On appeal from Superior Court of New Jersey, Law Division, Essex County.
Pressler, Deighan and Baime. The opinion of the court was delivered by Baime, J.A.D.
This appeal and cross-appeal arise out of a Law Division judgment, awarding plaintiff damages and prejudgment interest totalling $4,800,000. Plaintiff suffered devastating injuries as a result of an automobile accident in which his 1971 Volkswagen Beetle traversed a highway median, revolved in a semicircle, and was struck from the rear by an oncoming Chevrolet Nova. Plaintiff, who was not wearing seat belts, suffered a fracture of the spine causing permanent quadriplegia. In prior litigation, plaintiff received a settlement of $200,000 plus an annuity valued at $650,000 from the Department of Transportation (DOT) and the contractor who was repairing the highway median when the accident occurred. The damages for which the judgment was entered in this case pertained solely to second-collision injuries, i.e., those injuries enhanced by the presence of the alleged defect -- not those caused by the crash alone. Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 476 A.2d 250 (1984). In its verdict, the jury predicated liability on its finding that the Volkswagen front seat was defectively designed because it collapsed upon impact. Alternatively, the jury found that defendant failed to provide users with adequate warning of the dangers attributable to non-use of the seat belts.
In its appeal, defendant contends that the Law Division judge committed reversible error by unduly restricting its cross-examination of plaintiff's expert witnesses. It further asserts that the judge improperly limited evidence of industry custom in support of its state of the art defense. Defendant also claims that plaintiff failed to present a prima facie case of design defect and failure to warn. Defendant finally contends that the judge erred by failing to mold the verdict to reflect the jury's finding of plaintiff's comparative negligence and by refusing to allow it a credit for the amount of the settlement in the previous litigation. In the cross-appeal, plaintiff asserts that the trial court improperly suspended prejudgment interest, excluded relevant evidence pertaining to past and future medical
expenses, and incorrectly dismissed his claim for punitive damages. We find no error warranting a reversal or modification of the Law Division judgment.
The tortuous path this case has taken was recounted at length in Crispin v. Volkswagenwerk, A.G., 96 N.J. at 342, 476 A.2d 250. Plaintiff was paralyzed as a result of a multi-car accident on the Garden State Parkway on December 10, 1977. Plaintiff's automobile entered a southbound lane of the highway from a construction site and was struck in the rear by a Chevrolet Nova driven by Victoria Rapicka. The accident spawned numerous lawsuits. The first proceedings, conducted in Union County, involved plaintiff, Rapicka and a passenger in her vehicle, Mary Lothrop, the DOT and S.J. Groves & Sons Company (Groves), the construction contractor on the site. Defendant was not originally named as a defendant in any of the suits filed in Union County.
However, on November 8, 1979, a television news program reported that the Volkswagen Beetle had a design defect referred to as an "ejector seat." There was allegedly a tendency for the front seat to collapse, causing the occupant to be hurled in the direction of the heavily weighted engine structure in the rear. After becoming aware of this allegation, plaintiff's attorney (not present counsel) filed a complaint against defendant in Bergen County on December 7, 1979, but did not inform the court in Union County or the other parties of that action. Instead, the Bergen County suit remained dormant during the pendency of the Law Division actions in Union County. When the DOT learned of the television report, it moved for leave to file a third-party complaint against defendant. Even then, plaintiff's attorney remained silent about the Bergen County complaint. The DOT's motion to implead defendant was denied. We thereafter denied the DOT's motion for leave to appeal, and the Union County litigation continued. As noted
previously, plaintiff's claims against Groves and the DOT were settled. So too, Rapicka's suit against plaintiff was dismissed based upon a settlement. The remaining case in Union County, pitting Lothrop against the plaintiff, was ultimately tried, resulting in jury findings that plaintiff was 67% at fault, Groves 13% and the DOT 20%.
After all the Union County litigation was completed, plaintiff's attorney served Volkswagen in the Bergen County action. Defendant's motion to dismiss the complaint was granted without prejudice for failure to serve the summons within ten days. See R. 4:4-1. Both parties appealed that order to the Appellate Division. While that appeal was pending, plaintiff reinstituted suit against defendant, this time laying venue in Essex County. Defendant unsuccessfully moved to dismiss plaintiff's complaint on the basis of the entire controversy doctrine. At this point, we rendered an unreported opinion, affirming the dismissal without prejudice of plaintiff's Bergen County complaint. The Supreme Court granted certification in the Bergen County suit and granted leave to appeal in the Essex County matter.
On June 13, 1984, the Supreme Court rendered its decision. We need not describe the Court's opinion in detail. Suffice it to say, the Court deplored the tactics of plaintiff's original attorney but found that defendant suffered no prejudice. Noting that plaintiff's suit against Volkswagen was limited to the enhanced second collision injuries allegedly sustained by reason of the defective seat, the Court emphasized that "safeguards" should be created to insulate or segregate these damages from those caused by the original "crash alone." 96 N.J. at 346, 476 A.2d 250. The Court cautioned that the trial judge was duty-bound to "carefully mould its procedures so that Volkswagen's liability is appropriately limited," stressing that "[p]roper credit must be afforded for the recovery previously allowed." Ibid.
The voluminous record of the trial reveals the following facts. At approximately midnight on December 10, 1977, plaintiff was operating his 1971 Volkswagen Beetle in a northerly
direction on the Garden State Parkway. At the time, the highway was under construction with its median being reduced in size to accommodate an additional lane in both north and southbound directions. For reasons which are unclear, plaintiff's automobile suddenly traversed the median, spun around so that it was pointed in the southbound direction, and was struck in the rear by Rapicka's Chevrolet Nova. Rapicka's vehicle was deflected and was then struck by another automobile driven by Joseph Morrison.
Plaintiff was rendered unconscious and suffered retrograde amnesia. Morrison and first aid personnel found plaintiff with his body extended across the rear seat and with his head outside the broken rear window. The driver's seat was bent backward in a downward direction, ultimately resting on the rear seat. Plaintiff sustained multiple severe injuries. As noted previously, the only injury for which plaintiff sought recovery against Volkswagen was quadriplegia resulting from compression of the spine and severance of the spinal cord when his body continued rearward into his neck as his head violently struck the rear structure of the automobile.
Although the Volkswagen was equipped with a three-point safety belt system which included independent lap and shoulder harnesses mounted to the floor and side of the vehicle, plaintiff was not wearing the seat belts. It is undisputed that the force of the collision caused the vertical part of plaintiff's seat to decline until it rested on the back seat, and that his body was hurled at high speed to the rear until his head struck the body of the car, causing quadriplegia.
Both parties agreed that Rapicka's automobile was decelerating from a speed of approximately 45 miles per hour immediately prior to impact. At trial, the question of the speed of plaintiff's automobile upon impact with that of Rapicka's was hotly contested. Plaintiff contended that the combined speed at impact was between 30 and 35 miles per hour and that such a relatively low speed collision would not have rendered him a
quadriplegic had defendant designed the 1971 Volkswagen seat in accordance with readily available and inexpensive technology. Defendant asserted that the combined speed at impact was 60 miles per hour or greater and that no automobile seat could withstand a collision at that "closing" velocity. Defendant further claimed that all motor vehicle manufacturers intentionally incorporated "yielding" into their seats as a method of absorbing accident impact energy. It was defendant's position that it had designed its front seat to yield at a velocity change of 35 miles per hour and that occupants were to be protected against "ejection" by the "hindering effect" of the seat belts.
Later, in our opinion, we will describe in greater detail the evidence offered by the parties in support of their respective positions. It suffices to observe here that both parties presented expert witnesses who estimated the closing speed of plaintiff's and Rapicka's automobiles by utilizing various "crash" studies and comparing the damage to the automobiles in these experiments with that shown in photographs of Crispin's vehicle.
Plaintiff's expert, Lynn Bradford, was employed by the National Highway Traffic & Safety Administration (NHTSA), Office of Defects Investigations (ODI) between 1968 and 1983. He was the director of the ODI from 1977 until he left government service in June 1983. In 1979, Bradford supervised the testing of Volkswagen Beetles, conducted under contract for ODI by a private firm, Dynamic Sciences. In these tests, four stationary Volkswagens were struck at 30 miles per hour by Chevrolet Impalas. Two of the tests involved 1972 Volkswagens which had the same seating arrangement as the 1971 model. In one of the two, the Volkswagen was stationary and its brake was applied at normal foot pressure, while the Chevrolet Impala was raised in the rear and tied down in the front to simulate emergency braking. Films displayed to the jury and accompanied by Bradford's narration, disclosed that as the Impala struck the Volkswagen at 30 miles per hour, the Volkswagen vertical seat backs declined toward the rear, hurling the
dummies, who were not restrained by seat belts, into the rear structure of the car. The other test depicted identical results where the Volkswagen brakes were not applied. In evaluating the severity with which plaintiff's Volkswagen was hit by Rapicka's automobile, Bradford compared photographs of those vehicles with the videotapes and still photographs taken from the ODI study. Bradford concluded that the 1971 Volkswagen was defective because its seat collapsed rearward in the course of a relatively mild 30 to 35 mile per hour collision. He testified that available technology could have been used to strengthen the seat at affordable costs.
In contrast, defendant's expert, utilizing a photometric analysis and static tests as well as other data, calculated that the combined speed of the two automobiles at impact was at least 60 miles an hour. Defendant also presented evidence which disclosed that seat belts were a necessary component of its design of the Volkswagen seating arrangement. Dr. William MacKay, a biomechanical engineer, testified that the seat belt system constituted an "integral part of the seating design." According to the witness, plaintiff would have sustained only minor injuries had he utilized the shoulder and waist seat belts. Although seat belts were part of the safety design utilized by Volkswagen to protect front seat occupants, no warning was ever given to potential users of the necessity of wearing seat belts. It is undisputed that plaintiff did not wear seat belts because he believed that they had the potential to enhance injuries in high speed collisions.
As we noted previously, the jury found defendant responsible for plaintiff's quadriplegia based upon a design defect and a failure to warn users of the dangers attributable to the Volkswagen's front seating arrangement. The jury determined that plaintiff's failure to wear the seat belts contributed to his injuries and that he was 25% at fault. Because one of the bases of defendant's liability was its failure to warn, the trial court refused to mould the verdict to reflect plaintiff's comparative negligence. The court entered judgment in the amount of
$4,810,714.79, reflecting the jury's award of $3,113,814 in compensatory damages and interest in the sum of $1,696,900.79.
We first consider defendant's argument that the trial court unduly restricted defendant's cross-examination of Bradford and erred by refusing to admit portions of the ODI report into evidence. Two related arguments are advanced. Defendant first asserts that it should have been permitted to confront Bradford with that portion of the ODI report setting forth its "conclusions" and "final observations." Defendant next contends that this part of the report should have been admitted under Evid.R. 63(15).
As we noted earlier, Bradford was the director of the ODI between 1977 and June 1983. In 1971, the ODI had conducted a study designed to determine whether there was a problem with seat performance in rear impacts on Volkswagen Beetle models from 1947 to 1970. In February of 1974, the ODI issued a report on the subject in which it observed that the "seat or seat track" did not present a safety hazard. The report left unanswered whether the "total system involving but not limited to the seat, its proximity to surrounding structures, the vehicle structural stiffness and the human body injury exposure" was unsafe.
In 1979, the ODI reopened its investigation based upon the allegations made in the television news report which we alluded to earlier. The purpose of the government sponsored tests was to duplicate the "ejection" phenomenon. Bradford supervised that testing. As we mentioned, Bradford's testimony at trial was based in part upon the tests performed under his supervision. The ODI report was issued in 1984, after Bradford left government service. Although Bradford had never seen the final report and played no part in preparing the section denominated "conclusions" and "final observations," defense counsel sought to cross-examine the witness utilizing a "blow-up" of
the last two pages. This portion of the report contained spaces for five conclusions. However, in its final version, the report set forth four "conclusions" and "final observations." These included statements to the effect that (1) where closing speeds of the automobiles tested "were over 30 mph," the seats failed, "allowing the front seat dummies to be thrown into the rear seating area," (2) in 1980 ODI tests of Volkswagen Beetles "impacted from the rear at 30 mph by full size vehicles, the seat backs failed in a controlled manner," (3) the Volkswagen seat and track assembly "was capable of absorbing energy levels as great or greater than seats in American compact vehicles and other imported vehicles," and (4) "in rear impact crash tests with closing speeds in excess of 30 mph, almost without exception, seats in all passenger vehicles fail[ed], allowing the occupants to enter the rear seating area." (Emphasis in original).
The trial court barred counsel from confronting Bradford with the "conclusions" and "final observations" expressed in the last two pages of the report. In sustaining plaintiff's objection, the court noted that (1) Bradford in no way participated in the preparation of this portion of the report, (2) in his testimony given at an Evid.R. 8 hearing, the witness stated that he did not consider the conclusions a recognized standard authority on the subject and in fact disagreed with them, and (3) the conclusions represented opinions which were not sufficiently reliable to permit admission under Evid.R. 63(15). The court also precluded defendant from admitting the conclusions contained in the report in its own case.
We find no prejudicial error in the trial court's restriction of defense counsel's cross-examination of Bradford. In reaching this conclusion, we stress Bradford's undisputed testimony that he did not participate in the preparation of the "conclusions" and "final observations" of the ODI report. We emphasize that the report was released to the public after Bradford had departed from the ODI. In fact, Bradford was
not aware of the fact that the report had been issued and disagreed strenuously with the conclusions contained in the document. We note that New Jersey has not adopted a counterpart to Fed.R.Evid. 803(18), which permits a party to read into evidence excerpts from treatises, periodicals or pamphlets called to the attention of any expert on cross-examination. Evid.R. 63(31), which mirrors the federal evidentiary rule, was proposed but not adopted. In New Jersey, a treatise, periodical or report may be used to attack an expert's credibility only if the witness admits that the document constitutes a recognized standard authority on the subject involved. See McComish v. DeSoi, 42 N.J. 274, 281, 200 A.2d 116 (1964); Ruth v. Fenchel, 21 N.J. 171, 176, 121 A.2d 373 (1956). Perhaps this limitation is unduly restrictive. The rule is of ancient lineage, however, and we have no occasion here to consider whether a more liberal policy of admission should prevail. See New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 59 N.J.L. 189, 192, 35 A. 915 (E. & A. 1896). In any event, we cannot fairly say that the trial court abused its discretionary powers. See State v. Pontery, 19 N.J. 457, 473, 117 A.2d 473 (1955).
We also find no mistaken exercise of the trial court's discretion in refusing to admit the "conclusions" and "final observations" as a finding of a public official under Evid.R. 63(15). That rule permits the admission of a hearsay statement if it concerns "an act done, or an act, condition or event observed by a public official if it was within the scope of his duty either to perform the act reported or to observe the act, condition or event reported and to make a written statement." Ibid. Until recently, the rule had been construed as allowing only the introduction of factual statements, not opinions or conclusions. See Millison v. E.I. du Pont de Nemours, 226 N.J. Super. 572, 593, 545 A.2d 213 (App.Div.1988), aff'd 115 N.J. 252, 558 A.2d 461 (1989); Biro v. ...