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Precedential or Non-Precedential: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

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"Waldorf v. Shuta" (1998). 1998 Decisions. Paper 79.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/79

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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