Full opinion text
OPINION OF THE COURT GREENBERG, Circuit Judge. TABLE OF CONTENTS I. FACTUAL AND PROCEDURAL HISTORY..................................605 II. JURISDICTION...........................................................608 A. District Court Determination ............................................608 B. Discussion.............................................................610 1. Finality...........................................................611 2. Just Reason for Delay..............................................613 III. BINDING EFFECT OF THE STIPULATION................................613 A. District Court Determination ............................................614 1. Prejudice to the Borough ...........................................614 2. Prejudice to Waldorf...............................................615 3. Prejudice to the Judicial System.....................................615 B. Discussion.............................................................616 1. Subsequent Proceedings............................................616 2. Manifest Injustice..................................................617 3. New Jersey Open Public Meetings Act................................619 IV. ADEQUACY OF THE JURY VERDICT ........... 620 A. Scope of the Appellate Record...........................................620 B. Pain and Suffering............................................. 621 C. Award for Past and Future Economic Loss................................623 1. Mitigation of Damages..............................................623 2. Qualification of Dennis Rizzo ........................................625 3. Remarks of Defense Counsel in Summation ...........................627 4. Improper Use of the Testimony of James Paseuiti......................628 a. Redirect Examination of Paseuiti.................................628 b. Closing Argument by the Borough................................628 V. COLLATERAL SOURCE SET-OFF......... 629 VI. CONCLUSION............................................................631 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. 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 to fix 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. 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. Waldorfs 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 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. Regó, 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 soulsearehing, 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. Waidorfs counsel objected to this stipulation, but the magistrate judge nevertheless incorporated the 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,-185,716. 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 ease 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. § 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. 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 Waldorfs 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 Waldorfs appeal for want of jurisdiction. II. JURISDICTION The district court exercised jurisdiction pursuant to 28 U.S.C. § 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. § 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. See Washington Hosp. v. White, 889 F.2d 1294, 1299 (3d Cir.1989). With respect to the question of whether the issue was “ready for appeal ... take[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 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 counterclaim which could result in a set-off against the judgment sought to be made final; (2) the relationship between the adjudicated and unadjudieated 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, 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 Waldorfs comparative negligence would “run afoul of the principles underlying New Jersey’s ‘ultimate outcome’ rule.” Id. (citing Roman v. Mitchell, 82 N.J. 336, 413 A.2d 322 (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 plaintiffs negligence and, indeed, that a plaintiffs 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 Waldorfs 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, ie., 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 unadjudieated 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 received any compensation from this ease. 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, 100 L.Ed. 1297 (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 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 1368 (“Finality is defined by the requirements of 28 U.S.C. § 1291, which are generally described as ‘ending the litigation on the merits and leaving] 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 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. § J 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 Waldorfs claim against the Borough, provides that if a plaintiffs negligence is greater than a defendants’ negligence, the plaintiff is precluded from recovery. See N.J. Stat. Ann. § 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 the second trial. In interpreting a stipulation, courts should consider its plain language and “the circumstances surrounding the formation of the [stipulation which may explain” its meaning. Washington Hosp., 889 F.2d at 1302 (internal quotation marks omitted). The Borough first 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 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. 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 corn-pletely 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 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, Inc., 897 F.2d at 123 (citing Curtiss-Wright v. General Elec. Co., 446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (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. 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. Based on the foregoing reasons, we will affirm the district court’s determination to certify this judgment as final pursuant to Rule 54(b). Therefore, we have jurisdiction and we now turn to the merits of Waldorfs 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 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 deci-sional 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. 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 ears 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. § 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 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 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. 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 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 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. §§ 10:4-6 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 con-elusory 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. Ann. §§ 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 the first proceeding or if the parties intended the stipulation to apply only at the first trial. See Vattier v. Hinde, 32 U.S. (7 Pet.) 252, 266, 8 L.Ed. 675 (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 soulsearching, 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 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 eonclusory in nature rather than factual, it should apply only to the prior proceeding. While eonclusory 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 eonclusory 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 the first 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 eonclusory 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 eonclusory 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 eonclusory stipulation than a factual one, the parties’ intention to limit or not limit a stipulation to only 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 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 ease. 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 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 (“[WJhere 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 § 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. § 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. § 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) [sjtating the general nature of the subject to be discussed; and (b) [s]tating as precisely as possible, the t