PER CURIAM.
Judgment was entered against defendant Invacare Corporation (Invacare) following the jury's determination that it had manufactured a defective hospital bed that proximately caused a fire resulting in death, personal injuries and property damage at an apartment building in Fort Lee. The total judgment reflected the aggregate of insurance claims paid by plaintiffs Great Northern Insurance Company (Great Northern), Federal Insurance Company (Federal), Vigilant Insurance Company (Vigilant), Atlantic Mutual Insurance Company (Atlantic Mutual), Chubb Insurance Company of New Jersey (Chubb), and Travelers Indemnity Company (Travelers) as a result of the fire, as well as damages for personal injuries suffered by plaintiff Amy Herde.
The tragic fire at issue took place on May 18, 2005 in apartment 26A, 1500 Palisades Avenue, Fort Lee, where Martin Schwartz and his daughter, Meryl, resided. In 2002 and again in 2005, Schwartz rented Invacare hospital beds from At Home Medical (At Home and, collectively, defendants), for his daughter's use. Meryl suffered from Pick's disease,
In 2006 and 2007, various plaintiff insurers filed complaints against defendants seeking subrogation for claims paid to their insureds in connection with the fire. Herde also filed a complaint for damages resulting from her injuries. Defendants answered the complaints generally denying liability, and the cases were consolidated.
Pre-trial, defendants moved for summary judgment, or alternatively to exclude certain evidence at trial, including evidence: 1) that Invacare had recalled the electrical junction box (J-box) used on some of its hospital beds manufactured between August 1998 and October 2000; and 2) that "adverse event reports" had been filed with the United States Food and Drug Administration (the FDA) regarding fires involving Invacare hospital beds.
Defendants renewed their motion in limine regarding the evidentiary issues immediately before trial. The judge denied the motion. At trial, defendants moved unsuccessfully for a directed verdict on two occasions, once, after plaintiffs' liability experts had testified, and again at the close of plaintiffs' case. The judge denied those motions.
On multiple occasions during the trial, defendants renewed their objection to the admission of evidence of the recall and adverse event reports. The judge overruled the objections. Defendants' motion for a mistrial made at the end of plaintiffs' case based upon the admission of this evidence was denied, but the judge decided to provide a limiting instruction to the jury.
The jury returned a verdict for plaintiffs against Invacare, but found no cause of action against At Home. On August 3, 2009, the judge entered an order for final judgment in the amount of $1,284,395.46 as follows: to Great Northern, Federal, Chubb, and Vigilant, $321,786.67; to Atlantic Mutual, $147,907.52; to Travelers, $411,391.49; to Chubb, $228,309.78; and to Herde, $175,000.
Invacare contends that the trial judge erred in not granting its motions for dismissal or judgment. Alternatively, it seeks reversal and remand for a new trial based upon the evidentiary rulings made by the judge, and an allegedly misleading and incomplete verdict sheet given to the jury.
We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.
Testimony at trial revealed that the movements of the bed used in Meryl Schwartz's bedroom were controlled by three motors mounted at the foot of the bed. The motors were in turn controlled by circuitry contained in the J-box, also mounted at the foot of the bed; a pendant control, also connected to the junction box, allowed for operation of the bed's movements. A power cord ran under the bed from the J-box to a wall outlet.
Herde testified that on the day of the fire, while she was making oatmeal in the apartment's kitchen, she smelled something burning and went to the bedroom to check on Meryl. She observed smoke and sparks coming from under the foot of the bed. Herde attempted to drag Meryl out of the apartment, but succumbed to smoke and fumes near the apartment door. In speaking to an investigating detective after the fire from her hospital bed at the St. Barnabas Medical Center burn unit, Herde reported seeing sparks coming from the wall outlets. However, Herde, who had been administered significant pain medication at the time, had no recollection of that conversation at trial.
Richard Sylvia investigated the fire on behalf of the Bergen County Prosecutor's Office. Based upon the burn patterns found at the scene, he determined that the fire originated underneath the hospital bed. Although the bed had been plugged into a wall outlet, Sylvia found no evidence that the fire originated in any of the light switches or wall outlets. Nor was anything under the bed that could have served as a source of ignition.
Silvia wrote in his official report that the fire "was ignited by an unknown source" and its cause was "undetermined." Because his function was to determine whether a crime had occurred, Silvia did not conduct an investigation into the cause of the fire. After finding no evidence of arson, and determining the fire was accidental, Silvia "back[ed] off" and left any further investigation to others employed by plaintiffs.
Kevin Dallos, Travelers' fire investigator, also concluded the cause of the fire was "undetermined." He agreed with Silvia that the fire originated in the bedroom, but he could not determine where specifically, due to the condition of the room when he performed his investigation, i.e., walls had been taken down and furniture removed.
Harry Hansen, plaintiffs' expert in fire science and cause and origin investigations, however, testified that "[c]learly the fire originated in the vicinity of the Invacare hospital bed." He "believe[d] the origin was within the bed." Hansen could not determine the precise cause of the fire, explaining that relevant investigative guidelines "set[] a very high standard on origin and cause, and basically if you cannot prove to a scientific degree what the cause of the fire is, you have to call it `undetermined.'" He found no evidence of "any adverse electrical activity," such as arcing or shorting, which would indicate the fire originated in an electrical wire or outlet. Therefore, he eliminated those items as a cause of the fire.
Christoff Flaherty, plaintiffs' expert in electrical engineering with training in determining fire cause and origin, testified that the fire originated underneath the Invacare bed and "was caused by an electric fault in the control circuitry, the motors and/or the associated wiring" located underneath the bed. Based upon the location of the origin of the fire, the electrical components of the bed were the only possible cause. Flaherty, however, could not identify a specific malfunction or the mode of failure in the electrical components because of the damage caused by the fire and firefighting efforts.
Although there was some damage to the electrical outlet near the bed, Flaherty believed this was consistent with the outlet having been engulfed by the fire, rather than having caused it. He ruled out everything other than the Invacare bed as the cause of the fire.
John Mertens, defendants' expert in electrical systems evaluation and fire cause and origin, took issue with the quality of the investigations performed by plaintiffs' witnesses, particularly Silvia and Flaherty. He disagreed with their analyses, finding no evidence of an electrical fault in the bed. Mertens concluded there were other possible causes of the fire, including other electrical devices in the room, damaged electrical cords, and, most likely, a pinched electrical wire. Mertens opined that the cause of the fire was "undetermined." He identified the area of the fire's origin as being:
In Mertens' opinion, it was impossible to more specifically identify the area of origin.
In addition to the expert testimony, plaintiffs called David Ferguson, the director of operations for A.H.S. Investment Corporation, the parent of At Home, as a witness. In August 2001, Invacare advised At Home by letter that some of its electric beds "manufactured from August 1998 through October 2000" contained "[a] component inside the [J-box] . . . [that] could fail and . . . cause the . . . box to overheat." The recall notice contained the serial numbers of the affected beds and J-boxes. Invacare advised At Home of the number of "foot spring[s]," i.e., foot boards, and J-boxes in At Home's inventory, and noted "on hand inventory should be inspected immediately and replacements made where applicable."
Ferguson testified that the company took steps to comply with Invacare's recall. He ordered a total of 239 replacement units, which was the number of affected beds identified by Invacare, and he advised staff to "verify each bed that is on [sic] our on hand inventory and implement the upgrade if appropriate." However, since the company did not "track [its] bed inventory by serial numbers," Ferguson concluded that "the most efficient way to comply with th[e] recall [wa]s to verify the serial number[s] and implement the upgrade . . . when the bed[s] [were] returned from a patient, but before the unit[s] [were] returned to inventory." At Home also directly advised patients with Invacare beds of the recall.
Ferguson further testified that "all 239 [replacements] were utilized." Moreover, since the bed in question was delivered to Schwartz in 2002, a full year after the recall, Ferguson testified that it "would [have] been inspected prior to being delivered." However, Ferguson acknowledged that At Home did not keep specific records of its actions regarding the recall, and that, in its everyday operations, At Home interchanged the component parts of the bed freely and as necessary to repair or replace beds in its inventory.
Plaintiffs also called Ronald Clines, Invacare's director of regulatory affairs, as a witness. Clines testified that the Schwartz bed had been manufactured before May 1998 and would not have been subject to the recall. He further testified that based upon his examination of the remains of Meryl's bed, and his knowledge of the different models of Invacare beds, "[t]here's no possibility that the recall[ed] [J]-box was on the bed." Clines noted that the recalled J-box models would not fit on the mounting bolts on the foot spring of the Schwartz bed, and were not compatible with the motors on the bed.
Plaintiffs, however, challenged Clines' credibility, in part, through the adverse event reports. On direct examination, the following exchange took place:
Plaintiffs' counsel then presented Clines with twenty FDA adverse event reports relating to fires involving Invacare beds, questioned him about his failure to mention these incidents at his deposition, and probed him regarding detailed information contained in several of the reports. Some reports pre-dated the recall notice and involved the same model bed as the Schwartz bed. The documents themselves were not introduced into evidence.
Plaintiffs' counsel successfully argued first to the judge, and ultimately to the jury in summation, that based upon At Home's implementation of the recall, a recalled J-box model could have been on Meryl's bed at the time of the fire. Pre-trial and at trial, defendants maintained there was insufficient evidence to conclude that the bed contained a recalled model of the J-box.
We first address Invacare's argument that the judge should have granted its motions and dismissed plaintiffs' complaint. It contends that plaintiffs failed to establish that the fire was caused by a defect in the bed. To the extent the judge relied upon Flaherty's opinions to deny its motions, Invacare argues they were inadmissible net opinions.
Consideration of motions seeking dismissal, pursuant to
Initially, Invacare's argument that Flaherty's opinions were inadmissible net opinions is without sufficient merit to warrant extensive discussion.
Plaintiffs were required to prove that 1) the bed was defective; 2) the defect existed at the time it left Invacare's control; and 3) the defect proximately caused injuries to a reasonably foreseeable user.
In this case, plaintiffs did not have direct or circumstantial evidence of a specific defect and proceeded under a third mode of proof, the so-called "`indeterminate product test,'"
"Under that approach, a plaintiff does not have to negate all possible causes of failure, only those likely causes of failure."
The
Viewed in its entirety, the evidence presented at trial was sufficient to sustain judgment in plaintiffs' favor under the indeterminate product test. Silvia and Flaherty testified that the fire originated under the bed, and Hansen believed the fire originated within the bed; Herde testified that she observed smoke and sparks coming from under the foot of the bed; and Flaherty testified that the fire was caused by an electric fault in the bed's control circuitry. Moreover, Silvia, Hansen and Flaherty found no evidence that the fire had originated in the light switches or wall outlets, and Silvia and Flaherty agreed that there was nothing under the bed, other than bed components, that could have ignited the fire.
Therefore, a reasonable jury could conclude that, more likely than not, the bed was defective; the defect existed when the bed left Invacare's control; and the defect was the proximate cause of plaintiffs' damages.
We turn to the evidentiary arguments raised by Invacare, noting initially that "[i]n reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion."
Invacare argues that the admission of evidence of the 2001 recall of J-boxes was error because: 1) it was irrelevant since plaintiffs chose to proceed under the "indeterminate product test" and did not intend to prove a specific defect; and 2) there was no evidence that any of the recalled models of the J-box were actually on the Schwartz bed. Invacare argues the adverse incident reports were inadmissible as direct evidence of a product defect, and the totality of the testimony "[w]ent [f]ar [b]eyond [t]he [l]imited [p]urpose of [i]mpeaching [Clines'] [c]redibility." Plaintiffs contend that proof of a product recall is relevant even under the "indeterminate product defect test" mode of proof, that the evidence as to whether a recalled J-box was on the bed was sufficient to raise a factual question for the jury to resolve, and, alternatively, that the evidence was admissible to affect Clines' credibility. As to the adverse incident reports, plaintiffs argue that the testimony was relevant to impeach Clines' credibility.
As noted, defendants objected to admission of the recall evidence on multiple occasions, and also moved for a mistrial on these grounds. Pretrial, the judge concluded that whether a recalled J-box was on the bed presented "an issue of credibility" for the jury. Regarding the adverse incident reports, he determined they were admissible "for a very limited purpose . . . credibility."
However, after hearing the relevant evidence, the judge expressed significant doubt as to whether the jury could infer that the J-box on the Schwartz bed was subject to the recall. After denying defendants' motion for a mistrial, the judge indicated he would provide a limiting instruction. He gave the following charge to the jury:
Regarding the evidence of adverse incident reports, the judge determined it was admissible to affect Clines' credibility. He included the following charge in his final jury instructions:
We conclude that evidence of the recall and adverse incident reports should not have been admitted, and that the evidence had a clear capacity to bring about an unjust result.
Evidence of a product recall may be admissible to prove that the defect arose while the product was in the defendants' control.
Here, evidence of a recall could have been relevant to prove that the junction box was defective when it left Invacare's control, and was probative, even under the "indeterminate product test" theory. However, we agree with Invacare that there was insufficient evidence to establish that a recalled junction box was on the bed at the time of the fire. In fact, the overwhelming evidence was to the contrary and the prejudicial effect of the testimony significantly outweighed any probative value.
Although there was evidence that the bed came in interchangeable pieces, and that At Home would sometimes interchange parts from various beds, the undisputed evidence established that the J-box attached to the foot spring would interface only with compatible beds. Clines' testimony in this regard was essentially undisputed.
It was also undisputed that the Schwartz bed was not manufactured between August 1998 and October 2000, the period specifically identified in the recall. The fact that At Home did not track the replacements by serial number does not, in itself, provide any basis to infer that the bed was the subject of the recall in the first instance. Moreover, it was undisputed that Schwartz did not rent the subject bed for his daughter until 2002, more than a year after the recall.
There was also no evidence to support plaintiffs' argument that At Home's implementation of the recall permitted an inference that the recalled junction box was on the bed. According to Ferguson, At Home switched the junction boxes of those beds in its inventory and switched those on other beds as they were returned. Thus, a bed rented more than one year after the recall was implemented, if it contained the affected J-box, would have either had the upgrade installed while it was in At Home's inventory, or received the upgrade when returned to inventory but before it was leased to Schwartz. At Home Medical received 239 replacement J-boxes from Invacare and utilized all of them.
Nor did the recall evidence impeach Clines' credibility in any fashion. Clines testified that he recommended implementation of the recall based upon reports of malfunctions in certain J-boxes and one incident of a fire. There was nothing contained in the recall notice, or any evidence adduced regarding the notice, that served to impeach this statement.
It is beyond cavil that evidence of the recall was highly prejudicial. Despite the inability of their experts to pinpoint the cause of the fire, since At Home was still in the case, plaintiffs were able to suggest to the jury that the recall had been negligently implemented, leaving open the possibility that a recalled J-box was on the Schwartz bed and caused the fire. Admission of this evidence alone requires reversal.
On the record presented, it was also reversible error to permit plaintiffs to cross-examine Clines through the use of the adverse event reports.
FDA reports of this nature have been held to be inadmissible as substantive evidence of causation.
Here, plaintiffs never sought to introduce the reports as substantive evidence of a defect, nor did they contend that the reports put Invacare on notice of a potential defect. Instead, they limited their proffer to an argument that the reports impeached Clines' credibility, the same argument they have advanced before us.
As noted, the questions regarding the adverse incident reports were posed to Clines in the context of the recall and, whether prior to initiating the recall, he was aware of only one fire-related incident. Since there was a lack of any evidence that a recalled J-box was on the Schwartz bed, questioning Clines about other incidents in the context of the recall was improper and further requires reversal. We specifically limit our holding regarding the use of the adverse event reports to the record as presented.
We do add, however, that even if the adverse event reports could be properly used for impeachment purposes, plaintiffs' wide-ranging questioning of Clines regarding the specific content of the reports was improper.
We address Invacare's final point for the sake of completeness in the event there is a retrial.
Invacare claims the judge erred by giving the jury an incomplete and misleading verdict sheet. The verdict sheet included two liability questions, as follows:
Invacare unsuccessfully sought the addition of a third question, specifically:
Invacare's contention provides no basis for reversal. "The purposes of submitting interrogatories to the jury `are to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'"
At trial, the judge specifically instructed the jury on plaintiffs' burden of proof under the indeterminate product test:
As the Court has noted, "a correct jury charge can cure an ambiguity in a jury interrogatory."
We leave to the trial court's sound discretion whether the interrogatories should be otherwise modified in the event the matter is retried.
Reversed and remanded. We do not retain jurisdiction.
