Before Judges Baime, Carchman and Lintner.
The opinion of the court was delivered by: Lintner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Plaintiff, Milton Saldana, suffered a partial amputation of his right thumb while attempting to remove a wood chip from a wood molding machine that he was operating for his employer. He brought a products liability action against the distributor of the machine, defendant Michael Weinig, Inc., asserting claims based upon defective design and failure to warn. Plaintiff abandoned his claim of failure to warn and tried the issue of liability before a jury on the theory that the guard, provided at the point of operation, was defectively designed. The jury found that the wood molding machine was not defective. Plaintiff appeals from the adverse verdict and denial of his alternative motion for new trial or judgment NOV. We are convinced that the judge's trial ruling, based upon defense counsel's unfulfilled representations, permitting the introduction into evidence of a photograph of the machine taken by defendant's investigator, resulted in a clear capacity to produce an unjust result.(*fn1) We therefore reverse and remand for new trial.
On September 27, 1996, plaintiff and his wife, Maria Santiago Saldana,(*fn2) filed a personal injury complaint against unidentified "John Doe" manufacturers, distributors, and lessors of a wood molding machine. Also named as defendants, for the purposes of obtaining discovery, were European Designs, plaintiff's employer, (European); Michael Black, owner of European; European's workers' compensation insurance carrier, National Union Fire Insurance Co. of Pittsburgh (National); Gallagher Bassett Services, Inc. (Gallagher), an independent adjuster retained by National; and Gallagher's agent, Cindy Harkins.
Ultimately, plaintiff dismissed his action against European, Black, National, Gallagher, and Harkins, after receiving requested discovery material. On January 3, 1997, plaintiff filed an amended complaint naming distributor Michael Weinig, Inc., and the manufacturer, Michael Weinig GmbH & Co. as defendants. After a three-day trial on the issue of liability, the jury returned a verdict finding that the machine had not been defectively designed. The trial judge entered an order confirming the jury's verdict and dismissing the amended complaint in its entirety. Following argument, the trial judge issued an oral decision denying plaintiff's motions for new trial and judgment NOV and, concomitantly, entered a conforming order. On August 2, 1999, as the result of numerous problems associated with the processing of the audiotapes used at trial, the judge entered a "consent order settling record," which included a "stipulated synopsis" of key occurrences at trial.
We briefly state the facts relevant to this appeal. The wood molding machine, Model U17A, was sold by defendant to Camden Mill Works of Pennsauken in March 1984. It thereafter was purchased by European. The machine is a six-spindle, wood-molder "utilized to shape and plane multiple faces of wooden stock used primarily in the manufacture of moldings and furniture." It is about sixteen feet long with an integral tabletop surface that is about thirty-three inches above floor level. Unfinished wood of variable lengths is inserted into one end of the machine and conveyed by automatic feed rollers past six spindles consisting of multi blade cutters, which plane and cut the wood to a predetermined design. The finished piece is expelled from the opposite end. The spindles rotate at 6,000 revolutions per minute. The rotational speed of the cutter blades is so fast that they cannot be seen distinctly and appear as a gray-colored "blur." When a cutter is operating, it produces a "very loud wind noise," and when a cutter is actually molding a piece of wood, it produces a "tremendous loud sound."
The first spindle cutter, which was the cause of plaintiff's injury, is known as a "referencing spindle." It is located at the beginning of the run within the table top nearest the operator. Because the cutter blades face upward, the first spindle cutter acts to plane the bottom of the wood piece "so that it rests firmly and squarely on the table plate thus insuring that the finished piece is made "accurately." The point of operation where plaintiff was injured is guarded in part by a "pressure beam," a rectangular box housing the feed rollers, some distance above the point of operation that covers the adjacent table top and adjusts to a maximum height of four inches, depending on the thickness of the unfinished wood piece to be processed. There is also an adjustable wooden guide that partially guards the spindle cutter involved in plaintiff's injury.
Normally, the machine is set up to make molding approximately one and seven-eighth of an inch wide by three- quarters of an inch to one inch thick. At its normal setting, the bottom edge of the side of the rectangular guard is open, a distance of approximately two and one-half inches above the table top surface exposing the cutter blades. Plaintiff, who had been employed by European for two and one-half months, had prior experience working with wood molding machines with another employer over a three-year period of time. He understood that he was to keep his hands away from the rotating blades of the first spindle cutter. On the day of the accident, plaintiff had operated the machine for about two hours, during which time there were "numerous jams of wood stock." With Michael Black standing nearby, plaintiff raised the pressure beam to its maximum height, which revealed that a small sliver of wood had become lodged in the area of the fence near the first spindle cutter causing the machine to "jam" and thereby mar the finished wood product. Bending down in order to see the wood chip, plaintiff reached underneath the guard through the side opening, a distance of approximately four inches. Although aware that the machine was running, plaintiff indicated that he momentarily forgot that the blades were in the vicinity of the wood chip when he reached under the guard.
The cutter blades tore away his thumbnail and some of the tissue below it, resulting in the "partial amputation of his right thumb" above the knuckle joint. Plaintiff underwent surgery and rehabilitation and was medically cleared to return to work without restriction on May 1, 1996.
Prior to picking a jury, plaintiff announced that he was voluntarily abandoning his warnings claim. Simultaneously, plaintiff moved to crop the photographs of the machine, produced by defendant, to remove the warning sticker appearing in the photographs near the point of operation where plaintiff was injured. Counsel explained that about five months after the accident, he had contacted European's owner, Black, and arranged for an inspection of the machine to be held on April 17, 1996. The day before the scheduled inspection, Black notified plaintiff's counsel that the inspection had to be postponed and rescheduled. Nine days later, on April 25, 1996, Black permitted defendant's representative, Danny Boggs, to inspect and photograph the machine. The photographs taken by Boggs depicted a single, relatively large and graphic warning sticker directly above the point on the machine where plaintiff was injured, showing blades, a hand, and a partially amputated finger. Counsel went on to explain that months later, as the result of litigation to compel Black to permit an inspection, he and plaintiff's expert were permitted to examine the machine, which they found to be "plastered" with numerous additional warnings not shown on Boggs's photographs.
Counsel advised the judge that the circumstances raised in his mind a suspicion that the single sticker that was depicted in Boggs's photograph "was not really there when my client suffered his injury." Counsel pointed out that, although plaintiff testified at depositions that there was some type of written warning on the machine, he could not identify the warning depicted in Boggs's photographs as the warning present at the time of his injury.
In response, defense counsel advised the court that defendant had developed the warning stickers in the early 1990s. He indicated that the warnings had been sent to Camden Mill Works in 1991. He related that defendant sent a complete package of warnings to European approximately one year before plaintiff's accident when it subsequently learned that European was the owner of the machine. Defense counsel represented to the judge that Black would testify that the individual warning sticker depicted in Boggs's photograph was "in fact present on the guard at the time of the accident." In further support of its position that the photograph should not be cropped, defendant argued that the warning was relevant to the risk utility analysis as it relates to the issue of defective design. Defendant also maintained that the ...