WENDY HARRIS v. GENERAL MOTORS CORPORATION
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6138-03T3
WENDY HARRIS,
Plaintiff-Appellant,
v.
GENERAL MOTORS CORPORATION,
Defendant-Respondent/
Third Party Plaintiff,
and
JAMES HARRIS,
Third Party Defendant.
________________________________________________
March 2, 2007
Argued September 20, 2006 - Decided
Before Judges Stern, Collester and Baxter.
On appeal from the Superior Court, Law
Division, Burlington County, Docket No.
L-1892-98.
Paul R. Melletz argued the cause for appellant.
James N. Tracy argued the cause for respondent
(Tansey, Fanning, Haggerty, Kelly, Convery &
Tracy, attorneys; Thomas V. Convery and Mr.
Tracy, of counsel and on the brief).
PER CURIAM
Plaintiff appeals from a judgment of June 14, 2004, for defendant, based on a "no cause of action" verdict of May 25, 2004. She sought recovery for injuries sustained in a one-car accident involving a 1990 Pontiac Firebird that her husband, James, was driving on the Pennsylvania Turnpike. See footnote 1 The jury rejected plaintiff's claim for "enhanced injuries" as a result of the alleged design defect in the roof of the vehicle that collapsed during the roll over. Plaintiff did not claim the defect "proximately caused the subject accident," but "rather that a defect in the design of the Firebird roof caused her to sustain enhanced injuries, worse injuries than she would otherwise [have] . . . sustained, absent the alleged defect." In response to the first interrogatory, the jury unanimously found that the roof was not defectively designed. See footnote 2
Plaintiff raises the following issues related to the trial:
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ITS OPENING REMARKS TO THE JURY.
II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PRECLUDING PLAINTIFF FROM PRESENTING EVIDENCE OF OTHER INCIDENTS OR ACCIDENTS.
III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S MOTION TO PRECLUDE EVIDENCE NOT PREVIOUSLY PROVIDED BY THE DEFENSE.
IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN LIMITING THE SCOPE OF CROSS-EXAMINATION OF DEFENSE EXPERT CLEVE BARE.
V. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CONDUCTING A SIDEBAR IN THE PRESENCE AND EARSHOT OF DEFENSE EXPERT DR. CHARLES HATSELL, AND PRECLUDING PLAINTIFF FROM PROBING THE EXPERT'S CREDIBILITY.
VI. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THAT PLAINTIFF'S HUSBAND JAMES HARRIS WAS NEGLIGENT.
VII. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ITS REQUEST TO CHARGE THE JURY.
At the opening of the trial, Judge Patricia R. LeBon conducted an N.J.R.E. 104 hearing and ruled that plaintiff's expert could not testify as to "other [accidents,] incidents, complaints and lawsuits" involving GM vehicles like the 1990 Firebird with a T-top, because the proffered evidence did not relate to an accident "substantially similar" to plaintiff's case, and plaintiff did not satisfy "her burden of proof to show that . . . the substantial similarity test" was satisfied. Thereafter the trial commenced, and we recite the critical evidence developed thereat with respect to the issue of liability:
The accident occurred on June 24, 1996 in Tredyffrin Township, Chester, Pennsylvania. The Harris family was traveling westbound to Ohio on the Pennsylvania Turnpike in the Firebird which James was driving. Plaintiff was a front seat passenger. The couple's three year-old daughter, Alicia, was in a child safety seat behind plaintiff who was twenty-two years old at the time.
According to plaintiff, it was "dark out" and "raining." The Firebird's T-top roof was in place and its windows were closed. James was driving "in the fast lane." As he switched lanes, into the slow lane, "the back of the car started to . . . fishtail, go back and forth," and James "tried to counter steer it," but the car fishtailed "about three times." The car then "turned, facing the traffic that [they] were going in . . . slid off of the road and hit [an] embankment," or "dirt hill," on the driver's side. The car then "flipped over on to the top," hit a guardrail, and slid upside-down. The car finally came to a stop alongside the roadway. As the car was sliding upside-down, plaintiff testified that she "could feel [her] head scraping" against the pavement.
As a result of the accident, plaintiff sustained "severe injuries, primarily to the left side of the head and ear region, with [avulsion] of the scalp, which means that portions of the scalp had been torn away." Plaintiff lost a portion of her left ear, which had to be reconstructed, and also sustained lacerations to the right side of her scalp and left hand. In total, plaintiff underwent eight surgeries on her scalp and ear plus an additional three laser surgeries. She has a disfigured ear and permanent scars on her right forehead, left side of her head, hands, fingers, rib cage, pelvic area, and left leg, about which she is very self conscious. "It was undisputed that these injuries resulted from contact between her head and the roadway during the accident." Plaintiff's husband sustained minor cuts and abrasions to his head, neck, cheek and shoulder. Fortunately, Alicia was uninjured.
The Harris' 1990 Pontiac Firebird belongs to a family of vehicles designated by defendant as "F" cars. As a 1990 model, the Harris' Firebird was a third generation "F" car. The car was equipped with a T-top roof, which featured separate driver and passenger side roof panels. The roof panels were made of tempered glass, which could be removed to give the vehicle an open, "convertible-type" in feel and appearance. Each roof panel had a side or roof rail along its outer edge. These rails consisted of a metal member covered by plastic that ran between the tops of the A and B pillars.
When on the vehicle, the roof panels were kept in place by a set of retractable metal pins located at either end of the side rail. The roof design incorporated three interconnecting "beam-like structure[s]" consisting of "the windshield header, the rear header, and the T-bar." The headers ran parallel to one another across the width of the vehicle with the T-bar running perpendicular between the two.
The critical question at trial was whether the Firebird's T-top roof was defectively designed and proximately caused plaintiff to sustain "enhanced" or "worse injuries than she otherwise [w]ould have suffered absent the design defect." To this end, "[t]he ultimate issue in dispute . . . was the number of times the vehicle rolled over onto its roof and whether the roof was structurally sound to withstand one, two or three impacts." As plaintiff explains, "[t]he vehicle damage . . . was so extensive that in order to believe that the T-top roof was structurally sound, one must be convinced that the T-top roof did not collapse until after impacting its roof with multiple violent ground strikes." (emphasis added). Thus, at trial, plaintiff endeavored to prove "that this was a one-half roll accident" and that due to a defect, "the T-top roof collapsed into the passenger compartment, causing the enhanced injuries." Conversely, defendant contended that the Firebird rolled over multiple times, and that even a properly designed rooftop could not have withstood such multiple high-speed rollovers.
As already noted, plaintiff testified that the car merely "flipped over on to the top," after which it was "sliding" upside down. On cross-examination, defense counsel attempted to undermine plaintiff's theory of the case by asking whether the T-top rails, or frames, were still in place after the accident. After plaintiff responded that she "really [did not] know," defense counsel introduced her prior deposition at which she stated that the "glass shattered" but also acknowledged that "the T-top frames remained in place after the accident."
George Widas, a "forensic engineer[]" and "event" or "accident reconstruction expert," testified for plaintiff. According to Widas, he was retained by plaintiff and took "measurements and photographs of the Harris vehicle and the accident scene" on July 23, 1996, approximately one month after the accident. However, Widas was not qualified as an expert witness and was not asked to "offer any accident reconstruction opinion in this case."
Widas testified that following the accident, he inspected the car at Reese's Towing in King of Prussia, Pennsylvania. Upon inspection, he found that "[t]he passenger side rear wheel and tire were missing, as well as some trim pieces and lamps, or glasses and small pieces of the car." "[T]he front windshield was flattened down to the level of . . . the top of the doors." The roof panels were not "in place." However, the roof rails were "in place" and "the framework of the T top was there." The T tops . . . were flattened down so that they were approximately an average of eight inches above the top of the doors. Lower on the passenger side, and a little higher on the driver's side." Widas did not observe any damage underneath the car. In addition, "the floorboards were where they were supposed to be, the doors were where they were supposed to be, [and] the dashboard was where it was supposed to be." There were also "multi-directional scrapes on the top of the hood" and "on the passenger side" as well as "a scuff on the driver's side rear quarter panel." In addition to the car, in his inspection of the accident scene, Widas "observed red paint transfer, six feet of it, 26 feet from the end of the guardrail."
On cross-examination, Widas stated that since he "did not perform any analysis, nor . . . a reconstruction of the event, [he] reached no conclusions to any degree of certainty as to the cause" of the multi-directional scratches on the "engine hood, . . . the T top roof and passenger side." Over plaintiff's objection, defense counsel then introduced Widas' July 16, 2001 deposition in which he had expressed an opinion. Therein, Widas stated that the "multi directional scrapes and superficial direct contact" were significant because they "show[ed] the vehicle rolled over more than once." Although he had "not analyze[d] the data to reach a conclusion in that regard," based on what he observed, he opined that the car rolled over "at least three times." Later in the deposition, Widas explained in more detail that
there [were] three or four directions of scrape marks. And that means that the car was in contact with the roadway, traveling against the roadway, the surface. That surface is scraping on the roadway in four different directions. And in order for that to happen without the marks being circular, if they're linear, then the car was traveling four different directions and had to roll over three or four times to produce that.
Finally, at trial Widas acknowledged that he performed his examination and took the measurements under the belief that he might be asked to be "the accident reconstruction person in this case," but that after providing his report, which indicated multiple rollovers to plaintiff's counsel, he was never "called" or "contacted" "to perform any advanced phases of engineering on this matter." On redirect examination, Widas reiterated that he "made no determinations" and did not "even conclude that there was a rollover." According to Widas, "[a]ll I did was, as indicated in my deposition, I took the measurements and I read the police report. The police report indicated rollover. I didn't reach any conclusions."
Donald Phillips, a "mechanical engineer," "accident reconstructionist," and "automotive engineer," testified for the plaintiff as an "expert in crash worthiness." See footnote 3 According to Phillips, he performed only a "partial accident reconstruction," focused on the rollover, because he believed that Widas had performed a complete reconstruction. Phillips' partial reconstruction was concerned with "the impact at the guardrail, and then the rollover of the vehicle," and did not include an estimate of the vehicle's speed or the force with which it struck the guardrail. Phillips acknowledged that he did not visit the accident scene as he would typically do for an accident reconstruction, but instead relied on Widas' measurements and photographs of the red mark on the guardrail. Phillips did examine the vehicle.
According to Phillips, during the accident, the right rear tire of the Firebird struck the guardrail, causing the rear axle to fracture and the wheel to come loose. The vehicle continued on after striking the guardrail and eventually overturned due to the missing passenger side rear tire. It was Phillips' opinion, based on the lack of vertical scratches and physical evidence, that the rollover was a "passenger side leaning roll" during which the vehicle "rolled over onto its roof," but did not sustain a "multiple roll." Phillips opined that when the roof of the Firebird hit the ground, the T-top roof panels shattered and the roof began to deform. He believed that the deformation to the roof caused the side rails to pop out. See footnote 4 He did not calculate "the force of the impact with the guardrail," or the "force of the impact between the roof and the road during the half roll."
As to the alleged defect, Phillips opined that the T-top roof was "defectively designed" because it "did not incorporate permanent rails to be able to maintain the roof strength and roof integrity in the event of a rollover." Phillips proposed an alternate "safer roof design," which incorporated "permanent side rails that stand over the tops of the passenger and driver side doors, but still incorporates two removable glass panels over the occupant compartment." He referred to this design as a "modified Vista Vent" roof. Phillips testified that this design would be safer "[b]ecause it incorporates permanent roof rails to be able to carry and accept the loads that would be placed on a roof during an accident event."
Phillips also opined that the T-top roof was defectively designed because the roof panels were made of tempered glass instead of "laminated glass." In Phillips' opinion, laminated glass was better than tempered glass because when tempered glass "shatters," it "fractures into small tiny cubes and it does not prevent a barrier to prevent ejection in the event of an accident whereas laminated glass would." According to Phillips, the majority of all manufactured cars are defective because they use tempered instead of laminated glass "in windows and other openings such as sun roofs and panels." See footnote 5
In its defense, defendant presented Cleve Bare as an accident reconstructionist. Bare had examined the accident scene and the vehicle, and also reviewed the photographs and measurements of the accident site including those taken by Widas.
Bare reconstructed the entire accident. He concluded that the Firebird was traveling "in the general range of 70 to 75 miles per hour" when it "lost control," while Harris was trying to change lanes. According to Bare, the vehicle "started a series of fishtailing . . . and then, ultimately, just completely spun . . . all the way around where it was sliding backwards down the highway." Then "[t]he vehicle slid up the embankment and began a passenger side leading rollover where the passenger side goes down first, the nose of the vehicle is slightly forward. It contact[ed] the passenger side and then beg[an] a series of rolls, two and a half . . . [while] the back of the car [was] continuing to spin around." After "two and a half rolls," the vehicle was "on its roof going backwards and it contact[ed] the guardrail that stop[ped] the vehicle from rolling and sp[un] it around. And then it slid[] another 50 or so feet to the point of rest on the shoulder."
In Bare's opinion, the passenger side rear axle fractured during the rollover sequence, "more likely . . . at the end of the second roll." Moreover, he opined that the wheel was not "still on the vehicle at the time it struck the guardrail." Bare further opined that "the majority of the roof deformation" occurred while the vehicle was sliding on its roof "after two and a half rolls." Bare calculated that the Firebird hit the guardrail at about twenty-eight miles per hour and traveled approximately 600 feet after "the loss of control."
Defendant also produced Dr. Joseph Rice, an automotive engineer qualified as an expert "in the areas of mechanical engineering, automotive crashworthiness, and automotive structure." Rice was formerly employed by GM for twenty-two years.
In Rice's opinion, the Firebird's roof was not defectively designed, and "performed as we would expect it to perform in this very violent accident, and it performed well." Based on his review of the evidence, including his inspection of the vehicle, Rice concluded that the "roof rails were present when the car was on its roof when it was sliding down . . . the road," See footnote 6 and "did not disengage." Rice stated that if the side rails had come out, the roof openings between the A and B pillars would have been significantly "compressed" by the forces exerted on the roof during the accident. However, when measured by Rice, the space between the roof openings was only an inch or less than the total length of the side rail. Rice concluded that the only way the roof openings could have maintained their integrity was if the rails had remained in place and prevented the A and B pillars from being "squeez[ed]" together.
Rice also rejected Phillips' conclusion that the vehicle experienced only a half-roll during the accident. According to Rice, the extensive damage to the vehicle's roof, along with the presence of overlapping, multi-directional "scratch marks" and "gouges" on its exterior, was compelling evidence that the car had "two different contacts with the ground" and had been involved in a severe multi-roll event. Given the severity of the accident, it was Rice's opinion that the Firebird's roof had performed as well as any other roof design, including Phillips' proposed alternative design.
Rice further testified that "about 99 percent of the cars today . . . the windshield is laminated glass. Everything else is tempered glass." He pointed out that tempered glass is designed to break into "little tiny cubes," minimizing the chance of injury, whereas laminated glass breaks into "shards" that create a "potential for . . . getting puncture wounds." Rice noted that in "the 1990 time frame everybody used tempered glass everywhere except the windshield," and that tempered glass is five times stronger than laminated glass. Rice opined that laminated glass would have "abraded" as the vehicle slid on its roof, and could have increased the possibility of more serious injuries.
Plaintiff testified on rebuttal that she was completely conscious throughout the entire accident and that the vehicle "only rolled once."
Prior to jury selection, the trial judge requested that counsel provide "a paragraph or two" that she could read to prospective jurors as a summary of the case, and noted that defense counsel had presented one. Plaintiff's counsel objected to the defense summary's use of the phrase "series of rolls" and reference to "roll overs approximately two and a half times," since these phrases contravened plaintiff's expert's opinion that the vehicle "only rolled a half a time," and the number of rolls was relevant to the damage caused and design defect issue. To satisfy both parties, the judge decided to say merely that "the car rolled over and then struck the guardrail."
However, in making her opening remarks the judge stated:
The Firebird was traveling along, when Mr. Harris attempted to change from the fast lane into the slow lane. It was raining and the roads were wet. Mr. Harris lost control of the vehicle and he began a series of over-correcting steering maneuvers.
The vehicle completed a full 360 degree spin, so it spun completely around, it left the roadway and struck the northern embankment. The Pontiac then tripped, the passenger [side] leading and began a series of rolls. The car rolled over the number of times that the car rolled over is one of the issues in this case. And . . . it then struck the guardrail with passenger's side rear corner.
The impact stopped the roll of the car and induced a clockwise spin of the Firebird. The Firebird spun around on its roof, with the driver's side front corner striking the guardrail, and then slid to a point of rest on the northern shoulder.
The underlying cause of this accident was Mr. Harris'[] speed, considering the weather conditions, and his improperly maintaining his vehicle. (emphasis added)
Plaintiff argues that "[b]efore the jury was impaneled and the trial commenced," the trial judge committed reversible error in that she "advanced, advocated and reinforced the defense theory to the jury that there was no design defect in the glass paneled T-top roof because the roof only collapsed after three violent rolls." Plaintiff contends that the judge's attempt to correct her misstatement by adding that "the number of times the car rolled over is one of the issues in the case," was "insufficient to cure the prejudice to" plaintiff's case.
We agree with plaintiff that the comment, or at least the words "a series of rolls," was unfortunate. However, the phrase was followed immediately by the words "the number of times the car rolled over is one of the issues in this case." In any event, plaintiff did not object or request a curative instruction following the judge's preliminary remarks, and we cannot find that the few words can be deemed "plain error," "clearly capable of producing an unjust result," R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005), followed as they were by the proofs, summations and jury instructions at the ten-day trial.
A.
Plaintiff unsuccessfully sought to introduce (1) Collision Performance Incident Reports ("CPIRS"), which are accident investigations conducted by defendant's wholly owned subsidiary, General Motor Insurance Company; (2) Forms 1241, which are documents containing information collected from dealers when cars are brought in by customers with complaints, and (3) information regarding two other lawsuits involving defendant's vehicles (the Green and Johnson cases). Plaintiff asserts that defendant's lack of responsiveness to the above-described information was relevant to the defect claim, and Phillips indicated at the N.J.R.E. 104 hearing that he would so testify. Plaintiff's expert, Phillips, and defendant's expert, Rice, both testified at the N.J.R.E. 104 hearing as to how the proferred evidence related to the more than one hundred other incidents and accidents involving GM vehicles documented in the CPIRs and 1241s. See footnote 7
Following the hearing, Judge LeBon rendered her decision on the motion, stating:
[T]he plaintiff has the burden of proof in this situation to show that the incidents were either the same or substantially similar circumstances. Now we know they're not the same, so the question is whether there are substantially similar circumstances and whether there is the absence of other causes.
To be substantially similar, I find that the following things or following factors must be present in the incidents that the plaintiff wants to use as compared to the Harris incident. First of all, it has to be a third generation F car with a T-top. . . .
Secondly is that it has to have been involved in a roll-over. The testimony from both Mr. Phillips and Dr. Rice is that the impact on a vehicle is much different if it's involved in a roll-over than if it's not involved in a roll-over. . . . And because the claim in this case is that this vehicle rolled over, at least the one-half turn as alleged by the plaintiff, it is important that in all prior incidents there be a roll-over.
The other is that the T-top had to have come out during and/or as a result of the roll-over because that's the allegation in this case that when the car rolled over, the impact on the roof caused the T-top to come out.
And the third is that there not have been any other side impact, either before, or after the roll-over because as I find, these are the major factors in the Harris accident with which we are concerned.
The judge then evaluated the admissibility of plaintiff's proffered evidence of other incidents and accidents based on these standards, and concluded:
With regard to the 1241s, I find that the plaintiff has not met her burden of proof in this regard. Whether the standard is clearly and convincing as set forth in Harris, or simply is a preponderance of the evidence . . . the thing that's most important to note with regard to the 1241s is that none of them involve roll-overs. And this is a case where we simply can't ignore that the roll-over is involved in this case. . . .
So we can't ignore that, so any incident that doesn't make reference to a roll-over is not substantially similar and cannot be used. This also excludes any reference to the Green [v. GMC, 310 N.J. Super. 507 (App. Div.), certif. denied, 156 N.J. 381 (1998)] and Johnson cases.
. . . .
The issue is much more clouded with regard to the CPIRs. When Mr. Phillips testified, what he said is that he hadn't read the CPIRs. Now, again, we're talking about the summaries. . . . I want to be clear that we're talking about the summaries and not the full documents themselves. Since some time in 2000 that he had flipped through them the night before his testimony.
. . . .
Mr. Phillips indicated that he . . . didn't intend to refer to any one in particular or any one individually but rather refer to them as a whole. And that is an inappropriate way to use this information for several reasons. The first is simply that [to] refer to the 119 documents as information that General Motors had concerning a defect without going through each and every one gives the wrong impression to the jury since based on my conclusion that the factors that must be there are roll-overs, T-tops coming off, no side impact. All of them do not include those factors, any of them, much less all of them. So this information given to the jury would be inaccurate, in addition to which simply to hold up a stack of papers or to refer to a stack of papers is highly inflammatory with little, if any, evidentiary value.
Additionally, there has been no showing by the plaintiff of any connection between the information in the CPIRs and the defect in this case sufficient to satisfy the Court, satisfy me of the substantial similarity. The alleged defect in this case is that the structural instability of the roof allowed the T-top to come out in a roll-over situation. It's clear[], if there's no roll-over, then there can't be any substantial similarity, and with regard to the others that are there, there is simply no showing of any of the other factors to be included in the category. And since I said before, since the 1241s don't have any roll-overs, they're out.
Accordingly, I find that the plaintiff has not met her burden of proof to show that any of the information in the CPIRs and the way that she intends to use them meet the substantial similarity test and therefore are excluded from reference in this case.
Plaintiff argues that "the trial court abused its discretion by precluding the CPIR's, 1241s and evidence of other similar accidents." We disagree, and find no "abuse of discretion, i.e., there has been [no] clear error of judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). See footnote 8
It is well established that evidence of other similar incidents and accidents may be admissible for some purposes in a products liability case. See Wymbs v. Township of Wayne, 163 N.J. 523, 534-35 (2000). However, our courts have limited the admissibility of this evidence by holding that "before it can have any probative value it is incumbent upon the party who offers the evidence to show the other occurrences took place under the same or substantially the same conditions as the accident in question." Wymbs, supra, 163 N.J. at 534-35 (quoting DiDomenico v. Pennsylvania-Reading Seashore Lines, 36 N.J. 455, 464-65 (1962) (emphasis added)).
Substantial similarly must be established by clear and convincing evidence. State v. Cofield, 127 N.J. 328, 338 (1992); Harris v. Peridot Chem. (N.J.), Inc., 313 N.J. Super. 257, 283-84 (App. Div. 1998) (upholding admission of other "sufficiently similar and proximate" civil wrongs under "clear and convincing evidence standard" in toxic tort negligence case where "the trial court could reasonably have concluded that there was a sufficient logical connection between the . . . evidence [presented] and a fact in issue." (citations omitted) (alterations in original)); but see Burbridge v. Paschal, 239 N.J. Super. 139, 155 (App. Div.) (holding that "a preponderance of evidence burden . . . is sufficient in a civil case."), certif. denied, 122 N.J. 360 (1990).
In Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 290 (1990), the Supreme Court considered whether "the exclusion of evidence of prior accidents in negligence cases 'to show the dangerousness (or safety) of the particular condition' . . . applies in design-defect failure-to-warn cases." In Ryan, a pool manufacturer claimed "that it was deprived of the opportunity to show the jury that there ha[d] been "only an infinitesimal number of serious accidents in pools with diving boards that conformed to industry standards." Ryan, supra, 121 N.J. at 290. The Court agreed with the manufacturers, holding that "[e]vidence of prior similar accidents is relevant and should be admissible as evidence of the risk, or lack thereof, of a product." Ibid.
In reaching this conclusion, the Court noted that the relevant factors in a risk-utility analysis included "[t]he safety aspects of the product the likelihood that it will cause injury, and the probable seriousness of the injury." Ibid. (quoting O'Brien v. Muskin, 94 N.J. 169, 182 (1983)). Therefore, since "[i]nformation compiled and used by members of the swimming-pool industry . . . concerning frequency of serious injuries resulting from diving accidents [was] precisely the kind of information that might assist a jury," the Court held "that exclusion of defendant's expert testimony amounted to reversible error." Ibid.
Significantly, the evidence sought to be admitted in Ryan involved the same type of accidents, or lack thereof, as the accident at issue in that case. By contrast, in the present case, the trial judge reasonably found that the accidents plaintiff sought to introduce were not substantially similar to the Harris' accident.
The Court again addressed the admissibility of prior-incident evidence to prove the existence of a dangerous condition in Wymbs. There, the plaintiff "sustained severe head injuries" when a car in which he was a passenger lost control on a curve and struck a utility pole. Wymbs, supra, 163 N.J. at 529. Plaintiff sued the Township of Wayne, among others, claiming that the curve in the road was a "'dangerous condition' on public property as defined . . . [by] the New Jersey Tort Claims Act." Id. at 528. At trial, plaintiff sought to introduce evidence of prior accidents at the same site as proof of a dangerous condition and of notice. Id. at 532. On appeal, the Supreme Court held
that prior accidents can be used to prove the existence of a dangerous condition on public property if the following threshold is satisfied: (1) the same or substantial similarity of circumstances between the prior accident and the one involved in the case on trial, and (2) the absence of other causes of the accident.
[Id. at 536.]
According to Justice Coleman, "[t]he requirement of substantial similarity is more stringent when the prior-accident evidence is offered to prove the existence of a dangerous condition than when offered to prove notice," id. at 536, and, therefore, "[r]equiring different levels of similarity depending on the purpose for which the prior accidents are offered ensures that there is a 'logical connection' between the prior accidents and the 'fact in issue.'" Id. at 537. In any event, the Court stated that "[t]rial courts have broad discretion in determining whether the 'logical connection' exists and whether that evidence should be otherwise excluded under N.J.R.E. 403." Ibid. As a result, the Court held in Wymbs that the trial court did not abuse its discretion in restricting the evidence "to the issue of notice." Ibid.
As in Wymbs, plaintiff desired to present evidence of other incidents and accidents to prove the existence of a dangerous condition. As such, the "more stringent" requirement of "substantial similarity" applies, Wymbs, supra, 163 N.J. at 536, and it cannot be said that the trial judge abused her "broad discretion" by excluding the proffered evidence regarding other accidents because those other accidents did not involve F cars with T-top roofs involved in rollover accidents. Moreover, those accidents also did not involve a roof panel coming out as a result of a rollover or otherwise. The trial court's holding was also reasonable in light of Phillips' inability to provide sufficient information about the circumstances of the other incidents, as he had only "thumbed through [the proffered evidence] briefly" the night before the hearing and was therefore only generally familiar with its content.
In sum, plaintiff did not establish by clear and convincing
evidence, or even by a preponderance of the evidence, that the other incidents and accidents she sought to introduce at trial were "substantially similar" to her accident, and the trial judge did not abuse her "broad discretion" in denying plaintiff's request to admit the proof of the prior accidents.
Plaintiff further argues that "[t]he trial court abused its discretion in permitting prejudicial testimony and evidence designed to impeach the credibility of plaintiff's expert at the time of trial that had not previously been provided to plaintiff's counsel." Specifically, plaintiff alleges that the court erred "in refusing to permit plaintiff an opportunity to obtain, review, examine, discuss with her expert or prepare cross examination of defense witness concerning defense exhibits D-68, D-69, D-70, D-71, D-72 or D-73." Again, we disagree.
The record does not reflect that defendant or its expert introduced, discussed or utilized the articles, D-68, D-69 or D-70 in any way.
D-71, D-72 and D-73 for identification are articles written by Honda engineers which were presented or discussed at a convention of the Society of Automotive Engineers. They were referred to first by Phillips who testified that he "viewed [the] three papers." Thereafter Rice described the articles and disagreed with Phillips' assessment as to their meaning. It appears that defendant used the articles to dispute Phillips' testimony that the articles supported his theory that the Firebird was defectively designed. The trial court did not abuse its discretion in permitting Rice to testify about the articles in response to Phillips' testimony. In any event, the "Master Index" does not reveal that any of these exhibits were admitted into evidence.
C.
Plaintiff argues that the trial court abused its discretion when, on direct examination of reconstruction expert Cleve Bare, it allowed to be admitted into evidence, "[w]ithout notice to plaintiff . . . a clear plastic model car with directional arrows of this expert's opinion of how and in what manner the subject vehicle contacted the ground [exhibit D-16B]," and "a large fold-out, table-top diagram to show the alleged point of trip, point of impact with the guardrail and point of rest of the Harris vehicle [exhibit D-15A(1)]." Defendant asserts that the exhibits were identified on defendant's "Exhibit List" prior to trial, and "facsimiles of the exhibits were produced at the deposition of Mr. Bare taken by plaintiff['s] counsel seven months earlier." Apparently, plaintiff did not realize that these exhibits would be blown-up and utilized as demonstrative aids.
Trial courts generally have broad discretion to permit the use of demonstrative evidence that will assist the jury in understanding an expert's opinions. N.J.R.E. 611; Biunno, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611 (2004). See also Rodd v. Raritan Radiologic Assoc., P.A., 373 N.J. Super. 154, 165 (App. Div. 2006); State v. Scherzer, 301 N.J. Super. 363, 434-35 (App. Div.), certif. denied, 151 N.J. 466 (1997). Here, plaintiff never argued that the exhibits did not "sufficiently duplicate[] the original event," and since both the model car and scene diagram "illustrate[d] [Bare's] testimony and facilitate[d] jury understanding[,]" the trial court did not abuse its discretion or "wide latitude" in admitting this evidence. Rodd, supra, 373 N.J. at 165. In any event, we can find no objection to the admission of these exhibits.
Plaintiff also claims that the defense should not have been allowed to introduce enlargements of four photographs taken by Widas (D-5A, D-5B, D-5C, and D-5D). However, these photographs were all authenticated by Widas in their smaller versions. The enlargements were merely duplicates of properly authenticated photographs and therefore were properly admitted. See N.J.R.E. 1003; Rodd, supra, 373 N.J. Super. at 165-66. In any event, we find no relevant objection to the admission.
Plaintiff unsuccessfully sought to present exhibit P-15 for identification during the cross-examination of Bare. P-15 was a close-up view of the ground near the accident scene, which was taken by Widas. Although Widas was questioned about numerous other photographs he took at the accident scene, he never authenticated P-15. In fact, the first mention of P-15 came during plaintiff's cross-examination of Bare. Plaintiff's counsel asked Bare to identify the object in the photograph, and Bare responded that it looked like "some form of a stop light to some form or a truck" and was red in color. Upon defendant's objection at sidebar, plaintiff's counsel indicated that his objective was to demonstrate that the red mark on the guardrail could have been made by the red object depicted in the photograph, as opposed to the Harris vehicle.
Plaintiff contends that it "was a clear abuse of discretion, cumulative in effect, to permit the defense to show the jury and admit into evidence the alleged enlarged, blow-ups of Widas photographs and prohibit Appellant from showing the jury a clarifying photograph." According to plaintiff, "[b]y precluding [her] from admitting into evidence or showing the jury exhibit P-15; and by limiting counsel's ability to cross examine this expert witness on the issue of the red paint transfer, the jury was persuaded that the fixed point of impact with the guardrail was an absolute and uncontroverted."
However, the photograph was not authenticated by Widas or anyone else, as required by N.J.R.E. 901. "For authentication, a witness must identify the persons, places, or things shown in the photograph or videotape," State v. Wilson, 135 N.J. 4, 14 (1994), and this was not done. Moreover, we fail to understand how the photograph would have helped plaintiff's case. As the trial judge stated at the side bar, testimony that the red mark on the guardrail could have come from the object in the photograph instead of from the Firebird would have been inconsistent with the testimony of plaintiff's own expert, Phillips, as well as Widas, both of whom opined that the red mark was made by the Firebird. The trial court indicated that plaintiff could recall Widas in rebuttal if she desired, and the judge did not abuse her discretion in refusing to admit P-15 into evidence. Rodd, supra, 373 N.J. Super. at 165-70.
D.
Plaintiff argues that "[t]he trial court committed reversible error when it precluded the plaintiff from probing the credibility of . . . expert witness [Charles Hatsell] on cross examination." Dr. Hatsell testified for the defense that in his opinion, the severe lacerations on the left and right side of plaintiff's head were sustained at different times during the accident, and that such an injury pattern was consistent with a multi-roll event like that reconstructed by defense reconstruction expert Bare. In Hatsell's opinion, plaintiff's injuries "absolutely" could not have been sustained in "a half roll." According to Hatsell, if the vehicle had experienced only a single half-rollover onto its roof, plaintiff would have sustained a more uniform injury across the top of her head without uninjured areas in between.
During cross-examination, plaintiff's counsel asked Hatsell to step down from the witness stand and examine plaintiff's head. Plaintiff stated that the examination would reveal a scar on her head that contradicted Hatsell's testimony that she sustained no such injury. However, the trial judge denied plaintiff's request for the in-court examination because almost eight years had passed since the accident occurred and because plaintiff had received intervening surgery. According to the judge, Hatsell testified "about how the injuries were caused, not how the scars were caused."
Although the trial court refused to permit this examination, it did not restrict plaintiff from utilizing pictures of the plaintiff's head to cross-examine Hatsell about his opinions regarding the causation of plaintiff's injury. In addition, on rebuttal the following day, the judge allowed plaintiff to show her scars to the members of the jury. She also testified that she had no surgery on the right side of her head near the location of the scar.
The scope of cross-examination is also within the "discretion" and control of the trial court. The exercise of this discretion "will not be interfered with in the absence of palpable mistake." Ostroski v. Mt. Prospect ShopRite, Inc., 94 N.J. Super. 374, 382 (App. Div.), certif. denied, 49 N.J. 369 (1967). We cannot conclude there was any abuse of discretion or harmful error in precluding the demonstration of a scar during Hatsell's cross-examination. See also N.J.R.E. 611(b).
In sum, the trial court made no evidentiary rulings constituting an abuse of discretion, but even if we were to conclude there was some error, it would not warrant reversal. See Brown, supra, 170 N.J. at 147.
IV.
At the close of all evidence, GM moved for judgment against James Harris pursuant to R. 4:40-1. The trial court granted this motion upon making the following findings of fact:
It is clear that Mr. Harris lost control of the vehicle and he tells us that he lost control of the vehicle as he switched from one lane to the other.
He also said that there was nothing on the road but water that caused him to lose control of the vehicle. It wasn't as if there was an obstruction in the roadway, another vehicle that he had to suddenly stop for, or swerve around or do anything else.
He simply changed lanes and lost control of the vehicle.
An issue has been made with regard to this speed and he believes that he was going 55 miles per hour. He doesn't recall telling the police officer that he was going 60, and Mr. Bare says he was probably going more than that.
. . . .
Dr. Rice talked about the driving by Mr. Harris and what he said is that it was clear to him that Mr. Harris was driving at an excessive rate of speed for the conditions. And he based this on the fact that Mr. Harris lost control of the vehicle. He said he lost control of the vehicle, so it was obvious he was driving at an excessive speed.
No one else has offered any explanation of how this accident has happened. The plaintiff hasn't offered any explanation, other than Mr. Harris saying the water caused him to lose control of his vehicle.
It's the obligation of motorists who are operating their vehicles on . . . our highways and roadways to be in control of the vehicle at all times and to operate the vehicle according to the circumstances as they find them to be, regardless of what the speed limit is. See footnote 9
. . . .
The issue is whether he was negligent and I direct everyone's attention to the model jury charge on negligence. Negligence may be defined as a failure to exercise, in the given circumstances, that degree of care for the safety of others which a person of ordinary prudence would exercise under similar circumstances. . . .
From the evidence that has been presented, no reasonable fact finder could come to any conclusion other than that Mr. Harris was operating his motor vehicle in a negligent manner on the day that this accident occurred. And that his negligent operation of the vehicle was the cause of the accident and the cause, at least initially, of the injuries to Mrs. Harris.
Plaintiff contends that "the trial court abused its discretion by determining that James Harris was [] guilty of negligence." She argues that "[t]he question of negligence should have been submitted to the jury to weigh the evidence and determine, perhaps with a charge of the doctrine of Res Ipsa Loquitor.
R. 4:40-1 provides that "[a] motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all the evidence or at the close of the evidence offered by an opponent." We have explained that "[a] motion for a directed verdict at the conclusion of the evidence must be denied if the evidence, together with the legitimate inferences to be drawn therefrom, could sustain a judgment in favor of the party opposing the motion." Blazoski v. Cook, 346 N.J. Super. 256, 274 (App. Div.) (citing R. 4:40-1; Dolson v. Anastasia, 55 N.J. 2, 5 (1969)), certif. denied, 172 N.J. 181 (2002). "The essence of the inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that the party bringing the motion must prevail as a matter of law." Ibid. (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "Thus, '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.'" Id. at 274-75 (quoting Dolson, supra, 55 N.J. at 5).
We find no basis for disturbing the ruling or concluding that any error in granting the motion would have affected the result as to the alleged defect. James acknowledged that it was "raining hard" on the evening of the accident and that he was driving "[a]pproximately 55" or slightly faster in the "fast lane" when the vehicle started to "fishtail" upon "changing lanes." As the court pointed out, plaintiff's claim against her husband was settled, and he did not defend the third party complaint at trial. Therefore, on the record before us defendant was entitled to judgment on the third party complaint insofar as the cause of the accident is concerned. As the jury found that the Firebird was not defectively designed, the issue of James Harris' negligence was not relevant to the apportionment of damages, and we need not address that issue or what the judgment could have provided if plaintiff received a recovery from defendant. We simply conclude that the ultimate outcome of the case as to the product defect could not reasonably have been affected by the grant of the motion under R. 4:40-1.
Finally, plaintiff contends that "the trial court abused its discretion in its charge to the jury." Specifically, plaintiff objects to (1) the court's elimination of a portion of the model jury charge for "crashworthiness"; (2) the court's denial of plaintiff's request to charge the jury with the risk utility factors and failure to warn; (3) the court's proximate cause charge and instruction on apportionment of plaintiff's injuries on the basis of causation and comparative negligence, and (4) the court's reference to plaintiff's settlement of the claim against her husband prior to trial. In reviewing the claim, we note that "[t]he trial judge's instructions must be read as a whole, [and s]o long as the charges adequately convey the law to the jury and do not mislead or confuse, we should not interfere." Zappasodi v. State, Dep't of Corrections, 335 N.J. Super. 83, 89 (App. Div. 2000).
First, plaintiff claims that the concept of "crashworthiness" was not adequately defined in the charge because the trial court did not quote verbatim the introductory paragraph of the model jury charge. Specifically, plaintiff argues that "[t]he trial court eliminated that portion of the charge that requires a vehicle manufacturer to design a vehicle that prevents intrusion of some part into the occupant compartment or the propelling of an occupant outside the safe survival space of the vehicle. The result was likely to mislead or confuse the jury." See Model Jury Charge 5.34C-5 "Crashworthiness Instruction." However, while
[m]odel jury charges are often helpful to trial courts performing this important [charging] function. . . . [a]n instruction that is appropriate in one case may not be sufficient for another case. Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case.
[State v. Gartland, 149 N.J. 456, 475 (1997) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)).]
In the context of a complex crashworthiness case, we have held that "the jury should be instructed on legal principles in the context of the particular facts of the case and the parties' contentions, rather than on abstract principles of law." Poliseno v. General Motors Corp., 328 N.J. Super. 41, 62 (App. Div.), certif. denied, 165 N.J. 138 (2000). "'Crashworthiness' is defined as the ability of a motor vehicle to protect its passengers from enhanced injuries after a collision." Id. at 51 (citations omitted). "Strict liability is imposed on a manufacturer for injuries sustained in an accident involving a design or manufacturing defect that enhanced the injuries, but did not cause the accident. Id. at 52. (citations omitted). Here, the trial court gave the following relevant instructions on crashworthiness:
The plaintiff's claim in this case is referred to as a crash worthiness claim. Crash worthiness is defined as the ability of a motor vehicle to protect its passengers from enhanced injuries after a collision. A vehicle must be designed to be reasonably crash worthy. This does not mean that it must be injury proof.
The plaintiff here does not claim that a defect in the 1990 Pontiac Firebird T-top caused the accident, but rather the alleged defects of the design of the Firebird's T-top roof caused her to sustain enhanced injuries, worse injuries than she would have received if the roof had been designed differently.
Mrs. Harris claims that the Firebird's T-top roof should have been designed to include permanent side rails and laminated glass. She claims if the T-top roof had been designed with these permanent side rails and laminated glass, the roof would have been less susceptible to deforming when the car rolled over and would have protected her head from the injury.
General Motors on the other hand claims that the side rails designed with removable T-top panels provided sound structural support. That the side rails of the T-top panels remained in place on the Firebird during the accident. That the roof of the Firebird deformed to the extent that it did because the accident was extremely severe and involved multiple rolls. That the permanent side rail design proposed by the plaintiff would have deformed to the same extent in the subject accident as the removable T-top design. That the laminated glass breaks easier than tempered glass and would have shattered in the subject accident. And that the layer of poly vinyl butyl contained in the laminated glass would have abraded and tore as the vehicle slid on its roof exposing Mrs. Harris'[] head to the surface of the road, and that laminated glass would have created the potential for greater injury to Mrs. Harris because it breaks into sharp [shards], not small cubes like the tempered glass.
If you find that the 1990 Firebird T-top was not reasonably safe because it should have incorporated plaintiff's alternate roof design, then you will have found that it is not crash worthy, and therefore defective. If however you find that the Firebird T-top was reasonably safe as designed, then you would have found that it was reasonably crash worthy in favor of General Motors.
If you find that the Firebird was not reasonably crash worthy, you must next decide whether Mrs. Harris would have received lesser injuries in the accident if the vehicle had the alternative roof design.
The trial judge adequately defined the term "crash-
worthiness" and properly tailored the charge to the specific defect allegations in this case.
When discussing the proposed jury charge with counsel, the trial court stated that "risk utility and warning" were "out of the case" because it was "clear" that "Mr. Phillips made no mention of warnings," and the parties agreed that "we're really only talking about the design defect and a reasonable safer design." Plaintiff now argues that "[b]y precluding evidence of the CPIR's and 1241 reports, the trial court [improperly] removed the risk utility analysis and denied the Request to Charge to the jury with Failure to Warn." However, we have already upheld the judge's evidentiary ruling. Moreover, the judge charged on design defect and gave the portion of the Model Jury Charge 5:34C-3 on "design defect," including the relevant "reasonably safer design" charge. She did not err by excluding the other risk/utility factors that did not apply to this case.
We find no expert testimony on the failure to warn. As noted by the trial judge, the word "warning" does not appear to have been mentioned anywhere in plaintiff's case-in-chief. Therefore, we conclude that plaintiff's argument that an instruction on failure to warn was required is without merit.
Next, plaintiff objects to the trial court's charge of the jury "with an abbreviated version or defendant's version of Proximate Cause[,]" which "left out the 'intervening cause of the accident' language and . . . never defined 'foreseeable' and did not instruct the jury that accidents were a 'foreseeable' intended use of automobiles." Plaintiff claims that "the trial court's refusal to give the complete charge for proximate cause that [James Harris' negligence which caused the] accident was a reasonably foreseeable event that would not relieve the defendant from liability, completely confused and misled the jury to a decision adverse to the plaintiff." Moreover, plaintiff argues that the trial court improperly charged the jury on the subject of injury apportionment between defendant and James Harris.
The trial court gave the following jury instruction with regard to proximate cause:
Proximate cause means that the alleged design defect of the T-top was a substantial factor which sing[ular]ly or in combination with another cause or causes, brought about the injuries to the plaintiff. Mrs. Harris need not prove that this same accident could have been anticipated so long as it was foreseeable that some significant harm could result from the alleged design defect.
If the defect does not add to the risk of the occurrence of plaintiff's injuries and therefore is not a contributing factor to the happenings of those injuries, then plaintiff has failed to establish that the design defect was a proximate cause of the injuries. If plaintiff has proven each element, then you must find for the plaintiff. If on the other hand, plaintiff has failed to prove any of the elements, then you must find for the defendant.
If you find that the plaintiff as shown by a preponderance of the credible evidence that the T-top as designed was defective in that it was not reasonably safe for its intended or reasonably foreseeable uses, and too that the defect in the T-top was a proximate cause of the enhanced injuries, then you must find for the plaintiff. If the plaintiff has failed to establish any of these elements, then you must find for the defendant.
We find no basis for concluding the instruction was insufficient. The judge tailored the proximate cause instruction to the facts of the case. In any event, since the jury found no defect and the issue of apportionment was never reached by the jury, no prejudice can be shown.
Finally, plaintiff contends that "[t]he instruction to the jury that plaintiff settled her claims with James Harris before the start of trial was improper" because "[t]his instruction is [only] appropriate when one of several defendants named in the litigation resolve their claims by way of settlement. Wendy Harris never sued James Harris in this product liability litigation," but instead "settle[d] a negligence claim with James Harris long before suit was instituted against GM." Plaintiff argues that this instruction "could easily [have] convince[d] the jury that James Harris had accepted liability for the injuries to Wendy Harris" and thus the instructions "improperly misled" the jury that he was "100% at fault for the [] injuries to his wife" as well as for the accident itself.
The trial court gave the following jury instruction on the Harris' pre-trial settlement:
Before the trial started, plaintiff Wendy Harris and James Harris resolved their differences. As a result, Mr. Harris was not present or represented by an attorney during this trial. He only appeared as a witness for the plaintiff. You are not to speculate as to the reasons why the plaintiff and Mr. Harris settled their dispute. You should not be concerned about the amount, if any, that may have been paid to resolve the claim against him. You must decide the case based on the evidence you find credible and the law presented during this trial.
The jury would have had to address apportionment if it found a design defect which was a proximate cause of plaintiff's injuries. As a result, the fact of settlement with James was properly brought to the jury's attention. Theobold v. Angelos, 40 N.J. 295, 303-04 (1963). Accordingly, the judge's instructions were appropriate. In any event, we cannot conclude that these instructions resulted in the finding of no design defect.
After a thorough review of the record, we conclude that there is no basis, as a result of plaintiff's arguments or the aggregate of these arguments, on which to reverse the judgment. There was no evidentiary ruling that constituted an abuse of discretion, the jury instructions adequately stated the law and related the law to the facts and issues to be decided by the jury, and the evidence supports the jury's conclusion that the Firebird was not defectively designed. In essence, the evidence warrants the conclusion that the accident and resulting injuries were solely attributable to driver error. As such, there is no basis to reverse.
The judgment is affirmed.
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Footnote: 2 By a vote of 8-0 the jury answered "no" to "[w]as the T-top roof of the 1990 Pontiac Firebird defectively designed in that it was not reasonably fit, suitable and safe for its intended purposes in the circumstances of the subject accident?"
Footnote: 3 The judge declined to find Phillips "as an expert in accident reconstruction" and other subjects beyond "crash worthiness" and "alternative design" because of his limited study of the accident, the lack of a reconstruction report and limited nature of the subject of his proffered testimony.
Footnote: 4 This opinion contradicted plaintiff's deposition testimony, noted above, that she observed the side rails still in place after the accident.
Footnote: 5 In light of the verdict, the issues raised before us, and the disposition of this appeal, we need not recite, in detail, the evidence concerning plaintiff's injuries and damages.
Footnote: 6 Rice noted plaintiff's deposition testimony that she saw the side rails in place after the accident.
Footnote: 7 Defendant supplied plaintiff with P168, "an accident data analysis" of 118 accidents, in response to Phillips' certification of need in order to prepare his report.
Footnote: 8 Plaintiff complains that the CPIRs were excluded "because they are case summaries and not the full summaries and not the full reports." Plaintiff also asserts that GM did not "indicate that the CPIRs produced were only case summaries." But nowhere in the record before us did plaintiff assert that the short half page or less accident "analysis" in each case was insufficient compliance with discovery orders or demands. This is particularly significant because Phillips acknowledged receiving "full CPIR reports," in the Johnson case and "just the summaries" in the Harris case. 148 documents containing 1241 investigative reports regarding F cars with alleged roof problems were produced in discovery, but none apparently involved a "roll over" event.
Footnote: 9 Plaintiff does not argue that Pennsylvania law is different, and in fact relies on New Jersey law.
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