PER CURIAM.
This is a product liability case. It involves the crashworthiness of a 2003 Nissan Altima. The jury found that defendant Nissan
On July 17, 2006, plaintiff Larry D. Clanton was driving his 2003 Altima on the Garden State Parkway when a seventy-three-pound tire and wheel assembly
The parties disputed what happened after the wheel struck the hood. But, the jury's verdict reflects it found plaintiff's version persuasive. Plaintiff's experts asserted the wheel next struck the roof header, a structural member of the car's roof, above the windshield. The header separated from the side rail, the structural member above the side window. The roof header and roof then collapsed into the passenger compartment. It struck plaintiff in the head, and caused substantial head and spinal injuries. Plaintiff's diagnostic radiologist, Louis J. Perl, M.D., opined that the nature of plaintiff's spinal injuries demonstrated he was struck downward onto his head. Plaintiff's expert in automobile crashworthiness engineering and other disciplines, Donald Phillips, P.E., testified that the wheel pushed the roof down, and the roof with the headliner and visor hit plaintiff in the head. Thus, plaintiff contended the design of the roof, which did not sufficiently withstand the wheel's impact, was a cause of plaintiff's injuries.
Nissan contended the wheel struck plaintiff through the windshield, before it hit the header. Nissan highlighted that a description of the accident in Phillips' initial report stated that the wheel contacted plaintiff's head. Nissan's medical expert in clinical injury and other disciplines, James Raddin, Jr., M.D., supported that contention, opining that plaintiff ducked down immediately, exposing the top of his head before the wheel struck. He based his conclusion on his analysis of plaintiff's spinal injuries. He also relied on his examination of physical evidence, including plaintiff's hat, the headliner and visor, which he stated showed no evidence of contact with plaintiff's head; and the absence of glass in plaintiff's face. Plaintiff's witnesses disputed this interpretation of the evidence.
Plaintiff's experts opined that Nissan defectively designed the Altima plaintiff was driving. Specifically, they asserted that the joint between the header and side rails was designed in such a way that it could not withstand the force of the wheel. They asserted the header and side rail were not adequately attached to each other. Rather, they were principally attached through the use of a system of welded tabs. Phillips testified that the roof was not reasonably fit, suitable and safe for foreseeable collisions with animals, birds, people, tires, or trees that might be involved in a frontal impact with the roof. Plaintiff also relied on the expert testimony of an engineer with a background in metallurgical engineering and failure analysis, Craig D. Clauser. He also concluded that the Altima's roof header was defectively designed, and should not have separated from the side rail. He suggested alternative designs that he asserted would have avoided the separation.
Nissan disputed the claim that Nissan's design was unsafe. Nissan presented opinions that the Altima's design was protective of passengers. An engineer who testified as an expert in automotive design and performance, crash testing, and occupant safety, Kenneth F. Orlowski, opined that no design is injury proof; and designs must reasonably address the possibility of various kinds of accidents. He asserted that deformation to the roof caused by the energy exerted by the wheel against the fast-moving car was beyond what almost any passenger vehicle could prevent. Orlowski stated that over-engineering to prevent one kind of accident may make a car less safe for other kinds of accidents. This view was echoed by Mark Snyder, Nissan's director of engineering strategic planning administration. Snyder had worked on the Altima since January 2000 and asserted responsibility for the Altima's ultimate design.
The parties presented competing evidence regarding the roof design of other vehicles. During discovery, Nissan identified two Toyotas and a Honda as having a design similar to that of the Altima. Evidence was presented of crash tests, some prepared for the purpose of this case, and/or roof structures, of Volvos, a Saab, Mercedes, BMW, Chevrolet Impala, Ford Taurus, Honda Accord, Toyota Corolla and Camry, Ford F-250 and Ford Ranger pick-up trucks. The jury viewed multiple test videos, and participated in a field inspection of the crash-tested Impala and Honda and plaintiff's Altima.
Plaintiff's experts highlighted the fact that the header and side rail separated in plaintiff's collision. In crash tests involving collisions between a suspended wheel and a BMW, Impala, Taurus, and an earlier version of the Altima, the header and side rail did not separate. Although the header in these other vehicles was deformed as it absorbed the energy of the impact, the force was also transmitted to the side rail; the "A pillar" located at the front corner of the vehicle; and transferred to other components of the car. Plaintiff's experts contended these alternative designs were more protective than the design of plaintiff's Altima. For example, the Impala roof would have intruded several inches less into the passenger compartment, and prevented plaintiff's serious injuries. Clauser suggested alternative designs that he asserted would have avoided the separation, noting their implementation in an earlier Altima, as well as the BMW, Mercedes, Taurus and Impala. The jury was presented with a photograph of plaintiff, seated in the crash-tested Impala, with the bent roof header inches away from his head.
Plaintiff's experts also highlighted that the roof design of the 2003 Altima was different from those of prior generations of the vehicle. The design was developed in Japan for implementation in the vehicle's manufacture in the United States; the roof design was not used in the comparable Nissan vehicle made contemporaneously in Japan for the Japanese market. Plaintiff asserted that Nissan's documents pertaining to the origins of the design were destroyed. Plaintiff contended that Nissan did not adequately test the Altima's roof, and that federal roof tests did not address the kind of frontal impact on the roof that occurred in plaintiff's accident and could occur in other collisions with tires, animals, trees and other objects. Nissan countered that it met not only federal standards but its own internal standards.
Defense experts conducted a crash test of a 2008 Honda which they asserted had a roof design similar to the 2003 Altima. They claimed to weld the joint as plaintiff's expert Phillips suggested should have been done in the Altima — and the Honda still did not perform well. Nissan was challenged for not performing a test on a retrofitted Altima. Orlowski contended no other reasonable design could have withstood the energy exerted by the seventy-three-pound wheel on plaintiff's fast-moving vehicle. Orlowski presented evidence of crash tests of Ford trucks with alternative designs that performed poorly in a test collision with a suspended wheel. Orlowski also challenged the contention that the other vehicles performed significantly better than the Altima, contending there was significant roof deformation in all tests.
The parties also questioned the comparability of the tests. Nissan suggested plaintiff's crash tests utilized significantly less energy than exerted in plaintiff's collision, thereby minimizing the impact on the vehicle. Plaintiff contended that the point of impact on the roof in defense tests differed from the point of impact in plaintiff's accident, increasing the resulting deformation. Also, a collision to a stationary test wheel would cause greater damage than a collision with a rolling wheel.
The jury heard evidence of plaintiff's damages, the permanent impact of his injuries on his quality of life, and the fact that he was unable to return to work. Before the collision, he was employed by the U.S. Postal Service, and also worked for DHL. He was forced to take disability pension until his pre-injury retirement age. At the conclusion of the trial, the judge sua sponte, summarily dismissed plaintiff's claim for punitive damages, which had not been bifurcated.
The jury found by a vote of seven-to-one that Nissan failed to design a vehicle that was reasonably safe, and the failure was a proximate cause of plaintiff's injuries.
The court declined to reduce the judgment based on Nissan's contention that plaintiff's disability pension payments should be deemed a collateral source. The court increased the prejudgment interest rate by two percent, except for a six-month delay that the court attributed to plaintiff.
This appeal and cross-appeal followed.
Defendants contend that it is entitled to a new trial because plaintiff's counsel appealed to racial prejudice against Japanese. Defendants also argue the trial court erred when it compelled the disclosure of expert invoices, permitted cross-examination regarding an alleged preliminary report and mediation communications, and plaintiff's counsel referred to the alleged report in summation. Defendants also assert the trial court erred in its jury instruction regarding allocation of fault; its refusal to consider plaintiff's disability pension as a collateral source; and in increasing prejudgment interest. We consider first defendants' argument regarding appeals to racial prejudice.
As we discussed above, the jury was exposed to evidence and opinions regarding alternative roof designs of other vehicles. Plaintiff alleged that the roof designs of a BMW, Mercedes, Taurus, Impala, and the earlier Altima were preferable to the design of the 2003 Altima, as well as that of a Honda, and two Toyotas. The jury also heard evidence that the challenged designs of the 2003 Altima were implemented on the American-made, not Japanese-made versions.
The court ordered pre-trial that "there will be no racially based comments or statements that may evoke anti-Japanese sentiment" during the trial. In a motion for a new trial, defendants contended that plaintiff's counsel's opening and closing statements, and questioning of witnesses, violated the court's order and deprived defendants of a fair trial. The trial judge disagreed. We discern no error in the trial court's determination.
In reviewing a trial court's denial of a motion for a new trial, we apply the same standard as the trial judge — "whether there was a miscarriage of justice under the law" — although we "must give due deference to the trial court's feel of the case."
Fundamental to a fair trial, a party may not appeal to racial prejudice.
Based on our review of the record, we are satisfied that the references to Japan or the Japanese in this case were generally tied to expert testimony and evidence regarding comparative designs, and differences in the design of models for the Japanese and U.S. markets. In the course of a lengthy opening statement, plaintiff's counsel stated the following:
Several comments later, plaintiff's counsel previewed the crash tests of the various vehicles. She referred to the tests of the Impala and Taurus, and noted that in discovery, Nissan produced structures of a Honda and two Toyotas, and ran a test of the Honda. Nissan highlights the following underlined sentences, which are properly understood when considered in context:
At the end of opening statements, Nissan moved for a mistrial, which the court denied. However, the judge instructed the jury,
We are satisfied that the judge's instruction corrected any misimpression the jury may have drawn from plaintiff's counsel's opening. On one hand, plaintiff's counsel's references to Japan and Japanese vehicles, were generally factual although they arguably overgeneralized; the statements previewed testimony that in fact was elicited that the design of the Toyota and Honda were flawed. The same could be said about the references to the source of the design of plaintiff's vehicle, and its manufacture in the United States.
We discern no error in the trial court's response. We presume the jury followed the court's instructions.
Defendants' argument fares no better, when we view the totality of references to Japan or the Japanese — including not only the opening remarks, but also plaintiff's counsel's subsequent questioning of witnesses, as well as remarks in summation. Defendants complain about three isolated exchanges of questioning over the course of an eighteen-day trial. Defendants cite questioning of Snyder, to establish that Nissan produced a car similar, but not identical to the Altima, in Japan, that did not utilize the challenged design. The testimony was relevant, demonstrating that there were acceptable, alternative designs available to Nissan.
Defendants also point to the direct examination of plaintiff's expert, Clauser, who was asked to opine if the Toyota, Honda and Nissan Maxima would have performed as did the Altima. In response to an objection that the other makers' designs were not relevant, plaintiff's counsel argued that defendants produced those exemplars in discovery. Plaintiff elicited opinions about the other vehicles to blunt a potential state-of-the-art defense. The opinions were relevant, and their probative value outweighed any potential prejudice. Moreover, the judge instructed the jury that it should give no weight to who produced the exemplars in discovery.
Defendants also argue that plaintiff insinuated a malicious motive on all Japanese automakers when counsel asked defense expert Orlowski whether "Honda . . . has different designs and different structures for the American market than the Japanese market." We agree that the question was of slight relevance, except to demonstrate that alternative designs were available; Honda was not a defendant and the question conceivably may have supported the conclusion that Japan-based automakers as a group sent unsafe designs to the United States market. However, defense counsel did not object to the question, and Orlowski answered he did not know. We are unprepared to conclude that this exchange tipped the balance in favor of a new trial.
Although defendants find fault with plaintiff's comments in summation, they must be viewed in the context of defense counsel's summation that preceded it. Although the transcript apparently omits significant portions of counsel's remarks, counsel essentially accused plaintiff of fomenting anti-Japanese prejudice:
Plaintiff's counsel responded that her intent was not to attack the Japanese, but to contrast acceptable designs including the earlier Altimas, and unacceptable designs, including the Toyota and Honda produced in discovery. She discussed the shortcomings of the other vehicles, and then stated:
Counsel's remarks were fair comment and expressly disavowed any anti-Japanese sentiment, noting that plaintiff restricted its opinions to the limited universe of exemplars presented in the case.
We also are unpersuaded by the challenge to counsel's references in summation to Snyder's testimony, and her argument that defendants had failed to present a compelling reason, through documents or testimony from Nissan in Japan, as to why it shifted from the design used in the prior Altima, to a new design that was, in plaintiff's view, inadequately tested, and unsafe. The references to Japan were made in the context of this discussion.
In sum, we reject Nissan's argument that it was entitled to a new trial because of alleged appeals to racial prejudice.
Nissan challenges the court's decision compelling it to disclose, after in camera review, the invoices of its testimonial experts; and plaintiff's use of the information in the invoices in cross-examination.
We review for an abuse of discretion a court's decisions regarding discovery,
We are unpersuaded by defendants' argument that their testimonial experts' invoices were privileged as "communications between counsel and the expert constituting the collaborative process in preparation of the report."
Production of invoices enable a party to test the opposing expert's assertion of what it was paid, which is discoverable.
We are unpersuaded by the argument that the court erred by allowing plaintiff to utilize the information in the invoices for an improper purpose. Plaintiff's counsel questioned one defense expert regarding whether an additional crash test was conducted that was not disclosed. Counsel relied on the invoice that reflected three days of work, but two days of tests that were reported. The witness explained that the first day was occupied with setting up the tests. The court affirmed the witness's answer, stating "no third test" and directed counsel to move on. We discern no error, let alone harmful error, particularly given the court's comment.
Plaintiff's counsel also utilized invoices to probe and challenge the basis for Dr. Raddin's opinion, expressed in a 2010 report, that plaintiff ducked before the tire crashed through the windshield and struck him on the top of the head. Dr. Raddin asserted that the nature of plaintiff's injuries, as depicted in the radiology studies, supported his opinion about how plaintiff was struck. Dr. Raddin stated he relied on the report of defense radiology expert Amy Mumbauer, M.D. When confronted with the fact that the only disclosed report of Dr. Mumbauer was issued in 2011, Dr. Raddin asserted that he relied on a report Dr. Mumbauer wrote in 2010, which was later revised, although he did not disclose that reliance in his own report; no 2010 Mumbauer report was produced in discovery; and the invoices apparently did not reflect preparation of such a report in 2010.
The court instructed the jury that under New Jersey law, an expert may discard preliminary reports. We need not address whether that is necessarily true when a second expert relies on a first expert's draft. Arguably, the draft then becomes part of the "facts and data considered in forming the opinions" of the second expert, which is discoverable.
In any event, plaintiff's cross-examination of Dr. Raddin, and of Dr. Mumbauer, was designed to question Dr. Raddin's credibility as to whether he did rely on a report by Dr. Mumbauer in 2010; and whether Dr. Mumbauer's 2011 report was a post hoc justification for Dr. Raddin's opinion. We perceive no error.
Defendants also argue that release of the invoices violated the mediation privilege,
Defendants argue that a new trial is required because plaintiff's counsel made false statements when she discussed plaintiff's claim against Levito and his employer, and the issue of Dr. Raddin's alleged reliance on a later-superseded report by Dr. Mumbauer. We are guided by settled principles. "Counsel is to be given broad latitude in summation, but comment must be restrained within the facts shown or reasonably suggested by the evidence adduced."
Plaintiff's counsel did not cross the line in her remarks about Levito. Defense counsel argued in summation that Levito was negligent in maintaining his vehicle, and caused the accident. Plaintiff's counsel explained:
Counsel discussed the concept of a rebuttable presumption arising out of the fact that a tire came off his vehicle; but then she argued that the evidence demonstrated he exercised reasonable care.
The statement, "We might have started the case with a claim against him," was obviously intended to create some "distance" between the past act and current circumstances, but it could not reasonably have been interpreted to raise doubt about the fact that a claim was made. Plaintiff himself testified that he filed a claim against Levito. Moreover, while the jury did not learn that plaintiff had settled with Levito for a substantial sum, both counsel agreed that the court should be silent on the issue of settlement in its instructions to the jury. As did the trial court, we are unpersuaded that plaintiff's counsel's comments warrant a new trial.
We reach the same conclusion with respect to plaintiff's counsel's comments in summation challenging the credibility of Dr. Raddin and Dr. Mumbauer. Suffice it to say that plaintiff's comment was not objectionable in view of the testimony. Dr.
Raddin asserted he relied in 2010 on a 2010 report of Dr. Mumbauer that was revised in 2011. Dr. Mumbauer's invoices reflected work in 2007. Although the court directed the jury that an expert is free to destroy preliminary reports, plaintiff's counsel was still free to challenge Dr. Raddin's claim that his opinion was indeed based on a prior report by Dr. Mumbauer. Counsel was also free to suggest that Dr. Mumbauer's 2011 report was prepared as an after-the-fact justification for Dr. Raddin's conclusion; and to urge the jury to reject the defense theory of the accident as one created to defend the lawsuit.
Defendants argue that the court erred when it declined to reduce the damages awarded by the collateral source consisting of plaintiff's federal disability pension. We agree.
As an employee of the U.S. Postal Service, plaintiff received a disability pension benefit that would continue until he reached retirement age, when he would receive a regular retirement pension under the Federal Employee Retirement System (FERS), including benefits under the Thrift Savings Plan (TSP). Defendant submitted an analysis that the value of past and future disability pension payments totaled $166,937.
The disability pension constitutes a collateral source that should generally be deducted pursuant to
However, plaintiff argued that the value of this collateral source was more than offset by the reduction in plaintiff's FERS and TSP benefits. Plaintiff's expert Kris Kucsma explained that as a result of plaintiff's injury, he lost the benefit of additional years of service and pay increases, which would have increased his defined pension benefit according to the formula based on years of service and average salary. Kucsma calculated the present value of this loss at $239,241. Kucsma also asserted that plaintiff lost $37,893 in the value of government contributions to the plaintiff's TSP account.
Plaintiff's counsel argued to the trial court that the verdict sheet did not ask the jury to calculate lost pension benefits as a result of an oversight. Consequently, those damages — $239,241 and $37,893 — were not addressed by the jury. Counsel argued that the omitted pension-related damages should offset the collateral source deduction sought by defendants. The court agreed.
We are persuaded the court erred. First, it is speculative to assume that the jury would have awarded the $239,241 and $37,893 in pension losses estimated by plaintiff's expert. The issue was not explicitly presented to the jury in an interrogatory. The jury conceivably could have declined to award some or all of that amount. For example, defense counsel pointed out on cross-examination that plaintiff, before the accident, had ceased making his maximum TSP contribution, which triggered the four percent matching federal contribution that plaintiff's expert assumed.
Second, it is by no means clear that the jury did not consider pension losses as a form of lost wages. In the direct examination of Kucsma, counsel did not clearly distinguish pension benefits from the general category of lost wages. After Kucsma offered estimates of plaintiff's lost earnings at the Postal Service and DHL, plaintiff's counsel inquired "in terms of the future — and — and — past and future lost earnings, is there anything else?" Kucsma then identified and discussed Social Security disability benefits as a collateral source. Counsel then asked, "Is there anything else that you (indiscernable) consider with respect to the earnings, any fringe benefits or anything like that?" That question prompted the discussion of retirement benefits. Moreover, Kucsma described the lost government contributions to plaintiff's TSP account as a form of lost wages, stating that plaintiff lost "an extra 5 percent pay put into that savings account each year."
The basis of the jury's verdict is not self-evident. Kucsma testified that plaintiff lost $472,615 in Postal Service earnings, and $220,361 in DHL earnings, for a total of $692,976. The jury awarded $572,976 — $120,000 less. While plaintiff may argue that the jury simply discounted the DHL number — particularly since defense counsel questioned whether plaintiff would have lost his job with DHL in any event as a result of business conditions at DHL — we cannot speculate as to how the jury reached its final number. Conceivably, the jury considered the pension losses as well as the lost earnings and reached a number that it viewed as fair. As the court instructed the jury, it was free to "consider all or none of the opinions of the expert in determining a fair figure to compensate Mr. Clanton for his future lost earnings." The court instructed the jury that it should not "automatically accept" the expert's figures.
We avoid inquiries into a jury's deliberations, and shall not speculate as to the basis for its verdict.
In short, we cannot conclude with certainty the jury omitted consideration of plaintiff's claims for pension-related damages, and would have awarded an amount greater than the collateral source. If there was an error in failing to separately instruct the jury to calculate pension losses, it may not be corrected by speculating as to what the jury would have done, and then using that figure as an offset against a collateral source.
We remand to the trial court to amend the judgment after crediting defendants for the collateral source amount of plaintiff's disability pension.
Defendants' remaining points on appeal may be briefly addressed.
Defendants contend the court erred by granting plaintiff's motion to increase the prejudgment interest rate an additional 2% per annum. We disagree.
Defendants also assert, as plain error, the court's instruction that defendants had the burden of proof on the issue of allocation of causative fault. The court charged the jury, as follows:
Question five of the jury verdict sheet asked the jury to "allocate the percentage each contributed to the occurrence of Mr. Clanton's injuries" assuming both Nissan, and Levito and All Around Fence, Inc. were found liable in response to earlier questions.
We recognize "the critical importance of accurate and precise instructions to the jury."
In sum, we discern no error, let alone plain error, in the court's instruction.
Finally, we consider plaintiff's cross-appeal from the trial court's dismissal of its punitive damages claim. The court did so sua sponte in the charge conference after the close of proofs. Evidence on punitive damages was not bifurcated.
In striking the punitive damages claim, the judge stated, "The first decision is the most obvious one that no one could conceivably disagree with, punitives are out." Plaintiff's counsel objected, and the judge stated he would not provide a lengthy statement of reasons at that time.
Post-trial, the court rejected plaintiff's argument that it had erred. The judge engaged in an exchange with counsel. The judge expressed reasons why he believed no reasonable jury could conclude that punitive damages were warranted, and invited plaintiff's counsel's response. However, the court did not provide a final statement of reasons.
The judge reviewed some of the evidence on the merits of liability claim, and stated he believed "defendant put on an extraordinarily strong case that . . . they designed this car and this header very, very carefully." The judge recognized the jury disagreed. "[T]he jury . . . had a right to disagree with the defendant, and did so. But to — to say that they acted egregiously . . . it's preposterous." The judge stated he believed the jury would reject the claim quickly and if it did not, he would have set it aside.
The judge asked, "[T]he worst you could say about these people is that at a certain angle, maybe there's a deformation of a few inches more. And that's egregious conduct?" Counsel responded that the jury had concluded that the design was not reasonable. The judge asserted that the shortcomings in the design did not prove egregiousness. Plaintiff's counsel contended that Nissan destroyed design documents, which defense counsel disputed, asserting design documents were produced, referring to Snyder's testimony. Plaintiff's counsel also asserted that Nissan never explained the reason for its new design; and suggested it was done to allow for robotic welding, which saved Nissan money. The judge was unswayed, stating his sense of the evidence was that "it was [a] fairly negligible, simple task."
On appeal, plaintiff urges us to review the court's decision
In response, Nissan asserts that we should review the trial court's decision for an abuse of discretion. Nissan also disputes each of the alleged grounds for punitive damages. Contrary to plaintiff's claim that the header lacked attachment to the side rail, Nissan cites evidence in the record that the header was indeed attached. Nissan notes that voluminous design documents were produced in discovery; and the Altima was extensively tested.
We begin with a review of the Punitive Damages Act (PDA), which vests in a trial judge the power to reduce or eliminate an award of punitive damages.
Although the trial judge did not identify the source of his authority to strike the punitive damages claim, we assume for the purposes of our analysis that the court's decision was grounded in this broad power.
A deferential standard of review applies to a trial court's decision to set aside a punitive damage claim pursuant to its power under
This deferential standard of review of a trial judge's reduction or elimination of a punitive damage award is in keeping with the apparent purpose of this provision of the PDA, which empowers trial judges to independently assess the evidence and determine if an award is reasonable in amount, and justified under the circumstances. The purpose of the PDA was to provide the court with broader authority to review punitive damages awards than it had under the
In urging a more rigorous standard of review, plaintiff misplaces reliance on
Based on considerations of institutional competence, we held an appellate court on balance was better suited than a trial court to apply the
Here, the trial court did not set aside the punitive damages award on substantive due process grounds.
Having concluded that the exercise of authority under section 5.14 is subject to an abuse of discretion standard of review, we are nonetheless constrained to remand to the trial court for a more extensive statement of reasons. While an abuse of discretion "defies precise definition,"
In sum, on Nissan's appeal, we affirm the judgment of liability and award of compensatory damages, except that we remand for the court to reduce the judgment to account for the collateral source of plaintiff's disability pension. On plaintiff's cross-appeal, we remand to the trial court for a more extensive statement of reasons in support of its decision to strike plaintiff's punitive damages claim. We do not retain jurisdiction.
