STATE OF MINNESOTA
IN COURT OF APPEALS
Robert A. Davids, et al.,
J & L Tire & Auto, Inc., d/b/a
Southwest Firestone at 5009 Xerxes
Avenue South, Edina, MN 55410,
Filed September 21, 1999
Affirmed; motion granted
Hennepin County District Court
File No. 9714457
Debra L. Weiss, Robert J. Lange, Lange & Anderson, P.A., 3800 W. 80th Street, Suite 250, Bloomington, MN 55431 (for appellants)
Dan T. Ryerson, James T. Martin, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue South, Suite 444, Edina, MN 55435 (for respondent)
Considered and decided by Davies, Presiding Judge, Willis, Judge, and Shumaker, Judge.
Appellants Robert and Esther Davids challenge the judgment entered in favor of respondent J & L Tire & Auto, Inc., claiming prejudicial error at trial. We affirm.
After a six-day trial, the jury, by special verdict, found that J & L was not negligent in the removal or reinstallation of the wheel. Appellants moved for a judgment notwithstanding the verdict or, alternatively, for a new trial. The district court denied appellants' motion and entered judgment in favor of J & L and Ramjeet. This appeal followed.
Appellants claim the district court erred in allowing the written statement of Backtraj Ramjeet to be received as evidence, arguing that the statement is hearsay. A district court has broad discretion in determining whether to admit or exclude evidence, and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (stating that entitlement to new trial rests on complaining party's ability to demonstrate prejudicial error).
Hearsay is generally inadmissible. Minn. R. Evid. 802; see also Minn. R. Evid. 801(c) (defining hearsay as out-of-court statement offered in evidence to prove truth of matter asserted). But a statement is not hearsay if
[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness.
Minn. R. Evid. 801(d)(1). The district court admitted, over appellants' objection, Ramjeet's statement as a prior consistent statement under rule 801(d)(1)(B).
Ramjeet testified regarding the work he performed on Robert Davids's van, including how he "reassembled everything" on the left rear wheel. Defense counsel subsequently read into evidence Ramjeet's written statement describing his work on the van. Although the statement was prepared by an insurance investigator, Ramjeet reviewed the statement, corrected and initialed mistakes, and signed it, indicating that the statement was true to the best of his knowledge and belief. Ramjeet's statement, which was consistent with his trial testimony and helpful in evaluating his credibility as a witness, also was offered and received by the district court as an exhibit.
Appellants also argue that the statement is unreliable. But in interpreting rule 801(d)(1)(B), the Minnesota Supreme Court has declined the invitation
to read into the rule the requirement that before a prior out-of-court statement can be admitted, the statement must bear "significant indicia of reliability."
State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997). Because Ramjeet's written statement was admissible as a prior consistent statement, the district court did not abuse its discretion in receiving it as evidence at trial.
II. Design Defect
Appellants also claim the district court erred in allowing J & L to argue defective design as an affirmative defense, arguing that J & L waived the defense by failing to include it in their responsive pleading. See Minn. R. Civ. P. 8.03 (providing that party shall set forth in responsive pleading any matter constituting affirmative defense); see also St. Cloud Aviation, Inc. v. Pulos, 375 N.W.2d 543, 545 (Minn. App. 1985) (stating that failure to raise affirmative defense in responsive pleading or subsequent amendment constitutes waiver of defense). Construction of a rule of civil procedure is a question of law, subject to de novo review. Wick Bldg. Sys., Inc. v. Employers Ins., 546 N.W.2d 306, 308 (Minn. App. 1996). J & L presented evidence that, even when properly installed, certain types of custom wheels, including the type on Robert Davids's van, have a propensity to fall off. This evidence (1) served as a denial of J & L's negligence; (2) refuted appellants' assertion of the res ipsa loquitur doctrine; and (3) supported J & L's unavoidable accident defense. See Holten v. Parker, 302 Minn. 167, 172, 224 N.W.2d 139, 143 (1974) (stating that application of unavoidable accident is limited to cases where there is some evidence of causation by act of God or acts chargeable to unknown agency). And in any event, proof of a design defect does not provide a complete defense to appellants' allegation of negligence in the inspection, service, and maintenance of the van. See Black's Law Dictionary 60 (6th ed. 1990) (defining affirmative defense as matter asserted by defendant that, assuming complaint to be true, constitutes complete defense to cause of action).
Appellants also claim that the district court erred by allowing respondents to bring into the courtroom custom wheels and lug nuts like those that were on Robert Davids's van, as well as custom wheels and lug nuts of a subsequent, new design. Appellants assert that the items should have been removed from the courtroom because their presence constituted an improperly pleaded affirmative defense. But again, because proof of a design defect does not provide J & L with a complete defense to appellants' cause of action, this claim is without merit.
Appellants further claim that testimony relating to changes in the design of the custom wheels and lug nuts was inadmissible as evidence of a subsequent remedial measure. See Minn. R. Evid. 407 (providing that evidence of subsequent remedial measure is not admissible to prove negligence or culpable conduct in connection with event). But as noted above, the testimony served as a denial of negligence, refuted one of appellants' assertions, and supported J & L's defense theory; the evidence was not offered to prove negligence or culpable conduct on the part of the manufacturer. See id. (allowing evidence of subsequent remedial measure when offered for another purpose). And, in any event, appellants did not object to the testimony under rule 407. See Town of Forest Lake v. Minnesota Mun. Bd., 497 N.W.2d 289, 290 (Minn. App. 1993) (stating that failure to object to admission of evidence at trial generally constitutes waiver of issue on appeal), review denied (Minn. Apr. 29, 1993).
III. Manufacturer's Pamphlet
Next, appellants claim that the district court erred in admitting as evidence the wheel manufacturer's pamphlet, arguing that it was hearsay or, alternatively, that it was a learned treatise, which should not have been received as an exhibit. See Minn. R. Evid. 803(18) (providing that statements contained in learned treatises may be read into evidence but may not be received as exhibits). Nothing in the record shows that appellants objected to J & L's introduction of the pamphlet at trial. And, therefore, they have waived this issue on appeal. See Town of Forest Lake, 497 N.W.2d at 290 (stating that failure to object to admission of evidence at trial generally constitutes waiver of issue on appeal); see also Minn. R. Evid. 103(a)(1) (providing that error may not be predicated on ruling that admits evidence unless substantial right of party is affected and timely objection or motion to strike appears of record, stating specific ground of objection).
Appellants also argue that the pamphlet should have been excluded because of J & L's failure to disclose it prior to trial. But, in addition to appellants' failure to object on this ground, appellants did not argue this issue in the district court. See Waldner v. Peterson, 447 N.W.2d 217, 219 (Minn. App. 1989) (requiring that, to preserve issue for appeal, appellant must specifically allege errors in motion for new trial); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that appellate courts generally review only issues presented to and considered by district court in deciding matter before it). We therefore do not address this argument.
IV. Carlson Deposition
Appellants claim the district court erred in refusing to allow the deposition of Michael Carlson to be read into evidence, arguing that Carlson was unavailable as a witness. See Minn. R. Evid. 804(a) (defining unavailability of witness), (b)(1) (providing that former deposition testimony in civil proceeding is not excluded by hearsay rule if declarant is unavailable as witness).
At his deposition, Carlson read a report that expressed his opinion on the cause of Robert Davids's accident. Carlson testified that he based his opinion on an inspection of the van. But he had no recollection of the specific information on which he relied, and his report contained no such information. See Gerster v. Special Adm'r for Estate of Wedin, 294 Minn. 155, 160, 199 N.W.2d 633, 636 (1972) (stating that opinion based on speculation and conjecture lacks foundation and has no evidentiary value). Because there is insufficient foundation for Carlson's opinion, the district court did not abuse its discretion in refusing to allow his deposition to be read into evidence.
V. Res Ipsa Loquitur
Appellants also claim the district court erred in failing to instruct the jury on the doctrine of res ipsa loquitur. A district court has broad discretion in determining jury instructions. State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990); see also Alevizos v. Metropolitan Airports Comm'n, 452 N.W.2d 492, 501 (Minn. App. 1990) (stating that, where instructions fairly and correctly state applicable law, reviewing court will not grant new trial), review denied (Minn. May 11, 1990).
To have a negligence claim submitted to a jury on a theory of res ipsa loquitur, a claimant must establish
(1) that ordinarily the injury would not occur in the absence of negligence; (2) that the cause of the injury was in the exclusive control of the defendant; and (3) that the injury was not due to plaintiff's conduct.
Hoven v. Rice Mem'l Hosp., 396 N.W.2d 569, 572 (Minn. 1986) (citing Spannaus v. Otolaryngology Clinic, 308 Minn. 334, 337, 242 N.W.2d 594, 596 (1976)). The second element requires proof "that all possible causes of the alleged injury were under the control of a single defendant." Spannaus, 308 Minn. at 337, 242 N.W.2d at 596.
J & L presented evidence that the lug nuts on certain types of custom wheels, such as the type on Robert Davids's van, "will loosen up themselves," causing the wheel to fall off. Because there was evidence showing more than one possible cause of the accident, the district court did not abuse its discretion in failing to instruct the jury on the doctrine of res ipsa loquitur. See Holten, 302 Minn. at 174, 224 N.W.2d at 144 (stating that doctrine is not applicable where defendant offers evidence establishing that he is not solely responsible for negligence connected with loss of wheel).
VI. J & L's Closing Argument
Next, appellants claim that the district court erred in refusing to grant a new trial based on comments J & L's counsel made during closing argument. The decision whether to grant a new trial because of attorney misconduct is wholly within the discretion of the district court. Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994).
Appellants argue that J & L's counsel made references to the O.J. Simpson and McDonald's coffee cases in an effort to inflame the jury. But appellants did not object to these comments.
[And a]n objection to improper remarks, a request for curative instruction, and a refusal by the [district] court to take corrective action are generally prerequisites to the obtaining of a new trial on appeal except where the misconduct is so flagrant as to require the court to act on its own motion, or is so extreme that a corrective instruction would not alleviate the prejudice.
Hake v. Soo Line Ry., 258 N.W.2d 576, 582 (Minn. 1977) (citations omitted). The references to these two cases by J & L's counsel are confined to 18 lines in the 51-page transcript of his closing argument, and any impropriety was not so flagrant or extreme as to require a new trial.
Appellants also argue that J & L's counsel made an improper reference to Robert Davids's wealth during closing argument. Appellants objected to the comment, and the district court agreed to instruct the jury not to consider Davids's wealth. But the court later decided not to give such an instruction, stating that the issue was irrelevant and that the parties "were in agreement." When asked if he had any additions or corrections to the jury instructions, appellants' trial counsel stated that he had none. Furthermore, any prejudice to appellants would have affected only the jury's award of damages, not their determination of J & L's liability. See Minn. R. Civ. P. 61 (providing that harmless error is not ground for reversal).
VII. Cumulative Effect of Errors
Finally, appellants claim that they are entitled to a new trial because of the cumulative effect of the district court's alleged errors, citing Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 330, 104 N.W.2d 301, 304 (1960) (stating that minor errors, considered in combination, may deprive party of fair trial). We review the denial of a motion for a new trial on an abuse-of-discretion standard. Stoebe v. Merastar Ins. Co., 554 N.W.2d 733, 735 (Minn. 1996). Because appellants have not shown that errors, even considered in combination, deprived them of a fair trial, the district court did not abuse its discretion in denying their motion for a new trial.
VIII. Motion to Strike
J & L moves to strike certain pages of appellants' appendix and the portions of appellants' brief that rely on those pages as outside the record on appeal. See Minn. R. Civ. App. P. 110.01 (defining composition of record); State v. Maidi, 520 N.W.2d 414, 419-20 (Minn. App. 1994) (stating that this court may not base its decision on matters outside record), aff'd, 537 N.W.2d 280 (Minn. 1995); see also Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995) (stating that appellant bears burden of providing adequate record). The following pages of appellants' appendix are not part of the record on appeal: 65-66, 67-129, and 141-42. Those pages, as well as the portions of appellants' brief that rely on those pages, are stricken and have not been considered in reaching our decision on the merits.
Affirmed; motion granted.
 Carlson's deposition was not submitted to the district court as an offer of proof and is not part of the district court file. Appellants, however, included the deposition in the appendix to their brief, and J & L quoted from the deposition without arguing that it is not properly before this court. Thus, it appears that the parties agree that the deposition may be considered on appeal. See Minn. R. Civ. App. P. 110.05.
 In his report, Carlson wrote: "The damage is consistent with the wheel coming off. It is apparent [sic] rear wheel was not tightened properly per our conversation."