REBEKAH S. ZAKROCKI v. FORD MOTOR COMPANY and FREEHOLD FORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5769-06T35769-06T3

A-5799-06T3

REBEKAH S. ZAKROCKI,

Plaintiff-Respondent/

Cross-Appellant,

v.

FORD MOTOR COMPANY,

Defendant-Appellant/

Cross-Respondent,

and

FREEHOLD FORD,

Defendant-Appellant.

________________________________________________________________

 

Argued February 2, 2009 - Decided

Before Judges Carchman, Sabatino

and Simonelli.

On appeal from the Superior Court of

New Jersey, Law Division, Middlesex

County, Docket No. L-10179-02.

Douglas S. Eakeley argued the cause

for appellant Freehold Ford and for

appellant-cross-respondent Ford Motor

Company (Lowenstein Sandler, attorneys;

Mr. Eakeley, of counsel and on the

brief; Alan S. Modlinger and Monica

Perrette, on the brief).

Barry R. Eichen argued the cause for

respondent-cross-appellant (Eichen,

Levinson & Crutchlow, attorneys;

Mr. Eichen, of counsel; John H.

Sanders and Steven Lowry, on the brief).

PER CURIAM

This is an appeal and cross-appeal from a jury award of compensatory and punitive damages to plaintiff Rebekah S. Zakrocki against defendants Ford Motor Company (Ford) and Freehold Ford (Freehold). This product liability case arose from plaintiff's highway accident. Plaintiff alleged that, after an application of the brakes, the throttle was unresponsive. She pressed hard on the accelerator to make it work, which made the vehicle surge forward. She tried to avoid hitting the cars ahead and to her left, but she lost control of her vehicle and it rolled over several times. She sustained serious injuries, including the near-amputation of one hand.

Plaintiff brought this action against Ford, the manufacturer, and Freehold, the dealership that sold plaintiff the vehicle. The jury rejected plaintiff's theory of a rollover defect but accepted her claim that the throttle was defective. The jury also accepted her claim that Freehold should have replaced the allegedly defective throttle before selling her vehicle because Ford was reimbursing such work without question. Defendants appeal the jury verdict, and plaintiff cross-appeals the punitive damages award. We affirm and dismiss both the appeal and cross-appeal.

I.

This litigation extended over five years and consumed approximately one month of trial time. Since the appeal focuses on the nature of the evidence presented, we provide an extensive exposition of the relevant facts adduced at trial. We first address the accident and the ensuing injuries and then focus on the substantial issues as to liability.

A.

In May 1999, plaintiff purchased her vehicle, a used 1997 Ford Explorer with approximately 29,000 miles, from Freehold. Until the accident on November 10, 2000, she did not experience a sticking throttle. Freehold performed two minor repairs unrelated to the throttle system, without telling her that her vehicle might be subject to throttle problems or that Ford had a program to replace the throttle body at no cost.

On November 10, 2000, plaintiff, twenty-two years old on the day of the accident, drove from her home to a gas station about a mile away, stopped to buy gas and drove to the Garden State Parkway. She was not wearing her seatbelt. She was on the northbound side of the Parkway for approximately ten minutes before the events immediately preceding the accident, and she indicated that she was not weaving in and out of traffic.

Plaintiff was in the middle lane and getting closer to the car ahead, which was going "a lot slower than [she] was." She checked her speedometer and saw that she was driving at sixty-five miles per hour. She took her foot off the gas but was nonetheless getting even closer, so when she was still three car-lengths away she decided to brake. There were vehicles next to hers on both sides.

When plaintiff's vehicle was about one or one and one-half car lengths behind the vehicle ahead, she put her foot back on the accelerator. She "felt that it was stuck," and she "had to step on it about two times to get it unjammed." The accelerator "went down to the floor and the car surged forward very fast," enough to push her back into her seat and scare her. Plaintiff steered to the left in order to avoid hitting the car ahead. She maneuvered her vehicle into the left lane, but then it "leaned" to the left and went out of control. "It was going back and forth, back and forth, back and forth really fast. It just happened in a flash . . . ." "[T]hen the car shot at an angle towards the middle lane" and flipped over.

At some point during the accident, and apparently without plaintiff's knowledge, her vehicle hit the left side of Arthur Del Pizzo's car. Del Pizzo had been driving in the right lane at approximately fifty miles per hour because his car was noisy and unpleasant at higher speeds. He had been unaware of plaintiff's vehicle, but when he felt the impact he took his foot off the gas and steered to the right. As plaintiff's vehicle went ahead of his, he observed that it was swerving and "sliding" in the direction of the roadway but oriented at a forty-five degree angle. It then rolled over two or three times.

Another driver, Jiam Huang, was traveling in the left lane at the time of the accident at a speed of between sixty and seventy miles per hour. The vehicles in the center lane were traveling at "more or less" the same speed. When Huang first noticed plaintiff's vehicle, it was in the center lane somewhat ahead of his, traveling at the same speed as the surrounding traffic.

The next thing Huang noticed was that plaintiff's vehicle came into the left lane. Instead of the driver signaling and sliding gradually into the lane, the vehicle "zigzagged," turning "very rapidly" to one side and then to the other, coming into his lane and then going back to the center lane. Huang felt that plaintiff's vehicle suddenly leaned toward his car, which required him to brake, and his car was hit by the one behind it. He and the driver of that car stopped and confirmed that neither of them was injured. The other driver asked Huang what happened, and Huang told him that he braked because plaintiff's vehicle had zigzagged in front of his. Raymond Schucht, another driver, related similar observations.

Robert Orozco was the driver of the car that hit Huang's. He was driving in the left lane at about seventy-five miles per hour and had been observing plaintiff's vehicle for about two minutes. Plaintiff was "making lane changes, trying to get around cars" in order to "go faster," and she applied her brakes when "she got stuck behind a car" that was going slower than hers. Orozco was perhaps 100 feet behind plaintiff at that point, and he could not observe her. He nonetheless surmised that she "tried to get back into the left lane without checking her blind spot and then when she realized there was a car there jerked the wheel back to the right; therefore, flipping it." He did not believe that plaintiff's vehicle hit any others before it flipped. When plaintiff's vehicle started to flip, "everyone obviously slammed on their brakes," but Orozco did not have enough room to avoid hitting the rear of the car ahead of his. He told a police officer that he had seen plaintiff's vehicle being driven erratically.

Plaintiff was seriously injured in the accident. After the accident, the first thing plaintiff remembered was lying on the grass and hearing emergency medical technicians asking if there was someone they should call. She gave them the phone numbers of her mother and her boyfriend. She did not remember anything else before waking up in the hospital.

Christopher Godek, plaintiff's doctor and an expert in reconstructive and plastic surgery, first saw plaintiff on the day of the accident, when she was brought to the hospital. She had a "near complete" amputation of her right arm at the wrist, with only a "skin ridge on the back" keeping it attached. Saving the hand required restoring blood flow within three to four hours of the injury, and Godek initially believed that the chance of doing so was approximately one in fifty.

Plaintiff also had a "total brachial-plexus injury." The brachial plexus is the network of nerves that connects the spinal cord to the arm. A total injury means that the nerves are torn, and the torn nerves were the reason plaintiff was unable to feel her arm after the accident.

Godek initially restored the blood flow to the hand with a bypass tube from the severed artery, plus vein grafts from plaintiff's leg. He removed some dead bone from the broken ends, which left the arm shorter.

Plaintiff's arm injury required skin grafts, also from her legs. Godek stabilized the wrist by installing an external fixator with plates and screws. He tried to fuse the wrist with bone cement, which required more than one attempt. During the first month or two after surgery, plaintiff had a 20% to 30% chance of losing the hand, and her legs were scarred from the harvesting of nerves and skin for grafting.

At some point, "once we got her through the recovery," Godek knew that plaintiff's hand would survive. That was when it "became apparent" that plaintiff could not move or bend her arm in any fashion, consistent with a full brachial plexus injury. It confirmed that the nerves had been "torn out of the spine," and even if they could be reattached to the spinal column, that would not serve to restore arm function. However, "[i]f you could somehow connect nerves outside the spinal column, they will rebuild themselves;" Godek thus pursued surgery that would provide "a different way to get the signals to those nerves." Ultimately, plaintiff could raise her arm to a degree and had a "very, very mild pinch" function, which was "only enough maybe to carry a paper towel roll."

The brachial plexus injury had also caused shoulder instability, which Godek and an orthopedic surgeon tried to moderate with a muscle-transfer procedure. He performed a total of twenty-one surgeries on plaintiff. At the time of trial, Godek considered plaintiff disabled, with no prospect of gaining more arm function and with a likely need for more surgeries that he did not name.

Plaintiff described to the jury her eight skin grafts, the nerve grafts, and the harvesting of hip bone to make the second attempt at fusing her wrist successful. She also explained the muscle-transfer procedure, in which her trapezius was divided and was secured to her right shoulder because there was nothing else to keep the weight of the arm from pulling the shoulder out of its socket. Plaintiff had "extreme" neck and back pain from bearing the arm's weight, plus phantom pains in her hand. She also had extreme pain in the left side of her neck and in her left hand and wrist from constantly using them. In addition, she had "really poor circulation" in the leg from which the largest harvested vein was taken, which made the foot turn purple when she stood for too long.

Plaintiff's right hand was missing a finger. She had a prosthesis for it, but it was attached by suction and she could not feel when a bump knocked it off; the embarrassment of such occurrences in public was worse than that of being seen without it.

Plaintiff eventually married her boyfriend, and they had a child. She stopped working and was receiving payments for permanent disability. At the time of trial, plaintiff was twenty-eight years old.

Pamela Scanlon, an occupational therapist who was certified in hand therapy, first saw plaintiff in 2002, when plaintiff was at home and immobilized for eight to ten weeks after the muscle-transfer procedure. Scanlon stated that, as of trial, plaintiff "only has muscular control over the top of the shoulder and she doesn't have the ability to use those muscles for a functional purpose."

Scanlon opined that plaintiff had "no real function" in her arm, and that she was "paralyzed completely" despite having "some elbow flexion," because she had no use of her forearm and hand and could not hold anything in her right arm. Scanlon explained that plaintiff had chronic neck pain and shoulder discomfort on the left side because she had to use that side for all tasks, and that she had muscle spasms in her neck and upper back because the lack of shoulder function meant that they had to bear more of the weight of her right arm and more of the burden of stabilizing it.

Lorraine Buchanan, a registered nurse who served as plaintiff's expert in rehabilitation, explained that plaintiff could not wear clothing without alterations because "the winging of her scapula and the canting of her shoulder" rendered her "deformed."

B.

The most contentious part of the trial dealt with the throttle system and whether it was defective. We present the trial proofs on that issue. Plaintiff's vehicle was a 1997 Ford Explorer with the 4.0 liter SOHC (single over-head cam) engine. The only defect at issue on appeal, the throttle system, regulates fuel-flow from the throttle body to the cylinders by means of a spring-loaded throttle plate that opens as the driver presses on the accelerator.

Ford was aware of a throttle issue in vehicles like plaintiff's. A Ford memorandum of February 9, 1998, noted reports of a problem with surging and hesitation in such vehicles. Customers were reporting "a resistance to accelerate off idle or a[n] engine hesitation off idle." The throttle plate was sticking in the closed position due to misalignment or sludge accumulation. Misalignment was a factor on vehicles with less than 1,000 miles, which represented five percent of the reports, whereas sludge was the only problem at higher mileages.

Misalignment would be resolved by the installation of a thicker throttle plate with a stronger shaft. Sludge accumulation would be addressed by adding a "[p]ost set process" to the throttle body that increased clearance around the throttle plate, apparently by repositioning it slightly. Ford was also "evaluat[ing]" a change in the exhaust gas recirculation ("EGR") system that channeled hot exhaust gases back into the throttle, so that it would direct those gases away from the throttle plate.

A March 10, 1998 meeting at Ford on sludge accumulation in the throttle body reported a working hypothesis. A memo of that meeting started with the composition of the deposits, which included carbon in the gas flows entering the throttle body from the EGR and positive crankcase ventilation ("PCV") systems. That material would be heated by the EGR inflow, and it could reach the cooler underside of the throttle plate "via back flow to throttle plate during throttle closing[s]." The deposits would accumulate during "[t]hrottle [p]late [t]emperature [c]ycling," which occurred during engine operation as well as when the engine was shut: "Plate is alternately heated and cooled by engine operating cycle transients and shutdown/soak history. . . ." The deposits could accumulate on both the plate and the bore, and they could be of "several types" and of "varying strengths," ranging from "fluff" and "mud" to "hard carbon" and "varnish." The memo added that the tendency of such deposits to cause sticking or binding could be alleviated or aggravated by "design and manufacturing tolerances."

On October 19, 1998, Ford sent dealers a technical service bulletin about 1997 and 1998 Ford Explorers and 1998 Mercury Mountaineers with the same engine as plaintiff's vehicle. The memorandum had been prompted by customer reports of a "throttle stuck at idle," with a "common concern" of "a hard to depress accelerator pedal first thing in the morning or after being parked for several hours." The bulletin named the conditions it addressed as "hesitation throttle hard to depress," "surge throttle hard to depress," or "throttle-sticky accelerator pedal." The "action" was for the dealers to "[i]nstall a new throttle body assembly," in which the "[c]learance between [the] throttle plate and bore has been increased to reduce the possibility of sticking." The replacements would be covered by the vehicle warranty. Mark Hoffman, a Ford employee, noted that the bulletin provided dealerships with information on how to handle such complaints, but it was not an instruction for them to replace the throttle bodies on all subject vehicles.

On January 7, 1999, the Office of Defects Investigation ("ODI") in the National Highway Traffic Safety Administration ("NHTSA") opened investigation EA99-001 for the problem of "[t]hrottle not returning to idle after the accelerator is released or when the speed control is deactivated." An ODI summary stated that a Ford response dated October 28, 1998, had identified 10,463 reports of throttle sticking, of which 98.9% were for vehicles with the same engine as plaintiff's. Ford further stated that 91% of those reports "concern throttles sticking closed, which occur only after the vehicle is parked for several hours." However, ODI considered approximately 36% of the reports to be indeterminate because they failed to indicate whether the sticking occurred while the throttle was open or closed.

ODI related Ford's position that there was no significant safety problem because 89.7% of the reports involved throttles that were stuck closed rather than open. Ford believed that, once the engine was turned on and the throttle was freed, the throttle would not stick again before the engine was shut. However, Ford had not indicated how many reports it had received in which "the throttle repeatedly sticks closed during the driving cycle." ODI believed that such a situation "may well be a safety related problem" because "[t]he driver may have to push down hard on the accelerator pedal to move the vehicle and lose some vehicle acceleration control."

ODI observed that the rate of warranty claims in 1998 for the throttle was forty-two times higher than Ford's average claim rate. It concluded that "the high failure rate of throttle sticking, the lack of information on many of the throttle malfunction incidents, the number of ongoing modifications to the throttle body assembly, the remedy for the sludge formation issue not yet resolved, and the reports of throttle sticking" compelled further investigation "to fully determine the scope of throttle malfunctions and the relationship to motor vehicle safety."

In May 1999, Ford notified owners about its "no-charge Service Program." It informed them that their vehicles "may experience throttle body plate stick or bind in a closed position after the vehicle has been parked with the engine off," and that "[t]his condition can cause the accelerator pedal to feel stuck or unresponsive the next time the vehicle is used." Ford extended the warranty on throttle bodies to 6 years or 72,000 miles, with free replacement during that period "[i]f the throttle body on your vehicle should experience the condition as stated above."

Ford responded to a NHTSA request for additional information on August 3, 1999. It stated that the number of 1998 model-year Ford Explorers and Mercury Mountaineers sold with the same engine as plaintiff's vehicle was 273,471. Ford had notice of seventeen allegations of accidents arising from a throttle that "[s]ticks [c]losed," two of which also alleged injuries. In addition, Ford had notice of nine alleged accidents involving a throttle that "[s]ticks [o]pen or [p]artially [o]pen," and ten allegedly involving "[u]nexplained [s]udden [a]cceleration." That tabulation did not indicate whether the engines were alleged to have been cold or warm at the time of the accident.

The response added that Ford had identified 48,935 warranty claims for throttle sticking in 1997 model-year Explorers that owners had presented between October 1998 and May 1999. At NHTSA's request, Ford sorted the reports of throttle problems into categories, chiefly throttles that were stuck open or stuck closed. When a complaint failed to specify either condition, Ford presumed that it was about a closed throttle, in the belief that it "would be remarkable for a report to only describe a stuck open throttle with only the word 'sticks' or 'binds[,]' . . . . [and] even more incredible" that "large numbers of such reports" about throttles stuck in the open position "with the attendant consequences" would fail to specify that the throttle was stuck open. By contrast, "the prevalence of the stuck closed condition" when the engine was cold (labeled "code A") made it "well known among dealers, technicians, and some owners," to the point that it "did not require further description" than to be named simply as a stuck throttle. For similar reasons, Ford also coded a report as code A if it indicated that the accelerator was "[h]ard" or "[s]ticks when initially pressed or on accel[eration]."

Ford believed that its survey of a sampling of owners who had made reports confirmed the accuracy of those presumptions, because the complaints that those owners had submitted with no further detail (labeled "code Q") were all instances of throttles sticking closed when cold, as were fourteen of the seventeen complaints that those owners had submitted with no useful detail at all (labeled "code C"). Ford thus used those presumptions to categorize 35,661 of the reports, or 64.8%, as code A; together with the 25% as code Q and the 8.8% as code C, the accounted for 98.6% of the total. Ford had also received 67 reports of a throttle that stuck closed when the engine was warm, or 0.19% of the total. Ford labeled those reports as "code AH," and observed that they "may potentially be an A code that has progressed from a cold start only issue to an overt condition when the engine is warm."

As for the problem of "vehicle surging," Ford explained that its engineers used the term "surging" to denote "engine or powertrain fluctuations" that resulted in a small change or small oscillation of vehicle speed, usually no more than one mile per hour above or below "the set road load speed." Such surging "can vary from imperceptible to the customer, to an annoyance." By contrast, Ford believed that owners used the term to describe "the vehicle reaction during acceleration where the throttle plate is momentarily stuck closed," and the driver presses harder on the accelerator in order to free it: "The driver endeavors to overcome the momentary lack of normal acceleration, which can be perceived as a hesitation, by pressing harder on the pedal. At the moment the throttle plate releases, it may produce an acceleration stronger than expected, resulting in the vehicle 'surging' forward . . . ."

The response then described preproduction testing of a modified throttle body, which had raised a concern that the throttle could stick in the partially open position "due to an apparent sludge build-up on the throttle bore." Ford stated that it resolved that problem before production began, by "a significant re-design of the [EGR] inlet tube located downstream from the throttle body."

As to the particular effects of sludge, Ford believed that sludge could cause sticking only when the throttle was cold, which would require the engine to have been turned off for an extended period. Ford further believed that sludge could cause the throttle to stick only if the sludge bridged the gap between the throttle plate and bore for a significant portion of the plate's circumference. The gap was believed to be so small as to be bridged only when the throttle was closed. Furthermore, the amount of bridging necessary "for the throttle plate to require a noticeable extra effort [on the accelerator] to break this bond" could not develop when the throttle was regularly opening and closing during vehicle operation but, rather, required the throttle plate to be stationary for an extended period in "the fully closed, or idle position," which would only occur when the engine was turned off.

In any event, Ford believed that the issue of throttles sticking when closed, "particularly during the first start-up in the morning," was "successfully addressed by the several throttle body design changes" and its program to notify owners of the extended warranty. It stated that those actions had already yielded "a declining trend" in warranty claims. According to Ford there had been "only a low rate of minor accidents attributed to the sticks closed issue," and Ford "does not believe the sticks closed issue represents a significant risk to motor vehicle safety."

Hoffman acknowledged that in Ford's categorization of the owner reports, code A required only an increase in the effort needed to open the throttle, without further requiring that it occur when the engine was cold or right after the engine was started. He explained that Ford was trying to include all reports that might represent code A in order to ensure that it did not overlook anything in its investigation of that condition; field reports could be inexact or subjective, so it expected to improve the analysis by making the category as inclusive as possible.

Hoffman agreed that a throttle was in "the idle position" whenever the throttle plate was in the closed position, meaning whenever the accelerator was not engaged. However, he stated that Ford did not consider throttles sticking in the closed position to be a safety issue because that condition would limit a vehicle to low speeds. In reference to NHTSA's concern that throttles might be sticking open, he said that Ford investigated the problem for "a number of years" and that its testing never managed to create the situation of a throttle sticking in any position while the engine was warm.

Samuel Sero, plaintiff's forensic engineer, indicated that Ford's observation about the AH code was an admission that a problem of "cold stick[ing]" would eventually become a problem of "hot stick[ing]" and that the admission comported with "the basic physics of the situation." He opined that it was improper for Ford to characterize any instance of throttle sticking as if it would stay limited to cold sticking. Sero suggested that Ford deliberately categorized most reports that way because it understood that a throttle stuck closed when the engine was first started would pose less of a safety issue than a throttle that stuck closed while the vehicle was being driven in traffic. Sero considered that perspective a bias that kept Ford from satisfying NHTSA's request to specify the kinds of sticking problems that each report represented.

A representative of Freehold indicated that it had no record of a warning from Ford that the throttle body or the accelerator on a vehicle like plaintiff's could stick when the engine was warm. Freehold also had no record of replacing a throttle body on any vehicle for any kind of sticking problem. However, he acknowledged that Ford's technical service bulletins were always available through an electronic database, and that Freehold had known of the October 19, 1998 bulletin.

The thrust of defendants' arguments focus on Sero's expert testimony. We detail the substance of his opinion and that of the other experts presented at trial. Sero explained that an EGR system increases an engine's combustion efficiency because the exhaust stream that it channels into the throttle body warms the outside air that enters through the main intake. He added that throttle bodies also have an "idle air bypass" to keep the engine from being starved of air when the engine is idling and the throttle is closed; he defined "idle" as every moment that the accelerator is not engaged.

When Hoffman looked at plaintiff's throttle, he found "a little bit" of sludge on one side of the throttle plate.

Sero also inspected the back side of the throttle plate in plaintiff's vehicle and found accumulated sludge. He opined that the outside air entered the throttle body through the idle air bypass and cooled the exhaust gas entering from the EGR system. The cooling made the unburned carbon from the exhaust gas settle on the throttle plate and bore, eventually accumulating as sludge.

Sero believed that the tendency of plaintiff's vehicle to accumulate sludge constituted a dangerous defect. The danger lies in a driver's natural response to a stuck throttle, which is to push harder on the accelerator. The throttle would open suddenly when the bond of sludge between the throttle plate and bore broke. For a vehicle already in motion, that would cause unexpected acceleration that the driver might be too surprised to control. He opined that such events were a substantial cause of plaintiff's accident.

Sero described two design changes that Ford made to the throttle body, after the manufacture of plaintiff's vehicle, to prevent the buildup of sludge. Ford increased the bore, to create a slightly larger gap between it and the throttle plate and moved the EGR inlet so that the exhaust's unburned carbon "would be caught in the airstream and carried downstream" instead of being cooled right next to the throttle plate and settling on and near it. He opined that Ford could have made those changes before it manufactured plaintiff's vehicle.

Sero acknowledged that a throttle could also stick due to misalignment of the throttle plate, or a decrease in the gap between the throttle plate and the body resulting from a difference in their rates of heat expansion. Sero did not know the size of the gap in plaintiff's vehicle or how it might change as the engine warmed.

Richard Keefer, an engineer and former Ford employee, was defendants' expert on vehicle acceleration controls. He found no sludge inside the throttle body of plaintiff's vehicle when he inspected it, although he did see deposits that could have been combustion byproducts.

Keefer said that the temperature of the main airstream into the throttle body of plaintiff's vehicle at the time of the accident would have been only about five degrees warmer than the ambient air temperature, because plaintiff had been driving for only a short time and because of the strong cooling effect of air rushing past the engine at sixty-five miles per hour. The exhaust stream would not have had an effect because it "goes back into the engine" downstream of the throttle body while the engine is running, except when the engine is idling. Keefer opined that the accident occurred because plaintiff "pushed on the accelerator pedal repeatedly" when she probably should have been braking due to her being so close to the car ahead. Her abrupt maneuvers to avoid that car caused her vehicle to hit those in the adjacent lanes "and the rest of the accident."

Finally, defendants presented Michael Holcomb as their expert in mechanical engineering, accident reconstruction and vehicle dynamics. He did not offer an opinion on whether the throttle in plaintiff's vehicle had stuck because his modeling did not require it. The "momentary stick and then go" that plaintiff described would not have had a significant effect on her vehicle's speed. He said that "it's like[ly] to have caused a minor acceleration" of "[a] couple of miles an hour . . . [.]"

In any event, Holcomb did opine that a sticking throttle was not the cause of plaintiff's abrupt steering maneuvers, because a throttle stuck closed simply is not a startling event. It just makes the vehicle go "slower than you want," for which he "can't see the risk except eventually you're going to have to stop." He believed that forcing the throttle open by pressing the accelerator would not cause an accident. He added that plaintiff's vehicle was not "particularly powerful," and stated that its acceleration when the stuck throttle was released could be only one or two miles per hour.

On April 12, 2007, the jury returned a verdict. It found that plaintiff's injuries were proximately caused by a throttle defect and by each defendant's failure to give an adequate warning. However, it found that plaintiff's own negligence in operating her vehicle was also a proximate cause, so it assigned 50% of liability to Ford, 22% to Freehold, and 28% to plaintiff.

The jury awarded plaintiff $10,626,479.89 in damages consisting of $8 million for pain and suffering and for permanent disability, plus a total of $2,626,479.89 for past and future medical expenses and past and future lost wages. It then reduced the award by $2 million due to plaintiff's negligence by failing to wear her seatbelt. Punitive damages were tried before the same jury, which found both Ford and defendant liable and awarded plaintiff $42,050.

Defendants moved for a new trial due to cumulative prejudice from alleged misconduct by plaintiff's counsel. The court denied the motion on the ground that its curative instructions at trial were sufficient. Defendants also moved for judgment on the punitive damages claim. The court denied Ford's motion but granted Freehold's motion. Both parties filed motions for a new trial on various elements of the verdict, which were denied. The appeal and cross-appeal followed.

II.

On appeal, defendants assert that the trial judge erred by allowing Sero's expert opinion testimony. They also contend that plaintiff's counsel's conduct or misconduct warranted a new trial. They also dispute the propriety of the punitive award as well as the quantum of the compensatory verdict and various evidential rulings made by the trial judge. Plaintiff's cross-appeal focuses on the sufficiency of the punitive award.

We address the issues seriatim.

A.

Defendants claim that the court erred by permitting Sero to proffer what, according to defendants, was a net opinion. They argue that he failed to measure plaintiff's throttle for the very factors that he called essential to an assessment of the heat expansion rates of the throttle plate and body, which facilitates sludge adhesion, and that he failed to test the throttle in simulations of operating cycles to observe whether sludge actually did harden or adhere. They further contend that Sero baselessly opined about causation of the accident, because he did not know how long or hard plaintiff pressed the accelerator or whether the ambient temperature, the cooling effect at plaintiff's driving speed and the short time of vehicle operation before the accident kept the engine from getting warm enough to cause the hot sticking he posited.

Defendants further argue that Sero errantly relied on the reports and warranty claims that Ford received about throttle problems, because he did nothing to confirm their accuracy or their similarity to the conditions that plaintiff alleged. As a result, Sero had no basis for opining that hot sticking and cold sticking were the same phenomenon. Defendants highlight that this proposition contradicted another of Sero's positions, namely, the distinction that cold sticking resulted from adhesions of sludge, whereas hot sticking arose from differential rates of metal expansion. Moreover, he misconstrued Ford's statement that throttle sticking would manifest itself first as cold sticking and mischaracterized it as proof that Ford deliberately concealed its knowledge that hot sticking could occur first.

Judge Happas conducted a hearing and found Sero's testimony admissible. Sero's explanation "that hot and cold may be the same thing because . . . [of] the physics theories" was sufficient, even though "he didn't do certain things and measurements and the like." The opinion was "based on reasonable probable prediction and not a mere guess or conjecture," which was enough to serve as "the why and the wherefore of his opinion" that case law requires.

The standard of review of the admissibility of expert testimony is abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). The review is conducted on "the record made before the trial court," and it must exclude "material not part of the evidentiary record and argument . . . beyond that which was advanced before the trial court." Id. at 25. There is a "tilt in favor of admissibility," so a decision to admit is reversible error only if it is "so 'wide of the mark' as to constitute 'a manifest denial of justice . . . .'" Ibid. (quoting State v. Wakefield, 190 N.J. 397, 435 (2007) (citations omitted), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). Accord Verdicchio v. Ricca, 179 N.J. 1, 34 (2004).

An expert may not give a "net opinion," which is one unsupported by any factual evidence or data. Creanga v. Jardal, 185 N.J. 345, 361 (2005); Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). The expert must give "the why and wherefore of his or her expert opinion, rather than a mere conclusion." State v. Townsend, 186 N.J. 473, 494 (2006) (quotations omitted).

However, an expert is not compelled to conduct tests that correspond to the exact circumstances in which the plaintiff was injured. Hisenaj, supra, 194 N.J. at 21-22 (reversing Hisenaj v. Kuehner, 387 N.J. Super. 262 (App. Div. 2006) on that ground). Questions regarding the thoroughness of the expert's application of his or her methodology goes to credibility. Rosenberg, supra, 352 N.J. Super. at 402. "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." Ibid. It is to be treated instead as a "'subject of exploration and cross-examination at a trial.'" Ibid. (quoting Rubanik v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990), aff'd as mod. on other grounds, 125 N.J. 421 (1991)).

Ford's cited cases are inapposite. They involve experts who inferred a product defect from a statistical analyses of databases of reported problems with the product or its use but made no effort to establish the reliability of the reports and their similarity to the circumstances and nature of the plaintiff's injury. Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 526-27 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008); Grzanka v. Pfeifer, 301 N.J. Super. 563, 581-83 (App. Div.), certif. denied, 154 N.J. 607 (1997); Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 297-99 (App. Div.), certif. denied, 122 N.J. 333 (1990). Cf. Nextel of N.Y., Inc. v. Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 31, 42-43 (App. Div. 2003) (concluding that an expert, who testified that a cell phone tower at the proposed location would cause service gaps and interference, "had no report or evidence to support his conclusion, nor did he provide any specific test data or perform an analysis").

Sero did not rely on the accuracy of any particular owner reports or warranty claims that indicated hot sticking, much less on any statistical analysis of their relative frequency. He relied instead on his knowledge of how throttle systems function and on a personal examination of plaintiff's throttle in which he found significant amounts of sludge. Furthermore, his explanations of the sticking problem under hot engine conditions and how the placement of the EGR inlet contributed to the problem were consistent with Ford's own comment that cold sticking could progress to hot sticking and with Ford's attribution of a preproduction problem with sludge accumulation to the placement of the EGR inlet. The judge properly exercised her discretion when she concluded that Sero's failure to perform additional research to support his conclusions was a matter of credibility for the jury. The same holds true for Ford's criticisms about Sero's reasoning and disregard for the circumstances of the accident. We conclude that the judge did not err in permitting Sero to testify and offer his opinion. We also conclude that he did not offer a net opinion and find no basis for our intervention.

B.

We now focus on an issue that is more vexing and troublesome. Defendants claim that the court erred by denying their motions for a new trial on the grounds of misconduct by plaintiff's counsel. They argue that on numerous occasions counsel violated rulings that placed restrictions and limited inquiry into certain subject areas. Specifically, they allude to references to dissimilar accidents as well as Orozco's conversations with defense counsel, both of which were restricted by Judge Happas' rulings. Defendants also argue that plaintiff's counsel's summation impugned the integrity of their counsel, expert witnesses and Orozco and inflamed the jury about Ford's supposed lack of concern for the potential victims of a product defect. During trial they did not object to the summation or request any curative instructions. Nonetheless, they argue that the cumulative impact of this misconduct forced them to object constantly and be viewed by the jury as obstructionists, which the jury confirmed by returning a damages award that was manifestly excessive for the kinds of injuries and pain and suffering that plaintiff incurred.

In denying defendants' motions for judgment or a new trial on the ground of alleged misconduct by plaintiff's counsel, the court stated that "the conduct of the parties during the course of the trial" compelled it to do "what it deemed appropriate by providing the jury with curative instructions," some of which "were actually consented to by Counsel." The court stated that it "did its best to comply with" the standards for curative instructions, and that it "sees no reason at this point in time to order a new trial." More specifically, "this [c]ourt opine[s] that the way it handled Orozco's testimony, this [c]ourt did its best with what it was faced at the time of trial and the [c]ourt does not see any severe prejudice, which would permit this [c]ourt to now order a new trial." It observed that the damages award "was right in the middle of the proposed high [and] lows that at least were discussed during the course of this trial."

A new trial must be granted "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). The same standard applies on appellate review. R. 2:10-1; Jastram v. Kruse, 197 N.J. 216, 230 (2008); Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). We must decide de novo whether there was such a miscarriage of justice, yet "must afford 'due deference' to the trial court's '"feel of the case,"' with regard to the assessment of intangibles, such as witness credibility." Jastram, 197 N.J. at 230 (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). We must also resist the temptation "to substitute . . . [our] judgment for that of the jury merely because . . . [we] would have reached the opposite conclusion." Barber v. ShopRite of Englewood & Assocs., Inc., 406 N.J. Super. 32, 52 (App. Div. 2009) (internal quotations and editing marks omitted).

We reject defendants' claims regarding plaintiff's counsel's repeated references to other accidents. We observe that most of defendants' examples of plaintiff's references to other accidents concern rollovers, and the jury's finding that plaintiff's vehicle did not have a rollover defect palpably demonstrated the absence of prejudice on that issue. Only one of defendants' examples concerned throttles, and the court sustained defendants' objection, although it did not give a limiting instruction at that time beyond admonishing plaintiff's counsel that "there's no relevance to that."

Particularly noteworthy, in the final charge, the court stated the general principles that the evidence was limited to documents and witness testimony, that "nothing that the attorneys say is evidence," that testimony stricken from the record was not to be considered and that evidence admitted with a limiting instruction was to be used for that limited purpose only. It then instructed the jury that "[n]o evidence has been provided in this case regarding accidents involving the throttle stuck closed," which was the language that defendants' counsel had requested.

When counsel asks a question that assumes a fact not in evidence, the curative instruction must "neutralize the assumed fact" and achieve "a negation of the obvious inference created." Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 29-30 (App. Div. 1998). The review of a curative instruction is similarly limited to an assessment of whether it neutralized the capacity of the "'offending'" information "'to lead to a verdict that could not otherwise be justly reached.'" State v. Perez, 218 N.J. Super. 478, 486 (App. Div. 1987) (quoting State v. Winter, 96 N.J. 640, 647 (1984)).

Unlike the inadequate instruction in Diakamopoulos, supra, 312 N.J. Super. at 29, which only told the jury to disregard the question and to "draw no negative inference from it[,]" the curative instruction here negated the inference of prior accidents involving stuck throttles by plainly stating that there was no evidence of such accidents. Cf. Haid v. Loderstedt, 45 N.J. Super. 547, 549-54 (App. Div. 1957) (repeated references to insurance and an untruthful comment that the defendant was uninsured, with no indication of a curative instruction, were cumulatively prejudicial).

A more acute problem arises in reference to Orozco's testimony. These are the facts framing the issue. After readings of Orozco's deposition testimony during defendants' case, plaintiff's counsel called Orozco, who said that defendants' counsel told him that he did not need to come to court to testify because his deposition transcript was going to be used. Plaintiff's counsel complained that he had agreed to the readings only because defendants had represented that Orozco was unavailable.

Defendants' counsel responded that he had been unable to reach Orozco despite repeated attempts, "and then lo and behold, last Friday he calls the office." Defendants' counsel returned Orozco's call the next day, and because the parties had already agreed to use the deposition, "I told him that I was going to try and have the [c]ourt agree to allow us to read from his transcript, and if the [c]ourt doesn't have a problem with that, then he's not going to have to testify."

The court ruled that Orozco should testify, and it called him to explain that he must testify in accordance with the subpoena served on him two months earlier. He appeared and told the court that he had responded to the subpoena by calling the office of defendants' counsel. He "was told that it was [an] on-call subpoena and that they would get back to me and let me know if I was going to have to come in." He then confirmed the substance of the recent calls to him by plaintiff's counsel and by defendants' counsel.

The court clearly instructed both sides not to mention the circumstances by which Orozco came to testify: "Counsel, I don't want anything mentioned about time periods and talking to the witness and the like. That's irrelevant and shouldn't be mentioned to the jury." Judge Happas then instructed the jury to disregard the readings from Orozco's deposition.

Defendants' examination of Orozco proceeded uneventfully. Plaintiff's counsel began his cross-examination by greeting Orozco and then saying, "Mr. Dobis [defendant's trial counsel] and you spoke and he told you don't come in unless-[.]" Defense counsel objected, and the court told plaintiff's counsel, "[t]hat's exactly what I said not to say. Don't bring anything up about conversations with him." Plaintiff's counsel insisted that the fact Orozco had spoken to only one side's counsel was "evidential" and he professed not to understand why saying so was objectionable. The court responded that it had clearly instructed counsel "that conversations regarding the issue of the telephone call and his unavailability" were not to be mentioned. Plaintiff's counsel protested that he thought the court was not excluding the fact that Orozco had a prior conversation with defense counsel but rather only the fact that the conversation had occurred by telephone as opposed to another medium.

Defendants' counsel immediately moved for a mistrial, and the court reserved its ruling. It observed that Orozco had given his telephone number during his deposition, that plaintiff's counsel could have tried to contact him before his deposition was read to the jury and that the failure to do so created "a bad situation that we have to deal with." Before plaintiff's counsel resumed cross-examination, the court instructed the jury, "[t]hat last question you can disregard. Both counsel [sic] have had conversations with Mr. Orozco prior to this date."

Our review of the record leads us to conclude that plaintiff's counsel's conduct was improper and violated the judge's clear instruction. The weak justification offered at trial as to the supposed misunderstanding was amplified at oral argument when counsel sought to excuse his opening comments to Orozco because of alleged misdeeds by defense counsel. Disagreement with a judge's ruling or even improper conduct by an adversary does not provide a basis or justification for one's own non-compliance. As we have noted, this was a hotly contested and significant matter. To jeopardize the continuation of the trial by such conduct was inappropriate and ill-considered. Despite these clear violations of the court's prior directive, we conclude that the judge did not abuse her discretion in denying a mistrial.

A court has the discretion to grant or deny a motion for mistrial. Winter, supra, 96 N.J. at 647. Its decision will be upheld "absent showing of a mistake or arbitrary exercise of that discretion which results in manifest injustice." Perez, supra, 218 N.J. Super. at 486. The court's thoughtful instruction here minimized the impact of the revelation by implying that Orozco's conversations with counsel were unremarkable and to neither side's advantage.

Juries are generally presumed to understand and follow instructions, State v. Loftin, 146 N.J. 295, 390 (1996); State v. Manley, 54 N.J. 259, 271 (1969), and they are presumed to follow curative instructions in the absence of evidence to the contrary, other than one side's disappointment with the verdict. Winter, supra, 96 N.J. at 649. The jurors here vindicated those presumptions by crediting Orozco's testimony about plaintiff's aggressive driving as they imposed a percentage of negligence attributable to plaintiff's driving.

Plaintiff's summation included an emphasis on credibility, with a key element being whether the statistics in Ford's documents about reports of throttle problems "were honest or whether they were manipulative." Plaintiff's counsel added that the jury would have to determine "if things were misrepresented to you or if they were represented accurately" in the accident reconstructions of Ford's witnesses, which did not include a vehicle surge like the one plaintiff alleged. He characterized defendants' strategy as "taking zero responsibility here" and trying to "confuse the jury" by "blam[ing]" plaintiff.

Plaintiff's counsel observed that plaintiff's vehicle was intended for use by families. He questioned whether Ford "really considered safety" by producing it with the known and dangerous defects of a susceptibility to rollovers and throttle problems that Ford did not address for four years even after receiving warranty claims at a rate forty-two times higher than its average warranty claim rate. Plaintiff's counsel called the delay "unacceptable," adding that "you might be a little mad" about the throttle defect if Ford had begun a sincere effort after receiving just the first hundred of those "opportunities to look at it," instead of "gambl[ing] with a lot of people" for as long as Ford did.

In discussing the accident, plaintiff's counsel argued that Orozco's testimony was different than that of all the other witnesses, as well as inconsistent with Orozco's contemporaneous account to the police of not having seen anything that happened before plaintiff's vehicle started to roll. Counsel argued that Orozco's testimony represented a story that Orozco fabricated after the accident because of his admitted anger about having a related accident of his own while driving his mother's car, and her anger about the damage. He urged the jury to assess "who is really being honest" and "who tried to hide."

Counsel criticized Keefer, the defense expert whose assessment of the throttle in plaintiff's vehicle differed from Sero's, as being unbelievable because of his loyalty to Ford as a former employee and because of his expert witness fees from Ford $77 million for testifying in over one hundred cases. Counsel argued that "[w]hen you think about how hard it is to earn a living these days, when you really think about money, how can you ignore $77 million?" By contrast, Sero was "a regular guy" who did not earn that amount from just one client.

Counsel also criticized defendants' biomechanics expert, Robert Piziali, who had testified that it was possible, although highly unlikely, for plaintiff's shoulder injury to have arisen from traction while she was in the hospital rather than from the accident. Counsel called the testimony "ridiculous," and after noting that Piziali had misstated his fees from Ford in this and other cases as $6.8 million instead of $12.8 million, he commented that "I guess he feels like he's more honest if Ford only pays him [$]6.8 [million] [rather] than $12.8 million."

Plaintiff's counsel ended by noting the statement in defendants' summation "that you cannot award damages based upon sympathy," and added, "I'll tell you what you can do. You can award it based on human decency and you can award it based on what the evidence showed."

In addition to the instructions noted above about not treating counsel's comments as evidence, the court gave the jury criteria for assessing expert opinions, which included the expert's "reason for testifying, if any." It stated that "[t]he amount of the expert witness's fee is a matter that you may consider as possibly affecting the believability of an expert," while cautioning that "there's nothing improper in the expert witness being paid a reasonable fee for his or her work and for his or her time in attending court."

The court further instructed the jury that if it decided to award damages, the amount should reflect "an attempt to make the plaintiff whole, as far as money can do so, based upon reason and sound judgment" of "what is fair, just and reasonable under all of the circumstances," and "without any passion, prejudice, bias or sympathy." The instructions on how jurors are to deliberate with one another repeated the cautions to decide the case impartially and solely upon the evidence that they found credible, without being "advocates for either party." Neither sympathy nor a "bias or prejudice which you might have developed during the trial for or against any party" could play any part "in your thinking and in the decision you reach."

A summation "must be limited to the facts in evidence and inferences reasonably to be drawn therefrom." State v. Bey, 129 N.J. 557, 620 (1992), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995). Nonetheless, counsel is "expected to make a vigorous and forceful closing argument to the jury," State v. Nelson, 173 N.J. 417, 460 (2002), and is permitted "wide latitude" in summation, State v. Kelly, 97 N.J. 178, 218 (1984). Comments "'by way of denunciation or appeal'" do not justify reversal if they are "'merely descriptive of the proofs adduced at trial.'" State v. Chew, 150 N.J. 30, 84 (1997) (quoting State v. Marks, 201 N.J. Super 514, 534 (App. Div. 1985), certif. denied, 102 N.J. 393 (1986)), cert. denied, 528 U.S. 1052, 120 S. Ct 593, 145 L. Ed. 2d 493 (1999).

Accordingly, comments in summation do not justify reversal unless they were so egregious that they deprived the opposing party of a fair trial, State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 129 L. Ed. 2d 653 (1993), by "substantially prejudic[ing]" the opponent's "fundamental right to have a jury fairly evaluate the merits of his" theories of the case. State v. Papasavvas, 163 N.J. 565, 625 (2000) (internal quotations omitted); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). Comments in summation are to be "viewed in the context of the entire record." Bey, supra, 129 N.J. at 622.

The broad latitude that counsel enjoy in summation does not entitle them to "use disparaging language to discredit the opposing party, or witness, or accuse a party's attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, or of deliberately distorting the evidence." Rodd v. Raritan Radiologic Assocs., 373 N.J. Super. 154, 171 (App. Div. 2004) (citations omitted) (reversing and remanding for erroneous admission of evidence). Summation comments that are "unduly harsh" and that amount to "an attack on [the] defendant's character and his witness's integrity . . . occupy no rightful place in proper commentary on the evidence and the credibility of testimony." Id. at 171-72.

Nonetheless, the absence of an objection to summation comments is an indication that they were not overly prejudicial. State v. Josephs, 174 N.J. 44, 124 (2002); State v. Wilson, 57 N.J. 39, 50-51 (1970). We must therefore also consider whether the comments prompted an objection, whether they were withdrawn and whether the court ordered them stricken and instructed the jury to disregard them. Loftin, supra, 146 N.J. at 386; Ramseur, supra, 106 N.J. at 322-23. With or without an objection, a curative instruction can neutralize their prejudicial impact. State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); Ramseur, supra, 106 N.J. at 322-23; Bucanis, supra, 26 N.J. at 57.

We conclude that the comments by plaintiff's counsel did not exceed the bounds of permissible argument in summation. His comments about the credibility of Ford's statistics on the reports of throttle incidents were supported by the testimony of Ford's own witnesses about how Ford tried to place as many reports as possible within the category of cold sticking and by Sero's observation that a reduced proportion of hot sticking would represent a lesser overall safety problem from the perspective of both the manufacturer and the regulatory safety agencies. The comments about Orozco's credibility were similarly grounded in the difference between Orozco's contemporaneous and testimonial accounts and in Orozco's interest in minimizing his own negligence as a cause of the damage to the car he was driving. "Counsel may argue from the evidence any conclusion which a jury is free to reach[,]" Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000), and that is what plaintiff's counsel did here.

The amount of an expert witness's fee and his or her history of service as an expert are admissible evidence, Espinal v. Arias, 391 N.J. Super. 49, 60-61 (App. Div.), certif. denied, 192 N.J. 482 (2007), and are therefore sufficient predicates for arguments that they affect credibility, Colucci, supra, 326 N.J. Super. at 177; Spedick v. Murphy, 266 N.J. Super. 573, 590 (App. Div.), certif. denied, 134 N.J. 567 (1993). "Whether an expert is a 'hired gun' or one whose opinions have greater foundations of objectivity is an issue to be litigated by counsel and considered by the jury." Cogdell v. Brown, 220 N.J. Super. 330, 336 (Law Div. 1987), certif. denied, 114 N.J. 517 (1989). Plaintiff's counsel called Sero a "regular guy" only to indicate that his fees did not resemble Keefer's. The comment was not vouching, because it did not imply that the truth of Sero's testimony had been validated in some manner other than at trial. State v. Marshall, 123 N.J. 1, 156-57 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

Piziali himself said that it was highly unlikely for plaintiff to have suffered the shoulder injury in the hospital rather than in the accident, so Ford's insistence on presenting this weak assertion to the jury merited the comment that Ford was trying to shift the focus from itself onto plaintiff or third parties. Even if characterizing Piziali's understatement of his cumulative fees from Ford as a deliberate misstatement of his motivation to give that testimony was a "denunciation," it was "sufficiently related to the scope of the evidence" on that subject. Chew, supra, 150 N.J. at 84. The comments about being "a little mad" at Ford for delaying the efforts it finally made to improve the throttle system and thus "gambling" with customers' lives were similarly a denunciation rooted in the evidence of the number of reports that Ford received before taking action.

While appeals to sympathy are "clearly improper" because they "focus the jury's attention on irrelevant and prejudicial facts," Brodsky v. Grinnell Haulers, Inc., 362 N.J. Super. 256, 265-66 (App. Div. 2003), aff'd in part, rev'd in part on other grounds, 181 N.J. 102 (2004), they do not necessarily have the capacity to cause prejudice if they are mild and fleeting. State v. Marinez, 370 N.J. Super. 49, 55 (App. Div.), certif. denied, 182 N.J. 142 (2004); Wild v. Roman, 91 N.J. Super. 410, 419 (App. Div. 1966) (although not reversible error by itself, defense summation "should not have emphasized [the] defendant's youth and that he was 'on the threshold of his career'"). Counsel's comment about "human decency" was too brief to be prejudicial, in particular because counsel made it immediately between his acknowledgment that the jury could not rely on sympathy and his accurate comment that plaintiff can receive damages "based on what the evidence showed."

Even when these comments are considered collectively, they did not approach the level of repeated misstatements of legal standards, factual misrepresentations, or personal denigrations as in defendants' cases. In Geler v. Akawie, 358 N.J. Super. 437, 467-69 (App. Div.), certif. denied, 177 N.J. 223 (2003), the plaintiffs' counsel engaged in "wholesale disparagement through an unrestricted deluge of epithets;" characterized the defendant's alleged negligence as the equivalent of trying to kill not just the decedent child but the child's parents as well; imagined the child's headstone as still bearing the parents' handprints; and suggested that the defendant's decision to defend himself rather than admit negligence was a valid factor in deciding liability. In Henker v. Preybylowski, 216 N.J. Super. 513, 517-19 (App. Div. 1987), the plaintiff's summation included accusations that the defendant's decision to contest liability and damages represented bad faith, as well as "repeated invectives" against the defendant's counsel for "wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, [and] of deliberately distorting the evidence" a catalog that we called just a "sampling" of the prejudicial comments.

During the charge conference, the court stated that it intended to instruct the jury on the role of counsel by explaining that they were advocates for their clients, that they raised objections to evidence that they believed to be inadmissible and that the jury should not consider the objections to be evidence. Defendants' counsel asked the court to add that, as advocates, counsel "have a duty to object if, in their opinion, the evidence is not permissible under our rules of evidence." The court accordingly gave the following instruction in the final charge:

The lawyers are here as advocates for their clients. During the course of the trial, the lawyers have raised objections to evidence that they believe are contrary to the court rules. Now, it's appropriate for them to do so. In fact, the lawyers have an obligation to their clients to do so.

Cumulative prejudice requires not simply a serious imbalance between the parties in the number of objections, but also the court's failure to restrain and mitigate the misconduct that prompted them:

When a trial attorney consciously engages repeatedly in questions and practices he knows are in violation of rules of evidence and proper court room decorum, which require constant objections on the part of his adversary, the possible disadvantageous effect of such a stream of objections on the mind of lay jury cannot be disregarded and the harassed party must look to the trial court for assistance in keeping the offender within the limits of proper behavior.

[Haid, supra, 45 N.J. Super. at 554.]

In Haid, we reversed because the plaintiff's counsel had repeatedly misstated legal standards and misrepresented facts, and the court sustained some of the defendant's objections but apparently gave no curative instructions. Id. at 549-54.

Similarly, in Purpura v. Public Service Electric & Gas Co., 53 N.J. Super. 475, 481-82 (App. Div.), certif. denied, 29 N.J. 278 (1959), when the plaintiff's summation encouraged the jury to make a large damages award on improper considerations, the court erred by failing to sustain the defendant's objections. We observed that the court's inaction "heightened the prejudice" from those comments, because "it appeared to put the approval of the court upon the remarks," and thus "may have led some members of the jury to believe that it was [the] defendant's counsel who, with his objections, was being captious and unfair." Id. at 482. By contrast, both sides here made numerous objections during a long trial, and the comments that defendants fault were either unobjectionable or properly mitigated.

Finally, we disagree with defendants that the damages award here serves as proof of prejudice. While they cite amputation cases with lower damage awards as proof that a near-amputation necessarily results in less pain and suffering, they do not assert a formula for quantifying the value of the pain and suffering that anyone, let alone a particular plaintiff in his or her particular circumstances, suffers from a given injury or disability. We need not reiterate the scope of plaintiff's injuries but twenty-one operations like those plaintiff has undergone, with numerous graftings of skin, veins, nerves, bone and muscle, along with the attendant scarring at both the graft and harvesting sites negate defendants' argument on this point.

C.

The same considerations lead us to conclude that defendants' motion for a remittitur was properly denied. The award of $8 million for pain and suffering was supported by the record. As Judge Happas observed, plaintiff "was a very good witness, probably the best witness that I ever saw[,] . . . very credible." The award did not shock the court's conscience "given her injuries and the manner in which she testified and the evidence regarding her injuries and the like . . . ."

Courts have the authority to modify a judgment in order to avoid a clear "miscarriage of justice under the law," which is the same standard as granting a motion under Rule 4:49-1 for a new trial. Barber, supra, 406 N.J. Super. at 51-52. Courts are not to modify a judgment lightly:

[An award] should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice. The process of "weighing" the evidence is not to encourage the judge to "evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates" and on that basis to decide upon disruption of the jury's finding. "[T]he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Nevertheless, the process of evidence evaluation called "weighing" is not "a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury."

[Jastram v. Kruse, 197 N.J. 216, 230 (2008) (citations omitted).]

More specifically, "[o]nly if it 'clearly and convincingly appears' that a damages award is so excessive that it constitutes 'a miscarriage of justice' is a court empowered to overthrow the jury's verdict and grant a new trial . . . [or] reduce or remit the damages." Johnson v. Scaccetti, 192 N.J. 256, 279 (2007) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)), such as when the verdict "is unsupported by credible evidence, overlooks or underevaluates crucial evidence." Bishop v. Harski, 191 N.J. Super. 109, 112 (Law Div. 1983) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). The same standards apply to appellate courts. Krusse, supra, 197 N.J. at 231. We conclude, as did the trial judge, that the award was not "a manifest denial of justice." We perceive of no need for our intervention.

D.

We reject, with only limited comments, defendants' arguments regarding the use of video excerpts of testimony during summation as well as the judge's ruling to exclude a newspaper article about plaintiff. In both instances, the judge exercised her discretion in ruling on these issues, and we find no abuse of discretion in her permitting the videos and excluding the article. Both rulings were sound, and the judge properly denied defendants' motion for a new trial on these grounds.

III.

A.

Both plaintiff and defendants challenge the punitive damage award. Defendants, on the direct appeal, assert that awarding such damages requires egregious conduct only established by wanton and willful disregard of a risk of serious harm, yet plaintiff presented no evidence of a prior accident caused by a stuck throttle, much less serious harm caused by an incident of hot sticking. To the contrary, Ford only had notice of a problem with cold sticking, and Sero's "unfounded" and "inflamatory" assertion of an active attempt to minimize reports of hot sticking were not the clear and convincing evidence that is needed to establish the requisite wanton and willful conduct.

Ford moved to dismiss the punitive damages claim on the grounds that the warranty claims gave it notice only of a problem with cold sticking, due to the very small proportion of claims and owner reports that involved hot sticking, and that without notice of a problem with hot sticking it could not be found to have acted with malice or wantonness as punitive damages required. Ford further argued that a surge of only one to two miles per hour when a stuck throttle was freed was not so dangerous a situation that malice or wantonness may be inferred from the failure to correct it.

The court denied the motion, finding that the statement in a Ford document about the possibility of cold sticking progressing to hot sticking was a sufficient basis to support an inference that Ford's conduct met the legal standard. The court then relied on the same ground to deny Ford's motion for a new trial on punitive damages.

The Punitive Damages Act (the Act), N.J.S.A. 2A:15-5.9 to -.17 ["the Act"], requires that a plaintiff have suffered foreseeable harm from "acts or omissions" that "were actuated by actual malice or accompanied by a wanton and willful disregard" of the risk in question. N.J.S.A. 2A:15-5.12(a). The standard of proof is "clear and convincing evidence." Ibid. To determine whether the defendant is liable for punitive damages, the jury "shall consider all relevant evidence, including but not limited to" the four statutory factors:

(1) The likelihood, at the relevant time, that serious harm would arise from the defendant's conduct;

(2) The defendant's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the defendant's conduct;

(3) The conduct of the defendant upon learning that its initial conduct would likely cause harm; and

(4) The duration of the conduct or any concealment of it by the defendant.

[N.J.S.A. 2A:15-5.12(b).]

The Act requires "'intentional wrongdoing in the sense of an "evil-minded act" or an act accompanied by a wanton and willful disregard of the rights of another.'" Smith v. Whitaker, 160 N.J. 221, 241 (1999) (quoting Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 49 (1984)). As the Act specifies, even gross negligence will not suffice. N.J.S.A. 2A:15-5.12(a).

Ford argues that the low rate of hot sticking in the reports, or at least in what it characterizes as its best effort to understand the reports, constituted a lack of notice of a significant risk from hot sticking. That kind of statistical argument is central in a failure-to-warn case, because the defect of the absence of an adequate warning is manifested every time the product is used without the benefit of a warning. In such cases, the rate of injuries similar to plaintiff's would serve as a primary kind of evidence about the warning's effectiveness. See Koruba, supra, 396 N.J. Super. at 525-27 (dismissing failure-to-warn claim because statistical evidence about injury from product misuse failed to distinguish the plaintiff's kind of misuse from other kinds).

By contrast, a design-defect case requires only that the plaintiff be a "reasonably foreseeable or intended user," Sinclair v. Merck & Co., Inc., 195 N.J. 51, 65 (2008), see also Boyle v. Ford Motor Co., 399 N.J. Super. 18, 34 (App. Div. 2008), and that the plaintiff's manner of using (or misusing) the product is reasonably foreseeable. Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 206 (1984). In other words, compensatory liability turns on whether the plaintiff's circumstances were foreseeable and whether a manifestation of the defect in that situation could cause a foreseeable injury, rather than whether the situation was frequent and whether the defect would be frequently manifested in that situation.

In a design-defect case, the question of liability for punitive damages may turn on whether the manufacturer wantonly disregarded a high probability that injury would occur once the defect manifested itself in the situation that the plaintiff encountered. Ford's implicit proposition is that it was insulated from punitive liability by a low likelihood of such manifestations, regardless of the probability of injury when such a manifestation does occur. However, the Act does not compel such an application, and Ford failed to present authority to demonstrate otherwise.

Ford knew the throttle could be subject to hot sticking as well as cold sticking and that its own classification of owner reports arguably was designed to maximize the class of cold-sticking reports by obscuring any reports that involved hot sticking. Ford knew that unexpected acceleration following an owner's pressing of the accelerator to open a stuck throttle might cause an accident, because its documents to NHTSA described such surging as being greater than the one or two miles per hour that could occur from "engine or powertrain fluctuations" by themselves. That documentation undermined the contrary testimony of Ford's experts that the surge would be limited to one or two miles per hour in either of those situations. The only inference the jury had to make to find wanton disregard was Ford's awareness that a significant surge at highway speeds could result in an accident with significant injuries.

The court did not err when it found that the jury had sufficient evidence to conclude that Ford knowingly and wantonly disregarded a high probability of injury when the throttle sticks while the engine is warm. The jury properly could and did consider the assessment of punitive damages against Ford.

B.

Plaintiff cross-appeals and claims that the court erred by denying her motion for a new trial on punitive damages due to an insufficient award. She argues that $42,050 was inadequate to serve the punitive or deterrent purposes of punitive damages and that it reflected the misstatements of law by Ford's counsel that the compensatory damages award could satisfy those purposes, that punitive damages required the proof of actual intent to commit misconduct and that without such proof punitive damages would be an undeserved windfall to plaintiff and her counsel.

In addition, according to plaintiff, Ford proffered no evidence to support its representation that a punitive damages award would decrease its ability to create jobs and pay good salaries, benefits and dividends. Yet, the court denied plaintiff the opportunity to counter those improper arguments with evidence that some Ford vehicles sold in this country are made elsewhere and that Ford could create jobs and pay salaries, benefits and dividends with its "cash on hand." Finally, it was prejudicial for Ford to argue that plaintiff failed to present evidence of other injuries arising from incidents of stuck throttles, when both sides knew about accidents involving stuck throttles, but Ford successfully moved for their exclusion.

Ford moved to limit evidence about its finances to the year of plaintiff's accident and the year of trial, while plaintiff moved to admit financial information from the intervening years, on the ground that it would give a more accurate picture of the finances of a company in a cyclical industry. The court granted Ford's motion.

In his opening statement, Ford's counsel argued that the large compensatory damages award was punishment enough for conduct that was not malicious or wanton and that "large payments in lawsuits hurt companies" by decreasing their ability "to create new jobs, give good benefits to factory workers, to pay pensions, to pay dividends to shareholders." Plaintiff's counsel objected that Ford's counsel was making evidentiary representations rather than an argument, but the court allowed him to proceed.

Ford's counsel continued by stating that the compensatory damages award "already acts as a penalty on those directly involved at Ford with the throttle issue," and that punitive damages would punish "the other employees and managers and engineers . . . [who] had nothing to do with" the throttle in plaintiff's vehicle. Then he stated the legal standard as proof by clear and convincing evidence "that Ford's engineers acted with actual malice or intent to do wrong, that they committed an evil-minded act," plaintiff's counsel objected to the misstatement. The court instructed the jury that "I'm going to tell you what the law is," adding that "I didn't make any determination yet whether or not it's misstated but you're going to listen to me as to the law."

Ford's counsel then argued that Ford lacked notice that stuck throttles in warm engines were causing harm because there were no prior accidents like plaintiff's that caused injury:

You will not hear that Ford became aware of the throttle sticking closed because people were getting hurt and throttles were sticking closed while people were driving down the road, because there is no evidence in this case that any person ever got hurt because the vehicle's throttle got stuck closed while they were driving at highway speed before Ms. Zakrocki's accident.

He concluded his opening by asking the jury to reject the notion that this was a case in which "Ford act[ed] with evil intent with the throttle issue such that Ms. Zakrocki and her lawyers should be getting even more money on top of the millions of dollars you've already awarded."

Plaintiff's proofs included extensive expert testimony regarding Ford's capitalization, income, net worth and the cyclical nature of the automotive market, dividend record and cash position as well as explaining the limitations on net worth as a true indicator of value.

Judge Happas properly charged the jury as to the purpose of punitive damages "as a punishment of the defendant and to deter the defendant from repeating such conduct." For that reason, "punitive damages should only be awarded if a defendant's culpability after having paid compensatory damages is so reprehensible as to warrant the imposition of further sanctions to achieve punishment or deterrence." Plaintiff had to prove by clear and convincing evidence that her injuries arose from an act or omission by Ford that was malicious, which is "intentional wrongdoing in the sense of an evil-minded act," or wanton and willful misconduct, meaning "a deliberate act or [o]mission with knowledge or a high degree of probability of harm" coupled with "reckless indifference to the consequence of the act or omission[.]" To determine the amount of punitive damages, the jury was to consider the charged factors as well as "the profitability of the misconduct to the defendant" in light of its duration, but also "the financial condition of the defendant or the defendant's ability to pay the punitive damages award." Finally, there had to be "a reasonable relationship between the actual injury and the punitive damages."

The purposes of punitive damages are "to punish the defendant and to deter that defendant from repeating such conduct." N.J.S.A. 2A:15-5.14(a). The award must be an amount that is limited to "the purpose of punishing, and thereby deterring, only the wrongdoer . . . ." Tarr v. Bob Ciasulli's Mack Auto Mall, 194 N.J. 212, 216 (2008). Furthermore, an award punishes the defendant "for the private wrong to the individual, rather than the wrong to the public." Nappe, supra, 97 N.J. at 51.

After a jury finds the defendant liable for punitive damages, it sets the amount by considering factors that include the evidence it used to find liability for punitive damages, the profitability and duration of the misconduct and the defendant's "financial condition." N.J.S.A. 2A:15-5.12(c). The jury must determine the extent of the need to punish or deter and the amount that would influence the future conduct of a wrongdoer with the defendant's resources.

While plaintiff correctly observes that a court may not dismiss a punitive damages claim on the basis that the compensatory damages award is high enough to achieve the punitive purpose of punitive damages, Fischer v. Johns-Manville Corp., 103 N.J. 643, 664 (1986), the holding in Fischer only bars judges from dismissing the claim for that reason before it is tried to the jury. Nothing in Fischer suggests that the jury is precluded from reaching such a conclusion.

Indeed, N.J.S.A. 2A:15-5.12(c) sets no minimum for punitive damages awards, and under our case law the punitive award "is not required to have a fixed proportional relationship to the amount of compensatory damages." Nappe, supra, 97 N.J. at 50. Ford's counsel therefore had the latitude to advocate a minimal award by arguing the lack of clear and convincing evidence of blameworthy disregard of a significant danger. See Colucci, supra, 326 N.J. Super. at 177; Spedick, supra, 266 N.J. Super. at 590. See also State v. Wilson, 113 N.J. 393, 447 (1988) (treating the standards governing prosecutor's opening and summation as equivalent); Zola, supra, 112 N.J. at 425-27 (same). Any inaccuracies of law in his comments were mitigated by the court's immediate reminder to the jury that the court was the exclusive source of instructions on the law, which it had previously explained in the compensatory damages charge, and by the court's thorough and accurate charge of how to apply the statutory standards.

Plaintiff's complaint about the comment that a punitive damages award would mean a larger payment for her counsel as well as herself is that her counsel's fee was irrelevant to the willfulness of Ford's misconduct or the amount of damages needed to punish and deter it. "Unjustified aspersions" on the motives of opposing counsel are improper, State v. Frost, 158 N.J. 76, 86 (1999) (internal quotations and citations omitted), and appeals to sympathy are "clearly improper" because they "focus the jury's attention on irrelevant and prejudicial facts . . . ." Brodsky, supra, 362 N.J. Super. at 265-66.

However, a comment that disparages opposing counsel's motives, or appeals to an antipathy against lawyers and their fees, is unlikely to cause reversible prejudice if it is brief and isolated. State v. Watson, 224 N.J. Super. 354, 362 (App. Div.) ("fleeting and isolated" summation comment that "the role of defense counsel is to obfuscate the facts" could not have prejudiced jury), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S. Ct 535, 102 L. Ed. 2d 566 (1988); Marinez, supra, 370 N.J. Super. at 55; Roman, supra, 91 N.J. Super. at 419. The comment here was unremarkable because the existence of contingent fee arrangements in tort cases is a matter of common knowledge, and it was outweighed by the court's clear instructions to focus on the purposes of punishment and deterrence in determining what amount to award.

Plaintiff provides no authority to contradict the court's ruling that the only financial information relevant to determining an award that would punish and deter was the information for the year when the accident occurred and for the year of trial. Plaintiff elicited that Ford's cash on hand had increased between her accident and trial as well as explanations of why cash on hand was more representative of Ford's financial position than net worth.

The substantial increase in cash on hand was plain, so the court had the discretion under N.J.R.E. 403 to exclude annual figures that would simply illustrate the increase as a "needless presentation of cumulative evidence." Ricca, supra, 179 N.J. at 34 (noting that the standard of review for exclusion of otherwise relevant evidence on such ground is whether court "palpably abused its discretion" to create "a manifest denial of justice" (citations omitted)).

Finally, the comment about the absence of evidence of accidents like plaintiff's did not create unfair prejudice. Ford's counsel argued that there were no prior accidents or injuries arising from hot sticking while a vehicle was in motion on a roadway. Ford's response to NHTSA did not admit prior allegations of accidents in such a situation; it only acknowledged accidents that allegedly involved a throttle stuck closed without naming any additional alleged circumstances.

The court had ruled those particular allegations inadmissible for the substantive reason of insufficient proof of similarity between plaintiff's accident, which plaintiff attributed to a throttle that could stick closed while the engine was warm and the vehicle was in motion at highway speed, and allegations that were classified only as involving a closed throttle with no indication of whether the engine was warm or whether the vehicle was in motion. Like the recall, in which Ford had limited its admission to throttles that stuck closed when the engine was cold, those allegations posed the undue risk of unfairly convincing the jury that Ford had instead admitted the throttle could be stuck closed in all engine conditions, especially if that information were considered in light of Sero's testimony that the distinction between cold sticking and hot sticking was largely artificial.

The comment by Ford's counsel was, therefore, accurate not just about the actual record on that question, but also relative to the court's ruling on the substantive rather than procedural inadmissibility of similar evidence that plaintiff might have wished to present. That distinguishes the comment here from Bender v. Adelson, 187 N.J. 411, 418-21, 433-36 (2006), in which the otherwise admissible testimony of the defendants' experts were excluded for untimeliness in violation of the discovery orders, and the plaintiff improperly took advantage of that procedural bar by arguing in summation the "untruth" that the defendants could not find an expert to substantiate their theory of the case.

In sum, we find no error in the Judge Happas' denial of plaintiff's motion for a new trial as to punitive damages.

We affirm the judgment in favor of plaintiff and dismiss

 
the appeal and cross-appeal.

Plaintiff indicated at trial that she was diagnosed with post-traumatic amnesia and still had some short-term memory loss. However, "over the course of a couple months after the accident" she got flashbacks about it, and thereafter she could "picture it like it happened yesterday."

"Warm" and "hot" were used interchangeably below to indicate an engine that had reached operating temperature.

We discuss this issue including its factual predicate, infra.

Defendant's counsel at trial was not the same attorney who argued the appeal.

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67

A-5769-06T3

July 29, 2009