This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1843

 

Dianna S. Bach, as Legal Guardian of the Person

of Brett L. Bach, et al.,

Appellants,

 

vs.

 

Scott Gehl,

Respondent,

 

Case Corporation,

Respondent.

 

Filed October 10, 2006

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. PI 03-19354

 

David M. Bolt, Christopher J. Hoffer, Soucie & Bolt, 100 Anoka Office Center, 2150 Third Avenue North, Anoka, MN  55303 (for appellants)

 

Frank J. Rajkowski, Laurel J. Pugh, Rajkowski Hansmeier, Ltd., 11 Seventh Avenue North, P.O. Box 1433, St. Cloud, MN  56302 (for respondent Scott Gehl)

 

Daniel A. Haws, Stacy E. Ertz, Murnane Brandt, 30 East Seventh Street, Suite 3200, St. Paul, MN  55101 (for respondent Case Corporation)

 

            Considered and decided by Willis, Presiding Judge; Ross, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

In this tort action, appellants challenge the district court’s dismissal with prejudice of their claims after a jury trial.  Appellants argue that several of the district court’s evidentiary rulings had a prejudicial effect on the jury verdict and warrant a new trial.  We affirm.

FACTS

            On October 4, 1998, at approximately 8:55 p.m., Brett Bach was traveling southbound in his car on Highway 101 near Dayton in Hennepin County when he collided with an attachment to a combine that respondent Scott Gehl was driving northbound on the same highway.  The combine and the attachment—a so-called “bean head,” used to harvest soybeans—were manufactured by respondent Case Corporation (Case).  Bach suffered serious injuries, including permanent brain damage.  After his discharge from the hospital, Bach, who is dependent on others to assist him with meeting his daily physical and hygiene needs, first lived in a nursing home and later was moved to a group home for persons with traumatic brain injuries, where he remained at the time of trial.

            Appellants Dianna S. Bach, Bach’s wife and legal guardian of Bach’s person, and Joseph Vogel, the conservator of Bach’s estate, sued Gehl and Case for damages.  Appellants claimed that (1) Gehl negligently operated the combine on the night of the accident and thereby directly caused the collision and Bach’s injuries; (2) Case negligently designed the bean head by not putting lights or “adequate reflective devices” at its extremities; (3) Case “breached the implied warranty of merchantability and the implied warranty of fitness for its intended purpose” by selling a bean head that was not fit for travel on public roads; and (4) Case was strictly liable for the defective design and manufacture of the bean head without “proper illuminating mechanisms.”

            At trial, appellants argued that Gehl and Case were responsible for the accident because, when it occurred, Gehl was driving his combine with the bean head extending four feet over the center line into the oncoming lane, and Bach could not have seen the bean head in his lane, either because there were no lights or reflective devices at the ends of the bean head or because the lights on the combine were so bright that they blinded Bach.  Respondents argued that Bach did not see the bean head because he was distracted and not keeping a proper lookout.  Bach, who has no memory of the accident, did not testify, and other than Gehl, there were no eyewitnesses to the accident.  Gehl testified (1) that he believed that the bean head was not over the center line at the time of the accident and (2) that Bach did not slow down or move to the right of his lane or react in any other way to the presence of Gehl’s combine. 

At the conclusion of the trial, the jury found damages for appellants in the amount of approximately $33,000,000 but determined that Bach was 90% at fault, Gehl was 10% at fault, and Case was 0% at fault.  Based on the verdict, the district court dismissed appellants’ claims against respondents with prejudice.  Appellants moved for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial on liability, arguing that several of the district court’s evidentiary rulings “constituted reversible prejudicial error.”  The district court denied appellants’ motions, and this appeal follows.

D E C I S I O N

Absent an erroneous interpretation of the law, the question of whether to admit evidence is within a district court’s broad discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Evidentiary rulings regarding “materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence” will not be reversed absent a clear abuse of discretion.  Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn. 1994) (quotation omitted).   “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Kroning, 567 N.W.2d at 46 (quotation omitted).  “Evidentiary error is prejudicial if it might reasonably be said to have changed the result of the trial.”  Foust v. McFarland, 698 N.W.2d 24, 33 (Minn. App. 2005), review denied (Minn. Aug. 16, 2005).  An evidentiary ruling that is harmless error is not a ground for granting a new trial or for setting aside a verdict.  Minn. R. Civ. P. 61. 

I.

Appellants argue that the district court abused its discretion by allowing testimony and statements during opening and closing argument regarding the absence of prior collisions involving Gehl’s combine and Case combines in general. 

A.        Waiver

As a threshold matter, respondents argue that appellants waived any objection to the admission of evidence of no prior collisions by introducing the evidence in appellants’ case-in-chief.  The record shows that before trial, appellants made two motions in limine on the subject, one requesting that the district court prohibit Gehl from testifying that he had never had another collision with his combine and that other cars had passed him safely on the night of the accident.  The second motion asked the district court to exclude all references to the absence of prior collisions involving Case combines because Case could not meet its “foundational burden regarding such evidence.”  The district court denied the motions, and in their case-in-chief, appellants examined Gehl and current and former Case employees regarding the prior-collisions issue.  Appellants now challenge that testimony on appeal.

A claim of “error in admission of evidence can be waived either by failing to make timely objection or by a party introducing the evidence himself.”  Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982) (citing Minn. R. Evid. 103(a)(1) and In re Forsythe’s Estate, 221 Minn. 303, 309-10, 22 N.W.2d 19, 24 (1946)).  But “a party need not renew an objection to the admission of evidence to preserve a claim of error for appeal following a ruling on a motion in limine.”  State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002) (citing Minn. R. Evid. 103(a) 1989 advisory comm. note).  Appellants properly preserved this issue for appeal when they made their motions in limine.

B.        Gehl’s Testimony

Appellants first argue that the district court committed reversible error by allowing Gehl to testify (1) that he had never had another collision with his combine, (2) that other cars passed Gehl’s combine safely the night of the accident, and (3) that Gehl’s neighbors had never told him that his combine was not illuminated properly.  Appellants argue that this testimony allowed respondents to imply improperly that Bach “was negligent because [Bach] ‘ran into’ the combine’s header where others had avoided it.”

In Minnesota, evidence of the absence of prior accidents resulting from the same inanimate cause, under substantially similar circumstances, is admissible to prove that the inanimate cause was not dangerous or likely to cause such accidents and that the person responsible for the inanimate cause was unaware of its dangerous character.  Nubbe v. Hardy Cont’l Hotel Sys. of Minn., Inc., 225 Minn. 496, 501, 31 N.W.2d 332, 335 (1948); Henderson v. Bjork Monument Co., 222 Minn. 241, 246, 24 N.W.2d 42, 45 (1946).  Here, appellants pursued two claims of negligence:  (1) that Gehl negligently operated the combine and bean head on the night of the accident by not providing adequate lighting for the bean head, by being inattentive, and by driving over the centerline and (2) that Case negligently designed and manufactured the combine and bean head by failing to put lights or adequate reflective devices at the extremities of the bean head.

Gehl’s allegedly negligent operation of the combine and bean head could not be an inanimate cause of the accident, but Case’s allegedly negligent design and manufacture of the bean head could be.  Therefore, Gehl’s testimony was admissible because it was relevant to the questions of whether the absence of extremity lighting on the bean head was dangerous or likely to cause accidents and whether Gehl was aware that his bean head was a danger to other drivers because it did not have lights at its extremities. 

1.         Gehl’s Testimony Regarding No Prior Collisions with His Combine

The record shows that Gehl did not specifically testify that he had had no prior collisions with his combine.  But Gehl did testify to how he has driven his combine with the bean head in the past, stating that over many years, he has always driven as far to the right of the road as possible and that he “always drove as safe as [he] could.”  This testimony is not relevant to the alleged inanimate cause of the accident—the lack of lighting on the ends of the bean head—but rather is relevant to Gehl’s allegedly negligent operation of the combine.  Gehl’s testimony that he always drove as far to the right of the road as possible is admissible habit evidence.  See Minn. R. Evid. 406 (providing that “[e]vidence of the habit of a person . . . is relevant to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit or routine practice”).  Gehl’s testimony that he always drives as safely as possible, however, is inadmissible to prove that he was not negligent on the night of the accident.  See Ryan v. Int’l Harvester Co. of Am., 204 Minn. 177, 182, 283 N.W. 129, 131 (1938) (stating the general rule that “[e]vidence that a person is . . . careful and prudent . . . is inadmissible to prove that he was not negligent upon a particular occasion”) (quotation omitted).  But the record shows that appellants’ counsel objected to the line of questioning resulting in this testimony and that it was clarified on the record that Gehl was only being questioned about his driving on the night of the accident.  Therefore, any prejudice that resulted was corrected by the clarification that Gehl was being asked only about his driving on the night in question.

2.         Gehl’s Testimony Regarding Other Cars Passing Safely

The record shows that Gehl testified that 20 to 30 cars passed him safely during the approximately 30 minutes that elapsed from the time that he left his field until the time of the accident.  Appellants argue that this testimony was inadmissible because the conditions when these cars passed Gehl were not substantially similar to the conditions at the time of the accident.  Appellants point to Gehl’s testimony that there was still some sunlight when he left the field, and the parties agree that it was completely dark at the time of the accident.  But the record shows that Gehl testified that several cars safely passed him moments before the accident. 

Because the record supports the conclusion that the conditions at the time that several other cars safely passed Gehl were substantially similar to the conditions at the time of the accident, that fact was admissible to prove that the alleged inanimate cause of the accident—the lack of extremity lighting on the bean head—was not dangerous or likely to cause an accident and that Gehl was unaware that the unlit ends of the bean head were dangerous.  We conclude, therefore, that the district court did not abuse its discretion by allowing Gehl’s testimony regarding other cars passing him safely.

3.         Gehl’s Testimony Regarding the Absence of Complaints About His Bean Head

 

The record also shows that Gehl testified that none of his neighbors had ever told him that his combine was dangerous because the bean head was hard to see at night.  Appellants argue that this testimony was inadmissible hearsay.  But the record shows that appellants did not object to the testimony at trial.  When a party fails to object to evidence at trial, that party has generally waived any objection.  Steiner v. Beaudry Oil & Serv., Inc., 545 N.W.2d 39, 44 (Minn. App. 1996), review denied (Minn. May 21, 1996); see also Minn. R. Evid. 103(a)(1) (requiring “a timely objection or motion to strike” to claim erroneous admission of evidence).  Regardless of the fact that appellants waived this issue by failing to object, we note that, although there might be a question here as to relevance, testimony that another person did not say anything is not hearsay.  See Minn. R. Evid. 801(c) (defining “hearsay” as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted); Minn. R. Evid. 801(a) (defining “statement” as “an oral or written assertion” or “nonverbal conduct of a person, if it is intended by the person as an assertion”).

C.        Case’s Statements Regarding No Reported Collisions

Appellants next argue that the district court abused its discretion by “allowing [Case] to allege, in its opening and closing arguments, that it has sold 136,000 combines with no reported accidents” and by allowing testimony from Case employees regarding the absence of prior collisions involving Case combines.

Case argues that appellants are objecting only to Case’s statements in its opening and closing arguments and not to witness testimony regarding the absence of prior collisions involving Case combines.  Although appellants focus on the statements that Case made in its opening and closing arguments, appellants state in their brief that the district court “should have excluded all reference to the alleged absence of prior accidents by [Case] and its employees.”

Appellants argue that statements regarding the absence of prior collisions involving Case combines lacked proper foundation because “Case made no competent showing that its accident reporting system would have been aware of other accidents had they occurred, or that the combines were similar, and being used under similar circumstances.”  Counsel is given wide latitude when arguing to a jury as long as counsel’s statements are based on the evidence and proper inferences therefrom.  Connolly v. Nicollet Hotel, 258 Minn. 405, 419-20, 104 N.W.2d 721, 732 (1960).  The exclusion of evidence for lack of foundation lies in the discretion of the district court, and “its determination will not be disturbed unless practical justice requires otherwise.”  Smith v. Kahler Corp., 297 Minn. 272, 283, 211 N.W.2d 146, 153 (1973).  The rule allowing evidence of the absence of prior accidents assumes that the witness testifying to such an absence “was in such a position by reason of ownership, control, or special familiarity that he would probably be aware if other persons had been injured by the inanimate object in question.”  McCarty v. Vill. of Nashwauk, 282 Minn. 262, 263, 164 N.W.2d 380, 382 (1969) (emphasis omitted). 

Appellants argue that Case’s accident-reporting system is inadequate because dealers are the primary reporting sources, and the custodian of Case’s accident-reporting files testified at her deposition that the dealers were not required to report accidents to Case; and, in this case, she did not know of the accident involving Gehl’s combine until three years after appellants filed their notice of claim with Case.  We conclude that the district court did not abuse its discretion by determining that the foundation was sufficient to admit the Case-employee testimony regarding the absence of prior collisions with Case combines; appellants’ arguments go to the weight of the testimony rather than to its admissibility.  Because the Case-employee testimony was admissible, Case’s statements in its opening and closing arguments regarding the absence of prior collisions involving Case combines were based on the evidence.

II.

Appellants argue that the district court abused its discretion by allowing respondents, over appellants’ objections, to suggest in their closing arguments that Bach was suicidal, and appellants claim that they were “entitled to a curative jury instruction regarding Minnesota’s presumption against suicide.”  “The decision whether to grant a new trial due to improper argument by counsel rests almost entirely within the discretion of the trial court and should not be reversed on appeal absent a clear abuse of discretion.”  Jewett v. Deutsch, 437 N.W.2d 717, 721 (Minn. App. 1989).  A new trial is not warranted unless the statement resulted in prejudice to the losing party that is sufficient to affect the outcome of the case.  Boland by Orr v. Morrill, 270 Minn. 86, 100, 132 N.W.2d 711, 720 (1965).  The district court remains in the best position to determine whether improper arguments by counsel resulted in prejudice.  Ellingson v. Burlington N. R.R. Co., 412 N.W.2d 401, 405 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987). 

The record shows that during its closing argument, Case’s attorney made the following statement in the context of discussing damages: 

The wage loss issue.  Look at the driving record. . . .  [Bach’s employer] didn’t know about the traffic citation that [Bach] got within about a month of the accident for speeding that would have cost him his job.  By admission, he would have lost that job. . . .  Maybe [Bach] knew that when he went to work the next day he was going to lose his job that he had had for a year and a half . . . .”

 

(Emphasis added.)  And during Gehl’s closing argument, Gehl’s attorney made the following statement while describing the accident:

[T]here’s not one bit of physical evidence to show that [Bach] reacted at all, not one mark on the road to show at least the initial scuff or turning to the right.  Not one shadow of a brake mark or ABS systems, if he had hit his brakes when he saw it.

            Nothing to indicate that he was doing anything other at the time of collision than still going straight ahead or angling to the left.  Why in the world would he be angling to the left.  If he saw it, he wouldn’t, unless he was suicidal or he didn’t see it, he didn’t see it at all, he never reacted, and the only reason he didn’t react was because he was distracted.  Nobody knows — how can you know without [Bach] to tell us why he was distracted.

 

(Emphasis added.)  Out of the presence of the jury, appellants objected to both of the above statements, arguing that respondents had implied that Bach was attempting to commit suicide at the time of the accident.  The district court overruled appellants’ objection and gave 4 Minnesota Practice, CIVJIG 10.25 (1999), an instruction to the jury that statements by counsel are not evidence, to correct any error.  Respondents argue that the intended meaning of the challenged statements is that Bach was distracted at the time of the accident. 

Respondents’ statements during their closing arguments do not support the conclusion that respondents claimed that Bach was suicidal on the night of the accident; to the extent that the statements might suggest that possibility, these two vague and discrete references in respondents’ closing arguments, covering 100 transcribed pages, do not constitute prejudicial error.  Cf. State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003) (concluding that there was no prosecutorial misconduct when, reviewing the prosecutor’s closing argument as a whole, the improper statement was only two sentences in a closing argument that amounted to 20 transcribed pages).  Therefore, we conclude that the district court did not abuse its discretion by overruling appellants’ objection to these two references in respondents’ closing arguments.

III.

Appellants argue that the district court abused its discretion by admitting Bach’s complete driving record over appellants’ objection, claiming that it was inadmissible character evidence under Minn. R. Evid. 404 and was more prejudicial than probative.

Respondents deny that they offered Bach’s driving record into evidence to show that Bach was driving on the night of the accident in accordance with his prior bad driving record.  Respondents argue that they offered Bach’s entire driving record to dispute appellants’ wage-loss claim by showing that Bach would have lost his job as a driver with QuickSilver Express Courier soon after the date of the accident because he had recently received a second speeding ticket in a two-year period, which was grounds for dismissal by QuickSilver.  Appellants argue that respondents could have achieved that goal by offering Bach’s driving record for the three years preceding the collision and that because Bach’s entire driving record included charges of driving while impaired from 1980, 1981, 1982, and 1991 and “an official finding that [Bach] was ‘inimical to public safety,’” the jury would be prejudiced and believe that Bach “was a habitually drunk driver.”  Respondents argue that even if it was error to admit Bach’s entire driving record, the error was not prejudicial because the jury awarded damages in the exact amounts proposed by Bach’s expert. 

Under Minn. R. Evid. 404(b), evidence of another crime or act is not admissible to prove a person’s character “to show action in conformity therewith,” but such evidence may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”  Evidence of other crimes or acts is admissible to prove an element of a damages claim.  See Holmberg v. Murphy, 167 Minn. 232, 233-34, 208 N.W. 808, 809 (1926).  Admission of a long driving record may be prejudicial in some circumstances.  See, e.g., State v. Marty, 376 N.W.2d 515, 517 (Minn. App. 1985) (concluding that admitting defendant’s driving record was error because defendant had agreed to stipulate to prior offenses and that this error was “very prejudicial” because defendant’s driving record was “extremely long”), review denied (Minn. Jan. 17, 1986).

Here, Bach’s driving record was admissible because it related to his claim for loss of future earnings.  His driving record could have affected not only the length of his employment with QuickSilver but also his ability to obtain a job as a driver with another employer.  We conclude that the district court did not abuse its discretion by admitting this evidence, that the probative value of the evidence to the damages question outweighed any prejudice, and that the admission of this evidence is not grounds for JNOV or a new trial.

IV.

Appellants argue that the district court abused its discretion by admitting evidence of past incidents of domestic abuse involving Bach and his wife, claiming that this evidence was irrelevant.  Respondents argue that this evidence was relevant to Dianna Bach’s loss-of-consortium claim because it called into question the prospective longevity of her marriage to Bach and that the evidence was relevant to show that Bach’s history of violence before the accident explains Bach’s problems with aggression after his traumatic brain injury.  The record shows that before trial appellants filed a motion in limine, requesting that the court exclude all references to prior incidents of domestic abuse involving Bach and his wife, which the district court denied, concluding that it was relevant to the loss-of-consortium claim.

The record shows that between March 1996 and January 1997 three incidents of domestic abuse occurred between Bach and his wife, two of which resulted in assault charges against Bach.  The last incident occurred approximately 22 months before the accident.  Evidence is relevant if it makes the existence of any material fact more or less probable then it would be without the evidence.  Minn. R. Evid. 401.  This evidence was relevant to Dianna Bach’s loss-of-consortium claim because the evidence of past domestic abuse could show that Bach and his wife had a turbulent relationship that was not likely to last, thereby affecting Dianna Bach’s claim for loss of consortium.  The facts that the last domestic-abuse incident occurred 22 months before the accident and that the Bachs were still married at the time of the accident affects the weight of the domestic-abuse evidence, not its relevance.  Therefore, the district court did not abuse its discretion by denying appellants’ motion to exclude evidence of the domestic-abuse incidents.

We decline to reach the question of whether the evidence of the domestic-abuse incidents was relevant also to show that Bach’s history of violence explains Bach’s current aggression problems.  Even assuming, without deciding, that the domestic-abuse incidents are not relevant to Bach’s current problems with aggression, appellants cannot show that the admission of evidence of these incidents prejudiced their damage award because the jury awarded the amounts that appellants asked for.

Appellants argue that even if the evidence of prior incidents of domestic abuse is relevant, such evidence is more prejudicial than probative because it could have led the jury to “decide the case based upon its dislike of [Bach’s] prior conduct, rather than the circumstances surrounding the collision and the damages which resulted.”  The fact that Bach committed domestic abuse in the past does not give rise to the inference that he is a bad driver; therefore, we conclude that the admission of this evidence was not prejudicial to the outcome of the trial and is not grounds for JNOV or a new trial.

V.

Appellants argue that the district court abused its discretion by excluding from evidence the code of ethics of the American Society of Agricultural Engineers (ASAE) and the European standard for lighting and refusing to allow any discussion of the code and standard during the trial.  The record shows that appellants filed a motion in limine to admit ASAE standards 279.8 and 279.9, which describe the requirements for the lighting and marking of tractors and other self-propelled equipment, including bean heads.  The district court granted appellants’ motion, but during trial, the district court sustained respondents’ objection to any references to the ASAE code of ethics and specifically struck the following from a Case engineer’s deposition that was read at trial:

Q.                Do you know generally the code of ethics and the canons of ASAE?

 

A.        Uh-huh.

 

Q.        I will read one to you.

 

            . . . .

 

Q.                It says, “Engineers uphold and advance the integrity and honor and dignity of the engineering profession by, one, using their knowledge and skill for the enhancement of human welfare, and, two, being honest and impartial and serving with fidelity the public, their employees and clients.”  Do you agree with that, generally?

 

A.        Yes, I would agree.

 

            . . . .

 

Q.        “Engineers shall hold paramount the safety, health and welfare of the public in the performance of their professional duties.”  Do you agree with that generally?

 

A.        Yes.

 

Q.        And do you agree with the principle that one death or serious injury is too many if it could be avoided by reasonable engineering practices?

 

In sustaining respondents’ objection, the district court concluded that the “one death or serious injury” question was a rhetorical question to which there is no answer and that the code of ethics was not helpful to the jury in resolving any of the issues in the case.  We agree with the district court’s conclusion that the ASAE code of ethics was not relevant to the issues here and that appellants’ “one death or serious injury” question could be inflammatory and therefore prejudicial.  We conclude, therefore, that the district court did not abuse its discretion by excluding the ASAE code of ethics and any references to it from trial.

A request for the admission into evidence of the European standard for lighting does not appear to have been included in appellants’ motions in limine.  None of the parties cites, and we do not find, where in the 2,448 pages of trial transcript the district court denied appellants’ attempt to admit that standard into evidence.  Nor does a copy of the European standard appear to be in the record.  An appellant “is responsible for ensuring that an adequate appellate record is presented to decide the issues raised by appellant.”  State v. Brown, 709 N.W.2d 313, 319 n.3 (Minn. App. 2006).  Because appellants have failed to provide an adequate record on this issue, we decline to review it.  See id. (concluding that an inadequate record precluded review of a claim).

Appellants also argue that the district court abused its discretion by allowing hearsay into evidence in the form of an evaluation report on the “Case IH 1680 Self-Propelled Combine” by a Canadian organization, the Prairie Agricultural Machinery Institute (PAMI), which states that the combine is well lit from the perspective of the combine operator.  Appellants objected to the admission of the PAMI report during respondents’ cross-examination of appellants’ expert witness, but the district court overruled the objection, allowing the admission of the report under the learned-treatise exception to the hearsay rule.  The learned-treatise exception allows

[t]o the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice.  If admitted, the statements may be read into evidence but may not be received as exhibits.

 

Minn. R. Evid. 803(18).  Here, appellants’ expert admitted that PAMI is a “recognized” and “well-respected” organization that evaluates machines in North America and that the combine reviewed by PAMI in its report was similar to Gehl’s combine.  Based on appellants’ expert’s admission, we conclude that the district court did not abuse its discretion by determining that the PAMI report is a learned treatise. 

But the PAMI report was admitted as an exhibit and not just read into the record.  The rules of evidence provide that statements from a learned treatise “may be read into evidence but may not be received as exhibits.”  Minn. R. Evid. 803(18).  But the error was not prejudicial because appellants had an opportunity to re-examine their expert witness regarding the weaknesses of the PAMI report, including the fact that the report failed to evaluate the lighting of a combine from the perspective of a person other than the operator, and because the PAMI article was just one of more than 100 exhibits admitted at trial.

VI.

Appellants argue that the district court abused its discretion by admitting Bach’s employer’s “driver’s handbook” into evidence without adequate foundation in the form of evidence that Bach had reviewed it.  The record shows that during appellants’ direct examination of Dean Herbst, the general manager and part owner of Quicksilver Express Courier, Herbst testified that when Bach was an employee, Quicksilver had its drivers watch a defensive-driving-system video and then take a test, and that a completed test was in Bach’s employee file, although the test was not scored. 

Later, during the testimony of one of respondents’ accident-reconstruction experts, appellants objected when respondents sought to offer as an exhibit a workbook for a defensive-driving course that was in Bach’s employee file, along with the answer sheet to the driving test mentioned in Herbst’s testimony.  It appears from the record that the workbook is the document that appellants refer to in their brief as Quicksilver’s “driver’s handbook.”  Appellants argued that respondents did not lay a proper foundation for introducing or discussing the workbook.  Respondents responded that appellants opened the door to this evidence when they asked Herbst about Bach’s training as a driver; the district court agreed, concluding that “the door has been opened and the jury should be entitled to see what education [Bach] had that might be different than other drivers.”  Respondents then read to their accident-reconstruction expert portions of the workbook regarding driving maneuvers for avoiding collisions.  Before reading from the workbook, counsel for Case stated that the workbook included a “reference to collision avoidance that [Bach] would have read and passed on.” 

A determination of the adequacy of foundation lies within the discretion of the district court.  Smith, 297 Minn. at 283, 211 N.W.2d at 153.  To support their position that foundation for the workbook was adequate, respondents cite an unpublished opinion, Coleman v. Rask, No. C1-95-1971, 1996 WL 363379, *5 (Minn. App. July 2, 1996), in which this court held that the district court did not abuse its discretion by receiving into evidence an employer’s defensive-driving manual when testimony revealed that the employer used the manual when conducting safety meetings, although there was no evidence that the employee in question attended any of those meetings.  This court concluded that the manual was admissible and that the fact that the employee may not have attended the meetings at which the manual was used was relevant to the weight of the evidence.  Id. 

Here, the record shows that Herbst testified that when Bach worked at Quicksilver, they used “the Smith defensive driving system and they had videos that they watched and then they would take a little question and answer test afterwards.”  Coleman is not precedential, and we do not find it persuasive in this case because the record here shows that Herbst did not mention the workbook in his testimony.  And although the workbook has the words “Defensive Driving Course” on its cover, there is nothing indicating that it is part of the “Smith defensive driving system” mentioned by Herbst.  Further, despite respondents’ claim that it is undisputed that Bach received the driving workbook, there appears to be no testimony in the record laying foundation for the defensive-driving workbook or the fact that Bach passed his defensive-driving test, which was not scored. 

Therefore, we conclude that the district court abused its discretion by admitting the workbook into evidence.  But we also conclude that it was not prejudicial error because there was already in evidence the fact that Bach saw a defensive-driving video, and the workbook was therefore cumulative evidence regarding Bach’s defensive-driving training.  See W.G.O. v. Crandall, 640 N.W.2d 344, 349 (Minn. 2002) (stating that admission of evidence that is cumulative and corroborated by other evidence is harmless).

Appellants argue next that the district court abused its discretion by ruling that they could not admit the Minnesota driver’s manual into evidence and by permitting them to use only one page of the manual when cross-examining defense witnesses.  The record shows that appellants offered only page 113 of the 1996 Minnesota driver’s manual into evidence, to which respondents objected on the ground of relevancy.  The district court allowed appellants “to cross-examine from the document but not introduce it.”  Appellants then used page 113 of the manual to cross-examine two of respondents’ expert witnesses regarding the manual’s instructions regarding what a driver should do when he encounters glare and had the witnesses read into the record these instructions. 

We conclude that it was within the district court’s discretion not to admit the manual into evidence and to allow appellants to use the manual only during cross-examination.  Even if we were to decide that the district court abused its discretion by not admitting the manual, it was not prejudicial error because appellants were able to read the relevant portions of the manual in front of the jury.

VII.

 

Appellants argue that the district court abused its discretion by excluding portions of a Case engineer’s deposition that included questions and responses regarding whether, before the accident, Case had considered issuing a recall to retrofit light kits on its bean heads, including the one on Gehl’s combine.  The district court allowed testimony regarding the fact that Case issued a service bulletin to its dealers regarding the availability of retrofit light kits but excluded, as irrelevant, all questions and answers regarding whether Case had ever contemplated a recall because of lighting issues.

The record shows that the Case engineer testified that he probably had a discussion regarding whether to recall or authorize a retrofit of bean heads with extremity lights but that there was at the time no history of accidents involving bean heads that would justify a recall.  Appellants argue that this excluded testimony was “[e]vidence that [Case’s] engineers considered a recall of this combine/header” and that such evidence “is relevant to show that Case knew that its product posed a substantial risk of harm.”  Respondents argue that the excluded evidence is not relevant to appellants’ claims and that, although such evidence might be relevant to a claim that Case breached a “post-sale duty to warn,” appellants made no such claim.

In their amended complaint, appellants claim that Case “owed Plaintiffs . . . a duty to design, develop, select materials for, manufacture, assemble, test, inspect, sell, promote, provide warnings for, and distribute the subject combine and bean head in a manner that rendered it safe” and that Case “failed to adequately warn against foreseeable and/or intended uses of the bean head [without lighting or adequate reflective devices] at night.”  (Emphasis added.)  We conclude that appellants’ complaint sufficiently states a claim for breach of a post-sale duty to warn. 

Whether a seller knows or reasonably should know that a product poses a substantial risk of harm is relevant to a claim of post-sale failure to warn.  Hodder v. Goodyear Tire & Rubber Co., 426 N.W.2d 826, 833 (Minn. 1988); Myers v. Hearth Tech., Inc., 621 N.W.2d 787, 791 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  Here, the fact that Case engineers declined to recommend a recall because of the absence of accidents involving unlit bean heads does not demonstrate that Case knew or reasonably should have known that its combines with unlit bean heads posed a substantial risk of harm.  We therefore conclude that the recall testimony was not relevant to a claim of breach of a post-sale duty to warn and that the district court did not abuse its discretion by excluding the recall testimony on the ground of relevance.

Even if we were to conclude that the district court abused its discretion by excluding this testimony, the exclusion was not prejudicial because appellants were allowed to introduce the engineer’s testimony that Case had issued a service bulletin to its dealers regarding “header lighting retrofit parts” that explained how to mount on an old combine a new header with extremity lights and that, although Case had parts that made it possible to add extremity lights to an old header, Case did not issue a service bulletin regarding this fact.  This evidence was relevant to the question of whether Case knew that its unlit bean heads posed a risk of harm, and the testimony regarding discussion of a recall would have been cumulative.

Appellants also argue that the recall testimony in the Case engineer’s deposition was admissible to impeach other Case-employee testimony that Case did not know of anything wrong with its combine and bean head and that in their opinions the bean head did not need extremity lighting.  The record does not show that appellants argued to the district court that the recall testimony was admissible for impeachment purposes, but even if they had, the excluded testimony is not inconsistent with the other Case-employee testimony.  Therefore, the recall testimony would lack impeachment value.  See In re Welfare of D.D.R., 713 N.W.2d 891, 901 (Minn. App. 2006) (noting that prior inconsistent statements are admissible for impeachment purposes).

VIII.

Appellants argue that the district court abused its discretion by excluding the opinions of two of its experts, Myron Lofgren, an accident-reconstruction expert, and Ellie Francis, a visual-and-human-factors expert, regarding the “causation” of the accident.  A district court’s decision regarding whether to admit expert testimony will not be reversed absent an abuse of discretion.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  When deciding whether to admit expert testimony, the district court must determine whether the expert has been proved competent to provide an opinion on the matter at issue and “whether the opinion [is] based on facts sufficient to form an adequate foundation.”  Law v. Essick Mfg. Co., 396 N.W.2d 883, 887 (Minn. App. 1986) (citing Minn. R. Evid. 702, 703), review denied (Minn. Jan. 27, 1987).  “Expert opinion is required to prove causation if the issue is outside the realm of common knowledge.”  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 762 (Minn. 1998).  An expert “should not be allowed to speculate.”  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 155 (Minn. 1982).

The district court did not allow Lofgren to respond to the following question on the ground that it called for speculation:  “[I]s it more predictable, in your experience as a highway patrol officer and a reconstructionist, what people will do when they’re faced with a flashing light in their lane of travel than in those other two situations where the lights are all contained in the other lane?”  And the district court did not allow Francis to respond to the following question because of lack of foundation:  “Do you have an opinion as to whether the absence of flashers on the Gehl header was a substantial contributing factor in causing this collision using all of the knowledge you’ve gained in these demonstrations and your background as a vision specialist in the perception side of—?”  The record shows that the jury watched a video that showed what a combine and bean head would look like to a driver at night under circumstances similar to those that existed on the night of Bach’s accident.

On this record, we conclude that the district court did not abuse its discretion by prohibiting the witnesses from responding to the above questions.  The question to Lofgren called for speculation.  See Hudson, 326 N.W.2d at 155 (providing that experts should not be allowed to speculate).  And the question to Francis was an attempt to elicit her opinion regarding what caused the accident when the jury had seen the same reenactment evidence that Francis did; therefore, the issue of causation was not outside the realm of common knowledge, and it would not have been helpful to the jury to hear Francis’s opinion on who or what caused the accident.  See Minn. R. Evid. 702 (providing that if specialized knowledge will assist a trier of fact to understand the evidence or to determine a fact in issue, a qualified expert may testify in the form of an opinion).

Appellants also argue that the district court abused its discretion by allowing respondents to cross-examine Lofgren regarding what a “reasonable driver” might do under circumstances similar to those that existed on the night of Bach’s accident.  Although appellants claim in their brief that they objected to this line of questioning, review of the trial transcript shows that appellants made no objection, and appellants did not make a motion in limine regarding “reasonable-driver” questions to appellants’ experts.  When a party fails to object to evidence at trial, that party has generally waived any objection.  Steiner, 545 N.W.2d at 44; see also Minn. R. Evid. 103(a)(1) (requiring “a timely objection or motion to strike” to claim erroneous admission of evidence).

Because we find no abuse of the district court’s discretion in its evidentiary rulings that warrants a new trial, we affirm.

            Affirmed.