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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 25, 2012

JOSHUA SCHWARTZ, AN INFANT, BY HIS GUARDIAN AD LITEM, DOUGLAS SCHWARTZ, PLAINTIFF-APPELLANT,
v.
HASBRO, INC., A CORPORATION DOING BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT,
AND TARGET, INC., A CORPORATION DOING BUSINESS IN THE STATE OF NEW JERSEY, DEFENDANT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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 jury had answered "No" to question #1].

3. Did the Nerf N-Strike Maverick Blaster contain a manufacturing defect, which rendered the product not reasonably safe? Vote: No

[The jury did not answer question #4, which asked whether a manufacturing defect was a proximate cause of plaintiff's injuries, as the jury had answered "No" to question #3].

5. Was the plaintiff, Joshua Schwartz, negligent?

Vote: No

If your answer to question #5 is "NO," proceed to question #7.

If your answer to question #5 is "YES," please proceed to question #6. [In light of its "No" answer to question #5, the jury did not answer question #6, which asked whether the negligence of plaintiff was a proximate cause of his injuries].

7. If you found the defendant, Hasbro, Inc., and/or plaintiff, Joshua Schwartz, responsible, you must determine the percentages of responsibility. Taking the combined responsibility of the defendant and the plaintiff which caused the incident as being 100%, what percentage of such total is attributable to:

Defendant, Hasbro, Inc. 10%

Plaintiff, Joshua Schwartz 90% TOTAL 100% Vote: 100%

Please proceed to question #8.

8. State the amount of damages that would fairly and reasonably compensate the plaintiff, Joshua Schwartz, for the following Pain & Suffering $-0- [(emphasis added).]

Even though the interrogatories and the judge's instructions were silent on the issue of warnings, the jurors completed the verdict sheet by drawing an arrow from the "pain & suffering" award of $0 and adding the following notation:

Instead we the jury would like to see a warning picture on the bo[o]k and instruction pamphlet denoting a warning sign not to hold the gun close to your face while playing.

The jurors then drew an "[e]xample" of the warning they wanted to see, and diagrammed a child holding the Nerf Blaster close to his face, which they encircled placing a large "X" through the prohibited conduct.

Plaintiff moved for a new trial, maintaining that a new trial was warranted in view of the jurors' inconsistency in their responses to the verdict sheet, where the jurors allocated ninety percent responsibility to plaintiff, despite finding that plaintiff was not negligent. Plaintiff also argued that the judge erred in charging the jury on comparative negligence, stating "that shouldn't have been charged in the first place." The judge denied plaintiff's motion for a new trial, reasoning that in light of the ultimate outcome charge she had provided to the jury, and the jury's "no" answers to questions one and three, it was beyond dispute that Hasbro was entitled to the entry of judgment in its favor. The judge made the following remarks during the colloquy at the motion hearing:

[The court]: [A]ssuming even arguendo that you're 100 percent correct, . . . the jury didn't find Hasbro at fault. [Plaintiff]: Well, they found that Hasbro was 10 percent responsible and they found that the product should have a warning[.] [The court]: But I charged them the ultimate outcome charge that if they found that the plaintiff was more than 50 percent responsible, then the plaintiff wouldn't get anything. [As] a matter of fact, that was on the verdict sheet and you asked me to take it off.

[Plaintiff]: That's right. [The court]: So the jury in this case did not find Hasbro responsible under the two theories that you advanced. They may have found Hasbro responsible under the failure to warn theory. You are correct about that because they wrote it on the verdict sheet but you withdrew [that claim]. You did not proceed on that theory.

[Plaintiff]: Your Honor, may I just add that if they found that there was a failure to warn, it would be a failure to warn of what? They . . . must have felt that there was a defect in the product, there was something hazardous about the product. [The court]: Failure to warn is a separate cause of action. [Plaintiff]: But it indicates their thinking that there was something wrong with the product. [The court]: But . . . they found there was nothing wrong with the product. Now you're confusing apples and oranges. If failure to warn was, was a part and parcel with the defective product claim then maybe what you're saying would be correct but failure to warn is a separate cause of action which you withdrew.

[Plaintiff]: What about question seven where they found that Hasbro was 10 percent responsible? . . . [A]nd if they answered that consistently with the first part of the jury sheet, they would have left it blank because they were told answer that only if you find somebody is responsible. And they say, yes, we find Hasbro is 10 percent responsible. [The court]: But even assuming . . . they found Hasbro 10 percent responsible, Hasbro still would be entitled to a no-cause verdict under the ultimate outcome charge.

At the conclusion of oral argument, the judge denied plaintiff's motion for a new trial.

On appeal, plaintiff raises the following claims:

I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING PLAINTIFF'S MOTIONS TO STRIKE THE DEFENSE OF COMPARATIVE FAULT.

II. CHARGING THE JURY WITH COMPARATIVE NEGLIGENCE IN A PRODUCTS LIABILITY CASE CANNOT AMOUNT TO HARMLESS ERROR.

III. THE ERRONEOUS DENIAL OF PLAINTIFF'S MOTION TO STRIKE THE DEFENSE OF COMPARATIVE NEGLIGENCE COUPLED WITH THE COURT'S CHARGE TO THE JURY OF COMPARATIVE NEGLIGENCE RESULTED IN REVERSIBLE ERROR NECESSITATING A NEW TRIAL.

IV. THE RULING OF THE TRIAL COURT PERMITTING THE DEFENSE TO PRESENT HEARSAY CONTAINED WITHIN THE VARIOUS HASBRO INTERNAL & EXTERNAL TEST REPORTS WITHOUT COMPELLING THE PRODUCTION OF THE PERSON(S) WHO PERFORMED THE TESTS CONSTITUTED REVERSIBLE ERROR.

V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CHARGE THE JURY THAT AN ADVERSE INFERENCE SHOULD BE DRAWN FROM THE FAILURE OF THE DEFENSE TO CALL ITS SENIOR VP OF QUALITY ASSURANCE WHO WAS THE ONLY WITNESS NAMED BY THE DEFENDANT IN DISCOVERY AND WHO WAS ALSO DESIGNATED BY THE DEFENDANT AS THEIR CORPORATE DESIGNEE PURSUANT TO R. 4:14-2.

VI. THE COURT ERRED IN REFUSING TO PERMIT THE PLAINTIFF TO PRESENT REBUTTAL TESTIMONY IN THE FORM OF EXCERPTS FROM MR. KAZIANIS'[S] DEPOSITION.

VII. THE CUMULATIVE ERRORS OF THE TRIAL COURT DISCUSSED IN THE PREVIOUS POINT HEADINGS OPERATED TO DENY A FAIR TRIAL TO JOSHUA SCHWARTZ AND UNDER THE TOTALITY OF THE CIRCUMSTANCES HE IS ENTITLED TO A NEW TRIAL.

VIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GRANT PLAINTIFF'S MOTION FOR A NEW TRIAL SINCE THE JURY VERDICT CLEARLY DEMONSTRATED CONFUSION, MISUNDERSTANDING AND AN INCONSISTENT VERDICT CONSTITUTING A MISCARRIAGE OF JUSTICE.

IX. THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

X. JUDGMENT NOTWITHSTANDING THE VERDICT SHOULD BE ENTERED IN FAVOR OF THE PLAINTIFF ON THE LIABILITY ISSUE.

II.

We begin by addressing Point IV, in which plaintiff asserts that he was denied a fair trial when the judge permitted Hasbro to present hearsay testimony pertaining to the various reports prepared by both Hasbro and by external testing consultants, without requiring Hasbro to produce as witnesses the individuals who performed the tests in question. Hasbro argues that the reports were properly admitted under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6).

Our scope of review is well-settled. We grant "substantial deference to the evidentiary rulings of a trial judge," Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006), and will not disturb such rulings absent an abuse of discretion, Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008).

As we have noted, in rendering an opinion that the Nerf Blaster was safe and complied with ASTM standard 963, as well as the CPSC regulations applicable to the design and manufacture of children's toys, Denniss relied in part on the test results issued by Intertek and Bureau Veritas. In expressing an opinion, an expert is permitted to rely upon testing and reports prepared by others, provided that the expert does not rely exclusively on the hearsay evidence, and further provided that the hearsay test results are reliable. Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 17-18 (App. Div. 1994). Evidence of such test results is admissible when the expert's opinion is merely "corroborated, confirmed or bolstered" by those results. Ibid. It is only when the witness relies exclusively on the hearsay for the entirety of the opinion that the judge is obliged to bar the hearsay testimony describing such third-party testing. Ibid. Indeed, "in all scientific inquiry it is common for one expert to premise an opinion on those of fellow technicians in related or cognate fields of science." Ibid. (citation and internal quotation marks omitted).

Our opinion in Glowacki relied on the provisions of N.J.R.E. 56(2), now codified as N.J.R.E. 703, which provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

[N.J.R.E. 703 (emphasis added).]

N.J.R.E. 703 grants broad latitude in the admission of expert opinion testimony and to permit an expert to rely on data that is not itself admissible in evidence, so long as the hearsay material is of a type generally relied upon by experts in the relevant field. Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 284-86 (1990). We are satisfied from the evidence in the record that Denniss's reliance on the Intertek and Bureau Veritas testing reports was consistent with N.J.R.E. 703 and the requirements of Ryan. Denniss's testimony established that experts such as himself routinely rely on such testing, and that companies such as Hasbro are required to test their products for safety to ensure their compliance with the applicable ASTM and CPSC standards.

Moreover, Denniss's testimony concerning the findings of Bureau Veritas and Intertek was offered not for the truth of the consultants' conclusions, but rather to corroborate and explain the basis for Denniss's expert opinion. This was permissible, as Denniss did not "render an opinion on the ultimate issue in the case by merely reciting the opinion of an out-of-court expert." Glowacki, supra, 270 N.J. Super. at 17-18 (finding "[t]here was no error even if the expert's opinion was bolstered in the view of the jury" when the expert physician established the basis for his opinion with "hearsay testimony").

For these reasons, the judge correctly permitted Denniss to testify about the Intertek and Bureau Veritas findings without requiring Hasbro to produce as a witness the person who authored the report. We reject plaintiff's arguments to the contrary.

Plaintiff further asserts that the hearsay violation was particularly acute when Jeas -- who was not an expert -- was permitted to discuss the Bureau Veritas and Intertek reports. As we have noted, the judge imposed careful limitations on Jeas's testimony, and confined Jeas's references to outside testing to only those reports that Denniss would later discuss during his testimony. As the record demonstrates, the judge confined Jeas's testimony to a description of the particular procedures Hasbro followed in establishing safety standards, but the judge prohibited Jeas from testifying about the actual details of the Bureau Veritas and Intertek reports. We perceive no error in the judge's rulings concerning the scope of Jeas's testimony.

Additionally, in allowing the parties' experts to reference the findings in the Bureau Veritas and Intertek reports, the judge issued a thorough instruction concerning the jurors' use of the evidence, telling them they were not bound by the experts' opinions:

In this case, Mr. Ehrlich and Mr. Denniss were called as experts and testified about certain opinions. . . . The weight of the expert's opinion depends on the facts on which the expert bases his or her opinion. You as jurors must decide whether the facts relied upon by the expert actually exist.

You will recall that statements were read in connection with direct or cross examination of the expert witnesses. These statements were contained in [the external reports] and Hasbro's internal documents. However, merely because a publication has been read to you does not mean that you must accept it as binding in any of your decisions. You may give the statements discussed in the publications whatever weight you believe they deserve using your reasons, judgment and common sense.

We reject plaintiff's contention that the judge erred by permitting Hasbro to introduce testimony concerning the Bureau Veritas and Intertek testing reports without requiring Hasbro to call as a witness the individuals who prepared those reports.

In Point IV, plaintiff also challenges the admission in evidence of the "internal" product reports prepared by Hasbro employees attesting to the safety of the Nerf Blaster. Plaintiff asserts that the reports were hearsay and that no exception to the hearsay rule applied. As we have noted, the judge admitted these reports in evidence pursuant to the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). That Rule permits the admission of documents prepared "in the regular course of business," provided that: 1) the document was prepared "at or near the time of observation by a person with actual knowledge" of the events described; and 2) it was "the regular practice" of the business in question to prepare such documents. N.J.R.E. 803(c)(6). Even if these requirements are satisfied, the judge is obliged to bar the admission of the document in evidence if "the sources of information or the method, purpose or circumstances of [its] preparation indicate that it is not trustworthy." Ibid. That a business record may be self-serving does not affect its admissibility, provided that the proponent meets the requirements of the business records exception. Stott v. Greengos, 95 N.J. Super. 96, 99-100 (App. Div. 1967).

We are satisfied, as was the trial judge, that the testimony Jeas provided met the requirements of N.J.R.E. 803(c)(6). The product safety reports in question were prepared by Hasbro employees at the time the testing was performed, and undertaking such testing was a "regular practice," ibid., whenever Hasbro introduced a new product. Moreover, nothing in the record suggested that the safety reports prepared by Hasbro's employees were in any way unreliable or unsound.

We affirm the admission in evidence of the internal product safety reports pursuant to N.J.R.E. 803(c)(6).

We reject the claims plaintiff advances in Point IV.

III.

We next address Point V, in which plaintiff maintains that the judge committed reversible error by denying his request to issue an adverse inference instruction concerning Hasbro's failure to call Kazianis as a witness. An adverse inference instruction permits the jury, in appropriate circumstances, to conclude that had the party in question called the absent witness to the stand, the witness's testimony would have been unfavorable. Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 118 (2005). A judge's decision to issue an adverse inference instruction, or a judge's refusal to do so, is reviewed for an abuse of discretion. Id. at 119.

Before the court may issue an adverse inference instruction based upon the nonproduction of a witness, the proponent must establish:

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven. [Nisivoccia v. Ademhill Assocs., 286 N.J. Super. 419, 428 (App. Div. 1996) (emphasis added) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

Here, the judge properly determined that an adverse inference instruction was not merited, as plaintiff failed to present any evidence to establish that Kazianis would have testified differently from Jeas, or that his testimony would have been "superior" in any way. Because one of the prerequisites for issuing an adverse inference instruction was not established, the judge properly denied plaintiff's request. We reject the claim plaintiff advances in Point V.

IV.

In Points I, II and III, plaintiff challenges the judge's denial of his motion to strike the defense of comparative fault, as well as the judge's insistence that the jury be instructed on that subject. He maintains that issuing the instruction was error, and in the context of the strict liability provisions of the statute, such error cannot be dismissed as harmless. Defendant argues that the judge correctly instructed the jurors on comparative fault, and that any error in issuing a comparative negligence instruction was harmless because "the jury found that the plaintiff was not negligent."

The Product Liability Act, N.J.S.A. 2A:58C-1 to -11 (Act), establishes the circumstances under which a manufacturer will be liable for injuries caused by a defective product:

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: a. deviated from the design specifications . . . of the manufacturer . . . , or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner. [N.J.S.A. 2A:58C-2.]

Before addressing plaintiff's arguments concerning the judge's decision to instruct the jury on comparative fault, we pause to consider the way the jury verdict sheet was structured. Because plaintiff had consented to the dismissal of his failure to warn claims, the only questions presented to the jury concerned plaintiff's design defect and manufacturing defect claims, which were presented in the first and third jury interrogatories, respectively. As we have noted, the jury answered "No" to both questions, finding neither design nor manufacturing defect. At that point, the verdict sheet should have instructed the jury not to proceed any further, and to advise the judge that it had reached a verdict. Instead, the verdict sheet mistakenly instructed the jury to "proceed to question #5," which dealt with whether plaintiff was negligent, even though the jury's answers to the first and third questions had already resulted in a verdict of no cause. Stated differently, the way the verdict sheet was structured, the jury was directed to determine whether plaintiff was negligent even if the jury had already determined that Hasbro was not liable for plaintiff's injuries because the Nerf Blaster was not defectively designed or defectively manufactured.

Despite answering "No" to question #5, which asked whether plaintiff was negligent, the jury specified, in its answer to question #7, that plaintiff was "90% responsible for caus[ing] the incident." In sum, the jury found that the Nerf Blaster was not defective, that plaintiff was not negligent in the manner he used it, but plaintiff was nonetheless ninety percent responsible for his injuries.

"[C]lear and correct jury charges are essential to a fair trial[.]" Das v. Thani, 171 N.J. 518, 527 (2002). When reviewing jury instructions for reversible error, we must consider the instructions as a whole to determine whether they adequately conveyed the law and did so in a manner that was clear and straightforward. Domurat v. Ciba Specialty Chems. Corp., 353 N.J. Super. 74, 93 (App. Div.), certif. denied, 175 N.J. 77 (2002). We will reverse on the basis of an incorrect jury instruction only if the jury could have reached a different result had the judge provided the correct instruction. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002).

The judge provided the following instruction on the issue of comparative fault, advising the jury that it was not entitled to attribute any fault to plaintiff unless Hasbro established that plaintiff had "actual knowledge" of the particular danger and intentionally disregarded the attendant risk of harm:

Defendant contends that plaintiff was at fault for the happening of the accident.

To prevail on this claim, defendant must prove that plaintiff deliberately and knowingly acted in such a way as to create or material[ly] increase a risk of the injury and that such action was a proximate cause of the accident. Mere failure to discover a defect in the product or to guard against the possibility of its existence is not a defense. In other words, defendant must prove plaintiff had actual knowledge of the particular danger and knowingly and voluntarily encountered that risk before it can be found that plaintiff was at fault.

The judge so instructed the jurors at two different points, in language that tracked the model jury charge. See Model Jury Charge (Civil), §5.40J "Comparative Fault" (2009). Additionally, the judge instructed the jurors that they were not permitted to consider plaintiff's possible negligence when determining whether the product was defective. The judge stated:

In this case, the defendant contends that at the time of the accident, the product was being misused[.] . . . . When you are deciding whether the product was defective you are not permitted to consider plaintiff's conduct. [(Emphasis added).]

The judge also instructed the jury that if it were to find that plaintiff's negligence was more than fifty percent responsible for the incident, then plaintiff would not recover damages from Hasbro at all. The judge stated:

If you find that both plaintiff and the defendant were negligent and proximately caused the accident, then you must compare their negligent conduct in terms of percentages. . . . If you attribute to the plaintiff a percentage of negligent conduct of 50 percent or less, then the court will reduce his recovery of damages by his percentage of the negligence that proximately caused the accident. If you attribute to the plaintiff a percentage greater than 50 percent, then he will not recover damages from the defendant at all.

In that event, you must stop your deliberations without making any determination as to damages.

"Contributory negligence is not a defense to a strict-liability action when a plaintiff's negligent conduct consists of merely failing to discover or guard against the possibility of a defect in a product." Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 94 (1992). However, "when a plaintiff with actual knowledge of the danger presented by a defective product knowingly and voluntarily encounters that risk, a trial court should submit the comparative-negligence defense to a jury." Ibid. Commenting on the risk-utility analysis adopted in O'Brien v. Muskin Corp., 94 N.J. 169, 181-84 (1983), the Court noted in Johansen that this analysis "requires a jury to impose liability on the manufacturer if the danger posed by the product outweighs the benefits of the way the product was designed and marketed." Johansen, supra, 128 N.J. at 95. Under the risk-utility analysis, "manufacturers cannot escape liability on the grounds of plaintiff's misuse or abnormal use if the actual use proximate to the injury was objectively foreseeable." Ibid. "[A]n abnormal or unforeseeable use of a product is not an affirmative defense." Ibid.

To avoid the risk that a jury might find that the plaintiff's negligence caused the accident -- even though the product was defectively designed -- judges must provide the jury with a specific instruction. Such instruction prohibits the jury from finding "that a product, although improperly designed, is not defective [merely] because the plaintiff could have avoided the danger posed by the product through the exercise of due care." Id. at 101. Such an instruction prevents the risk that a jury "might inadvertently compare a plaintiff's and defendant's fault in determining whether a product is defectively designed." Ibid. As the Court observed in Johansen, "[s]uch a comparison would dilute the limitations that [the Court has] imposed on the assertion of the comparative-negligence defense in strict-liability-design-defect litigation." Ibid.

Evidence concerning a plaintiff's negligent conduct is, however, relevant to the question of proximate cause. Id. at 102. A plaintiff's comparative fault should only be considered, however, where a jury could find that the plaintiff intentionally disregarded a known risk in choosing to use the product as he did. Coffman v. Keene Corp., 133 N.J. 581, 604 (1993). A child under the age of seven "is rebuttably presumed to be incapable of negligence." DeRobertis v. Randazzo, 94 N.J. 144, 156 (1983). Plaintiff was eight years old.

Applying these principles, we are satisfied that the judge was correct when she denied plaintiff's motion to strike the defense of comparative negligence. Based upon the evidence presented, the jury could have concluded that plaintiff was aware of the risk posed by holding the Nerf Blaster too close to his face, especially while his sister was kicking a rubber ball at him, but that he nonetheless used the Nerf Blaster in that manner. The jury could also have found that if plaintiff had not been holding the gun so close, the ball kicked by his sister would not have pushed the gun backward into his forehead. Because a comparative fault charge was appropriate on the issue of proximate cause, the judge correctly denied plaintiff's motion to strike the defense and correctly chose to instruct the jury on that subject. Moreover, the judge's instructions fully complied with the requirements of Johansen. We reject the claims plaintiff advances in Points I, II and III.

V.

In Point VI, plaintiff contends that the judge erred in refusing to permit him to read to the jury portions of Kazianis's deposition as part of his rebuttal case, after Hasbro rested. "[T]he trial court has a wide range of discretion regarding the admissibility of proffered rebuttal evidence." Casino Reinv. Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 497 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 165 N.J. 607 (2000). The scope of rebuttal evidence is generally limited to new issues raised on cross-examination, or issues relating to witness credibility. See id. at 497-98. See also Brambley v. McGrath, 347 N.J. Super. 1, 8 (App. Div. 2002) (observing that the "basic purpose of re-direct examination is to respond to new material elicited during cross-examination").

As we have already discussed, the judge permitted plaintiff during his case in chief to read portions of Kazianis's deposition testimony to the jury. It was only during plaintiff's rebuttal case that the judge refused to permit him to do so.

Plaintiff has neither identified the excerpts of Kazianis's deposition that he sought to read to the jury on rebuttal, nor has he included the deposition in his appendix. Instead, plaintiff asserts that he "expected" he would be able to cross-examine Kazianis at trial. Because plaintiff bears the burden of establishing that the judge's denial of his request constituted harmful error, and because plaintiff failed to identify the portions of the deposition to which his request pertained, we decline to consider this claim of error and reject the claim plaintiff advances in Point VI.

VI.

The claims plaintiff advances in Points VII, VIII, IX and X lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). As to Point VII, we reject plaintiff's claim of cumulative error, as we have not accepted any of plaintiff's claims of error, and, for that reason, there are no cumulative errors that in the aggregate could have denied him a fair trial. As to Point VIII, we are satisfied that although the jury verdict sheet was faulty in that it allowed the jury to reach the questions of plaintiff's negligence and plaintiff's responsibility for the happening of the incident, the jury's answers to questions five, seven and eight were mere surplusage in light of the fact that the jury had already rendered a verdict of no cause by answering "no" to the design defect and manufacturing defect questions, which were interrogatories one and three on the verdict sheet. As the jury's verdict was not against the weight of the evidence, the judge properly denied plaintiff's motion for a new trial, and we reject the claim plaintiff advances in Points IX and X.

Affirmed.


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