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Breedlove v. Aerotrim3/20/2001
Defendant appeals from judgment entered by the Honorable Charles Lamm in Buncombe County Superior Court upon return of a jury verdict for plaintiffs. Heard in the Court of Appeals 30 January 2001.
Defendant, Aerotrim, U.S.A., Inc. ("Aerotrim"), manufactured, marketed, and sold a "human gyroscope" amusement ride to defendant, Matthew Gellert ("Mr. Gellert"). Mr. Gellert contracted with the City of Asheville, North Carolina to operate the human gyroscope at the City's 1995 Bele Chere Festival.
On 30 July 1995, plaintiff, ten-year-old Brian Breedlove ("Brian"), attended the Bele Chere Festival. Brian paid five dollars to Mr. Gellert to ride the human gyroscope. Mr. Gellert and his wife strapped Brian in the ride at his waist and ankles. During the ride, the waist assembly came loose. Brian's upper body and legs fell backwards out of the spinning ride. Brian's ankles remained strapped to the ride, resulting in two broken ankles. Brian was immediately taken to the hospital where surgery was performed on both ankles.
On 19 August 1996, Brian and his mother, Sheila Howard ("Ms. Howard"), commenced this negligence action against Aerotrim, Mr. Gellert, and the City of Asheville. On 19 February 1997, a default judgment was entered against Aerotrim. On 27 May 1997, the City of Asheville was granted summary judgment.
"Howard-Gellert Motion in Limine"
On 14 November 1997, a mediated settlement conference was held between the plaintiffs and Mr. Gellert. Mr. Gellert telephoned Ms. Howard the evening following the settlement conference, leaving an answering machine message. Mr. Gellert expressed frustration with the mediation process, the length of time that had passed, and the fact that his attorneys were trying to "devalue the pain" and "trauma" Brian has gone through. Mr. Gellert stated he could possibly help plaintiffs and asked Ms. Howard to call him.
On 13 December 1997, Ms. Howard returned Mr. Gellert's call. According to Ms. Howard, Mr. Gellert stated that he was not "adamantly positive" that he had fastened Brian securely into the ride. This statement is contrary to his testimony given at his earlier deposition.
On 9 April 1999, Mr. Gellert died of cancer after an extended illness.
On 23 June 1999, defense counsel filed a motion in limine to exclude all testimony regarding conversations between Mr. Gellert and Ms. Howard. The trial judge granted the motion with regard to the answering machine message, but denied the motion with regard to Ms. Howard's telephone conversation with Mr. Gellert, except as it related to settlement negotiations.
"Eglinton Motion in Limine"
On 29 August 1997, Brian was referred to Dr. Daniel Eglinton, a board certified orthopedic surgeon. Dr. Eglinton gave a videotaped deposition on 8 May 1998 ("first deposition"). In his first deposition, Dr. Eglinton described Brian's injuries and detailed the care and treatment given to Brian. Dr. Eglinton also commented on potential future outcomes and treatment for Brian.
On 1 July 1999, Dr. Eglinton gave a supplemental videotaped deposition ("second deposition"). In the second deposition, Dr. Eglinton updated Brian's condition. Dr. Eglinton testified that Brian's potential outcomes and treatments were more limited than he had identified in the first deposition.
On 2 July 1999, Mr. Gellert filed a motion in limine to exclude certain portions of the first deposition. Defendant argued that portions of the first deposition were irrelevant in light of the testimony in the second deposition. This motion was denied. Both depositions were played at trial for the jury in their entirety, with a limitin
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