SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3414-98T1
MILTON SALDANA,
Plaintiff-Appellant,
and
MARIA SANTIAGO SALDANA,
Plaintiff,
v.
MICHAEL WEINIG, INC.,
Defendant-Respondent,
and
MICHAEL WEINIG GMBH & CO.; EUROPEAN
DESIGNS - EMI; MICHAEL BLACK; GALLAGHER
BASSET SERVICES, INC.; CINDY HARKINS;
NATIONAL UNION FIRE INSURANCE CO. OF
PITTSBURGH; and JOHN DOES NOS. 1-100,
Defendants.
_____________________________________
Argued November 15, 2000 - Decided January
31, 2001
Before Judges Baime, Carchman and Lintner.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County.
Brian E. Mahoney argued the cause for
appellant (Ginarte, O'Dwyer, Winograd &
Laracuente, attorneys; Mr. Mahoney, of
counsel and on the brief).
Paul A. Lisovicz argued the cause for
respondent (McElroy, Deutsch & Mulvaney,
attorneys; Robert J. McGuire, of counsel
and on the brief).
The opinion of the court was delivered by
LINTNER, J.A.D.
Plaintiff, Milton Saldana, suffered a partial amputation of
his right thumb while attempting to remove a wood chip from a
wood molding machine that he was operating for his employer. He
brought a products liability action against the distributor of
the machine, defendant Michael Weinig, Inc., asserting claims
based upon defective design and failure to warn. Plaintiff
abandoned his claim of failure to warn and tried the issue of
liability before a jury on the theory that the guard, provided at
the point of operation, was defectively designed. The jury found
that the wood molding machine was not defective. Plaintiff
appeals from the adverse verdict and denial of his alternative
motion for new trial or judgment NOV. We are convinced that the
judge's trial ruling, based upon defense counsel's unfulfilled
representations, permitting the introduction into evidence of a
photograph of the machine taken by defendant's investigator,
resulted in a clear capacity to produce an unjust result.See footnote 11 We
therefore reverse and remand for new trial.
On September 27, 1996, plaintiff and his wife, Maria
Santiago Saldana,See footnote 22 filed a personal injury complaint against
unidentified "John Doe" manufacturers, distributors, and lessors
of a wood molding machine. Also named as defendants, for the
purposes of obtaining discovery, were European Designs,
plaintiff's employer, (European); Michael Black, owner of
European; European's workers' compensation insurance carrier,
National Union Fire Insurance Co. of Pittsburgh (National);
Gallagher Bassett Services, Inc. (Gallagher), an independent
adjuster retained by National; and Gallagher's agent, Cindy
Harkins.
Ultimately, plaintiff dismissed his action against European,
Black, National, Gallagher, and Harkins, after receiving
requested discovery material. On January 3, 1997, plaintiff
filed an amended complaint naming distributor Michael Weinig,
Inc., and the manufacturer, Michael Weinig GmbH & Co. as
defendants. After a three-day trial on the issue of liability,
the jury returned a verdict finding that the machine had not been
defectively designed. The trial judge entered an order
confirming the jury's verdict and dismissing the amended
complaint in its entirety. Following argument, the trial judge
issued an oral decision denying plaintiff's motions for new trial
and judgment NOV and, concomitantly, entered a conforming order.
On August 2, 1999, as the result of numerous problems associated
with the processing of the audiotapes used at trial, the judge
entered a "consent order settling record," which included a
"stipulated synopsis" of key occurrences at trial.
We briefly state the facts relevant to this appeal. The
wood molding machine, Model U17A, was sold by defendant to Camden
Mill Works of Pennsauken in March 1984. It thereafter was
purchased by European. The machine is a six-spindle, wood-molder
"utilized to shape and plane multiple faces of wooden stock used
primarily in the manufacture of moldings and furniture." It is
about sixteen feet long with an integral tabletop surface that is
about thirty-three inches above floor level. Unfinished wood of
variable lengths is inserted into one end of the machine and
conveyed by automatic feed rollers past six spindles consisting
of multi blade cutters, which plane and cut the wood to a
predetermined design. The finished piece is expelled from the
opposite end. The spindles rotate at 6,000 revolutions per
minute. The rotational speed of the cutter blades is so fast
that they cannot be seen distinctly and appear as a gray-colored
"blur." When a cutter is operating, it produces a "very loud
wind noise," and when a cutter is actually molding a piece of
wood, it produces a "tremendous loud sound."
The first spindle cutter, which was the cause of plaintiff's
injury, is known as a "referencing spindle." It is located at
the beginning of the run within the table top nearest the
operator. Because the cutter blades face upward, the first
spindle cutter acts to plane the bottom of the wood piece "so
that it rests firmly and squarely on the table plate thus
insuring that the finished piece is made "accurately." The point
of operation where plaintiff was injured is guarded in part by a
"pressure beam," a rectangular box housing the feed rollers, some
distance above the point of operation that covers the adjacent
table top and adjusts to a maximum height of four inches,
depending on the thickness of the unfinished wood piece to be
processed. There is also an adjustable wooden guide that
partially guards the spindle cutter involved in plaintiff's
injury.
Normally, the machine is set up to make molding
approximately one and seven-eighth of an inch wide by three-
quarters of an inch to one inch thick. At its normal setting,
the bottom edge of the side of the rectangular guard is open, a
distance of approximately two and one-half inches above the table
top surface exposing the cutter blades. Plaintiff, who had been
employed by European for two and one-half months, had prior
experience working with wood molding machines with another
employer over a three-year period of time. He understood that he
was to keep his hands away from the rotating blades of the first
spindle cutter. On the day of the accident, plaintiff had
operated the machine for about two hours, during which time there
were "numerous jams of wood stock." With Michael Black standing
nearby, plaintiff raised the pressure beam to its maximum height,
which revealed that a small sliver of wood had become lodged in
the area of the fence near the first spindle cutter causing the
machine to "jam" and thereby mar the finished wood product.
Bending down in order to see the wood chip, plaintiff reached
underneath the guard through the side opening, a distance of
approximately four inches. Although aware that the machine was
running, plaintiff indicated that he momentarily forgot that the
blades were in the vicinity of the wood chip when he reached
under the guard.
The cutter blades tore away his thumbnail and some of the
tissue below it, resulting in the "partial amputation of his
right thumb" above the knuckle joint. Plaintiff underwent
surgery and rehabilitation and was medically cleared to return to
work without restriction on May 1, 1996.
Prior to picking a jury, plaintiff announced that he was
voluntarily abandoning his warnings claim. Simultaneously,
plaintiff moved to crop the photographs of the machine, produced
by defendant, to remove the warning sticker appearing in the
photographs near the point of operation where plaintiff was
injured. Counsel explained that about five months after the
accident, he had contacted European's owner, Black, and arranged
for an inspection of the machine to be held on April 17, 1996.
The day before the scheduled inspection, Black notified
plaintiff's counsel that the inspection had to be postponed and
rescheduled. Nine days later, on April 25, 1996, Black permitted
defendant's representative, Danny Boggs, to inspect and
photograph the machine. The photographs taken by Boggs depicted
a single, relatively large and graphic warning sticker directly
above the point on the machine where plaintiff was injured,
showing blades, a hand, and a partially amputated finger.
Counsel went on to explain that months later, as the result of
litigation to compel Black to permit an inspection, he and
plaintiff's expert were permitted to examine the machine, which
they found to be "plastered" with numerous additional warnings
not shown on Boggs's photographs.
Counsel advised the judge that the circumstances raised in
his mind a suspicion that the single sticker that was depicted in
Boggs's photograph "was not really there when my client suffered
his injury." Counsel pointed out that, although plaintiff
testified at depositions that there was some type of written
warning on the machine, he could not identify the warning
depicted in Boggs's photographs as the warning present at the
time of his injury.
In response, defense counsel advised the court that
defendant had developed the warning stickers in the early 1990s.
He indicated that the warnings had been sent to Camden Mill Works
in 1991. He related that defendant sent a complete package of
warnings to European approximately one year before plaintiff's
accident when it subsequently learned that European was the owner
of the machine. Defense counsel represented to the judge that
Black would testify that the individual warning sticker depicted
in Boggs's photograph was "in fact present on the guard at the
time of the accident." In further support of its position that
the photograph should not be cropped, defendant argued that the
warning was relevant to the risk utility analysis as it relates
to the issue of defective design. Defendant also maintained that
the existence of the warning was relevant to the issue of
proximate cause, in view of plaintiff's testimony that he
momentarily forgot when he reached under the guard to clear the
wood chip from the area of the blades.
The trial judge denied plaintiff's application to crop the
photographs. Plaintiff's counsel then advised the judge that as
a result of the ruling, he would argue his "fall back plan B"
position that the existence of the warning at the location
depicted in the photographs "shows the foreseeability of machine
operators side access at the point of operation." With the
exception of the warning sticker shown in the photograph,
plaintiff identified one of Boggs's photographs as depicting the
machine at the time of his injury and it was subsequently
admitted into evidence. Defendant never produced Black to
testify that the warning sticker was, in fact, on the machine at
the time of the accident.
Defendant's Vice-president of Technical Services, Lance
Thrall, testified that the open-sided format around the first
spindle cutter was the industry custom in 1984. According to
Thrall, it was necessary to have open-sided access to the first
spindle cutter so that the machine operator is able to see the
cutter head during the initial set-up for processing a run of
unfinished wood pieces. Unlike the first spindle cutter, the
five other downstream spindle cutters are completely enclosed by
metal guarding when the machine is being operated. Thrall
testified that, if a wood chip or splinter is adversely affecting
the machine's production, there are two modes of remediation.
First, without stopping the machine and without placing oneself
in danger, the operator can activate a remote lubrication pump
that releases a "wax material" in an effort to solve the problem.
If that action fails to correct the problem, then it is necessary
to stop the machine using the red "E stop" button to remove the
errant wood chip.
Thrall related that the machine did not have any warnings
when it was produced in 1984. In August 1991, defendant produced
a set of safety decals, which it sent to known owners of its
Model U17A wood molding machines. One of the safety decals was
specifically intended to be applied to the area near the first
spindle cutter because defendant recognized the area as a "danger
point." Plaintiff's employer, European, was sent a set of safety
decals sometime before plaintiff's accident.
Each party presented expert testimony. Plaintiff's expert,
Thomas J. Cocchiola, was of the opinion that the excessive height
of the opening formed along the side of the guard represented a
defective design because it failed to minimize the possibility
that a worker would accidently come in contact with the rotating
cutting head. He felt that the manufacturer should have
incorporated an adjustable guard that would minimize or prevent
access to its rotating cutter heads. During Cocchiola's
testimony several objections were sustained that precluded
testimony concerning the use of either a hinged guard or one made
of plexiglass, which would afford visibility of the cutter blade.
Plaintiff was also precluded from having his expert testify about
the defendant's subsequently designed Profimat Model 22N wood
molding machine, which was in production at the time of
plaintiff's injury and incorporated guarding that fully enclosed
the first rotating cutting head.
By contrast, defendant's expert, Peter J. Schwalje, found
that the area around the cutter head was suitably and adequately
safeguarded, the machine was free of defect or deficiency in its
design, and was equipped with adequate controls to allow for safe
operation and maintenance. The jury found that the machine was
not defective in its design and, therefore, never decided the
issue of proximate cause.
Plaintiff contends that the admission of the photograph of
the machine depicting the existence of the warning sticker
constituted reversible error. Defendant argues that the jury had
no instructions on warnings and, therefore, the existence of the
warning sticker had no impact on the jury's determination that
the wood molding machine was not defectively designed. We first
must determine the propriety of admitting the photograph of the
machine containing the warning sticker.
Generally, to justify admissibility of a photograph, it must
accurately represent the conditions existing at the time of the
happening of the incident in question. N.J.R.E. 901; Garafola v.
Rosecliff Realty Co.,
24 N.J. Super. 28, 42 (App. Div. 1952).
The authentication of a photograph requires verification by a
qualified individual, one who has made personal observations,
thereby establishing that the conditions reproduced existed at
the time of the accident. Ibid. In the alternative, the witness
providing the authentication may testify that the scene, which is
depicted, has not changed since the time of the incident in
question. State v. Wilson,
135 N.J. 4, 15 (1994).
It was not disputed that, with the exception of the warning
sticker, the photograph accurately depicted the molding machine
used by plaintiff. Presumably, the trial judge denied
plaintiff's request to crop the photograph to allow its use as
depicting the point of operation based upon representations by
the defense that it would call Michael Black to verify that the
warning sticker was on the machine at the time of the incident.
Under the circumstances, the photograph should have been marked
for identification subject to proper authentication that the
warning sticker was present at the time of the accident.
N.J.R.E. 901. Absent such testimony, the photograph should have
been cropped thereby eliminating the warning sticker and
introduced into evidence on a limited basis to show the point of
operation and the guard as originally advocated by plaintiff.
N.J.R.E. 105; see Spedick v. Murphy,
266 N.J. Super. 573, 590
(App. Div.) certif. denied,
134 N.J. 567 (1993).
Defendant contends that its failure to call plaintiff's
employer was not dispositive because plaintiff effectively waived
his objection by admitting the photograph, after the judge
sustained defendant's objection to have the photograph cropped.
A party who objects to the admission of evidence is bound by an
adverse ruling for the remainder of the trial. The objecting
party is entitled to minimize the effect of the ruling by taking
a contrary position without waiving, for the purposes of appeal,
the prejudicial effect of the introduction of the entire subject
matter over which the initial objection was made. Karmazin v.
Pennsylvania Railroad Co.,
82 N.J. Super. 123, 130, (App. Div.
1964). Here, plaintiff clearly advanced his position that the
photograph should be admitted without depicting the warning
sticker. His subsequent admission of the uncropped photograph,
based upon the adverse ruling of the trial judge, did not
represent a waiver of his initial objection.
Defendant's argument that plaintiff should be precluded from
claiming that the admission of the photograph was error because
he thwarted defendant's attempts to authenticate the photograph
by the testimony of Thrall is equally misplaced. Plaintiff's
objection was well taken. It was consistent with his original
position questioning the presence of the warning sticker at the
time of the accident. Furthermore, no foundation was laid by
defendant that Thrall possessed personal knowledge that European
had in fact, at the time of the accident, applied the disputed
warning sticker to the machine. N.J.R.E. 602, 901; Garafola,
supra, 24 N.J. Super. at 42; Wilson, supra, 135 N.J. Super. at
18-19.
Defendant also argues that admission of the photograph was
harmless and had no impact on the jury's determination that the
wood molding machine was not defectively designed, because the
jury received no instructions on warnings. We are hampered by
the absence of a record of the trial judge's jury instructions
and counsel's closing arguments. Counsel have stipulated that no
mention was made by the judge about warnings in his instructions
to the jury. They have also advised that the model jury
instruction used by the trial judge included risk utility factors
one through five. We, therefore, must analyze the law to
determine what, if any, impact the pictured warning had upon the
jury given the lack of any instruction on warnings by the court.
The determination of whether a product is defectively
designed centers on the condition of the product at the time it
left the hands of the manufacturer. Grier v. Cochran Western
Corp.,
308 N.J. Super. 308, 324-325 (App. Div. 1998). The
question to be decided, after imputing knowledge of the defect
and its danger to the manufacturer, is whether the manufacturer
acted in a reasonably prudent manner in marketing the product or
providing the warnings given. Fabian v. Minster Machine Co.
Inc.,
258 N.J. Super. 261 (App. Div.) certif. denied,
130 N.J. 598 (1992). Accordingly, the conduct of the injured employee-
plaintiff occurring subsequent to the time the product left the
manufacturer is irrelevant to the determination of design defect.
Grier, supra, 308 N.J. Super. at 324-325. The manufacturer can
use neither the obviousness of the product's danger nor the
plaintiff's conduct as a shield to avoid liability for an
otherwise defective product. Id. at 325.
In Green v. General Motors,
310 N.J. Super. 507, 517 (App.
Div.) certif. denied,
156 N.J. 381 (1998), we observed that the
determination as to whether a defect in design existed, requires
the jury to decide "the risks and alternatives that should have
been known to a reasonable manufacturer, and then assess whether
the manufacturer discharged its duty to provide a 'reasonably
fit, suitable and safe'" product. Although the jury employs a
risk-utility analysis utilizing those factors that are relevant
to a particular case, the issue upon which most claims will turn
is proof by the plaintiff of a "reasonable alternative design,
the commission of which renders the product not reasonably safe."
Id. at 518. Except in the limited circumstances proscribed by
our products liability statute, the existence of a warning is
generally not relevant to the question of design defect.
N.J.S.A. 2A:58C-3.
Here, the warning, improperly before the jury, loomed bigger
than life, especially when viewed in the context of the
prevailing issue which was limited to defective design. We fail
to see how any reasonable person could view the photograph of the
area of the guard and not focus attention on the pictural
warning. Although extraneous to the issue at hand, it
nevertheless permitted the jury, absent limiting instruction, to
speculate as to its applicability, suggesting that its presence
might be viewed as ameliorating the alleged defect concerning the
design of the guard. Had the jury been presented with a cropped
photograph of the machine thus eliminating the disputed warning,
there would have been no opportunity for it to consider either
its existence or impact on the safety of the questioned design.
We conclude that the inclusion of the warning in the photograph,
without proper authentication and limiting instruction, was error
and its introduction into evidence had the clear capacity to
produce an unjust result.
Because we reverse and remand for new trial, we caution that
a properly authenticated warning, while unavailable as a means of
avoiding liability from the consequences of an otherwise
defective product, may nevertheless be relevant to the issue of
proximate cause. Grier, supra, 308 N.J. Super. at 324-325;
Vallillo v. Muskin Corp.,
212 N.J. Super. 155, 159-160 (App. Div.
1986). A jury must be instructed carefully in strict liability
cases, as it is essential to tailor the facts to the law to
assist the jury in its fact-finding responsibility. Campos v.
Firestone Tire & Rubber Co.,
98 N.J. 198, 210 (1984). The need
for an "understandable and clear exposition of the issues,"
covering all essential matters, applies to "proximate cause and
its place in the liability scheme." Ibid.
We make the following additional observations concerning
plaintiff's remaining contentions. We are satisfied from our
review of the record, including the expert report submitted by
Cocchiola, that the trial judge's decision restricting plaintiff
from introducing evidence concerning the design of defendant's
subsequent model, the Profimat 22N, did not represent a manifest
denial of justice. Plaintiff's expert report did not address
either the feasibility of: (1) producing the design employed by
the Profimat 22N at the time Model U17A was initially developed
or (2) retrofitting it at a later date after the Profimat 22N was
in production. The trial judge used appropriate discretion in
precluding plaintiff's expert from presenting his opinions on the
subject of the Profimat 22N, which were not covered in his
report. Ratner v. General Motors Corp.,
241 N.J. Super. 197, 202
(App. Div. 1990).
We are not convinced, however, that it was proper for the
trial judge to preclude plaintiff's expert from testifying
concerning the use of a hinged guard or one employing a see-
through window. Cocchiola's deposition was never taken by
defendant and his report contained, at least, some passing
reference to use of adjustable guarding. On retrial, these
deviations from Cocchiola's report should be examined in further
detail and the trial judge should determine whether they are
sufficiently minimal so as not to qualify as a design to mislead
or create significant surprise or undue prejudice. Congiusti v.
Ingersoll-Rand Co., Inc.,
306 N.J. Super. 126 (App. Div. 1997).
Lastly, we consider plaintiff's contention that the trial judge
erred in his response to the jury's inquiry regarding the
possible existence of a separate pending lawsuit against
plaintiff's employer. During jury deliberations, the jurors
asked "whether there was a pending lawsuit against European
Designs, plaintiff's employer." The judge instructed the jury
that:
Whether or not there is another lawsuit
pending against European Designs is
irrelevant to the matters before you. You
are to concern yourselves solely with the
questions addressed to you and in accordance
with the law I have previously explained.
The jury then retired and seven minutes later returned its
verdict. Plaintiff's contention that the judge should have given
the jury more information as we instructed in Joy v. Barget,
215 N.J. Super. 268 (App. Div. 1987), lacks merit. Unlike the facts
in Joy, here there was neither an unwarranted interjection of
workers' compensation into the case that required further
curative instruction, nor any specific prejudice that needed to
be confronted. The trial judge's instructions were appropriate.
Reversed and remanded for new trial.
Footnote: 1 1Defendant is represented in this appeal by different counsel. Footnote: 2 2Maria subsequently separated from Milton and her per quod claim was abandoned.