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Hinte v. Echo12/10/1998
"MR. LEESEBERG: No, I did not. I stipulated--
"MR. BRUNN: That's what you said to me.
"MR. LEESEBERG: The stipulation, Tom, which is not in writing, was as a matter of professional courtesy to both of us, that we would both stipulate to anything that had previously been exchanged and reviewed by counsel. And you said well, I don't have the medical records of Dr. Wroble, and--
"MR. BRUNN: I didn't.
"MR. LEESEBERG:--upon review of your records, you determined you did have them.
"MR. BRUNN: No, I never had those records.
"MR. LEESEBERG: That was the stipulation, was that exhibits would be stipulated to to the extent that they had been previously exchanged."
The court later noted that the stipulation between the parties regarding evidence, if any, had not been entered on the record: "I don't know about any stipulation, if you have got some stipulation by and between you." From the transcript, it is clear that, while there may have been some misunderstanding between counsel on this point, counsel for appellant never considered the engineering specifications to have been stipulated to and in fact, counsel objected to their admission at every relevant point in the trial process. Counsel then reiterated his objections in his motion for a new trial after the jury verdict. Under these circumstances, we cannot find that the engineering specifications were properly admitted pursuant to the purported stipulation between the parties, the existence of which counsel for appellant vehemently denied from the outset.
We now turn to the issue of whether the erroneous admission of the Echo blade engineering specifications had a prejudicial effect on the outcome of the trial. Under cross-examination, Amrein responded to the following question: "The whole basis for your opinion that this is not an Echo blade is that it does not comply with Echo's engineering drawings?" His answer was "Correct." In the absence of the Echo engineering specifications, therefore, Amrein's testimony must be entirely subtracted from the balance of the evidence that the jury had available to it in reaching its verdict in favor of appellee. Likewise any testimony by Salvatini based on the engineering specifications must be discounted. The evidence remaining before the jury, then, would have consisted on the one hand of Klamfoth's assertion that he always purchased Echo equipment and blades and had purchased the blade in question as part of an Echo brush-cutting accessory kit, and, on the other hand, Salvatini's assertion that Echo had never sold such a kit that included a brush-cutting blade. It is apparent that Amrein's conclusions based upon the engineering specifications would have been of great weight in tipping the balance of the above irreconcilable assertions by witnesses for the opposing parties. We therefore conclude that the improper admission of the engineering specifications under Evid.R. 803(6) was prejudicial to appellant.
Based upon the foregoing, appellant's first assignment of error is sustained because the trial court improperly admitted the Echo blade engineering specifications without a proper foundation having been laid pursuant to Evid.R. 803(6). Appellant's second assignment of error is sustained to the extent that the testimony of appellee's two witnesses, Amrein and Salvatini, was inadmissible to the extent that it relied upon the improperly admitted engineering specifications. Further arguments made by appellant under his second assignment of errosregarding the competence of Salvatini to testify and the propriety of the trial court allowing him to testify in substitution for a previously declared witness
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