GREAT NORTHERN INSURANCE COMPANY v. MARTIN SCHWARTZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0341-09T3

GREAT NORTHERN INSURANCE

COMPANY, as subrogor of

NANCY BENZEL, HELEN DIAMOND,

HERBERT & CAROLE GREENBERG,

c/o GRAMERCY BROKERS, as subrogor;

FEDERAL INSURANCE COMPANY, as

subrogor of MARION & SYLVIA

CUTLER; CHUBB INSURANCE COMPANY

OF NEW JERSEY, as subrogor of SOL

FELDMAN and ERNEST P. WERLIN; and

VIGILANT INSURANCE COMPANY, as

subrogor of SANI & SYLVIA ROTHBERG,

Plaintiffs-Respondents,

v.

MARTIN SCHWARTZ,

Defendant,

and

INVACARE CORPORATION,

Defendant-Appellant.

___________________________________________

CHUBB INSURANCE COMPANY OF NEW JERSEY,

as subrogor of Martin Schwartz,

Plaintiff-Respondent,

v.

INVACARE CORPORATION,

Defendant-Appellant,

and

AT HOME MEDICAL,

Defendant.

___________________________________________

ATLANTIC MUTUAL INSURANCE

COMPANY, a/s/o MYRON AND RUTH

ALTSCHULER and GARY STARR,

Plaintiff-Respondent,

v.

INVACARE CORPORATION,

Defendant-Appellant,

and

AT HOME MEDICAL,

Defendant.

___________________________________________

AMY HERDE,

Plaintiff-Respondent,

v.

INVACARE CORPORATION,

Defendant-Appellant,

and

AT HOME MEDICAL,

Defendant.

___________________________________________

TRAVELERS INDEMNITY COMPANY, as subrogee

of Southbridge Park, Inc.,

Plaintiff-Respondent,

v.

INVACARE CORPORATION,

Defendant-Appellant,

and

AT HOME MEDICAL,

Defendant.

_________________________________________________

June 1, 2011

 

Submitted February 1, 2011 - Decided

 

Before Judges Graves, Messano and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5819-06, L-8006-06, L-116-07, L-3676-07, and L-8499-07.

 

Sedgwick, Detert, Moran & Arnold, LLP, attorneys for appellant (Scott L. Haworth, on the brief).

 

Daly, Lamastra & Cunningham, attorneys for respondent Chubb Insurance Company of New Jersey (John E. Lamastra, on the joint brief).

 

Takvorian & Associates, LLC, attorneys for respondent Great Northern Insurance Company (Richard C. Takvorian, on the joint brief).

 

Daniel M. Brown, attorney for respondent Travelers Indemnity Company (Mr. Brown, on the joint brief).

 

White & Williams, LLP, attorneys for respondent Atlantic Mutual Insurance Company (Asima Panigrahi, on the joint brief).

PER CURIAM

Judgment was entered against defendant Invacare Corporation (Invacare) following the jury's determination that it had manufactured a defective hospital bed that proximately caused a fire resulting in death, personal injuries and property damage at an apartment building in Fort Lee. The total judgment reflected the aggregate of insurance claims paid by plaintiffs Great Northern Insurance Company (Great Northern), Federal Insurance Company (Federal), Vigilant Insurance Company (Vigilant), Atlantic Mutual Insurance Company (Atlantic Mutual), Chubb Insurance Company of New Jersey (Chubb), and Travelers Indemnity Company (Travelers) as a result of the fire, as well as damages for personal injuries suffered by plaintiff Amy Herde.

The tragic fire at issue took place on May 18, 2005 in apartment 26A, 1500 Palisades Avenue, Fort Lee, where Martin Schwartz and his daughter, Meryl, resided. In 2002 and again in 2005, Schwartz rented Invacare hospital beds from At Home Medical (At Home and, collectively, defendants), for his daughter's use. Meryl suffered from Pick's disease,1 and Herde, a home health aide, cared for her. Meryl perished in the fire, Herde suffered serious personal injuries, and other apartments in the building were extensively damaged.

In 2006 and 2007, various plaintiff insurers filed complaints against defendants seeking subrogation for claims paid to their insureds in connection with the fire. Herde also filed a complaint for damages resulting from her injuries. Defendants answered the complaints generally denying liability, and the cases were consolidated. 2

Pre-trial, defendants moved for summary judgment, or alternatively to exclude certain evidence at trial, including evidence: 1) that Invacare had recalled the electrical junction box (J-box) used on some of its hospital beds manufactured between August 1998 and October 2000; and 2) that "adverse event reports" had been filed with the United States Food and Drug Administration (the FDA) regarding fires involving Invacare hospital beds.3 The pre-trial judge, who was not the trial judge, denied defendants' summary judgment motion and reserved decision on the evidentiary issues for the trial judge.

Defendants renewed their motion in limine regarding the evidentiary issues immediately before trial. The judge denied the motion. At trial, defendants moved unsuccessfully for a directed verdict on two occasions, once, after plaintiffs' liability experts had testified, and again at the close of plaintiffs' case. The judge denied those motions.

On multiple occasions during the trial, defendants renewed their objection to the admission of evidence of the recall and adverse event reports. The judge overruled the objections. Defendants' motion for a mistrial made at the end of plaintiffs' case based upon the admission of this evidence was denied, but the judge decided to provide a limiting instruction to the jury.

The jury returned a verdict for plaintiffs against Invacare, but found no cause of action against At Home. On August 3, 2009, the judge entered an order for final judgment in the amount of $1,284,395.46 as follows: to Great Northern, Federal, Chubb, and Vigilant, $321,786.67; to Atlantic Mutual, $147,907.52; to Travelers, $411,391.49; to Chubb, $228,309.78; and to Herde, $175,000.4 This appeal followed.5

Invacare contends that the trial judge erred in not granting its motions for dismissal or judgment. Alternatively, it seeks reversal and remand for a new trial based upon the evidentiary rulings made by the judge, and an allegedly misleading and incomplete verdict sheet given to the jury.

We have considered the arguments raised in light of the record and applicable legal standards. We reverse and remand the matter for a new trial.

I.

Testimony at trial revealed that the movements of the bed used in Meryl Schwartz's bedroom were controlled by three motors mounted at the foot of the bed. The motors were in turn controlled by circuitry contained in the J-box, also mounted at the foot of the bed; a pendant control, also connected to the junction box, allowed for operation of the bed's movements. A power cord ran under the bed from the J-box to a wall outlet.

Herde testified that on the day of the fire, while she was making oatmeal in the apartment's kitchen, she smelled something burning and went to the bedroom to check on Meryl. She observed smoke and sparks coming from under the foot of the bed. Herde attempted to drag Meryl out of the apartment, but succumbed to smoke and fumes near the apartment door. In speaking to an investigating detective after the fire from her hospital bed at the St. Barnabas Medical Center burn unit, Herde reported seeing sparks coming from the wall outlets. However, Herde, who had been administered significant pain medication at the time, had no recollection of that conversation at trial.

Richard Sylvia investigated the fire on behalf of the Bergen County Prosecutor's Office. Based upon the burn patterns found at the scene, he determined that the fire originated underneath the hospital bed. Although the bed had been plugged into a wall outlet, Sylvia found no evidence that the fire originated in any of the light switches or wall outlets. Nor was anything under the bed that could have served as a source of ignition.

Silvia wrote in his official report that the fire "was ignited by an unknown source" and its cause was "undetermined." Because his function was to determine whether a crime had occurred, Silvia did not conduct an investigation into the cause of the fire. After finding no evidence of arson, and determining the fire was accidental, Silvia "back[ed] off" and left any further investigation to others employed by plaintiffs.

Kevin Dallos, Travelers' fire investigator, also concluded the cause of the fire was "undetermined." He agreed with Silvia that the fire originated in the bedroom, but he could not determine where specifically, due to the condition of the room when he performed his investigation, i.e., walls had been taken down and furniture removed.

Harry Hansen, plaintiffs' expert in fire science and cause and origin investigations, however, testified that "[c]learly the fire originated in the vicinity of the Invacare hospital bed." He "believe[d] the origin was within the bed." Hansen could not determine the precise cause of the fire, explaining that relevant investigative guidelines "set[] a very high standard on origin and cause, and basically if you cannot prove to a scientific degree what the cause of the fire is, you have to call it 'undetermined.'" He found no evidence of "any adverse electrical activity," such as arcing or shorting, which would indicate the fire originated in an electrical wire or outlet. Therefore, he eliminated those items as a cause of the fire.

Christoff Flaherty, plaintiffs' expert in electrical engineering with training in determining fire cause and origin, testified that the fire originated underneath the Invacare bed and "was caused by an electric fault in the control circuitry, the motors and/or the associated wiring" located underneath the bed. Based upon the location of the origin of the fire, the electrical components of the bed were the only possible cause. Flaherty, however, could not identify a specific malfunction or the mode of failure in the electrical components because of the damage caused by the fire and firefighting efforts.

Although there was some damage to the electrical outlet near the bed, Flaherty believed this was consistent with the outlet having been engulfed by the fire, rather than having caused it. He ruled out everything other than the Invacare bed as the cause of the fire.

John Mertens, defendants' expert in electrical systems evaluation and fire cause and origin, took issue with the quality of the investigations performed by plaintiffs' witnesses, particularly Silvia and Flaherty. He disagreed with their analyses, finding no evidence of an electrical fault in the bed. Mertens concluded there were other possible causes of the fire, including other electrical devices in the room, damaged electrical cords, and, most likely, a pinched electrical wire. Mertens opined that the cause of the fire was "undetermined." He identified the area of the fire's origin as being:

[B]etween the wall outlet . . . all the way to the . . . front of the bed where the wall sconces are in the wall above it because you can have material drop down below it. . . . I had to include the dresser because of the device on top of it plus the cord going from this outlet to that device can also be pinched under the dresser.

 

And then I included underneath the bed all the way to the controller and the motors.

 

In Mertens' opinion, it was impossible to more specifically identify the area of origin.

In addition to the expert testimony, plaintiffs called David Ferguson, the director of operations for A.H.S. Investment Corporation, the parent of At Home, as a witness. In August 2001, Invacare advised At Home by letter that some of its electric beds "manufactured from August 1998 through October 2000" contained "[a] component inside the [J-box] . . . [that] could fail and . . . cause the . . . box to overheat." The recall notice contained the serial numbers of the affected beds and J-boxes. Invacare advised At Home of the number of "foot spring[s]," i.e., foot boards, and J-boxes in At Home's inventory, and noted "on hand inventory should be inspected immediately and replacements made where applicable."

Ferguson testified that the company took steps to comply with Invacare's recall. He ordered a total of 239 replacement units, which was the number of affected beds identified by Invacare, and he advised staff to "verify each bed that is on [sic] our on hand inventory and implement the upgrade if appropriate." However, since the company did not "track [its] bed inventory by serial numbers," Ferguson concluded that "the most efficient way to comply with th[e] recall [wa]s to verify the serial number[s] and implement the upgrade . . . when the bed[s] [were] returned from a patient, but before the unit[s] [were] returned to inventory." At Home also directly advised patients with Invacare beds of the recall.

Ferguson further testified that "all 239 [replacements] were utilized." Moreover, since the bed in question was delivered to Schwartz in 2002, a full year after the recall, Ferguson testified that it "would [have] been inspected prior to being delivered." However, Ferguson acknowledged that At Home did not keep specific records of its actions regarding the recall, and that, in its everyday operations, At Home interchanged the component parts of the bed freely and as necessary to repair or replace beds in its inventory.

Plaintiffs also called Ronald Clines, Invacare's director of regulatory affairs, as a witness. Clines testified that the Schwartz bed had been manufactured before May 1998 and would not have been subject to the recall. He further testified that based upon his examination of the remains of Meryl's bed, and his knowledge of the different models of Invacare beds, "[t]here's no possibility that the recall[ed] [J]-box was on the bed." Clines noted that the recalled J-box models would not fit on the mounting bolts on the foot spring of the Schwartz bed, and were not compatible with the motors on the bed.6 Thus, the bed would not have functioned if a recalled J-box had been attached to it.

Plaintiffs, however, challenged Clines' credibility, in part, through the adverse event reports. On direct examination, the following exchange took place:

Q. And in 2001 . . . , Invacare initiated a recall. Is that correct?

A. That's correct.

. . . .

Q. Do you recall at deposition I asked you what led to the implementation of the recall?

A. Correct.

Q. And what did you testify?

A. Basically Invacare became aware of an issue of the product that they manufactured during that time frame. Involving an electronic component within the controller. It's referred to [as] the J[-]Box or the bed controller. That . . . in certain circumstances the device would malfunction with -- with potential for . . . overheating and . . . potential fire event.

 

Q. Other than that one event were there any other events prior to the event that you just described where there were allegations of the junction box or motors causing the fire?

 

A. Well, I don't think I described a particular event. You asked . . . what we had told the F.D.A.

 

Q. . . . . Were there any allegations or claims made that an Invacare bed caused a fire, other than one incident, you said, that led to the recall?

 

A. Well, there was -- as I said there was one incident that we notified the F.D.A. about during our notification to them, regarding the -- the recall.

 

Q. Again was there any other incidents that you're aware of, complaints about Invacare beds causing fires other than the one that you say you reported?

 

A. At that point in time, no.

Plaintiffs' counsel then presented Clines with twenty FDA adverse event reports relating to fires involving Invacare beds, questioned him about his failure to mention these incidents at his deposition, and probed him regarding detailed information contained in several of the reports. Some reports pre-dated the recall notice and involved the same model bed as the Schwartz bed. The documents themselves were not introduced into evidence.

Plaintiffs' counsel successfully argued first to the judge, and ultimately to the jury in summation, that based upon At Home's implementation of the recall, a recalled J-box model could have been on Meryl's bed at the time of the fire. Pre-trial and at trial, defendants maintained there was insufficient evidence to conclude that the bed contained a recalled model of the J-box.

II.

We first address Invacare's argument that the judge should have granted its motions and dismissed plaintiffs' complaint. It contends that plaintiffs failed to establish that the fire was caused by a defect in the bed. To the extent the judge relied upon Flaherty's opinions to deny its motions, Invacare argues they were inadmissible net opinions.

Consideration of motions seeking dismissal, pursuant to Rule 4:37-2(b), or judgment, pursuant to Rule 4:40-1, requires application of the same standard. Such motions must be denied if the evidence and all "legitimate inferences" that may be deduced from it could sustain a judgment in favor of the opposing party. Verdicchio v. Ricca, 179 N.J. 1, 30 (2004); Dolson v. Anastasia, 55 N.J. 2, 5 (1969). We apply the same standard in reviewing the trial court's ruling. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441-42 (2005).

Initially, Invacare's argument that Flaherty's opinions were inadmissible net opinions is without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). Our review of the testimony convinces us that Flaherty explained the underlying facts supporting his opinions, Scully v. Fitzgerald, 179 N.J. 114, 129 (2004), and provided "the 'why and wherefore' of his opinion[s], not just . . . mere conclusion[s]." Koruba v. Am. Honda Motor Co., Inc., 396 N.J. Super. 517, 526 (App. Div. 2007) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)), certif. denied, 194 N.J. 272 (2008).

Plaintiffs were required to prove that 1) the bed was defective; 2) the defect existed at the time it left Invacare's control; and 3) the defect proximately caused injuries to a reasonably foreseeable user. Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 97 (1999). "To prove both the existence of a defect and that the defect existed while the product was in the control of the manufacturer, a plaintiff may resort to direct evidence, such as the testimony of an expert who has examined the product, or, in the absence of such evidence, to circumstantial proof." Id. at 98 (citing Scanlon v. Gen. Motors Corp., 65 N.J. 582, 591 (1974)). The plaintiff need not "'prove a specific manufacturer's defect,'" ibid. (quoting Moraca v. Ford Motor Co., 66 N.J. 454, 458 (1975)), but only that "'something was wrong' with the product." Ibid. (quoting Scanlon, supra, 65 N.J. at 591) (internal quotation marks omitted).

In this case, plaintiffs did not have direct or circumstantial evidence of a specific defect and proceeded under a third mode of proof, the so-called "'indeterminate product test,'" id. at 105, by which:

A plaintiff may establish a defect by "negat[ing] other causes of the failure of the product for which the defendant would not be responsible, in order to make it reasonable to infer that a dangerous condition existed at the time the defendant had control [of the product]."

 

[Id. at 99 (alterations in original) (quoting Scanlon, supra, 65 N.J. at 593-94).]

 

"Under that approach, a plaintiff does not have to negate all possible causes of failure, only those likely causes of failure." Ibid. (citing Scanlon, supra, 65 N.J. at 594).

The Myrlak Court adopted the formulation of the doctrine contained in the Restatement (Third) of Torts 3 (1997). Id. at 104. Specifically:

"It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:

 

(a) was of a kind that ordinarily occurs as a result of a product defect; and

 

(b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution."

 

[Ibid. (quoting Restatement, supra).]

Viewed in its entirety, the evidence presented at trial was sufficient to sustain judgment in plaintiffs' favor under the indeterminate product test. Silvia and Flaherty testified that the fire originated under the bed, and Hansen believed the fire originated within the bed; Herde testified that she observed smoke and sparks coming from under the foot of the bed; and Flaherty testified that the fire was caused by an electric fault in the bed's control circuitry. Moreover, Silvia, Hansen and Flaherty found no evidence that the fire had originated in the light switches or wall outlets, and Silvia and Flaherty agreed that there was nothing under the bed, other than bed components, that could have ignited the fire.

Therefore, a reasonable jury could conclude that, more likely than not, the bed was defective; the defect existed when the bed left Invacare's control; and the defect was the proximate cause of plaintiffs' damages.

III.

We turn to the evidentiary arguments raised by Invacare, noting initially that "[i]n reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We accord "'substantial deference to a trial court's evidentiary rulings.'" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). "[I]n making relevance and admissibility determinations," the trial judge's exercise of his "broad discretion" "will not [be] disturb[ed], absent a manifest denial of justice." Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom., Lydon v. Silverman, 196 N.J. 466 (2008). However, we accord no such discretion to a ruling that is "inconsistent with applicable law." Pressler & Verniero, Current N.J. Court Rules, comment 4.6 on R. 2:10-2 (2011).

Invacare argues that the admission of evidence of the 2001 recall of J-boxes was error because: 1) it was irrelevant since plaintiffs chose to proceed under the "indeterminate product test" and did not intend to prove a specific defect; and 2) there was no evidence that any of the recalled models of the J-box were actually on the Schwartz bed. Invacare argues the adverse incident reports were inadmissible as direct evidence of a product defect, and the totality of the testimony "[w]ent [f]ar [b]eyond [t]he [l]imited [p]urpose of [i]mpeaching [Clines'] [c]redibility." Plaintiffs contend that proof of a product recall is relevant even under the "indeterminate product defect test" mode of proof, that the evidence as to whether a recalled J-box was on the bed was sufficient to raise a factual question for the jury to resolve, and, alternatively, that the evidence was admissible to affect Clines' credibility. As to the adverse incident reports, plaintiffs argue that the testimony was relevant to impeach Clines' credibility.

As noted, defendants objected to admission of the recall evidence on multiple occasions, and also moved for a mistrial on these grounds. Pretrial, the judge concluded that whether a recalled J-box was on the bed presented "an issue of credibility" for the jury. Regarding the adverse incident reports, he determined they were admissible "for a very limited purpose . . . credibility."

However, after hearing the relevant evidence, the judge expressed significant doubt as to whether the jury could infer that the J-box on the Schwartz bed was subject to the recall. After denying defendants' motion for a mistrial, the judge indicated he would provide a limiting instruction. He gave the following charge to the jury:

You've heard testimony concerning the recall of a junction box also known as a control box on an Invacare hospital bed . . . . No one has testified that a recalled junction box was on the Invacare hospital bed at the time of this fire. You may not infer or conclude that simply because a junction box was recalled at a time prior to this fire . . . that an Invacare bed was the cause of this fire. You may, however, consider the testimony of the recall evidence . . . with all other evidence as it relates to the credibility of witnesses.

 

Regarding the evidence of adverse incident reports, the judge determined it was admissible to affect Clines' credibility. He included the following charge in his final jury instructions:

You've heard testimony concerning . . . something called adverse event reports . . . . You may not infer or conclude that simply because . . . there was an adverse incident event report that an Invacare bed was the cause of this fire. You may, however, consider the . . . adverse event report evidence with all other evidence as it relates to the credibility of witnesses.

 

We conclude that evidence of the recall and adverse incident reports should not have been admitted, and that the evidence had a clear capacity to bring about an unjust result. R. 2:10-2.

(a)

Evidence of a product recall may be admissible to prove that the defect arose while the product was in the defendants' control. Manieri v. Volkswagenwerk, A.G., 151 N.J. Super. 422, 431 (App. Div. 1977), certif. denied, 75 N.J. 594 (1978). Additionally, evidence of a product manufacturer's subsequent use of an alternative design has been deemed admissible to impeach the credibility of an expert witness. See Lavin v. Fauci, 170 N.J. Super. 403, 407-08 (App. Div. 1979) (permitting proof of subsequent design to impeach credibility of defense expert who opined that such a design was not "economically feasible").

Here, evidence of a recall could have been relevant to prove that the junction box was defective when it left Invacare's control, and was probative, even under the "indeterminate product test" theory. However, we agree with Invacare that there was insufficient evidence to establish that a recalled junction box was on the bed at the time of the fire. In fact, the overwhelming evidence was to the contrary and the prejudicial effect of the testimony significantly outweighed any probative value. N.J.R.E. 403; see, e.g., Bizzle v. McKesson Corp., 961 F.2d 719, 721-22 (8th Cir. 1992) (because there was minimal evidence to suggest that the product involved in the accident was the same model subject to recall, "[t]he recall's minimal probative value was easily outweighed by the dangers of unfair prejudice" and misleading of the jury).

Although there was evidence that the bed came in interchangeable pieces, and that At Home would sometimes interchange parts from various beds, the undisputed evidence established that the J-box attached to the foot spring would interface only with compatible beds. Clines' testimony in this regard was essentially undisputed.

It was also undisputed that the Schwartz bed was not manufactured between August 1998 and October 2000, the period specifically identified in the recall. The fact that At Home did not track the replacements by serial number does not, in itself, provide any basis to infer that the bed was the subject of the recall in the first instance. Moreover, it was undisputed that Schwartz did not rent the subject bed for his daughter until 2002, more than a year after the recall.

There was also no evidence to support plaintiffs' argument that At Home's implementation of the recall permitted an inference that the recalled junction box was on the bed. According to Ferguson, At Home switched the junction boxes of those beds in its inventory and switched those on other beds as they were returned. Thus, a bed rented more than one year after the recall was implemented, if it contained the affected J-box, would have either had the upgrade installed while it was in At Home's inventory, or received the upgrade when returned to inventory but before it was leased to Schwartz. At Home Medical received 239 replacement J-boxes from Invacare and utilized all of them.

Nor did the recall evidence impeach Clines' credibility in any fashion. Clines testified that he recommended implementation of the recall based upon reports of malfunctions in certain J-boxes and one incident of a fire. There was nothing contained in the recall notice, or any evidence adduced regarding the notice, that served to impeach this statement.

It is beyond cavil that evidence of the recall was highly prejudicial. Despite the inability of their experts to pinpoint the cause of the fire, since At Home was still in the case, plaintiffs were able to suggest to the jury that the recall had been negligently implemented, leaving open the possibility that a recalled J-box was on the Schwartz bed and caused the fire. Admission of this evidence alone requires reversal.

(b)

On the record presented, it was also reversible error to permit plaintiffs to cross-examine Clines through the use of the adverse event reports.

FDA reports of this nature have been held to be inadmissible as substantive evidence of causation. See, e.g., Wade-Greaux v. Whitehall Labs., Inc., 874 F. Supp. 1441, 1481 (D.V.I.) (citing DeLuca v. Merrell Dow Pharm., Inc., 791 F. Supp. 1042, 1050-51 (D.N.J. 1992), aff'd o.b., 6 F.3d 778 (3d. Cir. 1993), cert. denied, 510 U.S. 1044, 114 S. Ct. 691, 126 L. Ed. 2d 658 (1994)), aff'd o.b., 46 F.3d 1120 (3d. Cir. 1994). Similar FDA reports have, in certain circumstances, been admitted to demonstrate that the manufacturer was on notice of a problem with its product. See, e.g., Golod v. Hoffman La Roche, 964 F. Supp. 841, 855 (S.D.N.Y. 1997) (citing DeLuca, supra, 701 F. Supp. at 1050) (adverse incident "reports may not be sufficiently reliable or relevant to be admissible on the issue of causation, . . . [but] they are relevant to [the defendant's] awareness of potentially serious ophthalmological effects and the possible need to conduct further research into them"). Here, plaintiffs never sought to introduce the reports as substantive evidence of a defect, nor did they contend that the reports put Invacare on notice of a potential defect. Instead, they limited their proffer to an argument that the reports impeached Clines' credibility, the same argument they have advanced before us.

As noted, the questions regarding the adverse incident reports were posed to Clines in the context of the recall and, whether prior to initiating the recall, he was aware of only one fire-related incident. Since there was a lack of any evidence that a recalled J-box was on the Schwartz bed, questioning Clines about other incidents in the context of the recall was improper and further requires reversal. We specifically limit our holding regarding the use of the adverse event reports to the record as presented.

We do add, however, that even if the adverse event reports could be properly used for impeachment purposes, plaintiffs' wide-ranging questioning of Clines regarding the specific content of the reports was improper. See, e.g., Gonzalez v. Silver, 407 N.J. Super. 576, 594-95 (App. Div. 2009) (although extrinsic evidence may be used to impeach witness, the court must engage in analysis under N.J.R.E. 403 and weigh the probative and prejudicial effect of the evidence).

IV

We address Invacare's final point for the sake of completeness in the event there is a retrial.

Invacare claims the judge erred by giving the jury an incomplete and misleading verdict sheet. The verdict sheet included two liability questions, as follows:

1. Have the plaintiffs proven, by a preponderance of the evidence, that the bed was defective when it left Invacare's possession?

____ Yes ____ No

IF YOUR ANSWER IS "YES," PROCEED TO QUESTION 2. IF YOUR ANSWER IS "NO," PROCEED TO QUESTION 3.

2. Have the plaintiffs proven, by a preponderance of the evidence, that the defect was the proximate cause of the fire?

____ Yes ____ No

 

Invacare unsuccessfully sought the addition of a third question, specifically:

Have the plaintiffs proven by a preponderance of the evidence that the fire did not result from causes other than a defect in the bed?

 

Invacare's contention provides no basis for reversal. "The purposes of submitting interrogatories to the jury 'are to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized.'" Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 419 (1997) (quoting Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968)). "[A] trial court's interrogatories to a jury are not grounds for a reversal unless they were misleading, confusing, or ambiguous." Id. at 418.

At trial, the judge specifically instructed the jury on plaintiffs' burden of proof under the indeterminate product test:

In this case the plaintiffs had the burden [of] negating other possible causes of the fire unrelated to any defect from the bed. If the plaintiff meets this burden then you may infer that a defect existed in the bed and find for the plaintiffs. If the plaintiffs do not meet this burden then you will find for the defendants.

 

As the Court has noted, "a correct jury charge can cure an ambiguity in a jury interrogatory." Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 470 (2000). Here, the jury was accurately and adequately instructed regarding the governing law, and it can be assumed that the jurors followed the court's instructions. There was no error.

We leave to the trial court's sound discretion whether the interrogatories should be otherwise modified in the event the matter is retried.

Reversed and remanded. We do not retain jurisdiction.

 

1 Pick's disease is a "progressive circumscribed cerebral atrophy," Stedman's Medical Dictionary 502 26th ed. 1995. It is "a rare type of cerebrodegenerative disorder manifested primarily as dementia, in which there is striking atrophy of portions of the frontal and temporal lobes." Ibid.

2 Defendants asserted crossclaims against Martin Schwartz in some of their answers; all claims were dismissed against Schwartz before trial.

3 See 21 U.S.C.A. 360i; 21 C.F.R. 803.50.

4 The parties stipulated to the plaintiff/insurers' damages, and the issue was not presented to the jury. Herde's award was reduced by twenty-five percent based upon the jury's finding that she failed to mitigate her damages; the parties agreed to add $25,000 to Herde's net verdict as the stipulated amount of lost wages.

5

Invacare subsequently filed a stipulation of dismissal with respect to its appeal from the judgment in favor of Herde.

6 The motors survived the fire and were available for inspection, but the J-box did not. Therefore, no one could identify with certainty whether the J-box on Meryl's bed was one subject to the recall.