perform the purpose for which you bought it no the claim is that there were specific representations with respect to certain features of this problem is that the complaint said the complaint has certainly has representation we believe with specificity with respect but there is ripe for something something under it looked to me like you know what we call your basically was the flow back the this refer to that was certainly referred to in the complaint yes and then when you got to summary judgment there were other things that your worst i mean we know that under the product liability act there is an exception for expressed misrepresentations and so you had six different things at least it appears that they were added that may relate to misrepresentation but wouldn't have to smoke wouldn't a better thing to do have been to attempt to amend the complaint but i do think that the complaint if you read it fairly does have specific representations that relate to alarm that relate to integration in paragraph twenty three for instance of the so we would we would rely on the answers yes we would rely with respect to the on alarms the complaint alleges that there were misrepresentations the at the system would comply with n f p a sixty nine and also that  incorporation of seventy two and where is there any specificity as to you an issue of why the building of the alarm given the numerous issues that are covered under sixty nine so it other than just saying that this system was represented to comply was going to be a sixty nine and that on on on that the control panel would have various functions that were represented to to have protective  properties there wasn't anything specific saying audibility that the alarm was going to be represented by auto in the complex that was developed in discovery and that the defendant had notice of it it was part of the expert the only claim we alleged was a consumer product and it's in your complaint absolutely there is no claim under the product liability act alleging our complaint we only pursued a consumer product and this is a better problem in that at a minimum you argue one of the things that to third party is that your losses then can be covered and i think i'd like to explore that a little bit because the terms of the statute itself define harm to me not only personal physical injury deriving from personal physical injury the statute refers to loss deriving from personal physical injury or or property damage to me not to somebody else and if you look at deem the suffered by a plaintive but not as a direct result of harm to the plaintiff person or property and gives two examples instead one in section d and one in the illustration in the first example a building is destroyed by by faulty product the employees stop going to a neighborhood restaurant the restaurant suffers economic loss the restatements of that restaurant cannot sue for products under tort because they would suffer then harm because there is no physical damage or injury to then they have only suffered economic loss to the physical damage to somebody else we have property damage if you can talk about that what loss is derived from that but we also have the new jersey supreme court addressing in the lead s public right and the education costs if that that went along with that as well as that their medical costs what why isn't that the new jersey supreme court as they described i the harms that printed see did indicate in that action has quote addressed in the context of a product liability claim and getting a definition of physical damage to property personal physical illness or injury so i think there's there's a couple losses are purely economic loss there was also some suggestion i think in that case that the municipality may have suffered their own their own damages in some of their own build ups but i just don't think that that issue was fully developed in the  the alarm did not have the required level of audibility that was represented in the various is did not perform the way you were told it would it was misrepresented the nature of the mine was misrepresented correct in the district court said yes it did before and it did make a scene as it was supposed to wrap up its route that response the problem with that responses is the district court evaluated the evidence and made credibility determinations with respect that caused the loss to to us absolutely and what it what the different court did is it looked at our experts by the way who were one of the electrical engineer to certify fired explosion expert one of the chemical engineer and certify fire arson investigator who sits on the technical committee that writes that advises on standards including the n f p a at issue in this case both of those experts one of them did not ability study and determined that in four locations right near this the control panel that the relative sound emitted by the p s o alone which was represented to be an audible alarm that was going to sound the relative sound was less than five decibels i four different locations and these two experts said that that would not comply with the standards one of them one of those experts who helps to run up the st that depend on the incorporation of i have a seventy two not entirely not entirely because there's there's there's there's other bases other than just the incorporation of seventy two and sixty nine there's at the f m standards fifty seven hundred there's the fact that fight representatives themselves said that the purpose of the piece the alarm was to alert people in the immediate area so that they could hear hear it and essentially the opinion of these experts is that this but are also your your own experts dr myers talks about i would be continuous tone being less easily recognized in intermittent tones which sounds very much like a design defect type of is sort of the words to a fuse box and that actually vitiated the f m compliance of the of the of the product which was a representation made to someone that induced them to to purchase the product was one of the reputation that was important to them so so again that related to a representation that was made that was untrue let's stick with the audibility where representation for the moment what why isn't it illegal question your dear saying that the district court was making credibility terminations about experts but on the basic question of whether it needed to have the sound level of a system why the built in mind fire alarm in other words whether integrated incorporated seventy the district were pushed out is a question of law looking at it the language of the of the of a standard the context of it and went through a pretty in depth analysis about why you would make no sense given language in context to treated as you cooperate in a building wide eyed ability standard why isn't going to legal question and why isn't it i'm right on the merits per call the experts don't say this is a building wide audibility standard what the experts said is that there should have been heard in the immediate vicinity of the control panel and there's testimony that that some of the injured workers walked right by the alarm to go fight the fire in the in the in the moments after the fight system was activated book before the explosion  so they don't suggest that the peace or war should have been alarm for the entire building they do there are different representations made that that the control panel would integrated into the fire alarm system but that's a different representation that was that was also one trip with respect to the auto building aspect the reason why it's a fact question is because number one it was represented that was going to be audible in numerous different ways that we outline in our proof number two we have experts in the field who testified that we know what ought to billet is standards mean one of in fact one of the standards is incorporated by seventy two hundred seventy two hundred i believe it was but there's other standards here and when somebody sa goes off their spring minutes between the time of the alarm and this is taken from data right from the flight system there's three minutes between the time that the alarm goes off and the explosion occurs and it and that's that's central to our causation argument with respect to your mars is that the employees were taught and trained by sun when you are in the warm you exit the building when you see a small fire we're trying to fight there were lots of small fires in this facility and employees were trying to get a fire extinguisher and put it out before it became a larger problem the point of having to an audible a lot and you know is that employees knew to get out of the building  and why isn't that a classic products liability claim the m which goes to look at the right that the essential nature of the claim if the claim is this product was supposed to be an audible product that was the nature of it that was the purpose of this thing was supposed to serve and it failed it didn't live up to the industry standard why isn't that can say design your manufacturing defect that falls squarely under the peeling so so the first response is that the essential nature test is is a subsidy argument and would only come into play if we suffered harm as defined by the statute again our position is that five million dollars of our losses are not could not go under the occurred all of the cost that we had to do to divert production during the closure of our facility because of the c s b investigation all of that was undertaken because of the workers injuries not because of the two hundred eighty six thousand dollars that we had to do to closely in a residential area i what what what is your your your basis for saying that there would not have been a chemical safety board investigation where there was property damage and release of chemicals into that environment there wasn't any release chemicals outside this was all this was all  l but that everything big point if there was if this was a noxious fumes case instead of an explosion and none of our property was was damaged we would it would be the same situation here back that and let's say seventy workers were injured our losses would be purely economic in responding to the injury of somebody else if this if we had never suffered any property damage here we would still suffer the economic losses due to the injury of these of these damaged economic loss that is not derived from a harm and a p l m harm a plaintiff is permitted to pursue a contract based or fraud based claim for those purely economic losses that is that all you have left feeling you then would be entitled to consequential damages compensatory damages that the that flowed from those claims right i believe that under dean in the restatement we would not have appealing claim for for one hundred five million dollars of our disagrees with that then then he only would have been the right remedy but i don't think i don't think after diem and if you read the restatement i don't see how that that our our losses which don't derive from our own injury can be considered pilate harmand under the definition and i will point out just this past friday that the state court with which of the injured worker suit allowed to go to trial at breach of of warranty claims as third party beneficiaries of the contract between us and file saying that there are material issues that require a trial with respect to some of the same representations that are issue or that are an issue here including all the whole laws and so the state court has found a fact issue with respect to some of the same issues on a breach of warranty claim which is not appeal a claim that we assert here and that we were not permitted to go to or to have a rigid warranty claim that was made directly in a particular case where it was made directly yes just like r c if they claim here i mean it looks to me i mean like you had initially what i call the blow back to reclaim that you bought a system that was to deal with dust and it was to suppress any possible problem that would ha could happen from the dust in the environment and it didn't work that sounds like a prop that sounds like a product liability claim then you come in that it looks like a i keep coming back why didn't you just you wouldn't be here today if you simply said can we have meant under rule fifteen again it comes down to economic laws and at least seven other we're going to why didn't you i mean epic there's an economic loss you're just being here today when you didn't have to be here today why didn't you just move to amend to add the other representations right because we felt that they were that they were fairly put in our complaint that we had survived two motions to dismiss the other side is making claims that maybe not so why not just take obviate the whole problem say it to the extent they don't get it we move to a minute again your honor i believe  that the court has the power to conform the pleadings to to the evidence at all times you're not answering my question why didn't you as a matter of just tactic say i'm going to take this arrow out of the quiver and amend the complaint yeah  that's the wrong perception i think if you look at the complaint it says seven times maybe the more perception but why allow the other side to make the argument that these are new claims i can only say that that the they had survived two other motions to dismiss they thought the pleading issue was behind them and they were dealing with the discovery the expert reports and the factual information on a dispositive motion that that they weren't even dealing with with ninety issues at that point party whereas your response is to whether we should certify that or have responses that there's clear wall already established by new jersey and and followed by the federal court that doesn't it all show any requirement that term product liability actually is defined in the statute that is defined by reference to harm which has its own definition and so is it your position that that the requirement of personal physical injury five is four or perhaps subsection d the other losses that that is satisfy the end of the terms of the statute by injuries to third parties an economic loss that derives from injuries to to third parties for that's what i was just about to answer by saying this there are so there are relevant undisputed facts which you have all walked toward in asking questions of this case that need to be restated first of all the damages in this case include property damage there clearly include damage to this room and if i could just tell you for a moment you're dealing with a three story structure most of which inside the room has to do with mixing of the the chemical dust so it's been in that room where this people gratian occur that the fire department came in that the pipes were destroyed and cetera but that was all sun property and that was all sons claim for damage in that room the cleanup cost and everything that went along with it so this is not a case at all where some has not had pursued to the statute physical damage to property they absolutely have the other portion of this that is  needs to be stated as a relevant and undisputed fact is the quitman in the property that we sold them was damaged it's not part of their claim that this was destroyed we're not in this situation as it were the case despite the motion to dismiss despite anything that came out during discovery but there seems to be that that we can't we're actually dealing with different categories of harm here and there there are crimes that are consequential to  property damage alone but those are those are clearly did minimize the harm that they're seeking to recruit to recover our harms that are consequential to the the chris no physical injuries of third party it's not the plaintiff here they say that wouldn't follow it doesn't fall under the purely by its terms are they right no they're incorrect and the reason is a lot of what got you raid in great pain points out in his first instance that you can make a claim for other parties that are not exactly the injured parties in that case they were talking about the the townspeople the people have been injured they weren't the plaintiffs in haste they were their representative players that's that's number one number two is there's nothing to indicate that the other deriving from the physical last of this they're claiming that everything stems from in this investigation only stems from the point of view of people were injured in that room that's the only reason we have a shutdown it's again reason we had these does issues that's simply correct do we have a question that doesn't give you certified to the state supreme court in that dean would suggest that you can't recover from third party injuries economic losses that my closer matt and his language in lead paint  recognition of the economic loss doctrine that they wrote right into this vacuum so i think what we're dealing with here is you never get to the situation where you're dealing with those consequential damages or other third parties because those cases don't come into barrels and let me say this to you when i was describing what happened before with the three stories in the room the tanks for this system the dust collector itself which is just a suction device which pulls up all of this dust is on the roof of this building and what we white was was set up to do was to protect that device that from exploding because that's where the dust goes and where it formulated and where it's most dangerous so the idea was of of of having flight come in was to make a device that suppressed and protected the dust collector and any m in things emanating from it now what was strangely when when they brought this claim they didn't believe in the alternative that we defectively didn't do that they've never said it was a defect you said you did that legislature that that's not an exercise the court should undertake if it's not crystal clear from the statute that the pia lay covers consequential damages that flow from third party injuries then isn't that something that needs to be addressed if not by the legislature at least by the state supreme court in the first instance what otherwise don't we blow wide open the economic loss for any economic injuries flowing from third party physical injuries would then be subsumed under the p l a but but in fact you're not within the economic loss rule until you have damage or destruction to the property the product itself and you that that doesn't happen here there's not even the allegation is made of fact in the in the in the current case vs abbott labs they talk about making a claim under the baby formula for the cost of the baby formula that's all they're claiming here they want the cost of the product back so they're not saying it was damage or destroy so you never get into the except for the property get itself exception and asking for the cost of that privilege that flow from injuries to the workers and the cost of flow from the federal investigations that followed as as of consequential to the injuries to workers if those are the categories of harm covered by b p a way then it fits the definition it would be subsumed and perhaps having not amended to at appeal a cleaner out of luck but it if it's not clear that that's covered by the p l o a then but let's assume it's not what why then wouldn't they be free to bring a cause of action under any other statu e or or other theory what you think in the hypothetical world where they didn't have property damage in that room that under which it already moved into being a products liability case we might be able to talk about that situation where you say if you been the noxious gas situation you talk about there's no physical damage to work personal injury to anyone in the plant but it shuts it down because maybe that's an issue but then aren't there other harms and other causes of action they could bring separate to that related to express warranty implied merchant needs things like that but what you're saying here is it when you're dealing with an action that is subsumed to the p l m and the broad nature of what it's supposed to do it's supposed to subsume it has it's place and courts over it from lead paint to sinclair to make derby to believe the indian forms have all recognized that right to subside once you fall within the statute except for if you're dealing with the harm and destruction of the product itself and consequential to that when we're not because the damage is you're talking about don't deal with the destruction of our property in consequence of that either that what we're talking about will harm to the workers why wouldn't that be part of their number one and number two the workers compensation aspect of that us about jersey law that is compensable in a in a in the recognised statutory lien in the third party cases they're looting too so they have a reason to recover that back under that but they've chosen to bring it here as opposed to bringing it there although i still think they have the wing over there because they're stepping in the shoes of a worker's compensation card that's the damages that they paid the workers compensation because they were only insured up to a certain above a certain level so they've taken those and placed those in the other case but they're also saying here well that gives us an economic loss that we couldn't recover otherwise and there's a question about whether those do and are derived from the loss of the physical damage and what was related here certainly they haven't tested that because they never brought the p l o a claim in the first place so the subsumption argument is separate then the question of the economic loss it's coming out in a reversed way and  saying we're going to look at the harm first instead of looking at the essential nature of the claim and the essential nature of the claim and sinclair in all fairness if that was the task regardless of the damages that would have been awarded or the harm that was available to them let me try to ask from the other way if they had broken out their different claims for of harm if they had had a separate claim for damage to the product itself and a claim for either damages your position then would be that the the other damages would be subsumed under the p l l but be that the claim for damage to the product itself could be addressed under another cause of action i think that cases have dealt with that situation i think francis parker has the is the class action case it dealt with that the trim that the defective trim and some of the class members had trim that was itself damage it damages the harm itself and others have only consequential damages that and the court says we have to let both go forward to the extent that they exist but we will but but but suggest and that in the end result we're going to have to look at this and see if some are subsumed and some are not and that was a question because you went into the area of the of the harm of the product itself by entering into that sphere but that isn't this case at all but what what what why is that really different because if you could pick that if that's the right approach for something that is excluded from the definition of harm that then why wouldn't that applies well to things that are by the terms of the statute not included in a definition of well that's that's a question about interpret in the statute i think the statute is clear that that's what it says to do i think the statute is clear in the case of all that follow it has followed the test in the same manner that you're describing and the there is no guarantee that every one of your losses in the way that you categorize them are recoverable in every scenario that's just not a guarantee for instance the few shifting that's trying that and given the fact that there was some property damage to bring that the case under the feeling that and they then could claim consequential damages including compensatory damages that covered those flowing from workers injuries i all of those would be recoverable under the p l o i would be without looking into it in an extremely under what the p l o they would allow but under the statute all of their claims could have been brought  we disagree with it for a variety of reasons number one is that there is no om statement about the a long arm except for this device is comply with n f p a sixty nine and that's why we go through this whole  misrepresentation by a corporation where they suggest that and f b a seventy two which is never mentioned anywhere is somehow incorporated into the representation itself made in the first place as first secondly there is nothing to indicate that the alarm is at the center of this and the warm we're talking about here is a typo warming your microwave that beeps when your coffee is done we're not talking about a fire alarm system and that's the difference between the two because they're trying to pull in the fire alarm system and say this is equi prove those damages were they able to make an affirmative claim they as part of a c f a claim but it isn't and it isn't for the reason that as to the alarm theory which which by the way is not in that original complaint but getting past that if you use the is the issue of product side and the third side is what what do we connect to the a warm feature going off and this buzzer and these workers and what happened afterward now that you're saying you could get them i'm not conceding that you would get them under the proofs of this case and i think the court looked at that below finding that there's nothing that they stated that would qualify as sufficient evidence to suggest that these folks hearing this buzzer were going to leave the room and run out of the building and in fact they knew there was a fire and sent somebody after after stu of them saw a similar fact there to be said that's correct i agree with you what i'm saying is you could potentially but you factually maybe wouldn't and that's an issue in this as well which you never get to see if they claim on the ark it's just not pled it's not made out it's not part of this case ever and this way that they make the the the issue that this is in clean lift or six years of litigation when they haven't done that that's that's one problem the second thing is they've elected to go c f a only c f it and not proceed on the the claim in the third thing is the court looked  room to the workers in the well if you have a visual and you have an automobile future and all the audibility the standard that was set to it required was it that needs out the other standard that they're trying to attach to it is a standard for a company  building why fire alarm which has nothing to do with nor was ever anything that our company said anything or made a mess of representation about and that's why the court found as a matter of law that seventy two was not incorporated properly seventy two is not incorporat building my firearm standard was not incorporated into the standard for an audible one you have with your refrigerator doors left open there are two different things so that's why you never even get to the point where you're talking about that and there's no representation about that anywhere the idea that we thought that is is an afterthought even if you read the rule nine motion you'll see that their expert says when this complaint was filed that was not a thought in their head he came up with that during the course of this litigation and instead of amending and sang well now we have a different complainer a different even under the c f a they never did so to put my client in this situation after years and years of of of this litigation and having dealt with all the issues in this case to go back and say now we're going to relive it gave his appeal lay claim is is is highly unfair and also in this case with their election being what it was the lower court dealt with those issues is you're coming up a look through the complaint here the only time i see any reference to sixty nine is in paragraph thirty and also much as six fifty four but it never mentions seventy two and it looks to me like imperator forty nine your basic complaint contrary to the representations made by fica s s on the fica explosion protection system did not suppress isolate the fire which is a fair point that's sounds like a product liability claim where in your complaint is or anything relating to the audible warming theory so which you know that when you look at it from ten thousand feet the audible alarm theory kind of jumps out of the well you know it didn't go loud enough and people had three minutes to get out and you couldn't hear it and there's a problem but i don't see anything in the complaint that mentions the audible alarm theory at all and our position is that that the reference to an f p sixty nine and that  pickle whatever you want to say somewhere buried in a closet somewhere is mentioning sixty nine and somehow thinking the world should know that this deals with the audible alarm theory certainly during the course of the case they now because we had as yet but you could have right because the court but the court did not get the court said address the pleading issue and said i'm going to move on because because fight didn't seek to dismiss based on the fact that it wasn't part of the complaint i mean that's that's what that's what the decision actually holds so so forty nine that the system didn't suppress allies to isolate the fire the product didn't work i would refer to paragraph twenty three and well as to the reference to any ph sixty nine as well as as referring to the two the representation issues that that we're dealing with now understood if it contains representations that explosion suppression prevents the release of pressure etc reduces the gratian pressure extinguishes the combustion and interfaces with that the process equipment and the owners and promoted the addition but then you basically that's a fact you're saying here and essentially what you're saying later on it didn't work fact i think that you don't get to the essential nature test and whether a loss was caused by a product into you first meet the definition of hot we don't meet the definition of harm and  separates claims that are pure economic loss from claims that are not r p l a heart and he says you can pursue your consumer product claims for your pure economic loss and you can pursue your product liability claims for your  a applies to a covered activity a court must be satisfied that a direct and unavoidable conflict exists between application of the c f a and application of the other regulatory scheme we stressed that the conflict must be patent and sharp and must not simply constitute a mere possibility of incompatibilities based on that judge depo is how the pill a is not dispositive of claims involving consumer fraud as the statutes relate to distinct harm done remedies that are not incompatible here the same issue is we have to rely on the essential nature and so if if the court determines that the essential nature test does not apply to those five percent so be it but ninety five percent of our damages cannot be brought into the p l o and clancy parker in the new jersey