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Hinte v. Echo12/10/1998
had been given documents representing the engineering specifications for Echo brush-cutting blades, and that the fractured blade differed in two respects from those engineering specifications. The fractured blade was 0.045 inch thick, rather than 0.055 inch as called for in the Echo blade specifications, and thsfractured blade had somewhat less tooth offset than that specified in the Echo drawings. The blades also differed somewhat in the identifying stampings on the body of the blade, although both were stamped SKS-5, a Japanese steel identification code. Amrein testified upon cross-examination that the sole basis for his expert opinion that the fractured blade was not one manufactured by Echo was that it did not conform with the Echo engineering drawings that he had been given. At the outset of Amrein's testimony, when he first referred to the Echo engineering drawings, appellant objected to use of the drawings as a basis for Amrein's expert testimony because the drawings had not been admitted into evidence and no proper foundation had been laid. Counsel for appellee asserted that the documents had been stipulated, which counsel for appellant denied. The court found that Amrein could refer to the engineering drawings and specifications, and that Echo could authenticate and proffer them for admission at a later time.
Appellee also presented the testimony of Jonathan Salvatini, the manager of product integrity for Echo. With respect to the issues upon appeal, the crux of Salvatini's testimony was that in his experience, Echo did not package its brush-cutting blades as part of an optional brush-cutting kit for weed trimmers. Salvatini was also asked to identify appellee's Exhibit A, the Echo engineering drawings, and stated that he had obtained the engineering specifications a few weeks before, in preparation for the trial. He also stated that he was not an engineer and could not formulate an opinion as to whether or not the blade in question, based upon the engineering specifications and physical appearance, had been manufactured and sold by Echo.
At the close of evidence, appellant renewed his motion to strike all aspects of the testimony of Amrein and Salvatini that had been premised upon the use of the engineering specifications, because no foundation had been laid to permit their admission under the business-records exception to the hearsay rule. The court overruled the motion on the basis that the documents had previously been provided in connection with a prior motion for summary judgment, and that appellant had adequate time to prepare to rebut this evidence. Appellant also moved for a finding that the blade was defective as a matter of law, based upon testimony to that effect by Amrein. Counsel for appellee did not oppose this motion. The trial court accordingly ruled that the blade was defective as a matter of law.
Exhibits were then admitted without objection other than to the Echo engineering specifications, the trial court overruled a motion for directed verdict on behalf of Echo, and the matter went to the jury after closing arguments. The jury then returned its verdict in favor of Echo. Subsequent motions for sjudgment notwithstanding the verdict or for a new trial were overruled by the trial court, and appellant has timely appealed, bringing the following two assignments of error:
"1. The trial court erred in admitting into evidence engineering specifications that failed to comply with Evid.R. 803(6) and for which no foundation had been established that would allow for their admission in compliance with Evid.R. 803(6).
"2. The trial court erred when it denied the motions to exclude and motions to strike the testimony of w
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