05-2-2610 Dedear v. Shelton , App. Div. (per curiam) (12 pp.) The trial court did not err in refusing plaintiff’s request to include Model Civil Charge 6.11G concerning aggravation of a pre-existing condition that was asymptomatic at the time of the accident as plaintiff did not try the case on that theory and there was no expert medical testimony to support it. Further, where the experts testified through de bene esse videotaped depositions, to introduce a new theory of medical causation at the very end of the case would have constituted unfair surprise. [Decided Jan. 30, 2009.]
AUTOMOBILES — BREACH OF WARRANTY
05-2-2611 Ferrari v. American Honda Motor Co., Inc. , App. Div. (per curiam) (10 pp.) Plaintiff filed a complaint alleging breach of warranty and consumer fraud, claiming that the engine in his Honda Pilot makes an abnormal noise that the manufacturer has not fixed. The appellate panel affirmed summary judgment in favor of defendant on plaintiff’s claims under the Magnuson-Moss Federal Trade Commission Improvement Act, where plaintiff was unable to demonstrate that the engine noise fell outside of the normal performance standards of the vehicle, and under the Uniform Commercial Code where the vehicle always provided safe and dependable transportation. [Decided Jan. 30, 2009.]
