751 A.2d 564 (1999) 331 N.J. Super. 134

Ronald J. CAVANAUGH, Plaintiff-Respondent,
v.
SKIL CORPORATION, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued May 19, 1999. Decided July 9, 1999.

*568 Joseph DiRienzo, Sr. and Joseph DiRienzo, Jr., Fanwood, for defendant-appellant (DiRienzo & Wallerstein, attorneys; Mr. DiRienzo, Sr. and Mr. DiRienzo, Jr., on the brief).

Bruce H. Zamost, Moorestown, for plaintiff-respondent (Colton, Stein & Zamost, attorneys; Mr. Zamost, on the brief).

Eric J. Ludwig, Lawrenceville, for amicus curiae The Association of Trial Lawyers of America—New Jersey (Stark & Stark, attorneys; Mr. Ludwig and Michael G. Donahue, on the brief).

Herrick, Feinstein, Princeton, for amicus curiae Product Liability Advisory Council, Inc. (Hugh F. Young, Jr., of the Virginia Bar, Reston, VA, of counsel; Ronald J. Levine, Hackensack and Patrick E. Bradley, New York City, on the brief).

Before Judges KING, WALLACE and NEWMAN. *565 *566

*567 The opinion of the court was delivered by KING, P.J.A.D.

I

Defendant Skil Corporation appeals a $200,155.20 judgment entered upon a jury verdict in this product liability case. Plaintiff, a carpenter, lost one toe and severely damaged another after he had placed down a Skilsaw portable circular saw which "travelled" eighteen inches across the subfloor of a house that plaintiff was framing and ran over his right foot.

Defendant seeks reversal of the judgment and a new trial on several grounds. Defendant contends the trial judge committed reversible error when he (1) charged the jury on the state-of-the-art defense, over defendant's objection; (2) gave a jury charge on the state-of-the-art defense, which improperly shifted the burden of proof to defendant; (3) permitted plaintiff to offer evidence of post-accident use of the saw though plaintiff had failed to disclose this evidence in discovery; (4) permitted plaintiff to offer evidence and make arguments that defendant's conduct was a basis for imposing liability; (5) permitted plaintiff to cross-examine defendant's expert by asking questions that had no good-faith factual basis; and (6) denied defendant's motion for judgment at the close of all the evidence.

Defendant also contends, for a number of reasons, that we should "overrule" Tirrell v. Navistar Intern., Inc., 248 N.J.Super. 390, 591 A.2d 643 (App.Div.), certif. denied, 126 N.J. 390, 599 A.2d 166 (1991), order a new trial, and permit defendant to assert the comparative negligence defense. The propriety of Tirrell is also the subject of briefs submitted by the amici curiae. We find no reversible error and affirm.

*569 II

On January 3, 1992 plaintiff filed a two-count complaint in the Superior Court, Law Division, Burlington County. The complaint sought compensatory and punitive damages from defendant and John Does 1 through 20 for injuries plaintiff sustained while using a Skilsaw portable circular saw (Skilsaw) during the course of his employment as a carpenter. The Skilsaw was manufactured by defendant.

The first count alleged that (1) defendant negligently designed, manufactured, assembled, produced, tested, inspected, distributed, marketed, leased or sold the Skilsaw and negligently failed to properly instruct or warn plaintiff about its use; and (2) the Skilsaw was defective in its design, manufacture and lack of proper instructions and warnings. The second count alleged that John Does 1 through 20 "failed and neglected to take any action to guard workers, such as plaintiff ... against dangers posed by the hazardous condition" of the Skilsaw.

The motion judge granted defendant's motion to dismiss plaintiff's punitive damages claim with prejudice and his motion in limine to bar defendant from using the comparative negligence defense.

During the seven-day jury trial before Judge Bookbinder and a jury in December 1996 plaintiff's theory of liability was design defect only. On December 11, 1996 the jury found that the Skilsaw was defectively designed and that the design defect was a proximate cause of plaintiff's injuries. The jury awarded plaintiff $160,000 in damages. On January 8, 1997 the award, plus prejudgment interest, was reduced to judgment in the amount of $200,155.20.

III

On February 14, 1990 plaintiff was employed as a carpenter by Adonis Carpentry Contracting, Inc. (Adonis), a Voorhees, New Jersey company. He had worked for them for three weeks. On that day, he was framing a new house in Medford, Burlington County.

As a carpenter, plaintiff was required to use a portable circular saw. On February 14 Adonis's carpenters had two such saws available for their use at the jobsite. Both were Skilsaws. Plaintiff chose the subject Skilsaw because it had "a nice cord" and a better blade than the other. The other saw was much older than the two-year-old saw plaintiff chose.

Plaintiff identified the Skilsaw in the courtroom as the saw he had been using at the time of his injury. He agreed it was "in pretty much the same condition as it was" on February 14, 1990. Plaintiff demonstrated how the injury occurred for the jury.

Plaintiff said the Skilsaw had been sitting on the ground. Plaintiff propped the Skilsaw on his foot and, while firmly holding it, made a straight cut through a "two by four." Either as soon as the cut two by four fell to the ground or as the piece was falling to the ground, plaintiff let go of the saw's trigger and stood up. When plaintiff released the trigger, he heard the saw's motor stop. However, the blade continued to "spin pretty fast." Plaintiff made sure there was a clear spot on the deck for the saw, which he found "about eighteen inches" to his right. He did not want to put the saw down on a piece of wood lying there. When plaintiff set the saw down, it ran over his foot. About four to five seconds had elapsed between the time that plaintiff released the trigger and set the saw down. There was no debris in the area where plaintiff set down the saw. Plaintiff was wearing work boots which were almost new.

At the time of the accident, the outside walls of the house were being framed. Although there were saw horses at the job site, none was on the second floor of the house. Plaintiff gave a number of reasons why he did not take a saw horse up to the second floor. In any event, he saw no advantage to using a saw horse. Plaintiff *570 said that he had cut two by four's in the manner he did at the time of the accident "all [his] life." In fact, every carpenter he knew cut two by four's that way.

Plaintiff had used the Skilsaw for about two hours on the day of the accident. During that time, plaintiff made about twenty to thirty cuts but admitted that this was "hard to say." He cut one piece at a time and held each piece of wood very firmly over his left foot as he cut through it.

Plaintiff did not remember changing the saw's blade during that two-hour period. He did not notice any malfunction with the lower blade guard. Plaintiff had checked the lower blade guard that morning, though he could not recall when, because doing so was "a common habit" which was done to "get all the sawdust out so that you're working with a safe tool." Plaintiff demonstrated his routine for checking the blade guard and said that he removed any sawdust by banging the lower guard.

Plaintiff pointed out the saw's lower guard to the jury and showed the jury how the guard was "supposed to snap back like that." On the day of the accident, however, the guard "didn't come down. It stayed in the open position." Plaintiff knew that the guard did not close because the "saw ran over my foot, And when I pulled the saw out of my foot, I looked and the guard was stuck open." This was when plaintiff first discovered that the guard had not closed.

According to plaintiff, the saw's blade had made an eighteen-inch cut on the subfloor "from where it traveled [backwards] across the deck." The "deck" was actually the subfloor of the house. Plaintiff did not know why the saw's guard did not close.

Plaintiff said he never intentionally wedged a lower guard of a circular saw in the open position although other carpenters had done this on other occasions. He never used a saw which had the guard wedged open. To wedge the guard open, you place a wedge of wood up into the upper guard. Plaintiff had never seen this done with a nail, which he described as ridiculous. Plaintiff had seen another carpenter injured after wedging a guard open; this taught him never to make the same mistake.

Plaintiff admitted that when he made compound miter cuts, he held the guard open but he did this with his left hand, not with a wedge. Plaintiff was not making such cuts on the day of the accident. Plaintiff was steadfast in his representation that he never intentionally wedged the guard open on the saw or tried to bypass the lower blade guard, including on the day of the accident. According to plaintiff, if he had wedged the guard open, this would have slowed his productivity significantly. He would have to wait for about twenty seconds after each cut for the blade to stop spinning. Thus, wedging the guard open would have made his job more difficult and more dangerous. Plaintiff could think of no common sense reason for wedging open the guard.

After the accident, plaintiff never inspected the saw. The reattachment of his toe was more important to him at the time. Plaintiff explained that when he put the saw down, he was not able to see if the guard was in place because only the side of the saw was visible; his focus was on finding a flat, even surface to set the saw upon.

After the accident, plaintiff screamed for help. Co-worker Frank Flora, who had retrieved the missing toe, took him to the emergency room at West Jersey Hospital in Voorhees, about twenty minutes away. The doctors were able to reattach a portion of plaintiff's fourth toe with a pin; they were unable to save the fifth toe, the one that Flora found. Plaintiff was hospitalized for three days.

Approximately two weeks after the injury, plaintiff returned to the worksite to thank his co-workers for their help. At the time of his visit, plaintiff observed the saw that he had been using at the time of *571 his injury. The saw was plugged in, sitting on a deck. The Skilsaw in the courtroom had scratches on it, some of which plaintiff attributed to being stacked in the back of the truck where it was stored.

Co-worker John Scott testified on plaintiff's behalf. Scott did not know whether anyone had wedged the saw on the day of or prior to plaintiff's accident. He did know, however, that other people had wedged the Skilsaw after the accident though he did not know their names, and he never saw them do it. Scott relied on other people's statements in testifying that others had wedged the guard. Scott later said: "it's just a fact when [some people] cut rafters they wedge."

Scott had worked with plaintiff every day on the Medford jobsite for three weeks, until the accident. He saw plaintiff use the Skilsaw every day during that time. The lower guard was not intentionally wedged open during that time, including the day of the accident, and Scott had never seen plaintiff do so. On the day of the accident, Scott used the Skilsaw that injured plaintiff after plaintiff had been taken to the hospital. Scott was not asked how long he had used the saw or how many cuts he had made.

Louis E. Howarth (Howarth), a mechanical engineer, testified as an expert on behalf of plaintiff. Howarth inspected the saw three months after the accident. Howarth had no information that suggested the saw had been fixed or repaired after the accident. He did not remove the blade and look for wedge marks underneath.

According to Howarth, the American National Standards Institute (ANSI) had taken the position that Underwriters Laboratory (UL) 45 was the code which should be followed with respect to portable woodworking tools. The UL code stated that a saw should have a retractable lower guard, which shall automatically retract to the closed position when the saw is not in use. The code further stated that a guard retracting handle was acceptable on a circular saw if "to manipulate the handle the operator's finger need not be in the area of which the teeth are exposed; and also that the guard is not likely to jam in any position during intended operation." This standard existed in 1988 when the subject Skilsaw was manufactured.

Howarth conceded that in 1988, the UL-45 did not require a blade brake on a portable circular saw. However, Howarth contended that, as of 1995, it did, though he did not have the UL-45 with him. According to Howarth, every portable circular saw sold as of the time of trial should have had a blade brake. Nonetheless, Howarth acknowledged that four saws purchased by defendant's counsel the day before contained no blade brakes.

Howarth identified the basic principles of accident prevention with respect to the manufacture of power tools as (1) the hazard should be designed out of the product; (2) if the hazard could not be designed out, then it should be guarded against; (3) if the hazard could not be guarded against without impinging upon the product's function, then warnings and instructions must be provided. According to Howarth, a guard was preferable to warnings because a warning might not be followed.

The "leading hazard" of a portable circular saw is the blade. The hazard posed by the blade could not be designed out because the blade was necessary to the saw's function. However, there were two types of guards that were available. The first type was the upper blade guard, which was on this saw. The upper blade guard covered the upper part of the blade and prevented contact with the blade "at all times, where the teeth are." The second type was the retractable blade guard. The retractable blade guard "is supposed to come back every time after you finish a cut." The Skilsaw had both of these guards.

The retractable blade guard could work with two different types of springs. The first type operated like a screen door: "when you let go it pulls the door shut." The second type was the torsion spring.

*572 The spring was wound up and when released, "it shuts it and makes it close." According to Howarth, the lower blade guard protects the operator from contact with the front of the blade.

Howarth testified that sometimes the lower blade guard would not release after a cut—when for example, it was clogged by wood chips or saw dust. When this happened, the blade would continue to rotate even though the operator believed he had turned the machine off. The principle was similar to removing the foot from a car's accelerator yet the car continued to move forward. According to Howarth, an exposed blade was a hazard because when the saw was put down, it would "run backwards on the floor on you every time." If, however, the saw had a blade brake, the blade would not have continued to spin.

The subject saw had a coil extension spring lower blade guard, which was "basically an extension spring, and that's all it does is it just pulls the lower blade guard back." Howarth estimated that the blade would continue to rotate thirteen to fourteen seconds after the trigger had been released. Howarth twice demonstrated the blade's actual stop time before the jury. After the first trigger release, the blade continued to rotate for eighteen seconds. After the second release, the blade continued rotating for nineteen seconds.

In 1988, when the Skilsaw was made, an electronic dynamic brake (also known as a blade brake) existed which would have prevented the blade from continuing to spin after the trigger had been released. The blade brake had been in existence since the 1970's. The blade brake was a safety device because in the event that the lower guard did not go into position, the blade would stop as soon as the trigger was released. In 1974, the Consumer Products Safety Commission characterized the blade brake as a safety device.

According to the Consumer Products Safety Commission "fact sheet," a portable saw blade guard could malfunction by "staying in a retracted position after completion of the cut." When this occurred, the blade would keep rotating after the power was stopped. Electronic, or dynamic, braking would cause the blade to stop rotating more quickly. This was the device that should have been on the saw that plaintiff had used. Electronic blade brakes were very reliable.

Howarth showed the jury an Ambitech electronic blade brake that had been available since 1974 and cost only $20 in 1995. According to Ambitech, the brake would stop a blade from spinning in "a fraction of a second." Howarth claimed a blade brake could have been designed into the Skilsaw used by plaintiff.

In 1988, defendant's competitors manufactured portable circular saws with blade brakes. Indeed, Sears manufactured such a saw in 1976 and 1977. Black and Decker also made a portable circular saw with a blade brake as did Makita. The manufacturers of these saws claimed that the blade would stop rotating either instantaneously or within a few seconds. Howarth, however, had never used such saws.

Although Howarth stated that cost was a factor when considering the specifications of saw designs he conceded that it was not a "major consideration." A blade brake was not a convenience feature but a "complete safety device."

Howarth concluded that defendant's saw, used by plaintiff, was defective because it was sold without a blade brake and, according to the Consumer Product Safety Commission in 1974, the lower blade guard was known to fail to retract. Howarth continued:

This is common knowledge, to give a backup safety device, as they also say it is, put an electronic brake system or a dynamic brake system on that so as whenever the trigger is release [sic], it comes—the blade comes to a stop. And one just does not rely upon the retraction of the lower blade guard.

*573 According to Howarth, the saw would have been much safer if designed with a blade brake. Howarth understood that plaintiff was injured after he had released the trigger and placed the saw on the floor with the blade still spinning, which "caused the entire saw to come around and kind of cut across his foot while the blade was still rotating."

Howarth did not know why the guard did not work on the day of plaintiff's accident. However, he testified that the blade guard failed to close "[p]robably because it jammed up with a—sawdust or chips— wood chips of some sort, and it caused it to jam in the on position." Howarth was aware that this could happen based on his own knowledge and the writings of others. He also said that manufacturers had been told that this could happen. Consequently, this was a foreseeable hazard that wood chips could jam the guard open after a cut had been made.

Howarth did no studies in which he replicated the guard "hanging up" as a result of wood chips or sawdust. He saw no marks that suggested to him that the guard was wedged. Therefore, he assumed that the handle had not been wedged. Howarth agreed that the guard could have been wedged by sticking a nail in it, though he could not believe that a carpenter would do such a thing.

Howarth concluded that plaintiff would not have been injured if the saw had a blade brake because "the blade would have braked much too fast." Moreover, "even if the guard was not in its full protective position, when he set [the saw] down only the points would have dug into the deck wherever he sat it, but it would not have been rotating."

In reaching his conclusions, Howarth took into consideration the report and deposition testimony of defendant's expert, Peter Domeny (Domeny). Howarth disagreed with Domeny's position that the saw did not need a blade brake. According to Howarth, a blade travelling at a linear top speed of 125 to 127 miles per hour was a danger to a worker like plaintiff "[e]specially if the guard does not retract."

Howarth understood that Domeny tested saws manufactured by Sears and Black and Decker. Neither saw lasted more than 10,000 cycles before the on/off switch had failed. According to Howarth, a saw would have had to have been used for ten years to get to 10,000 cycles. Though the on/off switches had failed, Howarth believed that the electronic blade brake always worked reliably and within three seconds. The brake never failed. Indeed, even the on/off switch problems could have been averted by normal maintenance.

Howarth testified that Domeny's tests were not reliable in terms of predicting the performance of an electronic brake on plaintiff's two-year-old saw because "the cyclic grading of the test [was] far beyond what would ever be expected in the field." Based on Domeny's test of the Sears model, Howarth concluded that the electronic brake device was a "good unit" that would "outlast the product." It was the same for the Black and Decker tests. Manufacturers' manuals, including defendant's, advise consumers that the switches and brushes may need to be replaced as part of the tool's maintenance.

The benefits of a blade brake "far outweigh[ed] any risk of injury that may occur." A blade brake and a lower blade retractable guard would make a saw "[m]uch safer" because "whenever the retractable lower guard is not closed on it and you release the trigger, you're stopping that blade so fast that any motion you have you would probably prevent an injury from occurring because the blade is stopped."

Howarth also testified that as an alternative to the blade brake, the portable circular saw could have had a "flag" on it. This would have alerted the operator when the lower blade guard had not returned to its protective position. The flag would not have been an actual flag. Rather, it would be orange paint which, when *574 observed, would indicate that the guard was not in the proper position. The flag would not have impaired either the saw's or the guard's function. Howarth thought that the saw would have been safer even with just a flag. In fact, without the flag, the saw was not reasonably safe for its intended use. Such a flag would have warned plaintiff that the lower blade retractable guard was not in the closed position. With respect to the flags, Howarth conceded that other manufacturers' saws did not have orange flags. Consequently, he thought that all other manufacturers were violating the flag standard.

Ultimately, Howarth concluded that the saw had two defects: the absence of the brake and the absence of the flag. The circular saws manufactured without blade brakes by Black and Decker, Milwaukee, and Makita were defectively designed. Prior to the accident, manufacturers, including Black and Decker, manufactured saws with blade brakes and flags.

Domeny testified as an expert on behalf of defendant. At the time of trial, Domeny was employed by S.B. Power Tool Company in Chicago. S.B. was owned by Bosch GMbH in Germany. Prior to 1992, S.B. was known as the Skil Corporation. Until the Fall of 1996, S.B. was owned by Bosch and Emerson Electric Corporation.

Domeny started with defendant in 1969, one year after he immigrated to the United States from Czechoslovakia where he had received a degree in experimental physics. (Defendant shall mean Skil Corporation in its various forms from the time of Domeny's employment in 1969 up through the time of trial.) Since 1969, Domeny has worked continuously in the design and development of power tools. Domeny also has been involved in the evaluation of the safety of power tools, including the investigation of accidents and product safety development.

Domeny helped develop and design the Skilsaw that had injured plaintiff. He was the director of defendant's product safety department and, as such, was responsible for overseeing the development, design, testing and writing of manuals from a "safety point of view." During the course of his employment, Domeny worked with "a broad line of power tools from drills, grinders, circular saws."

Domeny examined the subject saw after the accident. He turned it "on" and then "off" and found that it worked fine. He took measurements and used strobe photography to "show how fast and what is the timing of the guard closure from the open to the fully closed position." Domeny checked the guard system on the saw, "and everything was working fine." When Domeny tested the speed at which the lower guard closed, it was .13 to .14 of a second, using strobe photography. The strobe photography created a permanent record of the progression of the guard from opening to closing.

According to Domeny, UL-45 governed the design of circular saws. The standard required the guard to close in .30 of a second. UL-45 was adopted by various departments of the United States Government, as well as ANSI. Although ANSI had always recognized UL-45, prior to 1984, UL-45 was incorporated by reference under ANSI standards C33.49 and 01.1. Contrary to Howarth's testimony, at the time of trial, the standard did not require an electric brake for a portable circular saw.

Upon examination of the subject saw, Domeny found "quite extensive and strong evidence" of wedging. He also found a concentration of scrape marks that were consistent with pushing an object, be it a nail or wood, between the handle and the outside surface of the upper guard. Domeny removed the saw's blade and found "the strongest evidence of the wedging." The evidence included "gouges." To confirm that the gouges were the result of wedging, Domeny removed the blade. He then explained and demonstrated how the guard could be wedged by sticking a penny nail "between the lower guard and the *575 inner surface of the upper guard." The prying of the nail caused the marks. Domeny showed the jury pictures he had taken of the inside of the saw, which he testified showed the wedge marks and gouges.

Domeny was able to tell when the wedging had been done by examining the saw. First, the aluminum underneath the marks had fresh color. Second, there was no sawdust accumulation in the gouges, which would have occurred over time. Third, no resin had accumulated over the gouges.

Domeny stated that the person identified earlier by Scott as having wedged open a saw before plaintiff's use could not have been the person who made the marks he observed because plaintiff testified that he had made thirty to fifty cuts on the day of the accident. (Actually, Scott never said that anyone had wedged the Skilsaw prior to the accident.) That number of cuts would have caused the gouges to fill with sawdust. Finally, the blade itself indicated wedging because dust appeared on it from a leather boot and blood. If the Skilsaw had been used extensively after the accident, the blood would have smeared away.

According to Domeny, defendant could have incorporated a blade brake into its saws, as the principle had been known since the 1960's. In fact, Black & Decker, Makita and Ryobi were using the technology in "1986, `88." However, defendant made a conscious decision not to use the technology "because of the benefits and detriments of the feature."

According to Domeny, "the benefit of the design has to outweigh the negatives of the design." The one safety benefit is that certain types of accidents could be eliminated by a brake. Domeny stated, however, that there were safety detriments to the incorporation of an electric brake into the portable circular saw. First, about fifty-five percent of all accidents occurred while the trigger was engaged and the operator was in the process of cutting. Second, about thirty-three percent of accidents occurred during a kickback, which also happened when the operator was in the process of cutting. Third, another ten percent of the accidents occurred as the result of someone having grabbed the blade itself accidently while reaching for some other object. Thus, a blade brake would not have prevented ninety-eight percent of saw accidents. Or, as a corollary, a blade brake would have prevented only two percent of saw accidents. Domeny emphasized that the two percent did not mean two percent of all users, but rather two percent of all accidents.

Domeny agreed that it would be a good thing to help prevent even two percent of all accidents but only "if the detriment of this device would not cause even more accidents than the two percent benefit that you gain out of it." There were three different categories of detriment posed by the brake. There was an increased risk of (1) electrocution, (2) switch failure, which would prevent the saw from stopping after the trigger was released and cause a kickback, and (3) unsafe behavior by operators who might view the brake as a back-up system when, in fact, the brake "will not work every time." In addition, there were carpenters who still would have wedged the guard open in the belief that the brake would protect them. Thus, in 1988, defendant made the decision that despite the technology and feasibility of the brake:

The negative aspects: the electrocution, shock hazard, the unsafe motor component failures, and the reliability factor, all those combined negative aspects outweigh the potential benefit of saving two percent of the—all the accidents. There would be accidents of different nature happening if you incorporate the brake.

Defendant had used a "flag" at one point but discontinued its use because it caused the lower guard to hang up. Moreover, for a majority of users, after a while the color of the flag would become just another color like the color of the tool itself. No *576 industry standard required a safety flag on the lower guard.

Domeny testified that plaintiff's use of his foot to stabilize the wood he was cutting was not recommended and defendant's manual advised against it. According to Domeny, the instability of positioning a piece of wood over one's foot could cause the saw to kick back. Nonetheless, Domeny did not believe that plaintiff's accident was caused by a kickback. Domeny concluded that the Skilsaw was not defectively designed and that "[t]he manner in which it was used or misused contributed or caused the accident."

The jury voted five to one that the Skilsaw was defectively designed and, by the same count, that the defective design was the proximate cause of plaintiff's injuries. As we can see, the case was squarely contested on the issue of defective design, not on the issue of "state-of-the-art."

IV

Defendant raises these six issues which we will consider in serial fashion:

1. WHETHER THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE CHARGED THE JURY ON THE STATE-OF-THE-ART DEFENSE OVER DEFENDANT'S OBJECTION AND, IF NOT, WHETHER THE CHARGE MISLEAD OR CONFUSED THE JURY AND PREJUDICED A SUBSTANTIAL RIGHT OF DEFENDANT'S (defendant's points I and II).

2. WHETHER THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE PERMITTED PLAINTIFF TO OFFER EVIDENCE OF POST-ACCIDENT USE OF THE PRODUCT BECAUSE PLAINTIFF HAD FAILED TO DISCLOSE SUCH EVIDENCE DURING DISCOVERY (defendant's point III).

3. WHETHER THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE PERMITTED CERTAIN QUESTIONS TO BE ASKED OF DEFENDANT'S EXPERT, WHO WAS ALSO ITS EMPLOYEE, ON CROSS-EXAMINATION (defendant's point IV).

4. WHETHER THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE DENIED DEFENDANT'S MOTION FOR JUDGMENT AT THE CLOSE OF ALL THE EVIDENCE BECAUSE REASONABLE MINDS COULD NOT CONCLUDE THAT DEFENDANT'S PRODUCT WAS DEFECTIVE (defendant's point VI).

5. WHETHER THE APPELLATE DIVISION SHOULD DECLINE TO FOLLOW TIRRELL V. NAVISTAR INTERNATIONAL, INC., 248 N.J.Super. 390, 591 A.2d 643 (App.Div.), CERTIF. DENIED, 126 N.J. 390, 599 A.2d 166 (1991), ORDER A NEW TRIAL, AND PERMIT DEFENDANT TO ASSERT THE COMPARATIVE NEGLIGENCE DEFENSE IN THIS PRODUCT LIABILITY CASE WHERE PLAINTIFF WAS INJURED BY DEFENDANT'S PRODUCT WHILE USING IT IN THE WORKPLACE (defendant's points V, VII, VIII).

6. WHETHER THE TIRRELL DECISION VIOLATES THE SEPARATION OF POWERS CLAUSE OF THE NEW JERSEY CONSTITUTION, AS WELL AS THE DUE PROCESS AND EQUAL PROTECTION CLAUSES OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS (defendant's points VII and VIII).

1.

Defendant contends that the judge committed reversible error when, at plaintiff's request and over defendant's objection, he *577 charged the jury on the state-of-the-art defense—a defense that defendant did not wish to assert. According to defendant, the charge imposed a burden upon it that it neither assumed nor the law permitted. Defendant maintains it was prejudiced by the charge because plaintiff had argued defendant did not meet its burden of proof on the state-of-the-art defense after defendant had rested without offering proofs on the defense. Finally, according to defendant, the instruction confused the jury on the issue of which party bore the ultimate burden of proof and denied defendant a fair trial. According to defendant, "state-of-the-art was not an issue" in this case.

There was considerable discussion at the charge conference about whether the state-of-the-art defense should be charged and, if so, whether it should be in the form of 5.34(c) or 5.34(d) of the Model Jury Charges, Civil. According to defense counsel, defendant conceded that it could have placed a blade brake on the saw in 1988. However, defendant chose to forego the brake due to the "countervailing safety problems" it created. This is consistent with Domeny's testimony. After some discussion, defense counsel appeared agreeable to the charge in 5.34(c), though he disagreed with the charge in 5.34(d), which represented the statutory state-of-the-art defense, N.J.S.A. 2A:58C-3(a)(1). Ultimately, defense counsel told the judge:

Well, Judge, I'll make it—I'll make it easy, all right? If we—we're not invoking the—which is an affirmative offense [sic], I'm not invoking the statutory provisions of the new Products Liability Act, okay? You can leave C in its entirety and I'll just deal with it.

Later, when the discussion returned to the state-of-the-art charge and defendant's burden of proof, defense counsel interrupted the exchange between the judge and plaintiff's counsel by declaring: "Judge, leave it in. Leave it in, forget it, I'll deal with it."

Plaintiff argues that these words amounted to a withdrawal of any objection that defendant had to the state-of-the-art charge and defendant waived its right to appeal the jury instruction. Moreover, plaintiff points out that defense counsel failed to object at subsequent opportune moments.

Despite defense counsel's statements to "leave it in, forget it" and "I'll deal with it," we conclude, given the extensive discussion about the charge and the obvious need to move the proceeding along, the objection to the charge was preserved, albeit in a general form. R. 1:7-2. Moreover, during a sidebar discussion in the midst of plaintiff's counsel's summation, defense counsel reiterated the fact that he had agreed to a state-of-the-art charge only to move the case along. Thus, we do not think that defense counsel's failure to object to the state-of-the-art charge at each and every opportunity was a waiver of the objection, and we consider the issue on the merits.

Judge Bookbinder outlined the parties' burdens generally as follows:

Now, the plaintiff says that the saw was defective because it did not incorporate a safety flag and/or a blade brake. The defendant, on the contrary, says that the product was not defective and that it was reasonably safe for its intended and reasonably foreseeable purposes.

Now, burden of proof is on each person, each party, to establish their claim by a preponderance of the evidence. In other words, if a person makes an allegation then that person must prove the allegation. In this action Mr. Cavanaugh has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues; one, that there is a defect, two, that the defect was a proximate cause of the injury, and, three, damages.

Now, I'm going to get into this a lot more in depth but this is just a little idea. Now, the defendant took on themselves *578 a burden here because they are indicating that their—they complied with the state of the art and because of that they have a burden for that. And even if they don't prove that, that doesn't mean that they automatically lose the case, just if they do prove that they automatically win the case. You'll hear a lot about that more—a lot later.

Later, in charging the jury on the risk-utility analysis, Judge Bookbinder instructed:

Now, in proving a defect in the design of the product the plaintiff need not prove that the manufacturer knew that the product was dangerous. We legally assume that the manufacturer is aware of any danger which you decide the product had and whether the defendant actually knew of the existence of the danger is meaningless. The question for you to decide is whether assuming the defendant knew of the danger in the product they nevertheless acted in a reasonably careful manner in marketing, selling or distributing the product.

If the danger of the design was not known at the time of the manufacture, the defendant cannot be found to be at fault. But the burden on this point falls on the defendant. [If t]he defendant contends that the danger was unknowable it must prove that contention.

....

Okay. Now, in this case the defendant is not saying that the danger was unknowable so you don't have to worry about them assuming that burden. Now, let's talk about state of the art. I mentioned this a little bit before, I want to mention it again. The plaintiff has to prove the elements of the case. State of the art is something that if the defendant proved the elements they automatically win, and you'll hear that again. A couple of times you'll hear that again.

If they don't prove it they don't automatically lose, they can still win without proving each one of these elements. Even if they prove some of the elements they can still win, because, remember, the plaintiff has the burden of proving their elements. So, if the plaintiff fails to prove their elements the defense can still win even if they don't prove every one of these things. Okay.

So, there's been evidence of common practice and standards of evidence. The evidence bears upon the risk-utility analysis that you're being asked to make here or to measure the reasonableness of the conduct assuming knowledge of the harm the products can cause. Compliance of [sic] common practice or industry standards does not mean the product is safe, it may still be found to be defective in design, however, that compliance, along with all of the other evidence in this case, may satisfy you that the product is properly made.

Now, they're saying that when the product left the defendant's control there was no practical and technically feasible alternative design for the product, the kind of design that would have prevented the harm while at the same time the kind of design that would not have substantially impaired intended or reasonable function of the product.

If there was no better design available when the product left the control of the defendant, that defendant cannot be held liable for a design defect. However, the defendant has the burden of proof on the issue.

So, based on your review of the evidence ask yourselves, has the defendant proven that there's no other practical or workable design that would have prevented the harm that is claimed to have taken place in this case without substantially impairing or reducing the intended or reasonably anticipated function?

If the defendant has met its burden of proof by the greater weight of the credible evidence on this issue, it must win on whether it defectively designed the product. Even if the defendant has *579 not met its burden of proof, plaintiff may win only if they prove the design defect.

Okay, so, if they prove this, if the defendant proves it they must win. If they don't prove it then you have to look and see what the plaintiff proved and if plaintiff proved its case the defendant hasn't again prevented them from proving his case, if that's a possibility, then the plaintiff wins. But if plaintiff hasn't proven his case it was no win for the plaintiff.

Later, when the judge summarized the elements of plaintiff's proofs, he instructed: "If the defendant has proved—first of all, if the plaintiff has failed to establish any one of those then it goes to the defendant. In addition, if the defendant proved compliance with state of the art, then the defendant must win. Okay."

"Jury instructions must correctly state the applicable law in understandable language and plainly spell out how the jury should apply the facts as it may find them." McDonough v. Jorda, 214 N.J.Super. 338, 346, 519 A.2d 874 (App.Div.1986), certif. denied, 110 N.J. 302, 540 A.2d 1282 (1988), cert. denied sub. nom., Jorda v. City of New Brunswick, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 809 (1989). "[T]he trial judge must prepare a full, complete charge on all facets of the applicable law." Ibid. "The precise language of every jury instruction must be tailored by the trial judge to fit the particular fact situation and the applicable statutory or decisional law." Dimogerondakis v. Dimogerondakis, 197 N.J.Super. 518, 520 n. 1, 485 A.2d 338 (Law Div.1984). This is especially so in a product liability case. Fabian v. Minster Mach. Co., Inc., 258 N.J.Super. 261, 271, 609 A.2d 487 (App.Div.), certif. denied, 130 N.J. 598, 617 A.2d 1220 (1992).

"Correct jury charges are essential to a fair trial." Ibid. Jury instructions must be "clear and correct" because they "serve as `a road map to guide the jury.'" State v. Cooper, 151 N.J. 326, 363, 700 A.2d 306 (1997) (quoting State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990)). Yet, an allegedly erroneous jury charge "`cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect.'" State v. Delibero, 149 N.J. 90, 106-07, 692 A.2d 981 (1997) (quoting State v. Wilbely, 63 N.J. 420, 422, 307 A.2d 608 (1973)). Nonetheless, even an erroneous instruction may be upheld if it was not capable of "prejudicing the substantial right of a party." Morlino v. Med. Ctr. of Ocean Co., 295 N.J.Super. 113, 125, 684 A.2d 944 (App.Div.1996), aff'd, 152 N.J. 563, 706 A.2d 721 (1998).

"The standard for assessing `the soundness of instructions is, not what the ingenuity of counsel can, at leisure, wo