Waldorf v. Shuta

Opinions of the United

1998 Decisions 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Precedential or Non-Precedential: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

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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 soul-

searching, 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. Sanchez-

Valderuten, 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 set-

off 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