1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-15-1998

Waldorf v. Shuta

Precedential or Non-Precedential:

Docket 97-5195,97-5222

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Recommended Citation

"Waldorf v. Shuta" (1998). 1998 Decisions. Paper 79.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/79
Filed 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 

 2 
 Richard 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 

 3 
IV. 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 from a 

judgment of $3,005,941 entered on a jury's verdict in favor 

of the plaintiff, Mark Waldorf, after a deduction for a 

collateral source recovery, in this personal injury action. 

Waldorf suffered injuries rendering him a quadriplegic in a 

motor vehicle accident in 1982 when he was 24 years old. 

First, Waldorf appeals from the denial of his motion for a 

new trial on damages and the refusal of the district court 

to grant him an additur as he contends that the verdict was 

inadequate and against the weight of the evidence. Second, 

Waldorf argues that he should receive a new trial based on 

the district court's improper qualification of a witness as an 

expert and based on the allegedly improper conduct of 

defense counsel during the trial. Defendant, Borough of 

Kenilworth, New Jersey ("the Borough"), contends, however, 

that we do not have jurisdiction over Waldorf 's appeal, 

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 liability to 

Waldorf that it made prior to an earlier trial, and that the 

court also erred in limiting a collateral source set-off 

against the jury's award. We hold that we have jurisdiction 

over this appeal and cross appeal and will affirm the 

district court's orders. 

 4 
This appeal is the third occasion that this case has 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 circumstances 

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 four-way 

intersection of Monroe Avenue and North 14th Street in the 

Borough. He was a passenger in a van driven by Kenneth 

C. Spence, Jr., and was riding on a seat that was not bolted 

down, but instead was secured only by elastic straps. 

Waldorf was not wearing a seat belt at the time of the 

accident. 

The intersection of Monroe Avenue and North 14th Street 

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 Kenilworth 

Police Department discovered at approximately 11:00 p.m. 

that the red light was not working. He attempted tofix the 

light; but he could not repair it, nor could he switch it into 

the blinking mode. Smith radioed police headquarters and 

discussed the situation with his supervisor, Lieutenant 

Joseph Rego. However, instead of ordering an officer to 

direct traffic at the intersection, Rego assigned Smith and 

the other officer on duty to what he regarded as more 

pressing matters. 

At approximately 11:45 p.m. that night, Spence was 

traveling south on 14th Street. Edward J. Shuta, driving a 

Datsun Sedan, was traveling at approximately 60 miles per 

hour heading east on Monroe Avenue at the same time. The 

green light was facing Spence, and he proceeded into the 

intersection at approximately 20-25 miles per hour. Shuta 

testified that he saw a green light when he was crossing 

railroad tracks 237 feet from the intersection. However, he 

did not see the light turn yellow, nor did he notice that the 

red light was not working. Thus, he entered the intersection 

at the same time as Spence, and the vehicles collided. The 

force of the collision threw Waldorf from his seat, and the 

bench upon which he had been sitting struck his head. 

 5 
Waldorf was taken to Memorial Hospital in Union, New 

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 spinal cord 

and a total lack of function below that level resulting 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 spine, and Dr. 

Lieberman later fitted him with a halo brace, which was 

screwed into his skull to help his neck fractures heal. 

Waldorf remained in the hospital for three weeks and then 

transferred to the Kessler Institute for Rehabilitation in 

West Orange, New Jersey, where he began a rehabilitation 

program, physical therapy, and occupational therapy. 

In March 1983, Waldorf transferred to the Rusk Institute 

for Rehabilitation at New York University Medical Center. At 

Rusk, Waldorf came under the care of Dr. Kristjan 

Ragnarsson, a board certified physician who specializes in 

physical medicine and rehabilitation. Waldorf received 

physical therapy, occupational therapy, counseling by 

social workers and psychologists, vocational counseling, 

and therapeutic recreation. See id. at 142-50. Ultimately, 

Waldorf was discharged on December 23, 1983. In all, 

Waldorf spent 404 days at Memorial Hospital, Kessler 

Institute, and Rusk Institute. Upon discharge, Waldorf 

continued under Dr. Ragnarsson's care as an outpatient. 

For a time, Waldorf was under the care of Dr. Asa Ruskin, 

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 are 

catastrophic. He has lost control of all motor, muscle, and 

sensory functions below the C6-C7 neurological level. 

Waldorf can move his facial, neck, and shoulder muscles 

and can raise and bend his elbow; but he cannot move his 

fingers. Although his chest muscles are paralyzed, he is 

able to breath without a respirator. Waldorf has lost a great 

deal of weight and muscle mass as a result of his condition. 

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 day. The 

 6 
muscles in his legs are spastic, resulting in involuntarily 

contractions and motions of his legs. 

Waldorf has no control over his bowel functions, which 

have to be stimulated artificially on a daily basis. Since 

1985, he has been under the care of Dr. Joshua Feibusch, 

a gastroenterologist, for this problem. Furthermore, Waldorf 

has no control over his urinary functions, so he has to wear 

an external urinary collection unit. This situation has led to 

several urinary tract infections, one of which required a 

nine-day hospital stay. Among other medical problems, 

Waldorf suffers from autonomic dysreflexia, sexual 

disfunction, and musculoskeletal problems. He has had 

and will require 24-hour attendant care for the rest of his 

life. Throughout his ordeal, Waldorf has suffered from a 

great amount of pain. 

Waldorf filed this action in the district court on 

September 21, 1984, against the drivers of the vehicles 

involved in the accident, the Borough, and various present 

and former Borough officials. At the first trial, which was 

on both liability and damages, he received a jury verdict on 

August 12, 1988, against the Borough, Police Lt. Rego, and 

the drivers of the vehicles in the amount of $8,400,000. We 

subsequently reversed and remanded the case for a new 

trial. See Waldorf, 896 F.2d at 744-45. 

On remand, the Borough proposed to stipulate its 

liability to Waldorf in exchange for certain procedural 

concessions. Counsel for the Borough made this proposal 

at a hearing before a magistrate judge stating: 

 The borough has, after much consideration and soul- 

 searching, has authorized me to advise the Court that 

 they will not contest liability in this matter, provided 

 two things, and these are absolute conditions for this 

 admission by them: One is that the case be bifurcated 

 and different juries hear liability and damages; and the 

 second thing is that the damages trial proceed first 

 before a liability trial. Therefore, a decision not to 

 contest liability is predicated on those two

 prerequisites. 

App. at 277. Waldorf 's counsel objected to this stipulation, 

but the magistrate judge nevertheless incorporated the 

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

See id. at 292. Pursuant to this order, the case was tried 

only on damages leading to the jury returning a verdict 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 remanded 

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. See 

Waldorf v. Borough of Kenilworth, 878 F. Supp. 686 (D.N.J. 

1995). The Borough then unsuccessfully sought permission 

to appeal the decision. 

The court then held a third trial, which like the second 

trial, was only on damages. On October 25, 1995, the jury 

returned a verdict in favor of Waldorf in the amount of 

$3,086,500 divided as follows: $2,500,000 for pain and 

suffering; $195,000 for past lost earnings; and $391,500 for 

future lost earnings. The district court entered judgment 

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 district court 

denied this motion on February 26, 1996. See Waldorf v. 

Shuta, 916 F. Supp. 423 (D.N.J. 1996). 

Waldorf then moved for a Rule 54(b) certification for entry 

of a final judgment against the Borough, and the Borough 

filed a cross-motion for an order setting a date for the 

liability trial. See Fed. R. Civ. P. 54(b). The Borough also 

filed a motion seeking a collateral source set-off as provided 

by N.J. Stat. Ann. S 59:9-2(e) (West 1992). Pursuant to Rule 

54(b), the district court certified the judgment so that it 

could be appealed and, by doing so, denied the Borough's 

motion to set a trial date on liability. The court, however, 

did not file a written opinion with its order explaining 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. 

 8 
Waldorf then filed a timely notice of appeal, and the 

Borough filed a cross appeal. On December 5, 1996, we 

entered an order dismissing the appeals "for lack of 

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 opinion and 

order on March 24, 1997, again granting Waldorf 's 

certification motion. See Waldorf v. Borough of Kenilworth, 

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 Carolyn 

Wood also filed notices of appeal, but they later withdrew 

their appeals. The Borough filed a cross appeal and, in 

addition, filed a motion to dismiss Waldorf 's appeal 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 citizenship 

among the parties. However, the Borough asserts that we 

do not have jurisdiction under 28 U.S.C. S 1291 because in 

its view the district court improperly certified the judgment 

as a final order pursuant to Rule 54(b). We will address this 

jurisdictional question first. 

A district court's determination to grant a Rule 54(b) 

certification motion is "predicated on its affirmative answer 

to two questions, i.e., were the judgments final and were 

they ready for appeal." Gerardi v. Pelullo , 16 F.3d 1363, 

1368 (3d Cir. 1994). In reviewing the district court's 

decision regarding whether a judgment is final, we exercise 

a plenary standard of review. See id. In this appeal, 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 district 

court's interpretation of that stipulation we also exercise 

plenary review.1 See Washington Hosp. v. White, 889 F.2d 

_________________________________________________________________ 

1. Arguably this case involves construction rather than, or perhaps in 

addition to, interpretation of the stipulation; but as we discern no 

 9 
1294, 1299 (3d Cir. 1989). With respect to the question of 

whether the issue was "ready for appeal . . . tak[ing] into 

account judicial administrative interests as well as the 

equities involved," we exercise an abuse of discretion 

standard of review. Gerardi, 16 F.3d at 1368 (internal 

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 judgment, but 

will use an abuse of discretion standard to review the 

district court's determination that this judgment was "ready 

for appeal" under Rule 54(b). 

A. District Court Determination 

In an opinion dated March 24, 1997, the district court 

certified the judgment as final under Rule 54(b) in order to 

permit an immediate appeal. See Waldorf, 959 F. Supp. at 

682. The district court noted that following the third trial, 

it first had certified the judgment under Rule 54(b) without 

an opinion, but that we dismissed the appeal "for lack of 

appellate jurisdiction," citing Rule 54(b). See id. at 677-78. 

The district court recognized that the dismissal could 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 judgment as 

final. See id. at 678. Thus, having determined it would be 

appropriate to reconsider the certification motion in a 

written opinion, the court addressed its merits. 

The court recognized that to certify an order pursuant to 

Rule 54(b), the judgment must be final and there must be 

no just reason for delay in entering the final judgment. 

With regard to the question of finality, the court held that 

_________________________________________________________________ 

difference in outcome turning on that distinction, as a matter of 

convenience we use the term "interpretation." In this regard, we are not 

prejudicing the Borough as we are exercising plenary 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. 

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

disposition' of Waldorf 's individual claim for damages 

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 from the 

Borough. The court also held that while the Borough

claimed that it could assert the affirmative defense of 

comparative negligence against Waldorf, this assertion 

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 delay 

analysis and thus did not affect finality. Therefore, the 

court held that the judgment was final under Rule 54(b). 

Having made a finding of finality, the court considered 

whether there was any just reason for delay. Under this 

analysis, courts should consider the following factors: 

 (1) the presence or absence of a claim or counterc laim 

 which could result in a set-off against the judgment 

 sought to be made final; (2) the relationship be tween 

 the adjudicated and unadjudicated claims; (3) the 

 possibility that the need for review might or might not 

 be mooted by future developments in the district 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, economic and 

 solvency considerations, shortening the time of trial, 

 frivolity of competing claims, expense, and the like. 

Id. at 679 (citing Allis-Chalmers Corp. v. Philadelphia Elec. 

Co., 521 F.2d 360, 364 (3d Cir. 1975) (footnotes omitted)). 

With regard to the first factor, the court recognized that the 

existence of an affirmative defense would weigh heavily 

against the grant of a certification. As part of the liability 

trial, the Borough argued that it intended to raise an 

affirmative defense of comparative negligence against 

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 circumstances 

surrounding the liability stipulation, and found that 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, 

 11 
these circumstances weighed in favor of finding a waiver of 

the comparative negligence defense. 

The court also rejected the Borough's argument that its 

opening remarks at the second trial evidenced its intent 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 maintained its 

affirmative defense of comparative negligence against 

Waldorf. The court rejected this argument, noting that the 

statement "is consistent with the understanding that the 

liability phase of the trial was to treat the cross-claims 

asserted by the Borough against the other defendants." Id. 

Thus, the court held that the statement did not imply that 

the Borough had preserved its affirmative defense against 

Waldorf. 

As further support for its decision, the court noted 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) certification 

on damages prior to a liability trial. Yet when the Borough 

appealed, it did not mention its affirmative defense 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 against 

Waldorf. 

Additionally, the court held that permitting the Borough 

to litigate the issue of Waldorf 's comparative negligence 

would "run afoul of the principles underlying New Jersey's 

`ultimate outcome' rule." Id. (citing Roman v. Mitchell, 413 

A.2d 322 (N.J. 1980)). In Roman, the New Jersey Supreme 

Court held that " `a jury in a comparative negligence 

situation should be given an ultimate outcome charge 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 entitled to 

know that any award to a plaintiff will be reduced by the 

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

negligence, if exceeding that of the defendant, will bar his 

claim entirely. The court noted that if the Borough was 

permitted to argue comparative negligence, "one jury 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 negligence. 

Therefore, the first factor in determining whether there was 

just reason for delay, i.e., the possibility of a set-off by 

reason of a counterclaim, weighed in favor of certification 

as there was no such possibility. 

In considering the second factor relating to whether there 

was just reason for delay in entering a final judgment, the 

district court found that all of the unadjudicated claims in 

this case addressed the issue of liability among the 

defendants. The Borough had conceded its liability to 

Waldorf, so all that remained was a determination of 

whether to allocate responsibility for the damages judgment 

among the remaining defendants. Because a certification of 

this judgment would not impair the Borough's right to seek 

contribution from the other defendants, the court held that 

this factor did not weigh against certification. See id. at 

681. 

Considering the possibility of mootness and of multiple 

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 issue of the 

propriety of the jury verdict" with regard to damages. Id. 

Furthermore, the court recognized that another jury would 

not redetermine the quantum of damages so that we would 

address the damage issue only on this occasion. Therefore, 

the district court determined that these factors did not 

weigh against certification. See id. at 681-82. 

Finally, in considering the miscellaneous factors, the 

district court held that the consequences of a delay in the 

review of this verdict weighed in favor of immediate 

certification and review. The court recognized that Waldorf 

had been injured more than 14 years earlier, and had not 

 13 
received any compensation from this case. Without a

certification, the unjustified delay would continue. The 

court also held that economic and solvency considerations 

were immaterial, determining that they played no role. See 

id. at 682. 

Because it determined that the judgment was final and 

the factors weighed in favor of finding that there was no 

just reason for delay in the entry of a final judgment, the 

district court held that certification was proper under Rule 

54(b). 

B. Discussion 

The court's authority to certify a judgment under Rule 

54(b) as final creates a narrow exception to the historic 

policy of the federal appellate courts against piecemeal 

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 presented in an 

 action, whether as a claim, counterclaim, cross-claim, 

 or third-party claim, or when multiple parties are 

 involved, the court may direct the entry of a final 

 judgment as to one or more but fewer than all of the 

 claims or parties only upon an express determination 

 that there is no just reason for delay and upon an 

 express direction for the entry of judgment. . . . 

Thus, to certify entry of a final judgment under this rule in 

a multiple claim or multiple party action, the district 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 court's 

failure to state its reasons for certification on the record. 

We consistently have required district courts to provide a 

reasoned opinion as a prerequisite for appellate review of a 

judgment certified as final. See, e.g., Cemar, Inc. v. Nissan 

Motor Corp., 897 F.2d 120, 123 (3d Cir. 1990) (dismissing 

 14 
appeal on jurisdictional grounds because the district 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 statement of 

reasons by the district court in support of its determination 

to certify a judgment as final under Rule 54(b)). Because 

the district court did not provide a written opinion outlining 

its reasons for its first certification of the judgment, we 

dismissed the appeal for want of jurisdiction. As part of the 

second certification, however, the district court provided a 

written opinion explaining its reasons in great detail for 

granting the certification motion. Therefore, we can review 

the merits of the district court's certification decision. 

This case involves multiple claims among multiple 

parties. In addition to his claim against the Borough, 

Waldorf has direct claims against other defendants, and the 

Borough has cross-claims for contribution against these 

same parties. See generally Owens v. Aetna Life & Cas. Co., 

654 F.2d 218, 220 n.2 (3d Cir. 1981) (suggesting that 

contribution and indemnity claims are separate claims 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 complaints 

seeking indemnity or contribution have in several instances 

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) certification may 

be appropriate provided that in the unusual circumstances 

here the judgment is final and there is no just reason for 

delay. 

1. Finality 

A final judgment is "an ultimate disposition of an 

individual claim entered in the course of a multiple claims 

action." Sears, Roebuck & Co., 351 U.S. at 436, 76 S.Ct. at 

900; see also Gerardi, 16 F.3d at 1638 ("Finality is defined 

by the requirements of 28 U.S.C. S 1291, which are 

generally described as `ending the litigation on the merits 

and leav[ing] nothing for the court to do but execute the 

judgment.' " (citations omitted)). Although a district court 

has discretion in certifying a judgment for appeal under 

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

discretion, treat as `final' that which is not`final' 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 reservation 

would prevent a Rule 54(b) certification in this case 

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 Trustees of 

the Chicago Truck Drivers, Helpers & Warehouse Workers 

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 partially 

but not completely determined, or when the district court 

will revisit the issues."); Allis-Chalmers Corp., 521 F.2d at 

366 ("[I]n the absence of unusual or harsh circumstances, 

we believe that the presence of the counterclaim, which 

could result in a set-off against any amounts due and 

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 that 

ultimately the plaintiff could be required to return if the 

defendant is successful in his or her defense. In fact, 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 defendants' 

negligence, the plaintiff is precluded from recovery. See N.J. 

Stat. Ann. S 59:9-4 (West 1992). Under this rule, depending 

on the outcome of the affirmative defense, an underlying 

judgment against the defendant could be invalidated. Thus, 

if the Borough can raise an affirmative defense of 

comparative negligence against Waldorf, the judgment from 

which Waldorf appeals is not final. 

We hold, however, that this judgment is final because we 

agree with the district court's determination that the 

Borough waived its affirmative defense of comparative 

negligence as a result of its stipulation of liability prior to 

 16 
the second trial. In interpreting a stipulation, courts should 

consider its plain language and "the circumstances 

surrounding the formation of the [s]tipulation which may 

explain" its meaning. Washington Hosp., 889 F.2d at 1302 

(internal quotation marks omitted). The Boroughfirst 

proposed stipulating liability at a hearing before a 

magistrate judge in the context of considering a trial 

involving all of the defendants as to damages only. See app. 

at 276-77. Susan Sharko, the previous counsel for the 

Borough, explained to the magistrate judge that a trial 

limited to damages could not be held by consent because at 

least one defendant, Police Lt. Rego, was unwilling to 

stipulate to liability. See id. After this explanation, Sharko, 

acting for the Borough, made a clear and unequivocal 

stipulation of liability as to Waldorf: "The borough . . . has 

authorized me to advise the Court that they will not contest 

liability in this matter . . . ." Id. at 277. The only condition 

to the stipulation was that the court hold the damages trial 

first, to be followed by a separate liability trial. See id. 

The Borough argues that the provision for the separate 

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 liability, 

because the thrust of the defense is the denial of liability to 

the same party in whose favor the stipulation of liability 

runs. Furthermore, given the New Jersey law which may 

deny recovery to a plaintiff depending upon his percentage 

of comparative negligence, the stipulation necessarily 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 negligence 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 action. 

Other persons present at the hearing when the Borough 

made the stipulation understood it as waiving the 

 17 
Borough's affirmative defense of comparative negligence. In 

fact, while discussing the Borough's proposal, the 

magistrate judge stated that as a result of the stipulation, 

"the only rights that would accrue after [the damage 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 liability against 

the Borough, and the future liability trial, if it occurs at all, 

will only be to establish whether or not any one need make 

contribution." (comments of Steven Backfish, attorney for 

Police Lt. Rego)). Thus, without any objection by the 

Borough, the individuals involved at the hearing explained 

that the purpose of the liability trial would be to determine 

issues of contribution and not to disturb the Borough's 

stipulation of liability to Waldorf. Considering the 

circumstances surrounding the formulation of the 

stipulation and its plain meaning, we hold that the Borough 

waived its affirmative defense of comparative negligence by 

expressly, and without reservation, stipulating its liability 

to Waldorf.2 

We recognize that in its cross appeal the Borough argues 

that the district court erred by not permitting it to withdraw 

its stipulation. If the Borough could free itself from the 

stipulation, it could contest its liability to Waldorf, because 

the stipulation's waiver of the affirmative defense of 

comparative negligence no longer would have any force. In 

that circumstance, arguably the judgment in this case 

would not be final, because the liability trial could alter or 

undermine completely the damages judgment. However, as 

we will discuss below, because we hold that the district 

court did not abuse its discretion in binding the Borough 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

_________________________________________________________________ 

2. Because we hold that the Borough waived its affirmative 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. 

 18 
determining that the stipulation waived the Borough's 

affirmative defense of comparative negligence and, as we 

will discuss below, the court did not abuse its discretion in 

preventing the Borough from withdrawing the stipulation. 

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 the 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 district 

court did not abuse its discretion in determining that there 

was no just reason to delay entry of a final judgment or to 

delay this appeal. When the court made its determination, 

Waldorf had endured three trials and two appeals and 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 damages 

that have been fixed by the judgment; particularly 

inasmuch as we understand that all the parties agree 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 the 

damages determination will be moot.3 Furthermore, the 

Borough does not have any pending counterclaims or 

defenses against Waldorf that could reduce the award. The 

district court properly examined all the appropriate factors 

under our test as set forth in Allis-Chalmers and did not 

abuse its discretion in determining that they weighed in 

favor of certifying the judgment as final thus allowing an 

immediate appeal. 

_________________________________________________________________ 

3. In the circumstances, we see no reason to enter into a discussion of 

the preclusive effect of the judgment on parties other than Waldorf and 

the Borough. We simply note that it is not conceivable that any 

defendant would want to retry the damages issue and that Waldorf has 

had a full and fair trial on damages. 

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

court's determination to certify this judgment asfinal 

pursuant to Rule 54(b). Therefore, we have jurisdiction 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 Borough 

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, reference to 

which we made above. In its cross appeal, the Borough 

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 maintain 

the damage verdict but free itself of its full admission of 

liability to Waldorf. Thus, even though part of the condition 

of the stipulation has been carried out, the holding of a 

damage trial first by a separate jury, the Borough wishes to 

withdraw from its concession of liability to Waldorf and 

require that there be a full liability trial. Thus, to put it 

bluntly, the Borough wants it both ways -- the stipulation 

will be applied but only insofar as it is in its interest to 

apply it. 

As we have indicated, if the Borough is correct in its 

argument, the possibility of a reduction or elimination 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 appeals 

might not be regarded as final. Thus, the merits of the 

cross appeal and the jurisdictional issues are intertwined. 

We, however, will affirm the district court's denial 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 sought 

to withdraw its stipulation of liability to Waldorf prior to the 

 20 
third 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 held that the 

Borough's decision to make the stipulation was merely 

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 expressly was 

limited "to a single trial and [was] phrased in conclusory, 

rather than evidentiary facts." Id. at 691-92. Examining the 

stipulation, the court held that the Borough did not limit 

the stipulation to a single trial, nor was the stipulation 

intended merely to narrow the issues in dispute. Rather, 

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 lesser 

quantum if the jury awarding the damages was not aware 

of the Borough's actions leading to its liability." Id. 

Therefore, the court held that the express limitation 

exception did not apply to the Borough's stipulation. 

Turning to the third exception, the court noted that"it is 

well-settled by decisional law in this and other circuits that 

a stipulation remains in effect unless the trial court finds 

that such vitality would result in `manifest injustice.' " Id. at 

690 (citations omitted). The court also stressed that district 

courts are given broad discretion to determine when there 

would be such injustice. See id. at 691. To determine 

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 prejudiced 

by binding it to its stipulation of liability, the court 

confronted the Borough's argument that "recently-reviewed 

evidence could negate the Borough's liability to Waldorf " on 

three different bases; thus, according to the Borough 

binding it to its stipulation would result in manifest 

injustice. Id. at 692-93. 

 21 
The first evidence concerned Waldorf 's contention that 

the traffic light at the intersection of the accident 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 Highways 

(June 1961) ("the 1961 Manual"). The State of New Jersey 

adopted the 1961 Manual on January 2, 1962. Based on 

"recently reviewed evidence," the Borough alleged that 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, which was 

after the Borough constructed the light. To support this 

claim, the Borough produced a letter dated September 15, 

1964, from Gerald J. Driscoll, Chief of the Traffic Safety 

Service of the New Jersey Division of Motor Vehicles, which 

stated that "[a]s of this date, the Director of Motor Vehicles 

will process municipal applications for traffic signals . . . in 

accordance with the procedures described in the New

Jersey Manual on Traffic Signal Application Procedures for 

Local Officials [`the New Jersey Manual'] .. . ." Id. at 693. 

According to the Borough, this letter evidenced that the 

1961 Manual was not in effect prior to September 1964. 

The district court rejected this interpretation because 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 that the 

Borough could not be prejudiced by the exclusion of this 

evidence. 

The Borough also claimed that it could produce evidence 

which would refute two other theories Waldorf advanced to 

establish its liability: that it failed to have a preventive 

maintenance plan that would have prevented the accident 

and that it failed to equip its police cars with emergency 

signs that would warn motorists of a malfunctioning traffic 

light. Under these theories, if the Borough had decided as 

an act of discretion not to adopt such a plan or purchase 

such signs, the Borough would be immune from liability 

under N.J. Stat. Ann. S 59:2-3(c) (West 1992). However, if 

the Borough simply failed to consider adopting the plans or 

purchasing the signs, then it could not assert an immunity 

defense. See Waldorf, 896 F.2d at 730, 737. In support of 

its motion to be relieved from the stipulation, the Borough 

 22 
argued that it could produce testimony from a former 

Borough official that the Borough had considered both 

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 unnamed 

official giving even "the barest outline of what that 

testimony might be" nor did the Borough explain why it did 

not offer this testimony at the original trial which 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 the 

Borough's stipulation of liability, the court held that 

binding the Borough to its stipulation would not result in 

a manifest injustice. 

Furthermore, the court noted that the Borough had not 

demonstrated that it exercised due diligence in advancing 

this "recently reviewed evidence." The court compared 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 Rule 

59(b)." Fed. R. Civ. P. 60(b). While the Borough was not 

moving for a new trial, the court held that the situations 

were similar: new trial counsel for the Borough raised the 

issue of "new" evidence which the Borough's previous 

counsel did not discuss or bring forth. Furthermore, the 

Borough offered no explanation as to why this evidence 

could not have been presented during the first trial. 

Therefore, the court determined that because the Borough 

had failed to exercise due diligence with respect to this 

evidence, it should not be permitted to withdraw its 

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 issue in the 

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

id. at 694. If there was a trial on liability, there would be 

further delays in the case, because Waldorf would have to 

determine the availability of witnesses and marshal the 

evidence that pertained to an issue which the parties had 

not contested for years. Thus, the court held that relieving 

the Borough from its stipulation would prejudice Waldorf. 

See id. 

3. Prejudice to the Judicial System 

Finally, the court held that judicial resources would be 

burdened unduly if the Borough was permitted to withdraw 

its stipulation. The court stated that granting the motion 

would compromise the integrity of the judicial process, 

because the Borough then could take the case in a different 

direction merely because its new counsel might have tried 

the case differently than the previous counsel if he had 

been present at the outset of the case. The court recognized 

that concerns of judicial integrity underlie the doctrine of 

judicial estoppel; this doctrine precludes a party from 

asserting a position in a proceeding that is inconsistent 

with a previously asserted position. See id. at 695 (citing 

Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3d Cir. 

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 prejudice 

to the Borough, Waldorf, and the court, the district court 

held that binding the Borough to its stipulation would not 

_________________________________________________________________ 

4. The court also held that permitting the Borough to withdraw the 

stipulation would violate the law of the case doctrine and the mandate 

rule. Under the law of the case doctrine, once an issue has been decided, 

parties may not relitigate that issue in the same case. Here, the court 

held that the stipulation itself determined the issue of liability and 

removed that issue from judicial consideration. Furthermore, the court 

determined that our mandate in vacating the second judgment remanded 

the case "for a new trial on damages." Id. According 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. 

 24 
result in a manifest injustice. See id. at 696. Thus, 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 Waldorf. 

Subsequently, but still before the damages trial, the 

Borough moved for relief from the stipulation on the 

grounds that it had authorized the stipulation in violation 

of the New Jersey Open Public Meetings Act ("the Act"), N.J. 

Stat. Ann. SS10:4-6 et seq. (West 1993). The district court 

denied this motion without opinion by order of August 31, 

1995. 

B. Discussion 

We review a district court's decision to bind a party to its 

stipulation under an abuse of discretion standard. See 

Wheeler v. John Deere Co., 935 F.2d 1090, 1098 (10th Cir. 

1991). In general, courts encourage parties to enter into 

stipulations to promote judicial economy by narrowing the 

issues in dispute during litigation. See TI Fed. Credit Union 

v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995). Allowing 

parties easily to set aside or modify stipulations would 

defeat this purpose, wasting judicial resources and

undermining future confidence in such agreements. Thus, 

"[i]t is a well-recognized rule of law that valid stipulations 

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), partially 

overruled on other grounds en banc by Kershner v. 

Mazurkiewicz, 670 F.2d 440, 448 (3d Cir. 1982). However, 

in spite of the severe limitations placed on withdrawing 

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 not binding 

on retrial; (2) manifest injustice would result if the court 

binds the Borough to its stipulation; and (3) the stipulation 

is invalid, because its authorization by the Borough violated 

the New Jersey Open Public Meetings Act. See N.J. Stat. 

 25 
Ann. 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 trial 

remains binding during subsequent proceedings between 

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); United 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 thefirst 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 testimony 

made prior to the reversal of the initial verdict, because the 

consent was not limited expressly); Hunt v. Marchetti, 824 

F.2d 916, 917 (11th Cir. 1987) (upholding the district 

court's withdrawal of a stipulation, because the district 

court determined that the parties intended to limit the 

stipulation to the first trial); United States v. Burkhead, 646 

F.2d 1283, 1285 (8th Cir. 1981) (binding the parties to a 

stipulation because it "was not by its terms limited to use 

in the first trial"). 

In this case, the stipulation was unilateral as Waldorf 

objected to it. Yet, we conclude that the cases involving 

agreements are persuasive here. After all, we see no reason 

why the Borough's position should be stronger because the 

court at its request imposed the stipulation on Waldorf 

than it would be if the parties had agreed on the 

stipulation. 

The Borough did not limit its stipulation to the trial then 

at hand. Instead, counsel for the Borough made a clear and 

unequivocal statement conceding its liability to Waldorf: 

"The borough has, after much consideration and soulsearching, has authorized me to advise the Court that they 

will not contest liability in this matter . . . ." App. at 277. 

Thus, rather than limiting the stipulation to the ensuing 

 26 
trial, 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 prior 

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 stipulation is 

misplaced; limiting language or the intent to limit the 

agreement is also an important factor in considering the 

effect of a stipulation. For instance, Hunt v. Marchetti was 

a libel suit involving a newspaper that had published an 

article stating that the Central Intelligence Agency 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 Lobby, the 

publisher of the newspaper, made a conclusory stipulation 

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 Appeals for the 

Eleventh Circuit reversed the judgment and remanded the 

case for a new trial. See Hunt v. Liberty Lobby , 720 F.2d 

631 (11th Cir. 1983). Prior to this new trial, the district 

court ruled that the stipulation applied only at thefirst 

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 determination 

was not the conclusory nature of the stipulation, but rather 

the intent of parties to limit the stipulation to the first trial. 

See id. at 918. On further appeal, the court of appeals held 

that the district court did not abuse its discretion 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 if 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, the 

parties' intention to limit or not limit a stipulation to only 

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

on the explicit language of the Borough's stipulation, the 

district court determined that the Borough did not intend 

the stipulation to apply only to the first trial. See Waldorf, 

878 F. Supp. at 692. We will not disturb this finding, 

because we cannot say that the district court abused 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, courts have 

focused on such factors as: (1) the effect of the stipulation 

on the party seeking to withdraw the stipulation, see 

Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 

(7th Cir. 1989) (discussing the effect of the stipulation on 

the party seeking to withdraw the agreement); (2) the effect 

on the other parties to the litigation, see Logan Lumber Co. 

v. Commissioner, 365 F.2d 846, 855 (5th Cir. 1966) (holding 

that "suitable protective terms or conditions" should be 

imposed "to prevent substantial and real harm to the 

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 original 

stipulation"); and (4) whether evidence contrary to the 

stipulation is substantial, see Donovan v. Hamm's Drive 

Inn, 661 F.2d 316, 317 (5th Cir. 1981) (holding that a court 

could relieve a party from a stipulation upon a showing of 

substantial contrary evidence). 

In arguing that manifest injustice will result if it is not 

relieved from the stipulation, the Borough cites"recently 

reviewed evidence" that allegedly undermines a conclusion 

that the Borough is liable to Waldorf. Waldorf , 878 F. Supp. 

at 693. However, we cannot say that the district court 

 28 
abused its discretion in determining that this evidence is 

insufficient to establish that a manifest injustice would 

result if the stipulation continued to bind the Borough. The 

Borough does not claim that the evidence is the product of 

an intervening event or that it previously could not have 

discovered the evidence. Instead, as the district court 

stated: "[The Borough] seeks to offer evidence that probably 

has been available to it since the time of the first trial." Id. 

at 694. Thus, this case does not involve circumstances 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 case, because 

it does not address directly the 1961 Manual containing the 

set of regulations at issue in this case. After considering the 

Borough's arguments that the district court erred in its 

interpretation of the letter, we hold that the district court 

did not abuse its discretion in determining that the 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 Borough'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 adopted the 

1961 Manual almost three years prior to the 1964 letter. 

Additionally, the Borough did not present any evidence or 

affidavits to the court to support its motion with regard to 

the other challenges to its liability. Based on this 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 free itself 

from the stipulation, the Borough had the obligation to 

provide the district court with competent evidence of the 

manifest injustice to it from binding it to the stipulation. 

When the Borough made the stipulation prior to the 

second trial, it had a full understanding of the legal rights 

it was relinquishing, and had clear knowledge of the 

consequences of its stipulation. In light of these 

circumstances, we cannot say that the district court 

 29 
abused its discretion in determining that the evidence 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 trial into 

damage and liability phases with separate juries. Moreover, 

of course, it seeks to uphold the damages verdict that is the 

subject of this appeal. It undoubtedly believes, as would 

any reasonable person, that the verdict was favorable to it. 

Accordingly, of all of the conditions in the stipulation, the 

Borough wants to eliminate only its admission of liability to 

Waldorf. As the district court correctly noted,"the Borough 

made the stipulation as a tactical decision that the amount 

of damages awarded to Waldorf, if any, would be of a lesser 

quantum if the jury awarding the damages was not aware 

of the Borough's actions leading to its liability." Id. at 692. 

Having received what it conceived (probably correctly) was 

the advantage of a separate trial on damages, the Borough 

now seeks to withdraw the damaging part of the stipulation 

-- its admission of liability. However, a party may not be 

freed of the burdens of a stipulation while maintaining its 

benefits. See Kohn, 458 F.2d at 307 ("[W]here a stipulation 

has more than one material part, one such portion may not 

be deleted and the remainder of the stipulation enforced."); 

Emerick & Duncan Co. v. Hascy, 146 F. 688, 695 (9th Cir. 

1906); 73 Am. Jur. 2d Stipulations S 13 at 549 (1974). If we 

freed the Borough from the concession of liability aspects of 

the stipulation, we would be manifestly unfair to Waldorf. 

3. New Jersey Open Public Meetings Act 

Finally, the Borough argues that it should not be bound 

by the stipulation, because the Borough granted its

attorney the right to make the stipulation in a proceeding 

held in violation of the New Jersey Open Public Meetings 

Act. This Act provides that, with exceptions, "all meetings of 

public bodies shall be open to the public at all times. 

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. Stat. Ann. 

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

decisions specifically listed in the statute, the Act provides 

that the public may be excluded from discussions regarding 

pending litigation or involving the attorney-client privilege. 

See N.J. Stat. Ann. S 10:4-12b(7) (West 1993). However, for 

the public to be excluded, the public body first must adopt 

a resolution at a public meeting "(a) [s]tating the general 

nature of the subject to be discussed; and (b) [s]tating as 

precisely as possible, the time when and the circumstances 

under which the discussion conducted in closed session of 

the public body can be disclosed to the public." N.J. Stat. 

Ann. S 10:4-13 (West 1993). In this case, the Borough had 

discussions regarding the stipulation and ultimately voted 

to agree to the stipulation at a closed meeting. See app. at 

294. However, the Borough never adopted a resolution as 

provided under section 10:4-13, nor has it subsequently 

ratified the agreement in any of its open meetings.

Therefore, the Borough argues that it authorized the 

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. 1997). We 

hold that the Borough has waived any challenge it might 

have had under the Act.5 Section 10:4-15a of the Act 

(emphasis added) provides that: 

 Any action taken by a public body at a meeting which 

 does not conform with the provisions of this act shall 

 be voidable in a proceeding in lieu of prerogative writ in 

 the Superior Court, which proceeding may be brought 

 by any person within 45 days after the action sought 

 to be voided has been made public . . . . 

The New Jersey courts have enforced this 45-day time limit 

strictly. See, e.g., Township of Bernards v. State Dep't of 

_________________________________________________________________ 

5. Waldorf contends that this Act provides a cause of action only to 

citizens and not municipalities, because the Act was intended to provide 

citizens with full access to all public meetings of governmental bodies 

and to protect against secrecy in public affairs. See N.J. Stat. Ann. 

S 10:4-7 (West 1993). Because we hold that the Borough 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. 

 31 
Community 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 Envtl. 

Protection, 545 A.2d 774, 783 (N.J. Super. Ct. App. Div. 

1988) (denying a challenge when the action was filed 60 

days after the public release of the information). The 45-day 

time limit of section 10:4-15a is mandatory; because the 

Borough did not challenge the approval of the stipulation 

within this 45-day time limit, its complaint is barred.6 

Based on the foregoing reasons, we hold that the district 

court did not abuse its discretion in binding the Borough to 

its prior stipulation. Indeed, we think that the Borough 

advances the Open Public Meeting Act argument with ill 

grace. Does the Borough believe that Waldorf and his 

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 fundamentally 

different from the position it took before the district court. 

The Borough initially sought relief from the stipulation prior 

to the third trial. If it had been successful then, the case 

would have been tried on all issues, and it would have lost 

the advantage of the stipulation. However, before this court, 

the Borough asks us to affirm the damages judgment and 

only void the stipulation as it relates to the liability trial. 

Thus, having received the benefit from its allegedly illegal 

conduct, the Borough only seeks to avoid the disadvantages 

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 

_________________________________________________________________ 

6. Even if we held that the 45-day limit could be relaxed 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 unknowing outsider 

unaware that an action had been taken. Moreover, it waited for years 

before it ever invoked the Act. In Jersey City , the court indicated that 

with respect to the 45-day time limitation "[c]onstructive 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. 

 32 
admission of liability and the bifurcation of the trial. Thus, 

because the Borough's liability to Waldorf remainsfixed, 

the Borough's contention that it should be relieved from the 

stipulation of liability does not affect our jurisdiction 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 the appellate 

record. One videotape depicts a day in Waldorf 's life during 

his stay at the Kessler Institute in 1983, and the second 

videotape depicts Waldorf undergoing one of his exercise 

regimens. Counsel for Waldorf showed these videotapes to 

the jury during trial, and he contends that they are relevant 

to our determination regarding the adequacy of the jury's 

verdict. We will grant Waldorf 's request and include these 

videotapes in the appellate record. 

The Federal Rules of Appellate Procedure provide that the 

record on appeal should consist of: "The original papers 

and exhibits filed in the district court, the transcript of 

proceedings, if any, and a certified copy of the docket 

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 presented 

to the district court and not admitted into evidence. See 

United States v. Burke, 781 F.2d 1234, 1246 (7th Cir. 

1986). The basic purpose behind the rule is to prevent 

parties from supplementing the record on appeal with items 

never presented to the district court. See 16A Charles Alan 

Wright et al., Federal Practice and Procedure S 3956.1 (2d 

ed. 1996). 

_________________________________________________________________ 

7. Of course, there are other problems with the Borough's position, such 

as judicial estoppel. Moreover, the Borough might have 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. 

 33 
Waldorf 's videotapes should be included in the appellate 

record, because he presented them to the district court and 

the jury saw them. See United States v. SanchezValderuten, 11 F.3d 985, 987 (10th Cir. 1993) (holding that 

a videotape introduced into evidence was part of record on 

appeal); Graham v. Hoke, 946 F.2d 982, 997 (2d Cir. 1991) 

(holding that a videotape shown to the jury and part of the 

district court record properly was considered to be part of 

the appellate record). Furthermore, these videotapes are 

especially relevant to the issues we are deciding, because 

they bear upon the sufficiency of the evidence supporting 

the verdict, which Waldorf believes is inadequate. See 

LaFollette v. Savage, 63 F.3d 540, 544 (7th Cir. 1995), 

opinion supplemented by, 68 F.3d 156 (7th Cir. 1995). 

Therefore, we include these videotapes as part of the 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 weight 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 entitled to 

a new trial. See Waldorf, 916 F. Supp. at 426-29. The court 

found "no evidence that the jury was swayed by any 

passion or prejudice that might have made it disregard the 

weight of the evidence." Id, at 426. The court also

recognized that the jury had an adequate opportunity to 

consider the size of the award through the testimony of 

Waldorf and his doctors, the jurors' observation of Waldorf, 

and the arguments of his counsel. 

The court then compared Waldorf 's pain and suffering 

verdict to verdicts in similar cases to gauge further its 

adequacy. The court first distinguished three cases Waldorf 

cited involving jury verdicts of over $10,000,000 for 

allegedly similar injuries: Fleck v. KDI Sylvan Pools, Inc., 

1991 WL 261659 (E.D. Pa. Dec. 6, 1991), aff 'd in part, 

rev'd in part, 981 F.2d 107 (3d Cir. 1992) (award of 

$10,000,000); Harrigan v. Ford Motor Co., 406 N.W.2d 917 

(Mich. Ct. App. 1987) (award of $12,000,000); Firestone v. 

Crown-Center Redevelopment Corp., 693 S.W.2d 99 (Mo. 

 34 
1985) (award of $15,000,000). The court then discussed 

numerous similar cases with verdicts ranging from 

$1,000,000 to $3,510,000 for pain and suffering damages. 

See Waldorf, 916 F. Supp. at 427-29. Because the award to 

Waldorf was well within this range, the court determined 

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 Waldorf 's 

motion for a new trial based on the asserted inadequacy of 

the pain and suffering damages. 

We review a district court's grant or denial of a motion 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 evidence, thus 

making a new trial necessary to prevent a miscarriage of 

justice." Id.; see also Motter v. Everest & Jennings, Inc., 883 

F.2d 1223, 1230 (3d Cir. 1989) ("For the court to disturb a 

jury verdict, `the damages assessed by the jury must be so 

unreasonable as to offend the conscience of the Court.' " 

(citations omitted)). 

Waldorf was 24 years old at the time of his accident with 

a statistical life expectancy (aside from the effects of his 

injuries) of 52.67 years. However, because of his medical 

problems, his life expectancy is ten percent less than that 

of an average person. The jury heard much testimony

regarding the results of the devastating accident on 

Waldorf: the 404 days in several hospitals and institutions; 

the halo brace screwed into his skull for five months; the 

extensive paralysis; the long and difficult rehabilitation; his 

constant pain; the required 24-hour attendant care for the 

rest of his life; and the medical problems from which he will 

suffer for the rest of his life such as muscle atrophy, 

neurogenic bladder, urinary tract infections, neurogenic 

bowel, sexual dysfunction, and muscle spasticity. 

Nevertheless, in challenging the verdict for pain and 

suffering, Waldorf does not cite to any specific indication 

that the jury disregarded the evidence. Instead, he relies on 

the size of the award as evidence of jury misconduct. 

However, juries are afforded broad discretion and great 

leeway in fixing fair and reasonable compensation to an 

 35 
injured party; thus, Waldorf bears a heavy burden to 

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 and 

circumstances, a review of awards in similar cases serves 

as a helpful guide in determining the reasonableness of a 

particular award. See Motter, 883 F.2d at 1230. 

Waldorf primarily relies on two cases to demonstrate the 

inadequacy of his award: Harrigan, 406 N.W.2d at 917 

(award of $12,000,000); and Firestone, 693 S.W.2d at 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 reasonable. 

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, testimony 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 here. 

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 shoulder 

level, except for some use of her bicep muscles. Among 

other injuries and problems, she also lost 80 percent of her 

blood, which necessitated "massive blood transfusions." 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 bladder 

infections, pneumonia, and gastric hemorrhage. See id. at 

109. Both her neurosurgeon and doctor testified that her 

injuries were the worst they ever had seen. See id. Thus, 

because the verdict included factors beyond pain and 

suffering and because Firestone's injuries seem to have 

been more severe than Waldorf 's, the verdict in Firestone is 

not particularly instructive here. 

Similarly, the facts underlying the verdict in Harrigan are 

different from those in this case. In Harrigan , the Court of 

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

for a plaintiff who suffered from a C6-C7 quadriplegia 

injury. However, like the verdict in Firestone , this verdict 

does not specify that it was simply for pain and suffering; 

instead, this award seems to include medical expenses and 

other economic losses. Thus, the Harrigan verdict cannot 

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 number of 

cases awarding between $6,000,000 and $14,000,000 for 

pain and suffering by individuals who became quadriplegics 

as a result of an accident. See, e.g., Peterson v. Goodyear 

Tire & Rubber Co., No. 90L15224, 1995 WL 537039 (Ill. Cir. 

Ct. 1995) (awarding $6,000,000 for pain and suffering 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 quadriplegic 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 the 

district court abused its discretion in denying a new trial 

based on the size of the pain and suffering verdict. As the 

district court correctly noted, a significant number of other 

cases have resulted in verdicts originally or as remitted for 

substantially less for pain and suffering for similar injuries 

than the verdicts Waldorf cites. See, e.g., Heitzenrater 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 became a 

quadriplegic); Moore v. Subaru of Am., 891 F.2d 1445 (10th 

Cir. 1989) (awarding $1,500,000 for pain and suffering and 

medical expenses to an individual rendered a quadriplegic 

as a result of an automobile accident); Denham v. United 

States, 834 F.2d 518 (5th Cir. 1987) (upholding as 

adequate an award of $500,000 for pain and suffering of an 

individual with quadriplegia as a result of a diving 

accident); Siverson v. United States, 710 F.2d 557 (9th Cir. 

 37 
1983) (upholding an award of $1,000,000 for pain and 

suffering for a man who became a C6-C7 quadriplegic); 

Dawson v. Chrysler Corp., 630 F.2d 950 (3d Cir. 1980) 

(upholding an award of $2,064,863 for expenses and for 

pain and suffering for a man who became a quadriplegic in 

an automobile accident); see also Waldorf, 916 F. Supp. at 

428-29 (listing further examples of similar verdicts). Thus, 

as these cases demonstrate, individuals rendered 

quadriplegics as a result of accidents have received 

significantly lower awards for pain and suffering than the 

award to Waldorf in this case. 

We also note that a very recent New Jersey state court 

case lends support to the district court's refusal to order a 

new trial on damages. In Green v. General Motors Corp., No. 

A-5756-95T2, 1998 WL 116851, ___ A.2d ___ (N.J. Super. 

Ct. App. Div. Mar. 18, 1998), the court heard an appeal 

from a case which in some respects is remarkably similar 

to this case. In Green, a 24-year old man was rendered 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 age as 

Waldorf at the time of the injury. In Green, the jury 

awarded $4,000,000 for pain and suffering. While the 

parties in Green raised numerous issues in the appeal and 

cross appeal, they did not challenge the pain and suffering 

award. Of course, the Green verdict was considerably 

higher than that in this case. Yet the case demonstrates 

that even in these times in which we have grown 

accustomed to extremely high verdicts, a jury in New Jersey 

in a similar case has returned a verdict for pain and 

suffering for what some persons might think was a modest 

amount. 

In sum, the wide range of damages awarded in the cases 

brought to our attention demonstrates the inexact nature of 

juries' assessments of damages and the difficulty in using 

other cases as a comparison to test the adequacy of a 

particular award. Although Waldorf suffered catastrophic 

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 award for 

pain and suffering is inherently subjective, and nothing in 

 38 
the record indicates that the jury failed to evaluate the 

evidence in a fair and reasonable manner. Even though the 

award was for less than what Waldorf sought or what other 

plaintiffs may have received in other somewhat comparable 

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 which 

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 discretion 

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 $195,000 for 

past lost earnings and $391,500 for future lost earnings as 

inadequate on four principal grounds: (1) insufficient 

evidence existed for the jury to determine that Waldorf 

failed to mitigate his damages; (2) the district court 

improperly qualified a witness as an expert; (3) counsel 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. We 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 $316,552 from 

the date of the accident to the time of trial, based on the 

assumption that he would have left college as of the time of 

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

_________________________________________________________________ 

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 this strategy as a 

result of an earlier ruling from this court. See Waldorf, 896 F.2d at 742- 

43 (holding that it was an error for Waldorf to have presented testimony 

about future earnings based on attorney's salary). 

 39 
future earnings would have ranged between $1,221,000 

and $1,339,000, based on an assumption that he would 

have worked until age 65. Therefore, the total earnings loss 

was between $1,537,000 and $1,655,000. The Borough did 

not introduce its own economic expert to counter this 

calculation. 

The jury awarded Waldorf a total of $586,500 for past 

and future earnings loss, most likely on the basis that 

Waldorf failed to mitigate his damages.9 Waldorf argues, 

however, that the jury did not have sufficient evidence to 

determine that Waldorf failed to mitigate his damages. 

At trial, the parties disputed whether Waldorf could work 

in spite of his injuries. A number of witnesses testified that 

only between 15 to 30 percent of all quadriplegics are able 

to return to work. See app. at 170-71, 238, 329. However, 

as the district court correctly noted, the jury heard 

testimony from some of these witnesses that Waldorf was 

capable of working. See Waldorf, 916 F. Supp. at 429. For 

instance, Waldorf 's own expert, Dr. Ragnarsson, who was 

a treating physician, agreed that Waldorf could return to 

work. On direct examination, Dr. Ragnarsson acknowledged 

that "technically [Waldorf] could hold a sedentary job of 

some sort." App. at 169. On cross-examination, he further 

testified: "I believe that he [Waldorf] can work." Id. at 172. 

Additionally, Waldorf 's vocational expert, Dr. David B. 

Stein, provided testimony that supported a conclusion that 

Waldorf had not mitigated damages. Dr. Stein administered 

aptitude and achievement tests to Waldorf, and based on 

the results, determined that he was a bright man with the 

ability to learn and with an intelligence in the high average 

range. See id. at 328. On cross-examination, Dr. Stein 

testified that he knew of no reason why Waldorf could 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 was well 

below Dr. Berenson's figures. See id. 

_________________________________________________________________ 

9. Of course, it is possible that the jury simply did not accept Dr. 

Berenson's testimony as to Waldorf 's anticipated loss of earnings. We 

nevertheless focus on the mitigation point. 

 40 
We hold that the district court did not abuse its 

discretion in denying Waldorf 's motion for a new trial 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 their 

injuries, the most relevant evidence here was the testimony 

regarding Waldorf 's ability to return to work. Based on the 

specific testimony regarding Waldorf 's own abilities and the 

jurors' opportunity to assess the credibility of the 

witnesses, the jury reasonably could have determined that 

Waldorf failed to mitigate his damages by not working.10 

The jury awarded Waldorf $121,552 less in past earnings 

and $829,500 less in future earnings than the lowest 

figures provided by Dr. Berenson. But the jury heard 

evidence that Waldorf potentially could earn anywhere from 

$15,000 to $100,000 a year even with his injuries. See app. 

at 220-31. Thus, even if the jury accepted Dr. Berenson's 

basic figures, it could have reduced the award predicated 

on Waldorf 's failure to mitigate damages. Accordingly, the 

verdict it returned was justified by his ability to generate 

earnings as demonstrated at trial. The future earnings 

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 available 

to Waldorf is considered. Therefore, because the jury had 

sufficient evidence to consider the issue of mitigation and 

the ultimate award was not unreasonable, we hold that the 

district court did not abuse its discretion in determining 

that the jury's award was adequate and in denying 

Waldorf 's motion for a new trial. 

_________________________________________________________________ 

10. We are assuming without actually knowing that the jury found that 

Waldorf failed to mitigate his damages by not working. 

11. Even making a reasonable assumption that Waldorf did not begin 

working until well after the accident, the reduction by the jury based on 

a failure to mitigate his damages with regard to the past earnings award 

is not so unreasonable as to warrant a new trial. For instance, if the 

same $29,625 yearly figure presumably used to reduce the future lost 

earnings award is used to examine the past lost earnings 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. 

 41 
As we indicated above, Waldorf also sought an additur 

from the district court. However, inasmuch as we conclude 

that the court did not abuse its discretion in denying 

Waldorf 's motion for a new trial based on the asserted 

inadequacy of the verdict, the district court had no 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 trial 

because the district court improperly qualified Dennis 

Rizzo, who testified for the Borough at trial, as an expert 

witness on vocational rehabilitation. Under the Federal 

Rules of Evidence: 

 If scientific, technical, or other specialized knowledge 

 will assist the trier of fact to understand the evidence 

 or to determine a fact in issue, a witness qualified as 

 an expert by knowledge, skill, experience, training, or 

 education, may testify thereto in the form of an opinion 

 or otherwise. 

Fed. R. Evid. 702. Waldorf does not dispute that vocational 

rehabilitation is a proper subject for expert testimony; 

instead, he questions whether Rizzo was qualified to testify 

as an expert in that area. For a court to qualify a witness 

to testify as an expert, Rule 702 requires the witness to 

have "specialized knowledge" regarding the area of 

testimony. The basis of this specialized knowledge"can be 

practical experience as well as academic training and 

credentials." American Tech. Resources v. United States, 

893 F.2d 651, 656 (3d Cir. 1990); Hammond v. International 

Harvester Co., 691 F.2d 646, 653 (3d Cir. 1982) ("[U]nder 

Rule 702, an individual need possess no special academic 

credentials to serve as an expert witness. . . .`[P]ractical 

experience as well as academic training and credentials 

may be the basis of qualification (as an expert witness).' " 

(citation omitted)). We have interpreted the specialized 

knowledge requirement liberally, and have stated that 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 Litig., 35 F.3d 

 42 
717, 741 (3d Cir. 1994). However, "at a minimum, a 

proffered expert witness . . . must possess skill or 

knowledge greater than the average layman . . . ." Aloe Coal 

Co. v. Clark Equip. Corp., 816 F.2d 110, 114 (3d Cir. 1987). 

Even though we apply Rule 702 liberally, we have not 

pursued a policy of qualifying any proffered witness as an 

expert. For instance in Aloe Coal Co., we held that a district 

court abused its discretion in allowing a tractor sales 

representative to testify as an expert regarding the cause of 

a tractor fire. In making this determination we stated: 

 Drewnoski [the expert witness] was not an engineer. 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 construction 

 machinery in the course of business. He was a 

 salesman, who at times prepared damage estimates. 

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 circuit 

provide examples of witnesses disallowed from providing 

expert testimony. For example, in Diaz v. Johnson Matthey, 

Inc., 893 F. Supp. 358, 373 (D.N.J. 1995), the plaintiff 

alleged that working conditions at his former job caused 

him to develop platinum salt allergies. In support of this 

allegation, the plaintiff produced a doctor who sought to 

testify about his condition and the possible long-term 

health effects of the condition. The district court held that 

the doctor was not qualified to testify that the plaintiff had 

a platinum salt allergy because his experience with such 

patients was limited and he had only a limited familiarity 

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, physics, and 

the movement of bodies), aff 'd, 720 F.2d 662 (3d Cir. 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 hygienist 

was qualified to testify as an expert regarding the design of 

a molasses storage tank where neither had any experience 

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 witnesses as 

experts, we stress that ordinarily an otherwise qualified 

witness is not disqualified merely because of a lack of 

academic training. For instance, in Hammond the district 

court determined that a witness could testify as an expert 

regarding a rollover protective structure on a tractor even 

though he did not have a formal degree in engineering 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 automobile 

repair and maintenance at a high school. We upheld his 

qualification as an expert, stressing that his practical 

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 expert 

regarding whether unguarded elevator control buttons were 

a design defect, even though he had no experience with 

such devices on elevators. We held that the expert's 

generalized knowledge about machine safety sufficiently 

qualified him as an expert. See also Davis v. United States, 

865 F.2d 164, 168 (8th Cir. 1988) (permitting the testimony 

of a public health investigator regarding the probabilities of 

transmitting gonorrhea despite his lack of medical training, 

because the expert had practical experience regarding such 

cases); Circle J Dairy, Inc. v. A.O. Smith Harvestore Prod., 

Inc., 790 F.2d 694, 700 (8th Cir. 1986) (holding that a 

witness could testify as an expert regarding the feed-related 

health problems of dairy cattle despite a lack of academic 

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 

 44 
field, and notwithstanding that his educational training 

culminated in a master's degree in sociology and social 

organization from Rutgers University in 1973. But his 

experience was sufficient to qualify him as an expert. After 

obtaining his degree, Rizzo began working for the State of 

New Jersey in the Division of Mental Retardation as a social 

worker. He worked as a case manager assisting mentally 

retarded individuals in "meeting their life needs" and 

assisting families in meeting the life needs of their mentally 

retarded children. See app. at 207-08. From 1980 to 1983, 

Rizzo operated a non-profit corporation whose purpose "was 

to expand the availability of services in the community 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, Rizzo 

was unemployed for nine months, but then began to work 

as a social worker at the North Princeton Developmental 

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 Jersey 

in the Developmental Disabilities Council as a contract 

manager. In 1991, he became involved in the Council's 

administration of a million dollar loan pool to assist 

disabled New Jersey residents in starting their own

businesses. See id. at 210-11. In that capacity, Rizzo 

evaluated the capacity of disabled individuals to accomplish 

specific employment opportunities. Rizzo also testified that, 

through the course of his employment, he became familiar 

with studies on the work that quadriplegics can perform. 

See id. at 219. Furthermore in his job experience, Rizzo 

utilized the New Jersey Department of Labor Statistics 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 literature in 

the field, the district court held that Rizzo was qualified 

properly as a vocational expert. The court said that"[w]hile 

his formal credentials may be a little thin, he certainly had 

sufficient substantive qualifications to be considered an 

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

916 F. Supp. at 430. 

Waldorf has a heavy burden in challenging this decision 

because, absent an abuse of discretion, we will not

substitute our own judgment for that of the trial court 

regarding the admission or exclusion of expert testimony. 

See Aloe Coal Co., 816 F.2d at 114. Of course, an abuse of 

discretion means much more than that the appellate court 

disagrees with the trial court. Rather, a trial court's 

determination whether to admit or exclude expert testimony 

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 training in 

the area of vocational rehabilitation, he did have experience 

in the field through his employment at the Developmental 

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 disabled 

individuals. In the circumstances, we cannot say that the 

district court abused its discretion in determining that 

Rizzo possessed the minimum qualifications necessary to 

testify as an expert. 

Whatever doubts the district court might have had 

regarding Rizzo's qualifications, it is important to note that 

"[o]nce the trial court has determined that a witness is 

competent to testify as an expert, challenges to the 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); see also 

Knight, 596 F.2d at 88. The jury heard all of the testimony 

regarding Rizzo's qualifications, and thus the jurors could 

evaluate the weight to give to Rizzo's expert opinions. 

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 trial.12 In 

_________________________________________________________________ 

12. Waldorf also contends that Rizzo had no basis to testify about 

rehabilitation technology available in Florida where Waldorf now resides. 

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

court. Thus, while we do not doubt that we would not have 

disturbed the court's ruling if it had excluded Rizzo as an 

expert witness, we cannot disturb the court's ruling 

qualifying him. As is so often the case in discretionary 

rulings involving qualification of witnesses or admission of 

evidence, we will affirm a reasoned decision by a district 

court regardless of how we might have decided the issue if 

we had been making the original determination. 

3. Remarks of Defense Counsel in Summation 

As another basis for a new trial, Waldorf asserts that the 

defense counsel made an improper argument during his 

closing remarks. During his closing argument, counsel for 

the Borough stated that Waldorf would be able to obtain 

free job training for the rest of his life, a service that 

counsel termed "occupational therapy." See app. at 243. 

However, earlier in the trial, Dr. Ragnarsson had stated 

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 Borough's 

misuse of the term "occupational therapy" led the jury to 

award less in economic damages than it otherwise would 

have awarded. In addressing this argument, the district 

court noted that even though the use of the term by the 

Borough was "sloppy and incorrect," it did not unduly 

prejudice the jury. Id. 

"Our standard of review with respect to the award of a 

new trial for prejudicial conduct by counsel is deferential. 

_________________________________________________________________ 

The district court determined that Rizzo properly based this testimony on 

a letter he received from a vocational expert in Florida. See Waldorf, 916 

F. Supp. at 431. Under the standards for expert testimony, Rizzo was 

not required to have personal knowledge regarding every job opportunity 

available. "[A]n expert opinion may be based on any type of evidence 

commonly used by experts in the field." Rogers v. Raymark Indus., Inc., 

922 F.2d 1426, 1429-30 (9th Cir. 1991); see also Fed. R. Evid. 703. 

Because Rizzo based his testimony on a reliable source in the field of 

vocational rehabilitation, the district court did not err in permitting 

Rizzo 

to testify regarding rehabilitation technology in Florida. 

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

the impact of counsel's remarks, we defer to his assessment 

of the prejudicial impact." Fineman v. Armstrong World 

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 their 

arguments; we have held that "not all improper remarks 

will engender sufficient prejudice to mandate the granting 

of a new trial. Our test is whether the improper assertions 

have made it `reasonably probable' that the verdict was 

influenced by prejudicial statements." Id. at 208 (citations 

omitted). Although counsel for the Borough admittedly 

misused the term "occupational therapy," the idea behind 

his argument did have a basis in the record. 

The Borough introduced testimony that Florida, where 

Waldorf now lives, and New Jersey, both offer rehabilitation 

service systems that assist disabled individuals to locate 

jobs through the administration of aptitude tests, the 

provision of job locators, and the adaptations of workplace 

environments. All of these services are government funded. 

See app. at 344-45. Therefore, the Borough's counsel had 

a basis in the record to argue that Waldorf had free services 

available to assist him in locating a job, even though the 

specific term the Borough used to describe such services 

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 is not 

"reasonably probable" that this misstatement influenced 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 expert, 

James Pascuiti, who is also a quadriplegic, by improperly 

trying to compare Pascuiti to Waldorf. Waldorf complains of 

two specific instances: (1) during Pascuiti's testimony, 

counsel for the Borough questioned him about his wedding 

ring; and (2) during the Borough's closing argument, 

counsel for the Borough improperly compared Pascuiti to 

 48 
Waldorf. These allegations also involve potentially improper 

behavior by counsel; therefore we review the district court's 

decision denying a new trial by reason of them under 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 Pascuiti, 

counsel for the Borough posed the following question: "Just 

one last question: What is that ring you are wearing on 

your left hand?" App. at 241. Before Waldorf 's counsel 

could object, Pascuiti responded: "[A] wedding band." Id. 

After Waldorf 's counsel objected, the district court 

"promptly issued a curative instruction. It said:`I ask the 

jury to disregard whether he wears a wedding band is 

immaterial to the case . . . I specifically instruct 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 prejudice 

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 influence the 

jury unduly. The district court immediately issued an 

instruction to the jury to disregard the question and the 

answer. The court also repeated this instruction to the jury 

during its charge, and told it not to use the reference in any 

way to decide the case. See app. at 348. Thus, although 

this irrelevant exchange occurred between counsel for the 

Borough and Pascuiti, the district court did not abuse its 

discretion in holding that its curative instructions were 

sufficient to prevent any prejudice to Waldorf. After 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 

 49 
closing argument by repeatedly describing Pascuiti's 

accomplishments after he became a quadriplegic. While 

playing football in high school in 1963, Pascuiti became a 

C6-C7 quadriplegic, the same injury that Waldorf suffered. 

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 became 

certified as a rehabilitation counselor. See app. at 244-46. 

During his closing argument, counsel for the Borough 

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 to these 

remarks when they were made, the district court held that 

Waldorf had waived any objection to them. Furthermore, 

the court stated that even if Waldorf had objected, it would 

have permitted the statements, because "[t]he Borough was 

simply restating information that had already been 

presented to the jury." Waldorf, 916 F. Supp. at 431. 

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 from 

seeking a new trial on the grounds of the impropriety of 

opposing counsel's closing remarks."). Waldorf failed to 

object at trial; therefore, we hold that the district court did 

not abuse its discretion in denying Waldorf 's motion for a 

new trial.13 

V. COLLATERAL SOURCE SET-OFF 

In its cross appeal, the Borough argues that the district 

court misapplied New Jersey law and improperly limited the 

amount of a collateral source set-off to which it was 

entitled. Under the New Jersey Tort Claims Act: 

 If a claimant receives or is entitled to receive benefits 

_________________________________________________________________ 

13. The Borough contends that the district court improperly excluded 

certain evidence but it raises this issue only in the 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. 

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

 benefits shall be disclosed to the court and the amount 

 thereof which duplicates any benefit contained in the 

 award shall be deducted from any award against 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 Act was 

intended to establish a structure to control the liability 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 disability 

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 Waldorf will 

receive in the future. 

In an order dated October 10, 1996, the district court 

granted the Borough's motion seeking a set-off against the 

jury's award in the amount of $80,559, which "represents 

the amount of social security disability benefits paid to 

Plaintiff from the date of the accident to the present date." 

App. at 36. However, the district court denied the 

Borough's motion for a set-off for future social security 

disability benefits that Waldorf might receive. The Borough 

contends that this limitation on the set-off was improper 

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 acknowledged 

that social security benefits are a potential collateral source 

payment subject to set off under N.J. Stat. Ann.S 2A:15-97 

(West Supp. 1997), applicable in general in personal injury 

and wrongful death actions, see, e.g., Thomas v. Toys `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 has 

 51 
addressed directly the issue of the set-off of future social 

security disability benefits under section 59:9-2(e) in a 

published opinion. Section 2A:15-97, like section 59:9-2(e), 

provides for collateral source set-off for any monies or 

benefits that a plaintiff "receives or is entitled to receive 

. . . ." The purpose behind this section is the same as 

section 59:9-2(e): to eliminate double recoveries by 

plaintiffs. See N.J. Assembly Insurance Comm. Statement, 

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 Statement, 

L. 1987, c. 326, S 1, N.J. Senate No. 2708 (Oct. 27, 1986). 

Because the collateral source provisions are so similar and 

the purposes behind the two sections are the same, we can 

infer from New Jersey courts' interpretation of section 

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 future 

social security disability payments as a collateral source 

under section 2A:15-97. The court held that this section 

required that the court deduct future benefits from the 

judgment, because the statute clearly requires the 

deduction of benefits that the plaintiff "is entitled to 

receive." Parker, 677 A.2d at 1162. Furthermore, such a 

deduction was warranted because "[t]he statute's purpose 

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 and fixed 

when judgment is entered on the verdict." Id. These benefits 

are those to which a "plaintiff has an established,

enforceable legal right when judgment is entered and which 

are not subject to modification based on future 

unpredictable events or conditions. In other words, future 

collateral benefits are deductible only to the extent that 

 52 
`they can be determined with a reasonable degree of

certainty.' " Id. at 1162-63 (quoting Buchman v. Wayne 

Trace Local Sch. Dist., 652 N.E.2d 952, 958 (Ohio 1995)). 

Applying this rule, the Parker court recognized that "there 

was substantial evidence at trial that plaintiff can be 

gainfully employed, though not at the salary he earned 

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, because of 

such factors as "his [future] condition or[potential] 

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 security 

benefits that Waldorf might receive. Social security 

disability payments are available only to individuals 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). Furthermore, 

section 423(f) provides that a recipient of social security 

disability benefits may have those benefits terminated 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 now able to 

engage in substantial gainful activity" or if such evidence 

demonstrates that "[a]lthough the individual has not 

improved medically, he or she has undergone vocational 

therapy (related to the individual's ability to work), and 

[t]he individual is now able to engage in substantial gainful 

activity . . . ." 42 U.S.C. S 423(f). Thus, the social security 

statute clearly provides that disability benefits can be 

terminated if a recipient does not remain under a disability 

that prevents him from working. 

The Borough presented the expert testimony of Rizzo and 

Pascuiti, both of whom testified that Waldorf is capable of 

obtaining and holding employment. In addition, Waldorf 's 

 53 
own experts agreed that Waldorf was capable of working. In 

light of this testimony, as the court held in Parker with 

respect to the plaintiff there, we hold that it is uncertain 

whether Waldorf will continue to receive his disability 

benefits. Therefore we will affirm the district court's 

determination that the Borough may receive a set-off only 

in the amount of $80,559.14 

VI. CONCLUSION 

Having determined that we have jurisdiction over the 

present appeal and cross appeal, we will affirm the orders 

of the district court and uphold the judgment in favor 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 did not 

abuse its discretion in denying Waldorf 's motion for a new 

trial based on the jury's consideration of mitigation 

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 Borough 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 met 

Waldorf 's expectations, and, indeed, may have been less 

than we would have awarded if we had fixed the damages 

de novo on the basis of the record, it will provide a small 

_________________________________________________________________ 

14. We also reject the Borough's argument that the appropriate date for 

determining when such benefits are fixed and determinable should not 

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

rather should be fixed as of the date that this litigation finally 

concludes, 

presumably when a final verdict is rendered in the liability trial. As we 

have stated in this opinion, the Borough does not have any remaining 

claims or defenses against Waldorf to advance in any future liability 

trial, and the judgment against the Borough is final. The district court 

cannot and should not retain jurisdiction over Waldorf 's claim against 

the Borough merely to continue to deduct collateral source set-off 

benefits. The aspect of this litigation with respect to the Borough's 

liability to Waldorf should be at an end even if the case otherwise 

continues. Therefore, we reject the Borough's argument for a continuing 

set-off. 

 54 
measure of comfort for the horrific injuries that he 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 orders of the 

district court. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

15. We understand that as of this time only the liability 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 case are resolved, the 

parties cannot settle the remaining issues so that this litigation which 

is 

over 13 years old can be ended. 

 55