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Vogel v. Fernandes

Superior Court of New Jersey, Appellate Division

July 19, 2013

MELISSA M. VOGEL, Plaintiff-Appellant,


Argued February 26, 2013

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-2562-04 and L-2565-04.

Timothy E. Burke argued the cause for appellants (Garrity, Graham, Murphy, Garfoalo & Flinn, attorneys; Mr. Burke, of counsel and on the briefs).

James N. Tracy argued the cause for respondent (Tansey, Tracy & Convery, attorneys; Mr. Tracy, of counsel and on the brief).

Before Judges Alvarez, Waugh and St. John.


In this consolidated proceeding, plaintiffs appeal the trial court's June 13, 2008 denial of their motion for a new trial, filed after the jury's no cause of action verdict against defendant General Motors Corporation (GM). We affirm.


On May 28, 2004, plaintiff Daniel Vogel, [1] Administrator ad Prosequendum of the Estates of Eric Vogel and Laurana Vogel, and Guardian Ad Litem for Gregory Vogel, filed a complaint against defendants Melissa Vogel, Joseph Fernandes, and GM, asserting a negligence claim against Melissa and Fernandes and a products liability claim against GM. On June 9, 2004, Melissa filed a separate complaint against Fernandes and GM alleging the same causes of action.

The matter was tried in April 2008. On April 29, 2008, Daniel agreed to accept Melissa's $30, 000 automobile insurance policy in settlement of the negligence claim against her. That same day all plaintiffs voluntarily dismissed their claims against Fernandes. On May 1, 2008, the jury returned the no cause verdict as to GM. Plaintiffs' motion for a new trial was denied by the trial court on June 13, 2008.

Plaintiffs filed a notice of appeal on July 24, 2008. Plaintiffs' appeal was dismissed without prejudice on July 30, 2009, after GM filed for bankruptcy. The appeal was reinstated on October 6, 2011.


The following is a summary of the extensive trial record and exhibits. The accident at issue occurred on June 14, 2002, while Melissa was driving the family's 1994 two-door, soft-top Geo Tracker. Her husband Eric was seated in the front passenger seat; their children, eight-year-old Laurana and six-year-old Gregory, were seated in the rear. Laurana was in the left rear passenger seat, Gregory in the right rear passenger seat. As the Tracker was proceeding southbound on a two-lane road in Manalapan Township, Fernandes was proceeding northbound in his 1996 Ford F-150 pick-up truck. He was traveling at approximately thirty-five to forty miles per hour, at or below the legal speed limit. Fernandes noticed the Tracker coming towards him in the other lane when suddenly it turned sharply in front of him "like a slot car racer, " at an approximate ninety-degree angle. He slammed on his brakes, and attempted to turn his truck to the right, but the vehicles collided seconds later. The two vehicles literally locked together from the force of the collision.

At trial, the descriptions given by those who arrived to assist at the accident varied somewhat. When Patrolman Kevin McIntosh of the Manalapan Township Police Department arrived at the scene, all the victims were unconscious and, according to his recollection, wearing their seatbelts. Derek Wagner, an EMT with the Englishtown-Manalapan First Aid Squad, recalled that when he arrived, Eric had "some level of consciousness." Eric was moaning, while Melissa was alert. Laurana was wearing some type of seatbelt, which Wagner had to cut in order to remove her, but he was uncertain whether it was a shoulder harness or a lap belt. The child was slumped over, blue, had no pulse or respiration, and was unresponsive to CPR. Wagner could not recall any details about Gregory's condition.

Detective Matt Trembow briefly interviewed Melissa, who could not remember why she crossed the double yellow lines. He observed that Eric, who was unresponsive, was not wearing a seatbelt. Rescue workers employed the jaws of life in order to extricate Eric's feet from the Tracker's floor area while a local fire department used a winch to separate the F-150 from the Tracker.

Roger Malone, another paramedic, noted that Eric was "making noises but not really making any sense." Natalie Ann Martin-Shepherd, a paramedic, testified that Eric was speaking with her "pretty much the entire time until he was removed, " answered her questions, and complained of abdominal and pelvic pain. Others on the scene, however, recalled that Eric was unresponsive. As he was driven to the Jersey Shore University Medical Center (Jersey Shore), he became combative but not lucid.

After removing Eric, rescue workers next extricated Gregory, whose feet were also jammed in the floor of the Tracker. Martin-Shepherd confirmed that he was wearing his seatbelt. Gregory had bruising on the right side of his head and a severe injury to his right leg, and was later diagnosed with tearing of the frontal and temporal lobes of his brain.

Melissa sustained multiple fractures of her lumbar spine and pelvis, a laceration to her spleen, and a concussion. Although she was discharged from the hospital on June 19, 2002, she used a walker until sometime in August. Melissa has no memory of anything occurring between the time she and her family left home in the Tracker and her hospitalization. She recalled that when Laurana was younger, she would place the shoulder portion of her lap belt behind her back.

Eric and Laurana both died from their injuries. Eric's inferior vena cava, located on the right side of his body, was lacerated at the point where it passed through the diaphragm. He hemorrhaged on both sides of his diaphragm, his liver was lacerated on the right side, his pancreas was injured, and his spleen required immediate surgical removal. Eric also had two lacerations on his right lower temple, abrasions and lacerations on the right side of his chest, abrasions on his right arm and foot, and bruising on his right buttock. He suffered an injury to his brain, resulting in bleeding and swelling, in addition to fracturing four left-side ribs.

According to Karabi Sinha, a pathologist with the Monmouth County Medical Examiner's Office, Eric died from multiple traumatic injuries. The injury to the vena cava alone, if untreated, would have resulted in death.

Sinha testified that Laurana had an approximate one-inch-round abrasion on the right side of her forehead. Her neck was fractured at C-1 and C-2 with a partial transection of her spinal cord. The neck fracture was "telescopic, " at the base of her skull, with protrusion of fragments of her C-1 and C-2 vertebrae. The base of her skull was also extensively fractured with related brain hemorrhage. Her brain had diffuse edema with laceration to the ventral aspect of the right temporal and occipital regions. Laurana's cause of death was severe head and neck injuries.

Officer Sean MacBean, a senior investigator for the Department's traffic bureau, examined the scene for purposes of accident reconstruction. When he arrived, the F-150 had been pulled back a few feet away from the Tracker. It left skid marks that were straight but angled towards the shoulder of the road, but no tire marks. MacBean opined that Melissa had probably taken her foot off the gas pedal before the collision, but had not applied her brakes. Melissa's seat belt was cut, while Eric's seat belt was wedged in the wreckage, meaning it had not been worn. According to MacBean, nothing mechanical caused the crash and no defects in the road contributed to the accident.

Plaintiff's expert, Byron Bloch, testified regarding alternative design features he contended would have made the Geo Tracker crashworthy. He opined that the 2300-pound, 60-inch Tracker should have been designed to safely accommodate a crash involving a much larger or "mismatched" vehicle such as Fernandes's 4300-pound Ford F-150 pick-up truck. Bloch attributed the F-150's intrusion into the Tracker to a maximum depth of nearly twenty-seven inches, measured at the Tracker's passenger door window sill, to design deficiencies. In his opinion, had the Tracker design been crashworthy, all members of the Vogel family would have survived.

The six defects which Bloch said could have been easily remedied, were as follows: (1) the Tracker's frame was too far inboard; (2) the Tracker's hollow rocker section should have been reinforced with either an internal steel baffle or injectable urethane foam; (3) the door beams were inadequate and required a connection with an equivalent structure running the remaining length of each side of the Tracker in order to function as a unit; (4) hole cut-outs in both rear quarter panels, located next to the rear passenger seats, weakened the panel and allowed deep penetration by the F150; (5) an additional beam in the rear quarter panel would have strengthened the sides of the vehicle; and (6) the Tracker lacked energy-absorbing padding on the interior surfaces of the roof side rail and the B pillar, which would have helped reduce head and chest trauma.

Bloch contended his alternative design modifications would have deflected the F-150 from overriding the Tracker. During his testimony, however, he conceded that he did not know the actual strength of the steel comprising the tubular door beams, and that he did not measure the exact depth of the irregular intrusion at the right rear quarter panel. Furthermore, he did not consult the Department of Transportation's extensive data base of accidents in order to assess the relative severity of this one.

On his website, Bloch described the stiff frame rails sitting right behind the F-150's bumper as acting as "battering rams, " recommending that large SUVs and pick-up trucks incorporate more crushable front structures. The F-150 in this case did not have a blocker beam which would have lowered the frontal contact points.

Bloch had neither an engineering degree nor formal education in the field of automotive safety. After having enrolled in an engineering program at the first college he attended, he was placed on academic probation for failing a number of engineering courses; Bloch held a bachelor of arts degree from the University of California at the Los Angeles College of Applied Arts. He had never been involved in automotive design and was the sole employee and owner of a litigation consulting business. Bloch was retained almost exclusively by plaintiffs engaged in lawsuits against vehicle manufacturers. While testifying, he was unable to identify Newton's three basic laws of physics.

Defendant's crash-worthiness expert, Joseph Rice, a mechanical engineer employed as an automotive safety consultant, held a master's of science and doctorate degree in mechanics. He had taught engineering courses, and worked at GM between 1978 and 2000. While Rice worked at Fisher Body, a division of GM, he was a member of a side impact task force charged with studying the effect of side impacts on a vehicle's side structures. Rice retired from GM in 2000 from the "Engineering Analysis" Division, serving as one of two managers during his last five years.

Rice opined that the alternative designs proposed by Bloch would not have reduced the magnitude of the deformation of the Tracker's structures under the circumstances of this very severe accident, giving contrary testimony on each point. He was of the view that the baffle design proposed by Bloch was incapable of attachment inside the rocker. The polyurethane foam Bloch suggested to stiffen the rocker had several drawbacks, including that when burned, it emitted dangerous chlorine gas, thereby preventing structural repairs that required welding. Rice said that the Tracker's steel rocker simply did not need reinforcement because, although hollow, it had considerable strength allowing for the off-road use expected of a small SUV. Extending the frame outboard would not have changed the outcome of this collision because the Ford F-150 would have still have overridden the Tracker frame.

Rice also testified that nearly all door beams in current vehicles employ a tubular design, as opposed to Bloch's suggested guardrail design, because they had, among other things, greater strength. Since the vehicles in this accident were virtually co-linear at point of impact, the structure of the door beam would have made little difference in any event. Rice disputed whether Bloch's proposed cutout redesign would add strength to the Tracker's rear quarter panels or lessen the impact of the accident, and ...

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