On appeal from the Superior Court of New Jersey, Law Division, Passaic County, L-424-04.
The opinion of the court was delivered by: Coburn, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Collester and S.L. Reisner.
In this products liability case, plaintiff tried to prove by expert testimony that the airbag in her car had a manufacturing defect or a design defect that caused it to deploy and injure her when it should not have deployed. When plaintiff rested, defendant moved for judgment, arguing that plaintiff's expert had failed to provide adequate evidence to support either form of defect. The judge denied the motion. The jury rejected the manufacturing defect claim, but found for plaintiff on the alleged design defect and awarded her $125,000 in compensatory damages. Plaintiff moved for a new trial on damages, and defendant, relying primarily on the inadequacy of plaintiff's expert's testimony, moved for judgment notwithstanding the verdict. The judge denied the motions, and both sides appealed. We reverse the judgment against defendant because plaintiff's expert failed to provide evidence of an alternative safer design.
On March 30, 1997, plaintiff, Nicole Diluzio-Gulino, was involved in a two-car accident on Route 23 in Wayne. She was driving a car manufactured by defendant Daimler Chrysler Corporation. The accident happened when another car pulled onto the road in front of her. She braked hard but could not avoid hitting the other car. The airbag deployed on impact, slamming her arm into the door, and causing a "significant" "fracture dislocation to [her] left elbow." An emergency room doctor relocated her arm, and an orthopedic surgeon performed an open reduction of the fracture, which required placement of a plate and six screws in her elbow. She had physical therapy for about eight months, but she continues to experience "sharp, striking pain" at times and "a general soreness and a weakness." The mobility of her arm is now limited by traumatic arthritis.
The dispute about Daimler's airbag focused on its settings for deployment and the Barrier Equivalent Velocity ("BEV") of plaintiff's car at impact. BEV is a term of art employed by all concerned, meaning, in essence, a speed at which a vehicle goes head on into a barrier, measured in miles per hour. Airbags are set to deploy at various BEVs. The BEV of a car in a particular accident is a complex question since collisions occur in all sorts of ways, but the parties agree that the safety of deployment settings and the impact of the accident are properly measured in BEVs.
Plaintiff's engineering expert, Eric Carlsson, testified first on the subject of manufacturing defect. He said that the design of the BEV settings in plaintiff's car were such that the airbag would not deploy up to 8 BEV, may deploy between 8 and 14 BEV, and would deploy at over 14 BEV. He said that the BEV for plaintiff's car was "well below" 8 at the time of the impact. And that conclusion, which he reiterated a number of times, was explained to the jury in great detail. Indeed, the overwhelming bulk of his testimony related to that conclusion and his further conclusion that this proved that there was a manufacturing defect of some undefined nature.
The expert was then questioned about the supposed design defect. The first question was this: "[D]o you have an opinion as to whether or not the eight mile per hour threshold for may fire of the air bag was reasonable in this case?" Before describing his answer, we should note the apparent irrelevance of the question in light of the expert's prior testimony. Not only had the expert previously testified that the BEV of plaintiff's car in this accident was less than 8, he had, as well, expressly rejected the contrary opinion of defendant's expert that the BEV of plaintiff's car was between 9 and 10. Thus, based on his reconstruction of the forces involved in the accident, the 8 may-deploy setting had nothing to do with the case. Nonetheless, the expert replied in answer to the question that within a reasonable degree of engineering probability a BEV may-deploy setting of 8 was too low. He offered the following explanation:
Because the air bag -- air bags I would say, are intended to reduce injuries in collisions. It is known that the air bags will cause injuries. The reasoning there is that if the air bag causes more injuries than it prevents then it should not deploy.
The deployment should only occur when the air bag reduces the injury, which is to say that when the injuries caused by the accident and the air bag [are] less than the injuries you would have sustained without the air bag there, then the air bag should deploy.
In reaching his conclusion, the expert relied on a number of technical reports, some of which were placed in evidence. Although those reports expressed concerns respecting BEV settings that allow deployment of the airbag in low speed accidents, such as occurred here, and suggested exploration of using higher settings, none of them provided data demonstrating what the lowest setting should be for maximum overall safety.
As to an alternative design, the expert's testimony was limited by the judge's rulings, which are not questioned on appeal by plaintiff, to the concept that an airbag could be designed with a higher than 8 may-deploy BEV without specifying what that higher BEV might be. The expert admitted that he did not know how many more deaths would occur in crashes with unbelted occupants if Daimler had implemented his recommendation, and, as already noted, none of the ...