### 1998 D e c i sion s O p inion s of the U nit e d

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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-5195,97-5222

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. e du/thir dc ir c uit_1998/79Filed April 15, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-5195 and 97-5222

MARK WALDORF

Appellant in No. 97-5195

v.

EDWARD J. SHUTA; CAROLYN WOOD; KENNETH C. SPENCE, JR.; MARY KAY SPENCE; BOROUGH OF KENILWORTH; JOSEPH REGO; HENRY J. MOLL; VICTOR SMITH; LAWRENCE STICKLE; CHARLES DAVID; JOSEPH VENTRE; THOMAS NEVILLE; WILLIAM J. AHERN; WILLIAM E. CONRAD; LIVIO MANCINO; GARY ROWINSKY; MARIO DIBELLA; VINCENT SCORESE; HARRY GRAPENTHIN; MARY KELLY; RICHARD

MCCORMACK; WILLIAM HOLT; A. ZELENIAK; RICHARD LOMAX; C. WILLIAM GUTEKUNST; FREDERICK BAILEY; MICHAEL PADULA; CHARLES SCHEUERMANN; FRED SUES; JOSEPH WALYUF; THOMAS MCHALE; PHILIP ERNST; FRANK J. MASCARO; WALTER E. BORIGHT,

JR.; ALBERT SIMMENROTH; JAMES E. O'BRIEN; FRANK J.

JOHDOF; RAYMOND BLYDENBURGH; EDWARD KASBARIAN; JOHN J. O'LOCK; EDMAC ENTERPRISES;

EDWARD MCDERMOTT

MARK WALDORF

v.

EDWARD J. SHUTA; CAROLYN WOOD; KENNETH C. SPENCE, JR.; MARY KAY SPENCE; BOROUGH OF

KENILWORTH; JOSEPH REGO; HENRY J. MOLL; VICTOR SMITH; LAWRENCE STICKLE; CHARLES DAVID; JOSEPH VENTRE; THOMAS NEVILLE; WILLIAM J. AHERN;WILLIAM E. CONRAD; LIVIO MANCINO; GARY

ROWINSKY; MARIO DIBELLA; VINCENT SCORESE; HARRY GRAPENTHIN; MARY KELLY; RICHARD

MCCORMACK; WILLIAM HOLT; A. ZELENIAK; RICHARD LOMAX; C. WILLIAM GUTEKUNST; FREDERICK BAILEY; MICHAEL PADULA; CHARLES SCHEUERMANN; FRED SUES; JOSEPH WALYUF; THOMAS MCHALE; PHILIP ERNST; FRANK J. MASCARO; WALTER E. BORIGHT,

JR.; ALBERT SIMMENROTH; JAMES E. O'BRIEN; FRANK J.

JOHDOF; RAYMOND BLYDENBURGH; EDWARD KASBARIAN; JOHN J. O'LOCK; EDMAC ENTERPRISES;

EDWARD MCDERMOTT

BOROUGH OF KENILWORTH

Appellant in No. 97-5222

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 84-3885)

Argued March 11, 1998

BEFORE: GREENBERG, SCIRICA, and ALDISERT, Circuit Judges.

(Filed: April 15, 1998)

Warren W. Wilentz Michael J. Barrett (argued) Wilentz, Goldman & Spitzer 90 Woodbridge Center Drive Suite 900, Box 10 Woodbridge, NJ 07095

Attorneys for Appellant and Cross Appellee Mark Waldorf

2Richard A. Amdur (argued)

Elizabeth A. Wilson Amdur, Boyle & Maggs, P.C.

P.O. Box 190 Oakhurst, NJ 07755

Attorneys for Appellee and Cross Appellant Borough of

Kenilworth

Richard M. Tango

McDermott & McGee

75 Main Street

P.O. Box 192 Millburn, NJ 07041

Attorneys for Appellees Kenneth C. Spence, Jr. and Mary Kay Spence

OPINION OF THE COURT

GREENBERG, Circuit Judge.

TABLE OF CONTENTS

I. FACTUAL AND PROCEDURAL HISTORY.................. ........4

II. JURISDICTION................................... ........9

A. District Court Determination................... .......10

B. Discussion..................................... .......14 1. Finality...................................... .......15 2. Just Reason for Delay......................... .......19

III. BINDING EFFECT OF THE STIPULATION............. .......20

A. District Court Determination................... .......20 1. Prejudice to the Borough...................... .......21 2. Prejudice to Waldorf.......................... .......23 3. Prejudice to the Judicial System ............. .......24

B. Discussion..................................... .......25 1. Subsequent Proceedings........................ .......26 2. Manifest Injustice............................ .......28 3. New Jersey Open Public Meetings Act .......... .......30

3IV. ADEQUACY OF THE JURY VERDICT................... .......33

A. Scope of the Appellate Record.................. .......33 B. Pain and Suffering............................. .......34

C. Award for Past and Future Economic Loss ....... .......39 1. Mitigation of Damages......................... .......39 2. Qualification of Dennis Rizzo ................ .......42

3. Remarks of Defense Counsel in Summation ...... .......47 4. Improper Use of the Testimony of

James Pascuiti.............................. .......48

a. Redirect Examination of Pascuiti ............ .......49 b. Closing Argument by the Borough ............. .......49

V. COLLATERAL SOURCE SET-OFF....................... .......50

VI. CONCLUSION..................................... .......54

I. FACTUAL AND PROCEDURAL HISTORY

This case involves an appeal and a cross appeal fro m a judgment of $3,005,941 entered on a jury's verdict in favor of the plaintiff, Mark Waldorf, after a deduction f or a collateral source recovery, in this personal injury action. Waldorf suffered injuries rendering him a quadriple gic in a motor vehicle accident in 1982 when he was 24 years old. First, Waldorf appeals from the denial of his motio n for a new trial on damages and the refusal of the distric t court to grant him an additur as he contends that the ver dict was inadequate and against the weight of the evidence. Second, Waldorf argues that he should receive a new trial b ased on the district court's improper qualification of a wi tness as an expert and based on the allegedly improper conduct of defense counsel during the trial. Defendant, Boroug h of Kenilworth, New Jersey ("the Borough"), contends, h owever, that we do not have jurisdiction over Waldorf 's ap peal,

because the district court has not entered a final judgment. In a cross appeal, the Borough also argues that the district court improperly bound it to a stipulation of liabi lity to Waldorf that it made prior to an earlier trial, and that the court also erred in limiting a collateral source se t-off against the jury's award. We hold that we have juri sdiction over this appeal and cross appeal and will affirm t he

district court's orders.

4This appeal is the third occasion that this case ha s been

before us during the over 13 years that it has been litigated in the federal courts. See Waldorf v. Shuta, 3 F.3d 705 (3d Cir. 1993); Waldorf v. Shuta, 896 F.2d 723 (3d Cir. 1990). Although our prior opinions relate the circumstance s surrounding this case, we set forth the facts again because of their relevance to the present appeal.

On November 17, 1982, at approximately 11:45 p.m.,

Waldorf was involved in a two-car accident at the f our-way intersection of Monroe Avenue and North 14th Street in the Borough. He was a passenger in a van driven by Kenn eth C. Spence, Jr., and was riding on a seat that was n ot bolted down, but instead was secured only by elastic strap s. Waldorf was not wearing a seat belt at the time of the

accident.

The intersection of Monroe Avenue and North 14th St reet had only one traffic light facing in each direction . On the night of the accident, the red light facing west at the intersection failed. Corporal Victor Smith of the K enilworth Police Department discovered at approximately 11:00 p.m. that the red light was not working. He attempted to fix the light; but he could not repair it, nor could he swi tch it into the blinking mode. Smith radioed police headquarter s and discussed the situation with his supervisor, Lieute nant Joseph Rego. However, instead of ordering an office r to direct traffic at the intersection, Rego assigned S mith and the other officer on duty to what he regarded as mo re pressing matters.

At approximately 11:45 p.m. that night, Spence was traveling south on 14th Street. Edward J. Shuta, dr iving a Datsun Sedan, was traveling at approximately 60 mil es per hour heading east on Monroe Avenue at the same time . The green light was facing Spence, and he proceeded int o the intersection at approximately 20-25 miles per hour. Shuta testified that he saw a green light when he was cro ssing

railroad tracks 237 feet from the intersection. How ever, he did not see the light turn yellow, nor did he notic e that the red light was not working. Thus, he entered the int ersection at the same time as Spence, and the vehicles collid ed. The force of the collision threw Waldorf from his seat, and the bench upon which he had been sitting struck his hea d.

5Waldorf was taken to Memorial Hospital in Union, Ne w

Jersey, where neurosurgeon Dr. Howard Lieberman diagnosed that he had a fracture and dislocation at the C6- C7 level of the spine with a transection of the spi nal cord

and a total lack of function below that level resul ting in quadriplegia. See app. at 129-31. While Waldorf was at the hospital, Dr. Lieberman initially treated him with cervical traction to reduce the fracture in the cervical spi ne, and Dr. Lieberman later fitted him with a halo brace, which was screwed into his skull to help his neck fractures h eal. Waldorf remained in the hospital for three weeks an d then

transferred to the Kessler Institute for Rehabilita tion in West Orange, New Jersey, where he began a rehabilit ation program, physical therapy, and occupational therapy

.

In March 1983, Waldorf transferred to the Rusk Inst itute for Rehabilitation at New York University Medical C enter. At Rusk, Waldorf came under the care of Dr. Kristjan Ragnarsson, a board certified physician who special izes in physical medicine and rehabilitation. Waldorf recei ved physical therapy, occupational therapy, counseling by social workers and psychologists, vocational counse ling, and therapeutic recreation. See id. at 142-50. Ulti mately, Waldorf was discharged on December 23, 1983. In all

, Waldorf spent 404 days at Memorial Hospital, Kessle r Institute, and Rusk Institute. Upon discharge, Wald orf continued under Dr. Ragnarsson's care as an outpati ent. For a time, Waldorf was under the care of Dr. Asa R uskin, a physical medicine specialist at Kinsgbrook Jewish Medical Center, but he returned to Dr. Ragnarsson's care in April 1991, after Dr. Ruskin's death.

Waldorf 's injuries as a result of this accident ar e catastrophic. He has lost control of all motor, mus cle, and sensory functions below the C6-C7 neurological leve l. Waldorf can move his facial, neck, and shoulder mus cles and can raise and bend his elbow; but he cannot mov e his fingers. Although his chest muscles are paralyzed, he is able to breath without a respirator. Waldorf has lo st a great deal of weight and muscle mass as a result of his c ondition. In order to combat this problem, Waldorf undergoes a 45- minute stretching and exercise program twice a day and engages in bicycle riding therapy for two hours a d ay. The

6muscles in his legs are spastic, resulting in invol untarily

contractions and motions of his legs.

Waldorf has no control over his bowel functions, wh ich have to be stimulated artificially on a daily basis . Since 1985, he has been under the care of Dr. Joshua Feib usch, a gastroenterologist, for this problem. Furthermore , Waldorf has no control over his urinary functions, so he ha s to wear an external urinary collection unit. This situation has led to several urinary tract infections, one of which requ ired a nine-day hospital stay. Among other medical problem s, Waldorf suffers from autonomic dysreflexia, sexual disfunction, and musculoskeletal problems. He has h ad and will require 24-hour attendant care for the res t of his life. Throughout his ordeal, Waldorf has suffered f rom a great amount of pain.

Waldorf filed this action in the district court on September 21, 1984, against the drivers of the vehi cles involved in the accident, the Borough, and various present and former Borough officials. At the first trial, w hich was on both liability and damages, he received a jury v erdict on August 12, 1988, against the Borough, Police Lt. Re go, and the drivers of the vehicles in the amount of $8,400 ,000. We subsequently reversed and remanded the case for a n ew trial. See Waldorf, 896 F.2d at 744-45.

On remand, the Borough proposed to stipulate its liability to Waldorf in exchange for certain proced ural concessions. Counsel for the Borough made this prop osal at a hearing before a magistrate judge stating:

The borough has, after much consideration an d soul- searching, has authorized me to advise the C ourt that they will not contest liability in this matt er, provided two things, and these are absolute condition s for this admission by them: One is that the case be b ifurcated and different juries hear liability and dama ges; and the second thing is that the damages trial proce ed first before a liability trial. Therefore, a decis ion not to contest liability is predicated on those two prerequisites.

App. at 277. Waldorf 's counsel objected to this st ipulation, but the magistrate judge nevertheless incorporated the

7stipulation by reference into an order of August 4, 1992.

See id. at 292. Pursuant to this order, the case wa s tried only on damages leading to the jury returning a ver dict on September 25, 1992, for Waldorf in the amount of $16,135,716. The Borough sought and obtained a Rule 54(b) certification of the judgment and then filed an appeal. See Fed. R. Civ. P. 54(b). We again reversed and re manded the case for a new trial on damages. See Waldorf , 3 F.3d at

713.

After the second remand, the Borough retained new

counsel who moved in the district court for relief from its stipulation of liability. The district court denied the motion and held that the stipulation bound the Borough. Se e Waldorf v. Borough of Kenilworth, 878 F. Supp. 686 (D.N.J. 1995). The Borough then unsuccessfully sought permi ssion to appeal the decision.

The court then held a third trial, which like the s econd trial, was only on damages. On October 25, 1995, th e jury

returned a verdict in favor of Waldorf in the amoun t of $3,086,500 divided as follows: $2,500,000 for pain and suffering; $195,000 for past lost earnings; and $39 1,500 for future lost earnings. The district court entered ju dgment against the Borough on November 8, 1995, following which Waldorf moved for a new trial on damages, or in the alternative, for a substantial additur. The distric t court denied this motion on February 26, 1996. See Waldor f v. Shuta, 916 F. Supp. 423 (D.N.J. 1996).

Waldorf then moved for a Rule 54(b) certification f or entry of a final judgment against the Borough, and the Bo rough filed a cross-motion for an order setting a date fo r the liability trial. See Fed. R. Civ. P. 54(b). The Bor ough also filed a motion seeking a collateral source set-off as provided by N.J. Stat. Ann. S 59:9-2(e) (West 1992). Pursuan t to Rule 54(b), the district court certified the judgment so that it could be appealed and, by doing so, denied the Boro ugh's motion to set a trial date on liability. The court, however, did not file a written opinion with its order expla ining why it entered the final judgment. As part of this same order, the court granted in part the Borough's motion for a collateral source set-off and reduced the judgment to $3,005,941.

8Waldorf then filed a timely notice of appeal, and t he

Borough filed a cross appeal. On December 5, 1996, we entered an order dismissing the appeals "for lack o f appellate jurisdiction," citing Fed. R. Civ. P. 54( b). Waldorf

filed a second motion with the district court for a certification of a final judgment pursuant to Rule 54(b). The district court subsequently issued a written opinio n and order on March 24, 1997, again granting Waldorf 's certification motion. See Waldorf v. Borough of Ken ilworth, 959 F. Supp. 675 (D.N.J. 1997).

On April 3, 1997, Waldorf again appealed. Kenneth C

. Spence, Jr., Mary Kay Spence, Edward Shuta, and Car olyn Wood also filed notices of appeal, but they later w ithdrew their appeals. The Borough filed a cross appeal and , in addition, filed a motion to dismiss Waldorf 's appe al for want of jurisdiction.

II. JURISDICTION

The district court exercised jurisdiction pursuant to 28 U.S.C. S 1332(a), based on the diversity of citizen ship among the parties. However, the Borough asserts tha t we do not have jurisdiction under 28 U.S.C. S 1291 bec ause in its view the district court improperly certified th e judgment as a final order pursuant to Rule 54(b). We will ad dress this jurisdictional question first.

A district court's determination to grant a Rule 54 (b) certification motion is "predicated on its affirmat ive answer to two questions, i.e., were the judgments final an d were they ready for appeal." Gerardi v. Pelullo , 16 F.3 d 1363, 1368 (3d Cir. 1994). In reviewing the district cour t's decision regarding whether a judgment is final, we exercise a plenary standard of review. See id. In this appea l, the question of finality involves the district court's interpretation of the stipulation of liability that the Borough made prior to the second trial. In reviewing the di strict court's interpretation of that stipulation we also exercise plenary review.1 See Washington Hosp. v. White, 889 F.2d

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1. Arguably this case involves construction rather than, or perhaps in addition to, interpretation of the stipulation; but as we discern no

91294, 1299 (3d Cir. 1989). With respect to the ques tion of

whether the issue was "ready for appeal . . . tak[i ng] into account judicial administrative interests as well a s the equities involved," we exercise an abuse of discret ion standard of review. Gerardi, 16 F.3d at 1368 (inter nal quotation marks omitted). Thus, we will exercise a plenary

standard of review to consider the district court's interpretation of the Borough's stipulation and the district court's determination of the finality of this judgm ent, but

will use an abuse of discretion standard to review the district court's determination that this judgment w as "ready for appeal" under Rule 54(b).

A. District Court Determination

In an opinion dated March 24, 1997, the district co urt certified the judgment as final under Rule 54(b) in order to permit an immediate appeal. See Waldorf, 959 F. Sup p. at 682. The district court noted that following the th ird trial, it first had certified the judgment under Rule 54(b ) without an opinion, but that we dismissed the appeal "for l ack of appellate jurisdiction," citing Rule 54(b). See id. at 677-78. The district court recognized that the dismissal co uld imply that an appeal was not appropriate at that point in the litigation; however, the district court determined that we more likely dismissed the appeal because the court failed to state its reasons for its certification of the judg ment as final. See id. at 678. Thus, having determined it w ould be appropriate to reconsider the certification motion in a written opinion, the court addressed its merits.

The court recognized that to certify an order pursu ant to Rule 54(b), the judgment must be final and there mu st be no just reason for delay in entering the final judg ment. With regard to the question of finality, the court held that

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difference in outcome turning on that distinction, as a matter of convenience we use the term "interpretation." In th is regard, we are not prejudicing the Borough as we are exercising plenar y review in answering all questions which could be regarded as involving either interpretation or construction of the stipulation. This standard of review is, of course, favorable to the Borough.

10the judgment was final, because "it is an `ultimate

disposition' of Waldorf 's individual claim for dam ages against [the] Borough." Id. at 679. The Borough had conceded its liability; and on that basis, the jury determined that Waldorf was entitled to damages fro m the Borough. The court also held that while the Borough

claimed that it could assert the affirmative defens e of comparative negligence against Waldorf, this assert ion would not preclude a finding of finality; instead, the court determined that if the Borough had such a defense, it was merely a factor for the court to consider in the de lay analysis and thus did not affect finality. Therefor e, the court held that the judgment was final under Rule 5 4(b).

Having made a finding of finality, the court consid ered whether there was any just reason for delay. Under this analysis, courts should consider the following fact ors:

(1) the presence or absence of a claim or co unterc laim which could result in a set-off against the judgment sought to be made final; (2) the relationshi p be tween the adjudicated and unadjudicated claims; (3 ) the possibility that the need for review might o r might not be mooted by future developments in the dist rict court; (4) the possibility that the reviewing court might be obliged to consider the same issue a second time; and (5) miscellaneous factors such as delay, eco nomic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Id. at 679 (citing Allis-Chalmers Corp. v. Philadel phia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975) (footnotes om itted)). With regard to the first factor, the court recogniz ed that the existence of an affirmative defense would weigh hea vily against the grant of a certification. As part of th e liability trial, the Borough argued that it intended to raise an affirmative defense of comparative negligence again st Waldorf. However, Waldorf claimed that the Borough waived this defense when it stipulated to liability prior to the

second trial. The district court examined the circu mstances surrounding the liability stipulation, and found th at the Borough made no explanation at that time regarding the specific scope of the waiver nor did it express any intent to preserve any affirmative defense. See id. at 679-80 . Thus,

11these circumstances weighed in favor of finding a w aiver of

the comparative negligence defense.

The court also rejected the Borough's argument that its opening remarks at the second trial evidenced its i ntent not to waive its affirmative defense. In these remarks, counsel for the Borough stated that "[t]he Borough, in fact , has said it is at least in part responsible for this tragic event." Id. at 680. According to the Borough, this statement

demonstrated that it believed that it had maintaine d its affirmative defense of comparative negligence again st Waldorf. The court rejected this argument, noting t hat the statement "is consistent with the understanding tha t the liability phase of the trial was to treat the cross -claims asserted by the Borough against the other defendant s." Id. Thus, the court held that the statement did not imp ly that the Borough had preserved its affirmative defense a gainst

Waldorf.

As further support for its decision, the court note d that following the second trial, the Borough was in the same procedural position in which Waldorf found himself after the third trial -- appealing under a Rule 54(b) cer tification on damages prior to a liability trial. Yet when the Borough appealed, it did not mention its affirmative defens e and instead proceeded with its appeal. Based on all of this evidence, the court determined that the Borough's stipulation of liability precluded its assertion of an affirmative defense of comparative negligence again st

Waldorf.

Additionally, the court held that permitting the Bo rough to litigate the issue of Waldorf 's comparative neg ligence would "run afoul of the principles underlying New J ersey's `ultimate outcome' rule." Id. (citing Roman v. Mitc hell, 413 A.2d 322 (N.J. 1980)). In Roman, the New Jersey Sup reme Court held that " `a jury in a comparative negligen ce situation should be given an ultimate outcome charg e so that its deliberations on percentages of negligence will not be had in a vacuum, or possibly based on a mistaken notion of how the [comparative negligence] statute works.' " Id. at 681 (quoting Roman, 413 A.2d at 327). Thus, in order to make an appropriate determination, a jury is ent itled to know that any award to a plaintiff will be reduced by the

12plaintiff 's negligence and, indeed, that a plainti ff 's

negligence, if exceeding that of the defendant, wil l bar his claim entirely. The court noted that if the Borough was permitted to argue comparative negligence, "one jur y will have decided the amount of Waldorf 's total damages and a second jury may quantify, by percentage, his fault. " Id. The court held that the damages jury, therefore, would have operated in the vacuum that Roman sought to avoid. Based on all of these arguments, the court held that the Borough waived its affirmative defense of comparative negli gence. Therefore, the first factor in determining whether there was just reason for delay, i.e., the possibility of a s et-off by reason of a counterclaim, weighed in favor of certi fication as there was no such possibility.

In considering the second factor relating to whethe r there was just reason for delay in entering a final judgm ent, the district court found that all of the unadjudicated claims in this case addressed the issue of liability among th e defendants. The Borough had conceded its liability to Waldorf, so all that remained was a determination o f whether to allocate responsibility for the damages judgment among the remaining defendants. Because a certifica tion of this judgment would not impair the Borough's right to seek contribution from the other defendants, the court h eld that this factor did not weigh against certification. Se e id. at

681.

Considering the possibility of mootness and of mult iple reviews factors, the district court held that "[i]t is highly unlikely that the litigation of the Borough's cross -claims on the basis of liability would serve to moot the issu e of the propriety of the jury verdict" with regard to damag es. Id. Furthermore, the court recognized that another jury would not redetermine the quantum of damages so that we w ould address the damage issue only on this occasion. The refore,

the district court determined that these factors di d not weigh against certification. See id. at 681-82.

Finally, in considering the miscellaneous factors, the district court held that the consequences of a dela y in the review of this verdict weighed in favor of immediat e certification and review. The court recognized that Waldorf had been injured more than 14 years earlier, and ha d not

13received any compensation from this case. Without a

certification, the unjustified delay would continue . The court also held that economic and solvency consider ations were immaterial, determining that they played no ro le. See

id. at 682.

Because it determined that the judgment was final a nd the factors weighed in favor of finding that there was no just reason for delay in the entry of a final judgm ent, the district court held that certification was proper u nder Rule 54(b).

B. Discussion

The court's authority to certify a judgment under R ule 54(b) as final creates a narrow exception to the hi storic policy of the federal appellate courts against piec emeal appeals. See, e.g., Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 438, 76 S.Ct. 895, 901 (1956); Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1335 (4th Cir. 1993). Rule 54(b) provides:

When more than one claim for relief is prese nted in an action, whether as a claim, counterclaim, cr oss-claim, or third-party claim, or when multiple parti es are involved, the court may direct the entry of a final judgment as to one or more but fewer than al l of the claims or parties only upon an express deter mination that there is no just reason for delay and u pon an express direction for the entry of judgment.

. . .

Thus, to certify entry of a final judgment under th is rule in a multiple claim or multiple party action, the dist rict court must determine expressly that the judgment is final and that there is no just reason for delay.

Initially on this point we state that the district court correctly understood that we based our dismissal of the earlier appeal and cross appeal on the district cou rt's

failure to state its reasons for certification on t he record. We consistently have required district courts to pr ovide a reasoned opinion as a prerequisite for appellate re view of a judgment certified as final. See, e.g., Cemar, Inc. v. Nissan Motor Corp., 897 F.2d 120, 123 (3d Cir. 1990) (dism issing

14appeal on jurisdictional grounds because the distri ct court

did not state its reasons for certification on the record); Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d at 364 (adopting the policy of requiring a written sta tement of reasons by the district court in support of its det ermination to certify a judgment as final under Rule 54(b)). B ecause the district court did not provide a written opinio n outlining its reasons for its first certification of the judg ment, we dismissed the appeal for want of jurisdiction. As p art of the second certification, however, the district court p rovided a written opinion explaining its reasons in great det ail for granting the certification motion. Therefore, we ca n review

the merits of the district court's certification de cision.

This case involves multiple claims among multiple parties. In addition to his claim against the Borou gh, Waldorf has direct claims against other defendants, and the Borough has cross-claims for contribution against t hese same parties. See generally Owens v. Aetna Life & C as. Co., 654 F.2d 218, 220 n.2 (3d Cir. 1981) (suggesting th at contribution and indemnity claims are separate clai ms from the underlying complaint for purposes of a Rule 54( b) certification); Capital Transit Co. v. District of Columbia, 225 F.2d 38, 40 (D.C. Cir. 1955) ("Third party complain ts seeking indemnity or contribution have in several i nstances been held to present a severable claim, capable of separate final adjudication under Rule 54(b) . . . ."). Thus , this case presents a situation in which a Rule 54(b) certific ation may be appropriate provided that in the unusual circums tances here the judgment is final and there is no just rea son for delay.

1. Finality

A final judgment is "an ultimate disposition of an individual claim entered in the course of a multipl e claims action." Sears, Roebuck & Co., 351 U.S. at 436, 76 S.Ct. at 900; see also Gerardi, 16 F.3d at 1638 ("Finality i s defined by the requirements of 28 U.S.C. S 1291, which are generally described as `ending the litigation on th e merits and leav[ing] nothing for the court to do but execu te the judgment.' " (citations omitted)). Although a distr ict court has discretion in certifying a judgment for appeal under

15Rule 54(b) "[t]he district court cannot, in its exe rcise of its

discretion, treat as `final' that which is not`fina l' within the meaning of [28 U.S.C. S] 1291." Sears, Roebuck & Co ., 351 U.S. at 437, 76 S.Ct. at 900. Thus, if the Borough has retained its right to assert an affirmative defense of comparative negligence against Waldorf, the reserva tion would prevent a Rule 54(b) certification in this ca se because the judgment would not be final. See Bohl v

. Stamatakis Indus., Inc. (In re Lull Corp.), 52 F.3d 787, 788- 89 (8th Cir. 1995) (holding that the presence of an affirmative defense precluded a finding of finality for the purposes of a Rule 54(b) certification); see also T rustees of the Chicago Truck Drivers, Helpers & Warehouse Work ers Union (Indep.) Pension Fund v. Central Transp., Inc . , 935 F.2d 114, 116 (7th Cir. 1991) (holding that Rule 54 (b) does not permit an "appeal when damages have been partia lly but not completely determined, or when the district court will revisit the issues."); Allis-Chalmers Corp., 5 21 F.2d at 366 ("[I]n the absence of unusual or harsh circumst ances, we believe that the presence of the counterclaim, w hich could result in a set-off against any amounts due a nd owing to the plaintiff, weighs heavily against the grant of 54(b) certification.").

The concern is that if the certification is allowed a defendant will have to pay money to a plaintiff tha t ultimately the plaintiff could be required to retur n if the

defendant is successful in his or her defense. In f act, the New Jersey Tort Claims Act, which is applicable to Waldorf 's claim against the Borough, provides that if a plaintiff 's negligence is greater than a defendant s' negligence, the plaintiff is precluded from recover y. See N.J. Stat. Ann. S 59:9-4 (West 1992). Under this rule, d epending on the outcome of the affirmative defense, an under lying judgment against the defendant could be invalidated . Thus, if the Borough can raise an affirmative defense of comparative negligence against Waldorf, the judgmen t from which Waldorf appeals is not final.

We hold, however, that this judgment is final becau se we agree with the district court's determination that the Borough waived its affirmative defense of comparati ve negligence as a result of its stipulation of liabil ity prior to

16the second trial. In interpreting a stipulation, co urts should

consider its plain language and "the circumstances surrounding the formation of the [s]tipulation whic h may explain" its meaning. Washington Hosp., 889 F.2d at 1302 (internal quotation marks omitted). The Boroughfirs t proposed stipulating liability at a hearing before a magistrate judge in the context of considering a tr ial involving all of the defendants as to damages only. See app. at 276-77. Susan Sharko, the previous counsel for t he Borough, explained to the magistrate judge that a t rial limited to damages could not be held by consent bec ause at least one defendant, Police Lt. Rego, was unwilling to stipulate to liability. See id. After this explanat ion, Sharko, acting for the Borough, made a clear and unequivoca l stipulation of liability as to Waldorf: "The boroug h . . . has authorized me to advise the Court that they will no t contest liability in this matter . . . ." Id. at 277. The o nly condition to the stipulation was that the court hold the dama ges trial first, to be followed by a separate liability trial . See id.

The Borough argues that the provision for the separ ate liability trial demonstrates that it did not waive its affirmative defense of comparative negligence as to Waldorf. This argument is without merit. The plain language of the stipulation clearly does not reserve to the Borough any right to contest liability with respect to Waldorf. The assertion of an affirmative defense of comparative negligence is inconsistent with a stipulation of li ability,

because the thrust of the defense is the denial of liability to the same party in whose favor the stipulation of li ability runs. Furthermore, given the New Jersey law which m ay deny recovery to a plaintiff depending upon his per centage of comparative negligence, the stipulation necessar ily had

to waive this affirmative defense if it was to be a stipulation of liability. Therefore, the Borough is attempting to recast the stipulation so that it was nothing more than a stipulation that it was negligent and that its negl igence was a proximate cause of the accident. Such a limited stipulation would leave the liability question open as Waldorf 's comparative negligence could bar the act ion.

Other persons present at the hearing when the Borou gh made the stipulation understood it as waiving the

17Borough's affirmative defense of comparative neglig ence. In

fact, while discussing the Borough's proposal, the magistrate judge stated that as a result of the sti pulation, "the only rights that would accrue after [the damag e trial] would be the rights between the various defendants to contribution . . . ." App. at 280; see also id. at 281 ("But in any event, Plaintiff will have 100 percent liabilit y against the Borough, and the future liability trial, if it occurs at all, will only be to establish whether or not any one ne ed make contribution." (comments of Steven Backfish, attorn ey for Police Lt. Rego)). Thus, without any objection by t he Borough, the individuals involved at the hearing ex plained that the purpose of the liability trial would be to determine

issues of contribution and not to disturb the Borou gh's stipulation of liability to Waldorf. Considering th e circumstances surrounding the formulation of the stipulation and its plain meaning, we hold that the Borough waived its affirmative defense of comparative negli gence by expressly, and without reservation, stipulating its liability

to Waldorf.2

We recognize that in its cross appeal the Borough a rgues that the district court erred by not permitting it to withdraw its stipulation. If the Borough could free itself f rom the stipulation, it could contest its liability to Wald orf, because the stipulation's waiver of the affirmative defense of comparative negligence no longer would have any for ce. In that circumstance, arguably the judgment in this ca se would not be final, because the liability trial cou ld alter or undermine completely the damages judgment. However, as we will discuss below, because we hold that the dis trict court did not abuse its discretion in binding the B orough to its stipulation, this possibility does not prevent the judgment from being final.

The litigation between Waldorf and the Borough has been determined on the merits, and only the satisfaction of the judgment remains. The district court did not err in

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2. Because we hold that the Borough waived its affi rmative defense, we do not reach the question of whether the assertion of that defense in a separate liability trial would violate New Jersey's ultimate outcome rule. See Roman, 413 A.2d at 327.

18determining that the stipulation waived the Borough 's

affirmative defense of comparative negligence and, as we will discuss below, the court did not abuse its dis cretion in preventing the Borough from withdrawing the stipula tion. Therefore, the judgment in this case is final.

2. Just Reason for Delay

In considering whether there is any just reason to delay entry of a final judgment, " `the proper role for t he court of appeals is not to reweigh the equities or reassess the facts

but to make sure that the conclusions derived from these weighings and assessments are judicially sound and supported by the record.' " Cemar Corp. , 897 F.2d at 123 (citing Curtiss-Wright v. General Elec. Co., 446 U. S. 1, 10, 100 S.Ct. 1460, 1466 (1980)). We hold that the dist rict court did not abuse its discretion in determining t hat there was no just reason to delay entry of a final judgme nt or to delay this appeal. When the court made its determin ation, Waldorf had endured three trials and two appeals an d had waited more than 14 years without receiving any compensation for his injuries from this case. Any subsequent trial will not concern the issues of dam ages that have been fixed by the judgment; particularly inasmuch as we understand that all the parties agre e that they are bound by the judgment with respect to the extent of damages. Thus, there is no risk that the issues decided at the damages trial will be reconsidered or that t he damages determination will be moot.3 Furthermore, t he Borough does not have any pending counterclaims or defenses against Waldorf that could reduce the awar d. The district court properly examined all the appropriat e factors

under our test as set forth in Allis-Chalmers and did not abuse its discretion in determining that they weigh ed in favor of certifying the judgment as final thus allo wing an immediate appeal.

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3. In the circumstances, we see no reason to enter into a discussion of the preclusive effect of the judgment on parties ot her than Waldorf and the Borough. We simply note that it is not conceiva ble that any defendant would want to retry the damages issue and that Waldorf has had a full and fair trial on damages.

19Based on the foregoing reasons, we will affirm the district

court's determination to certify this judgment asfi nal pursuant to Rule 54(b). Therefore, we have jurisdic tion and we now turn to the merits of Waldorf 's appeal and the Borough's cross appeal.

III. BINDING EFFECT OF THE STIPULATION

Although we typically would consider issues raised by an appellant before considering arguments raised by a cross appellant, we first will consider the issue the Bor ough raises in its cross appeal that its stipulation of liability is not binding. We reverse our usual order because of the significance of the issue on our jurisdiction, refe rence to which we made above. In its cross appeal, the Borou gh challenges the district court's decision precluding it from withdrawing its stipulation of liability to Waldorf . On this appeal and cross appeal, the Borough seeks to maint ain the damage verdict but free itself of its full admi ssion of liability to Waldorf. Thus, even though part of the condition of the stipulation has been carried out, the holdin g of a damage trial first by a separate jury, the Borough wishes to withdraw from its concession of liability to Waldor f and require that there be a full liability trial. Thus, to put it bluntly, the Borough wants it both ways -- the stip ulation will be applied but only insofar as it is in its in terest to apply it.

As we have indicated, if the Borough is correct in its argument, the possibility of a reduction or elimina tion of the judgment in this case that could result from a full liability trial arguably might deny us jurisdiction over this appeal, because the judgment from which Waldorf app eals might not be regarded as final. Thus, the merits of the cross appeal and the jurisdictional issues are inte rtwined. We, however, will affirm the district court's denia l of the Borough's motion to relieve it from the stipulation . Thus, our jurisdiction is secure.

A. District Court Determination

As we have indicated, the Borough unsuccessfully so ught to withdraw its stipulation of liability to Waldorf prior to the

20third trial. See Waldorf, 878 F. Supp. at 696. The district

court held that a party may avoid a stipulation in three circumstances: mistake of law, express limitation, and manifest injustice. First, the court held that if a stipulation was entered into as a result of a mistake of law, a party should be entitled to relief. However, the court he ld that the Borough's decision to make the stipulation was mere ly tactical, rather than being engendered by a mistake of law. See id. at 692. Second, the court held that a party could be relieved of a stipulation if the stipulation expres sly was limited "to a single trial and [was] phrased in con clusory, rather than evidentiary facts." Id. at 691-92. Exam ining the stipulation, the court held that the Borough did no t limit the stipulation to a single trial, nor was the stip ulation intended merely to narrow the issues in dispute. Ra ther, the court found that the Borough entered into the stipulation "as a tactical decision that the amount of damages awarded to Waldorf, if any, would be of a l esser quantum if the jury awarding the damages was not aw are of the Borough's actions leading to its liability." Id. Therefore, the court held that the express limitati on exception did not apply to the Borough's stipulatio n. Turning to the third exception, the court noted tha t"it is well-settled by decisional law in this and other ci rcuits that a stipulation remains in effect unless the trial co urt finds that such vitality would result in `manifest injust ice.' " Id. at 690 (citations omitted). The court also stressed th at district courts are given broad discretion to determine when there would be such injustice. See id. at 691. To determi ne whether there was manifest injustice in this case, the court examined the prejudice issue from the perspectives of the Borough, Waldorf, and the court.

1. Prejudice to the Borough

In determining whether the Borough would be prejudi ced by binding it to its stipulation of liability, the court confronted the Borough's argument that "recently-re viewed evidence could negate the Borough's liability to Wa ldorf " on three different bases; thus, according to the Borou gh binding it to its stipulation would result in manif est injustice. Id. at 692-93.

21The first evidence concerned Waldorf 's contention that

the traffic light at the intersection of the accide nt was illegal when the Borough constructed it because it did not have two light "faces" in each direction as required by the

Manual on Traffic Control Devices for Streets and H ighways (June 1961) ("the 1961 Manual"). The State of New J ersey adopted the 1961 Manual on January 2, 1962. Based o n "recently reviewed evidence," the Borough alleged t hat it could establish that the light was not illegal when it was constructed, because the 1961 Manual did not become binding on municipalities until September 1964, whi ch was after the Borough constructed the light. To support this claim, the Borough produced a letter dated Septembe r 15, 1964, from Gerald J. Driscoll, Chief of the Traffic Safety Service of the New Jersey Division of Motor Vehicle s, which stated that "[a]s of this date, the Director of Mot or Vehicles will process municipal applications for traffic sig nals . . . in accordance with the procedures described in the New Jersey Manual on Traffic Signal Application Procedu res for Local Officials [`the New Jersey Manual'] .. . ." I d. at 693. According to the Borough, this letter evidenced tha t the 1961 Manual was not in effect prior to September 19 64. The district court rejected this interpretation bec ause the New Jersey Manual cited in the letter differed from the 1961 Manual which was at issue in this case. Thus, because the manuals are distinct, the court held th at the Borough could not be prejudiced by the exclusion of this

evidence.

The Borough also claimed that it could produce evid ence which would refute two other theories Waldorf advan ced to establish its liability: that it failed to have a p reventive maintenance plan that would have prevented the acci dent and that it failed to equip its police cars with em ergency signs that would warn motorists of a malfunctioning traffic light. Under these theories, if the Borough had dec ided as an act of discretion not to adopt such a plan or pu rchase such signs, the Borough would be immune from liabil ity under N.J. Stat. Ann. S 59:2-3(c) (West 1992). Howe ver, if the Borough simply failed to consider adopting the plans or purchasing the signs, then it could not assert an i mmunity defense. See Waldorf, 896 F.2d at 730, 737. In supp ort of its motion to be relieved from the stipulation, the Borough

22argued that it could produce testimony from a forme r

Borough official that the Borough had considered bo th issues, but in the exercise of discretion, decided not to implement a preventive maintenance plan or purchase emergency warning signs. The court, however, noted that the Borough did not provide an affidavit of this un named official giving even "the barest outline of what th at testimony might be" nor did the Borough explain why it did not offer this testimony at the original trial whic h included liability issues. Waldorf, 878 F. Supp. at 693-94. Therefore, the court held that the rejection of this evidence would not harm the Borough. Because the court determined that none of the recently reviewed evidence would undermine t he Borough's stipulation of liability, the court held that binding the Borough to its stipulation would not re sult in a manifest injustice.

Furthermore, the court noted that the Borough had n ot demonstrated that it exercised due diligence in adv ancing this "recently reviewed evidence." The court compar ed the situation to the granting of a new trial under Fed. R. Civ. P. 60. Under that rule, a court may relieve a party from a final judgment or order based on "newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under Ru le 59(b)." Fed. R. Civ. P. 60(b). While the Borough wa s not moving for a new trial, the court held that the sit uations were similar: new trial counsel for the Borough rai sed the issue of "new" evidence which the Borough's previou s counsel did not discuss or bring forth. Furthermore , the Borough offered no explanation as to why this evide nce could not have been presented during the first tria l. Therefore, the court determined that because the Bo rough had failed to exercise due diligence with respect t o this evidence, it should not be permitted to withdraw it s stipulation. See Waldorf, 878 F. Supp. at 694.

2. Prejudice to Waldorf

In considering the impact of a withdrawal of the stipulation on Waldorf, the court held that Waldorf would suffer prejudice if the court granted the Borough's motion. The court noted that liability had not been an issu e in the

23case since the Borough made the stipulation in 1992 . See

id. at 694. If there was a trial on liability, ther e would be further delays in the case, because Waldorf would h ave to determine the availability of witnesses and marshal the evidence that pertained to an issue which the parti es had not contested for years. Thus, the court held that relieving the Borough from its stipulation would prejudice Wa ldorf.

See id.

3. Prejudice to the Judicial System

Finally, the court held that judicial resources wou ld be burdened unduly if the Borough was permitted to wit hdraw its stipulation. The court stated that granting the motion would compromise the integrity of the judicial proc ess, because the Borough then could take the case in a d ifferent direction merely because its new counsel might have tried the case differently than the previous counsel if h e had been present at the outset of the case. The court r ecognized that concerns of judicial integrity underlie the do ctrine of judicial estoppel; this doctrine precludes a party from asserting a position in a proceeding that is incons istent with a previously asserted position. See id. at 695 (citing Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3d C ir. 1992)). Based on these concerns of consistency and judicial integrity, the court held that allowing the Borough to chart a new path would prejudice the judicial system. 4

Based on the consideration of all of the possible p rejudice to the Borough, Waldorf, and the court, the distric t court held that binding the Borough to its stipulation wo uld not

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4. The court also held that permitting the Borough to withdraw the stipulation would violate the law of the case doctr ine and the mandate rule. Under the law of the case doctrine, once an i ssue has been decided, parties may not relitigate that issue in the same c ase. Here, the court held that the stipulation itself determined the iss ue of liability and removed that issue from judicial consideration. Fur thermore, the court determined that our mandate in vacating the second judgment remanded the case "for a new trial on damages." Id. Accordi ng to the district

court, permitting the parties to litigate an issue beyond damages would violate the mandate. Thus, these alternative bases provided support for binding the Borough to its stipulation.

24result in a manifest injustice. See id. at 696. Thu s, because

there was no reason to free the Borough from its stipulation, the court denied the Borough's motion to 771<!>withdraw its stipulation of liability to Wal dorf.

Subsequently, but still before the damages trial, t he Borough moved for relief from the stipulation on th e grounds that it had authorized the stipulation in v iolation of the New Jersey Open Public Meetings Act ("the Ac t"), N.J. Stat. Ann. SS10:4-6 et seq. (West 1993). The distri ct court denied this motion without opinion by order of Augu st 31,

1995.

B. Discussion

We review a district court's decision to bind a par ty to its stipulation under an abuse of discretion standard. See Wheeler v. John Deere Co., 935 F.2d 1090, 1098 (10t h Cir. 1991). In general, courts encourage parties to ente r into stipulations to promote judicial economy by narrowi ng the issues in dispute during litigation. See TI Fed. Cr edit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995). Allo wing parties easily to set aside or modify stipulations would defeat this purpose, wasting judicial resources and undermining future confidence in such agreements. T hus, "[i]t is a well-recognized rule of law that valid s tipulations entered into freely and fairly, and approved by the court, should not be lightly set aside." Kohn v. American Metal Climax, Inc., 458 F.2d 255, 307 (3d Cir. 1972), par tially overruled on other grounds en banc by Kershner v. Mazurkiewicz, 670 F.2d 440, 448 (3d Cir. 1982). How ever, in spite of the severe limitations placed on withdr awing stipulations, they are not absolute, and courts can grant parties relief from them. See, e.g., United States v. Montgomery, 620 F.2d 753, 757 (10th Cir. 1980).

In support of its argument that the district court should have relieved it from the stipulation, the Borough advances three main contentions: (1) because the stipulation was conclusory in nature rather than factual, it was no t binding on retrial; (2) manifest injustice would result if the court binds the Borough to its stipulation; and (3) the s tipulation is invalid, because its authorization by the Boroug h violated the New Jersey Open Public Meetings Act. See N.J. S tat.

25Ann. SS 10:4-6 et seq. (West 1993). We will address each

argument in turn.

1. Subsequent Proceedings

Generally, a stipulation entered into prior to a tr ial remains binding during subsequent proceedings betwe en the parties. See, e.g., Bail Bonds by Marvin Nelson , Inc. v. Commissioner, 820 F.2d 1543, 1547-48 (9th Cir. 1987 ) (binding parties to a stipulation on retrial); Unit ed States v. Boothman, 654 F.2d 700, 703 (10th Cir. 1981) (same) ; United States v. Marino, 617 F.2d 76, 82 (5th Cir. 1980) (same). However, a stipulation does not continue to bind the parties if they expressly limited it to thefirs t proceeding or if the parties intended the stipulation to apply only at the first trial. See Vattier v. Hinde, 32 U.S. 252, 266 (1833) (binding the parties upon remand of the case to an agreement consenting to the admission of certain te stimony made prior to the reversal of the initial verdict, because the consent was not limited expressly); Hunt v. Marchet ti, 824 F.2d 916, 917 (11th Cir. 1987) (upholding the distr ict court's withdrawal of a stipulation, because the di strict court determined that the parties intended to limit the stipulation to the first trial); United States v. B urkhead, 646 F.2d 1283, 1285 (8th Cir. 1981) (binding the partie s to a stipulation because it "was not by its terms limite d to use in the first trial").

In this case, the stipulation was unilateral as Wal dorf objected to it. Yet, we conclude that the cases inv olving agreements are persuasive here. After all, we see n o reason why the Borough's position should be stronger becau se the court at its request imposed the stipulation on Wal dorf than it would be if the parties had agreed on the stipulation.

The Borough did not limit its stipulation to the tr ial then at hand. Instead, counsel for the Borough made a cl ear and unequivocal statement conceding its liability to Wa ldorf: "The borough has, after much consideration and soul searching, has authorized me to advise the Court th at they will not contest liability in this matter . . . ." App. at 277. Thus, rather than limiting the stipulation to the e nsuing

26trial, the Borough made an open-ended concession of

liability. In an attempt to counter the lack of any limiting language contained in the stipulation, the Borough focuses on the nature of the stipulation itself. According to the Borough, because the stipulation was conclusory in nature rather than factual, it should apply only to the pr ior proceeding.

While conclusory stipulations are entitled to less deference than evidentiary ones, see Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1369 (5th Cir. 1983), the Borough's focus only on the nature of the stipulati on is misplaced; limiting language or the intent to limit the agreement is also an important factor in considerin g the effect of a stipulation. For instance, Hunt v. Marc hetti was a libel suit involving a newspaper that had publish ed an article stating that the Central Intelligence Agenc y would implicate E. Howard Hunt in the 1963 assassination of President John F. Kennedy. See 824 F.2d at 916-17. Prior to the first trial between the parties, Liberty Lob by, the publisher of the newspaper, made a conclusory stipu lation that it would not attempt to prove that Hunt was in Dallas, Texas, on the day of the assassination. See id. at 917. After the completion of the first trial, the Court of App eals for the Eleventh Circuit reversed the judgment and remanded the case for a new trial. See Hunt v. Liberty Lobby , 7 20 F.2d 631 (11th Cir. 1983). Prior to this new trial, the district court ruled that the stipulation applied only at th efirst trial; and therefore, it would not bind the parties during the retrial of the case. See Hunt, 824 F.2d at 917. The critical factor for the district court in making this determ ination was not the conclusory nature of the stipulation, b ut rather the intent of parties to limit the stipulation to t he first trial. See id. at 918. On further appeal, the court of app eals held

that the district court did not abuse its discretio n in making this determination. See id. at 918; see also Wheeler, 935 F.2d at 1098 (holding that a district court may release a party from a conclusory stipulation i f the stipulation is "limited expressly to a single trial ").

Thus, while a court might be more inclined to free a party from a conclusory stipulation than a factual one, t he parties' intention to limit or not limit a stipulat ion to only

27one proceeding is the overriding factor. In this ca se, based

on the explicit language of the Borough's stipulati on, the district court determined that the Borough did not intend the stipulation to apply only to the first trial. S ee Waldorf, 878 F. Supp. at 692. We will not disturb this findi ng, because we cannot say that the district court abuse d its discretion in making that determination, and even exercising plenary review we would reach the same

conclusion.

2. Manifest Injustice

We now turn to the Borough's second argument, that "[i]n exceptional circumstances," courts will free a party from a stipulation to prevent a manifest injustice. Kohn, 458 F.2d at 307; see also TI Fed. Credit Union , 72 F.3d at 928. In determining whether there will be manifest injustice unless a party is relieved from a stipulation, cour ts have focused on such factors as: (1) the effect of the s tipulation on the party seeking to withdraw the stipulation, s ee Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 12 06 (7th Cir. 1989) (discussing the effect of the stipu lation on the party seeking to withdraw the agreement); (2) t he effect on the other parties to the litigation, see Logan L umber Co. v. Commissioner, 365 F.2d 846, 855 (5th Cir. 1966) (holding that "suitable protective terms or conditions" shou ld be imposed "to prevent substantial and real harm to th e adversary" (citations omitted)); (3) the occurrence of intervening events since the parties agreed to the stipulation, see Bail Bonds by Marvin Nelson, Inc., 820 F.2d at 1548 (denying relief from a stipulation because" nothing subsequently occurred to change the effect of the o riginal stipulation"); and (4) whether evidence contrary to the stipulation is substantial, see Donovan v. Hamm's D rive Inn, 661 F.2d 316, 317 (5th Cir. 1981) (holding tha t a court could relieve a party from a stipulation upon a sho wing of substantial contrary evidence).

In arguing that manifest injustice will result if i t is not relieved from the stipulation, the Borough cites"re cently reviewed evidence" that allegedly undermines a conc lusion that the Borough is liable to Waldorf. Waldorf , 87 8 F. Supp. at 693. However, we cannot say that the district co urt

28abused its discretion in determining that this evid ence is

insufficient to establish that a manifest injustice would result if the stipulation continued to bind the Bor ough. The Borough does not claim that the evidence is the pro duct of an intervening event or that it previously could no t have discovered the evidence. Instead, as the district c ourt stated: "[The Borough] seeks to offer evidence that probably

has been available to it since the time of the firs t trial." Id. at 694. Thus, this case does not involve circumstan ces that have changed dramatically so as to warrant granting it relief from the stipulation.

Furthermore, the Borough's evidence itself affords no basis for granting it relief from the stipulation. The 1964 Driscoll letter relates only tangentially to this c ase, because it does not address directly the 1961 Manual contai ning the set of regulations at issue in this case. After con sidering the Borough's arguments that the district court erred i n its interpretation of the letter, we hold that the dist rict court did not abuse its discretion in determining that th e letter did not provide any proof that the 1961 Manual had not been adopted prior to the Borough's installing the traffic light at the site of Waldorf 's accident. The Borou gh's argument is premised only on a brief mention of the 1961 Manual in the later manual, the New Jersey Manual,

discussed in the 1964 letter. This mention does not undermine Waldorf 's premise that New Jersey adopte d the 1961 Manual almost three years prior to the 1964 le tter.

Additionally, the Borough did not present any evide nce or affidavits to the court to support its motion with regard to the other challenges to its liability. Based on thi s lack of relevant evidence, the district court did not abuse its discretion in rejecting those arguments as a basis to overturn the stipulation. As the party seeking to f ree itself from the stipulation, the Borough had the obligatio n to provide the district court with competent evidence of the manifest injustice to it from binding it to the sti pulation.

When the Borough made the stipulation prior to the second trial, it had a full understanding of the le gal rights it was relinquishing, and had clear knowledge of th e consequences of its stipulation. In light of these circumstances, we cannot say that the district cour t

29abused its discretion in determining that the evide nce the

Borough cited did not support a finding of manifest injustice.

We also note that on this appeal the Borough seeks to free itself only from a portion of the stipulation. The Borough wishes to maintain the division of the tria l into damage and liability phases with separate juries. M oreover, of course, it seeks to uphold the damages verdict t hat is the subject of this appeal. It undoubtedly believes, as would any reasonable person, that the verdict was favorab le to it.

Accordingly, of all of the conditions in the stipul ation, the Borough wants to eliminate only its admission of li ability to Waldorf. As the district court correctly noted,"the Borough made the stipulation as a tactical decision that th e amount of damages awarded to Waldorf, if any, would be of a lesser quantum if the jury awarding the damages was not aw are of the Borough's actions leading to its liability." Id. at 692. Having received what it conceived (probably correct ly) was the advantage of a separate trial on damages, the B orough now seeks to withdraw the damaging part of the stip ulation -- its admission of liability. However, a party may not be freed of the burdens of a stipulation while maintai ning its benefits. See Kohn, 458 F.2d at 307 ("[W]here a sti pulation has more than one material part, one such portion m ay not be deleted and the remainder of the stipulation enf orced."); Emerick & Duncan Co. v. Hascy, 146 F. 688, 695 (9th Cir. 1906); 73 Am. Jur. 2d Stipulations S 13 at 549 (197 4). If we freed the Borough from the concession of liability aspects of the stipulation, we would be manifestly unfair to W aldorf.

3. New Jersey Open Public Meetings Act

Finally, the Borough argues that it should not be b ound by the stipulation, because the Borough granted its attorney the right to make the stipulation in a pro ceeding held in violation of the New Jersey Open Public Mee tings Act. This Act provides that, with exceptions, "all meetings of public bodies shall be open to the public at all ti mes. Nothing in this act shall be construed to limit the discretion of the public body to permit, prohibit or regulate the act of participation of the public at any meeting." N.J. S tat. Ann.

30S 10:4-12(a) (West 1993). Among these discretionary

decisions specifically listed in the statute, the A ct provides that the public may be excluded from discussions re garding pending litigation or involving the attorney-client privilege. See N.J. Stat. Ann. S 10:4-12b(7) (West 1993). Howe ver, for the public to be excluded, the public body first mu st adopt a resolution at a public meeting "(a) [s]tating the general nature of the subject to be discussed; and (b) [s]t ating as precisely as possible, the time when and the circum stances

under which the discussion conducted in closed sess ion of the public body can be disclosed to the public." N. J. Stat. Ann. S 10:4-13 (West 1993). In this case, the Borou gh had discussions regarding the stipulation and ultimatel y voted to agree to the stipulation at a closed meeting. Se e app. at 294. However, the Borough never adopted a resolutio n as provided under section 10:4-13, nor has it subseque ntly ratified the agreement in any of its open meetings. Therefore, the Borough argues that it authorized th e stipulation in violation of the Act.

Because our determination on this issue involves construction of the Act, we exercise plenary review . See, e.g., Smith v. Magras, 124 F.3d 457, 460 (3d Cir. 1 997). We hold that the Borough has waived any challenge it m ight

have had under the Act.5 Section 10:4-15a of the Ac t (emphasis added) provides that:

Any action taken by a public body at a meeti ng which does not conform with the provisions of this act shall be voidable in a proceeding in lieu of prero gative writ in the Superior Court, which proceeding may be brought by any person within 45 days after the actio n sought to be voided has been made public . . . .

The New Jersey courts have enforced this 45-day tim e limit strictly. See, e.g., Township of Bernards v. State Dep't of

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5. Waldorf contends that this Act provides a cause of action only to citizens and not municipalities, because the Act wa s intended to provide citizens with full access to all public meetings of governmental bodies and to protect against secrecy in public affairs. S ee N.J. Stat. Ann. S 10:4-7 (West 1993). Because we hold that the Boro ugh has waived any possible challenge under the Act, we need not reach the question of whether the Borough can maintain a challenge under the Act.

31Community Affairs, 558 A.2d 1, 13 (N.J. Super. Ct. App.

Div. 1989) (denying a challenge as untimely when it was filed nine months after the release of the minutes of a closed meeting); Jersey City v. State Dep't of Envt l. Protection, 545 A.2d 774, 783 (N.J. Super. Ct. App. Div. 1988) (denying a challenge when the action was file d 60 days after the public release of the information). The 45-day time limit of section 10:4-15a is mandatory; becaus e the Borough did not challenge the approval of the stipu lation within this 45-day time limit, its complaint is bar red.6

Based on the foregoing reasons, we hold that the di strict court did not abuse its discretion in binding the B orough to its prior stipulation. Indeed, we think that the Bo rough advances the Open Public Meeting Act argument with ill grace. Does the Borough believe that Waldorf and hi s counsel should have investigated to make sure that the Borough followed proper procedures when it tendered its stipulation?

Moreover, the Borough's position now is fundamental ly different from the position it took before the dist rict court. The Borough initially sought relief from the stipul ation prior to the third trial. If it had been successful then, the case would have been tried on all issues, and it would h ave lost the advantage of the stipulation. However, before t his court, the Borough asks us to affirm the damages judgment and only void the stipulation as it relates to the liab ility trial. Thus, having received the benefit from its allegedl y illegal conduct, the Borough only seeks to avoid the disadv antages resulting from that same conduct.

We must say that we are disturbed by the Borough's argument for we do not subscribe to the theory that in litigation anything goes. The Borough remains bound to its

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6. Even if we held that the 45-day limit could be r elaxed in some circumstances, we would not relax it here. In this regard, we point out that the Borough was not in the position of an unkn owing outsider unaware that an action had been taken. Moreover, it waited for years before it ever invoked the Act. In Jersey City , th e court indicated that with respect to the 45-day time limitation "[c]onst ructive notice is the standard." 545 A.2d at 783. The Borough, of course, had actual notice of its allegedly illegal conduct at the time of the violation.

32admission of liability and the bifurcation of the t rial. Thus,

because the Borough's liability to Waldorf remainsf ixed, the Borough's contention that it should be relieved from the stipulation of liability does not affect our jurisd iction over the present appeal.7

IV. ADEQUACY OF THE JURY VERDICT

A. Scope of the Appellate Record

As a preliminary matter, Waldorf asks us to lodge a set of videotapes presented to the district court in th e appellate record. One videotape depicts a day in Waldorf 's l ife during his stay at the Kessler Institute in 1983, and the second videotape depicts Waldorf undergoing one of his exe rcise regimens. Counsel for Waldorf showed these videotap es to the jury during trial, and he contends that they ar e relevant to our determination regarding the adequacy of the jury's verdict. We will grant Waldorf 's request and inclu de these videotapes in the appellate record.

The Federal Rules of Appellate Procedure provide th at the record on appeal should consist of: "The original p apers and exhibits filed in the district court, the trans cript of proceedings, if any, and a certified copy of the do cket entries prepared by the clerk of the district court . . . ." Fed. R. App. P. 10(a). This definition not only includes items admitted into evidence, but also includes items pre sented

to the district court and not admitted into evidenc e. See United States v. Burke, 781 F.2d 1234, 1246 (7th Ci r. 1986). The basic purpose behind the rule is to prev ent parties from supplementing the record on appeal wit h items never presented to the district court. See 16A Char les Alan Wright et al., Federal Practice and Procedure S 39 56.1 (2d ed. 1996).

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7. Of course, there are other problems with the Bor ough's position, such as judicial estoppel. Moreover, the Borough might h ave obtained a result at the second trial which it found satisfactory and it therefore never may have sought to avoid the stipulation. We also point out that if we had required the vacation of the stipulation, we might have ordered a new trial on damages.

33Waldorf 's videotapes should be included in the app ellate

record, because he presented them to the district c ourt andthe jury saw them. See United States v. SanchezValderuten, 11 F.3d 985, 987 (10th Cir. 1993) (hold ing that a videotape introduced into evidence was part of re cord on appeal); Graham v. Hoke, 946 F.2d 982, 997 (2d Cir. 1991) (holding that a videotape shown to the jury and par t of the district court record properly was considered to be part of the appellate record). Furthermore, these videotape s are especially relevant to the issues we are deciding, because they bear upon the sufficiency of the evidence supp orting the verdict, which Waldorf believes is inadequate. See LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir. 19 95), opinion supplemented by, 68 F.3d 156 (7th Cir. 1995 ). Therefore, we include these videotapes as part of t he record of this appeal.

B. Pain and Suffering

Waldorf challenges the jury award of $2,500,000 for his pain and suffering as inadequate and against the we ight of the evidence. In its opinion of February 26, 1996, the district court determined that the jury's award was adequate on its face, and thus Waldorf was not enti tled to a new trial. See Waldorf, 916 F. Supp. at 426-29. T he court found "no evidence that the jury was swayed by any passion or prejudice that might have made it disreg ard the weight of the evidence." Id, at 426. The court also recognized that the jury had an adequate opportunit y to consider the size of the award through the testimon y of Waldorf and his doctors, the jurors' observation of Waldorf, and the arguments of his counsel.

The court then compared Waldorf 's pain and sufferi ng verdict to verdicts in similar cases to gauge furth er its adequacy. The court first distinguished three cases Waldorf cited involving jury verdicts of over $10,000,000 f or allegedly similar injuries: Fleck v. KDI Sylvan Poo ls, Inc., 1991 WL 261659 (E.D. Pa. Dec. 6, 1991), aff 'd in p art, rev'd in part, 981 F.2d 107 (3d Cir. 1992) (award o f $10,000,000); Harrigan v. Ford Motor Co., 406 N.W.2 d 917 (Mich. Ct. App. 1987) (award of $12,000,000); Fires tone v. Crown-Center Redevelopment Corp., 693 S.W.2d 99 (Mo

.

341985) (award of $15,000,000). The court then discus sed

numerous similar cases with verdicts ranging from $1,000,000 to $3,510,000 for pain and suffering dam ages. See Waldorf, 916 F. Supp. at 427-29. Because the aw ard to Waldorf was well within this range, the court deter mined that the jury award was not inadequate on its face, contrary to the evidence, or so low that it shocked the conscience of the court. Thus, the court denied Wal dorf 's motion for a new trial based on the asserted inadeq uacy of the pain and suffering damages.

We review a district court's grant or denial of a m otion for a new trial for an abuse of discretion. See Cooper Distrib. Co. v. Amana Refrigerator, Inc., 63 F.3d 262, 277 ( 3d Cir. 1995). We will reverse a denial of a new trial only when "the verdict is contrary to the great weight of the evid ence, thus making a new trial necessary to prevent a miscarria ge of justice." Id.; see also Motter v. Everest & Jenning s, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989) ("For the court to d isturb a jury verdict, `the damages assessed by the jury mus t be so

unreasonable as to offend the conscience of the Cou rt.' " (citations omitted)).

Waldorf was 24 years old at the time of his acciden t with a statistical life expectancy (aside from the effec ts of his injuries) of 52.67 years. However, because of his m edical problems, his life expectancy is ten percent less t han that of an average person. The jury heard much testimony regarding the results of the devastating accident o n Waldorf: the 404 days in several hospitals and inst itutions;

the halo brace screwed into his skull for five mont hs; the extensive paralysis; the long and difficult rehabil itation; his constant pain; the required 24-hour attendant care for the rest of his life; and the medical problems from whi ch he will

suffer for the rest of his life such as muscle atro phy, neurogenic bladder, urinary tract infections, neuro genic bowel, sexual dysfunction, and muscle spasticity.

Nevertheless, in challenging the verdict for pain a nd suffering, Waldorf does not cite to any specific in dication that the jury disregarded the evidence. Instead, he relies on the size of the award as evidence of jury misconduc t. However, juries are afforded broad discretion and g reat leeway in fixing fair and reasonable compensation t o an

35injured party; thus, Waldorf bears a heavy burden t o

demonstrate that the jury's award cannot stand. In attempting to meet this burden, Waldorf relies on a comparison of the verdict here with those in other cases. Although each case involves its own set of facts an d circumstances, a review of awards in similar cases serves as a helpful guide in determining the reasonablenes s of a particular award. See Motter, 883 F.2d at 1230.

Waldorf primarily relies on two cases to demonstrat e the inadequacy of his award: Harrigan, 406 N.W.2d at 91 7 (award of $12,000,000); and Firestone, 693 S.W.2d a t 99 (award of $15,000,000). In Firestone, the Missouri Supreme Court upheld a $15,000,000 verdict to a 34-year old quadriplegic, Sally Firestone, as fair and reasonab le. However, this award included a recovery for medical expenses and lost earnings, as well as for pain and suffering. See 693 S.W.2d at 109. In fact, testimon y showed that the medical expenses and lost earnings totaled $7,076,771. See id. Thus, the verdict in Firestone is difficult to compare to the verdict for pain and suffering he re. Furthermore, as the district court noted, Waldorf ' s injuries

do not seem as severe as those Firestone suffered. As a result of the collapse of a skywalk, she became a C -5 quadriplegic and she had no movement below her shou lder level, except for some use of her bicep muscles. Am ong other injuries and problems, she also lost 80 perce nt of her blood, which necessitated "massive blood transfusio ns." Id. at 108. Firestone also broke both of her legs, and doctors implanted an intercranial monitoring device in her skull. Furthermore, she underwent surgery to stabilize her neck; she had a tracheotomy; and she needed a respirator to breath. Following surgery, Firestone developed blad der infections, pneumonia, and gastric hemorrhage. See id. at 109. Both her neurosurgeon and doctor testified tha t her injuries were the worst they ever had seen. See id. Thus, because the verdict included factors beyond pain an d suffering and because Firestone's injuries seem to have been more severe than Waldorf 's, the verdict in Fi restone is not particularly instructive here.

Similarly, the facts underlying the verdict in Harr igan are different from those in this case. In Harrigan , th e Court of

36Appeals of Michigan upheld a jury verdict of $12,00 0,000

for a plaintiff who suffered from a C6-C7 quadriple gia injury. However, like the verdict in Firestone , th is verdict does not specify that it was simply for pain and su ffering; instead, this award seems to include medical expens es and other economic losses. Thus, the Harrigan verdict c annot reasonably be compared to the award in this case.

As further support for his contention that the pain and suffering verdict was inadequate, Waldorf cites a n umber of cases awarding between $6,000,000 and $14,000,000 f or pain and suffering by individuals who became quadri plegics as a result of an accident. See, e.g., Peterson v. Goodyear Tire & Rubber Co., No. 90L15224, 1995 WL 537039 (Il l. Cir. Ct. 1995) (awarding $6,000,000 for pain and sufferi ng to an individual who became a quadriplegic as a result of a tire failure); Roster v. Moulton, No. 88-10164, 1994 WL 873739 (Fla. Cir. Ct. 1994) (awarding $10,000,000 for pain and suffering to an individual who became a quadriplegi c when struck by a car); Martin v. Dellwood Foods Inc. , No.10090/90, 1991 WL 453940 (N.Y. Sup. Ct. 1991) (awarding $14,000,000 for pain and suffering to an individual who became a quadriplegic as a result of an accident).

Notwithstanding these cases, we cannot hold that th e district court abused its discretion in denying a n ew trial based on the size of the pain and suffering verdict . As the district court correctly noted, a significant numbe r of other cases have resulted in verdicts originally or as re mitted for substantially less for pain and suffering for simil ar injuries than the verdicts Waldorf cites. See, e.g., Heitzen rater v. United States, 930 F.2d 33 (10th Cir. 1991) (table) (reducing an award for pain and suffering to $1,000 ,000 for a psychiatric patient who fell seven stories and be came a quadriplegic); Moore v. Subaru of Am., 891 F.2d 144 5 (10th Cir. 1989) (awarding $1,500,000 for pain and suffer ing and medical expenses to an individual rendered a quadri plegic as a result of an automobile accident); Denham v. U nited States, 834 F.2d 518 (5th Cir. 1987) (upholding as adequate an award of $500,000 for pain and sufferin g of an individual with quadriplegia as a result of a divin g accident); Siverson v. United States, 710 F.2d 557 (9th Cir.

371983) (upholding an award of $1,000,000 for pain an d

suffering for a man who became a C6-C7 quadriplegic ); Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 198 0) (upholding an award of $2,064,863 for expenses and for pain and suffering for a man who became a quadriple gic in an automobile accident); see also Waldorf, 916 F. S upp. at 428-29 (listing further examples of similar verdict s). Thus, as these cases demonstrate, individuals rendered quadriplegics as a result of accidents have receive d significantly lower awards for pain and suffering t han the

award to Waldorf in this case.

We also note that a very recent New Jersey state co urt case lends support to the district court's refusal to order a new trial on damages. In Green v. General Motors Co rp., No. A-5756-95T2, 1998 WL 116851, ___ A.2d ___ (N.J. Sup er. Ct. App. Div. Mar. 18, 1998), the court heard an ap peal from a case which in some respects is remarkably si milar to this case. In Green, a 24-year old man was rende red a quadriplegic in an accident on June 9, 1986. Thus, in Green, the accident was less than four years after the accident here and the injured party was the same ag e as Waldorf at the time of the injury. In Green, the ju ry awarded $4,000,000 for pain and suffering. While th e parties in Green raised numerous issues in the appe al and cross appeal, they did not challenge the pain and s uffering award. Of course, the Green verdict was considerabl y higher than that in this case. Yet the case demonst rates that even in these times in which we have grown accustomed to extremely high verdicts, a jury in Ne w Jersey in a similar case has returned a verdict for pain a nd suffering for what some persons might think was a m odest

amount.

In sum, the wide range of damages awarded in the ca ses brought to our attention demonstrates the inexact n ature of juries' assessments of damages and the difficulty i n using other cases as a comparison to test the adequacy of a particular award. Although Waldorf suffered catastr ophic injuries as a result of the accident, the award of $2,500,000 for pain and suffering does not seem shockingly inadequate. The determination of an appropriate awa rd for pain and suffering is inherently subjective, and no thing in

38the record indicates that the jury failed to evalua te the

evidence in a fair and reasonable manner. Even thou gh the award was for less than what Waldorf sought or what other plaintiffs may have received in other somewhat comp arable cases, and indeed may have been less than we would have awarded if we made a de novo damages determination in this case, the award was within permissible limits for pain and suffering even for the devastating injuries whi ch Waldorf suffered. In truth, it is very difficult to equate money with an injury of the character involved here . Thus,

we hold that the district court did not abuse its d iscretion in denying the request for a new trial based on the amount of the verdict for pain and suffering.

C. Award for Past and Future Economic Loss

Waldorf also challenges the jury's award of $195,00 0 for past lost earnings and $391,500 for future lost ear nings as inadequate on four principal grounds: (1) insuffici ent evidence existed for the jury to determine that Wal dorf failed to mitigate his damages; (2) the district co urt improperly qualified a witness as an expert; (3) co unsel for the Borough made a number of improper references regarding a witness during the course of the trial; and (4) counsel for the Borough made an improper statement during his closing argument that misled the jury. W e will consider each of these arguments in turn.

1. Mitigation of Damages

At trial, Conrad Berenson, an economist, testified on behalf of Waldorf that he would have earned $316,55 2 from the date of the accident to the time of trial, base d on the assumption that he would have left college as of th e time of

the accident.8 Dr. Berenson concluded that Waldorf 's

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8. Dr. Berenson based his earnings loss analysis on the earning potential of an individual with one to three years of college education. He used the analysis not only to calculate past earnings loss, but also to determine future earnings loss. Counsel for Waldorf pursued t his strategy as a result of an earlier ruling from this court. See Wa ldorf, 896 F.2d at 742- 43 (holding that it was an error for Waldorf to hav e presented testimony about future earnings based on attorney's salary).

39future earnings would have ranged between $1,221,00 0

and $1,339,000, based on an assumption that he woul d have worked until age 65. Therefore, the total earn ings loss was between $1,537,000 and $1,655,000. The Borough did not introduce its own economic expert to counter th is

calculation.

The jury awarded Waldorf a total of $586,500 for pa st and future earnings loss, most likely on the basis that Waldorf failed to mitigate his damages.9 Waldorf a rgues, however, that the jury did not have sufficient evid ence to determine that Waldorf failed to mitigate his damag es.

At trial, the parties disputed whether Waldorf coul d work in spite of his injuries. A number of witnesses tes tified that only between 15 to 30 percent of all quadriplegics are able to return to work. See app. at 170-71, 238, 329. Ho wever, as the district court correctly noted, the jury hea rd testimony from some of these witnesses that Waldorf was capable of working. See Waldorf, 916 F. Supp. at 42 9. For instance, Waldorf 's own expert, Dr. Ragnarsson, wh o was a treating physician, agreed that Waldorf could ret urn to work. On direct examination, Dr. Ragnarsson acknowl edged that "technically [Waldorf] could hold a sedentary job of some sort." App. at 169. On cross-examination, he f urther testified: "I believe that he [Waldorf] can work." Id. at 172.

Additionally, Waldorf 's vocational expert, Dr. Dav id B. Stein, provided testimony that supported a conclusi on that Waldorf had not mitigated damages. Dr. Stein admini stered aptitude and achievement tests to Waldorf, and base d on the results, determined that he was a bright man wi th the ability to learn and with an intelligence in the hi gh average range. See id. at 328. On cross-examination, Dr. St ein testified that he knew of no reason why Waldorf cou ld not take college courses. See id. at 330. Based on this evidence, the district court held that the award for past and future lost earnings was not inadequate, even though it wa s well below Dr. Berenson's figures. See id.

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9. Of course, it is possible that the jury simply d id not accept Dr. Berenson's testimony as to Waldorf 's anticipated l oss of earnings. We nevertheless focus on the mitigation point.

40We hold that the district court did not abuse its

discretion in denying Waldorf 's motion for a new t rial based on the asserted inadequacy of the verdict for past and future lost earnings. Although there was testimony that most quadriplegics cannot return to work after thei r injuries, the most relevant evidence here was the t estimony regarding Waldorf 's ability to return to work. Bas ed on the specific testimony regarding Waldorf 's own abiliti es and the jurors' opportunity to assess the credibility of th e witnesses, the jury reasonably could have determine d that Waldorf failed to mitigate his damages by not worki ng.10

The jury awarded Waldorf $121,552 less in past earn ings and $829,500 less in future earnings than the lowes t figures provided by Dr. Berenson. But the jury hear d evidence that Waldorf potentially could earn anywhe re from $15,000 to $100,000 a year even with his injuries. See app. at 220-31. Thus, even if the jury accepted Dr. Bere nson's basic figures, it could have reduced the award pred icated on Waldorf 's failure to mitigate damages. Accordin gly, the verdict it returned was justified by his ability to generate earnings as demonstrated at trial. The future earni ngs award is $29,625 a year less than Dr. Berenson's calculation; and the past earnings award averages $ 9,350 a year less.11 Yet these reductions are not grossly out of line when the evidence regarding the job opportunities a vailable to Waldorf is considered. Therefore, because the ju ry had sufficient evidence to consider the issue of mitiga tion and the ultimate award was not unreasonable, we hold th at the

district court did not abuse its discretion in dete rmining that the jury's award was adequate and in denying

Waldorf 's motion for a new trial.

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10. We are assuming without actually knowing that t he jury found that Waldorf failed to mitigate his damages by not worki ng.

11. Even making a reasonable assumption that Waldor f did not begin working until well after the accident, the reductio n by the jury based on a failure to mitigate his damages with regard to th e past earnings award

is not so unreasonable as to warrant a new trial. F or instance, if the same $29,625 yearly figure presumably used to reduc e the future lost earnings award is used to examine the past lost ear nings award, the jury reduced Waldorf 's award for a failure to mitigate only over approximately the past four years. Given the length of time since the accident, to require mitigation over such a short time period is not unreasonable.

41As we indicated above, Waldorf also sought an addit ur

from the district court. However, inasmuch as we co nclude that the court did not abuse its discretion in deny ing

Waldorf 's motion for a new trial based on the asse rted inadequacy of the verdict, the district court had n o reason to grant an additur. In the circumstances we do not

address the additur issue further.

2. Qualification of Dennis Rizzo

Waldorf also argues that he should receive a new tr ial because the district court improperly qualified Den nis Rizzo, who testified for the Borough at trial, as a n expert

witness on vocational rehabilitation. Under the Fed eral

Rules of Evidence:

If scientific, technical, or other specializ ed knowledge

will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness q ualified as an expert by knowledge, skill, experience, t raining, or education, may testify thereto in the form o f an opinion

or otherwise.

Fed. R. Evid. 702. Waldorf does not dispute that vo cational rehabilitation is a proper subject for expert testi mony; instead, he questions whether Rizzo was qualified t o testify as an expert in that area. For a court to qualify a witness to testify as an expert, Rule 702 requires the witn ess to have "specialized knowledge" regarding the area of testimony. The basis of this specialized knowledge" can be practical experience as well as academic training a nd

credentials." American Tech. Resources v. United St ates, 893 F.2d 651, 656 (3d Cir. 1990); Hammond v. Intern ational Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982) ("[ U]nder Rule 702, an individual need possess no special aca demic credentials to serve as an expert witness. . . .`[P ]ractical experience as well as academic training and credent ials may be the basis of qualification (as an expert wit ness).' " (citation omitted)). We have interpreted the specia lized knowledge requirement liberally, and have stated th at this policy of liberal admissibility of expert testimony "extends to the substantive as well as the formal qualification of experts." See, e.g., In re Paoli R.R. Yard PCB Liti g., 35 F.3d

42717, 741 (3d Cir. 1994). However, "at a minimum, a

proffered expert witness . . . must possess skill o r knowledge greater than the average layman . . . ." Aloe Coal Co. v. Clark Equip. Corp., 816 F.2d 110, 114 (3d Ci r. 1987).

Even though we apply Rule 702 liberally, we have no t pursued a policy of qualifying any proffered witnes s as an expert. For instance in Aloe Coal Co., we held that a district court abused its discretion in allowing a tractor s ales representative to testify as an expert regarding th e cause of a tractor fire. In making this determination we sta ted:

Drewnoski [the expert witness] was not an en gineer. He had no experience in designing construction machinery. He had no knowledge or experience in determining the cause of equipment fires. He had no training as a mechanic. He never operated co nstruction machinery in the course of business. He was a salesman, who at times prepared damage estim ates.

816 F.2d at 114 (citations omitted). Therefore, we held that the witness was not sufficiently qualified to give an expert opinion on the issue of causation.

Numerous district court opinions within this circui t provide examples of witnesses disallowed from provi ding expert testimony. For example, in Diaz v. Johnson M atthey, Inc., 893 F. Supp. 358, 373 (D.N.J. 1995), the plai ntiff alleged that working conditions at his former job c aused him to develop platinum salt allergies. In support of this allegation, the plaintiff produced a doctor who sou ght to testify about his condition and the possible long-t erm health effects of the condition. The district court held that the doctor was not qualified to testify that the pl aintiff had a platinum salt allergy because his experience with such patients was limited and he had only a limited fami liarity with the literature regarding the illness. See id.; see also Higgenbotham v. Volkswagenwerk Anktiengesellschaft , 551 F. Supp. 977, 982-83 (M.D. Pa. 1982) (holding that an investigating officer was not qualified to offer an expert opinion regarding the movement of a person inside a vehicle during an accident because the officer only had minimal training in accident reconstruction, physic s, and the movement of bodies), aff 'd, 720 F.2d 662 (3d C ir. 1983)

43(table); Globe Indem. Co. v. Highland Tank & Manuf. Co.,

345 F. Supp. 1290, 1291-92 (E.D. Pa. 1972) (holding that neither an electrical engineer nor an industrial hy gienist was qualified to testify as an expert regarding the design of a molasses storage tank where neither had any exper ience or knowledge in the field of storage tank design), aff 'd, 478 F.2d 1398 (3d Cir. 1973) (table).

However, in considering the qualification of witnes ses as experts, we stress that ordinarily an otherwise qua lified witness is not disqualified merely because of a lac k of academic training. For instance, in Hammond the dis trict court determined that a witness could testify as an expert regarding a rollover protective structure on a trac tor even though he did not have a formal degree in engineeri ng or physics. See 691 F.2d at 653. In spite of his lack of formal training, the witness had experience in the field, because he worked selling automotive and mechanical equipment, including agricultural equipment, and he taught aut omobile repair and maintenance at a high school. We upheld his qualification as an expert, stressing that his prac tical experience was sufficient. See id.

Furthermore, in Knight v. Otis Elevator Co., 596 F. 2d 84, 87-88 (3d Cir. 1979), we held that an engineer who had designed safety equipment could testify as an exper t regarding whether unguarded elevator control button s were a design defect, even though he had no experience w ith such devices on elevators. We held that the expert' s generalized knowledge about machine safety sufficie ntly qualified him as an expert. See also Davis v. Unite d States, 865 F.2d 164, 168 (8th Cir. 1988) (permitting the t estimony of a public health investigator regarding the proba bilities of transmitting gonorrhea despite his lack of medical training, because the expert had practical experience regardi ng such cases); Circle J Dairy, Inc. v. A.O. Smith Harvesto re Prod., Inc., 790 F.2d 694, 700 (8th Cir. 1986) (holding th at a witness could testify as an expert regarding the fe ed-related health problems of dairy cattle despite a lack of a cademic qualifications because of his practical experience in the

area).

The district court qualified Rizzo to testify as a vocational expert in spite of his lack of any formal training in that

44field, and notwithstanding that his educational tra ining

culminated in a master's degree in sociology and so cial organization from Rutgers University in 1973. But h is experience was sufficient to qualify him as an expe rt. After obtaining his degree, Rizzo began working for the S tate of New Jersey in the Division of Mental Retardation as a social worker. He worked as a case manager assisting menta lly retarded individuals in "meeting their life needs" and assisting families in meeting the life needs of the ir mentally retarded children. See app. at 207-08. From 1980 to 1983, Rizzo operated a non-profit corporation whose purpo se "was to expand the availability of services in the commu nity to individuals with disabilit[ies]." Id. at 208. From 1983 to 1986, Rizzo was employed in a marketing job selling consumer products on college campuses. In 1986, Riz zo was unemployed for nine months, but then began to w ork as a social worker at the North Princeton Developme ntal Center. He soon became a supervisor of an 80 to 84 bed

care unit which housed individuals "who had severe mobility impairment, severe psychiatric involvement ,[and] a variety of different disabilities . . . ." Id. at 210. He worked in this facility for four years.

In 1990, Rizzo began working for the State of New J ersey in the Developmental Disabilities Council as a cont ract manager. In 1991, he became involved in the Council 's administration of a million dollar loan pool to ass ist disabled New Jersey residents in starting their own businesses. See id. at 210-11. In that capacity, Ri zzo evaluated the capacity of disabled individuals to a ccomplish specific employment opportunities. Rizzo also testi fied that, through the course of his employment, he became fam iliar with studies on the work that quadriplegics can per form. See id. at 219. Furthermore in his job experience, Rizzo utilized the New Jersey Department of Labor Statist ics and the New Jersey Job Listing Book, which indicate employment opportunities available in various job categories in New Jersey. See id. at 229, 343. Thus , based on his experience and his familiarity with the lite rature in the field, the district court held that Rizzo was q ualified properly as a vocational expert. The court said tha t"[w]hile his formal credentials may be a little thin, he cer tainly had sufficient substantive qualifications to be conside red an

45expert under the liberal standard of Rule 702." Wal dorf,

916 F. Supp. at 430.

Waldorf has a heavy burden in challenging this deci sion because, absent an abuse of discretion, we will not substitute our own judgment for that of the trial c ourt regarding the admission or exclusion of expert test imony. See Aloe Coal Co., 816 F.2d at 114. Of course, an a buse of discretion means much more than that the appellate court disagrees with the trial court. Rather, a trial cou rt's determination whether to admit or exclude expert te stimony will be upheld "unless manifestly erroneous." Id.

We hold that the district court did not abuse its discretion in qualifying Rizzo as an expert witness . Even though Rizzo did not possess formal academic traini ng in the area of vocational rehabilitation, he did have experience in the field through his employment at the Developm ental Disabilities Council in attempting to provide jobs for disabled individuals. During this time, Rizzo also became

familiar with the relevant literature in the field. Even if his qualifications are, as the district court described , "a little thin," he has substantially more knowledge than an average lay person regarding employment opportunities for d isabled individuals. In the circumstances, we cannot say th at the district court abused its discretion in determining that Rizzo possessed the minimum qualifications necessar y to testify as an expert.

Whatever doubts the district court might have had regarding Rizzo's qualifications, it is important t o note that "[o]nce the trial court has determined that a witne ss is competent to testify as an expert, challenges to th e expert's skill or knowledge go to the weight to be accorded the expert testimony rather than to its admissibility." Fox v. Dannenberg, 906 F.2d 1253, 1256 (8th Cir. 1990); se e also Knight, 596 F.2d at 88. The jury heard all of the t estimony regarding Rizzo's qualifications, and thus the juro rs could evaluate the weight to give to Rizzo's expert opini ons. Therefore, because the district court did not abuse its discretion in qualifying Rizzo as an expert witness , we will uphold its denial of Waldorf 's motion for a new tr ial.12 In

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12. Waldorf also contends that Rizzo had no basis t o testify about rehabilitation technology available in Florida wher e Waldorf now resides.

46short, this situation is one within the discretion of the

court. Thus, while we do not doubt that we would no t have disturbed the court's ruling if it had excluded Riz zo as an expert witness, we cannot disturb the court's rulin g qualifying him. As is so often the case in discreti onary rulings involving qualification of witnesses or adm ission of evidence, we will affirm a reasoned decision by a d istrict court regardless of how we might have decided the i ssue if we had been making the original determination.

3. Remarks of Defense Counsel in Summation

As another basis for a new trial, Waldorf asserts t hat the defense counsel made an improper argument during hi s closing remarks. During his closing argument, couns el for the Borough stated that Waldorf would be able to ob tain free job training for the rest of his life, a servi ce that counsel termed "occupational therapy." See app. at 243. However, earlier in the trial, Dr. Ragnarsson had s tated that this term did not pertain to job training, but rather referred to training in activities of daily living. See Waldorf, 916 F. Supp. at 432. Waldorf alleges that the Borou gh's misuse of the term "occupational therapy" led the j ury to award less in economic damages than it otherwise wo uld have awarded. In addressing this argument, the dist rict court noted that even though the use of the term by the Borough was "sloppy and incorrect," it did not undu ly prejudice the jury. Id.

"Our standard of review with respect to the award o f a new trial for prejudicial conduct by counsel is def erential.

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The district court determined that Rizzo properly b ased this testimony on a letter he received from a vocational expert in Fl orida. See Waldorf, 916 F. Supp. at 431. Under the standards for expert tes timony, Rizzo was not required to have personal knowledge regarding e very job opportunity available. "[A]n expert opinion may be based on any type of evidence commonly used by experts in the field." Rogers v. R aymark Indus., Inc., 922 F.2d 1426, 1429-30 (9th Cir. 1991); see also F ed. R. Evid. 703. Because Rizzo based his testimony on a reliable sou rce in the field of vocational rehabilitation, the district court did n ot err in permitting

Rizzo to testify regarding rehabilitation technology in F lorida.

47. . . Because the trial judge was present and able to judge

the impact of counsel's remarks, we defer to his as sessment of the prejudicial impact." Fineman v. Armstrong Wo rld Indus., Inc., 980 F.2d 171, 207 (3d Cir. 1992). We hold that

the district court did not abuse its discretion in denying a new trial based on the Borough's counsel's remarks. Courts generally have given attorneys great latitude in th eir arguments; we have held that "not all improper rema rks will engender sufficient prejudice to mandate the g ranting of a new trial. Our test is whether the improper as sertions have made it `reasonably probable' that the verdict was influenced by prejudicial statements." Id. at 208 (citations omitted). Although counsel for the Borough admitted ly misused the term "occupational therapy," the idea b ehind his argument did have a basis in the record.

The Borough introduced testimony that Florida, wher e Waldorf now lives, and New Jersey, both offer rehab ilitation service systems that assist disabled individuals to locate jobs through the administration of aptitude tests, the provision of job locators, and the adaptations of w orkplace environments. All of these services are government funded. See app. at 344-45. Therefore, the Borough's counse l had a basis in the record to argue that Waldorf had fre e services available to assist him in locating a job, even tho ugh the specific term the Borough used to describe such ser vices

was incorrect. We hold that the district court did not abuse its discretion in denying a new trial based on this minor misstatement by the Borough's counsel, because it i s not "reasonably probable" that this misstatement influe nced the verdict. Indeed, the comment seems inconsequential in the

overall context of this case.

4. Improper Use of the Testimony of James Pascuiti

As a further basis for a new trial, Waldorf alleges that the Borough misused the testimony of its vocational exp ert, James Pascuiti, who is also a quadriplegic, by impr operly trying to compare Pascuiti to Waldorf. Waldorf comp lains of two specific instances: (1) during Pascuiti's testi mony, counsel for the Borough questioned him about his we dding ring; and (2) during the Borough's closing argument

, counsel for the Borough improperly compared Pascuit i to

48Waldorf. These allegations also involve potentially improper

behavior by counsel; therefore we review the distri ct court's decision denying a new trial by reason of them unde r an abuse of discretion standard. See Fineman, 980 F.2d at

207.

a. Redirect Examination of Pascuiti

At the conclusion of his redirect examination of Pa scuiti, counsel for the Borough posed the following questio n: "Just one last question: What is that ring you are wearin g on your left hand?" App. at 241. Before Waldorf 's cou nsel could object, Pascuiti responded: "[A] wedding band ." Id. After Waldorf 's counsel objected, the district cou rt "promptly issued a curative instruction. It said:`I ask the jury to disregard whether he wears a wedding band i s immaterial to the case . . . I specifically instruc t you whether this witness wears a wedding band is wholly irrelevant to the issues in this case.' " Waldorf, 916 F. Supp. at 431. Based on this immediate instruction, the district court held that the remark did not prejudi ce Waldorf, and did not confuse the jury. See id.

We hold that the district court did not abuse its discretion in holding that this remark did not infl uence the jury unduly. The district court immediately issued an instruction to the jury to disregard the question a nd the answer. The court also repeated this instruction to the jury during its charge, and told it not to use the refer ence in any way to decide the case. See app. at 348. Thus, alth ough this irrelevant exchange occurred between counsel f or the Borough and Pascuiti, the district court did not ab use its discretion in holding that its curative instruction s were sufficient to prevent any prejudice to Waldorf. Aft er all, there is no reason to believe that the jury did not follow the instructions. See United States v. Gilsenan, 949 F. 2d 90, 96 (3d Cir. 1991).

b. Closing Argument by the Borough

Waldorf also maintains that the Borough's counsel improperly compared Waldorf and Pascuiti in his

49closing argument by repeatedly describing Pascuiti' s

accomplishments after he became a quadriplegic. Whi le playing football in high school in 1963, Pascuiti b ecame a C6-C7 quadriplegic, the same injury that Waldorf su ffered. In 1964, Pascuiti enrolled in Seton Hall University where he received a bachelor's degree in 1968. He received a master's degree from the same school in 1971, and later beca me certified as a rehabilitation counselor. See app. at 244-46. During his closing argument, counsel for the Boroug h

referred to these facts in the context of Waldorf ' s failure to seek any kind of employment or schooling following his accident. However, because Waldorf did not object t o these remarks when they were made, the district court hel d that Waldorf had waived any objection to them. Furthermo re, the court stated that even if Waldorf had objected, it would have permitted the statements, because "[t]he Borou gh was simply restating information that had already been presented to the jury." Waldorf, 916 F. Supp. at 43 1.

As the district court correctly noted, it is clear that a party who fails to object to errors at trial waives the right to complain about them following trial. See Murray v. Fairbanks Morse, 610 F.2d 149, 152 (3d Cir. 1979) ( holding that "[c]ounsel's failure to object precludes him f rom seeking a new trial on the grounds of the improprie ty of opposing counsel's closing remarks."). Waldorf fail ed to object at trial; therefore, we hold that the distri ct court did not abuse its discretion in denying Waldorf 's moti on for a

new trial.13

V. COLLATERAL SOURCE SET-OFF

In its cross appeal, the Borough argues that the di strict court misapplied New Jersey law and improperly limi ted the

amount of a collateral source set-off to which it w as entitled. Under the New Jersey Tort Claims Act:

If a claimant receives or is entitled to rec eive benefits

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13. The Borough contends that the district court im properly excluded certain evidence but it raises this issue only in t he event that we otherwise grant a new trial as it asks us to uphold the damages verdict. Thus, we do not consider this point further.

50for the injuries from . . . any other source . . . such

benefits shall be disclosed to the court and the amount thereof which duplicates any benefit contain ed in the award shall be deducted from any award again st a public entity . . . .

N.J. Stat. Ann. S 59:9-2(e) (West 1992). As part of the Tort Claims Act, this section applies to cases involving public entities in New Jersey. Although the Tort Claims Ac t was

intended to establish a structure to control the li ability of public entities, the purpose behind this particular section is "to prohibit the receipt of duplicate benefits by a claimant filing suit under the act." Section 59:9-2(e) cmt. Since his accident, Waldorf has received social security disa bility benefits. The Borough maintains that under section 59:9- 2(e) it not only should obtain a set-off for these amounts already received by Waldorf, but also should obtain a set-off for any social security disability payments that Wa ldorf will

receive in the future.

In an order dated October 10, 1996, the district co urt granted the Borough's motion seeking a set-off agai nst the jury's award in the amount of $80,559, which "repre sents the amount of social security disability benefits p aid to Plaintiff from the date of the accident to the pres ent date." App. at 36. However, the district court denied the Borough's motion for a set-off for future social se curity disability benefits that Waldorf might receive. The Borough

contends that this limitation on the set-off was im proper under section 59:9-2(e). Because the district court 's

decision rested on its construction of section 59:9 -2(e), our review of the decision is plenary. See, e.g., Smith , 124 F.3d

at 460-61.

In deciding questions of state law, we look to the decisions of courts of that state for guidance. See , e.g., Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 462-65 (3d Cir. 1996). Although New Jersey courts have acknowl edged that social security benefits are a potential colla teral source payment subject to set off under N.J. Stat. Ann.S 2 A:15-97 (West Supp. 1997), applicable in general in persona l injury and wrongful death actions, see, e.g., Thomas v. To ys `R Us, Inc., 660 A.2d 1236, 1244 (N.J. Super. Ct. App. Div . 1995), we are not aware of any court in New Jersey which h as

51addressed directly the issue of the set-off of futu re social

security disability benefits under section 59:9-2(e ) in a published opinion. Section 2A:15-97, like section 5 9:9-2(e), provides for collateral source set-off for any moni es or benefits that a plaintiff "receives or is entitled to receive . . . ." The purpose behind this section is the sam e as section 59:9-2(e): to eliminate double recoveries b y plaintiffs. See N.J. Assembly Insurance Comm. State ment, L. 1987, c. 326, S 1, N.J. Senate No. 2708 (Sept. 1 , 1987); Senate Judiciary Comm. Statement, L. 1987, c. 326S 1, N.J. Senate No. 2708 (Oct. 30, 1986); Sponsor State ment, L. 1987, c. 326, S 1, N.J. Senate No. 2708 (Oct. 27 , 1986). Because the collateral source provisions are so sim ilar and the purposes behind the two sections are the same, we can infer from New Jersey courts' interpretation of sec tion 2A:15-97 what the proper interpretation of section 59:9-2(e)

should be.

The leading case applying the collateral source set -off of future social security benefits under section 2A:15 -97 is Parker v. Esposito, 677 A.2d 1159 (N.J. Super. Ct. App. Div. 1996). In Parker, a pedestrian who was struck by a van received an award in court that included an amount for past and future lost income. The Appellate Division

considered whether the court should set off his fut ure social security disability payments as a collateral source under section 2A:15-97. The court held that this se ction required that the court deduct future benefits from the judgment, because the statute clearly requires the deduction of benefits that the plaintiff "is entitl ed to receive." Parker, 677 A.2d at 1162. Furthermore, su ch a deduction was warranted because "[t]he statute's pu rpose is to prevent double recovery, thereby giving some relief from the increasing costs of liability insurance." Id.

The court stressed, however, that a "plaintiff 's

entitlement to future benefits must be determined a nd fixed when judgment is entered on the verdict." Id. Thes e benefits are those to which a "plaintiff has an established, enforceable legal right when judgment is entered an d which are not subject to modification based on future unpredictable events or conditions. In other words, future collateral benefits are deductible only to the exte nt that

52`they can be determined with a reasonable degree of

certainty.' " Id. at 1162-63 (quoting Buchman v. Wa yne Trace Local Sch. Dist., 652 N.E.2d 952, 958 (Ohio 1 995)). Applying this rule, the Parker court recognized tha t "there was substantial evidence at trial that plaintiff ca n be gainfully employed, though not at the salary he ear ned prior to the injury." Id. at 1163. Thus, the court determined that the plaintiff 's social security payments were uncertain and not determinable at the time of judgment, becau se of such factors as "his [future] condition or[potentia l] employability." Id. Consequently, it did not allow the set-off

for them.

Applying this precedent here, we conclude that the district court did not err in determining that the Borough

was not entitled to a set-off for future social sec urity benefits that Waldorf might receive. Social securit y disability payments are available only to individua ls who, because of a disability, are not capable of working . See 42 U.S.C. S 423(a) (providing that certain individuals who are disabled are entitled to benefits); see also 42 U. S.C. S 423(d) (defining "disability" as impairments that "are of such severity that he is not only unable to do his previous work but cannot" do certain other work). Furthermor e, section 423(f) provides that a recipient of social security disability benefits may have those benefits termina ted if substantial evidence demonstrates that "[a]lthough the individual has not improved medically, he or she is nonetheless a beneficiary of advances in medical or vocational therapy . . . and [t]he individual is no w able to engage in substantial gainful activity" or if such evidence demonstrates that "[a]lthough the individual has no t improved medically, he or she has undergone vocatio nal therapy (related to the individual's ability to wor k), and [t]he individual is now able to engage in substanti al gainful activity . . . ." 42 U.S.C. S 423(f). Thus, the soc ial security statute clearly provides that disability benefits c an be terminated if a recipient does not remain under a d isability that prevents him from working.

The Borough presented the expert testimony of Rizzo and Pascuiti, both of whom testified that Waldorf is ca pable of obtaining and holding employment. In addition, Wald orf 's

53own experts agreed that Waldorf was capable of work ing. In

light of this testimony, as the court held in Parke r with respect to the plaintiff there, we hold that it is uncertain

whether Waldorf will continue to receive his disabi lity

benefits. Therefore we will affirm the district cou rt's determination that the Borough may receive a set-of f only in the amount of $80,559.14

VI. CONCLUSION

Having determined that we have jurisdiction over th e present appeal and cross appeal, we will affirm the orders of the district court and uphold the judgment in fa vor of Waldorf. In particular, the district court did not abuse its discretion in determining that the award was not unreasonably low. Furthermore, the district court d id not abuse its discretion in denying Waldorf 's motion f or a new trial based on the jury's consideration of mitigati on evidence, the qualification of Rizzo as an expert, or the conduct of opposing counsel. We also hold that the district court did not abuse its discretion in binding the B orough to the stipulation it entered into prior to the second trial, nor did the district court err in fixing the collateral source setoff that the Borough could receive.

Although the judgment in this case might not have m et Waldorf 's expectations, and, indeed, may have been less

than we would have awarded if we had fixed the dama ges de novo on the basis of the record, it will provide a small

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14. We also reject the Borough's argument that the appropriate date for determining when such benefits are fixed and determ inable should not

have been the date of the district court's order re garding this issue, but

rather should be fixed as of the date that this lit igation finally concludes, presumably when a final verdict is rendered in the liability trial. As we have stated in this opinion, the Borough does not h ave any remaining claims or defenses against Waldorf to advance in an y future liability trial, and the judgment against the Borough is fina l. The district court cannot and should not retain jurisdiction over Wald orf 's claim against the Borough merely to continue to deduct collateral source set-off benefits. The aspect of this litigation with respec t to the Borough's liability to Waldorf should be at an end even if th e case otherwise continues. Therefore, we reject the Borough's argum ent for a continuing

set-off.

54measure of comfort for the horrific injuries that h e received

over 15 years ago, and it also will represent some measure of closure to this legal odyssey that began over 13 years ago.15

For the foregoing reasons, we will affirm the order s of the

district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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15. We understand that as of this time only the lia bility of the Borough has been fixed. In response to our inquiry at oral argument, counsel for the Borough indicated that this litigation will go on with respect to fixing responsibility among the defendants. Yet we cannot help but wonder whether now that the overarching issues in this cas e are resolved, the parties cannot settle the remaining issues so that this litigation which

is over 13 years old can be ended.

55