Before Judges Dreier, Keefe and P.g. Levy.
The opinion of the court was delivered by: Keefe, J.A.D.
 Argued March 24, 1998
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Plaintiff, Thomas Corcoran, sustained a severe injury to his left eye while using a pair of needle nose pliers sold by defendant Sears Roebuck Corporation and manufactured by Western Forge. Plaintiff sued defendant alleging a manufacturing defect. A jury found in favor of defendant, finding no manufacturing defect. Plaintiff appeals and defendant cross-appeals.
Plaintiff contends on appeal that the Judge erred in: 1) denying plaintiff's motion to introduce into evidence the expert report of Martin Glickman, Ph.D., an expert retained but not called by the defense, as an adoptive admission; 2) improperly instructing the jury as to the use of circumstantial evidence to prove a manufacturing defect; 3) allowing defendant's expert to rely upon inadmissible hearsay concerning the manufacturing and quality control processes in effect at Western Forge in 1980; and 4) precluding plaintiff's counsel from cross- examining defendant's expert as to federal specifications which were not adopted by defendant as part of its own manufacturing specifications. We find no trial error warranting our intervention and affirm the judgment under review. Accordingly, we need not address the issues presented in the cross-appeal.
The accident occurred on October 21, 1990, while plaintiff was working in his father's driveway attempting to replace the rear brakes on his friend's station wagon. Plaintiff used his father's tools to perform the brake job. He testified that he used the subject needle nose pliers, which he described as being in "[g]ood condition," to remove without incident the brake springs from the brake assembly. Once the springs were out, plaintiff was able to remove the brake shoes. Plaintiff then began to replace the brake shoes by reversing the process.
While seated on a tire, plaintiff looked to see if the brake spring was aligned with the assembly, thereby placing his eye in line with, and within inches of, the spring. He held the needle nose pliers in his left hand, gripped the spring at approximately the pliers' eighth serration, and pulled the spring from left to right, towards his face, in an effort to reconnect the spring between the brake shoe and the brake self-adjuster. According to plaintiff, at that moment the pliers "broke," causing them to release from the spring and hit him in the left eye.
Plaintiff's father immediately drove plaintiff to the hospital. The emergency admission record indicated: "patient states a pair of needle nose pliers slipped and penetrated [his left] eyeball." Plaintiff later denied making that statement.
Upon returning home, plaintiff retrieved the needle nose pliers, which his friend had placed back in plaintiff's father's tool box, and brought the pliers to his bedroom where it remained for approximately one year to eighteen months. Plaintiff testified that he was unable to find the 1/8-inch section of the jaw tip that had broken off the pliers.
The pliers involved in this incident was manufactured by Western Forge in 1980, and sold by defendant under the Craftsman brand. Defendant admitted that the pliers had "an indefinite life provided . . . [it was] properly used and cared for."
Peter Elliot, plaintiff's expert in the areas of failure analysis, metallurgy and forensic engineering, testified that the pliers was defective when manufactured. He explained that when he examined the pliers in 1992, 1/8-inch of one of the jaws, from the tip to approximately the third serration of the pliers, was missing. He also observed that the pliers was dirty and had "bits of surface rusting and general deterioration." The fractured surface was covered with corrosion and very little of the original fractured surface was left for examination. He said his finding was consistent with the pliers having been stored in a garage-type environment for approximately eighteen months. Elliot testified that the rust corrosion found on the pliers did not have an effect upon the mechanical behavior of the tool or cause the fracture. The corrosion, in his opinion, occurred after the fracture. Elliot also observed that the fractured surface had some "superficial" damage which, in his opinion, also occurred after the fracture. According to Elliot this damage was consistent with wear and tear caused by other tools coming in contact or rubbing against the pliers. He did not observe any evidence of prior abuse of the tool. Elliot's findings, attributed to post fracture occurrences, were at odds with plaintiff's testimony that the pliers were isolated and kept in his room after the accident, if, as plaintiff contended, the pliers broke on the date of the accident.
After observing the pliers, Elliot removed loose debris and some of the rust. He then cut a small segment off the end of the broken jaw and examined that segment under an electron microscope. He observed a series of small quench cracks and voids. The tip of the unfractured jaw was also removed and examined under the electron microscope. He also found small quench cracks on the unbroken tip.
Elliot explained that quench cracks were caused when metal, in this case steel, is heated and then quickly cooled. In his opinion, the quench cracks were caused by the improper quenching or heat treatment of the pliers. He determined that the surface features of the broken part of the pliers were typical of a brittle fracture or a "a sharp break" with no corresponding evidence of stretching. According to Elliot, a brittle fracture "occurs without warning" and is "very quick." It results from "some fault" in the heat treatment of the pliers.
Elliot also conducted hardness measurements on the pliers and determined that the tool did not deviate from the American National Standard Institute ("ANSI") standards. Additionally, the metallurgical properties were consistent with good metallurgical standards. He admitted that he had not conducted any tests on the pliers to determine whether the cracks he had discovered were sufficiently deep to cause a brittle fracture.
In contrast, Douglas McKittrick, an employee of Western Forge and defendant's expert in metallurgy and metallurgical testing, testified that the pliers was properly heat-treated and did not contain quench cracks or other manufacturing defects. McKittrick first examined the pliers in 1994, after Elliot cut off the tips. He observed that the pliers contained surface imperfections, that are common in forged tools. He said that the imperfections are not quench cracks, did not constitute a manufacturing defect, and would not cause the pliers to break.
As part of McKittrick's testimony, a slide show was presented to the jury to demonstrate the method by which pliers were manufactured at the time of the trial. According to McKittrick, Western Forge was using the same furnaces at the time of trial that had been used in 1980, when the pliers were manufactured. The furnaces had high temperature thermometers to record the temperature inside the furnace. The pliers were initially heated to 1550 degrees Fahrenheit, then dropped into oil which quickly cools the steel to 150 degrees Fahrenheit and changes the molecular structure of the steel from austenite to martinsite. "Martinsite is the hardest structure that you can form in any steel."
As the steel cools it does not contract like most other materials, but rather expands. The outside layer of the metal part of the pliers cools and hardens first into a hard outer shell. A quench crack occurs when there is an imperfection in the hard outer layer which allows the cooling inner layer to expand out. McKittrick testified that quench cracks are large, not microscopic, and follow the grain structure of the steel down towards the center of the metal. According to McKittrick, "the last place" you would expect to see a quench crack is across the tip of the jaw of the pliers, because that area is relatively thin and would cool down at approximately the same rate. Thus, quench cracks would usually occur in the thicker part of the tool.
McKittrick concluded that a ductile fracture occurred in this case. Such fractures are not caused by quench cracks, but rather by an "overload condition" or "prying" with the tip of the pliers. McKittrick explained that needle nose pliers are not designed for prying. Normal use of the pliers would not cause the tip to fracture in such a manner. Moreover, in his opinion, had the pliers been defectively manufactured they would not have lasted ten years before failing.
Additionally, McKittrick agreed with plaintiff's expert's that the corrosion that had accumulated over the fractured surface had been formed as a result of exposure to a garage-type environment. However, because plaintiff had testified that the pliers had been stored in his bedroom after the accident, McKittrick opined that the fracture and the corrosion must have occurred before the date of the accident.
Plaintiff argues that the trial Judge erred in denying his motion to introduce into evidence the expert report of Martin Glickman, Ph.D., an expert retained but not called by the defense. Plaintiff proposed to offer the report of Glickman as an adoptive admission pursuant to N.J.R.E. 803(b)(2), because defendant supplied it in reply to an interrogatory and did not expressly state that the report was not an adoptive admission. Plaintiff also argues the trial Judge erred in denying his application to use Glickman's report in his cross- examination of McKittrick. A.
Defendant responded to plaintiff's interrogatory 39, in which plaintiff had requested information regarding defendant's experts, that it had not "decided which, if any, person(s) it expects to call as an expert witness," and reserved "the right to supplement." Subsequently, in a letter dated June 13, 1995, defense ...