IN THE SUPERIOR COURT OF PENNSYLVANIA

STERLING LEWIS Appellant

vs.

CRC INDUSTRIES, INC.

Appellee _______________________________________

BRIEF FOR APPELLANT

_______________________________________

2358 EDA 2009 _______________________________________

Appeal from the June 15, 2009 Order of the Court of Common Pleas of Philadelphia County at

July Term, 2006, No. 000815, Denying Appellant’s Motions for Post Trial Relief, Judgment Notwithstanding the Verdict and a New Trial.

_______________________________________

CHARLES L. TANNENBAUM, ESQUIRE ATTORNEY FOR APPELLANT

I.D. NO. 32810 436 OLD YORK ROAD, SUITE 6

JENKINTOWN, PA 19046 (215) 376-0490; (215) 376-0491 (fax)

Email: cltesq@verizon.net

i

TABLE OF CONTENTS

Table Of Citations .......................................................................................................................... iii

Statement Of Jurisdiction ................................................................................................................ 1

Order In Question ........................................................................................................................... 2

Statement Of The Scope And Standard Of Review ........................................................................ 3

Statement Of The Question Involved ............................................................................................. 5

Statement Of The Case ................................................................................................................... 6

I. Factual History .................................................................................................................... 6

A. The Incident .................................................................................................................. 6

B. The Cause of the Accident ............................................................................................ 7

II. Procedural History ............................................................................................................ 14

Summary Of Argument................................................................................................................. 16

Argument ...................................................................................................................................... 17

I. The Trial Court’s Jury Charges On New Jersey Products Liability Law Were Erroneous Because Of Critical Omissions And Generalized Confusion.................................................... 17

A. The Trial Court Erred By Failing or Refusing To Instruct the Jury on “Manufacturing Defect” ...................................................................................................................................... 17

B. The Court’s Charge On Design Defect Was Confusing, Omitted Critical Language from the Risk Utility Analysis, and Included Inapplicable Factors ................................................... 22

II. The Trial Court Erred By Abdicating Its Role Of Gatekeeper And Permitting Irrelevant And Prejudicial Evidence Of Alleged Negligence Of The Plaintiff, His Employer And/Or His Co-Employees To Be Heard And Considered By The Jury...................................................... 31

A. The Trial Court Erred by Admitting Evidence of Comparative Negligence and Charging the Jury on Plaintiff’s Comparative Negligence in a Strict Liability Claim for Workplace Injuries ................................................................................................ 32

1. New Jersey Law Precludes the Admissibility of Comparative Negligence in Workplace Injuries ................................................................................................ 32

2. The Court Erred By Denying Plaintiff’s Pre-Trial Motion In Limine To Preclude Defendant From Introducing Evidence Concerning The Alleged Negligence Of The Plaintiff, His Employer And/Or His Co-Employees ..................................... 37

3. The Trial Court Erred by Charging the Jury on Plaintiff’s Comparative Negligence ............................................................................................................ 42

ii

B. The Trial Court Erroneously Charged the Jury on Negligence Theories as Defenses to Strict Liability Claims ................................................................................................. 48

1. New Jersey Law on Defenses to Product Liability Defenses ............................... 49

2. The Court Erred by Charging the Jury on the Defense of Negligence to Product Defect Claims ........................................................................................................ 51

Conclusion .................................................................................................................................... 55 

Appendix

Statement of Matters Complained of on Appeal ............................................................. A-1

Trial Court Opinion, December 24, 2009 ....................................................................... A-5

iii

TABLE OF CITATIONS

Cases

Austin v. Ridge, 435 Pa. 1, 255 A.2d 123, 125 (1969) .................................................................... 3 Brown v. United States Stove Co., 98 N.J. 155, 484 A.2d 1234 (1984) ................................ passim Butler v. PPG Industries, Inc., 201 N.J.Super. 558, 493 A.2d 619 (App. Div.), certif. denied, 102

N.J. 298, 508 A.2d 186 (1985)........................................................................................... passim Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 182, 751 A.2d 564 (App. Div. 1999), aff'd 164

N.J. 1, 751 A.2d 518 (2000)...................................................................................................... 33 Coffman v. Keene Corp., 133 N.J. 581, 605, 628 A.2d 710 (1993) ............................ 33, 34, 35, 43 Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 450, 625 A.2d 1181, 1186 (1993) ............ 3 Commonwealth v. Widmer, 560 Pa 308, 744 A.2d 745 (Pa. 2000) ................................................ 4 Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 134, 703 A.2d 340 (App. Div. 1997)

............................................................................................................................................ passim Crumb v. Black & Decker, 499 A.2d 530 at 533-535 (N.J. App. Div. 1985) ............................... 46 Fabian v. The Minster Mach. Co., 258 N.J. Super. 261, 278, 609 A.2d 487 (App. Div.), certif.

denied, 130 N.J. 598, 617 A.2d 1220 (1992) ...................................................................... 34, 50 Grier v. Cochran, 308 N.J. Super. 308, 705 A.2d 1262 (Appellate Div. 1998) ............... 30, 31, 48 Harman ex rel. Harman v. Borah, 562 Pa. 455, 465-69, 756 A.2d 1116, 1122-24 (Pa. 2000). 4, 41 Hutchinson v. Penske Truck Leasing Co., 2005 PA Super. 179, 876 A.2d 978, 984 (2005) ......... 3 Johansen v. Makita U.S.A., 128 N.J. 86, 607 A.2d 637 (App. Div. 1992) ............................ passim Morrison v. Dep’t of Pub. Welfare, 538 Pa. 122, 131, 646 A.2d 565, 570 (Pa. 1994) ............... 3, 4 Navarro v. George Koch & Sons, 211 N.J. Super 558, 580, 512 A.2d 507 (App. Div. 1986) .... 39,

40, 51 Olencki v. Mead Chem. Co., 209 N.J. Super. 456, 507 A.2d 803, 806 (Law Div. 1986) . 36, 40, 41 Parker v. Freilich, 2002 PA Super. 188, 803 A.2d 738, 744 (2002) .............................................. 3 Ramos v. Silent Hoist and Crane Co., 256 N.J. Super. 467, 478, 607 A.2d 667 (App. Div. 1992)

................................................................................................................................................... 34 Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 162-163, 406 A.2d 140, 146 (1979)

............................................................................................................................................ passim Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669, 673 (Pa. 1985) ............................ 3 Truchan v. Nissan Motor Corp. in U.S.A., 316 N.J. Super. 554, 564, 720 A.2d 981 (App.Div.

1998). ........................................................................................................................................ 50 Underwood v. Wind, 2008 Pa. Super. 158, 954 A.2d 1199 (Pa. Super. 2008) ............................. 17

Statutes

42 Pa.C.S. §742 ............................................................................................................................... 1 N.J. Stat. § 2A:58C-1, et seq., New Jersey Products Liability Act............................................... 49 N.J.S.A. 2A:15-5.1 et seq., New Jersey Comparative Negligence Act ........................................ 32

Other Authorities

New Jersey Model Jury Charge 5.40D-1 ................................................................................ 23, 24 New Jersey Model Jury Charge 5.40D-3 .................................................................... 23, 25, 27, 31 New Jersey Model Jury Charge 5.40B ................................................................................... 20, 22

1

STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal pursuant to 42 Pa.C.S. §742, which grants the

Superior Court exclusive jurisdiction over all appeals from final Orders of the Courts of

Common Pleas.

2

ORDER IN QUESTION

ORDER

AND NOW, this 12th day of June, 2009, upon consideration of the Plaintiff's Motion for Post Trial Relief, Motion for Judgment Notwithstanding the Verdict and Motion for a New Trial, Defendant’s response thereto, and oral argument heard June 9, 2009, it is hereby ordered that said Plaintiff's Motions are DENIED.

BY THE COURT: _______________ /s/ QUINONES-ALEJANDRO, J.

3

STATEMENT OF THE SCOPE AND STANDARD OF REVIEW

A court has the duty to grant a new trial if it determines that the judicial process has

effected a serious injustice, i.e., when there has been an error of law, or when the verdict is

against the clear weight of the evidence. Austin v. Ridge, 435 Pa. 1, 255 A.2d 123, 125 (1969).

Appellate review of a denial of a new trial requires the same analysis as review of a grant of a

new trial. Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669, 673 (Pa. 1985).

An appellate court will grant a new trial if it determines that the trial court acted

capriciously, abused its discretion, or committed an error of law that controlled the outcome of

the case. Parker v. Freilich, 2002 PA Super. 188, 803 A.2d 738, 744 (Pa. Super. 2002). Further,

a new trial should be granted when evidence has been wrongfully included or excluded, and the

error is harmful or prejudicial to the complaining party. Hutchinson v. Penske Truck Leasing Co.,

2005 PA Super. 179, 876 A.2d 978, 984 (Pa. Super. 2005).

There are two possible scopes of review to apply when an appellate court analyzes the

propriety of an order granting or denying a new trial. Coker v. S.M. Flickinger Company, Inc.,

533 Pa. 441, 450, 625 A.2d 1181, 1186 (Pa. 1993); Morrison v. Dep’t of Pub. Welfare, 538 Pa.

122, 131, 646 A.2d 565, 570 (Pa. 1994). A narrow scope of review applies “where the trial court

articulates a single mistake (or a finite set of mistakes), the appellate court’s review is limited in

scope to the stated reason, and the appellate court must review that reason under the appropriate

standard.” Morrison, 646 A.2d at 571. Conversely, if the trial court leaves open the possibility

that reasons, in addition to those specifically mentioned, might warrant a new trial, or orders a

new trial “in the interests of justice,” the appellate court applies a broad scope of review,

examining the entire record for any reason sufficient to justify a new trial. Morrison, 646 A.2d at

570.

4

The standard of review applied by the appellate court depends upon the trial court’s

preliminary decision of whether any mistake – involving a factual, legal or discretionary matter –

was made at trial. If the mistake concerned an error of law, the court will scrutinize for legal

error. Harman ex rel. Harman v. Borah, 562 Pa. 455, 465-69, 756 A.2d 1116, 1122-24 (Pa.

2000). Propriety of jury instructions entails a question of law. See Morrison 646 A.2d at 571 n.8.

Ultimately, the proper standard of review is whether the trial court abused its discretion.

Harman, 756 A.2d 1122. As stated in Commonwealth v. Widmer, 560 Pa 308, 744 A.2d 745 (Pa.

2000):

Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Widmer at 322.

5

STATEMENT OF THE QUESTION INVOLVED Is plaintiff entitled to a new trial when, applying the New Jersey products liability law,

the trial court abused its discretion and/or misapplied the law by:

a. Omitting or failing to instruct the jury consistent with the New Jersey Model Civil

Charges relevant to products liability claims; and,

b. Admitting evidence of alleged comparative negligence and alleged employer/co-

employee negligence in a strict liability claim arising in the workplace.

Answered in the negative by the court below.

6

STATEMENT OF THE CASE

In this strict products liability action, Appellant Sterling Lewis appeals from the June 12,

2009 Order of the Court of Common Pleas of Philadelphia County denying Mr. Lewis’ Motion

for Post Trial Relief, Motion for Judgment Notwithstanding the Verdict, and Motion for a New

Trial.

I. FACTUAL HISTORY

A. The Incident1

On October 1, 2004, Plaintiff, Sterling Lewis, a 4th year Apprentice Lineman for the City

of Vineland, New Jersey Municipal Electrical Utility (VMEU), in accordance with a Work Order

prepared by his employer and the directions of his crew chief, was performing pole top

maintenance and cleaning high voltage electrical switches. The VMEU Work Order called for,

among other things, application of an aerosol spray product known as CRC Electrical Grade

PF™ Precision Cleaner to the pole top switches, some of which remained energized (in

accordance with the Work Order). On the morning of the accident, after participating in an onsite

crew “tailboard” meeting to review procedures and protocol, and after donning protective

equipment including gloves and gauntlets, Mr. Lewis and Kevin Sherman, a journeyman lineman

who was supervising Mr. Lewis while he performed the work, were elevated in buckets by a

hydraulic lift. The two buckets were elevated from a single arm extending from one truck.

The pole top switches are arranged in three sections or “phases:” a field phase (furthest

from the road); a center phase; and, a road (closest to the road) phase. Each individual switch

consists of a “keeper” side and a “blade” side. For more than 20 years, it was the established

procedure at VMEU to perform pole top maintenance with one side of the switches remaining

1All citations to the record be contained in footnotes.

7

energized. The Vineland linemen had many years of experience working in this manner, and

there had never been an accident.

After spraying the CRC cleaner on the field phase switch without incident, Mr. Lewis

turned his attention to the center phase switch. Because of the position of the bucket, he had to

step up onto a built-in step inside the bucket and lean forward to reach the center phase keeper

side of the switch. While so doing, and unbeknownst to Mr. Lewis, his right hip inadvertently

contacted a metal tie rod extending from the wooden pole, thereby inadvertently and

unintentionally grounding his body. While in this position, he began spraying the CRC Electrical

Grade PF™ Precision Cleaner onto the energized keeper side of the switch from a distance of

approximately 18 inches from the nozzle to the switch. He sprayed the aerosol for several

seconds and, just as he began to release the pressure from the nozzle, an electrical arc-over

initiated, i.e., an electrical arc of approximately 7620 volts travelled from the energized keeper

switch via the aerosol to his gloved hand, and into his body, exiting through his right hip/groin

area, causing him to lose consciousness. Mr. Sherman reached across his bucket to grab hold of

Mr. Lewis and pulled him back into his bucket, which was immediately lowered to the ground by

other crew members. There, the remaining crew members tended to Mr. Lewis. In particular,

they removed his protective rubber gloves and gauntlets from his hands. Mr. Lewis was then

taken to Cooper Hospital in Camden and then flown by helicopter to Crozer Burn Center in

Chester, Pennsylvania for emergency surgery.

B. The Cause of the Accident

In 2002, VMEU Electrical Engineers learned that one of the products they had been using

to clean the pole top switches was flammable and, therefore, a safety risk. Seeking to reduce or

eliminate this risk, VMEU researched the possibility of obtaining and using another, non-

8

flammable, product. This task fell to Robert Napier, P.E., who researched the CRC Electrical

Grade PF™ Precision Cleaner manufactured, advertised and marketed by the defendant. He read

advertising material authored by CRC and obtained and read a document from CRC known as

the “Material Safety Data Sheet” (MSDS). He testified that VMEU was looking for a product

that was non-conductive and had a high dielectric strength:

A. WE WERE LOOKING FOR A PRODUCT THAT WAS DESIGNED FOR CLEANING CONTACTS ON ELECTRICAL EQUIPMENT, ELECTRICAL GRADE PRODUCT. Q. WHAT WERE THE QUALITIES THAT YOU NEEDED TO HAVE? A. YES. IT WAS SUPPOSED TO HAVE NO FLASHPOINT, IT WAS SUPPOSED TO BE NONCOMBUSTIBLE, AND SUPPOSED TO HAVE HIGH DIELECTRIC QUALITIES AND ALSO LEAVE NO RESIDUE AND WORK WELL IN AN ELECTRICAL ENVIRONMENT. Q. I BELIEVE YOU SAID NONCOMBUSTIBLE. DID YOU MEAN NONCONDUCTIVE? A. WELL, I MEANT HIGH DIELECTRIC QUALITIES, I MEANT IT WAS A GOOD INSULATOR. THAT DOESN'T MEAN IT'S NONCONDUCTIVE BECAUSE IF YOU PUT ENOUGH VOLTAGE -- IT'S GOT A VOLTAGE RATING ON IT. IF YOU EXCEED THE VOLTAGE RATING IT WOULD CONDUCT. BUT NONCOMBUSTIBLE, NO FLASHPOINT. Q. SO THE INFORMATION ON THE MSDS TOLD YOU THAT ONE OF YOUR CRITERIA FROM THAT PART WAS MET, WHICH IS THAT IT HAD NO FLASHPOINT. A. YES.2

According to the materials Mr. Napier reviewed, the PF Precision Cleaner had no flash or fire

point, so there was no concern if there was minor arcing if the product was sprayed on a switch

because it would not ignite:

Q. So what did you read about the PF Precision Cleaner? A. Well, "It's an innovative contact cleaner that offers strong cleaning action, fast evaporation, and no residue." Q. So far so good? A. Yes. Q. Okay. Then what?

2R. 938a

9

A. "PF Precision Cleaner has no flash or fire point and is safe to use on plastics." so that meant -- Q. Stop. What did that mean to be Robert Napier when you read that it has no flash or fire point? A. This was safe to use, it wouldn't ignite. I didn't have to worry if there was a minor arcing occurring on the switch; that if they sprayed this product on the switch a fire would occur, because it wouldn't ignite, it had no flash point and no fire point.3

Mr. Napier referred to the high dielectric strength of the PF Precision Cleaner throughout his

testimony. The MSDS and marketing materials, showed that the dielectric strength of the cleaner

was 29,000 volts, Mr. Napier’s understanding was consistent with the product literature:

Q. Now, while you're on dielectric strength, is the dielectric strength of the PF Precision Cleaner listed on this chart that was in this catalogue that you reviewed? A. Yes. Q. And what does this chart in this catalogue represent the dielectric strength of the PF Precision Cleaner to be? A. Twenty-nine thousand volts. Q. Twenty-nine thousand? A. Twenty-nine thousand, yes. Q. So when you saw this catalogue, and you reviewed it, and then you started looking at the PF Precision Cleaner, are you then under the impression that the PF Precision Cleaner has a dielectric strength of 29,000 volts? A. Yes, that is correct.4

According to the CRC MSDS, the dielectric strength of the CRC Electrical Grade PF™

Precision Cleaner was 29,000.00 volts and the product was stated to be non-conductive.5

3R. 965a-966a

VMEU’s line capacity was 13,200 volts; thus, VMEU concluded that this product was safe and

appropriate for its needs. Most importantly, they reasonably believed that it was safer than the

previously used product. This new cleaner was purchased and incorporated into VMEU’s pole

top breaker maintenance work order as of 2002.

4R. 970a-971a 5R. 985a-986a

10

For approximately two years, VMEU performed pole top maintenance using the CRC

Electrical Grade PF™ Precision Cleaner without incident. However, on October 1, 2004, a

number of factors coalesced to cause Mr. Lewis’ tragic incident. Immediately after learning of

the accident, VMEU launched an internal investigation to determine what went wrong. The

investigators’ conclusions are contained in an October 12, 2004 Report, entitled “Accident

Investigation Team Report for October 2004 Arc Over Incident,” which identified the causes of

the event, including but not limited to the arc over event, and contained recommendations to

avoid a recurrence of arc-over events.

Before Mr. Lewis’ accident, VMEU was unaware of the risk of an arc-over while

spraying the CRC Electrical Grade PF™ Precision Cleaner onto energized equipment. VMEU’s

beliefs were based upon representations that the product was non-conductive, non-flammable

and had a dielectric strength of 29,000.00 volts; these representations were made by CRC in its

advertising material, on the can’s label and, in particular, in the MSDS.6

. . . WHEN WE WORK WITH ELECTRIC LINES – I MEAN, WHEN I LOOK AT THESE WARNINGS THIS PRODUCT IS MARKETED FOR ELECTRICAL USE. IT'S ELECTRICAL GRADE PRECISION CLEANER. OUR WORK WITH ELECTRIC IS A LITTLE DIFFERENT THAN MOST

Had the licensed,

professional electrical engineers at VMEU known of this risk or had they been made aware of it

through adequate warnings, they would not have purchased the product for use in pole top

maintenance procedures. Mr. Napier testified that a “direction” on the can that states, “For

personal safety, do not apply while equipment is energized,” did not appear in the MSDS or any

of the advertising literature he reviewed. Furthermore, Mr. Napier also stated that, although the

VMEU engineers had not seen this “direction” on the can’s label before placing the product in

use, even if they had, it would have been of no consequence:

6R.965a-966a; R. 970a-971a.

11

PEOPLES' WORK WITH ELECTRIC. WE WORK WITH ELECTRICIANS ALL THE TIME. ELECTRICIANS, A LOT OF TIMES, SOME ARE MORE COMFORTABLE WORKING WITH ENERGIZED CIRCUITS. BUT THEIR CIRCUITS ARE USUALLY ENERGIZED AT 120 VOLTS MAYBE UP TO 480 VOLTS. OUR CIRCUITS ARE ENERGIZED AT -- WELL, WE HAVE 24,000-VOLT CIRCUITS, 2,400 VOLT CIRCUITS AND 7,620 TO GROUND, 13,200 PHASE TO PHASE. WE HAVE TO WEAR THAT PROTECTIVE EQUIPMENT. WE WORK ON THAT. WE'RE USED TO WORKING ON THAT ALL THE TIME.7

The words “arc-over” appear nowhere on the can or in any CRC literature. CRC denied that this

product presented a risk of arc-over.8

Two liability experts testified in this case for the plaintiff. The first, Mary Devany, MS,

CSP, CHMM, a Certified Safety Professional (CSP) in Comprehensive Practice and a Certified

Hazardous Materials Manager at the Master Level (CHMM). Ms. Devany testified at trial that

the product was defectively designed because (1) it contained inadequate warnings, (2) it was not

properly tested, and (3) CRC misrepresented the product in numerous aspects:

. . . THERE IS NO WAY TO TEST DIELECTRIC STRENGTH OF AN AEROSOL. AND SO NOT ONLY WAS THE INFORMATION DISTRIBUTED IN ADVERTISING AND THE HAZARD INFORMATION DEVELOPED TO COMPLY WITH FEDERAL OSHA MISLEADING, THE PRODUCT ITSELF WAS DEFECTIVE BY NATURE. YOU CAN APPLY THESE DIELECTRIC STRENGTHS TO THE LIQUID, BUT THERE IS NO WAY TO MAKE THE AEROSOL A MATERIAL THAT CAN BE USED WITH A KNOWN DIELECTRIC STRENGTH OR KNOWN PROTECTION AGAINST ELECTRICAL CONDUCTIVITY. AND SO BECAUSE OF THAT, HAVING THIS IN AN AEROSOL CAN, IS WHAT'S KNOWN IN PRODUCT LIABILITY AS A DEFECTIVE PRODUCT. YOU CAN'T MAKE IT, YOU CAN'T CLAIM THAT IT'S SAFE AND IT'S NOT. AND THE PRODUCT INFORMATION MISREPRESENTED THAT HAZARD.9

Plaintiff’s second expert was Stephen Tse, Ph.D., a tenured Associate Professor in the

Department of Mechanical and Aerospace Engineering at Rutgers, the State University of New

7R. 966a 8R. 1701a-1702a; R. 1716a 9R. 1472a-1473a

12

Jersey. Dr. Tse assessed, experimentally and theoretically, the role of aerosols in causing

electrical breakdown and arc-over between gaps at thresholds (voltage and electric-field

strength) below that of still, ambient air. Based on his findings, he addressed the dangers

associated with using aerosols in general and specifically with respect to the CRC Electrical

Grade PF™ Precision Cleaner on and around high-voltage sources. At trial, Professor Tse

testified consistent with his report, in which he concluded:

The experimental results show that aerosols, whether conductive or non-conductive, can readily trigger arc-over at voltage breakdown thresholds below that of still air. With respect to Mr. Lewis’s accident, the incongruent Post-January 2005 CRC PF Precision Cleaner aerosol results should be dismissed, as the Cleaner formula is different from that used during the accident. The aerosol results for the Pre-January 2005 CRC PF Precision Cleaner display dramatic triggering of electric breakdown (as seen in the video and Fig. 8), consistent with that concluded by the accident investigation report and with those observed by the Vineland test team.10

In addition, Professor Tse opined:

Therefore, based on the experiments and the inferred physics involved, aerosols in general, and especially the Pre-January 2005 CRC PF Precision Cleaner, are extremely dangerous products when used on and around high-voltage sources.11

Finally, VMEU, as part of its internal investigation of this accident, conducted its own, in

house, testing of the product and produced VMEU’s High Voltage Test Report. In that report,

VMEU’s independent testing established that “a short duration application of the product upon

our energized test electrodes consistently caused an arc-over.” Its report concluded:

The experimentation of the CRC PF Precision Cleaner in the presence of high voltage and pressed across an electrical gap was conducted in the VMEU test area. The experiment confirmed that an arc-over can occur in the presence of the aerosol mist.12

10Dr. Tse Report, P-31, p. 9 11Dr. Tse Report, P-31, p. 10 12R. 687a

13

Defendant presented expert witness, Jerry Purswell, Ph.D., President of Purswell and

Purswell Engineering and Ergonomics of Colorado Springs, Colorado and a former Director,

Directorate of Safety Standards Programs for OSHA (June 1978-December 1980). Dr. Purswell

testified :

the material safety data sheet met the requirements in terms of the content that's supposed to be in a material safety data sheet, according to both the HAZ-COM standard, and the -- for what are called compliance directives that OSHA put out to further give people information about what is to be included in that standard. Those are called compliance directives A, B, C and D; and in each case, those requirements were met by the CRC material safety data sheet.13

Dr. Purswell disagreed with Ms. Devany with respect to the accuracy and completeness of the

MSDS, opining that he felt it to be accurate and complete.14 He testified that in his opinion there

was no need to place information in the MSDS about the risk of arc-over because such

information should be on the product label rather than the MSDS and also because he understood

such a risk to be non-existent.15 He opined that the direction on the can’s label that stated “For

personal safety, do not apply while equipment is energized” was sufficient to warn of the hazards

of using the product around electricity.16 Dr. Purswell opined that the product was neither

defective nor unreasonably dangerous.17

As far as an aerosol, that property of an aerosol that is useful in terms of how it comes out of the can in a spray, and so on, is so variable in terms of the droplet size, the way in which it is -- comes out of the can, and all of those kinds of things, it would make it impractical to ever have a standardized test that could be used in terms of doing dielectric strength.

He testified that:

18

13R. 1840a 14R. 1844a 15R. 1849a 16R. 1852a 17R. 1860a 18R. 1863a

14

Dr. Purswell opined that the VMEU crew, including Mr. Lewis did not perform the proper

insulation and isolation procedures immediately prior to this accident.19

Q. Now, you have written in your report that after reviewing everything -- and I'm going to include now, after watching all the testimony in this case -- you have concluded that the accident could not have happened the way the plaintiffs allege it did; correct?

Finally, Dr. Purswell

testified as follows with respect to the possibility of an arc-over through the aerosol spray

entering Mr. Lewis’ gloved hand via the gap created between the rubber sleeve and glove cuff:

A. That is correct. Q. Okay. Why not? A. There has never in any of the testimony been a proof that the spray could become conductive and enter his body in the way that it is alleged to have entered. I have, in all of the accidents, in dealing with the numerous types of those gloves, the sleeves, and there's another device called a hot stick that they also use to insulate themselves and do certain things, I've never known of anything that would be considered to be that kind of a path, of a spray, or whatever, to enter into his body through that fashion.20

He opined that Mr. Lewis could not have gotten the burn on the back of his hand if he was

wearing his glove and sleeve at the time of the accident.21 Finally, he opined that the CRC PF

Precision Cleaner had no role in causing Mr. Lewis’ accident and injuries.22

II. PROCEDURAL HISTORY

Appellant Sterling Lewis filed a Complaint on November 1, 2006 in the Court of

Common Pleas in Philadelphia County, essentially averring that the aerosol CRC Electrical

Grade PF™ Precision Cleaner was dangerous for its intended use, and that the label on the

aerosol can failed to warn of the product’s inherent dangers.23

19R. 1867a

Prior to trial, which began on

March 17, 2009, plaintiff withdrew all negligence claims, and the parties agreed that this case

20R. 1874a 21R. 1883a 22R. 1932a 23R. 1a

15

would be tried applying New Jersey substantive law; an Order confirming this agreement was

entered on March 20, 2009.24 Mr. Lewis also filed a Motion in Limine to preclude evidence of

negligence of the plaintiff, his employer, and/ or co-employees, consistent with New Jersey law

applicable to strict liability claims.25

Trial concluded with a jury verdict in favor of the defendant. The jury found that the

product was not defective as designed and did not lack adequate warnings or instructions to

make the product safe for its intended use. Post-Trial Motions were filed by Mr. Lewis

requesting a new trial or, in the alternative, judgment notwithstanding the verdict because, inter

alia, the trial court erred by (1) omitting relevant portions of the New Jersey Model Civil

Charges regarding products liability claims; (2) refusing to instruct the jury on a “manufacturing

defect” theory despite the product’s deviation from its intended design, and (3) admitting

evidence of comparative negligence and employer/co-employee negligence in a strict liability

claim arising in the workplace.

The trial court denied this Motion on March 20, 2009.

26

24R. 333a

The trial court denied Plaintiff’s Post-Trial Motions, and this

appeal follows.

25R. 50a 26R. 2322a.

16

SUMMARY OF ARGUMENT The record clearly reflects that the trial court did not adequately understand the

substantive New Jersey law of products liability and, consequently, erred both by (1) incorrectly

instructing the jury on New Jersey products liability law, and (2) admitting evidence of

comparative negligence, thereby abdicating its gatekeeper function and allowing the jury to

speculate on irrelevant matters. By so doing, the trial court committed highly prejudicial error,

and the only way such error may be corrected is by granting of a new trial.

The trial court’s jury charges on New Jersey products liability law were confusing at best.

The trial court erred by refusing to charge the jury on a “manufacturing defect,” after

determining that expert testimony was required to prove a manufacturing defect, where no such

requirement exists under New Jersey law. The trial court then, in charging on Design Defect,

omitted language from the model charge explaining the most critical element of the “risk-utility”

charge, i.e., the availability and actual existence of a substitute product.

The trial court also erroneously admitted evidence of plaintiff’s conduct and of his co-

workers and employer’s conduct in this strict products liability claim arising in the workplace,

contrary to well established New Jersey law. Here, where the defendant did not establish that the

accident and injuries sustained by plaintiff occurred solely as a result of the plaintiffs conduct (or

that of his co-workers or employer), independently of the product, such evidence is not

admissible, even on the issue of causation. The improper admission of this highly prejudicial,

irrelevant evidence undoubtedly cast a cloud over the entire trial process.

17

ARGUMENT I. THE TRIAL COURT’S JURY CHARGES ON NEW JERSEY PRODUCTS

LIABILITY LAW WERE ERRONEOUS BECAUSE OF CRITICAL OMISSIONS AND GENERALIZED CONFUSION

Error in a charge is sufficient ground for a new trial if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to a fundamental error. In reviewing a trial court's charge to the jury we must look to the charge in its entirety.

Underwood v. Wind, 2008 Pa. Super. 158, 954 A.2d 1199 (Pa. Super. 2008) (emphasis supplied)

A. The Trial Court Erred By Failing or Refusing To Instruct the Jury on “Manufacturing Defect”

Throughout the trial, plaintiff Sterling Lewis maintained that there were three potential

avenues by which a jury could find the product defective: (1) manufacturing defect; (2) design

defect; or, (3) inadequate warning defect27. Plaintiff’s counsel clarified his intention to argue that

there was a manufacturing defect at a sidebar on the record before making his Opening

Statement.28

Plaintiff submitted New Jersey Standard Jury Charge 5.40B, “Manufacturing Defect” as a

requested point for charge. The Court refused to charge the jury on Manufacturing Defect, ruling

that such a charge required expert testimony.

29 Plaintiff’s counsel stated at the charging

conference, “Your Honor, you don’t need expert testimony to prove a manufacturing defect.”30

27R. 300a; R. 2134a-2135a; R. 2302a

When the Court completed its charge to the jury, plaintiff’s counsel, at sidebar, objected to the

28R. 282a-283a 29R. 2134a-2135a 30R. 2134a

18

charge for failure to include “Manufacturing Defect.31

New Jersey Standard Jury Charge 5.40B states, in pertinent part

Thus, the issue now is whether the failure

to instruct the jury on the possibility that they could find a “manufacturing defect” was an error

of law. As outlined herein, the trial court’s ruling on this point was erroneous and was an abuse

of discretion.

32

5.40B MANUFACTURING DEFECT (Approved 10/98)

:

Let me give you some applicable concepts which deal with the claim of manufacturing defect, and then I will explain what the plaintiff must prove in order to win in a manufacturing defect case. 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 was unsafe and that unsafe aspect of the product was a substantial factor in causing plaintiff’s accident and/or injury. To establish his/her claim for a manufacturing defect, the plaintiff must prove all of the following elements by a preponderance (greater weight) of the credible evidence: 1. The [product] contained a manufacturing defect which made the product not reasonably safe. To determine if the [product] had a manufacturing defect, 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 there was no 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. Whether there was a manufacturing defect in the [product] 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. Second, 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. (emphasis supplied)

Nowhere in New Jersey products liability law or in New Jersey Standard Jury Charge 5.40B is there

a requirement for expert opinion to prove the existence of a manufacturing defect. To the contrary,

31R. 2302a 32R. 2389a

19

the law in New Jersey is clear that a jury may "infer that there was a defect by reasoning from the

circumstances and facts shown.” Corcoran v. Sears Roebuck Co., 312 N.J.Super. 117, 711 A.2d

371 (App.Div. 1998). Furthermore, in Myrlak v. Port Authority of New York and New Jersey,

157 N.J. 84, 723 A.2d 45 (N.J. 1999), the Court stated:

To prove both the existence of a defect and that the defect existed while the product was in the control of the manufacturer, a plaintiff may resort to direct evidence, such as the testimony of an expert who has examined the product, or, in the absence of such evidence, to circumstantial proof. Scanlon v. General Motors Corp., 65 N.J. 582, 591, 326 A.2d 673 (1974); Manieri, supra, 151 N.J.Super. at 430-31, 376 A.2d 1317. The law is "settled in this State that in 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, 332 A.2d 599 (1975). Proof that a product is not fit for its intended purposes "requires only proof ... that 'something was wrong' with the product." Scanlon, supra, 65 N.J. at 591, 326 A.2d 673. (emphasis supplied)

Myrlak, at 98.

As these cases establish, the trial Court erred by refusing to charge on Manufacturing

Defect, New Jersey Standard Charge 5.40B. In fact, although the defendant at the charging

conference argued that expert testimony was required for a manufacturing defect charge,33

The Model Instructions support plaintiff s proposition that expert testimony is not required to prove a manufacturing defect and that a jury may infer a manufacturing defect "from the circumstances and facts shown" or "from the evidence that there is no other cause for the accident other than a manufacturing defect.

it

ultimately conceded in its Brief in opposition to Plaintiff’s post trial motions that expert

testimony is not required under New Jersey Law:

34

Despite this concession, the trial Court nevertheless maintains the erroneous opinion that expert

testimony is required in such a situation.

33R. 2134a 34R. 2446a

20

The trial record contains sufficient evidence to support a manufacturing defect charge

because, according to defendant, the product, as designed, is to be non-conductive, even in its

aerosol state. In fact, defendant’s corporate designee, Adam Selisker, testified as follows:

Q. And now let's talk about the PF Precision Cleaner. Did CRC know whether or not electricity could arc through the mist of PF Precision Cleaner back to the can? A. Yes. We believe that it does not conduct electricity back to the can. Q. And that would be consistent with the statement on the label that says "non-conductive"? A. Yes. To some degree, yes.35

***

Q. … Now, what is it about the PF Precision Cleaner that leads you to say that it couldn't or wouldn't conduct electricity through the spray? A. The PF Precision Cleaner is made up of components that, in and of themselves, are basically non-conductive, or have very high dielectric strength, and, therefore, would not conduct electricity.36

The advertising material authored by CRC including the “Material Safety Data Sheet”

(MSDS) included statements that the product was non-conductive, nonflammable, and had a high

dielectric strength. These characteristics made the product appealing to Robert Napier P.E., the

engineer who selected the PF Precision Cleaner product for use by VMEU:

A. WE WERE LOOKING FOR A PRODUCT THAT WAS DESIGNED FOR CLEANING CONTACTS ON ELECTRICAL EQUIPMENT, ELECTRICAL GRADE PRODUCT. Q. WHAT WERE THE QUALITIES THAT YOU NEEDED TO HAVE? A. YES. IT WAS SUPPOSED TO HAVE NO FLASHPOINT, IT WAS SUPPOSED TO BE NONCOMBUSTIBLE, AND SUPPOSED TO HAVE HIGH DIELECTRIC QUALITIES AND ALSO LEAVE NO RESIDUE AND WORK WELL IN AN ELECTRICAL ENVIRONMENT.37

Despite CRC’s representations about the product, the record shows that the propellant in the

aerosol can used by Sterling Lewis was flammable. The record also shows that a different

formula for the CRC PF Precision Cleaner Aerosol Spray was used after 2005, using a non-

35R. 1716a 36R. 1718a 37R. 983a

21

flammable propellant.38

The trial court opined that because plaintiff did not present expert testimony on the

“formula” of the PF Precision Cleaner, consisting of a chemical analysis of the product to show that

it deviated from its design or formula, there was no evidence of a manufacturing defect. The trial

court ignored plaintiff’s argument, and Dr. Tse’s testimony that the aerosol PF Precision Cleaner

from the batch used by Mr. Lewis caused an arc-over

Thus, from the circumstantial proof, a jury could determine that the

condition of the PF Precision Cleaner as planned according to defendant’s design specifications or

performance standards differed from the condition of the product Sterling Lewis used at the time of

his injuries.

39

The record is replete with evidence from which the jury could have inferred that an arc-

over was initiated from the energized keeper through the CRC PF Precision Cleaner aerosol

spray and into plaintiff’s hand

, which is inconsistent with the

manufacturer’s specifications that the product was non-conductive and non-flammable. In a

situation such as this, where the product contained in the actual can evaporated through pinholes

created by the arc over, there would be no way for the plaintiff to perform the chemical analysis

testing the trial court appeared to require. New Jersey products liability law clearly does not require

the chemical analysis required by the trial court. Again, proof that a product is not fit for its

intended purposes "requires only proof ... that 'something was wrong' with the product." Scanlon,

supra, 65 N.J. at 591, 326 A.2d 673.

40

38Dr. Tse Report, P-31, p. 9-10

while plaintiff was using the aerosol spray to clean the center

phase keeper. Thus, as set forth in the Standard Jury Charge 5.40B, plaintiff presented evidence

39R. 1251a 40See testimony of Plaintiff, Sterling Lewis R. 453a-533a; eyewitness testimony of Kevin Sherman, R. 535a-616a; expert testimony of Steven Tse, Ph.D., R. 1140a-1363a; testimony of John Boyle, R. 616a-761a, R. 766a-814a; Michael Cavagnero, R. 904a-947a; and Harry Maloney, R. 816a-878, R. 881a-904a; as well as the Vineland Investigative Report, Exhibit P-15.

22

sufficient to prove that the CRC PF Precision Cleaner contained a manufacturing defect that made

the product not reasonably safe. The condition of the CRC PF Precision Cleaner as designed should

have been non-conductive according to defendant’s design specifications, performance standards,

and according to the defendant’s corporate designee. The record evidence further established that

the jury could have concluded that the product conducted electricity, thereby initiating the arc over.

Given this difference between design expectations and actual product performance in the field, the

jury should have been given the opportunity to decide if this crucial difference made the CRC PF

Precision Cleaner not reasonably safe for its intended or reasonably foreseeable uses, thereby

rendering it a manufacturing defect. By refusing to so charge the jury, this Court erred and the error

unquestionably prejudiced the plaintiff. The prejudice resulting from this error went directly to the

issue of product defect, and the error constitutes an abuse of discretion justifying the grant of a new

trial.

B. The Court’s Charge On Design Defect Was Confusing, Omitted Critical Language from the Risk Utility Analysis, and Included Inapplicable Factors

Because this case involves a choice of laws issue that was ultimately resolved by

agreement, the Court was required to charge the jury on New Jersey substantive products

liability law, which differs in several important areas from Pennsylvania law. Both parties

submitted Proposed Points for Charge under the New Jersey Products Liability Act. Plaintiff’s

Points for Charge included New Jersey Model Jury Charge 5.40D-3, “Design Defect - Legal

Tests of Product Defect.” As noted in New Jersey Model Charge 5.40D-1, “Note to Judge”, there

are three different methods by which a design defect may be established under New Jersey law:

Consumer Expectations Test, Reasonable Safer Design or Risk-Utility Analysis.

23

To properly analyze whether the trial court’s charge to the jury amounted to fundamental

error requiring a new trial, it is helpful to briefly review the schematic of the New Jersey Model

Jury Charges on design defect set forth in Charges 5.40D-1 through 5.40-D4.

Charge 5.40D-1 is not a charge at all; it is a “Note to Judge” discussing an overview of

the New Jersey law and jury charges on Design Defect. There, it is suggested that the Consumer

Expectation Test method of establishing a design defect is usually not charged and should only

be charged when the Risk-Utility Analysis is not appropriate. See NJ Model Charge 5.40D-1,

n.2. The Note continues with a discussion of the Risk Utility Analysis:

There the defect is established by proof that the product’s risks or dangers outweigh its usefulness and therefore, a reasonably careful manufacturer or seller would not have sold the product at all in the form in which it was sold. This involves a balancing or weighing of a number of factors known as risk/utility factors.

NJ Model Charge 5.40D-1.

The Note concludes with a discussion of the “Reasonable Safer Design” method of finding the

product defective:

In many or perhaps most cases the core issue is whether or not a Reasonable Safer Design would have reduced the risk or dangers of the product to the greatest extent possible consistent with the product’s continued utility, i.e., without impairing its usefulness and without making it too expensive for it to be reasonably marketable. In such cases, only the charge on reasonable safer design need be given. There, the plaintiff has only to show the existence of a safe and reasonably feasible alternative to the defendant’s product and that, in light of the omitted safer alternative, the product was not reasonably safe as manufactured or sold. Lewis v. American Cyanamid Co., 155 N.J. 544 (1998); Smith v. Keller Ladder Co., 275 N.J. Super. 280 (App. Div. 1994).

NJ Model Charge 5.40D-1.

When the trial court began its explanation of the law of Product Liability, it explained

that there were different methods to establish a design defect:

24

A DESIGN DEFECT MAY BE ESTABLISHED BY DIFFERENT METHODS. ONE METHOD IS CALLED THE CONSUMER EXPECTATION, WHICH IS NOT APPLICABLE HERE. AND ANOTHER METHOD IS APPLYING A REASONABLY SAFER DESIGN STANDARD OR THE RISK UTILITY ANALYSIS.41

Not only did the court combine the “Safer Design” and “Risk-Utility Analysis” standards,

the court went on to give a synopsis of the “Consumer Expectations” standard, which the judge

had just said did not apply:

THE DESIGN OF A PRODUCT IS OBVIOUSLY DEFECTIVE WHEN THERE ARE NO RELEVANT CONSIDERATIONS WHICH MAKE DANGER INHERENT IN THE PRODUCT, OR REASONABLY NECESSARY TO ITS FUNCTIONING. IN THIS RESPECT SUCH DEFECTS ARE AKIN TO A MANUFACTURING DEFECT CASES IN WHICH THE DEFECT IS PROVEN BY CIRCUMSTANTIAL EVIDENCE.42

While alone, this is not reversible error, it demonstrates the tenuous grasp the trial court had on

New Jersey Products Liability law, and when combined with the omission of critical language

from the “Risk-Utility Analysis,” the entire charge on products liability becomes fatally flawed.

New Jersey Model Charge 5.40D-3, “Legal Tests of Product Defect,” begins with a Note

to Judge:

Charge either (1) Consumer Expectations (in rare cases only), (2)(a) Reasonable Safer Design or (b) Risk-Utility Product Defect Analysis. If the Consumer Expectations charge is used, do not charge the jury on either Reasonable Safer Design or Risk-Utility Product Defect Analysis. Each theory is compatible with an inadequate warning theory, which may also be charged. Since Risk-Utility includes the Reasonable Safer Design element, use the additional risk-utility factors only if the case is unusual in that it requires one or more of these additional elements.

The trial court elected to charge the jury with Risk-Utility Product Defect Analysis. This

section begins with another Note to Judge:

This test of proving a design defect has been employed since before the passage of

41R. 2268a 42R. 2268a; See also NJ Model Jury Charge 5.40D-2

25

the Product Liability Act, N.J.S.A. 2A:58C- 1, et seq. In Cepeda v. Cumberland Engineering Co., 76 N.J. 152 (1978), overruled in part by Suter, supra, 81 N.J. 150, the Court listed the risk-utility factors developed by Dean John W. Wade, in his article On the Nature of Strict Tort Liability For Products, 44 Miss. L.J. 825, 837-38 (1973). Those factors have been the core of the product defect instructions since then. USE ONLY THOSE FACTORS AS ARE CALLED FOR BY THE FACTS OF THE CASE BEFORE YOU. See, for example, Roberts v. Rich Foods, 139 N.J. 365, 376-377 (1994). In Jurado v. Western Gear Works, 131 N.J. 375, 385 (1993) the Court explained:

The decision whether a product is defective because it is “not reasonably fit, suitable and safe” for its intended purposes reflects a policy judgment under a Risk-Utility Analysis. O’Brien v. Muskin Corp., supra, 94 N.J. at 181. That analysis seeks to determine whether a particular product creates a risk of harm that outweighs its usefulness... Risk-Utility Analysis is especially appropriate when a product may function satisfactorily under one set of circumstances and yet, because of a possible design defect, present an unreasonable risk of injury to the user in other situations.

In the opinion of the drafters of this Model Civil Charge either the Risk-Utility Analysis charge or the Reasonable Safer Design charge may properly be employed in a design defect case. The Reasonable Safer Design Test has been approved in Lewis v. American Cyanamid Co., 155 N.J. 544 (1998). However, the language of the Reasonable Safer Design charge has not been the subject of review by the Supreme Court of New Jersey. The two charges focus on the same principles.

The Model Risk-Utility Analysis charge begins:

Plaintiff claims that this [product] was designed in a defective manner. To establish this claim plaintiff must prove the following elements by the preponderance (greater weight) of the credible evidence that: a. The product was designed in a defective manner. A design defect is established by proof that the risks or dangers of this [product] as designed outweigh its usefulness and, therefore, that a reasonably careful manufacturer or supplier would not have sold the [product] at all in the form in which it was sold. A [product] may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the [product’s] continued utility. In deciding whether the dangers of the [product] outweigh its usefulness and, therefore that a reasonably careful [manufacturer, seller or distributor] would not have [manufactured, sold or distributed] the [product] at all in the form in which it was [manufactured, sold or distributed], you must determine whether the defendant, who is supposed to know the harms the product would cause, acted in a reasonably careful manner in manufacturing/selling the [product]. To reach this conclusion you must consider and weigh the following factors: [Only those risk-utility factors that are appropriate for the jury to consider in the particular case

26

should be included in the charge.] 1) The usefulness and benefit of the [product], as it was designed, to the user and the public as a whole. Was there a need that this product be designed in this specific way? 2) The safety aspects of the [product], that is, the likelihood or risk that the [product] as designed would cause injury and the probable seriousness of any injury which could have or should have been anticipated through the use of the [product]. 3) Was a substitute design for this [product] feasible and practical? Was there available a substitute [product] at the time of manufacture, sale or distribution which would meet the same needs or perform the same functions as this product without containing the alleged defect? In other words, the existence of a more safely designed [product] diminishes the justification for using a challenged design in either the manufacture, sale or distribution of a particular product. 4) The ability of the [defendant(s)] to eliminate the unsafe character of the [product] without impairing its usefulness or making it too expensive to maintain its utility. 5) The ability of foreseeable users to avoid danger by the exercise of care in the use of the [product]. 6) The foreseeable user’s awareness of the dangers inherent in the [product] and their avoidability, because of general public knowledge of the obvious condition of the [product], or of the existence of suitable warnings or instructions. In applying the risk-utility factors, remember that a product may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the [product’s] continued utility, that is, without impairing its usefulness and without making it too expensive for it to be reasonably marketable.

NJ Model Charge 5.40D-3.

The trial court’s actual charge, although similar, omitted the critical explanation of Factor

3 above:

THE PLAINTIFF CLAIMS THAT THE PRODUCT WAS DESIGNED IN A DEFECTIVE MANNER. TO ESTABLISH THIS CLAIM, THE PLAINTIFF MUST PROVE THE FOLLOWING ELEMENTS BY A PREPONDERANCE OF THE EVIDENCE. CREDIBLE EVIDENCE. A DESIGN DEFECT IS ESTABLISHED BY PROOF THAT THE RISK OR DANGERS OF THE PRODUCT AS DESIGNED OUTWEIGHS ITS USEFULNESS AND, THEREFORE, THAT A REASONABLY CAREFUL MANUFACTURER WOULD NOT HAVE SOLD THE PRODUCT AT ALL IN THE FORM IN WHICH IT WAS SOLD. A PRODUCT MAY NOT BE CONSIDERED REASONABLY SAFE UNLESS THE RISKS HAVE BEEN REDUCED TO THE GREATEST EXTENT POSSIBLE CONSISTENT WITH THE PRODUCT'S CONTINUED UTILITY.

27

IN DECIDING WHETHER THE DANGERS OF THE PRODUCT OUTWEIGH ITS USEFULNESS AND, THEREFORE, THAT A REASONABLY CAREFUL MANUFACTURER WOULD NOT HAVE MANUFACTURED, SOLD OR DISTRIBUTED THE PRODUCT AT ALL IN THE FORM IT WHICH IT WAS MANUFACTURED AND DISTRIBUTED. YOU MUST DETERMINE WHETHER THE DEFENDANT, WHO IS SUPPOSED TO KNOW THE HARMS THE PRODUCT WOULD CAUSE, ACTED IN A REASONABLY CAREFUL MANNER IN MANUFACTURING AND SELLING THE PRODUCT. TO REACH THIS CONCLUSION YOU MUST CONSIDER AND WEIGH THE FOLLOWING FACTORS: ONE, THE USEFULNESS AND BENEFIT OF THE PRODUCT AS IT WAS DESIGNED TO THE USER AND THE PUBLIC AS A WHOLE. WAS THERE A NEED THAT THIS PRODUCT BE DESIGNED IN THIS SPECIFIC MANNER? TWO, THE SAFETY ASPECTS OF THE PRODUCT. THAT IS, THE LIKELIHOOD OR RISK THAT THE PRODUCT AS DESIGNED WOULD CAUSE INJURIES AND THE PROBABLE SERIOUSNESS OF ANY INJURY WHICH COULD HAVE OR SHOULD HAVE BEEN ANTICIPATED THROUGH THE USE OF THE PRODUCT. THREE, WAS THE SUBSTITUTE DESIGN FOR THIS PRODUCT FEASIBLE AND PRACTICAL? FOUR, THE ABILITY OF THE DEFENDANT TO ELIMINATE THE UNSAFE CHARACTER OF THE PRODUCT WITHOUT IMPAIRING ITS USEFULNESS OR MAKING IT TOO EXPENSIVE TO MAINTAIN ITS UTILITY. FIVE, THE ABILITY OF FORESEEABLE USES TO AVOID DANGER BY THE EXERCISE OF CARE AND USE OF THE PRODUCT. SIX, THE FORESEEABLE USER'S AWARENESS OF THE DANGER INHERENT IN THE PRODUCT AND THEIR AVOIDABILITY BECAUSE OF THE GENERAL PUBLIC'S KNOWLEDGE OF THE OBVIOUS CONDITION OF THE PRODUCT OR OF THE EXISTENCE OF SUITABLE WARNINGS OR INSTRUCTIONS. IN APPLYING THE RISK UTILITY FACTORS, REMEMBER THAT A PRODUCT MAY NOT BE CONSIDERED REASONABLY SAFE UNLESS THE RISKS HAVE BEEN REDUCED TO THE GREATEST EXTENT POSSIBLE CONSISTENT WITH THE PRODUCT'S CONTINUED UTILITY. THAT IS, WITHOUT IMPAIRING ITS USEFULNESS AND WITHOUT MAKING IT TOO EXPENSIVE FOR IT TO BE REASONABLY MARKETABLE.43

[emphasis added]

Plaintiff’s counsel objected to this omission after the charges were read to the jury, but the trial

court did not correct the omission.44

43R. 2280a-2283a

By simply asking, “Was the substitute design for this

product feasible and practical?” the trial court omitted the following language contained in the

Model Charge:

44R. 2304a-2305a

28

Was there available a substitute [product] at the time of manufacture, sale or distribution which would meet the same needs or perform the same functions as this product without containing the alleged defect? In other words, the existence of a more safely designed [product] diminishes the justification for using a challenged design in either the manufacture, sale or distribution of a particular product. [emphasis added]

The omission of this language prejudiced the plaintiff. The third element of the “Risk-

Utility Analysis” is the one that corresponds most closely to the core issue in most products

liability cases: Whether there was a safer product design that would reduce the danger of the

product without impairing its usefulness or making it prohibitively expensive. Furthermore, a

complete reading of this instruction was critical to correctly explain the design defect issues to

the jury in light of the trial evidence establishing that the defendant, both before and after the

date of manufacture and sale of the subject can of the product, used different recipes (formulas)

for this product, one that induced arc-over events and one that did not.45

Q. A COUPLE YEARS BEFORE THIS ACCIDENT, WHAT WAS THE PROPELLENT THAT WAS IN PF PRECISION CLEANER? A. THE PROPELLENT IN THE PF BEFORE THE ACCIDENT WAS 134A. Q. AND AT SOME POINT BEFORE THE ACCIDENT DID YOU SWITCH THAT PROPELLENT TO 152? A. YES, WE DID. Q. WHY? A. IN AND AROUND THAT TIME, PROBABLY 2000, EARLY 2000, THERE WAS A 134 A SHORTAGE. THE SUPPLY WAS GOING AWAY. WE WERE HAVING A HARD TIME MAKING SURE THAT WE COULD HAVE A SUSTAINABLE SUPPLY. 134 A, FOR YOUR INFORMATION, IS THE SAME REFRIGERANT THAT THEY USE IN AIR CONDITIONERS FOR CARS. IT WAS IN VERY HIGH DEMAND. WE COULD NOT BE ASSURED THAT WE WOULD HAVE A SUPPLY. SO WE SWITCHED TO AN ALTERNATE PROPELLENT, WHICH WAS THE 152 A.

Adam Selisker,

corporate designee for CRC Industries testified:

46

45R. 2104a-2105a

46R. 2055a-2056a

29

Mr. Selisker went on to explain that the 152 A, “pre-2004” propellant, was changed back to the

134 A, “post-2004” propellant:

Q. NOW AT SOME POINT AFTER THIS ACCIDENT YOU THEN SWITCHED AND WENT BACK TO THE 134 A FOR PRECISION CLEANER? A. YEAH. WE SWITCHED A FEW OF OUR PRODUCTS BACK TO 134 A AND WE KEPT SOME OF OUR PRODUCTS AT 152 A.47

Plaintiff’s expert, Professor Tse, testified that when he performed his tests on the

products containing both recipes, the recipe of the product used by plaintiff on the date of his

accident (152A propellant) “induced the arc over event,”

48

The trial court’s opinion states that the risk-utility factors were charged to the jury

“nearly verbatim” but does not address why the explanatory section of the third element was

omitted. Instead, the trial court simply states that “the omitted paragraph of the standard model

charge would have added nothing to the jury's calculus, since it merely reiterates and expands

upon the third element of the risk-utility analysis.”

whereas the recipe with the different

propellant (134A propellant) never induced an arc over event under the exact same conditions.

49

To the contrary, the omission of such a critical portion of a charge central to the issues in

this case, that was never corrected or clarified, is the type of error that warrants a new trial. The

omitted language is not a reiteration or expansion of the third element of the risk utility analysis.

It is the third element. The third element consists of every word contained in the model jury

charge, no more and no less. In a case such as this, where there existed not only in theory but in

application and actual existence, a safer product manufactured by the defendant, the omission of

this explanatory section was fundamental error.

47R. 2057a 48R. 1251a-1252a 49R. 2525a, See also Appendix.

30

The language the trial court omitted rendered the third element of the “Risk-Utility

Analysis” essentially meaningless. No context was provided for what “feasible” and “practical”

meant. The drafters of the New Jersey Model Jury Charges obviously felt such language

necessary or it would not be there. The three different design defect charges discussed in the

New Jersey Model Jury Charges clearly confused the trial court, and that confusion was passed

on to the jury. Thus, it was fundamental error to omit the above discussed language of the model

charge. As a result, the “Risk-Utility Analysis” method of determining whether a design defect

existed in the subject product was never made clear to the jury. In light of this, a new trial is

warranted.

Furthermore, the court’s charge on Factors 5 and 6 was erroneous. As the Notes to the

“Risk Utility Analysis” charge highlight, only the factors called for by the facts in each particular

case should be charged to the jury. This warning is again included in the actual charge where the

drafters noted “[c]onsideration should be given whether Factors No. 5 and 6 should be charged

where comparative negligence is not a defense” NJ Model Charge 5.40D-3 FN 12. As discussed

above, comparative negligence was not a defense in this matter, because there was insufficient

evidence that plaintiff’s conduct was the sole proximate cause of his injuries.

The court’s charge remains erroneous even if a proximate causation analysis were

appropriate for the jury, because the court did not limit the jury’s use of plaintiff’s alleged

negligence. In Grier v. Cochran, 308 N.J. Super. 308, 705 A.2d 1262 (Appellate Div. 1998), the

court discussed how a trial court must be particularly careful to instruct the jury that the

plaintiff’s conduct is irrelevant to the question of whether the product is defective and may only

be considered after the jury determines whether the product was defective, stating:

Whether the product is defective in its design focuses on the condition of the product as it left the control of the manufacturer. Accordingly, the conduct of an

31

injured plaintiff, which occurs at some time after that reference point, is irrelevant in determining design defect. Johansen v. Makita USA, Inc., 128 N.J. 86, 101, 607 A.2d 637 (1992). So long as the jury is properly instructed that the use of plaintiff's conduct in its deliberations is limited to the proximate causation analysis, there is no impediment to the consideration of the fifth or sixth risk/utility factors in determining whether a product is defective in its design, which focus on the average user. Id. at 100-01, 607 A.2d 637; Ladner v. Mercedes-Benz of North America Inc., 266 N.J. Super. 481, 493-94, 630 A.2d 308 (App.Div.1993), certif. denied, 135 N.J. 302, 639 A.2d 301 (1994). n5 In this case, the trial judge was careful in his instruction to the jury that plaintiff's conduct was irrelevant to the question of whether the product was defective, and that plaintiff's conduct was to be considered only on the issue of proximate cause; a question the jury was not to address until after it decided that the product was defective. [Emphasis supplied.]

Grier at 324-25.

No such clarification was ever made by the trial court in this case. Additionally, in Johansen v.

Makita U.S.A., 128 N.J. 86, 607 A.2d 637 (App. Div. 1992) the Appellate Division held that the

trial court committed plain error by failing to instruct the jury on the limited purpose for which it

could consider evidence of the plaintiff’s negligence. The court determined that the absence of

this limiting instruction had the capacity to mislead the jury in the application of the risk-utility

factors. Similarly here, because the charges given by the Court on the issues of product defect

were intertwined with issues of misuse and comparative negligence, the jury charge on product

defect, when viewed as a whole, was so misleading, confusing and contrary to the products

liability law of New Jersey that the prejudice to plaintiff is obvious. Thus, a new trial is required.

II. THE TRIAL COURT ERRED BY ABDICATING ITS ROLE OF GATEKEEPER AND PERMITTING IRRELEVANT AND PREJUDICIAL EVIDENCE OF ALLEGED NEGLIGENCE OF THE PLAINTIFF, HIS EMPLOYER AND/OR HIS CO-EMPLOYEES TO BE HEARD AND CONSIDERED BY THE JURY

The trial court erred by admitting evidence of negligence absent proof that plaintiff’s

conduct or his employer’s or co-employees conduct was the sole proximate cause of the

plaintiff’s injury. In this strict liability claim, where the plaintiff was injured while performing

his job pursuant to a Work Order issued by his employer – a Work Order directing him to use the

32

alleged defective product, New Jersey Law directs that comparative negligence does not apply.

Further, the trial court admitted evidence of Mr. Lewis’ co-employee’s and employer’s

negligence where there was no showing that any such action was sufficient to exculpate CRC

from liability. Plaintiff’s counsel filed a pre-trial Motion in Limine to preclude such evidence,

which was denied by the trial court. Counsel again objected at the charging conference to all

charges on the issues of comparative negligence, misuse and assumption of risk.50 The trial court

thereafter instructed the jury on all of these potential defenses.51 After the charge was given, and

before dismissal of the jury, plaintiff’s counsel again noted his objections to these charges.52

A. The Trial Court Erred by Admitting Evidence of Comparative Negligence and Charging the Jury on Plaintiff’s Comparative Negligence in a Strict Liability Claim for Workplace Injuries

The

trial court never instructed the jury (1) that comparative negligence did not apply or (2) that the

relevance of evidence of negligence is extremely limited in a strict liability case.

1. New Jersey Law Precludes the Admissibility of Comparative

Negligence in Workplace Injuries New Jersey’s Comparative Negligence Act, N.J. Stat. § 2A:15-5.1 et seq.., applies to

product liability actions generally:

… we construe the Comparative Negligence Act to require that the plaintiff's negligence must not be "greater than the negligence [or fault due to strict liability] of the person against whom recovery is sought, but any damages sustained shall be diminished by the percentage sustained of negligence attributable to the person recovering." N.J.S.A. 2A:15-5.1. The trier of fact should ascertain the extent to which plaintiff's negligent conduct was a proximate cause of the accident. Since it is plaintiff's negligent conduct which may cause diminution or foreclosure of his recovery, ascertainment of the extent to which that conduct was a proximate cause of the accident should be determined by the trier of fact.

50R. 2180a 51R. 2209a, R. 2210a, R.2222a, R.2202a-2203a, R.2213a, R.2214a, R. 2215a, R.2225a-2226a, R.2229a 52R. 2301a-2306a

33

Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150, 162-163, 406 A.2d 140, 146 (1979)

(footnotes omitted).

Comparative negligence does not apply, however, when a plaintiff is injured in the

workplace:

We see no reason to depart from Bexiga's [Bexiga v. Havir Mfg. Corp., 60 N.J. 402, 290 A.2d 281 (1972)] elimination of contributory negligence where an employee is injured due to a defect (whether design or otherwise) in an industrial accident while using a machine for its intended or foreseeable purposes. The defendant manufacturer should not be permitted to escape from the breach of its duty to an employee while carrying out his assigned task under these circumstances when observance of that duty would have prevented the very accident which occurred.

Suter at 168, 148. Suter involved a workplace injury in which plaintiff’s hand was caught in the

cylinders of an industrial sheet metal rolling machine. The trial court charged the jury on

plaintiff’s comparative negligence and the jury found the plaintiff negligent. The plaintiff

appealed and the Appellate Division held that the defense of contributory negligence was

unavailable. The New Jersey Supreme Court affirmed, holding, inter alia, that contributory

negligence is not a viable defense in a design defect case when a plaintiff is injured when (1)

using the machine in an industrial setting in its intended or reasonably foreseeable manner, and

(2) the injury would not have occurred in the absence of that defect.

After the enactment of the Products Liability Act in 1987, New Jersey courts have

repeatedly and consistently held that workers injured on the job remain protected from the

defense of comparative negligence in product liability actions under the Act. See, e.g., Coffman

v. Keene Corp., 133 N.J. 581, 605, 628 A.2d 710 (1993); Johansen v. Makita U.S.A., 128 N.J.

86, 94, 607 A.2d 637 (1992); Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 182, 751 A.2d 564

(App. Div. 1999), aff'd 164 N.J. 1, 751 A.2d 518 (2000); Congiusti v. Ingersoll-Rand Co., Inc.,

306 N.J. Super. 126, 134, 703 A.2d 340 (App. Div. 1997); Fabian v. The Minster Mach. Co., 258

34

N.J. Super. 261, 278, 609 A.2d 487 (App. Div.), certif. denied, 130 N.J. 598, 617 A.2d 1220

(1992); Ramos v. Silent Hoist and Crane Co., 256 N.J. Super. 467, 478, 607 A.2d 667 (App. Div.

1992).

In Coffman, the Court discussed the longstanding policy that a plaintiff injured in the

workplace as the result of a dangerous product should not be characterized as someone who has

voluntarily and unreasonably encountered a known danger:

We have consistently emphasized that a plaintiff injured in the workplace as a result of a known dangerous product cannot and should not be characterized as someone who has voluntarily and unreasonably encountered a known danger. A plaintiff who uses or is exposed to a defective product in the course of his or her employment may not be able to exercise meaningful choice with respect to confronting the risk of injury posed by the product.

In Bexiga v. Havir, 60 N.J. 402, 412, 290 A.2d 281 (1972), we determined that an employee engaged in assigned work on a plant or factory machine often has no meaningful choice with respect to his or her use of the machine. Recognizing that employees often do not freely opt to work with hazardous products, we stated in Suter, supra, 81 N.J. at 167, 406 A.2d 140, that "the law does not accept the employee's ability to take care of himself as an adequate safeguard of interests which society seeks to protect." We most recently observed that an employee really may have no choice but to continue to work with a defective and unsafe product. Johansen, supra, 128 N.J. at 94, 607 A.2d 637; see also Green v. Sterling Extruder Corp., 95 N.J. 263, 271, 471 A.2d 15 (1984) (noting that "[a] factory worker pursuing his assigned task on a plant machine has no real choice"); accord Crumb v. Black & Decker (U.S., Inc.), 204 N.J.Super. 521, 527-28, 499 A.2d 530 (App.Div.1985) (holding that for Suter assigned-task doctrine to apply, employee must be compelled to use defective product).

It is unreasonable to assume that an employee would leave his or her position once apprised of certain safety hazards when such hazards are not rectified by the employer. Green, supra, 95 N.J. at 271, 471 A.2d 15 ("The practicalities of the workaday world are such that in the vast majority of cases, the employee works 'as is' or he is without a job"). We have thus rejected the application of contributory negligence when an employee [*606] was injured in the workplace during an industrial accident while using an unsafe machine for its intended purposes. See Johansen, supra, 128 N.J. at 94, 607 A.2d 637. Under those circumstances, "the interests of justice dictated that contributory negligence be unavailable as a defense to . . . strict liability claims." Bexiga, supra, 60 N.J. at 412, 290 A.2d 281; see Suter, supra, 81 N.J. at 167, 406 A.2d 140 (overruling Cepeda, supra, 76 N.J. at 188, 386 A.2d 816 (holding that contributory negligence available when indication of unsafeness of machine was known to employee)). [Emphasis supplied.]

35

Coffman v. Keene Corp., 133 N.J. 581, 605-606, 628 A.2d 710, 722 (1993).

The doctrine of employee non-liability for comparative fault stated in Suter, supra, does

not apply when a defendant can prove that the plaintiff’s negligence, or the employer or other

entity’s negligence – rather than the product defect – constitutes the sole proximate cause of the

injury or an intervening superseding cause. A jury may deny recovery based on a plaintiff’s

negligent conduct only if it finds that the plaintiff was entirely responsible for the accident, but

not if it finds both plaintiff and manufacturer both partially responsible. Johansen v. Makita

U.S.A., 128 N.J. 86, 102, 607 A.2d 637 (1992).

When the product defect constitutes a contributing or concurrent proximate cause,

however, the manufacturer remains liable As the court in Butler v. PPG Industries, Inc., 201

N.J.Super. 558, 493 A.2d 619 (App. Div.), certif. denied, 102 N.J. 298, 508 A.2d 186 (1985)

stated:

Where the original defect, although not the sole cause of the accident, constitutes a contributing or concurrent proximate cause in conjunction with the subsequent conduct of the purchaser, the manufacturer remains liable. Brown v. United States Stove Co., 98 N.J. 155, 171 (1984). In order to exculpate itself, the manufacturer must prove an intervening superseding cause or perhaps some other sole proximate cause of the injury. Ibid. Where, as here, the allegation is that the purchaser failed to take reasonable steps to protect against the defect created by the manufacturer, a jury will not be permitted to infer that the purchaser's negligence was the exclusive proximate cause of the accident. See Johnson, 97 N.J. at 95. But see Menna v. Johns-Manville Corp. 585 F.Supp. 1178 (D.N.J.1984). [Emphasis supplied.]

Butler at 564. In Butler, the court determined that the evidence of the employer’s alleged

negligence, including inadequate training, and inadequate enforcement of safety rules, was

insufficient to exculpate the manufacturer and therefore the evidence was properly excluded.

Butler reflects the strong public policy disfavoring admitting evidence of an employer’s

negligence. In Olencki v. Mead Chem. Co., 209 N.J. Super. 456, 507 A.2d 803, 806 (Law Div.

36

1986) the court cited Butler in its summary of the reasoning behind excluding evidence of

employer negligence:

The Supreme Court in Johnson [Johnson v. Salem Corp., 97 N.J. 78 (1984)] and the Appellate Division in Butler [Butler, supra] held that in a strict liability action brought against a manufacturer of a product for injuries sustained by an employee of a purchaser in using the product, evidence of the employer's negligence in failing to protect the employee from injury in the use of the product is inadmissible. The Appellate Division's reasoning was twofold. First, public policy was said to bar such evidence to insure that defective products are not placed in the channels of trade. To promote this policy a manufacturer has a duty to take "feasible steps to render his products safe and the manufacturer may not rely on the haphazard conduct of the ultimate purchaser to remedy or protect against defects for which he is responsible." Butler, supra, 201 N.J. Super. at 563. Second, a jury will not be permitted to infer that the employer's negligence was the exclusive proximate cause of the accident. Id. at 564. [Emphasis supplied.]

Olencki at 462, 803. The plaintiff in Olencki was injured when an infrared lamp ignited the

contents of a bottle of developer that had fallen from the rack after he replaced it. The plaintiff

sought to exclude evidence of the employer’s conduct, including evidence concerning alleged

failure to instruct employees properly; alleged failure to conduct safety seminars; alleged failure

to recognize the risk of injury, and alleged failure to follow safety standards concerning

hazardous materials. The court precluded the defendants from offering evidence regarding the

alleged negligence of the employer with respect to plaintiff’s strict liability claims. Olencki at

464-465, 803.

Consequently, the trial court herein erred by initially admitting evidence of plaintiff’s

negligence and employer/co-employee negligence in a strict liability claim arising from a

workplace injury. Having permitted this evidence to come in, the trial court further erred by

failing to appropriately limit the jury’s consideration of this evidence by specifying that a

manufacturer is only exculpated if the plaintiff, co-employee, or employer’s conduct was the sole

proximate cause of the accident or if the conduct is an intervening, superseding cause.

37

2. The Court Erred By Denying Plaintiff’s Pre-Trial Motion In Limine To Preclude Defendant From Introducing Evidence Concerning The Alleged Negligence Of The Plaintiff, His Employer And/Or His Co-Employees

The trial court erred by admitting evidence of plaintiff Sterling Lewis’ alleged

contributory negligence which, according to New Jersey law, must be excluded in workplace

settings. By doing so, the trial court failed to perform its role as gatekeeper of the evidence

relevant for the jury to hear. The improper admission of such highly prejudicial, irrelevant

evidence undoubtedly cast a cloud over the entire trial process, allowing defendant to repeatedly

throughout the trial, point to the “empty chair,” i.e., VMEU, as being responsible for causing Mr.

Lewis’ injuries. Prior to trial, Plaintiff filed a Motion in Limine seeking to preclude the

defendant from introducing evidence concerning any alleged negligence by plaintiff, his

employer and/or his co-employees in this strict products liability case. The Court entertained oral

argument on the Motion on March 16, 2009, prior to swearing in the jury. After oral argument,

the Court denied the Motion by Order dated March 16, 2009.

This ruling was incorrect because the controlling New Jersey cases hold that before

admission of such evidence in a products liability case (especially where an employee is injured

in the course and scope of performing his job), a defendant must have some proof that the

specific alleged negligent act(s) solely, exclusively and independently caused this accident.

See Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, (App.Div. 1997).

When referring to the “independent” and “sole” proximate cause of an accident, New

Jersey Courts specify that such cause must be the “exclusive” cause before being admissible to

exonerate a products liability defendant from responsibility for a defective product. See, e.g.,

Butler v. PPG Industries Inc., 201 N.J. Super 558, 493 A.2d 619 (App.Div. 1985). In Butler, the

court stated:

38

Where the original defect, although not the sole cause of the accident, constitutes a contributing or concurrent proximate cause in conjunction with the subsequent conduct of the purchaser, the manufacturer remains liable. Brown v. United States Stove Co., 98 N.J. 155, 171 (1984). In order to exculpate itself, the manufacturer must prove an intervening superseding cause or perhaps some other sole proximate cause of the injury. Ibid. Where, as here, the allegation is that the purchaser failed to take reasonable steps to protect against the defect created by the manufacturer, a jury will not be permitted to infer that the purchaser's negligence was the exclusive proximate cause of the accident. See Johnson, 97 N.J. at 95. But see Menna v. Johns-Manville Corp. 585 F.Supp. 1178 (D.N.J.1984). [Emphasis supplied.]

Butler at 564, 622. There is simply no such sole and independent act in this case. Defendant’s

repeated assertions that if a particular alleged act of negligence hadn’t occurred, “this accident

could not have happened,”53

A careful review of the record and the New Jersey case law, which the Court applied

here, compels the conclusion that the Court misinterpreted and misapplied New Jersey law on

this issue. The trial court judge’s opinion included a discussion of the court’s understanding of

New Jersey law on the issue of contributory/comparative negligence:

does not establish that any such alleged act constitutes an

independent, exclusive and sole cause of the accident. To the contrary, such assertions establish

only that each such act was a contributing cause but not the “exclusive,” “independent” and

“sole” cause.

This trial judge opines that Plaintiff's argument is incorrect as he cites no legal support for his proposition. This trial judge has not found any New Jersey law which requires that a defendant-manufacturer must prove, as a matter of law, that the plaintiff's fault was the sole, exclusive and independent cause of the accident before the evidence becomes admissible at trial. To the contrary, it follows from Navarro that a defendant is permitted to present evidence of the plaintiff's conduct, which the jury may utilize to find whether the plaintiff's conduct constituted the sole proximate cause of his injuries or, alternatively, apportion comparative negligence (assuming for an injury sustained in the work place, that the plaintiff had a meaningful choice to engage in the relevant conduct). Accordingly, this trial judge finds that no error was committed54

53R. 1570a, R. 1576a, R. 603a

54R. 2509a

39

The Court cited Navarro v. George Koch & Sons, 211 N.J. Super 558, 580, 512 A.2d 507 (App.

Div. 1986), which addressed whether using an oven manufactured by the defendant to bake

flammable and volatile substances was a foreseeable use, so that the absence of adequate safety

devices made the product defectively designed. There was also an issue of “substantial

alteration” by the plaintiff’s employer. Thus, the focus of Navarro was “whether the original

defect was a sole, contributing or concurrent cause of the injury, or whether the alteration

operated as the sole, superseding intervening cause.” Navarro at 580. Navarro addressed the

propriety of jury instructions rather than the question of the admissibility of evidence.

In Butler, supra, the court precluded evidence of the employer’s alleged negligence from

being presented to the jury because it could not exculpate the employer:

The fact that Cellofilm may have failed, negligently or otherwise, to take steps to remedy the absence of warnings or to protect Butler from injury resulting therefrom would not exculpate PPG. The public interest in assuring that defective products are not placed into the channels of trade imposes a duty on the manufacturer to take feasible steps to render his product safe; the manufacturer may not rely on "the haphazard conduct of the ultimate purchaser" to remedy or protect against defects for which he is responsible. For similar reasons, the proffer that Cellofilm's alleged negligence was a proximate cause of the accident would not have exculpated PPG. Where the original defect, although not the sole cause of the accident, constitutes a contributing or concurrent proximate cause in conjunction with the subsequent conduct of the purchaser, the manufacturer remains liable.

*** … In the present case, as in Johnson, the alleged negligence of Cellofilm could not exculpate PPG and there was accordingly no warrant for the jury to be presented with those proofs.

Butler 493 A.2d at 621-622 (internal citations omitted). Thus, Butler clearly demonstrates that it

is appropriate for the trial court to determine what is and is not appropriate evidence for a jury’s

consideration.

40

In Olencki, supra, the trial court addressed a situation similar to Navarro, in which there

were allegations of a modification of the product. However, plaintiff successfully sought to

exclude evidence of the employer’s conduct unrelated to the alteration of the machine. The court

determined that this evidence was not relevant and was inadmissible:

The Supreme Court in Johnson and the Appellate Division in Butler held that in a strict liability action brought against a manufacturer of a product for injuries sustained by an employee of a purchaser in using the product, evidence of the employer's negligence in failing to protect the employee from injury in the use of the product is inadmissible. The Appellate Division's reasoning was twofold. First, public policy was said to bar such evidence to insure that defective products are not placed in the channels of trade. To promote this policy a manufacturer has a duty to take "feasible steps to render his products safe and the manufacturer may not rely on the haphazard conduct of the ultimate purchaser to remedy or protect against defects for which he is responsible." Butler, supra, 201 N.J. Super. at 563. Second, a jury will not be permitted to infer that the employer's negligence was the exclusive proximate cause of the accident. Id. at 564. Thus, Olencki's motion is granted with respect to those counts of his complaint which allege either design defects in the machine or in the products supplied by GCA, Mead and Fisher. Because strict liability principles are fully applicable in failure-to-warn cases, Beshada v. Johns-Manville Products Corp., 90 N.J. 191 (1982), plaintiff's motion is also granted as to those counts of the complaint which sound in strict liability for failure to warn. [Emphasis supplied.]

Olencki at 462, 803. It is noted that the Olencki court’s ruling also permitted evidence of

employer negligence to be presented in defense to the plaintiff’s negligence claims. Olencki at

462-463. In the case before this Honorable Court, the negligence claims were withdrawn and

therefore evidence that would be admissible under a negligence standard is inadmissible under

the strict liability standard applicable to this case.

Olencki illustrates the appropriate role of the trial court. The court distinguished relevant

information regarding the strict liability claims, e.g. the conduct relating to the modification of

the product, from irrelevant information, e.g. allegations of failure to instruct employees

properly, failure to recognize the risk of injury, failure to follow safety standards. In this case, the

41

trial court made no such analysis or determinations and in fact permitted days of testimony on

the employer’s conduct.

The record is clear that the error in admitting irrelevant evidence of plaintiff’s conduct

and employer and co-employee conduct was not harmless; rather, the error was of such

significance that it warrants granting a new trial. As stated in Harman, supra, “the moving party

must demonstrate to the trial court that he or she has suffered prejudice from the mistake.” In this

case, the prejudice suffered is the ultimate prejudice one may suffer at trial. By virtue of the

Court’s erroneous ruling on Plaintiff’s Motion in Limine, defendant was allowed to engage in

hours and hours of cross examination on irrelevant and highly prejudicial alleged acts of

negligence on the part of plaintiff, his employer and co-employees. This highly prejudicial

evidence cast a taint/cloud upon the entire trial process, turning the jury’s attention away from

the product and toward the conduct of plaintiff, his co-employees and his employer, none of

which was the “exclusive”, “independent” and “sole” cause of the accident.

Although the jury did not find the product or the warnings defective, the taint placed on

this trial by the admission of this evidence hour after hour, day after day, despite plaintiff’s

counsel’s repeated objections, cannot and must not be ignored. By taking the focus of the trial

away from the product and the strict liability principles by which the case should have been

decided, the Court opened the door to the admission of a morass of confusing, irrelevant,

immaterial, and highly prejudicial evidence, all contrary to the law. It was akin to dropping ink

into a glass of milk. There is simply no way to separate the jury’s failure to find the product

defective or the warnings inadequate from the erroneous admission of such highly prejudicial

irrelevant evidence.

42

For these reasons, the Court erred by denying plaintiff’s Motion in Limine to preclude

evidence of alleged negligent conduct on his part or on the part of his employer or co-employees.

Because this error caused extreme prejudice to plaintiff, it constituted an abuse of discretion and

requires the granting of a new trial.

3. The Trial Court Erred by Charging the Jury on Plaintiff’s Comparative Negligence

The trial court erred by charging the jury on plaintiff’s comparative negligence when the

injury arose in the workplace. The evidence established that Sterling Lewis was acting in a

reasonable and foreseeable manner, and not the extremely limited circumstances that would

permit the jury to consider his alleged negligence as a factor in its determinations. New Jersey

public policy directs that an employee does not knowingly proceed in the face of obvious danger

when performing his job in the manner directed by his employer. Because neither Mr. Lewis, nor

VMEU knew that the PF Precision Cleaner could arc-over if sprayed on energized equipment,

Mr. Lewis could not have known of that specific danger. Furthermore neither Mr. Lewis’s

actions nor those of the VMEU crew, solely and independently of the aerosol spray, could have

caused this accident. Despite this, the trial court instructed the jury to consider Mr. Lewis’

comparative negligence:

THE MERE FAILURE TO DISCOVER A DEFECT IN THE PRODUCT OR TO GUARD AGAINST A POSSIBILITY OF THE EXISTENCE IS NOT A DEFENSE FOR THE DEFENDANT. IN OTHER WORDS, THE DEFENDANT MUST PROVE THAT THE PLAINTIFF HAD ACTUAL KNOWLEDGE OF THE PARTICULAR DANGER RULED BY HIS CONDUCT AND KNOWINGLY AND VOLUNTARILY ENCOUNTERED THAT RISK TO WIN ON THIS DEFENSE. THIS IS THE COMPARATIVE NEGLIGENCE. IF YOU FIND THAT BOTH THE PLAINTIFF AND THE DEFENDANT WERE AT FAULT AND PROXIMALLY CAUSED THE ACCIDENT, THEN YOU MUST COMPARE THEIR NEGLIGENT CONDUCT IN TERMS OF PERCENTAGES. LET ME REPHRASE THIS. IF YOU FIND THAT BOTH THE PLAINTIFF AND DEFENDANT WERE AT FAULT AND PROXIMALLY CAUSED THE

43

ACCIDENT, THEN YOU MUST COMPARE THEIR CAUSAL RESPONSIBILITY IN TERMS OF PERCENTAGES. YOU WILL ATTRIBUTE TO EACH OF THEM THAT PERCENTAGE THAT YOU FIND DESCRIBES OR MEASURES HIS OR ITS CONTRIBUTION TO THE HAPPENING OF THE ACCIDENT. AND THIS PERCENTAGE MUST ADD UP TO A HUNDRED PERCENT.55

The verdict sheet also included comparative/contributory negligence as an element for the jury to

consider.

56

This charge was erroneous because, as stated above, and repeatedly stated by plaintiff’s

counsel throughout trial, New Jersey law clearly states that contributory negligence does not

apply in a strict negligence claim when a worker is performing his duties as directed by his

employer, because he does not have a meaningful choice when proceeding in the face of a

known danger. See, e.g., Coffman v. Keene Corp., 133 N.J. 581, 605-606, 628 A.2d 710, 722

(1993); Johansen v. Makita U.S.A., 128 N.J. 86, 94, 607 A.2d 637 (1992); Congiusti v. Ingersoll-

Rand Co., Inc., 306 N.J. Super. 126, 134, 703 A.2d 340 (App. Div. 1997).

Here, Mr. Lewis sprayed the PF Precision Cleaner on the energized keeper as he was

directed to do in the Work-Order prepared by his employer VMEU, at no time was he aware of

the danger posed by using the PF Precision Cleaner on an energized switch. In addition, there is

no evidence that plaintiff’s conduct was the sole contributing factor to his injury. To the

contrary, absent the PF Precision Cleaner, there would have been no injury. Instead, this jury

charge undoubtedly distracted the jury from its primary focus, i.e., determining a manufacturer’s

liability for an allegedly defective product:

… the inquiry should focus on the condition of the product, not the plaintiff's use of care in operating the product. Specifically, a jury must determine whether the product was defective, and if so, whether the defect rendered the product unfit for its intended or reasonably foreseeable purposes. [Emphasis supplied.]

55R. 2293a 56R. 2314a

44

Johansen v. Makita U.S.A., 128 N.J. 86, 94, 607 A.2d 637 (1992).

In Congiusti v. Ingersoll-Rand Co., Inc., supra, the New Jersey Appellate Division

addressed a products liability claim arising in the workplace in which the plaintiff was pinned to

an adjacent machine when the machine he was operating lurched forward. The defendant

successfully argued at trial that the plaintiff’s decision to operate the machine from a 90 degree

angle was the sole proximate cause of this accident. The plaintiffs appealed from a jury verdict

for the defendant, asserting, inter alia, that the jury charge failed to inform the jury that

plaintiff’s comparative negligence could not be considered under the Suter rule and that

plaintiff’s fault could only be considered if it were the sole proximate cause of the accident. The

New Jersey Appellate Division disagreed with the trial court’s “acquiescence” to defendant’s

claim:

Nowhere in this record is there any showing that plaintiff, his employer, the experts, or the manufacturer was aware that the ECM-350 machine had ever lurched towards an operator as occurred here. The jury, therefore, could not have found that plaintiff's choice to operate the machine from the ninety degree position was unreasonable. With hindsight, it is easy to say that plaintiff's operation from the forty-five degree position would have avoided this accident. But the "empty chair" defense, alleging that plaintiff's negligence was the sole cause of this accident, thus avoiding the Suter rule, requires proof of negligence, a showing that was absent here. It is not enough for a defendant to show that a non-negligent decision of a plaintiff put him in a position where he would be injured, and that a different decision concerning his position would have avoided the accident. The logic of this conclusion should be apparent if one considers an ordinary situation of driving an automobile. A plaintiff may decide to drive in the right hand lane next to a large truck which unfortunately jack knifes and falls on the car. We certainly would not consider as a defense a claim that if plaintiff had driven faster or slower so that he would not have been in the lane next to the truck or had changed lanes to drive behind the truck, he would not have been injured in the accident. The decision merely explains plaintiff's position. Unless a jury could determine that plaintiff's decision was negligent, his conduct is an irrelevancy, whether the Suter rule applies or not.

45

Congiusti, at 135-136. In Johansen v. Makita, supra, the trial court ruled at the close of trial that

contributory negligence was not a defense. The court determined that there was no evidence that

the plaintiff had voluntarily encountered a known risk –the absence of a guard -- where the

plaintiff testified that he had been unaware that the saw that caused his injury was equipped with

a guard. Johansen at 97, 643.

Similarly, in this case, there is no evidence that plaintiff Sterling Lewis or his employer

knew that the PF Precision Cleaner could initiate an arc-over event if sprayed onto an energized

keeper. To the contrary, the product had been used by VMEU for years without incident. Further,

the defendant manufacturer denies the existence of such a risk57

The court cited evidence that (1) plaintiff was aware of the warning on the can

.The warning label on the can

merely stated that the metal can should not be touched to energized equipment because the can

itself would conduct electricity. There was no warning or direction on the label addressing the

aerosol spray’s electrical conductivity propensities. One simply cannot have knowledge of a risk

claimed to be non-existent by the manufacturer.

58, (2) he

climbed a step in the bucket to better reach the energized switch, and (3) he failed to move the

bucket to access the switch from another angle as reasons for allowing the jury to consider

plaintiff’s comparative negligence. Based upon this evidence, the Court determined that plaintiff

had a meaningful choice to perform the work in a “safe manner” and that he had actual

knowledge of the danger posed by the product.59

57R. 1849a, R. 1896a, R. 1959a, R. 1715a, R. 1716a, R. 1719a

This conclusion is not consistent with the

evidence or New Jersey case law.

58Without specifically identifying the specific “warning” under discussion by the Court. Based upon the totality of the evidence of record, there was no warning of a risk of arc-over through the aerosol because defendant denies the existence of such a risk. 59R. 2513a

46

This case is distinguishable from the cases cited by the trial court in support of its

opinion. In particular, the court cites Crumb v. Black & Decker, 499 A.2d 530 at 533-535 (N.J.

App. Div. 1985) for the proposition that a plaintiff has a meaningful choice when he or she has

actual knowledge of the danger posed by the defective product.60

In Butler, supra, the Appellate Division reviewed the propriety of charging the jury with

the plaintiff’s contributory fault:

Such cannot be the case here

for the reasons stated in the immediately preceding paragraph. The Court later quotes Crumb,

stating “an injury caused by mere inattention or ordinary carelessness is insufficient to reduce or

bar [a] plaintiff s claim.” Crumb, 499 A.2d at 534. Here, Sterling Lewis did not have actual

knowledge of the danger posed by the PF Cleaner. His conduct may have been inattentive, or

even careless, but as stated in Crumb, this does not reduce or bar his claim.

We are satisfied that the issue of contributory fault was properly put to the jury. Evidence had been presented that Butler was aware that the caustic was a corrosive and that he used it on this occasion without employing any of the safety gear or protective clothing which he had been instructed by his employer to use when working with the caustic. Although the caustic was made available for washing and cleaning Cellofilm trailer tanks, the accident occurred not during the cleaning operation but while Butler was performing an assigned task to locate and correct a leak in one of the trailers. Butler conceded that he was left to his own resources to determine how to find and correct the leak; the accident occurred when he used the caustic to attempt to loosen up what he considered to be an obstruction in the tank. In that setting the jury could properly find that Butler had "voluntarily and unreasonably exposed himself to a known risk" as charged by the trial judge. [Emphasis supplied.]

Butler, 201 N.J. Super. at 564-565. Unlike the plaintiff in Butler, Mr. Lewis was wearing the

proper protective gear and was performing an assigned task as directed by his employer while

under the supervision of a more experienced worker. Unlike Mr. Butler, Mr. Lewis was not “left

to his own devices to determine how to” perform the pole top maintenance. He was following the

60R. 2506a

47

VMEU work order and was being supervised by Mr. Cavegnero & Mr. Sherman. Further, J. K.

Sherman, the journeyman supervising Mr. Lewis at the time of his accident, testified that

stepping up on the bucket step was a common practice with the City of Vineland:

Q. WERE YOU SURPRISED, SIR, WHEN YOU SAW HIM STAND ON THIS STEP? A. WHEN I FIRST STARTED WORKING THERE, AND I HAD BEEN THERE A YEAR, PEOPLE WERE USING THE STEPS. I QUESTIONED THESE PEOPLE ABOUT USING STEPS. AND THEY SAID THAT IT WAS A PRACTICE OF THEIRS THERE. I NEVER QUESTIONED THE POLICY OF THE STEP WITH THE CITY OF VINELAND.61

Further, Mr. Lewis testified that he was never aware that the CRC PF Precision Cleaner would

cause an arc-over event if sprayed on an energized switch despite reading the warning on the

can:

Q. NOW WHILE YOU WERE AT THE TAILGATE MEETING, AT ANYTIME DID YOU -- YOU HEARD MR. SNYDER TELL THE JURY THAT YOU DID READ THE LABEL ON THE CAN. RIGHT? A. THE LABEL ON THE CAN THAT I READ WAS A BOX THAT WAS CIRCLED IN RED. WHAT IT SAYS WAS, DO NOT TOUCH -- I DON'T KNOW EXACTLY WHAT IT SAID, BUT IT SAYS DO NOT TOUCH CAN TO ENERGIZED EQUIPMENT. Q. DID YOU TOUCH THE CAN TO ENERGIZED EQUIPMENT? A. NO. NO, SIR. Q. SO WHEN YOU READ THE CAN AND YOU READ THE WARNINGS THAT YOU SAW ON THE CAN, DID YOU UNDERSTAND -- WHAT EXACTLY DID YOU UNDERSTAND YOU WERE BEING WARNED NOT TO DO? A. I WAS WARNED NOT TO TOUCH THE CAN TO ENERGIZED EQUIPMENT. Q. DID YOU UNDERSTAND AT THAT TIME THAT IF YOU SPRAYED THE AEROSOL ONTO ENERGIZED EQUIPMENT THAT ELECTRICITY MIGHT JUMP THROUGH THE AEROSOL? A. NO.62

61R 582a 62R. 416a-417a

48

Furthermore, the day of his accident was the first time Mr. Lewis had ever used the PF

Precision Cleaner for performing the pole top maintenance.63

The trial court erred by charging the jury on comparative negligence when the plaintiff’s

injury arose in a workplace situation and the plaintiff’s conduct was not the sole proximate cause

of his injury, but was rather a contributing factor. This is counter to well established New Jersey

Law, that a plaintiff who sustains an injury from a defective product in a work setting will not

have his or her recovery diminished under comparative negligence principles for having

allegedly encountered a known risk. Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150,

162-163, 406 A.2d 140, 146 (1979); See also Grier v. Cochran Western Corp., 308 N.J. Super.

308, 324 (App.Div. 1998).

Clearly, Mr. Lewis was not

aware of the arc over danger posed by using the PF Precision Cleaner on an energized switch.

Thus, as a matter of law, a jury could not have found that Mr. Lewis voluntarily and knowingly

encountered the risk as required under New Jersey law for a jury charge on comparative

negligence to be appropriate.

B. The Trial Court Erroneously Charged the Jury on Negligence Theories as Defenses to Strict Liability Claims

The trial court erred by charging the jury on the defenses of comparative negligence,

misuse and assumption of the risk. Plaintiff’s counsel preserved this issue by objecting at the

conclusion of the charging conference to all charges on the issues of comparative negligence,

misuse and assumption of risk.64

63R. 401a

The trial court thereafter instructed the jury on all of these

64R. 2176a-2180a

49

potential defenses.65 After the charge was given, and before dismissal of the jury, plaintiff’s

counsel again noted his objections to these charges.66

1. New Jersey Law on Defenses to Product Liability Defenses

In 1987, New Jersey passed the Products Liability Act (“PLA”), N.J. Stat. § 2A:58C-1, et

seq. This preserved the three common law means of finding a product defective; manufacturing

defect, inadequate warning defect, and design defect. N.J. Stat. § 2A:58C-2.

The PLA permits different defenses for each type of defect. Manufacturers may defend

against design defect claims by, inter alia, showing that the products' characteristics are known

to the ordinary user and that the unsafe aspect of the product that caused the harm is an inherent

characteristic that the ordinary user would recognize. N.J. Stat. § 2A:58C-3(a)(2). However, that

statutory section specifically provides that this defense does not apply “to industrial machinery

or other equipment used in the workplace and is not intended to apply to dangers posed by

products such as machinery or equipment that can feasibly be eliminated without impairing the

usefulness of the product.” Id.

Defenses to failure to warn defects are discussed in Section 2A:58C-4 of the PLA, which

addresses liability for inadequate warning defect claims. Section 2A:58C-4 states that a

manufacturer or seller is not liable for harm under a failure to warn theory if the product contains

an adequate warning:

An adequate product warning or instruction is one that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristics of, and the ordinary knowledge common to, the persons by whom the product is intended to be used…

N.J. Stat. § 2A:58C-4.

65R. 2273a-2274a; 2286a; R. 2266a-2267a; R. 2277a-2279a; R. 2289a-2290a; R. 2293a. 66R. 2301a-2306a

50

Evidence of a plaintiff’s negligent conduct has limited use in a products liability action:

… even though a defense of contributory or comparative negligence may be properly stricken when an employee is injured at a workplace task, “[s]uch evidence, however, may be admissible on the issue of proximate cause.” [Emphasis supplied.]

Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 135 N. 1 (App.Div. 1997), quoting

Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261, 277-78, 609 A.2d 487 (App.Div.), certif.

denied, 130 N.J. 598, 617 A.2d 1220 (1992). The Congiusti court went on to note that where

evidence of proximate cause is appropriate, “there must be strict jury instructions regarding the

jury's use of evidence of plaintiff's fault.” Id. at 135.

It is well established that a manufacturer has a duty to make sure that its products are safe

for their intended or reasonably foreseeable purposes and has a duty to prevent injuries caused by

the foreseeable misuse of its product. Truchan v. Nissan Motor Corp. in U.S.A., 316 N.J. Super.

554, 564, 720 A.2d 981 (App.Div. 1998). Thus, another defense to strict products liability is that

the product was used for an improper purpose or in an improper manner. However, the misuse

must be the proximate cause of the injury in order for the manufacturer to be relieved of liability.

A manufacturer will still be liable even if a defect is a contributing or concurrent cause, and not

the sole cause, of an accident. Brown v. United States Stove Co., 98 N.J. 155, 484 A.2d 1234

(1984):

… if the original defect, although not the sole cause of the accident, constituted a contributing or concurrent proximate cause in conjunction with the subsequent alteration, the defendant manufacturer will remain liable. 98 N.J. at 149; see Johnson v. Salem Corp., 97 N.J. 78, 94-95 (1984); see also Southwire Co. v. Beloit Eastern Corp., 370 F.Supp. 842, 857 n. 21 (E.D.Pa.1974) (for substantial change to negate [Restatement] § 402A liability, it must be intervening superseding cause or perhaps even sole proximate cause of injury together with defective and unreasonably dangerous product).

51

Brown at 171. The plaintiff bears the burden of proving that the defective product was a

proximate cause of the accident. However, when the defendant tries to shift responsibility to the

employer and claims that the employer’s conduct was the sole proximate cause of the accident,

the burden of coming forward with evidence supporting this defense shifts to the defendant. See

Brown, supra; Navaro, 211 N.J.Super. at 572-573, and Butler v. PPG Industries, Inc., 201

N.J.Super. 558, 564, 493 A.2d 619 (App.Div.), certif. denied, 102 N.J. 298, 508 A.2d 186

(1985). As summarized by the Navarro, court “… it is the manufacturer's burden to prove an

intervening superseding cause or another sole proximate cause of the accident.”

2. The Court Erred by Charging the Jury on the Defense of Negligence to Product Defect Claims

The trial court erred in charging the jury on the defense of negligence in this strict

liability claim. Not only did the defendants fail to present sufficient evidence that the plaintiff’s

conduct was the sole proximate cause of his injuries, the defendant also failed to prove that the

employer’s conduct was the sole cause, independent of the product.

However, the Court charged:

I AM GOING TO EXPLAIN NOW THE DEFENSES FOR THE DESIGN DEFECTS. THE DEFENDANT CANNOT BE HELD LIABLE TO THE PLAINTIFF IF THE INJURY WAS CAUSED BY AN UNAVOIDABLE, UNSAFE ASPECT OF THE PRODUCT AND THE PRODUCT CARRIED INADEQUATE WARNING. INADEQUATE WARNING67

67The correct term here would be “an adequate warning.” Based upon this transcript, it is unclear what was stated at trial.

OR INSTRUCTION IS ONE THAT A REASONABLY PRUDENT PERSON IN THE SAME OR SIMILAR CIRCUMSTANCES WOULD HAVE PROVIDED WITH RESPECT TO THE DANGER AND THAT COMMUNICATES ADEQUATE INFORMATION ON THE DANGER AND SAFE USES OF THE PRODUCT TAKING INTO ACCOUNT THE CHARACTERISTICS OF THE PRODUCT AND THE ORDINARY KNOWLEDGE COMMON TO ITS INTENDED USERS. YOU WILL HAVE TO DECIDE WHETHER THE PLAINTIFF VOLUNTARILY

52

AND UNREASONABLY PROCEEDED IN THE FACE OF A KNOWN DANGER.

THE DEFENDANT CONTENDS THAT THE PLAINTIFF WAS AT FAULT FOR THE HAPPENING OF THE ACCIDENT. DEFENDANT CLAIMS THAT THE PLAINTIFF WAS NEGLIGENT IN LEANING OVER THE BUCKET HE WAS STANDING IN CAUSING HIS HIP TO TOUCH A METAL TIE ROD ON THE POLE TOP THEREBY GROUNDING HIMSELF. A COWORKER OFFERED TO MOVE THE BUCKET, BUT THE PLAINTIFF DECLINED AND INSTEAD LEANED OUT OF THE BUCKET BREAKING THE INSULATE AND ISOLATE PROTECTIONS IN PLACE TO PROTECT HIM FROM THE ELECTRICAL SHOCK. THE DEFENDANT CONTENDS THAT THROUGH HIS TRAINING THE PLAINTIFF KNEW OF THE RISK OF THE ELECTRICAL SHOCK IF HE BROKE THE INDUSTRY'S INSULATE AND ISOLATE PROTECTION AND GROUNDED HIMSELF. TO WIN ON THIS DEFENSE, THE DEFENDANT MUST PROVE THAT THE PLAINTIFF VOLUNTARILY AND UNREASONABLY PROCEEDED TO ENCOUNTER A KNOWN DANGER AND THAT THE PLAINTIFF'S ACTION WAS A PROXIMAL CAUSE OF THE ACCIDENT. THE FAILURE OF THE PLAINTIFF TO DISCOVER A DEFECT IN THE PRODUCT OR TO GROUND AGAINST THE POSSIBILITY OF A DEFECTIVE PRODUCT IS NOT A DEFENSE. RATHER, TO WIN ON THIS DEFENSE THE DEFENDANT MUST PROVE THAT THE PLAINTIFF HAD ACTUAL KNOWLEDGE OF THE PARTICULAR DANGER PRESENTED BY HIS ACTS, AND THAT THE PLAINTIFF KNOWINGLY AND VOLUNTARILY ENCOUNTERED THE RISK.68

Having erroneously charged on comparative/contributory negligence and assumption of

the risk, the trial court also stated in the charge that both the plaintiff and the plaintiff’s employer

were negligent. Thus the jury was charged only with determining whether the employer’s

negligence was a superseding cause of plaintiff’s injury:

YOU MUST DETERMINE WHETHER A, THE NEGLIGENCE OF VINELAND MUNICIPAL ELECTRICAL UTILITY IN FAILING TO READ THE PRODUCT LABEL AND IN UTILIZING A WORK PROCEDURE THAT UNNECESSARILY REQUIRED ITS WORKERS TO WORK ON ENERGIZED EQUIPMENT; OR B, THE PLAINTIFF'S OWN NEGLIGENCE IN REACHING OUT OF THE BUCKET HE WAS STANDING IN AND GROUNDING HIMSELF, OR INTERVENING CAUSES THAT DESTROYED THE SUBSTANTIAL CAUSAL CONNECTION BETWEEN THE DEFECTIVE PRODUCT AND THE ACCIDENT. IF THE INTERVENING ACTS DID,

68R. 2288a-2290a

53

THEN THE PRODUCT DEFECT WAS NOT THE PROXIMAL CAUSE OF THE INJURIES.69

This charge is clearly biased. The trial court failed to permit the jury to conclude whether

VMEU’s conduct was negligent by using neutral language such as “conduct” rather than

“negligence.” Further, there was insufficient evidence presented at trial to demonstrate that the

employer’s conduct was an intervening, superseding cause.

Vineland conducted an internal investigation and determined that there were certain

decisions that contributed to Mr. Lewis’ injuries. These included working on energized

equipment when not necessary and insufficient guarding of the ground.70

The critical inquiry in a strict products liability case involving multiple causes is whether the manufacturing shortcoming, be it in design or fabrication, endured and remained operative during the course of another's subsequent misconduct. If such a shortcoming continued to remain effective and, further, was found to be a substantial factor in producing the accident, it would constitute a "legal" cause, satisfying the requirement of proximate cause.

While these factors

certainly contributed to the injury, absent the use of defendant’s product, the accident would not

happen. As the Court stated in Brown, supra:

Brown at 172, (internal citations omitted). Here, there is no question that the PR Precision

Cleaner was operative during the course of the misconduct. Had the product worked according to

the manufacturer’s specifications, i.e. having high dielectric strength, and not sparking, Mr.

Lewis would not have been injured, regardless of whether the keeper phase was energized or

whether he was inadvertently grounded. No act of the plaintiff, his co-employees or his employer

is sufficient to break this causal chain.

Having erroneously admitted evidence of plaintiff’s conduct, the trial court further erred

by failing to instruct the jury that it could only consider plaintiffs’ conduct if it was the sole

69R. 2288a 70R. 698a-700a

54

proximate cause of his injury, i.e., independently of the aerosol spray. Finally, the trial court

erred by failing to instruct the jury that the defendant had the burden of proving that the

employer and co-employee’s conduct was the sole intervening cause of the accident and, if the

defendant failed to do so, that their conduct was not relevant and should not be considered.

Thus, the trial court’s charge on defenses to design defect were erroneous and require a new trial.

CONCLUSION

The record clearly reflects that the trial court did not adequately understand New Jersey

products liability law. The trial court erred both in instructing the jury on New Jersey products

liability law and in admitting evidence of alleged comparative negligence.

The trial court's jury charges on New Jersey products liability law were confusing at best.

The trial court erred by determining that expert testimony was required to prove a manufacturing

defect and by refusing to charge the jury on a "manufacturing defect." Because no such

requirement exists under New Jersey law, ajury may "infer that there was a defect by reasoning

from the circumstances and facts shown." Corcoran, supra.

With respect to the Design Defect jury instructions, the trial court not only failed to read

the Model Charges verbatim, it omitted the explanation of the most critical element of the "risk-

utility" charge. i.e., the availability of a substitute product.

Finally, the trial Court erroneously admitted evidence of comparative negligence and

employer/co-employee negligence in a strict liability claim arising in the workplace. New Jersey

law is clear that when the defendant cannot and does not show that the accident and injuries

sustained by plaintiff could have occurred independently of the subject product and solely as a

result of the alleged negligent acts, such evidence is inadmissible. even on the issue of causation.

Dated: March 5. 2010

Respectfully submitted,

~ot~ CHARLES L. TANNENBAUM. E Attorney for Appellant

55

APPENDIX

Case ID: 060900815

Filed and Attested byPROTHONOTARY

29 JUL 2009 12:00 pmT. TAYLOR

A1

CHARLES L. TANNENBAUM, ESQUIRE IDENTIFICATION NUMBER: 32810 436 OLD YORK ROAD - SUITE 6 JENKINTOWN, PA 19046 (215) 376-0490

STERLING LEWIS 1197 FRANCINE STREET VINELAND, NEW JERSEY 08630

(Appellant)

VS.

CRC INDUSTRIES, INC. 885 LOUIS DRIVE WARMINSTER, PA 18974

(Appellee)

ATTORNEY FOR

COURT CIVIL TRIAL DIVISION

SEPTEMBER TERM, 2006

NO. 0815

PA.R.A.P. 1925(B) STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Appellant, Sterling Lewis, hereby files this Statement of

Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b).

The trial court erred by:

a. Admi tting evidence of comparative negligence and

employer/co-employee negligence in a strict liability claim

arising in the workplace;

b. Refusing to instruct the jury on a "manufacturing

defect" theory despite the product's deviation from its intended

design and the fact that the injuries suffered were a direct and

foreseeable result of the product's manufacturing defect;

c. Failing or refusing to instruct the jury on the

"consumer expectation" or "reasonable safer design" analyses,

Case ID: 060900815

A2

and instead relying solely upon an incomplete charge relating to

a "risk-utility" analysis;

d. Failing to shift to the Defendant the burden of

proving that the Plaintiff would not have heeded an adequate

instruction or warning as required in a case in which a "heeding

presumption" was required by the evidence;

e. Making references to comparative negligence,

e.g., whether Plaintiff followed the written Work Order and the

directions of his immediate on-site superiors, that affected the

jury's understanding of its fact-finding function, thereby

affecting the verdict;

f. Charging the jury on the following defenses:

5.400-4(3) - Comparative or Contributory Negligence

5.40G - Product Misuse

5.40J - Comparative Fault

6.14 - Intervening, Superseding Cause

g. Omitting the following portion of Section 3(a)

(3) of New Jersey Model Civil Charge 5.400-3 on Design Defect

from the jury charge:

"Was there available a substitute [product] at the time of manufacture, sale or distribution which would meet the same needs or perform the same functions as this product without containing the alleged defect? In other words, the existence of a more safely designed [product] diminishes the

2

Case ID: 060900815

A3

justification for design in either or distribution product?"

using a challenged the manufacture, sale

of a particular

h. Permitting experts to testify outside the

scopes of their reports, specifically:

1. Permitting Defendant to cross examine Mary

DeVany, Plaintiff's warnings expert, on matters outside the

scope of her expert report and direct examination, over

Plaintiff's objections made during trial, and

2. Permitting Defendant's warnings expert,

Jerry Purswell, to opine on matters beyond the four corners of

his expert report, over Plaintiff's objections made during

trial.

i. Improperly charging the jury on inadequate

warnings theories. The Court erroneously defined the Model Jury

Charge word, "unknowable" as "unknown". At the conclusion of the

Court's charge and prior to the Court's dismissal of the jury to

deliberate, Plaintiff pointed this error to the Court.

Thereafter, the Court's attempt to cure this defect by simply

instructing the jury that "unknowable" means "unable to be

known" was insufficient to cure the defect as it was stated out

of context and with no further explanation1• Plaintiff asserts

1 NJ Model Civil Charge 5.400-3 fn7 states:

3

Case ID: 060900815

A4

that this error necessarily affected the jury's understanding of

the requisite elements of a failure to warn theory of liability

and therefore affected the verdict.

j. Failing to properly instruct the jury that

instructions concerning alleged negligence of Plaintiff, his

employer and/or co-employees were to apply only to the issue of

proximate cause and not to the issues of product defect2•

k. Charging the jury on issues of comparative

negligence over Plaintiff's objection and erroneously making

reference to Defendant's contentions of alleged comparative

negligence without referencing Plaintiff's contentions as to the

lack of comparative negligence, such as Plaintiff's following

the written Work Order and following the directions of his

immediate on-site superiors. This imbalance in the jury charge

necessarily affected the jury's understanding of its

finding function and thereby affected the verdict.

"It may be appropriate in failure to warn cases, where the defendant maintains that it could not have warned because it did not know of the danger, to advise the jury:

But, if the danger of the design was not knowable at the time of manufacture or sale, the defendant cannot be found to be at fault. However, the burden of proof on this point falls on defendant. That is to say, if the defendant contends the danger was unknowable, it must prove that contention, as I will explain when I discuss the statutory defenses with you." [Emphasis supplied.]

fact

Plaintiff objected to all negligence instructions. The Court, however, denied Plaintiff's Motion in Limine and ruled that it would instruct the jury on negligence, over plaintiff's objection, as to the issue of proximate cause only. However, the Court failed to follow through with said ruling and did not limit its negligence instructions to the issue of proximate cause.

4

COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) 12/28/2009

A5

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CIVIL TRIAL DIVISION

STERLING LEWIS Plaintiff/Appellant

vs.

BERWIND CORPORATION and CRC INDUSTRIES, INC.

Defendants/Appellees

Charles L. Tannenbaum, Esquire Steven D. Gittman, Esquire Attorneys for Plaintiff

John J. Synder, Esquire Brett A. Wolfson, Esquire Tara G. Nalencz, Esquire

/

Attorneys for Defendant CRC Industries, Inc.

QUINONES ALEJANDRO, J.

OPINION

INTRODUCTION

SEPTEMBER Term, 2006

NO. 0815

SUPERIOR COURT DOCKET

2358 EDA 2009

DATE: December 24, 2009

Sterling Lewis (Plaintiff), while in the course of his employment with Vineland

Municipal Electrical Utility (VMEU) for the City of Vineland, New Jersey, received a severe

electrical shock as he applied an aerosol cleaning solution, CRC Electrical Grade P F Precision

Cleaner (PF Precision Cleaner), onto a pole-top energized electrical switch. As a result of his

injuries, Plaintiff sued the manufacturer of the aerosol cleaning solution, CRC Industries, Inc.

(Defendant), essentially averring that the components contained in the aerosol's formula were

dangerous for the intended use and that the label on the aerosol can failed to warn of the

Lewis Vs Berwind Corp Etal-OPFLD

1111111111111111111111111111111 06090081500173

A6

product's inherent dangers. l A jury found against Plaintiff and, subsequently, Plaintiff filed this

appeal contending that this trial judge erred regarding the application of New Jersey's product

liability law, ruling on evidentiary matters, and in charging the jury.

This trial judge disagrees, and recommends that this appeal be dismissed and that the

Order dated July 12,2009, which denied Plaintiffs post-trial motion be affirmed.

FACTUAL AND PROCEDURAL HISTORY

The salient facts in this matter are as follows:

When the accident occurred, Plaintiff was a fourth-year apprentice lineman working for VMEU, and the junior member of a four person team consisting of Mike Cavagnero, Kevin Sherman, and John Shikanoff.2 On the morning of October 1, 2004, Plaintiffs team received a work order to clean specific adjacent pole-top electrical switches.3 At the work site, the team held its customary tailgate meeting to discuss the project's logistics,4 including inter alia, that the work order provided that only one side of the electrical switches at a time was to be de-energized during the maintenance. 5 The team members decided that Plaintiff would perform the assignment to gain apprentice experience and Mr. Sherman would supervise him.6 Plaintiff testified that this was the second time in his career that he performed pole-top maintenance.7

In preparation for the cleaning assignment, Plaintiff and Mr. Sherman put on protective rubber sleeves, gauntlets, and gloves. After both men were properly suited, they were lifted in their own insulated one-person passenger bucket to the electrical switches.8 The protective gear and insulated bucket are considered safety measures required in accordance with VMEU's insulation and isolation policy. This policy mandates that employees working on electrical equipment must wear protective gear to insulate their bodies, and they must do their work while in an environment that is isolated from the ground. 9 This safety policy is

1 Plaintiff asserted a strict products liability claim against Berwind Corporation, the corporate parent of Defendant CRC Industries, Inc. However, on March 10, 2009, Plaintiff filed a praecipe to discontinue said claim and dismiss Berwind from the lawsuit. 2 N.T. 3117/2009 a.m. at 58, 64-67, 71, 84; N.T. 3118/2009 a.m. at 12; N.T. 3119/2009 p.m. at 30-31, 49-50. 3 N.T. 3117/2009 a.m. at 70,73; N.T. 3118/2009 a.m. at 6-7; N.T. 3119/2009 p.m. at 32. 4 N.T. 3117/2009 a.m. at 81-82; N.T. 3117/2009 p.m. at 48-49; N.T. 3118/2009 a.m. at 7-10; N.T. 3119/2009 p.m. at 34,35-37,54-55. 5 N.T. 3117/2009 a.m. at 85, 88-89; N.T. 3117/2009 p.m. at 49-50; N.T. 3118/2009 a.m. at 10. 6 N.T. 3117/2009 a.m. at 84; N.T. 3118/2009 a.m. at 10, 13; N.T. 3118/2009 a.m. at 10, 12-13; N.T. 3119/2009 p.m. at 34-35. 7 N.T. 3117/2009 a.m. at 67-68. 8 N.T. 3117/2009 a.m. at 77-79,84-85,89; N.T. 3118/2009 a.m. at 10,12. 9 N.T. 3/20/2009 a.m. at 15-17.

2

A7

designed to prevent electrical injuries, as it recognizes that electricity travels from a voltage source to a ground through the path of least resistance. 10

Once both men were lifted into place, Plaintiff began to clean the switches one at a time, II using a wire brush to coat each switch with a lubricant, followed by spraying the P F Precision Cleaner, from a distance of approximately one and one-half feet, onto the switch to remove any built up dirt and grease. 12

The outside of the P F Precision Cleaner can was described as containing multiple writings, including two primary warnings. The first warning, located within a red box, cautioned end-users to avoid contact with energized equipment. Specifically, the warning reads as follows:

ELECTRICAL SHOCK HAZARD: This can will conduct electricity. Do not touch can to live electrical sources including battery terminals, solenoids, electrical panels and other electronic components. Failure to observe this warning may result in serious injury from electrical shock. 13

A second warning, located inside a yellow box, cautioned end-users not to spray the cleaner on energized equipment; to wit:

For personal safety, do not apply while equipment is energized. 14

Plaintiff stated he was aware of these warnings and his employer's safety policies. ls Nevertheless, he testified that while cleaning the switch closest to the road, he climbed on a step inside the passenger bucket. 16 Although this action allowed Plaintiff to extend his body out further,17 doing so broke his isolation protection which existed only when his body was primarily inside the bucket. 18

As he reached out to clean the switch, Plaintiff inadvertently touched his right hip to the uninsulated tie rod that was connected to a ground,19 and received a severe electrical shock.2o

10 N.T. 3/20/2009 a.m. at 15-18; N.T. 3/25/2009 a.m. at 31-32. II N.T. 3117/2009 a.m. at 89-91; N.T. 3118/2009 a.m. at 12,13-14; N.T. 3/19/2009 p.m. at 39-4l. 12 N.T. 3117/2009 a.m. at 90-92; N.T. 3/17/2009 p.m. at 53-54; N.T. 311812009 a.m. at 21-22,29-30,37-38,41-44. 13 N.T. 3117/2009 a.m. at 83; N.T. 3/20/2009 a.m. at 12-13; N.T. 3/25/2009 a.m. at 80. 14 N.T. 3/20/2009 a.m. at 14; N.T. 3/25/2009 a.m. at 53, 79-80. 15 N.T. 3117/2009 p.m. at 57-58. 16 N.T. 3117/2009 a.m. at 91-92; N.T. 3117/2009 p.m. at 72; N.T. 311812009 a.m. at 16,49. 17 N.T. 3117/2009 p.m. at 57-58; N.T. 3118/2009 a.m. at 16,47,49, 5l. 18 N.T. 3/17/2009 p.m. at 59-60; N.T. 3118/2009 a.m. at 47-49; N.T. 3/20/2009 a.m. at 25-26; N.T. 3/25/2009 p.m. at 90; N.T. 3/2712009 a.m. at 100-103. 19 N.T. 3117/2009 p.m. at 67; N.T. 3118/2009 a.m. at 68-69. 20 N.T. 3117/2009 a.m. at 92; N.T. 3/17/2009 p.m. at 72; N.T. 311812009 a.m. at 16,17,30; N.T. 3119/2009 p.m. at 41-42.

3

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Upon seeing the event, Mr. Sherman pulled Plaintiff into his passenger bucket and they were both 10wered.21 Plaintiff was transported to Crozer Chester Bum Center in Pennsylvania, where he received extensive medical care for the bums suffered.22 With the exceEtion of remaining keloid scars on his right leg, Plaintiff has basically recovered. 3

Plaintiff sued Defendant averring: (1) that the P F Precision Cleaner was conductive and

facilitated an arc-over event causing electricity to travel from the switch through the stream of

aerosol spray into Plaintiff, who served as a ground; (2) that the product was manufactured with

a flammable propellant making it likely to ignite; and (3) that the PF Precision Cleaner can did

not contain adequate warnings of its inherent danger.

In support of his product defect theories, Plaintiff introduced evidence of the post-

accident failure analysis performed by VMEU, allegedly, designed to rule out other explanations

for the accident. VMEU examined the rubber sleeves, gloves and gauntlets used by Plaintiff to

determine whether these items contained any perforation that would compromise their protective

nature. 24 In carrying out this analysis, each item was separately filled with water, pumped with

air, and examined for leakage.25 This analysis determined that the protective gear was intact and

placed back into service for use by other VMEU employees.26

At trial, the jury heard experts battle whether the P F Precision Cleaner was defective:

Harry Maloney, the Assistant General Manager for VMEU,27 testified that he conducted a control experiment under laboratory conditions to determine whether the product could facilitate an arc-over event if sprayed on or near energized equipment.28 In his experiment, Mr. Maloney created a gap in which he placed a grounded bare copper wire at various distances from a voltage source,

21 NT 3117/2009 a.m. at 93; NT 3118/2009 a.m. 17-20,25-27. 22 N.T. 3117/2009 a.m. at 94-104; N.T. 3118/2009 a.m. at 28. 23 N.T. 3/17/2009 a.m. at 105-116; N.T. 3117/2009 p.m. at 4-21. 24 N.T. 3/17/2009 p.m. at 74; N.T. 311812009 a.m. at 63-65; N.T. 311812009 p.m. at 10. 25 N.T. 3117/2009 p.m. at 75; N.T. 3/18/2009 a.m. at 66; NT 311912009 a.m. at 34-35. 26 N.T. 311712009 p.m. at 75; N.T. 3118/2009 a.m. at 67; NT 3118/2009 p.m. at 10; N.T. 3119/2009 a.m. at 9; N.T. 3/20/2009 a.m. at 19. 27 NT 311912009 a.m. at 56. 28 I d. at 62-63, 73-74.

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and increased the voltage until electricity arced through still air.29 This test found, inter alia, that an arc-over occurred when the grounded wire was five-sixteenth of an inch away from a voltage source charged to 7,620 volts, as well as when the grounded wire was one and one-half inches away from a source charged to approximately 30,000 volts.30

Mr. Maloney testified that a second component of his experiment consisted of spraying aerosol from a can similar to the culprit cleaning product at various distances from the arc_gap.31 Mr. Maloney found that an arc-over occurred under three circumstances: (1) when the gap was five-sixteenth of an inch, the product was continuously sprayed from a distance of approximately fourteen inches to the arc-gap, and the voltage source was charged to 9,000 volts; (2) when the gap was one inch, the product was continuously sprayed from a distance of four and one-half inches, and the voltage source was charged to 20,000 volts; and (3) when the gap was one-and-one-half inches, the product was intermittently sprayed from a distance of seven inches, and the voltage source was charged to 27,000 voltS.32 However, Mr. Maloney admitted that he did not know what exactly made the product conductive. 33

Plaintiff called Stephen Tse, Ph.D., as his mechanical engineering expert. Dr. Tse testified that the product's label indicated that it had a dielectric strength of 19,500 volts (which means that the product is supposed to be safe for use on energized equipment charged at less than 19,500 voltS).34 Dr. Tse opined that this proviso was accurate for the product only in its liquid state, not in an aerosol state, because there is no conventional method to quantify the dielectric strength of a gas.35 Dr. Tse opined that this distinction was critical because chemicals are more volatile as gases and, thus, more likely to be conductive.36

To ascertain whether the PF Precision Cleaner was conductive in its aerosol form, Dr. Tse performed a more sophisticated version of Mr. Maloney's experiment.37 Dr. Tse fashioned a test with a five-sixteenth of an inch gap between a charged electrode and a grounded electrode,38 and found that an arc­over event would occur through the still air when the voltage was set to 10,000 voltS.39 He then sprayed the product from various locations around the gap, and

29 1d. at 74-81, 88. 30 1d. at 81-83. 311d. at 89-91. 321d. at 91-95. 33 1d. at 96-98. See also N.T. 3/23/2009 a.m. at 60-61; N.T. 3/25/2009 p.m. at 63-67; N.T. 3/26/2009 a.m. at 12-15, 25-29. 34 N.T. 3/23/2009 a.m. at 62-63; N.T. 3/23/2009 p.m. at 29-30. See also N.T. 3/25/2009 a.m. at 44. 35 N.T. 3/23/2009 a.m. at 63-66. 36 1d. at 66-72; N.T. 3/23/2009 p.m. at l3-14. 37 NT 3/23/2009 a.m. at 97-98. 38 ld. at 98-99, 110-113; N.T. 3/23/2009 p.m. at 53-54. 39 Plaintiff did not elicit testimony from Dr. Tse at trial regarding the specific results of his control experiment. This information was taken from his expert report.

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I 40 found that an arc-over could occur when the voltage was set to 9,500 vo ts. In contrast, an arc-over did not occur at 9,500 volts when a new reformulated version of the product was sprayed into the gap.41 Based upon this experiment, Dr. Tse concluded that the product was defective because it facilitated a dielectric breakdown of the air,42 was conductive of electricity and, therefore, dangerous.

Mary DeVany, M.S., C.S.P., C.H.M.M, was offered as Plaintiffs expert in the field of occupational and environmental safety. She testified that pursuant to regulations promulgated by the Occupational Safety and Health Administration (OSHA) of the United States Department of Labor, all manufacturers of products used in the workplace must make available something called a material safety data sheet (MSDS) which provides information to end-users of the product's short-term and long-term safety hazards.43 Ms. DeVany explained that the MSDS for the PF Precision Cleaner indicates that this cleaner has no flashpoint and contains a flammability rating of zero, meaning that Defendant represented the product to be non-conductive and non-flammable.44 She also pointed to product literature that advertised the same.45 (It is noted that the term conductive refers to the potential of the product to facilitate an arc-over event, or spark, from a charged object to a grounded object.46 Alternatively, the term flammable refers to the ability of the product to combust once a flash has occurred.47) Ms. DeVany opined that the non-flammability representation in the MSDS was misleading because the product contained an ingredient called difluoroethane, which is a known flammable propellant.48 She concluded that the product's non­conductivity representation was also misleading because there is no conventional way to quantify the exact dielectric strength (i. e., the conductivity) of a product in its aerosol state. She incorporated the testing performed by Dr. Tse and opined that the product was conductive as an aeroso1.49 Although she acknowledged that the product warned it was not intended to be used on energized equipment, she opined that said warning was not applicable to people such as Plaintiff, or other electrical workers, because they use special isolation and insulation techniques to protect themselves from electrical shock. 50

Plaintiff s experts acknowledged that the testing they performed was not done under the same circumstances and conditions that were present at the time of the accident. 51

40 N.T. 3/23/2009 a.m. at 113-114; N.T. 3/23/2009 p.m. at 54. 41 N.T. 3/23/2009 a.m. at 100, 113. 42 Id. at 114; N.T. 3/23/2009 p.m. at 14-19,24-25. 43 NT 3/25/2009 a.m. at 38-43; NT 3/25/2009 p.m. at 18-19,33. 44 N.T. 3/25/2009 a.m. at 44-45,51. 45 I d. at 46-47,49. 46Id. at 36. 47 I d. at 35-36. 48 I d. at 70-74, 78, 92. 49 I d. at 87-94,108-115. 50 Id. at 53-54. 51 See e.g., N.T. 3119/2009 a.m. at 79-80, 83; N.T. 3/23/2009 a.m. at 98; N.T. 3/23/2009 p.m. at 71-80; N.T. 3/25/2009 p.m. at 56-65.

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Defendant denied responsibility for the incident and asserted that the P F Precision

Cleaner was not defective and was safe for its intended use. Defendant argued that the accident

occurred because Plaintiff removed his protective gear to apply the cleaning product, reached out

too close to the switch when he climbed onto the step inside the bucket; and, in so doing, the can

touched the energized switch and he suffered injuries because he was no longer insulated nor

isolated from electrical shocks. Defendant presented one expert in its defense.

Defendant introduced the testimony of Jerry Purswell, Ph.D., an expert in safety engineering and OSHA regulations, who testified, inter alia, that the product's warnings were adequate because the label conspicuously indicates that the product is not intended to be applied on energized equipment, and that this warning was applicable to all end-users regardless of the user's sophistication. 52 Dr. Purswell was critical of Plaintiffs experts who opined that the product is conductive. In his criticism, Dr. Purswell explained that the "gap" distances (less than two inches) used in Mr. Maloney and Dr. Tse's laboratory experiments were significantly smaller than the distance that existed between Plaintiff and the charged pole-top switch (one and one-half feet).53 Dr. Purswell opined that Plaintiffs theory did not sufficiently account for the rubber protection he was wearing at the time of the accident if, in fact, he was using the rubber sleeves, gloves, and gauntlets, as he claimed. 54

Dr. Purswell further opined that the inclusion of a flammable ingredient in the cleaning product was not enough to show that the product was flammable. 55 On the contrary, he explained that to test the flammability of any chemical mixture, the manufacturer must conduct something called a flame extension test where the mixture is sprayed at a lit candle. If the spray puts the candle out, then the mixture is deemed non-flammable; but if the spray amplifies the flame, then the mixture is deemed flammable. 56 Dr. Purswell testified that a flame extension test was performed and the P F Precision Cleaner was found to be non­flammable. 57

52 N.T. 3/27/2009 a.m. at 80-85, 93-94, 128-130. 53 I d. at 109-113. 54 I d. at 106-107, 117-119. 55 I d. at 124-125, 127-128. 56 Id. at 125-127. See also N.T. 3/31/2009 a.m. at 36-41. 57 N.T. 3/27/2009 a.m. at 125.

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ISSUES

In response to an order issued on July 15, 2009, in accordance with Pennsylvania Rule

of Appellate Procedure 1925(b), Plaintiff on July 29, 2009, filed of record and served onto this

trial judge the following verbatim statement of errors complained of on appeal; to wit:

Appellant, Sterling Lewis, hereby files this Statement of Matters Complained of on Appeal pursuant to Pa. R.A.P. 1925(b). The trial court erred by:

a. Admitting evidence of comparative negligence and employer/co­employee negligence in a strict liability claim arising in the workplace;

b. Refusing to instruct the jury on a "manufacturing defect" theory despite the product's deviation from its intended design and the fact that the injuries suffered were a direct and foreseeable result of the product's manufacturing defect;

c. Failing or refusing to instruct the jury on the "consumer expectation" or "reasonable safer design" analysis, and instead relying solely upon an incomplete charge relating to a "risk-utility" analysis;

d. Failing to shift to the Defendant the burden of proving that the Plaintiff would not have heeded an adequate instruction or warning as required in a case in which a "heeding presumption" was required by the evidence;

e. Making references to comparative negligence, e.g., whether Plaintiff followed the written Work Order and the directions of his immediate on-site superiors, that affected the jury's understanding of its fact­finding function, thereby affecting the verdict;

f. Charging the jury on the following defenses:

5.40D-4(3) - Comparative or Contributory Negligence

5 .40G - Product Misuse

5.40J - Comparative Fault

6.14 - Intervening, Superseding Cause

g. Omitting the following portion of Section 3(a)(3) of New Jersey Model Civil Charge 5.40D-3 on Design Defect from the jury charge:

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"Was there available a substitute [product] at the time of manufacture, sale or distribution which would meet the same needs or perform the same functions as this product without containing the alleged defect? In other words, the existence of a more safely designed [product] diminishes the justification for using a challenged design in either the manufacture, sale or distribution of a particular product?

h. Permitting experts to testify outside the scope of their reports; specifically:

1. Permitting Defendant to cross-examine Mary DeVany, Plaintiff s warnings expert, on matters outside the scope of her expert report and direct examination, over Plaintiffs objections made during trial, and

2. Permitting Defendant's warnings expert, Jerry Purswell, to opine on matters beyond the four corners of his expert report, over Plaintiffs objections made during trial.

1. Improperly charging the jury on inadequate warnings theories. The Court erroneously defined the Model Jury Charge word, "unknowable" as "unknown". At the conclusion of the Court's charge and prior to the Court's dismissal of the jury to deliberate, Plaintiff pointed this error to the Court. Thereafter, the Court's attempt to cure this defect by simply instructing the jury that "unknowable" means "unable to be known" was insufficient to cure the defect as it was stated out of context and with no further explanation. Plaintiff asserts that this error necessarily affected the jury's understanding of the requisite elements of a failure to warn theory of liability and, therefore, affected the verdict.

J. Failure to properly instruct the jury that instructions concerning alleged negligence of Plaintiff, his employer and/or co-employees were to apply only to the issue of proximate cause and not to the issues of product defect.

k. Charging the jury on issues of comparative negligence over Plaintiffs objection and erroneously making reference to Defendant's contentions of alleged comparative negligence without referencing Plaintiffs contentions as to the lack of comparative negligence, such as Plaintiffs following the written Work Order and following the directions of his immediate on-site superiors. This imbalance in the jury charge necessarily affected the jury's

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understanding of its fact finding function and thereby affected the verdict.

LAW AND DISCUSSION

These appellate issues can be categorized as allegations of errors in admitting evidence

of comparative negligence and opinion testimony, and in instructing the jury.

Here, the parties agreed that New Jersey substantive product liability law applies despite

this case being tried in Pennsylvania. Notwithstanding, it is a fundamental principle of conflicts

of law that a court will use the procedural rules of its own state. Commonwealth v. Eichinger,

915 A.2d 1122, 1133 (Pa. 2007). Succinctly and to differentiate, substantive law is the portion

of the law which creates the rights and duties of the parties to a judicial proceeding, whereas

procedural law is the set of rules which prescribe the steps by which the parties may have their

respective rights and duties judicially enforced. Wilson v. Transportation Insurance Co., 889

A.2d 563, 571 (Pa. Super. 2005).

The determination of whether a new trial is warranted is deemed to be procedural in

nature. Cf e.g., Id. at 568-569; Harding v. Consolidated Rail Corp., 620 A.2d 1185 (Pa. Super.

1993). Consequently, under Pennsylvania law, a new trial will be granted to achieve justice in

those instances where the original trial was tainted, unfair, or marred by error. Harman v.

Borah, 756 A.2d 1116, 1121 (Pa.2000). In deciding whether a new trial is warranted, the court

must decide whether one or more factual and/or legal mistakes occurred at trial; and if a mistake

(or mistakes) occurred, whether the mistake is a sufficient basis for granting a new trial. Id.

However, a new trial is not warranted merely because some irregularity occurred during the trial

or another trial judge would have ruled differently. Id. Rather, the moving party must have

suffered prejudice from the mistake. Id. at 1121. Absent a clear abuse of discretion, the decision

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to grant or deny a new trial is within the sound discretion of the trial court. Id. An abuse of

discretion occurs when the trial court misapplies the law, or reaches a manifestly unreasonable,

biased, or prejudicial result. Nigra v. Walsh, 797 A. 2d 353, 355 (Pa. Super. 2002).

As agreed, Plaintiffs products liability action is governed by the New Jersey Products

Liability Act (1987), N.l.S.A. § 2A:58C-1, et seq., the RESTATEMENT (THIRD) OF TORTS:

PRODUCTS LIABILITY (1998), and applicable case law. These provisions recognize three theories

upon which a product may be found to be defective, to wit: (1) manufacture defect; (2) design

defect; and (3) defective (inadequate) warnings. Dewey v. R.J. Reynolds Tobacco Co., 577 A.2d

1239, 1252 (N.l 1990); Mercer Mutual Insurance Co. v. Proudman, 933 A.2d 967, 969 (N.J.

App. Div. 2007), certif. denied, 944 A.2d 30 (N.J. 2008). These theories are codified by Section

2 of the New Jersey Products Liability Act, which reads as follows:

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 its intended purpose because it: a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contain adequate warnings or instructions, or c. was designed in a defective manner.

N.l.S.A. § 2A-58C-2; Matthews v. University Loft Co., 903 A.2d 1120, 1124-1125 (N.J. App.

Div.2006).

Similarly, the RESTATEMENT (THIRD) OF TORTS (hereinafter RESTATEMENT (THIRD)) §

2(a) provides that a product contains a manufacturing defect when the product departs from its

intended design even though all possible care was exercised in the preparation and marketing of

the product. E.g., Myrlak v. Port Authority, 723 A.2d 45, 52 (N.l 1999). In its § 2(b), the

REST A TEMENT (THIRD) provides that a product is defective in design when the foreseeable risks

of harm posed by the product could have been reduced or avoided by the adoption of a

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reasonable alternative design by the seller or other distributor, or a predecessor in the

commercial chain of distribution, and the omission of the alternative design renders the design

not reasonably safe. E.g., Cavanaugh v. Skit Corp., 751 A.2d 518, 520 (N.J. 2000); see also

Lewis v. American Cyanamid Co., 715 A.2d 967, 980 (N.J. 1998). The RESTATEMENT (THIRD)

§ 2( c) further provides that a product is defective because of inadequate instructions or warnings

when the foreseeable risks of harm posed by the product could have been reduced or avoided by

the provision of reasonable instructions or warnings by the seller or other distributor, or a

predecessor in the commercial chain of distribution, and the omission of the instructions or

warnings renders the product not reasonably safe. E.g., Matthews, 903 A.2d at 1126. However,

where a product's dangers or risks of are obvious, no warning is necessary. See RESTATEMENT

(THIRD) § 2, cmt. j.; Matthews 903 A.2d at 1126-1127.

Under these provisions, to establish a prima facie products liability claim, Plaintiff's

evidence must show that: (1) the product was defective; (2) the defect existed when the product

left the manufacturer's control; (3) the defect proximately caused injuries to the plaintiff; and (4)

the plaintiff was a reasonably foreseeable or intended user. Sinclair v. Merck & Co., Inc., 948

A.2d 587, 595 (N.J. 2008).

I. Admissibility of evidence of negligence.

In Plaintiff's first appellate issue, he claims that this trial judge erred in denying his

motion in limine to preclude evidence that his comparative negligence and/or that his employer

and co-employees contributed to and/or caused his injuries. Specifically, Plaintiff claims that it

was reversible error to allow Defendant to present evidence that Plaintiff removed his protective

gear while spraying the P F Precision Cleaner, broke his insulation isolation protection when he

climbed the step inside the bucket, and touched the charged electrical switch with the can,

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thereby causing his injuries. This trial judge disagrees and relies primarily on case law and the

New Jersey Model Civil Jury Charges (hereinafter, "NJ Model Charges"), which permit a jury to

be charged on the concept of sole cause and/or intervening/superseding cause where applicable

to the facts of the case. See NJ Model Charges 5.401 and 6.10-6.14.

In New Jersey, a manufacturer-defendant may assert a comparative negligence defense in

a products liability action where the plaintiffs conduct was a factor in causing his/her injury.

See NJ.S.A. § 2A:15-5.2a;58 Boryszewski v. Burke, 882 A.2d 410, 418 (App. Div. 2005). As an

exception to this rule, a defendant-manufacturer is prohibited from asserting the comparative

negligence defense where the plaintiff, injured during the course of his/her employment, had no

meaningful choice but to use the defective product in an allegedly negligent manner. See Suter

v. San Angelo Foundry & Machine Co., 406 A.2d 140, 148 (N.J. 1979). A plaintiff has a

meaningful choice when he/she has actual knowledge of the danger posed by the defective

product and voluntarily and unreasonably encountered the risk. 59 See Crumb v. Black &

Decker, 499 A.2d 530, 533-535 (N.J. App. Div. 1985).

58 N.l.S.A. § 2A: 15-5.2a provides as follows

a. In all negligence actions and strict liability actions in which the question of liability is in dispute, including actions in which any person seeks to recover damages from a social host as defined in section 1 of P.L.1987, cA04 (C.2A: 15-5.5) for negligence resulting in injury to the person or to real or personal property, the trier offact shall make the following as findings offact:

(1) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party's damages.

(2) The extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%.

59 Another exception to this general rule is that the comparative negligence defense is unavailable when the plaintiff merely failed to discover the product's defect or guard against the possibility of the defect's existence. Cavanaugh, 751 A.2d at 591; Poliseno v. General Motors Corporation, 744 A.2d 679,687-688 (N.J. App. Div. 2000).

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In addition, evidence of a plaintiff s conduct is admissible if it is relevant to the element

of proximate causation. Brown v. United States Stove Co., 484 A.2d 1234, 1242-1243 (N.J.

1984); accord e.g., Tomeo v. Thomas Whitesell Construction Co., 823 A.2d 769, 777 (N.J.

2003); Coffman v. Keene Corp., 628 A.2d 710, 723-724 (N.l 1993). A manufacturer of a

defective product may be relieved of liability if there was an intervening/superseding cause of an

accident arising from the use of the product. Hinojo v. New Jersey Manufacturers Insurance

Co., 802 A.2d 551, 557 (N.l App. Div. 2002). As the New Jersey Supreme Court explained:

The critical inquiry in a strict products liability case involving multiple causes is whether the manufacturing shortcoming, be it in design or fabrication, endured and remained operative during the course of another's subsequent misconduct. If such a shortcoming continued to remain effective and, further, was found to be a substantial factor in producing the accident, it would constitute a legal cause, satisfying the requirement of proximate cause.

A negligent act is not necessarily a substantial factor or proximate cause of an accident simply because it contributed to the occurrence in the sense that absent such an act the accident would not have transpired. Rather, the critical consideration, in the context of multiple factors contributing to the cause of the accident, is whether the faulty act was itself too remotely or insignificantly related to the accident. If it can fairly be regarded as sufficiently remote or insignificant in relation to the eventual accident then, in a legal sense, such fault does not constitute a cause of the accident, but simply presents the condition under which the injury was received.

Brown, 484 A.2d at 1243 (citations and quotations omitted). That is, where the original defect,

although not the sole cause of the accident, constitutes a contributing or concurrent proximate

cause in conjunction with the subsequent conduct of the purchaser, the manufacturer remains

liable. In order to exculpate itself, a manufacturer must prove an intervening/superseding cause

or perhaps some other sole proximate cause of the injury. Butler v. PPG Industries, Inc., 493

A.2d 619,622 (N.J. App. Div. 1985); see also Truchan v. Nissan Motor Corp. in U.S.A., 720

A.2d 981, 986 (N.l App. Div. 1998). These cases interchangeably utilize the terms proximate

cause, legal cause and intervening/superseding cause to refer to the same concept, and suggest

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that its determination is a question for the jury. This suggestion is examined in Navarro v.

George Koch & Sons, 512 A.2d 507 (N.J. App. Div. 1986), wherein the court found that error

was committed when the trial judge failed to properly explain the Issue of

intervening/superseding cause to the jury:

Additionally, the proximate cause issue in this case was not clearly set forth. The judge correctly charged that to escape liability [defendant] must show that the alteration was the sole cause of the explosion. But a manufacturer can also preclude liability if it can prove that the substantial alteration was the sole cause or the intervening superseding cause of the explosion as opposed to a contributing or concurrent cause. In our judgment, the charge did not fairly and accurately communicate this aspect of the law to the jury. Further, these basic principles were not explicated clearly in connection with the evidence peculiar to this particular case. While he charged as to sole cause, he failed to explain the principle of superseding intervening causes, as they related to the alterations made on the oven. As noted, this aspect of the charge was particularly important in this case because of [defendant's] theory and proofs concerning the changes made by [plaintiff's employer] and the testimony concerning how those changes were critical in causing the explosion. This omission was compounded when one considers that in the interrogatories submitted to the jury on the [plaintiff's] case, the court failed to include any questions concerning [plaintiff's employer's] alteration of the product.

Id.at516.

Plaintiff argues that New Jersey's controlling case law holds that before evidence of a

plaintiff's fault becomes admissible to the issue of proximate causation in a workplace products

liability action, the defense must prove, as a matter of law, that the plaintiff's negligence was the

sole, exclusive, and independent cause of the accident and, here, Defendant failed to do so.

Plaintiff asserts that the evidence only established that his conduct was a contributing cause to

his injury; and that the admission of this evidence constituted prejudicial error, having tainted the

entire trial and shifted the jury's focus away from the defective product and strict product

liability principles to that of irrelevant evidence, which resulted in a verdict for Defendant.

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This trial judge opines that Plaintiff's argument is incorrect as he cites no legal support

for his proposition. This trial judge has not found any New Jersey law which requires that a

defendant-manufacturer must prove, as a matter of law, that the plaintiff's fault was the sole,

exclusive and independent cause of the accident before the evidence becomes admissible at trial.

To the contrary, it follows from Navarro that a defendant is permitted to present evidence of the

plaintiff's conduct, which the jury may utilize to find whether the plaintiff's conduct constituted

the sole proximate cause of his injuries or, alternatively, apportion comparative negligence

(assuming for an injury sustained in the work place, that the plaintiff had a meaningful choice to

engage in the relevant conduct). Accordingly, this trial judge finds that no error was committed

in admitting evidence of Plaintiff and/or his employer/co-employee's conduct.

II. Jury instructions

Next, Plaintiff essentially contends that reversible errors were committed in the jury

instructions; to wit: (1) charging on comparative negligence; (2) refusing to charge on

manufacturing defects; (3) refusing to charge on the consumer expectation or reasonable safer

design product defect analyses; (4) charging on the heeding presumption; and (5) omitting a

portion of the risk-utility analysis charge. These allegations of error will each be addressed ad

seriatim with the third and fifth concerns jointly addressed as these involve the issue of whether

the product was defectively designed.

In essence, the standard of review regarding jury instructions is limited to determining

whether the trial court committed a clear abuse of discretion or error of law which controlled the

outcome of the case. Thus, a review of challenges to the jury charge is done under the following

standard:

Error in the trial judge's charge or instructions to the jury is sufficient ground for a new trial if the charge, as a whole, is inadequate, not clear, or has a tendency to

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mislead or confuse the jury rather than clarify a material issue. A charge will be found adequate, unless the issues are not made clear to the jury, the jury was palpably misled by what the trial judge said, or unless there is an omission in the charge which amounts to a fundamental error. In reviewing a charge, the court must look to the charge in its entirety.

Underwood v. Wind, 954 A.2d 1199, 1204 (Pa. Super. 2008).

A. Jury instructions on comparative negligence

Plaintiff contends that this trial judge committed reversible error in instructing the jury on

comparative negligence, misuse, assumption of the risk, and intervening/superseding cause.

Briefly, as discussed in the above-analysis of the admissibility of evidence of comparative

negligence, a manufacturer-defendant may assert a comparative negligence affirmative defense

in a products liability action where the plaintiff s conduct was a factor in causing the injury; but

may not do so where the plaintiff, injured during the course of his/her employment and had no

meaningful choice but to use the defective product in an allegedly negligent manner. A plaintiff

has a meaningful choice when plaintiff has actual knowledge of the danger posed by the

defective product and voluntarily and unreasonably encountered the risk.

As also stated, Defendant's affirmative defense lies on the specific theory that Plaintiff

was injured because he took off his protective work gear, moved closer to the electrified

equipment to apply the P F Precision Cleaner and touched the transformer with the spray can.

In deciding whether to charge the jury on comparative negligence, this trial judge

considered the matter of Suter, 406 A.2d 140, supra, and its progeny. Briefly, in Suter, plaintiff

brought a products liability action against the manufacturer of a metal rolling machine used by

plaintiff in his employment. Id. at 141-143. Plaintiff was injured when his hand reached into the

machine to remove a piece of slag and his fingers got caught and pulled into the machine's

rollers. Id. at 143. On appeal, the New Jersey Supreme Court held that the trial court was

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incorrect to charge on comparative negligence. [d. at 153. The court reasoned that a plaintiff-

employee should not be barred from recovery in a strict products liability action where he or she

"is injured due to a defect (whether design or otherwise) in an industrial accident while using a

machine for its intended or foreseeable purposes," and had "no meaningful choice" but to engage

in the dangerous conduct:

In our view an employee engaged at his assigned task on a plant machine ... has no meaningful choice. Irrespective of the rationale that the employee may have unreasonably and voluntarily encountered a known risk, we hold as a matter of policy that such an employee is not guilty of contributory negligence.

[d. (citations omitted).

Later, in the matter of Crumb, 499 A.2d 530, supra, the New Jersey Appellate Division

found that "the test of Suter is not simply whether plaintiff was injured while performing a task

in the course of his employment" because "such is a workers' compensation standard." [d.

Rather, "the essence of the Suter rule is that the employee had no meaningful choice." [d. That

is, "[h]e either worked at his assigned task or was subject to discipline or being labeled [ sic] as a

troublemaker." [d. As such, the Court opined that "a plaintiffs conduct will only be considered

if it constitutes a voluntary and unreasonable encountering of a known danger." [d. at 533-534

(citing RESTATEMENT (SECOND) OF TORTS § 402A, cmt. n.). In contrast, "an injury caused by

mere inattention or ordinary carelessness is insufficient to reduce or bar [ a] plaintiff s claim."

[d. at 534. Ultimately, the Crumb appellate court reversed the trial court's judgment in favor of

the defense, because there was no evidence presented at trial to suggest that the plaintiff either

had actual knowledge of the danger posed by the defective product or voluntarily and

unreasonably encountered that risk. [d. at 534-535.

Here, Plaintiffs objection is premised on the fact that when the accident occurred, he was

working within the scope of his employment and was carrying out a work order. He maintains

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that even if he stepped up and reached over to spray the pole-top switch, his conduct constituted

mere inattention or ordinary carelessness which is insufficient to reduce or bar a work place

product liability claim under New Jersey law. Plaintiff further argues that the jury charge

constituted prejudicial error because the issue of whether the product was defective became

intertwined with the issues of misuse and comparative negligence; and that the jury charge, when

viewed as a whole, became so misleading, confusing and contrary to the products liability law of

New Jersey.

In rebuttal, Defendant asserts that its affirmative defenses were appropriate because

Plaintiff s conduct could be considered as outside the scope of his employment and, further, that

even recognizing the danger of his actions, Plaintiff proceeded to use the spray on the electrified

switches.

Based upon the totality of the evidence of record, this trial judge opines that Defendant

presented sufficient evidence, if believed by the jury, to find that Plaintiffs action or omission

constituted comparative negligence, even though Plaintiff denied Defendant's allegation. See

Suter and Crumb. Clearly, it is the jury's prerogative to assess the credibility of all the

witnesses. In that regard on the one hand, the jury heard evidence of VMEU's isolation and

insulation policy which required employees to wear protective rubber sleeves, gloves and

gauntlets at all times while working energized equipment; that while working on pole-top

switches, employees were to remain within the confines of a grounded passenger bucket; that

Plaintiff admitted on cross-examination that he was aware of the warnings on the can and that

shortly before he was injured, he knowingly climbed onto a step located inside his bucket

reaching toward the energized switch which caused him to lose his isolation protection; that

Plaintiffs co-worker, Kevin Sherman, suggested moments prior to the accident that Plaintiff

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move the passenger bucket to access the energized switch from a safer distance, but Plaintiff

choose not to follow Mr. Sherman's advice.6o

On the other hand, Plaintiff denied that he removed any of his protective glove/gear yet

acknowledged that the rubber glove was bulky and that his hands often got hot and sweaty while

wearing them. 61 Plaintiff argued that the injuries occurred because either a crease or a small hole

in the protective gear allowed a mist of aerosol vapor to enter the rubber gear; and the electrical

energy traveled through the mist from the energized switch into his body. However, the jury

heard testimony of rigorous post-accident testing conducted by VMEU which found that all of

Plaintiff's protective gear was intact without any defects and/or pinholes and was, subsequently,

put back into service for use by other employees. Compounding this investigation, Defendant's

safety engineering expert, Dr. Purswell, testified that he had never before encountered any

person who was electrocuted while properly wearing protective rubber gear.62

Based upon the totality of the circumstances, credible evidence was presented to establish

that Plaintiff had meaningful choice to perform the work in a safe manner, and that he had actual

knowledge of the danger posed by the product. The jury was within its purview to determine

whether he voluntarily and unreasonably encountered the risk. Therefore, in this trial judge's

opinion, a jury charge on the principles of assumption of risk, comparative negligence, misuse,

and intervening cause was appropriate. Of note, the jury never reached this issue in their

deliberations since they found the product was not defective and concluded their deliberation.

As this was not a bifurcated case, the jury instructions on a whole were proper.

60 N.T. 311812009 a.m. at 14-15,71; N.T. 3118/2009 p.m. at 42-44,61-62. 61 N.T. 3117/2009 a.m. at 81. 62 N.T. 3/27/2009 a.m. at 107.

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B. Refusal to charge on manufacturing defects

Next, Plaintiff argues that this trial judge committed reversible error in refusing to charge

the jury on manufacturing defects. Under New Jersey law, a product contains a manufacturing

defect when the product departs from its intended design even though all possible care was

exercised in the preparation and marketing of the product. RESTATEMENT (THIRD) OF TORTS §

2(a); Myrlak, 723 A.2d at 52. To establish that a product was defectively manufactured, a

plaintiff must show that the product "deviated from the design specifications, formulae, or

performance standards of the manufacturer." Products Liability Act, N.J.S.A. § 2A:58C-2a; see

also O'Brien v. Muskin Corp., 463 A.2d 298,304 (N.J. 1983); Corcoran v. Sears Roebuck and

Co., 711 A.2d 371, 381 (N.J. App. Div. 1998).

To prove such a claim, a plaintiff may rely on direct evidence, such as the testimony of

an expert who has examined the product and/or offers an opinion on the product's design. See

Myrlak, 723 A.2d at 52; Lauder v. Teaneck Volunteer Ambulance Corps, 845 A.2d 1271, 1277

(N.J. App. Div. 2004). However, expert testimony is not always required. See Scanlon v.

General Motors Corp., 326 A.2d 673 (N.J. 1974). In the absence of expert testimony, a plaintiff

may produce circumstantial evidence of a defect, such as proof of proper use, handling or

operation of the product and the nature of the malfunction. See Myrlak, 723 A.2d at 52; Lauder,

845 A.2d at 1277. A plaintiff may also establish a defect by negating other causes of the failure

of the product for which the defendant would not be responsible, in order to make it reasonable

for the jury to infer that a dangerous condition existed at the time the defendant had control of

the product. Myrlak, 723 A.2d at 53. Under this approach, a plaintiff does not have to negate all

possible causes of failure, only those likely causes of failure. Id.

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Expert testimony is required, however, when the subject matter is so esoteric that jurors

of common judgment and experience cannot form a valid judgment as to whether the conduct of

the party was reasonable (unlike Pennsylvania law, in New Jersey the defendant-manufacturer's

conduct is relevant). Rocco v. New Jersey Transit Rail Operations, Inc., 749 A.2d 868, 879

(N.J. App. Div. 2000). When a case involves a complex instrumentality, expert testimony is

necessary to help the factfinder understand the mechanical intricacies of the instrumentality and

exclude other possible causes of the accident. Lauder, 845 A.2d at 1277.

For example, in Lauder, an 80-year-old decedent was injured when the undercarriage of

a gurney on which he was being carried suddenly collapsed. 845 A.2d at 1273. Prior to trial, the

court dismissed the plaintiffs products liability complaint on the ground, inter alia, that the

plaintiff failed to produce an expert report indicating that the gurney had either a manufacturing

and/or design defect. Id. at 1274. On appeal, the court affirmed, reasoning that "the gurney

could have collapsed for a number of reasons umelated to a design or manufacturing defect, e.g.,

the legs were not securely locked, extraneous material, such as a blanket, could have been caught

in the legs preventing them from locking (not necessarily a defect in the gurney), or the gurney

may not have been properly maintained." Id. at 1278. As such, the court concluded that

"[w]ithout expert testimony, a jury can only speculate as to the cause of the gurney's collapse

and cannot reasonably be expected to determine whether the gurney was defective when it was in

the possession and control of [defendant]." Id.

Instantly, during the charging conference, this trial judge ruled that the jury would not be

instructed on manufacturing defects because Plaintiff did not introduce any expert testimony on

the subject matter. 63 Specifically, the following colloquy occurred:

63 The pertinent jury instruction, NJ Model Charge 5.40B, provides, in part, as follows:

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The Court:

Mr. Tannenbaum:

Mr. Wolfson:

Mr. Tannenbaum:

The Court:

... 5.40(a) [sic] product liability; note to judge, and there are three pages. What's the problem with these?

The only problem that plaintiffs had with the 5.4(a) [sic] is that [the Defendants] left out the portion with regard to a manufacturing defect.

Your Honor, no expert in this case has given any testimony of a manufacturing defect. There's been testimony of a design defect and of an inadequate warning, and that requires-they're trying to make an argument of a manufacturing defect, but there's been no expert testimony of that.

Your Honor, you don't need expert testimony to prove a manufacturing defect.

* * *

You need facts, and the facts of this case are CRC claims that this stuff will not arc. It follows that it was not-that it was manufactured defectively. It's not a matter that you need expert testimony on.

I disagree. You need expert testimony on it. If that's the only objection to this 5.40(a) [sic] it will be covered as presented. 64

Plaintiff contends this omission constituted prejudicial error because the relevant NJ

Model Charge does not provide that a manufacturing defect claim must be established with

expert testimony. The crux of Plaintiff's argument is that the jury could have reasonably and

circumstantially found that the P F Precision Cleaner was defectively manufactured because the

To establish hislher claim for a manufacturing defect, the plaintiff must prove all of the following elements by a preponderance (greater weight) ofthe credible evidence:

1. The [product} contained a manufacturing defect which made the product not reasonably safe. To determine if the [product] had a manufacturing defect, 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 there was no 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.

64 N.T. 3/30/2009 p.m. at 6-8.

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product is designed to be non-conductive in its aerosol state and, yet, Plaintiff sustained an

electrical shock while spraying the product.

This trial judge opines that to establish a manufacturing defect, New Jersey law requires

Plaintiff to introduce evidence that the product deviated from its design-its formula. The jury's

determination on this issue involves a complicated question of chemical analysis for which a lay

jury, just as in the matters of Lauder and Rocco, supra, would have been forced to speculate

absent expert opinion testimony. Although Plaintiff introduced the expert opinion testimony of

Mr. Maloney, Dr. Tse, and Ms. DeVany, in support of his claim that the P F Precision Cleaner

was defective, none offered testimony that the chemical composition of the solution contained in

the actual can of P F Precision Cleaner used by Plaintiff at the time of the accident was in any

way different from the product's intended formula. Under the circumstances, this trial judge

opines that no error was committed in refusing to charge the jury on a manufacturing defect

theory.

C. Jury charges on design defect

Plaintiff argues that this trial judge erred when charging and/or omitting to fully charge

on design defect. Specifically, Plaintiff contends that this trial judge improperly refused to

instruct the jury on the consumer expectations analysis, the reasonable safer design analysis

and/or a particular paragraph on the risk-utility analysis of the standard jury charge.

Under New Jersey law, a product is defectively designed where the foreseeable risks of

harm posed by the product could have been reduced or avoided by the adoption of a reasonable

alternative design by the seller or other distributor, or a predecessor in the commercial chain of

distribution, and the omission of the alternative design renders the design not reasonably safe.

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RESTATEMENT (THIRD) OF TORTS § 2(b); Cavanaugh, 751 A.2d at 520; see also Lewis, 715 A.2d

at 980.

The question of whether a product is defectively designed requires the jury to determine

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. Green v. General Motors Corp., 709 A.2d 205, 210 (N.J. App. Div. 1998); Saldana v.

Michael Weinig, Inc., 766 A.2d 304, 311 (N.J. App. Div. 2001). The determination done by the

jury consists of performing either (1) a risk-utility analysis; (2) a reasonable safer design

analysis; or (3) a consumer expectations analysis. Accordingly, the New Jersey Standard Jury

Instructions provide sample charges for each of the three analyses. See generally NJ Model

Charge 5.40D-3.

The risk-utility analysis is the oldest of the three defect tests. See Cepeda v. Cumberland

Engineering Co., 386 A.2d 816, 826-827 (N.J. 1978). When applying the risk-utility analysis, a

trial court should first consider the following seven factors in order to determine whether to

preclude liability as a matter of law because the minds of reasonable jurors could not differ on

whether the risks posed by the product outweigh its utility:

(1) The usefulness and desirability of the product-its utility to the user and to the public as a whole.

(2) The safety aspects of the product-the likelihood that it will cause injury, and the probable seriousness of the injury.

(3) The availability of a substitute product which would meet the same need and not be as unsafe.

(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user's ability to avoid danger by the exercise of care in the use of the product.

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(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.

(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

Johansen v. Makita U.S.A., Inc., 607 A.2d 637, 642-643 (N.J. 1992); Truchan, 720 A.2d at

985. If the court determines that liability is not precluded, it may submit any of the factors

relevant to the litigation for the jury's determination. Johansen, 607 A.2d at 643. However, the

court should call to the jury's attention only those risk-utility factors which are relevant to the

case. Fiorino v. Sears Roebuck and Co., Inc., 707 A.2d 1053, 1057 (N.J. App. Div. 1998);

Hinojo, 802 A.2d at 560. The seventh factor should almost never be charged to the jury and, as

such, it is not included in the New Jersey Model Charges. Fiorino, 707 A.2d at 1057.

Alternatively, if a court is applying the reasonable safer design analysis, the jury is

charged that "a design defect exists if the foreseeable risks of harm posed by the [product] could

have been reduced or avoided by the adoption of a reasonable safer design and the omission of

the alternative design renders the product not reasonably safe." NJ Model Charge 5.40D-3. In

Green, 709 A.2d 205, supra, the court extrapolated the reasonable safer design analysis from the

RESTATEMENT (THIRD) OF TORTS § 2(b) and stated:

Although there are seven listed factors in the classical statement of the risk-utility analysis, the prevalent view is that, unless one or more of the other factors might be relevant in a particular case, the issue upon which most claims will turn is the proof by plaintiff of a reasonable alternative design the omission of which renders the product not reasonably safe.

Green, 709 A.2d at 210 (internal citation and quotations omitted). As such, since the reasonable

safer design analysis represents a streamlining of the risk-utility analysis, only one of these two

tests is ordinarily charged. In recent years, the reasonable safer design analysis has become more

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common. However, the Note to Judge section immediately preceding the risk-utility analysis in

NJ Model Charge 5.40D-3 provides the following caveat:

In the opinion of the drafters of this Model Civil Charge either the Risk-Utility Analysis charge or the Reasonable Safer Design charge may properly be employed in a design defect case. The Reasonable Safer Design Test has been approved in Lewis v. American Cyanamid Co., 155 N.J. 544 (1998). However, the language of the Reasonable Safer Design charge has not been the subject of review by the Supreme Court of New Jersey. The two charges focus on the same principles.

A trial court may instead charge the jury with the consumer expectation analysis, wherein

the jury is informed that "a design defect is established by proof that the [product] did not safely

perform the job or function for which it was made, contrary to the consumer's/user's reasonable

expectations ... " NJ Model Charge 5.40D-3. However, the consumer expectation analysis is

applicable only where the product-like a bicycle whose breaks do not hold because of an

improper design-is self-evidently not reasonably suitable and safe, and fails to perform contrary

to the user's reasonable expectation that it would safely do the jobs for which it was built.

Metlinger v. Lowenstein, Inc., 678 A.2d 1115, 1123 (N.J. App. Div. 1996) (citing Suter, 406

A.2d 140, supra). The design of a product is self-evidently defective when there are no relevant

considerations which make the hazard inherent in the product or reasonably necessary to its

functioning. Mettinger, 678 A.2d at 1123. It follows that the jury should be charged on the

consumer expectation analysis in only rare circumstances. See NJ Model Charge 5.40D-3, where

the following is indicated: "Charge either (1) Consumer expectations (in rare cases only), (2)(a)

Reasonable Safer Design or (b) Risk-Utility Product Defect Analysis." (emphasis in original).

Here, this trial judge provided the jury with the following basic information on design

defect claims:

The Court: I will now move to the law of product liability. The defendant, as the manufacturer of a product, has the duty to

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65 N.T. 3/3112009 a.m. at 23-26.

sell and make a product that is reasonably safe. The defendant is liable only if the plaintiff proves the product causing the harm was not reasonably safe for its intended purpose. In this case the plaintiff claims that the product was not reasonably safe for its intended purpose because of a failure to adequately warn or instruct and/or a design defect.

A design defect may be established by different methods. One method is called the consumer expectation, which is not applicable here. And [sic] another method is applying a reasonably safer design standard or the risk utility analysis.

The design of a product is obviously defective when there are no relevant considerations which make danger inherent in the product, or reasonably necessary to its functioning. In this respect such defects are akin to a [sic] manufacturing defect cases in which the defect is proven by circumstantial evidence.

The risk utility analysis which is an objective test that focuses on the product requires that the defect is established by proof that the product's risks and dangers outweigh its usefulness. And, therefore, a reasonably careful manufacturer or seller would not have sold the product at all in the form in which it was sold. This involves a balancing or weighing of the [ sic] number of factors known as the risk utility factor [sic].

The defendant, as the manufacturer or seller of the PF Cleaner, has the duty to make and sell a product that is reasonably safe. In this charge when I refer to reasonably safe product, I mean a product that is reasonably fit, suitable and safe for its intended or reasonably foreseeable use. The defendant owes that duty direct users [sic] of the product to those who may reasonably be expected to come in contact with it. The defendant is liable only if the plaintiff proves that that the product causing the harm is not reasonably safe for its intended use or reasonably foreseeable use. In this case, the plaintiff claims the product was not reasonably safe for its intended purposes because the product was designed in a defective manner and/or it lacked adequate warnings. 65

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Later in the charge, the jury was explicitly instructed on the risk-utility analysis as follows:

The Court: Now I will move on to the design defect, the legal test for that.

The plaintiff claims that the product was designed in a defective manner. To establish this claim, the plaintiff must prove the following elements by a preponderance of the evidence.

Credible evidence. [sic] A design defect is established by proof that the risk or dangers of the product as designed outweighs its usefulness and, therefore, that a reasonably careful manufacturer would not have sold the product at all in the form in which it was sold. A product may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the product's continued utility.

In deciding whether the dangers of the product outweigh its usefulness and, therefore, that a reasonably careful manufacturer would not have manufactured, sold or distributed the product at all in the form it which it was manufactured and distributed. You must determine whether the defendant, who is supposed to know the harms the product would cause, acted in a reasonably careful manner in manufacturing and selling the product.

To reach this conclusion you must consider and weigh the following factors: One, the usefulness and benefit of the product as it was designed to the user and the public as a whole. Was there a need that this product be designed in this specific manner? Two, the safety aspects of the product. That is, the likelihood or risk that the product as designed would cause injuries and the probable seriousness of any injury which could have or should have been anticipated through the use of the product. Three, was the substitute design for this product feasible and practical? Four, the ability of the defendant to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility. Five, the ability of foreseeable uses to avoid danger by the exercise of care and use of the product. Six, the foreseeable user's awareness of the danger inherent in the product and their avoidability because of the general

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public's knowledge of the obvious condition of the product or of the existence of suitable warnings or instructions.

In applying the risk utility factors, remember that a product may not be considered reasonably safe unless the risks have been reduced to the greatest extent possible consistent with the product's continued utility. That is, without impairing its usefulness and without making it too expensive for it to be reasonably marketable. 66

Following this trial judge's charge to the jury, counsel for Plaintiff preserved his objections,67

and maintained that each of the three defect design analyses were applicable in this case, and

reversible error occurred in not so instructing the jury. In this trial judge's opinion, Plaintiff is

mistaken. Under New Jersey law, it is inappropriate to charge on more than one defect test. See

e.g., Mellinger, 678 A.2d at 1122-1123; O'Brien, 463 A.2d at 304-305. Further, NJ Model

Charge 5.40D-3 expressly addresses this issue and provides, in its relevant part, as follows:

Note to Judge

Charge either (1) Consumer Expectations (in rare cases only), (2)(a) Reasonable Safer Design or (b) Risk-Utility Product Defect Analysis. If the Consumer Expectations charge is used, do not charge the jury on either Reasonable Safer Design or Risk-Utility Product Defect Analysis ....

Since Risk-Utility includes the Reasonable Safer Design element, use the additional risk-utility factors only if the case is unusual in that it requires one or more of these additional elements.

Although Plaintiff also argues that this trial judge erred in not charging the consumer

expectations analysis, Plaintiff, however, never claimed as part of his case theory, that the P F

Precision Cleaner contained a self-evident defect. Under New Jersey law, the consumer

expectation analysis would be applicable only if Plaintiff used the product solely for the purpose

of preventing an electrical shock, which was not what occurred in this case. On the contrary, the

jury heard testimony that VMEU electrical workers, including Plaintiff, used the product for

66 NT 3/31/2009 a.m. at 36-39 (emphasis added). 67 Jd. at 57,60-61.

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cleaning electrical equipment, such as the subject pole-top switch. Therefore, no error was

committed in refusing to charge the jury on the consumer expectation analysis.

Plaintiff also contends that this trial judge committed prejudicial error in not charging the

jury on the reasonable safer design analysis. In support, Plaintiff cites the opinions of his experts

who essentially testified (among many other design defect theories) that there were two potential

formulas for the product, one with a flammable propellant (the aerosol used by Plaintiff) and one

with a non-flammable propellant. Plaintiff argues that in refusing to charge on a reasonably safer

design, the jury had no opportunity to consider whether the inclusion of a flammable propellant

in the product's formula rendered the product's design unsafe and, therefore, he was denied the

opportunity to have the jury understand all of the potential avenues by which they could find the

product to be defective.

This trial judge opines that Plaintiffs argument is misguided because it fails to recognize

that the reasonable safer design analysis jury instruction streamlined several of the risk-utility

analysis factors, which were charged to the jury nearly verbatim, as written in the New Jersey

Model Charges. As noted above, this trial judge instructed the jury, inter alia, on the third

factor of the risk-utility analysis, and explained that in determining whether the product was

defective, the jury was to take into account whether "the substitute design for this product [was]

feasible and practical." The reasonable safer design analysis charge states the same idea in only

slightly different words; to wit: "a design defect exists if the foreseeable risks of harm posed by

the [product] could have been reduced or avoided by the adoption of a reasonable safer design

and the omission of the alternative design renders the product not reasonably safe." As such,

when the jury instructions are considered as a whole, Plaintiffs instant concern is unfounded.

Furthermore, New Jersey law provided this trial judge the discretion to instruct the jury on either

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the risk-utility analysis or the reasonable safer design analysis since they are interchangeable,

and Plaintiff has failed to establish that this trial judge abused that discretion.

In addition and pertinent to this discussion, the jury heard testimony that the product was

allegedly conductive of electricity in its aerosol state; that people of varying sophistication used

the product; that while the product contained an element or propellant known to be flammable,

the product, as a whole, was not flammable. After considering the evidence presented by both

sides, this trial judge is of the opinion that the risk-utility analysis was the most appropriate of

the three design defect tests to charge under the circumstances of this case.

Plaintiffs last argument as to the design defect charge centers on this trial judge's refusal

to read the following language from NJ Model Charge 5.40D-3(3)(a) in the risk-utility analysis

portion of the instruction:

Was there available a substitute [product] at the time of manufacture, sale or distribution which would meet the same needs or perform the same functions as this product without containing the alleged defect? In other words, the existence of a more safely designed [product] diminishes the justification for using a challenged design in either the manufacture, sale or distribution of a particular product?"

Plaintiff similarly argues that the omitted paragraph should have been charged to the jury

because at the time of the accident Plaintiff was using the unsafe version of the product with a

flammable propellant even though Defendant had available a substitute safer design/formula. It

is apparent, however, that the omitted paragraph of the standard model charge would have added

nothing to the jury's calculus, since it merely reiterates and expands upon the third element of

the risk-utility analysis. Although this trial judge did not read the New Jersey standard jury

charge on products liability verbatim, a fair reading of the entire jury instructions reveals that the

law was properly given to the jury.

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In summary, Plaintiff has failed to articulate how the jury was confused, misled or

misguided on the New Jersey law of design defects instructions. Therefore, this trial judge

opines that no error or abuse of discretion was committed.

D. Heeding Presumption

Next, Plaintiff argues that charging on heeding presumption constitutes reversible error

because the charge, as read to the jury, was not supported by the evidence of record, in that it

shifted the burden away from Defendant. Specifically, Plaintiff asserts that the only evidence

regarding this matter came from Plaintiffs testimony when he stated that he read the warning not

to touch the can to energized equipment and that he understood what the warning meant.68 This

trial judge disagrees with Plaintiff s contention of error.

New Jersey law holds that in failure-to-warn claims, a plaintiff is entitled to a rebuttable

heeding presumption that plaintiff would have followed an adequate warning had one been

provided. See Coffman, 628 A.2d at 720; McDarby v. Merck & Co., Inc., 949 A.2d 223,267-

268 (N.J. App. Div. 2008). A heeding presumption shifts the plaintiffs burden on the element of

causation away from proof that the defendant's failure to warn caused the plaintiff s exposure to

the defendant's product, and toward proof that the defendant's product caused the plaintiff s

injury or illness. James v. Bessemer Processing Co., 714 A.2d 898, 907-908 (N.J. 1998).

To overcome the heeding presumption in a failure to warn case involving a product used

m the workplace, the manufacturer must prove either that had an adequate warning been

provided, the plaintiff-employee with a meaningful choice would not have heeded the warning,

Coffman, 628 A.2d at 724; James, 714 A.2d at 908; or, alternatively, the employer would not

have heeded the warning by taking reasonable precautions for the safety of its employees by

taking measures to avoid or minimize the harm from the use or exposure to the dangerous

68 See N.T. 3117/2009 a.m. at 83-84; N.T. 3/1712009 p.m. at 40.

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product. Coffman, 628 A.2d at 724; James, 714 A.2d at 908. Once the party against which the

presumption has been applied produces sufficient evidence to rebut it, the presumption

disappears. In re Diet Drug Litigation, 895 A.2d 480,491 (N.J. App. Div. 2005). See also New

Jersey Rule of Evidence 301.69

The role that heeding presumptions play under New Jersey law has been described as

follows:

Thus, by way of summary, the heeding presumption applies to all failure to warn and inadequate warning cases and provides the plaintiff with a rebuttable presumption on the issue of proximate cause, i.e., if a warning or instruction had been given, such warning or instruction would have been heeded by the plaintiff. In such cases, the burden of production on the issue of proximate cause shifts to the defendant to come forward with rebuttal evidence. In essence, the defendant's burden of production requires "evidence sufficient to demonstrate ... that a warning would have made known to the plaintiff the danger of the product and, notwithstanding the knowledge imparted by the warning, the plaintiff would have proceeded voluntarily and unreasonably to subject him or herself to the dangerous product." Coffman, supra, 628 A.2d 710. If the defendant fails to meet its burden of production to the trial court's satisfaction, the trial judge is required to direct a verdict in favor of the plaintiff on the issue of proximate causation. If, however, the defendant presents rebuttal evidence such that reasonable minds could differ as to whether the warning, if given, would have been heeded by the plaintiff, the defendant has satisfied its burden of production and the plaintiff loses the benefit of the presumption. The plaintiff must then carry the burden of persuasion as to proximate cause.

Sharpe v. Restop, Inc., 713 A.2d 1079, 1086 (N.J. App. Div. 1998).

69 N.1.R.E. 301 provides as follows:

Except as otherwise provided in Rule 303 or by other law, a presumption discharges the burden of producing evidence as to a fact (the presumed fact) when another fact (the basic fact) has been established.

If evidence is introduced tending to disprove the presumed fact, the issue shall be submitted to the trier of fact for determination unless the evidence is such that reasonable persons would not differ as to the existence or nonexistence of the presumed fact. If no evidence tending to disprove the presumed fact is presented, the presumed fact shall be deemed established if the basic fact is found or otherwise established. The burden of persuasion as to the proof or disproof of the presumed fact does not shift to the party against whom the presumption is directed unless otherwise required by law. Nothing in this rule shall preclude the judge from commenting on inferences that may be drawn from the evidence.

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Instantly, at the charging conference, Defendant provided the following proposed, yet

objected to, heeding presumption instruction which tracked verbatim the language contained in

NJ Model Charge 5.40C:

The defendant has introduced evidence seeking to show that the plaintiff would not have read or followed an adequate instruction or warning even if one had been provided by the defendant. You will have to decide whether the plaintiff would have read and heeded a warning and instruction had one been given or that he would not have read or heeded the instruction had one been given. The Plaintiff has the burden to prove by a preponderance of the evidence that he would have followed an adequate instruction or warning if one had been provided.

After offering argument, Plaintiff's counsel withdrew his objection.7o The following

morning, this trial judge read the charge, as presented.7! However, prior to excusing the jury to

deliberate, a sidebar conference was held and Plaintiff raised the following objection:

Mr. Tannenbaum:

The Court:

Mr. Tannenbaum:

Mr. Synder:

The Court:

* * *

70 N.T. 3/30/2009 p.m. at 47-48. 71 N.T. 3/3112009 a.m. at 31-32.

. .. And for the record, objection to the-what sounded like an assumption of the risk charge. Your Honor did not read-actually, Your Honor read this statement CRC has introduced evidence seeking to show that Sterling Lewis would not have read and followed an adequate warning instruction even if one had been provided by the defendant. That statement is totally contrary to the record in this case. Mr. Lewis stated that he read the instruction, he understood it to mean don't touch the can. And there was no evidence presented by the Defendant to indicate what this says. So I would ask that be corrected.

It's interesting because I read from what was submitted.

It was submitted as part of the contested charges. Your Honor ruled they would be read. And, here we are. We did object to it at the time.

But there is evidence of in the case [sic].

That's okay.

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Mr. Tannenbaum: ... I believe that would-I believe I said Your Honor did not charge on alternative safer design which I understood that you would charge when we left here yesterday. I think Plaintiff is entitled to that based on the evidence in this case that had an adequate warning been given he would have heeded that warning. I think the evidence bears that out. The burden then shifts to the Defendant to show that he would not heed that warning. As we presently stand, I don't think the jury has that understanding. 72

Here, this trial judge notes that evidence was presented wherein Plaintiff admitted that he

read the warning on the can, yet used the aerosol spray on energized switches contrary to the

warnings. Plaintiff argues that it was wrong to extrapolate that if another more adequate warning

had been given regarding an arc-over scenario, Plaintiff would not have heeded the warning.

Despite Plaintiffs self-serving assertions, the jury properly considered the totality of evidence

which suggested that Plaintiff would not have heeded a proper warning. As such, the jury

considered that the P F Precision Cleaner can contained two distinct warnings, a warning inside

of a red box which advised users to avoid contact with energized equipment ("ELECTRICAL

SHOCK HAZARD: This can will conduct electricity ... ") and a warning inside a yellow box

which advised users not to spray the cleaner on energized equipment ("For personal safety, do

not apply while equipment is energized"). Plaintiff clearly admitted that he had read the warning

contained in the red box but did not read the warning contained in the yellow box 73 which was

inches away from the other warning. Plaintiff offered no explanation for not reading the warning

in the yellow box other than he worked around energized equipment everyday. Therefore, the

issue of whether Plaintiff would have heeded another adequate warning became a question for

the jury to decide. In this trial judge's opinion, it was appropriate to charge the jury with the

heeding presumption instruction, as provided in NJ Model Charge SAGC.

72 N.T. 3/3112009 a.m. at 59-60,61-62. 73 N.T. 3117/2009 a.m. at 83-84; N.T. 3117/2009 p.m. at 38, 40-41.

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III. Other Issues

Plaintiff presents two final issues on appeal. The first issue pertains to a spontaneous

inquiry made by a juror in open court, during the charging conference, requesting the definition

of the word "unknowable" as it was used within an instruction, which Plaintiff contends was

defined as meaning "unknown.,,74 Immediately following the charge, Plaintiff objected on the

grounds that the word "unknowable" more appropriately is defined as meaning "unable to be

known.,,75 Plaintiffs second issue is grounded on allegations that this trial judge allowed

counsel for Defendant to pursue with Plaintiffs expert-Ms. DeVany and Defendant's expert-Dr.

Purswell matters that were outside the scope of their respective expert reports.

It is noted that Plaintiff failed to brief or provide any argument to these issues in his post-

trial motion. Consequently, under Pennsylvania law, it is well established that issues not raised

and preserved by motion for post-trial relief are deemed waived on appeal. See Pa. R.C.P. 227.1;

see also Chalkey v. Roush, 805 A.2d 491,494 CPa. 2002); Warfield v. Shermer, 910 A.2d 734,

737 CPa. Super. 2006). Only those issues raised in a post-trial motion which are brief and/or

argued before the trial court will be considered preserved for appellate review. American

Futures Systems, Inc. v. Better Business Bureau of Eastern Pennsylvania, 872 A.2d 1202,

1215-1216 CPa. Super. 2005). Accordingly, these two issues are deemed waived.

CONCLUSION

Based on the foregoing discussion, this trial judge is of the opinion that no mistake of

facts, errors oflaw, or abuse of discretion were committed when denying Plaintiffs motion for

74 NT 3/3112009 a.m. at 38-41. 75 I d. at 58.

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post-trial relief Therefore, this trial judge respectfully requests that this appeal be dismissed;

and that the jury verdict and this trial judge's Order dated June 12,2009, be affirmed.

BY THE COURT

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