           COMMON LAW FRAUD          NEGLIGENCE     STRICT TORT LIABILITY   1.5 liters, minimum blowing time of 4.5 seconds, minimum flow rate of 2.5 liters, and the IR  measurement reading achieves a plateau.   15. All persons arrested in Union County for drunk driving who blew into the Alcotest  7110 where a result was reported and said result was used as part of the proofs of guilt and the  plaintiffs plead guilty or were convicted after trial of drunk driving pursuant to N.J.S.A. 39:4-50  or all persons arrested in Union County for drunk driving who blew into the Alcotest 7110 where  a result which was under the minimums necessary for a reported result and the plaintiffs plead  guilty or were convicted after trial of drunk driving pursuant to N.J.S.A. 39:4-50 or of refusal to  submit to chemical test pursuant to N.J.S.A. 39:4-50.4a will be part of a Sub Class whose  representative will be Edwin Aguaiza, who will be represented by separate counsel.   31. Paragraphs 1 through 30 are realleged and incorporated by reference.   32. The Alcotest must report four minimums for a breath sample: minimum volume of   33. Since breath testing always relies on the extrapolation of BAC through testing of  breath, precision is critical.   34. Draeger was negligent in designing/manufacturing the Alcotest in that there is no  provision to calibrate the pulmonary function reported. Moreover, the equipment is not  standardized by design at frequent intervals.                                                35. The defect existed at the time the article left the control of the manufacturer and did  not undergo substantial change.   36. The Plaintiffs and other Class members were foreseeable users or consumers, or were  within the area exposed to the risk.                                             37. The defect was the proximate cause of the harm to Plaintiffs and other Class members   who faced prosecution with tainted evidence on a per se basis.   39. Paragraphs 1 through 38 are realleged and incorporated by reference.   40. The Plaintiffs claim that the Alcotest was defectively designed in that there is no  provision to calibrate the pulmonary function reported. Moreover, the equipment is not                                                 standardized by design at frequent intervals.         41. The defect existed at the time the article left the control of the manufacturer and did  not undergo substantial change.   42. The Plaintiffs claim that the Alcotest did not safely perform the job or function for  which it was made, contrary to the consumer’s/user’s reasonable expectations.                                   43. The Plaintiffs claim that Draeger was not reasonably careful in the manner in which it  designed, marketed, and sold the Alcotest.   44. The Plaintiffs and other Class members were foreseeable users or consumers, or were  within the area exposed to the risk.   45. The defect was the proximate cause of the harm to Plaintiffs and other Class members  who faced prosecution with tainted evidence on a per se basis.   47. Paragraphs 1 through 46 are realleged and incorporated by reference.   48. On various dates between October 5, 2006 and December 12, 2006, Hansueli Ryser,  Vice President of Draeger Safety Diagnostic, Inc., gave testimony as an expert witness in  electrical engineering for his employer, Draeger under oath before the Honorable Michael P.  King, who presided over the Chun Fact Finding Hearing. Since 1991, Ryser was continuously  employed by Draeger.    49. Ryser graduated with a degree in electronic engineering from the Federal College of  Technology in Zurich, Switzerland.  Ryser continued his education at the University of   Colorado where he took courses related to quality control and quality assurance. Ryser received  training at the Center for Studies of Law and Action at the University of Indiana where he was  certified for supervision and expert testimony.                                   50. Ryser testified, “So no maintenance needed other than verifying, of course, proper  operating – that it’s operating properly at the time when the unit is calibrated. And after that you  do not have to maintain it or it’s going to stay alive without doing anything to it.”  He continued  that this was the conclusion of Draeger. See PA 5-6.   52. Ryser testified that he was 100 percent convinced that the Alcotest accurately reads  alcohol in human breath. See PA 8-9.   53. Ryser testified, “We all along said that breath analyzer is accurate if it’s within  NHTSA specifications.” See PA 10-11.  54 Ryser testified that Draeger maintained quality assurance and quality control. See PA  12-13.   55. The Plaintiffs allege that the representations mentioned above were false when Ryser         made them, in that he knew the Alcotest was not a calibrated scientific instrument, but that it was  designed to appear to be calibrated. By walling off its pulmonary functions from the operator,   Draeger made the automated control testing appear to calibrate the entire operating system, but  in fact the pulmonary readings are reported randomly by the unit. Moreover, the equipment is not  standardized by design at frequent intervals.    56. The Plaintiffs allege that Ryser knew that the representations about quality were false,  in that the Quality Assurance Plan that Draeger filed in 2001 pursuant to 49 CFR, Part 40 with  the U.S. Department of Transportation (DOT) would not assure that the device could accurately  record the minimums reported. See PA 14-15.   57. Ryser knew that the Food and Drug Administration (FDA) regulates breath-alcohol  testing systems pursuant to 21 CFR862.3050. Ryser knew that Draeger did not comply with said  regulations. Consequently, Ryser knew that Draeger maintained a self- serving assurance plan.  See PA 16-30.   59. Draeger made the representations mentioned above with the intent and the purpose of  deceiving the State of New Jersey and to induce the State of New Jersey into relying on the  representations.                                          60. The State of New Jersey, in reliance on the representations mentioned above, was  induced to contract with Draeger. The State of New Jersey’s reliance on the representations  mentioned above was reasonable under the circumstances, in that Draeger had a long history and  professional credentials in the field of engineering.    61. The Plaintiffs and other Class members were foreseeable users or consumers, or were  within the area exposed to the risk.   62. The fraud was the proximate cause of the harm to Plaintiffs and other Class members  who faced prosecution with tainted evidence on a per se basis.   63. Solely as a consequence of Draeger’s fraudulent conduct, the Plaintiffs have been  damaged in the amount not yet determined, but which exceed the jurisdictional amount; and each  member of the Class has been similarly damaged in amounts not yet determined, but which  exceed the jurisdictional amount for each such member of the Class, exclusive of interest and  costs. 