SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1314-96T3
THOMAS CORCORAN,
Plaintiff-Appellant/
Cross-Respondent,
v.
SEARS ROEBUCK and COMPANY,
Defendant-Respondent/
Cross-Appellant.
____________________________________________________
Argued March 24, 1998 - Decided June 3, 1998
Before Judges Dreier, Keefe and P.G. Levy.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County.
Charles R. Melli, Jr. argued the cause for
appellant/cross-respondent (Melli & Wright,
attorneys; Brian E. Lutness, on the brief).
Joseph DiRienzo argued the cause for
respondent/cross-appellant (DiRienzo &
Wallerstein, attorneys; Mr. DiRienzo and
James S. Rehberger, on the brief).
The opinion of the court was delivered by
KEEFE, J.A.D.
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
opinion 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.
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:
. . . .
(2) a statement whose content the party
has adopted by word or conduct or in
whose truth the party has manifested
belief. . . .
An expert's report can be admissible as an adoptive admission of
a party pursuant to N.J.R.E. 803(b)(2) in some instances when the
party provides the report in response to specific interrogatories
and thus adopts the contents as its admission. Ratner v. General
Motors Corp.,
241 N.J. Super. 197, 201 n.2 (App. Div. 1990);
Skibinski, supra, 206 N.J. Super. at 354; Mehalick v. Schwartz,
223 N.J. Super. 259, 262 (Law Div. 1987).
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.
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 opinion 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]dditional 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), 4.3.1.1
(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.
Affirmed.