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January 30, 2012
KARE DISTRIBUTION, INC., PLAINTIFF,v.JAM LABELS AND CARDS LLC D/B/A A&M CARDS, ARTHUR AARON AND MARC STEINBERG,DEFENDANTS.
Before the Court is Plaintiff/Counterdefendant Kare Distribution, Inc."s ("Kare" or "Plaintiff") Motion for Summary Judgment and Defendants/Counterclaimants Jam Labels and Cards LLC d/b/a A&M Cards ("A&M Cards"), Arthur Aaron ("Aaron") and Marc Steinberg"s ("Steinberg") (collectively "A&M" or "Defendants") Cross-Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56(c). This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a). Venue is proper pursuant to 28 U.S.C. § 1391. These Motions are decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants in part, and denies in part Plaintiff"s Motion and grants Defendants" Cross-Motion.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
Kare is the direct distributor of prepaid phone cards provided by its parent company, Epana Networks, Inc. ("Epana"). (Pl."s First Am. Compl. ¶ 8 (hereinafter "Am. Compl.").)
Epana entered the international phone card business in 2002. (Id.) In or about 2004, Aaron and Steinberg formed A&M to provide "small-sized" printing services. (Defs." Answer and Countercl. (hereinafter "Defs." Countercl.") ¶ 10; Saenz Decl. Ex. B, Steinberg Dep. 10:20-18.) For that purpose, A&M entered into a contractual relationship with a small printing company in Pennsylvania, whereby A&M acted as a broker and subcontracted the printing orders they received from their customers. (Defs." Countercl. ¶¶ 10, 11.)
In or about late 2004 or early 2005, Kare and A&M entered into an oral agreement in which A&M agreed to provide printing services for Kare"s prepaid phone card business. (Defs." Countercl. ¶ 20.) The parties never entered into a formal written agreement; however, the nature of their relationship is evidenced by their course of dealings and communications. (Id.; Am. Compl. ¶ 15.) Kare ordered cards from A&M by sending A&M a purchase order, to which A&M would respond with an invoice. (Am. Compl. ¶ 16.) Kare took ownership of the cards upon receipt of payment for the corresponding invoice by A&M. (Id.) At this time, A&M still subcontracted Kare"s printing orders to A&M"s third-party small printing company. (Defs." Countercl. ¶ 21.)
By early 2006, Kare"s market share and business operations had increased significantly (Id. ¶ 22.) As a result, A&M alleges that Kare, on two separate occasions, advised A&M that it would be unable to continue utilizing A&M as Kare"s printer unless A&M increased their printing capacity. (Id. ¶¶ 23, 28.) The first occurred in 2006 when Kare required that A&M purchase or lease printing equipment sufficient to service Kare"s needs. (Id. ¶ 23.) In return, A&M alleges that "Kare[, through Karen Vander*fn2 ("Vander"),] made specific promises and representations that if A&M purchased or leased its own printing equipment sufficient to service Kare"s needs, Kare would utilize A&M for all of their printing needs - - limited only by A&M"s capacity to meet Kare"s requirements." (Id. (emphasis in original); Saenz Decl. Ex. C Steinberg Dep. 207:6-11.) Defendants assert that in an effort to meet Plaintiff"s printing needs, A&M formed JAM Labels ("JAM"), a phone card and label printing company, because the printing company Defendants were using previously could not meet their printing capacity. (Saenz Decl. Ex. D-1, Aaron Dep. 37:1-4, 38:5-10.) A&M also alleges that, based exclusively on Kare"s promises, A&M leased additional printing equipment totaling over $750,000. (Defs." Countercl. ¶ 25.)
The second occasion transpired in 2007 when Kare allegedly informed A&M that it required more space to warehouse its cards (after printing but pre-shipping). (Id. ¶ 28.) Consequently, Kare requested that A&M lease a significantly larger facility for its printing and storage operations or Kare would no longer be able to do business with A&M. (Id. ¶ 30.) Additionally, A&M alleges that Kare promised that if A&M consented to its request, Kare would continue to use A&M for all of its printing needs and that any long-term leasehold expenses incurred by A&M would be more than covered by the increased volume in A&M"s business. (Id.) Accordingly, in April 2007, A&M leased a new 28,500 sq. ft. facility in Jersey City, New Jersey, memorialized by a five (5) year lease terminating in May 2012. (Saenz Decl. Ex. Y; Defs." Countercl. ¶ 31.) Consistent with both of Kare"s alleged promises, in 2006 and 2007, it is undisputed that Kare continued to use and increase A&M"s business by sending them virtually all of their printing business. (Defs." Countercl. ¶ 33.)
In or about September 2008, Kare restructured its management team due to the loss of several executives and, in September 2008, placed Jay Adams ("Adams") in charge of its relationship with A&M. (Am. Compl. ¶ 19.) After reviewing A&M"s pricing, Adams concluded that Kare could negotiate a better rate. (Id.; Defs." Countercl. ¶ 36.) Consequently, around October 2008, Kare advised A&M that A&M would have to reduce its costs, among other things, in order to continue their business relationship. (Am. Compl. ¶ 27; Defs." Countercl. ¶ 37, Saenz Decl. Ex. D-2, Aaron Dep. 245:15-22.) Ultimately, after a period of negotiation during which the parties continued their business relationship, Kare and A&M were unable to reach a final agreement regarding A&M"s pricing. (Am. Compl. ¶¶ 31-32; Defs." Countercl. ¶ 39.) The parties terminated their relationship in February 2009. (Am. Compl. ¶ 15.) Thereafter, Kare immediately requested the return of all warehoused cards. (Id. ¶ 37; Defs." Countercl. ¶ 40.) A&M refused. (Am. Compl. ¶ 37.)
Accordingly, on March 4, 2009, Kare initiated this action. On March 24, 2009, Kare filed its First Amended Complaint ("FAC"), seeking damages for (1) Conversion, (2) Replevin, (3) Breach of Contract, (4) Unjust Enrichment, (5) Tortious Interference with Contract, (6) Breach of the Duty of Good Faith and Fair Dealing, and (7) Fraud. On May 15, 2009, Defendants answered the FAC and filed Counterclaims for (1) Estoppel, (2) Breach of Contract, (3) Breach of the Duty of Good Faith and Fair Dealing, (4) Economic Duress, (5) Fraudulent Inducement, and (6) Violation of the New Jersey Consumer Fraud Act ("NJCFA"), N.J. Stat. Ann. § 56:8-1 et seq.
On June 11, 2009, Kare filed a Motion to Dismiss A&M"s economic duress, fraudulent inducement and NJCFA claims and to strike Aaron and Steinberg as counterclaimants from all Counts. (Docket Entry No. 23). Subsequently, on June 22, 2009, A&M filed a Cross-Motion to Dismiss Kare"s claims against the Individual Defendants. (Id. at 27). On October 8, 2009, this Court granted Kare"s Motion to Dismiss A&M"s counterclaims for fraudulent inducement and violation of the NJCFA. This Court also concluded that although A&M"s allegations did not support a claim for economic duress, it would grant Defendants "leave to amend their claim for economic duress for the limited purpose of detailing the circumstances under which they agreed to Kare"s request to lower their prices."*fn3 Kare Distrib., 2009 U.S. Dist. LEXIS 94600, at *19, *29. However, the Court denied Kare"s motion to strike Aaron and Steinberg as counterclaimants. Id. at *29. Additionally, it denied A&M"s Cross-Motion to Dismiss the claims against the Individual Defendants. Id.
Subsequently, A&M returned the warehoused cards after Kare paid $10,000 to cover the cost of the return. (Docket Entry No. 122). As a result, on August 24, 2011, Kare filed a stipulation of dismissal with prejudice as to its replevin, unjust enrichment, and tortious interference claims. (Id.).
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the non-movant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party"s evidence "is to be believed and all justifiable inferences are to be drawn in his favor."" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
The nonmoving party "must present more than just "bare assertions, conclusory allegations or suspicions" to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party is required to "point to concrete evidence in the record which supports each essential element of its case." Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party"s case, and on which . . . [it has] the burden of proof," then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.
1. Kare"s Motion for Summary Judgment
a. Breach of Contract
To sustain a breach of contract claim, A&M must establish: "(1) a contract between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that [A&M] performed its own contractual obligations." Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007). Kare maintains that it has not breached the alleged oral contract because "A&M more than recouped its investment." (Pl."s Br. 14.) Kare"s argument is based on its interpretation of the alleged contract. According to Kare, A&M"s argument is that "Kare stopped sending A&M work before A&M was able to recoup the amount that it invested in new equipment and a larger warehouse space." (Id. at 12.)
However, A&M"s version of the alleged contract is different. Defendants allege that "Kare made specific promises and representations that if A&M purchased or leased its own printing equipment sufficient to service Kare"s needs, Kare would utilize A&M for all of their printing needs - - limited only by A&M"s capacity to meet Kare"s requirements." (Defs." Countercl. ¶ 23.) Additionally, according to Steinberg, Vander allegedly promised that if A&M "purchased the equipment or leased the equipment to service their [(Kare"s)] needs, then they would utilize us for as much printing as we can handle." (Saenz Decl. Ex. C; Steinberg Dep. 207:8-11.) Therefore, from A&M"s point of view, the only time Kare could send its printing work to another printing company would be if A&M could not meet Kare"s printing needs. Thus, Kare"s assertion that A&M "more than recouped its investment" is irrelevant because Defendants" version of the contract does not measure performance based on the recoupment of their investment. It is obvious that the exact terms of the alleged contract are in dispute and there is a genuine issue of fact as the nature of the promise Vander allegedly made.
Similarly, Kare"s argument that it should be granted summary judgment because A&M cannot prove damages suffers from the same flaw as its contention that there was no breach. "Compensatory damages are intended to recompense the injured claimant for losses due to the breach, that is, to give the innocent party the benefit of the bargain." Donovan v. Bachstadt, 91 N.J. 434, 444 (1982). Although Kare goes to great lengths to convince this Court that A&M cannot identify any damages it has suffered, this Court concludes that there is a genuine issue of material fact as to the benefit A&M was supposed to derive from the contract. Because the exact terms of the contract are in dispute, it is impossible to determine whether the profits Kare alleges A&M made are sufficient to put A&M "in as good a position as [it] would have had if performance had been rendered as promised." Id. (quoting 5 Corbin, Contracts § 992 (1951) (internal quotation marks omitted)). In this regard, it is irrelevant if A&M and JAM are different entities or if JAM bore a significant share of the costs for the new investments, as Kare suggests.
b. Estoppel
To recover on a claim of promissory estoppel, A&M must prove: "(1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance; and (4) definite and substantial detriment." Toll Bros., Inc. v. Bd. of Chosen Freeholders of Burlington, 194 N.J. 223, 253 (2008) (citing Lobiondo v. O"Callaghan, 357 N.J. Super. 488, 499 (App. Div. 2003)). Kare maintains that it should be granted summary judgment because Defendants "cannot prove any damages." (Pl."s Br. 20.) As indicated earlier, there is a genuine issue of material fact as to the damages A&M incurred. As a result, this Court cannot grant summary judgment on this claim.
c. Breach of the Implied Duty of Good Faith and Fair Dealing
New Jersey courts have recognized that an implied covenant of good faith and fair dealing exists in every contract. R.J. Gaydos Ins. Agency, Inc. v. Nat"l Consumer Ins. Co., 168 N.J. 255, 276 (2001). This duty requires that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract." Ass"n Grp. Life, Inc. v. Catholic War Veterans, 61 N.J. 150, 153 (1972) (internal quotation marks omitted). The duty of good faith is "independent [] and may be breached even where there is no breach of the contract"s express terms." Emerson Radio Corp. v. Orion Sales, Inc., 80 F. Supp. 2d 307, 311 (D.N.J. 2000), rev"d, in part, on other grounds, 253 F.3d 159 (3d Cir. 2001). The duty is breached if a party "acts in bad faith or engages in some other form of inequitable conduct in the performance of a contractual obligation." Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 288 (3d Cir. 2000). Additionally, "[t]he Restatement and [New Jersey] cases note a state of mind or malice-like element to breach of good faith and fair dealing, holding that the duty excludes activity that is unfair, not decent or reasonable, nor dishonest." Emerson Radio Corp., 80 F. Supp. 2d at 311.
A&M asserts that Kare breached the duty of good faith and fair dealing because some of Kare"s employees acted maliciously toward A&M and intended to cause harm to A&M. (Defs." Opp"n Br. 17.) Defendants point to emails in which: (1) Josh Loberfeld ("Loberfeld"), a Kare employee called Steinberg an unsavory name and stated he "[c]an"t stand" Steinberg, (Frisch Decl. Exs. E, H); (2) Adams stated he "can["]t stand" Aaron and Steinberg, (id. at Ex. J); and (3) Loberfeld and Adams declared that Steinberg and Aaron earned a substantial amount of money from their relationship with Kare. (Id. at Exs. I, K.) However, such statements, at most, merely indicate that Loberfeld and Adams disliked Steinberg and Aaron. Such conduct is insufficient to sustain a claim for the breach of the duty of good faith absent a showing of "improper motive." Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001). Furthermore, although Kare was splitting its orders between A&M and other companies as of September 2008, (id. at Ex. M), A&M has not produced any evidence indicating that Kare was dishonest about its actions. Moreover, even if Adams did "gloat[] over the fact that A&M was going down," (Defs." Opp"n Br. 18), A&M has failed to show that Kare"s attempt to negotiate a better price with A&M was pretext to terminate the relationship or drive A&M out of business. Consequently, this Court concludes that Kare is entitled to summary judgment on this claim.
2. A&M"s Cross-Motion for Summary Judgment
Kare"s breach of contract claim is two-fold.*fn4 (See Am. Compl. ¶ 66.) First, Kare asserts that there were serious quality control issues with the cards A&M printed. For instance, Plaintiff maintains that when it received the El Chavo brand cards from A&M in 2008, the cards did not match the proof and "[t]here was black spotting throughout the card[s] and colors running into each other." (Jahn Decl. ¶¶ 3-4.) According to Kare, Steinberg and Aaron conceded that their press could not print the requisite quality. As a result, Kare had to give the print job to another printer. (Id. ¶ 5.) Plaintiff also maintains that A&M failed to print Kare"s Astral brand card in the colors Kare requested. Therefore, Plaintiff had to use another printer. (Id. ¶ 6.) Additionally, Plaintiff states that it had color problems with the Digame and J-Daddy cards A&M printed. (Id. ¶ 7.) Kare also asserts that the coupons A&M printed were the wrong size, incorrectly colored, and had poor quality. (Id. ¶ 8.) Furthermore, Kare contends that A&M"s promotional items were "often unusable." (Id. ¶ 9.)
Although Kare maintains that Defendants" quality control issues "resulted in hundreds of thousands of dollars of inventory that Kare could not use," (id. ¶ 10), it has failed to allege or establish that it was actually harmed by its inability to use the unsatisfactory inventory. As Kare correctly noted, proof of damages is essential to a breach of contract claim. (Pl."s Br. 14.) Furthermore, other than the bald conclusory statements contained in Lydia Jahn"s declaration, Kare does not provide any evidence to support its assertion that it had hundreds of dollars of unusable inventory. Plaintiff"s burden at this stage requires "more than just bare assertions, conclusory allegations or suspicions." Podobnik, 409 F.3d at 594 (internal quotation marks omitted). As Kare has pointed out, (see Pl."s Br. 12), "[t]he Supreme Court has unequivocally stated that the object of Rule 56(e) "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit."" Khrakovskiy v. Denise, Civ. A. No. 06-1033, 2009 U.S. Dist. LEXIS 96650, at *26 (D.N.J. Oct. 19, 2009) (quoting Lujan v. Nat"l Wildlife Fed"n, 497 U.S. 871, 888 (1990)). Kare"s failure to demonstrate that it suffered any damages as a result of A&M"s alleged quality control problems is detrimental to its breach of contract claim.
Second, Kare claims that A&M breached the contract because A&M charged Kare for shipping even though the parties agreed that A&M would provide Kare with free shipping. (Am. Compl. ¶¶ 30-32.) According to Plaintiff, A&M promised to give it free shipping without a printing or shipment quantity. (Id. ¶¶ 30-31). However, the record does not support Kare"s allegation. On December 18, 2008, Loberfeld asked Steinberg to "remind [him] of the agreement [they] made on shipping cost[.]" (Saenz Supplemental Decl. Ex. PP.) In response, Steingberg stated: "[w]e will pay for all cards printed from Nov 1 and we will pay for shipping for cards after Nov 1 so long as you ship 25k to a location." (Id.) Additionally, in a January 29, 2009 email, Adams acknowledged that "all of the old cards that are at A and M and all new cards from A and M that ship in under 25k quantities we are still being charged for." (Frisch Decl. Ex. L.) Hence, Plaintiff was entitled to free shipping under limited circumstances: cards printed after November 1, 2008, that were shipped in quantities over 25,000.
Because the parties" free shipping arrangement applied only to cards printed after November 1, 2008, that met the minimum shipping quantity requirement, Plaintiff"s claim that A&M breached the shipping arrangement is valid only if A&M charged for cards falling within the purview of the agreement. However, Kare does not provide specific information about the circumstances surrounding A&M"s alleged breach of the shipping agreement. For instance, Plaintiff does not specify the timeframe within which Defendants breached the shipping arrangment. Similarly, Kare does not indicate if the cards A&M shipped met the minimum quantity requirement. Kare bears the burden of establishing that A&M breached the shipping arrangement, see Murphy v. Implicito, 392 N.J. Super. 245, 265 (App. Div. 2007) (citation omitted), and its conclusory assertions are insufficient to meet that burden. See Podobnik, 409 F.3d at 594 (internal quotation marks omitted). Thus, Defendants are entitled to summary judgment on this claim.
b. Breach of the Implied Duty of Good Faith and Fair Dealing
Kare contends that A&M breached the implied duty of good faith and fair dealing. However, Plaintiff"s claim is duplicative of its breach of contract claim because it is based on the same set of facts. In "New Jersey, a plaintiff cannot maintain a claim for breach of the implied covenant of good faith and fair dealing when the conduct at issue is governed by the terms of an express contract or the cause of action arises out of the same conduct underlying the alleged breach of contract." Hahn v. OnBoard LLC, Civ. A. No. 09-3639, 2009 U.S. Dist. LEXIS 107606, at *15 (D.N.J. Nov. 16, 2009) (citing Wade v. Kessler Inst., 172 N.J. 327 (2002); ICD Holdings S.A. v. Frankel, 976 F. Supp. 234, 243-44 (S.D.N.Y. 1997)). A&M is entitled to summary judgment because Kare has not alleged facts that support an independent claim for the breach of the duty of good faith and fair dealing.
c. Conversion "Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel." Chicago Title Ins. Co. v. Ellis, 409 N.J. Super. 444, 454 (App. Div. 2009), certif. denied, 200 N.J. 506 (2009) (citation omitted). To establish a claim for conversion plaintiff must demonstrate: "(1) the existence of property, (2) the right to immediate possession thereof belonging to plaintiff, and (3) the wrongful interference with that right by defendant." Corestar Int"l PTE. Ltd. v. LPB Commc"ns, Inc., 513 F. Supp. 2d 107, 127 (D.N.J. 2007).
Here, Kare is not seeking for the cards to be returned or for the value of the cards. Kare"s claim is based on recouping the $10,000 it paid to A&M for shipping the cards. (Pl."s Opp"n Br. 26-27.) However, as Defendants correctly point out, "in an action for the conversion of chattels the rule of damages is limited to the value of the chattels converted." Tessmar v. Grosner, 23 N.J. 193, 202 (1957); see also One Step Up, Ltd. v. Sam Logistic, Inc., 419 N.J. Super. 500, 512 (App. Div. 2011) (affirming the trial court"s determination in a conversion claim that the plaintiff is entitled to the value of the goods converted); Bank of N. Am. v. Bank of Nutley, 94 N.J. Super. 220, 227 (Law Div. 1967) (concluding that "[s]ince the action is in conversion, the measure of damages is the reasonable value of the [item] at the time of conversion."). Because A&M has returned the cards and Kare has not alleged that it suffered a loss in value, Kare has no basis to seek damages under the theory of conversion. Although the parties" agreement gives Kare the right to recover the $10,000 it provided for the shipment of the cards, conversion is not the appropriate theory to resolve that dispute. Consequently, A&M is entitled to summary judgment on Kare"s conversion claim.
d. Fraud
To establish a claim for common law fraud Kare must prove: "a material misrepresentation by the defendant of a presently existing fact or past fact; knowledge or belief by the defendant of its falsity; an intent that the plaintiff rely on the statement; reasonable reliance by the plaintiff; and resulting damages to the plaintiff." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 175 (2006).
Plaintiff initially alleged that Defendants intentionally defrauded Kare because A&M marked up invoices for third party shredding services and Plaintiff relied on Defendants" "representation that the invoice was accurate." (Am. Compl. ¶ 44.) However, in response to A&M"s assertion that Kare cannot demonstrate that "A&M made any representation that the invoices were not marked up," (Defs." Br. 22), Kare now argues that its claim is based on Defendants" failure to disclose the mark up. (Pl."s Opp"n Br. 27-28.) Kare"s fraud claim is based on one invoice from American Shredder that A&M marked up from $1,177 to $6,529. (Id. at 28.)*fn5
Regardless of whether Kare"s fraud claim is based on A&M"s alleged affirmative representation or omission, this Court concludes that A&M is entitled to summary judgment because Kare has failed to establish reliance. During Vander"s deposition, she testified about her
knowledge of A&M"s mark ups:
Q. Did you ever have any conversations with A&M about whether A&M would charge a fee on top of whatever the third parties cost was for sourcing these items for you?
A. There was never a conversation. It was obvious.
Q. What was obvious?
A. That they would make a profit on it as well.
Q. Did you have any understanding as to what percentage profit A&M would make?
A. Not that I recall. Q. Did you have any percentage in your mind that you deemed reasonable?
A. No. We sourced it and received bids from several vendors so that was really the basis of the decision. (Frisch Decl. Ex. A, Vander Dep. 71:5-22.)
Vander was aware that A&M was marking up the prices. Nonetheless, she opted to have A&M perform the services. See Ideal Dairy Farms v. John Labatt Ltd., Civ. A. No. 92-2469, 1995 U.S. Dist. LEXIS 10310, at *21 (D.N.J. May 11, 1995) (concluding that the plaintiff could not establish a fraud claim because it knew it was overcharged), aff"d in part, rev"d in part on other grounds, 90 F.3d 737 (3d Cir. 1996). Moreover, Vander testified that A&M"s prices were comparable to the bids Kare received from other vendors, and that was the basis of her decision. (Frisch Decl. Ex. A, Vander Dep. 71:20-22.) She also stated that although she knew A&M and other vendors marked up their prices, her decision to use A&M was not based on the percentage of the mark up but rather on price, supply time and quality. (Id. at 75:14-22.) Additionally, Vander"s testimony that A&M"s prices were comparable to its competitors directly contradicts Kare"s argument that it would not have paid the invoice and it would have chosen another company to perform the service if it knew about the mark up. (Pl."s Opp"n Br. 28; Ravtiz Decl. ¶
5.) Thus, A&M is entitled to summary judgment on this claim.
For the reasons stated above, Kare"s Motion for Summary is GRANTED in part and DENIED in part, and A&M"s Cross-Motion for Summary Judgment is GRANTED.
Susan D. Wigenton, U.S.D.J.
Magistrate Judge Madeline C. Arleo
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Mister Negative (Martin Li) is a fictional comic book supervillain, appearing in books published by Marvel Comics, usually as an enemy of Spider-Man and the Punisher.The lung is the essential respiration organ in many air-breathing animals, including most tetrapods, a few fish and a few snails. In mammals and the more complex life ...2/20/2009 Gupta: The exact number of gram-negative-related infections or deaths is hard to pin down, because these infections are not reported routinely to the CDC.10/30/2013 A surprising force has helped industry defeat black lung benefits claims for ailing miners: Johns Hopkins University.A new short review of classic lung sounds includes both audio clips and interpretations made in the light of modern pulmonary acoustics. Modern4/24/2009 Readers Respond: What Symptoms Led to Your Diagnosis of Lung Cancer?, About.com Lung CancerWhy a blog? Because of the deadly toll of lung cancer, survivors who can stand up and talk about our experience are few. Survivors with stage IV lung cancer are rarer ...A Meditation Guide . For . Mahamudra . Peter Barth . Mahamudra Meditation Center. Petaluma, California, USA . Dedicated . to . Thrangu Rinpoche . and . Karma ...The Accentuate the Negative trope as used in popular culture. Most of us love a good grumble. It's cathartic to complain for a bit and get things off our …9/3/2014 He's Having Fun Blasting Away at Lung Cancer With a Five-Foot Rifle
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In Minamisanriku, Signs of Progress and Issues for the Future
It is still winter in Tohoku, but spring is fast approaching! On the third anniversary of the Great East Japan Earthquake and Tsunami there is still much work to be done. According to the Government of Japan there are still 267,000 displaced residents living in temporary housing. These residents will continue to need much support - community programs, livelihood assistance, and assistance transitioning to permanent housing. Peace Winds America has committed to undertaking programs that focus on these vulnerable residents still living in temporary houses. Because so many of these residents were in the fishing industry, support for this program will have a significant impact on this community.
Program Past and Future
With your support we have partnered with critical fishing cooperatives to provide equipment for members (rods, nets, hooks, paddles, and other specialized equipment). We have supported the cooperatives themselves, ensuring they remain vital to help their members. Together we have provided work and storage space for displaced fishing families in the form of sheds. Last update we touched on the completed oyster shield, which remains critical, and a projected LED lighting project which continues to move forward. We will continue to work with the fishing cooperatives and fishing families in the future, with an emphasis on helping Tohoku residents in temporary housing. We will complete the lighting program, making the port that much effective. And we will remain in contact with you, our donors.
Your Match Makes a Difference!
In honor of the 3rd anniversary of East Japan Earthquake and Tsunami, GlobalGiving is hosting a matching campaign for projects that work for recovery in Tohoku area. Today, your donations will be matched 100% by GlobalGiving until matchign funds last. To donate, click on "give now" button below.
GlobalGiving's 100% match is an exciting opportunity to renew our commitment to Tohoku. Together we can ensure that our long-term recovery programs remain in operation, helping the neediest. As always, thank you for your support and your generosity.
Project Reports on GlobalGiving are posted directly to globalgiving.org by Project Leaders as they are completed, generally every 3-4 months. To protect the integrity of these documents, GlobalGiving does not alter them; therefore you may find some language or formatting issues.
If you donate to this project or have donated to this project, you will get an e-mail when this project posts a report. You can also subscribe for reports via e-mail without donating.
We'll only email you new reports and updates about this project.


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Toyin Lawani shared lovely photos of her fiancé
Lord Triggs, on her page to mark Father's day.
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photos after the cut…
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Linda King
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- Legends of the Fall author Jim Harrison has died aged 78, says publishermirror.co.uk
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I agree with Ladybird - it probably won't kill it but it's going to look very odd
Yep, that's my instinct - sow just before going away.
Eurovision watching here is definitely done in a Post-modern ironic (ex art students) sort of way
Gorgeous. I hoe, but in a very targetted fashion and only weeds I recognise.
Some people just use multi-purpose compost in raised beds - it degrades very quickly
I'm in mid (ish) Norfolk and my tomatoes are in a little wood and perspex greenhouse against the east facing house wall. I wouldn't put them outside yet, but they're doing fine where they are.
They'll be planted out with no real protection at all when we get back from holiday towards the middle of June.
I use approx two thirds good top soil and one third well rotted manure in my raised beds. Maybe emptying and starting again would be a good idea
Some help re type of soil may be found here https://www.rhs.org.uk/advice/profile?pid=599
I'd do all three - first add it to your raised bed to improve the structure, then I'd mulch the beds and borders - the worms will dig it in for you
The BBC's Reality Check is checking the figures in the claims by both sides
It does feel chilly but the lowest temp last night was 6..9C so not too bad
As we're planning to be away for a week in early June, I've not sown my runner beans yet.
What do you think? Shall I sow them in pots indoors next week, or just before we go away?
There won't be anyone doing any watering while we're away (toms etc will be potted on then left in shady spot in OH's studio with capillary mat type set up - we've done it before and they were fine)


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Plus Two Chemistry Question Bank (Chapterwise)
Last updated on 19.11.2016: Previous question papers are a great way to revise and prepare for Higher secondary exams. This way you can find out what you already know and what you don't know. They also help you manage your time better and be familiar with the method and pattern used in the actual exam. Chapter wise previous questions of Second Year(Plus Two) chemistry, prepared by Anil Kumar,HSST,GHSS Ashtamudi published. Click on the below link to start downloading.


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Wall mount diminsions 8 1/2" W x 8 1/2" H
Ceiling mount diminsions 9 3/8" H
Adapts to the crossed-arm kit
The EOS support system with a square bar is intended to alleviate the problems posed by large installations.
Front view of the arm support bracket.
Since the EOS system is designed to cover such large areas, all the pieces composing the set have been made as small as possible to enhance the appearance of the installation.
A single set of EOS arms gives you 18 feet of width with a 12 foot projection. For longer extensions, the system is designed to incorporate as many sets of arms as needed until the desired width is achieved.
The EOS system is designed and manufactured by Corradi USA. It enables easy fitting of the awning mechanism, thus the entire awning system can be installed quickly and easily on a 40mm x 40mm square bar and it benefits from the arm adjustment system. The design of the EOS follows the same refined lines and special emphasis on concealing visible screws. Like all Corradi models, the EOS design can match well with any outdoor decor.


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by Andrew Hupert
She is a very friendly, open-minded, internationally-experienced Australian professional with a great attitude about her first business deal in China. I asked her about negotiating strategy and she was very confident – "I plan on treating Chinese exactly the same as I would anyone else. I am going to establish common ground…"
The search for common ground in China: Do not do it!
It is a nice idea, but there are 3 problems:
Common ground, otherwise known as the status quo, always favors one side. You say "common ground" or "international standards" in China and your local counterparties hear "Western advantages".
When you negotiate in China, do not come over looking for common ground. You are better off planning – and budgeting – for bridge building.


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Compared to the rest of the Minneapolis market, the Logan Park region has smaller rates, so you should have no trouble finding a great deal in this undervalued region.
In the last 90 days, 10 listings have been posted online, which means spaces are probably leasing quickly. You'll want to be prepared to make an offer immediately. There aren't many listings below 2,000 square feet posted, so finding a space for a small business might be tough.
Even though the median size is 3,800 sqft, there are still 0 leases below 2,000 sqft. Most buildings in this area are close to 2 floors. Most buildings in this region were built in 1930 and are Class B.
Not much of the real estate is used for commercial space, so it might be hard to find office space. Agriculture is the dominant industry in this area. Commute by car is the most popular way to get to work amongst Logan Park residents. Commuting close to 30 minutes a day is the norm for those who opt to reside in this part of town.
Trends and status of the commercial real estate market in Logan Park.
Market Report
Real time and historical data on commercial real estate listings in Logan Park.


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Channel: Reality Kings
Pornstars: Mia Scarlett


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Home-Style Turkey Pot Pies With Buttermilk Crust
It's just a myth that buttermilk is fattening. It's not made from butter but from the liquid left after the butter has been churned from the milk. The amount of buttermilk here accounts for only about 25 calories and a trace of fat per … Read More
Pumpkin and Sweet Potato Soup With Bacon Bits
Pumpkin flesh has a mild, sweet flavor. The smaller the pumpkin, the sweeter and more subtle it will be. Like all orange vegetables, pumpkins and sweet potatoes are very high in beta carotene. This luscious soup gives you a double … Read More


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Product Description
It's virtually impossible to talk about CeCe Winans without acknowledging her artistic influence on an entire genre and the groundbreaking acheivements she's accomplished over the past two decades. Blessed with one of the music industry's greatest voices, CeCe has crossed all stylistic, social and age barriers with her inspirational delivery and powerful music.
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Track Listing:
1. Hallelujah to the King (Intro)
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Item will be delivered by ikman
For sale by Direct Dealz MEMBER21 Nov 7:41 amColombo 3, Colombo
Original Xioami Mi Band 2 with HEART RATE PULSE
Mi Band 2 is a smart watch bracelet for you, especially for sports lovers!
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It comes with TPU adjustable wristband, giving you a skin-friendly, breathable feeling. When you sleep, it will monitor your sleep. It can also wake you up by vibrating gently.
Mi Band 2 record every moment staying with you. Just to live a healthy life with it!
Main Features:
- Bluetooth Synchronization
With Bluetooth 4.0, this smart watch is available for smartphones with Bluetooth functions.
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Just touch the circular button gently, the OLED screen will display current time, steps, heart rate, distances, calories, etc.
- Heart Rate Monitor
It can dynamic-static monitor your heart rate, provide data for you at any time.
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My Comments
Opinion: How To Colonize Mars Commented on: 7 weeks ago (October 19, 2016)
That is why logistics missions are to be first; then small crews to get things prepared for more people later.
Boeing Delays CST-100, Still Targets 2018 ISS Mission Commented on: 7 weeks ago (October 14, 2016)
at sea under chutes alone,
Dragon 2 can land
at sea under chutes alone,
at sea under chutes and thrusters,
not sure about at sea under thrusters alone,
on land under chutes alone,
on land...
Lockheed Considers Unmanned U-2 For Missile Defense Agency Laser Demo Commented on: 16 weeks ago (August 19, 2016)
Sounds like a job for an orbital or suborbital cruise platform.
Opinion: The Coming Satellite Revolution Commented on: 16 weeks ago (August 17, 2016)
"What remains much more questionable are SpaceX and LeoSat practices. Satellites of both companies will reenter within 20 years and fully burn down in the atmosphere but... "
SpaceX has...
SpaceX Sticks Another Landing Commented on: 16 weeks ago (August 17, 2016)
The JCSAT-14 landed stage, which reentered at a very high velocity after a GTO launch, has already done 3 full launch duration burns in 3 days at McGregor. This week it was placed on the stand...


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Procurement Innovation
Whether you're a supplier, a buyer, a specifier or a support services organisations WMVH has a range of solutions to help raise your profile and to enhance your role in the hospital build programme.
Welcome to the West Midlands Virtual Hospital
Your Gateway to Procurement Innovation, Supply Chain Opportunity and BIM Adoption
Manufacture, supply and sub-contract installation of Blinds, tracks, Curtains and Window film.
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The Powerstar and Virtue range of voltage optimisation and energy storage solutions are manufactured at our Sheffield head office. The company are renowned for innovation and excellence in manufacturing and engineering.
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We are a local stockist and supplier of high quality utility meters for gas, water, thermal energy, electricity, steam and oil. Brands include Itron, Elster, Kamstrup, Sensus, Common, Metrix etc. Additionally we supply a full range of quality building controls.
Tel: 0121 327 7771
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Tel: 01264 349300
Our company are providers of Security Industry Association (SIA) Licensed security personnel I
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We are a High Value Manufacturing company that design, manufacture and install facades systems to all sectors. We install fast track methods for Lightweight Steel Framing, Rainscreen Systems, architectual metal work.
Tel: 01922 494900


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Silver Gun Earrings courtesy of DirtRoadSouth on Etsy. I kind of want a pair for myself as well……
Giveaway is open worldwide. Leave one comment here to enter, for extra entries do any or all of the following;
1. Visit DirtRoadSouth and comment a favorite item here
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3. Post this contest on your blog
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Be sure to leave additional comments here for each extra entry to count.
Entries are accepted until May 23rd at MIDNIGHT PST and winner will be chosen at random. Good luck!
And the LashFood Giveaway Winner was Commenter #3 Jocelyne, congrats – please send me your mailing information!


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Once you have chosen to have your Civil Partnership Ceremony here in Gretna Green we will help you with your arrangements. On receipt of your payment to us we shall apply for the attendance of a registrar, on your behalf, to conduct your Civil Partnership Ceremony.
Civil Partnership Ceremony legal details
What happens next after the registrar has been confirmed? Once the Registration Office has confirmed that a registrar is available for your ceremony you should send the completed Marriage Notice Forms (CP10 Form), relevant documents such as birth certificates and their fee (no less than 29 clear days before the date of your wedding and no more than 3 months beforehand) to:
The Registration Office
Central Avenue
Dumfries and Galloway
What information should be included on the CP10 forms?:
- Section A - Place of Marriage: Famous Blacksmiths Shop, Gretna Green OR Smiths at Gretna Green
Can I book my registrar in advance? If you are making a booking more than three months in advance there is a £130.00 attendance fee to pay to Gretna Registrars with your final balance of fees when you submit your Marriage Notice Forms.
How do I get my Marriage Schedule? You don't need to worry as the registrar will bring your Marriage Schedule with them on your wedding day.
2016 Registrars Fees
(payable to the Gretna Registrars direct with your CP10 Form)
£275.00: Weekdays
£359.00: Saturday
£402.00: Sundays & Public Holidays
This includes the fee for your Marriage Schedule
Call our award winning wedding team to discuss your requirements +44 1461 336001.


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Hi. I'm Sean O'Leary, I believe in purpose, for living, for business, for health.
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Edit Article
How to Learn Boosting (NAB) from Observation
Two Methods:NABStatus MethodNew Article Boost Log MethodCommunity Q&A
You are boosting articles, but not quite sure if you are doing it correctly. Try looking at other boosters' edits and see if you can learn from them.
Method 1
NABStatus Method
1Click on the NABStatus page.
2Click on the number beside the name of the person that you want to check. The link will take you to a page of their boost edits.
3Look at the page of their edits. You will see at least fifty of their boosts (assuming they have done 50). Click on the link of an article you want to check.
4Click on the History tab of the article. From there, click on Last.
5Look at the difference between the two versions.
6Do this with more than one article so that you can better understand their methods.
Method 2
New Article Boost Log Method
1Go to the New Article Boost log.
2Type in a Booster's name in the "User" field.
3Check out the articles that the user boosted. Look at the Booster's edits, by clicking on the new article that the user marked as patrolled and looking at the edit history.
Community Q&A
Ask a Question
200 characters leftSubmit
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Mix white vinegar 50 - 50 with water and put in a spray bottle. Spray it on generously, let saturate for about 30 seconds and use a microfiber cloth to polish up those windows. It will amaze you.
By Marilyn from Mansfield, TX
I have been using this "recipe" for years. Just like you said, it works great; also very inexpensive and environmentally safe. I just purchased some microfiber cloths -- amazing how well they work. Let the sunshine in.........
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August 19, 2008
ALLSTATE INSURANCE COMPANY A/S/O SHIRLEY BASTIANINI, PLAINTIFF,v.HAMILTON BEACH/PROCTOR-SILEX, INC. DEFENDANT.
Electronic Filing
Plaintiff commenced this product liability action seeking damages it sustained from paying an insurance claim arising from a residential fire. The fire allegedly started in a toaster manufactured by defendant. Plaintiff seeks to establish that a defect in the toaster caused the fire. Presently before the court is defendant's motion for summary judgment, which is predicated on the court excluding the testimony of plaintiff's key expert witness on liability and the likely cause of the fire. For the reasons set forth below, the motion will be denied.
Federal Rule of Civil Procedure 56 (c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. On September 11, 2004, at 11:20 p.m., Shirley Bastianini decided to toast two strawberry Kellogg's Pop-Tarts in a toaster manufactured by defendant. The toaster was situated on the kitchen counter of her residence. She routinely had used the toaster to cook Pop-Tarts and other toaster pastries for a number of years without experiencing an abnormal operation or mechanical problem. During the toasting cycle Ms. Bastianini heard her 18-month old granddaughter begin to cry, and she left the kitchen to tend to the child. She returned to the kitchen several minutes later with her granddaughter in her arms. When she focused on the toaster, she saw flames coming out of the bread slots, hitting the bottom of the cabinets directly above, and curling around the edges of the cabinet. She believed that pulling the plug would not have helped, so she exited the house with her granddaughter and called 911.
It is undisputed that the toaster was a Hamilton Beach/Proctor-Silex ("HBPS") T19 Model 24415 ("the subject toaster"). This particular toaster style and model number has not been produced by HBPS for at least four years.
Plaintiff investigated the fire pursuant to a claim under the Bastianini's homeowner's policy and ultimately determined that it resulted in property damage valued at $168,161.76. Plaintiff paid the claim and commenced this products liability action pursuant to its subrogation rights.
Plaintiff hired an electrical engineering consultant, Michael Wald ("Wald") of IEI Consulting, to assist in determining the cause of the fire. IEI Consulting had conducted investigations in at least six other fires that were determined to be caused by HBPS toasters, and more specifically, the failure of the toasters' end-of-cycle mechanism to trigger the carriage release. Of these, at least three had occurred in toasters in which the end-of-cycle components were identical to those in the subject toaster. Wald attempted to acquire a T19 Model 24415 for testing, but was unable to obtain one from defendant, the internet, retail outlets and other potential sources.
After reviewing the pertinent depositions, incident reports and discovery responses, and examining the actual subject toaster, Wald determined that the cause of the fire was the failure of the toaster's end-of-cycle mechanism to actuate the carriage release. Wald described the mechanical operation of the toaster as follows:
This design uses a bi-metal strip mounted vertically inside of the toasting chamber which bends as it becomes heated during the toasting cycle. The movement of the strip pushed on a small rod [push rod] located in the bottom of the chamber which travels [laterally] through a small cutout in the front plate of the toaster (bulkhead) where it pushes the moveable contact of a momentary contact switch. When the switch is pushed closed, energy is delivered to a solenoid which activates the carriage release. It is the bending of the strip, the movement of the rod, and the closing of the switch which constitutes the end of cycle mechanism.
Wald Expert Report (Doc. No. 38-3) at 2. Defendant does not dispute this description.
Wald posited that the design defect inherent in the T19 is its susceptibility to the accumulation of frosting or other sticky debris on the push rod which, in turn, can and did hinder its lateral movement through the bulkhead. When the push rod fails to trigger the contact switch, the heating elements continue to emit heat indefinitely. After several minutes the contents in the toaster erupt into flame. Wald based this assessment in part on testing he conducted on a HBPS T17 Model 22415 toaster in the case of Seeley v. Hamilton Beach/Proctor-Silex, 349 F.Supp.2d 381 (N.D.N.Y. 2004).
In Seeley, Wald conducted two rounds of testing on a T17 22415 Model toaster in order to determine whether a presumed defect had caused a Pop Tart to combust and set fire to the Seeley home. In the initial phase of testing, Wald toasted Pop Tarts at various settings, mostly medium to high. After 12 to 20 cycles, he observed the buildup of icing throughout the inner workings of the toaster chamber, including an area close to where the push rod passes through the bulkhead. Based on this observation he developed the hypothesis that debris such as frosting on the push rod could impede the movement of the rod through the bulkead and delay the end-of-cycle mechanism long enough to ignite a Pop-Tart.
In the second phase of testing, he placed frosting on the push rod at the area where it passes through the bulkhead and activated the toaster at a medium setting. The end-of-cycle mechanism was delayed and a fire resulted within 12 minutes. Both the initial stage -showing signs of frosting accumulation - and the second stage - demonstrating delay and combustion - were documented on videotape.
In conducting the testing in Seeley, Wald indicates that he followed the "scientific method," as detailed and endorsed by chapter 2 of the National Fire Protection Association's NFPA 921, Guidelines for Fire and Explosion Investigations. Affidavit of Michael Wald, (Doc. No. 47-11) at ¶¶ 21-23. The scientific method prescribes the following procedure for forensic fire investigation: "Recognize the Need, Define the Problem, Collect Data, Analyze the Data, Develop a Hypothesis, Test the Hypothesis, and Select Final Hypothesis." Id.
Wald is prepared to opine that the posited design defect he believes caused the Seeley fire existed in the T19 Model and caused the Bastianini fire. He will further posit that alternative designs for end-of-cycle activation were in widespread use at the time the T19 was manufactured, could have been easily employed by HBPS and would have prevented the fire from occurring. These include placing the push rod at the top of the toaster chamber, using a shield to protect the push rod from buildup, employing solid state circuitry and/or relocating the contact switch, thereby eliminating the need for a push rod altogether.
Defendant contends that Wald's testimony should be excluded for a variety of reasons. Chief among these are that he did not employ a reliable methodology and that there were disqualifying differences between the toaster Wald tested and the subject toaster, thereby destroying the fit between the conclusions drawn from his prior testing and the factual issues in this case. And without Wald's testimony, defendant is entitled to summary judgment. Plaintiff contends that Wald's testimony clearly is admissible and defendant's wholesale attack on it is at the very least fraught with inaccuracies and misleading statements.
The Daubert Inquiry
In the seminal case of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court assigned to the trial court the "gatekeeper" function of precluding expert testimony that is unreliable, irrelevant or unhelpful to the jury. Daubert, 509 U.S. at 597. In order to receive expert testimony, the expert must be qualified, the testimony must be based on reliable and scientifically valid methodology -- i.e., based on "good grounds" -- and it must assist the trier of fact to understand the evidence or resolve factual issues -- i.e., it is relevant or "fits." Daubert, 509 U.S. at 589-91. Although this gatekeeping function was initially limited to scientific expert testimony, it subsequently was extended to all expert testimony in Khumo Tire Co. v. Carmichael, 526 U.S. 137 (1999).
The "Daubert inquiry" is a flexible one. The Supreme Court identified five non-exclusive factors to assist the trial court in its evaluation: "1) can the theory or technique in question be tested; 2) has the theory or technique been subject to peer review and publication; 3) what is the known or potential rate of error for a particular technique; 4) are there standards that exist and are maintained that control the technique's operation; and 5) has the theory or technique been 'generally accepted.'" Wicker v. Consolidated Rail Corp., 371 F. Supp.2d 702 (W.D. Pa. 2005) (quoting Daubert, 509 U.S. at 593-94). In In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3rd Cir. 1994) (Paoli III), the Third Circuit articulated three additional factors for consideration: "the degree to which the expert testifying is qualified, the relationship of a technique to 'more established modes of scientific analysis,' and the 'non-judicial uses to which the scientific technique are put.'" Paoli III, at 742 (quoting U.S. v. Downing, 753 F.2d 1224, 1238-39 (3d Cir. 1985)). The reliability of an expert's principles and methodology serve as the focus, not the expert's conclusions. Wicker, 371 F. Supp.2d at 708.
The Daubert factors do not constitute a definitive checklist. Khumo, 526 at 150. Their application turns on the factual matrix before the court. Id. "It might not be surprising in a particular case, for example, that a claim made by a scientific witness has never been the subject of peer review, for the particular application at issue may never previously have interested any scientist." Khumo, 526 at 151. In other words, "[w]hether Daubert's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Khumo, 526 at 153.
The Daubert Courtrecognized that jurors will have the capacity to distinguish "junk science" from the real thing. Accordingly, where an expert is expected to deliver "shaky" testimony, admission of the testimony may still be proper because "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking" such evidence. Daubert, 509 U.S. at 596.
In Paoli III, the court elaborated on Daubert's notion of reliability. "The evidentiary requirement of reliability is lower than the merits standard of correctness." Paoli III, 35 F.3d at 744. Further, "a court may determine that 'good grounds' exist for the expert opinion to be offered, even though the judge may believe 'better grounds' exist for an alternate conclusion or that a somewhat flawed methodology, if fixed, would lead to a different conclusion." Wicker, 371 F. Supp.2d at 711 (citing Paoli III at 744); accord Heller v. Shaw Industries, Inc., 167 F.3d 146, 152-53 (3d Cir. 1999).
The "fit" element has been described as encompassing "the proffered connection between the scientific research or test result to be presented and particular disputed factual issues in the case." Downing, 753 F.2d at 1237. In other words, the scientific or other specialized knowledge must be logically connected to the questions at issue and must assist the trier of fact to understand the evidence or determine an issue of fact. Paoli III, 35 F.3d at 742-43. In contrast, expert testimony based on assumptions that lack any factual support in the record properly are excluded. Stecyk v. Bell Helicopter Textron, Inc., 295 F.3d 408, 414 (3rd Cir. 2002).
While the standard for fitness is higher than bare relevance, it is not that high. Paoli III, 35 F.3d at 745. Thus, in In re Paoli R.R. Yard PCB Litigation, 916 F.2d 829 (3rd Cir. 1990) (Paoli I), "testimony that PCBs [polychlorinated biphenyls] cause liver cancer was admissible even though no plaintiff suffered from such cancer because an affidavit supported the notion that 'increased risk of liver cancer was probative of increased risk of other forms of cancer.'" Wicker, 371 F. Supp.2d at 711 (quoting Paoli I). In other words, "[a] judge frequently should find an expert's methodology helpful, and the fit requirement satisfied, even when the judge thinks that the expert's technique has flaws sufficient to render the conclusions inaccurate." Paoli III at 744-45.
Turning to the instant matter, there can be little doubt that Wald is qualified to render opinions regarding the operation of the components of the toaster and the cause of the fire. Indeed, defendant does not contest his qualifications.
On balance, the reliability factors favor admission of Wald's expert testimony. First, in Seeley Wald conducted testing and developed a hypothesis: namely, that frosting on the push rod could impede its movement and cause a fire. He developed this hypothesis after testing for and observing the accumulation of frosting "in the area" where the push rod passes through the bulkhead. Affidavit of Michael Wald at ¶ 10. Thus, his theory was not the product of unsupported speculation.*fn1
Second, although Wald's particular technique had not been subject to peer review, it is based on a methodology that is sufficiently reliable for the purposes of admissibility. A strict application of each and every Daubert factor is not necessary. As discussed above, the reliability of an expert's methods are to be judged according to the particular circumstances of each case. No single factor is always pertinent. The general methodological framework under which Wald performed his tests, the "scientific method" reflected in NFPA 921, has been peer reviewed and widely accepted in forensic fire investigation. Affidavit of Wald at ¶ 21. This is more than necessary to clear the bar for admissibility.*fn2
Third, Wald's particular technique sufficiently complied with the standards of control requirement. Wald's approach was to cook Pop Tarts in the T17 Model 22415 toaster in successive trial runs, mostly at a heightened heat setting and then, based upon the buildup of icing residue - i.e., his "good grounds" - he developed and tested a theory that frosting was capable of impeding the lateral movement of the push rod to the point where the delay in the end-of-cycle mechanism would result in food combustion. The step-by-step procedure of the method outlined in NFPA 921 provided the appropriate "standards controlling the technique's operation." And as plaintiff alleges and Wald affirms in his affidavit, the method is "[t]he pre-eminent and most widely accepted" methodology used in forensic fire investigation. Affidavit of Wald at ¶ 21; See also Booth v. Black & Decker, Inc., 166 F. Supp.2d 215, 220 (E.D. Pa. 2001) (noting that the methodology provided by NFPA 921 is accepted as reliable given its "comprehensive and detailed treatment of fire investigations."). Defendant fails to counter this assertion.
The three additional factors highlight by the Third Circuit also favor receipt of Wald's testimony. First, Wald is highly qualified. Wald possesses a bachelor of science degree in electrical engineering from Cornell University and earned a masters of science degree at George Washington University. See Wald Seeley Deposition, (Doc. No. 47-8) at 9-10. He is a current member of the National Fire Protection Association and has been a member of the Institute for Electrical and Electronics Engineers. Id. at 10. He has been "investigating the causes of fires, explosions, and personal injury accidents" involving electrical equipment since 1990. Id. at 12. Second, the technique employed by Wald was not only related to, but was specifically prescribed by an "established mode of scientific analysis." Third, it is clear that NFPA 921 has a wide-based and independent application in the field of forensic fire investigation and was not concocted for the purpose of this suit.
Although the expert testimony proffered by plaintiff does not meet every Daubert factor, it cannot be said that Wald does not have "good grounds" for his expert opinion. As articulated in Seeley, "Wald performed a variety of tests that are appropriate . . . and his opinions 'are supported by rational explanations which reasonable men might accept, and none of his methods strike the court as novel or extreme.'" Seeley, 349 F. Supp.2d at 386. These assessments are equally applicable in the instance matter.
Wald's methods and conclusions also have an appropriate fit to the disputed issue. Generally speaking, plaintiff claims that defendant's T19 toaster was defectively designed and, as a result, caused a residential fire. Defendant denies this. Clearly, Wald's opinion that an unguarded push rod can be and was compromised by a buildup of melted frosting, causing a delay in the end-of-cycle mechanism allowing food products to ignite, is directly on point. Should a jury accept Wald's theory, it would have reasonable grounds to find both a design defect and causation.
That Wald relies upon the testing of another HBPS toaster from another case is of no moment given the circumstances. It is beyond preadventure that testing on a product that is substantially similar in all material aspects is an accepted approach that produces relevant results. See e.g. Booth, 166 F. Supp.2d at 219 (observing that the expert "never attempted to [test his cause and effect hypothesis] with a similar or identical [product], something that he conceded could have been done.") (emphasis added).
The T17 Wald experimented on in Seeley is substantially similar to the T19 in all material aspects. Although the T19 is equipped with an automatic shut-off system and differs slightly in its wattage and air flow, defendant fails to explain how these distinctions impact the end-of-cycle mechanism. Indeed, a review of defendant's expert testimony suggests that operation of the automatic shut off depends upon the successful and uninhibited operation of the push rod. See Datovech Expert Deposition, (Doc. No. 47-10) at 132-133. Because the particular components asserted to be defective are identical, Wald's opinions, though based on the testing of a T17 toaster, will nevertheless assist the jury in determining the material facts in dispute.
Similarly, defendant's substantial reliance on Oddi v. Ford Motor Co., 234 F.3d 136 (3rd Cir. 2000) is misplaced. Defendant cites Oddi for the proposition that Wald should have tested his proposed alternative designs. The plaintiff in Oddi, however, pursued his products liability action under a theory of "crashworthiness," which is a distinct subset of products liability jurisprudence. Oddi, 234 F.3d at 142-43. In order to establish a valid crashworthiness claim, a plaintiff must demonstrate that a safe and practical alternative design existed. Oddi, 234 F.3d at 143. Thus, in Oddi, the expert's testimony was barred due to his failure to test, and therefore know, whether his suggested alternatives would have cured the alleged defect. Oddi, 234 F.3d at 158.
The instant matter is not founded on a theory of crashworthiness. Furthermore, as Judge Lancaster recognized in Ahner v. Black Bros. Co., Inc., - F. Supp.2d -, 2008 WL 2880382 (W.D. Pa. May 11, 2008), admissibility in a products design case ordinarily is not precluded by an expert's failure "either to offer proposed alternatives or to test the effectiveness of those alternatives." Id. at 2 (citing Pineda v. Ford Motor Co., 520 F.3d 237 (3rd Cir. 2008) (engineer with a firm grasp of the force and stress required to dislocate glass need not have tested alternative warnings in order to deliver opinion that service manual provided unreliable instructions)).
Moreover, Wald has stated that a protective shield covering the push rod would cure the alleged defect. Plaintiff has provided a visual illustration of this straightforward measure. See Doc. No. 47-14. He also opines that relocating the contact switch to an area immediately near or adjacent to the bimetal strip would eliminate the need for a push rod altogether, an approach that was utilized by HBPS's competitors at the time the T19 was manufactured. Solid state circuitry, also existing in other toasters, likewise would have obviated the need for the bimetal system. Given Wald's qualifications, the testing he employed, the observations he made, and his familiarity with alternative measures that were either in use or could have been easily employed, his testimony in support of these proposed alternatives cannot be said to be unreliable or lacking in evidentiary support. Consequently, Oddi does not bar his testimony regarding alternative designs.
Defendant's attempt to derail Wald's testimony by accusing him of departing from the scientific method by "artificially" placing frosting on the push rod at the area where it passes through the bulkhead, even though he did not observe frosting accumulation at this precise area during his initial trial runs, also is unavailing. See Defendant's Reply Brief at 5-7. Wald observed the buildup of icing close to where the push rod passes through the bulkhead after a mere 12 to 20 toasting cycles. He thus had good reason to theorize that after weeks, months or years of use, frosting and other debris would accumulate at that location.
That Wald accelerated the ultimate incremental effects from his prior testing is not a basis for exclusion. Even assuming that one can perceive a difference between the natural buildup of debris and Wald's placing of frosting directly on the rod in one fell swoop, such differences are a proper subject for cross-examination, not exclusion. Compare Wicker, 371 F. Supp.2d at 711 (an altered methodology or even "a flaw in methodology does not automatically disqualify an expert opinion; the flaw must be of such substance as to create a lack of 'good grounds' for the expert's conclusions.") (citing Paoli III, 35 F.3d at 746). Wald's experiment then tested whether this condition would render the design of the product defective. Because his theory is able to "withstand an examination by deductive reasoning," and his testing provided empirical verification of his hypothesis, his methodology is sufficiently sound.
Plaintiff has met the foundational support required by Daubert. Given Wald's educational background and years of experience, he is well qualified to render his opinion. Furthermore, plaintiff has demonstrated that the methodology he employed was sufficiently reliable. Lastly, his conclusions speak directly to the critical issues in this case: whether there was a defect in the design of defendant's T19 toaster, and whether it caused the Bastianini fire. Therefore, the court will admit the expert testimony proffered by plaintiff and defendant's motion for summary judgment must be denied.
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text:
Baked Potato Soup
Total Time
1hr 30mins
Prep 1 hr
Cook 30 mins
Ingredients Nutrition
- 1 cup celery, sliced
- 3⁄4 cup chopped onion
- 2 tablespoons butter
- 2 tablespoons all-purpose flour
- 2 cups half-and-half
- 1 tablespoon chopped fresh parsley
- 1 chicken bouillon cube
- 1⁄2 teaspoon salt
- 1⁄4 teaspoon pepper
- 4 large baking potatoes, baked and cubed
- Bake potatoes and cube them.
- In a large saucepan, saute the celery and onion in butter for 8 to 10 minutes until tender.
- Blend the flour with 1/4 cup of the half and half.
- Add to celery mixture.
- Mix well.
- Add 1/2 cup of water, parsley, bouillon, salt and pepper.
- Simmer until heated through.
- Do not boil.
- Stir in potatoes.
- Add remaining half and half and heat throughly without boiling.
- Serve with your choice of garnishes: Grated cheddar cheese, sour cream, chopped chives or bacon bits.
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My kids loved this recipe especially topping it with shredded cheese and real bacon bits. It was an easy recipe to make, perfect for a cold day. And there wasn't a ton of it leftover to fuss with. Thanks for posting!
Easy recipe,but had no flavor,I followed the recipe exactly I added another bouillion cube and still was very bland.


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#190 - tailsx**tailsx rolled a random image posted in comment #111 at Throne of games ** mfw those guys are fappin to the dead
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