                        NOT FOR PUBLICATION WITHOUT THE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-3996-15T3

JACK SUSER,

        Plaintiff-Appellant,

v.

DELAVAN INDUSTRIES, INC. and
LOHR INDUSTRIES,

        Defendants-Respondents,

and

C.F. BENDER CO. INC.,

        Defendant/Third-Party
        Plaintiff,

v.

S&J METAL MANUFACTURING INC.,

        Third-Party Defendant/Fourth-
        Party Plaintiff,

v.

M&G INDUSTRIES, INC.,

     Fourth-Party Defendant.
____________________________________

              Argued May 8, 2017 – Decided May 25, 2017

              Before Judges Sabatino and Geiger.
            On appeal from Superior Court of New Jersey,
            Law Division, Bergen County, Docket No. L-
            1285-12.

            Robert P. Altemus argued the cause for
            appellant (Wertalik & Altermus, attorneys; Mr.
            Altemus, on the briefs).

            Douglas V. Sanchez argued the cause for
            respondents   (Cruser,    Mitchell,  Novitz,
            Sanchez, Gaston & Zimet, LLP, attorneys; Mr.
            Sanchez, of counsel and on the brief;
            Georgeann Belcher, on the brief).

PER CURIAM

      Plaintiff   Jack   Suser   appeals     from   the    entry   of   summary

judgment dismissing his products liability action with respect to

his   claims   against    co-defendants        Delavan     Industries,      Inc.

("Delavan") and Lohr Industries ("Lohr").            As a related aspect of

that appeal, plaintiff seeks reversal of the trial court's ruling

to exclude his liability expert under the "net opinion" doctrine.

Plaintiff also appeals from the trial court's denial of his motion

for leave to amend the complaint at the end of the discovery period

to include an additional defendant, and its subsequent order

declining to reconsider that denial.           We affirm.

                                    I.

      We   briefly   summarize   the       facts   and    procedural    history

presented in the record.     Plaintiff was the owner and operator of

an automobile hauler trailer.          The trailer was manufactured by


                                       2                                A-3996-15T3
Delavan and Lohr in 2000.            Plaintiff purchased the trailer in

2007.

     On the day of the accident, February 8, 2010, plaintiff was

injured as he was attempting to tie down a vehicle to the trailer.

As he was pulling on the tie-down apparatus, its metal chain broke,

causing plaintiff to lose his balance and fall off the trailer.

Plaintiff injured his neck, wrist, and knee as a result of that

fall.

     Only a four-foot portion of the broken chain was preserved

after plaintiff's accident.          A photograph of that partial chain

shows it had become rusty in spots.                    According to an expert

retained by Delavan and Lohr, the chain was an "aftermarket" item

that was not part of the original trailer they had manufactured.

     Plaintiff filed suit in the Law Division initially against

Delavan, Lohr, and unnamed fictitious defendants.                   Although the

complaint     asserted     several    legal       theories,   the    essence    of

plaintiff's    case   is    that     the       chain   tie-down   apparatus    was

defective, and that defendants are thereby strictly liable for

plaintiff's injuries.         Plaintiff claims that the product was

unsafely designed, improperly manufactured, and lacked sufficient

warnings to place users such as himself on notice that the tie-

down apparatus might fail when applying force to tighten it.



                                           3                             A-3996-15T3
     As   the    litigation   progressed     through   discovery,         the    co-

defendants      added   several   third-party    defendants       who    might    be

responsible for the alleged product defects, including C.F. Bender

Co. Inc. ("Bender"), S&J Metal Manufacturing Inc. ("S&J"), and M&G

Industries, Inc. ("M&G").         Plaintiff amended his own complaint to

add Bender as a direct defendant.            However, none of the added

parties were conclusively shown to have manufactured the chain

that had ruptured.

     Plaintiff     obtained   an    expert   report    from   a    professional

engineer to support his contentions of product defect.                  The expert

inspected the remaining portion of the chain, but did not perform

any tests on it.        He observed that the links were "old and badly

corroded."      Although the expert did not inspect the trailer, he

reviewed photographs taken of it after the accident, as well as

the report of a company that had investigated the incident.

     The liability expert concluded that the chain would not have

broken merely due to the force exerted by plaintiff when tightening

it, unless the chain was defective.             The expert also criticized

the tie-down design selected by Delavan and Lohr.                   The expert

noted from Bender's then-current website that Bender offered a

"newer type" of tie-down system, utilizing fabric belts rather

than metal chains.       The expert opined that such a fabric tie-down

method would have been safer.        The expert also contended that the

                                       4                                   A-3996-15T3
trailer had not been sold with adequate warnings of this potential

hazard.

     Delavan and Lohr countered with their own expert report from

an engineer.     Among other things, the defense expert pointed out

that woven fabric tie-down attachments have both advantages and

disadvantages.      The defense expert further noted that federal

regulations specifically permit the use of metal tie-down chains,

and that such a system was prevalent in the industry at the time

when this trailer was manufactured.

     S&J, Delavan, and Lohr all moved for summary judgment.                  As

part of their arguments, they asserted that the proposed testimony

of plaintiff's liability expert should be disallowed as improper

net opinion. Defendants argued that, without an appropriate expert

to support plaintiff's claims of product liability, his complaint

must be dismissed.

     In its own summary judgment submission, S&J included an

affidavit dated January 27, 2016 from its owner, Lonnie Smith, who

had inspected photographs of the broken chain.              Smith attested

that it was his "belief that the chain was manufactured and

distributed    by     Columbus    McKinnon    Corporation,"        ("Columbus

McKinnon") a company located in Amherst, New York.                Apparently,

Smith's   affidavit    provided   counsel    with   the   first   documented

evidence of the apparent true identity of the chain's manufacturer.

                                     5                                A-3996-15T3
      Four days after receiving Smith's affidavit, plaintiff moved

for leave to amend its complaint to add Columbus McKinnon as an

additional defendant.     Plaintiff also requested an opportunity to

conduct further discovery and have his expert revise his report

to consider this new information.

      Upon hearing oral argument, Judge Charles E. Powers, Jr.

concluded that plaintiff's liability expert's analysis was indeed

improper net opinion and could not support plaintiff's cause of

action.   The judge consequently granted summary judgment to S&J,

Delavan, and Lohr, for reasons detailed in a written opinion.             The

judge also denied plaintiff's request for leave to amend the

complaint to add Columbus McKinnon, concluding in the written

Rider to his order that such an amendment would be a "futile"

exercise under the circumstances.

      Subsequently, S&J stipulated to the dismissal of its fourth-

party complaint against M&G, and plaintiff stipulated to dismiss

his claims against Bender.        Plaintiff moved for reconsideration

of the trial court's denial of his attempt to expand the complaint

to name Columbus McKinnon.       The court denied that motion, and this

appeal by plaintiff followed.

                                      II.

      Plaintiff argues that the trial court's net opinion ruling

was   erroneous   and   should   be   reversed   and   that   his   products

                                       6                             A-3996-15T3
liability claims should thus be reinstated against Delavan and

Lohr. 1    He   further    argues   that   the   trial   court   abused   its

discretion in declining his unopposed request for leave to amend

his complaint to add a new party.

       Having considered these points, viewing the record in a light

most favorable to plaintiff and under the applicable law, we affirm

the trial court's rulings in all respects, substantially for the

sound reasons articulated by Judge Powers in the series of his

written decisions.        We add only a few comments.

       Under the New Jersey Products Liability Act ("PLA"), N.J.S.A.

2A:58C-1 to -11, a plaintiff has the burden of proving "a design

or manufacturing defect or a failure to warn [the product user]

adequately."2    Ford Motor Credit Co., LLC v. Mendola, 427 N.J.

Super. 226, 240 (App. Div. 2012) (citing N.J.S.A. 2A:58C-2).                In

order to establish a design defect, a plaintiff must prove that

the defendant product maker's design was not reasonably safe, and

that "a practical and feasible alternative design existed [at the

time of manufacture] that would have reduced or prevented his

harm."    Lewis v. American Cyanamid Co., 155 N.J. 544, 560 (1998)



1
    Plaintiff does not seek to reinstate his claims against S&J.
2
  Notably, the PLA preempts all claims and legal theories for harm
alleged by a product, except for harm caused by breach of an
express warranty. N.J.S.A. 2A:58C-1(b)(3).

                                      7                              A-3996-15T3
(internal       citations      omitted);            see   also     N.J.S.A.       2A:58C-3.

Alternatively, to establish a warnings defect, a plaintiff must

prove a defendant had a duty to warn users of a product's dangers,

and that the defendant failed to provide such a warning that would

reasonably communicate those dangers to foreseeable users.                               See

Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 205 (1984);

N.J.S.A. 2A:58C-4.

       Lastly, to establish a viable claim of a manufacturing defect,

a plaintiff must prove that the product "deviated from the design

specifications,        formulae,           or    performance       standards       of    the

manufacturer or from otherwise identical units manufactured to the

same . . . specifications or formulae[.]"                    N.J.S.A. 2A:58C-2; see

also Myrlak v. Port Auth. of N.Y. and N.J., 157 N.J. 84, 99 (1999).

       Where,     as   here,         the    product       involved       is   a    complex

instrumentality and the substance of the claims are beyond the ken

of lay jurors, a plaintiff ordinarily must support his or her

defect claims with the admissible opinions of a qualified expert

witness.        Jerista       v.    Murray,         185   N.J.   175,    197-99      (2005)

(recognizing      this      principle           applies     when    an    inference        of

negligence cannot be based on "common knowledge" of a trier of

fact).

       Apart from these substantive elements of products liability

law,     we   also     must        apply    here      well-established        principles

                                                8                                   A-3996-15T3
concerning expert testimony.             In general, the admissibility of

expert testimony is "committed to the sound discretion of the

trial court[,]" and is thus entitled to deference on appeal.

Townsend v. Pierre, 221 N.J. 36, 52-53 (2015).               The trial court's

determination should not be disturbed on appeal unless it was "so

'wide   of    the    mark'   as   to    constitute   'a   manifest    denial    of

justice[.]'"        Hisenaj v. Kuehner, 194 N.J. 6, 25 (2008) (quoting

State v. Wakefield, 190 N.J. 397, 435 (2007)), certif. denied, 203

N.J. 94 (2010).       Appellate courts reviewing admissibility rulings

relating to a summary judgment motion first consider the evidence

ruling under an abuse of discretion standard, and then review the

merits of the summary judgment motion de novo.               Townsend, supra,

221 N.J. at 53, 59.

     Here, in excluding the testimony of plaintiff's liability

expert,      the    trial    court     correctly   applied   the     evidentiary

principles of the net opinion doctrine.              As the Supreme Court has

reaffirmed in a recent line of cases, an expert may not present

testimony that "constitutes 'mere net opinion.'" Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 410 (2014) (quoting Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).                      An

expert must instead "give the why and wherefore" supporting his

or her opinions, and not just "a mere conclusion."              Ibid. (quoting

Pomerantz, supra, 207 N.J. at 372 (internal citations omitted)).

                                          9                              A-3996-15T3
If the expert "cannot offer objective support for his or her

opinions, but testifies only to a view about a standard that is

'personal[,]'" such testimony is an inadmissible net opinion.

Ibid. (quoting Pomerantz, supra, 207 N.J. at 373).

      We agree with the trial court that plaintiff's engineer fell

short of these standards in rendering his various opinions about

the alleged defectiveness of the trailer's tie-down apparatus.

Unlike defendant's expert, who referred to federal regulatory

standards, plaintiff's expert identified no objective standards

to support his personal views that the trailer was defectively

made or designed, or that it lacked adequate warnings.

      Plaintiff's expert's comparison of the alternative fabric

strap design for tie-downs shown on another company's website in

2016 is not competent evidence of what the "state of the art" was

when this trailer was manufactured in 2000.            The expert fails to

provide competent proof that "[a]t the time the product left the

control   of   the   manufacturer,    there    was   not   a   practical   and

technically feasible alternative design that would have prevented

the   harm     without   substantially        impairing    the    reasonably

anticipated or intended function of the product[.]"                 N.J.S.A.

2A:58C-3(a)(1); see also O'Brien v. Muskin Corp., 94 N.J. 169, 182

(1983).



                                     10                               A-3996-15T3
     Similarly,     plaintiff's    engineer    does   not   point   to   any

objective criteria for concluding that the trailer should have

been supplied with a warning to users that the metal chain might

break.      Indeed, a warning theory is barely mentioned in the

engineer's report.    The report does not identify where or how such

a warning should be posted, and what it should say.          Nor does the

engineer appear to have any particular expertise in the contents

and placement of product warnings for chains used on trailers.

     Further, as we have noted, the record shows the chain was an

"after-market" addition installed on the trailer at some later

time after Delavan and Lohr produced it.          That provides further

legal support for the dismissal of those defendants on summary

judgment.    See N.J.S.A. 2A:58C-9 (providing a complete defense to

certain product sellers who had nothing to do with defects in

products or product components they did not manufacture).

     For these and the other cogent reasons noted by Judge Powers,

we are satisfied that the court did not abuse its discretion in

excluding     the   testimony     of    plaintiff's   liability     expert.

Moreover, the court had a sound basis to grant summary judgment

to appellants Delavan and Lohr, even viewing the motion record,

as we must, in a light most favorable to plaintiff.            R. 4:46-2;

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).



                                       11                           A-3996-15T3
       As    a    final        matter,    we    consider    plaintiff's        arguments

concerning        the    denial    of    his    motion    for   leave     to   amend    the

complaint to add Columbus McKinnon as an additional defendant.                           We

accept      for    purposes       of     our   analysis     the    representation        of

plaintiff's counsel that the trial court had orally extended the

discovery end date to accommodate counsel in completing the last

phases      of    fact    and     expert       discovery.       We   appreciate        that

plaintiff's counsel acted swiftly within four days to seek relief

once   he    received          Smith's    affidavit       identifying      the   chain's

putative true manufacturer.               We also recognize that leave to amend

a pleading is generally to be freely granted, subject to offsetting

considerations such as the age of a case and the associated burdens

imposed by adding a late party.                     Kernan v. One Washington Park

Urban Renewal Assocs., 154 N.J. 437, 456-57 (1998).

       That said, we affirm the trial court's denial of plaintiff's

requested late amendment because we agree with Judge Powers that

granting that request was likely to be "futile."                          See Notte v.

Merchants Mut. Ins. Co., 185 N.J. 490, 501 (2006).                             Plaintiff

theorizes        that    the     metal    chain     was   defectively      manufactured

because rust spots appear on the photograph of the preserved

portion of the chain.              Yet plaintiff's engineer never specified

in   his    report       any    objective      criteria,    such     as   standards     of



                                               12                                A-3996-15T3
manufacturing or metallurgy, to support a contention that the

chain was defectively fabricated.

     Although the apparent identity of the actual chain maker was

not known until the very end of the discovery period, plaintiff

has not demonstrated how that new information would have materially

changed the liability calculus.    It is speculative to assume that,

if the complaint were amended, and discovery were further extended,

that added process would have cured the deficiencies in the

expert's net opinions or salvaged plaintiff's case.       Under the

circumstances, we are unpersuaded by plaintiff's claim that the

trial court abused its discretion in disallowing the requested

eleventh-hour amendment.

     Affirmed.




                                  13                         A-3996-15T3
