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

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

The van (a 1975 "microbus"), after a collision with a 1975 Toyota Celica, ended up on a sidewalk on its left side. Karen was found lying on her back with her head partially outside the van's middle side window.

The experts offered different explanations as to how the van reached its ultimate landing place. The defendants' experts claimed a violent "slamdown"; the plaintiff's, that the van took a lazy roll after tipping when its rear wheel climbed a lawn berm. A crucial and bitterly contested question was whether the middle window of the van remained in place and only shattered when the side of the van hit the ground, or whether

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the window had fallen out earlier. It was undisputed that the fatality rate in automobile accidents is far higher when a person is ejected from a vehicle [Note 2] and, for this reason, both sides laid great stress on whether Karen's head came out of the window prior to impact.

The plaintiff presented two main design defects leading to Karen's injuries -- the van's window retention system and its seat mounting system. As to each, the defendants argue that the plaintiff's theory was speculative and lacked a reasonable factual basis, see Nass v. Duxbury, 327 Mass. 396, 402 (1951), and that their motions for a directed verdict and for judgment notwithstanding the verdict should have been allowed. Applying the proper standard, that is, construing the evidence most favorably to the plaintiff but recognizing that the inferences must be based on probabilities not possibilities, Ferragamo v. Massachusetts Bay Trans. Authy., 395 Mass. 581, 591 (1985), we think the evidence was sufficient to present a jury question. There were here enough facts on which the experts could base their opinions. See Carey v. General Motors Corp., 377 Mass. 736, 742 (1979). We summarize what the jury could have found.

1. Evidence as to window retention system. The plaintiff claimed that because of a defective design the side window dropped out before the van reached the ground, and, as a result, Karen's head fell through the opening and was pinned by the roof rail of the vehicle.

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

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

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

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

The simple device of gluing would have improved retention. In the opinion of Dr. Robert Brenner, who was one of the plaintiff's experts and had served formerly as chief scientist of the National Highway Traffic Safety Administration, gluing would have remedied the defect, and Karen, the only person ejected from the van, "would have had the same outcome as the other occupants of the vehicle."

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Since there were readily available design modifications known to the defendants which would have reduced the risk of window "popout" without "undue cost or interference with the performance of the [van]," there was a case for the jury both in negligence and breach of warranty. Uloth v. City Tank Corp., 376 Mass. 874, 881 (1978). Fahey v. Rockwell Graphic Syss., 20 Mass. App. Ct. 642, 649, 651 (1985). The plaintiff has met his burden of showing that "there was greater likelihood or probability that the harm complained of was due to causes for which the defendant[s were] responsible than from any other cause." Carey v. General Motors Corp., 377 Mass. at 740. Compare Swartz v. General Motors Corp., 375 Mass. 628, 633 (1978). As in Carey, supra at 742, the "analytical arguments of [Volkswagen] emphasizing what it views as omissions and inconsistencies in the facts relied on by the expert witness[es], go to the weight of the evidence, some of it conflicting. Thus they more appropriately should be [and were] addressed to the jury."

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

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

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

3. Intermediate handlers. The defendants point out that the van was a multipurpose vehicle and that the middle bench seat was designed to be removed. Given the long period and extensive use of the van after it left the defendants' hands, they claim the plaintiff must show that the defect in the seat was not caused by intermediate handlers. See Corsetti v. Stone Co., 396 Mass. 1, 24 (1985). The complaint here, however, is that the design of the mounting system was improper. Even if we accept the view that the open clamps, if properly placed, would have been reasonably effective, Volkswagen, as designer of the system, is required to "anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product's use in that setting." Back v. Wickes Corp., 375 Mass. 633, 640-641 (1978). Bernier v. Boston Edison Co., 380 Mass. 372, 378 (1980). It was foreseeable that the seats would be removed and that the open clamps, because of their design, would be improperly replaced. See Fahey v. Rockwell Graphic Syss., 20 Mass. App. Ct. at 648. "No negating of the possibility of mishandling by intermediates is [in such circumstances] necessary." Smith v. Ariens Co., 375 Mass. 620, 626 (1978). See Richard v. American Manuf. Co., 21 Mass. App. Ct. 967 (1986). See also Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 381-382 (Mo. 1986).

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

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of warranty) unless Karen unreasonably proceeded to use a product "which [she knew] to be defective and dangerous." Id. at 355. There was no such evidence. Cf. Breault v. Ford Motor Co., 364 Mass. 352, 354 (1973) (assumption of the risk defense not available on grounds of failure to wear seat belt since plaintiff did not know of risk). The jury found for the plaintiff on both negligence and breach of warranty theories. Since the seat belt defense is not available against the warranty theory, we need not decide whether the defense may be asserted against the negligence claim. [Note 6]

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

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

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

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

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

(b) The defendants also claim that certain submissions of Volkswagen in response to then proposed Federal Motor Vehicle Safety Standard 212, see 49 C.F.R. § 571.212 (1980), should not have been admitted. That standard also applies only to windshields and not to side windows. In addition, the van, because of its frontal design, was expressly exempt from complying with the standard even as to windshields. [Note 10]

The earlier responses of Volkswagen to proposed Safety Standard 212, offered in evidence in the course of Dr. Brenner's testimony, indicated that Volkswagen had recognized that gluing increased the retention capabilities of windshields, at least

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

(c) The third item claimed to be erroneously admitted was Federal Motor Vehicle Safety Standard 217, 49 C.F.R. § 571.217 (1980). [Note 12] That standard is a performance standard for buses, not vans, and should not have been admitted. We do not, however, think the error requires reversal.

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

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

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the jury without objection before Standard 217 was admitted. An examination of the witness's entire testimony, including cross-examination, leads us to conclude that the error, while troublesome, did not mislead the jury. The evidence was clear that the van did not fall within within the definition of a bus. [Note 15]

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

7. Bias of the judge. The defendants' counsel by affidavit charged the judge with making statements that he considered Volkswagens unsafe. The judge in the course of a hearing on

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the defendants' motion for a new trial, brought on this and other grounds, denied making the statements. Counsel for the plaintiff in his affidavit stated that "counsel for the defendant has totally mischaracterized, taken out of context and distorted the true nature of what was discussed in chambers." Our review of the entire proceedings reveals no bias on the part of this experienced trial judge. The conference at which the alleged statements were made was unrecorded. The claim, at least for purposes of review, is entirely without merit. [Note 16] The judge was not required to withdraw.

8. Instruction on damages. The wrongful death statute, G. L. c. 229, § 2, as appearing in St. 1973, c. 699, § 1, in relevant part provides that a person who

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

The defendants sought an instruction expressly precluding the jury from awarding damages to "compensate the decedent's next-of-kin for any emotional distress or pain and suffering or grief which they may have suffered." The judge did not give the instruction and charged the jury in the words of the statute.

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

State wrongful death statutes differ widely in their provisions. A dwindling minority of States limit such recovery to economic losses, that is, to the financial contributions the decedent would have made to his dependents. Others, like Massachusetts, specifically allow recovery for more intangible losses, such as loss of society, companionship, comfort, and the like. A minority, but an increasing number, [Note 17] allow recovery for grief, sorrow, and mental distress suffered by the decedent's survivors. For a collection of statutes and authorities see 2 Speiser, Recovery for Wrongful Death, Appendix A (2d ed. 1975), and 1 Speiser §§ 3:49 and 3:52.

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

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

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

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

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Court in Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 585 n.17 (1974). [Note 20]

The trial judge was not informed of the complexity of the issues presented by the request for the instruction. On the morning of closing argument, the plaintiff and the defendants each submitted to the judge their requests for jury instructions. The defendants' requested instruction with its citations as presented to the judge is set forth in the margin. [Note 21] The reference to the Massachusetts case of Cimino v. Milford Keg, Inc., 385 Mass. 323, 334 (1982), was not helpful because the "emotional distress" defined therein [Note 22] was not in any way an issue in this case. Moreover, as indicated in note 18, supra, a later case, Miles v. Edward O. Tabor, M.D., Inc., 387 Mass. 783, 788-789 (1982), intimated that even the grief portion of the request

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

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

As the matter appears on the record before us, the judge was not sufficiently apprised of the specific ground relied on by the defendants as required by Mass.R.Civ.P. 51(b), [Note 24]

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365 Mass. 816 (1974). The objection by number, even with the brief repetition of what the instruction was about, did not explain to the judge that in the defendants' view there was an inherent legal ambiguity in the statute which needed clarification. The objection did not have the "practical effect" of informing the judge why the requested instruction should have been given, Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977), and cases cited; Huff v. Holyoke, 386 Mass. 582, 583 n.2 (1982), and was not adequate to give him reason to believe his charge was incorrect. Fairness and the duty to avoid unnecessary new trials require that the grounds of an objection be detailed for the judge's benefit. Miller v. Boston & Me. Corp., 8 Mass. App. Ct. 770, 774 (1979). See Collins v. Baron, 392 Mass. 565, 568 n.3 (1984), and at 571-573 (O'Connor and Lynch, JJ., dissenting). See also Smith & Zobel, Rules Practice § 51.6, at 230 (1977).

We also note that the requested instruction was not itself correct. See Squires v. Fraska, 301 Mass. 474, 476-477 (1938); Ferguson v. Ashkenazy, 307 Mass. 197, 203 (1940) (both cases holding that a trial judge need not separate the correct from the incorrect part of a requested instruction and give the correct part). Not only does "emotional distress" have a particular meaning which is here inapplicable, see note 22, supra, but "pain and suffering," in the wrongful death context, usually refers to pain and suffering of the decedent rather than to that of the survivors. The legislative history suggests that what may be intended to be excluded is the acute sorrow of the mourning period, or, perhaps, in the case of more sensitive survivors, the unusual response to the death, e.g., a nervous breakdown. These items are what were referred to in Sea-Land, see note 20, supra, as the "negative approach."

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

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

9. Excessive damages. The verdict here was large. The defendants, at great length, seek to show that the judge erred in denying a remittitur or a new trial on the ground that the damages were excessive. [Note 26] In a case of this kind damages are difficult to compute and depend upon the judgment of the fact-finding tribunal in appraising the deprivations and "translating them into a compensatory sum." Bartley v. Phillips, 317 Mass. 35, 40 (1944). "In . . . an appellate tribunal an award of damages must stand unless . . . to permit it to stand was an abuse of discretion on the part of the court below, amounting to an error of law." Mirageas v. Massachusetts Bay Transp. Authy., 391 Mass. 815, 822 (1984), quoting from Bartley v. Phillips, 317 Mass. at 43. "An appellate court will not find an abuse of discretion in the judge's refusal to grant a new trial on the ground of excessive damages `[u]nless the damages awarded were greatly disproportionate to the injury proven or represented a miscarriage of justice.'" Mirageas, supra, quoting from doCanto v. Ametek, Inc., 367 Mass. 776, 787 (1975). "We cannot say that there was this type of error on the part of the trial judge who heard and saw the witnesses." Statkus v. Metropolitan Transit Authy., 335 Mass. 172, 174-175

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(1956). We also decline the defendants' invitation to engage in the "dangerous game" of reasoning from verdicts in other jurisdictions. Griffin v. General Motors Corp., 380 Mass. 362, 371 (1980). [Note 27]

10. Prejudgment interest. After the court clerk added interest to the verdict at the rate of twelve percent per annum, the defendants brought a motion under Mass.R.Civ.P. 60(a), 365 Mass. 828 (1974), to correct the judgment. The denial of the motion was error. General Laws c. 229, § 11, governs the assessment of prejudgment interest. See Turcotte v. DeWitt, 333 Mass. 389, 391 (1955). Since the rate is unspecified, G. L.

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c. 107, § 3, applies. Perkins Sch. for the Blind v. Rate Setting Commn., 383 Mass. 825, 835-836 (1981). Peak v. Massachusetts Bay Transp. Authy., 20 Mass. App. Ct. 726, 728 (1985). Interest should have been computed at six percent.

11. Credit for settlement. Before the verdict the parties filed a stipulation in which they agreed that the sum of $67,000, which was paid by insurers to the plaintiff in settlement of certain claims, "shall be deducted from the jury verdict, if any." (Emphasis supplied.) The $67,000 was deducted from the sum of the verdict plus interest. This was error in view of the agreement. Compare Boston Edison Co. v. Tritsch, 370 Mass. 260, 263-264 (1976), and Franklin v. Guralnick, 394 Mass. 753, 754-755 (1985). The $67,000 payment should have been subtracted from the jury verdict before the computation of prejudgment interest.

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

So ordered.