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Tabieros v. Clark Equipment Co.9/15/1997
ucted the jury regarding Tabieros's duty to mitigate or minimize his damages and Clark's burden of proving, by a preponderance of the evidence, that Tabieros breached that duty, the circuit court erroneously failed to apprise the jury as to the potential consequences -- with respect to a jury award -- of any failure on Tabieros's part to use reasonable diligence under the circumstances to mitigate or minimize his damages. See supra at section III.C.3. Accordingly, it does not affirmatively appear from the record that Clark was not prejudiced with respect to the issue of damages as well.
We therefore have no choice but to vacate the portion of the judgment entered in Tabieros's favor and against Clark and remand the matter for a new trial. While the necessity of a third trial in this case is lamentable, hopefully the present decision and the plaintiffs' settlement with Navigation will simplify the issues and heighten the parties' focus. In this connection, and with an eye toward facilitating retrial and minimizing the possibility of error, we now address the issues on appeal that will likely arise should retrial occur.
D. Evidentiary Rulings -- Exhibits
In connection with the plaintiffs' claims against Clark that were submitted to the jury -- negligent design and strict product liability --, both the plaintiffs and Clark urge on appeal that the circuit court either erroneously admitted or excluded various exhibits. Clark, moreover, argues that the circuit court, to Clark's substantial prejudice, erroneously allowed the plaintiffs to place the contents of a report before the jury through the testimony of an expert witness, notwithstanding that the circuit court had already refused to receive the report itself into evidence as an exhibit.
1. Videotape of Tabieros's bowling activity
Tabieros testified at trial that the residual effects of his injuries impaired his ability to engage in the sport of bowling, which was his most avid interest, by generating significant pain when he played the game so that he drank constantly to control the pain. Clark obtained two videotapes, produced by local television stations, which purported to depict Tabieros bowling and winning a tournament. Clark then sought to introduce the videotapes into evidence as exhibits in order to rebut Tabieros's claims regarding the residual and lasting effects of his injuries on his bowling proficiency, including his alcohol consumption. Alternatively, Clark sought to introduce the tapes in conjunction with the testimony of its medical expert, who had viewed them as part of his independent medical examination and evaluation of Tabieros. Pursuant to HRE 403 (1993), the circuit court refused to admit the tapes, as well as certain photographs derived from them, into evidence as exhibits, but allowed the photographs to be published to the jury for illustrative purposes during the testimony of the medical expert, who was relying, inter alia, on having viewed the tapes in their entirety in rendering his opinions.
From the standpoint of both Clark and the plaintiffs, the subject matter of the videotapes was obviously relevant to the issue of compensatory damages in general and to the scope, degree, and value of Tabieros's residual injuries in particular. See HRE 401 (1993). Thus, under HRE 402 (1993), the evidence was admissible unless it was otherwise excludable for constitutional reasons or pursuant to statute, some other provision of the HRE, or the rules of this court.
Although the circuit court indicated that it was refusing to admit the videotapes into evidence because of HRE 403, it
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