The N.J. Appellate Division recently considered the factual foundation required to admit opinion testimony in a case involving the alteration of heavy machinery.

In Carneiro v. John Deere Dubuqueworks, plaintiff was struck by a backhoe while replacing water pipes at a construction site. Plaintiff was employed by defendant, Central Pipes, that was hired by defendant, P.M. Construction (“P.M.”), the general contractor and owner of the backhoe. P.M. had purchased the backhoe from Jesco, Inc. five years prior. At the time of purchase, P.M asked Jesco to install an “alternate lever arrangement” for the backhoe arm controls. Of significance, the manufacturer of the equipment was granted summary judgment earlier during discovery and the plaintiff settled his claims against P.M. and Jesco so the sole issue being tried was the allocation of liability between P.M. and Jesco.

The operator of the machine testified that when he rotated his seat to face the front of the bucket-loader, it came in contact with the lever, which caused the backhoe’s arm to strike the plaintiff. Jesco’s expert found that the levers were deliberately modified as they were positioned three inches closer to the operator then when Jesco had made its changes to the original design of the control console. In addition, the operator’s seat showed signs that it had been scraped by the lever multiple times. A Jesco employee who inspected the backhoe after the incident also testified that the levers were out of alignment.

P.M. argued that there was no evidence to support the opinion of Jesco’s expert that P.M. modified the lever system, as the scrape marks could have been etched subsequent to the subject accident. Jesco responded that if the jury found that the original modifications were proper, there would be strong circumstantial evidence that P.M. performed a subsequent alteration.

The jury found P.M. 95% liable for plaintiff’s injuries. The trial court noted that the jury received a lot of information regarding the levers. It denied P.M.’s motion for judgment notwithstanding the verdict, finding that it was not unreasonable for the jury to find that the levers were modified in some way by P.M. P.M. appealed asserting that the expert opinion was unsupported by the factual record.

The Appellate Division upheld the jury verdict, finding an adequate factual foundation as Jesco’s expert performed a personal inspection of the backhoe, reviewed the relevant discovery and rendered his opinion within a reasonable degree of engineering probability. It also found no error in the jury instruction that the backhoe operator’s negligence could be considered in context of Jesco’s claim that P.M. failed to provide proper site supervision.

Thanks to Andrew Marra for his contribution of this post. If you have any questions or comments, please email Paul at .