CARL LAWSON VS. K2 SPORTS USA(L-4440-08, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3909-14T1
CARL LAWSON and
GLORIA LAWSON,
Husband and Wife,
Plaintiffs-Appellants,
v.
K2 SPORTS U.S.A., K2
BIKE, and NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, DIVISION OF PARKS
AND FORESTRY,
Defendants,
and
BELL SPORTS U.S.A.,
Defendant-Respondent.
________________________________________________________________
Argued November 15, 2016 – Decided July 24, 2017
Before Judges Espinosa, Suter and Guadagno.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
4440-08.
G. Martin Meyers argued the cause for
appellants (Law Offices of G. Martin Meyers,
P.C., attorneys; Mr. Meyers and Justin A.
Meyers, on the briefs).
Jason R. Schmitz argued the cause for
respondent (Littleton Joyce Ughetta Park &
Kelly, LLP, attorneys; Mr. Schmitz, Robert J.
Kelly and James C. Ughetta, on the brief).
PER CURIAM
Plaintiffs Carl and Gloria Lawson brought this products
liability case against defendant Bell Sports USA (Bell),1 the
manufacturer and distributor of a bicycle helmet and, following
an adverse jury verdict, now appeal from the resulting judgment.
We affirm.
I.
Carl Lawson was mountain biking when he lost control and
flipped over the handle bars. He landed on his head and sustained
quadriplegic injuries. He was wearing a Bell Solar Fusion bicycle
helmet at the time of the accident.
Plaintiffs alleged that the elongated "teardrop" design of
the helmet was a design defect under the New Jersey Product
Liability Act, N.J.S.A. 2A:58C-2(c), which provides, in pertinent
part:
A manufacturer or seller of a product shall
be liable in a product liability action only
if the claimant proves by a preponderance of
the evidence that the product causing the harm
was not reasonably fit, suitable or safe for
1
Bell Sports, Inc. and Easton-Bell Sports, Inc. were improperly
pled as Bell Sports USA. The claims against other defendants
alleged in the complaint have all been resolved.
2 A-3909-14T1
its intended purpose because it . . . was
designed in a defective manner.
Plaintiffs' evidence included the expert testimony of Zafer
Termanini, M.D., who was qualified as an expert in orthopedics,
biomechanics and product design. He concluded the teardrop design
of the helmet was a defect that rendered it unreasonably dangerous
for three reasons. He stated the teardrop design had a propensity
to interfere with the completion of a somersault, which is the
best thing a bicyclist can do in an over-the-handlebars accident.
He opined that if Lawson had been able to complete a somersault,
he would have suffered little or no injury to his spine. Dr.
Termanini also stated that, because the teardrop had a propensity
to dig into the surface of a soft bicycling trail like the one
where the accident occurred, it had the capacity to constrain the
movement of the head upon impact, increasing the severity of the
injuries to the cervical spine. The third reason given by Dr.
Termanini was that the teardrop can impose rotational forces on
the head and neck that can also enhance the severity of injuries.
Dr. Termanini opined that the teardrop design of the helmet was
either the cause of or a substantial factor in exacerbating
Lawson's cervical fractures and quadriplegia. Plaintiffs claimed
a reasonable alternative design, a more rounded helmet, would have
prevented Lawson's injuries.
3 A-3909-14T1
Plaintiffs argue that the following errors warrant a reversal
of the judgment and a new trial: (A) the denial of their
adjournment request; (B) the trial judge's evidentiary ruling that
a specific article did not qualify as a learned treatise; (C) the
trial judge's evidentiary ruling to admit evidence regarding the
lack of prior neck injuries; (D) the fact that the defense was
permitted to have two attorneys deliver its closing statement; (E)
the jury charge and verdict sheet; and (F) the trial judge's
refusal to provide the jury with a copy of an email that had been
read but not admitted into evidence. We have considered these
arguments in light of the record and applicable law and conclude
none have merit. Moreover, we conclude that the challenge to the
defense summation, raised as plain error, R. 2:10-2, lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
II.
In August 2014, a peremptory trial date was scheduled for
March 23, 2015. The date was set without any input from the
parties. Plaintiffs made their first and only adjournment request
shortly thereafter because Dr. Termanini, their "key helmet design
and injury causation expert," was to attend an annual conference
of orthopedic surgeons that week. They contend that, pursuant to
Rule 4:36-3(c), their request should have been accommodated.
Plaintiffs argue that the trial court's denial of their adjournment
4 A-3909-14T1
request constituted a manifest denial of justice, requiring a new
trial. We disagree.
A "trial court's decision to grant or deny an adjournment is
reviewed under an abuse of discretion standard." State ex rel.
Comm'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7
(App. Div. 2013). "Ordinarily, [an appellate court will] not
interfere with a motion judge's denial of a request for an
adjournment unless it appears that an injustice has been done."
Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320,
343 (App. Div. 2000).
Rule 4:36-3(b) provides, in pertinent part:
An initial request for an adjournment for
a reasonable period of time to
accommodate . . . the unavailability of . . .
a witness shall be granted if made timely in
accordance with this rule. The request shall
be made in writing stating the reason for the
request and that all parties have consented
thereto. . . .
Bell contends that plaintiffs were not entitled to the benefit
of this rule because it would not consent to the adjournment and
plaintiffs' request did not include a proposed trial date agreed
upon by all parties. The issue of consent is not dispositive,
however, as the rule states, "If consent cannot be obtained or if
a second request is made, the court shall determine the matter by
conference call with all parties." Ibid.
5 A-3909-14T1
The scheduled trial date was more than six years after an
amended complaint was filed in this case. The trial judge stated
she "seriously doubted" that plaintiffs would get to Dr.
Termanini's testimony during the week of March 23rd due to jury
selection, opening statements and pretrial issues that would need
to be resolved. She found there was no reasonable basis to adjourn
the trial date and did not anticipate a problem if "some minor
accommodation of timing [was] needed."
Rather than avail themselves of the accommodation offered by
the trial judge, plaintiffs elected to videotape Dr. Termanini's
testimony. Although they presented the testimony of their other
experts by videotape,2 plaintiffs argue they were severely
prejudiced by being forced to present this key witness's testimony
by videotape. The fact remains, however, that Dr. Termanini's
testimony was provided to the jury for its consideration.
We agree with plaintiffs that it is preferable for a
peremptory trial date to be scheduled with the input of the
parties. And, in the absence of consent, the trial judge should
conduct a conference pursuant to R. 4:36-3(b) to select the date.
We cannot agree, however, that the denial of plaintiffs'
2
Plaintiffs presented videotaped testimony from: Haim Blecher,
Lawson's orthopedic surgeon; Todd A. Linsenmeyer, Lawson's
urologist; and Barbara Benevento, the physiatrist who treated
Lawson at the Kessler Institute following the accident.
6 A-3909-14T1
adjournment request constituted an abuse of discretion on this
record where the trial judge reasonably concluded it was unlikely
plaintiffs would need to present Dr. Termanini during the first
week of trial and expressed a willingness to make accommodations
for his schedule. Further, the case was over six years old and
plaintiffs were not deprived of the opportunity to present Dr.
Termanini's testimony, albeit by videotape.
III.
The trial judge granted Bell's motion to exclude an article
relied upon by Dr. Terminani titled "Vents and Square Lines:
Problems With Some Designs" (the Square Lines article), published
on the website of the Bicycle Helmet Safety Institute (BHSI).
Plaintiffs argue the trial judge's failure to recognize this
article as a learned treatise "constituted a manifest denial of
justice, warranting a new trial."
Our review of a trial court's evidentiary ruling "is limited
to examining the decision for abuse of discretion." Hisenaj v.
Kuehner, 194 N.J. 6, 12 (2008). We discern no abuse of discretion
here.
Close to one year after discovery ended, Dr. Termanini
provided the Square Lines article as a supplement to his expert
report. In a letter accompanying the article, he stated:
7 A-3909-14T1
I am writing to bring to your attention an
article I recently located, made available
online by the Bicycle Helmet Safety Institute,
entitled "Vents and Square Lines: Problems
with some designs." Although I did not
specifically rely upon this article in
reaching the opinions I have provided in this
case, regarding the defective design of the
Bell helmet Mr. Lawson was wearing at the time
of his accident, I believe this article
provides direct support for the scientific
validity of the opinions I reached through my
own independent analysis of the design of that
helmet.
[(Emphasis added).]
The Square Lines article did not identify its author. And, as
stated in his letter, Dr. Termanini did not rely upon the article
in forming his opinion.
Defense expert, Peter D. Halstead, chairman of the American
Society of Testing and Materials subcommittee for protective
headgear, responded to Dr. Termanini's supplemental submission and
identified the author of the article as Randy Swart, a consumer
advocate. Halstead characterized the article "more as a blog than
science [that was] not appropriate for any expert to rely on as
scientific support for an opinion."
Bell filed a motion in limine to bar portions of Dr.
Termanini's testimony related to several exhibits produced after
discovery ended, including the Square Lines article. The trial
judge considered whether each of the challenged exhibits qualified
8 A-3909-14T1
as a learned treatise under N.J.R.E. 803(c)(18), granted the motion
as to the Square Lines article and denied the motion as to four
other exhibits.3
The trial judge granted Bell's motion to exclude the Square
Lines article. She noted that Dr. Termanini did not identify what
the BHSI was, who authored the article and that she could not
"tell that it was published in any kind of scholarly journal."
The following testimony by Dr. Termanini was excluded as a result:
Q. Okay. Let me show you what we've
marked as Dr. Termanini P-12 for purposes of
your testimony today.
. . . .
Q. And ask you, is that another article
by the Bicycle Helmet Safety Committee?
A. Yes. It's a P-12, and "Vents and
Square Lines: Problem with some designs."
. . . .
Q. Is there . . . anything in that
article that you believe has a bearing on your
conclusions you have reached in this case?
. . . .
3
The trial judge denied Bell's motion as to the following
exhibits: P-5, a document titled "The Complete Guide to Public
Safety Cycling"; P-9, a document titled "Spinal Column and Spinal
Cord Injuries in Mountain Bikers" from The American Journal of
Sports Medicine; P-10, a document authored by Professor Hugh Hurt
from the Bicycle Helmet Safety Institute [BHSI] and P-13, a
document titled "A Helmet for Prevention and Mitigation of Spinal
Column and Spinal Cord Injuries in Head-First Impact."
9 A-3909-14T1
A. Yeah. "The fashion among helmet
designers since 1998 has favored squared-off
edges of the foam remaining around the vents,
and the addition of sharp lines in the
exterior plastic just for style. The
elongated 'aero' shape dates from that era as
well. This is not an optimal design for
crashing. We believe that the ideal surface
for striking a road resembles a bowling ball:
Hard, smooth and round. Round shells reduce
to a minimum any tendency for a helmet to
'stick' to the surface when you hit, with the
possibility of increasing impact intensity,
contributing to the rotational brain injury
or jerking the rider's neck. They also
eliminate the aero [tail] that can snag or in
a backward impact can shove [the] helmet aside
as you hit, exposing your bare head."
. . . .
Q. Go ahead. Do you have any more?
A. Okay. "Dr. Hurt has asked ASTM to
consider modifying its bicycle helmet standard
to eliminate aero tails and elongated design.
His e-mail on this subject is illuminating."
"In the real world, people don't use
duct tape, and they don't even adjust their
straps well. So our advice is to avoid those
elongated [aero] designs. In fact, they don't
give you any real aero advantage until you
reach racing speeds anyway. For most riders,
they are not useful."
Q. Now, they mention the aerodynamic
aspect. Did you reach any conclusions
yourself about the benefits, if any, of this
so-called aeronomic [sic] design for
recreational riders?
A. Well, the speed of a mountain biker,
dirt road biker doesn't exceed 25. . . . I
personally tried to measure that, and some
10 A-3909-14T1
biker[s] will go to 26, 27 miles per hour;
but . . . the terrain doesn't allow speed.
It's not like going in an arena, and these
speed bikes can go up to 70 miles per hour.
Q. Did you reach a conclusion as to
whether there was any aerodynamic benefit at
all for a recreational rider in a teardrop
shape?
A. For [a] recreational rider, there is
no advantage whatsoever.
The language in quotation marks within the block quote was
read by Dr. Termanini directly from the Square Lines article during
his de bene esse testimony. Defendants objected to the quoted
language as hearsay. Plaintiffs countered that the Square Lines
qualified as a learned treatise, N.J.R.E. 802, and therefore was
an exception to the hearsay rule pursuant to N.J.R.E. 803(c)(18).
The hearsay exception applies to
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
testimony or by judicial notice. If admitted,
the statements may not be received as exhibits
but may be read into evidence or, if graphics,
shown to the jury.
[N.J.R.E. 803(c)(18).]
"[L]earned treatises are inadmissible hearsay when offered
to prove the truth of the matter asserted therein because the
author's out-of-court statements are not subject to cross-
examination." Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486
11 A-3909-14T1
(1992). Under Jacober, "a text will qualify as a 'reliable
authority' if it represents the type of material reasonably relied
on by experts in the field." Id. at 495. "[T]he focus should be
on what the experts in fact rely on, not on whether the court
thinks they should so rely." Id. at 495-96 (quoting Ryan v. KDI
Sylvan Pools, Inc., 121 N.J. 276, 289 (1990)). If there is any
doubt as to the reliability of the text, the court should conduct
a hearing, "either before or during the trial, to determine whether
the text qualifies as a learned treatise." Id. at 496.
No Rule 104 hearing was requested or held to determine whether
the Square Lines article constituted a learned treatise.
Plaintiffs argue the trial judge erred in granting the motion
without sua sponte conducting a Rule 104 hearing. They assert
that Bell was aware of the article and Dr. Terminani's reliance
upon it for almost eighteen months before trial and delayed in
moving to exclude the article to prejudice plaintiffs. They also
state the article "was of critical importance" to their "'design
defect' case, because it concluded that 'teardrop'-shaped
helmets," like the one worn by Lawson at the time of the accident
"were dangerous."
As noted in Jacober, a Rule 104 hearing may be held "either
before or during the trial." Id. at 496. See Cho v. Trinitas
Reg'l Med. Ctr., 443 N.J. Super. 461, 470-71 (App. Div. 2015)
12 A-3909-14T1
(observing that in limine rulings on evidence questions are
generally disfavored), certif. denied, 224 N.J. 529 (2016). To
support their argument, plaintiffs have submitted materials to the
court that were not presented to the trial judge and were not the
subject of a motion to supplement the record. Because these
materials are not part of the record, we do not consider them in
our review. See R. 2:5-4(a); Townsend v. Pierre, 221 N.J. 36, 45
n.2 (2015).
Before the trial court, plaintiffs presented the Square Lines
article as "another article by the [BHSI]." Plaintiffs failed to
identify the author of the article or offer sufficient information
about the BHSI to permit a reasonable analysis and conclusion that
the article was a "reliable authority" or an authority actually
relied upon by experts in the field. We therefore discern no
error in the trial judge's decision to exclude this evidence.
Moreover, plaintiffs were not precluded from presenting other
evidence that was probative of the points they sought to prove
through the excluded reference. The trial judge permitted Dr.
Termanini's testimony as to exhibit P-10, another article that
appeared on the BHSI website titled "Professor Hugh Hurt Weighs
In: Testing Shows Aero Helmets are a Problem" (the Hurt email).
Dr. Termanini was permitted to read portions of Professor Hurt's
email, which are arguably more persuasive than the Square Lines
13 A-3909-14T1
article that was excluded, and which Dr. Termanini said addressed
the same design concerns he had identified in this case:
A. Reading from P-10. "During the last
couple of years, the technical staff at HPRL"
— which is the Bicycle Helmet Safety Institute
— "has encountered an . . . interesting and
possibly dangerous problem with the
aerodynamic shape or streamlined bicycle
helmet. These popular helmets have a teardrop
design which taper to a wedge at the rear of
the helmet supposedly reducing the aerodynamic
drag along with increased ventilation through
the many openings of the shell. The [ad]verse
effect of this aerodynamic shape is that the
wedge at the back of the helmet tends to
[d]eflect and rotate the helmet on the head
when impact occurs there. Any impact at the
front or the side of the streamlined helmet
is no different from any other helmet, but any
impact at the rear wedge tends to rotate the
helmet on the head probably deflecting the
helmet to expose the bare head to impact, and
at worst, ejecting the helmet completely from
the head."
. . . .
"Actually, everybody who has tested these
streamlined helmets over the past year has
encountered the same due to the problem of
this helmet being displaced during impact
testing at the rear wedge."
. . . .
"We request . . . that F08.53 committee
study this problem and develop advisory
information for both manufacturer[s] of this
streamlined helmet and consumer bicyclist[s]
who now own and wear such helmet[s]. There
is a definite hazard for displacement or
ejection from impact on the rear wedge of
14 A-3909-14T1
these helmets and bicyclists should be warned
of this danger by an authority such as ASTM."
IV.
Plaintiffs also argue the trial court erred in allowing Thom
Parks, Vice President of Corporate Affairs for Bell, to testify
over their objection that there had been no other claims or
lawsuits against Bell alleging that the style of helmet worn by
Lawson caused a cervical injury. We review this challenged
evidentiary ruling for abuse of discretion. See Griffin v. City
of E. Orange, 225 N.J. 400, 413 (2016), and find none.
The "Rules of Evidence do not prohibit other accident, or
lack of other accident, evidence." Schaefer v. Cedar Fair, L.P.,
348 N.J. Super. 223, 239 (App. Div. 2002). In Ryan v. KDI Sylvan
Pools, Inc., 121 N.J. 276 (1990), a design-defect failure-to-warn
case, the Supreme Court found reversible error in the trial court's
exclusion of expert testimony regarding the rarity of spinal-cord
injuries from similarly designed pools and diving boards. Id. at
290. The Court observed that "the core of defendant's liability
rested on the product's potential or propensity for harm." Ibid.
Because the jury had to "evaluate the likelihood of such harm,"
the Court concluded the defendant was prejudiced when "deprived
of the opportunity to show the jury that there has been only an
infinitesimal number of serious accidents in pools with diving
15 A-3909-14T1
boards that conform to industry standards." Ibid. The Court
stated:
Evidence of prior similar accidents is
relevant and should be admissible as evidence
of the risk, or lack thereof, of a
product. . . . Information compiled and used
by members of the swimming-pool
industry, . . . concerning frequency of
serious injuries resulting from diving
accidents is precisely the kind of information
that might assist a jury in determining the
safety of the product.
[Ibid.]
Relying upon Schaefer, supra, 348 N.J. Super. at 233-34, 239-
40, plaintiffs argue that Bell should have been precluded from
offering evidence regarding the absence of prior neck injuries
because they did not introduce evidence of prior accidents. 4
Plaintiffs' reliance is misplaced because Schaefer did not
establish such a condition for the admissibility of evidence
regarding the absence of prior accidents. Id. at 239-40.
Plaintiffs also argue that insufficient foundation was
provided for Parks's testimony. They claim that Bell needed to
provide records demonstrating the safety history of the helmet
before Parks could testify regarding the helmet's safety record.
We disagree.
4
Dr. Termanini did testify, however, that the teardrop design of
the helmet was "notorious" for causing the rotational forces that
resulted in Lawson's injuries.
16 A-3909-14T1
Parks testified that he began working for Bell in 1998, became
its Director of Corporate Affairs in 2000 and was in charge of
safety and standards. Part of his job was keeping track of claims
and litigation. Any time there was a lawsuit, he worked with the
attorneys to "provide technical backup" and to investigate the
claims. He was responsible for knowing about all claims or
lawsuits against Bell relating to helmets. He also testified that
Bell began selling the Solar Fusion helmet in 2005, that it was a
recreational helmet designed to be used by a variety of cyclists
including mountain bikers and was Bell's best-selling helmet with
over four million sold.
The trial judge concluded that the system Bell had in place
for the gathering and review of complaints and Parks's personal
knowledge of the complaints provided a proper foundation for the
introduction of testimony regarding the lack of prior injuries
similar to Lawson's. We discern no abuse of discretion in this
ruling.
V.
Shortly after deliberations began, the jury requested a copy
of the "safety guide for police, et cetera." Both plaintiffs and
Bell agreed to provide the jury with "The Complete Guide to Public
Safety Cycling" in response to this request and the court did so.
The jury then requested a copy of the Hurt email. Plaintiffs
17 A-3909-14T1
argue that the trial judge erred in failing to clarify what the
jury meant by "et cetera" in its first request and declining to
provide the jury with a copy of the Hurt email or to grant its
alternative request that the email be read to the jury. This
argument merits only limited discussion. R. 2:11-3(e)(1)(E).
As a preliminary matter, plaintiffs' argument regarding the
failure to clarify the jury's first request is entirely lacking
in merit since they agreed with the trial judge's response to the
request. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201
N.J. 328, 340 (2010).
Turning to the Hurt email, the trial judge earlier permitted
Dr. Terminani's testimony in which he read the Hurt email, over
Bell's objection, finding it qualified as a learned treatise. The
email itself was not admitted into evidence. When the jury
requested a copy, Bell objected. The trial judge properly denied
the jury's request pursuant to N.J.R.E. 803(c)(18), which provides
"the statements may not be received as exhibits." The judge found
that providing the email to the jury would be "highly prejudicial"
in light of "extraneous language on the document."
The decision whether to read back testimony to the jury is
one that lies within the discretion of the trial judge. State v.
Wilson, 165 N.J. 657, 660 (2000). Here, the jury did not request
a readback of Dr. Termiani's testimony; they requested a copy of
18 A-3909-14T1
the email referenced within his testimony. The trial judge
considered plaintiffs' alternative request that the email be read
to the jury and stated:
And again, the proposal that it simply be read
again, the jury has not asked to hear
testimony about this document; and if they do,
we'll address that question as it comes. But
just to read it in, again, I think highlights
the document in a prejudicial way and it
effectively is making an end run around [R.]
803(c)(18). So I'm going to deny the request.
In an apparent response to the stated concern of plaintiffs'
counsel that the jury might consider this document less significant
because the court had provided them with a copy of the first
document they requested, the judge advised counsel she would remind
the jury that she made rulings based upon the law; the rulings did
not reflect any opinions of hers about the merits of the case and
that the jury alone was the judge of the facts. There was no
objection to this procedure.
The trial judge considered the request to read the email and
gave a thoughtful reason for her decision not to do so. While
there might have been other reasonable approaches to the issue,
we cannot say that the choice she made constituted an abuse of
discretion.
VI.
Plaintiffs argue the trial judge erred in providing the jury
19 A-3909-14T1
with an instruction that was prejudicial to them. Because
plaintiffs did not object to the charge at trial, we review this
argument for plain error, R. 2:10-2; State v. Munafo, 222 N.J.
480, 488 (2015); accord R. 1:7-2, and find none.
The jury instruction given by the trial judge was the Model
Jury Charge (Civil), 5.40D-4(4), "Design Defect—Defenses," "State
of the Art/Common Standards" (2001), which the judge modified only
to include the underlined language:
There has been evidence presented of the
common practice and standards in the industry,
including the Consumer Product Safety
Commission Safety Standard For Bicycle
Helmets. That evidence bears upon the
reasonable alternative design analysis that
you were asked to make here in order to measure
the reasonableness of the design of the
product. Compliance with the common practice
or industry standard does not mean that the
helmet is safe. It may still be found to be
defective in design. However, that
compliance, along with all the other evidence
in this case, may satisfy you that the helmet
was properly made.
Plaintiffs had requested that the language be modified to
read: "the compliance or noncompliance with a standard or
regulation may be considered by you along with all the other
evidence in this case, on the question of whether the helmet was
or was not properly made." The court denied plaintiffs' request
and plaintiffs posed no objection to the charge thereafter.
Plaintiffs argue the jury charge given by the court was
20 A-3909-14T1
prejudicial because "by failing to even mention the possibility
of a finding by the jury of Bell's 'noncompliance' [with 16 C.F.R.
§ 1203.5 (2016)], the trial court virtually guaranteed that such
a finding would not be made." We disagree.
"'[A] trial court is not bound to instruct a jury in the
language requested by a party. If the subject matter is adequately
covered in the text and purport of the whole charge, no prejudicial
error comes into existence.'" Bolz v. Bolz, 400 N.J. Super. 154,
163 (App. Div. 2008) (quoting State v. Thompson, 59 N.J. 396, 411
(1971)). Here, the charge given by the court adequately covered
the subject matter and the failure to mention "noncompliance" was
not "clearly capable of producing an unjust result." R. 2:10-2.
Plaintiffs also argue that although the trial judge
instructed the jury regarding "crashworthiness," her failure to
include an interrogatory addressing "crashworthiness" on the jury
verdict sheet warrants a new trial. This argument lacks merit
because, although plaintiffs proposed such an interrogatory, they
later agreed that the language of the first question should mirror
the language in the product liability statute, N.J.S.A. 2A:58C-2.
See M.C. III, supra, 201 N.J. at 340.
Affirmed.
21 A-3909-14T1