MACCUISH vs VOLKSWAGENWERK A G 22 Mass App Ct 380 — Volkswagen Transp

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Volkswagen Transp

DONALD MACCUISH, administrator, vs. A. G. another. [Note 1]

22 Mass. Ct. 380

January 17, 1986 — 20, 1986

Court Below: Court, Middlesex


In an based on theories of negligence and of warranty seeking recovery the manufacturer of a van for the wrongful death of a in the vehicle who was ejected through a when the vehicle overturned a collision, the evidence was sufficient to a question for the jury whether the glass had dropped out before the van the ground and whether this had as the result of defects in the window system. [383-385]

In an action recovery from the manufacturer of a van for the death of a passenger in the vehicle who was through a window when the overturned after a collision, the most favorable to the plaintiff have warranted the jury in that the van’s seat system was defective in that the securing the removable seat the decedent was occupying at the time of the exposed her to an unreasonable risk of [385-386]

Where evidence in a death action against the of a van showed that, owing to the of the clamps securing a removable in a vehicle, it was reasonably foreseeable the clamps would be improperly by the user and that an occupant of the would be endangered thereby, the was not required to show that defect was not caused by intermediate of the vehicle. [386]

Failure, if of a passenger in a van to be wearing a seat at the time of a collision in which she was injured did not preclude recovery


by her administrator in a wrongful death against the vehicle’s manufacturer on the theory of a breach of warranty.

At the trial of an action seeking from the manufacturer of a van for the wrongful of a passenger in the vehicle who was ejected a side window when the overturned after a collision, the did not err, on grounds of relevancy, in in evidence a letter from the Highway Traffic Safety to the defendant and other manufacturers them of the agency’s concern the possibility that occupants be ejected through van windshields, evidence was introduced to the effect the windshield and side windows of the van in had similar design features and gluing would be an effective device for both; nor, in the could the characterization of the letter as a notification have been to the jury. [387-388]

At the trial of an seeking recovery from the of a van for the wrongful death of a passenger in the who was ejected through a side when the vehicle overturned a collision, the judge did not err in admitting of certain submissions by the defendant in to a proposed Federal motor safety standard indicating the defendant was aware that would increase the retention of the van’s windshield and therefore the side windows, which similar in design. [388-389]

At the of a wrongful death action the manufacturer of a van, the admission of of a Federal safety standard to buses, although error, did not reversal of a judgment for the plaintiff, other evidence made that the van did not fall within the of a bus. [389-391]

At the trial of a action the judge acted his discretion in refusing to allow the expert witness to be impeached by use of his testimony, where the judge properly conclude that was no relevant inconsistency between the trial testimony and his deposition [391]

There was no merit to a that the judge presiding at the of a civil action was biased.

Although, at the trial of future death actions, a simple calling for the exclusion from on the issue of damages of the survivors’ anguish and bereavement would be the judge presiding at the trial of a case did not err in instructing the jury in the of the wrongful death statute, G. L. c. § 2, where the defendants’ objection to the did not sufficiently apprise the judge of the ground relied upon, the defendants’ proposed alternative was incorrect, and where the defendants had not to the testimony on the issue. [392-398]

In an against a motor vehicle to recover for the wrongful death of a year old girl, the judge did not his discretion in permitting the jury’s of $3,000,000 to stand. [398-399]


Prejudgment interest awarded G. L. c. 229, § 11, to the plaintiff in a civil should have been at the rate of six percent per annum, not percent. [399-400]

Under a for the settlement of certain claims in a action, the amount paid in should have been from the jury’s award prejudgment interest was computed.

CIVIL ACTION commenced in the Court Department on May 19, 1980.

The was tried before James L. J.

Jerome M. Leonard (Lane James L. Sigel, Elizabeth with him) for the defendants.

J. Flynn (Thomas Hoffman him) for the plaintiff.

DREBEN, J. On 17, 1980, fifteen year old MacCuish, a passenger in a Volkswagen died of a fractured skull. Her as administrator of her estate, brought a death action (G. L. c. 229, § 2) the defendant Volkswagen companies. A awarded the plaintiff $3,000,000 on of negligence and breach of warranty. In to special questions, the jury did not gross negligence or wilful or conduct on the part of the defendants accordingly, denied the plaintiff damages under G. L. c. 229, § 2. The raise numerous questions in appeal. Except for the rate prejudgment interest and the method of the verdict because of a prior we affirm the judgment.

The van (a 1975 after a collision with a Toyota Celica, ended up on a on its left side. Karen was lying on her back with her partially outside the van’s side window.

The experts different explanations as to how the van reached its landing place. The defendants’ claimed a violent slamdown; the that the van took a lazy after tipping when its wheel climbed a lawn A crucial and bitterly contested was whether the middle window of the van in place and only shattered the side of the van hit the ground, or whether

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the window had fallen out It was undisputed that the fatality in automobile accidents is far higher a person is ejected from a [Note 2] and, for this both sides laid stress on whether Karen’s came out of the window prior to

The plaintiff presented two main defects leading to Karen’s — the van’s window system and its seat mounting As to each, the defendants argue the plaintiff’s theory was speculative and a reasonable factual basis, see v. Duxbury, 327 Mass. 396. 402 and that their motions for a verdict and for judgment notwithstanding the should have been Applying the proper standard, is, construing the evidence most to the plaintiff but recognizing that the must be based on probabilities not Ferragamo v. Massachusetts Bay Trans. 395 Mass. 581. 591 (1985), we the evidence was sufficient to present a question. There were enough facts on which the could base their See Carey v. General Motors 377 Mass. 736. 742 (1979). We what the jury could found.

1. Evidence as to window system. The plaintiff claimed because of a defective design the window dropped out before the van the ground, and, as a result, head fell through the and was pinned by the roof rail of the

There was a factual basis for the of gentle roll-over and dropped Several of the van’s occupants that the van had stopped before the intersection where the accident and that its speed was no more five to fifteen miles an at the time of the collision. The damage to the two was not extensive and was consistent with a of moderate force. Two of the rear found themselves after the standing, unhurt and holding


onto straps. They able to walk away. The front tire and hub cap on which the van had showed no damage or denting. The and angles of two pools of glass found beneath the van indicated the side windows had dropped out the van hit the ground. There was no glass under Karen’s head or and no fragments were found in the on her head. No dicing [Note 3] were found on her face.

The of the window retention system was to the plaintiff’s experts. The rubber (grommet) circling the window was in size and termed grossly when compared to that of cars. The width of the metal which held the grommet in was narrower, and the amount of glass penetrated into, and was held by, the was less than in domestic There were other features of the window said to be for example, bridging. [Note 4] showed that the Volkswagen came out more easily those of domestic companies.

knew of these weaknesses at the of the accident. It had then lost and was a lawsuit brought by other involving the window retention The company, itself, had developed patents with feasible designs.

The simple device of would have improved In the opinion of Dr. Robert Brenner, who was one of the experts and had served formerly as scientist of the National Highway Safety Administration, gluing have remedied the defect, and the only person ejected the van, would have had the outcome as the other occupants of the

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Since there readily available design known to the defendants which have reduced the risk of popout without undue or interference with the performance of the there was a case for the jury in negligence and breach of warranty. v. City Tank Corp. 376 874. 881 (1978). Fahey v. Graphic Syss. 20 Mass. Ct. 642. 649, 651 (1985). The has met his burden of showing that was greater likelihood or probability the harm complained of was due to causes for the defendant[s were] responsible from any other cause. v. General Motors Corp. 377 at 740. Compare Swartz v. Motors Corp. 375 Mass. 633 (1978). As in Carey, supra at the analytical arguments of [Volkswagen] what it views as omissions and in the facts relied on by the expert go to the weight of the evidence, some of it Thus they more should be [and were] to the jury.

2. Evidence as to the seat system. Taking the evidence favorable to the plaintiff, the jury also have found the design of the seat mounting was defective, permitting the middle seat to break loose. Had the remained in place, Karen, the other rear passengers, have had something to hold i.e. the armrest, and would not had as much space within to move. According to the plaintiff’s both factors increased the of ejection.

The seat on which was sitting was removable so that the van carry cargo. The mounting consisted of six open clamps held three u-shaped rails functioning as the legs of the The clamps were fastened removable bolts which into keyhole-shaped slots in welded to the floor. The plaintiff’s pointed out that the simple of a closed (horse-shoe) clamp the rail would have far more protection. [Note 5] See

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v. City Tank 376 Mass. at 881. The jury, without expert testimony, have determined by examining the that the design exposed the to an unreasonable risk of injury.

3. handlers. The defendants point out the van was a multipurpose vehicle and that the bench seat was designed to be Given the long period and use of the van after it left the defendants’ they claim the plaintiff show that the defect in the was not caused by intermediate handlers. See v. Stone Co. 396 Mass. 1. 24 (1985). The here, however, is that the of the mounting system was improper. if we accept the view that the clamps, if properly placed, have been reasonably Volkswagen, as designer of the system, is to anticipate the environment in which its will be used, and it must against the reasonably foreseeable attending the product’s use in that Back v. Wickes Corp. 375 633. 640-641 (1978). v. Boston Edison Co. 380 Mass. 378 (1980). It was foreseeable that the would be removed and that the clamps, because of their would be improperly replaced. See v. Rockwell Graphic Syss. 20 App. Ct. at 648. No negating of the of mishandling by intermediates is [in such necessary. Smith v. Ariens Co. 375 620. 626 (1978). See Richard v. Manuf. Co. 21 Mass. App. Ct. 967 See also Nesselrode v. Executive Inc. 707 S.W.2d 371, (Mo. 1986).

4. Seat belt defense. The instructed the jury that failure, if any, to wear a belt was not an issue in the case. was no error. Karen’s negligence not be a defense to a breach of warranty. v. Firestone Tire Rubber Co. 388 342. 355 (1983). Failure to a seat belt is not misuse of the (a defense to breach

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of unless Karen unreasonably to use a product which [she to be defective and dangerous. Id. at 355. was no such evidence. Cf. Breault v. Motor Co. 364 Mass. 352. 354 (assumption of the risk defense not on grounds of failure to wear belt since plaintiff did not of risk). The jury found for the on both negligence and breach of theories. Since the seat defense is not available against the theory, we need not decide the defense may be asserted against the claim. [Note 6]

5. Evidentiary The defendants claim that irrelevant and prejudicial items on safety were improperly in evidence.

(a) The first was a letter the National Highway Traffic Administration to the defendants and other van informing them that the was concerned with the problem of ejection through windshields. The of the defendants on appeal is two-fold: 7] one, that the letter subsequent correspondence) is not relevant as it windshields rather than windows; and two, that the was improperly represented as a defect A defect notification is, according to the a technical term meaning a requiring recall.

There was at trial that windshields and windows have similar and design features, [Note 8] and gluing

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would be an retention device for both. 9] For this reason, the judge in his could determine that the was relevant. Volkswagen knew of the danger in the van’s windshield, side windows had a similar and that the agency concerned vehicular safety had recommended From this evidence, it be inferred that Volkswagen or should have known, the retention problem also to side windows and that would be helpful in solving the

While not a defect notification in the of requiring a recall, the letter reasonably be taken as concerning a Dr. Brenner (the plaintiff’s explained that the letter was a of investigatory proceedings and was not an official notification requiring recall. In counsel for the defendants, in closing pointed out to the jury that the was not a notification requiring recall. the judge could, and perhaps have pointed out the difference to the we do not think the jury were

(b) The defendants also claim certain submissions of Volkswagen in to then proposed Federal Vehicle Safety Standard see 49 C.F.R. § 571.212 (1980), not have been admitted. standard also applies to windshields and not to side windows. In the van, because of its frontal was expressly exempt from with the standard even as to [Note 10]

The earlier responses of to proposed Safety Standard offered in evidence in the course of Dr. testimony, indicated that had recognized that gluing the retention capabilities of windshields, at

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at certain impact Because there was evidence, see 9, supra, that gluing act as a glass retention enhancer for windows as well as for windshields, the in his discretion, could determine Volkswagen’s responses were to show its knowledge of the benefits and of gluing. [Note 11]

(c) The third claimed to be erroneously admitted was Motor Vehicle Safety 217, 49 C.F.R. § 571.217 [Note 12] That standard is a standard for buses, not vans, and not have been admitted. We do however, think the error reversal.

Prior to the admission of 217, a former engineer at was asked the basis of his opinion the design of the Volkswagen window system was defective. Although the objected to that question, did not object to his being questioned as to tests he had performed while at His testimony, set forth in the margin, 13]

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was that the Volkswagen van did not Standard 217. Although more specific references to 217 were made, [Note 14] the unfavorable evidence on this was before

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the jury objection before Standard 217 was An examination of the witness’s entire including cross-examination, leads us to that the error, while did not mislead the jury. The evidence was that the van did not fall within the definition of a bus. [Note 15]

6. of Dr. Brenner. The judge refused to defense counsel to impeach Dr. by use of his deposition testimony. At his deposition, Dr. disclaimed being an expert at After having been several pictures of the accident by the he stated that it was his opinion two configurations of glass came certain windows of the van. In his at trial, he thought that the two came from different The judge gave two reasons for to allow the introduction of the deposition One, the jury could the photographs as well as Dr. Brenner and did not any expert testimony on this Also, the judge did not consider the inconsistent because Dr. Brenner at trial that he did not really an opinion. We think the limitation of was within the judge’s discretion and he determine that there was no relevant inconsistency. See Commonwealth v. 386 Mass. 153. 161 (1982).

7. of the judge. The defendants’ counsel by charged the judge with statements that he considered unsafe. The judge in the course of a on

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the defendants’ motion for a new brought on this and other denied making the statements. for the plaintiff in his affidavit stated counsel for the defendant has totally taken out of context and distorted the nature of what was discussed in Our review of the entire proceedings no bias on the part of this trial judge. The conference at the alleged statements were was unrecorded. The claim, at least for of review, is entirely without [Note 16] The judge was not required to

8. Instruction on damages. The wrongful statute, G. L. c. 229, § 2, as appearing in St. c. 699, § 1, in relevant part that a person who

[i] by his negligence the death of a person. or [v] is responsible for a of warranty. which results in to a person that causes shall be liable in damages in the of: (1) the fair monetary value of the to the persons entitled to receive the recovered, as provided in section including but not limited to compensation for the of the reasonably expected net income, protection, care, assistance, companionship, comfort, guidance, and advice of the decedent to the persons to the damages recovered.

The defendants sought an instruction precluding the jury from damages to compensate the decedent’s for any emotional distress or pain and or grief which they may suffered. The judge did not give the and charged the jury in the words of the

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He read to them, on two most of the language of cl. (1) quoted and explained the elements to be recovered. He did not grief. Whether there was in the denial of the requested instruction on what damages are recoverable our wrongful death statute, and depends on whether the trial was adequately apprised by counsel the ordinary words in the statute perhaps, a more limited

State wrongful death differ widely in their A dwindling minority of States such recovery to economic that is, to the financial contributions the would have made to his Others, like Massachusetts, allow recovery for more losses, such as loss of companionship, comfort, and the like. A but an increasing number, [Note 17] recovery for grief, sorrow, and distress suffered by the decedent’s For a collection of statutes and authorities see 2 Recovery for Wrongful Death, A (2d ed. 1975), and 1 Speiser §§ 3:49 and

The defendants in their appellate have brought to our attention legislative history of our wrongful statute contained in 1973 Journal 2058, 2071. material, which was not given to the judge, suggests that under c. 229, § 2, was not intended to components of grief, anguish and of the survivors. [Note 18]

Senate 579 of 1973, as originally passed by houses, had three paragraphs to recovery: paragraph (1) previously


quoted in this opinion, (2) which provided for funeral and a third paragraph which for fair compensation for the grief, and bereavement of the survivors. Paragraphs one and two retained and appear in G. L. c. 229, § 2. three was deleted from the after receipt of the Governor’s discussed in the margin. [Note 19]

The which uses simple words, may not be unclear to the lay mind. studied in the historical context of death statutes, however, we the provision presents sufficient to warrant consideration of its legislative That history includes communications from the Governor to the Court in returning bills to him for action. Taplin v. Chatham, 390 1. 5 (1983). The deletions in the bill the return by the Governor suggest the Legislature did not intend to allow for the items omitted. As the defendants in their appellate brief, a exclusion from recovery for death was recognized by the United Supreme

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Court in Services, Inc. v. Gaudet, 414 573, 585 n.17 (1974). 20]

The trial judge was not informed of the of the issues presented by the request for the On the morning of closing argument, the and the defendants each submitted to the their requests for jury The defendants’ requested instruction its citations as presented to the judge is set in the margin. [Note 21] The reference to the case of Cimino v. Milford Inc. 385 Mass. 323. 334 was not helpful because the emotional defined therein [Note 22] was not in any way an in this case. Moreover, as in note 18, supra, a later Miles v. Edward O. Tabor, Inc. 387 Mass. 783. (1982), intimated that the grief portion of the request


was incorrect. The mere citation to a case, see note 22, supra, (it not appear that a copy of the was even given to the trial did no more than indicate other jurisdictions, perhaps different statutes (as does might support the giving of the

Prior to final argument, the on the Friday morning before the on which he was to charge the jury, counsel whether they him to indicate which requests he grant. The defendants’ counsel that he would just as get on with the argument, and get this to the jury. On Friday afternoon, final argument, the judge the plaintiff’s amended complaint and the questions to be given to the jury. there was opportunity to discuss the no mention of it was made at that On Monday morning, prior to the charge, the judge and counsel conferred about the matters to be to the jury and, again, was no discussion of the instruction. After the gave his charge, the defendants’ objected to the judge’s failure to his requests, naming them by When he named No. 29, [Note 23] the said, Wait a second. Let me at it. Defendants merely stated, No for the emotional distress, pain and There was no further mention of the nor does the record indicate any memorandum of law was ever given to the on this issue.

As the matter on the record before us, the judge was not apprised of the specific ground on by the defendants as required by Mass.R.Civ.P. [Note 24]

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365 Mass. 816 The objection by number, even the brief repetition of what the was about, did not explain to the judge in the defendants’ view there was an legal ambiguity in the statute needed clarification. The objection did not the practical effect of informing the why the requested instruction should been given, Narkin v. 5 Mass. App. Ct. 489. 491 and cases cited; Huff v. 386 Mass. 582. 583 n.2 (1982), and was not to give him reason to believe his was incorrect. Fairness and the duty to unnecessary new trials require the grounds of an objection be detailed for the benefit. Miller v. Boston Me. 8 Mass. App. Ct. 770. 774 See Collins v. Baron, 392 Mass. 568 n.3 (1984), and at 571-573 (O’Connor and JJ. dissenting). See also Smith Rules Practice § 51.6, at 230

We also note that the instruction was not itself correct. See v. Fraska, 301 Mass. 474. (1938); Ferguson v. Ashkenazy, 307 197. 203 (1940) (both holding that a trial need not separate the correct the incorrect part of a requested and give the correct part). Not does emotional distress a particular meaning which is inapplicable, see note 22, supra, but and suffering, in the wrongful death usually refers to pain and of the decedent rather than to of the survivors. The legislative history that what may be intended to be is the acute sorrow of the mourning or, perhaps, in the case of more survivors, the unusual response to the e.g. a nervous breakdown. items are what were to in Sea-Land, see note 20, supra, as the approach.

While, after study, we now a simple instruction calling for the of grief, anguish, and bereavement of the would have been and advisable, and that such an would be helpful in future we do not think it was error for the judge, on the before him, to instruct


the jury as he did in the words of the statute. 25] In reaching this conclusion, we that there was no objection to the of Karen’s father, the only from her family. His very testimony placed no emphasis on or anguish and concerned primarily the unselfish, and public minded of Karen and the resulting loss to her

9. Excessive damages. The verdict was large. The defendants, at great seek to show that the erred in denying a remittitur or a new on the ground that the damages excessive. [Note 26] In a case of kind damages are difficult to and depend upon the judgment of the tribunal in appraising the deprivations and them into a compensatory Bartley v. Phillips, 317 Mass. 35. 40 In. an appellate tribunal an award of must stand unless. to it to stand was an abuse of discretion on the of the court below, amounting to an of law. Mirageas v. Massachusetts Bay Authy. 391 Mass. 815. 822 quoting from Bartley v. 317 Mass. at 43. An appellate court not find an abuse of discretion in the refusal to grant a new trial on the of excessive damages `[u]nless the awarded were greatly to the injury proven or represented a of justice.’ Mirageas, supra, from doCanto v. Ametek, 367 Mass. 776. 787 (1975). We say that there was this of error on the part of the trial who heard and saw the witnesses. Statkus v. Transit Authy. 335 Mass. 174-175

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(1956). We decline the defendants’ invitation to in the dangerous game of reasoning verdicts in other jurisdictions. v. General Motors Corp. 380 362. 371 (1980). [Note 27]

10. interest. After the court added interest to the verdict at the of twelve percent per annum, the brought a motion under 60(a), 365 Mass. 828 (1974), to the judgment. The denial of the motion was General Laws c. 229, § 11, the assessment of prejudgment interest. See v. DeWitt, 333 Mass. 389. 391 Since the rate is unspecified, G. L.


c. 107, § 3, applies. Perkins for the Blind v. Rate Setting 383 Mass. 825. 835-836 Peak v. Massachusetts Bay Transp. 20 Mass. App. Ct. 726. 728 Interest should have computed at six percent.

11. Credit for Before the verdict the parties a stipulation in which they that the sum of $67,000, which was by insurers to the plaintiff in settlement of claims, shall be deducted the jury verdict . if any. supplied.) The $67,000 was deducted the sum of the verdict plus interest. was error in view of the agreement. Boston Edison Co. v. Tritsch, 370 260. 263-264 (1976), and v. Guralnick, 394 Mass. 753. (1985). The $67,000 payment have been subtracted the jury verdict before the of prejudgment interest.

Because of the discussed in parts 10 and 11, supra, the is remanded to the Superior Court to the settlement figure from the and to recompute prejudgment interest. In all respects the judgment and the order the defendants’ motion for judgment the verdict or for a new trial are affirmed. 28]

So ordered.


[Note 1] of America, Inc.

[Note 2] was evidence that the chance of killed increases forty-fold a person is ejected from a Karen was the only occupant a of whose body had been from the van and was the only one of the six occupants serious injuries.

[Note 3] The window was made of tempered and constructed so that if shattered it break into small which, if leaned against, cause dicing marks.

4] Bridging was explained as an incomplete of the metal flange by the grommet.

5] There was also evidence by the defendants’ experts) that the of the clamps permitted all of the clamps to in the same direction (giving less grip). The instruction gave no warnings or instructions as to the of the clamps. The bolts holding the could be fastened without securely in the keyholes and could out.

[Note 6] Evidence the seat broke loose may rendered the seat belt factually irrelevant even to the claim. There was no evidence to that the seat would not broken loose if Karen had the belt. The materiality of [Karen’s] to wear a seat belt was unclear. Breault v. Ford Co. supra at 358.

[Note 7] In reply brief, the defendants argue that the letter was citing Rice v. James Sons, 20 Mass. App. Ct. 706 (1985). Since that was not argued to the trial judge, it is not us.

[Note 8] One of the plaintiff’s experts, a design engineer at Ford Company, explained that a in evidence comparing cross of grommets of various manufacturers that the Volkswagen section is the same size on the windshield as it is on the window with the same design. There was also evidence to this effect.

9] Dr. Brenner testified that was one of the safety measures available for windshields and side windows.

10] There was some evidence the reason frontal design including the van were exempt Standard 212 was that the test to determine whether a vehicle met the would have shattered the Thus the windshield, if not for the inability to it, would have been to the standard. On this basis, the in Seese v. Volkswagenwerk A.G. 648 833, 846 (3d Cir.), cert. 454 U.S. 867 (1981), ruled Standard 212 could properly be See note 12, infra.

[Note 11] The defendant’s additional that the plaintiff misrepresented the position regarding side design does not bear on the of the evidence. The judge, in his discretion, find that the probative of the evidence outweighed the prejudice, if

[Note 12] The general rule in is that a violation of a safety is admissible as evidence of negligence, but is not See Perry v. Medeiros, 369 Mass. 841 (1976); MacDonald v. Ortho Corp. 394 Mass. 131. cert. denied, 474 U.S. 920 Rice v. James Hanrahan 20 Mass. App. Ct. 701. (1985).

[Note 13] Q. And what is the for that opinion, sir?

FOR DEFENDANTS: Objection, Your

THE COURT: He may have it.

A. I would go into my experience in designing in windshield retention systems for years in the automotive industry, I take into consideration the that during the development of the Econoline I was given the assignment in 1973 or ’74 to develop a — a windshield retention system and a side glass system for the Econoline van, and that time we made at Motor a comparative analysis of all of the vans, including the Volkswagen, we pushout tests on the windows of all of vans at our competitive garage

Q. What are pushout tests?

A. tests are tests that the manufacturers are required to conform to, to to Federal standard 217, is bus window retention.

Q. And would you go on your testimony with to conducting those pushout

A. Yes. As we were developing our analysis, we found that the on the Ford Econoline, the Chevy, the met the requirements of Standard 217, but the system for — did not pass for the for the push-on, pushout tests.

14] Q. Now, when you did the pushout in 1973 to 1975 that you did the Volkswagen glass come out easily than the glass the other manufacturer?

A. Yes, it

Q. And would you describe how that Mr. Camps?

. A. . one of the ways of passing the was to exert 1200 pounds of and when we reached 1200 of pressure, we knew we passed the But, rather than there, and since we were in the of testing anyway, we pushed to so that we would know our safety limit was. So, we have passed the test at pounds and maybe pushed to and the glass would break at we knew we had a 300 pound safety in our glass-retention system.

Q. And with to Volkswagen?

A. I can’t remember the numbers, Mr. Flynn; I do remember my senior management made it clear to me that they did not me to use anything resembling the Volkswagen on a Ford product.

COUNSEL FOR May that be stricken, your

THE COURT: No, it may stand.

Q. Did the Volkswagen retention system fail the

A. Yes, it did. It did not reach pounds on any of the tests we conducted.

Q. that performance standard of pounds, was that placed in the Regulations?

A. Yes.

Q. And was that Standard 217?

COUNSEL FOR I pray Your Honor’s

THE COURT: He may have it. What’s the

A. Yes, it was.

Q. And what Federal Standard 217 relate to?

FOR DEFENDANTS: I pray Your judgment.

THE COURT: He may have it.

A. Standard 217 relates to bus window and the domestic manufacturers will a vehicle that can be used for school children up to twelve or passengers, and it’s also as a prison van.

After further discussion, and over objection on the ground of relevancy, a copy of Standard 217 was admitted.

15] Counsel also brought out forcefully in closing argument: smoke came into case. We heard a great of testimony about Federal Vehicle Standard 217. 217 a pushout test for buses. is not a bus. Mr. Camps testified the Ford Motor Company the pushout test prescribed in 217 on the on the VW van, and it failed that I suggest that that has no application to this case; was the pushout test for buses. the plaintiffs say that this is not required to comply with bus under 217. That’s smoke. What the pushout are for buses has got nothing to do with VW van.

[Note 16] We also the defendants’ allegation concerning behavior on the part of plaintiff’s in questioning a photographer. A response was which may have suggested Volkswagen had misrepresented to the photographer it sought the photographs on behalf of the The trial judge found no and we see nothing in the record requiring a result. We defer to his discretionary Torre v. Harris-Seybold Co. 9 Mass. Ct. 660. 664 (1980).

[Note 17] See Keeton, Torts § 127, at 952 (5th ed. 1984).

[Note 18] We do not that Miles v. Edward O. M.D. Inc. 387 Mass. 788-789 (1982), requires a conclusion. In that case the Judicial Court held where a mother’s symptoms of distress did not occur until the death of her child some two after birth, there was evidence that she suffered distress at [his] birth was distinct from the claim of death. While some of the of the opinion at 788-789 may suggest that damages for her grief the death could be recovered in a death action, the construction of the language of c. 229, § 2, was not directly the court, and the legislative history of the was not brought to its attention.

[Note 19] In 1973, the Governor favored the legislation insofar as it provided recovery for wrongful death, up to that time was determined on a basis, would be compensatory. See 27, infra. In returning the bill to the he stated, however, that he was not that the statute should authorize. compensation for [the in paragraph 3]. I question the wisdom of the shifting from one minority the states (those allowing punitive damages) to another (authorizing compensation for grief, and bereavement). Recovery for such is not consistent with the underlying of this legislation — certain individuals should be recovery for certain benefits as income and companionship which received from the decedent and have continued to receive if he or she alive. I am also concerned the inclusion of such an element of damages — one so difficult of on any rational basis — actually hinder a bereaved in recovering damages by prolonging the time of trial the resolution of the between the parties. In addition, I that allowing such for `the survivors’ will courts with the burden of or limiting the scope of this of people. No such problem with respect to those to recover for income, companionship, because this class is by this bill’s reference to specifically permitted recovery by c. s. 1. 1973 Sen. Doc. No. at 3-4.

[Note 20] In extending the judge-made statutory) maritime wrongful-death a majority of the Supreme Court in the case held that it compensation for loss of society, and the like. In n.17 at 585-586, in quoting Speiser, Recovery for Death § 3.45, at 223 (1966) Speiser material appears in quotes below) Justice writing for the majority, stated, of society must not be confused mental anguish or grief, is not compensable under the maritime remedy. The former entails the of positive benefits, while the represents an emotional response to the death. The difference between the two is expressed as follows: `When we of recovery for the beneficiaries’ mental we are primarily concerned, not with the they have lost, but the issue of compensating them for harrowing experience resulting the death of a loved one. requires a somewhat negative The fundamental question in this of damages is what deleterious has the death, as such, had upon the In other areas of damage, we on more positive aspects of the such as what would the had he lived, have contributed in of support, assistance, training, consortium, etc.’ (emphasis

[Note 21] Emotional Distress.

you find that the plaintiff is to an award of damages, I instruct you you may not award any damages to compensate the next-of-kin for any emotional distress or and suffering or grief which may have suffered. Cimino v. Keg, Inc. 385 Mass. 334 (1982); Krouse v. Graham, 562 1022 (Cal. 1977).

22] The term emotional distress was in Cimino, at 334, as a severe shock directly resulting experiencing or witnessing the effects of a conduct. There was here no of this kind of shock.

23] The number should have No. 28, but the error is immaterial.

[Note 24] The provides: At the close of the evidence or at earlier time during the as the court reasonably directs, any may file written requests the court instruct the jury on the law as set in the requests. The court shall counsel of its proposed action the requests prior to their to the jury, but the court shall the jury after the arguments are No party may assign as error the or the failure to give an instruction he objects thereto before the retires to consider its verdict, distinctly the matter to which he and the grounds of his objection. Opportunity be given to make the objection out of the of the jury.

[Note 25] In this we observe that Speiser commentator quoted by the United Supreme Court in Sea-Land, see 20, supra, when it adopted the between the positive benefits by the survivors for which recovery may be and their harrowing experience for compensation is denied), in his treatise a suggested jury instruction for allowing recovery for loss of That instruction is in the form given here by the judge and not add that there is to be no recovery for such as grief. 1 Speiser §

[Note 26] The plaintiff argues the defendants, by not objecting to the verdict at the it was returned, did not make a timely This contention is without Mass.R.Civ.P. 59(b), 365 Mass. 827

[Note 27] Our reluctance to interfere the verdict is reinforced by the history of concern, which has recently heightened, with whether should be imposed on the amounts to be in this area of tort While the statute does not now the amount which can be awarded, the of a cap is a relatively new development. For seventy-five from 1898 when the generally applicable wrongful statute was adopted in Massachusetts, St. c. 565 (prior to that time could only be obtained certain classes of defendants, see v. Webb, 362 Mass. 60. 66-67, n.4 until the adoption of St. 1973, c. § 1, the wrongful death statute set a on the amount that could be Prior to 1973, the range of was between $5,000 and $200,000 to be with reference to the degree of of the defendant. It is only for the last years, since the passage of the statute, that there has no limit on the amount which can be See Doyon v. Travelers Indemnity Co. 336, 338 (1986).

We note in recent months the Massachusetts as well as Congress, has shown over the size of verdicts in cases. The question of a ceiling on is very much in the forefront. See House Doc. No. 5700, a recently passed by the Massachusetts of Representatives, which would put a ceiling on medical malpractice (including those for wrongful for such items as pain and and loss of companionship. See also S. 99th Cong. 2d Sess. on which the Judiciary Committee hearings in February, 1986, to insert a new chapter 135 in Part V of 28, which, among other would place a limit of on recovery for noneconomic damages. damages are defined as losses for suffering, inconvenience, physical disfigurement, and other nonpecuniary See also Report of the Tort Working Group on the Causes, and Policy Implications of the Current in Insurance Availability and Affordability, No. 4, at 66 (U.S. Gov’t. Printing 1986-491-510: 40090, February, advocating that a $100,000 be placed on non-economic damages.

28] For postjudgment interest on the award, see v. Massachusetts Bay Transp. Authy. 20 App. Ct. at 729.

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