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Joshua Schwartz, An Infant, By His Guardian Ad Litem, Douglas Schwartz v. Hasbro

April 25, 2012


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4034-08.

Per curiam.


Argued March 27, 2012

Before Judges Baxter, Maven and Carchman.

This product liability trial ended in a jury verdict of no cause. The jury found that plaintiff*fn1 failed to prove either a design defect or a manufacturing defect in the toy gun, known as a "Nerf N-Strike Maverick Blaster" (Nerf Blaster), manufactured by defendant Hasbro, Inc.*fn2 On appeal, plaintiff maintains that the judge committed reversible error by: admitting hearsay testimony concerning product safety test reports; refusing to permit plaintiff to read to the jury on rebuttal certain portions of the deposition of Hasbro's designated representative; allowing the jury to consider the issue of comparative fault; denying plaintiff's request for an adverse inference instruction; and denying plaintiff's motion for a new trial. We reject these contentions and affirm the judgment dismissing plaintiff's complaint with prejudice.


On July 30, 2007, Joshua Schwartz, who had just turned eight years old, was playing in his backyard with his ten year- old sister Logan and his cousin Rebecca, who was nine years old. Joshua was playing with the Nerf Blaster his parents had given him for his birthday a month earlier. The Nerf Blaster, made of yellow plastic, fires soft foam projectiles that have plastic suction cups at their tips. It is equipped with a raised piece of plastic at the rear of the gun that provides a sight line for better aim when firing the dart-like projectiles.

Joshua testified that he was "jogging" after his sister and cousin when he stopped and held the Nerf Blaster up to his face to use the sight line. As he did so, his sister Logan kicked a rubber ball that hit the Nerf Blaster and caused it to propel backward into his forehead, striking him between the eyes. Logan described the incident in similar terms, stating "Josh was running around trying to shoot us with the darts and we were trying to like run around and take and throw the balls to like send obstacles at him so . . . he'd have less of a chance of hitting us with the darts." She explained that she "kicked the ball towards Josh and the ball hit the gun and the gun hit his head and then he fell. . . . [She] went over to him and . . . saw he was bleeding." The impact of the Nerf Blaster against plaintiff's face resulted in a gash to his forehead. Thirty-eight sutures were needed to repair the laceration, leaving a scar.

Through his guardian ad litem, Joshua filed a complaint against Hasbro alleging negligence and product liability. The complaint sought punitive damages, and asserted claims of design defect, manufacturing defect and a failure to warn.

The trial commenced in January 2011. Plaintiff presented expert testimony from Harold Ehrlich, a Senior Industrial Engineer formerly employed by Mattel. Ehrlich explained that the Nerf Blaster has a "rear sight blade" located at the handle end of the gun, and a "projection at each end." He testified that the design flaw in the Nerf Blaster stemmed from a failure to "eliminate the projection hazard," and that Hasbro could have done so by "either eliminat[ing] th[e] rear sight completely and round[ing] it off or . . . [by] maintain[ing] the rear sight, but ma[king] it more bulbous, or round, in its geometry."

In a N.J.R.E. 104(a) hearing outside the presence of the jury, Ehrlich testified that the warnings on the Nerf Blaster were not "adequate or sufficient," because "no warning can be considered adequate if a design remedy exists." On cross-examination during the 104(a) hearing, Ehrlich stated: "I have no opinions in my report on warnings and . . . I don't intend to offer them unless someone opens the door."

In Ehrlich's subsequent testimony before the jury, he opined that Hasbro could have eliminated the danger "by rounding the edges [of the sight line]" or "removing" it "completely."

Q: Mr. Ehrlich, you have indicated previously that you do not have an opinion as to warnings in this case. Can you explain why you wouldn't have such . . . an opinion?

A: Because, . . . a manufacturer has the responsibility to provide the highest order of protection, which is to eliminate the hazard. It's not acceptable to delegate responsibility for safety to the user when the manufacturer has a higher order of protection that he can provide and that's the reason I'm not opining on warnings today, because I'm opining on the actual hazard and the need to eliminate it.

Q: One final question. What higher degree of protection could the manufacturer have provided in this case?

A: Could've eliminated the hazard by rounding the edges or removing them completely.

Before plaintiff rested, he read to the jury portions of the deposition of Arthur Kazianis, the Senior Vice President of Global Quality Assurance, whom Hasbro had designated as its corporate representative for purposes of the deposition. See R. 4:14-2(c), R. 4:16-1(b). Plaintiff read to the jury Kazianis's deposition testimony that Hasbro had not subjected the Nerf Blaster to any outside testing "for purposes of determining whether the [Nerf Blaster] was hazardous in terms of sharp or pointed edges before the product was released to the [public]."

Instead, all testing of sharp or pointed edges "was done internally." Plaintiff also read to the jury Kazianis's answer to the question of whether it was foreseeable that a child "could put his face up to the back of the [B]laster . . . [a]nd aim the [B]laster . . . with the [B]laster close to the child's face." Kazianis answered it was "possible" that such an eventuality could be foreseeable. Finally, plaintiff asked Kazianis whether there would be any cost to Hasbro "for new products being produced if [Hasbro] wanted to . . . make [the sight line] more rounded." Kazianis answered, "I'm not aware of any costs." At that point, plaintiff rested. After plaintiff rested, the judge granted Hasbro's motion to dismiss plaintiff's failure to warn claims "given that there's [been] no expert testimony on the warnings." Plaintiff interposed no objection.

Hasbro began its case by presenting the testimony of its employee, Andrew Jeas, the Reliability Manager for the Nerf Blaster. Jeas testified as a lay witness and as Hasbro's representative, asserting that Hasbro "didn't have any safety concerns" about the Nerf Blaster. Jeas explained Hasbro's safety standards and testing procedures, noting that Hasbro had its own set of internal safety standards that "are built upon external standards." This combination of standards and procedures establishes the "consumer safety specifications for toy safety." Jeas also testified that Hasbro adhered to a "master test plan . . . for quality assurance." He also described the safety tests Hasbro's employees conducted on the Nerf Blaster, and explained that such testing was routine whenever a new product was introduced. He noted that the Nerf Blaster passed all of Hasbro's internal safety tests.

Over plaintiff's objection, the judge admitted in evidence Hasbro's internal standards as documents "kept in the normal course of business." In contrast, the judge refused to admit the master plan and other external documents in evidence, as she concluded they were hearsay. The judge permitted Jeas to refer to the external testing of the Nerf Blaster that Hasbro commissioned, but limited such references to the external testing upon which Hasbro's expert, Malcolm Denniss, would rely when testifying in court.

Consistent with the judge's ruling, Jeas testified that Bureau Veritas and Intertek were "outside testing agenc[ies] that [Hasbro] use[s] . . . to certify that products meet [Hasbro's] requirements[.]" The judge limited the scope of Jeas's testimony concerning the two external testing companies, stating:

He can testify about what he does, what he instructs his people to do, what he observes his people to do, what procedures he follows, what procedures his people follow, how it's done there. He can testify about all that. . . . [H]e can say that he follows these standards or they try to comply with these standards. I don't mean to put words in your mouth but I'm trying to show you what I believe to be the distinction between him testifying that, for example, our product is safe because it complies with these standards because that's the province of an expert [which Jeas is not].

Subsequently, Denniss testified that he relied on Hasbro's internal safety standards, the external safety standards, and the results of the tests performed by Bureau Veritas and Intertek in rendering his opinion. Denniss testified that, in his expert opinion, "based upon [his] examination," "independent testing," and "review of all test reports," the Nerf Blaster "compl[ied] with all applicable standards . . . [and] in-house requirements." Denniss also opined that the Nerf Blaster complied with the federal Consumer Product Safety Commission (CPSC) regulation for toys, which he described as "16 C.F.R. 1500," and also satisfied the standards issued by the American Society for Testing Materials (ASTM), namely the "Mechanical Hazards Test" known as ASTM 963.

During the charge conference, Hasbro requested the judge to charge the jury on comparative negligence, asserting that plaintiff had misused the Nerf Blaster by holding it too close to his face. Plaintiff argued there was "no basis" from which a jury could conclude either that plaintiff had been negligent, or that any such negligence was the sole cause of his injuries. Acknowledging that the issue was "a close call," the judge decided to charge the jurors on comparative negligence, reasoning there was evidence presented to the jury concerning both plaintiff's misuse of the Nerf Blaster, "as well as [the] intervening cause[] which is alleged to be the throwing of the ball by Logan." The judge told the parties she would instruct the jurors to decide whether a reasonably careful manufacturer could have anticipated the misuse of the product and revised the design accordingly. We shall describe the judge's actual charge to the jury later in this opinion.

At a later point during the charge conference, plaintiff requested an adverse inference instruction based upon Hasbro's failure to call Kazianis as a witness. Plaintiff maintained he was "told many times that [Kazianis] was [going] to testify," and noted that the "case was adjourned several times because [Kazianis] was not available." The judge declined to issue the requested adverse inference instruction, reasoning:

I don't understand why . . . I should charge the jury with an adverse inference . . . .

[Y]ou could have sent a notice in lieu of subpoena. You could have called him on your case and if you wanted to read in portions of his deposition testimony, you could have done so. . . . So given that you didn't choose to do either of those two things, wouldn't it be confusing to the jury to give them an adverse inference charge that they didn't bring this particular corporate designee when they did bring another corporate designee. . . .

My concern is that it would confuse the jury, open up a can of worms for something . . . [that] is not relevant in this case and . . . I'm not even convinced there's an adverse inference based on the fact that he didn't come. I'll deny that.

We now describe the jury interrogatories that were included in the jury verdict sheet. Because the judge, with plaintiff's consent, had previously dismissed the failure to warn claims, the only issues remaining for the jury's consideration concerned the existence of a manufacturing defect or a design defect, and plaintiff's negligence. The interrogatories submitted to the jury, and the jury's answers, were as follows:

1. Was the Nerf N Strike designed by defendant in a defective manner?

Vote: No

If your answer to question #1 is "NO," then proceed to question #3.

If your answer to question #1 is "YES," please proceed to question #2.

[The jury did not answer question #2, which asked whether the defective design of the Nerf Blaster was a proximate cause of plaintiff's injuries, as the ...

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