LEWIS GREEN et al. v. RIDGE TOOL CO.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1737-03T51737-03T5

LEWIS GREEN and SUSAN GREEN,

Plaintiffs-Respondents,

v.

THE RIDGE TOOL COMPANY,

Defendant-Appellant,

and

JERSEY CENTRAL POWER & LIGHT

COMPANY, TERRY L. LEBKICHER and

CLASS I TRANSPORT, INC.,

Defendants.

___________________________________________________

 

Argued October 31, 2005 - Decided

Before Judges A.A. Rodr guez, Alley and C.S. Fisher.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10814-99.

Joseph Di Rienzo, Jr. argued the cause for appellant (Di Rienzo & Di Rienzo, attorneys; Mr. Di Rienzo, on the brief).

Raymond T. Majewski argued the cause for respondent (John J. Sharkey, Jr., on the brief).

PER CURIAM

Defendant Ridge Tool Company (Ridge) appeals the judgment entered in favor of plaintiff Lewis Green (plaintiff), and his wife, following a trial in this product liability action. Because we agree with Ridge that the trial judge mistakenly directed a verdict as to causation on plaintiff's inadequate warning claim, and because we agree that the trial judge should have granted a mistrial once the factual version presented by plaintiff was significantly altered during trial, we reverse and remand for a new trial.

I

Plaintiff claimed he was injured while performing services for his employer, Jersey Central Power & Light Company (JCP&L). At the time, plaintiff was operating the Power Drive 700 (Ridge 700), a pipe threader designed and manufactured by Ridge. Plaintiff asserted that while operating this product he was lifted off the place where he was standing by the torque of the machine and severely injured. By way of his complaint, plaintiff alleged that the product was defectively designed because, when sold to JCP&L, the packaged product did not include a support arm; instead, the support arm was sold separately. Plaintiff also alleged that Ridge failed to adequately warn about the use of the product in certain applications without utilizing a support arm.

Following a trial, the jury rendered its verdict by responding to a series of written questions posed by the judge. The jury determined that the support arm was "a safety device"; that the Ridge 700 was not reasonably fit, suitable or safe for its intended purpose because the support arm was sold separately; and that the warnings or instructions provided by Ridge were not adequate. The jury also found that Ridge's failure to include the support arm as part of the sale of the Ridge 700 was not a proximate cause of the accident. Nevertheless, the trial judge entered judgment in favor of plaintiffs and against Ridge in the amount of $325,000 in compensatory damages, because he had previously directed a verdict in plaintiff's favor on the issue of causation on the inadequate warning claim.

Ridge appealed, arguing among other things that the trial judge erred (1) by directing a verdict which concluded that if Ridge's warnings were inadequate they proximately caused plaintiff's injuries, (2) by refusing to enter judgment in Ridge's favor based upon the jury's finding that the absence of a support arm did not proximately cause plaintiff's injuries, and (3) by failing to grant a mistrial when plaintiff's expert provided an opinion as to the manner in which the accident occurred that was at odds with plaintiff's testimony, and which was not set forth in any expert report. We agree that the trial judge mistakenly granted a directed verdict against Ridge and that he also erroneously denied Ridge's application for a mistrial. We do not agree with Ridge, however, that the jury verdict, which was rendered, required the entry of judgment in Ridge's favor, in part, because the same reasons that compel our determination regarding the denial of Ridge's application for a mistrial engender a lack of confidence about all the results of the trial. For these reasons, we reverse and remand for a new trial.

II

On May 2, 1994, plaintiff and a co-worker were assigned by George Zaborney, the plant foreman supervisor, to cut and remove a portion of a pipe to facilitate the replacement of an air compression system. Zaborney directed plaintiff to the pipe in question and told him to cut out an approximate two-foot section and then weld fittings and a valve to allow high pressure air to run through the pipe to the new compression system. The two-inch pipe was at ceiling level, about twenty feet above the floor.

The pipe was also in a confined area. As a result, plaintiff dropped the "hangers" holding the pipe in place and used a chain fall, or hoist, to move the pipe down and approximately ten-to-twelve inches away from the other pipes in that area. Plaintiff then positioned the pipe tightly in the hanger and used a saw to cut out a two-foot section. He discovered that the pipe was copper and not a ferrous metal as had been assumed.

Plaintiff showed the cut section of the pipe to Zaborney, who conferred with JCP&L's engineers as to how to connect the fittings. Upon learning that the pipe had to be threaded, not welded, plaintiff asked Zaborney if he could use a manual threader. Plaintiff, a union shop steward, admitted that if he had insisted on using a manual threader for safety reasons, the union would have supported his decision and JCP&L would not have attempted to countermand him.

Zaborney rejected plaintiff's request and told him to use "the mule," JCP&L mechanics' term for the Ridge 700, a multi-use power tool that could be used to thread pipes, explaining that they needed "real good threads" on the pipe to prevent leaks. Although he had never before used the Ridge 700, plaintiff complied with Zaborney's direction without question. The Ridge 700 was retrieved from the electric shop. According to plaintiff, Zaborney then lifted the tool out of the metal box, which also contained various dies, but not a safety manual or support arm, and demonstrated how to use it. Zaborney, who had shortly before the accident purchased the Ridge 700 on JCP&L's behalf, testified that he had not purchased a support arm or "hold down" and, thus, such an accessory would not have been included in the tool box. However, on cross-examination, Zaborney conceded he had purchased a Ridge 700 "kit," which he had previously testified during depositions had included a support arm.

Plaintiff testified that Zaborney explained that the Ridge 700 worked the same way as a manual threader, except that it had a motor. Plaintiff, who claimed he could only read and write at a very basic level, testified that he recognized the words "warning" and "owner's manual" on the tool, but did not ask to review the manual even though he knew JCP&L kept copies of manuals in a filing cabinet. The tool contained a pictorial warning regarding electrocution -- depicting a plug, and raindrops in a circle with a slash through it. The tool also contained an "alert symbol," the word "warning" and the following message: "Clothing/gloves can be caught in moving part. Read operator's manual."

The manual provided the following information under the heading "Safety Information":

The operator's manual contains safety information and instructions for your protection against serious injury including:

Loss of fingers, hands, arms or other body parts if clothing or gloves get caught in moving parts;

Shock, electrocution or burns from contact with wires, motor or other power drive parts;

Impact injuries, including broken bones if machine tips over or workpiece falls.

Eye injuries, including being blinded by throw workpiece or workpiece chips.

Under the heading "Switch Safety," the manual provided:

The momentary contact switch is for your safety. It lets you shut-off the motor by removing your finger. If clothing should become caught in the machine, it will continue to wind up. Because the machine has high torque, the clothing itself can bind around your arm or other body parts with enough force to crush or break bones.

The manual also referred to the support arm. Notably, in a box captioned "Warning," the manual instructed operators to "[u]se support arm." Also, under the heading "Machine Safety," the manual provided in relevant part:

1. Machine is made to thread and cut pipe or bolt. Follow instructions in operator's manual on machine uses. Other uses may increase risk of injury.

2. Secure power drive using No. 775 Support Arm. . . .

And lastly, as relevant to the circumstances in question, under the heading "Operating Instructions," the manual warned in bold letters that "[w]hen threading pipe 1 inch or larger, the No. 775 Support Arm should be used and securely locked on pipe because of torque developed during threading," and set forth two drawings showing the support arm in use.

Instead of consulting the manual, plaintiff relied on Zaborney's instructions and did not challenge Zaborney's recommendation to use the Ridge 700. In his own words, there was "nothing [Ridge] could have put onto the product that would have caused [him] to act in any different way than [Zaborney] told [him] to act." Instead, he just "went and did the job."

After mounting the scaffold needed to reach the pipe, plaintiff first oiled the pipe and then lifted the Ridge 700 to about eye-level. Gripping the tool with both hands, plaintiff placed the die head over one end of the pipe. He threaded the pipe by completing a full rotation of the die head, backed off the die head, removed the die head from the pipe, re-oiled the pipe, and continued that process. The Ridge 700 cuts a single thread for each rotation of the die head, so apparently plaintiff completed several rotations. While threading that end of the pipe plaintiff said he felt the torque generated by the power drive pulling away from him. Plaintiff then went to the other end of the pipe and began threading it, using the same process.

With regard to this other end of the pipe, plaintiff testifed that he felt the torque "pulling up" while he was winding the thread in a "[c]lockwise" direction. Plaintiff further explained during cross-examination that he had been threading the left-hand section of the pipe when the accident occurred:

Q. You're cutting this portion of the pipe to your left. That's what you're putting the threads on, am I correct?

A. The left side, correct.

Q. [S]o there's no confusion . . . [y]ou were cutting the piece of pipe closest to the other end of the plant and you were standing in a position where that was to the left of your body, correct?

A. Correct. Right.

Q. [A]nd you were putting a right hand thread on that pipe, am I correct?

A. Right.

Q. And a right hand thread in order to cut that pipe would rotate the cutter in this direction which is clockwise as you look at . . . the opening of the pipe.

A. Right.

Plaintiff explained at trial that, after completing two full rotations, he began cutting the third thread, when suddenly "the pipe just lifted up and jerked [him] like a slingshot and snapped [his] back." Plaintiff, who then weighed approximately 200 pounds, claimed he was lifted off the ground approximately a foot-and-a-half to two feet by the force, and that his hands were "smashed" against the ceiling. Plaintiff said he understood that if the Ridge 700 became jammed it would produce torque, but had not known "it would be that much torque." Plaintiff testified that he felt as if "someone had stabbed [him] in the back with a knife and dropped [him] to [his] knees, and . . . kicked [him] in the groin."

The above generally sets forth plaintiff's explanation of what occurred to him while using the Ridge 700. Ridge, however, throughout the presentation of plaintiff's proofs, raised questions as to the accuracy of plaintiff's contentions about how the incident occurred. Eventually, on the sixth day of trial -- during the redirect examination of his expert -- plaintiff's version suddenly took a 180 turn, and, through his expert's testimony, plaintiff attempted to demonstrate that he was actually threading the other side of the pipe because, otherwise, if plaintiff was actually threading the pipe as he described, the torque would have forced plaintiff toward the ground, not toward the ceiling.

We will eventually discuss the significance of this about-face in the presentation of plaintiff's proofs, see Section VI, infra, but we first turn to the question of whether the trial judge correctly directed a verdict in plaintiff's favor on his claim that, if Ridge provided inadequate warnings, such a failure proximately caused this accident.

III

At the close of all the evidence Ridge, and not plaintiff, moved for judgment pursuant to R. 4:40-1. With regard to the failure-to-warn claim, the trial judge first found there was "a genuine issue of material fact" as to whether "there was an adequate warning and whether or not a better warning should have been provided to the user of the tool." Thus, that question was eventually submitted to the jury.

However, with regard to the causation element of the failure-to-warn claim, the trial judge determined that plaintiff had established this element as a matter of law, and directed a verdict on this limited issue. The judge explained there is a presumption under New Jersey law that a user of a product will follow or heed warnings, and that although Ridge presented some evidence to overcome that presumption, ultimately the judge was persuaded by plaintiff's testimony that even if there "had been a proper warning on the tool," he would "not have heeded it," but instead would have followed his supervisor's instructions. We conclude that an assumption of the truth of the evidence supportive of Ridge's position, and the giving to Ridge the benefit of all legitimate inferences, no verdict should have been directed on this issue.

A

Despite the fact-sensitive nature of this dispute, the judge found that because this was a work-related accident, the heeding presumption was applicable to both plaintiff as an employee and JCP&L as an employer, and determined that Ridge failed to present evidence which would overcome the heeding presumption as to JCP&L, explaining that

[t]here is absolutely no evidence before this [c]ourt that the employer in this case would not have heeded a warning if a proper warning had been on the tool.

The testimony from the witnesses that were presented would seem to indicate, and the inferences should be drawn that JCP&L, the employer in this matter, was very concerned about safety. They had a Safety Committee, they had a Safety Person, and therefore, probably would have heeded any warnings as to safety-related issue[s].

I am being, in effect, asked to presume that even if a proper warning had been given to the employer that the employer would not have passed on that information to the employee. And I certainly am in no position to presume that. There has to be evidence from which I can decide or determine that even if a proper warning had been given to the employer that the employer would not have followed that warning and would not have advised the employee on the proper use of the tool and, of course, in this particular case, the use of this support arm, which could have prevented the happening of this accident.

. . . .

In this case, the [p]laintiff admitted that he would not follow the warning if he had been instructed otherwise by his supervisor. There's an issue as to whether there was any warning on the tool. But, more importantly, there is no evidence that this employer would not have complied with their duty and would not have advised Mr. Green appropriately under the circumstances as to the proper use of this tool had they been properly warned.

Therefore, with respect to causation, this [c]ourt will direct a verdict for the [p]laintiff as to causation because the heeding presumption is in effect.

In deciding a motion for judgment pursuant to R. 4:40-1, a trial judge must accept as true all the evidence which supports the position of the non-moving party, and must give the non-moving party the benefit of all legitimate inferences. If reasonable minds could differ, the motion must be denied. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005); Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Lewis v. American Cyanamid Co., 155 N.J. 544, 567 (1998). The purpose of this test is to insure that the jury and not the judge resolves disputed factual matters. Lewis, supra, 155 N.J. at 567. In reviewing such determinations, appellate courts apply the same standard. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003); Baliko v. Int'l Union of Operating Eng'rs, 322 N.J. Super. 261, 272-73 (App. Div.), certif. denied, 162 N.J. 199 (1999).

N.J.S.A. 2A:58C-2(b) provides 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 . . . failed to contain adequate warnings or instructions. . . .

And N.J.S.A. 2A:58C-4 provides in relevant part:

In any product liability action the manufacturer or seller shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used. . . .

In a design defect case, "the duty to warn is premised on the notion that a product is defective absent an adequate warning for [foreseeable] users that 'the product can potentially cause injury.'" Clark v. Safety-Kleen Corp., 179 N.J. 318, 336 (2004) (quoting Coffman v. Keene Corp., 133 N.J. 581, 593-94 (1993)). Thus, "[a] failure to warn, or a failure to warn properly, can constitute a defect in a product sufficient to support an action in strict liability." Becker v. Baron Bros., Coliseum Auto Parts, Inc., 138 N.J. 145, 151-52 (1994).

The elements for proving a product defect are essentially the same for both a design defect and a failure-to-warn claim. Jurado v. Western Gear Works, 131 N.J. 375, 385 (1993). A plaintiff must prove that (1) the product was defective; (2) the defect existed when the product left the defendant's control; and (3) the defect caused injury to a reasonably foreseeable user. Coffman, supra, 133 N.J. at 593. "A failure to warn, or a failure to warn adequately, may constitute a defect in a product sufficient to support a cause of action in strict liability." Zaza v. Marquess & Nell, Inc., 144 N.J. 34, 57 (1996). Thus, in a failure-to-warn case, "the defect is in the failure to warn unsuspecting users that the product can potentially cause injury." Ibid.

Causation is "a fundamental requisite" in product liability actions and a plaintiff must demonstrate that "the defect in the product was a proximate cause of the injury." Coffman, supra, 133 N.J. at 594. "When the alleged defect is the failure to provide warnings, a plaintiff is required to prove that the absence of a warning was a proximate cause of his harm." Ibid. Ordinarily, such a question is reserved for the jury's consideration. Shelcusky v. Garjulio, 172 N.J. 185, 206 (2002) (Verniero, J., concurring in part, dissenting in part).

However, to reinforce the duty to provide necessary warnings, our courts have applied a rebuttable "heeding presumption" that the plaintiff would have followed an adequate warning if provided. James v. Bessemer Processing Co., Inc., 155 N.J. 279, 297 (1998); Coffman, supra, 133 N.J. at 603; Sharpe v. Bestop, Inc., 314 N.J. Super. 54, 68 (App. Div. 1998), aff'd o.b., 158 N.J. 329 (1999); Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445, 460 (App. Div.), certif. denied, 134 N.J. 566 (1993). As a result, "the burden on a plaintiff to establish product-defect causation in the failure-to-warn context is not an onerous one." James, supra, 155 N.J. at 297.

In order to rebut that presumption, the defendant must produce evidence sufficient to demonstrate that a warning would have been disregarded if provided. Coffman, supra, 133 N.J. at 603; Theer v. Philip Carey Co., 133 N.J. 610, 614 (1993). There are two recognized methods by which a defendant can rebut the heeding presumption, namely: (1) a defendant can offer evidence concerning the plaintiff's knowledge of the risk that the absent warning was supposed to address; and (2) a defendant can introduce evidence of a plaintiff's attitude and conduct apart from knowledge of the product's risk, demonstrating an indifference to safety warnings. Coffman, supra, 133 N.J. at 603-04; Theer, supra, 133 N.J. at 621; Sharpe, supra, 314 N.J. Super. at 74. "The burden of coming forward with evidence to rebut the presumption is on the defendant, but the burden of proof never shifts from the plaintiff." Graves, supra, 267 N.J. Super. at 460.

If the heeding presumption is not rebutted, the failure to warn is presumed to have been the proximate cause of the plaintiff's injuries, and the issue of proximate cause need not be submitted to the jury. Coffman, supra, 133 N.J. at 595; Facendo v. S.M.S. Concast, Inc., 286 N.J. Super. 575, 585 (App. Div. 1996). However, if "the defendant presents rebuttal evidence such that reasonable minds could differ as to whether the warning, if given, would have been heeded by the plaintiff, the defendant has satisfied its burden of production and the plaintiff loses the benefit of the presumption." Sharpe, supra, 314 N.J. Super. at 69. "The plaintiff must then carry the burden of persuasion as to proximate cause." Ibid.

B

In considering the application of these principles to the matter at hand, we observe that Ridge claims the heeding presumption is only applicable to cases where a defendant failed to provide any warnings, and not to an inadequate-warning case such as here, where it is undisputed that the defendant supplied some warnings. In support of its argument, Ridge relies upon Coffman, where the Court explained that in "a failure-to-warn case, the alleged product defect is not a flaw in the structure or design of the product itself [but is represented by] the absence of a warning to unsuspecting users that the product can potentially cause injury." 133 N.J. at 593-94 (emphasis added). Based on this language, Ridge asserts in its brief that the heeding presumption was created by the Court "for those cases where no warning is supplied, not cases where plaintiffs challenge the adequacy of a warning that is supplied."

It is true, as Ridge argues, that Coffman was a failure-to-warn case, and not an inadequate-warning case. Id. at 592. However, in Sharpe we specifically held that "the heeding presumption applied to all failure to warn and inadequate warning cases. . . ." 314 N.J. Super. at 68 (emphasis added). See also House v. Armour of Am., Inc. 886 P.2d 542, 552 (Utah Ct. App. 1994), aff'd, 929 P.2d 340 (Utah 1996). But see Karin L. Bohmholdt, The Heeding Presumption and Its Application: Distinguishing No Warning From Inadequate Warning, 37 Loy. L.A. L.Rev. 461 (2003). We need not resolve Ridge's argument about the scope of the heeding presumption's application because we are satisfied that there was evidence in the record to rebut the heeding presumption, which militated against the entry of a directed verdict.

We recognize that in an employment setting, such as here, the heeding presumption is applicable to both employers and their employees. James, supra, 155 N.J. at 298; Coffman, supra, 133 N.J. at 607; Theer, supra, 133 N.J. at 622; Facendo, supra, 286 N.J. Super. at 585. To overcome the heeding presumption in a case involving a product used in the workplace,

the manufacturer must prove that had an adequate warning been provided, the plaintiff-employee with meaningful choice would not have heeded the warning. Alternatively, to overcome the heeding presumption, the manufacturer must show that had an adequate warning been provided, the employer itself would not have heeded the warning by taking reasonable precautions for the safety of its employees and would not have allowed its employees to take measures to avoid or minimize the harm from their use or exposure to the dangerous product.

[Coffman, supra, 133 N.J. at 609.]

The record reveals that Ridge adduced evidence to support its contentions that both plaintiff and JCP&L would not have heeded an adequate warning.

Plaintiff testified that JCP&L retained instruction manuals for the equipment utilized by its employees which were maintained in a cabinet and available for consultation. His testimony and other evidence in the record could have supported a finding that plaintiff consciously chose not to consult the manual. Indeed, we observe that plaintiff was the union's shop steward and acknowledged that if he was concerned about any task that he was asked to perform by JCP&L or the manner in which he was directed to perform it, he had a meaningful right to refuse. See, e.g., Facendo, supra, 286 N.J. Super. at 586 (concluding that an issue of fact was presented as to whether plaintiff, who had knowledge of the danger of explosions, had a meaningful choice where the plaintiff's employer provided a procedure whereby a worker could transfer to another department if he did not feel safe). Plaintiff also testified that it did not matter to him what warnings were placed on the Ridge 700 or contained in Ridge's instruction manual because he would have complied with his superior's directions as to the product's use.

In addition, the very manner in which plaintiff described how he was directed by his supervisor regarding the use of the product also provided sufficient evidence that warranted a consideration by the jury, and not a conclusion by the judge, as to whether JCP&L would have heeded an adequate warning. Indeed, we note that in considering whether to grant a directed verdict, the trial judge mistakenly provided plaintiff -- and not Ridge -- with the benefit of inferences that could be drawn from the evidence. The judge, for example, observed that "[t]he testimony of the witnesses . . . would seem to indicate, and the inferences should be drawn that JCP&L . . . was very concerned about safety." In fact, R. 4:40-1 required that the judge infer, as Ridge argued, that JCP&L was not sufficiently concerned about safety and would not have heeded Ridge's warnings because, among other things, plaintiff was provided with this tool by his supervisor without also being provided with the instruction manual or with directions as to what was contained within the instruction manual.

Accordingly, when accepting the truth of the evidence that supported Ridge's position, and when further providing Ridge with the legitimate inferences that flow from that evidence -- as R. 4:40-1 required -- we conclude that the trial judge should have held that Ridge had sufficiently rebutted the heeding presumption and that the issue should have been submitted to the jury. As a result, we conclude that the trial judge mistakenly granted a directed verdict.

Since we have determined that the jury and not the judge should have resolved this dispute, we need not reach Ridge's additional argument that the trial judge abridged its due process rights by directing a verdict that plaintiff never sought.

IV

The responses to the interrogatory provided by the judge for the deliverance of its verdict contained the jury's findings that the "support arm is a safety device," that the Ridge 700 was "not reasonably fit, suitable, and safe for its intended purpose because the support arm (safety device) was sold separately," and that the warnings or instructions provided by Ridge were not adequate. However, the jury also found that "the failure to sell the support arm (safety device) as standard equipment with the Ridge 700 power drive" was not "a proximate cause of the accident." Ridge argues that the entry of a judgment in favor of plaintiff was erroneous because the jury did not find that the alleged inadequate warnings or the unfitness of the product proximately caused plaintiff's injuries. We agree with Ridge's contention that the mere finding of a defect of any sort is not sufficient to support a judgment in plaintiff's favor and that a finding of proximate cause was integral in the sustaining of plaintiff's claims. Notwithstanding this, the trial judge allowed the jury to consider the adequacies of the warnings given by Ridge but directed a verdict on the issue of causation should the jury happen to conclude that the warnings were inadequate. We have concluded that the issue of causation, insofar as it relates to the allegedly defective warnings, should also have been determined by the jury and the direction of a verdict in that regard requires a new trial. But it does not follow that, because the jury found a lack of causation with regard to the support arm, the jury would also have found a lack of causation with regard to the alleged inadequate warnings. Thus, we reject Ridge's argument that the jury's causation verdict regarding the lack of a support arm should require the entry of a judgment in Ridge's favor on all plaintiff's theories.

In addition, for reasons we hereafter discuss, the late change in plaintiff's version of the occurrence disadvantaged Ridge and had the capacity to confuse the jury's consideration of the issues.

VI

The record reveals that Ridge based its defense against this claim, in part, on its contention that plaintiff's factual version of what occurred was not physically possible. That is, Ridge was prepared to defend the case on a contention that if plaintiff was threading the pipe with the Ridge 700 exactly as he described that the torque could not have lifted him in the direction plaintiff claimed but, in fact, in the exact opposite direction -- instead of pulling plaintiff toward the ceiling, the torque would have pushed plaintiff toward the floor.

During the lengthy discovery period in this matter, plaintiff provided varying statements as to how the incident occurred in his answers to interrogatories and his three depositions. Plaintiff repeatedly asserted in pretrial discovery and at trial, however, that he was threading a pipe to his left in a clockwise direction. As a result, Ridge defended the claim not only on the basis of the law of products liability but also on the laws of physics, i.e., that the torque generated by a jam in the process of threading a pipe in such a direction would be downward, not upward.

That Ridge viewed plaintiff's version of the accident as physically impossible was no secret to plaintiff and his representatives. In 1998, Ridge provided plaintiff's representatives with an expert report that stated "the accident could not have occurred in the manner described by Mr. Green or [his attorney]." In addition, defense counsel asserted in his opening statement to the jury that plaintiff's description of how the accident occurred did not comport with the "physical evidence" and "doesn't make sense." Notwithstanding, plaintiff made no alterations in his approach to the presentation of his own case. His factual version, which varied from time-to-time in other respects, persisted in the contention that plaintiff was making a right-hand thread on a pipe to his left. In addition, Harry Ehrlick, plaintiff's expert, continued to base his opinions about the alleged defects in the Ridge 700, and how they proximately caused plaintiff's injuries, on the assumption of the truth of plaintiff's version, even though Ridge had asserted that plaintiff's version defied the laws of physics.

Plaintiff was repeatedly required to adjust his prior factual statements when confronted with the logic of the questions and propositions posed by defense counsel during cross-examination. Ultimately, however, plaintiff did not deviate from his contention that he was working on the pipe to his left and was cutting a right-hand thread. This provided a basis for Ridge's defense that the accident, as described, could not possibly have occurred as plaintiff asserted because the torque would have forced plaintiff in the exact opposite direction from what he alleged. This was demonstrated during plaintiff's testimony through the use of a diagram (DR-106) which plaintiff, in essence, adopted as a depiction of what he was doing when the accident occurred.

Ridge's persistence about the physical impossibility of plaintiff's version of the facts finally had an impact on the presentation of plaintiff's proofs on the sixth day of trial. The following portion of defense counsel's cross-examination of Ehrlick demonstrates that Ehrlick was eventually put in a position where he had to agree that plaintiff's version of the facts could not possibly be true:

Q. . . . And do we agree, sir, that if I place this diagram [DR-106] in this orientation, and I was cutting a thread on the pipe to my left, in the clockwise direction shown, so that I'm putting a right-hand thread on that pipe, if there were a jam the machine would go down, and not up?

A. In that particular orientation, and in that instance --

Q. And are you aware, sir, that Mr. Green has testified in this courtroom that he was threading the pipe to his left, creating a right-hand thread, rotating the die in the direction shown on that drawing [DR-106]? Are you aware that that is what he has testified to, sir?

A. I believe so.

Q. So, if that version that he testified to is true, the machine would have gone down and not up, can we agree?

A. We agree, but that's not what happened.

A lunch break followed these questions and answers.

Soon after the lunch break, Ehrlick testified, in response to plaintiff's counsel's redirect examination, that the accident could not have happened as plaintiff testified:

Q. And do you recall what the questions [during cross-examination] were concerning [DR-106] as far as the rotation as while it was cutting the pipe or turning the pipe?

A. Yes, I recall that.

Q. And that was for -- that was a right-handed thread being made?

A. Yes.

Q. On the left side of the pipe -- left side of Mr. --

A. In this particular illustration [DR-106] the pipe is to Mr. Green's left. The absent space is to his right. He's threading, as you're looking at me, in a clockwise direction on that illustration, and the tool has a tendency, at that point, to move down in the opposite direction of the threading.

This testimony was in accord with what Ehrlick had testified to at the conclusion of cross-examination, but then he was asked to testify to a contrary -- indeed, direct opposite -- occurrence from what plaintiff had testified to:

Q. The question is, if that pipe threader was being used on the right side of him, threading the pipe what would be the rotation of the die at that point?

A. Upwards.

. . . .

Q. And what would happen to the tool if it jammed?

A. The tool would go upwards.

During re-cross examination, defense counsel demonstrated how Ehrlick's reconstruction of the occurrence was at odds with plaintiff's version:

Q. You read Mr. Green's deposition, correct?

A. Yes.

Q. Didn't he say, specifically, at Page 69, at Line 9 that he was cutting the thread from his right toward his left?

A. From his right towards his left, yes.

Q. And that's what the diagram we marked as DR-106 shows, am I correct?

A. Yes, that diagram shows the way he answered the question, yes.

Q. And if he stood in this courtroom, and I stood here and asked him a question and said, so, if you were cutting the pipe to your left, and you were creating a right-hand thread, so the rotation of the pipe was . . . clockwise as you're looking into the end of the pipe, that's how you're claiming the accident happened, and his answer was yes. That would be consistent with his deposition and this drawing [DR-106], wouldn't it?

A. That's his claim, yes.

. . . .

Q. . . . I'm asking you if you have any statement from [plaintiff] that says that he was cutting to his right?

A. No.

As Ridge forcefully but unsuccessfully argued to the trial judge, Ehrlick's last-minute testimony -- offered without any factual support -- constituted a complete reversal of plaintiff's version of how the accident occurred. Ridge moved to strike Ehrlick's accident reconstruction opinion and, also, in the alternative, requested a mistrial because the factual basis, as well as the expert opinion offered in support, had turned 180 from where it had been throughout many years of pretrial discovery and, indeed, throughout the trial:

MR. DiRIENZO: Your Honor, my first application is to strike the . . . opinion given by Mr. Ehrlick in his redirect testimony concerning the fashion in which the accident occurred. I base that on two theories. First, that it's legal surprise. He had never previously expressed that opinion in . . . pretrial discovery, and I was not put on --

THE COURT: Which opinion is that, counselor?

MR. DiRIENZO: That Mr. Green was not cutting the pipe in the place and direction he told us he had been doing, and that, in fact, he was standing some place else or cutting some other pipe. That is what --

THE COURT: The basis of that is?

MR. DiRIENZO: It wasn't part of the pretrial discovery. If [Ehrlick's reconstruction of how the accident occurred is not stricken], then I ask for a mistrial, because I could not possibly have anticipated this new opinion over lunch, after cross examination for several hours . . . . [T]hat opinion wherein he rejects the testimony of plaintiff and comes up with a whole new set of facts of how the accident occurred is something he never expressed.

We conclude that Ridge's position on this point was well taken and should have compelled the trial judge to grant a mistrial.

The trial judge, however, denied the motion for a mistrial. He concluded that Ridge was free to argue the inconsistencies in plaintiff's factual presentation to the jury, but that the wholesale change in the presentation of plaintiff's version of the incident through an expert's freshly-minted opinion did not warrant a new trial. Of course it is true that plaintiff's "flip-flop" provided Ridge with significant leverage in challenging both plaintiff's credibility as well as the credibility or persuasiveness of his expert, but we agree with Ridge that what occurred here too significantly altered the manner in which the case was presented to the jury and allowed plaintiff to present a case different from that which Ridge had a right to anticipate. That sudden change in plaintiff's factual claim warranted the ordering of a mistrial. Lynch v. Galler Seven-Up Pre-Mix Corp., 74 N.J. 146, 151 (1977).

A trial is a search for the truth. McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370 (2001); Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 467 (1998) (Pollock, J., concurring). For a trial to be sufficiently searching so as to legitimize its role as a truth-seeking device for the resolution of legal disputes, a party requires and is entitled to honest, complete and timely responses to requests for discovery, and is entitled to expect that material disclosures provided in discovery will remain substantially unchanged when presented at trial. McKenney, supra, 167 N.J. at 371-72; Kernan, supra, 154 N.J. at 461-67. As Justice Douglas aptly stated in United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 986-87, 2 L. Ed. 2d 1077, 1082 (1958), "discovery and pretrial procedures make a trial less a game of blind man's [bluff] and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." In summarizing the point attained in the evolution of our modern civil procedures, Justice Pollock observed in his concurring opinion in Kernan that "[f]or over fifty years, courts have endeavored to transform civil litigation from a battle royal to a search for truth." 154 N.J. at 467. Viewed against these principles, we conclude that Ridge was legitimately surprised by Ehrlick's last-minute opinion as to how the accident occurred, and that this surprising evidence warranted a mistrial.

It is important to emphasize that it is not necessary to our determination that we conclude that plaintiff purposefully caused this sudden shift. The record does not suggest, nor do we discern from the record, that plaintiff, his counsel or his expert possessed a bad motive when the presentation of plaintiff's allegations made a sudden, dramatic turn late during the trial. The reasons for such a change in the presentation of the proofs are irrelevant and must not be determinative of an opponent's right to defend based upon what was provided in discovery.

We reject plaintiff's argument that because the circumstances did not suggest a willfulness in what occurred that the result should be different from those results which have attached in other cases, such as McKenney. It is not so much the mind-set of the party who suddenly departs from a material factual position during the course of trial but the fact that there was a change which unfairly and unexpectedly disarmed the opponent. Here, regardless of what the record may suggest as to the intentions of plaintiff or his representatives, a sudden change in the factual underpinnings upon which plaintiff's claim was based -- as championed by plaintiff's expert's new opinion about the details of plaintiff's accident that did not surface until his redirect examination -- unfairly hampered the defense. That circumstance transformed the trial into something less than a search for the truth, as Ridge attempted to deal with a claim that had become something of a moving target. Whether this circumstance occurred as a result of some deliberate sleight of hand orchestrated by plaintiff or his representatives over a lunch break following defense counsel's completion of his cross-examination, or accidentally evolved during the course of trial, is irrelevant. Lynch, supra, 74 N.J. at 151. As a result, we conclude that the trial judge should have granted a mistrial.

VII

On remand, the trial judge should permit a short period of discovery during which plaintiff should provide Ridge with firm and definite responses to its previous discovery requests and commit to a version of how this accident occurred. Plaintiff should also provide a new expert report and, at trial, plaintiff's expert should be confined to the content of that report. In addition, Ridge should be given an adequate time to provide any additional expert reports or other discovery that may be warranted in light of this new information.

We do not intend, in generally describing the remand proceedings warranted by these circumstances, to impose any limit on the manner and scope of the discovery required. Considering the age of this case, we direct that the trial judge take all necessary and appropriate steps to insure the completion of these discovery proceedings, and the conducting of a new trial, with all deliberate speed.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

This award consisted of $17,000 in medical expenses, $220,000 in lost wages, $60,000 in pain and suffering, and $28,000 on plaintiff Susan Green's per quod claim.

Plaintiff explained that a "hanger" is attached to a beam and then "goes over the top of the pipe so you could adjust the pipe [to] whatever height you want it, up or down."

We recognize that, at times, plaintiff provided different versions of this process. In referring to this particular version, we do not mean to convey that these facts were undisputed, nor do we find that this is what actually occurred.

The Ridge 700 in question was manufactured in 1992 and shipped to JCP&L on March 26, 1993. The tool and any accessories that may have also been sold to JCP&L at that time were lost prior to suit.

Plaintiff was thirty-six years old at the time of the accident. He had left school after completing the tenth grade. After marrying in 1976, plaintiff obtained his GED while living in Pennsylvania.

Zaborney was called to testify in this regard. He testified that he also did not review the manual, but he denied showing plaintiff how to use the Ridge 700, explaining that he was prohibited from handling the tool under the union contract. Moreover, Zaborney claimed plaintiff did not need any oversight because he was a highly-skilled mechanic.

At trial, plaintiff testified that he had gripped the Ridge 700 by placing one hand at the bottom of the tool and one hand on the holding arm. In contrast, during depositions plaintiff had indicated that he had placed both hands on the bottom of the tool. However, plaintiff also claimed at trial -- for the first time -- that his deposition testimony was flawed because he was then heavily medicated for pain.

We observe that the parties had a considerable period of time to prepare for trial. The accident in question occurred on May 2, 1994 and the action was commenced on May 2, 1996. Trial was scheduled for April 26, 1999 but, due to illness, the parties entered into a stipulation of dismissal without prejudice which contained a waiver of a defense based on the statute of limitations. On November 8, 1999, plaintiff filed a new complaint. As best as can be determined from the record on appeal, discovery remained open, pursuant to a case management order entered on January 18, 2002, until at least June 1, 2002.

Upon being presented with inconsistencies in his version during cross-examination, plaintiff finally attempted to disavow what he had stated in an earlier deposition, claiming "[w]hen I first did that deposition I was on so much medication I didn't know what I was saying there."

Plaintiff was the only person whose testimony included a first-hand account of how the accident occurred.

Indeed, we agree with the argument of defense counsel at the later renewal of his motion to strike Ehrlick's testimony that it was ironic that Ridge was not permitted to utilize the testimony of an expert because a report was served after discovery closed, but that Ehrlick was permitted to offer an opinion as to how the accident occurred -- for the first time -- during redirect examination on the sixth day of trial.

Ridge's counsel forcefully argued this point to the trial judge in seeking a mistrial: "He [Ehrlick] knew what the plaintiff said about cutting the pipe to his left, and proceeding in the fashion which the witness -- which the plaintiff described here in the courtroom. That version was before this expert at the time he wrote his report. It was before this expert at the time he gave his deposition. He . . . did not even bother to do a scientific analysis on the facts surrounding this case."

In Lynch, the Court considered a trial judge's refusal to allow plaintiff's expert to offer an opinion different from that which he originally testified to once it was realized there was no factual support for his prior opinion. The Court rejected plaintiff's efforts in this regard, concluding that "a contrary ruling by the court would have redounded to the prejudice of defendants." Id. at 151. The case at hand is different from Lynch only in that the trial judge here made the ruling which the trial judge in Lynch did not.

This, of course, would not preclude Ridge from utilizing any prior inconsistent statement by plaintiff, his expert, or anyone else during the course of the future presentation of these claims and defenses.

(continued)

(continued)

36

A-1737-03T5

March 23, 2006