NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0794-15T3

REGINA LITTLE, on behalf of 

herself and all others 

similarly situated,

Plaintiff-Appellant/

Cross-Respondent,

v.

KIA MOTORS AMERICA, INC.,

Defendant-Respondent/

Cross-Appellant.

_____________________________

Argued May 16, 2018 – Decided July 18, 2018

Before Judges Koblitz, Manahan and Suter.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Docket No. L-0800-

01.

Michael D. Donovan (Donovan Axler, LLC) of the 

Pennsylvania bar, admitted pro hac vice,

argued the cause for appellant/crossrespondent (Schnader Harrison Segal & Lewis, 

LLP, Francis and Mailman, PC, Feldman Shepherd 

Wohlgelernter Tanner Weinstock Dodig, LLP, and 

Michael D. Donovan, attorneys; Michael D. 

Donovan, Lisa J. Rodriguez, James A. Francis, 

Edward S. Goldis and Alan M. Feldman (Feldman 

Shepherd Wohlgelernter Tanner Weinstock 

Dodig, LLP) of the Pennsylvania bar, admitted 

pro hac vice, on the brief).

Roberto A. Rivera-Soto argued the cause for 

respondent/cross-appellant (Ballard Spahr,

APPROVED FOR PUBLICATION

July 18, 2018

APPELLATE DIVISION
2 A-0794-15T3

LLP, attorneys; Roberto A. Rivera-Soto, Neal 

D. Walters, Michael R. Carroll and Michele C. 

Ventura, on the brief).

The opinion of the court was delivered by

KOBLITZ, J.A.D.

In this class action against defendant Kia Motors America, 

Inc. (KMA), plaintiff class of 8455 Kia Sephia owners and lessees 

represented by Regina Little proved at a jury trial that the 

Sephia, model years 1997 through 2000, had a defective front brake 

system, which caused premature brake pad and rotor wear. 

Concluding that the defect amounted to a breach of express and 

implied warranties, and that all owners had suffered damage due 

to the defect, the jury awarded each member of the class $750 

($6.3 million total) in repair damages. 

Determining for the first time post-trial that repair damages 

could not be awarded on a class-wide basis because they were 

dependent upon individual factors, the trial court granted KMA's 

motion for judgment notwithstanding the verdict (JNOV) on the 

repair damages award, decertified the class for purposes of 

damages, and ordered a new trial on repair damages only, to proceed 

by way of claim forms. With the advantage of recent case law 

unavailable to the trial judge, we now reverse, reinstate the jury 

award and remand for determination of counsel fees.
3 A-0794-15T3

I.

We recount only the facts and procedural history relevant to 

this appeal. We begin with the procedural history. On June 26, 

2001, Little filed an amended class action complaint on behalf of 

herself and others similarly situated, against defendant, a 

California corporation with offices in New Jersey. The putative 

class alleged that the Sephia had a defective front brake system

and asserted causes of action for: fraudulent business practices 

in violation of California law and the New Jersey Consumer Fraud 

Act (CFA), N.J.S.A. 56:8-1 to -210; breach of an express warranty; 

breach of the implied warranty of merchantability; and failure to 

comply with the federal Magnuson-Moss Warranty Improvement Act 

(MMWA), 15 U.S.C. §§ 2301 to 2312.

In August 2003, the court granted class certification. Prior 

to trial, the trial judge heard a number of pretrial motions on 

the admissibility of evidence. Defendant moved unsuccessfully to 

exclude as net opinions the class expert testimony of Raymond 

King, on repair damages, and John Matthews, on diminution of value 

damages.

After a month-long trial, in June 2008 the jury returned a 

verdict finding that defendant had breached the express and implied 

warranties as well as the MMWA, but that it had not violated the 

CFA. The jury found that the class had suffered damages and 
4 A-0794-15T3

awarded each member repair damages. It awarded no damages for 

diminution in value.

In a November 24, 2008 written decision, the trial judge

granted defendant's motion for JNOV as to repair damages only, 

decertifying the class for purposes of damages only based on the 

finding that individual factors predominated, and ordered a new 

trial on repair damages to proceed by way of claim forms.

In a January 2011 decision, another judge granted plaintiff's 

motion to recertify the class, explaining that individual damages 

issues did not require decertification. This judge appointed a 

special master. In an August 12, 2011 order, without having read 

the record and based on the special master's recommendation, the 

motion judge vacated the zero diminution in value jury award to 

allow the master to consider damages for all class members on any 

applicable theory of recovery.

In a published decision dated April 2, 2012, we reversed the 

August 12, 2011 order because the motion judge had improperly 

vacated the jury's finding of no diminution in value damages 

without first canvassing the record to determine whether that 

aspect of the verdict resulted in a manifest denial of justice. 

Little v. KIA Motors Am., Inc., 425 N.J. Super. 82, 89-91 (App. 

Div. 2012). Further, the motion judge's decision was inconsistent 

with the law of the case doctrine, since the trial judge's decision 
5 A-0794-15T3

on the limited new trial had controlled the proceedings for nearly 

three years. Id. at 93. 

On remand, the motion judge appointed a new special master

to adjudicate the claims. In August 2013, she accepted the new 

special master's finding that only 150 claimants had proven their 

damages, and his recommendation of a total award of $46,197. 

Little was not among the members for whom he recommended recovery.

In January 2015, class counsel requested an award of 

$6,055,916 in attorney fees and $481,850 in costs of suit, with 

pre- and post-judgment interest, pursuant to the MMWA. After 

reducing the class's attorney fee award based on the paucity of 

damages it recovered, on May 6, 2015, a new motion judge ordered 

defendant to pay: $200,000 for the class's attorney fees, plus 

$19,113 in prejudgment interest; $481,850 in fees and costs of 

suit; and $5000 to Little as an incentive award.

II.

At trial, plaintiff demonstrated a defect in the Sephia's 

brakes. Defendant began selling the Sephia in New Jersey in 1997. 

Raymond King, plaintiff's expert in mechanical engineering and 

repair damages, explained that when a driver presses the brakes, 

hydraulic pressure forces brake fluid into a brake caliper, which 

causes the brake pads to squeeze against the rotors and decrease 

the spinning of the wheel. The pressure of the brake pads against 
6 A-0794-15T3

the rotors causes friction, which produces heat. The hotter the 

brake system becomes, the faster the brake pads and rotors wear.

Based on the documents from defendant that King had reviewed, 

as well as deposition testimony from defendant executives, King 

concluded that the Sephia's front brake system had a systemic 

design defect that did not allow for the proper dissipation of 

heat. This defect caused a premature wear of the brake pads, 

pulsating or grinding brakes, warped or prematurely worn rotors, 

and shaking or vibration (also called shudder or judder) when the 

driver applied the brakes. Repairs or replacement of the brake 

pads and rotors failed to correct the problem. 

To reach this conclusion, King reviewed a standardized 

industry report; Quality Assurance Field Product Reports and 

District Parts and Service Manager Reports, drafted by defendant's 

mechanics and managers throughout the United States; defendant's

Technical Assistance Center Incident Reports; Technical Service 

Bulletins; and defendant's warranty brake claims data.

The parties stipulated that from 1997 to 2000 a total of 8455 

Sephias were sold in New Jersey. Defendant's warranty repair data 

showed that the total number of warranty repairs to front brake 

components on the Sephia in New Jersey was about 8400. Defendant

sold 42,713 model year 1997 Sephias in the United States. The 

warranty claim rate nationally for that model's brakes was 92%. 
7 A-0794-15T3

King testified that he had never before seen a warranty claim rate 

that high. In his view, it "screamed" that there was a problem 

with the brake system. The following years the model had similarly

high claim rates.

In January 2002, Kia Motors Corporation (Kia Motors), KMA's

parent company based in South Korea, issued a technical services

bulletin introducing newly designed brake pads and rotors, known 

as the "field fix." The updated pads were not compatible with the 

original rotors; thus, both had to be replaced as a set. This was 

an improvement, King said, but it failed to meet the 20,000-mile 

standard. At most, the field fix brake pads lasted 14,000 to 

15,000 miles.

In addition to reviewing Kia Motors' documents, King 

inspected the cars belonging to Little and Samuel-Basset (the 

named plaintiff in a Pennsylvania class action against defendant, 

Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1 (Pa. 2011)). 

King found nothing remarkable about either car in general, or the 

brake system in particular, that would have caused premature brake 

pad and rotor wear, and nothing to suggest that driving habits had 

caused the premature brake wear.

After surveying five Kia dealerships, King estimated that an 

owner would spend about $250 for a brake repair. Defendant's 

documents showed brake replacements when cars had as little as 
8 A-0794-15T3

2000 miles, and others at more than 10,000 miles. On average, a 

Sephia would need a brake replacement every 10,000 miles. In 

King's experience, and based on industry data he reviewed, cars

typically lasted 100,000 miles, or seven to eight years.

Based on a life of 100,000 miles, and the need for a brake 

repair every 10,000 miles, King estimated an owner would incur ten 

brake repairs over the life of the car, doubling the normal repair

expense due to the defective brake system. As a result, the owner 

would incur $1250 in additional repair expenses (five times $250) 

due to the defective brake system.

On cross-examination, King conceded that the $1250 brake 

repair costs would not apply to someone who had brake replacements 

at 20,000-mile-or-more intervals, or to someone who had each brake

replacement paid under warranty. He also admitted that his damages 

model did not conform exactly to Little's experience.

Little testified that in January or February 1999, she 

purchased a new Sephia for $13,288. Her constant brake problems 

began within two weeks. She testified that for the three years 

she owned the car, a set of brakes lasted no more than six to 

seven months.

Plaintiff read into the record a portion of the deposition 

testimony of several individuals, including defendant KMA's 

Director of Technical Operations, Timothy McCurdy, who testified 
9 A-0794-15T3

that defendant had been aware of the brake issue based on the rate 

of repairs, and that it had taken steps to address it by relaying 

the complaints to Kia Motors.

A "major cause" of these problems was improper dissipation 

of heat. While there was no set standard for the life of brakes, 

McCurdy said that consumers typically expected them to last 20,000 

miles. One study from Kia Motors reported that the 1999 Sephia 

had a brake pad life of 16,000 miles. Defendant notified Kia 

Motors that 16,000 miles was not acceptable, since brake pads 

should last at least 20,000 miles.

Defendant did not cover the brake pads under warranty, but 

it did cover defects in the brake system under the three-year or 

36,000 mile warranty. In model year 2002, Kia Motors replaced the 

Sephia with the Kia Spectra. The Spectra was "the same basic 

car," but with a different brake system. None of Kia Motors'

vehicles, including the Spectra, had brake repair rates as high 

as the Sephia's.

Kia Motors Deputy General Manager Young Sun Sohn's deposition 

testimony revealed that when Kia Motors developed the Sephia, the 

specification for the brake pads was that they achieve a life of 

20,000 kilometers, or just under 12,500 miles.

Lee Sawyer, defendant's Senior Vice President of Fixed 

Operations, testified at deposition that some Sephias had brakes 
10 A-0794-15T3

that wore prematurely. Typically, brake pads lasted 20,000 to 

25,000 miles before needing replacement. "Some of the Sephia 

owners were experiencing brake pad life in the [ten] to [twelve 

thousand] mile range."

Defendant became aware of the Sephia brake problem within the 

first year of sales based on warranty claims and brake pad orders 

from the parts department. After the first year, defendant also 

noticed an increase in part orders for rotors, which usually last

50,000 to 75,000 miles.

While defendant's policy was to exclude brakes from the 

warranty, some dealers covered brake pad replacements as warranty 

repairs or as goodwill repairs, both at no charge to the owner. 

Dealers did this because they knew that there were problems with 

the brakes.

Sawyer said that McCurdy had an engineer investigate the 

brake issue and send a report to Kia Motors' headquarters. At 

some point, a South Korean engineer met with someone at KMA and 

said the brakes had to be redesigned with better quality material.

Michelle Cameron, defendant's Manager for Consumer Affairs, 

testified that people who answered complaints through defendant's 

call center were trained to notify callers that brakes were not 

covered under the warranty.
11 A-0794-15T3

Plaintiff presented expert testimony from John Matthews, a

professor at the University of Wisconsin School of Business, on 

diminution damages. In Matthews's opinion, Sephia owners paid 

about $2000 more for their Sephia than the car was worth as a 

result of the defective brake system.

Matthews computed the diminution in value based on Sephia's 

value retention at the time of resale. The 1998 model's initial 

sale price was $10,000, but it retained only forty percent of that 

value, or $4000, while comparable cars retained fifty percent of 

value, or $5000, at resale. Matthews concluded that double the 

actual resale value, or $8000, was thus the true value of the 

Sephia at the time of purchase.

Matthews testified that the diminution in value was a result 

of the defective brake system. Not only were owners aware of the 

problems, but defendant's dealers were also aware of the problems, 

based on the Technical Service Bulletins that Kia Motors had

distributed. This knowledge drove down the price that people were 

willing to pay for a used Sephia.

On cross-examination, Matthews said that the diminution in 

value was not dependent on the number of brake repairs the car

had, but rather, on the market perception of a car with a faulty 

brake system.
12 A-0794-15T3

III.

The defense did not deny the Sephia had brake problems. 

Donald Pearce, defendant's Vice President of Parts and Service,

testified that a database recorded the following dates of brake

repairs to Little's car as warranty repairs: September 1999, 

April 2000, and June 2000. He said defendant had difficulty 

addressing the brake system complaints because the complaints 

differed: some related to noise, others had to do with judder,

and some related to premature wear. Based on data he had seen, 

Pearce said that $250 was a reasonable charge to replace brake 

pads and rotors.

Larry Douglas Petersen, defendant's expert in auto 

engineering and design and warranty data analysis, testified that 

he was not aware of any industry standard or expectation for the 

life of brake pads. He believed the rate at which brake pads wore 

was dependent on environmental conditions, driving habits, type 

and size of the car, and design and construction of the brake pads 

and brake system.

Petersen did not believe that the problem with the Sephia 

brake system was due to heat and the system's inability to 

dissipate it. Instead, he opined that the problem was the result 

of low-quality rotors provided by the vendor. He based this 
13 A-0794-15T3

primarily on the warranty data he had seen, which suggested that 

the problem related primarily to the rotors.

On cross-examination, Petersen said that McCurdy's goal was 

that brake pads would last 20,000 miles. Petersen was not aware 

of any test where the Sephia brake pads achieved that goal.

Petersen testified that defendant did not provide him, nor 

did he request, information on brake repairs not covered under 

warranty. He believed, however, the dealerships would have had 

that information. With respect to recalls, Petersen believed auto 

companies only issued them for safety concerns. He also testified 

that if a car had a design defect, all owners would experience the 

problem.

Bruce Strombom, defendant's expert in statistics, economic 

analysis, loss causation, and damage calculation, disagreed with 

Matthews's conclusion that the faulty brake system caused 

excessive depreciation or diminution in value. Strombom's opinion 

was that Matthews's overpayment formula failed to account for the 

difference in purchase price and length of ownership, and the 

comparison groups that he used resulted in an overstatement of 

damages. Matthews also failed to account for other explanations 

for the Sephia's increased rate of depreciation, such as decreased 

purchase price, problems with the fuel pump and seatbelt, and low 

quality-rating score. Thus, a major flaw in Matthews's analysis 
14 A-0794-15T3

was that he failed to establish a link between depreciation and

the brakes.

Defendant also called as witnesses three Sephia owners who 

had opted out of the class because they were all satisfied with 

their cars and had experienced no problems with the brakes.

IV.

The jury returned a verdict finding that defendant had 

breached its express warranty, the implied warranty of 

merchantability, and the MMWA. In answering the question, "Did 

the class sustain damages?" the jury answered "yes." The verdict 

sheet then asked the jury to specify the amount of damages that

each class member had incurred for "the difference in value, if 

any, of the Sephia as warranted compared to the Sephia as 

delivered," and the amount for "repair expenses reasonably 

incurred as a result of defendant's breach of warranty." The jury 

answered zero for diminution in value, and $750 for repair 

expenses.

In a November 2008 written decision, the trial judge found 

the evidence supported the jury's finding of liability, but that 

she had erred in submitting the question of repair damages to the 

jury because those damages were dependent upon individual factors, 

and thus, could not be awarded on a class-wide basis. She granted 

defendant's motion for JNOV as to repair damages only, decertified 
15 A-0794-15T3

the class for purposes of damages, and ordered a new trial on 

repair damages to proceed by way of claim forms.

The trial judge cited Kyriazi v. Western Electric Co., 647 

F.2d 388, 392 (3d Cir. 1981), in ordering the claim-form 

proceeding. Kyriazi is a class action sex-discrimination 

employment case, where the trial court found in the liability 

phase of the litigation that the employer had a policy of 

discrimination against women. Id. at 390. In the damages phase, 

the court ordered the class members to submit claim forms to a 

special master who would presume each claim valid and consider any 

employer challenges at a hearing. Id. at 390-91. Here, after 

significant motion practice over the exact parameters of the claimform process, the result was a hugely reduced total damages amount 

of $46,197.

V.

Plaintiff contends that the trial judge erred in granting 

defendant's motion for JNOV and vacating the $750 repair expenses 

award for each class member. It argues that the award was (a) 

consistent with the Uniform Commercial Code (UCC), N.J.S.A. 12A:2-

714, which allows for a reasonable estimate of damages in a breach 

of warranty case; (b) consistent with breach of contract damages 

in a class action; and (c) supported by the evidence.
16 A-0794-15T3

In considering a motion for JNOV, a trial court and a 

reviewing court apply the same standard: "[I]f, accepting as true 

all the evidence which supports the position of the party defending 

against the motion and according [it] the benefit of all inferences 

which can reasonably and legitimately be deduced therefrom, 

reasonable minds could differ, the motion must be denied . . . ." 

Boyle v. Ford Motor Co., 399 N.J. Super. 18, 40 (App. Div. 2008) 

(quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). 

Pursuant to Rule 4:49-1(a), a trial court may grant a new 

trial "as to all or part of the issues" decided at trial. "The 

trial judge shall grant the motion if, having given due regard to 

the opportunity of the jury to pass upon the credibility of the 

witnesses, it clearly and convincingly appears that there was a 

miscarriage of justice under the law." R. 4:49-1(a).

A jury verdict is entitled to considerable 

deference and "should not be overthrown except 

upon the basis of a carefully reasoned and 

factually supported (and articulated) 

determination, after canvassing the record and 

weighing the evidence, that the continued 

viability of the judgment would constitute a 

manifest denial of justice." That is, a 

motion for a new trial "should be granted only 

where to do otherwise would result in a 

miscarriage of justice shocking to the 

conscience of the court." In fact, in Carey 

v. Lovett, 132 N.J. 44, 66 (1993), we 

expressly stated that a "trial court should 

not disturb the amount of a verdict unless it 

constitutes a manifest injustice . . . ."
17 A-0794-15T3

[Risko v. Thompson Muller Auto. Grp., Inc., 

206 N.J. 506, 521 (2011) (first quoting Baxter 

v. Fairmont Food Co., 74 N.J. 588, 597-98 

(1977); then quoting Kulbacki v. Sobchinsky, 

38 N.J. 435, 456 (1962)).]

The trial judge vacated the $750 repair damages award on the 

ground that only diminution in value applied to the class as a

whole. She believed she had erred in submitting repair damages 

to the jury for consideration, explaining that those damages were 

dependent on the actual expenses incurred by each class member. 

The judge said: 

The jury determined that [p]laintiff had not 

proven a diminution in value of the Kia 

automobiles. Such a finding would result in 

damage throughout the class. The jury instead 

determined that class members suffered losses 

of $750 due to the defective brake system. 

This court is convinced this finding was based 

upon an erroneous submission by the court of 

the jury question and accompanying 

instructions. The damages suffered by each 

class member are dependent on numerous 

variables, such as brake life, frequency of 

repair, driving habits and length of time the 

car was owned. These damages cannot be 

ascertained on a class wide basis, and the 

court's decision to submit same to the jury 

was error. 

We note that where theories of damages may impact one another, 

the court must order a new trial on damages as a whole and may not 

order a new trial on only one theory of damages. Donovan v. Port 

Auth. Trans-Hudson Corp., 309 N.J. Super. 340, 353 (App. Div. 

1998) (ordering a new trial on damages as a whole where future 
18 A-0794-15T3

wage loss could impact pain and suffering damages, even though the 

jury's pain and suffering award was supported by the evidence and 

law). Here, the judge instructed the jury it could award damages

based on a diminution of value or repair expenses, or both. The 

judge did not tell the jury of any ramifications if only repair 

damages were awarded. A court may not grant a new trial on a 

discrete issue unless that issue is "fairly separable from the 

other issues" in the case. Corridon v. City of Bayonne, 129 N.J. 

Super. 393, 398 (App. Div. 1974). As explained to the jury, the 

two types of damages were not fairly separable from each other.

On appeal, plaintiff contends the judge erred in finding that 

repair damages could not be awarded on a class-wide basis. All 

class members purchased a car with the same faulty brake system, 

which, according to defendant's records, required a brake repair 

about every 10,000 miles. As King testified, based on the average 

life of a car (100,000 miles) and the undisputed cost of a brake 

repair ($250), one could accurately estimate each class member's 

average repair damages resulting from defective brakes.

Plaintiff contends that King's method of estimating damages 

was consistent with the UCC standard for determining contract 

damages, as that standard allows for the computation of damages 

based on any reasonable method that places the plaintiff in the 

position he or she would have been in had the defendant not 
19 A-0794-15T3

breached the contract, or warranty, as in this case. See N.J.S.A. 

12A:2-714.

Defendant argues that proof of a product defect does not 

equate to proof of damages, and it disputes that New Jersey law 

allows for the averaging of damages. It argues that the class 

must prove damages for each individual class member and the 

relatively few claims submitted during the claim-form process show 

that King's estimate was incorrect and was nothing more than a net 

opinion, unsupported by fact.

Because the jury found the claims for breach of express and 

implied warranties were established, the UCC provides the starting 

point for assessing damages. N.J.S.A. 12A:2-313 (express 

warranties); N.J.S.A. 12A:2-314 (implied warranty of 

merchantability); N.J.S.A. 12A:2-315 (implied warranty of fitness 

for a particular purpose); N.J.S.A. 12A:2-714 (buyer's damages for 

breach of accepted goods); N.J.S.A. 12A:2-719 (modification of 

remedy).

The trial judge's interpretation of those statutes as applied 

to this case are entitled to no deference, as they entail matters 

of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995) ("A trial court's interpretation of the law 

and the legal consequences that flow from established facts are 

not entitled to any special deference.").
20 A-0794-15T3

The jury in this case found no diminution in value damages. 

In most breach of warranty cases, diminution in value, or the 

difference between the goods as delivered and as warranted, 

provides the proper measure of damages. Perth Amboy Iron Works, 

Inc. v. Am. Home Assurance Co., 226 N.J. Super. 200, 219 (App. 

Div. 1988). However, repair damages may be appropriate, depending 

on the facts of the case. Ibid.; accord Furst v. Einstein Moomjy, 

Inc., 182 N.J. 1, 13 (2004) (applying UCC principles to a consumer 

fraud case and concluding that the cost of replacing a damaged 

carpet was the appropriate measure of damages, as that method put 

the buyer in the position he would have been in if he had received 

a non-defective carpet). Diminished resale value or the cost of 

a retrofit repair may also provide a reasonable measure of damages. 

In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 

768, 816-17 (3d Cir. 1995) (emphasizing, in a class action suit, 

that section 2-714(1) of the UCC allows for damages "as determined 

in any manner which is reasonable"). 

Our Supreme Court explained that breach of contract 

compensatory damages are intended to put the injured party in the 

position he or she would have been in had the goods been delivered 

as promised. 525 Main St. Corp. v. Eagle Roofing Co., 34 N.J. 

251, 254 (1961). "Although specific rules are formulated for 

sundry situations, they are subordinate to this broad purpose"; 
21 A-0794-15T3

thus, "a given formula is improvidently invoked if it defeats a 

common sense solution" to computing damages. Ibid.

Breach of contract damages need not be established with exact 

certainty:

[M]ere uncertainty as to the quantum of 

damages is an insufficient basis on which to 

deny the non-breaching party relief. Although 

it complicates the precise calculation of 

damages, our courts have long held that 

"[p]roof of damages need not be done with 

exactitude. . . . It is therefore sufficient 

that the plaintiff prove damages with such 

certainty as the nature of the case may 

permit, laying a foundation which will enable 

the trier of the facts to make a fair and 

reasonable estimate." 

[Totaro, Duffy, Cannova and Co., LLC v. Lane, 

Middleton & Co., LLC, 191 N.J. 1, 14 (2007) 

(quoting Lane v. Oil Delivery Inc., 216 N.J. 

Super. 413, 420 (App. Div. 1987)).]

As explained in the Restatement (Second) of Contracts: 

Alternative to Loss in Value of Performance § 348 (Am. Law Inst.

1981), a small windfall to the injured party based on an inability 

to prove exact damages should not defeat recovery. Also, the 

injured party need not prove that he or she actually spent the 

money to repair the defect in order to recover for the breach. 

Cox v. Sears Roebuck & Co., 138 N.J. 2, 22 (1994).

Those principles support the class's argument that breach of 

contract damages are not limited to the actual out-of-pocket 

expenses that each class member incurred, but rather, are proper 
22 A-0794-15T3

if based on any reasonable method that places the class members 

in the position they would have been in if KMA had provided a car

free of a defective brake system. King and Matthews provided two 

ways the jury could reasonably compute damages. King's formula 

estimated the additional repair expenses the class would incur as 

a result of the defective brake system, while Matthews's formula 

estimated the diminution in value between the Sephia as warranted 

and the Sephia as delivered.

A net opinion is an expert opinion that is not supported by 

facts and data. Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008) 

(discussing the requirements of N.J.R.E. 703). King's opinion, 

which is the only one that defendant claims on appeal is a net 

opinion, was based on the average life of the car (100,000 miles), 

the expected life of brake pads (20,000 miles), the average cost 

of a brake repair ($250), and defendant's warranty repair data. 

King's trial testimony provided examples of the claims, which

supported his conclusion that, on average, the Sephia needed a 

brake repair every 10,000 miles. 

Defendant did not dispute that the average life of a car was 

100,000 miles, and it conceded the average cost of a brake repair 

($250) and the expected life of brake pads (20,000 miles). While 

it did not concede that the Sephia needed a brake repair every 

10,000 miles, it provided no evidence to challenge that figure, 
23 A-0794-15T3

other than the testimony of three class members who had opted out 

of the class because they had experienced no brake problems with 

their cars. The experience that those three owners had, out of 

an 8455-person class, does not outweigh the voluminous evidence

that supported King's 10,000-mile brake-repair average. 

It is worth noting that during the jury charge conference, 

the trial judge considered the propriety of the class's two 

theories of damages for a second time. In disagreeing with an 

argument raised by defendant that the jury could award diminution 

in value damages, or repair damages, but not both, the judge said 

that the jury was free to determine damages in any reasonable 

manner to make the aggrieved party whole. The jury could find 

both that the class members overpaid for their cars, and that they 

incurred additional repair expenses as a result of the faulty 

brake system. Both theories of damages presented by the class 

were proper considerations for the jury.

In ruling JNOV that class-wide damages could not be calculated 

pursuant to King's model, the trial judge relied primarily on our 

decision in Muise v. GPU, Inc., 371 N.J. Super. 13 (App. Div. 

2004). In Muise, two groups of GPU customers filed suit against 

GPU after experiencing power outages during a heat wave. Id. at 

18-20. The plaintiffs sought damages for the loss of power based 

on consumer fraud, negligence and breach of contract. Id. at 18. 
24 A-0794-15T3

The trial court initially granted class certification to all New 

Jersey customers of GPU, and about 2500 customers submitted claims 

ranging in value from $1 to $150,000. Id. at 23.

Only the negligence claim survived summary judgment. Id. at 

20. GPU moved to decertify the class, and the class moved for a 

declaration of admissibility of their experts' survey-based method 

of computing damages for the class. Ibid. The class-wide damages 

model valued hypothetical power outages based on surveys of 

electrical customers in California and Canada. Id. at 24. The 

experts "adapted this data to New Jersey in order to 'estimate 

customer damages resulting from GPU service interruptions from 

July 4 to 10, 1999.'" Ibid. (quoting the experts' report).

The experts recognized that their survey model of damages was 

limited, and admitted that their "results were predictions and 

estimations based on survey scenarios" that reflected what some 

class members had experienced. Ibid. The exact cost of power 

loss was dependent upon socioeconomic, demographic and geographic 

factors. Id. at 24-25. 

The trial court concluded that the class-wide model of damages 

was not reliable, as it was based on hypothetical estimates that 

did not reflect actual damages in the case. Id. at 28. The trial 

judge recognized that individualized proofs of damages were not 

necessary so long as the class-wide damages model was based on a 
25 A-0794-15T3

reliable mathematical formula. Id. at 47. This formula, however,

was hypothetical and unreliable. Ibid. Further, the class had 

failed to prove actual damage, or harm as a proximate cause of 

power loss; experiencing a break in power did not necessarily 

result in actual harm. Ibid.

We agreed. As the trial court had recognized, proof of 

individual damages was the norm, and a court should depart from 

that norm only if (a) there was proof, or at least a presumption, 

that the class members sustained damage, and (b) there was a 

reliable mathematical formula to compute the estimated or 

aggregated damages. Ibid. (citing In re Prudential Ins. Co. of 

Am. Sales Practices Litig., 962 F. Supp. 450, 517 (D.N.J. 1997),

aff'd in part, vacated in part on other grounds, 148 F.3d 283 (3d 

Cir. 1998), where "[t]he court acknowledged that the possible 

methods of proving the amount of damages included expert testimony 

estimating aggregate damages sustained by the class, or a formula 

to be applied to individual class members" so long as "sufficient 

facts [are] introduced so that a court can arrive at an intelligent 

estimate without speculation or conjecture"). 

While we agreed with the trial court that class certification 

was not appropriate for all New Jersey customers, we concluded 

that certification was appropriate for a more limited class, 

namely, customers in Red Bank "whose outages directly resulted 
26 A-0794-15T3

from the alleged negligence in delaying the replacement of the 

transformers in the Red Bank substation." Id. at 64. We

recognized that individual damages issues might still exist with 

respect to the limited class, but concluded that those damages 

issues could be addressed through a number of techniques, including 

claim forms, interrogatories, requests for admissions, and 

"statistical interpretation of sampling data from the relevant 

universe, established based on competent data." Ibid.

Here, King based his class-wide model for damages on: actual 

brake repairs that Sephia owners had experienced, as evidenced by 

defendant's warranty repair documents; studies that defendant

produced on the duration of brake pads and rotors in the Sephia; 

reports on defendant's efforts to improve the duration of the 

Sephia brake system; and testimony from defendant's executives on 

the brake system. As the Muise decision makes clear, so long as 

a plaintiff-class establishes proof of damage, or at least a pretrial presumption of damage, the class need not prove individual 

damage, but may instead present class-wide average damages based 

on a reliable mathematical formula. 

The trial judge did not have the advantage of reviewing the 

2011 Pennsylvania Supreme Court opinion, supporting the propriety 

of the verdict in that sister-case. Samuel-Bassett, 34 A.3d at

11-13. King also testified as the plaintiff's expert in 
27 A-0794-15T3

Pennsylvania. The Samuel-Bassett jury found that KMA had breached 

its express and implied warranties, and awarded each of the 9400 

Pennsylvania class members $600 (about $5.6 million for the class) 

in repair damages. Id. at 13. After the trial court denied KMA's 

motion for JNOV, it awarded the class $4,125,000 in counsel fees 

and $267,513 in costs of suit. Ibid. 

In finding that KMA's challenges lacked merit, the SamuelBassett majority began by discussing the facts that established 

class-wide liability. Id. at 35-36. The majority said that 

deposition testimony from the same KMA executives who testified

or whose deposition testimony was presented in this case (McCurdy, 

Sawyer, Pearce and Sohn), along with KMA's internal documents,

established that all Sephias had the same defective front brake 

system that did not allow for proper dissipation of heat. Id. at 

35-36. This resulted in premature brake pad wear and warping of 

the rotors, which required excessive repairs. Id. at 36.

The majority found that the class had "adduced sufficient 

evidence to prove" that each member suffered damages. Id. at 37. 

Two of KMA's executives (Pearce and Cameron) had testified that 

while KMA had paid for some repairs under warranty, a coupon 

program and good will replacements, KMA's policy was to exclude 

brake repairs from the warranty as wear-and-tear items. Ibid. 

"As a result [Sephia] owners sustained out-of-pocket repair costs 
28 A-0794-15T3

estimated by [King] at approximately $1005 over the life of their 

Kia Sephia." Ibid.

King had "estimated that each vehicle underwent five extra 

repairs in addition to wear-and-tear replacements of brake pads 

and rotors." Ibid. The majority said:

This calculation, of course, does not account 

for factors such as: whether class members 

owned their vehicles over 100,000 miles, 

whether each class member experienced exactly 

five additional repairs, and whether any 

additional repairs were covered under 

warranty. Indeed, warranty data introduced 

at trial reflected that KMA covered some of 

the brake component replacements under good 

will and brake coupon programs, which 

suggested that a number of the estimated 

repairs for the class did not in fact cause 

class members out-of-pocket expenses. 

[Ibid.]

The majority noted that KMA's defense had centered on 

undermining the allegation of a defective system and questioning 

whether the alleged defect had affected each owner in the class, 

particularly since brake wear depended upon many variables. Id.

at 37. 

The majority found unpersuasive the one dissenting judge's 

criticism that the class's aggregate approach to damages "blur[ed] 

the substantive requirements of the law of damages," which 

generally required proof of individual damages. Id. at 40 (citing 

Scottsdale Mem'l Health Sys., Inc. v. Maricopa Cty., 228 P.3d 117, 
29 A-0794-15T3

133 (Ariz. Ct. App. 2010) (rejecting an argument that calculating 

damages based on a statistical sample violated due process); In 

re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 

197-99 (1st Cir. 2009) (holding: "Aggregate computation of class 

monetary relief is lawful and proper. Courts have not required 

absolute precision as to damages."); Hilao v. Estate of Marcos, 

103 F.3d 767, 784-86 (9th Cir. 1996) (finding no due process 

violation in a formula that aggregated damages based on a sample)). 

The majority noted that the United States Supreme Court had 

also rejected the notion that a jury may not estimate damages. 

Ibid. (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 

U.S. 100, 124 (1969), for the proposition that "[a]lthough the 

factfinder is not entitled to base a judgment on speculation or 

guesswork, the jury may make a just and reasonable estimate of the 

damage based on relevant data, and render its verdict 

accordingly"). Thus, the majority affirmed the trial court's 

decision denying KMA's motion for JNOV. Ibid.

Samuel-Bassett majority's decision is consistent with New 

Jersey law on breach of contract damages in a class action. King's 

testimony here provided a reasonable basis for an aggregation of 

damages award, and the jury accepted that basis in computing 

damages. It did not award the full amount of damages that King 

had estimated ($1250), but instead decreased the amount by $500, 
30 A-0794-15T3

or two brake repairs. That decision was also supported by the 

record, which showed that defendant had provided some repairs 

under warranty or goodwill, and it had increased the life of the 

brake pads to 14,000 or 15,000 miles with the field fix. Thus, 

the jury could reasonably have decreased King's estimate to reflect 

those two factors.

The trial judge's concern that the jury award would provide 

a windfall to class members who did not actually spend $750 in 

additional repair costs was inconsistent with principles of 

contract damages, and resulted in an unjust windfall to defendant, 

which produced no evidence to defeat King's estimated damages. 

The 2016 United States Supreme Court decision in Tyson Foods, 

Inc. v. Bouaphakeo, 577 U.S. ___, 136 S. Ct. 1036 (2016), also 

supports the conclusion that King's aggregate method of computing 

damages was appropriate. The Tyson Foods decision primarily 

addresses whether a class may prove liability for failure to 

adequately compensate employees based on statistical data of 

average uncompensated work time.

In Tyson Foods, a class of 3344 employees filed suit against 

their employer, Tyson Foods, claiming that it had failed to pay 

them for time spent changing into and out of a safety protective 

suit needed for butchering. Id. at 1041-43. The class claimed 
31 A-0794-15T3

entitlement to overtime pay pursuant to the Fair Labor Standards 

Act, 29 U.S.C. § 207(a). Id. at 1042.

Because the employees sought overtime pay, each member had 

to establish that he or she had worked more than forty hours per 

week, inclusive of the time spent changing into and out of the 

protective gear, in order to establish a claim. Id. at 1043. Due 

to Tyson Foods' lack of records on the amount of time the employees 

spent changing, the plaintiffs relied on what they called 

"representative evidence" of the average time it took an employee 

to don and doff the gear. Id. at 1043.

This evidence included employee testimony, 

video recordings of donning and doffing at the 

plant, and, most important, a study performed 

by an industrial relations expert, Dr. Kenneth 

Mericle. Mericle conducted 744 videotaped 

observations and analyzed how long various 

donning and doffing activities took. He then 

averaged the time taken in the observations 

to produce an estimate of 18 minutes a day for 

the cut and retrim departments and 21.25 

minutes for the kill department. 

[Ibid.]

An employees' expert's testimony supported an aggregate award 

of about $6.7 million in unpaid wages; however, the jury awarded 

the class only $2.9 million. Ibid. Tyson Foods moved to set 

aside the verdict claiming that the district court had erred in 

certifying the class based on the variation in donning and doffing 

time. Ibid. 
32 A-0794-15T3

On appeal to the Supreme Court, Tyson Foods first argued that 

the trial court had erred in certifying the class "because the 

primary method of proving injury assumed each employee [had] spent 

the same time donning and doffing protective gear, even though 

differences in composition of that gear may have meant that, in 

fact, employees [had taken] different amounts of time to don and 

doff." Id. at 1041. Tyson Foods claimed that the class's method 

of averaging was an inherently unfair way to (1) avoid the 

differences that made the group inappropriate for class 

certification, and (2) relieve the employees of proving individual 

damages. Id. at 1046. Tyson Foods requested the Court to announce

a broad rule prohibiting the type of representative evidence relied 

upon by the class to establish liability. Ibid.

In rejecting Tyson Foods' request for a broad rule excluding 

representative evidence to establish liability, the Court said: 

A categorical exclusion of that sort, however, 

would make little sense. A representative or 

statistical sample, like all evidence, is a 

means to establish or defend against 

liability. Its permissibility turns not on 

the form a proceeding takes – be it a class 

or individual action – but on the degree to 

which the evidence is reliable in proving or 

disproving the elements of the relevant cause 

of action.

[Ibid.] 
33 A-0794-15T3

Whether statistical evidence can establish liability in a class 

action depends on the purpose of the evidence and the underlying 

cause of action. Ibid. 

The Court underscored that the employees had used the 

representative evidence to "fill an evidentiary gap created by the 

employer's failure to keep adequate records." Id. at 1047. Once 

the district court found the evidence admissible, "its 

persuasiveness [was], in general, a matter for the jury." Id. at 

1049. 

Defendant here, like Tyson Foods, failed to present evidence 

to rebut the class's formula for computing aggregate damages. 

Defendant had access to documents that would have established the 

actual rate of brake repairs by defendant's dealers. But the only 

documents on repairs that they produced related to warranty 

repairs. We see no reason to disturb the jury's considered 

determination of class damages.

VI.

On cross-appeal, defendant contends that the court erred in 

charging the jury on breach of the implied warranty of 

merchantability. In charging the jury, the court must "set forth 

in clearly understandable language the law that applies to the 

issues in the case." Toto v. Ensuar, 196 N.J. 134, 144 (2008). 

The charge serves as "a road map that explains the applicable 
34 A-0794-15T3

legal principles, outlines the jury's function, and spells out 

'how the jury should apply the legal principles charged to the 

facts of the case.'" Ibid. (quoting Viscik v. Fowler Equip. Co., 

173 N.J. 1, 18 (2002)). 

We review the charge as a whole to determine whether it 

correctly sets forth the law as applied to the facts. Ibid. With 

respect to the implied warranty of merchantability, the trial 

judge charged the jury:

An implied warranty of merchantability is a 

promise by the sellers that the goods, in this 

case, Mrs. Little's and the class vehicles, 

were fit for their ordinary purpose for which 

automobiles are used. 

The implied warranty of merchantability does 

not require that the goods, in this case the 

vehicles, be defect free, but the implied 

warranty of merchantability, provides that []

K[M]A warrants the cars that are fit for their 

ordinary purposes for which cars are used. 

Thus, to prove a breach of implied warranty, 

the [p]laintiff must show an implied promise 

that the vehicles were fit for their ordinary 

purpose for which a vehicle is used. 

Two[,] that there was a defect that 

substantially impaired the value or use of the 

car.

Three, the defect caused a lost [sic] to the 

purchaser.

And, four, damages with regard to the 

instructions I will give you. 
35 A-0794-15T3

Defendant contends the charge was erroneous because the 

correct standard was not whether the Sephia was fit for the 

ordinary purposes for which cars are used, but rather, whether the 

cars provided safe and reliable transportation. Defendant 

contends that it did not breach the implied warranty of 

merchantability because Little conceded that her car provided safe 

transportation, and she drove her car 75,000 miles prior to 

surrendering it.

The charge was proper and consistent with N.J.S.A. 12A:2-

314(2)(c), which provides that goods are merchantable if they "are 

fit for the ordinary purposes for which such goods are used." See 

also Model Jury Charge (Civil), 4.22, "Breach of Implied Warranty 

of Fitness for Particular Purpose Under UCC" (1984) (explaining 

in the commentary that when the issue does not deal with fitness 

for a particular purpose, the standard is one of fitness for the 

ordinary purpose). The implied warranty standard was not limited 

to whether the Sephia was safe and reliable, but rather, whether 

it was fit for the ordinary purpose for which cars are used. A 

driver would fairly assume that an ordinary car would have a brake 

system that does not cause premature wear of brake pads and rotors. 

The court correctly charged the jury on the implied warranty of 

merchantability. 
36 A-0794-15T3

VII.

The class was certified in 2003 based on Rule 4:32-1(a) and 

(b)(3). Defendant contends that the court erred in denying its 

many motions to decertify the class because Little's experience 

was not typical of the class, individual issues predominated, and 

the vast majority of the class members suffered no damages as 

demonstrated by the claims form process. In order to certify a 

class, the court must find that (1) the large number of members 

makes joinder impractical, (2) the members raise common questions 

of law or fact, (3) the representative's claims or defenses are

typical, and (4) the representative will fairly and adequately 

protect the interests of the group. R. 4:32-1(a). 

The court must also find that the group has satisfied at 

least one of the three requirements set forth in Rule 4:32-1(b). 

Rule 4:32-1(b)(3) requires a finding that common questions of law 

or fact predominate, and that a class action is superior to other 

methods of resolution. 

Defendant first argues that the court erred in denying its 

request for decertification because Little's experience was not 

typical of the class. Defendant relies on (1) King's testimony 

that Little's repairs did not fit exactly within the average 

repairs his model computed, and (2) the testimony of the three 
37 A-0794-15T3

Sephia owners who had opted out of the class because they had 

experienced no problems with their cars.

This argument lacks merit because a class representative need 

not establish her experience was exactly the same as every class 

members' in order to establish her claims are typical of other 

members' claims. Like the class members, Little purchased the 

same type of car with the same defective brake system that required 

repairs about every 10,000 miles. To require more similarity than 

that would defeat the purpose of class actions. 

As our Supreme Court said in Iliadis v. Wal-Mart Stores, 

Inc., 191 N.J. 88, 104 (2007):

When making certification determinations, 

"the best policy" is to interpret the classaction rule "so as to promote the purposes 

underlying the rule." 5 James W. Moore et 

al., Moore's Federal Practice, § 23.03 (3d ed. 

1997). Unitary adjudication through class 

litigation furthers numerous practical 

purposes, including judicial economy, costeffectiveness, convenience, consistent 

treatment of class members, protection of 

defendants from inconsistent obligations, and 

allocation of litigation costs among numerous, 

similarly-situated litigants. 

The class action in New Jersey also helps to 

equalize adversaries, a purpose that is even 

more compelling when the proposed class 

consists of people with small claims. In such 

disputes, where the claims are, in isolation, 

"too small . . . to warrant recourse to 

litigation," the class-action device 

equalizes the claimants' ability to zealously 

advocate their positions. [In re Cadillac V8-
38 A-0794-15T3

6-4 Class Action, 93 N.J. 412, 435 (1983)]. . 

. . In short, the class action's equalization 

function opens the courthouse doors for those 

who cannot enter alone.

Class certification furthered those purposes here where each class 

members' damages were relatively small. 

Finally, defendant contends that the court should have 

decertified the class during the claim-form proceeding because 

repairs were unique to each member and the majority of the class 

members did not fit the claim-form criteria. This argument lacks 

merit because the claim-form proceeding should not have occurred. 

Further, failing to return a claim form does not prove that the 

class member incurred no damage. The court correctly certified 

the class. The cross-appeal is without merit.

We reverse the trial judge's grant of a JNOV and remand for 

a determination of counsel fees consistent with this opinion. We 

do not retain jurisdiction.