On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Approved for Publication December 13, 1997.
Before Judges Dreier, Keefe and P.g. Levy. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by
Plaintiffs, Dominick Congiusti and Nancy Congiusti, appeal from a judgment for defendant, Ingersoll-Rand Company, Inc., based upon a jury verdict in this product liability action. While employed by Mayrich Construction Company on April 28, 1990, Dominick Congiusti ("plaintiff," when used in the singular) was injured when an Ingersoll-Rand ECM-350 crawlair drilling machine which he was attempting to move lurched towards him, pinning him against an adjacent machine. Plaintiffs claimed that the accident was caused by a design defect in the machine. Defendant denied the existence of a defect and contended that the accident was caused solely by plaintiff's negligence.
Plaintiff was an experienced operator of the machine, and his employer owned several similar machines manufactured both by Ingersoll-Rand and Gardner-Denver. The machine in question, which was used to drill holes in hard surfaces, including rock, was air-powered and self-propelled. It moved, or in the terms of the trade, trammed, on two wide treads, controlled by handles mounted on a moveable plate located at the left rear of the machine. Each handle controlled one of the treads and to be operated, the handle had to be manually moved from a detent position by forcibly indexing the handle, which could then be moved forward or backward, thereby controlling the treads. When a handle was released, a strong spring immediately moved it to the neutral position and the tread would instantly stop. Thus, without pressure on the handles the machine would not move.
The plate on which the tramming control handles were located also contained several smaller levers that controlled the drilling operation. The plate itself could be pivoted horizontally around the rear left corner of the machine into one of three settings. The zero degree setting was directly behind the left rear of the machine; the forty-five degree setting was behind the rear left corner of the machine; and the ninety degree setting faced the rear left side of the machine.
At the time of the accident, plaintiff had been instructed by his superior to move the machine to a flatbed truck so that it could be taken to a job site. Plaintiff turned on the machine, activating the air pressure that operated the controls which were set in the ninety degree position. Plaintiff therefore was standing on the ground, facing the left rear side of the machine and had his back to a similar machine parked immediately adjacent to the one he was operating. When he moved the handles forward, the machine lurched towards him, pinning his arms and forcing his body against the controls. This position prevented the safety springs from returning the handles to their neutral and detent position which would have deactivated the power. Instead, plaintiff continued to be pinned against the adjacent machine, causing him to lose consciousness and suffer severe injuries.
Plaintiffs' expert asserted that one of two additional safety devices should have been incorporated into the design of the machine. First, plaintiffs claimed that there should have been a cover over the control panel so that a body could not be pressed against the control panel and could not prevent the operation of the release mechanism. Second, plaintiffs' expert testified that there should have been a platform on which the operator could stand so that there would be no relative motion between the machine and the operator, and the platform itself would have acted as a safety guard or bumper preventing an accident such as this from happening. Defendant's experts asserted that either or both of these design changes would have materially and adversely affected the operation of the drilling machine which often had to be maneuvered in tight spaces and with easy access to the controls.
Defendant further contended that the sole cause of this accident was plaintiff's negligent decision to operate the machine from the ninety degree position, where he could be tightly wedged between the machine and the one to its left. Since there also was little room to the rear of the machine, similar dangers might have been present if it were operated from the zero degree position. The safest position to operate the machine according to defendant was from the forty-five degree position, and plaintiff's decision to manipulate the machine from a position of danger was, in defendant's view, the sole proximate cause of this accident.
Plaintiffs raise three points on this appeal. They first contend that the testimony of defendant's experts went far beyond the experts' reports supplied to plaintiffs prior to trial. Thus, they conclude, the trial court erred in "permitting defendant's experts to testify and to offer opinions never disclosed during discovery." This claim is only partially accurate because the broad subject areas were covered. While the experts had not fully disclosed their theories in their reports, had they been deposed by plaintiffs, their depositions might have fully revealed the bases for their eventual testimony. See Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206, 542 A.2d 16 (App. Div. 1988), aff'd sub nom., Mauro v. Raymark Indus., Inc., 116 N.J. 126, 561 A.2d 257 (1989) (affirming the exclusion of expert testimony regarding statistics because such statistics "were not contained in [the expert]'s written report or any other discovery material ") (emphasis added). Further, as we noted in McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 521 A.2d 851 (App. Div.), certif. denied, 108 N.J. 219 (1987), "when an expert's report is furnished, 'the expert's testimony at trial may be confined to the matters of opinion reflected in that report,....' however, the logical predicates for and Conclusions from statements made in the report are not foreclosed." Id. at 171 (quoting Maurio v. Mereck Constr. Co., Inc., 162 N.J. Super. 566, 569, 394 A.2d 110 (App. Div. 1978)).
While a trial Judge may in his or her discretion preclude expert testimony on a subject not covered in the written reports furnished by an adversary, in Ratner v. General Motors Corp., 241 N.J. Super. 197, 202, 574 A.2d 541 (App. Div. 1990), we strongly urged the trial Judge in the exercise of his discretion to "suspend the imposition of [the] sanction [of exclusion]" when certain factors were present. These were "(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 ...