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Rider v. Township of Freehold


July 14, 2008


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-6458-95.

Per curiam.


Argued March 11, 2008

Before Judges Coburn, Grall and Chambers.

Robert Rider (Rider) sustained fatal cranial and cerebral injuries when he struck his head against a utility pole that penetrated the door and intruded into the passenger compartment of his 1986 BMW 325i. The car hit the pole after it slid off an icy roadway.

Defendants BMW of North America, Inc. and Bayerische Motoren Werke Aktiengesellschaft (collectively BMW) appeal from the final judgment in a wrongful death action in favor of plaintiff Joan M. Rider, as executor of her husband's estate.*fn1

Plaintiff's claim was based on a design defect under the Products Liability Act, N.J.S.A. 2A:58C-1 to -7, and the common law principles it incorporates.*fn2 See Green v. Gen. Motors Corp., 310 N.J. Super. 507, 517 (App. Div.), certif. denied, 156 N.J. 381 (1998). A jury found that the car's design was defective and awarded plaintiff damages in the amount of $6,930,000 to compensate for the pecuniary loss sustained by plaintiff and the Riders' five children.

BMW appeals, contending that it was entitled to judgment and judgment notwithstanding the verdict. In the alternative, BMW contends that erroneous evidentiary rulings and jury instructions on liability and damages warrant a new trial. For reasons stated in Part I of this decision, we affirm the verdict on liability and damages.

Plaintiff appeals, and defendant cross appeals, from the trial court's rulings on damages, prejudgment interest, fees and costs.*fn3 We now consolidate the separate appeals.

Applying the collateral source statute, N.J.S.A. 2A:15-97, the court reduced the damage award by $99,785, the amount plaintiff received from social security as Rider's surviving spouse and mother of his children, but the court did not deduct social security survivor benefits payable to the children. Both parties claim error. For reasons stated in Part II(B) of this decision, we remand for deduction of all social security benefits after offset for contributions.

The trial court denied prejudgment interest available for past economic loss pursuant to Rule 4:42-11(b), because the jury had stated the damage award in a lump-sum amount. Plaintiff argues that the jury instruction calling for a lump-sum verdict was plain error, which the court should have corrected by conducting a second trial to allocate damages awarded or by calculating past and future loss based on the evidence presented at the first trial. For reasons stated in Part II(A), we reject that claim.

Pursuant to Rule 4:58-2, and based on BMW's failure to accept plaintiff's offer of judgment, the court awarded prejudgment interest, from the discovery end date until the date of final judgment, in the amount of $843,237.18, plus pre-verdict counsel fees in the amount of $930,768.75, post-verdict counsel fees in the amount of $240,680.86 and costs in the amount of $59,170.65. Plaintiff contends that the court erred by calculating the interest from the discovery end date to the date of final judgment. For reasons stated in Part II(C), we reject that claim. BMW argues that plaintiff was not entitled to an award pursuant to Rule 4:58-2 and, in the alternative, argues that the amount awarded for reasonable counsel fees and litigation expenses is excessive. For reasons stated in Part II(C), we reject both claims. Finally, BMW argues that the award for taxed costs pursuant to Rule 4:42-8(a) is excessive. For reasons stated in Part II(D), we remand for reduction of that award.


This section of the opinion addresses the evidence relevant to liability and the points of error BMW raises relevant to the jury's verdict on liability and damages.


We reject BMW's claim that the trial court erred in denying its motions for judgment and judgment notwithstanding the verdict.*fn4 On review of a motion for involuntary dismissal, judgment, or judgment notwithstanding the verdict, a court must consider whether the evidence permits a finding of each essential element of the claim. See Pressler, Current N.J. Court Rules, comment 2.1 on R. 4:37-2(b) (2008); id. at comment 1 on R. 4:40-2. In making that determination, the court must "accept as true all evidence supporting the position of the party defending against the motion and must accord that party the benefit of all legitimate inferences which can be deduced therefrom. If reasonable minds could differ, the motion must be denied." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 567-68 (1998); see Zive v. Stanly Roberts, Inc., 182 N.J. 436, 441 (2005).

The law relevant to plaintiff's cause of action and BMW's liability is clear. A products liability claim based on a car's defective design is available if, considering the risks and alternatives that should have been known by a reasonable automobile manufacturer, the car was not "reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes" because of its design. Green, supra, 310 N.J. Super. at 517 (concluding that N.J.S.A. 2A:58C-2(c) incorporates the common law standard enunciated in Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 169 (1979)).

Where the design of a car is at issue, reasonably foreseeable accidents are a reasonably foreseeable use of the car, and reasonable, feasible measures to protect the integrity of the passenger compartment and the passenger in such accidents are part of a safe design. See id. at 521. Our cases have used the term "crashworthiness" to describe the quality of a car that provides such protection. See, e.g., id. at 519. "'Crashworthiness' is . . . 'the protection a passenger motor vehicle gives its passengers against personal injury or death from a motor vehicle accident.'" Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 45 n.2 (App. Div.) (quoting 49 U.S.C.A. § 3201(1)), certif. denied, 165 N.J. 138 (2000).

A plaintiff may establish a claim of defective design relevant to crashworthiness by proving that omission of a "reasonable alternative" design made the car "not reasonably safe." Green, supra, 310 N.J. Super. at 518 & 518 n.4; Restatement (Third) of Torts: Products Liability § 2(b) (1998). Stated differently, the plaintiff can demonstrate a claim of design defect by showing that the car "could have been designed in an alternative manner so as to minimize or eliminate the risk of harm." See Lewis, supra, 155 N.J. at 570-71 (discussing the design of a different product). In proving that the product at issue "could have been designed more safely," the plaintiff must prove "the existence of an alternative design that is both practical and feasible." Id. at 571; see Diluzio-Gulino v. Daimler Chrysler Corp., 385 N.J. Super. 434, 438 (App. Div. 2006); Smith v. Keller Ladder Co., 275 N.J. Super. 280, 284 (App. Div. 1994); Macri v. Ames McDonough Co., 211 N.J. Super. 636, 641 (App. Div. 1986). In addition, the plaintiff must establish that the manufacturer's failure to include the alternative design "was a substantial factor in producing an injury that would not have occurred, or would have been substantially diminished, in the absence of the defect." Poliseno, supra, 328 N.J. Super. at 55.

In this case, the jury found that BMW's design of the structure and seatbelt of Rider's 1986 BMW 325i was defective because it did not include "technically feasible, practical and safer alternative" designs proven by plaintiff's experts. The jury also found the defective design was a substantial factor in increasing Rider's injury beyond that which would have resulted if the defect had been remedied and that BMW had not established the percentage of injuries that Rider would have sustained if there had been no defect.

The relevant evidence, viewed in a light most favorable to plaintiff, is as follows. The accident occurred on January 3, 1994. Rider was driving his 1986 BMW 325i west on an icy road in Freehold Township. The car slipped off the road, hit a tree and was spun around. It was still traveling in a westerly direction at a speed of twenty-five to thirty miles per hour when the passenger side of the car hit a utility pole.*fn5 The car continued to move along the pole, at an eight or nine degree angle with the road, until it stopped abruptly when the "soft" mid-section of the door reached the pole and the car pocketed and wrapped around it. The pole intruded twenty-nine inches into the passenger compartment, which was crushed on its right side. From the force of the impact, Rider's upper torso moved out from under the shoulder seatbelt harness and toward the right side of the car. His head hit the intruding utility pole, causing fatal cranial and cerebral injuries.

The mid-section of the door, where the car grabbed the pole and stopped, is the point at which the car's rear and front subframes meet. Those subframes are not connected to one another. In this accident, the subframes were not deformed or distorted. They were simply pushed aside.

Plaintiff presented expert testimony relevant to the design of the 1986 BMW 325i and alternative, feasible and practical safer designs. Byron Bloch was plaintiff's expert on automobile safety and "crashworthiness," and Nicholas Perrone was her expert on mechanical and biomechanical engineering.

A "crashworthy" car, according to Bloch, is one designed and produced to protect the occupants by minimizing intrusions into the passenger compartment, the car's "survival space," and keeping the occupants in their seats. Bloch and Perrone found the 1986 BMW 325i lacking in both respects.

The front and rear subframes, which run on the underside of the car, could not prevent intrusion into the passenger compartment on side impact with a pole because they were not connected to one another. This design feature, the unconnected subframes, created a structural gap that allowed penetration. Although each subframe had its own independent connection to the car's floor pan, the floor pan was made of a thin piece of sheet metal that offered no real "structural resistance." Further, because the front subframes were positioned thirteen inches in from the periphery of the car, they could not prevent intrusion before that point, which was well within the passenger compartment.

The rocker sections of the car, which run along the perimeter of the underside of the car, were inadequate to prevent intrusion on side impact or compensate for the structural gap left by the separate subframes. The rockers were hollow and could not prevent intrusion, and the car did not have any structural lateral cross members that could serve to transfer the load of force from the hollow rockers to other structural components around its perimeter.

The only lateral component at the floor level was a hollow tube of sheet metal to which the seats were bolted. It provided no "real structural resistance" to side impact.

At the roof level, the only lateral structures were the roof side rails, which were made of a u-shaped open piece of thin metal. Those side rails were not connected to a rigid part of the frame structure.

The door beams were not part of a continuous structure around the perimeter of the car. Rather, they were bolted to the doors.

In the opinion of plaintiff's experts, the structural components of the car did not form a protective cage enclosing the occupants that would promote safety and survival in any type of crash by distributing the load from force on impact and preventing or minimizing intrusion into the passenger compartment.

Plaintiff's experts offered alternative designs that would form such a protective cage and would have minimized the intrusion into the passenger of Rider's car by a distance of twelve to seventeen inches. The experts recognized that the stiffening, or strengthening, of the structure would result in some increase in the force exerted upon the occupants of the car, but concluded that the impact of the forces would not increase beyond acceptable levels and could be reduced by the addition of padding.

The rocker sections could be reinforced with an internal baffle, which is a hollow tube made of the same sheet metal that forms the rocker, or with "rigid foam," which is inserted into a hollow metal tube in liquid form and expands to fill the hollow space. The baffle would convert what was a hollow rocker into two tubes and "significantly increase" its ability to resist buckling and bending on impact. Installation of the lightweight, easily installed and inexpensive foam would do the same. A draw back of the foam, its potential corrosive effect, could be addressed by using resistant metals and proper venting.

The baffle technology suggested to reinforce the car's rocker section was available in 1986. Other car manufacturers had used the baffle technology for decades. Volkswagen developed an experimental car utilizing that technology in 1973. Tests of that vehicle demonstrated that rocker sections reinforced with baffles kept intrusion upon impact with a pole to 4.33 inches at a speed of fifteen miles per hour. The results of that study were reported. According to Bloch, an impact of Volkswagen's experimental car and a pole would be seventeen inches at a speed of thirty miles per hour. Photographs of a structural member reinforced with a baffle were produced. Bloch acknowledged that the study reported that forces exerted on an occupant of the experimental car would increase beyond the standard set for experimental safety vehicles, but he explained that the standard for experimental safety vehicles exceed ordinary standards. Perrone explained that the increased forces could be addressed by additional padding.

The foam technology was also known and available in 1986. GM/Opel conducted a conference on vehicle safety in 1974. A report of a study presented at that conference advised that capability of handling the type of loading caused by a pole can be "increased drastically" by use of polyurethane foam. A 1973 article reporting on an experimental safety vehicle developed by Nissan advised that injection of urethane foam into hollow metal sections can triple the bending strength of the components.

According to Bloch and Perrone, the rockers, with the reinforcement suggested, could form part of the protective cage.

Plaintiff's expert also offered an alternative design that would close the structural gap left by the separate front and rear subframes utilized in the 1986 BMW 325i. The proposal was for a "tie in connector," linking the subframes with one another through connections between the reinforced rockers and a lateral structural cross member. This design required no new technology or materials; it utilized the same common structural materials and methods BMW employed in making the subframes. The cross member the experts proposed was one that measured four inches by one inch and was about one-and-one-half millimeters thick. It would be installed in the area of the front seats, above the drive shaft and catalytic converter.

Plaintiff's expert's proposed design included strengthening of the car's vertical pillars by replacing the open-tube construction with a closed-tube construction made of high strength steel. The pillars are the A pillars, on either side of the windshield; the C pillars, on either side of the rear window; and the B pillars, at the rear of the door and connected to the rocker sections. The experts proposed connecting all three sets to the roof, floor and the lateral cross member they recommended.

Alternative designs for the door utilizing available technology also were proposed. The proposed design for the door included insertion of a beam of high-strength steel, one-and-one half millimeters thick, that would act like a guardrail and deflect the car on impact. An industry report issued by GM in 1968 recommended installation of a "heavy duty guardrail" in a car door to "encourage deflection of the vehicle" in an accident involving another car or a pole. In addition, the door beam would be attached to a pillar connected to the roof and base of the car, rather than "floating" as it is in the 1986 BMW 325i.

Plaintiff also presented evidence to establish that BMW was aware of the risk of intrusion into the passenger compartment posed by accidents involving side impacts. In August 1980, BMW developed measures to strengthen, or stiffen, the frame of a different model BMW, a four-door model in BMW's five series, which are larger and heavier than the 325i and other models in BMW's three series. The test vehicle included a cross member connecting the A, B, and C pillars, and a connection between the B pillar and a cross member on the floor where the seats are attached. The front and rear doors were hooked together with the A, B and C columns and the sill, and massive beams were welded to the side of the vehicle so that the doors would not open. The modifications decreased penetration of the passenger compartment and did not raise acceleration forces to a level that was unacceptably dangerous for the occupants. Similar modifications were not incorporated in BMW's 325i until 1992.

In 1982 BMW modified and tested a four-door model in its seven series, a car larger and heavier than the 325i. The B pillar was connected to the rocker section at the top and the seat cross bar at the bottom, and the door was hooked to the rocker section. Penetration of the passenger compartment was thirty-seven percent less and the acceleration forces on crash-test dummies were within an acceptable range. Padding was used to absorb impact forces.

Neither of plaintiff's experts built a prototype or produced a blueprint for a car that included the structural designs they recommended. Bloch worked with an "exemplar" vehicle, a 1986 BMW 325i. His work on the "exemplar" vehicle was depicted on a video. The video was provided to BMW's attorneys during discovery and in sufficient time to permit defense counsel to depose Bloch. The tape showed a workman utilizing a power, circular saw to cut the vehicle and expose its structural members. Bloch, appeared on the video. He described the members, identified what he perceived to be design flaws and demonstrated, using spray paint and foam board mockups, the location of alternative safety measures that would form the protective cage around the passenger compartment.

Bloch's "exemplar" vehicle, Rider's vehicle and a vehicle crash-tested by BMW were transported to a secure area of the courthouse parking lot. The jurors were permitted to view the cars in the presence of the judge and the attorneys. Upon request, the court permitted the jurors to view the cars a second time so that they could see the underside of the cars.

Plaintiff also presented evidence to establish that the design of the seatbelt was defective. The lap and shoulder harness seatbelt worn by Rider did not restrain his upper torso. The seatbelt's failure allowed Rider's head to strike the pole. Photographs of BMW's 1980 side impact test performed on a different model showed similar movement of the crash-test dummy toward the impact site. An engineer for BMW acknowledged BMW's awareness of the problem.

Bloch and Perrone proposed an alternative design for the seatbelt that included a pretensioner and a seat-integrated seatbelt. According to Perrone, those design improvements would have restrained Rider and prevented him from striking his head against the utility pole.

On impact, a pretensioner activates and exerts force that tightens a shoulder harness around the passenger, thereby preventing movement. In 1986 Saab included a pretensioner in one of its models, and in the same year BMW offered a pretensioner in at least one of its models. Perrone admitted that in 1986 none of the pretensioners utilized in 1986 deployed on side impact. He noted, however, that a front impact activated pretensioner would have worked in this case, because Rider's right front bumper struck a tree before the side of his car hit the utility pole.

A seat-integrated belt includes a lap and shoulder restraint mounted directly onto the seat. This installation holds the occupant more securely in the seat. There was no dispute that seat-integrated lap and shoulder belts were available in 1986. They were utilized in other BMW models at that time.

There was no dispute that the 1986 BMW 325i, as designed and manufactured by BMW, met all relevant government standards.

The foregoing evidence was more than adequate to preclude a grant of judgment or judgment not withstanding the verdict in favor of BMW. While BMW is correct in noting that plaintiff did not provide a blueprint, build a prototype or test the measures it proposed, that is not required. Green, supra, 310 N.J. Super. at 514. An expert may demonstrate feasibility by showing that other manufacturers have incorporated that design, Lewis, supra, 155 N.J. at 569, and may demonstrate the benefit of the alternative design with the results of tests conducted by others, Green, supra, 310 N.J. Super. at 525; Crispin v. Volkswagenwerk AG, 248 N.J. Super. 540, 560 (App. Div.), certif. denied, 126 N.J. 385 (1991), or by simply identifying the defect in a design and suggesting an alternative that eliminates or does not pose the same risk, Huddell v. Levin, 537 F.2d 726, 737 (3d Cir. 1976).

Quite obviously, the evidence adequate to support a finding that the alternative design proposed is safer, practical and feasible and would avoid or minimize the harm at issue will vary with the defect alleged and the solution proposed. Clearly, it is not enough to show that the design of the product caused the injury. See Diluzio-Gulino, supra, 385 N.J. Super. at 441; Smith, supra, 275 N.J. Super. at 284-85. But, empirical evidence establishing that the proposed alternative design is safer or a tested prototype is not essential in every case.

BMW relies on Diluzio-Gulino for the proposition that empirical evidence demonstrating that the alternative is safer is essential, but that case is distinguishable. At issue there was a claim that the setting for deployment of an airbag was too low -- that is, triggered by an impact of too little force. Diluzio-Gulino, supra, 385 N.J. Super. at 440. The question whether an alternative higher setting for deployment of an airbag is "safer," by its very nature, requires a comparison of results under accident scenarios at impacts between the manufacturer's setting and the setting suggested. Without such evidence, there is no reasonable basis for a jury to conclude that an alternative and higher setting for deployment, which would prevent deployment across a range of lower impact accidents, is a safer design.

The alternative design features proposed in this case are of a different sort. Plaintiff's experts did not recommend alternatives that eliminated protective measures.

Plaintiff's expert demonstrated weaknesses in structural components of Rider's 1986 BMW 325i and a seatbelt that permitted the intrusion of the utility pole and the movement of Rider's upper torso from his seat to the pole. After demonstrating the failures that led to Rider's fatal injuries, they proposed alternative designs, utilizing technology in existence at the time Rider's car was sold, that would have avoided the fatal contact between Rider's head and the utility pole by minimizing the pole's intrusion and keeping Rider in his seat. Bloch's "exemplar" vehicle demonstrating the alternative designs, the experts' descriptions of the materials that would be used, studies and tests performed and reported by other manufacturers employing similar designs for structure, the use of similar structural components and seatbelt technology in cars marketed at the same time as Rider's, and BMW's subsequent use of similar measures in a car its engineer described as safer in all types of accidents was adequate to permit submission of plaintiff's claim of design defect to the jurors and preclude entry of judgment notwithstanding the verdict. It is true that BMW's experts disputed the efficacy and safety of the proposals, but that evidence simply provided additional factual questions for the jury to resolve in determining whether the alternative designs plaintiff proposed were safer, feasible and practical measures and whether BMW's failure to include the alternatives was a substantial factor in producing Rider's fatal injuries.*fn6


N.J.R.E. 403 permits exclusion of evidence when the "probative value is substantially outweighed by the risk of . . . undue prejudice . . . [and] needless presentation of cumulative evidence." BMW claims error in several of the trial court's rulings pursuant to that rule.

A reviewing court will not disturb a trial court's balance of the relevant factors under N.J.R.E. 403 absent a palpable abuse of discretion involving a misapplication of the law or mistaken findings that must have resulted in a manifest denial of justice. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999). The record discloses no abuse of discretion. For that reason, we conclude that the arguments lack sufficient merit to warrant more than the brief discussion on each issue that follows.*fn7 R. 2:11-3(e)(1)(E).

1. BMW contends that the trial court erred by admitting the videotapes of Bloch's examination and contemporaneous description of Rider's 1986 BMW 325i and Bloch's "exemplar" 1986 BMW 325i.

Copies of the videotapes had been provided to BMW before the defense deposed Bloch, and BMW questioned him about the videotape of his "exemplar" vehicle during his deposition. BMW did not request any redactions. The videotapes were played for the jury while Bloch was on the witness stand at trial. The videotapes did not depict simulated accidents or experiments of any sort. The tapes showed and recorded Bloch describing the images the video camera was recording. During the videotape of Bloch's "exemplar" BMW 325i, the car was cut with a chain-like power saw operated by workmen who appeared to have some difficulty cutting through the rocker section. The sawing was done to expose the car's components to view. That videotape also showed Bloch placing foam board mock-ups of the components he suggested to strengthen the car, which he also described during his in-court testimony.

Preliminarily, BMW objects to the tapes on the ground that Bloch's statements are inadmissible hearsay. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Because Bloch was on the witness stand, under oath and endorsing his previously recorded statements while the videotapes were shown to the jury, any violation of the hearsay rule was technical and not prejudicial. The defense had an uninhibited opportunity to cross-examine the declarant. The defense also had ample opportunity prior to trial to identify and request redaction of any irrelevant or otherwise objectionable statements.

BMW also contends that the probative value of the video of the "exemplar" vehicle was outweighed by the risk of presentation of cumulative and prejudicial evidence. The trial court did not abuse its broad discretion in holding otherwise. N.J.R.E. 403. After viewing the videotapes, the trial court found that the evidence was not cumulative because it gave the jurors a unique opportunity to correlate the testimony and physical evidence, which could not be provided by testimony in court and a separate viewing of the cars in the parking lot of the courthouse. Noting the difficulty encountered in sawing the car, the court found that the sawing did not unfairly prejudice BMW because it did not show or suggest that the "exemplar" vehicle was rusted or easily sawed apart.

2. BMW claims error in the trial court's admission of evidence concerning efforts BMW made to strengthen and test different model BMWs in 1980 and 1982 and measures taken to strengthen the BMW 325i models produced in 1992. BMW contends that the evidence was irrelevant and, if not irrelevant, capable of confusing and misleading the jury. N.J.R.E. 403.

Evidence of BMW's 1980 and 1982 efforts to strengthen models in its five and seven series tended to show BMW's awareness of the problem of side impacts and its ability to address the problem with reasonable alternative designs that did not make its cars less safe. That evidence was relevant.

N.J.R.E. 401. Evidence that BMW modified the 325i series two years before this accident to strengthen its structure was also relevant. It tended to refute BMW's claim that a BMW 325i with a stronger structure would be less safe. We see no potential for confusion in admission of this relevant evidence. Plaintiff's experts did not contend or suggest that the 1986 BMW 325i would perform in a manner identical to other models. The point was to show the feasibility of measures to strengthen a car against side impact and BMW's awareness of and ability to address the risks of penetration on side impact.

BMW relies on this court's decision in Crispin, supra, 248 N.J. Super. at 554, to show that the evidence ought to have been excluded. In that case, the plaintiff was severely injured as a consequence of second-collision injuries he sustained when the car's seat collapsed in an accident. Id. at 544. This court held that the trial court did not abuse its discretion in excluding videos of crash tests on other types of vehicles and videos of crash tests on the same type of vehicles under different accident scenarios offered to show that all seats fail. Id. at 556-57. In that case, the trial court concluded that the differences and variables precluded correlation of the tests and the accident at issue. Crispin has limited relevance here beyond its illustration of the deference afforded to a trial court's balancing of the factors relevant to exclusion of evidence pursuant to N.J.R.E. 403.

3. Acknowledging that the defense was permitted to introduce testimony, photographs and computer generated images depicting a crash BMW filmed to demonstrate the force of the impact in Rider's accident, BMW contends that the trial court erred in excluding the film of the crash test on the ground that its probative value was substantially outweighed by a substantial risk of undue prejudice. N.J.R.E. 403.

The impact depicted on the film occurred at a speed higher than the highest speed of Rider's car and at a different angle. The differences diminished the limited probative value of the crash test, which BMW contended was to demonstrate the violence and severity of Rider's accident. The probative value was limited because it was unmistakably clear that Rider's car wrapped around the pole and sustained extensive damage. The central issue in the case was not the violence of the crash or the damage that was done but whether it could have been prevented or minimized by including the alternative designs plaintiff's experts proposed. To the extent that plaintiff suggested that the accident would not have been serious but for the defect, BMW was permitted to meet that claim with other evidence derived from its crash test. Accordingly, we cannot conclude that court abused its discretion by admitting the testimony and photographs and excluding the video on the ground that its probative value was substantially outweighed by the substantial potential for prejudice. N.J.R.E. 403.


BMW objects to the manner in which the judge responded to comments made to him by two jurors outside the courtroom.*fn8

As previously noted, the jurors were permitted to view Bloch's "exemplar" vehicle, Rider's car and BMW's crash-test vehicle, which were all transported to the courthouse parking lot. After viewing the car, the jurors left for the day. A juror approached the judge in the parking lot and asked if the court could arrange to tip the cars so that the jurors could see their undersides. A second juror said he noticed what appeared to be "braces" on the BMW test car that were not on the other cars. He asked why the braces were there.

The following morning, the judge reported both incidents to the attorneys on the record. Subsequently, the judge told the jurors about the questions. They were asked to indicate whether they felt that they needed to see the underside of the cars in order to decide the case fairly. Seven of the ten jurors responded in the affirmative by raising their hands. When defense counsel learned why there were braces on the BMW crash-test car, the judge told the jurors that the braces were brackets that had been placed on the car to move it during the crash test.

BMW contends that the course of action selected by the trial court to address "juror misconduct" tainted the trial by disclosing the jurors' thoughts to the attorneys and the other jurors. BMW argues that the result was "tantamount to the jury engaging in premature deliberations." We fail to see how the question about the "braces," the revelation of the request to view the underside of the cars, or the subsequent vote disclosed the thoughts of any juror. These were simple questions in the nature of requests for clarification of evidence, and they were no more likely to expose thought process or a juror's view of the evidence than questions our court rules recognize as permissible. See R. 1:8-8(c). The court did not err.


BMW contends that the trial court's instructions on liability and damages include prejudicial error.*fn9

We reject BMW's challenge to the jury instruction on damages substantially for the reasons stated by Judge Benjamin R. Cohen in his comprehensive and thoughtful decision addressing the claim on BMW's motion for a new trial.*fn10 Judge Cohen's oral decision was delivered on June 27, 2006. Eleven pages of the 195 page transcript of the decision address BMW's objection to the jury instruction on damages. There is no reason to elaborate upon the analysis provided by Judge Cohen.

BMW's objections to the jury instruction on liability lack sufficient merit to warrant more than a brief discussion. BMW notes that the trial judge supplemented the model jury instruction. The supplemental instructions explain well-settled legal principles implicated by the evidence in this case and not included in the model charge. Thus, the trial court did exactly what a trial court is expected to do. See State v. Green, 318 N.J. Super. 361, 376 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). The court explained, consistent with a principle enunciated in Green, supra, 310 N.J. Super. at 524, that plaintiff was not required to produce or crash test a prototype incorporating the proposed alternative designs. An instruction on that point of law was appropriate given defense counsel's extensive cross-examination of plaintiff's experts about the specificity of their alternative designs and the absence of blueprints and prototypes. Consistent with Lewis, supra, 155 N.J. at 569, and O'Brien v. Muskin Corp., 94 N.J. 169, 182 (1983), the court advised the jurors that they could consider industry practice in determining whether plaintiff established a reasonable alternative design but could also decide that "customs of the industry were lagging behind technological development." See O'Brien, supra, 94 N.J. at 182 (explaining that the relevance of customs of an industry to a state of the art defense is limited when customs "lag behind technological development"); see also Restatement (Third) of Torts, supra, § 2(b), comment d (discussing the relevance of industry practice to defective and reasonably alternative designs). Finally, the court's reference to "minimum government standards" was an accurate, not a prejudicial, characterization. See Feldman v. Lederle Lab., 132 N.J. 339, 348 (1993) (discussing the point of law upon which the trial court was instructing the jurors in this case).


This section of the opinion addresses error raised by plaintiff and BMW relevant to the trial court's post-judgment rulings on prejudgment interest pursuant to Rule 4:42-11(b), prejudgment interest, fees and litigation pursuant to Rule 4:58-2, taxed costs, pursuant to Rule 4:42-8, and application of the collateral source statute, N.J.S.A. 2A:15-97.

The historical and procedural facts relevant to these issues are as follows. On January 3, 1994, the date of his fatal accident, Rider was forty-one years of age, plaintiff was thirty-nine and the Riders' five children were 12, 10, 8, 5 and 2. Rider, an oral surgeon and a partner in a dental practice, was earning approximately $167,000 per year at the time of his death.

Plaintiff filed her complaint on December 15, 1995. In February 1998, plaintiff's economist estimated that plaintiff and the children sustained economic loss in the amount of $3,046,501. This estimate clearly indicated that it did not include the value of compensable services lost by plaintiff as a consequence of Rider's death. On May 12, 2002, plaintiff served an offer of judgment in the amount of $3.75 million including costs. BMW did not respond. In October 2004, plaintiff's expert revised his estimate of damages to reflect a total economic loss of $4,285,105. Depositions of experts were completed on April 22, 2005. At trial the expert testified that plaintiff sustained economic loss in a total amount of $4,092,144: $3,423,500 lost income, $1,581,000 during the past 11.4 years and $1,842,500 during subsequent years; and $666,644 for the value of parental services lost, $322,164 in past years and $344,480 during future years. In accordance with the jury instruction and verdict sheet, the jurors fixed damages in a lump-sum amount, $6,930,000.

Post-judgment motions were filed. Plaintiff moved for prejudgment, interest based on the total damage award, in the amount of $4,240,211.61, a lodestar counsel fee of $942,018.75, an enhancement of the counsel fee to provide a total of $2,093,965.62, costs of $147,651.67, and expenses of $81,756.58. BMW moved for an offset of social security survivor benefits paid to plaintiff and the children. The social security benefits for Rider's surviving spouse were $99,785 ($75,196 paid as of November 2006 plus $24,589 expected) and $335,967 for the children ($283,485 paid as of November 2006 plus $52,482 expected). Between 1969 and 1994, Rider paid social security taxes in the amount of $23,007.94.

The court denied prejudgment interest available for past economic loss pursuant to Rule 4:42-11(b). Pursuant to Rule 4:58-2, which is the offer of judgment rule, the court awarded prejudgment interest in the amount of $843,237.18, calculated from the discovery end date until the date of final judgment, pre-verdict counsel fees in the amount of $930,768.75, post-verdict counsel fees in the amount of $240,680.86, and taxed costs in the amount of $59,170.65. The court also reduced the damage award by $99,785, the amount of benefits due plaintiff as Rider's surviving spouse. N.J.S.A. 2A:15-97.

A. Plaintiff claims the trial court erred in denying prejudgment interest pursuant to Rule 4:11-2(b) and denying her motion for reconsideration of that determination. Prejudgment interest was denied on the ground that plaintiff, who sought to increase the judgment by award of prejudgment interest but did not request segregation of damages at the time of trial, waived the interest.

Rule 4:42-11(b) requires an award of interest in tort actions, including products liability actions. It precludes prejudgment interest "on any recovery for future economic losses." R. 4:42-11(b). The rule assumes a damage award that segregates past and future economic loss. See Pressler, supra, comment 2.2.1 on R. 4:42-11 (noting that "the jury, by special interrogatory, must return, discrete verdicts for past economic damages, future economic damages, and a single lump sum for non- economic damages"). The jury in this case was not asked to segregate damages.

In deciding plaintiff's motions for prejudgment interest pursuant to Rule 4:42-11, the trial court concluded that because plaintiff did not ask the court to direct the jurors to segregate damages, she was not entitled to prejudgment interest.

On appeal, plaintiff asserts that she asked the trial court to direct the jury to segregate past and future economic damages, but the transcript does not support the claim.*fn11

Plaintiff's relevant request and objection to the jury instruction and verdict sheet concerned lump-sum reporting of damages for "financial losses and loss of counseling" and separate reporting of "financial losses for [Rider's] past and future income and the financial market value of the lost guidance." There was no attempt to alert the court to the question of segregating damages for purposes of, or in a manner relevant to, an award of prejudgment interest pursuant to Rule 4:42-11(b).

Plaintiff also asserts that BMW invited the error by submitting a request to a charge that called for a lump-sum verdict. The doctrine of invited error applies only when a party who claims error urged the position below. Brett v. Great Am. Rec., 144 N.J. 479, 503 (1996). That doctrine has no application here; BMW's position has not changed.

While there is no question that it is appropriate for the trial court to instruct the jury to segregate damages for present and future economic loss, we cannot conclude that the court commits plain error by failing to do so in the absence of a specific request. See R. 1:7-2. A court's obligation is to provide instructions that adequately explain the essential matters the jury must resolve. See Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 210 (1984). A special finding segregating past and future economic loss is not essential to the damage award the jury must make. The special finding is relevant to prejudgment interest only, which is a collateral issue that is resolved by the court. Thus, the omission could not have led the jury to reach a result it would not have reached if the charge were given, and any error must be viewed as incapable of leading to an unjust verdict and harmless in that respect. R. 2:10-2.

Plaintiff suggests that she unfairly bears the brunt of a jury instruction and verdict sheet that led to the lump-sum verdict. Given that proof of damages is an element of a plaintiff's case and that the plaintiff is the party who stands to benefit by segregating portions of a damage award that clearly will include a substantial component as compensation for future loss not subject to interest, we do not view that result as working any unfair prejudice. Other courts have taken that view of the problem. See, e.g., Mandile v. Clark Material Handling Co., 303 F. Supp. 2d 531, 535-36 (D.N.J. 2004) (affirming denial of prejudgment interest on a lump-sum damages award); Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 724-25 (Ind. Ct. App. 2007) (finding the trial court abused its discretion in awarding prejudgment interest on a lump-sum damages award); but see, e.g., Markley v. Oak Health Care Investors of Coldwater, Inc., 660 N.W.2d 344, 350-351 (Mich. Ct. App. 2003) (affirming grant of prejudgment interest on a lump-sum damages award on defendant's appeal).

With respect to fairness in this case, we are constrained to note that plaintiff did not seek clarification that would permit segregation of the damage award into past and future loss at any point prior to the denial of her motion for prejudgment interest on the entire damage award. Even then, she did not ask the court to calculate interest on her expert's "conservative" estimate of past loss alone.

In considering impact of the loss of prejudgment interest due to the lump-sum verdict in this case, we cannot overlook the fact that the court awarded prejudgment interest on the total lump-sum award pursuant to Rule 4:58-2(a), which was calculated at a rate higher than the prejudgment interest rate pursuant to Rule 4:42-11(b) but for a shorter period of time. Prejudgment interest authorized by Rule 4:58-2(a) is available "only to the extent that [it] exceeds the interest prescribed by R. 4:42-11(b)." Thus, any loss of interest pursuant to Rule 4:42-11(b) was diminished by the amount of prejudgment interest awarded pursuant to Rule 4:58-2, which was $843,237.18.

On this record there is no reason to consider whether a trial court may or should segregate a lump-sum award into damages for present and future losses based on evidence presented at trial. Although plaintiff presented evidence that would have permitted the jury to segregate past and future economic loss, the verdict exceeds the total amount suggested by more than two million dollars. For that reason, any effort to segregate the jury's lump-sum award would be an exercise in speculation leading to an arbitrary result.

For all of the foregoing reasons, we conclude that there is no harmful error warranting a new trial to segregate damages or affording a basis for some other form of relief. To the extent that plaintiff argues that the trial court erred in denying her motion for a new trial to allocate the damages awarded, that motion was not filed within twenty days of the verdict as required by Rule 4:49-1. The twenty-day period may not be enlarged, Rule 1:3-4(c), and for that reason alone, it was proper to deny the motion. In this case there is an additional problem; if a second jury were asked to segregate the lump-sum damage award, that jury would need to speculate about the basis for the lump-sum award.

B. Plaintiff and defendant both claim error based on the trial court's application of N.J.S.A. 2A:15-97. Plaintiff contends that the court erred by deducting social security survivor benefits payable to her from the damage award. BMW contends that the court erred by refusing an additional reduction of the damage award based on survivor benefits payable on behalf of the Riders' children. We conclude that the position asserted by BMW is consistent with N.J.S.A. 2A:15-97.

In pertinent part, the collateral source statute provides:

In any civil action brought for personal injury or death . . . if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source . . . the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family on behalf of the plaintiff for the policy period during which the benefits are payable. . . .

The purpose of the statute is "to prohibit duplicate recovery by plaintiffs. Thus, if a plaintiff received disability benefits, health insurance benefits, unemployment compensation, or other benefits after having established an injury, the benefits would be required to be deducted from the award." Kiss v. Jacob, 138 N.J. 278, 282 (1994) (quoting Statement to Senate Bill No. 2708 (Nov. 23, 1987)). Benefits the Legislature intended to cover by the statute include "those 'from life-or health-insurance policies, from employment contracts, from statutes such as workers' compensation acts and the Federal Employers' Liability Act, from gratuities, from social legislation such as social security and welfare, and from pensions under special retirement acts.'" Woodger v. Christ Hosp., 364 N.J. Super. 144, 151 (App. Div. 2003) (quoting Kiss, supra, 138 N.J. at 282). Social security disability payments are included among those that must be deducted to the extent that the benefits are not contingent, speculative or subject to change or modification. Ibid.; Parker v. Esposito, 291 N.J. Super. 560, 565-66 (App. Div.), certif. denied, 146 N.J. 566 (1996).

Plaintiff contends that the social security survivor benefits at issue here, which are payable to plaintiff as the surviving spouse of Rider and the mother of his minor children and payable to his surviving children while they are minors, see 42 U.S.C.A. § 402(d), (g), are more like life insurance proceeds, which are exempt from deduction, than they are like social security disability benefits, which this court has held are not exempt from deduction. See, e.g., Woodger, supra, 364 N.J. Super. at 153-54; Parker, supra, 291 N.J. Super. at 566-68.

The deduction at issue is governed by statute, and the statute does not support plaintiff's claim. Our courts apply the terms of a statute as written when there is no ambiguity and the purpose of the statute will not be defeated by a literal construction. DiProspero v. Penn, 183 N.J. 477, 492 (2005).

N.J.S.A. 2A:15-97 does not exempt death benefits that are "similar to" life insurance. In language of unmistakable clarity, N.J.S.A. 2A:12-97 exempts "proceeds from a life insurance policy." This exemption does not extend to social security survivor benefits, because those benefits simply are not "proceeds from a life insurance policy." See Woodger, supra, 364 N.J. Super. at 152 (outlining the differences between social security benefits and insurance policies); see also Bryant v. N.Y. City Health & Hosps. Corp., 716 N.E.2d 1084, 1092 (N.Y. 1999) (rejecting the claim that social security benefits are in the nature of life insurance).

The only questions presented under the statute are whether the survivor benefits are for the "same injuries" and "duplicate[] any benefit contained in the [damage] award."

N.J.S.A. 2A:15-97. The answer to both questions is yes.

Social security survivor benefits and the damage award are both available on the basis of Rider's death; the injury is the same. Damages awarded in a wrongful death action serve to compensate for the loss of "monetary contributions which the decedent reasonably might have been expected to make to the survivors." Curtis v. Finneran, 83 N.J. 563, 570 (1980). The social security survivor benefits received by plaintiff and the children are "intended to provide persons dependent on the wage earner with protection against the economic hardship occasioned by loss of the wage earner's support." Califano v. Boles, 443 U.S. 282, 288, 99 S.Ct. 2767, 2772, 61 L.Ed. 2d 541, 548 (1979) (benefits payable to surviving parent); see Bryant, supra, 716 N.E.2d at 1092 (describing the purpose of survivor benefits payable to a child as replacement of the deceased parent's earnings). Thus, the social security survivor benefits at issue duplicate a portion of the damages awarded in this case, lost income.

Plaintiff's reliance on Schuff v. A.T. Klemens & Son, 16 P.3d 1002, 1006 (Mont. 2000) is misplaced. The Court's decision in Schuff is based on its construction of a Montana statute that expressly required reduction of social security disability benefits but did not reference social security survivor benefits. Id. at 1025.

Under N.J.S.A. 2A:15-97, we see no basis for distinguishing social security benefits payable to the family of a deceased worker from benefits payable to the family members of a disabled worker. Both duplicate a portion of the recovery for lost wages included in a damage award. Accordingly, consistent with this court's decisions holding that social security benefits that duplicate a damage award in an action for personal injury must be deducted from a damage award pursuant to N.J.S.A. 2A:15-97, we hold that a damage award in a wrongful death case that includes lost wages also must be reduced by social security survivor benefits payable pursuant to 42 U.S.C.A. § 402(d), (g).

We reject plaintiff's claim that the court erred by deducting survivor benefits payable in the future. She contends that the benefits are too speculative because Congress has reserved the right to modify or repeal the social security law. In Parker, we held that deductions for collateral benefits should not be made unless the benefits can be determined with a "reasonable degree of certainty." 291 N.J. Super. at 567. Recognizing, as other courts have, that future social security benefits are dependent on the stability of this government program, we conclude that continuation of the program during the period in which the benefits at issue in this case will be paid is "reasonably certain." See Frey v. Chester E. Smith & Sons, Inc., 751 F. Supp. 1052, 1056 (N.D.N.Y. 1990).

Because the trial court reduced the award in the amount of benefits paid and payable to Rider's surviving spouse but not those paid and payable to his surviving children, we reverse and remand for deduction of the benefits payable to the children.

On remand, the total social security benefits paid to the family must be reduced by a credit for contributions calculated in accordance with this court's decision in Woogder. 364 N.J. Super. at 154 (requiring a credit in favor of plaintiff on the offset in an amount equal to the "maximum employee contribution rate for each year" that the benefits can reasonably be expected to be paid).

C. Both parties claim error based on the trial court's application of Rule 4:58-2.

1. BMW claims that plaintiff's offer of judgment was not made in good faith. Given the expert's initial report on financial loss, which did not include an estimate of the financial value of services Rider would have rendered to her, the expert's testimony at trial and the amount of the damage award fixed by the jury, we find BMW's argument lacking in sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(1)(E). Our review of the transcript of a pre-trial conference conducted on May 10, 2002, upon which BMW relies to demonstrate plaintiff's offer of judgment was made in bad faith, convinces us that the colloquy between counsel and the court provides no support for such a finding.

2. Plaintiff contends that the court erred in calculating prejudgment interest pursuant to Rule 4:58-2 from the discovery end date to the date of final judgment. The Rule provides for calculation of "prejudgment" interest "from the date of the offer or the date of completion of discovery, whichever is later." R. 4:58-2(a). The start and end dates the trial court selected are consistent with the Rule and judicial decisions construing it. See Negron v. Melchiorre, Inc., 389 N.J. Super. 70, 88-96 (App. Div. 2006) (noting that "prejudgment" interest runs until a final judgment is entered), certif. denied, 190 N.J. 256 (2007); R. 4:42-11(a) (providing for post-judgment interest); cf. Wiese v. Dedhia, 188 N.J. 587, 592-94 (2006) (relying upon the terms of Rule 4:58-2(a) applicable only to litigation expenses and fees and concluding that fees and costs authorized by the Rule are available on appeal).

3. BMW contends that the trial court's award for counsel fees and litigation costs pursuant to Rule 4:58-2(a) and (c) is unreasonable.

When the offer of judgment rule applies, the trial court must award the costs of suit and "(1) all reasonable litigation expenses incurred following non-acceptance; . . . and (3) a reasonable attorney's fee, which shall belong to the client, for such subsequent services as are compelled by the non-acceptance." R. 4:58-2(a). An application for an attorney's fee must be made in accordance with Rule 4:42-9(b), which requires an affidavit that addresses the "factors enumerated by RPC 1.5(a)" and a description of services rendered by paraprofessionals and the services they have rendered. R. 4:58-2(a). The award is mandatory. Wiese, supra, 188 N.J. at 592. The responsibility for fixing the amount of the "reasonable" fee and reasonable litigation expense is a matter properly left to the discretion of the trial court. See Williams v. Williams, 59 N.J. 229, 233 (1971).

BMW asks this court either to conclude that no fees and litigation expenses should be awarded because of deficiencies in plaintiff's fee application or to remand so as to permit the trial court to perform an appropriate inquiry. Noting that the affidavits submitted by plaintiff's attorney do not include all of the information required by Rule 4:42-9(b) and RPC 1.5(a), BMW contends that plaintiff did not establish her entitlement to an award. BMW also argues that the trial court failed to address its objection based on an ambiguity in the certification describing the hourly rate for one attorney, its generalized claim about likely duplication of efforts based on the number of paraprofessionals and attorneys who worked on the case, fees for an expert who did not testify, and fees for services that likely included efforts to prosecute plaintiff's claim against a co-defendant.

While attorneys are expected to submit affidavits in support of an application for fees that conform with the rules in all respects, a failure to strictly comply is deemed harmless when the court's decision is adequately supported by the record. Elizabeth Bd. of Educ. v. New Jersey Transit Corp., 342 N.J. Super. 262, 273 (App. Div. 2001); Dotsko v. Dotsko, 244 N.J. Super. 668, 680 (App. Div. 1990). We are satisfied, as was the trial court, that the affidavits that were submitted provided sufficient information and detail to allow the trial court to conclude, as it did, that the fees and litigation expenses stated were reasonable and incurred as a consequence of plaintiff's rejection of the offer of judgment. Based on our review of the trial court's written decision dated October 19, 2006, we are convinced that the court addressed the ambiguity concerning the hourly rate. Also based on our review of the decision in light of the generalized arguments presented on this appeal, we cannot conclude that the court abused its discretion by awarding fees for preparation of trial exhibits and jury selection even though one additional defendant did not settle its claim until the trial commenced.

D. BMW claims that the court erred in fixing costs pursuant to Rule 4:42-8(a) and N.J.S.A. 22A:2-8. The allowances at issue are the expense of storing Rider's car; fees for trial transcripts; fees for translation of documents BMW provided in discovery; and fees for service of subpoenas that are in excess of fees charged by the sheriff for the same service.

The costs recoverable pursuant to Rule 4:42-8 are "those authorized in N.J.S.A. 22A:2-8," and imposition of those costs is discretionary. Buccinna v. Micheletti, 311 N.J. Super. 557, 561 (App. Div. 1998). The statute designates specific services for which a litigant may recover costs and authorizes the award of other "reasonable and necessary expenses as are taxable according to the course and practice of the court or by express provision of law, or rule of court." N.J.S.A. 22A:2-8. We have held that the statute's general provision does not authorize recovery for all expenditures "arguably necessary to properly prepare the case for trial." Buccinna, supra, 311 N.J. Super. at 562. Rather, consistent with this State's policy that litigants are responsible for their own litigation expenses, our courts apply Rule 4:42-8 and N.J.S.A. 22A:2-8 so as to exclude expenses incident to trial preparation and trial testimony. Id. at 564-66.

The expenses at issue here are not recoverable pursuant to Rule 4:48-2 and N.J.S.A. 22A:2-8 as construed by our courts. Although BMW's objection to excess charges for service of process was addressed by the trial court's elimination of the excess, the award of taxed costs includes fees for storage of an exhibit, translation of documents provided in discovery and transcripts. These expenses must be deemed to be in the nature of expenditures made in preparation for trial and the presentation of testimony and evidence. Accordingly, we remand for elimination of those expenses from the award of taxed costs.

The matter is remanded for deduction of social security benefits from the damage award and modification of the award for taxed costs in accordance with this opinion, and the judgment on liability, damages, expenses and fees is otherwise affirmed.

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