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filed: September 6, 1994; As Corrected September 8, 1994. Second Correction September 14, 1994. .
GREATE BAY HOTEL & CASINO, D/B/A SANDS HOTEL, CASINO & COUNTRY CLUBv.LEONARD H. TOSE, APPELLANT; GREATE BAY HOTEL & CASINO, D/B/A SANDS HOTEL, CASINO & COUNTRY CLUB V. LEONARD H. TOSE, GREATE BAY HOTEL & CASINO, INC., APPELLANT
On Appeal from the United States District Court for the District of New Jersey. (D.C. Civil No. 91-00600).
Before: Stapleton and Greenberg, Circuit Judges, and Atkins, District Judge*fn*
Opinion OF THE COURT
GREENBERG, Circuit Judge.
Leonard H. Tose claims to have lost over $3,000,000 while gambling from 1983 through 1987 at the Greate Bay Hotel & Casino (the "Sands") in Atlantic City, New Jersey. In particular, while playing blackjack at the Sands on April 11 and April 26, 1986, Tose lost $1,000 in cash and $1,200,000 on credit. He later paid the Sands $65,000 of the $1,200,000, leaving a balance of $1,135,000. After negotiations, the Sands and Tose signed a settlement agreement providing for Tose to repay the $1,135,000 in two payments.
Tose, however, did not make the first payment, so the Sands brought an action to enforce the settlement agreement. Tose counterclaimed, alleging that because the Sands knowingly allowed him to gamble while intoxicated, it must return his gambling losses. The district court entered partial summary judgment for the Sands on the settlement agreement thereby obliging Tose to adhere to its terms. However, the court denied the Sands' motion to dismiss the counterclaim for want of subject matter jurisdiction. Thus, the counterclaim was tried to a jury which returned a verdict in the Sands' favor.
Tose appeals from the district court's denial of his post-trial motions.*fn1 The Sands cross-appeals from the district court's denial of its motion to dismiss Tose's counterclaim for want of jurisdiction. We hold that the district court correctly found that it had subject matter jurisdiction over Tose's counterclaim and that the district court properly denied his post-trial motions. Accordingly, we will affirm the district court's orders.
The Sands instituted this action in the Superior Court of New Jersey, but Tose removed it to the district court on the basis of diversity jurisdiction. Thereafter, he filed his counterclaim seeking to recover over $3,000,000 in gambling losses he claimed to have incurred from 1983 to 1987, plus punitive damages and attorney's fees. Tose based his counterclaim on GNOC Corp. v. Aboud, 715 F. Supp. 644, 655 (D.N.J. 1989), which held that "a casino has a duty to refrain from knowingly permitting an invitee to gamble where that patron is obviously and visibly intoxicated." Specifically, Tose alleged that the Sands intentionally and maliciously provided him with alcoholic beverages so that he would become intoxicated, continued to provide him with these beverages after he became visibly intoxicated, and encouraged and allowed him to gamble while visibly intoxicated.
The Sands filed a motion for summary judgment seeking an order enforcing the settlement agreement. In addition, the Sands sought a partial dismissal of the counterclaim on the ground that a six-year statute of limitations barred Tose from recovering for any losses before February 26, 1985, as he filed his counterclaim six years after that date. The Sands also contended that the timely portion of Tose's counterclaim was barred because he was an overall winner during that time period (i.e., "net winner theory"). The district court by opinion and order dated December 16, 1991, held the following: (1) the settlement agreement was "enforceable and not voidable because of fraud, mistake or other compelling circumstances"; (2) the statute of limitations, N.J. Stat. Ann. § 2A:14-1 (West 1987), was six years, so Tose "cannot recover any gambling losses prior to February 26, 1985"; and (3) the "net winner theory" did not apply as it "would lead to inequitable results." Greate Bay Hotel & Casino, Inc. v. Tose, No. 91-600, slip op. at 19, 21 (D.N.J. Dec. 16, 1991).*fn2
The Sands filed a motion for reargument, contending that the district court lacked subject matter jurisdiction over the counterclaim because the New Jersey Casino Control Commission (the "Commission") has exclusive jurisdiction to order repayment of gambling losses and that Aboud should be reexamined in light of Miller v. Zoby, 250 N.J. Super. 568, 595 A.2d 1104, 1109 (N.J. Super. Ct. App. Div.), certif. denied, 606 A.2d 366 (N.J. 1991). In an opinion and order dated May 12, 1992, the district court rejected the Sands' jurisdictional argument, reasoning that the "counterclaim sounds in common-law negligence . . . [and] is not based on an implied right of action arising from a violation of the [Casino Control] Act." Greate Bay Hotel & Casino, Inc. v. Tose, No. 91-600, slip op. at 3 (D.N.J. May 12, 1992). The court also rejected the Sands' reliance on Zoby, reasoning that while Zoby held that a private cause of action did not arise against a casino for violations of the regulations under the Casino Control Act (the "Act"), Zoby dealt only with violations of the Act for which "'there is no existing or analogous New Jersey tort action, or contract action'." Id. at 4 (quoting Zoby, 595 A.2d at 1109). Thus, the district court found that Zoby did not apply to Tose's counterclaim, as "New Jersey courts have already fashioned the underlying tort action" which Tose asserted. Id. Finally, the court declined to reconsider its decision on the "net winner theory," as the Sands failed to "cite new authority or reasoning which would alter this court's decision." Greate Bay Hotel & Casino, Inc. v. Tose, No. 91-600, slip op. at 5 (D.N.J. May 12, 1992).
In view of the district court's pretrial orders, only the counterclaim remained for trial. At trial, the court instructed the jury "to make separate findings of liability for each of seven dates on which Tose allegedly gambled while visibly intoxicated and lost money." Tose v. Greate Bay Hotel and Casino Inc., 819 F. Supp. 1312, 1314 n.3 (D.N.J. 1993). The jury found for the Sands on four of the dates, but deadlocked on the remaining three. Id. The district court then "entered judgment in favor of Sands on the dates for which a verdict was returned, and granted Sands' motion for a mistrial as to the claims on the remaining dates." Id.
At a second trial regarding the remaining dates, the jury returned a unanimous verdict in the Sands' favor. Tose then moved for a new trial pursuant to Fed. R. Civ. P. 59(e), for a judgment as a matter of law, and for an order vacating the partial summary judgment in the Sands' favor enforcing the settlement agreement. In an opinion and order dated August 16, 1993, the district court denied Tose's motion in its entirety. Tose v. Greate Bay Hotel and Casino Inc., No. 91-600, slip op. at 13 (D.N.J. Aug. 13, 1993). Tose then filed an appeal from the denial of his post-trial motions following which the Sands filed a cross-appeal from the order denying its motion to dismiss the counterclaim for lack of subject matter jurisdiction.*fn3
A. Introduction
While it is clear that Tose's counterclaim satisfied the requirements for the district court to exercise diversity jurisdiction as set forth in 28 U.S.C. § 1332(a), the Sands asserts the court did not have subject matter jurisdiction "because exclusive jurisdiction to order restitution of gaming losses was vested with the casino control commission." Brief at 15. Thus, the Sands contends that a New Jersey court would not have entertained Tose's counterclaim seeking to recover his gambling losses. Consequently, it argues that the district court should not have exercised jurisdiction over the counterclaim.*fn4
B. The New Jersey Supreme Court Methodology
We start our jurisdictional Discussion by recognizing that inasmuch as New Jersey law is applicable, we must predict whether the New Jersey Supreme Court would hold that a court has jurisdiction to entertain a claim by a gambler to recover his losses from a casino. See J & R Ice Cream Corp. v. California Smoothie Licensing Corp., 31 F.3d 1259, slip op. at 19-21 (3d Cir. 1994). That court has indicated that, "except in those cases where the legislature vests exclusive primary jurisdiction in an agency, a plaintiff may seek relief in our trial courts." Abbott v. Burke, 100 N.J. 269, 495 A.2d 376, 391 (N.J. 1985); cf. Swede v. City of Clifton, 22 N.J. 303, 125 A.2d 865, 871 (N.J. 1956) (discussing exhaustion of administrative remedies when agency's jurisdiction is not "primary and exclusive"). But if the legislature has vested an administrative agency with exclusive primary jurisdiction, the agency is the only forum in which complaints within that jurisdiction may be adjudicated originally.*fn5 The Sands contends that through N.J. Stat. Ann. § 5:12-133(b) (West 1988), which provides in part that the "commission shall have exclusive jurisdiction over all matters delegated to it or within the scope of its powers under the provisions of this act," the New Jersey Legislature intended to give the Commission exclusive primary jurisdiction over gamblers' claims against casinos for their losses.
The New Jersey Supreme Court demonstrated how it decides if an agency has exclusive primary jurisdiction in DeFazio v. Haven Sav. and Loan Ass'n, 22 N.J. 511, 126 A.2d 639 (N.J. 1956), and Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (N.J. 1981). In DeFazio, the court recognized that the legislature intended N.J. Stat. Ann. § 17:12A-100 (repealed) to supplant the common law right of a depositor/member in a saving and loan association to compel the association to disclose the names and addresses of the other depositors. DeFazio, 126 A.2d at 643-44. Section 17:12A-100 provided that if the saving and loan association failed to supply the depositor requested information:
such member may . . . apply to the commissioner [of banking and insurance] for an order requiring the association to do so. . . . The commissioner may grant or deny said application . . . in whole or in part and may impose such terms and conditions as he shall deem necessary or proper to protect the interests of the association and its other members. . . . The procedure herein . . . shall be exclusive ; but the action of the commissioner shall be subject to review in the Superior Court, in a proceeding in lieu of prerogative writ.
DeFazio, 126 A.2d at 643 (emphasis added).*fn6
Pursuant to the statute, a depositor first applied to the commissioner for the names and addresses of the other members, but the commissioner denied his application. Then, the depositor brought suit in the Superior Court seeking an order requiring the association to supply the information. Significantly, the depositor predicated his claim on the common law and thus he did not appeal from the commissioner's decision. The trial court held that it lacked jurisdiction because "original jurisdiction is exclusive in the Commissioner of Banking and Insurance of the State of New Jersey . . . and that jurisdiction to review . . . the Commission[er's decision] . . . is exclusive in the Appellate Division of the Superior Court." 126 A.2d at 641.
In affirming this decision, the New Jersey Supreme Court recognized the following principles of statutory construction: (1) statutory construction requires a court "to determine the purpose and intent of the Legislature"; (2) courts should presume that a statute does not intend to change the common law or a common law right; and (3) to overcome this presumption, "the legislative intent to do so must be clearly and plainly expressed." Id. at 643 (citations omitted). The court then held that "the history and substance of the act in question constitute a complete administrative remedy intended by the Legislature to provide expert administrative service to members, associations and the public, and it is self-sufficient unto itself to a degree where it supplants and by inference repeals the common law relating to such associations." Id. at 643-44. Thus, in DeFazio, the New Jersey Supreme Court found that the legislature gave the administrative agency exclusive primary jurisdiction over the subject matter of the plaintiff's complaint, thereby depriving the Superior Court of jurisdiction.
In Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (N.J. 1981), the New Jersey Supreme Court dealt with a similar problem. There, the primary issue was whether N.J. Stat. Ann. §§ 34:15-39.1 and 39.2 (West 1988), preempted an employee's right to seek compensatory and punitive damages in the Superior Court against her employer for retaliatory discrimination against her for seeking workers' compensation. Section 34:15-39.1 provides that the Department of Labor and Industry shall restore the employee to her employment and compensate the employee "for any loss of wages arising out of such discrimination." See Lally v. Copygraphics, 173 N.J. Super. 162, 413 A.2d 960, 961 (N.J. Super. Ct. App. Div. 1980). The Superior Court, Appellate Division, in deciding whether "the availability . . . of an administrative remedy . . . excludes a right of judicial action for both compensatory and punitive damages," stated that the administrative remedy would be exclusive if "the Legislature so intended." Lally, 413 A.2d at 968. The Appellate Division concluded that the legislature did not intend the administrative remedy to be exclusive, principally because the court found that the remedy was inadequate to "protect both the public and private interests in enforcement of the policy against retaliatory discharge." Id. at 968.
The New Jersey Supreme Court affirmed the Appellate Division's decision substantially for the reasons expressed by the Appellate Division. Lally v. Copygraphics, 428 A.2d at 1318. However, the Supreme Court partially modified and qualified the Appellate Division's rationale. Id. at 1318-19. The Supreme Court determined that the Appellate Division's reliance on the "alleged 'inadequacy' of the administrative remedy, as proof of legislative intent not to abridge or preempt a common law remedy, was unnecessary", because "if the Legislature had wanted to foreclose a judicial cause of action, it would have done so expressly." Id. at 1319. Therefore, ultimately, in Lally the Supreme Court held that inasmuch as the legislature did not specify that the administrative agency's jurisdiction was "exclusive," the legislature vested the Superior Court and the administrative agency with concurrent jurisdiction over a claim for retaliatory discrimination.
DeFazio and Lally clearly demonstrate that the New Jersey Supreme Court considers legislative intent in determining whether the legislature has vested exclusive primary jurisdiction in an agency. Moreover, DeFazio illustrates that the court will not find that the legislature's use of words such as "exclusive" necessarily requires a Conclusion that the legislature intended to give an administrative agency exclusive primary jurisdiction over a subject matter. In DeFazio, while the statute stated that the administrative procedure "shall be exclusive," the Supreme Court nevertheless analyzed whether "the history and substance of the act in question" showed that the Legislature intended to create "a complete administrative remedy." DeFazio, 126 A.2d at 643 (emphasis added).
The case before us clearly is distinguishable from Lally, as the legislature provided in N.J. Stat. Ann. § 5:12-133(b) that the "commission shall have exclusive jurisdiction over all matters delegated to it or within the scope of its powers under the provisions of this act." In contrast, in Lally the statute did not contain comparable exclusivity language. Accordingly, this case is more akin to DeFazio because the Act and the statute involved in that case contain language suggesting that the administrative procedures are exclusive. Therefore, in the present case, we believe that the New Jersey Supreme Court would analyze the "history and substance" of the Act and the adequacy of any administrative remedy it includes to determine whether the legislature intended to give the Commission exclusive primary jurisdiction over claims by gamblers against casinos to recover their losses. Tose's counterclaim, of course, seeks to recover his losses, and accordingly we now turn to the Act and consider its history, substance, and administrative remedies to determine if the Commission has exclusive primary jurisdiction over Tose's counterclaim.*fn7
C. An Overview of the Casino Control Act
The New Jersey Legislature adopted the Act to "authorize casino gaming and establish the regulatory framework for the casino industry." Knight v. City of Margate, 86 N.J. 374, 431 A.2d 833, 836 (N.J. 1981). The "statutory and administrative controls over casino operations [pursuant to the Act] . . . are extraordinary, pervasive and intensive." Id. Under the Act, the "New Jersey Casino Control Commission was created with power to license, supervise and control casino gambling in Atlantic City." Bally Mfg. Corp. v. New Jersey Casino Control Comm'n, 85 N.J. 325, 426 A.2d 1000, 1001 (N.J. 1981), appeal dismissed, 454 U.S. 804, 102 S. Ct. 77, 70 L. Ed. 2d 74 (1981). As we stated earlier, the Act provides that the Commission has "exclusive jurisdiction over all matters delegated to it or within the scope of its powers under the provisions of this act." N.J. Stat. Ann. § 5:12-133(b).
The Commission has broad powers which include, among other things, the power to decide "all license, registration, certificate, and permit applications and causes," N.J. Stat. Ann. § 5:12-63(a) (West Supp. 1994); to "conduct all hearings pertaining to civil violations of [the] act or regulations promulgated hereunder," Id. § 63(b) (West Supp. 1994); to "promulgate such regulations as in its judgment may be necessary to fulfill the policies of this act", Id. § 63(c) (West Supp. 1994); and to "levy and collect penalties for the violation of provisions of this act and regulations promulgated hereunder." Id. § 63(e) (West Supp. 1994).
D. Analysis of the Sands' Contentions
The Sands contends that within the Act's broad regulatory scheme, the Commission has the exclusive jurisdiction to order restitution of gambling losses and that Tose's counterclaim to recover his losses falls within that exclusive jurisdiction. To show that the Commission has the authority to entertain a claim for restitution, the Sands relies heavily on N.J. Stat. Ann. § 5:12-129(6) (West 1988), which provides that the Commission has the authority to "order restitution of any moneys or property unlawfully obtained or retained by a licensee or registrant," and N.J. Admin. Code tit. 19, § 50-2.1, which, through N.J. Admin. Code tit. 13, § 2-23.1(b), prohibits casinos from serving alcoholic beverages "to any person actually or apparently intoxicated." Administrative section 50-2.1, however, does not resolve definitively whether a casino has "unlawfully obtained" a patron's gambling losses if the casino has violated the section, as it does not mention gambling. Nevertheless, we think that the Commission would conclude that a casino has "unlawfully obtained" a patron's money if it knowingly allows him to gamble while intoxicated.*fn8 Consequently, in light of statutory section 5:12-129(6), which empowers the Commission to award restitution for monies unlawfully retained, we believe that the Commission has the authority to award restitution to a patron for gambling losses incurred if a casino knowingly allows him to gamble while he is visibly intoxicated.
That Conclusion, however, does not require us to hold that the Commission has exclusive primary jurisdiction over Tose's counterclaim. The Sands, however, relies on N.J. Stat. Ann. § 5:12-133(b); N.J. Stat. Ann. § 5:12-1(b)(6) (West Supp. 1994); and N.J. Stat. Ann. § 5:12-63(c) to contend that the Commission does have exclusive primary jurisdiction.*fn9 As we have stated earlier, section 5:12-133(b) provides that the Commission has "exclusive jurisdiction over all matters delegated to it or within the scope of its powers under the provisions of this act." Section 5:12-63(c) provides that the Commission has the responsibility to "promulgate such regulations as in its judgment may be necessary to fulfill the policies of this act." Section 5:12-1(b)(6) provides that one of the policies of the Act is that "an integral and essential element of the regulation and control of such casino facilities by the State rests in the public confidence and trust in the credibility and integrity of the regulatory process and of casino operations." Clearly, the policy expressed in section 5:12-1(b)(6) is a vital part of the Act, as the New Jersey Legislature "took considerable pains to determine and expound the State's public policy involving casino gambling" and its potential impact upon the public. Knight v. City of Margate, 431 A.2d at 836. Furthermore, "'the public confidence and trust in the credibility and integrity of the regulatory process and of casino operations' is at the very heart of the public policy embraced by the new law." Id. at 837 (quoting N.J. Stat. Ann. § 5:12-1(b)(6)). See also Greenberg v. Kimmelman, 99 N.J. 552, 494 A.2d 294, 298 (N.J. 1985).
These sections, however, do not expressly vest the Commission with "exclusive primary jurisdiction" to adjudicate gamblers' claims for recovery of their losses. Accordingly, we can reach three possible Conclusions with respect to whether a court or the Commission may assert jurisdiction over such claims: (1) the legislature gave the Commission exclusive primary jurisdiction; (2) the legislature gave the Commission concurrent jurisdiction with the Superior Court which has jurisdiction under the New Jersey Constitution;*fn10 or (3) the legislature did not address the jurisdictional question, and thus the Superior Court has exclusive jurisdiction under the New Jersey Constitution. See Lally, 428 A.2d at 1319 ("Jurisdiction to redress an unlawful retaliatory discharge is concurrent."). We, however, only need decide whether the legislature gave the Commission exclusive primary jurisdiction to hear Tose's counterclaim, for under either of the other two possibilities the district court had jurisdiction over it.
Inasmuch as the Act gives the Commission "exclusive" jurisdiction, but does not mention "exclusive primary" jurisdiction or expressly preclude the courts from entertaining claims by gamblers to recover for their losses, we use an analysis comparable to that in DeFazio, and consider the adequacy of the administrative remedy. Initially, on this point, we note that while the Act provides for "restitution," it does not empower the Commission to award compensatory or punitive damages. See N.J. Stat. Ann. § 5:12-129(6). We recognize that arguably because "the powers of an administrative agency should be liberally construed to permit the agency to achieve the task assigned to it," In re Heller Suspension, 73 N.J. 292, 374 A.2d 1191, 1197 (N.J. 1977) (quoting In re Comm'r v. Parkwood Co., 98 N.J. Super. 263, 237 A.2d 265, 270 (N.J. Super. Ct. App. Div. 1967)), the Commission has the implied power to award compensatory or punitive damages. However, we believe that the New Jersey Supreme Court would reject that argument and instead would adopt the approach set forth in Sheeran v. Progressive Life Ins. Co., 182 N.J. Super. 237, 440 A.2d 469, 475 (N.J. Super. Ct. App. Div. 1981) (internal quotation marks omitted), which held that absent an "explicit statutory grant of power," an administrative agency may not impliedly act as a "court of claims." See also State v. Osborn, 32 N.J. 117, 160 A.2d 42, 47 (N.J. 1960) (Supreme Court doubted that court would be created by implication). Thus, the Commission does not have the authority to award compensatory or punitive damages, as its authority to compensate an injured patron is limited to "restitution."*fn11 The Commission's inability to award damages illustrates the inadequacy of the administrative remedy, thus suggesting that the legislature did not intend to give the Commission "exclusive primary jurisdiction" over Tose's counterclaim.
An even more telling demonstration of the inadequacy of the administrative remedy is that an individual patron does not have the right to prosecute a claim against a casino before the Commission. The Act provides that the "Division of Gaming Enforcement shall promptly and in reasonable order investigate all applications, enforce the provisions of this act and any regulations promulgated hereunder."*fn12 N.J. Stat. Ann. § 5:12-76a (West Supp. 1994). Thus, the Division of Gaming Enforcement would have the responsibility of enforcing a regulation prohibiting casinos from allowing visibly intoxicated patrons to gamble.
Moreover, the Commission has recognized that it "does not conduct hearings on individual patron complaints," and that its review "process is not designed to provide patrons with a forum for redress against casinos." See Campione v. Adamar of New Jersey, Inc., 274 N.J. Super. 63, 643 A.2d 42, 46-47 (N.J. Sup. Ct. Law Div. 1993). Additionally, the Commission has stated that it "is without authority to compel casino licensees to pay money damages to patrons, even in the instances where a violation occurred. That authority rests with the courts of the State of New Jersey." Id. Thus, it is clear that a gambler may not prosecute a complaint against a casino before the Commission. Indeed, to the extent that a gambler may have any administrative remedy at all, he must rely on the Division of Gaming Enforcement to seek that remedy for him. This regime convinces us that a gambler seeking to recover his losses from a casino does not have an adequate administrative remedy. Thus, following the methodology of DeFazio, we conclude that the legislature did not vest the Commission with exclusive primary jurisdiction over claims such as Tose makes in his counterclaim. Consequently, we hold that the Superior Court would have had jurisdiction over the counterclaim if Tose had not removed the case to the district court, and accordingly the district court had jurisdiction. Therefore, we will affirm the order of May 12, 1992, denying the Sands' motion to dismiss the counterclaim for want of jurisdiction.
Tose raises several issues challenging the district court's order of August 16, 1993, denying him a new trial.*fn13 We review an order denying a new trial under an abuse of discretion standard "unless the court's denial of the motion is based on the application of a legal precept, in which case the standard of review is plenary." Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir. 1992). In this case we primarily use the abuse of discretion standard, as Tose challenges discretionary rulings for the most part. As the district court stated, Tose asserted five general grounds for granting a new trial. We, however, address only two of them in detail.*fn14
A. The Attempt to Call Susie Olden as a Witness
First, Tose claims that he is entitled to a new trial on the ground that Sands' counsel improperly announced in front of the jury that he was calling as a witness Susie Olden, a cocktail waitress at the Sands. Olden was identified by "a number of witnesses . . . as a cocktail waitress at the Sands Casino who regularly served Tose while he was gambling." Tose v. Greate Bay Hotel and Casino Inc., No. 91-600, slip op. at 3-4 (D.N.J. Aug. 13, 1993). At trial, despite the district court's earlier decision that the Sands could not call Olden as a witness because it had not identified her as a potential witness pursuant to a pretrial order, the Sands attempted in the presence of the jury to call her as a witness. Although the district court sustained Tose's objection to this attempt and "indicated that the Sands' counsel had behaved improperly in making his announcement," the court did not grant Tose's request for an instruction describing why her testimony was excluded. Id. at 4.
Tose contends that the Sands' conduct prejudiced him by misleading the jury into believing "that it was . . . [his] counsel who prevented them from hearing testimony of a person who could be considered potentially the most knowledgeable witness on the issues involved in the case relating to how much alcohol was served to [him] and what [his] condition was with regard to intoxication on the dates in question." Supp. app. at 27. Moreover, Tose contends that because it was "reasonably probable that this improper conduct influenced the verdict . . . a new trial must be granted." Id. at 28.
We have explained that when there is improper conduct, the test for determining whether to grant a new trial "is whether the improper assertions have made it 'reasonably probable' that the verdict was influenced by prejudicial statements." Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 207 (3d Cir. 1992), cert. denied, 122 L. Ed. 2d 677, 113 S. Ct. 1285 (1993) (quoting Draper v. Airco, Inc., 580 F.2d 91, 97 (3d Cir. 1978)). See also Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1178-79 (3d Cir. 1993). Tose offers a plausible theory as to what the jury might have inferred from his objection to the improper attempt to call Olden as a witness, i.e., Tose did not want Olden to testify because he feared her testimony would support the Sands' defense.
However, we cannot say that the district court abused its discretion in concluding that it could not "find it 'reasonably probable' that this comment by Sand's counsel had any significant influence on the jury's deliberations." Tose v. Greate Bay Hotel and Casino Inc., No. 91-600, slip op. at 4 (D. N.J. Aug. 13, 1993). The district court reasoned that the assertions were "a single remark;" that any prejudice to Tose would be through inference only, "as the statement on its face is not prejudicial"; and that "this incident took up only a few moments in a weeks-long trial." Id. In sum, as the district court was in the best position to make this decision and because its reasons for denying the motion for the new trial were reasonable, we will affirm the district court's ruling on this point.
B. The New Witnesses and Exhibits
Tose contends that the district court committed reversible error by allowing the Sands to call witnesses and introduce exhibits not previously identified pursuant to the court's pretrial order. We review a district court's decision to allow use of witnesses and exhibits not previously identified under an abuse of discretion standard. Beissel v. Pittsburgh and Lake Erie R. Co., 801 F.2d 143, 150 (3d Cir. 1986), cert. denied, 479 U.S. 1088, 107 S. Ct. 1296, 94 L. Ed. 2d 152 (1987). We determine whether there has been an abuse of discretion by considering four factors: "(1) the prejudice or surprise in fact to the opposing party, (2) the ability of the party to cure the prejudice, (3) the extent of disruption of the orderly and efficient trial of the case, and (4) the bad faith or willfulness of the non-compliance." Id. at 150.
Tose claims that the primary prejudice caused by the testimony from these witnesses and by the exhibits was that he "was forced, at the last minute, to attempt to prepare to confront numerous previously unidentified witnesses, without being in a position to investigate and obtain information or witnesses through the discovery process that could be used to contradict and/or raise questions about their testimony." Supp. app. at 30. In rebuttal, the Sands contends that the measures taken by the district court "to cure any potential prejudice and Tose's failure to seek a postponement," show that the district court was well within its discretion in denying the motion for a new trial. As curative measures, the district court, among other things, required the Sands to make the witnesses promptly available for depositions, to bear the expense of the depositions, and to produce all personnel files for the witnesses. Furthermore, the court permitted Tose to call three "new" witnesses.
As Tose does not contend that he requested a postponement, we find that the district court did not err in allowing both the testimony from the previously unidentified witnesses and the use of the exhibits. Tose's main objection is that he had insufficient time to prepare to impeach the witnesses. But the district court took steps to permit an effective cross-examination. Accordingly, we find that the district court acted well within its discretion in denying the motion for a new trial based on the admission of the testimony from the previously unidentified witnesses and of the exhibits. Therefore we will affirm the district court's decision on this point.
In view of the aforesaid, we will affirm the orders of the district court of May 12, 1992, and August 16, 1993.
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New Jersey Superior Court, Appellate Division
June 03, 1998
THOMAS CORCORAN, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,v.SEARS ROEBUCK AND COMPANY, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
Before Judges Dreier, Keefe and P.g. Levy.
[9] Argued March 24, 1998
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Plaintiff, Thomas Corcoran, sustained a severe injury to his left eye while using a pair of needle nose pliers sold by defendant Sears Roebuck Corporation and manufactured by Western Forge. Plaintiff sued defendant alleging a manufacturing defect. A jury found in favor of defendant, finding no manufacturing defect. Plaintiff appeals and defendant cross-appeals.
Plaintiff contends on appeal that the Judge erred in: 1) denying plaintiff's motion to introduce into evidence the expert report of Martin Glickman, Ph.D., an expert retained but not called by the defense, as an adoptive admission; 2) improperly instructing the jury as to the use of circumstantial evidence to prove a manufacturing defect; 3) allowing defendant's expert to rely upon inadmissible hearsay concerning the manufacturing and quality control processes in effect at Western Forge in 1980; and 4) precluding plaintiff's counsel from cross- examining defendant's expert as to federal specifications which were not adopted by defendant as part of its own manufacturing specifications. We find no trial error warranting our intervention and affirm the judgment under review. Accordingly, we need not address the issues presented in the cross-appeal.
The accident occurred on October 21, 1990, while plaintiff was working in his father's driveway attempting to replace the rear brakes on his friend's station wagon. Plaintiff used his father's tools to perform the brake job. He testified that he used the subject needle nose pliers, which he described as being in "[g]ood condition," to remove without incident the brake springs from the brake assembly. Once the springs were out, plaintiff was able to remove the brake shoes. Plaintiff then began to replace the brake shoes by reversing the process.
While seated on a tire, plaintiff looked to see if the brake spring was aligned with the assembly, thereby placing his eye in line with, and within inches of, the spring. He held the needle nose pliers in his left hand, gripped the spring at approximately the pliers' eighth serration, and pulled the spring from left to right, towards his face, in an effort to reconnect the spring between the brake shoe and the brake self-adjuster. According to plaintiff, at that moment the pliers "broke," causing them to release from the spring and hit him in the left eye.
Plaintiff's father immediately drove plaintiff to the hospital. The emergency admission record indicated: "patient states a pair of needle nose pliers slipped and penetrated [his left] eyeball." Plaintiff later denied making that statement.
Upon returning home, plaintiff retrieved the needle nose pliers, which his friend had placed back in plaintiff's father's tool box, and brought the pliers to his bedroom where it remained for approximately one year to eighteen months. Plaintiff testified that he was unable to find the 1/8-inch section of the jaw tip that had broken off the pliers.
The pliers involved in this incident was manufactured by Western Forge in 1980, and sold by defendant under the Craftsman brand. Defendant admitted that the pliers had "an indefinite life provided . . . [it was] properly used and cared for."
Peter Elliot, plaintiff's expert in the areas of failure analysis, metallurgy and forensic engineering, testified that the pliers was defective when manufactured. He explained that when he examined the pliers in 1992, 1/8-inch of one of the jaws, from the tip to approximately the third serration of the pliers, was missing. He also observed that the pliers was dirty and had "bits of surface rusting and general deterioration." The fractured surface was covered with corrosion and very little of the original fractured surface was left for examination. He said his finding was consistent with the pliers having been stored in a garage-type environment for approximately eighteen months. Elliot testified that the rust corrosion found on the pliers did not have an effect upon the mechanical behavior of the tool or cause the fracture. The corrosion, in his opinion, occurred after the fracture. Elliot also observed that the fractured surface had some "superficial" damage which, in his opinion, also occurred after the fracture. According to Elliot this damage was consistent with wear and tear caused by other tools coming in contact or rubbing against the pliers. He did not observe any evidence of prior abuse of the tool. Elliot's findings, attributed to post fracture occurrences, were at odds with plaintiff's testimony that the pliers were isolated and kept in his room after the accident, if, as plaintiff contended, the pliers broke on the date of the accident.
After observing the pliers, Elliot removed loose debris and some of the rust. He then cut a small segment off the end of the broken jaw and examined that segment under an electron microscope. He observed a series of small quench cracks and voids. The tip of the unfractured jaw was also removed and examined under the electron microscope. He also found small quench cracks on the unbroken tip.
Elliot explained that quench cracks were caused when metal, in this case steel, is heated and then quickly cooled. In his opinion, the quench cracks were caused by the improper quenching or heat treatment of the pliers. He determined that the surface features of the broken part of the pliers were typical of a brittle fracture or a "a sharp break" with no corresponding evidence of stretching. According to Elliot, a brittle fracture "occurs without warning" and is "very quick." It results from "some fault" in the heat treatment of the pliers.
Elliot also conducted hardness measurements on the pliers and determined that the tool did not deviate from the American National Standard Institute ("ANSI") standards. Additionally, the metallurgical properties were consistent with good metallurgical standards. He admitted that he had not conducted any tests on the pliers to determine whether the cracks he had discovered were sufficiently deep to cause a brittle fracture.
In contrast, Douglas McKittrick, an employee of Western Forge and defendant's expert in metallurgy and metallurgical testing, testified that the pliers was properly heat-treated and did not contain quench cracks or other manufacturing defects. McKittrick first examined the pliers in 1994, after Elliot cut off the tips. He observed that the pliers contained surface imperfections, that are common in forged tools. He said that the imperfections are not quench cracks, did not constitute a manufacturing defect, and would not cause the pliers to break.
As part of McKittrick's testimony, a slide show was presented to the jury to demonstrate the method by which pliers were manufactured at the time of the trial. According to McKittrick, Western Forge was using the same furnaces at the time of trial that had been used in 1980, when the pliers were manufactured. The furnaces had high temperature thermometers to record the temperature inside the furnace. The pliers were initially heated to 1550 degrees Fahrenheit, then dropped into oil which quickly cools the steel to 150 degrees Fahrenheit and changes the molecular structure of the steel from austenite to martinsite. "Martinsite is the hardest structure that you can form in any steel."
As the steel cools it does not contract like most other materials, but rather expands. The outside layer of the metal part of the pliers cools and hardens first into a hard outer shell. A quench crack occurs when there is an imperfection in the hard outer layer which allows the cooling inner layer to expand out. McKittrick testified that quench cracks are large, not microscopic, and follow the grain structure of the steel down towards the center of the metal. According to McKittrick, "the last place" you would expect to see a quench crack is across the tip of the jaw of the pliers, because that area is relatively thin and would cool down at approximately the same rate. Thus, quench cracks would usually occur in the thicker part of the tool.
McKittrick concluded that a ductile fracture occurred in this case. Such fractures are not caused by quench cracks, but rather by an "overload condition" or "prying" with the tip of the pliers. McKittrick explained that needle nose pliers are not designed for prying. Normal use of the pliers would not cause the tip to fracture in such a manner. Moreover, in his opinion, had the pliers been defectively manufactured they would not have lasted ten years before failing.
Additionally, McKittrick agreed with plaintiff's expert's that the corrosion that had accumulated over the fractured surface had been formed as a result of exposure to a garage-type environment. However, because plaintiff had testified that the pliers had been stored in his bedroom after the accident, McKittrick opined that the fracture and the corrosion must have occurred before the date of the accident.
Plaintiff argues that the trial Judge erred in denying his motion to introduce into evidence the expert report of Martin Glickman, Ph.D., an expert retained but not called by the defense. Plaintiff proposed to offer the report of Glickman as an adoptive admission pursuant to N.J.R.E. 803(b)(2), because defendant supplied it in reply to an interrogatory and did not expressly state that the report was not an adoptive admission. Plaintiff also argues the trial Judge erred in denying his application to use Glickman's report in his cross- examination of McKittrick. A.
Defendant responded to plaintiff's interrogatory 39, in which plaintiff had requested information regarding defendant's experts, that it had not "decided which, if any, person(s) it expects to call as an expert witness," and reserved "the right to supplement." Subsequently, in a letter dated June 13, 1995, defense counsel, without referring to any specific interrogatory, wrote to plaintiff's counsel:
Enclosed please find a copy of the expert report of Martin E. Glickman, Ph.D. The defendant . . . hereby amends its answers to interrogatories to include this report and name Dr. Glickman as an expert who may be called to testify at the time of trial. I have also orally conferred with Dr. Glickman concerning the presence of quench cracks and he advises that based on his observations he finds no sign of quench cracks and therefore this issue was not included in his report.
In his report, Glickman wrote that the metallurgical structure of the pliers was "fully consistent with the ANSI specifications and the observed hardness values measured by the plaintiff's expert." He concluded that the pliers was "properly heat treated," and the fracture was caused by a reasonably fit man squeezing forcefully on the steel brake spring and pulling the spring against one of the jaws of the pliers. Glickman also concluded that [t]he ductile [not brittle] overload fracture of this pliers tip occurred suddenly, and without warning; the user would have had little or no chance to detect the onset of the impending fracture. Upon fracturing, the pulling force was released suddenly, unbalancing the applied forces. The user, caught unaware, could not adjust the pulling force quickly enough, thereby allowing acceleration towards his face of the pliers and his hand and arm. Thus, the plaintiff's description of the subsequent accident seems entirely consistent with the fracture of the pliers tip and its sequelae.
Plaintiff requested that he be permitted to refer to Glickman's report in his opening statement and informed the court that he intended to offer it into evidence as an adoptive admission. Defense counsel maintained that he had informed plaintiff that Glickman was withdrawn as an expert. Glickman was apparently withdrawn because he had refused to conduct tests on pliers to support his Conclusion that the pliers could be broken by squeezing on a hard object and also because McKittrick disagreed with that Conclusion.
The trial Judge held that Glickman's report was not an adoptive admission. We agree with the trial Judge. Expert's reports are statements but, unlike answers to interrogatories, are not statements of a party and therefore cannot be treated as an admission simply because a party furnished them in discovery. Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985). The reports themselves are hearsay and generally are not admissible. Hill v. Cochran, 175 N.J. Super. 542, 546-57 (App. Div. 1980).
N.J.R.E. 803(b), however, provides an exception to the hearsay rule for (b) A statement offered against a party which is:
In determining whether the submission of an expert's report is an adoptive admission, courts have focused on the wording of the interrogatory. For example, in Skibinski, supra, this court held that the plaintiff's attachment of the expert's report to his answers to interrogatories did not constitute an adoptive admission, because the interrogatories propounded by the defendants had merely contained a request for a copy of an expert's report. Ibid. Thus, we held that a response to that interrogatory did "not produce admissions that can be used to limit the expert's testimony at trial." Ibid.
Similarly, in Mehalick v. Schwartz, supra, the defendant doctor in a medical malpractice case sought to introduce the plaintiffs' expert report in evidence. The court held the report was inadmissible and explained that the interrogatories served by the defendant "simply asked for the names and addresses of expert witnesses, the subject matter on which the expert was to testify, a summary of the grounds for each opinion, and for a copy of the report pursuant to R. 4:17-4(a)." Id. at 263. "The interrogatory as worded did not ask for factual information from plaintiff which was within plaintiff's knowledge as in Sallo [v. Sabatino, 146 N.J. Super. 416, 419 (App. Div. 1976)], but rather asked for the opinion to be given by the expert and as a result cannot be considered as an adoptive admission of plaintiffs." 223 N.J. Super. at 263.
Here plaintiff asked for "the substance of the facts and opinions as to which the expert is expected to testify" in interrogatory 39(b), and thus, if defendant had responded "see attached expert's report" to that interrogatory, Glickman's report would have constituted an adoptive admission. Skibinski, supra, 206 N.J. Super. at 354. But defendant never responded to interrogatory 39 by referring to Glickman's report, and therefore it did not constitute an adoptive admission.
There is nothing in defendant's correspondence indicating that defendant adopted the contents of Glickman's report. Moreover, there is no indication that defendant submitted that report in response to any specific interrogatory -- for example, to question 39(b) which asked for the facts and opinions to which the expert is expected to testify, or to 39(c) which asked for a summary of the basis for each opinion. Defendant might have been simply responding to question 39(e), which simply asked for copies of all experts' reports.
If plaintiff wanted to determine whether defendant was adopting Glickman's report, he could have moved for more specific answers to interrogatories. R. 4:23-1. If he had, and if defendant had responded to interrogatory 39, "see my expert's report," or answered 39(b) using the content of Glickman's report, the report or answer would have been admissible. Plaintiff, however, did not move to compel defendant to do so; thus, the trial Judge properly held that the report was inadmissible under the adoptive admission exception to the hearsay rule. N.J.R.E. 803(b)(2); Skibinski, supra.
Nevertheless, plaintiff argues that defendant's failure to include a disclaimer that the report was not an adoptive admission in its letter of June 13, 1995, compels the Conclusion that defendant was relying upon the report and that it was an adoptive admission. A party may include "[a]n expression that the party does not adopt the report" and such an expression "is a sufficient disclaimer of the report." Serrano v. Levitsky, 215 N.J. Super. 454, 458 (Law Div. 1986). That is not to say however, that the failure to include a disclaimer automatically converts the report to an adoptive admission. Plaintiff provides no authority for that proposition, and we fail to find a basis for it in the principles that undergird N.J.R.E. 803(b) or our case law. B.
Next, plaintiff argues that the trial Judge erred in denying his application to use Glickman's report in his cross-examination of McKittrick. During the trial, the Judge conducted a N.J.R.E. 104 hearing to determine if McKittrick had relied upon Glickman's report in formulating his Conclusions.
In McKittrick's initial report submitted to plaintiff in November 1994, he concluded that there were "no manufacturing or metallurgical defects present in the [pliers]," and that "[t]he failure of the tool was not associated with a quench crack." However, McKittrick stated that he was "unable to form a final opinion on the cause of failure of the tool in question as several important pieces of information are not available." He noted that if the portion of the pliers that had been cut could be removed from its plastic casing, which it ultimately was, then "additional information could be gathered to help in the formation of a final opinion."
McKittrick also testified at the hearing that he had received Glickman's report at least by June 1995 and admitted that he had reviewed the report and that some of Glickman's comments had confirmed his initial opinions. McKittrick testified, however, that he had not relied upon Glickman's report in formulating his Conclusions, essentially because he disagreed with Glickman's Conclusion that a reasonably fit man could fracture the tip of the pliers by squeezing on a hard object. McKittrick testified that "[m]y experience using these tools told me that these tools don't fail in that manner." As such, McKittrick testified that he had disagreed with Glickman's Conclusion that plaintiff's description of the accident was "entirely consistent with the fracture of the pliers' tips." He also disagreed with some of the methodology used by Glickman, and stated that Glickman's assumptions on the strength and hardness of the material used to make the pliers were not consistent with Western Forge's testing.
After receiving Glickman's report, McKittrick performed testing to determine if a person could break the tips of the pliers by squeezing and pulling a spring and found that it could not be done. McKittrick testified that before he had conducted those tests he was of the that the pliers would not fail, and it did not.
The trial Judge denied plaintiff's motion to permit him to use Glickman's report for purposes of cross-examination. The Judge found that McKittrick had not relied upon Glickman's report in formulating his opinions, and thus, it was not admissible to impeach McKittrick's credibility. Plaintiff was therefore precluded from admitting Glickman's report because it was "impermissible hearsay," that is, an opinion that could not be tested by cross-examination.
It is improper to cross-examine a witness about inadmissible hearsay documents upon which the expert has not relied in forming his opinion. State v. Pennington, 119 N.J. 547, 577-83 (1990), overruled on other grounds by State v. Brunson, 132 N.J. 377 (1993). Because the trial Judge's finding that McKittrick did not rely upon Glickman's report in forming his Conclusion was supported by the evidence taken at the N.J.R.E. 104 hearing, the trial Judge did not abuse his discretion in precluding plaintiff from cross-examining McKittrick on the contents of Glickman's report.
In an analogous case, Crispin v. Volkswagenwerk AG, 248 N.J. Super. 540, 551-52 (App. Div.), certif. denied, 126 N.J. 385 (1991), we held that the trial Judge did not err in precluding the defense attorney from questioning the plaintiff's expert in a products liability case concerning Conclusions reached in a government agency's report. The court found that although plaintiff's expert had supervised the product testing described in the report while he was employed by the agency, "he did not participate in the preparation of the `Conclusions' and `final observations' of the . . . report." Id. at 551. Additionally, the report was released to the public after the expert had left the agency, the expert "was not aware of the fact that the report had been issued[,] and [the expert] disagreed strenuously with the Conclusions contained in the document." Id. at 551-52.
Even if we were to conclude that McKittrick had relied upon Glickman's opinion in formulating his Conclusions, reversal is not warranted because plaintiff cannot show prejudice. R. 2:10-2. It must be remembered that Glickman stated in his report that the pliers had been properly heat-treated, complied with ANSI hardness specifications, and did not contain quench cracks. Thus, Glickman's Conclusions were contrary to plaintiff's expert's Conclusions and did not support plaintiff's theory that the pliers had been improperly manufactured. While Glickman's Conclusion that a reasonably fit person could break the pliers by pulling on them, and "the plaintiff's description of the subsequent accident seems entirely consistent with the fracture of the pliers' tip" to support a design defect theory, that theory was not presented by plaintiff in this case. Thus, the evidence was irrelevant as to plaintiff's liability theory.
Plaintiff argues, as plain error, that the trial Judge's charge on the use of circumstantial evidence to prove a manufacturing defect was erroneous and confusing.
During the charge conference, the trial Judge stated that he intended to charge the jury in accord with Model Jury Charge (Civil) § 5.34(c) (1989), entitled "Manufacturing Defect," which provides as follows:
A manufacturing defect may be established by proof that as a result of a defect or flaw which happened during production or while in defendant's control, the product failed to perform safely. You must decide what the condition of the product as planned should have been according to defendant's design specifications or performance standards and what its condition was as it was made. If you find there is no difference between the two conditions, then you cannot say there was a manufacturing defect. If there was a difference, you must decide if that difference made the product not reasonably safe for its intended or reasonably foreseeable uses. If the answer is "yes" then you have found the product to be defective. Plaintiff need not prove that defendant knew of the defect nor that defendant caused the defect to occur. In judging whether there was a manufacturing defect in the (product), this may be shown to you by the plaintiff in one of three ways. First of all, it may be demonstrated by direct evidence, such as a defective part. Secondly, you may infer that there was a defect by reasoning from the circumstances and facts shown. Third, if you find from the evidence that there is no other cause for the accident other than a manufacturing defect, you may find a defect existed.
Defendant objected to the charge on the ground that plaintiff had failed to present any evidence from which the jury could infer that there was a defect. Plaintiff, however, did not object to the charge. The trial Judge overruled defendant's objection. The Judge's charge was substantially similar to Model Jury Charge (Civil) § 5.34(c), supra, and was also substantially in accord with plaintiff's request to charge.
Plaintiff now argues that the Judge's charge was confusing because the jury "might have believed that plaintiff had to prove that there existed a specific difference or defect from the design specification or performance standards in order to find a manufacturing defect." Plaintiff contends the trial Judge should have "told the jury in the alternative, if the plaintiff could not or did not prove a specific defect they could infer from circumstantial evidence that there was a defect."
It is fair to infer from plaintiff's failure to object to the charge that, in the context of the trial, any confusion created by the instruction which went unnoticed by skilled counsel was equally insignificant from the jury's perspective. State v. Macon, 57 N.J. 325, 333 (1971); Graves v. Church & Dwight Co., 267 N.J. Super. 445, 465 (App. Div.), certif. denied, 134 N.J. 566 (1993). Nevertheless, some discussion is warranted to determine whether there was plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2.
"[I]n a products liability case the injured plaintiff is not required to prove a specific manufacturer's defect." Moraca v. Ford Motor Co., 66 N.J. 454, 458 (1975); accord Consalo v. General Motors, 258 N.J. Super. 60, 64 (App. Div.) (explaining that an "inability to prove a defect by direct evidence is not fatal to a plaintiff's case"), certif. denied, 130 N.J. 597 (1992). "If the proofs permit an inference that the accident was caused by some defect, whether identifiable or not, a jury issue as to liability is presented." Moraca, supra, 66 N.J. at 458.
Thus, where direct evidence is unavailable, "a plaintiff may prove a defect either by circumstantial evidence which would permit an inference that a dangerous and defective condition existed prior to sale, or by negating other causes in order to make it reasonable to infer that a dangerous condition existed while defendant had control of the product." Consalo, supra, 258 N.J. Super. at 64 (citing Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 170 (1979)). "[A]additional circumstantial evidence, such as proof of proper use, handling or operation of the product and the nature of the malfunction, may be enough to satisfy the requirement that something was wrong with it." Scanlon v. General Motors Corp., 65 N.J. 582, 591 (1974).
The trial Judge correctly charged the jury that it could "infer that there was a defect by reasoning from the circumstances and facts shown." Contrary to plaintiff's representation, the Judge did not charge the jury that "plaintiff must establish a specific defect," although a manufacturing defect can be established by direct evidence and plaintiff attempted to prove as much.
The trial Judge charged the jury substantially in accord with the model charge to the effect that plaintiff could establish a manufacturing defect "in one of three ways: first of all, it may be demonstrated by direct evidence[,] such as a defective part; secondly, you may infer that there was a defect from the circumstances and facts shown; third, if you find from the evidence that there is no cause for the accident other than a manufacturing defect, you may find a defect existed." In our view the instructions gave plaintiff more than the facts warranted.
Plaintiff argues that the trial Judge erred in allowing McKittrick to testify as to the manufacturing and quality control processes in effect in 1980 because such testimony was based upon inadmissible hearsay.
McKittrick admitted that he had been employed at Western Forge only since 1990, while the pliers involved in this case were manufactured in 1980. He admitted that there were no written records describing the quality assurance procedures utilized in 1980, nor were there any records to show whether the batch from which the subject pliers came were tested.
In the absence of written documents, McKittrick derived his knowledge from talking to people who had worked for Western Forge in 1980. He said that it was a "part of [his] job . . . to know what [everyone was] doing at Western Forge." As such, he became "quite familiar with the quality procedures," including hardness testing that was followed in 1980.
According to McKittrick, Western Forge had been conducting hardness tests on its tools for years, and some of its hardness testers dated "back before anybody in [the] courtroom was . . . born." He learned through his inquiry that in 1980, the year these pliers were manufactured, hardness testing was done on samples from every batch of pliers to determine if they were properly heat treated. If any of the test pliers failed the hardness testing the whole batch was "quarantined."
Plaintiff's objection to the admission of McKittrick's testimony as to the quality control procedures employed by Western Forge in 1980, on the ground that it was inadmissible hearsay, was overruled. On appeal, plaintiff contends that the hearsay upon which McKittrick relied in the subject portion of his testimony "should have been excluded as it does not meet or fall within any of the exceptions to the hearsay rule under N.J.R.E. 803 or N.J.R.E. 804." No other authority is cited in support of plaintiff's argument.
Plaintiff fails to consider the provisions of N.J.R.E. 703. McKittrick was both an employee of defendant and an expert witness in the case. Accordingly, as an expert he was permitted to rely upon facts constituting hearsay, so long as they are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Ibid. The hearsay statements so considered are not admitted to establish the truth of their contents, but to apprise the jury of the basis of the expert's opinion. Blanks v. Murphy, 268 N.J. Super. 152, 163-64 (App. Div. 1993).
An expert need not rely solely upon documentary hearsay statements in order to qualify under the rule. It is equally permissible to rely upon "interviews" and "Discussions" with persons having relevant knowledge for the formation of an opinion. Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 281-89 (1990); State v. Smith, 262 N.J. Super. 487, 521 (App. Div.), certif. denied 134 N.J. 476 (1993). McKittrick's conversations with co-employees concerning the production and quality control process in 1980 were in the nature of the "interviews" and "Discussions" that were the subject of the foregoing cases. Had the objection been focused on N.J.R.E. 703 at the time of trial, the Judge would have been alerted to inquire into the issue of whether experts in the field, about which the McKittrick was testifying, reasonably rely on information of that type. Ryan, supra, 121 N.J. at 289. As the record stands, there was no such inquiry because the objection was not properly focused. Thus, we examine the issue in the context of plain error.
McKittrick testified that he was employed by Western Forge in the capacity of a metallurgical engineer and product safety officer. In that capacity he was involved in material selection and "recipes for how our material's (sic) supposed to be heat treated and annealed." His duties took him to "the production floor and getting [his] hands dirty, looking at parts." Another function he performs is "to appear in court and talk technically about what we do and explain what we do." In specific reference to his familiarity with the procedures in use in 1980, McKittrick explained that he learned them "as part of my job," only a part of which is testifying as an expert. In light of the fact that defendant's record retention policy was such that actual quality control records for that period would have been destroyed by the time McKittrick became employed by defendant, it is natural that he would seek out this type of information to perform his job description within the company. Thus, based upon the record, we think it is self-evident that the hearsay statements upon which McKittrick relied were of the type anyone in his position would naturally rely upon. The admission of the testimony did not constitute plain error.
But even if we were to concede error for the purpose of Discussion, the error was harmless. Under the New Jersey Product Liability Act, a product that causes harm is defective in the manufacturing context if it "deviated from the design specifications, formulae, or performance standards of the manufacturer." N.J.S.A. 2A:58C-2a. As we understand the record, the engineering prints containing the specifications relevant to the product as it was intended to be manufactured in 1980 were available for review and comparison against the actual pliers that caused plaintiff's injury. As McKittrick testified, he did not need the quality control records pertaining to the batch, of which the subject pliers was a member, to determine whether it met specifications, so long as he had the tool and the specifications to compare it against. He was correct. The injury-causing product may be measured against the same product as manufactured according to the manufacturer's standards. If the particular product used by the plaintiff fails to conform to those standards or other units of the same kind, it is defective.
[O'Brien v. Muskin Corp., 94 N.J. 169, 181 (1983)].
Even if defendant had the best quality control in the world, if the pliers was defective because it deviated from defendant's specifications, and the defect caused plaintiff's injuries, defendant would be liable. Id. at 180. That is the essence of strict liability in tort.
Thus, we disagree with plaintiff's contention that the hearsay information that McKittrick relayed through his testimony was "at the heart of the case." Rather, it was at best a tangential issue and at worst irrelevant. In any event, it did not have the capacity to prejudice plaintiff. The Judge's instructions to the jury properly focused the jury's attention on the thrust of plaintiff's liability theory and the simple question of whether the product deviated from defendant's manufacturing specifications.
Plaintiff argues that the trial Judge erred in precluding the cross-examination of McKittrick as to federal specifications which were not adopted by defendant as part of its manufacturing specifications.
In response to interrogatories propounded by plaintiff, defendant stated that it had adopted some sections of the Federal Specification GGG-P-471E, published by the General Services Administration, as part of its manufacturing specifications. Defendant listed the specific sections it had adopted.
During cross-examination plaintiff attempted to question McKittrick concerning why defendant had not adopted several other sections of those federal specifications in its manufacturing process. Defense counsel objected. Plaintiff's counsel conceded that defendant was not obligated to adopt or follow any of the GGG-P-471E specifications.
Nevertheless, plaintiff wanted to ask Mckittrick why defendant had not adopted GGG-P-471E § 3.6.2 (Jaw Hardness), which provided that "jaws shall show a hardness value of not less than 45 and not more than 60 on the Rockwell 'C' scale when tested as specified in 4.3.1 [Hardness]"; GGG-P-471E § 3.8.1 (surfaces) ("All surfaces shall be free from pits, nodules, burrs, cracks, and other defects which may adversely affect the performance of the tool. Surfaces usually ground or otherwise finished and provided with one of the coatings specified in 3.8.2 [Coatings] shall have a maximum surface roughness of 63 microinches . . . . "); GGG-P-471E §§ 4.1 (Responsibility for inspection); 4.1.1 (Inspection of materials and components); 4.2 (Sampling procedures); 4.3 (Testing); 4.3.1 (Hardness), 188.8.131.52 (Pliers with cutting edges); and 4.3.2 (Handle-load tests). The trial Judge held that plaintiff could not cross-examine McKittrick as to why defendant had not adopted the above- cited specifications because the specifications were only relevant to a design defect case, not a manufacturing defect case. We agree.
Much of what we said in our Discussion of the previous issue concerning the focus of proofs in a manufacturing defect case apply here as well. The federal specifications adopted by Western Forge were relevant and properly admitted to establish the manufacturing standards employed by Western Forge against which the offending product must be compared. N.J.S.A. 2A:58C-2a. In contrast, the federal specifications that were not adopted by Western Forge in its manufacturing process were not relevant to the determination of this action because they were not used by Western Forge in its own design or performance specifications. Thus, the only relevant inquiries were what specifications did defendant use in manufacturing these pliers, and whether the pliers complied with such specifications. The specifications mentioned above not adopted by defendant were not relevant to that determination.
Whether the federal standards were or were not minimal standards, whether those standards should have been adopted, and whether the failure to adopt them resulted in a product defect would have been relevant in a design defect case. But this was not such a case. Plaintiff's expert did not testify that the federal specifications cited by plaintiff should have been adopted by defendant, or that the failure to do so resulted in the defect. Therefore, the trial Judge did not err in sustaining defendant's objection.
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An ancient Mayan prophecy. A dangerous Nazi descendant. A passionate archaeologist. And an aristocrat desperate for cash.
Mayan legends tell of a location where the secret to surviving the end of the world may be found. One part of that legend is recorded on a stone tablet in the dusty attic of Lord 'Ratty' Ballashiels' crumbling manor. The other twin part disappeared from a Berlin museum when the Nazis took power. When Ratty seems about to sell his tablet to the adopted son of Josef Mengele, his friend, the archaeologist Ruby Towers, is appalled.
Soon it is clear that more than archaeology is at stake. The quest to rescue historic Central American artefacts becomes a race to prevent an apocalyptic threat when Ruby discovers that the ancients have set in motion something that will threaten the world today.
©2016 Stewart Ferris (P)2016 Audible, Ltd
Love life, love being happy.
"Enjoyed it"
Overall a good story but found it a little difficult to follow at times. A few loose ends but not sorry I bought it. Very interesting concept and ideas.
Report Inappropriate Content
If you find this review inappropriate and think it should be removed from our site, let us know. This report will be reviewed by Audible and we will take appropriate action.


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>> India Hotels
>> Hotels with Barbecue Grills
Hotels in Nh-11 , Fatehpur Sikri Road, Bharatpur with Barbecue GrillsThe barbeque grills are at times located near the pool in the hotel. They give you a very raw feeling as if you are in the midst of a dense forest and grilling food at the bonfire.
Sorry, currently we don't have hotels available in this area. Explore hotels in other areas from the links below.
Hotels in Nh-11 , Fatehpur Sikri Road, Bharatpur with Barbecue GrillsYou are offered a variety of grilled stuffing at barbeque grills in Nh-11 , Fatehpur Sikri Road for a sumptuous meal. These grills usually could be either an open-air thing or in the restaurant itself. The grills are made of a durable material which can work through all the different weathers so you donât need to worry about them. Grills are an open-air place to slow-roast beef, chicken, pork and vegetables to satiate the food addictâs appetite. There could be charcoal or gas or infrared grills according to the hotel policy. Some hotels have separate grills for the vegan lot of people. Come and experience a unique fine dining experience at barbeque grills at Nh-11 , Fatehpur Sikri Road in Bharatpur. Book from the best hotels with travelguru and enjoy a refreshing and relaxing stay.
Nearby Places of Interest :
- Bharatpur Bus Station Hotels
- Bharatpur Museum Hotels
- Bharatpur Railway Station Hotels
- Bus Stand Hotels
- Deeg Palace Hotels
- Downtown Area Hotels
- Fateh Burj Hotels
- Fatehpur Sikri Fort Hotels
- Ganga Mandir Hotels
- Jama Masjid Hotels
- Jawahar Burj Hotels
- Keoladeo Ghana National Park Hotels
- Kishori Mahal Hotels
- Lohagarh Fort Hotels
- Military Tank Hotels
- Nehru Park Hotels
- Temple Of Lord Shiva Hotels
Areas in Bharatpur:
- Achnera Road Hotels
- Bharatpur Bird Sanctuary Hotels
- Bird Santuary Hotels
- Fatehpur Sikri Road Hotels
- Ganga Mandir Hotels
- Goverdhan Gate Hotels
- Inside Keoladeo National Park Hotels
- Jaipur Agra Highway Hotels
- New Civil Lines Hotels
- Old Agra Achmera Road Hotels
- Opp. Keoladeo Bird Sanctuary, Bharatpur Hotels
- Sakal Chouhra Hotels
- Top Circle Hotels
- Accommodation in Bharatpur
- Heritage Hotel in Bharatpur
- Resorts in Bharatpur
More Hotel Types in Bharatpur:
- 1 Star Hotels in Bharatpur
- 3 Star Hotels in Bharatpur
- 5 Star Hotels in Bharatpur
Star Hotels in Bharatpur:
- Hotels with Arcade/game Room
- Hotels with Atm/banking
- Hotels with Audio-visual Equipment
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- Hotels with Tea Coffee Maker
- Hotels with Travel Counter


text:
Houses for Sale in Stockton, IA
|226 Listings Found
Brand New Listing!!! Owner Will SPLIT PARCEL if desired! Scott County, Iowa 115.5 Acres for sale (just minutes away from the...
Donahue, IA, 52746Details »
55 Acre portion $4800/Acre or $264,000 (Note: this portion includes all of the CRP income area which totals $7076/year through 2024!...
Donahue, IA, 52746Details »
Scott Co. 115.5 Acre parcel: Split option A: North 60 Acre portion $1782/Acre or $98,000 Wetland Reserve Acres -- Awesome pheasant...
Donahue, IA, 52746Details »
Former Iconic Camp Ses-Ko-Me Lodge and Land is available for sale in Donahue IA. The 5,296 SF lodge is located on 11.22 private wooded...
Donahue, IA, 52746Details »
Peaceful, family- oriented neighborhood! Sliding door in kitchen and large windows in living room allow for natural lighting...
319 Lamphere Dr, Blue Grass, IA, 52726Details »
$259,0006020 116th Street - Blue Grass, IA 52726 Bedrooms: three Bathrooms: 2.5Welcome to Paradise! Situated on an acre lot with...
0006020 116th St, Blue Grass, IA, 52726Details »
$249,000. 6020 116th Road - Blue Grass, IA 52726. Beds: 3 Bathrooms: 2.5. Welcome to Paradise! Situated on an acre whole lot with...
6020 116th Rd, Blue Grass, IA, 52726Details »
four Beds one Full Bathrooms and Two 3/four Bathrooms in this almost new home built in 2013. Open floor plan with premium granite...
Blue Grass, IA, 52726Details »
This home is priced to sell!! I have a 1981 double-wide Rollohome mobile home with 3 beds and 2 fullsize baths for sale. It is 24x56...
Wilton, IADetails »
I have a 1981 double-wide Rollohome mobile home with 3 beds and 2 full size bathrooms, for sale. It is 24x56 and 1,306 sq. feet on a...
Wilton, IADetails »
Lot available for build-to-suit homes. The picture is an example of a previously built home.
306 Division St, Wilton, IA, 52778Details »
This 3 BEDROOMs, 2 Bachelor's Degree is awaiting you! This elegance is located in a prime location of a remarkable area. It features a...
4930 N Dittmer St, Davenport, IA, 52806Details »
$106,900. 2027 Emerald green Drive - Davenport, IA 52804. Beds: 3 Bathrooms: 2. Up-to-date and Large three BEDROOMs Condominium with 2...
2027 Emerald Dr, Davenport, IA, 52804Details »
Move in ready. Well maintained 3 beds ranch with large enclosed yard, new carpet, attached single car garage and freshly painted.
2125 N Nevada Avenue, Davenport, IA, 52804Details »
$149,900. 5916 N Pine Road - Davenport, IA 52806. Beds: 4 Bathrooms: 2. Fall for this well cared for 4 bedrooms room split foyer home....
5916 N Pine St, Davenport, IA, 52806Details »
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Thanks for visiting and good luck!


text:
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View Company Profile
Experience a wealth of dining options throughout The Ritz-Carlton Orlando, Grande Lakes; where the cuisine is crafted and authentic, and is as diverse as the property itself. Savor the culinary mastery from James Beard Foundation's Award-Winning Chef Norman Van Aken as well as all of our other delicious temptations that our eateries provide.
The Royal Suite reveals clean lines with a transitional edge that creates a calm aesthetic designed to induce relaxation. It features direct views of ...
Over 500 lush tropical acres are yours to explore. Take time to delight in nature. Challenge yourself with sport. Nurture your interests. Lose yoursel...
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text:
Scrumptious Chicken
Total Time
6hrs 5mins
Prep 5 mins
Cook 6 hrs
This was adapted from "Fix-it and Forget-it Recipes for Entertaining - Slow Cooker favorites for all Year Round". The original recipe called for eight chicken breasts but I only use four and just make it extra "saucy".
Ingredients Nutrition
- 4 skinless chicken breast halves
- 10 3⁄4 ounces cream of mushroom soup
- 16 ounces sour cream
- 1 package lipton dry onion soup mix
- fresh basil or oregano, chopped
- Grease the bottom and sides of slow cooker.
- Place chicken in slow cooker.
- Combine all the remaining ingredients except fresh herbs. Pour over chicken.
- Cover. Cook on low for 6 hours. (If convenient, stir after 3 hours of cooking.).
- Sprinkle with fresh herbs just before serving.
- Serve with rice, couscous, or over toast as a SOS meal.
Most Helpful
I make this often and just made it yesterday. Its so good. I always add a can of mushrooms and sometimes some dill.


text:
WEAVE hosts two large events a year, Feast for WEAVE in the Fall and Walk a Mile in Her Shoes in the Spring. These two events fundraising events bring in close to $425,000 for WEAVE's 24-hour crisis intervention services a year.
In addition to WEAVE hosted events, WEAVE partners with community partners who put on their own DIY events that support WEAVE. These events range in donation collection (money, gently used clothes, wish list items), vary in style, and you are invited to participate.
Come back often to learn about what new events are taking place!
2nd Annual Raymond James Irwin Christmas Benefit Concert
Supporting WEAVE
Second Annual
Raymond James Irwin
Christmas Benefit Concert
Saturday, December 10 at 7:00pm
Our Lady of the Assumption Parish
5057 Cottage Way
Carmichael, CA 95608
Financial Empowerment Class
Learn to become more financially stable and achieve your goals
Financial Empowerment Class
Wednesday, November 9, 2016 and
Wednesday, February 8, 2017
6:00 p.m. – 8:00 p.m.
WEAVE, 1900 K Street, Sacramento
Snacks and beverages will be provided.


text:
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text:
Previous Challenge Entry (Level 3 - Advanced)
Topic: Escape (01/02/06)
TITLE: Dust
By dub W
The wind howled over their huddled bodies, while sand and tumble weeds beat relentlessly at them. Finally, there was a break in the winds.
�Lucy. We gotta find some shelter for tonight, this is just the beginning and there�s a chill in the air.� He brushed Lucy�s back with his blanket roll, trying to get the dirt and sand out of her buff colored hide. �Maybe we can make it to Cimarron Creek. There�s a fella building a store there. We�ll be okay, if�n the Lord will send us that way.�
Emmett generally relied on instinct for his sense of direction and rode following the sun. But the cloudy skies forced him to rely on old memories. He re-saddled Lucy and walked up the low sides of the bed. When he finally remounted he looked for signs of the old trail. Finally, he spotted a cut in the prairie clay.
Dust had settled across the old wagon trail but Emmett could make out occasional indentions. �Somebody pulling a load. Hope they found cover before that wind.�
An hour later the wind began to pick up again, but Emmett and Lucy were well into the slate foothills. �Weather�s changn�. All this wind�s pushing something toward us.� They followed a streambed for a mile or so until they came upon a wagon and a team. Two head of cattle lay on the ground at the rear of the wagon. Emmett paused and examined the scene.
Lucy was uncomfortable standing in one place and began a circular dance and indicated her displeasure with a whiney. �Hey, girl, we�re just look�n, we can ride on by if it don�t look friendly.�
Suddenly, a blond child ran around the corner of the wagon; a young woman followed the child. Emmett could hear the laughter and their voices.
�Merci, you better get back here. Don�t you go runn�n off around here, there�s Indians, snakes, and bandits.�
Lucy snorted.
The young woman stopped sensing something different in the air. �Merci. Right now. Get back here.�
Lucy shook her head and tugged at the reins. �Whoa girl,� Emmett whispered.
�Clarence,� the young woman called out. I thought I heard a horse a minute ago.� The two young women disappeared around the corner of the wagon out of Emmett�s sight.
Wisps of dust were making small circles in the clearing. �Anybody there?� A male voice rang above the wind.
�I wonder what these folks are doing out here,� he whispered to Lucy, �well, at least he didn�t say he had a gun.� Lucy nodded.
�If you hear a hammer lock-back we�ll high tail it. Okay?� Lucy began to walk toward the wagon. �Ho there,� Emmett called out. He tried to sound friendly. As soon as Lucy stepped out of the draw a blast of wind rocked Emmett and he shifted in the saddle. �There�s gonna be a storm for sure.�
Just as Emmett expected, a young man stepped around the wagon. In his hands was an old squirrel rifle.
�Hold there,� the young man called to Emmett. �Whatcha want?�
Emmett stopped Lucy in the path. �Like I said, bad storm comin� and you look like you need help.� Emmett dismounted and led Lucy toward the wagon. Emmett wore a pistol strapped to his thigh but it was snapped in the holster. �Why you out here?�
�Headed for Liberal.� The young man stammered. �Supposed to be takin� them cows to sell.�
�The wagon too no doubt.� Emmett looked at the kids; he guessed he was looking at everything they owned. �There�s more dust comin� probably snow too, untie the cows, then pull them horses and wagon into this draw. Otherwise you won�t have horses to sell either.�
The little girl poked her head around the corner. �Is this the angel ma said God would send to save us?�
Emmett smiled and shook his head. �Sorry, kid, I ain�t no angel, but the Lord does seem to have sent me here to help y�all escape the storm.�
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text:
Sie brauchen Hilfe?
- For changes or refunds of tickets issued through B2B tool kindly contact our call-centre on +420 239 007 007 or email to email@example.com.
- Optionally you can contact our local office.
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text:
From the movie Marvel's Captain America: The Winter Soldier..Black Widow/Natasha Romanoff (Scarlett Johansson) ..Ph: Zade Rosenthal..? 2014 Marvel. All Rights Reserved.
'Captain America: The Winter Soldier'
March 26, 2014 | 1:35 p.m.
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Our focus is on instilling balance in our lives. Western ex... Read More
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Our Service And Our Facility Will Impress You.
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