The deposition of William Rivera was read into the record. He testified that when plaintiff had his accident, the Mauser press was hot and the workers were wearing protective gloves (N.T. 2.13). The use of the come-along instead of the forklift was his idea (N.T. 2.14). While he saw "the Germans" change the core without a forklift, he did not see them use a come-along (N.T. 2.13).
Also qualified as an expert by the plaintiff was Alfred Ellis Baccini, a safety design engineer. Mr. Baccini was of the opinion that the difficulty in removing the core from the machine was caused by a space called a pinhole extension which allowed molten plastic to overflow (N.T. 2.45). Baccini testified that Mauser must have been aware that the core would thereby stick, as the pinhole extension was designed into the machine to enhance its operation (N.T. 2.46). Baccini opined that both the forklift method and the come-along methods of forcing down the core were improper improvisations used to overcome a design defect in the machine (N.T. 2.50). He stated plaintiff's accident was a foreseeable result of Mauser's failure to design a method to properly remove the core.
Defendants' case in chief began with Charles Morelli, plant manager at Russell Stanley. He testified that after the modifications to the machine he was never told by the Mauser people not to use the forklift method (N.T. 3.12). Neither was he told the core had to be disassembled by hand. He testified the forklift was available for the workers to use on the day of the accident (N.T. 3.16-17). On cross-examination, it was elicited that Mauser never conducted any training sessions to instruct the Russell Stanley employees on the proper method of servicing the core (N.T. 3.22). The manuals published by Mauser set out the steps for removing the core, but not what tools, if any, to use for the job (N.T. 3.24).
Next to testify was Dietmar Przytulla, a consulting engineer with Mauser. He testified that the forklift method of taking down the core holder was the method used by Mauser in Germany in the early 1970's (N.T. 3.42). At that time the witness had come to the Russell Stanley plant to instruct William Rivera in the procedure for removing the core. He never told Rivera to substitute a come-along; he had never seen anyone use a come-along, here or in Germany (N.T. 3.42).
On cross-examination, Przytulla confirmed that the machine was specifically designed to allow plastic to back up into its flow channel, (N.T. 3.65), that the design of the core made it difficult to remove, (N.T. 3.66), and that someone's hands had to be near the core during the procedure to remove threading bolts (N.T. 3.66).
Also testifying for the defense was Dr. Thomas A. Hunter, an engineer with a background in safety design. After describing the forklift/jack method of removing the core, Dr. Hunter opined that it was an acceptable positive mechanical means of doing the job (N.T. 3.12). He also testified that there is no substantial difference in the manner in which core holders were placed in machines in 1973, the time the machine was placed in service, and 1986, the time of the accident. Significantly, Dr. Hunter also offered an opinion identical to that offered by Dr. Cunitz on the need for warnings. He opined that warnings would be appropriate for the hazards of heat and of the core falling out (N.T. 3.14). He stated, however, that heat was an obvious risk, as one can feel heat radiating, and the risk of falling pieces was also obvious, as all of us have knowledge of gravity. He was of the opinion that point of use warnings would be "absolutely useless," as information was passed from man to man in hands-on training (N.T. 3.15). He considered Rivera's decision to deviate from the forklift/jack method to be the cause of the plaintiff's injuries (N.T. 3.16).
PLAINTIFF'S J.N.O.V. ARGUMENTS
Plaintiff makes three alternate arguments why the verdict was against the weight of the evidence and, therefore, that J.N.O.V. should be entered. First, plaintiff contends that the evidence was uncontroverted that the core apparatus posed a danger and that a warning was necessary to render the product reasonably safe for its intended purpose. Plaintiff bases this argument on the testimony of Dr. Hunter which corroborated the testimony of Dr. Cunitz.
To grant a motion for judgment notwithstanding the verdict, the court must find, as a matter of law, that the prevailing party failed to adduce sufficient facts to justify the verdict. Link v. Mercedes Benz of North America, Inc., 618 F. Supp. 679, 693 (E.D. Pa. 1985), aff'd in part 788 F.2d 918 (3d Cir. 1986). Where, as here, the moving party also had the burden of persuasion at trial, the standard for granting J.N.O.V. is even more stringent:
The judge [must] . . . test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding.
Id., quoting Gatenby v. Altoona Aviation Corp., 407 F.2d 443, 446 (3d Cir. 1968), Mihalchak v. American Dredging Co., 266 F.2d 875, 877 (3d Cir. 1959).
While plaintiff is correct that Dr. Hunter did opine that warnings would be "appropriate" for the hazards of heat and falling parts, he also stated these were obvious risks to the plaintiff, who was a knowledgeable user of the blow molder. He further termed point of use warnings "absolutely useless." We, therefore, find it was within the jury's ambit to find that the lack of a point of use warning did not constitute a defect in the machine.
Second, plaintiff contends the evidence was uncontroverted that the Mauser machine was defective in that it was knowingly designed to allow plastic to stick to the core holder, which fit snugly into the machine, making its removal impossible without means other than gravity. While the defense did not offer direct contradictory evidence to Mr. Baccini's opinion that the machine was so defective, defendant's cross-examination of Baccini did place before the jury the question of what weight to attach to his opinion. It is not for the court on a J.N.O.V. motion to repass on the credibility of a witness or substitute our judgment for that of the jury. Blair v. Manhattan Life Ins. Co., 692 F.2d 296 (3d Cir. 1982).
Third, the plaintiff argues that J.N.O.V. should be granted because there was insufficient evidence to support any finding other than that the defects in the Mauser machine constituted the proximate cause of the plaintiff's injuries. Our summary of Dr. Hunter's testimony shows that argument to be without basis. Dr. Hunter testified that he considered William Rivera's decision to deviate from the forklift/jack method to be the cause of the plaintiff's injuries. Therefore, sufficient evidence was before the jury to support their finding and discount the entry of J.N.O.V.
PLAINTIFF'S NEW TRIAL ARGUMENTS
In addition to his arguments for J.N.O.V., plaintiff makes three alternate arguments for new trial. He argues (1) the court improperly permitted cross-examination into plaintiff's skill in using the Mauser blow press; (2) the court improperly limited impeachment of defendant's expert; and (3) the court erred in failing to include in its charge instructions offered by the plaintiff.
The authority to grant a new trial is entrusted to the discretion of the trial court, whose "duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice § 59.08 at 59-140, Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980), Thomas v. E. J. Korvette, Inc., 476 F.2d 471, 474-475 (3d Cir. 1973). A district court may not substitute its own judgment for that of the jury simply because the court might have come to a different conclusion. Douglas W. Randall, Inc. v. A.F.A. Protective Systems, Inc., 516 F. Supp. 1122, 1124 (E.D. Pa. 1981), aff'd mem. 688 F.2d 820 (3d Cir. 1982). A new trial must be granted if there was substantial error in the admission or exclusion of evidence. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 85 L. Ed. 147, 61 S. Ct. 189 (1940), Marder v. Conwed Corp., 75 F.R.D. 48 (E.D. Pa. 1977). In other words, a district court may grant a new trial if required to prevent injustice or to correct a verdict that was against the weight of the evidence. American Bearing Co., Inc. v. Litton Industries, 729 F.2d 943, 948 (3d Cir. 1984), cert. denied, 469 U.S. 854, 105 S. Ct. 178, 83 L. Ed. 2d 112 (1984).
As to plaintiff's argument that the court erred in permitting cross-examination into plaintiff's skill in using the machine, plaintiff's counsel made two objections, first to a question inquiring into plaintiff's responsibility in maintaining the machine and, second, to a question inquiring whether plaintiff considered himself competent at doing his work at the Russell Stanley plant. In Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984) the New Jersey Supreme Court made clear that, although it did not accept an obvious danger rule, a plaintiff's pre-existing knowledge might negate a claim that the lack of a warning was the cause of a plaintiff's injury. Therefore, evidence of Mr. Grace's knowledge of the workings of the press was relevant, under the substantive law of New Jersey, on his defective warning claim.
Likewise, this same rationale negates plaintiff's claims of error regarding cross-examination of Dr. Cunitz. Further, we note, plaintiff's counsel did not object to the specific questions to Dr. Cunitz she now claims were error. It is well settled that objections not raised at trial are waived. Fed. R. Ev. 103(a)(1); see, e.g. Gonzalez v. Volvo of America Corp., 734 F.2d 1221 (7th Cir. 1984). The purpose of this rule is to inform the court of possible errors so that there is a timely opportunity for them to be corrected.
Further, while plaintiff claims error on the issues of contributory negligence, assumption of the risk and the sophisticated purchaser issues, counsel admits that in our charge, the court acknowledged that these defenses were not permitted under the law of New Jersey. Counsel points to no specific objectionable questions on these issues, let alone to properly preserved objections.
Plaintiff's next point of error is that the court did not permit the plaintiff to cross-examine Dr. Hunter, for the purpose of impeachment, on the subject of a prior lawsuit involving his employer, American Standard Testing Bureau. The testimony would have alleged that A.S.T.B. had previously misrepresented results of expert services. Reviewing the transcript of Dr. Hunter's cross-examination, however, one will find no reference to this line of questioning. In an informal discussion, conducted off the record, plaintiff's counsel raised this issue to the court. The court questioned the relevancy of this testimony, however, made no decision on its admissibility. Counsel was invited to make an offer of proof on the record. Apparently, no such offer was in fact made on the record. As the defendants have properly asserted, plaintiff thereby waived the right to claim error. Fed. R. Ev. 103(a)(2).
Plaintiff's co-counsel have each filed affidavits with the court attesting that an offer of proof was made and that a request was made of the official court reporter to review the notes of testimony to locate the offer of proof. Plaintiff has not, however, moved to amend the record. The court strongly believes that, even if the proffered testimony were admitted, it would not have changed the jury's determination of the merits. Therefore, we find that the evidence if offered and excluded was at best harmless error. We thus deny plaintiff's request for new trial on this ground.
Plaintiff's final category of arguments relates to the court's charge to the jury. Plaintiff raises as error the court's failure to include seven requested points for charge in our instructions. However, as the defendant has again correctly asserted, the plaintiff has failed to preserve certain of his assigned points of error. While the new trial motion contains objections to the court's refusal to read plaintiff's Proposed Points for Charge Nos. 35, 40, 58(a), 58(b) and Supplemental Points 2, 3 and 5, only 58(a), 58(b), 3 and 5 were raised by plaintiff's counsel at sidebar immediately following the reading of the charge. Fed. R. Civ. P. 51 provides clearly that:
No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.
We, therefore, address only those points properly preserved.
Points 58(a) and (b) read as follows:
58a. I instruct you that a seller has a duty to take feasible steps to render his product safe and the seller may not rely on the haphazard conduct of the ultimate purchaser to remedy or protect against defects for which he is responsible.