                            NOT FOR PUBLICATION WITHOUT THE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-5527-17T4

LOUIS A. MAGDON,

       Plaintiff-Appellant,

                v.

HARLEY-DAVIDSON USA,
HARLEY-DAVIDSON MOTOR
COMPANY, INC., and HANNUM'S
HARLEY-DAVIDSON,

        Defendants,

and

HARLEY-DAVIDSON MOTOR
COMPANY GROUP, LLC, and
LIBERTY HARLEY-DAVIDSON,

      Defendants-Respondents.
______________________________

                Argued May 1, 2019 – Decided May 30, 2019

                Before Judges Koblitz, Currier and Mayer.

                On appeal from Superior Court of New Jersey, Law
                Division, Middlesex County, Docket No. L-4363-16.
            Paul F. O'Reilly argued the cause for appellant (Law
            Offices of James Vasquez, PC, and Paul F. O'Reilly,
            attorneys; Paul F. O'Reilly, on the brief).

            Travis E. Romero-Boeck (Quarles & Brady, LLP) of
            the Wisconsin bar, admitted pro hac vice, argued the
            cause for respondent Harley-Davidson Motor Company
            Group, LLC (Eckert Seamans Cherin & Mellott, LLC,
            Mark Kircher (Quarles & Brady, LLP) of the Wisconsin
            bar, admitted pro hac vice, Eric Matzke (Quarles &
            Brady, LLP) of the Wisconsin bar, admitted pro hac
            vice,       and    Travis      E.      Romero-Boeck,
            attorneys; Christopher E. Torkelson, of counsel and on
            the brief).

            Michael Keith Willison argued the cause for respondent
            Liberty Harley-Davidson (Dickie Mc Camey &
            Chilcote PC, attorneys; Michael Keith Willison, on the
            brief).

PER CURIAM

      Plaintiff Louis Magdon appeals from the June 22, 2018 order granting

defendants Harley-Davidson Motor Company Group, LLC, (Harley-Davidson)

and Liberty Harley-Davidson (Liberty) summary judgment and dismissing

plaintiff's complaint. The trial judge found plaintiff's expert report was an

inadmissible net opinion, and, therefore, plaintiff was unable to support his

products liability and negligence claims. Because we find the expert report was




                                                                       A-5527-17T4
                                      2
supported by factual evidence and provided "whys and wherefores," 1 it is not a

net opinion.    We reverse the trial judge's ruling, and vacate the summary

judgment order.

      Plaintiff purchased a new Harley-Davidson motorcycle in 2010 at Liberty,

a Harley-Davidson dealership. Over the next several years, plaintiff serviced

the motorcycle at Liberty, usually before going on a long trip. During those

visits, plaintiff expected Liberty employees to "go over the whole bike," and fix

any problems.

      In 2012, Liberty performed maintenance on the motorcycle — changing

the oil, installing a cable antenna, and servicing the gaskets and spark plugs. On

August 16, 2014, Liberty again changed the oil and provided a new oil filter.

Plaintiff also recalled getting new tires and rear brake pads from Liberty, but

was unsure when those services were performed.

      The Harley-Davidson owner's manual for this particular motorcycle

instructs that the brake system should be flushed and the brake fluid should be

changed every two years. Liberty did not perform any service or work on the

brake system during the noted service visits. Prior to his accident in August



1
  Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div.
2002).
                                                                          A-5527-17T4
                                        3
2014, plaintiff had not experienced any problems with the motorcycle's brakes

and he had not asked Liberty to check the brakes for any reason.

      On August 30, 2014, plaintiff was riding his motorcycle on New York

State Highway 55. He was familiar with the roadway and was operating his bike

within the speed limit. As plaintiff rode through a curve, he applied the brakes

but "felt no pressure" in the front brake. Consequently, plaintiff lost control of

the motorcycle and hit a ditch. The motorcycle landed on top of plaintiff,

severely injuring him.

      The motorcycle was towed from the scene. After plaintiff's insurance

carrier deemed the bike "totaled," it was removed from the tow yard and sold at

auction.

      Plaintiff's complaint alleged products liability – manufacturing defect –

and negligence claims against Harley-Davidson and Liberty respectively. 2

Plaintiff retained George Meinschein, P.E. as his expert witness. Meinschein

thereafter authored three reports.

      In preparation of his first report, Meinschein advised he had reviewed the

accident report, plaintiff's deposition testimony, documents produced by Harley-



2
  Plaintiff dismissed all other claims prior to the summary judgment motion
hearing.
                                                                          A-5527-17T4
                                        4
Davidson, including its owner's manual, aerial and street views of the accident

scene, as well as photographs, measurements, and video recordings taken during

his physical examination of the scene. He concluded that plaintiff's accident

was caused "by a defect in the brake system that prevented [plaintiff] from

slowing to a speed that would have allowed him to negotiate the subject curve

on August 30, 2014 without incident."

      The expert stated that the motorcycle was equipped with an anti-locking

brake system (ABS) feature. He opined that the ABS feature was a design defect

that caused the brake fluid to absorb moisture, reducing the motorcycle's braking

ability and ultimately initiating the August 30, 2014 brake failure. He further

concluded that an alternative design and manufacturing process would have

corrected the defective ABS design. Meinschein also noted the motorcycle was

included in Harley-Davidson's January 2018 recall of its motorcycles with the

ABS feature. The recall was to correct the ABS defect, which allowed moisture

to enter the brake fluid, causing contamination that could "increas[e] the risk of

a crash."

      Meinschein's second report responded to Harley-Davidson's supplemental

interrogatory that advised plaintiff's motorcycle was not equipped with an ABS

feature.    The expert maintained that the photographs he reviewed of the


                                                                          A-5527-17T4
                                        5
motorcycle showed it had "speed sensors for the front and rear wheel s," which

were only found on motorcycles with an ABS feature.

      Thereafter, an engineer for Harley-Davidson issued an expert report,

opining that plaintiff's accident was unrelated to any ABS brake system failure

because the "motorcycle was not equipped with ABS." He advised a motorcycle

with ABS had additional hydraulic brake lines under the gas tank and the

photographs taken of plaintiff's motorcycle after the accident did not show a

hydraulic brake line. The engineer attributed the accident to "rider error."

      In his third report, Meinschein conceded the motorcycle did not have the

ABS feature. As a result, he withdrew his opinions regarding the ABS defect.

He reiterated, however, that a brake system defect caused the accident, and an

alternative design and manufacturing process would have corrected the

defective brake system. In explaining his opinion, Meinschein stated:

            I did not observe any evidence of brake fluid leakage or
            defective front brake hoses, calipers, pads, or rotors in
            my review of the post-crash photographs of the subject
            motorcycle. As such, it is my opinion that the cause for
            the front brake failure described by [plaintiff] was a
            defect in the operation of the front brake master
            cylinder. It is my further opinion that [plaintiff's]
            testimony that he felt nothing, no pressure, when he
            applied the front brake and the absence of any visible
            post-crash defects in the front brake system is
            consistent with failure of a piston seal in the front brake
            master cylinder due to contamination of the brake fluid.

                                                                          A-5527-17T4
                                        6
            Contaminated brake fluid softens and swells the piston
            seals in the brake system and prevents the system from
            building pressure when the piston assembly is
            depressed.       The first notice of brake fluid
            contamination typically occurs when the brakes fail if
            the contamination and resulting swelling of the internal
            rubber components of the master cylinder is not
            discovered during a routine maintenance procedure. As
            the subject motorcycle was serviced by [Liberty]
            fourteen days before the August 30, 2014 crash, it is my
            opinion that either the contaminated brake fluid was not
            discovered during that routine maintenance procedure
            or contaminated brake fluid was inadvertently
            introduced into the front brake master cylinder
            reservoir at that time.

                  ....

            . . . Any contaminated brake fluid in the front brake
            system of the subject motorcycle would have been a
            Harley-Davidson product that would have been either
            the original brake fluid that was used in the subject
            motorcycle's manufacture or that which would have
            been added by [Liberty].

            The odometer reading at the time of the August 16,
            2014 service by [Liberty] is recorded on the
            corresponding work order as 14,995 miles. It is my
            opinion that in order to compensate for fluid level drop
            due to normal brake pad wear, the subject motorcycle's
            front brake fluid reservoir was topped off with either
            contaminated or incorrect Harley-Davidson brake fluid
            during the August 16, 2014 service by [Liberty]. [3]

                  ....

3
  Plaintiff asserts the brake fluid in the motorcycle should have been changed
every two years in accordance with Harley-Davidson's owner's manual.
                                                                       A-5527-17T4
                                       7
               . . . The improper service provided by [Liberty] on
               August 16, 2014 was a causative factor in the August
               30, 2014 crash and the subsequent injuries suffered by
               [plaintiff].

      Defendants moved for summary judgment, alleging Meinschein's report

was a net opinion as it was unsupported by any facts. Without an expert, Harley-

Davidson argued plaintiff could not show a manufacturing defect existed at the

time the motorcycle left the manufacturer. Liberty asserted plaintiff had not

demonstrated a breach of duty as there was no evidence of any contaminated

brake fluid.

      In response, plaintiff argued that Meinschein's opinions were supported

by the factual evidence.       The expert had examined weather reports and

photographs of the motorcycle, performed a physical examination of the

accident site, and reviewed plaintiff's deposition testimony and Liberty's service

records. The expert had ruled out all other possible causes of the brake failure.

He also noted the recall notice, which described how contaminated brake fluid

could cause a loss of brake function on the affected wheel.

      As to Liberty, plaintiff argued the dealership's service employees failed to

follow the servicing requirements in Harley-Davidson's owner's manual.

Although plaintiff requested a complete check-up of his bike on each occasion



                                                                          A-5527-17T4
                                         8
he brought it in for service, Liberty had not complied with plaintiff's request or

the manufacturer's recommendations regarding brake fluid.

      The motion judge concluded that because there was "no analysis," "no

testing," and no "why's or where[fore's]," the report was "pure speculation and

conjecture," and, therefore, a net opinion. As a result, the court granted the

motions for summary judgment.

      On appeal, plaintiff argues Meinschein's opinions were based on factual

evidence and explained the causal connection between the contaminated brake

fluid and the brake system malfunction.

      We review a summary judgment order de novo, applying the same

standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We

"consider whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

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

To grant the motion, the evidence in the record must be "so one-sided that one

party must prevail as a matter of law." Ibid. (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).




                                                                          A-5527-17T4
                                        9
      Here, the trial court was "confronted with an evidence determination

precedent to ruling on a summary judgment motion," and it properly addressed

the evidence issue first. Townsend, 221 N.J. at 53 (quoting Estate of Hanges v.

Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010)). Our review "of the

trial court's decision[] proceeds in the same sequence, with the evidentiary issue

resolved first, followed by the summary judgment determination of the trial

court." Ibid. We review the determination of the expert report as net opinion

for an abuse of discretion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 371 (2011).

      N.J.R.E. 703 governs the admissibility of expert testimony. 4 It provides

an expert opinion to be "grounded in 'facts or data derived from (1) the expert's

personal observations, or (2) evidence admitted at the trial, or (3) data relied

upon by the expert which is not necessarily admissible in evidence but which is

the type of data normally relied upon by experts.'" Townsend, 221 N.J. at 53

(quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).

      The doctrine barring the admission of net opinions is a "corollary of

[N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's


4
   Defendants did not dispute Meinschein's qualifications to render an expert
report. The judge also noted there was no dispute as to the expert's
qualifications.
                                                                          A-5527-17T4
                                       10
conclusions that are not supported by factual evidence or other data." Id. at 53-

54 (alterations in original) (quoting Polzo, 196 N.J. at 583). The net opinion

principle mandates that experts "give the why and wherefore" supporting their

opinions, "rather than . . . mere conclusion[s]." Id. at 54 (quoting Borough of

Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). An expert

must "explain a causal connection between the act or incident complained of and

the injury or damages allegedly resulting therefrom." Buckelew v. Grossbard,

87 N.J. 512, 524 (1981). Expert testimony that is "based merely on unfounded

speculation and unquantified possibilities" should be barred.        Vuocolo v.

Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990).

      However, "[t]he net opinion rule is not a standard of perfection."

Townsend, 221 N.J. at 54. An expert may ground an opinion in his or her

personal experience and training. See State v. Townsend, 186 N.J. 473, 495

(2006) (finding the expert's opinion was not a net opinion due to her "education,

training, and most importantly, her experience"); Rosenberg v. Tavorath, 352

N.J. Super. 385, 403 (App. Div. 2002) ("Evidential support for an expert opinion

is not limited to treatises or any type of documentary support, but may include

what the witness has learned from personal experience."). An opinion that may

be subject to attack on cross-examination for not including other meaningful


                                                                         A-5527-17T4
                                      11
considerations, does not make it a net opinion. Rosenberg, 352 N.J. Super. at

402 (citing Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div.

1990)); see also Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 16-

17 (App. Div. 1994) (declining to strike an expert's testimony as a net opinion

as "[a]ny shortcoming in his method of analysis was explored and it was for the

jury to determine the weight his opinion should receive").

      We turn to Meinschein's third, and final, report to determine its

admissibility under N.J.R.E. 703. Meinschein first concluded "[t]he sudden and

unexpected loss of braking ability as the subject motorcycle approached the

curve where the August 30, 2014 crash occurred was caused by a failure of the

front brake master cylinder."     He arrived at this conclusion using factual

evidence: his observation of the post-crash photographs of the motorcycle, and

plaintiff's deposition testimony stating he felt no pressure when he applied the

front brake.

      Next, Meinschein explained "why" he thought there was a failure of the

front brake master cylinder, which caused plaintiff's crash. See Townsend, 221

N.J. at 53-54; Buckelew, 87 N.J. at 524. He stated that plaintiff's description of

not feeling any pressure when he applied the front brake before the crash, and a

lack of evidence of "brake fluid leakage or defective brake hoses, calipers, pads,


                                                                          A-5527-17T4
                                       12
or rotors," as observed in the photographs, was "consistent with failure of a

piston seal in the front brake master cylinder due to contamination of the brake

fluid." The expert explained that contaminated brake fluid causes a failure of

the front brake, stating it "softens and swells the piston seal in the brake system

and prevents the system from building pressure when the piston assembly is

depressed." He found the contaminated brake fluid was either introduced when

the motorcycle was manufactured or by Liberty during the August 2014

servicing.

      Meinschein further concluded that the "brake failure and subsequent crash

was caused by either the failure of [Liberty] to discover contaminated brake

fluid during the August 16, 2014 routine maintenance procedure or by their

addition of contaminated Harley-Davidson brake fluid into the front brake

master cylinder reservoir at that time." The expert supported this conclusion

with factual evidence, stating:

             The odometer reading at the time of the August 16,
             2014 service by [Liberty] is recorded on the
             corresponding work order as 14,995 miles. It is my
             opinion that in order to compensate for fluid level drop
             due to normal brake pad wear, the subject motorcycle's
             front brake fluid reservoir was topped off with either
             contaminated or incorrect Harley-Davidson brake fluid
             during the August 16, 2014 service by [Liberty].



                                                                           A-5527-17T4
                                       13
      We are satisfied Meinschein did not present a report with "mere

conclusion[s]." Townsend, 221 N.J. at 54. He provided a factual basis for both

of his conclusions, drawing on his training, experience, and education for

support. See Rosenberg, 352 N.J. Super. at 403. Therefore, it is not a net

opinion. His conclusions, of course, are subject to cross-examination at trial

and a jury can decide whether to accept or reject part or all of his opinions. See

Rosenberg, 352 N.J. Super. at 402; see also Glowacki, 270 N.J. Super. at 16-17.

      As a result of his conclusion that plaintiff's expert report was a net

opinion, the trial judge granted defendants summary judgment. We vacate that

ruling.

      To prevail on a product liability claim under the New Jersey Products

Liability Act (PLA), N.J.S.A. 2A:5C -1 to -11, a plaintiff must demonstrate three

prima facie elements: "[1] the product was defective, [2] that the defect existed

when the product left the manufacturer's control, and [3] that the defect

proximately caused injuries to the plaintiff, a reasonably foreseeable or intended

user." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 97 (1999) (citations

omitted).

      "To prove both the existence of a defect and that the defect existed while

the product was in the control of the manufacturer, a plaintiff may resort to direct


                                                                            A-5527-17T4
                                        14
evidence, such as the testimony of an expert who has examined the product, or,

in the absence of such evidence, to circumstantial proof." Id. at 98 (citations

omitted). Additionally, "[a] plaintiff may [also] establish a defect by 'negat[ing]

other causes of the failure of the product for which the defendant would not be

responsible, in order to make it reasonable to infer that a dangerous condition

existed at the time the defendant had control [of the product].'" Id. at 99 (third

and fourth alterations in original) (quoting Scanlon v. Gen. Motors Corp., 65

N.J. 582, 593-94 (1974)). "[A] plaintiff does not have to negate all possible

causes of failure, only those likely causes of failure." Ibid. (citing Scanlon, 65

N.J. at 594).

      Here, plaintiff has presented expert opinions as to a manufacturing defect

– contaminated brake fluid.       A jury might also infer from the proffered

circumstantial evidence that a defect existed while the motorcycle was in the

control of Harley-Davidson. The motorcycle only had 14,995 miles on it at the

time of plaintiff's accident. Plaintiff took the bike to Liberty for regular service

and maintenance. Plaintiff had not repaired or modified the bike, nor had he

installed any after-market parts.       We are satisfied there was sufficient

circumstantial evidence for a jury to infer that the front brake failure would not

have occurred at this point in the motorcycle's lifespan absent a defect


                                                                            A-5527-17T4
                                        15
attributable to Harley-Davidson. We consequently reverse and vacate the grant

of summary judgment to Harley-Davidson.

      In addressing the dismissal of the negligence claim against Liberty, we

similarly find the trial judge erred in granting summary judgment to the

dealership. Plaintiff contends Liberty was negligent in failing to service the

motorcycle as he requested and by not following the maintenance instructions

in the owner's manual.

      As we have already stated, plaintiff produced Meinschein's expert report

to support his claim against Liberty. The owner's manual required changing the

brake fluid and flushing the brake system every two years. However, Liberty's

service records do not reflect any work was performed on the bike's brake system

during the service visits. Therefore, in viewing the evidence in a light most

favorable to plaintiff, there is sufficient evidence to establish both that Liberty

had a duty to change the brake fluid and that Liberty breached that duty. The

expert report established the causal relationship between the breach of duty and

plaintiff's resulting accident and damages.

      We reverse and vacate the summary judgment order. We remand to the

trial court for further proceedings. We do not retain jurisdiction.




                                                                           A-5527-17T4
                                       16
