On appeal from the Superior Court, Law Division, Bergen County.
Pressler, Long and Landau. The opinion of the court was delivered by Long, J.A.D.
Plaintiff Shirley Ratner was seriously injured in a one car accident in 1983. In 1985 she filed a complaint against General Motors Corporation and Russell Buick alleging that her injuries resulted from the defendant's manufacture and sale of a defective vehicle.*fn1 The case went to trial and the jury returned a verdict in favor of defendants. After denial of her motion for a new trial, plaintiff filed this appeal. Because we have concluded that trial errors, individually and in combination, denied plaintiff a full and fair adjudication of the merits of her case, we reverse.
On July 21, 1983, the 56-year-old plaintiff owned a 1980 Buick Regal which had travelled approximately 25,000 miles. The vehicle was manufactured by defendant General Motors Corporation and purchased from and serviced by defendant Russell Buick, Inc. Around noon on that date, plaintiff arranged for her parking garage to deliver the vehicle to the front of the garage, which was next to her Fort Lee apartment building. She left a package in the lobby and walked over to the front of the garage where her car was idling. Plaintiff entered the vehicle and locked the door, but did not put on her seat belt because she intended to get right out to pick up the package in the lobby. Plaintiff testified that she put her right foot on the brake and shifted the car into drive. She took her foot off the brake, intending to "creep out." According to plaintiff, although she never touched the accelerator, the vehicle began accelerating on its own and continued accelerating despite her frantic efforts to apply the brakes. The steering wheel became difficult to turn, and the car travelled 380 feet up an exit ramp and crashed into a concrete pillar.
Officer Paul Ottavio from the Fort Lee Police Department arrived on the scene within minutes. He found plaintiff unconscious on the front seat of her car and called for an ambulance. He testified that a brake test was performed as part of the subsequent investigation, and "the brakes functioned perfectly."
Experts testified for both sides on the issue of the self-acceleration of the vehicle. Bruce Enz, an accident reconstruction expert called by plaintiff, offered his opinion "that there was a defective condition within the vehicle which caused an unintended acceleration, full acceleration of this vehicle, which was not due to driver input." Enz testified that the normal cause of such acceleration was a malfunctioning throttle control linkage but that his examination of the vehicle revealed it not to be the cause in this instance. Donald Waldecker, who testified for plaintiffs as an expert mechanic, found that the throttle was open at the time of the impact but could find no mechanical condition which would cause self-acceleration. Dr. Richard A. Schmidt testified for defendants as an expert in kinesiology and psychology and opined that due to a low-level error in movement, plaintiff's foot pressed the accelerator pedal when she meant to press the brake. William Christiansen, a General Motors automotive engineer, who testified for defendants as an accident reconstruction expert, offered his opinion that the rapid vehicle acceleration was caused by plaintiff's depression of the accelerator pedal and that if the brake had been applied as she described, the vehicle would have stopped. After deliberating, the jury answered in the negative the question of whether the car was defective.
During the course of the trial, plaintiff's reconstruction expert, Enz, testified that in the preparation of his report he examined plaintiff's shoes, which were found in the car, and the brake pedal. On the basis of his examination, he concluded that there was "a clear pedal imprint on the bottom of her right shoe that, in my opinion, was caused by the brake pedal." Defendants immediately objected that this testimony was not within the scope of the expert's report and should be stricken.*fn2 The trial judge agreed. The jury was then instructed to disregard Enz' testimony as to the imprint on the shoe. The
shoes, which had previously been admitted into evidence, were ordered withdrawn by the judge sua sponte.
It is well settled that a trial judge has the discretion to preclude expert testimony on a subject not covered in the written reports furnished in discovery. Nicholl v. Reagan, 208 N.J. Super. 644, 651, 506 A.2d 805 (App.Div.1986) (citing R. 4:17-4(e); R. 4:23-5(b); Maurio v. Mereck Construction Co., Inc., 162 N.J. Super. 566, 569, 394 A.2d 110 (App.Div.1978)). But see Amaru v. Stratton, 209 N.J. Super. 1, 14, 506 A.2d 1225 (App.Div.1985) (affirming trial court decision not to exercise this discretion because the contested testimony "posed no danger of surprise or other prejudice and was based on material obtained . . . during pretrial discovery.") The application of the sanction of exclusion
is consigned to the sound discretion of the judge, subject only to the rule that the sanction visited upon the party must be just and reasonable. [citation omitted]. The factors which would "strongly urge" the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence. [ Westphal v. Guarino, 163 N.J. Super. 139, 145-146, 394 A.2d 377 (App.Div.1978), aff'd o.b. 78 N.J. 308, 394 A.2d 354 (1978).]
See also Pressler, Current N.J. Court Rules, Comment R. 4:17-7. The trial judge's discretion in excluding evidence is broad. State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978). The decision as to exclusion must stand unless so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106, 449 A.2d 1280 (1982). See also State v. Boratto, 80 N.J. 506, 404 A.2d 604 (1979); State v. Rogers, 19 N.J. 218, 116 A.2d 37 ...