                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in the case and its use in other cases is limited. R.1:36-3.



                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3909-14T1

CARL LAWSON and
GLORIA LAWSON,
Husband and Wife,

        Plaintiffs-Appellants,

v.

K2 SPORTS U.S.A., K2
BIKE, and NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL
PROTECTION, DIVISION OF PARKS
AND FORESTRY,

        Defendants,

and

BELL SPORTS U.S.A.,

     Defendant-Respondent.
________________________________________________________________

              Argued November 15, 2016 – Decided July 24, 2017

              Before Judges Espinosa, Suter and Guadagno.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No. L-
              4440-08.

              G. Martin Meyers argued the cause for
              appellants (Law Offices of G. Martin Meyers,
              P.C., attorneys; Mr. Meyers and Justin A.
              Meyers, on the briefs).
          Jason R. Schmitz argued the cause for
          respondent (Littleton Joyce Ughetta Park &
          Kelly, LLP, attorneys; Mr. Schmitz, Robert J.
          Kelly and James C. Ughetta, on the brief).

PER CURIAM

     Plaintiffs   Carl   and   Gloria   Lawson   brought   this   products

liability case against defendant Bell Sports USA (Bell),1 the

manufacturer and distributor of a bicycle helmet and, following

an adverse jury verdict, now appeal from the resulting judgment.

We affirm.

                                   I.

     Carl Lawson was mountain biking when he lost control and

flipped over the handle bars.     He landed on his head and sustained

quadriplegic injuries.    He was wearing a Bell Solar Fusion bicycle

helmet at the time of the accident.

     Plaintiffs alleged that the elongated "teardrop" design of

the helmet was a design defect under the New Jersey Product

Liability Act, N.J.S.A. 2A:58C-2(c), which provides, in pertinent

part:

          A manufacturer or seller of a product shall
          be liable in a product liability action only
          if the claimant proves by a preponderance of
          the evidence that the product causing the harm
          was not reasonably fit, suitable or safe for

1
   Bell Sports, Inc. and Easton-Bell Sports, Inc. were improperly
pled as Bell Sports USA.     The claims against other defendants
alleged in the complaint have all been resolved.

                                   2                               A-3909-14T1
          its intended purpose because it . . .          was
          designed in a defective manner.

     Plaintiffs' evidence included the expert testimony of Zafer

Termanini, M.D., who was qualified as an expert in orthopedics,

biomechanics and product design.       He concluded the teardrop design

of the helmet was a defect that rendered it unreasonably dangerous

for three reasons.   He stated the teardrop design had a propensity

to interfere with the completion of a somersault, which is the

best thing a bicyclist can do in an over-the-handlebars accident.

He opined that if Lawson had been able to complete a somersault,

he would have suffered little or no injury to his spine.             Dr.

Termanini also stated that, because the teardrop had a propensity

to dig into the surface of a soft bicycling trail like the one

where the accident occurred, it had the capacity to constrain the

movement of the head upon impact, increasing the severity of the

injuries to the cervical spine.         The third reason given by Dr.

Termanini was that the teardrop can impose rotational forces on

the head and neck that can also enhance the severity of injuries.

Dr. Termanini opined that the teardrop design of the helmet was

either the cause of or a substantial factor in exacerbating

Lawson's cervical fractures and quadriplegia.       Plaintiffs claimed

a reasonable alternative design, a more rounded helmet, would have

prevented Lawson's injuries.


                                   3                            A-3909-14T1
       Plaintiffs argue that the following errors warrant a reversal

of   the   judgment    and    a   new    trial:   (A)   the    denial   of     their

adjournment request; (B) the trial judge's evidentiary ruling that

a specific article did not qualify as a learned treatise; (C) the

trial judge's evidentiary ruling to admit evidence regarding the

lack of prior neck injuries; (D) the fact that the defense was

permitted to have two attorneys deliver its closing statement; (E)

the jury charge and verdict sheet; and (F) the trial judge's

refusal to provide the jury with a copy of an email that had been

read but not admitted into evidence.                We have considered these

arguments in light of the record and applicable law and conclude

none have merit.      Moreover, we conclude that the challenge to the

defense    summation,    raised     as    plain    error,     R.   2:10-2,     lacks

sufficient merit to warrant discussion.              R. 2:11-3(e)(1)(E).

                                         II.

       In August 2014, a peremptory trial date was scheduled for

March 23, 2015.        The date was set without any input from the

parties.    Plaintiffs made their first and only adjournment request

shortly thereafter because Dr. Termanini, their "key helmet design

and injury causation expert," was to attend an annual conference

of orthopedic surgeons that week.              They contend that, pursuant to

Rule   4:36-3(c),     their   request     should    have    been   accommodated.

Plaintiffs argue that the trial court's denial of their adjournment

                                          4                                  A-3909-14T1
request constituted a manifest denial of justice, requiring a new

trial.   We disagree.

     A "trial court's decision to grant or deny an adjournment is

reviewed under an abuse of discretion standard."              State ex rel.

Comm'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7

(App. Div. 2013).       "Ordinarily, [an appellate court will] not

interfere   with   a   motion   judge's   denial   of   a   request   for    an

adjournment unless it appears that an injustice has been done."

Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320,

343 (App. Div. 2000).

     Rule 4:36-3(b) provides, in pertinent part:

                 An initial request for an adjournment for
            a    reasonable    period     of    time    to
            accommodate . . . the unavailability of . . .
            a witness shall be granted if made timely in
            accordance with this rule. The request shall
            be made in writing stating the reason for the
            request and that all parties have consented
            thereto. . . .

     Bell contends that plaintiffs were not entitled to the benefit

of this rule because it would not consent to the adjournment and

plaintiffs' request did not include a proposed trial date agreed

upon by all parties.       The issue of consent is not dispositive,

however, as the rule states, "If consent cannot be obtained or if

a second request is made, the court shall determine the matter by

conference call with all parties."        Ibid.


                                     5                                A-3909-14T1
      The scheduled trial date was more than six years after an

amended complaint was filed in this case.                   The trial judge stated

she   "seriously     doubted"    that        plaintiffs          would    get   to    Dr.

Termanini's testimony during the week of March 23rd due to jury

selection, opening statements and pretrial issues that would need

to be resolved. She found there was no reasonable basis to adjourn

the trial date and did not anticipate a problem if "some minor

accommodation of timing [was] needed."

      Rather than avail themselves of the accommodation offered by

the trial judge, plaintiffs elected to videotape Dr. Termanini's

testimony.       Although they presented the testimony of their other

experts    by    videotape,2    plaintiffs          argue    they        were   severely

prejudiced by being forced to present this key witness's testimony

by videotape.       The fact remains, however, that Dr. Termanini's

testimony was provided to the jury for its consideration.

      We   agree    with    plaintiffs       that    it     is    preferable      for    a

peremptory trial date to be scheduled with the input of the

parties.       And, in the absence of consent, the trial judge should

conduct a conference pursuant to R. 4:36-3(b) to select the date.

We    cannot     agree,    however,   that      the       denial     of     plaintiffs'


2
   Plaintiffs presented videotaped testimony from: Haim Blecher,
Lawson's orthopedic surgeon; Todd A. Linsenmeyer, Lawson's
urologist; and Barbara Benevento, the physiatrist who treated
Lawson at the Kessler Institute following the accident.

                                         6                                       A-3909-14T1
adjournment request constituted an abuse of discretion on this

record where the trial judge reasonably concluded it was unlikely

plaintiffs would need to present Dr. Termanini during the first

week of trial and expressed a willingness to make accommodations

for his schedule.       Further, the case was over six years old and

plaintiffs were not deprived of the opportunity to present Dr.

Termanini's testimony, albeit by videotape.

                                   III.

     The trial judge granted Bell's motion to exclude an article

relied upon by Dr. Terminani titled "Vents and Square Lines:

Problems With Some Designs" (the Square Lines article), published

on the website of the Bicycle Helmet Safety Institute (BHSI).

Plaintiffs argue the trial judge's failure to recognize this

article as a learned treatise "constituted a manifest denial of

justice, warranting a new trial."

     Our review of a trial court's evidentiary ruling "is limited

to examining the decision for abuse of discretion."               Hisenaj v.

Kuehner, 194 N.J. 6, 12 (2008).        We discern no abuse of discretion

here.

     Close   to   one   year   after   discovery   ended,   Dr.    Termanini

provided the Square Lines article as a supplement to his expert

report.   In a letter accompanying the article, he stated:



                                       7                             A-3909-14T1
            I am writing to bring to your attention an
            article I recently located, made available
            online by the Bicycle Helmet Safety Institute,
            entitled "Vents and Square Lines: Problems
            with some designs."      Although I did not
            specifically rely upon this article in
            reaching the opinions I have provided in this
            case, regarding the defective design of the
            Bell helmet Mr. Lawson was wearing at the time
            of his accident, I believe this article
            provides direct support for the scientific
            validity of the opinions I reached through my
            own independent analysis of the design of that
            helmet.

            [(Emphasis added).]

The Square Lines article did not identify its author.                   And, as

stated in his letter, Dr. Termanini did not rely upon the article

in forming his opinion.

     Defense expert, Peter D. Halstead, chairman of the American

Society   of    Testing    and   Materials   subcommittee     for   protective

headgear, responded to Dr. Termanini's supplemental submission and

identified the author of the article as Randy Swart, a consumer

advocate.      Halstead characterized the article "more as a blog than

science [that was] not appropriate for any expert to rely on as

scientific support for an opinion."

     Bell      filed   a   motion   in   limine   to   bar   portions   of   Dr.

Termanini's testimony related to several exhibits produced after

discovery ended, including the Square Lines article.                The trial

judge considered whether each of the challenged exhibits qualified


                                         8                              A-3909-14T1
as a learned treatise under N.J.R.E. 803(c)(18), granted the motion

as to the Square Lines article and denied the motion as to four

other exhibits.3

     The trial judge granted Bell's motion to exclude the Square

Lines article.     She noted that Dr. Termanini did not identify what

the BHSI was, who authored the article and that she could not

"tell that it was published in any kind of scholarly journal."

The following testimony by Dr. Termanini was excluded as a result:

               Q.   Okay.   Let me show you what we've
          marked as Dr. Termanini P-12 for purposes of
          your testimony today.

                 . . . .

               Q.   And ask you, is that another article
          by the Bicycle Helmet Safety Committee?

               A.   Yes.   It's a P-12, and "Vents and
          Square Lines: Problem with some designs."

                 . . . .

               Q.    Is there . . . anything in that
          article that you believe has a bearing on your
          conclusions you have reached in this case?

                 . . . .


3
    The trial judge denied Bell's motion as to the following
exhibits: P-5, a document titled "The Complete Guide to Public
Safety Cycling"; P-9, a document titled "Spinal Column and Spinal
Cord Injuries in Mountain Bikers" from The American Journal of
Sports Medicine; P-10, a document authored by Professor Hugh Hurt
from the Bicycle Helmet Safety Institute [BHSI] and P-13, a
document titled "A Helmet for Prevention and Mitigation of Spinal
Column and Spinal Cord Injuries in Head-First Impact."

                                   9                          A-3909-14T1
     A.   Yeah. "The fashion among helmet
designers since 1998 has favored squared-off
edges of the foam remaining around the vents,
and the addition of sharp lines in the
exterior plastic just for style.           The
elongated 'aero' shape dates from that era as
well.   This is not an optimal design for
crashing. We believe that the ideal surface
for striking a road resembles a bowling ball:
Hard, smooth and round. Round shells reduce
to a minimum any tendency for a helmet to
'stick' to the surface when you hit, with the
possibility of increasing impact intensity,
contributing to the rotational brain injury
or jerking the rider's neck.        They also
eliminate the aero [tail] that can snag or in
a backward impact can shove [the] helmet aside
as you hit, exposing your bare head."

     . . . .

     Q.    Go ahead.    Do you have any more?

     A.   Okay. "Dr. Hurt has asked ASTM to
consider modifying its bicycle helmet standard
to eliminate aero tails and elongated design.
His e-mail on this subject is illuminating."

          "In the real world, people don't use
duct tape, and they don't even adjust their
straps well. So our advice is to avoid those
elongated [aero] designs. In fact, they don't
give you any real aero advantage until you
reach racing speeds anyway. For most riders,
they are not useful."

     Q.   Now, they mention the aerodynamic
aspect.    Did you reach any conclusions
yourself about the benefits, if any, of this
so-called   aeronomic   [sic]   design   for
recreational riders?

     A.   Well, the speed of a mountain biker,
dirt road biker doesn't exceed 25. . . . I
personally tried to measure that, and some

                       10                        A-3909-14T1
           biker[s] will go to 26, 27 miles per hour;
           but . . . the terrain doesn't allow speed.
           It's not like going in an arena, and these
           speed bikes can go up to 70 miles per hour.

                Q.   Did you reach a conclusion as to
           whether there was any aerodynamic benefit at
           all for a recreational rider in a teardrop
           shape?

                A.   For [a] recreational rider, there is
           no advantage whatsoever.

     The language in quotation marks within the block quote was

read by Dr. Termanini directly from the Square Lines article during

his de bene esse testimony.       Defendants objected to the quoted

language as hearsay.      Plaintiffs countered that the Square Lines

qualified as a learned treatise, N.J.R.E. 802, and therefore was

an exception to the hearsay rule pursuant to N.J.R.E. 803(c)(18).

The hearsay exception applies to

           statements contained in published treatises,
           periodicals, or pamphlets on a subject of
           history, medicine, or other science or art,
           established as a reliable authority by
           testimony or by judicial notice. If admitted,
           the statements may not be received as exhibits
           but may be read into evidence or, if graphics,
           shown to the jury.

           [N.J.R.E. 803(c)(18).]

     "[L]earned treatises are inadmissible hearsay when offered

to prove the truth of the matter asserted therein because the

author's   out-of-court    statements   are   not   subject   to    cross-

examination."   Jacober v. St. Peter's Med. Ctr., 128 N.J. 475, 486

                                  11                               A-3909-14T1
(1992).    Under Jacober, "a text will qualify as a 'reliable

authority' if it represents the type of material reasonably relied

on by experts in the field."     Id. at 495.    "[T]he focus should be

on what the experts in fact rely on, not on whether the court

thinks they should so rely."     Id. at 495-96 (quoting Ryan v. KDI

Sylvan Pools, Inc., 121 N.J. 276, 289 (1990)).          If there is any

doubt as to the reliability of the text, the court should conduct

a hearing, "either before or during the trial, to determine whether

the text qualifies as a learned treatise."       Id. at 496.

      No Rule 104 hearing was requested or held to determine whether

the   Square   Lines   article   constituted    a     learned     treatise.

Plaintiffs argue the trial judge erred in granting the motion

without sua sponte conducting a Rule 104 hearing.               They assert

that Bell was aware of the article and Dr. Terminani's reliance

upon it for almost eighteen months before trial and delayed in

moving to exclude the article to prejudice plaintiffs.            They also

state the article "was of critical importance" to their "'design

defect'   case,   because   it   concluded     that    'teardrop'-shaped

helmets," like the one worn by Lawson at the time of the accident

"were dangerous."

      As noted in Jacober, a Rule 104 hearing may be held "either

before or during the trial."      Id. at 496.       See Cho v. Trinitas

Reg'l Med. Ctr., 443 N.J. Super. 461, 470-71 (App. Div. 2015)

                                  12                                A-3909-14T1
(observing    that   in   limine   rulings   on   evidence   questions   are

generally disfavored), certif. denied, 224 N.J. 529 (2016).                To

support their argument, plaintiffs have submitted materials to the

court that were not presented to the trial judge and were not the

subject of a motion to supplement the record.                Because these

materials are not part of the record, we do not consider them in

our review.    See R. 2:5-4(a); Townsend v. Pierre, 221 N.J. 36, 45

n.2 (2015).

     Before the trial court, plaintiffs presented the Square Lines

article as "another article by the [BHSI]."          Plaintiffs failed to

identify the author of the article or offer sufficient information

about the BHSI to permit a reasonable analysis and conclusion that

the article was a "reliable authority" or an authority actually

relied upon by experts in the field.              We therefore discern no

error in the trial judge's decision to exclude this evidence.

     Moreover, plaintiffs were not precluded from presenting other

evidence that was probative of the points they sought to prove

through the excluded reference.           The trial judge permitted Dr.

Termanini's testimony as to exhibit P-10, another article that

appeared on the BHSI website titled "Professor Hugh Hurt Weighs

In: Testing Shows Aero Helmets are a Problem" (the Hurt email).

Dr. Termanini was permitted to read portions of Professor Hurt's

email, which are arguably more persuasive than the Square Lines

                                     13                             A-3909-14T1
article that was excluded, and which Dr. Termanini said addressed

the same design concerns he had identified in this case:

               A.   Reading from P-10. "During the last
          couple of years, the technical staff at HPRL"
          — which is the Bicycle Helmet Safety Institute
          — "has encountered an . . . interesting and
          possibly    dangerous    problem    with   the
          aerodynamic shape or streamlined bicycle
          helmet. These popular helmets have a teardrop
          design which taper to a wedge at the rear of
          the helmet supposedly reducing the aerodynamic
          drag along with increased ventilation through
          the many openings of the shell. The [ad]verse
          effect of this aerodynamic shape is that the
          wedge at the back of the helmet tends to
          [d]eflect and rotate the helmet on the head
          when impact occurs there. Any impact at the
          front or the side of the streamlined helmet
          is no different from any other helmet, but any
          impact at the rear wedge tends to rotate the
          helmet on the head probably deflecting the
          helmet to expose the bare head to impact, and
          at worst, ejecting the helmet completely from
          the head."

               . . . .

          "Actually, everybody who has tested these
          streamlined helmets over the past year has
          encountered the same due to the problem of
          this helmet being displaced during impact
          testing at the rear wedge."

               . . . .

               "We request . . . that F08.53 committee
          study this problem and develop advisory
          information for both manufacturer[s] of this
          streamlined helmet and consumer bicyclist[s]
          who now own and wear such helmet[s]. There
          is a definite hazard for displacement or
          ejection from impact on the rear wedge of


                               14                          A-3909-14T1
            these helmets and bicyclists should be warned
            of this danger by an authority such as ASTM."

                                IV.

       Plaintiffs also argue the trial court erred in allowing Thom

Parks, Vice President of Corporate Affairs for Bell, to testify

over their objection that there had been no other claims or

lawsuits against Bell alleging that the style of helmet worn by

Lawson caused a cervical injury.       We review this challenged

evidentiary ruling for abuse of discretion.    See Griffin v. City

of E. Orange, 225 N.J. 400, 413 (2016), and find none.

       The "Rules of Evidence do not prohibit other accident, or

lack of other accident, evidence."    Schaefer v. Cedar Fair, L.P.,

348 N.J. Super. 223, 239 (App. Div. 2002).    In Ryan v. KDI Sylvan

Pools, Inc., 121 N.J. 276 (1990), a design-defect failure-to-warn

case, the Supreme Court found reversible error in the trial court's

exclusion of expert testimony regarding the rarity of spinal-cord

injuries from similarly designed pools and diving boards.     Id. at

290.    The Court observed that "the core of defendant's liability

rested on the product's potential or propensity for harm."     Ibid.

Because the jury had to "evaluate the likelihood of such harm,"

the Court concluded the defendant was prejudiced when "deprived

of the opportunity to show the jury that there has been only an

infinitesimal number of serious accidents in pools with diving


                                 15                          A-3909-14T1
boards that conform to industry standards."           Ibid.      The Court

stated:

          Evidence of prior similar accidents is
          relevant and should be admissible as evidence
          of   the   risk,  or    lack  thereof,  of   a
          product. . . . Information compiled and used
          by     members     of     the    swimming-pool
          industry, . . .    concerning   frequency   of
          serious   injuries    resulting  from   diving
          accidents is precisely the kind of information
          that might assist a jury in determining the
          safety of the product.

          [Ibid.]

     Relying upon Schaefer, supra, 348 N.J. Super. at 233-34, 239-

40, plaintiffs argue that Bell should have been precluded from

offering evidence regarding the absence of prior neck injuries

because they did not introduce evidence of prior accidents. 4

Plaintiffs'    reliance   is   misplaced    because   Schaefer    did   not

establish such a condition for the admissibility of evidence

regarding the absence of prior accidents.        Id. at 239-40.

     Plaintiffs   also    argue   that    insufficient   foundation     was

provided for Parks's testimony.          They claim that Bell needed to

provide records demonstrating the safety history of the helmet

before Parks could testify regarding the helmet's safety record.

We disagree.


4
  Dr. Termanini did testify, however, that the teardrop design of
the helmet was "notorious" for causing the rotational forces that
resulted in Lawson's injuries.

                                   16                              A-3909-14T1
     Parks testified that he began working for Bell in 1998, became

its Director of Corporate Affairs in 2000 and was in charge of

safety and standards.   Part of his job was keeping track of claims

and litigation.   Any time there was a lawsuit, he worked with the

attorneys to "provide technical backup" and to investigate the

claims.   He was responsible for knowing about all claims or

lawsuits against Bell relating to helmets.   He also testified that

Bell began selling the Solar Fusion helmet in 2005, that it was a

recreational helmet designed to be used by a variety of cyclists

including mountain bikers and was Bell's best-selling helmet with

over four million sold.

     The trial judge concluded that the system Bell had in place

for the gathering and review of complaints and Parks's personal

knowledge of the complaints provided a proper foundation for the

introduction of testimony regarding the lack of prior injuries

similar to Lawson's.    We discern no abuse of discretion in this

ruling.

                                V.

     Shortly after deliberations began, the jury requested a copy

of the "safety guide for police, et cetera."   Both plaintiffs and

Bell agreed to provide the jury with "The Complete Guide to Public

Safety Cycling" in response to this request and the court did so.

The jury then requested a copy of the Hurt email.       Plaintiffs

                                17                          A-3909-14T1
argue that the trial judge erred in failing to clarify what the

jury meant by "et cetera" in its first request and declining to

provide the jury with a copy of the Hurt email or to grant its

alternative request that the email be read to the jury.          This

argument merits only limited discussion.     R. 2:11-3(e)(1)(E).

     As a preliminary matter, plaintiffs' argument regarding the

failure to clarify the jury's first request is entirely lacking

in merit since they agreed with the trial judge's response to the

request.   See N.J. Div. of Youth & Family Servs. v. M.C. III, 201

N.J. 328, 340 (2010).

     Turning to the Hurt email, the trial judge earlier permitted

Dr. Terminani's testimony in which he read the Hurt email, over

Bell's objection, finding it qualified as a learned treatise.      The

email itself was not admitted into evidence.         When the jury

requested a copy, Bell objected.     The trial judge properly denied

the jury's request pursuant to N.J.R.E. 803(c)(18), which provides

"the statements may not be received as exhibits."    The judge found

that providing the email to the jury would be "highly prejudicial"

in light of "extraneous language on the document."

     The decision whether to read back testimony to the jury is

one that lies within the discretion of the trial judge.    State v.

Wilson, 165 N.J. 657, 660 (2000).    Here, the jury did not request

a readback of Dr. Termiani's testimony; they requested a copy of

                                18                           A-3909-14T1
the email referenced within his testimony.        The trial judge

considered plaintiffs' alternative request that the email be read

to the jury and stated:

          And again, the proposal that it simply be read
          again, the jury has not asked to hear
          testimony about this document; and if they do,
          we'll address that question as it comes. But
          just to read it in, again, I think highlights
          the document in a prejudicial way and it
          effectively is making an end run around [R.]
          803(c)(18). So I'm going to deny the request.

     In an apparent response to the stated concern of plaintiffs'

counsel that the jury might consider this document less significant

because the court had provided them with a copy of the first

document they requested, the judge advised counsel she would remind

the jury that she made rulings based upon the law; the rulings did

not reflect any opinions of hers about the merits of the case and

that the jury alone was the judge of the facts.       There was no

objection to this procedure.

     The trial judge considered the request to read the email and

gave a thoughtful reason for her decision not to do so.       While

there might have been other reasonable approaches to the issue,

we cannot say that the choice she made constituted an abuse of

discretion.

                               VI.

     Plaintiffs argue the trial judge erred in providing the jury


                               19                           A-3909-14T1
with    an   instruction   that   was   prejudicial    to    them.   Because

plaintiffs did not object to the charge at trial, we review this

argument for plain error, R. 2:10-2; State v. Munafo, 222 N.J.

480, 488 (2015); accord R. 1:7-2, and find none.

       The jury instruction given by the trial judge was the Model

Jury Charge (Civil), 5.40D-4(4), "Design Defect—Defenses," "State

of the Art/Common Standards" (2001), which the judge modified only

to include the underlined language:

                  There has been evidence presented of the
             common practice and standards in the industry,
             including   the    Consumer   Product    Safety
             Commission   Safety    Standard   For   Bicycle
             Helmets.     That evidence bears upon the
             reasonable alternative design analysis that
             you were asked to make here in order to measure
             the reasonableness of the design of the
             product. Compliance with the common practice
             or industry standard does not mean that the
             helmet is safe. It may still be found to be
             defective   in    design.       However,   that
             compliance, along with all the other evidence
             in this case, may satisfy you that the helmet
             was properly made.

       Plaintiffs had requested that the language be modified to

read:    "the   compliance   or   noncompliance       with   a   standard    or

regulation may be considered by you along with all the other

evidence in this case, on the question of whether the helmet was

or was not properly made."        The court denied plaintiffs' request

and plaintiffs posed no objection to the charge thereafter.

       Plaintiffs argue the jury charge given by the court was

                                    20                                A-3909-14T1
prejudicial because "by failing to even mention the possibility

of a finding by the jury of Bell's 'noncompliance' [with 16 C.F.R.

§ 1203.5 (2016)], the trial court virtually guaranteed that such

a finding would not be made."    We disagree.

     "'[A] trial court is not bound to instruct a jury in the

language requested by a party. If the subject matter is adequately

covered in the text and purport of the whole charge, no prejudicial

error comes into existence.'"    Bolz v. Bolz, 400 N.J. Super. 154,

163 (App. Div. 2008) (quoting State v. Thompson, 59 N.J. 396, 411

(1971)).   Here, the charge given by the court adequately covered

the subject matter and the failure to mention "noncompliance" was

not "clearly capable of producing an unjust result."      R. 2:10-2.

     Plaintiffs   also   argue   that   although   the   trial     judge

instructed the jury regarding "crashworthiness," her failure to

include an interrogatory addressing "crashworthiness" on the jury

verdict sheet warrants a new trial.      This argument lacks merit

because, although plaintiffs proposed such an interrogatory, they

later agreed that the language of the first question should mirror

the language in the product liability statute, N.J.S.A. 2A:58C-2.

See M.C. III, supra, 201 N.J. at 340.

     Affirmed.




                                 21                              A-3909-14T1
