Daller Greenberg & Dietrich - Pennsylvania Chapter - Product Liability Desk Reference

NEW JERSEY

CAUSES OF ACTION
The Products Liability Act (the Act) applies to actions filed on or after July 22, 1987[i] and subsumes common law claims; basically, the Act is the sole basis of relief for harm caused by defective products.[ii] The Act was not, however, intended to codify all issues of product liability law. For example, the Act does not address certain defenses such as product misuse.[iii] Product liability lawsuits include claims based on strict liability, negligence, and breach of warranty. A state cause of action is commenced in a manner consistent with federal practice, except a response is required within thirty-five (35) days after service of the summons and complaint.[iv]

STATUTES OF LIMITATION
A cause of action for personal injuries must be brought within two years after the cause of action accrues, regardless of whether the claim is based on strict liability, negligence, or warranty.[v]

Although strict liability and negligence claims generally accrue at the time of injury, New Jersey courts apply a rather liberal "discovery rule." The discovery rule tolls the limitations period where a plaintiff was not, and reasonably could not have been, aware of the underlying factual basis for a cause of action.[vi] The limitations period may also be tolled for minors.[vii]

A cause of action for property damage must be brought within six years, unless it is a warranty claim, which must be brought within 4 years from the time the product is delivered.[viii] However, if a warranty explicitly extends to future performance then the cause of action accrues when the breach of duty to perform is or should have been discovered.[ix] Claims for injuries arising from improvements to real property have a ten-year statute of limitations.[x]

STRICT LIABILITY

The Standard
Under New Jersey law, manufacturers and sellers are strictly liable for damages resulting from the use of their products if they fail to produce and distribute products that are reasonably fit, suitable, and safe when used for their intended or reasonably foreseeable purposes.[xi] Although the Act is intended to clarify certain issues related to product liability claims, it does not purport to be a comprehensive codification of all matters.[xii] It applies to all actions for harm caused by products except actions based on breach of express warranties[xiii] and environmental tort actions.[xiv]

Definition of "Defect"
A plaintiff may show a "defect" by establishing: (1) a manufacturing defect; (2) a design defect; and/or (3) an inadequate warning. With respect to a manufacturing defect, the product is measured against the same product made in accordance with the manufacturer's standards.[xv] In a design defect case, the trier of fact engages in a "risk-utility" analysis weighing the following factors: (1) usefulness and desirability of product aspects; (2) the safety aspects of the product; (3) availability of substitutes; (4) ability to eliminate its unsafe characteristics without great expense or impairing usefulness; (5) user's ability to avoid danger; (6) user's anticipated awareness of inherent dangers and their avoidability; and (7) feasibility of spreading loss. The Act converted three elements into absolute affirmative defenses: state of the art; obvious-danger/consumer expectations; and unavoidably unsafe products. The question in a strict liability design defect case is whether, assuming that the manufacturer knew of the defect in the product, he acted in a reasonably prudent manner in marketing the product or in providing the warnings given.[xvi]

In an inadequate warnings case, the Act defines an adequate warning[xvii] and knowledge of the defect is imputed to the manufacturer.[xviii]

Causation
A plaintiff must prove that the product was defective, that the defect existed when the product left the manufacturer's control, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user. [xix] New Jersey has relaxed the standard of determining medical causation in the toxic tort field.[xx]

Contributory Negligence/Assumption of Risk
Plaintiff's assumption of risk type negligence is a comparative defense, i.e., plaintiff's conduct amounts to voluntarily and unreasonably proceeding to encounter a known danger, which is the specific risk alleged to have existed in the product. Plaintiff's negligence is not a defense if it consists of a mere failure to discover a defect in the product or to guard against the possibility of its existence.[xxi] Plaintiff's conduct may also be admissible as it relates to the issue of causation or existence of defect.[xxii]

Obvious Danger/Consumer Expectation
An open and obvious danger/consumer expectations defense is an absolute defense to products liability claims under the Act. There are two circumstances in which this absolute defense is not available to the defendant: if the product is workplace equipment or if the danger can "feasibly be eliminated without impairing the usefulness of the product."[xxiii]

Entities Liable
The Act defines a manufacturer to include anyone who designs or formulates a product.[xxiv] Under New Jersey law, strict liability extends not only to those who manufacture a defective product, but also to any party in the chain of distribution, including distributors, retailers,[xxv] and lessors.[xxvi] However, these entities can relieve themselves of liability by filing an affidavit correctly identifying a solvent manufacturer of the product that can be served in the United States.[xxvii] A party in the chain of distribution that files such an affidavit can still be held liable if it has exercised significant control over the design, manufacture, packaging or labeling of the product; knew or should have known of the defect; or created the defect in the product.[xxviii] Strict liability does not extend to an occasional seller who is not in the business of supplying such products.[xxix] Strict liability may apply in hybrid transactions involving the provision of a product with services.[xxx] A component part manufacturer can be held strictly liable for injuries caused by a defect in that part, provided that the part did not undergo a substantial change after leaving its maker's control.[xxxi] Manufacturers will not be held liable for defects created or caused by someone further down the distribution line.[xxxii]

Inherently Dangerous/Unavoidably Unsafe Products
According to the Act, a manufacturer or seller will not be held liable under a design defect theory if the harm was caused by an unsafe aspect of the product that is an inherent characteristic of the product and if the harm would be recognized by the ordinary person.[xxxiii] A manufacturer will also not be held liable for an unavoidably unsafe aspect of a product that is accompanied by adequate warnings.[xxxiv]

Successor Liability
If the successor corporation acquires all or substantially all of the manufacturing assets of the predecessor corporation and undertakes essentially the same manufacturing operation, it may be subject to strict liability for injuries caused by defects in the product. This is so even if the product was manufactured and sold by the predecessor, especially if the predecessor is no longer financially viable.[xxxv]

Market Share Liability
New Jersey has refused to apply market share liability in product liability cases against manufacturers of vaccines, pharmaceuticals and asbestos,[xxxvi] but has commented that it may not be inhospitable to market share liability in an appropriate context.[xxxvii]

Privity
Privity is not required for recovery under strict products liability.[xxxviii]

Failure to Warn/Inadequate Warning
In a failure to warn case, the alleged product defect is the absence of a warning or an adequate warning to unsuspecting users that the product can potentially cause injury.[xxxix] Plaintiff is required to prove that the absence of a warning was a proximate cause of his harm, and there is a rebuttable presumption that plaintiff would have heeded the warning.[xl] An "adequate product warning or instruction" is defined by the Act and is evaluated in terms of what the manufacturer knew at the time it produced the product and what it should have known based on reasonably available information, taking into account the ordinary knowledge common to anticipated users of the product.[xli]

Post-Sale Duty to Warn
When a manufacturer fails to include a warning on a product, but subsequently learns, or should have learned, of the dangers associated with the product (or if the product contains an inadequate warning to address the later-discovered danger), the manufacturer owes a duty to warn of the dangers as soon as reasonably feasible.[xlii]

Learned Intermediary Doctrine
A pharmaceutical manufacturer generally discharges its duty to warn the ultimate user of prescription drugs devices by supplying physicians with information about the dangerous propensities of the drug.[xliii] This rule, known as the learned intermediary doctrine, does not apply where the manufacturer directly markets the prescription drug or device to consumers, or in cases involving mass inoculation or oral contraceptives.[xliv]

Substantial Alteration/Misuse
A manufacturer will not be held strictly liable if there were substantial alterations of the product that caused injury, and if those alterations were not reasonably foreseeable.[xlv] Plaintiff has the burden of proving there was no misuse of the product or that the misuse was objectively foreseeable.[xlvi] Accordingly, misuse of a product is not an affirmative defense in a products liability case.

State of the Art
Under the Act, "state-of-the-art" is an absolute defense to claims based on design defects.[xlvii] A defendant asserting this defense, must prove only the technological state-of-the-art at the time the product left its control, i.e., there was no practical or technologically feasible alternative design that both would have prevented the harm and not substantially impaired the function of the product. It remains plaintiff's burden to prove non-conformity to the feasible technology.[xlviii] A defendant challenging only the practicality of the alternative device and not its technological feasibility has not asserted the state-of-the-art defense and bears no burden.[xlix]

Malfunction/ Indeterminate Product Defect Test
Malfunctioning of a product in the absence of abnormal use or reasonable secondary cause is evidence of a defect.[l] New Jersey has adopted the indeterminate product defect test of the Restatement (Third) of Torts. Plaintiff need not prove a specific defect if the incident is of the kind that ordinarily occurs as a result of a product defect, and the incident was not solely the result of causes other than product defect existing when the product left the defendant's control.[li]

Standards and Governmental Regulations
Although a defendant's compliance with legislative enactments, administrative regulations, or industry safety codes is admissible, it is not conclusive as to absence of defect or negligence.[lii]

Other Accidents
Evidence of prior substantially similar accidents or occurrences is admissible in product liability actions to prove defect.[liii]

Misrepresentation
Although New Jersey courts have not officially adopted Restatement (Second) of Torts section 402B, the courts have inferred that such a cause of action may be viable.[liv]

Destruction or Loss of a Product
New Jersey courts recognize a cause of action for intentional spoliation, or concealment, of evidence.[lv] In order to support such a claim, the plaintiff must show: (1) pending or probable litigation involving the plaintiff; (2) knowledge on the part of the defendant that litigation exists or is probable; (3) willful destruction of evidence by the defendant designed to disrupt plaintiff's case; (4) disruption of plaintiff's case; and (5) damages proximately caused by the defendant's acts.[lvi]

New Jersey appellate courts have not recognized the tort of negligent spoliation of evidence,[lvii] although at least one trial court has recognized such a claim.[lviii]

Spoliation and concealment actions are inapplicable where the spoliation or concealment is by a plaintiff or his agent in the context of a defendant's ability to defend a lawsuit.[lix] Instead, the remedy is sanctions pursuant to Court Rules, which may include counsel fees,[lx] or dismissal of the action as a last resort.[lxi] Negligent spoliation may result in sanctions, but the spoliator's state of mind has a bearing on the remedy to be applied,[lxii] as may the timing of a request for production.[lxiii]

Economic Loss
A consumer cannot maintain a cause of action sounding in strict products liability or negligence to recover damages solely for the economic loss resulting from a defect in the product.[lxiv]

Crashworthiness
The crashworthiness doctrine imposes strict liability on a manufacturer for injuries sustained in an accident involving a design or manufacturing defect which enhanced injuries but did not cause the accident. Plaintiff bears the burden of proving that the alleged defect was a substantial factor increasing the harm beyond that which would have resulted absent the defect. The burden then shifts to the defendant to prove apportionment. An indivisible harm such as death may be apportioned between two or more causes.[lxv]

NEGLIGENCE
Contributory negligence is a defense; however, the doctrine of comparative negligence is applied unless the plaintiff is more than 50 percent at fault. If plaintiff is found to be 51 percent or more at fault, recovery is barred.[lxvi]

BREACH OF WARRANTY
The principles underlying strict liability and implied warranty are identical in New Jersey.[lxvii] Strict liability theories impose warranty obligations without the need for contractual privity.[lxviii] The value of the damages in a non-personal injury warranty claim is determined by prorating the amount of damages claimed over the life of the warranty.[lxix]

PUNITIVE DAMAGES
Punitive damages must be specifically pled in the complaint.[lxx] A defendant shall not be liable for more than five times the amount of compensatory damages or $350,000, whichever is greater. [lxxi] In order to recover punitive damages, the plaintiff must prove, by clear and convincing evidence, actual malice or a wanton and willful disregard of persons who foreseeably might be harmed. [lxxii] If requested by the defendant, a case involving punitive damages must be bifurcated, with compensatory damages being determined in the first stage and punitive damages, if warranted, determined in the second stage.[lxxiii]

Punitive damages are not permissible for products that have been licensed or approved by the Food and Drug Administration, except where the manufacturer knowingly withheld or misrepresented material, relevant information required to be submitted under the agency's regulations.[lxxiv]

PRE AND POST-JUDGMENT INTEREST
In tort actions, including products liability actions, the court shall include in the judgment simple interest from the date of the institution of the action or from a date six months after the date the cause of action arises, whichever is later, provided that in exceptional cases the court may suspend the running of such prejudgment interest. Prejudgment interest may not be awarded on a punitive damages verdict.[lxxv] Post-judgment interest shall apply to judgments, awards and orders for the payment of money, taxed costs and counsel fees. The annual rate of interest varies and is published in the Court Rules[lxxvi]. Post-judgment interest may be included in the calculation of an attorney's contingency fee.[lxxvii]

EMPLOYER IMMUNITY FROM SUIT
By statute, employers are generally immune from suit by an injured employee.[lxxviii] Employees may file common-law tort claims against an employer under the "intentional wrong" exception to the Workers' Compensation exclusivity rule.[lxxix] The dual capacity doctrine has not found favor in New Jersey.[lxxx] The statute does not preclude an employer from assuming a contractual duty to indemnify a third party through an express agreement. To be entitled to indemnification, the third party must be without fault.[lxxxi]

JOINT AND SEVERAL LIABILITY

The Rule
The New Jersey Comparative Negligence Act requires that defendants are jointly and severally liable. A party may seek recovery of the entire verdict from any party who is found to be 60 percent or more responsible for the total damages. A party may seek the full amount of economic damages, but only the percentage of noneconomic damages attributable to that party, from any party who is between 20 and 60 percent responsible for the total damages. A defendant will be required to pay only his proportionate share of the verdict if he is found to be 20 percent or less responsible.[lxxxii]

Contribution
A joint tortfeasor who is compelled to pay more than his percentage share may seek contribution from other tortfeasors who are liable for plaintiff's injuries.[lxxxiii]

Effect of Settlement
Under New Jersey law, a nonsettling defendant does not have a viable crossclaim against a settling defendant and all crossclaims against a settling defendant should be dismissed as a matter of law.

Even though a nonsettling defendant's crossclaim for contribution against the settling tortfeasor will be dismissed, the nonsettling defendant is entitled to a credit reflecting the settlor's fair share of the amount of the verdict.[lxxxiv]

FICTITIOUS PARTY PRACTICE
A plaintiff may name a defendant in the complaint under a fictitious name if, despite diligent efforts, the defendant's true name and identity is unknown, as long as plaintiff includes an appropriate description sufficient for identification.[lxxxv] Failure to use the fictitious pleading device may result in the action being time-barred, if suit is instituted against a party after the statute of limitations has run.[lxxxvi]

STATUTES
Relevant statutes for product liability actions include the Products Liability Act,[lxxxvii] Punitive Damages Act,[lxxxviii] Workers' Compensation Act,[lxxxix] Comparative Negligence Act,[xc] Joint Tortfeasors Contribution Law,[xci] collateral source rule,[xcii] statutes of limitations,[xciii] and the commercial code section when a breach of warranty is alleged.[xciv]

New Jersey state courts generally follow Model Jury Charges: Civil (4th ed.).[xcv]

Gerhard P. Dietrich
Mark K. Silver
DALLER GREENBERG & DIETRICH, LLP
Three Greentree Centre
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Suite 203
Marlton, NJ 08053
TELEPHONE: (856) 797-8555
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gdietrich@dallergreenberg.com (Email)
www.dallergreenberg.com (Website)

ENDNOTES - NEW JERSEY

[i]N.J. Stat. Ann. § 2A:58C-1 through 58C-8; Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 577 A.2d 1239 (1990).

[ii]Canty v. Ever-Last Supply Co., 296 N.J. Super. 68, 685 A.2d 1365 (Law. Div. 1996); Ramos v. Silent Hoist and Crane Co., 256 N.J. Super. 467, 607 A.2d 667 (App. Div. 1992); Tirrell v. Navistar Intl., Inc., 248 N.J. Super. 390, 591 A.2d 643 (App. Div. 1991). Express warranty claims are preserved by the Act. N.J. Stat. Ann. § 2A:58C-1b(3).

[iii]Jurado v. Western Gear Works, 131 N.J. 375, 619 A.2d 1312 (1993).

[iv]N.J. Court Rules 4:2-2, 4:6-1.

[v]N.J. Stat. Ann. § 2A:14-2. "The Wrongful Death Act, in contrast, requires that: 'Every action brought under this chapter shall be commenced within 2 years after the death of the decedent, and not thereafter.'" N.J.S.A. 2A:31-3; Lafage v. Jani, 166 N.J. 412, 420, 766 A.2d 1066, 1070 (2001).

[vi]See, e.g., Graves v. Church & Dwight Co., Inc., 225 N.J. Super. 49, 541 A.2d 725 (App. Div. 1988), aff'd, 115 N.J. 256, 558 A.2d 463 (1989) (per curiam); Vispisiano v. Ashland Chem. Co., 107 N.J. 416, 527 A.2d 66 (1987); Tevis v. Tevis, 79 N.J. 422, 400 A.2d 1189 (1979). See also Cipollone v. Liggett Group, Inc., 893 F.2d 541 (3d Cir. 1990), cert. granted, 499 U.S. 935, 1115 S. Ct. 1386 (1991), aff'd in part, rev'd in part, 112 S. Ct. 2608 (1992).

[vii] Lafage v. Jani, 166 N.J. 412, 420, 766 A.2d 1066, 1070 (2001)

[viii]N.J. Stat. Ann § 2A:14-1.2.; N.J. Stat. Ann. § 12A:2-725; Yttro Corp. v. X-Ray Marketing, 233 N.J. Super. 347, 559 A.2d 3 (App. Div. 1989); Biocraft Lab., Inc. v. USM Corp., 163 N.J. Super. 570, 395 A.2d 521 (App. Div. 1978); Raskin v. Shulton, Inc., 92 N.J. Super. 315, 223 A.2d 284 (App. Div. 1966).

[ix] N.J.S.A. 12A:2-725(2); Poli v. DaimlerChrysler Corp., 349 N.J.Super. 169, 793 A.2d 104 (App. Div. 2002).

[x]N.J. Stat. Ann. § 2A:14-1.1. This limitation applies to injuries to real or personal property, injuries to the person, and bodily injuries or wrongful death. It preserves causes of action against those in possession or control.

[xi]N.J. Stat. Ann. § 2A:58C-2; Zaza v. Marguess and Nell, Inc., 144 N.J. 34, 675 A.2d 620 (1996); Feldman v. Lederle Lab., 125 N.J. 117, 592 A.2d 1176 (1991); Soler v. Castmaster, Div. of H.P.M. Corp., 98 N.J. 137, 484 A.2d 1225 (1984); Navarro v. George Koch & Sons, Inc., 211 N.J. Super. 558, 512 A.2d 507 (App. Div. 1986); Molino v. B.F. Goodrich Co., 261 N.J. Super. 85, 617 A.2d 1235 (App. Div. 1992).

[xii]N.J. Stat. Ann. § 2A:58C-1 through 58C-8; Zaza, 144 N.J. 34; Fabian v. Minster Mach. Co., Inc., 258 N.J. Super. 261, 609 A.2d 487 (App. Div. 1992).

[xiii]N.J. Stat. Ann. § 2A:58C-1b(3).

[xiv]N.J. Stat. Ann. § 2A:58C-1(4) and 58C-6; James v. Bessemar Processing Co., Inc., 155 N.J. 279, 714 A.2d 898 (1998).

[xv]N.J. Stat. Ann. § 2A:58C-2.

[xvi]Lewis v. American Cynamid Co., 155 N.J. 544, 715 A.2d 967 (1998); Zaza, 144 N.J. 34; Roberts v. Rich Foods, Inc., 139 N.J. 365, 654 A.2d 1365 (1995); Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 607 A.2d 637 (1992); McGarvey v. G.I. Joe Septic Service, Inc., 293 N.J. Super. 129, 679 A.2d 733 (App. Div. 1996); Adelman v. Lupo, 291 N.J. Super. 207, 677 A.2d 230 (App. Div. 1996); Fabian, 258 N.J. Super. 261.

[xvii]"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. Ann. § 2A:58C-4; Zaza, 144 N.J. 34; Feldman v. Lederle Lab., 97 N.J. 429, 479 A.2d 374 (1984).

[xviii]Zaza, 144 N.J. 34; Malin v. Union Carbide Corp., 219 N.J. Super. 428, 530 A.2d 794 (App. Div. 1987).

[xix]N.J. Stat. Ann. § 2A:58C-2; Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir. 1996); Myrlak v. Port Auth. of New York and New Jersey, 157 N.J. 84, 723 A.2d 45 (1999); Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710 (1993); Grassis v. Johns-Manville Corp., 248 N.J. Super. 446, 591 A.2d 671 (App. Div. 1991); O'Brien, 94 N.J. 169. See also Reiff v. Convergent Technologies, 957 F. Supp. 573 (D.N.J. 1997); Brown v. United States Stove Co., 98 N.J. 155, 171-5, 484 A.2d 710 (1984)(manufacturer relieved of liability if superseding intervening cause); Coffman v. Keene Corp., 133 N.J. 581, 608-09, 628 A.2d 710 (1993)(employer's negligent maintenance of an industrial machine may constitute superseding cause).

[xx] James v. Bessemer Processing Co., 155 N.J. 279, 297-98, 714 A.2d 898 (1998); Landrigan v. Celotex Corp., 127 N.J. 404, 413, 605 A.2d 1079 (1992); Rubanick v. Witco Chem. Corp., 125 N.J. 421, 434, 593 A.2d 733 (1991).

[xxi]Lewis, 155 N.J. 544. See also Coffman, 133 N.J. 581; Johansen, 128 N.J. 86; Cartel Capital Corp. v. Fireco, 81 N.J. 548, 410 A.2d 674 (1980); Suter v. San Angelo Foundry & Machine Co., 81 N.J. 150, 406 A.2d 140 (1979). In Suter, the court carved out an exception to the defense in factory settings involving employees engaged in assigned tasks. See also Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518 (2000); Fabian, 258 N.J. Super. 261; Ramos, 256 N.J. Super. 467.

[xxii]Wallace v. Ford Motor Company, 318 N.J. Super 427, 723 A.2d 1226 (App. Div. 1999); Jurado, 131 N.J. 375.

[xxiii] N.J. Stat. Ann. § 2A:58C-3a(2); Roberts, 139 N.J. 365. In Roberts, the New Jersey Supreme Court held that the plaintiff bears the burden of proving the product is workplace equipment or that the danger of the product could feasibly be eliminated without impairing the usefulness of the product in order to preclude the defendant from using the 3a(2) absolute defense. See also McWilliams v. Yamaha Motor Corp., USA, 987 F.2d 200 (3d Cir. 1993); Dewey, 121 N.J. 69; Fabian, 258 N.J. Super. 261.

[xxiv] N.J. Stat. Ann § 2A:58C-8; Hinojo v. New Jersey Manufacturer Insurance Company, 353 N.J. Super. 261(App.Div. 2002), 802 A.2d 551 (2002).

[xxv]Oscar Mayer Corp. v. Mining Trading Corp., 744 F. Supp. 79 (D.N.J. 1990); Promaulayko v. Johns-Manville Sales Corp., 116 N.J. 505, 562 A.2d 202 (1989); Michalko v. Cooke Color and Chem. Corp., 91 N.J. 386, 451 A.2d 179 (1982); Ramos, 256 N.J. Super. 467.

[xxvi]Cintrone v. Hertz Truck Leasing & Rental Servs., 45 N.J. 434, 212 A.2d 769 (1965); Santiago v. E.W. Bliss, Div. of Gulf & Western Mfg. Co., 201 N.J. Super. 205, 492 A.2d 1089 (App. Div. 1985).

[xxvii] N.J.S.A. 2A:58C-8 to -9 (L. 1995, c. 141). Claypotch v. Heller, Inc. 360 N.J.Super. 472, 823 A.2d 844 (App.Div. 2003); See Hinojo, 353 N.J.Super. 269 n. 1.

[xxviii] N.J.S.A. 2A:58C-9.

[xxix]Ramos, 256 N.J. Super. 467; Santiago, 201 N.J. Super. 205.

[xxx]Michalko, 91 N.J. 386; Newmark v. Gimbel's Inc., 54 N.J. 585, 258 A.2d 697 (1969).

[xxxi]Zaza, 144 N.J. 34; McGarvey, 293 N.J. Super. 129; Michalko, 91 N.J. 386; Seeley v. Cincinnati Shaper Co., Ltd., 256 N.J. Super. 1, 606 A.2d 378 (App. Div. 1992); Ramos, 256 N.J. Super. 467.

[xxxii]Miltz v. Borroughs-Shelving, A Div. of Lear Siegler, Inc., 203 N.J. Super. 451, 497 A.2d 516 (App. Div. 1985).

[xxxiii]N.J. Stat. Ann. § 2A:58C-3a(2); Roberts, 139 N.J. 365; Dewey, 121 N.J. 69; Fabian, 258 N.J. Super. 261.

[xxxiv]N.J. Stat. Ann. § 2A:58C-3a(3). This section is not intended to apply to machinery or other equipment encountered in the workplace for which dangers can feasibly be eliminated. See Fabian, 258 N.J. Super. 261; see also Snyder v. Mekhjian, 244 N.J. Super. 281, 582 A.2d 307 (App. Div. 1990), aff'd, 125 N.J. 328, 593 A.2d 318 (1991).

[xxxv]Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 709 A.2d 779 (1998); Ramirez v. Amsted Indus., Inc., 86 N.J. 332, 431 A.2d 811 (1981); Saez v. S&S Corrugated Paper Machinery Co., 302 N.J. Super. 545, 695 A.2d 740 (App. Div. 1997); Class v. American Roller Die Corp., 294 N.J. Super. 407, 683 A.2d 595 (Law Div. 1996), aff'd in part, rev'd in part, 308 N.J. Super. 47, 705 A.2d 390 (App. Div. 1998); see also Leo v. Kerr-McGee Chemical Corporation, 37 F.3d 96 (3d Cir. 1994); Ramos, 256 N.J. Super. 467; Brotherton v. Celotex Corp., 202 N.J. Super. 148, 493 A.2d 1337 (Law Div. 1985). Contra Pacius v. Thermtroll Corp., 259 N.J. Super. 51, 611 A.2d 153 (Law Div. 1992), wherein the doctrine was extended in instances where the product line was not continued.

[xxxvi]Shackil v. Lederle Lab., A Div. of American Cyanamid, 116 N.J. 155, 561 A.2d 511 (1989) (DPT vaccine); see Namm v. Charles E. Frost and Co., Inc., 178 N.J. Super. 19, 427 A.2d 1121 (App. Div. 1981) (manufacturers and distributors of prescription drug DES); Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 568 A.2d 1196 (App. Div. 1989) (asbestos).

[xxxvii]Shackil, 116 N.J. 155; see Lewis, 155 N.J. 544 (noting opinion is "confined solely to the context of vaccines" and should not be considered per se bar to imposition of market share liability in appropriate context).

[xxxviii]Dewey, 121 N.J. 69; Spring Motor Distrib., Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985); H. Rosenblum, Inc. v. Adler, 93 N.J. 324, 461 A.2d 138 (1983).

[xxxix] N.J. Stat. Ann. § 2A:58C-4; Taylor by Wurgaft v. General Elec. Co., 208 N.J. Super. 207, 505 A.2d 190 (App. Div. 1986); Coffman, 257 N.J. Super. 279, aff'd, 133 N.J. 581 (1993).

[xl]Sharpe v. Bestop Inc., 314 N.J. Super. 54, 713 A.2d 1079 (App. Div. 1998), aff'd,. 158 N.J. 329, 730 A.2d 285 (1999); Theer v. Philip Carey Co., 133 N.J. 610, 628 A.2d 724 (1993); Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 485 A.2d 305 (1984); Coffman, 257 N.J. Super. 279; aff'd,133 N.J. 581; Graves v. Church & Dwight Co., Inc., 267 N.J. Super. 445, 631 A.2d 1248 (App. Div. 1993), aff'd, 115 N.J. 256; see also Reiff, 957 F. Supp. 573.

[xli]N.J. Stat. Ann. § 2A:58C-4; Canty, 296 N.J. Super. 68; Butler v. PPG Indus., Inc., 201 N.J. Super. 558, 493 A.2d 619 (App. Div. 1985). Section C-4 creates a rebuttable presumption of an adequate warning in the case of a drug, device, or food product approved or prescribed by the Food and Drug Administration.

[xlii]N.J. Stat. Ann. § 2A:58C-4; Dixon v. Jacobsen, 270 N.J. Super. 569, 637 A.2d 915 (App. Div. 1994); Molino, 261 N.J. Super. 85; Seeley, 256 N.J. Super. 1; Lally v. Printing Mach. Sales and Serv. Co., Inc., 240 N.J. Super. 181, 572 A.2d 1187 (App. Div. 1990).

[xliii] Perez v. Wyeth Lab., Inc., 161 N.J. 1, 734 A.2d 1245 (1999); see also N.J. Stat. Ann. § 2A:58C-4; Spychala v. G.D. Searle & Co., 705 F. Supp. 1024 (D.N.J. 1988); Niemiera v. Schneider, 114 N.J. 550, 555 A.2d 1112 (1989); London v. Lederle Lab., Div. of Am. Cyanamid Co., 290 N.J. Super. 318, 675 A.2d 1133 (App. Div. 1996), aff'd, Batson v. Lederle Lab., 152 N.J. 14, 702 A.2d 471 (1997).

[xliv]Perez, 161 N.J. 1.

[xlv]Rivera v. Westinghouse Elevator Co., 107 N.J. 256, 526 A.2d 705 (1987); Brown v. United States Stove Co., 98 N.J. 155, 484 A.2d 1234 (1984).

[xlvi]Lewis, 155 N.J. 544; Jurado, 131 N.J. 375; Ridenour v. Bat Em Out, 303 N.J. Super. 634, 707 A.2d 1093 (App. Div. 1998); London, 290 N.J. Super. 318, aff'd, Batson, 152 N.J. 14.

[xlvii]N.J. Stat. Ann. § 2A:58C-3a(1). N.J. Stat. Ann. § 2A:58C-3(b) recognizes an exception with certain egregiously unsafe or ultrahazardous products that have hidden risks or could seriously injure third persons and have little or no usefulness. See also Lewis, 155 N.J. 544; Roberts, 139 N.J. 365; Fabian, 258 N.J. Super. 261.

[xlviii]N.J. Stat. Ann. §2A:58C-3a(1), 3b; Cavanaugh, 164 N.J. 1; Lewis, 155 N.J. 544; Seeley, 256 N.J. Super. 1; Fabian, 258 N.J. Super. 261.

[xlix] Cavanaugh, 164 N.J. 1

[l]Scanlon v. General Motors Corp., 65 N.J. 582, 326 A.2d 673 (1974) (cited with approval in Myrlak, 157 N.J. 84, 723 A.2d 45 (1999)).

[li]Myrlak, 157 N.J. 84, 723 A.2d 45 (1999).

[lii]Sanna v. National Sponge Co., 209 N.J. Super. 60, 506 A.2d 1258 (App. Div. 1986); Smith v. Kris-Bal Realty, Inc., 242 N.J. Super. 346, 576 A.2d 934 (App. Div. 1990).

[liii]Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241 (1990); Wolf by Wolf v. Proctor & Gamble Co., 555 F. Supp. 613 (D.N.J. 1982).

[liv]Herbstman v. Eastman Kodak Co., 68 N.J. 1, 342 A.2d 181 (1975); Realmuto v. Straub Motors, Inc., 65 N.J. 336, 322 A.2d 440 (1974); Graves, 225 N.J. Super. 49, aff'd, 115 N.J. 256.

[lv] Viviano v. CBS, Inc., 251 N.J. Super. 113, 597 A.2d 543 (App. Div. 1991).

[lvi] Viviano, 251 N.J. Super. 113.

[lvii] Proske v. St. Barnabas Med. Ctr., 313 N.J. Super. 311, 712 A.2d 1207 (App. Div. 1998); Allis Chalmers Corp. v. Liberty Mutual Ins. Co., 305 N.J. Super. 550, 70-2 A.2d 1336 (App. Div. 1997).

[lviii] Callahan v. Stanley Works, 306 N.J. Super. 488, 703 A.2d 1014 (Law Div. 1997).

[lix] Hewitt v. Allen Canning Co., 321 N.J Super. 178, 728 A.2d 319 (App. Div. 1999).

[lx] Aetna Life and Cas. Co. v. Imet Mason Contractors, 309 N.J. Super. 358, 707 A.2d 180 (App. Div. 1998); Hewitt, 321 N.J Super. 178; N.J. Court Rule 4:23-4, comment.

[lxi] Aetna Life and Cas. Co., 309 N.J. Super. 358.

[lxii] Hewitt, 321 N.J Super. 178; Aetna Life and Cas. Co., 309 N.J. Super. 358.; Hirsch v. General Motors Corp., 266 N.J. Super. 222, 628 A.2d 1108 (Law Div. 1993).

[lxiii] Barbera v. DiMartino, 305 N.J. Super. 617, 702 A.2d 1370 (App. Div. 1997) (refusing to require an adverse inference spoliation charge absent a showing of willful destruction of evidence and where plaintiff's discovery requests were not prompt).

[lxiv]Easling v. Glen-Gery Corp., 804 F. Supp. 585 (D.N.J. 1992); Alloway v. General Marine Indust., L.P., 149 N.J. 620, 695 A.2d 264 (1997); Spring Motors Distributors, 98 N.J. 555; Goldson v. Carver Boat Corp., 309 N.J. Super. 384, 700 A.2d 193 (App. Div. 1998).

[lxv]Poliseno v. General Motors Corp., 328 N.J. Super. 41, 744 A.2d 679 (App. Div. 2000) certif. den., 165 N.J. 138, 754 A.2d 1213 (2000); See also Green 310 N.J. Super. 507, 709 A.2d 205 (App. Div. 1998) certif. den., 156 N.J. 381, 718 A.2d 1210 (1998).

[lxvi]N.J. Stat. Ann. § 2A:15-5.1-5.3; Suter, 81 N.J. 150; See also Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 579 A.2d 1241 (1990)(establishing formula for calculating damages where plaintiff contributorily negligent, one defendant negligent, and other defendant strictly liable).

[lxvii]Realmuto, 65 N.J. 336; see also Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980).

[lxviii]Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) (called into question by Crispin v. Volkswagen AG, 248 N.J. Super. 540, 591 A.2d 966 (1991)).

[lxix]525 Main Street Corp., v. Eagle Roofing Co., 34 N.J. 251, 168 A.2d 33 (1961).

[lxx]N.J. Stat. Ann. § 2A:15-5.11.

[lxxi]N.J. Stat. Ann. § 2A:15-5.14. The Punitive Damages Act applies to all actions filed on or after February 26, 1996. See N.J. Stat. Ann. § 2A:15-5.9. Actions filed prior to this date were controlled by N.J. Stat. Ann. § 2A:58C-5 (deleted by amendment, P.L. 1995, c. 142).

[lxxii]N.J. Stat. Ann. § 2A:15-5.12; Herman v. Sunshine Chem. Specialties, Inc., 133 N.J. 329, 627 A.2d 1081 (1993). In determining whether punitive damages are to be awarded, the trier of fact must consider all the relevant evidence, including the following: (1) the likelihood at the relevant time that serious harm would arise from the defendant's action; (2) the defendant's awareness of reckless disregard of the likelihood that serious harm would arise from his conduct; (3) the conduct of the defendant upon learning that its initial conduct would likely cause harm; and (4) the duration of the conduct or any concealment of it be the defendant. N.J. Stat. Ann. § 2A:15-5.12.

[lxxiii]N.J. Stat. Ann. § 2A:15-5.13.

[lxxiv]N.J. Stat. Ann. § 2A:58C-5c.

[lxxv]Ward v. Zelikovsky, 263 N.J. Super. 497 (App. Div. 1993), rev'd on other grounds, 136 N.J. 516, 643 A.2d 972 (1994); Belinski v. Goodman, 139 N.J. Super. 351, 354 A.2d 92 (App. Div. 1976).

[lxxvi]N.J. Court Rule 4:42-11 and Publisher's Note. The rate has varied from 8.5% to 3.5% in recent years. The rate is anticipated to be 3.0% for the year commencing January 1, 2003.

[lxxvii]N.J. Court Rules 4:42-11

[lxxviii]N.J. Stat. Ann. § 34:15-1

[lxxix]N.J. Stat. Ann. § 34:15-8; Kristiansen v. Morgan, 153 N.J. 298, 708 A.2d 1173 (1998).

[lxxx]DeFigueiredo v. U.S. Metals Refining Co., 235 N.J. Super. 407, 563 A.2d 50 (App. Div. 1989); Doe v. St. Michael's Med. Ctr., 184 N.J. Super. 1, 445 A.2d 40 (App. Div. 1982).

[lxxxi]Ramos v. Browning Ferris Industries of South Jersey, Inc., 103 N.J 177, 510 A.2d 1152 (1986); Kane v. Hartz Mountain Industries, Inc., 278 N.J. Super. 129, 650 A.2d 808 (App. Div. 1994), aff'd, 143 N.J. 141, 669 A.2d 816 (1994).

[lxxxii] N.J. Stat. Ann. § 2A:15-5.3.

[lxxxiii]N.J. Stat. Ann. § 2A:15-5.3(e); Ripa, 282 N.J. Super. 373; Promaulayko, 116 N.J. 505.

[lxxxiv]N.J. Stat. Ann. § 2A:53A-1; Mort v. Bess, 287 N.J. Super. 423, 671 A.2d 189 (App. Div. 1996); Tefft v. Tefft, 192 N.J. Super. 561, 471 A.2d 790 (App. Div. 1983); Young v. Latta, 123 N.J. 584, 589 A.2d 1020 (1991); Ripa, 282 N.J. Super. 373.

[lxxxv]N.J. Court Rule 4:26-4.

[lxxxvi]Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 693 A.2d 1248 (App. Div. 1997).

[lxxxvii]N.J. Stat. Ann. § 2A:58C-1 et seq.

[lxxxviii]N.J. Stat. Ann. § 2A:15-5.9 et seq.

[lxxxix]N.J. Stat. Ann. § 34:15-1 et seq.

[xc]N.J. Stat. Ann. § 15-5.2 et seq.

[xci]N.J. Stat. Ann. § 2A:53A-1 et seq

[xcii]N.J. Stat. Ann. § 2A:15-97.

[xciii] N.J. Stat. Ann. § 2A:14-2.

[xciv]N.J. Stat. Ann. §12A:2-313 through 2-318.

[xcv]New Jersey Institute for Continuing Legal Education, Model Jury Charges: Civil (4th ed. and 1999 supplement).

Last update: Saturday, 23-Feb-2008 03:23:23 PST