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Boryszewski v. Burke

September 27, 2005


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Hudson County, HUD-L-9726-98.

The opinion of the court was delivered by: Kestin, P.J.A.D.



Argued: January 11, 2005

Before Judges Kestin, Alley and Fuentes.

This case arises from a motor vehicle accident that resulted in the death of Annette Boryszewski while she was driving a minivan manufactured by defendant Chrysler Corporation, DaimlerChrysler, Inc. (Daimler). Before the initial trial of the matter, plaintiffs' claims against all defendants except Daimler were either settled or dismissed.

Against Daimler, plaintiffs had alleged a product liability cause of action based on a design-defect/"crashworthiness" theory. Those issues were initially presented to a judge and jury in a fourteen-day trial. The jury returned a verdict for plaintiffs, finding Daimler liable for a design defect in the vehicle decedent had been driving, and awarding damages totaling $20 million: $5 million in wrongful death damages and $5 million in emotional distress damages to each of decedent's three sons, who had been passengers in the vehicle at the time.

Thereafter, a hearing was held to approve the terms of the $2.8 million structured settlement between plaintiffs and the settling defendants as it affected the minor plaintiffs. After the trial court rendered an oral opinion approving the settlement, Daimler objected to it as void on public policy grounds. Following consideration of the parties' positions in writing, the judge entered an order approving the settlement.

Daimler had also moved for judgment notwithstanding the verdict, a new trial, or remittitur. The trial judge granted a new trial on the issue of damages only, and denied all other aspects of Daimler's motion. His reasons were expressed in an oral opinion.

A second, nine-day trial on damages ensued. The jury awarded $800,000 in wrongful death damages, $25,000 in emotional distress damages to one of the children, and no emotional distress damages to the other two children. The trial court denied plaintiffs' motion for a new trial on damages.

Plaintiffs appeal from the trial court's order vacating the damages verdict in the first trial and ordering a second trial on damages. They also appeal from the judgment based upon the damages verdict in the second trial and the order denying their motion for a new trial on damages, asserting erroneous rulings by the second trial judge and deficiencies in his charge to the jury on the issue of emotional distress damages, and challenging the second damages verdict as against the weight of the evidence.

Daimler cross-appeals from the liability aspect of the judgment based upon the first jury's verdict, asserting erroneous evidentiary rulings, as well as deficient jury instructions by the first trial judge as a result of his rejection of Daimler's request to charge on apportionment of fault among defendants. Daimler also argues that its motions for judgment, judgment notwithstanding the verdict, and a new trial were erroneously denied; it contends that the verdict on liability was against the weight of the evidence; and it challenges the trial court's rejection of its argument that the settlement between plaintiffs and defendant Mobil Oil Corporation (Mobil) was void as against public policy.


The accident occurred at about 5:50 p.m. on August 5, 1998. Annette Boryszewski was driving her family's 1998 Plymouth Grand Voyager, a minivan, on Route 280 westbound in East Orange. Her three sons--Matthew, age fourteen; Brian, age eleven; and Timothy, age seven--were riding in the Voyager with her. Brian was in the front passenger seat, Matthew was seated in the second row behind the front passenger's seat, and Timothy was seated in the second row behind the driver.

At the same time, defendant Cody Burke was driving his Jeep Wrangler in the far left lane of Route 280 eastbound. The left front tire came off Burke's vehicle, bounced over the median divider, hit a vehicle on the westbound side of the highway, bounced again several times, and then crashed into the windshield and windshield header of the Boryszewski vehicle. The tire shattered the windshield and crushed the roof downward, fracturing Annette's skull and killing her.

A week before the accident, the tires on Burke's vehicle had been rotated at defendant Gazzani Motors, which leased space at the North End Mobil gas and service station in Bloomfield, operated by Jeffrey Argast, also named as defendants. A State Police investigation into the accident concluded that the mechanic who had rotated Burke's tires did not securely fasten the lug nuts on the front tires, causing the left front tire to come off.

After being struck by Burke's tire, the Boryszewski vehicle careened toward the center of the highway. As this occurred, Matthew arose from his seat and turned off the ignition. The minivan then came to a stop against the median divider of the highway.

Annette and the children were transported to the University of Medicine and Dentistry in Newark. Annette was pronounced dead due to blunt force trauma to her head caused by impact with the Voyager's roof. The boys suffered minor physical injuries.

Plaintiffs alleged a design defect with the Voyager, claiming it was not "crashworthy." Specifically, plaintiffs contended that the Voyager's windshield header lacked sufficient structural strength to protect its occupants from grievous injury or death in a reasonably foreseeable accident, such as the one that occurred here. Plaintiffs claimed Annette would not have died if the windshield header had been adequately designed.

The parties introduced contrapositive evidence on the design defect issue. Plaintiffs presented evidence from Gerald Steinberg, an expert in metallurgical testing and analysis; and from Erik Carlsson, an expert in automotive design and engineering, automotive safety standards, and accident reconstruction. Plaintiffs also introduced the deposition testimony of several Daimler employees who had been involved in the design and testing of the Voyager. Daimler offered evidence from Dr. Michelle Vogler, an expert in the fields of metallurgy, design and evaluation of automobiles, and statistics.


We address, first, the liability questions raised in the cross-appeal. Daimler raises two issues in this connection: whether the first trial judge erred by admitting the testimony of Erik Carlsson, one of plaintiffs' experts; and whether the liability verdict was against the weight of the evidence.


Our review of the record discloses that, as a matter of weight, if all the expert testimony was admissible, there was ample evidence to support the jury's verdict on liability. We reject Daimler's weight-of-the-evidence arguments, which are essentially based upon its expert's testimony regarding the strength of the Voyager's roof system as a whole, with inadequate consideration for the countervailing testimony of plaintiffs' witnesses. The jury was entitled to reject Daimler's expert's opinions and credit plaintiffs' evidence to the contrary. See, e.g., Waterson v. Gen. Motors Corp., 111 N.J. 238, 248 (1988); Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 90-91 (App. Div.), certif. denied, 175 N.J. 77 (2002); Poliseno v. General Motors Corp., 328 N.J. Super. 41, 59; Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985); Ardis v. Reed, 86 N.J. Super. 323, 330-31 (App. Div.), aff'd o.b., 46 N.J. 1 (1965); State v. Scelfo, 58 N.J. Super. 472, 477-78 (App. Div. 1959), certif. denied, 31 N.J. 555 (1960). Assuming the admissibility of all the expert testimony, there is ample evidentiary support in the record taken as a whole to support the jury's verdict on liability, see Carrino v. Novotny, 78 N.J. 355, 360 (1979)("a jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong . . . as to manifest with utmost certainty a plain miscarriage of justice")(citing Baxter v. Fairmont Food Co., 74 N.J. 588 (1977)), and to justify the trial court's denial of Daimler's motions for a new trial or alternative relief following the first trial. See Dolson v. Anastasia, 55 N.J. 2, 6-9 (1969); see also Dolid v. Leatherkraft Corp., 39 N.J. Super. 194, 197 (App. Div. 1956).


The focal issue on liability is, therefore, the admissibility of Carlsson's testimony. Daimler contends that the first trial judge erred by: (1) denying its motion in limine to bar Carlsson's testimony; (2) denying its motion to strike Carlsson's testimony from the record; and (3) denying its motion for a new trial based upon the allegedly erroneous admission of Carlsson's testimony. Daimler contends Carlsson's opinions were inadmissible because they were net opinions and because they differed from the opinions Carlsson gave in pretrial discovery. Daimler further contends that Carlsson's opinion regarding a "208 rollover test" was inadmissible because Carlsson misstated an issue of law--namely, the injury criteria for the 208 test which are set forth in the Code of Federal Regulations.

We need not burden this opinion with pointless exegesis. It suffices to say we reject Daimler's arguments in this regard as meritless.

In ruling upon Daimler's in limine motions, the first trial judge engaged in an exhaustive review of Carlsson's deposition testimony and expert report, and articulated the results of his evaluation on the record. He determined that he could not rule on Daimler's motions in a vacuum, without hearing Carlsson's testimony in the context of the trial. That ruling was unremarkable.

Immediately after Carlsson concluded his testimony, Daimler moved to strike. The judge expressed concerns whether the opinions Carlsson expressed at trial were consistent with those he had given before trial. Moreover, the judge "believe[d] that Mr. Carlsson's testimony . . . was vague, circuitous, [and] bordering on evasive." Nevertheless, the judge denied Daimler's motion to strike because those determinations were the province of the jury. He ruled that the opinions Carlsson had expressed at trial were not inadmissible net opinions, and that Daimler had had sufficient pretrial notice of them.

At the close of all evidence, Daimler made a motion for judgment under R. 4:40-1, which the court denied on the ground that the evidence was sufficient to support a judgment in plaintiffs' favor.

Daimler's post-trial motions for judgment notwithstanding the verdict, under R. 4:40-2, or, alternatively, for a new trial, based upon the alleged erroneous admission of Carlsson's testimony, were also denied. The judge again evaluated Carlsson's trial opinions as consistent with the opinions he had expressed in pretrial discovery. Therefore, the judge concluded, there was no surprise or prejudice to Daimler warranting the exclusion of Carlsson's testimony. The judge also determined, once again, that Carlsson's views were not net opinions, that there was sufficient factual basis for Carlsson's opinions relating to the 208 rollover test, and that there was no basis for challenging those opinions based upon the asserted unreasonableness or untrustworthiness of the testing methodology or analysis employed. Finally, the judge concluded that the jury's finding of liability was consistent with the evidence adduced at trial.

We are in substantial agreement with the trial judge's reasoning and conclusions in each respect. Daimler cannot validly use the post-trial motions before the trial court or the arguments made on appeal as surrogates for its duty to present the jury with evidence that persuasively countervailed plaintiffs' proofs.


Although we have determined that Daimler is not entitled to a new trial on the product liability question, whether Daimler was entitled to the charge it requested on apportionment of liability among the various defendants is another question entirely.


During charge conferences, Daimler requested that the jury be instructed to consider apportionment of fault between Daimler and the co-defendants who had settled before trial. Daimler contended that the settling co-defendants who caused the accident should bear some liability for Annette's death.

Plaintiffs responded that apportionment was inappropriate in the circumstances presented. They contended that, in crashworthiness cases such as the present one, where plaintiffs were seeking damages only for second-collision or enhanced injuries, i.e., injuries, such as Annette's death, which were not caused by the accident itself but were caused exclusively by the vehicle's design defect, there is no basis for apportionment of fault between the vehicle manufacturer and the parties who caused the accident.

The judge denied Daimler's request for an apportionment charge. He concluded that, based upon the evidence adduced at trial, there was an indivisible injury which was not capable of being apportioned. He clarified his view as follows:

This has been . . . a case where the defendant has defended . . . saying that their windshield header, their roof structure[,] was a safe design and that nothing could have prevented the injuries --the death -- that ensued here.

The plaintiff has alleged that there was a design defect and that there was a reasonably or safe alternative design that would have prevented this injury. So I don't think that this case is capable [of apportionment] because of the nature of the injury, the nature of the proofs in this case, not because there's not evidence before this jury for them to determine whether or not Exxon Mobil was negligent or Cody Burke was negligent but because I think the injuries are not capable of apportionment here . . . .

Plaintiff contends that Mrs. Boryszewski's death was caused directly by the defective roof header -- windshield header. And it is plaintiff's contention that had Chrysler provided a safer design for that header, that . . . the death would not have occurred and that she would have survived unharmed. Parenthetically[,] as previously indicated[,] plaintiff is not seeking an award for any enhanced injuries so to speak; that is, what the injuries would have been had the roof not deformed as much as it had.

Chrysler has vigorously defended the design defect allegation and contends that nothing would have prevented the Boryszewski death as it pertains to its windshield header; that the header was reasonably safe, suitable and fit for its intended purpose[;] and that the plaintiff has not proved that there was a defect in this case.

So [, . . .] because of the way [the case] has gone in, because this Court believes that the injuries are not divisible so to speak, the Court will not grant Daimler's application for an apportionment charge. I don't find that a jury could find that those injuries are divisible.

The jury charge given conformed with model jury charge terms except that it omitted any reference to apportioning liability. Subsequently, the trial judge, for the same reasons as previously expressed, denied Daimler's motion for a new trial based on the omission to charge on apportionment.


Jury instructions should correctly state the applicable law in clear and understandable language. See Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 464 (2000); Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 160 (App. Div. 1999), aff'd, 164 N.J. 1 (2000). Appellate courts should review jury instructions as a whole, and may not reverse if the charge adequately conveys the law and is unlikely to confuse or mislead the jury. See Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997); Berberian v. Lynn, 355 N.J. Super. 210, 219 (App. Div. 2002), aff'd as modified, 179 N.J. 290 (2004); Domurat, supra, 353 N.J. Super. at 93; Jefferson v. Freeman, 296 N.J. Super. 54, 65 (App. Div. 1996). Even erroneous jury instructions will be upheld if they are "incapable of producing an unjust result or prejudicing substantial rights." Sons of Thunder, supra, 148 N.J. at 418 (citing Fisch v. Bellshot, 135 N.J. 374, 392 (1994)). Accord, Mogull, supra, 162 N.J. at 464; Cavanaugh, supra, 331 N.J. Super. at 161.


New Jersey law favors the apportionment of fault among responsible parties. See N.J.S.A. 2A:15-5.1 to -5.8; Scafidi v. Seiler, 119 N.J. 93, 109-14 (1990); Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004). The Comparative Negligence Act mandates the apportionment of fault where "the question of liability is in dispute." N.J.S.A. 2A:15-5.2a.

The Act provides:

a. In all negligence actions and strict liability actions in which the question of liability is in dispute, . . . the trier of fact shall make the following as findings of fact:

(1) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party's damages.

(2) The extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%. [N.J.S.A. 2A:15-5.2a.]

It is appropriate for juries to apportion fault between defendants who settled before trial and those who did not. Settling defendants may not be held liable to pay more than the settlement amount, however. See Young v. Latta, 123 N.J. 584, 591-96 (1991).

The New Jersey Supreme Court has recognized that, although rare, cases may arise where it is extremely difficult or impossible to apportion damages. See Campione v. Soden, 150 N.J. 163, 175, 184-85 (1997)(involving automobile "pile-up"/successive rear-end collisions). In such cases, the Court favors "rough apportionment." See id. at 184-85. The Court has articulated the standards for trial courts to follow in cases in which apportionment of fault is either extremely difficult or impossible based upon the evidentiary record developed at trial:

At the conclusion of a trial where allocation of damages among multiple tortfeasors is an issue, the trial court is to determine, as a matter of law, whether the jury is capable of apportioning damages. The absence of conclusive evidence concerning allocation of damages will not preclude apportionment by the jury, but will necessarily result in a less precise allocation than that afforded by a clearer record. If the court establishes as a matter of law that a jury would be incapable of apportioning damages, the court is to apportion damages equally among the various causative events. If the court concludes ...

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