. United States Stove Co., 98 N.J. 155, 168 (1984)

(citation    omitted)    ("[T]he    doctrine    applies     to   those    future

occurrences that, in light of the general experience within the

industry    when   the   product    was    manufactured,    objectively       and

reasonably could have been anticipated.").             The judge denied the

motion, concluding that although it was entirely foreseeable that

the ashes needed to be discarded somewhere, there was "a jury

question as to whether or not it's objectively foreseeable that

the end user is not going to do something smart with it."

     Before us, plaintiff contends that because Baker's decision

to dump the ashes was objectively foreseeable, his negligence

could not be a proximate cause of plaintiff's injuries and the

judge should have directed a verdict on that issue and never

submitted it to the jury.        The verdict sheet contained a specific

interrogatory      immediately     prior   to   consideration     of     Baker's

negligence:      "Was the manner in which . . . Baker dumped the ashes

on his property 'Objectively Foreseeable' to [defendant]?"

     Initially, we note that because the jury concluded any failure

to warn was not a proximate cause of plaintiff's injuries, it

never reached the issues of whether Baker's use or misuse of the

product    was   objectively     foreseeable    or   his   comparable     fault.

                                      15                                 A-4407-15T1
However, plaintiff contends the denial of his in limine motion and

motion for a directed verdict, together with Nobilini's testimony,

placed Baker's conduct squarely before the jury and tainted its

consideration of the evidence.         We therefore address plaintiff's

claim.

     "The   absence     of   misuse   [of    a     product]     is    part    of    the

plaintiff's case.     Misuse is not an affirmative defense."                 Jurado,

131 N.J. at 386.      "[P]roduct misuse" may be using the product for

an "improper purpose" or using it in an improper manner.                        Ibid.

"[T]he plaintiff in a design-defect products-liability suit may

succeed even if the product was misused, as long as the misuse or

alteration was objectively foreseeable."               Ibid.

     However,    even   if   misuse   of     the      product   was    objectively

foreseeable, "[p]roduct misuse theoretically could relate to the

existence   of   a   defect,   the    issue      of    causation,     or     that    of

comparative fault."      Id. at 387.        See also Wallace v. Ford Motor

Co., 318 N.J. Super. 427, 432 (App. Div. 1999) (quoting Johansen

v. Makita USA, Inc., 128 N.J. 86, 102-03 (1992)) ("[A] plaintiff's

conduct may be relevant to the 'question of proximate cause,' in

that a jury may find that plaintiff's conduct 'had been the sole

cause of the accident.'").

     In this case, it was foreseeable that using the pig roaster

would entail discarding hot ashes.          But, whether it was reasonably

                                      16                                      A-4407-15T1
foreseeable that Baker would use the pig roaster in an arguably

improper manner by discarding the ashes in close proximity to

dozens of guests, presented a factual issue at best.   We find no

error.

    Affirmed.




                              17                          A-4407-15T1
