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McAlonan v. Tracy

March 16, 2010


On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-487-05.

Per curiam.


Argued December 9, 2009

Before Judges Axelrad, Fisher and Sapp-Peterson.

On October 24, 2004, plaintiff James McAlonan was the driver of a 2003 Toyota Echo manufactured and sold by defendants Toyota Motor Corporation and Toyota Motor Sales, U.S.A., Inc. (collectively "Toyota"), that collided with a vehicle driven by defendant Mildred F. Tracy. Tragically, plaintiff suffered permanent spinal cord injuries, which rendered him a ventilator-dependent quadriplegic.

Plaintiff filed his complaint in this action, alleging that Tracy negligently operated her vehicle and that his Toyota's airbag system was not crashworthy due to its defective design. He claimed there was a safer alternative design and that Toyota's failure to use a more powerful single-stage airbag or a dual-stage airbag system enhanced his injuries when the impact occurred.

The matter was tried to a jury over the course of eighteen days. At the close of evidence, the trial judge granted plaintiff judgment against Tracy on the negligence and proximate cause issues, but allowed the claims against Toyota to go to a verdict. The jury found in favor of Toyota. It also awarded damages in the amount of $30,514,352.25, but found plaintiff was thirty percent negligent because he was not wearing a seatbelt at the time of the collision; as a result, the judge molded the verdict and entered judgment in favor of plaintiff and against Tracy in the amount of $21,360,046.65.

On appeal, plaintiff asserts that the judge erred in ruling on various in limine motions, evidentiary issues, and in instructing the jury. We find no merit in any of plaintiff's arguments and affirm.


The jury heard evidence that on the day in question, plaintiff was driving eastbound on Ellis Mill Road approaching the intersection with Clems Run Road in Harrison Township. He was not wearing a seatbelt. His thirteen-year-old son occupied the front passenger seat.*fn1 The speed limit on Ellis Mill Road through the intersection was forty miles per hour, and the corresponding speed limit on Clems Run Road was forty-five mph. Tracy was driving a 1991 Ford Explorer southbound on Clems Run Road. At trial, Tracy admitted she did not see the stop sign at the intersection. As Tracy entered the intersection, she saw plaintiff's Echo approaching from the right and accelerated in an unsuccessful attempt to avoid a collision.

The front left of plaintiff's Echo struck the right passenger side of the Explorer. The initial impact caused the Echo to rotate approximately 270 degrees clockwise, and pushed its front running board downward. As it spun, the Echo slapped its rear corner into the side of the Explorer and eventually came to rest facing northbound on Clems Run Road. The Echo's front airbags deployed.

Plaintiff's reconstruction expert, Robert Caldwell, determined that the vehicles were traveling between thirty-five and forty mph at impact, that the Echo's principal direction of force (PDOF) was twenty to thirty degrees off a direct frontal impact, and that the crash lasted 150 milliseconds, or.15 seconds. He also determined the overall Delta V or change in velocity of plaintiff's vehicle was thirty-three to thirty-six mph.*fn2 Thomas Perl, Toyota's reconstruction expert, estimated the Echo's speed at impact as forty-five mph and its initial PDOF as fifteen to thirty degrees; he calculated its Delta V as thirty-three mph. Based on the Echo's Delta V, experts for both parties agreed this was a high severity crash, which Perl compared to the speed achieved when dropping a vehicle to the ground from a height of thirty-six feet. It also was a relatively unusual occurrence because eighty percent of collisions involved a speed change at impact of between fourteen and twenty mph. According to Toyota's biomechanical engineering expert, Dennis Schneider, Ph.D., the average frontal crash has a Delta V of fifteen to sixteen mph.

Experts for both parties also agreed that the angular force of impact caused plaintiff to move forward and to the left. Plaintiff also moved upward towards high structures in the vehicle, such as the header area and A-pillar, in response to the Echo's downward motion towards the pavement due to the "underride" created by the collision. According to Schneider, the combination of the high Delta V, the Echo's rapid rotation at impact and downward pitch, and the fact that plaintiff was not wearing his seatbelt made "this crash particularly severe and problematic for trying to protect" him.

Plaintiff struck the driver's door with his left side and hit his head on the top of the A-pillar at its juncture with the front windshield and sun visor. While the impact stopped the motion of plaintiff's head, his torso continued to move forward and left, forcing a downward compression of the neck. This torso augmentation "loading" of the cervical spine created the mechanism for the fractures in plaintiff's neck. According to defense experts Perl and Schneider, plaintiff's torso augmentation injury occurred within 150 milliseconds of the initial impact, with Perl testifying that it occurred within the first seventy to eighty milliseconds.

Plaintiff sustained serious and permanent injuries that included a linear fracture through C5, a "burst fracture" of C6, a wedge compression fracture at the C6/C7 level, and bleeding inside the spinal cord from levels C3 to C7. He also suffered a scalp laceration, rib fractures, and an abrasion on his right knee.

At the time of the accident, plaintiff was forty-one years old. The spinal injuries rendered him a ventilator-dependent quadriplegic. He lost all function of his legs and most function of his arms except for areas around the shoulder and elbow joints. Plaintiff also developed pulmonary complications, bone and bladder infections, and the permanent loss of bladder and bowel control. As a result, plaintiff was unable to perform any tasks, and required constant supervision and care. He communicated by forming words with his mouth; the ventilator prevented speech.

Plaintiff entered a nursing home in July 2006 in an unsuccessful attempt to get off the ventilator. In December 2006, he went to live with his then eighty-year-old mother who became his primary caregiver. At the time of trial, he was receiving home nursing care and regular visits from family members.

Plaintiff briefly testified at trial. Although incapable of being heard, plaintiff responded to questions by nodding his head. He did not testify about the accident or his injuries, and there was no cross-examination. A day-in-the-life video was shown to the jury.

We were advised at oral argument that plaintiff passed away during the pendency of this appeal.


Plaintiff's appeal for the most part seeks our review of various evidentiary rulings made by the trial judge either by way of her disposition of in limine motions or in her rulings during trial. Specifically, plaintiff contends that the judge erred: (a) by refusing to exclude evidence regarding Toyota's compliance with federal regulations and industry standards; (b) by refusing to apply the consumer expectations test; (c) by refusing to exclude a defense expert's opinions regarding allegedly contradictory information obtained from the Toyota Echo's event data recorder (EDR); (d) by refusing to exclude evidence of Toyota's compliance with industry practices and customs; (e) by refusing to exclude evidence regarding plaintiff's comparative fault; (f) by refusing to exclude evidence regarding Toyota's conduct; (g) by refusing to exclude generalized statistics; (h) by refusing to exclude Toyota's litigation sled test; (i) by refusing to exclude cumulative testimony; (j) by refusing to exclude Toyota's response to the National Highway Traffic Safety Administration's proposed rulemaking; (k) by preventing plaintiff from showing to the jury a video of a sled test; (l) by preventing plaintiff's expert from presenting testimony and other evidence regarding the airbag system in the Honda Civic; (m) by preventing plaintiff's attorney from arguing in his closing statement about a specific percentage of increased inflation power; and (n) by allowing Toyota to elicit testimony regarding the risks and benefits of the airbag system in plaintiff's vehicle.

A. Toyota's Compliance With Federal Regulations And Industry Standards

Plaintiff argues that the judge erred by denying his motion to exclude evidence of the Echo's compliance with federal or voluntary safety standards, claiming this evidence was not relevant because the federal standards allowed Toyota to test the Echo's airbag system without recreating the actual conditions of his accident. For example, plaintiff argues that the federal standards allowed Toyota to measure the performance of the Echo's airbag system using a sled, i.e., a small portion of a vehicle, in a twenty-five mph full frontal impact with a dummy occupant in the fiftieth percentile.*fn3 Plaintiff also argues that evidence of Toyota's "compliance testing" was not relevant in light of our products liability laws. We reject these arguments on both procedural and substantive grounds.

First, the record reveals that prior to trial, the judge ruled that plaintiff's in limine motion on this point was premature and could not be resolved until the issues had further developed at trial.*fn4 Accordingly, the judge entered an order denying the motion without prejudice. Plaintiff does not argue on appeal that he renewed this motion at trial, thus presenting a basis for our rejection of the argument on procedural grounds.

Second, on its merits, we find no error in the admission of this evidence. All relevant evidence is admissible "[e]xcept as otherwise provided in [the court rules] or by law." N.J.R.E. 402. Relevant evidence has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. As a result, the inquiry focuses on whether there is a logical connection between the proffered evidence and the issues in question. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004); JS Props., L.L.C. v. Brown & Filson, Inc., 389 N.J. Super. 542, 554 (App. Div. 2006). A logical connection exists "when 'the thing sought to be established is more logical with the evidence than without it.'" JS Props., supra, 389 N.J. Super. at 554 (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)). A court, however, may exclude relevant evidence if "its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. A trial court's discretion in excluding evidence pursuant to N.J.R.E. 403 is broad, and its decision will not be overturned on appeal absent a palpable abuse of discretion that results in a manifest denial of justice. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991).

The National Traffic and Motor Vehicle Safety Act of 1966 (the Act), as amended, 49 U.S.C.A. §§ 30101 to 30170, authorized the Secretary of Transportation to prescribe motor vehicle safety standards, and carry out needed safety research and development. 49 U.S.C.A. § 30101. The Act defined "motor vehicle safety" as "the performance of a motor vehicle or motor vehicle equipment in a way that protects the public against unreasonable risk of accidents occurring because of the design, construction, or performance of a motor vehicle, and against unreasonable risk of death or injury in an accident." 49 U.S.C.A. § 30102(a)(8). A "motor vehicle safety standard" was the "minimum standard for motor vehicle or motor vehicle equipment performance." 49 U.S.C.A. § 30102(a)(9). The Act created the National Highway Traffic Safety Administration (NHTSA) to promulgate these standards. 49 U.S.C.A. § 30101.

When prescribing a safety standard, the Act obligates the Secretary to consider relevant available motor vehicle safety information, consult with appropriate authorities, consider whether the proposed standard was reasonable, practicable, and appropriate, and determine whether the standard met the goals of reducing traffic accidents and related deaths and injuries. 49 U.S.C.A. § 30111. The Act further required a manufacturer or distributor to certify its compliance with the applicable safety standard. 49 U.S.C.A. § 30115.

Standard No. 208, 49 C.F.R. § 571.208, sets forth the performance requirements for the protection of vehicle occupants in crashes. Its purpose is to reduce the number of deaths and severity of injuries "by specifying vehicle crashworthiness requirements in terms of forces and accelerations measured on anthropomorphic dummies in test crashes, and by specifying equipment requirements for active and passive restraint systems." 49 C.F.R. § 571.208, S2. Crashworthiness refers to "the ability of a motor vehicle to protect its passengers from enhanced injuries after a collision." Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 51 (App. Div.), certif. denied, 165 N.J. 138 (2000).

Jeffrey Pearson, Toyota's expert in mechanical engineering, explained that Standard No. 208 initially required vehicles to undergo crash tests at thirty mph into a barrier using unbelted dummies representing fiftieth percentile adult males. These tests usually involved a prototype vehicle, and measured certain injury criteria through the placement of accelerometers in the dummy's head, chest, and femur load cells. However, because airbags that met these standards proved too aggressive and powerful, and caused unnecessary deaths, in March 1997, Standard No. 208 was modified, allowing the use of "sled" tests. The purpose of a sled test was "to allow rapid introduction of redesigned airbags" by permitting cost-effective testing to determine how occupants interacted with different airbag technologies.

Standard No. 208 required passenger vehicles manufactured on or after September 1, 1997, to comply with frontal crash protection requirements "by means of an inflatable restraint system at the driver's and right front passenger's position."

49 C.F.R. § 571.208, S4.1.5.3. To certify compliance with the occupant crash protection requirements, Standard No. 208 required frontal barrier crash tests, 49 C.F.R. § 571.208, S5, or alternative unbelted tests for certain vehicles manufactured before September 1, 2006. 49 C.F.R. § 571.208, S13. The alternative tests used vehicles mounted on a sled at a velocity change approximating thirty mph. Ibid.

In considering the impact of these federal regulations on a suit for personal injuries brought in state court, we recognize that evidence of a manufacturer's compliance with a legislative enactment or safety regulation is admissible, but not conclusive, as to the existence of a design defect. Cepeda v. Cumberland Eng'g Co., 76 N.J. 152, 193 (1978), overruled on other grounds by, Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150 (1979); Jackson v. N.J. Mfrs. Ins. Co., 166 N.J. Super. 448, 462 (App. Div.), certif. denied, 81 N.J. 330 (1979). In this context, however, only the safety standards or regulations in existence at the time of the product's manufacture are admissible. Ladner v. Mercedes-Benz of N. Am., Inc., 266 N.J. Super. 481, 500 (App. Div. 1993), certif. denied, 135 N.J. 302 (1994). "The reason for the rule is that the defect must be determined as of the date the vehicle left the defendant's control." Ibid.

Christopher Caruso, plaintiff's expert in mechanical and electrical engineering, acknowledged in his testimony that: the safety standards in effect in 1999 called for sled tests; ninety-nine percent of all vehicles manufactured in 1999 were sled-certified; the 2000 Echo went into production in 1999; and the sled tests conducted pursuant to Standard No. 208 on the Echo met all the performance criteria. Thus, the original airbag system in the Echo complied with federal safety standards in effect at the time this model first went into production. The evidence also revealed there were no changes in the Echo's single-stage airbag system during its entire production run.

Plaintiff relies on Green v. Gen. Motors Corp., 310 N.J. Super. 507 (App. Div.), certif. denied, 156 N.J. 381 (1998), to argue that evidence of Toyota's compliance with Standard No. 208 was not relevant and, therefore, not admissible. He essentially argues that our products liability laws relieve him of the burden of proving Toyota failed to exercise due care in the design of the Echo's airbag system. In Green, however, we recognized that the "neat temporal lines have been blurred over the years as we have come to realize that a claim for strict liability is akin to a negligence claim in that the central focus is upon the reasonableness of the manufacturer putting the defective product onto the market." Id. at 516.

Ultimately, after careful review, we find no error in the admission of evidence regarding Toyota's compliance with these safety standards. It certainly was relevant to the jury's determination of whether the product was defective when it left Toyota's control and its admission was subject to a discretionary standard not breached here.

B. Consumer Expectations

Plaintiff contends the judge erred by denying his in limine motion to apply the consumer expectations test in determining whether the Echo's airbag was defective. He argues that this test applied because the alleged defect was not complex, and ordinary consumers had certain reasonable expectations about the deployment of airbags in frontal collisions.

The trial judge denied plaintiff's motion to apply the consumer expectation test, but granted his motion to apply the safer design test, explaining:

It seems... that the consumer expectation standard would not be applicable here. This is not the type of product -- a seatbelt system[*fn5 ] is not something that the ordinary consumers can form minimum safety expectations, but rather would require more. I am satisfied, however, that the case has been prepared as an alternative safer design case and that plaintiff may proceed on that basis. As indicated by [Toyota's counsel] some of the seven factors [of risk-utility analysis] are included within that as well.

We find no error in the judge's rulings on this point.

The New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11 (the PLA), provides in pertinent part, that

[a] manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it... was designed in a defective manner. [N.J.S.A. 2A:58C-2.]

To determine whether a product was defectively designed, "[a] plaintiff must prove either that the product's risks outweighed its utility or that the product could have been designed in an alternative manner so as to minimize or eliminate the risk of harm." Lewis v. Am. Cyanamid Co., 155 N.J. 544, 570 (1998).

A court may at times apply the consumer expectations test to determine whether a product was defectively designed. O'Brien v. Muskin Corp., 94 N.J. 169, 182 (1983). The consumer expectations test applies where "it is self-evident that the product is not reasonably suitable and safe and fails to perform, contrary to the user's reasonable expectation that it would 'safely do the jobs for which it was built.'" Suter, supra, 81 N.J. at 170-71 (citation omitted); see also O'Brien, supra, 94 N.J. at 182 (observing that the consumer expectations test "recognizes that the failure of the product to perform safely may be viewed as a violation of the reasonable expectations of the consumer"). A product's design is "self-evidently" defective "when there are no relevant considerations which make the hazard inherent in the product or reasonably necessary to its functioning." Mettinger v. W.W. Lowensten, Inc., 292 N.J. Super. 293, 309 (App. Div. 1996), aff'd as modified on other grounds, 153 N.J. 371 (1998).

Here, there is no evidence to indicate that the Echo's airbag system was self-evidently defective and that the product was unsafe for any foreseeable use. Rather, the expert testimony reveals it was unlikely an ordinary consumer would know what to expect or how safely an airbag system could be made to perform in all foreseeable situations, including the type of collision at issue here.

C. Evidence Conflicting

With the Echo's EDR

Plaintiff next argues that the judge erred by denying his in limine motion to exclude the opinions of Toyota's experts that contradicted the data obtained from the Echo's EDR, claiming these opinions were unreliable and lacked foundation. He argues that the "accident crash investigation community" generally accepted information retrieved from a vehicle's "black box," and that, in Caruso's opinion, post-crash data on the Echo's EDR printout was scientifically reliable. Plaintiff argues the trial judge erred by rejecting Caruso's opinion, excluding evidence from the EDR, and allowing Toyota's experts to introduce testimony inconsistent with the EDR's crash data on change of velocity and airbag deployment, thereby preventing him from proving the accident was not as severe as claimed and the airbag's early deployment was improper.

Prior to trial, the judge first addressed Toyota's related motion for an order precluding plaintiff from offering evidence or testimony regarding the Echo's EDR. After considering the testimony of Mark W. Jakstis, a design and technical analysis manager at Toyota Motor Sales, Caruso's deposition testimony, and an article entitled "Evaluation of Event Data Records in Full System Crash Tests," the judge granted Toyota's motion to preclude plaintiff from offering testimony regarding the EDR. She concluded that this evidence had limited significance and relevance, that it was not critical as each side had retained an accident reconstruction expert, and that the time required to put all the information on the EDR before the jury was not warranted. In reaching her decision, the trial judge relied on the article showing that in thirty-seven laboratory crash tests, none of which used a 2003 Echo, the Delta V recorded by the EDR in nearly all cases was less than the actual Delta V, ...

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