RICHARD F.
DAWSON and DIANA
DAWSON, individually and DIANA
DAWSON as parent and natural Guardian of Bryan
Dawson, a minor v.
CHRYSLER CORPORATION, Defendant-Third Party Plaintiff v. TOWNSHIP OF PENNSAUKEN, DELTA
LEASING COMPANY and CHERRY HILL DODGE, INC., Third Party Defendants v. TOWNSHIP
OF PENNSAUKEN, Fourth Party Plaintiff v. CUMBERLAND MUTUAL FIRE INSURANCE
COMPANY, Fourth Party Defendant v. PEERLESS INSURANCE COMPANY, Fourth Party
Defendant Defendant,
Chrysler Corporation, Appellant
No. 79-1363
UNITED STATES COURT OF APPEALS, THIRD CIRCUIT
630 F.2d 950;
1980 U.S. App. LEXIS 14179;
CCH Prod. Liab. Rep. P8766
January 7, 1980, Argued; April 30, 1980, Reargued
September 11, 1980, Decided
PRIOR HISTORY:
[**1]
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
(C.A. No. 76-1651)
COUNSEL: Harry A. Short, Jr. (argued), Philadelphia, Pa., for appellant; Liebert,
Short, Fitzpatrick
& Lavin, Philadelphia, Pa., of counsel.
James E. Beasley (argued), Daniel L. Thistle, Philadelphia, Pa., for appellees;
Beasley, Hewson
& Casey, Philadelphia, Pa., of counsel.
JUDGES: Before ADAMS, VAN DUSEN and WEIS, Circuit Judges.
OPINIONBY: ADAMS
OPINION:
[*953]
OPINION OF THE COURT
This appeal from a jury verdict and entry of judgment in favor of the
plaintiffs arises out of a New Jersey automobile accident in which a police
officer was seriously injured. The legal questions in this diversity action,
that are governed by New Jersey law, are relatively straight-forward. The
public policy questions, however, which are beyond the competence of this Court
to resolve and with which Congress ultimately must grapple, are complex and
implicate national economic and social concerns.
In adjudicating this appeal, we first decide the question whether the district
court erred in denying the defendant's motion for
judgment notwithstanding the verdict. We then turn to the issue whether certain
[**2] evidentiary mistakes were committed, which would require a new trial. The
third substantive question relates to the propriety of the computation of
prejudgment interest. Finally, we address the troubling public policy dilemma namely, that under
existing federal law
individual juries in the various states are permitted, in effect, to establish
national automobile safety standards. The result of such an arrangement,
predictably, is not only incoherence in the safety requirements set by
disparate juries, but also the possibility that a standard established by a
jury in a particular case will conflict with other policies regarding the
economics of the automobile industry as well as energy conservation programs.
I. FACTUAL BACKGROUND
On September 7, 1974, Richard F. Dawson, while in the employ of the Pennsauken
Police Department, was seriously injured as a result of an automobile accident
that occurred in Pennsauken, New Jersey. As Dawson was driving on a rain-soaked
highway, responding to a burglar alarm, he lost control of his
patrol car a 1974 Dodge
[*954] Monaco. The car slid off the highway, over a
curb, through a small sign, and into an unyielding steel
pole that was fifteen
[**3] inches in diameter. The car struck the
pole in a backwards direction at a forty-five degree angle on the left side of the
vehicle; the point of impact was the left
rear wheel well. As a result of the force of the
collision, the vehicle literally wrapped itself around the
pole. The
pole ripped through the body of the car and crushed Dawson between the
seat and the
"header" area of the
roof, located just above the windshield. The so-called
"secondary
collision" of Dawson with the interior of the automobile dislocated Dawson's left hip and
ruptured his fifth and sixth cervical vertebrae. As a result of the injuries,
Dawson is now a quadriplegic. He has no control over his body from the neck
down, and requires constant medical attention.
Dawson, his wife, and their son brought suit in the Court of Common Pleas of
Philadelphia against the Chrysler Corporation, the
manufacturer of the vehicle in which Dawson was injured. Chrysler removed the case to the
United States District Court for the Eastern District of Pennsylvania,
28 U.S.C. § 1441(a) (1976), on the grounds of diversity, and subsequently had the case
transferred to the District Court for the District of New Jersey. n1 Id.
[**4]
§ 1404(a). The plaintiffs' claims were based on theories of strict products
liability and breach of implied warranty of fitness. They alleged that the
patrol car was defective because it did not have a full, continuous steel
frame extending through the door panels, and a cross-member running through the
floor board between the posts located between the
front and
rear doors of the vehicle. Had the vehicle been so designed, the Dawsons alleged,
it would have
"bounced" off the
pole following relatively slight penetration by the
pole into the
passenger
space.
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n1. Following
transfer, Chrysler filed a third-party complaint against the Township of
Pennsauken, Delta Leasing Co., and Cherry Hill Dodge, Inc. The Township then
filed a fourth party complaint against the Cumberland Mutual Fire Insurance Co.
and the Peerless Insurance Co. These parties are not involved in the present
appeal.
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Expert testimony was introduced by the Dawsons to prove that the existing
frame of the
patrol car was unable to withstand side
[**5] impacts at relatively low speed, and that the inadequacy of the
frame permitted the
pole to enter the
passenger area and to injure Dawson. The same experts testified that the improvements
in the design of the
frame that the plaintiffs proposed were feasible and would have prevented Dawson
from being injured as he was. According to plaintiffs' expert witnesses, a
continuous
frame and cross-member would have deflected the
patrol car away from the
pole after a minimal intrusion into the
passenger area and, they
declared, Dawson likely would have emerged from the accident with only a slight
injury.
In response, Chrysler argued that it had no
duty to produce a
"crashproof" vehicle, and that, in any event, the
patrol car was not defective.
Expert testimony for Chrysler established that the design and construction of the 1974 Dodge
Monaco complied with all federal vehicle safety standards, n2 and that
deformation n3 of the body of the vehicle is desirable in most crashes because
it absorbs the impact of the crash and decreases the rate of deceleration on
the occupants of the vehicle. Thus, Chrysler's experts asserted that, for most
types of automobile accidents, the design offered by
[**6] the Dawsons would be less
safe than the existing design. They also estimated that the steel parts that would
be required in the model suggested by the Dawsons would have added between 200
and 250 pounds to the weight, and approximately $ 300 to the price of the
vehicle. It was also established that the 1974 Dodge Monaco's unibody
construction was stronger than comparable
Ford and Chevrolet vehicles.
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n2. See 49 C.F.R. 571.1 (1979).
n3. Deformation is a term used in this context to describe the collapsing of
the body and
frame of a vehicle upon impact with a stationary object.
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After all testimony had been introduced, Chrysler moved for a directed verdict,
[*955] which the district judge denied. The jury thereupon returned a verdict in
favor of the plaintiffs. In answers to a series of special interrogatories,
the
jurors concluded that (1) the body structure of the 1974 Dodge Monaco was defective
and unreasonably dangerous; (2) Chrysler breached its implied warranty that the
vehicle would be fit
[**7] for use as a police car; (3) as a result of the defective design and the
breach of warranty, Dawson sustained more severe injuries than he would have
incurred had Chrysler used the
alternative design proposed by Dawsons expert
witnesses; (4) the defective design was the
proximate cause of Dawson's enhanced injuries; and (5) Dawson's failure to use a seatbelt was
not a
proximate cause of his injuries. The jury awarded Mr. Dawson $ 2,064,863.19 for his expenses,
disability, and pain and suffering, and granted Mrs. Dawson $ 60,000.00 for
loss of consortium and loss of services. After the district court entered
judgment, n4 Chrysler moved for
judgment notwithstanding the verdict or, alternatively for a new trial. The court denied both motions.
The Dawsons then requested pre-judgment interest of eight percent per annum of
the damages award, accruing from the time suit was instituted to the date of
the judgment. The trial judge granted the request in the amounts of.$
388,012.53 for Mr. Dawson and $ 11,274.72 for Mrs. Dawson.
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n4. The judgment as originally filed by the district court did not
resolve the claims involving the third- and fourth-party plaintiffs and
defendants to this action. See note 1 supra. However, the district court
filed a certificate under Fed.R.Civ.P. 54(b) on January 1, 1980, certifying
that a final judgment was entered with respect to the Dawsons' claims against
Chrysler, even though judgment had not yet been entered in the third- and
fourth-party actions.
Inasmuch as this certificate was entered prior to the argument before this Court, and
because neither party is prejudiced by the late filing of the Rule 54(b)
certificate, we have appellate jurisdiction.
Tilden Financial Corp. v. Palo Tire Serv., 596 F.2d 604, 606-07 (3d Cir. 1979).
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[**8]
On appeal, Chrysler raises the following contentions: (1) It owed no
duty to the Dawsons to manufacture an automobile that would withstand the type of
collision that occurred here. (2) The evidence presented by the Dawsons was
insufficient to establish that the
patrol car was defective and unreasonably dangerous or that Chrysler breached an implied
warranty of fitness. (3) The evidence did not sufficiently establish that
Dawson's injuries in fact were caused by the allegedly defective design. (4)
The trial court erred in permitting Dawsons' attorney to use documents
containing the results of automobile safety tests in cross-examining one of
Chrysler's expert witnesses without first establishing the reliability of the
documents. (5) The district court erred in permitting the
jurors to take into the jury room a copy of portions of a Calspan automobile safety
report. (6) The trial judge erred in granting the Dawsons' motion for
prejudgment interest.
We affirm.
II. DISCUSSION
At the outset, it is important, indeed crucial, to point out, that the
substantive issues of this
diversity case are controlled by the law of New Jersey.
A.
Judgment Notwithstanding the Verdict
Dawsons'
[**9] claims are premised on two legal theories strict tort liability and breach of
an implied contractual warranty. As we recognized in
Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976), under the law of New Jersey, the governing principles of
strict liability and the implied warranty theory are identical. n5 Accordingly, we proceed
with the adjudication of this appeal pursuant to the rubric of
strict liability.
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n5. Most jurisdictions do not treat the doctrines of
strict liability and implied warranty as identical concepts. For example, most states do not
permit a plaintiff to recover under
strict liability where the only damages alleged are for injuries to the
defective product itself that is, for the failure of the product to conform to the expectations
of the buyer and the
seller. Compare
Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 66, 207 A.2d 305, 312 (1965) with
Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280 (3d Cir. 1980) (Illinois law and cases cited therein, at 287
& n.13).
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[**10]
[*956] Under New Jersey law, a defendant in a tort action may not be held liable
unless he owes a
duty of care to the plaintiff. The question of
duty is to be resolved in the first instance by the trial court. If such a
duty exists, then a jury in a
strict liability action must decide two factual questions: (1) whether the product at issue was
defective; and (2) whether the
defective product was a
proximate cause of the plaintiff's injuries.
Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 176, 406 A.2d 140, 153 (1979). With these guidelines in mind, we turn to the contentions set forth by
Chrysler in its appeal from the denial of its motion for
judgment notwithstanding the verdict.
1.
Duty
The New Jersey Supreme Court recently reviewed the concept of
duty in tort actions and concluded that
"(t)he question is ultimately one of public policy," and the answer
"depends upon a balancing of the nature of the risk, the public interest and the
relationship of the parties."
Id. at 172, 406 A.2d at 151. The policies underlying the concept of
duty include
"the economic good of the group, practical administration of the law, justice
between the parties and other considerations
[**11] relative to the environment out of which the case arose." Id. (quoting Green,
Duties, Risks, Causation, Doctrines,
41 Texas L.Rev. 42, 45 (1962)).
Chrysler
urges that the district court erred in holding that it had a
duty of care towards Dawson because it had no obligation to manufacture a vehicle
that would protect a
passenger against the type of harm suffered by Dawson. As we understand Chrysler's
argument, however, it appears to be directed, not to Chrysler's
duty vis-a-vis Dawson, but rather to the question whether the
patrol car was defective
inasmuch as it did not adequately prevent Dawson from sustaining serious injury. For,
as we stated in Huddell, it is
"beyond peradventure that an automobile
manufacturer today has some legal obligation to design and produce a reasonably crashworthy
vehicle. . . . Rephrased in the terminology of
strict liability, the
manufacturer must consider accidents as among the
"intended' uses of its products," and
passengers injured in such accidents as among the group of
reasonably foreseeable plaintiffs.
537 F.2d at 735. Thus, Chrysler had a
duty to protect
Dawson, as well as other
users of its vehicles, against harm resulting from automobile
[**12] accidents such as that which occurred here. Whether Chrysler may be held
liable depends, of course, on concomitant findings that Chrysler breached this
duty by producing a
patrol car that was defective, and that the
defective product proximately caused Dawson's injuries.
2.
Defective Product
Thus, the controlling issue in the case is whether the jury could be permitted
to find, under the law of New Jersey, that the
patrol car was defective. In Suter, the New Jersey Supreme Court summarized its state's
law of
strict liability as follows:
If at the time the
seller distributes a product, it is not
reasonably fit,
suitable and
safe for its intended or
reasonably foreseeable purposes so that
users or others who may be expected to come in contact with the product are injured
as a result thereof, then the
seller shall be responsible for the ensuing damages.
81 N.J. at 169, 406 A.2d at 149 (footnote omitted). The court, in adopting this test, specifically rejected
the requirement of the Restatement (Second) of Torts
§ 402A that the defect must cause the product to be
"unreasonably dangerous to the
user or
consumer." n6 In the court's view,
"the Restatement
[*957] language
[**13] may lead a jury astray for
"(i)t may suggest an idea like ultra-hazardous, or abnormally dangerous, and
thus give rise to the impression that the plaintiff must prove that the product
was unusually or extremely dangerous.'
"
81 N.J. at 175, 406 A.2d at 151 (quoting Wade, On the Nature of
Strict Liability for Products,
44 Miss.L.J. 825, 832 (1973)).
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n6. Section 402A of the Restatement (Second) of Torts provides:
(1) One who sells any product in a defective condition unreasonably dangerous
to the
user or
consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate
user or
consumer, or to his property, if
(a) the
seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the
user or
consumer without substantial change in the condition in which it is sold.
(2) The rule in Subsection (1) applies although
(a) The
seller has exercised all possible care in the preparation and sale of his product, and
(b) the
user or
consumer has not bought the product from or entered into any contractual relation with
the
seller.
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[**14]
The determination whether a product is
"reasonably fit,
suitable and
safe for its intended or
reasonably foreseeable purposes" is to be informed by what the New Jersey Supreme Court has termed a
"risk/utility analysis."
Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 172-79, 386 A.2d 816, 825-29 (1978). Under this approach, a product is
defective if
"a reasonable person would conclude that the magnitude of the scientifically
perceivable danger as it is proved to be at the time of trial outweighed the
benefits of the way the product was so designed and marketed."
Id. at 172-73, 386 A.2d at 826 (quoting Keeton, Products Liability and the Meaning of Defect,
5 St. Mary's L.J. 30, 37-38 (1973) (emphasis in original)). The court in Cepeda, relying heavily on the article
by Dean John Wade, referred to in Suter, identified seven factors that might be
relevant to this balancing process:
(1) The usefulness and desirability of the product its utility to the
user and to the public as a whole.(2) The safety aspects of the product the likelihood that it will cause injury,
and the probable seriousness of the injury.(3) The availability of a substitute product which
[**15] would meet the same need and not be as unsafe.(4) The
manufacturer's ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility.(5) The
user's ability to avoid danger by the exercise of care in the use of the product.(6) The
user's anticipated awareness of the dangers inherent in the product and their
avoidability, because of general public knowledge of the obvious condition of
the product, or of the existence of
suitable warnings or instructions.(7) The feasibility, on the part of the
manufacturer, of spreading the loss by setting the price of the product or carrying
liability insurance.
Id. at 173-74, 386 A.2d at 826-27 (quoting Wade, On the Nature of Strict Tort
Liability for Products,
44 Miss.L.J. 825, 837-38 (1973). The court suggested that the trial judge first determine whether a balancing
of these factors precludes liability as a matter of law. If it does not, then
the judge is to incorporate into the instructions any factor for which there
was presented specific proof and which might be deemed relevant to the jury's
consideration of the
matter.
[**16] Id.
Chrysler maintains that, under these standards, the district court erred in
submitting the case to the jury because the Dawsons failed, as a matter of law,
to prove that the
patrol car was defective. Specifically, it insists that the Dawsons did not present
sufficient evidence from which the jury reasonably might infer that the
alternative design that they proffered would be safer than the existing design, or that it would
be cost effective, practical, or marketable. In short, Chrysler
urges that the substitute design would be less socially beneficial than was the
actual design of the
patrol car. In support of its argument, Chrysler emphasizes that the design of the 1974
Dodge Monaco complied with all of the standards authorized by Congress in the
National Traffic and Motor Vehicle Safety Act of 1966, Pub.L. 89-563, tit. I,
§ 107, 80 Stat. 718, codified in
15 U.S.C. § 1396 (1976), and set forth in accompanying
regulations, 49 C.F.R.
§ 571.1 (1979).
[*958] Compliance with the safety standards promulgated pursuant to the National
Traffic and Motor Vehicle Safety Act, however, does not relieve Chrysler of
liability in this action. For, in authorizing the Secretary
[**17] of Transportation to enact these standards, Congress explicitly provided,
"Compliance with any Federal motor vehicle safety standard issued under this
subchapter does not exempt any person from any liability under common law."
15 U.S.C. § 1397(c) (1976). Thus, consonant with this congressional directive, we must review
Chrysler's appeal on the question of the existence of a defect under the common
law of New Jersey that is set forth above.
Our examination of the record persuades us that the district court did not err
in denying Chrysler's motion for
judgment notwithstanding the verdict. The Dawsons demonstrated that the
frame of the 1974 Dodge Monaco was noncontinuous that is, it consisted of a
front portion that
extended from the
front of the car to the middle of the
front
passenger
seat, and a
rear portion that ran from the middle of the
rear
passenger
seat to the back end of the vehicle. Thus, there was a gap in the seventeen-inch
side area of the
frame between the
front and
rear
seats. The plaintiffs also proved that, after colliding with the
pole, the car slid along the left side portion of the
rear
frame until it reached the gap in the
frame. At that point, the
pole tore
[**18] through the body of the vehicle into the
passenger area and proceeded to push Dawson into the header area above the windshield.
Three experts a design analyst, a mechanical engineer, and a biochemical
engineer also testified on behalf of the Dawsons. These witnesses had examined
the
patrol car and concluded that it was inadequate to withstand side impacts. They
testified that there was an
alternative design available which, had it been employed in the 1974 Monaco, would have prevented
Dawson from sustaining serious injuries. The substitute
design called for a continuous
frame with an additional cross member running between the so-called B-posts the
vertical posts located at the side of the car between the
front and
rear
seats. According to these witnesses, this design was known in the industry well
before the accident and had been tested by a number of independent testing
centers in 1969 and in 1973.
The mechanical engineer conducted a number of studies in order to ascertain the
extent to which the
alternative design would have withstood the crash. On the basis of these calculations, he
testified that the
pole would have penetrated only 9.9 inches into the
passenger
space, and
[**19] thus would not have crushed Dawson. Instead, the engineer stated, the car
would have deflected off the
pole and back into the highway. Under these circumstances, according to the
biochemical engineer, Dawson would have been able to
"walk away from the accident" with but a bruised shoulder.
Also introduced by the Dawsons were reports of tests conducted for the
United States Department of Transportation, which indicated that, in side
collisions with a fixed
pole at twenty-one miles per hour, n7
frame improvements similar to those proposed by the experts presented by the Dawsons
reduced intrusion into the
passenger area by fifty percent, from sixteen inches to eight inches. The study
concluded that the improvements,
"in conjunction with interior alterations, demonstrated a dramatic increase in
occupant protection." n8 There was no suggestion at trial that the
alternative design recommended by the Dawsons would not comply with federal safety standards. On
cross-examination, Chrysler's attorney did get the Dawsons' expert witnesses to
acknowledge that the
alternative design would add between 200 and 250 pounds to the vehicle and would cost an
additional $ 300 per car. The Dawsons'
[**20] experts also
[*959] conceded that the heavier and more rigid an automobile, the less able it is to
absorb energy upon impact with
a fixed object, and therefore the major force of an accident might be
transmitted to the
passengers. Moreover, an expert for Chrysler testified that, even if the
frame of the
patrol car had been designed in conformity with the plaintiffs' proposals, Dawson would
have sustained injuries equivalent to those he actually incurred. Chrysler's
witness reasoned that Dawson was injured, not by the intrusion of the
pole into the
passenger
space, but as a result of being
thrown into the header area of the
roof by the vehicle's initial contact with the
pole that is, prior to the impact of the
pole against the driver's
seat.
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n7. Eyewitness as well as
expert testimony was introduced to show that the speed of the car at the time of impact was
between twenty-four and twenty-six miles per hour.
n8. J. Greene, Basic Research in Crashworthiness II Development and testing of
Vehicle Side Structure Modifications 151 (1973).
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[**21]
On the basis of the foregoing recitation of the
evidence presented respectively by the Dawsons and by Chrysler, we conclude
that the record is sufficient to sustain the jury's determination, in response
to the interrogatory, that the design of the 1974 Monaco was defective. The
jury was not required to ascertain that all of the factors enumerated by the
New Jersey Supreme Court in Cepeda weighed in favor of the Dawsons in order to
find the
patrol car defective. See p. 957 supra. Rather, it need only to have reasonably
concluded, after balancing these factors, that, at the time Chrysler
distributed the 1974 Monaco, the car was
"not
reasonably fit,
suitable and
safe for its intended or
reasonably foreseeable purposes."
Suter, 81 N.J. at 169, 406 A.2d at 149. Moreover, our role in reviewing the record for purposes of determining whether
a trial judge erred in denying a motion for a directed verdict or for
judgment notwithstanding the verdict is necessarily a limited one. As we stated in Huddell,
"
"The Seventh Amendment bars appellate review of facts found by a jury in actions
at common law . . . .'
"
537 F.2d at 736 (quoting 9 C. Wright
& A. Miller, Federal Practice and Procedure
[**22]
§ 2571, at 681 (1971)). Thus, we are admonished to review the record in this
case in the light most favorable to the nonmoving party, the Dawsons, and to
affirm the judgment of the district court denying the motions unless the record
"is critically deficient of that minimum quantum of evidence from which a jury
might reasonably afford relief."
Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969); accord,
Huddell, 537 F.2d at 737. We hold that it is not.
3.
Proximate Cause
The remaining question in regard to the motion for
judgment notwithstanding the verdict is whether the Dawsons presented sufficient evidence to permit the
jury reasonably to conclude that the design defect was the
proximate cause of Dawson's injuries. In this regard, Chrysler advances three arguments.
First, it
urges that the
patrol car was substantially modified by Dawson's employer in such a way that the car, as
sold by Chrysler, could not be said to have caused the injuries. Second, it
maintains that Dawson's failure to wear a
seat belt was, in fact, the
proximate cause of his injuries. n9 Third, it claims that there was insufficient evidence that
the defect caused Dawson to suffer more severe injuries than
[**23] he would have incurred had the
alternative design been employed that is, had the
patrol car not been defective.
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n9. Dawson testified that, at the time of the accident, he was not wearing a
seat belt, but that this was customary police practice in order to permit officers
to enter and leave their vehicles as quickly as possible.
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Footnotes- - - - - - - - - - - - - - - - -
Counsel for the Dawsons conceded that the
patrol car had been modified by the addition of a tubular roll bar and a wire mesh screen
that extended between the
front and
rear
passenger areas in order to separate the police officer from suspects. Dawsons' expert
witnesses testified, however, that this alteration neither compromised the
structural integrity of the vehicle, nor in any way contributed to Dawson's
injuries. In contrast, the expert witnesses for Chrysler testified merely that
they were not certain whether the modifications affected Dawson's injuries.
Under these circumstances, the jury's implicit conclusion that the alterations
were not the
proximate
[*960] cause of
[**24] Dawson's injuries is supported by the evidence.
The jury specifically found in interrogatory five that Dawson's failure to wear
his seatbelt was not a
proximate cause of his injuries. Chrysler presented
expert testimony that Dawson was injured when he
"ramped" up the back
seat into the
roof of the car that is, as he
slid upwards out of his
seat along the back rest following the vehicle's initial impact with the
pole. It argues therefore that, if Dawson had been wearing a seatbelt, he would
not have been
thrown out of the
seat and would not have smashed into the
roof of the car. Chrysler maintains that the jury's verdict is inconsistent with
this testimony.
In Huddell, we noted in reviewing on appeal a question regarding causation that
"the credibility of opinion evidence is for the fact-finder."
537 F.2d at 737. Here, the Dawsons presented expert witnesses who contradicted Chrysler's
theory of causation. Observing initially that the
patrol car was moving backwards at a forty-five degree angle at the time of impact, the
witnesses opined that the force of the
collision must have pushed Dawson's back and left shoulder against the
rear of the
seat. Under these circumstances, they
[**25] concluded, he did not
"ramp" up the
seat into the
roof, but remained in the
seat until the
pole entered the
passenger
space, collided with the
rear of the
seat, and pushed both the
seat and Dawson into the ceiling. In other words, had the
pole been prevented from crushing up against the
rear of the driver's
seat, Dawson would not have been
thrown into the ceiling. This testimony was corroborated by a third expert, who
stated that the nature of Dawson's dislocated hip indicated that he was not
thrown from the
seat as Chrysler's witnesses maintained. The
jurors reasonably could have found the testimony offered by the Dawsons' witnesses to
be more persuasive than Chrysler's. Accordingly, Chrysler's contention that
the jury's verdict is at odds with the evidence is without merit.
Chrysler's last argument regarding causation is that the plaintiffs failed to
prove that Dawson's injuries were enhanced as a result of the design-defect in
the
patrol car. As with the other contentions, the record does not support this claim. The
Dawsons presented
expert testimony that the
alternative design would have prevented the
pole from intruding far enough into the
passenger
space to
hit the
front
[**26]
seat. And, as we have just observed, there was testimony that Dawson was not
thrown into the ceiling of the car, but rather was crushed up against the
roof as the
pole forced the
passenger
seat into the
roof. Had Dawson remained in his
seat from gravity forces, and had the
seat not been jammed against the
roof, it is a reasonable inference that his cervical vertebrae would not have been
ruptured. Indeed, the biochemical engineer who evaluated the accident and
testified for the Dawsons concluded that, if the
pole had not entered the
patrol car and crushed Dawson, the officer would have suffered no more than a bruised
shoulder. In view of this testimony, we cannot say that the jury's verdict on
the question of
proximate cause is unsupported by the record.
4. Summary
Inasmuch as we conclude that it was not incorrect for the district court to hold that
Chrysler had a legal
duty to protect Dawson against the type of accident in which he was injured, and
because the jury's findings that the 1974
Monaco was not
reasonably fit to withstand the accident and that the defect proximately caused Dawson's
injuries were supported by the evidence, the district court did not err in
denying Chrysler's
[**27] motion for
judgment notwithstanding the verdict.
B. New Trial
1. Admissibility of Calspan Report
During cross-examination of one of Chrysler's expert witnesses, the attorney
for the Dawsons referred to the conclusions reached in two reports on the
subject of automobile crashworthiness. These reports were prepared for the
United States Department
[*961] of Transportation by the Calspan Corporation (formerly the Cornell
Aeronautical Laboratory, Inc.) of Buffalo, New York. Quotations from documents
of this kind are admissible under the exception to the hearsay rule contained
in Fed.R.Evid. 803(18), which provides:
To the extent called to the attention of an expert witness upon
cross-examination or relied upon by him in direct examination,
statements contained in published treatises, periodicals, or pamphlets on a
subject of history, medicine, or other science or art, established as a
reliable authority by the testimony or admission of the witness or by other
expert testimony or by judicial notice. If admitted, the statements may be read into evidence
but may not be received as exhibits.
In this case, the authoritativeness of the reports was inferentially conceded by
[**28] one of Chrysler's expert witnesses. When asked by Dawsons' counsel,
"since you calculated some data from them, they're reliable in that regard,
aren't they," the witness replied:
"Well, I have no reason to doubt their test data reflected in (the) reports." Moreover, Chrysler did not object to the use of the Calspan report.
Accordingly, we hold that the Dawsons' use during cross-examination of the
Calspan reports was not precluded by Rule 803(18).
Chrysler also challenges the decision of the district
court, following the conclusion of all testimony, to admit the Calspan reports
into evidence as plaintiffs' exhibits 110 and 111. At the time the reports
were offered, Chrysler did not object to their admissibility. Although Rule
803(18) provides that such reports or treatises not be received as exhibits, in
light of the fact that there was no objection to the reports and
inasmuch as the
jurors did not take them into the jury room during their deliberations, we conclude
that the error here, if any, was harmless.
2. Jury's Use of Diagram
One page of one of the Calspan reports, which contained a diagram of the
exterior deformation of a test car following a side
collision with a stationary
[**29]
pole, was introduced as plaintiffs' exhibit 107, and was taken by the
jurors into the jury room when they retired to decide the case. Chrysler objected to
neither the admission of the document nor to the jury's use of it. On appeal,
however, it
urges that the admission and use by the jury of the diagram constitutes reversible
error.
Although the
admission of the document as an exhibit abridged the terms of Rule 803(18), we
cannot say, in view of Chrysler's failure to object, that the district court
committed reversible error in this regard. Even assuming arguendo that the
trial court erred, in the context of this case the error was harmless.
Independent of the exhibit, there was testimony regarding the contents of the
Calspan report, including the diagram in question. Counsel for the Dawsons
extensively cross-examined one of Chrysler's experts about the tests diagrammed
in the exhibit. In short, the exhibit was merely duplicative of the testimony.
Cf.
Ammar v. American Export Lines, Inc., 326 F.2d 955, 957 n. 2 (2d Cir.) (plaintiff's counsel's reading during closing argument of a
physician's report that was not admitted into evidence held harmless error
because the report
"said
[**30] in substance what the doctor had stated on the
stand"), cert. denied,
379 U.S. 824, 85 S. Ct. 48, 13 L. Ed. 2d 34 (1964).
For these reasons, the district court did not err in denying Chrysler's motion
for a new trial.
C.
Prejudgment Interest
Chrysler's final argument is that the district court improperly computed the
amount of
prejudgment interest recoverable by the Dawsons. Specifically, it
urges that
prejudgment interest is not available on the portion of the damages award that will be used to pay
the contingent fee owed to plaintiffs' counsel or on that portion of the award
on which Dawson's workers compensation insurer has a lien.
Prejudgment interest in New Jersey tort actions is authorized by Rule 4:42-11(b) of
[*962] the Civil Practice Rules Governing the Courts of the State of New Jersey (West
1979), which states:
(T)he court shall, in tort
actions, including products liability actions, include in the judgment simple
interest at 8% per annum on the amount of the award from the date of the
institution of the action or from a date 6 months after the date of the tort,
whichever is later, provided that in exceptional cases the court may suspend
the running of such
[**31]
prejudgment interest. The contingent fee of an attorney shall not be computed on the interest so
included in the judgment.
No New Jersey case dealing with the issues raised in Chrysler's contentions
regarding
prejudgment interest has come to our attention. Moreover, Rule 4:42-11(b) itself provides no
indication that the New Jersey Supreme Court, in adopting the Rule, intended to
exclude from
prejudgment interest the portion of the damage award owing to plaintiffs' counsel and Dawson's
compensation carrier. n10 Under these circumstances, we decline to carve out of
the rule the exemptions from
prejudgment
interest urged by Chrysler. In the absence of some authority for the creation of such
exemptions, Chrysler's arguments which may well have merit are best directed to
the drafters of the Rule, the New Jersey Supreme Court, or to the New Jersey
legislature.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n10. Under the Rule, however, counsel for plaintiff will not receive any
prejudgment interest.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
III. CONCLUSION
Although we affirm the judgment of
[**32] the district court, we do so with uneasiness regarding the consequences of our
decision and of the decisions of other courts throughout the country in cases
of this kind.
As we observed earlier, (see p. 957 supra) Congress, in enacting the National
Traffic and Motor Vehicle Safety Act, provided that compliance with the Act
does not exempt any person from liability under the common law of the state of
injury. The effect of this provision is that the states are free, not only to
create various standards of liability for automobile
manufacturers with respect to
design and structure, but also to delegate to the triers of fact in civil cases
arising out of automobile accidents the power to determine whether a particular
product conforms to such standards. In the present situation, for example, the
New Jersey Supreme Court has instituted a
strict liability standard for cases involving
defective products, has defined the term
"defective product" to mean any such item that is not
"reasonably fit,
suitable and
safe for its intended or
reasonably foreseeable purposes," and has left to the jury the task of determining whether the product at issue
measures up to this standard.
The result of
[**33] such arrangement is that while the jury found Chrysler liable for not
producing a rigid enough vehicular
frame, a factfinder in another case might well hold the
manufacturer liable for producing a
frame that is too rigid. Yet, as pointed out at trial, in certain
types of accidents head-on
collisions it is desirable to have a car designed to collapse upon impact because the
deformation would absorb much of the shock of the
collision, and divert the force of deceleration away from the vehicle's
passengers. In effect, this permits individual juries applying varying laws in different
jurisdictions to set nationwide automobile safety standards and to impose on
automobile
manufacturers conflicting requirements. It would be difficult for members of the industry
to alter their design and production behavior in response to jury verdicts in
such cases, because their response might well be at variance with what some
other jury decides is a defective design. Under these circumstances, the law
imposes on the industry the responsibility of insuring vast numbers of persons
involved in automobile accidents.
Equally serious is the impact on other national social and economic goals of
the existing
[**34] case-by-case system of establishing automobile safety requirements. As we
have become more
dependent on foreign
[*963] sources of energy, and as the price of that energy has increased, the
attention of the federal government has been drawn to a search to find
alternative supplies and the means of conserving energy. More recently, the
domestic automobile industry has been struggling to compete with foreign
manufacturers which have stressed smaller, more fuel-efficient cars. Yet, during this same
period, Congress has permitted a system of regulation by ad hoc adjudications
under which a jury can hold an automobile
manufacturer culpable for not producing a car that is considerably heavier, and likely to
have less fuel efficiency.
In sum, this appeal has brought to our attention an important conflict that
implicates broad national concerns. Although it is important that society
devise a proper system for compensating those injured in automobile
collisions, it is not at all clear that the present arrangement of permitting individual
juries, under varying standards of
liability, to impose this obligation on
manufacturers is fair or efficient.
Inasmuch as it was the Congress that
[**35] designed this system, and because Congress is the body best suited to evaluate
and, if appropriate, to change that system, we decline today to do anything in
this regard except to bring the problem to the attention of the legislative
branch.
Bound as we are to adjudicate this appeal according to the substantive law of
New Jersey, and because we find no basis in that law to overturn the jury's
verdict, the judgment of the district court will be affirmed.