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DaSilva v. Ford Motor Co.

January 22, 2010

GETZABETH DA SILVA, PLAINTIFF-APPELLANT,
v.
FORD MOTOR COMPANY, DEFENDANT-RESPONDENT, AND SOFIA GUBERMAN AND ALEXANDER GUBERMAN, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2666-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2009

Before Judges Wefing, Messano and LeWinn.

On May 1, 2000, plaintiff, Getzabeth DaSilva, was driving her 1999 Ford Explorer when she was involved in a four-vehicle accident. Plaintiff was stopped at a traffic light behind two other vehicles and was struck from behind by a vehicle driven by defendant Sofia Guberman. This caused plaintiff's Explorer to collide with the vehicle in front of it, which, in turn, rear-ended the first vehicle in line. As a result of these collisions, plaintiff sustained injuries rendering her permanently paraplegic.

On March 4, 2002, plaintiff filed a complaint against defendant, Ford Motor Company (Ford), Sofia Guberman and her husband Alexander Guberman. The matter settled between plaintiff and the Gubermans and proceeded to trial against Ford only.

Plaintiff's theory of liability was that the design of the seat and seatbelt apparatus in the Explorer was defective. Ford's defense theory was that the design was not defective and plaintiff must not have been wearing her seatbelt properly. Following a nine-day jury trial, the jury rendered a verdict for defendant. An order of no cause for action was entered on September 24, 2008, and subsequently filed on October 21, 2008.

Plaintiff appeals, challenging three evidentiary rulings by the trial court. For the reasons that follow, we affirm.

The evidentiary rulings relate to three separate documents containing statements to the effect that plaintiff was wearing her seatbelt at the time of the accident. One such statement was contained in the report of a police officer who responded to the scene of the accident; the second was in an accident report generated by the Mobile Intensive Care Unit (MICU) which responded to the scene. The third was contained in the emergency room records of Somerset Medical Center where plaintiff was taken by ambulance immediately following the accident.

Ford moved pre-trial to exclude the statements in the police and MICU reports. Thereafter, Ford moved during the trial to exclude the portion of the emergency room records containing the reference to plaintiff wearing her seatbelt. The trial judge granted all three motions, over plaintiff's objection.

The police accident report contained a notation that both a lap belt and shoulder harness were available in plaintiff's vehicle and that she had used both devices. The MICU report noted "Pt seatbelt." The trial judge determined that both notations were hearsay and ruled that plaintiff's counsel should not be permitted to make any reference to the hearsay in the opening statements, or at any time during the trial. And I will order that the reports not be used in cross-examination of defendant's experts. I . . . believe they are hearsay. They don't fall within the exception to the business records exception. . . . [T]here is no recollection on the part of the . . . rescue workers where that information came from, but we really don't have any information from the . . . police officer as to the recording of that information, whether that was an observation or simply something reported to him.

[T]o allow it to then be used to cross-examine the expert witnesses, I do find, . . . that the probative value would be outweighed by the risk of misleading the jury and confusing the issues because they would then want to know, or have to know, or be confused as to where that information came from; answers that I don't think would be provided.

And so under Rule 403 . . . I find and I believe that that information should be excluded and not be allowed to be used with regard to the cross-examination of the defendant's experts.

At trial, plaintiff testified that she "always" wore her seatbelt and denied ever operating a motor vehicle without using her seatbelt. Plaintiff asserted that she was wearing her seatbelt properly at the time of the accident and, contrary to Ford's claim, was wearing the shoulder harness "in front of [her]" and not "behind [her] back."

Plaintiff further testified that the impact from Guberman's vehicle caused her body to go "forward[,]" and she "hit" her forehead on the steering wheel and "then went back." She "felt like [her] body went ice[,]" and was not able to move around at all. Plaintiff testified that, while she recalled police and emergency personnel responding to the scene, she had no recollection of making any statements to any of them.

Plaintiff stated that she was taken by ambulance to the emergency room at Somerset Medical Center. There, staff asked her "about what kind of accident it was[.]" When asked by her attorney if emergency room staff inquired as to whether she was wearing a seatbelt at the time, defense counsel objected; following a sidebar, the trial judge sustained the objection.

Plaintiff presented the testimony of Donald Phillips, an expert in "the field of automotive engineering and alternative design, seat belt design, accident reconstruction, and occupant kinematics." Phillips defined "occupant kinematics" as "the study of the occupants['] motion in a vehicle during a crash, understanding why they move . . . what are going to be the target areas that this occupant would hit, given a certain crash at a certain velocity and certain angles."

Based upon his examination of plaintiff's vehicle and his review of the nature of her injuries, Phillips opined that "she was belted at the time of the accident." In support of that opinion, Phillips stated that he "relied upon reports from other people." Defense counsel immediately objected, as the trial judge had previously ruled that the police and MICU reports' references to plaintiff wearing her seat belt were inadmissible. The trial judge reserved on the objection at the time. Shortly thereafter, following additional argument on the issue, the judge sustained defendant's objection. In ruling that Phillips would not be able to testify about the police or MICU reports, the judge stated:

I do find that [N.J.R.E.] 703 does not require the admission of that information, does not provide a basis for the introduction for that information, and under [N.J.R.E.] 403 I find and I believe that the probative value of that information is substantially outweighed by the risk of undue prejudice to the defendant[,] confusion of issues and the misleading of the jury as to whether or not that is, indeed, a fact.

Again, the plaintiff has testified that she was properly wearing her seat belt. I think the plaintiff's expert just testified from his . . . analysis of the seat belt assembly that he believes that she was properly wearing her seat belt. So there's [an]other basis for the plaintiff . . . to be able to prove this issue without relying upon inadmissible hearsay.

So I'm going to sustain the objection and direct that . . . you not inquire any further as to the contents of these reports. And I'll order that Mr. Phillips not make any mention of the . . . MICU report or the police report or the proposition that those reports stated that she was properly wearing her seat belt or that she was wearing her seat belt.

Phillips then testified that based upon his observation of plaintiff's vehicle, "the impact [of the collision] was offset to the right side of the rear of the vehicle and it was not a full overlap or straight on rear hit." He opined that upon impact, plaintiff comes off the center, the seat twists, it loads up, she slips and comes out of position, arches backwards so her back flexes or bends and . . . as she comes forward during the second impact, the seatbelt is no longer up on her shoulder, but it comes down because she's off the center like this.

And when she comes forward, she's leading with the left side of her head and her forehead hits the top of the steering wheel and cuts her above the left eye.

[B]ecause of the asymmetric bending of the seat that allowed [plaintiff] to ramp up and over the seat back that the inboard bar of the seat frame came in line with her T-7 vertebrae, which caused it to be loaded from behind, pushed, starting -- at least in my opinion, could start to fracture, and then there was a forward rebound, forward with the shoulder belt now being out of position, but she still had some benefit of the belt, that's why only her forehead above her eye hit the steering wheel and not anything else.

Phillips further opined that an alternative seat/seatbelt construction known as an "All Belts to the Seat" (ABTS) design was superior to the apparatus in plaintiff's 1999 Ford Explorer; had an ABTS seat been installed, plaintiff's injuries would not have been so severe. ...


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