govinfo:USCOURTS-njd-1_16-cv-00711-8

1 
 
  UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
EDWARD SILIPENA, et al.,   : Hon. Joseph H. Rodriguez 
 
  Plaintiffs,    :  
 
v.      : Civil Action No. 16-711 
  
       :           
AMERICAN PULVERIZER CO., et al.,  
       : OPINION 
  Defendants.    
       : 
 
In general terms, this matter arises from two catastrophic fires that Plaintiffs 
allege caused approximately $50 million in damages and resulted in the total loss of 
their business in Millville, New Jersey. The first fire occurred April 22, 2012 and the 
second occurred on December 8, 2012. Only the April 2012 fire is at issue in this case.1 
This decision addresses (1) the motion for summary judgment filed by Defendant 
Hustler Conveyor Company (“Hustler”) [Dkt. 227], Plaintiffs’ opposition [Dkt. 270], and 
Hustler’s reply [Dkt. 303]; (2) the motion for summary judgment filed by Defendant 
American Pulverizer Company (“Pulverizer” or “APCO”) [Dkt. 229], Plaintiffs’ 
opposition [Dkt. 268], and Pulverizer’s reply [Dkt. 307]. For the reasons set forth 
herein, and as provided in the Court’s Order, the motions at Dkt. 227 and Dkt. 229 will 
each be granted in part and denied in part. 
 
 
 
1 Plaintiffs’ motion to file a Second Amended Complaint to add the December 8 fire to 
their claim was denied on March 17, 2019. Dkt. 143. 
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I. Background 
Plaintiffs are Edward Silipena and Joseph F. Silipena (the “Silipena Brothers”), 
American Iron & Metal International, LLC (“AIMI”), American Auto Salvage and 
Recycling, Inc. (“AASR”), Silipena Realty, LLC, and LJE Associates, LLC.  Plaintiffs 
bring claims against five defendants: American Pulverizer Company (“Pulverizer” or 
“APCO”), Hustler Conveyor Company (“Hustler”), Pinnacle Engineering, Inc. 
(“Pinnacle”), Cooper & Associates, LLC (“Cooper”), and Eriez Manufacturing Company 
(“Eriez”).  See generally Compl., Dkt. 51. 
Plaintiffs’ modern business venture started as a scrap metal recovery business 
and progressed into a sophisticated metal recycling business.  During that transition in 
2010-2011, the Plaintiffs’ portfolio came to include an indoor shredding and sorting 
metal recycling facility. Am. Compl. at ¶¶33-34.  To facilitate the growth and expansion 
of their business to include specialized metal recycling, Plaintiff AASR entered into 
several, separate contracts with the Defendants for the intended purpose of installation 
of the shredding and sorting recycling system at AIMI.  
In late April 2011, Plaintiff AASR and Defendant Pulverizer contracted for the 
purchase of a Model 60 x 85 shredding system. See Golden Cert, Dkt. 229-4, Ex. D. The 
Silipena Brothers system of conveyors and separation equipment downstream from the 
shredder was commissioned to operate inside a large warehouse.
2 The process of 
recycling, shredding and sorting scrap metal includes a large shredder capable of 
reducing a full-size automobile to six inch or smaller pieces. This initial process causes 
 
2 There is no dispute that the Eriez machinery was not custom -made for the warehouse 
facility. Barber Cert., Shapiro Dep., Ex. I, pp. 385:24 to 386:2. 
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the shredded material to pass through a magnetic separator that extracts the iron from 
the stream of shred material. What remains passes through metering equipment and 
separating equipment that further refine the shred material into three primary 
components Zorba, Zurik and Fluff.  Fluff is known to be flammable. 
 The contract with Pulverizer set forth the Terms & Conditions and, importantly, 
provided for the purchase of certain machinery and parts from Defendants Hustler and 
Eriez. See id.  Defendant Hustler provided various conveyors for the subject facility, 
including a “tumbleback conveyor,” which acts as a metering conveyor, and assisted 
with implementation of the downstream system. See id. Defendant Eriez provided 
various sorting equipment, including the ProSort II (“ProSort”), for the downstream 
part of the system that separates materials being shredded into various ferrous and non-
ferrous materials to be collected and sold. Defendant Hustler along with Defendant 
Pulverizer purchased the Eriez equipment, and the equipment was installed at Plaintiffs’ 
shredding facility. 
In January 2011, Plaintiff AASR and Defendant Cooper separately contracted for 
services including engineering, design, equipment specifications and construction 
specifications required to install the shredder and associated equipment. See id., Ex. F, 
at § II.  Plaintiff AASR also contracted with Defendant Pinnacle to build a 
programmable logic controller program to control the operation, collect data and 
provide integration of the controls to control the feed of material. See Exs. D, F, G and H 
at 456:22-457:15.2 15.  
Essentially, Plaintiffs sought to capitalize on the scrap metal generated from its 
initial junk yard business, where motor vehicles and other metal products were 
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collected, by selling it to its other business, AIMI.  At AIMI, the scrap materials were 
reduced further and sorted for sale to separate third party businesses. Golden Cert., Dkt. 
No. 229-5, Ex. I, E. Silipena Dep. at 31:3-13.  Plaintiffs allege certain defects in the 
automobile shredding and sorting system (the “System”) caused two significant fires at 
Plaintiffs’ Millville, New Jersey facility. The fires at Plaintiffs’ facility allegedly 
originated in a pile of “Zurik,” a known byproduct of the System. Plaintiffs allege that 
that Defendants defectively designed the System and seek to prosecute their case by 
demonstrating, inter alia, Defendants’ awareness that Zurik posed a fire risk and then 
failed to accommodate that risk in the design and installation process.   
Plaintiffs’ claims include product liability, negligence, breach of contract, breach 
of warranty, and breach of the implied covenant of good faith and fair dealing. Id. In the 
Complaint, Plaintiffs allege that absent the defects in the System and other failures of 
Defendants to perform their duties, the fire(s) occurring at their facility would not have 
occurred nor the resulting sale of the businesses and other damages. Id.
3  
The Defendants moved separately for summary judgment as follows: 
1. Motion for Partial Summary Judgment by Cooper & Associates [Dkt. 144]; 
2. Summary Judgment by Hustler Conveyer Company [Dkt. 227]; 
3. Motion for Summary Judgment by American Pulverizer Company [Dkt. 229]; 
4. Motion for Summary Judgment by Cooper & Associates LLC [Dkt. 232]; 
5. Motion for Summary Judgment by Eriez Manufacturing Company [Dkt. 241]; 
6. Cross Motion for Summary Judgment to Docket Number 233 by Cooper & 
Associates LLC [Dkt. 259]. 
 
The Plaintiffs have also filed motions for summary judgment as follows: 
 
3 Plaintiffs’ AIMI business contracted with Defendant American Pulverizer to design and 
install the System.  To do this, American Pulverizer used equipment manufactured by its 
sister company, Defendant Hustler Conveyor Company.  In addition, American Pulverizer 
incorporated "component parts" sold by Defendant Eriez to Hustler. 
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1. Motion for Summary Judgment as to Cooper & Associates, LLC’s 
Counterclaims by American Iron & Metal International, LLC., Edward 
Silipena, Joseph F. Silipena. [Dkt. 233]; 
2. Motion for Partial Summary Judgment as to Common Defenses Raised by 
American Pulverizer, Hustler, Pinnacle and Cooper & Associates by All 
Plaintiffs [Dkt. 234]; 
3. Motion for Partial Summary Judgment as to Liability Against Cooper & 
Associates by All Plaintiffs [Dkt. 235]; 
4. Motion for Partial Summary Judgment as to Liability Against Pulverizer and 
Hustler by All Plaintiffs [Dkt. 237]. 
 
Plaintiffs also move to strike Defendants’ motions. Dkt. 271.
4  
The Court has considered the written submissions of the parties and the 
arguments advanced at the hearing on June 9, 2021.  For the reasons expressed on the 
record that day, as well as those that follow, the motions at Dkt. 227 and Dkt. 229 will 
each be granted in part and denied in part. 
II. Legal Standard 
A court will grant a motion for summary judgment if there is no genuine issue of 
material fact and if, viewing the facts in the light most favorable to the non-moving 
party, the moving party is entitled to judgment as a matter of law. Pearson v. 
Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. 
Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (c). Thus, this Court will 
enter summary judgment only when “the pleadings, depositions, answers to 
interrogatories, and admissions on file, together with the affidavits, if any, show that 
there is no genuine issue as to any material fact and that the moving party is entitled to 
judgment as a matter of law.” Fed. R. Civ. P. 56 (c). 
 
4 In a related motion, Plaintiffs move to strike all the Defense Motions, filed separately, 
challenging the experts filed as docket numbers 227, 229, 232, 241, and 259. Dkt. 271.   
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An issue is “genuine” if supported by evidence such that a reasonable jury could 
return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 
U.S. 242, 248 (1986). A fact is “material” if, under the governing substantive law, a 
dispute about the fact might affect the outcome of the suit. Id. In determining whether a 
genuine issue of material fact exists, the court must view the facts and all reasonable 
inferences drawn from those facts in the light most favorable to the nonmoving party. 
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 
Initially, the moving party has the burden of demonstrating the absence of a 
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has 
met this burden, the nonmoving party must identify, by affidavits or otherwise, specific 
facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park 
Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly 
supported motion for summary judgment, the nonmoving party must identify specific 
facts and affirmative evidence that contradict those offered by the moving party. 
Andersen, 477 U.S. at 256– 57. The plain language of Rule 56(c) mandates the entry of 
summary judgment, after adequate time for discovery and upon motion, against a party 
who fails to make a showing sufficient to establish the existence of an element essential 
to that party’s case, and on which that party will bear the burden of proof at trial. 
Celotex, 477 U.S. at 322. 
In deciding the merits of a party’s motion for summary judgment, the court’s role 
is not to evaluate the evidence and decide the truth of the matter, but to determine 
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility 
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determinations are the province of the finder of fact. Big Apple BMW, Inc. v. BMW of N. 
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). 
III. Defendant Hustler’s Motion for Summary Judgment as to 
Plaintiffs [Dkt. 227]; Plaintiffs’ Motion for Summary Judgment as 
to Hustler [Dkt. 237] 
 
a. Sufficiency of Evidence and Necessity of Expert Opinion on Fire 
Suppression 
 
Plaintiffs, Edward Silipena, AIMI, Silipena Realty, and LJE Realty, allege that the 
shredding and sorting system was defective as designed, constructed, and installed 
because there was no fire suppression system and the defendants failed to warn that 
operation of the system presented a risk of fire. In support of its motion for summary 
judgment seeking dismissal of Plaintiffs claim that Defendants were negligent for not 
providing fire suppression, Hustler first argues that Plaintiffs failed to proffer any 
evidence of a defect in the System owing to the non-provision of a fire suppression 
mechanism and that Plaintiffs have therefore “abandoned” this claim. Dkt. 227-2 at *3. 
Next, Hustler argues that Plaintiffs failed to render expert opinion on this matter, which 
Hustler claims is required to prove Plaintiffs’ claims regarding lack of fire suppression. 
According to Hustler, testimony and information relating to Plaintiffs’ claim that 
Defendants were negligent for failing to provide a fire suppression mechanism for the 
shredding and sorting facility is so esoteric as to be beyond the ken of the average juror. 
Dkt. 227-2 at *3. 
To succeed on a products liability claim for a design defect, “[a] plaintiff must 
prove either that the product’s risks outweighed its utility or that the product could have 
been designed in an alternative manner so as to minimize or eliminate the risk of harm.” 
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Lewis v. Am. Cyanamid Co., 155 N.J. 544, 570 (1998). In an action brought under an 
alternative design theory, a plaintiff “‘must prove under a risk-utility analysis the 
existence of an alternate design that is both practical and feasible,’ and ‘safer’ than that 
used by the manufacturer.” Diluzio-Gulino v. Daimler Chrysler Corp., 385 N.J. Super. 
434, 438 (App. Div. 2006) (quoting Lewis, 155 N.J. at 571); see also Florio v. Ryobi 
Techs., Inc., No. CV 17-5518, 2020 WL 5234924, at *7 (D.N.J. Sept. 2, 2020), appeal 
dismissed, No. 20-2857, 2021 WL 982250 (3d Cir. Feb. 2, 2021). “Expert testimony is 
generally needed as proof of a . . . reasonable alternative design to ‘help the fact-finder 
understand ‘the mechanical intricacies of the instrumentality.’” Ebenhoech v. Koppers 
Indus., Inc., 239 F. Supp. 2d 455, 468 (D.N.J. 2002) (quoting Rocco v. N.J. Transit Rail 
Operations, 330 N.J.Super. 320, 341 (App. Div. 2000); see also Lauder v. Teaneck 
Volunteer Ambulance Corps, 368 N.J. Super. 320, 331 (App. Div. 2004). “At times, a 
plaintiff may rely on circumstantial evidence to prove that a defect arose while a product 
was in the manufacturer’s, distributor’s, or seller’s control.” Ford Motor Credit Co., LLC 
v. Mendola, 427 N.J. Super. 226, 238, 48 A.3d 366, 373 (App. Div. 2012) (citing Scanlon 
v. Gen. Motors Corp., Chevrolet Motor Div., 65 N.J. 582, 592-93 (1974)); see also 
Jakubowski v. Minn. Mining & Mfg., 42 N.J. 177, 183– 84 (1964)). In Myrlak v. Port 
Authority of New York and New Jersey, 157 N.J. 84, 104– 07 (1999), the Supreme Court 
of New Jersey adopted as the law in New Jersey the principles stated in Restatement 
(Third) of Torts: Products Liability § 3 (1998) with respect to a finding of defect in a 
product liability case without the testimony of an expert witness.
5 “Prior cases have 
 
5 Restatement § 3 provides: 
 
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found several factors relevant when a claimant relies on circumstantial evidence of a 
defect” including “the nature of the defect[.]” Ford Motor Credit Co., LLC, 427 N.J. 
Super. at 238– 39. 
Plaintiffs allege that Hustler’s failure to include a fire suppression system 
represents a defect in the System. To this end, Plaintiffs have adduced evidence that a 
fire suppression mechanism was available for installation. As Hustler’s interrogatory 
responses reflect, “[Hustler] offers a fire suppression for the downstream when there is 
a direct request from a customer.” Plaintiffs’ Omnibus Response to Defendants’ 
Statements of Undisputed Material Facts ¶ 287 [Dkt. 270-1] (“PL RSF”). Plaintiffs’ 
proofs also include facts regarding the nature of the defect –  the non-provision of fire 
suppression –  and the associated risk of harm resulting from fire/combustion.  In the 
Court’s view, the fire damage resulting from combustion is within the class of defects 
easily attributable to the type of defect alleged, which is unlike certain other defects 
involving complex instrumentalities unfamiliar to the average juror. On this point, 
Hustler attacks the adequacy of Plaintiffs’ expert testimony using the same arguments 
advanced in Pulverizer’s summary judgment briefing. See Dkt. 227-2 at *9 (“Plaintiffs 
claims fail because there has been no expert evidence to support this claim.”). In its 
 
It may be inferred that the harm sustained by the plaintiff was caused by a product 
defect existing at the time of sale or distribution, without proof of a specific defect, when 
the incident that harmed the plaintiff: 
 
(a) was of a kind that ordinarily occurs as a result of a product defect; and 
 
(b) was not, in the particular case, solely the result of causes other than product defect 
existing at the time of sale or distribution. 
 
Restatement (Third) of Torts: Products Liability § 3 (1998). 
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reply brief, Pulverizer cites three New Jersey cases in support of its argument that the 
complexity of the subject matter makes Plaintiffs’ expert evidence insufficient to support 
the claims regarding lack of fire suppression as a matter of law. See Dkt. 307 at *4-5 
(citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 408– 10 (2014); Fedway 
Assocs., Inc. v. Engle Martin & Assocs., Inc., No. A-0297-18T4, 2019 WL 4894546, at *7 
(N.J. Super. Ct. App. Div. Oct. 4, 2019); Philadelphia Contributionship Ins. Co. v. Ryan, 
Inc., No. A-4890-16T1, 2019 WL 150284, at *8 (N.J. Super. Ct. App. Div. Jan. 9, 2019). 
In Davis, Fedway, and Philadelphia Contributionship Ins. Co., the alleged liability at 
issue stemmed from the propriety of the defendants’ design, inspection, maintenance, 
and servicing of fire suppression or sprinkler systems. However, the facts of each of 
these cases are distinguishable from the instant action. Technical knowledge regarding 
the intricacies of a fire suppression system’s configuration, operation, upkeep, and 
working-order is not so simplistic as the issue presented this case where Plaintiffs allege 
liability resulting from the non-provision of any fire suppression mechanism, 
whatsoever. Rather, the reasonableness of providing or recommending the safeguard of 
a fire suppression mechanism as a feature to be included with the System is an issue 
appropriately committed to and within the understanding of the average juror. 
For these reasons, the Court finds that sufficient evidence has been adduced to 
create a genuine question of fact regarding Hustler’s knowledge of the alleged defect and 
ability to provide a downstream fire suppression mechanism such that Hustler may have 
been in breach of a duty. 
b. Plaintiffs’ Negligence and NJPLA Claims 
 
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Hustler argues that because Plaintiffs base their allegations of negligence on the 
alleged defective System, their negligence claim is subsumed into the NJPLA and must 
be dismissed. Plaintiffs argue that there are at least two distinct negligence theories 
pursued against Hustler that do not implicate harm caused by the System. First, 
Plaintiffs argue that Hustler’s recommendations and instructions to Plaintiffs to speed 
up the tumbleback conveyor in order to alleviate the overloading was negligent because 
this conduct actually increased the risk of fire at the AIMI facility. Second, Plaintiffs 
argue that Hustler and Pulverizer were alerted to the fire at Plaintiffs’ facility on the very 
day that it happened, and there is no evidence that either took any action in connection 
with the knowledge of that fire to advise Plaintiffs that the conditions created a risk of 
fire in the Zurik bins. Plaintiffs argue that because the economic damages do not result 
from harms caused by the component at issue itself, such damages are therefore not 
covered by the NJPLA. 
New Jersey law places on manufacturers a duty to warn “foreseeable users of all 
hidden or latent dangers that would arise out of a reasonably anticipated use of [their] 
product[s].” Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 206 (N.J.). In a 
negligence case, “a duty is an obligation imposed by law requiring one party to conform 
to a particular standard of conduct toward another.” Acuna v. Turkish, 192 N.J. 399, 413 
(2007) (internal quotations and citations omitted). Whether a duty of care exists with 
respect to a particular plaintiff “is generally a matter for a court to decide.” Id. (citing 
Clohesy v. Food Circus Supermarkets, 149 N.J. 496, 502 (1997)). 
Under New Jersey law, “if the facts of a case suggest that the claim is about 
defective manufacture, flawed product design, or failure to give an adequate warning, 
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then the PLA governs and the other claims are subsumed.” New Hope Pipe Liners, LLC 
v. Composites One, LCC, 2009 WL 4282644 at *2 (D.N.J. Nov. 30, 2009). “But when 
the ‘essential nature’ of the claim is not a products liability claim, the plaintiff may 
maintain a separate cause of action.” Id; see also Guardavacarro v. Home Depot, No. 
CV168796FLWDEA, 2017 WL 3393812, at *4 (D.N.J. Aug. 8, 2017). “This means that 
the PLA does not preclude all non-PLA claims which happen to involve a ‘product’ that 
causes ‘harm.’” Id. at *3. 
Here, the Court finds the “essential nature” of Plaintiffs’ allegations is that of a 
products liability claim. New Jersey law places a duty on manufacturers to warn 
“foreseeable users of all hidden or latent dangers that would arise out of a reasonably 
anticipated use of [their] product[s].” Campos, 98 N.J. at 485. Even if a danger was not 
recognized or recognizable at the time a machine was manufactured, if the manufacturer 
later learns of the danger, it must “take reasonable steps to notify purchasers and 
consumers of the newly-discovered danger.” Feldman v. Lederle Labs., 97 N.J. 429, 
456-57 (1984); Lally v. Printing Mach. Sales & Serv. Co., 240 N.J. Super. 181, 184– 85 
(App. Div. 1990). Indeed, a manufacturer has a continuing duty to warn of dangers 
discovered even after a product leaves its control. “[T]here is a different duty to warn of 
a danger concerning the product, irrespective of when the knowledge is or could have 
been acquired.”
 Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J. Super. 1, 15 (App. Div.). 
N.J.S.A. § 2A:58C– 4 provides in relevant part: 
In any product liability action the manufacturer or seller shall not be liable 
for harm caused by a failure to warn if the product contains an adequate 
warning or instruction or, in the case of dangers a manufacturer or seller 
discovers or reasonably should discover after the product leaves its control, 
if the manufacturer or seller provides an adequate warning or instruction. 
 
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N.J.S.A. § 2A:58C– 4. To escape liability, a manufacturer who discovers, or who should 
reasonably have discovered after shipment of its product, that the product was unsafe, 
must provide its customers with “an adequate warning or instruction.” N.J.S.A. § 
2A:58C– 4; see also Feldman, 97 N.J. at 456– 57. Unlike N.J.S.A. § 2A:58C– 3a(1) 
applicable to design defects, N.J.S.A. § 2A:58C– 4, which is applicable to warning 
defects, establishes no defense limiting a manufacturer’s liability to what it knew or 
should have known at the time of manufacture. Rather, it requires the manufacturer to 
warn of dangers it discovers or reasonably should discover after the product leaves its 
control. N.J.S.A. § 2A:58C– 4; Fabian v. Minster Mach. Co. Inc., 258 N.J. Super. 261, 
274– 75 (App. Div.). “[A] manufacturer with knowledge that an original warning placed 
on the product is no longer sufficient to inform the user about dangers inherent in the 
product may be found liable for failing to change its warnings.” Dixon v. Jacobsen Mfg. 
Co., 270 N.J. Super. 569, 585 (App. Div. 1994).  
In Seeley, the Superior Court of New Jersey, Appellate Division, considered 
whether the defendant manufacturer discharged its duty under the NJPLA’s duty to 
warn provision, N.J.S.A. § 2A:58C– 4, upon learning of dangers post-sale, including 
notice of changes that would make the operation of the product safer. See, generally, 
Seeley, 256 N.J. Super. at 1. In that case, the owner of product requested information of 
the manufacturer pertaining to the product. Id., 256 N.J. Super. at 6. Similarly, in this 
case, Plaintiffs made an inquiry to Hustler to which Hustler responded by issuing the 
corrective instruction to speed up the tumbleback conveyor to alleviate overloading. 
Plaintiffs’ Statement of Undisputed Material Facts ¶¶ 111-113. [Dkt. 237-2] (“PL 
SUMF”). Plaintiffs have adduced facts to show that this measure, recommended for the 
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intended purpose of reducing overloading at the tumbleback, had the effect of creating 
an imbalance in the System that actually increased the amount of material reaching the 
remaining nonferrous downstream equipment, which resulted in the problem of 
overloading the ProSort and increasing the risk of fire. Id. ¶¶ 106-123. Applying the law 
to these facts, the Court finds that the essential nature of Plaintiffs’ allegations relate to 
whether Hustler discharged its continuing duty to warn of the defect in making its 
corrective instruction. Plaintiffs’ negligence claims relate to the same defective condition 
and conduct alleged to have contributed to the ignition of the fire. Indeed, Plaintiffs 
allege that Hustler’s curative instruction increased the very same risk of fire posed by 
the asserted defective condition.6 As such, the harm does not stem from conduct of 
Hustler that is independent or separate and apart from its duties under the NJPLA. 
Plaintiffs’ claims in this regard therefore sound in product liability, not negligence. 
The same applies to Hustler’s alleged failure to inform Plaintiffs that the System’s 
design, including the placement of the Zurik bins indoors and under roof, posed an 
increased fire risk in the face of these conditions, or to take other corrective action upon 
being alerted to the fire.7 Hustler designed and manufactured conveyors for the System, 
 
6 Specifically, if the speed of the tumbleback is increased then the risk of overloading the 
ProSort increases, which  in turn increases the risk that more Fluff collects in the Zurik 
bin. See Dkt. 237-11; Shattuck Dep. at 261:5-13. 
 
7 Plaintiffs’ more general theory of negligence related to the placement of the Zurik bins 
likewise sounds in products liability. In Count II asserting negligence, Plaintiffs allege 
that Hustler had a duty to exercise reasonable and ordinary care in the “de sign, 
construction, lay out, planning and installation of the System.” Amended Complaint ¶ 114.  
Hustler designed the tumbleback conveyor to transport the byproduct deposited in the 
Zurik bins within the building as part of the System’s downstream process.  Plaintiffs’ 
Statement of Additional Facts Not in Dispute  ¶¶ 297-300 [Dkt. 270-1]. Plaintiffs assert 
that Hustler breached its duty to Plaintiffs  by designing this  feature such that known  
combustible commodities would be deposited indoors and under roof . Plaintiffs further 
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including the tumbleback conveyor, and it also made layout drawings for the System. 
Plaintiffs’ Statement of Additional Facts Not in Dispute ¶ 299 [Dkt. 270-1]. Plaintiffs 
testified that they were never warned by Hustler (or any other Defendant) about the risk 
of fire associated with Zurik. Id. ¶ 295 (citing J. Silipena 206:1-8; 206:22-25; 207:1-5; E 
Silipena Dep. Vol I. 218:20-219:1).8 Hustler’s alleged failure to inform Plaintiffs that the 
placement of the Zurik bins posed an increased fire risk relate to whether Hustler 
discharged its continuing duty to adequately inform Plaintiffs of the unsafe condition 
and the specific risk of harm, or to take other reasonable measures to remediate it.9 
Plaintiffs do not dispute that they were aware of the risk of fire associated with fluff. See 
id. ¶ 296. But evidence that Plaintiffs were aware that fluff was flammable and that 
Zurik contained fluff, as well as that Plaintiffs had a role in “help[ing] lay out the design 
of the plant inside[,]” present disputes of fact bearing on issues of fault and causation 
that are properly committed to a jury and insufficient to foreclose Plaintiffs’ claims as a 
matter of law. Dkt. 227-2 at *9. 
 
assert that the harm suffered emanated from and was caused by this feature of the System. 
Id. ¶ 305. Thus, the breach asserted by Plaintiffs in this regard is plainly related to 
“defective manufacture, flawed product design, or failure to give an adequate warning” 
and the NJPLA therefore governs. New Hope Pipe Liners, LLC, 2009 WL 4282644 at *2 
(D.N.J. Nov. 30, 2009) (“[I]f the facts of a case suggest that the claim is about defective 
manufacture, flawed product design, or failure to give an adequate warning, then the PLA 
governs and the other claims are subsumed.”). 
 
8 When asked whether Hustler had “ever advised anyone that it’s aware of a risk of fire 
associated with [Z]urik in an output bin,” Mr. Wagner stated that “I don’t know the 
answer to that.” Plaintiffs’ Statement of Additional Facts Not in Dispute ¶  302 (quoting 
Wagner, Vol II 436:16-20 [Dkt. 237-10]). 
 
9 Because Plaintiffs’ claims sound in product liability  rather than negligence, the Court 
need not consider whether Plaintiffs’ negligence claims against Hustler fail as a matter of 
law. See Dkt. 227-2 at *8-10. 
 
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c. Plaintiffs’ Breach of Express Warranty Claims and Choice-of-
Law 
 
Plaintiffs assert a claim for breach of express warranty against Hustler. Hustler 
moves for summary judgment on this claim on the grounds that (1) Plaintiffs are not 
direct parties to any contract with Hustler; (2) Plaintiffs fail to identify what affirmation 
of fact or promise was made by Hustler regarding the System; and, (3) Plaintiffs did not 
give formal notice to Hustler of the alleged breach.
10 Dkt. 227-2 at *11. 
By way of background, there is no direct agreement or contract between Hustler 
and Plaintiffs. PL SUMF ¶ 124. Hustler’s customer for the System was Pulverizer, and 
Pulverizer subsequently sold Hustler’s equipment to the “end user” as part of the 
System. Id. ¶¶ 124-25. Hustler sold its equipment and equipment provided by third 
party manufacturers directly to Pulverizer pursuant to a written contract between 
Hustler and Pulverizer. Id. ¶ 125; Exhibit AB (“Hustler Contract”). The Hustler Contract 
contains the following terms:  
All parts and equipment manufactured by Hustler Conveyor Company are 
warranted for 2080 hours of operation or one year from date of shipment, 
whichever comes first. The sale of the equipment covered in this proposal 
will be subject to Hustler ’s Standard Terms and Conditions of Sales and 
Hustler’s Warranty as set forth therein, all of which are incorporated on the 
reverse side of this proposal. All purchased parts and their warranties are 
passed on to the end user.  
 
Id. ¶ 126; Hustler Contract at *15. 
Pulverizer and AASR entered into a contract, signed on April 26, 2011, to supply 
components to the System. Id. ¶ 79; Exhibit R [Dkt. 237-22] (“Pulverizer Contract”). The 
 
10 Plaintiffs also affirmatively seek summary judgment as to the same Breach of Express 
Warranty claim ( Amended Complaint Count IV) for which Hustler moves for summary 
judgment. The governing standard is the same for both motions. See Bacon v. Avis Budget 
Grp., Inc., 357 F. Supp. 3d 401, 413 (D.N.J. 2018), aff’d, 959 F.3d 590 (3d Cir. 2020). 
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Pulverizer Contract provides that “[t]he price for the system as outlined above is . . . 
$4,103,790.00 F.O.B. St. Louis, Missouri[.]” Id. ¶ 84; Pulverizer Contract at 
P00024 (emphasis in original). The Pulverizer Contract contains the following 
language:  
The warranty on items not manufactured by American Pulverizer 
Company shall be those warranties by the manufacturers of that  
equipment. As always, we will not be responsible for any loss of profits or  
consequential damages and in no case shall our liability for any  individual 
piece of equipment, exceed the cost of replacement or repair of that piece of 
equipment during the time of warranty. 
. . . 
All parts and equipment manufactured by American Pulverizer 
Company are warranted for 2,080 hours of operation or one (1) year from 
date of shipment, whichever comes first. The sale of the equipment covered 
in this proposal will be subject to American Pulverizer Company’s Standard 
Terms and Conditions of Sales and American Pulverizer Company’s 
Warranty as set forth herein, all of  which are incorporated into this 
proposal. All purchased parts and the  warranties are passed on to the end 
user. 
 
Id. ¶ 86; Pulverizer Contract at P000024-25 (emphases in original). The “American 
Pulverizer Company’s Standard Terms and Conditions of Sales” referenced in the 
Pulverizer Contract are Pulverizer’s “typical terms” used for Pulverizer’s sales, which in 
this case, were signed by Joe Silipena on April 26, 2011. Id. ¶ 87; see also Dkt. 237-26, 
Exhibit V (“T&C”). 
The T&C contain the following provisions: 
4. WARRANTY 
  
(a) Seller warrants any equipment or part thereof manufactured by  Seller 
and covered by this proposal to be free from defects in  material or 
workmanship under normal use and service, and should said equipment or 
any part thereof prove defective in material or workmanship within one (1) 
year from the date of  shipment by Seller, then, provided the defective 
equipment, or any part, is delivered to Seller at Seller’s plant at St. Louis,  
Missouri, freight prepaid, Seller agrees, at its option, to repair or  replace 
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said defective equipment or any part thereof free of  charge, F.A.S. Seller’s 
plant, provided Seller has been promptly notified of the defects  
(b) The terms of this warranty do not extend,  (i) to any equipment or part 
thereof covered by this proposal  which has a life, under normal usage, 
inherently shorter than the one (1) year limitation under subparagraph (a) 
above or which  was not manufactured by Seller;  (ii) To any equipment or 
part thereof that has not been  operated in accordance with the printed 
instructions of Seller or which has been operated beyond the rated capacity 
set forth in said instructions; (iii) to any equipment or part thereof that has 
been Subjected to misuse due to common negligence or accident, and  (iv) 
to any equipment or part thereof that has been repaired or altered by anyone 
other than Seller. 
(c) Seller does not warrant that any of the equipment or part thereof  
specified in this proposal will conform with the requirements of any federal, 
state, local, safety, health and pollution law, and Buyer assumes all 
responsibility for conformance therewith. 
(d) THIS WARRANTY IS IN LIEU OF ALL WARRANTIES OF  
MERCHANTABILITY, FITNESS FOR PURPOSE , OR  OTHER 
WARRANTIES, EXPRESS OR IMPLIED Correction  of any defects within 
the terms of this warranty in the manner and for the period of time specified 
herein, shall constitute fulfillment of all of Seller’s liabilities to Buyer 
existing out of such equipment or any part thereof whether based on 
contract, negligence or otherwise 
(e) Any oral representation which is not reduced to writing does not  
constitute a warranty and is not part of this contract. This  document 
constitutes the final expression of the parties’  agreement and oral 
representations, unless reduced to writing herein, shall not be binding upon 
either party 
(f) Attachments, parts, and components supplied by other  manufacturers 
are covered solely by the individual warranty of  the respective 
manufacturers. Seller makes no of warranty with  respect to said 
attachments, parts, and components which are not  of its  manufacture or 
production. 
 
Id. ¶ 88; T&C at P00003-4 (emphasis in original). 
As a preliminary matter, Plaintiffs challenge Hustler’s position that New Jersey 
law applies to Plaintiffs’ count for breach of express warranty. Plaintiffs dispute 
Hustler’s contention that Plaintiffs previously conceded that New Jersey law governs 
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this claim.11 See Dkt. 270 at *18-19. Plaintiffs maintain that the applicable law is that of 
Missouri based on the choice-of-law provision set forth in the T&C incorporated into the 
Pulverizer Contract: 
12. GOVERNING LAW 
All questions, dispute s or claims arising Out of this document and 
transaction shall be interpreted and governed under and by the laws of  the 
State of Missouri. 
 
PL SUMF ¶ 91. 
On this issue, the record supports Plaintiffs’ position that Plaintiffs agreed to 
proceed under New Jersey law only for the purposes of the motion for dismissal at Dkt. 
13, and only as applied to the issues in Point III of Plaintiffs’ opposition to the motion at 
Dkt. 27 addressing whether the Complaint’s common law claims were subsumed by the 
NJPLA, which made no reference to express warranty claims.12 See Dkt. 27 at *5-11. 
Contrary to Hustler’s assertion (see Dkt. 303 at *2), the Court’s decision took no 
position on the choice-of-law applicable to Plaintiffs’ contractual express warranty 
claims. See Dkt. 49. Even assuming the parties had stipulated to the choice-of-law, the 
Court would not necessarily accept such an agreement without first conducting a choice-
of-law analysis. See Shannon v. B.L. England Generating Station, Civ. A. No. 10–
04524, 2013 WL 6199173, at *4 (D.N.J. Nov. 27, 2013) (“Because this Court knows of no 
 
11 In Hustler’s Statement of Undisputed  Material Facts, Hustler asserts that Plaintiffs 
“conceded that New Jersey Law applies to this matter.” Hustler’s Statement of 
Undisputed Material Facts ¶ 57 [Dkt. 227-1] (“Hustler SUMF”) (citing Dkt. 27 at *11; Dkt. 
49). 
12 Hustler correctly observes that in Point III of Plaintiffs’ Brief in Opposition to 
Defendants’ Motion to Dismiss, Plaintiffs state that “Plaintiffs are willing . . . in the 
interest of convenience to the Court and the parties to proceed with their claims pursuant 
to New Jersey law as urged by the moving defendants.” Dkt. 27 at *6. But Hustler ignores 
that Plaintiffs’ statement is in made limited reference to Count I (Strict Liability), Count 
II (Negligence), and Count V (Breach of Implied Warranty of Merchantability). Point III 
makes no reference to express warranty claims. 
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New Jersey choice-of-law authority allowing parties to stipulate as to applicable law, the 
analysis does not end on the basis of the parties’ mutual agreement that New Jersey 
substantive law applies.”); DiAntonio v. Vanguard Funding, LLC, 111 F. Supp. 3d 579, 
582 n.2 (D.N.J. 2015) (“Even if the parties agreed that New Jersey law applies, the Court 
must conduct a choice of law analysis . . . Therefore, any future motion addressing the 
merits of this case must thoroughly discuss the choice of law issue.”). 
Hustler cites the Court’s earlier decision denying in part Plaintiffs’ Motion for 
Leave to Amend (Dkt. 143) in an attempt to show that the choice-of-law issue has been 
resolved, barring its further consideration. Dkt. 303 *2-3. Specifically, Hustler 
references the Court’s observation that granting amendment “would prejudice the 
Defendants because it requires re-opening discovery to defend the suit as a result of a 
change in theory presented by Missouri, or other, law[.]” Dkt. 303 at *3 (citing Dkt. 143 
at *4). According to Hustler, this reflects the Court’s disposition adopting New Jersey 
law over Missouri law. What Hustler neglects to mention, however, is that this 
observation was made in specific reference to the states’ products liability statutes and 
not their respective laws governing breach of express warranty claims. Contrary to 
Hustler’s assertion, the Court never adjudicated the choice-of-law issue as it relates to 
Plaintiffs’ breach of express warranty claims. As such, the Court must determine the law 
applicable to Plaintiffs’ breach of express warranty claims at this juncture. 
In “a diversity case filed in New Jersey, New Jersey choice of law rules govern.” 
See Lebegern v. Forman, 471 F.3d 424, 428 (3d Cir. 2006); see also Aliments Krispy 
Kernels, Inc., 851 F.3d at 289. “New Jersey gives effect to contracting parties’ private 
choice of law clauses unless they conflict with New Jersey public policy.” Sullivan v. 
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Sovereign Bancorp., Inc., 33 F. App’x 640, 641 (3d Cir. 2002) (citing General Motors 
Corp. v. New A.C. Chevorlet, Inc., 263 F.3d 296, 331 n. 21 (3d Cir. 2001)). “[C]ourts in 
[the Third Circuit] have repeatedly honored choice-of-law provisions that explicitly state 
a particular governing law without regard to conflicts of law.” Byers v. Nat’l R.R. 
Passenger Corp. (Amtrak), No. 219CV01024 BRMCLW, 2022 WL 279642, at *4 (D.N.J. 
Jan. 31, 2022) (internal quotations and citations omitted).13 
Though the choice-of-law provision in the Pulverizer Contract selecting Missouri 
law unmistakably applies to Plaintiffs’ contract-based claims against Pulverizer, the 
parties dispute whether it may be properly invoked to adjudicate Plaintiffs’ claims for 
breach of express warranty as to Hustler. “Ordinarily, a party not a signatory to a 
contract cannot be bound by the terms of that contract.” Beth Schiffer Fine 
Photographic Arts, Inc. v. Colex Imaging, Inc., No. 10-CV-5321 WHW, 2014 WL 
1908500, at *3 (D.N.J. May 13, 2014) (citing E.I. DuPont de Nemours & Co. v. Rhone 
Poulenc Fiber & Resin Intermediates, S.A.S., 269 F.3d 187, 194 (3d Cir.2001)). 
However, as courts in this District have recognized, a non-signatory transaction 
participant may be subject to a choice-of-law provision under certain narrow exceptions 
 
13 The exceptions to this rule include instances where: “(a) the chosen state has no 
substantial relationship to the parties or the transaction and there is no other reasonable 
basis for the parties’ choice, or (b) application of the law of the chosen state would be 
contrary to a fundamental policy of a state which has a materially greater interest than 
the chosen state in the determination of the particular issue and which . . . would be the 
state of the applicable law in the absence of an effective choice o f law by the parties.” 
Instructional Sys., Inc. v. Computer Curriculum Corp., 130 N.J. 324, 342 (1992) (quoting 
Restatement (Second) of Conflicts of Laws § 187 (1969)). None of these exceptions apply 
here where Missouri has a relationship to the transaction and both New Jersey and 
Missouri have adopted the same provisions of the U CC regarding warranties , as will be 
addressed infra. See N.J.S.A. § § 12A:2- 313 to 2-318; MO. ANN. STAT. § § 400.2- 313 to 
400.2-318. 
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where the party’s conduct is so closely related to the contract that resolution of disputes 
arising from the transaction in accordance with such provision is foreseeable. See, e.g., 
Cambridge Mgmt. Grp., LLC v. Baker, No. CIV. 12-3577 NLH/KMW, 2013 WL 1314734, 
at *11 (D.N.J. Mar. 28, 2013) (“Because it is clear that the Wilson Defendants’ conduct is 
closely and directly related to the contractual relationship between the Baker 
Defendants and Cambridge, the choice of forum and law clause and the waiver of 
personal jurisdiction contained in the Agreement to Pay are applicable to the Wilson 
Defendants in this case.”); Affiliated Mortg. Prot., LLC v. Tareen, No. CIV.A.06 4908 
DRD, 2007 WL 203947, at *4 (D.N.J. Jan. 24, 2007) (“Home Mortgage employees are 
bound by the forum selection and choice of laws clause because the claims arise out of 
the contract from which the employees of Home Mortgage derived benefit. Therefore, 
the conduct of the employees is closely related to the contractual relationship.”) 
(internal quotations omitted).  
Here, Hustler directly participated in the design of the System and was charged 
with manufacturing the tumbleback conveyor consistent with the design specifications 
required to meet the particular capacity needs of Plaintiffs. The Pulverizer Contract 
states that “All questions, disputes or claims arising Out of this document and 
transaction shall be interpreted and governed under and by the laws of the State of 
Missouri.” PL SUMF ¶ 91. The choice-of-law provision’s language was ostensibly 
intended to be read broadly by purporting to apply to “All questions, disputes or claims 
arising Out of this document and transaction[.]” Id. Choices of law provisions, like other 
contractual provisions, are interpreted pursuant to their sensible grammatical 
construction. Thus, the intended import of this provision would appear to purportedly 
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embrace all obligations arising under the legal relationships created as part of the 
transaction. 
A manufacturer’s warranty may arise from the event of a sale but not necessarily 
from the written sales contract. In this instance, however, the provision of Hustler’s 
pass-through warranty became part of the agreement between Pulverizer and Plaintiffs. 
Hustler manufactured the component parts consistent with the design specifications 
required for Plaintiffs and sold them to Pulverizer with a pass-through warranty 
knowing that Pulverizer was purchasing such component parts for ultimate sale to 
Plaintiffs. Hustler’s pass-through warranty was integrated into and conferred by the 
Pulverizer Contract, which required certain performance on the part of Plaintiffs as a 
condition to the discharge of Hustler’s warranty of future performance. See Pulverizer 
Contract at P000024-25. Specifically, Plaintiffs’ entitlement to relief under the pass-
through warranty was contingent on compliance with substantive terms set forth in the 
Pulverizer Contract; namely, the purported notice, timing and limitations of liability 
provisions. Hustler’s pass-through warranty was made subject to these terms, and 
Plaintiffs’ breach of express warranty claims against Hustler are therefore intertwined 
with the Pulverizer Contract where satisfaction of the obligations set forth therein is the 
sine qua non of recovery. As Hustler submits in its briefing, “[t]he Hustler equipment is 
clearly covered in the APCO proposal” and “[t]he Hustler parts on which Plaintiffs based 
their claims are clearly covered under the APCO contract and the APCO Terms and 
Conditions should therefore apply to Hustler.” Dkt. 303 at *7-8. Further, Hustler asserts 
as an affirmative defense that Plaintiffs’ claims for breach of express warranty are 
barred if “Plaintiff has not complied with the terms and conditions precedent to 
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recovery under the contract.” Answer to Plaintiffs’ Amended Complaint, Affirmative 
Defenses § 21 [Dkt. 61]; see also id. § 27 (“Defendant hereby claims the benefit of each 
and every separate defense alleged by any and all defendants and third-party defendants 
named now or in the future.”). These terms and conditions of the Pulverizer Contract 
applicable to the pass-through warranty are to the benefit of Hustler and are integral to 
its asserted defense. Thus, the Pulverizer Contract exists as a plausible source of the 
legally significant relationship between Hustler and Plaintiffs by virtue these terms and 
its function as the instrument by which Hustler conferred a direct benefit upon Plaintiffs 
as end-users.  
Viewing the facts of this case against the backdrop of Cambridge Mgmt. Grp., 
LLC and Affiliated Mortg. Prot., LLC, discussed supra, there is some surface-level 
appeal to Plaintiffs’ theory that the Missouri choice-of-law provision may be properly 
invoked to adjudicate their claims against Hustler. Given the parties’ relationships, their 
negotiations, and the specific terms of the transaction, it is arguably consistent with the 
parties’ reasonable expectations that disputes arising from Hustler’s pass-through 
warranty would be subject to the choice-of-law provision selecting Missouri law. In 
particular, it may have been foreseeable to Hustler that its pass-through warranty would 
be conveyed by Pulverizer’s agreement with Plaintiffs which, in the absence of Hustler’s 
inclusion of its own “Standard Terms and Conditions of Sales[,]” set forth terms 
imposing conditions and requiring performance precedent to recovery. And it might 
further have comported with the parties’ reasonable expectations that Pulverizer, as a 
Missouri corporation, would draft such agreement to apply Missouri law to disputes 
arising from the transaction where the contractual relationship and obligations were 
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reasonably related to such choice. Nevertheless, the “closely related” exception testing 
foreseeability is a narrow one and has never been applied in a context such as this. See 
Beth Schiffer Fine Photographic Arts, Inc., 2014 WL 1908500, at *5 (“Courts in this 
district typically find that non-signatories are ‘closely related’ only in the context of an 
individual non-signatory who is employed by— or the principal of— a corporate entity 
which is a signatory.”). 
Despite the parties’ advocacy urging the adoption of their respective positions, 
the Court need not –  and expressly declines to –  reach the specific issue of whether to 
extend the application of the Missouri choice-of-law provision to determine the 
substantive law governing Plaintiffs’ claims. Plaintiffs and Hustler agree there is no 
conflict among the laws of New Jersey and Missouri regarding warranties. See Dkt. 237-
3 at *17 (“[b]oth New Jersey and Missouri have adopted the same provisions of the UCC 
regarding warranties[.]”); Dkt. 303 at *5 (“[T]here is no conflict between New Jersey 
and Missouri’s UCC provisions regarding warranties.”). “[I]f there are no relevant 
differences between the laws of the two states” then the Court “may refer to the states’ 
laws interchangeably.” Hammersmith v. TIG Ins. Co., 480 F.3d 220, 229 (3d Cir. 2007); 
see also Pharmacia Corp. v. Arch Specialty Ins. Co., No. 22-2586, 2024 WL 208146, at 
*2 (3d Cir. Jan. 19, 2024); Shannon, 2013 WL 6199173, at *6. The Court will do so, here. 
Under Missouri law, the elements for a breach of express warranty claim are: (1) 
the defendant sold goods to the plaintiff; (2) the seller made a statement of fact about 
the kind or quality of those goods: (3) the statement was a fact that was a material factor 
inducing the buyer to purchase the goods; (4) the goods did not conform to that 
statement of fact; (5) the nonconformity injured the buyer; and (6) the buyer notified 
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the seller of the nonconformity in a timely manner. Renaissance Leasing, LLC v. 
Vermeer Mfg. Co., 322 S.W.3d 112, 122 (Mo. 2010). As to the notice required under the 
sixth element, notice “does not require any particular formality or detail as to the nature 
of the buyer’s complaint.” Kansas City v. Keene Corp., 855 S.W.2d 360, 369 (Mo. 1993). 
Rather, “[t]he content of the notification need merely be sufficient to let the seller know 
that the transaction is still troublesome and must be watched.” Patterson Oil Co. v. 
Verifone, Inc., No. 2:15- CV-4089, 2015 WL 6149594, at *3 (W.D. Mo. Oct. 19, 2015) 
(quoting U.C.C. (U.L.A.) § 2– 607 Cmt. 4 (1989)). In other words, “[t]he bar for 
notification here is low.” Id. 
In its first point, Hustler contends there is no breach of express warranty because 
Plaintiffs are not direct parties to any contract with Hustler. The parties agree that 
Hustler was not a direct party to any contract with any Plaintiff. Dkt. 270 at *20. This 
fact is inconsequential, however, because privity of contract is not required to sustain a 
claim for breach of express warranty. See Reinbold v. AGCO Corp., 701 F. Supp. 3d 829, 
839 (E.D. Mo. 2023); Whitman v. Consol. Aluminum Corp., 637 S.W.2d 405, 407 (Mo. 
Ct. App. 1982)); Thorpe v. Hammons Sheet Metal Co., 991 S.W.2d 157, 158 (Mo. Ct. 
App. 1999). Thus, Plaintiffs’ statuses as non-parties to the contract are not preclusive. 
Hustler argues in its second point that Plaintiffs fail to identify what affirmation 
of fact or promise was made by Hustler regarding the System and that, without this, 
Plaintiffs cannot succeed on the claims. See Dkt. 227-2 at *11. In response, Plaintiffs 
point to the contract between Hustler and Pulverizer containing the following 
representation: “All parts and equipment manufactured by Hustler Conveyor Company 
are warranted for 2080 hours of operation or one year from date of shipment, 
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whichever comes first.” PL RSF ¶ 315. As discussed, supra, this warranty was expressly 
passed through to Plaintiffs in the Pulverizer Contract. See PL RSF ¶ 316. Plaintiffs have 
therefore identified competent evidence of record from which a reasonable fact-finder 
may infer the existence of an affirmation of fact or promise creating an express warranty 
on the part of Hustler. “‘[W]hether a given statement constitutes an express warranty is 
normally a question of fact for the jury.’” Snyder v. Farnam Companies, Inc., 792 F. 
Supp. 2d 712, 721– 22 (D.N.J. 2011) (quoting In re Ford Motor Co. E– 350 Van Prods. 
Liab. Litig., Civ. No. 03– 4558, 2008 WL 4126264, at *4 (D.N.J. Sept. 3, 2008)). 
Hustler’s third argument is that Plaintiffs’ claims must be dismissed because 
“there was no formal notice of any breach of warranty, let alone express warranty, that 
was made by any Plaintiff to Moving Defendant.” Dkt. 227-2 at *11. Section 2-607 of the 
Uniform Commercial Code, as adopted by Missouri, provides that “the buyer must 
within a reasonable time after he discovers or should have discovered any breach notify 
the seller of breach or be barred from any remedy.” Mo. Rev. Stat. § 400.2-607(3)(a)). 
Courts have understood this condition of Section 400.2-607(3)(a)) MO ST 400.2-607 as 
requiring “some minimal pre-suit notice of breach in order to assert a warranty claim[.]” 
Budach v. NIBCO, Inc., No. 2:14-CV-04324-NKL, 2015 WL 6870145, at *4 (W.D. Mo. 
Nov. 6, 2015); see also Abbott v. Golden Grain Co., 677 F. Supp. 3d 940, 952 (E.D. Mo. 
2023); Vogt v. K&B Auto Sales, LLC, et al., Case No. 4:22-cv-00385-SRC, 2022 WL 
4103838, at *4 (E.D. Mo. Sept. 8, 2022).  
Contrary to Hustler’s apparent position that a plaintiff must provide “formal 
notice” of a breach (Dkt. 227-2 at *11), “the ‘notice contemplated by the U.C.C. does not 
require any particular formality or detail as to the nature of the buyer’s complaint.’” 
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Reinbold v. AGCO Corp., No. 4:21-CV-01154-SEP, 2023 WL 7408092, at *8 (E.D. Mo. 
Nov. 9, 2023) (quoting Kansas City, 855 S.W.2d at 369). Rather, “‘[t]he content of the 
notification need merely be sufficient to let the seller know that the transaction is still 
troublesome and must be watched.’” Id. In addition, for purposes of a claim for breach 
of express warranty, a buyer is only under a duty to notify the immediate seller, rather 
than the manufacturer, that a product does not conform to the seller’s statements. 
Browning v. Anheuser-Busch, LLC, 539 F. Supp. 3d 965, 974 (W.D. Mo. 2021); Abbott, 
677 F. Supp. 3d at 952; Ragland Mills, Inc. v. General Motors Corp., 763 S.W.2d 357, 
361 (Mo. App. 1989); Mo. Ann. Stat. § 400.2-607(3)(a). Here, Plaintiffs have proffered 
sufficient evidence to create a genuine question of fact regarding whether the requisite 
notice was provided. Specifically, Plaintiffs have introduced factual matter to show they 
informed Hustler of the alleged overloading tumbleback conveyor prior to this action 
being instituted at least as early as March 2012 (i.e., before the First Fire) (PL RSF ¶ 
319); again in May 2012, (i.e., between the First Fire and Second Fire) (PL RSF ¶ 320); 
and in February 2013 (i.e., after the Second Fire) (PL RSF ¶ 321). The alleged 
malfunctions of the tumbleback conveyor were never rectified, notwithstanding 
Hustler’s attempts to intervene by providing adjustments to the operating parameters. 
PL RSF ¶¶ 305, 319-21. In view of this proffered evidence, the sufficiency of Plaintiffs’ 
asserted provision of notice remains a question of fact properly committed to a jury. See 
Kansas City, 855 S.W.2d at 369 (affirming jury finding that notice of breach of express 
warranty was sufficient under UCC 2-606); see also Browning, 539 F. Supp. 3d at 974 
(observing that “cases continue to cite Keene favorably”). 
d. Plaintiffs’ Damages 
 
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Hustler claims that Plaintiffs have failed to proffer meritorious evidence 
establishing damages. Dkt. 227-2 at *12. Much of Hustler’s argument on this point 
invokes the same challenges advanced in its motion to preclude the opinions of 
Plaintiffs’ damages expert, Christopher Brophy (Dkt. 231), which objected to Brophy’s 
damages calculations as speculative and subjective. See Dkt. 227-2 at *13 n.4 (“Moving 
Defendant adopts the arguments set forth in its Motion to Preclude Christopher Brophy 
and incorporates those arguments as if set forth at length herein.”). 
 Evidence affording a basis for estimating damages with some reasonable degree 
of certainty is sufficient to support a compensatory damage award. Levy v. Schmidt, No. 
208CV6260, 2012 WL 13033296, at *4 (D.N.J. July 25, 2012); Meyers v. RCM Techs., 
Inc., No. A-6874-02T5, 2005 WL 3246727, at *14 (N.J. Super. Ct. App. Div. Dec. 2, 
2005); Perth Amboy Iron Works, Inc. v. Am. Home Assur. Co., 226 N.J. Super. 200, 
224 (App. Div. 1988), aff’d, 118 N.J. 249 (1990) (“Lost profits may be recoverable if they 
can be established with a reasonable degree of certainty.”) (internal quotations and 
citation omitted); Am. Eagle Waste Indus., LLC v. St. Louis Cnty., Missouri, 463 S.W.3d 
11, 19 (Mo. Ct. App. 2015); (“In order to receive an award of damages for lost profits, a 
plaintiff must set forth evidence which provides an adequate basis for estimating the lost 
profits with reasonable certainty.”). “[M]ere uncertainty as to the amount [of damages] 
should not preclude recovery.” Id. (internal quotations and citation omitted); see also 
Curators of Univ. of Missouri v. Suppes, 583 S.W.3d 49, 61 (Mo. Ct. App. 2019) 
(“Where the fact of damage is clear, it is reasonable to require a lesser degree of 
certainty as to the amount of loss, leaving a greater degree of discretion to the jury, 
subject to the usual supervisory power of the court.”). 
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As an initial matter, the Court need not rule on the aspects of Hustler’s Motion 
that have already been resolved in the Court’s decision on Defendants’ motions to 
preclude the opinions of Plaintiffs’ damages expert, Christopher Brophy. The remainder 
of Hustler’s challenges to Plaintiffs’ damages evidence will be addressed, in seriatim. 
First, Hustler argues that Brophy failed to opine what amount of damages was 
suffered by each Plaintiff for each claim or count in the Amended Complaint and 
therefore “[a]ll of Plaintiffs’ damages are speculative and must be dismissed.” Dkt. 227-2 
at *14. The parties do not dispute that Brophy’s damages calculations represent the 
combined sum of calculated damages for all Plaintiffs. But Hustler provides no authority 
to support its position that Brophy’s failure to apportion damages among Plaintiffs 
renders his opinions inadmissible or subjects Plaintiffs’ claims to dismissal. In a 
published decision, this court previously rejected the argument that an expert must 
differentiate damages on a on a party-by-party basis where claims arise from the same 
set of facts. See Inter Med. Supplies Ltd. v. EBI Med. Sys., Inc., 975 F. Supp. 681, 691 
(D.N.J. 1997), aff’d and remanded, 181 F.3d 446 (3d Cir. 1999); see also Radiologix, Inc. 
v. Radiology & Nuclear Med., LLC, No. 15-4927-DDC-KGS, 2018 WL 296015, at *5 (D. 
Kan. Jan. 4, 2018) (rejecting defendant’s argument that expert’s calculation of one set of 
damages attributable to both plaintiffs was improper and concluding that “Plaintiffs 
need not itemize their damages separately”). As the court observed, “[d]amages 
ordinarily flow from conduct, not from legal theories. Inter Med. Supplies Ltd., 975 F. 
Supp. at 691. If liability is established by evidence satisfying Plaintiffs’ burden of proof, 
the expert opinions of Brophy are presented in a manner sufficient to permit a jury to 
infer a connection between the alleged culpable conduct to the resultant damages 
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recoverable by each Plaintiff. Indeed, Brophy’s opinion minimizes the risk of speculation 
and uncertainty by distinguishing damages by category. For example, the Report draws 
a line between damages due to “property damage” and those due to “business 
interruption.” It itemizes damages associated with the First Fire and Second Fire, costs 
associated with fixing design problems, and the impact of the collapse of AIMI and 
AASR. 
Second, Hustler argues that the category of damages alleged in connection with 
Plaintiffs’ NJPLA claim for the April 2012 fire “must be dismissed” because the NJPLA 
prohibits damages for purely economic losses. Dkt. 227-2 at *14. This argument fails, 
however, because it disregards that Plaintiffs maintain a viable claim for breach of 
express warranty against Hustler. “By its own terms, the PLA does not extend to claims 
for breach of an express warranty.” Walters v. Carson, No. CIV. 11-6545 RBK/AMD, 
2012 WL 6595732, at *3 (D.N.J. Dec. 17, 2012). Pursuant to N.J.S.A. § 2A:58C– 1(3), 
“[p]roduct liability action means any claim or action brought by a claimant for harm 
caused by a product, irrespective of the theory underlying the claim, except actions for 
harm caused by breach of an express warranty.” N.J.S.A. § 2A:58C– 1(3) (2011). “The 
[PLA] and common law tort actions do not apply to damage caused to the product itself, 
or to consequential but purely economic losses caused to the consumer because of a 
defective product.” Ford Motor Credit Co., LLC, 427 N.J. Super. at 240. Purely 
economic damages are addressed by the law of contracts, in particular, pertinent 
sections of the Uniform Commercial Code (UCC). Id. Under Missouri law, “an express 
warranty that is not limited to the first purchaser gives an assignee the right to sue for 
purely economic loss and consequential damages[.]” Renaissance Leasing, LLC, 322 
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S.W.3d at 128; see also Givan v. Mack Truck, Inc., 569 S.W.2d 243, 248 (Mo. App. 
1978) (remedies available under Missouri law for breach of warranty include the buyer’s 
incidental and consequential damages, including lost profits, resulting from the breach). 
As such, the category of damages claimed by Plaintiffs for the April 2012 fire is not 
precluded by the NJPLA where economic losses are available for Hustler’s breach of 
express warranty claim. 
Third, Hustler argues that Plaintiffs’ claims for damages from the April 2012 fire 
must be credited for $3,190,759.86 in payments already received. Hustler similarly 
argues that Plaintiffs’ claims for damages from the April 2012 fire must also be credited 
for $269,915 for public adjuster fees. On this issue, any application of a set-off pursuant 
to the “Collateral Source statute is intended to be applied post-verdict.” In re Jacoby 
Airplane Crash Litig., No. CIV.99-6073 (HAA), 2007 WL 5037683, at *8 (D.N.J. Aug. 
27, 2007) (“[T]his Court is not aware of any case in which the court definitively ruled on 
collateral source matters prior to trial, much less prior to a verdict to which the alleged 
collateral source set-offs are to be applied.”); see also Thomas v. Ramushi, 674 S.W.3d 
112, 118 (Mo. Ct. App. 2023) (implying deference to fact-finding where disputes bearing 
on entitlement to set-off remain unresolved). In view of the complex nature of this case 
and the numerosity of unresolved factual disputes, the Court reserves on this issue and 
will defer judgment unless presented with clear and compelling legal grounds to support 
a pre-trial ruling. 
Fourth, as to losses arising from the Second Fire in December 2012, the Court 
previously denied Plaintiffs’ motion to file a second amended complaint to add the 
Second Fire Fire to their claim on March 17, 2019. See Dkt. 143. Accordingly, only 
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damages from the First Fire in April 2012 remain at issue in this case, and damages 
stemming from the Second Fire may not be claimed.  
Sixth, Hustler argues that the “new business rule” operates to foreclose the award 
of damages for lost profits and expert opinion relating thereto because the “‘prospective 
profits of a new business are considered too remote and speculative to meet the legal 
standard of reasonable certainty.’” Dkt. 227-2 at *19 (quoting Juice Ent., LLC v. Live 
Nation Ent., Inc., No. CV117318WHWCLW, 2018 WL 2357748, at *9 (D.N.J. May 23, 
2018)). 
In the period following the parties’ initial briefing on this motion, the Supreme 
Court of New Jersey “reject[ed] a per se ban barring any new business’s claim for lost 
profits damages, and decline[d] to follow the new business rule.” Schwartz v. Menas, 
251 N.J. 556, 576 (2022). The Schwartz decision reiterated the general rule that under 
New Jersey law “lost profits may be recoverable if they can be established with a 
reasonable degree of certainty, but anticipated profits that are remote, uncertain or 
speculative . . . are not recoverable.” Id. at 577 (internal quotations and citations 
omitted).
14 As such, while it may be “more difficult for a new business than for an 
experienced business to prove lost profits damages with reasonable certainty[,]” the 
newness of the business alone cannot foreclose recovery. Id. Courts must engage in “a 
case-specific inquiry when deciding a motion to admit or bar a category of evidence.” Id. 
 
14 Likewise, under Missouri law “a plaintiff may recover for lost profits that he or she 
establishes with reasonable— not absolute— certainty.” BMK Corp. v. Clayton Corp., 226 
S.W.3d 179, 195 (Mo. Ct. App. 2007). 
 
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at 576.15 In assessing reasonable certainty in this context, New Jersey courts consider a 
number of factors, including (1) whether the venture was a new business or an 
expansion of an existing business; (2) whether the venture operated in the same or a 
similar market; (3) whether the venture relied on existing business from the party’s own 
customers or promoters to whom it could turn; and (4) whether the venture had a 
reliable source for the supply of materials to be processed such that output volume may 
be reasonably projected.16 
Hustler contends that, even assuming the inapplicability of the new business rule, 
lost profits damages are disallowed under the reasonable certainty standard here 
because AIMI was operational for less ten weeks prior to the first fire and, consequently, 
there can be no reliable basis to calculate accurate projections. The Court disagrees. 
Plaintiffs’ projections represent reasonable approximations extrapolating from 
considerations that New Jersey courts have regarded as appropriate bases for 
forecasting new businesses’ lost profits damages. Plaintiffs have introduced evidence 
that the Silipenas were already involved in the scrap and recycling business for four 
decades when they expanded their family business to incorporate their own automobile 
shredding facility. PL ORSUMF ¶ 270. AIMI’s business plan was to shred the cars and 
 
15 Citing to the approach set forth in the Restatement (Second) of Contracts  § 352, the 
Court observed that “damages may be established with reasonable certainty with the aid 
of expert testimony, economic and financial data, market surveys and analyses, business 
records of similar enterprises, and the like.” Schwartz v. Menas , 251 N.J. 556, 575– 76, 
279 A.3d 436, 447 (2022) (citing Restatement (Second) of Contracts § 352, cmt. b. 
16 See, e.g., PIM Brands LLC v. Cabot Acquisitions , LLC, No. SOM-L-966-05, 2008 WL 
5114467 (N.J.Super.L. Nov. 21, 2008); Schwartz v. Menas , No. A -3187-18T3, 2020 WL 
6538396, at *4 (N.J. Super. Ct. App. Div. Nov. 6, 2020), rev’d and remanded , 251 N.J. 
556, 279 A.3d 436 (2022); RSB Lab. Servs., Inc. v. BSI, Corp. , 847 A.2d 599, 613 (N.J. 
Super. Ct. App. Div. 2004); McDonald v. City of Wildwood , No. A-0109-17T4, 2018 WL 
6164767, at *4 (N.J. Super. Ct. App. Div. Nov. 26, 2018). 
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light iron that AASR previously resold to other shredding facilities, supplemented by 
materials from companies that shipped in trailer-load lots every day. Id. ¶ 273. Plaintiffs 
have adduced further factual matter to show that the new venture was relying upon 
numerous existing relationships with companies (including their own AASR) derived 
from their longstanding business, which provided both cars for shredding and buyers of 
the output materials. Id. ¶ 271. For example, Ed Silipena testified at deposition that 
Plaintiffs had established customers to purchase their output material before expanding 
into the shredding business, including four mills in Pennsylvania, Maryland, and 
Delaware where Plaintiffs “were already” hauling material. Id. ¶ 272, 274.  
Finally, the balance of Defendants’ challenges branding Mr. Brophy’s loss 
calculations as “speculative” present no legitimate basis to limit Plaintiffs’ claims for 
damages. As discussed, lost profits may be recoverable if they can be established with a 
“reasonable degree of certainty.” Desai v. Bd. of Adjustment of Town of Phillipsburg, 
360 N.J. Super. 586, 595 (App. Div. 2003). But “[o]nce the fact of damage is 
established, the mere uncertainty as to the amount will not bar recovery.” Morris 
Bellifemine, M.D., PA v. Meadowlands Hosp. Med. Ctr., No. A-2670-22, 2025 WL 
77253, at *4 (N.J. Super. Ct. App. Div. Jan. 13, 2025). This “uncertainty factor applies to 
the uncertainty as to the fact of damage and not as to its amount, and where it is certain 
that damage has resulted, mere uncertainty as to the amount will not preclude the right 
of recovery.” Id. (internal quotations and citations omitted); see also Battaglia v. 
Aversa, No. A-3240-21, 2023 WL 6173377, at *5 (N.J. Super. Ct. App. Div. Sept. 22, 
2023); Desai, 360 N.J. Super. at 595). Under such circumstances, “‘courts will fashion a 
remedy even though the proof on damages is inexact.’”  Mosley v. Femina Fashions, 
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Inc., 356 N.J. Super. 118, 128 (App. Div. 2002) (quoting Kozlowski v. Kozlowski, 80 
N.J. 378, 388 (1979)). Likewise, under Missouri law, “a plaintiff may recover for lost 
profits that he or she establishes with reasonable— not absolute— certainty.” BMK Corp. 
v. Clayton Corp., 226 S.W.3d 179, 195 (Mo. Ct. App. 2007). “‘Certainty,’ however, 
‘means that damages have been suffered and not exact proof of the amount.’” Id. at 195-
96 (quoting Harvey v. Timber Res., Inc., 37 S.W.3d 814, 819 (Mo. Ct. App. 2001)). 
“‘Where the fact of damage is clear, it is reasonable to require a lesser degree of certainty 
as to the amount of loss, leaving a greater degree of discretion to the jury[.]’” Id. at 196 
(quoting Harvey, 37 S.W.3d at 819). 
Here, Mr. Brophy testified at his deposition that he looked at the Silipenas’ actual 
production but found it “irrelevant” because of the design problems rendering the 
System defective and unable to function properly. PL ORSUMF ¶ 157. Consequently, Mr. 
Brophy calculated the production numbers by estimating what Plaintiffs likely would 
have processed if there were no design problems. Id. ¶ 158. To put this into quantifiable 
terms, Mr. Brophy consulted raw data from the Return on Investment framework 
Pulverizer provided to Plaintiffs to determine if the projected profitability made the 
System a worthwhile return on investment, which the Silipena brothers represented that 
they relied upon when making the purchase. Id. ¶¶ 276-77, 280. Specifically, Mr. 
Brophy’s calculations accounted for monthly infeed processing capacities of 8,400 tons 
(60TPH) and 11,200 tons (80TPH) taken from the Return on Investment spreadsheets, 
which the Silipenas represented to him they relied upon in deciding to purchase the 
System. His adoption of these figures further is traceable to facts appearing 
independently in the evidentiary record, including the Silipenas’ deposition testimony 
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confirming they relied upon this data to purchase the System and secure financing, as 
well as statements attributed to Pulverizer and Hustler. See, e.g., id. ¶¶ 156, 160-61, 276-
77, 260, 279-281. Mr. Brophy additionally drew upon the Silipenas’ representations that 
Plaintiffs expected to run the System for seven hours per day for five days each week. Id. 
¶ 160; see also Dkt. 225-20 ¶ 18. Ed Silipena testified that the System actually ran 
Monday through Thursday, from 7am to 3:00 or 3:30pm. Id. ¶ 159. As to Defendants’ 
argument concerning the period of operations Mr. Brophy applied, Mr. Brophy was not 
bound to using figures from operations in the ten weeks prior to the first fire. Rather, it 
was appropriate that he used the average of actual recycling ratio of metal, shredded 
metal and fluff as achieved in the two months of operations in October and November 
2012. Mr. Brophy multiplied the projected processing volume of feedstock by the 
projected recycling percentages to arrive at the projected recycling volume.
17 He then 
multiplied the projected recycling volume by the actual monthly sales price to arrive at 
sales revenue per month. 
Of course, Defendants are free to challenge or discredit the evidence Plaintiffs 
reference to show they would have achieved the projected ratios but for the design 
defect and had the fire not occurred by, for instance, explicating how the Return on 
Investment spreadsheet contained generic figures that varied from the exact amounts of 
materials actually processed. But this fact is not dispositive, especially where Mr. 
Brophy relied on other facts beyond the spreadsheet. Indeed, Mr. Brophy’s Report and 
 
17 Mr. Brophy also accounted for the continued  operation of the facility during certain 
periods by calculating damages as the difference between Plaintiffs’ actual production and 
the production that  would have accomplished if  the defects had been rectified . See PL 
ORSUMF ¶ 268. 
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testimony make clear that the spreadsheet was not used to the exclusion of other 
sources. Rather, the approach taken by Mr. Brophy to approximate the processing 
volumes ultimately used to measure damages was corroborated by separate proofs 
including evidence that the Silipenas maintained a reliable supply of feedstock owing to 
its longstanding business and relationships. Taken together and viewed in a light most 
favorable to Plaintiffs, the foregoing establishes that a proper foundation was laid and 
demonstrates a sufficient analytical link between the data computed and Mr. Brophy’s 
ultimate opinions; thus enabling a jury to fairly assess Plaintiffs’ alleged damages 
without resort to conjecture. 
 For the reasons set forth, supra, the numerous challenges to Plaintiffs’ claims for 
damages are resolved consistent with the foregoing. 
IV. Defendant Pulverizer’s Motion for Summary Judgment as to 
Plaintiffs [Dkt. 229] 
 
a. Plaintiffs’ NJPLA Claims  
 
Pulverizer submits that Plaintiffs’ claim for products liability (Count I) was 
previously dismissed. See Dkt. 229-2 at *2. Plaintiffs concede this fact, acknowledging 
that Count I was dismissed on the basis of the economic loss doctrine, and agree to 
withdraw this claim insofar as it is pleaded against Pulverizer only. See Dkt. 268 at *3. 
b. Plaintiffs’ Negligence Claims  
  
Pulverizer contends that Plaintiffs’ negligence claims must be dismissed because 
they are subsumed into the NJPLA, and those claims were dismissed as against 
Pulverizer. Plaintiffs challenge Pulverizer’s position using the same argument advanced 
in their opposition to Hustler’s motion for summary judgment. See Dkt. 268 at *3-4 
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(“For the reasons explained in Plaintiffs’ Opposition to Defendant Hustler Conveyor 
Company’s Motion for Summary Judgment . . . incorporated herein by reference, 
Plaintiffs have adduced more than sufficient evidence to proceed on at least two 
negligence theories apart from the NJPLA.”). The Court rejects Plaintiffs’ position for 
same reasons discussed, supra, with respect to Huster’s motion and the opposition 
thereto. The essential nature of Plaintiffs’ allegations relate to whether Pulverizer 
discharged its continuing duty under the NJPLA. Plaintiffs’ claims in this regard 
therefore sound in product liability, not negligence.18 
c. Plaintiffs’ Breach of Contract Claims 
 
Pulverizer moves for summary judgment on Plaintiffs’ breach of contract 
claims.19 See Dkt. 229-2 at *14-16. Specifically, Pulverizer argues that Plaintiffs did not 
contract for the work they claim was improper, and that the contract disclaims liability 
for the claims as alleged. The Pulverizer Contract represented the bargain struck for the 
sale of the American Pulverizer Model 60x85 Shredding System, which was to integrate 
the “infeed, Downstream, and Non-Ferrous Systems to be used in conjunction with the 
American Pulverizer model 60 x 85 Shredder.” PL RSF ¶¶ 231-32; Pulverizer Contract at 
P00006. Plaintiffs claim that Pulverizer breached the Pulverizer Contract (1) by failing 
 
18 Because Plaintiffs’ claims sound in product liability rather than negligence, the Court 
need not consider whether Plaintiffs’ negligence claims against Pulverizer fail as a matter 
of law. See Dkt. 229-2 at *6-9. 
 
19 Pulverizer argues that any claim for  breach of contract claim asserted by Plaintiffs 
Edward Silipena, LJE Realty or Silipena Realty  must fail as they are neither parties no r 
intended beneficiaries of the contract. Because Plaintiffs raise no challenge to this 
position, the Court proceeds to consider Pulverizer’s motion for summary judgment on 
this count as respecting its contractual relationship vis a vis  AASR and its contractual 
obligations to AIMI as a third-party beneficiary. 
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to provide and install a properly functioning, fully integrated System capable of 
shredding and sorting automobiles with the desired and promised output capacity; (2) 
by not providing appropriate engineering and project management; and (3) by not 
recommending a fire suppression system. According to Plaintiffs, the evidence adduced 
in support of these points is “more than sufficient to put the question of whether 
Pulverizer materially breached the Pulverizer contract to the jury.” Dkt. 268 at *7. 
For the reasons already addressed concerning the choice-of-law provision in the 
Pulverizer Contract, to which Pulverizer is a first party, Missouri law controls. To prevail 
on a breach of contract claim under Missouri law, a plaintiff must establish the following 
elements: “‘(1) the existence and terms of a contract; (2) that plaintiff performed or 
tendered performance pursuant to the contract; (3) breach of the contract by the 
defendant; and (4) damages suffered by the plaintiff.’” Amoroso v. Truman State Univ., 
683 S.W.3d 298, 304 (Mo. Ct. App. 2024) (quoting Keveney v. Missouri Mil. Acad., 304 
S.W.3d 98, 104 (Mo. banc 2010)). As stated, Plaintiffs’ opposition to summary judgment 
on this count is framed in terms of the sufficiency of the evidence adduced to show a 
material breach. To determine whether a breach is material, Missouri follows the 
approach set forth in Section 241 of the Restatement of Contracts, which requires 
balancing the following factors: (1) the extent to which the injured party will be deprived 
of his contract benefit; (2) the extent to which the party in breach will suffer forfeiture; 
(3) the likelihood that the party in breach will cure his breach considering all relevant 
circumstances; and (4) the extent to which the breaching party’s behavior comports with 
good faith and fair dealing.” Barnett v. Davis, 335 S.W.3d 110, 114– 15 (Mo. Ct. App. 
2011) (citing RESTATEMENT (SECOND) OF CONTRACTS § 241 (1981)). “[T]he 
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materiality of a breach is a question of fact[.]” Premier Golf Missouri, LLC v. Staley 
Land Co., LLC, 282 S.W.3d 866, 873 (Mo. Ct. App. 2009). 
Here, Plaintiffs have adduced sufficient evidence in support of their position that 
the System was not integrated or equipped to shred and sort metals from automobiles in 
the manner contemplated. The Report and testimony of Plaintiff’s liability expert, Mr. 
Shapiro, provide opinion regarding the System’s function, including the imbalance as 
between the shredder and downstream making it incapable of performing properly as 
designed.
20 See PL RSF ¶ 255. This opinion addresses a fundamental aspect of the 
parties’ bargain as it relates directly to the System’s capacity to perform its intended 
function. Plaintiffs have introduced evidence that these issues regarding the System’s 
ability to perform its essential function were apparent around the time of its delivery. 
Specifically, Mr. Shattuck was aware of AIMI employee Bob Kirk complaining about the 
tumbleback conveyor overflowing “right out of the gate or shortly thereafter.”
21 Dkt. 
237-11, Shattuck Dep., at 251:24-252:12, 252:17-23. In March 2012, Hustler received a 
call from Pulverizer employee Steve Rogan indicating that Plaintiffs were “overflowing 
feed hopper.” Dkt. 237-10, Wagner Dep., Vol. II, at 353:20-354:4; Dkt. 237-28 
 
20 Mr. Shapiro also proposed an alternative System design –  one incorporating the use of 
a bypass –  and provided several examples of the use of a bypass in the industry by other  
consumers and manufacturers at the time the System was built. See Dkt. 225-10 at *9-10 
(Daniel J. Shapiro Expert Report, ¶ 109); Shapiro  Deposition at 360:1 -361:8; 598:5 -
601:15. 
 
21 The Court observes that Pulverizer has introduced contrary evidence, including Ed 
Silipena’s testimony that prior to the fire their output product was “right on the money, 
pristine.” See Dkt. 229-1 ¶ 31, Exhibit I at 136:15-138:25. However, such evidence neither 
renders Plaintiffs ’ other supporting evidence incompetent or conclusively establish es 
Pulverizer’s position. Rather, it represents evidentiary matter to be weighed by a jury in 
resolving a genuine dispute of fact on the material issue of whether the System functioned 
as intended and as contemplated under the Pulverizer Contract. 
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(“Specification Sheet”). The proposed solution to remedy the tumbelback overflow was 
to speed up the conveyor. And in the Engineering Report, Stephen Rogan from 
Pulverizer states in reference to Plaintiffs’ complaint regarding the tumbleback 
continually overflowing, that, “even if we would speed up this conveyor, they would have 
a problem overfeeding the ProSort.” PL RSF ¶ 251; Dkt. 237-30 at APCOM00047 
(“Engineering Report”). Mr. Wagner testified at his deposition that if the tumbleback 
motor speed is increased, the TPH of material that reaches all subsequent points in the 
downstream line will also increase. Dkt. 237-10, Wagner Dep., Vol. II, at 361:17-23, 
362:15-363:2. Mr. Shattuck stated at his deposition that, if the speed of the tumbleback 
is increased, the risk of overloading the ProSort increases, and thus, there is an increase 
in the risk that more Fluff ends up in the Zurik bin. Dkt. 237-11, Shattuck Dep., at 261:5-
13. Both fires occurred indoors in piles of Zurik. Mr. Anthony testified at his deposition 
that if the System did not function as designed, then Plaintiffs would not make any 
profits. Considering the resources expended to obtain the System, the paramount role of 
the System in Plaintiffs’ venture, and catastrophic nature of the incident, the extent to 
which Plaintiffs were potentially deprived of the benefit which they reasonably expected 
is significant. See Section 241(e) of the Restatement (Second) of Contracts. In sum, 
Plaintiffs have introduced evidence from which a reasonable factfinder may infer that 
there was a serious imbalance as between the shredder and downstream that was not 
appropriately remedied and which resulted in severe damage. Because such matters go 
to the essence of the Pulverizer Contract, a jury may determine whether there was a 
material failure on the part of Pulverizer in the performance of its obligations, and, if so, 
whether a causal relationship exists between any breach and the Plaintiffs’ alleged 
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damages. See Premier Golf Missouri, LLC, 282 S.W.3d at 874 (“[T]he materiality of a 
breach is a question of fact[.]”). 
Pulverizer makes additional argument that the Pulverizer Contract specifically 
disclaims any promises regarding others’ equipment, and that the issue with the 
downstream equipment therefore cannot be the responsibility of Pulverizer. The 
Warranty terms provide that “The terms of this warranty . . . do not extend to any 
equipment or part . . . which was not manufactured by Seller” and “Attachments, parts, 
and components supplied by other manufacturers are covered solely by the individual 
warranty of the respective manufacturers.” Dkt. 237-22. The Warranty terms further 
provide that “Seller makes no of warranty with respect to said attachments, parts, and 
components which are not of its manufacture or production.” Id. When viewed against 
the essential terms of the contract, Pulverizer’s argument invoking the limitation of 
warranty in an attempt to disclaim promises regarding other manufacturer’s component 
parts is unavailing. Plaintiffs allege that Pulverizer failed to provide the fully integrated 
System in the manner contemplated under the contract. The parties contracted for the 
System to include “the infeed, Downstream, and Non-Ferrous Systems to be used in 
conjunction with the American Pulverizer Model 60 x 85 Shredder.” PL RSF ¶ 232. 
Plaintiffs have introduced evidence that the System was not integrated as a result of the 
imbalance, which rendered it incapable of properly shredding and sorting. Thus, a 
genuine question of material fact exists over whether Pulverizer breached that provision 
by failing to provide a System that properly integrated the “downstream equipment” 
that was to be used “in conjunction with” the shredder. See id. 
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Pulverizer also argues that the breach of contract claim is foreclosed by a 
limitation of liability provision within the T&C. The limitation of liability clause purports 
to except liability for any claim for imperfections, shortages, or other breaches unless a 
claim is made within ten days of delivery of goods. According to Pulverizer, this 
provision is exculpatory as there is no evidence or documentation showing that 
Plaintiffs made such a claim within ten days of delivery, which occurred in January 
2012, or at any time prior to this lawsuit. Plaintiffs respond that the contract is 
unenforceable insofar as it purports to disclaim liability on these grounds.  
Pursuant to Mo. Rev. Stat. § 400.2-302(1) “If the court as a matter of law finds 
the contract or any clause of the contract to have been unconscionable at the time it was 
made the court may refuse to enforce the contract, or it may enforce the remainder of 
the contract without the unconscionable clause, or it may so limit the application of any 
unconscionable clause as to avoid any unconscionable result.” Mo. Ann. Stat. § 400.2-
302(1).
22 Missouri’s statute mirrors the UCC’s provision regarding the enforceability of 
unconscionable contract clauses and adopts the UCC comment citing Kansas City 
Wholesale Grocery Co. v. Weber Packing Corporation, 73 P.2d 1272, 1275 (Utah 1937) 
as an example applying this provision. MO. ANN. STAT. § 400.2-302, Cmt 1. In Kansas 
City Wholesale Grocery Co., the contract at issue required claims for defects in goods to 
be made within 10 days, but the Court held that where “defects are latent and such as 
are not readily discoverable by inspection, no unreasonable limitation as regards the 
 
22 “‘Missouri courts have eliminated all distinctions related to substantive and procedural 
unconscionability in adopting [a] more general framework.’” Golden Gate Logistics Inc. 
v. Selectrucks of Am., No. 4:19-00854-CV-RK, 2020 WL 831172, at *3 (W.D. Mo. Feb. 19, 
2020) (quoting Williams v. United Technologies Corp. , No. 2:15 -cv-04144-NKL, 2015 
WL 7738370, at * 3 (W.D. Mo. Nov. 30, 2015)). 
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time for inspection will protect the seller.” Kansas City Wholesale Grocery Co., 73 P.2d 
at 1275. 
Here, the Notice Clause of the T&C purported to afford Plaintiffs a ten-day period 
from the “delivery of goods” to give notice of any alleged defect or breach. The same 
T&C containing the Notice Clause further provides that “delivery to buyer” is effectuated 
as of the time of “[t]he delivery of goods or any part thereof to a carrier by seller 
consigned to buyer . . .” PL RSF ¶ 239. Significantly, however, the System was shipped to 
Plaintiffs’ Millville facility in no fewer than seven truck loads spanning at least twenty-
four days. Id. ¶ 222. The pieces of the System arrived and were assembled on site over 
the course of several weeks. Id. ¶ 223. Pulverizer’s attempt to foreclose the breach of 
contract claim based on the Notice Clause therefore fails where evidence has been 
introduced to demonstrate that it would have been impossible or impracticable for 
Plaintiffs to have complied with the contract’s terms in this regard. Where Pulverizer’s 
discretion to stagger the deliveries functioned to deprive Plaintiffs of any meaningful 
opportunity to comply with the ten-day notice period, this purported requirement 
represents a commercially unreasonable term. Even assuming the ten-day period 
commenced at the date of the System’s full installation, Plaintiffs have adduced facts 
that the defect was not discovered within that time. “Where . . . the defects are latent 
and [] [] are not readily discoverable by inspection, no unreasonable limitation as 
regards the time for inspection will protect the seller.” Kansas City Wholesale Grocery 
Co., 73 P.2d at 1275 (internal quotations and citation omitted); MO. ANN. STAT. § 
400.2-302, cmt 1. Pulverizer does not grapple with this issue in its reply, and the Court 
must construe all reasonable inferences in favor of the non-moving party. Under these 
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circumstances, the Court is compelled to deny Pulverizer’s request for summary 
judgment on Plaintiffs’ breach of contract claim insofar as it is predicated upon the 
Notice Clause. 
d. Plaintiffs’ Breach of Express Warranty Claims 
 
Pulverizer moves for summary judgment on Plaintiffs’ Breach of Express 
Warranty claim based on New Jersey law and the terms of the Pulverizer Contract. 
Specifically, Pulverizer argues that Plaintiffs’ claim is foreclosed by the conspicuously 
written Limited Warranty in the T&C where Plaintiffs failed to provide the requisite 
notice set forth therein, as well as the purported requirement that the Buyer shall return 
the defective equipment or defective part to the Seller within one year of shipment. Dkt. 
229-2 at *15. In opposition, Plaintiffs assert that sufficient evidence has been adduced to 
show that Pulverizer was promptly notified upon discovery of the defect and, as such, 
this claim should survive summary judgment. Plaintiffs further dispute the 
enforceability of the Limited Warranty on the basis that compliance with its terms was 
impossible or impracticable and the warranty failed its essential purpose. Pulverizer 
again advocates for the application of New Jersey law. But for the reasons already 
addressed concerning the choice-of-law provision in the Pulverizer Contract, to which 
Pulverizer is a first-party, Missouri law controls over Plaintiffs’ claims for breach of 
express warranty. 
The Pulverizer contract contains an express warranty that purports to limit the 
warranties and remedies available to Plaintiffs for a breach thereof. In relevant part, the 
express contractual warranty provides as follows: 
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The warranty on items not manufactured by American Pulverizer Company 
shall be those warranties by the manufacturers of that equipment. 
As always, we will not be responsible for any loss of profits or consequential 
damages and in no case shall our liability for any individual piece of 
equipment, exceed the cost of replacement or repair of that piece of 
equipment during the time of warranty. 
. . .  
All parts and equipment manufactured by American Pulverizer Company 
are warranted for 2,080 hours of operation or one (1) year from date of 
shipment, whichever comes first. The sale of the equipment covered in this 
proposal will be subject to American Pulverizer Company’s Standard Terms 
and Conditions of Sales and American Pulverizer Company’s Warranty as 
set forth herein, all of which are incorporated into this proposal. All 
purchased parts and the warranties are passed on to the end user. 
PL SUMF ¶ 86; Pulverizer Contract at P000024-25. 
The “American Pulverizer Company’s Standard Terms and Conditions of 
Sales” referenced in the Pulverizer Contract are Pulverizer’s “typical terms” used for 
Pulverizer’s sales, which in this case, were signed by Joe Silipena on April 26, 2011. PL 
SUMF ¶ 87; Anthony Dep., Vol. I, at 90:21-92:17, 109:2-12, 112:8-16; see also T&C. The 
T&C contain the following relevant provisions: 
4. WARRANTY  
(a) Seller warrants any equipment or part thereof manufactured by Seller 
and covered by this proposal to be free from defects in material or 
workmanship under normal use and service, and should said equipment or 
any part thereof prove defective in material or workmanship within one (1) 
year from the date of shipment by Seller, then, provided the defective 
equipment, or any part, is delivered to Seller at Seller’s plant at St. Louis, 
Missouri, freight prepaid, Seller agrees, at its option, to repair or repla ce 
said defective equipment or any part thereof free of charge, F.A.S. Seller’s 
plant, provided Seller has been promptly notified of the defects.  
(b) The terms of this warranty do not extend, (i) to any equipment or part 
thereof covered by this proposal which has a life, under normal usage, 
inherently shorter than the one (1) year limitation under subparagraph (a) 
above or which was not manufactured by Seller; (ii) To any equipment or 
part thereof that has not been operated in accordance with the printed 
instructions of Seller or which has been operated beyond the rated capacity 
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set forth in said instructions; (iii) to any equipment or part thereof that has 
been Subjected to misuse due to common negligence or accident, and (iv) 
to any equipment or part thereof that has been repaired or altered by anyone 
other than Seller. 
(c) Seller does not warrant that any of the equipment or part thereof 
specified in this proposal will conform with the requirements of any federal, 
state, local, safety, health and pollution law, and Buyer assumes all 
responsibility for conformance therewith. 
(d) THIS WARRANTY IS IN LIEU OF ALL WARRANTIES OF 
MERCHANTABILITY, FITNESS FOR PURPOSE , OR OTHER 
WARRANTIES, EXPRESS OR IMPLIED . Correction of any defects within 
the terms of this warranty in the manner and for the period of time specified 
herein, shall constitute fulfillment of all of Seller’s liabilities to Buyer 
existing out of such equipment or any part thereof whether based on  
contract, negligence or otherwise 
(e) Any oral representation which is not reduced to writing does not 
constitute a warranty and is not part of this contract. This document 
constitutes the final expression of the parties’ agreement and oral 
representations, unless reduced to writing herein, shall not be binding upon 
either party 
(f) Attachments, parts, and components supplied by other manufacturers 
are covered solely by the individual warranty of the respective 
manufacturers. Seller makes no of warranty with respect to said 
attachments, parts, and components which are not of its m anufacture or 
production. 
5. LIMITATION OF LIABILITY 
 
Seller shall not be liable for special, incidental, or consequential damages,  
such as, but not limited to, damage to or loss of other property or 
equipment, loss of profits or revenue, less of the use of the equipment or any 
part thereof, cost of capital, or cost of any replacement equipment or part 
thereof. The remedies of Buyer set forth herein are exclusive, and Seller’s 
liability with  respect to this proposal, or anything done in  connection 
therewith such as the  performance or breach thereof, or from  the 
manufacture, sale delivery, resale,  installation, operating instructions 
repair or use of any equipment or part  covered by or furnished under this 
proposal whether in contract, in tort, under  any warranty, or otherwise, 
shall not, except as expressly provided herein,  exceed the price of the  
equipment or part on which such liability is based. 
 
7. DELIVERY 
 
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The delivery of goods or any part thereof to a carrier by seller consigned to  
buyer, or as buyer may direct, shall constitute delivery to buyer, and such  
carrier thereafter shall be deemed to be acting for the buyer and the goods  
shall thereafter be transported at the buyers risk. 
 
10. CLAIMS 
 
Seller shall not be liable on any claim for imperfection, shortages, or other  
breach unless such claim is made within ten (10) days after delivery of  
goods. 
 
PL RSF ¶ 239; T&C at P00003-4.  
Under Missouri law, the elements for a breach of express warranty claim are: (1) 
the defendant sold goods to the plaintiff; (2) the seller made a statement of fact about 
the kind or quality of those goods; (3) the statement was a fact that was a material factor 
inducing the buyer to purchase the goods; (4) the goods did not conform to that 
statement of fact; (5) the nonconformity injured the buyer; and (6) the buyer notified 
the seller of the nonconformity in a timely manner. Renaissance Leasing, LLC, 322 
S.W.3d at 122. Section 2-607 of the Uniform Commercial Code, as adopted by Missouri, 
provides that “the buyer must within a reasonable time after he discovers or should have 
discovered any breach notify the seller of breach or be barred from any remedy.” Mo. 
Rev. Stat. § 400.2-607(3)(a)). Courts have understood this condition of Section 400.2-
607(3)(a)) as requiring “some minimal pre-suit notice of breach in order to assert a 
warranty claim[.]” Budach, 2015 WL 6870145, at *4; see also Abbott, 677 F. Supp. 3d at 
952; Vogt, 2022 WL 4103838, at *4. Notice “does not require any particular formality or 
detail as to the nature of the buyer’s complaint.” Kansas City, 855 S.W.2d at 369. 
Rather, “[t]he content of the notification need merely be sufficient to let the seller know 
that the transaction is still troublesome and must be watched.” Patterson Oil Co., 2015 
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WL 6149594, at *3 (quoting U.C.C. (U.L.A.) § 2– 607 Cmt. 4 (1989)). In other words, 
“[t]he bar for notification here is low.” Id. 
The evidence introduced by Plaintiffs that Pulverizer was notified of the alleged 
defect is sufficient to create a triable issue of fact as to the reasonableness of the form of 
notice here under the terms of the contract and the law. The Pulverizer contract was 
executed on April 26, 2011 (PL SUMF ¶ 87), and Pulverizer contends that Plaintiffs 
failed to give notice of any alleged defects prior to the subject fire on April 22, 2012. See 
Dkt. 229-2 at *12. According to Pulverizer, the first notification of any alleged defect it 
received was when the initial Complaint was served in 2016. Id. This issue of fact 
remains in dispute, however, where Plaintiffs have cited to record evidence that the 
Defendants, including Pulverizer, were alerted to the issues concerning the overflowing 
tumbleback. See PL RSF ¶¶ 245-250. Additionally, Plaintiffs notified Pulverizer of the 
First Fire on the same day it happened. Id. ¶ 241. In view of this evidence and the low-
bar for demonstrating pre-suit notice under Missouri law, the sufficiency and 
reasonableness of Plaintiffs’ notice to Pulverizer is an appropriate question of fact to be 
decided by a jury. See Kansas City, 855 S.W.2d at 369 (affirming jury finding that notice 
was sufficient under UCC 2-607); Patterson Oil Co., 2015 WL 6149594, at *3 (“The bar 
for notification here is low.”). Summary judgment must therefore be denied as to this 
count. 
Insofar as Pulverizer attempts to disclaim contractual liability by invoking the 
Notice Clause’s purported ten-day notice requirement contained in Section 4(a) of the 
T&C, the Court agrees with Plaintiffs that this specific term is unconscionable and 
unenforceable. “Whether a contract term is unconscionable depends on the ‘facts 
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relating to unconscionability impacting the formation of the contract.’” Williams v. 
United Techs. Corp., No. 2:15-CV-04144-NKL, 2015 WL 7738370, at *3 (W.D. Mo. Nov. 
30, 2015) (quoting Brewer v. Missouri Title Loans, 364 S.W.3d 486, 492 n.3 (Mo. banc 
2012)). “‘Missouri courts have eliminated all distinctions related to substantive and 
procedural unconscionability in adopting [a] more general framework.’” Golden Gate 
Logistics Inc. v. Selectrucks of Am., No. 4:19-00854-CV-RK, 2020 WL 831172, at *3 
(W.D. Mo. Feb. 19, 2020) (quoting Williams, 2015 WL 7738370, at * 3). The Notice 
Clause of the T&C purports to require Plaintiffs to give notice to Pulverizer of any 
alleged defect or breach within ten-days of the “delivery of goods.” PL RSF ¶ 239. The 
same T&C also provides that “delivery to buyer” is effectuated as of the time of the 
“delivery of goods or any part thereof to a carrier by seller consigned to buyer.” Id. The 
Delivery Clause afforded discretion to Pulverizer to control delivery of the goods, as the 
language contemplates that “part[s] thereof” may be delivered at different times. Id. The 
System was shipped to Plaintiffs’ Millville facility in no fewer than seven truck leads 
spanning at least twenty-four days. Id. ¶ 222. The pieces of the System were assembled 
on site over the course of several weeks. Id. ¶ 223. The co-existence of the Notice Clause 
and the Delivery Clause potentially made it impossible or impracticable for Plaintiffs to 
receive the full ten-day time period promised under the Notice Clause because as soon 
as Pulverizer delivered equipment, the ten-day period commenced. This staggering of 
deliveries bore the capacity to deprive Plaintiffs of their right to inspect and claim a 
defect on the complete System within the ten-day period. Furthermore, the Notice 
Clause’s ten-day period seemingly contradicts another provision of the T&C, wherein 
Pulverizer warrants that “any equipment or part thereof manufactured by Seller . . . [will 
be] free from defects . . . [for] one (1) year from the date of shipment by Seller . . . 
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provided Seller has been promptly notified.” Id. ¶ 239. Evaluating the enforceability of 
this provision under Mo. Ann. Stat. § 400.2-302, which adopts the UCC comment 
calling for such determinations to be made as a matter of law, the Court concludes that 
the Notice Clause is unconscionable.23 Where Pulverizer’s discretion to stagger the 
deliveries bore the capacity to deprive Plaintiffs of any meaningful opportunity to 
comply with this the ten-day notice period, this purported requirement represents a 
commercially unreasonable term that is severable from the contract. Thus, Pulverizer 
may not attempt to disclaim contractual liability by invoking the Notice Clause’s ten-day 
notice requirement. 
Additionally, Plaintiffs’ claims are not precluded at this stage by the return 
requirement set forth under Section 4(a) of the Limited Warranty. Section 4(a) of the 
Limited Warranty purports to limit Buyer’s remedies to repair or replacement of 
defective equipment or parts within one year from the date of shipment by Seller. Id. 
Section 4(a) conditions the availability of this remedy on the return of such equipment 
 
23 Mo. Ann. Stat. § 400.2-302 provides: (1) If the court as a matter of law finds the contract 
or any clause of the contract to have been unconscionable at the time it was made the 
court may refuse to enforce the contract, or it may enforce the remainder of the contract 
without the unconscionabl e clause, or it may so limit the application of any 
unconscionable clause as to avoid any unconscionable result. (2) When it is claimed or 
appears to the court that the contract or any clause thereof may be unconscionable the 
parties shall be afforded a reasonable opportunity to present evidence as to its commercial 
setting, purpose and effect to aid the court in making the determination. Mo. Ann. Stat. § 
400.2-302. Missouri adopts the UCC comment to this provision, stating that “[u]nder this 
section the court, in its discretion, may refuse to enforce the contract as a whole if it is 
permeated by the unconscionability, or it may strike any single clause or group of clauses 
which are so tainted or which are contrary to the essential purpose of the agreement, or it 
may simply limit unconscionable clauses so as to avoid unconscionable results.” Id . cmt. 
2. “[This] section is addressed to the court, and the decision is to be made by it. The 
commercial evidence referred to in subsection (2) is for the court’s consideration, not the 
jury’s. Only the agreement which results from the court’s action on these matters is to be 
submitted to the general triers of the facts.” Id. cmt. 3. 
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or parts to Seller at Seller’s plant in St. Louis, Missouri, freight prepaid, within one year 
from the date of shipment by Seller, and on the provision of notice of the defect(s). Id. 
Pulverizer suggests that Plaintiffs are barred from recovery under Section 4(a) because 
they failed to make the return. See Dkt. 229-2 at *15 (“The terms also state that, for any 
warranty claim, Buyer shall return the equipment or defective part to the Seller within 
one year of shipment.”). Under Missouri law, limitations on warranties may be 
unenforceable where the “remedy fails of its essential purpose or is unconscionable.” 
Global Petromarine v. G.T. Sales & Mfg., Inc., 2010 WL 5257659, at *8 (W.D. Mo. Dec. 
17, 2010) (citing R.S. Mo. § 400.2– 719(1)); see also Patterson Oil Co., 2015 WL 
6149594, at *4. To determine whether a warranty is subject to a limitation of remedies, 
courts will use “[a] plain interpretation of the contract language.” Id. Once again, 
“[w]hether a contract term is unconscionable depends on the facts relating to 
unconscionability impacting the formation of the contract.” Williams, 2015 WL 
7738370, at *3 (internal quotations and citation omitted). “Missouri courts have 
eliminated all distinctions related to substantive and procedural unconscionability in 
adopting this more general framework.” Id.; see also Brewer, 364 S.W.3d at 492-93 
n.3); (“[T]he analysis of this Court’s ruling today . . . no longer focuses on a discussion of 
procedural unconscionability or substantive unconscionability, but instead is limited to 
a discussion of facts relating to unconscionability impacting the formation of the 
contract. Future decisions by Missouri’s courts addressing unconscionability likewise 
shall limit review of the defense of unconscionability to the context of its relevance to 
contract formation.”). Failure of essential purpose arises under Mo. Rev. Stat. § 400.2-
719(2) (“Where circumstances cause an exclusive remedy to fail of its essential purpose, 
remedy may be had as provided in this chapter.”); see also Global Petromarine, 2010 
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WL 5257659, at *8 (“Under Missouri law, a sales agreement may provide for remedies in 
addition to or in substitution for those provided in the UCC and may limit or alter the 
measure of damages recoverable . . . unless the remedy fails of its essential purpose or is 
unconscionable.”). “[A] limited and exclusive warranty to repair or replace ‘fails of its 
purpose and is thus avoided under § 400.2– 719(2) wherever the warrantor fails to 
correct the defect within a reasonable period[.]’” R.W. Murray Co. v. Shatterproof Glass 
Corp., 758 F.2d 266, 272 (8th Cir. 1985); see also Givan, 569 S.W.2d at 247 (“When a 
manufacturer limits its obligation to repair and replacement of defective parts, and 
repeatedly fails to correct the defect as promised within a reasonable time, it is liable for 
the breach of that promise as a breach of warranty.”); Midwest Printing, Inc. v. AM 
Int’l, Inc., 108 F.3d 168, 171– 72 (8th Cir. 1997); Johnsen v. Honeywell Int’l Inc., No. 
4:14CV594 RLW, 2015 WL 631361, at *7 (E.D. Mo. Feb. 12, 2015). Determining whether 
a remedy fails of its essential purpose is a fact intensive inquiry. Trinity Products, Inc. v. 
Burgess Steel, L.L.C., 486 F.3d 325, 332 (8th Cir. 2007) (citing Bracey v. Monsanto Co., 
823 S.W.2d 946, 949 (Mo. banc. 1992); see also Zimmerman v. Gen. Mills, Inc., 327 F. 
Supp. 1198, 1202 (E.D. Mo. 1971)). Courts have viewed the issue of whether “a limited 
warranty has failed its essential purpose [as] a question of fact for the jury.” In re 
Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig., No. 1:14-CV-3722 JBS-JS, 2015 
WL 4591236, at *23 (D.N.J. July 29, 2015) (quoting Robinson v. Freightliner LLC, Civ. 
08– 761, 2010 WL 887371, at *4 (M.D. Pa. Mar. 10, 2010)) (internal quotations omitted). 
For instance, in R.W. Murray, Co. v. Shatterproof Glass Corp. the Eighth Circuit Court 
of Appeals upheld a jury finding that the defendant failed to replace defective product 
within a reasonable time and that defendant’s warranty disclaiming consequential 
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damages was therefore voided because the warranty was determined to have failed its 
essential purpose. R.W. Murray, Co., 758 F.2d at 272. 
Here, Plaintiffs have presented evidence from which a factfinder might infer that 
it was impracticable or impossible to comply with the return requirement of Section 4(a) 
by delivering the 46-piece, building-sized System components to Pulverizer’s plant in St. 
Louis, Missouri, within the specified one-year period. Considering this information 
alongside evidence that the Pulverizer Contract was signed on April 26, 2011 and the 
First Fire originating in the Zurik occurred on April 22, 2012, the return requirement 
potentially represents a commercially unreasonable term that unreasonably favors the 
drafter of the contract in this instance –  Pulverizer. The Court declines to find that this 
particular term is unconscionable and unenforceable as a matter of law at this stage, 
however, where such a determination hinges in large degree on the resolution of 
material disputes of fact concerning the propriety of the timing and form of notice. 
In addition to Plaintiffs’ evidence that compliance might have been impossible or 
impracticable, Plaintiffs have introduced information that Pulverizer was noticed of the 
tumbleback overflow issue and failed to satisfactorily remediate it. The parties’ 
contrasting evidence, as discussed supra at § IV c., creates a genuine question of 
material fact relevant to whether the warranty failed its essential purpose. See Johnsen, 
2015 WL 631361, at *7 (observing that a limited warranty to repair or replace fails of its 
essential purpose and is thus avoided under Mo. Rev. Stat. § 400.2– 719(2) wherever the 
warranty fails to correct the defect within a reasonable period.). Whether “a limited 
warranty has failed its essential purpose is a question of fact for the jury.” In re 
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Caterpillar, Inc., C13 & C15 Engine Prod. Liab. Litig., 2015 WL 4591236, at *23 
(quoting Robinson, 2010 WL 887371, at *4) (internal quotations omitted).  
In their affirmative motion for Summary Judgment, Plaintiffs argue that the 
Limited Warranty is unconscionable as a matter of law because Pulverizer sold the 
System to Plaintiffs while knowing it was defective. Dkt. 237-3 at *33-34; Dkt. 268 at 
*17-18; Dkt. 310 at *13-14. On this point, Plaintiffs have introduced evidence that 
Pulverizer sold the System knowing the System was designed to produce and deposit 
Zurik and fluff indoors –  a material known in the metal recycling industry to be 
combustible. PL SUMF ¶¶ 44-49, 64; Shattuck Dep., at 160:3-8; Shattuck Dep., at 
199:23-201:1; Anthony Dep., Vol. I, at 332:22-333:2; Wagner Dep., Vol. I, at 125:6-10; 
Tauke Dep., at 114:19-115:18. Plaintiffs posit that there was unfairness in the formation 
of the contract and disparate bargaining power because Pulverizer failed to warn of this 
known risk, while Plaintiffs had “‘no notice of [or] ability to detect’ the problem[.]” Dkt. 
237-3 at *31-32 (quoting Carlson v. General Motors Corp., 883 F.2d 287, 296 (4th Cir. 
1989)) (“As noted by Carlson and its progeny, this is a prima facie example of disparate 
bargaining power leading to a finding of unconscionability.”). On the other hand, 
Pulverizer has identified record evidence that Plaintiffs were warned on numerous 
occasions, including before their purchase, that the fluff in Zurik was flammable and 
should be kept outdoors. See Dkt. 257-1 ¶ 11; Shattuck Dep. 154:2-4, 154:24-155:18, 
201:16-22. The circumstances therefore do not clearly point to gross unfairness in the 
formation of the contract rooted in a disparity of knowledge and bargaining power 
where evidence has been presented that Plaintiffs were experienced in business and 
informed of this risk prior to purchase.   
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Pulverizer further attempts to limit Plaintiffs’ recovery based on Section 4(d) of 
the Limited Warranty, which states: “THIS WARRANTY IS IN LIEU OF ALL 
WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE, OR OTHER 
WARRANTIES, EXPRESS OR IMPLIED.” PL RSF ¶ 239. Agreements among parties to 
exclude express and implied warranties and provide limited remedies as part of their 
terms are enforceable (Mo. Rev. Stat. § 400.2-316) . . . unless the remedy fails of its 
essential purpose[.].” Global Petromarine, 2010 WL 5257659, at *8. Where a warranty 
fails its essential purpose, it will be disregarded. Golden Gate Logistics Inc., 2020 WL 
831172, at *4. Because sufficient evidentiary matter has been introduced to create a 
genuine dispute of material fact on the question of whether the warranty failed its 
essential purpose, as discussed, Section 4(d) does not foreclose liability as a matter of 
law with respect to alleged breaches of other warranties, including implied warranties. 
In consideration of the foregoing, the terms of the Limited Warranty neither 
preclude recovery nor automatically entitle Plaintiffs to a remedy as a matter of law at 
this stage. Thus, neither party is entitled to summary judgment on Plaintiffs’ breach of 
express warranty claims.
24 
e. Plaintiffs’ Breach of Implied Warranty Claims 
 
Pulverizer seeks summary judgment on Plaintiffs’ claims for breach of implied 
warranty. In support of its position, Pulverizer argues that “because Plaintiffs based 
their allegations of implied warranty on an alleged defective product, these claims are 
 
24 Consistent with the forgoing analysis, Pulverizer will be precluded from invoking the 
Notice Clause’s ten-day notice requirement to disclaim contractual liability or in support 
of any of its defenses, as this provision represents an unconscionable and severable term. 
 
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subsumed into the [NJ]PLA” and must be dismissed. Dkt. 229-2 at *16. In response, 
Plaintiffs contend that their breach of implied warranty claims “are an outcropping of 
the Plaintiffs having not received what they paid for, rather than harm caused by the 
System[,]” and therefore are not the type of claims intended to be covered by the 
NJPLA. Dkt. 268 at *24. Plaintiffs argue that the harm alleged under their implied 
warranty claims is separate and distinct from the harms contemplated by the NJPLA 
because the damage is to the System itself where the System contained defects resulting 
in consequential, anticipated economic losses. See id. 25 
The NJPLA states that a “Product liability action” is “any claim or action brought 
by a claimant for harm caused by a product, irrespective of the theory underlying the 
claim.” N.J.S.A. § 2A:58C-1b(3). Under the NJPLA, “Harm” means “(a) physical damage 
to property, other than to the product itself; (b) personal physical illness, injury or 
death; (c) pain and suffering, mental anguish or emotional harm; and (d) any loss of 
consortium or services or other loss deriving from any type of harm described in 
subparagraphs (a) through (c) of this paragraph.” N.J.S.A. § 2A:58C– 1(b)(2).  
“To determine whether the PLA subsumes a particular claim, courts examine the 
essential nature of the claim presented and decide whether the claim would traditionally 
be considered a products claim.” Rodnite v. Hovnanian Enters., Inc., No. 08– 3787, 
 
25 Because this Court is sitting in diversity in New Jersey and both parties cite exclusively 
to New Jersey caselaw in their respective briefing on this specific point of argument, the 
Court will evaluate the viability of Plaintiffs’ breach of implied warranty claims under New 
Jersey law for purposes of the present motion. See Dkt. 229-2 at *16-18; Dkt. 268 at *22-
25; see also Abira Med. Lab’ys, LLC v. Nat’l Ass’n of Letter Carriers Health Benefit Plan, 
No. CV2305142GCDEA, 2024 WL 1928680, at *2 n.3 (D.N.J. Apr. 30, 2024) (“Because 
this Court is sitting in diversity in New Jersey and both parties cite New Jersey case law, 
the Court will accept that New Jersey law applies[.]”). 
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2010 WL 3079576, at *3 (D.N.J. Aug. 5, 2010). “[I]f the facts of a case suggest that the 
claim is about defective manufacture, flawed product design, or failure to give an 
adequate warning, then the PLA governs and the other claims are subsumed.” New 
Hope Pipe Liners, LLC, 2009 WL 4282644, at *2. Conversely, “when the ‘essential 
nature’ of the claim is not a products liability claim, the plaintiff may maintain a 
separate cause of action.” Id.; see also Piemonte v. Viking Range, LLC, No. 2:14-CV-
00124 WJM, 2015 WL 519144, at *3 (D.N.J. Feb. 9, 2015). 
Interpreting the NJPLA’s reach, New Jersey courts have observed that “[t]he 
Product Liability Act and common law tort actions do not apply to damage caused to the 
product itself, or to consequential but purely economic losses caused to the consumer 
because of a defective product.” Ford Motor Credit Co., LLC, 427 N.J. Super. at 240 
(App. Div. 2012) (citing Dean v. Barrett Homes, Inc., 204 N.J. 286, 294-98 (2010); see 
also Est. of Knoster v. Ford Motor Co., No. CIV.A. 01-3168(MLC), 2008 WL 5416399, at 
*9 (D.N.J. Dec. 22, 2008); Rosenthal v. SharkNinja Operating LLC, No. 16-1048, 2016 
WL 5334662, at *2 (D.N.J. Sept. 22, 2016).  
As comprehensive as the Products Liability Act is and appears to be, its 
essential focus is creating a cause of action for harm caused by defective 
products. The Act’s definition of harm so as to exclude damage a defective 
product does to itself is not merely the Legislature’ s embrace of the 
economic loss rule, but a recognition that the Act ’s goal is to serve as a 
vehicle for tort recoveries. Simply put, the Act is not concerned with 
providing a consumer with a remedy for a defective product per se; it is 
concerned with providing a remedy for the harm or the damage that a 
defective product causes to people or to property. 
 
Dean, 204 N.J. at 304-05 (“In enacting the Products Liability Act, our Legislature did 
not intend it to be . . . designed to transform a contract-like claim, that is a claim that the 
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product itself in some fashion fails to operate as it should, into a tort claim”). As the 
Supreme Court of New Jersey explained in Alloway v. General Marine Industries, L.P., 
[t]ort principles more adequately address the creation of an unreasonable 
risk of harm when a person or other property sustains accidental or 
unexpected injury. When, however, a product fails to fulfill a purchaser ’s 
economic expectations, contract principles, particularly as implemented by 
the U.C.C., provide a more appropriate analytical framework. 
 
Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 628 (1997); see also Adams Extract 
& Spice, LLC v. Van de Vries Spice Corp., No. CIV.A. 11-720 JAP, 2011 WL 6756973, at 
*5 (D.N.J. Dec. 23, 2011). “[E]conomic loss encompasses actions for the recovery of 
damages for costs of repair, replacement of defective goods, inadequate value, and 
consequential loss of profits” as well as “the diminution in value of the product because 
it is inferior in quality and does not work for the general purposes for which it was 
manufactured and sold.” Id. at 627 (internal quotations and citations omitted). 
In this case, the product at issue is a complex and costly piece of machinery that 
was negotiated and contracted for, designed to unique specifications, and formed the 
operational keystone of Plaintiffs’ business. As Plaintiffs set forth in their opposition, the 
essence of the harm for which recovery is sought under Count Five is not the broad-
ranging harm caused by the System, but the specific harm that the defect caused to the 
System itself. See Dkt. 268 at *24. These harms may encompass losses flowing from 
“damages for costs of repair, replacement of defective goods, inadequate value, and 
consequential loss of profits” as well as “the diminution in value of the product because 
it is inferior in quality and does not work for the general purposes for which it was 
manufactured and sold.” Alloway, 149 N.J. at 627 (internal quotations and citations 
omitted). Far from incidental, Plaintiffs’ alleged economic losses proceeding from these 
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specific harms comprise a substantial component of Plaintiffs’ total economic losses.26 
See, e.g., Pulverizer Contract at P00024 (“[t]he price for the system as outlined above is 
. . . $4,103,790.00 F.O.B. St. Louis, Missouri[.]”); PL SUMF ¶ 84. To be sure, Plaintiffs 
allege “physical damage to property, other than to the product itself” such as adjacent 
structures and electrical systems that undoubtably falls within the NJPLA’s definition of 
“[h]arm[.]” N.J.S.A. § 2A:58C– 1(b); see, e.g., Compl. ¶ 69. But the inclusion of these 
harms does not lead to Plaintiffs’ implied warranty claims being subsumed by the 
NJPLA here where the losses stemming from the physical damage to the System itself –  
Plaintiffs’ principal operational asset –  and the deprivation of its use are comparatively 
substantial and sufficiently distinguishable from the broad harms encompassed by 
 
26 Though s pecifically excluded from the PLA are  causes of action alleging “physical 
damage to property, other than to the product itself” (N.J.S.A § 2A:58C– 1b(2)), “the lost 
value of the  product itself does not preclude the claim [ from] being subsumed by the 
NJPLA” (Montich v. Miele USA, Inc. , 849 F. Supp. 2d 439, 457 n.14 (D.N.J. 2012) ). 
However, in cases where allegations of economic losses related to the value of a product  
were insufficient to permit claims independent of the NJPLA, the common theme in those 
cases is that such harms were incidental to the products ’ harmfulness to individuals or 
other property at the core of the matters. See, e.g., Fellner v. Tri-Union Seafoods, L.L.C., 
No. CIVA06-CV-0688 (DMC), 2010 WL 1490927, at *5 (D.N.J. Apr. 13, 2010) (“The fact 
that Plaintiff, here, seeks economic damages to reimburse her for the cost of the product 
(in addition to personal injury damages) does not change the fact that this is, in essence, 
a product liabilities claim.”); Kury v. Abbott Lab’ys, Inc., No. CIV.A. 11 -803 FLW, 2012 
WL 124026, at *5 (D.N.J. Jan. 17, 2012) (“any economic loss or non -economic loss -
including the cost of purchasing the Similac products-Plaintiff allegedly suffered, resulted 
from her infant ingesting the powder formulas, which  arises solely under product 
liability.”); Arlandson v. Hartz Mountain Corp. , 792 F. Supp. 2d 691, 703 (D.N.J. 2011) 
(“Plaintiffs attempt to classify their claims as non-product liability claims by alleging only 
economic damages related to the price of the product as opposed to damages related to 
the harm caused by the product . .  . [but] [h]ere Plaintiffs [sic] allegations are based on 
the harm caused to their pets by the alleged defects in the Products, not based on any 
harm caused to the Products themselves . . . While Plaintiffs point to various cases finding 
that the NJPLA does not subsume claims for economic damages resulting from harm to 
the product itself, these cases are inapplicable here . . . In those cases, the product itself 
was destroyed or harmed by some defect or problem with product.”). 
 
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NJPLA. Because these true harms are inseparably bound with the core of Plaintiffs’ 
commercial transaction with Pulverizer, the Court cannot ignore that the gravamen of 
their claims fundamentally arise from the contract-based theory that Plaintiffs’ “did not 
get what [they] paid for[.]” Gorczynski v. Electrolux Home Prods., Inc., No. 18-10661, 
2019 WL 5304085, at *3 (D.N.J. Oct. 18, 2019) (citing Volin v. Gen. Elec. Co., 189 F. 
Supp. 3d 411, 418 (D.N.J. 2016); see also Adams Extract & Spice, LLC, 2011 WL 
6756973, at *5 (“Where the damages occur at the core of a commercial transaction, they 
are compensable only in contract.”) (internal quotations and citations omitted). As such, 
Plaintiffs’ breach of implied warranty claims may proceed on the condition that 
Plaintiffs are foreclosed from recovering damages under Count Five for harms caused to 
other property, which are properly pursued under the NJPLA.27 
f. Plaintiffs’ Claims for Breach of Implied Covenant of Good Faith 
& Fair Dealing 
 
Pulverizer argues that Plaintiffs’ count alleging breach of the implied covenant of 
good faith and fair dealing must be dismissed where New Jersey law requires proof of 
bad motive to prevail on such claims. Dkt. 229-2 at *18-19. Specifically, Pulverizer 
claims that “there have been no documents, testimony or discovery that indicate that 
Moving Defendant had any bad motive or intention[.]” Id. at *19. Pulverizer contends 
that without such evidence Plaintiffs are unable to prove the essential element that a 
breach was exacted under a bad motive or intention, and that these claims are therefore 
indistinguishable from Plaintiffs’ count asserting breach of contract and necessarily fail. 
 
27 As to Pulverizer’s argument that “Plaintiffs agreed to waive the implied warranty under 
which they now seek to bring claims” (Dkt. 229-2 at *17), the Court finds that Section 4(d) 
of the Pulverizer Contract does not foreclose liability as a matter of law on Count Five for 
the same reasons set forth in Section IV. d., supra. 
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See Wilson v. Amerada Hess Corp., 168 N.J. 236, 251 (2001) (observing the 
requirement of demonstrating bad motive to prevail on a claim for breach of the implied 
covenant of good faith and fair dealing under New Jersey law). 
The substantive distinction between the laws of New Jersey and Missouri, and 
the Court’s application of the latter as addressed supra, is material to the viability of 
Plaintiffs’ claims on this count. Unlike New Jersey, Missouri law does not require proof 
of a defendant’s “bad motive or intention” in taking actions to deny a plaintiff the 
benefit of the bargain originally contemplated by the parties. Compare Brunswick Hills 
Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 225 (2005) with 
Glenn v. HealthLink HMO, Inc., 360 S.W.3d 866, 877 (Mo. Ct. App. 2012) (“A party 
breaches the covenant of good faith and fair dealing if it exercises a judgment conferred 
by the express terms of the agreement in a manner that evades the spirit of the 
agreement and denies the movant the expected benefit of the agreement.”).
28 
Here, the record contains evidence to permit a reasonable inference that 
Pulverizer acted to deprive Plaintiffs of the benefit of their bargain. Specifically, and as 
already discussed, Plaintiffs have adduced facts that Pulverizer failed to take action to 
remedy the System defects in accordance with its obligations under the Contract and 
 
28 In Missouri, all contracts have an implied covenant of good faith and fair dealing. 
Farmers’ Electric Co– op., Inc. v. Missouri Dept. of Corrections, 977 S.W.2d 266, 271 (Mo. 
banc 1998). The duty created by the implied covenant restricts parties from “exercis[ing] 
a judgment conferred by the express terms of agreement in such a manner as to evade the 
spirit of the transaction or so as to deny the othe r party the expected benefit of the 
contract.” City of St. Joseph v. Lake Contrary Sewer Dist., 251 S.W.3d 362, 370 (Mo. App. 
W.D. 2008) (internal quotations and citation omitted). The implied covenant is intended 
to prevent opportunistic behavior where one party exploits changing economic conditions 
to the detriment of the other party. Zubres Radiology v. Providers Ins. Consultants, 276 
S.W.3d 335, 340 (Mo. App. W.D.2009). 
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instead attempted to void the warranty. See, e.g., Plaintiffs’ Omnibus Response to 
Defendants’ Statement of Undisputed Material Facts Including Additional Facts Not in 
Dispute ¶ 242 [Dkt. 268-1] (“PL ORSUMF”). This alleged conduct finds sufficient 
support in the record to put the question of whether Pulverizer breached the implied 
covenant of good faith and fair dealing to the jury. 
g. Plaintiffs’ Damages 
 
The Court rejects the challenge advanced by Pulverizer that Plaintiffs have failed 
to proffer meritorious evidence establishing damages for the same reasons set forth in 
Section III. D., supra.  
V. Conclusion 
 
For the reasons set forth herein, and as provided in the Court’s Order, the 
motions at Dkt. 227 and Dkt. 229 will each be granted in part and denied in part 
consistent with the foregoing. 
Dated: May 2, 2025 
 
/s/ Joseph H. Rodriguez 
Joseph H. Rodriguez 
United States District Judge 
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