DENNIS STABILE v. DAIMLERCHRYSLER CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4579-05T3A-4579-05T3

DENNIS STABILE,

Plaintiff-Respondent,

v.

DAIMLERCHRYSLER CORPORATION,

Defendant-Appellant.

________________________________________________________________

 

Argued March 14, 2007 - Decided April 11, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1146-04.

Kevin McKeon argued the cause for appellant (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. McKeon and Nicholas Kierniesky, on the brief).

Louis Dobi argued the cause for respondent (Kimmel & Silverman, attorneys; Mr. Dobi, on the brief).

PER CURIAM

Defendant DaimlerChrysler appeals from the April 3, 2006 order entering judgment in favor of plaintiff, as a result of a jury verdict, on plaintiff's claim under the New Jersey Motor Vehicle Warranty Act, N.J.S.A. 56:12-29 to -49 ("Lemon Law"). As a result of that order, defendant was required to pay plaintiff the amount specified in the Lemon Law, minus the statutory offset amounting to $851.62 once plaintiff returned the vehicle to defendant.

On appeal, defendant argues that Judge Michael Brooke Fisher erred when he denied its motion for judgment notwithstanding the verdict and/or a new trial because the alleged defect did not substantially impair the plaintiff's use of the vehicle as required by the Lemon Law; that the plaintiff's failure to produce the truck at trial, in response to defendant's issuance of a notice in lieu of subpoena, and the court's failure to properly sanction the plaintiff, denied defendant the right to a fair trial; that the court erred when it permitted plaintiff's expert to provide an inadmissible net opinion; and the judge committed reversible error of law when he denied defendant's request to give the jury a false in one, false in all jury instruction. We disagree with each of these contentions, and affirm.

I.

On July 19, 2003, plaintiff purchased a 2 003 Dodge Ram 3500 pick-up truck from Lilliston Chrysler Dodge Jeep, Inc. (Lilliston), an authorized DaimlerChrysler dealer located in Millville. Upon purchasing the truck, plaintiff received a three-year, 36,000 mile manufacturer's limited warranty. Plaintiff purchased the vehicle for the purpose of hauling a racecar trailer between his home in Florida and races that he regularly attended in New Jersey and Pennsylvania. Plaintiff testified that on the day he purchased the truck, he immediately began experiencing problems with it. He explained one instance when, as he approached a toll bridge, he briefly released the steering wheel to remove some coins from his pocket, whereupon the truck began to noticeably drift to the right. It is that continuous and recurrent problem with the vehicle pulling to the right that served as the basis for plaintiff's complaint.

On his return trip to Florida after purchasing the truck, he continued to notice the tendency of the vehicle to drift to the right if he removed his hands from the steering wheel. He did not interrupt his trip for an inspection or repair at a DaimlerChrysler dealership because he needed to return to Florida. Plaintiff testified that the drifting condition was always present, but was more pronounced when he was using the truck to haul his twenty-foot trailer.

After arriving home in Florida, on August 15, 2003, plaintiff brought the truck to an authorized DaimlerChrysler dealer in Miami in order to have the drifting problem repaired. The dealer performed a front-end and rear wheel alignment. Because that service visit did not resolve the problem, plaintiff returned to that same dealer on August 27, 2003, at which time the dealer rotated the tires. On September 12, 2003, because plaintiff was still experiencing the same drifting problem despite two prior repair attempts, he brought the vehicle to a different authorized DaimlerChrysler dealership in Davie, Florida. That dealership re-aligned the tires. On October 14, 2003, plaintiff returned to the Miami dealership because the truck was still drifting to the right. The dealer replaced the gear assembly and again reset the alignment. Still experiencing the same problem, plaintiff brought the truck back to the Davie dealership on November 14, 2003. The dealer adjusted the camber and the steering wheel after noting that the latter was left of center.

Almost one year after the initial purchase, plaintiff brought the truck to Lilliston on July 12, 2004. Plaintiff had logged 11,278 miles. Plaintiff informed the service manager at Lilliston that the vehicle continued to drift to the right and that, as a result, the right front tire was scuffed to the point that it had worn out. Lilliston replaced two worn tires and cross-switched the other two.

After the sixth repair attempt had not resolved the drifting problem, plaintiff filed a four-count complaint against defendant DaimlerChrysler on October 26, 2004, alleging violations of New Jersey's "Lemon Law," the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C.A. 2301-2312, the Uniform Commercial Code, and the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Discovery commenced, and defendant served plaintiff with a notice of deposition for February 21, 2005, and also demanded that plaintiff produce the truck for an inspection by its expert, Henry C. Gill.

Plaintiff complied with that demand, and at the time he left Florida to drive north for that deposition and inspection of the vehicle, the truck had 16,929 miles on the odometer. Gill performed a visual inspection and test drove the truck to determine if, in his opinion, there was a defect. During his visual inspection, Gill evaluated the tires and concluded that they were "wearing evenly." In his opinion, this was quite significant because if a tire is wearing evenly, it demonstrates that a vehicle is not out of alignment. When asked on direct examination whether if the vehicle had been produced at trial for him to evaluate, such inspection would have helped or assisted him in forming an opinion, he answered "[y]eah, I think it would" because "if the vehicle was here and there was no tire wear for example . . . that [would] indicate . . . that the alignment is correct."

In his expert report, and in his testimony, Gill noted that when the steering wheel is released from the operator's hands at a speed of sixty-five miles per hour the "truck will go straight for a while and then it will drift to the right." Gill opined that this condition was normal, that no defect in the truck existed, and that accordingly, there was no diminution in value. Gill concluded his testimony stating that "within a reasonable degree of mechanical certainty," there was "absolutely no[]. . . problem or defect in [the] vehicle." He added that the "vehicle is operating as designed and all the components are in good shape," opining "there was no safety problem" arising out of the steering wheel condition he had described.

Plaintiff's expert, Robert Rouch, who was an employee of plaintiff's attorney's law firm, testified, opining that the continuous drifting problem on plaintiff's truck "substantially impair[ed] the use" of the vehicle. Rouch acknowledged that he had never physically inspected the truck, had never driven it and had never reviewed any photographs, but had instead relied solely on his independent review of the numerous repair invoices and his prior experience in automotive mechanics in order to reach the opinion he expressed at trial. He asserted that he had no need to inspect the truck because "every invoice spoke for itself."

Plaintiff testified, explaining that as of the date of trial, the drifting problem still existed and that the truck currently had between 20,000 and 21,000 miles on the odometer. He explained that the truck had not met his expectations because of the drifting problem, and as a result, he used the vehicle far less frequently than he would have otherwise.

On March 9, 2006, after plaintiff rested, defendant moved for a directed verdict pursuant to Rule 4:37-2(b), which the court denied. Defendant also requested that the court give the jury an instruction that they should draw an adverse inference from the plaintiff's failure to produce the truck for inspection by defendant's expert at the time of trial. Defendant's request for an adverse inference instruction resulted from plaintiff's disregard of a notice in lieu of subpoena served on plaintiff, pursuant to Rule 1:9-2, requiring him to produce the truck at the time of trial. The notice was served on February 27, 2006, one week before the trial began. The notice did not offer plaintiff any assistance in moving the truck to New Jersey, nor did it offer to provide him with reimbursement for any expense he incurred in doing so.

In response to defendant's request for an adverse inference instruction, plaintiff argued that he was not obligated to make the vehicle available to defendant's expert more than once; that the discovery period had ended long ago; and that requiring plaintiff to drive the truck to New Jersey on such short notice was oppressive and unfair. After considering the arguments from both sides, the court agreed to give the jury an adverse inference instruction. Specifically, the judge instructed the jury at the conclusion of the trial that it could "infer from the non-production of this vehicle that the visual inspection would be adverse to the interest of the plaintiff[,]" but the judge instructed them that they were not required to make such a finding.

After a three-day trial, the jury returned a verdict in favor of plaintiff, finding a violation by defendant of the Lemon Law. Defendant's subsequent motion for judgment notwithstanding the verdict and/or for a new trial was denied, and defendant appealed.

II.

We turn first to defendant's argument that the trial court erred when it denied defendant's motion for judgment notwithstanding the verdict (JNOV), pursuant to Rule 4:40-2, and/or for a new trial, pursuant to Rule 4:49-1. A JNOV motion must be denied whenever "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in favor of the party opposing the motion." Dolson v. Anastasia, 55 N.J. 2, 5 (1969). In other words, "if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Ibid. The Court held in Dolson that in considering the motion the trial court is "not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6. When considering the motion, the function of the trial court is "a mechanical one." Id. at 5.

The standard governing our review, and indeed the trial court's review, of a motion for a new trial is different from the standard applicable to a JNOV motion. In deciding whether to grant a defendant's motion for a new trial, the trial judge must conscientiously scrutinize the evidence presented to the jury in order to correct any "clear error or mistake by the jury." Id. at 6. The judge should refrain from substituting his judgment for that of the jury merely because he might have reached an opposite result. Ibid. The judge must canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict. Ibid. "The trial judge shall grant the motion [for a new trial] if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a).

Defendant's argument that the court erred in denying its JNOV motion and/or motion for a new trial, is premised on its contention that plaintiff's claim for a breach of the New Jersey Lemon Law failed as a matter of law. The Lemon Law, N.J.S.A. 56:12-29 to -49, describes the circumstances under which a purchaser of a motor vehicle is entitled to relief. The statute provides:

If during [the first 18,000 miles or two years], the manufacturer or its dealer is unable to repair or correct a nonconformity within a reasonable time, the manufacturer shall accept return of the motor vehicle from the consumer. The manufacturer shall provide the consumer with a full refund of the purchase price of the original motor vehicle including [trade-in allowance, costs and fees] . . . less a reasonable allowance for vehicle use.

[N.J.S.A. 56:12-32a.]

A "nonconformity" is defined as "a defect or condition which substantially impairs the use, value or safety of a motor vehicle." N.J.S.A. 56:12-30.

Relying on the statute, defendant argues that the drifting of plaintiff's vehicle to the right does not constitute a non-conformity that "substantially impairs the use, value or safety of a motor vehicle." Defendant argues that the drifting problem is the type of easily-corrected and trivial defect for which recovery is not permitted under the Lemon Law. Gen. Motors Acceptance Corp. v. Jankowitz, 216 N.J. Super. 313, 334-35 (App. Div. 1987). In determining whether the alleged defect is sufficiently substantial to impair the use, value or safety of the vehicle, both subjective and objective evidence must be evaluated. Berrie v. Toyota Motor Sales, U.S.A., Inc., 267 N.J. Super. 152, 157 (App. Div. 1993). In Berrie, we relied on our prior decision in General Motors, supra, where we held that:

a personalized but objective determination must be made, personalized in the sense that the facts must be examined from the viewpoint of the buyer and his circumstances, objective in the sense that the criterion is what a reasonable person in the buyer's position would have believed. In other words, the statute creates a subjective test in the sense that the requirements of the particular buyer must be examined and deferred to; however, since the rationale of the "substantial-impairment" requirement is to bar revocation for trivial defects or defects that can easily be corrected, the impairment of the buyer's requirements must be substantial in objective terms. It is sufficient if the buyer shows that the product would not function or would not function well enough to accomplish the buyer's purpose.

[216 N.J. Super. at 335.]

Thus, under an "objective" standard, the plaintiff must prove that the nonconformity is one which a reasonable person in the buyer's position would have believed to be a problem. Ibid. Under the "subjective" standard, the substantiality of the nonconformity must be viewed from the eyes of the buyer himself. An important factor in this determination "is whether the nonconformity 'shakes the buyer's confidence' in the goods." Berrie, supra, 267 N.J. Super. at 157. We reasoned in General Motors:

For a majority of people the purchase of a new car is a major investment, rationalized by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension.

[General Motors, 216 N.J. Super. at 338-39.]

Additionally, we held that "[a]n unreasonable length of time to repair defects may also have the effect of impairing usefulness of the product for a substantial length of time; defects which might otherwise be deemed minor may thus have a substantial impact upon the buyer." Id. at 339.

Here, it is clear in both an objective and subjective sense that a reasonable person in plaintiff's position could have concluded that the chronic drifting of the truck to the right and the length of time that the truck was unavailable to him while being serviced substantially impaired the use, safety and/or value of the truck, in accordance with the requirements of the Lemon Law. The record clearly indicates that there were at least six repair attempts, in which plaintiff brought the truck to either a dealer in Florida or in New Jersey. Plaintiff testified that he was always concerned that the truck would drift off the road because of the pulling, and thus, for an entire race season, he did not use the truck to haul his racecars, the purpose for which he purchased the truck. The odometer reading verified his testimony. Within one year of acquisition, plaintiff had logged slightly more than 11,000 miles. Nearly two years after acquisition, when the truck was inspected by defendant's expert in February 2005, the odometer reading was 16,929 miles, extremely low mileage for a vehicle nearly two years old, and intended to be driven up and down the East Coast.

Defendant also relies on eleven decisions rendered by administrative law judges who were presented with claims that a vehicle's tendency to pull from one side or the other when the operator's hands were removed from the steering wheel substantially impaired the use or value of that vehicle. In each of those cases, the administrative law judge resolved that question in favor of the defendant. We decline to be bound by those decisions, principally because, as we noted in General Motors, supra, the substantiality of any nonconformity must be evaluated, in part, from the perspective of the buyer himself. 216 N.J. Super. at 335. Here, where one of plaintiff's principal purposes in purchasing the truck was to use it to haul racecars up and down the east coast, we are not prepared to say that his loss of confidence in the vehicle, followed by a decision not to use it to haul racecars, was insufficient as a matter of law. In reaching this conclusion, we place considerable weight on this particular plaintiff's purpose in purchasing the truck.

Nor are we persuaded by defendant's argument that because the drifting only occurs when plaintiff completely removes his hands from the steering wheel that, as a matter of law, any such defect should not be cognizable because it is unlawful to operate a vehicle in such a manner. Defendant points to N.J.S.A. 39:4-97.2a, which provides that it is unlawful to operate a vehicle in an unsafe manner. We do not quarrel with defendant's contention that operating a vehicle for any length of time in a hands-free fashion would constitute unsafe operation of a motor vehicle. We can envision, however, certain circumstances not constituting unsafe operation which would cause a driver to briefly remove one or both hands from the wheel. Such circumstances include sneezing, blowing one's nose, shifting gears in a vehicle equipped with a manual transmission, operating the radio or climate controls, reaching for change at a toll booth, extinguishing a cigarette, or reaching for printed road directions or a map.

Moreover, defendant's argument that the drifting problem is only a non-conformity if a driver operates the car in an unsafe manner strikes us as analogous to arguing that, for example, a Lemon Law violation would not be presented if a car's engine was prone to ceasing to operate, but only did so at speeds greater than the posted speed limit. We would not accept such a contention there, and we are not prepared here to accept defendant's argument about the drifting problem only occurring when the vehicle is being operated unsafely. Moreover, defendant's argument fails to recognize that the drifting problem is a nonconformity that exists at all times, but its consequence only becomes significant when a driver's hands are removed from the wheel.

We accordingly conclude that Judge Fisher properly determined, when he denied defendant's motion for a new trial, that defendant had not "clearly and convincingly" demonstrated "that there was a miscarriage of justice under the law," as required by Rule 4:49-1(a).

III.

We next consider defendant's claim that when plaintiff failed to produce the vehicle at trial, in response to the notice in lieu of subpoena, the judge should have instructed the jury that it was required to draw an adverse inference from such non-production. We reject the argument that the giving of a charge instructing the jury that they were permitted, rather than required, to draw such an adverse inference was error.

We so conclude for several reasons. First, we are not persuaded by defendant's argument that the issuance of the subpoena pursuant to Rule 1:9-2 required plaintiff to produce the vehicle. That rule is directed at production of "books, papers, documents, electronically stored information or other objects designated therein." R. 1:9-2. Defendant argues that the vehicle constitutes an "other object designated therein" within the meaning of the rule. Defendant has cited no authority for the proposition that producing a truck garaged in Florida is the type of production that the Supreme Court envisioned when it enacted Rule 1:9-2. While it would have been preferable for plaintiff to have filed a motion to quash the subpoena pursuant to Rule 1:9-2, it would likewise have been preferable for defendant, who no doubt received the trial notice months earlier, to have served plaintiff with the notice in lieu of subpoena far earlier than it did.

Moreover, we agree with plaintiff that a defendant is afforded under our rules of discovery an opportunity to inspect the object that is the subject of the litigation, but nothing in our rules provides for multiple opportunities. We note that when defendant's expert examined the vehicle in February 2005, he took photographs demonstrating that the tires were not scuffed or feathered. Gill's testimony to that effect before the jury served virtually the same purpose as the production of the vehicle at trial would have served. Defendant's argument in summation that had plaintiff produced the vehicle at trial, the jurors could have driven the vehicle and seen for themselves that the vehicle was not defective, borders on frivolous. The notion that jurors would be permitted as part of their deliberations to drive a large pick-up truck and make observations about how it operated is not an argument we are prepared to accept.

Defendant's reliance on Gonzales v. Safe & Sound Security Corp., 185 N.J. 100 (2005) is misplaced. There, the Court held that when a plaintiff refused to testify, the court abused its discretion in merely giving an adverse inference charge. Id. at 119. The Court noted that the case should be remanded for a new trial, and if plaintiff again refused to testify, the sanction would be dismissal. Ibid. We view a plaintiff's refusal to testify as significantly different from a plaintiff's refusal to produce a truck a week before trial, especially where, as here, defendant had already had the benefit of one expert evaluation of the truck. Judge Fisher's decision to instruct the jury that it was free to draw an adverse inference if it believed that the evidence warranted such inference was, under the circumstances presented here, a proper exercise of his discretion. See Scanlon v. Gen. Motors Corp., 65 N.J. 582, 598-99 n.7 (1974) (holding that where plaintiff fails to produce a product it claims was defective and has offered no valid explanation for such refusal, then the trier of fact "is free to draw an adverse inference as to the existence of any defect.")

Under all of these circumstances, defendant has failed to demonstrate that it has suffered any cognizable prejudice as a result of plaintiff's refusal to produce the vehicle. Accordingly, Judge Fisher did not abuse his discretion when he chose to give a permissive, rather than a binding, adverse inference instruction. Defendant's arguments to the contrary are not persuasive.

IV.

Last, we address defendant's argument that Judge Fisher committed reversible error when he declined to bar the expert testimony of plaintiff's expert, Robert Rouch, as an inadmissible net opinion, pursuant to Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). An expert is required to explain the reasons for his conclusions because when "an expert offers an opinion without providing specific underlying reasons . . . he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). A judge's decision to admit or bar evidence is measured by an abuse of discretion standard. State v. Harvey, 151 N.J. 117, 166 (1997).

Judge Fisher did not mistakenly exercise the discretion vested in him. Here, Rouch possessed specialized knowledge and experience in his field and explained to the jury his methodology. He relied on the Kelley Blue Book and the National Automobile Dealers Association current auction results. Rouch further testified that he worked for a General Motors dealership from 1998 until 2003 as a master ASE certified technician. During that time, he performed warranty repairs, wrote warranty invoices and evaluated approximately ten cars a week for fourteen years, which he approximated totaled 7,000 vehicles. His conclusion, that the subject vehicle's tendency to pull to the right and the driver's resulting need to counter-steer created a significant diminution in value, was reached based on his fifteen years of experience, his evaluation of the six repair invoices, and his review of Kelley Blue Book and NADA auction results.

Judge Fisher's conclusion that Rouch provided an explanation of how he reached his opinion is proper. Although Rouch did not inspect the vehicle, we agree with Judge Fisher's conclusion that this affected simply the weight to be accorded his testimony, but not its admissibility. Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990), modified by, remanded by, 125 N.J. 421 (1991). "The failure of an expert to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002). The factor that was not given weight by the expert is simply a "subject of exploration and cross-examination at a trial." Rubanick, supra, 242 N.J. Super. at 55. Accordingly, Judge Fisher's conclusion that Rouch's failure to have personally inspected the vehicle was not a bar to the admissibility of Rouch's opinion was correct. Defendant's arguments to the contrary lack merit.

V.

Defendant's final argument concerns the judge's denial of defendant's request to instruct the jury that if it found plaintiff intentionally testified falsely in any portion of his testimony, that the jury was entitled to disregard and reject the balance of his testimony. Judge Fisher chose not to give the false in one/false in all charge, reasoning that there was no evidence that plaintiff had testified falsely. Judge Fisher gave the jury a detailed instruction concerning the factors it should apply in evaluating witness credibility. A judge is afforded considerable discretion in deciding whether to give the jury this particular charge. State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed 2d 374 (1961). Nothing presented by defendant persuades us that Judge Fisher mistakenly exercised that discretion.

 
Affirmed.

(continued)

(continued)

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A-4579-05T3

 

April 11, 2007