## Facts

- Albert W. Ebenhoech worked as chief chemical operator at Solutia, Inc., responsible for unloading railroad tank cars delivering hazardous chemicals.
- While on top of a tank car supplied/shipped by Koppers Industries, Inc., Ebenhoech slipped and fell about 15 feet, suffering serious leg injuries.
- Ebenhoech alleged Koppers spilled hazardous chemical on the exterior of the tank car and failed to clean it before delivery, leaving a dangerously slippery residue.
- Solutia prepared an internal “unusual incident report” after the accident that included a chronology and an evaluative conclusion that the primary cause was Ebenhoech working without fall protection.
- Plaintiffs sued Koppers asserting, among other theories, strict products liability; Gail Ebenhoech asserted a per quod claim.
- Before trial, the court decided multiple motions concerning the viability of the products-liability theory and the admissibility of the incident report, expert opinions, and evidence of Ebenhoech’s conduct.

## Issues

1. Whether New Jersey products-liability law permits a manufacturing-defect claim where hazardous chemical residue on the exterior of a delivered tank car allegedly caused injury to a foreseeable worker unloading the chemical.
2. Whether Solutia’s “unusual incident report” is admissible under the business-records exception or is inadmissible hearsay due to its evaluative causation conclusions and context of preparation.
3. Whether plaintiffs’ expert may offer opinions that amount to ultimate legal conclusions on strict liability under Fed. R. Evid. 702.
4. Whether evidence of Ebenhoech’s conduct (including alleged failure to use fall protection) is admissible in a strict products-liability case, and what limits apply under New Jersey law.
5. Whether the products-liability claim and related damages claims should be dismissed or struck before trial for failure to state a cognizable theory.

## Decision

- The court denied Koppers’s motion to strike the products-liability claim, holding that a tank car delivered with hazardous chemical on its exterior may be alleged to have a manufacturing defect under New Jersey law.
- The court granted plaintiffs’ motion to exclude Solutia’s unusual incident report as inadmissible hearsay.
- The court granted in part Koppers’s motion to preclude plaintiffs’ expert by excluding the expert’s “strict liability” opinion to the extent it constituted a legal conclusion.
- The court granted Koppers’s motion to admit evidence of Ebenhoech’s conduct, subject to restrictions on how such evidence could be used at trial.
- The court denied Koppers’s motion to dismiss plaintiffs’ cause of action and damages claims to the extent premised on the viable products-liability theory, leaving factual disputes for the trier of fact.

## Legal Principles

- Under New Jersey products-liability law, a manufacturing defect may be pleaded where a product, as delivered, deviates from its intended safe condition due to hazardous contamination on its exterior that creates an unreasonably dangerous condition for foreseeable users.
- A worker required to access the top of a tank car to unload its contents may be a foreseeable user for purposes of defect and causation analysis.
- Internal incident reports containing evaluative conclusions about causation may be excluded as hearsay when they do not satisfy the reliability requirements of the business-records exception.
- Expert testimony must assist the trier of fact on technical matters and may not consist of ultimate legal conclusions about strict liability.
- In strict products-liability actions, evidence of a plaintiff’s conduct may be admissible for limited purposes (such as allocation of fault or damages), but courts may restrict its use to prevent confusion between defect-based liability and negligence-based blame.

## Conclusion

The court permitted plaintiffs to proceed on a New Jersey manufacturing-defect theory based on hazardous chemical residue allegedly left on the exterior of a delivered tank car, while setting pretrial evidentiary boundaries by excluding an internal incident report as hearsay, limiting expert opinions that stated legal conclusions, and admitting evidence of the plaintiff’s conduct only under restricted use.


Ebenhoech v. Koppers Indus., Inc., 239 F. Supp. 2d 455 (D.N.J. 2002)