                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2006

Estate Knoster v. Ford Mtr Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3355




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 05-3355
                                    ____________

  ESTATE OF EDWARD W. KNOSTER, by IRENE KNOSTER as Administratrix Ad
       Prosequendum; IRENE KNOSTER, individually; SYLVIA ANN REA;

                                                     Appellants,

                                           v.

                             FORD MOTOR COMPANY,

                                                     Defendant/Third Party Plaintiff,

                                          v.

                                 IRENE KNOSTER,

                                                     Third Party Defendant.

                                    ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                    (No. 01-cv-03168)
                     District Judge: Honorable Mary Little Cooper
                                  Argued June 15, 2006

           Before: FISHER, CHAGARES and REAVLEY,* Circuit Judges.

                                    ____________




      *
        The Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
                                (Filed September 6, 2006)

Thomas J. Murray (Argued)
Mary S. O’Neil
Murray & Murray
111 East Shoreline Dr.
P.O. Box 19
Sandusky, OH 44871

Counsel for Appellant

Susan L. Bucknum (Argued)
Campbell Campbell Edwards & Conroy P.C.
690 Lee Rd., Suite 300
Wayne, PA 19087

Counsel for Appellee

                              OPINION OF THE COURT

CHAGARES, Circuit Judge.

      On the evening of July 3, 1999, a one-car crash in Hunterdon County, New Jersey

claimed Edward Knoster’s life. In this diversity case, appellants Irene Knoster, Sylvia

Rea, and the Estate of Edward Knoster (collectively, “the Knosters”) seek to recover

damages from the car’s manufacturer, Ford Motor Company. Specifically, they bring

failure-to-warn and design-defect claims under the New Jersey Product Liability Act

(“PLA”), N.J. Stat. Ann. §§ 2A:58C-1 to -11, and an additional claim under the New

Jersey Consumer Fraud Act (“CFA”), N.J. Stat. Ann. § 56:8-1 to -106.

      The District Court dismissed the consumer fraud claim at the close of evidence,

and a jury rejected the failure-to-warn and design-defect claims. On appeal, the Knosters


                                            2
challenge two of the District Court’s evidentiary rulings, its jury instructions, and its

dismissal of the consumer fraud claim. As we explain below, neither the District Court’s

evidentiary rulings nor its instructions on Ford’s duty to warn contained reversible error.

But its design-defect instruction did, and we disagree with its conclusion that the PLA

subsumes the Knosters’ consumer fraud claim. We will therefore affirm in part, reverse

in part, and remand for further proceedings.

                                               I.

       As we write for the parties and the District Court, we will provide only a brief

sketch of this case’s facts. It was a Fourth-of-July weekend, and Irene Knoster was

driving home from a family picnic in her 1993 Ford Taurus. Her daughter, Sylvia Rea,

was in the front passenger seat, and her husband, Edward Knoster, sat in the rear on the

driver’s side. As the Taurus approached the crest of a steep, winding hill leading to a

T-shaped intersection, Mrs. Knoster downshifted. At that moment, and for whatever

reason, the Taurus accelerated toward the intersection at a furious pace. In a desperate

struggle to control the vehicle, Mrs. Knoster slammed on the brake and jerked the wheel.

Her efforts failed; the car sailed through the intersection and crashed into a stone farm

building. Mrs. Knoster and her daughter survived, but Mr. Knoster’s injuries were fatal.

       The core of the parties’ dispute was the cause of the Taurus’s acceleration. The

Knosters claimed that it took off suddenly without Mrs. Knoster ever having stepped on

the gas pedal. Their theory was that the vehicle’s electronic engine controls produced

transient electrical signals capable of activating the cruise control and opening the throttle

                                               3
without any driver input. This failure would then pull the gas pedal to the floor and send

the car careening forward. After it was over, the failure would leave no detectable

evidence behind. In support of this theory, the Knosters produced documents from

several Ford studies, the testimony of Mrs. Knoster and Ms. Rea, and the expert

testimony of Samuel Sero, an electrical engineer.

       Ford argued that the Knosters’ story is physically impossible. It claimed that if the

Taurus accelerated, it must have done so because Mrs. Knoster reached for the brake but

accidentally stepped on the gas. Def. Br. at 5. In support of this argument, Ford sought

to introduce two reports produced by the National Highway Traffic Safety Administration

(“NHTSA”). The NHTSA launched a comprehensive investigation into reported

incidents of sudden acceleration in October, 1987, and after two years of work it issued a

report detailing its findings (“the NHTSA Report”). The NHTSA Report concluded that

“two or more independent, intermittent failures would have to occur simultaneously to

cause throttle opening in a way that would be difficult to detect after the incident.” Joint

Appendix (“JA”) 3695. According to the NHTSA, this confluence of events is “virtually

impossible.” JA 3695. Ten years later, attorney Sandy McMath petitioned the NHTSA

to reopen the matter. JA 4124-29. The NHTSA’s Office of Defects Investigation

conducted a review, and in April, 2000, it issued a document denying the petition (“the

McMath Denial”). JA 4130-64. Another important part of Ford’s defense was the

testimony of retired Ford employee William Koeppel. He attempted to rebut the

Knosters’ assertion that a rise in sudden-acceleration reports coincided with Ford’s

                                              4
introduction of electronic engine controls.

       Upon considering the evidence and charge, the jury rendered a verdict for Ford.

This appeal followed, and the Knosters present six questions for our review. First, were

the NHTSA Report and McMath Denial (collectively, “the reports”) either irrelevant or

hearsay not within the exception for public records? Second, did Mr. Koeppel’s

testimony include inadmissible lay opinion? Third, in response to the jury’s query, did

the District Court improperly limit the scope of Ford’s duty to warn? Fourth, should the

court have instructed the jury on section 3 of the Restatement (Third) of Torts: Products

Liability? Fifth, should it have instructed the jury on New Jersey’s consumer-

expectations test for design defectiveness? And sixth, was it error to dismiss the

Knosters’ consumer fraud claim? We will address each question in turn.

                                              II.

       The Knosters claim that the NHTSA Report and the McMath Denial are irrelevant

and constitute inadmissible hearsay. Under Federal Rule of Evidence 401, relevant

evidence “make[s] the existence of any fact that is of consequence. . . more probable or

less probable than it would be without the evidence.” This standard “is not high, and

once the threshold of logical relevancy is satisfied the matter is largely within the

discretion of the trial court.” United States v. Steele, 685 F.2d 793, 808 (3d Cir. 1982)

(internal citation omitted). The Knosters claim their automobile suddenly and

spontaneously accelerated, and the reports concluded that such an event is “virtually

impossible.” JA 3695, 4162. Thus, if believed, the reports tend to make “a fact that is of

                                              5
consequence. . . less probable,” and they satisfy the dictates of Rule 401.

       Even though the reports are relevant, they are also hearsay and thus are not

admissible unless they fit within an exception to the hearsay rule. See Fed. R. Evid. 801-

02. Rule 803(8)(C) provides an exception for public reports “setting forth. . . factual

findings resulting from an investigation made pursuant to authority granted by law, unless

the sources of information or other circumstances indicate lack of trustworthiness.”

Public reports are presumed trustworthy “and the party opposing their introduction bears

the burden of coming forward with enough negative factors to persuade a court that a

report should not be admitted.” See In re Nautilus Motor Tanker Co., 85 F.3d 105, 113

(3d Cir. 1996) (quotation omitted). The Advisory Committee notes to Rule 803(8)

provide a helpful list of factors for courts to consider: (1) the investigation’s timeliness;

(2) the expertise or experience of the official; (3) whether a hearing was held and, if so,

how the hearing was conducted; and (4) “possible motivation problems.”

       The District Court held that the reports are sufficiently trustworthy, and we review

that determination for abuse of discretion.1 “An abuse of discretion is a clear error of

judgment, and not simply a different result which can arguably be obtained when



       1
         The Knosters argue that a de novo standard should be applied, but our precedents
are to the contrary. See Coleman v. Home Depot, Inc., 306 F.3d 1333, 1341 (3d Cir.
2002) (“We review the admissibility of evidence for abuse of discretion. . . . This
standard applies to Rule 803(8)(C). . . .”); United States v. Versaint, 849 F.2d 827, 831-32
(3d Cir. 1988) (“Under [Rule 803(8)], this Court must decide whether the district court
abused its discretion by giving undue weight to trustworthiness factors of slight relevance
while disregarding factors more significant.”) (internal quotation omitted).

                                               6
applying the law to the facts of the case.” SEC v. Infinity Group Co., 212 F.3d 180, 195

(3d Cir. 2000) (internal quotation omitted).

       The Knosters contend that the reports are untrustworthy for three reasons. First,

they dispute the reliability of the NHTSA’s methods. They argue that the NHTSA

Report’s claim of extensive testing on 10 representative vehicles was inaccurate. They

note that only the Audi received electronic testing, and even that was preliminary. See Pl.

Br. at 24; Reply Br. at 1. The Knosters also claim that the McMath Denial was the work

of a single NHTSA employee who did no more than test drive vehicles and talk to people.

Pl. Br. at 19. These characterizations, however, unfairly diminish the extent of the

NHTSA’s undertaking. In preparing the NHTSA Report, the NHTSA studied reports of

sudden acceleration; interviewed drivers; examined “fuel systems, braking systems, and

driving controls;” and performed tests and experiments. JA 3693-94. It also

supplemented its own considerable expertise with an independent panel of mechanical

and electrical engineers, MIT professors, and even Ray Magliozzi of National Public

Radio’s “Car Talk.” See JA 3750-67. As to the McMath Denial, the Office of Defects

Investigation performed a wide array of research; “[i]nspected various Ford vehicles to

understand cruise control operation;” studied vehicle specifications; and disassembled

one of Ford’s “Mechanical Vacuum Dump Valves. . . to learn more about its operation.”

JA 4134-36. The NHTSA’s methods do not diminish the reports’ presumption of

reliability; they reinforce it. See Nautilus, 85 F.3d at 113. Even if the NHTSA’s

electromagnetic testing could have swept more broadly, it was hardly a “clear error of

                                               7
judgment” to let the jury assess the reports’ probative value. See Infinity Group, 212 F.3d

at 195; see generally Jarvis v. Ford Motor Co., 283 F.3d 33, 53 (2d Cir. 2002) (in matter

where sudden acceleration alleged “[t]he weight given to the conclusions in the NHTSA

report. . . was a matter for the jury to decide.”).

       Second, the Knosters contend that their “main objection to the admission of the

McMath Denial [is] the enormous prejudice engendered by its ad hominem attacks on the

Knosters’ expert, Samuel Sero.” Reply Br. at 3. If the Knosters thought the McMath

Denial was unfairly prejudicial, they should have raised an objection under Federal Rule

of Evidence 403. But even so, the McMath Denial does not contain ad hominem attacks.

It states that Mr. Sero is “plainly wrong;” that his theory has been “addressed and

rebutted;” that “no credible evidence” supports it; that he “takes up the position that

drivers are not responsible for the safe operation of their vehicles;” and that his testing is

“misleading” and “completely inconsistent with real world driver behavior.” JA 4144-45,

4155, 4158-59. These are not arguments against the person; they are arguments against

the person’s testing and his methodology. See Ruggero J. Aldisert, Logic For Lawyers: A

Guide to Clear Legal Thinking 182 (3d ed. 1998).2 The McMath Denial focused upon

Mr. Sero’s testing and methodology and was not unfairly prejudicial.

       Third, the Knosters claim that false and misleading disclosures by Ford rendered



       2
         We express no opinion on the admissibility of Mr. Sero’s testimony. The District
Court conducted a Daubert hearing, but it reserved ruling on the issue, and Mr. Sero
testified at trial. See Def. Br. at 5.

                                                8
the NHTSA reports untrustworthy. The District Court assumed arguendo that Ford

misled the NHTSA, but it held that the reports remained trustworthy because Ford’s

alleged omissions “represent[ed] only a tiny fraction of the universe of information that

NHTSA. . . and the independent panel of experts considered.” JA 32. We agree with that

analysis and thus hold that the District Court did not abuse its discretion when it admitted

the NHTSA Report and the McMath Denial.

                                            III.

       The Knosters also contend that William Koeppel’s testimony included

inadmissible lay opinion. See Fed. R. Evid. 701. “We review the district court’s ruling

that. . . opinions were admissible under Rule 701 for abuse of discretion.” United States

v. Leo, 941 F.2d 181, 192-93 (3d Cir. 1991). However, when a party fails to object we

review for plain error. Abrams v. Lightolier, Inc., 50 F.3d 1204, 1213 (3d Cir. 1995).

Furthermore, if the objecting party elicited the testimony, she cannot be heard to

challenge its admission on appeal. See United States v. Console, 13 F.3d 641, 660 (3d

Cir. 1994).

       Under Rule 701, lay opinion cannot be “based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701(c).3 In other


       3
        Ford cites Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1193 (3d
Cir. 1995) and Sipes v. United States, 111 F.R.D. 59, 61 (S.D. Cal. 1986), for the
proposition that Rule 701 permits lay opinion based on specialized knowledge. But
Congress amended Rule 701 in 2000, and the new rule plainly supercedes these cases.
Indeed, the amendment was in part a response to the concerns expressed by Judge Becker
in Asplundh. See Fed. R. Evid. 701 Adv. Comm. Notes; Asplundh, 57 F.3d at 1200-01 &

                                             9
words, lay testimony must “result[] from a process of reasoning familiar in everyday life,”

as opposed to a process “which can be mastered only by specialists in the field.” Fed. R.

Evid. 701 Adv. Comm. Notes (internal quotation omitted).

       Before Mr. Koeppel took the stand, the Knosters expressed concern about the

scope of his testimony. Specifically, they worried that he would draw an inference that

the increase in sudden-acceleration reports resulted from an increase in media attention.

Supplemental Appendix (“SA”) 9-10. According to them, this inference does not follow

from “a process of reasoning familiar in everyday life;” it requires specialized knowledge

of psychology and statistics. See Fed R. Evid. 701 Adv. Comm. Notes. The District

Court responded that Koeppel could testify about the correlation he observed, but he

should “offer[] the jury the opportunity to infer their own conclusions.” SA 11. The

Knosters’ attorney agreed with that analysis. SA 12 (“Sure, I have no problem with. . . .

correlation. It’s the causation that I have a problem with.”). Nonetheless, during direct

examination Koeppel drew a causal inference on two occasions. See JA 2595; 2599. He

also referenced hearsay reports from the Canadian and Japanese governments. JA 2575-

79.

       The Knosters, however, did not contemporaneously object to any of this testimony.

We therefore review its admission for plain error. See Abrams, 50 F.3d at 1213. Despite



n.14 (determining that “it is not for us to rewrite the rule” but nonetheless “commending
th[e] issue to the attention of the Judicial Conference Advisory Committee on Rules of
Evidence”).

                                            10
Koeppel’s two stray references to his causal conclusions, the jury remained free to accept

or reject them. Moreover, his opinions were largely duplicative of a similar discussion in

the NHTSA Report. See NHTSA Report, JA 3745 (“[W]hen the media focus on the

matter and suggest there are unknown mechanical or electronic causes,. . . some incident-

involved drivers may. . . conclude that their vehicles must be at fault.”). Thus, even if the

testimony was improper, it did not “undermine the fundamental fairness of the trial” or

“contribute to a miscarriage of justice.” See Osei-Afriyie v. Medical College of Pa., 937

F.2d 876, 881-82 (3d Cir. 1991).

       All of Koeppel’s other allegedly improper statements were made during cross

examination. As to this testimony, “if there was any error at all, it was invited error and

cannot now be a basis for reversal.” See Console, 13 F.3d at 660. We therefore conclude

that the admission of Koeppel’s lay opinion was not reversible error.



                                             IV.

       The next issue concerns the jury’s request for supplemental instruction.4 When a

jury asks a question during deliberations, “the court has a duty to respond. . . and the form



       4
        In a diversity case such as the case sub judice, we apply the substantive law of the
state whose law governs and federal procedural law. The parties do not dispute that the
substantive law of New Jersey applies herein. Further, when “adjudicating a case under
state law, we are not free to impose our own view of what state law should be; rather, we
are to apply existing state law as interpreted by the state’s highest court in an effort to
decide how that court would decide the precise legal issues before us.” Koppers Co., Inc.
v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445 (3d Cir. 1996).

                                             11
and extent of supplemental instructions are within the sound discretion of the court.”

Beardshall v. Minuteman Press Int’l, Inc., 664 F.2d 23, 28 (3d Cir. 1981). Nonetheless,

we exercise plenary review over claims of legal error and “must determine whether the

charge taken as a whole fairly and adequately submits the issues in the case to the jury.”

See Limbach Co. v. Sheet Metal Workers Int’l Ass’n, 949 F.2d 1241, 1259 n.15 (3d Cir.

1991) (en banc) (internal quotations omitted).

         The jury’s request involved Question 3 on the verdict sheet—the Knosters’ failure-

to-warn claim. The jury asked whether it should “answer the question regarding a

warning specifically about the design of the cruise control system or in general about an

event of sudden acceleration no matter what the cause.” JA 3291. Over the Knosters’

objection, the court responded: “Your answer to question number 3 should be based only

on the design of the cruise control system. . . .” JA 3291. On appeal, the Knosters argue

that Ford had a duty to warn about a danger of sudden acceleration no matter what the

cause.

         In the abstract, the Knosters’ argument in this regard has some merit. A failure-to-

warn claim is not dependent upon proof of a separate design defect. The defect in a

failure-to-warn case “is not a flaw in the structure or design of the product,” but “the

absence of a warning to unsuspecting users that the product can potentially cause injury.”

Coffman v. Keene Corp., 133 N.J. 581, 593-94 (1993). Thus, Ford’s duty to warn

involved the danger of sudden acceleration generally, not a danger with any specific

cause.

                                              12
       Nonetheless, a “strict liability charge to a jury should be tailored to the factual

situation.” Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 210 (1984); see also

Limbach, 949 F.2d at 1259 n.15 (stating that a charge must, “in light of the evidence,

fairly and adequately submit[] the issues in the case to the jury.”). In this case, the only

cause of sudden acceleration asserted was an activation of the cruise control by transient

electrical signals. If this failure was not possible, there was no danger of sudden

acceleration to warn about. Indeed, the Knosters’ proposed warning stated that

disconnecting the cruise control would abate the danger completely. JA 3163. Thus,

under their own theory, a cruise-control failure was a necessary predicate to the

failure-to-warn claim. Cf. JA 2922 (plaintiff’s counsel stating that “it’s my understanding

that failure to warn is subsumed within the defective design case.”). The District Court’s

answer properly instructed the jury that it should not speculate about causes of sudden

acceleration wholly unsupported by the record. It therefore “fairly and adequately

submitted the issues in the case to the jury,” and we will affirm the District Court’s

judgment as to the failure-to-warn claim. See Limbach, 949 F.2d at 1259 n.15.

                                              V.

       We next consider whether the District Court erred by failing to instruct the jury

under section 3 of the Restatement (Third) of Torts: Products Liability. Under New

Jersey law, a design-defect claim usually requires “proof by plaintiff of a reasonable

alternative design the omission of which renders the product not reasonably safe.” See



                                              13
Cavanaugh v. Skil Corp., 164 N.J. 1, 8 (2000) (internal quotation omitted).5 The District

Court used this standard here, but the Knosters contend that this was error. According to

them, the appropriate test of design defectiveness in this case is that provided by section 3

of the Restatement—the products-liability analogue of res ipsa loquitur. It provides:

       It may be inferred that the harm sustained by the plaintiff was caused by a
       product defect existing at the time of sale or distribution, without proof of a
       specific defect, when the incident that harmed the plaintiff:
       (a) was of a kind that ordinarily occurs as a result of a product defect; and
       (b) was not, in the particular case, solely the result of causes other than
       product defect existing at the time of sale or distribution.

Restatement (Third) of Torts: Products Liability § 3 (1997).

       New Jersey has long applied a version of res ipsa in products cases, see

Jakubowski v. Minn. Mining & Manufacturing, 42 N.J. 177, 184 (1964), and in 1999 the

New Jersey Supreme Court explicitly adopted section 3. See Myrlak v. Port Authority,

157 N.J. 84, 103-04 (1999). Myrlack, however, was a manufacturing case, and Ford

argues that its holding does not extend to design defects. Def. Br. at 52-54. We disagree.

The New Jersey Supreme Court has recognized the availability of circumstantial proof to

show “that the product is defective because of a manufacturing flaw or design defect.”

See Scanlon v. General Motors Corp., 65 N.J. 582, 592 (1974) (internal quotation

omitted) (emphasis added); see also Suter v. San Angelo Foundry & Machine Co., 81 N.J.



       5
        Somewhat confusingly, the PLA makes the absence of “a practical and technically
feasible alternative design” a defense. N.J. Stat. Ann. § 2A:58C-3(a)(1). Nonetheless,
“the statute does not alter the plaintiff’s burden to show defendant’s failure to follow a
reasonable alternative design.” Cavanaugh, 164 N.J. at 7.

                                             14
150, 170-71 (1979). Moreover, Myrlak adopted section 3 without qualification, and that

provision is not limited to manufacturing cases. See 157 N.J. at 103-04; Restatement

(Third) § 3.6 The Restatement’s comments point out that when a “product design causes

the product to malfunction in a manner identical to that which would be ordinarily be

caused by a manufacturing defect,” section 3 may apply. See Restatement (Third) § 3,

comment b.

       The first element of section 3 recognizes that sometimes a product fails so utterly

that “common experience” indicates it would not have done so absent a defect. See

Myrlak, 157 N.J. at 105; cf. Mettinger v. W.W. Lowensten, Inc., 292 N.J.Super. 293, 309

(App. Div. 1996). The comments accompanying section 3 provide the example of an

airplane that loses its wings. See Restatement (Third) § 3, comment b. Similarly, in a

case that predates Myrlak, the New Jersey Supreme Court stated that a bicycle without

functioning brakes is “self-evident[ly]” defective. See Suter, 81 N.J. at 170-71. Here, the

Knosters introduced evidence that the Taurus suddenly accelerated without any driver

input. If the jury believed that evidence, then the Taurus was as dangerous and as useless

as a plane without wings or a bike without functioning brakes. “Common experience”

teaches that so manifest a product failure would not ordinarily occur in the absence of

some defect. See Myrlak, 157 N.J. at 105.


       6
        As the Restatement’s co-Reporter has explained, “Tentative Draft No. 1 limited
the application of the res ipsa doctrine to manufacturing defect cases.” But after an
“intense deliberative process,” that limitation was dropped. See Aaron D. Twerski, Inside
the Restatement, 24 Pepp. L. Rev. 839, 842-44 (1997).

                                            15
       Section 3's second element demands that the plaintiff exclude other possible causes

of the incident. See Scanlon, 65 N.J. at 593. “Generally speaking, the older a product is,

the more difficult it is to prove that a defect existed while in the control of the

manufacturer.” Id. But in some cases the evidence can sufficiently exclude other

possible causes “without reference to the product’s age.” Id. at 593 n.4. Plaintiffs need

not exclude other causes beyond all doubt; the question is whether their evidence, if

believed, “permit[s] an inference” of defectiveness. See Sabloff v. Yamaha Motor Co.,

59 N.J. 365, 366 (1971) (per curiam); cf. Jerista v. Murray, 185 N.J. 175, 192 (2005) (the

applicability of res ipsa “depends on the balance of probabilities”); Terrell v. Lincoln

Motel, Inc., 183 N.J.Super. 55, 61 (App. Div. 1982) (stating that a “res ipsa instruction

[can] be expressly conditioned upon plaintiff’s ability to prove his version of the incident

by a fair preponderance of the credible evidence.”).7 Mrs. Knoster and Ms. Rea testified

that the Taurus suddenly and spontaneously accelerated without driver input. And despite

the Taurus’s age, Mr. Sero testified that it did so as a result of its design.8 If believed, this


       7
        See also Restatement (Third) § 3, illustration 6 (“[Plaintiff’s] qualified expert
presents credible testimony that a defect in the automobile must have caused the accident.
[Defendant’s] qualified expert presents credible testimony that it is equally likely that,
independent of any defect, Driver lost control while speeding on the highway. If the trier
of fact believes the testimony of Driver’s expert, then an inference of defect may be
established under this Section.”).
       8
        Ford cites Scanlon, 65 N.J. at 598, for the proposition that the Knosters’ attempt
to prove a specific defect precludes the application of section 3. But Scanlon held only
that a plaintiff “cannot. . . be heard to argue for reversal on a question foreign to the initial
proceedings.” Id. Generally speaking, “the plaintiff is not necessarily confined to the
explanation his expert may advance.” Sabloff, 59 NJ at 366; Scanlon, 65 N.J. at 598

                                               16
evidence would support a determination by the trier of fact that the Knosters excluded

other possible causes. See Restatement (Third) § 3, illustration 6. We therefore hold that

the Knosters’ evidence may permit an inference of defectiveness under section 3, and

proof of a reasonable alternative design was unnecessary.

       Instead of instructing under section 3, the District Court stated that even if the jury

believed the Knosters’ proofs—even if the Taurus suddenly accelerated without Mrs.

Knoster stepping on the gas—it still had to determine “whether the safety benefits from

alternate design of the vehicle, as proposed by plaintiffs, were greater than resulting costs

or disadvantages caused by the plaintiff’s proposed design.” JA 3158. But when, as here,

a product’s failure is manifest, proof of reasonable alternative design is unnecessary. See

Restatement (Third) § 3, comment b; cf. New Jersey Model Civil Charges 5.34C-1

(stating that for design defects “akin to manufacturing defect[s]. . . . the usual Risk-Utility

Balancing Test is unnecessary”). By focusing the jury’s attention on that issue, the

District Court did not “fairly and adequately” apprise the jury of the issues properly

before it. See Limbach, 949 F.2d at 1259 n.15. We will therefore reverse the District

Court’s judgment as to the design-defect claim and remand for further proceedings.

                                              VI.

       The Knosters also claim that the “consumer-expectations” test applies. In Suter v.



(stating that, “as a general proposition,” Sabloff allows for “flexibility. . . both in terms of
proof and theory of the case”). Here, the Knosters sought a section 3 instruction before
the District Court. As a result, Sabloff’s “flexibility” is available to them.

                                               17
San Angelo Foundry & Machine Company, 81 N.J. 150 (1979), the New Jersey Supreme

Court stated that when a product defect is “self evident”—i.e., when the “nature of the

proofs [is] the same as in [manufacturing] defect cases”—then the jury can infer a defect

if the product failed to meet “the reasonable expectations of the purchaser.” Id. at 170-71.

Although Suter predates Myrlak by 20 years, the Suter test is no more than an alternative

formulation of the principle embodied in section 3. See Restatement (Third) § 3,

Reporters’ Note (“Some courts in applying the § 3 principle talk in terms of the product

failing to meet ‘consumer expectations.’”). To say that a defect is “self evident” is to say

that it speaks for itself—res ipsa loquitur. As such, we need not engage in separate

analysis of Suter’s consumer-expectations test.



                                            VII.

       Finally, the Knosters argue that the PLA does not subsume their consumer fraud

claim and, therefore, the District Court erred in dismissing this claim. The CFA prohibits

“any unconscionable commercial practice, deception, fraud, false pretense, false promise,

misrepresentation, or the knowing concealment, suppression or omission of any material

fact with intent that others rely. . . in connection with the sale or advertisement of any

merchandise. . . .” N.J. Stat. Ann. § 56:8-2. Private parties must prove that they suffered

an “ascertainable loss of moneys or property” as a result of the unlawful practice. Id. §

56:8-19. If successful, they can recover treble damages and reasonable attorneys’ fees.

Id. However, only economic damages are recoverable. See Gennari v. Weichert Co.

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Realtors, 148 N.J. 582, 612-13 (1997).

       Section 2 of the PLA, N.J. Stat. Ann. § 2A:58C-2, “establishe[s] the sole method

to prosecute a ‘product liability action.’” Tirrell v. Navistar Int’l, Inc., 248 N.J.Super.

390, 398 (App. Div. 1991). The PLA defines the term “product liability action” as “any

claim or action. . . for harm caused by a product, irrespective of the theory underlying the

claim, except actions for harm caused by breach of an express warranty.” N.J. Stat. Ann.

§ 2A:58C-1(b)(3). Thus, the PLA “effectively creates an exclusive statutory cause of

action for claims falling within its purview.” See Repola v. Morbank Indus., Inc., 934

F.2d 483, 492 (3d Cir. 1991); Tirrell, 248 N.J.Super. at 398. Nonetheless, claims for

“physical damage. . . to the product itself” are not “product liability action[s]” because the

PLA specifically excludes such damage from its definition of “harm.” N.J. Stat. Ann. §

58C-1(b)(2), (3); see Alloway v. General Marine Ins. L.P., 149 N.J. 620 (1997).

       The District Court pointed out the dearth of authority in New Jersey on how the

CFA and the PLA relate to one another. JA 2941. In this case, however, there is no

overlap between them. In their CFA claim, the Knosters seek only economic damages

resulting from harm to the Taurus itself. Pl. Br. at 56; Reply Br. at 20-21. The PLA

excludes those damages from its definition of “harm,” so the Knosters’ CFA claim was

not a “product liability action.” See N.J. Stat. Ann. § 58C-1(b)(2), (3). That critical fact

readily distinguishes the two District Court decisions cited by Ford. In Walus v. Pfizer,

Inc., 812 F.Supp. 41 (D.N.J. 1993), the plaintiff sued Pfizer based on his worry that a

normally functioning heart valve might fail at some future time. Id. at 42-43. The

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plaintiff sought to recover for his emotional distress, not harm to the product itself. Id. at

44. In Brown v. Philip Morris, Inc., 228 F.Supp.2d 506 (D.N.J. 2002), the fraud claim

involved physical injuries caused by cigarettes, not harm to cigarettes. Id. at 517. Unlike

those claims, the Knosters seek only to recover for harm to the Taurus, and the PLA does

not cover those damages. The PLA cannot subsume that which it explicitly excludes from

its coverage. We will therefore reverse the District Court’s judgment as to the CFA

claim.

         It is far from clear, however, whether the Knosters have a cognizable claim under

the CFA. In order to sustain a CFA claim, the plaintiff must establish “a causal

relationship. . . between any ascertainable loss and the unlawful practice condemned.”

Ramanadham v. New Jersey Mfrs. Ins. Co., 188 N.J. Super. 30, 33 (App. Div. 1982).

Ford did not raise the causation issue in the District Court, nor has it done so in this

appeal. We will therefore refrain from addressing the causation requirement and allow

the District Court to consider the issue in the first instance.

                                             VIII.

         Based on the foregoing, we will affirm the District Court’s judgment as to the

failure-to-warn claim and its evidentiary rulings at trial, reverse it as to the design-defect

and consumer fraud claims, and remand the case for further proceedings.



REAVLEY, Circuit Judge, dissenting:

         I would affirm the judgment. The case was tried on the claim that a design defect

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of the cruise control caused the accident. That issue was decided against the plaintiffs. It

was the speed of the cruise control setting that resulted in the wreck, but the control was

not defective. Six years after Ford lost custody of this vehicle I see no justification for a

res ipsa issue. And I see no evidence of consumer fraud by Ford.




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