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March 11, 1997

ROBERT T. HULMES, Plaintiff,
HONDA MOTOR COMPANY, LTD., HONDA RESEARCH AND DEVELOPMENT GROUP, LTD., HONDA R & D NORTH AMERICA, INC., and AMERICAN HONDA MOTOR COMPANY, INC., Defendants. and HONDA MOTOR COMPANY, LTD., et al., Third Party Plaintiffs, vs. NICHOLAS J. HULMES, Third Party Defendant. SHERRY HERTLEIN, Plaintiff, vs. HONDA MOTOR COMPANY, LTD., et al., Defendants. and HONDA MOTOR COMPANY, LTD., et al., Third Party Plaintiffs, vs. NICHOLAS J. HULMES, Third Party Defendant.

The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This product liability lawsuit against defendants, Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc. (collectively referred to as "Honda") was tried before this court and a jury from September 24, 1996, through October 31, 1996. The jury returned a special verdict in which it found no design defect in the subject All Terrain Vehicle ("ATV"). However, the jury found the ATV defective by reason of a failure to warn. In response to special interrogatories requesting an allocation of comparative fault, the jury found the plaintiff, Robert Hulmes ("Hulmes" or the "plaintiff"), sixty-six (66) percent at fault for his injuries. On October 31, 1996, the court entered judgment in favor of defendants on all counts pursuant to N.J. Stat. Ann. §§ 2A:15-5.1 and 15-5.2. Judgment was also entered against Sherry Hertlein, Hulmes's former spouse, on her derivative per quod action.

 Plaintiff now moves to alter or amend the judgment pursuant to Fed. R. Civ. P. 59(e), or, alternatively, for a new trial pursuant to Fed. R. Civ. P. 59(a). *fn1" Plaintiff's motions require this court to revisit and plumb once again the murky depths of New Jersey's Product Liability Law. For the reasons set forth below, plaintiff's motions will be denied.

 I. Standards Governing Rule 59 Motions

 Under Federal Rule of Civil Procedure 59(e), a district court may alter or amend a judgment: (1) when there has been an intervening change in the law; (2) when new evidence becomes available only after trial; (3) if the court has committed clear legal error; or (4) if the judgment without amendment would create a manifest injustice. North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Hulmes offers no new evidence, nor does he claim that there has been a change in the controlling law. Rather, plaintiff contends that this court has committed clear legal error.

 Courts should not lightly disturb jury verdicts. "In reviewing the propriety of a jury verdict, [this Court's] obligation is to uphold the jury's award if there exists a reasonable basis to do so." Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989). See also Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Credit Corp., 325 F.2d 2, 21 (3d Cir. 1963). This court must defer to the jury whenever its findings are reasonably supported by the record, and must draw all reasonable inferences in favor of the verdict winner. Blum v. Witco Chem. Corp., 829 F.2d 367, 372 (3d Cir. 1987) (citing Massarsky v. General Motors Corp., 706 F.2d 111, 117 (3d Cir. 1983)).

 II. Discussion

 Because plaintiff's motion to alter or amend the judgment and his motion for a new trial are both, in part, based on his assertion that this court misapplied the comparative fault provisions of New Jersey's product liability law, I will briefly discuss this issue before turning to plaintiff's other contentions.

 The product liability law of New Jersey recognizes that accidental injuries are often the result of a combination of causes. However, the doctrine of strict liability strikes a balance in favor of plaintiffs by requiring a defendant to produce evidence that the plaintiff voluntarily encountered a known danger, before the jury is allowed to compare the plaintiff's conduct with the alleged product defect on the question of causation. Cartel Capital Corp. v. Fireco of N.J., 81 N.J. 548, 562-63, 410 A.2d 674 (1980). This balance advances the overall purpose of New Jersey's product liability law by stressing the manufacturer's primary responsibility to design and market safe products. Nevertheless, when the evidence points to a voluntary assumption of a known risk, it is proper to instruct the jury on comparative fault. Ladner v. Mercedes-Benz, 266 N.J. Super. 481, 495, 630 A.2d 308 (App. Div. 1993), certif. denied, 135 N.J. 302, 639 A.2d 301 (1994).

 Hulmes asks this court to amend the judgment so as to award him damages based upon the jury's finding that the ATV was defective by reason of a failure to warn, notwithstanding the jury's finding as to his comparative fault, which Hulmes argues is "irrelevant" to his failure to warn claim. Alternatively, plaintiff seeks a new trial based upon his contention that his is not a case to which comparative fault properly applies.

 A. Plaintiff's Motion to Alter or Amend the Judgment

 Hulmes first contends that he is entitled to judgment in his favor based upon the jury's finding of a failure to warn, and asks this court to enter judgment in the full amount of the jury's verdict. Plaintiff argues that the jury's assignment of comparative fault is irrelevant on the question of defendants' failure to warn. *fn2"

 In Crispin, the trial court declined to reduce the jury's award by the 25 percent by which the jury had found the plaintiff at fault. Id. at 549. The trial court based its decision upon the fact that the jury had found the defendant liable on a failure to warn theory. Id. The Appellate Division affirmed, while stressing that the case was "unique" because it presented a pure "second collision" scenario. Id. at 564, 567. In a "crashworthiness," or "second collision" case, the jury is only concerned with the incremental injuries suffered as the result of the defect. In Crispin, the jury found that Volkswagen failed to warn the plaintiff that the use of a seat belt was especially necessary "in light of the collapsing seat, a feature built into the automobile by design." Id. at 565. The Appellate Division concluded that, because the only damages at issue were those that resulted from the "second collision," the plaintiff's contributory fault "in causing the original accident was not at issue." Id. at 568 (emphasis added).

 In the singular context of "second collision" injuries, a defendant's failure to warn a user of its product of a "special requirement," without which the product will be unsafe, may well preclude consideration of comparative fault. In Crispin, the Appellate Division concluded that the plaintiff should not be penalized for failure to use a seat belt when the special importance of using a seat belt in view of the automobile's peculiar seat design was not conveyed to him. By contrast, the warning which Honda failed to deliver to Hulmes, Exhibit P-524, did not outline any specific action or steps that Hulmes should have taken to avoid the accident in question. It merely warned, albeit in some detail, that roll-over or ejection accidents were a possible result of even a minor collision. This is simply not a case in which application of comparative fault principles would, in effect, blame the plaintiff for not doing something which he was not told he should do. On the contrary, plaintiff's testimony that he would have "gotten rid" of the ATV had he been warned of its instability, belies his assertion that this case is controlled by Crispin. Hulmes's accident was not "caused" by his failure to "get rid" of the ATV, except in the most tenuous sense, nor was it shown at trial that the absent warning would have urged ATV owners to dispose of their ATVs.

 Moreover, the plaintiff's failure to use a seat belt was the only contributing cause on the plaintiff's part which was asserted in Crispin. Here, evidence was presented that Hulmes was riding his ATV while intoxicated, that he was exceeding the speed limit on a paved road, and that he collided with his brother's all terrain vehicle.

 Crispin was further vindicated by the jury's finding that the seat design was defective. The jury in this case found no design defect in the Honda ATV. Plaintiff's failure to warn theory, on which the jury held the defendants liable, did not encompass warnings against riding while intoxicated, which warnings were certainly given, or warnings against driving at excessive speed. In sum, there is an insufficient nexus between the defendants' failure to warn Hulmes of the need to exercise caution when riding his ATV, and Hulmes's comparative fault in causing the accident to sustain the comparison with Crispin.

 Coffman held that the failure to rebut the "heeding presumption" "may constitute proof that a defendant's failure to warn contributed to the plaintiff's injuries." Coffman, 133 N.J. at 591. Coffman was a multiple defendant asbestos case. The jury was instructed to apportion liability among the nine defendants. *fn3" It is not clear that the jury in Coffman apportioned any fault to the plaintiff.

 On appeal, Keene Corp. argued that the burden should be upon the plaintiff to prove that he would have heeded a proper warning and thereby avoided the inhalation of asbestos fibers. The Supreme Court of New Jersey rejected this argument, deciding as a matter of public policy to place the burden on the manufacturer to rebut a presumption that the plaintiff would have heeded a proper warning. Id. at 603. In dicta, the Coffman court seems to equate evidence of the comparative fault of the plaintiff with evidence which would rebut the "heeding presumption." Id. This is unsurprising, in that a defendant will normally produce evidence of the plaintiff's comparative fault on all issues relating to causation, including the "heeding presumption." Coffman simply did not address a plaintiff's comparative fault in the context of multiple causative factors.

 In this case, the jury was charged that unless Honda succeeded in rebutting the heeding presumption, it must find that the "plaintiff has demonstrated that the inadequate warning was a proximate cause of his injuries." Tr. of Oct. 23, 1996 at 78. Even after giving Hulmes the benefit of the "heeding presumption," the jury was not required to find that the failure to warn was the sole proximate cause of Hulmes's injuries.

 In this case, the jury heard evidence that Hulmes made modifications to his ATV to increase its performance, that Hulmes was riding at an excessive speed, and that Hulmes had consumed alcohol shortly before his tragic accident. In light of all the evidence, the jury could have concluded that the failure to warn, even though it was one proximate cause of the plaintiff's injuries, was not the sole, or even the major contributing factor in causing the accident.

 In his reply brief, plaintiff restates his arguments, again suggesting that to sustain the jury's verdict for the defendants in this case would allow "mere negligence" on the plaintiff's part to support the defense of comparative fault. Reply Brief at 6-7. This is not so.

 Plaintiff is correct that in strict product liability cases, as a general rule, once the jury has found that the defect was a substantial causative factor, the proximate cause inquiry is at an end and the defendant is liable. However, where the evidence supports a charge on comparative fault, that is, where there is competent evidence that the plaintiff voluntarily encountered a known danger, the proximate cause inquiry must continue. In this case, the jury proceeded to compare the fault of the plaintiff with that of the defendants in causing the accident. It was required to do so because there was evidence from which it could have concluded that Hulmes, an experienced ATV rider, knew of the danger from riding while intoxicated, that he knew of the risk of injury from a collision, and that he proceeded in spite of these "known dangers." That there may have been some other danger highlighted in P-524 *fn4" which was not then known to plaintiff does not mean that Hulmes did not voluntarily encounter a known danger. It merely proves that he did not voluntarily encounter the danger described in P-524. Based upon the evidence presented, the jury allocated to Honda thirty-four (34) percent of the fault for causing the accident, the amount which the jury found was related to Honda's failure to warn.

 It is telling that plaintiff maintains that the jury's finding of liability for a failure to warn and its allocation of fault are not "inconsistent" verdicts. See Reply Brief at 5 n.3. Rather, plaintiff insists that the allocation of fault is simply "irrelevant" in a failure to warn case. Id. ; see also Plaintiff's Brief at 2. This argument proves too much. Several New Jersey cases support the application of comparative fault principles to a failure to warn case. See Ladner, 266 N.J. Super. 481, 630 A.2d 308; Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 592, 637 A.2d 915 (App. Div. 1994); Butler v. PPG Indus., 201 N.J. Super. 558, 564-65, 493 A.2d 619 (App. Div. 1985). If Hulmes were correct that a comparison of a plaintiff's and defendant's degrees of causative fault is always irrelevant once the jury has found a failure to warn, these cases would presumably say so. They do not so hold.

 Because the plaintiff has failed to demonstrate that the jury's assignment of sixty-six (66) percent of the causative fault to the plaintiff was inconsistent with its finding that a failure to warn was a proximate cause of the accident, plaintiff's motion to alter or amend the judgment will be denied. *fn5"

 B. Plaintiff's Motion for a New Trial

 In support of his motion for a new trial, plaintiff claims that this court erred in ruling on several evidentiary issues, and in its instructions to the jury. Plaintiff also contends that the verdict was against the weight of the evidence and that the trial was fundamentally unfair.

 "Where a contention for a new trial is based on the admissibility of evidence, the trial court has great discretion . . . which will not be disturbed on appeal absent a finding of abuse." Link v. Mercedes-Benz, 788 F.2d 918, 921 (3d Cir. 1986). On a claim that the trial court erroneously instructed the jury, the court must review the charge as a whole, in light of the evidence, to determine whether it adequately conveyed the controlling legal principles. Id. at 922.

 1. The Admission of Evidence of Alcohol Consumption

 Hulmes contends that this court erred in admitting evidence that he had consumed alcohol shortly before the accident which led to this lawsuit. The court first ruled on this issue on plaintiff's motion in limine seeking to exclude all such evidence. Hulmes v. Honda Motor Co., 936 F. Supp. 195 (D.N.J. 1996). The court revisited this issue on plaintiff's motion for certification of an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Id. at 207-12. Despite these earlier rulings, plaintiff's counsel once again attempted to "reargue" the admissibility of this evidence when other pre-trial motions were decided immediately following jury selection. Tr. of Sept. 24, 1996 at 7-20.

 Plaintiff's motion for a new trial based upon this court's denial of his motion in limine to exclude all evidence of alcohol consumption presents no new arguments. There is nothing this court can add to what it has previously written on this subject. It is sufficient to note that plaintiff argues for a per se rule against the admission of evidence of alcohol consumption by a plaintiff in a civil trial in the "absence of traditional forms of 'supplemental evidence.'" Plaintiff's Brief at 18. By "traditional forms," plaintiff presumably means eyewitness testimony that the plaintiff was visibly affected either in motor coordination, or speech by alcohol. For obvious reasons no such evidence was presented at this trial. However, the cases do not support the per se rule for which the plaintiff contends. Indeed, in Guzzi v. Clarke, 252 N.J. Super. 361, 599 A.2d 956 (L. Div. 1991), the Law Division admitted evidence of alcohol consumption absent any evidence of "drunken behavior." Id. at 366. Plaintiff makes no effort to distinguish Guzzi. Instead, plaintiff again mischaracterizes this court's holding. This court did not proclaim that a .10 percent blood alcohol content itself rendered alcohol evidence admissible. Rather, this court ruled that a .10 percent BAC, when considered with independent evidence that alcohol had been consumed, *fn6" could constitute supplementary evidence of unfitness to drive, at least as competent as "traditional" eyewitness testimony of "drunken behavior." Hulmes, 936 F. Supp. at 205-06.

 2. Specific Evidence of Alcohol Consumption

 Plaintiff contends that, notwithstanding this court's decision to admit such evidence, the evidence of alcohol consumption which was admitted in this case was irrelevant, and therefore should have been excluded under Fed. R. Evid. 401.

 Hulmes contends that the evidence of alcohol consumption was irrelevant to his design defect claim because that claim was based upon a theory that the ATV's instability caused it to flip over and eject the rider after the wheel of Hulmes's ATV impacted the wheel of his brother's ATV. Hulmes argues that it was at this moment that the alleged design defect came into play, and therefore, that nothing that occurred before the wheels of the two ATVs touched is relevant, and once the collision occurred, there was nothing that Hulmes could have done to prevent the unfortunate results of the accident.

 In deciding plaintiff's motion in limine on this subject, this court opined that evidence of alcohol consumption may be relevant in a product liability action on the issues of misuse and proximate cause. Hulmes, 936 F. Supp. at 201. Plaintiff now seeks to focus the design defect inquiry entirely on the events that took place after the collision of the two ATVs. Plaintiff cannot now contend that Hulmes's behavior before the wheels of the two ATVs touched is irrelevant to the proximate cause inquiry, without also requiring this court to engage in a "crashworthiness" or "second collision" analysis. Plaintiff, however, never pursued a "crashworthiness" theory at trial. *fn7" Accordingly, the jury had to determine the cause or causes of this accident from the totality of the circumstances. The plaintiff's fitness to drive bears directly upon that determination.

 Hulmes similarly takes issue with this court's conclusion that evidence of alcohol consumption was relevant to his failure to warn theory. Id. Plaintiff contends that the rationale for this court's conclusion "must be that a [blood alcohol content] between .09% and .11% could theoretically make the needed warning incoherent." Plaintiff's Brief at 21. Hulmes then argues that such evidence is irrelevant because "the needed warning should have been given to him years prior to the day of the accident." Id. This argument is disingenuous. As this court has previously explained, evidence of alcohol consumption is relevant in a failure to warn case to rebut the "heeding presumption." Hulmes, 936 F. Supp. at 201. Clearly, evidence that a plaintiff who has been warned about consuming alcohol prior to riding his ATV, and nevertheless, does so, is relevant to rebut the "heeding presumption," in that it portrays an individual who is unlikely to heed warnings. Accordingly, plaintiff's challenge to the evidence of alcohol consumption based upon relevance is without merit.

 More specifically, Hulmes criticizes the admission of a Cooper Hospital Lab Report reflecting plaintiff's serum blood alcohol level at or around the time of his admission. Plaintiff contends that the lab report is inadmissible hearsay. Hulmes further contends that this court never specifically addressed his objection to the lab report on hearsay grounds, but only addressed the authentication issue. See Hulmes, 936 F. Supp. at 206-07. Plaintiff suggests that this court "misconstrued" his arguments on the in limine motion. Plaintiff's Brief at 27. If so, plaintiff had numerous opportunities to disabuse the court of its "misconstruction."

 On October 15, 1996, before defendants' expert, Dr. Herbert Moskowitz, testified, the following exchange occurred between plaintiff's counsel and the court regarding the admissibility of the Cooper Hospital Lab Report.

THE COURT: Your objection is the admissibility of the Cooper Hospital records?
MR. LEVIN: That's correct.
THE COURT: And reliability of the information contained therein?
MR. LEVIN: Our objection is specifically focused on the lab report.
THE COURT: Well whatever, it's the Cooper Hospital record and particularly the lab report which is reflected in the Cooper Hospital records.
THE COURT: And I have ruled on that already in ...

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