Stamper v. Hyundai Motor Co.

• Decision Date: 11 August 1998
• Docket Number: No. 54A05-9607-CV-261,54A05-9607-CV-261
• Citation: 699 N.E.2d 678
• Parties: Joycelyne A. STAMPER and Scott A. Stamper, individually and as parents and natural guardians of Cristen R. Stamper, a minor, Lauren K. Stamper, a minor, Brandon S. Stamper, a minor, and Alicia N. Stamper, a deceased minor, Appellants-Plaintiffs, v. HYUNDAI MOTOR COMPANY, Hyundai Motor America, and Five Star Motors of Lafayette, Inc., d/b/a Bob Rohrman Hyundai, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 678

699 N.E.2d 678

Joycelyne A. STAMPER and Scott A. Stamper, individually and as parents and natural guardians of Cristen R. Stamper, a minor, Lauren K. Stamper, a minor, Brandon S. Stamper, a minor, and Alicia N. Stamper, a deceased minor, Appellants-Plaintiffs, v. HYUNDAI MOTOR COMPANY, Hyundai Motor America, and Five Star

Motors of Lafayette, Inc., d/b/a Bob Rohrman

Hyundai, Appellees-Defendants.

No. 54A05-9607-CV-261.

Court of Appeals of Indiana.

Aug. 11, 1998.

Transfer Denied December 22, 1998.

James R. Fisher, Michael A. Wilkins, Debra H. Miller, Ice Miller Donadio & Ryan, Indianapolis, for Appellants-Plaintiffs.

Richard A. Huser, Julia Blackwell Gelinas, Nelson D. Alexander, Locke Reynolds Boyd & Weisell, Indianapolis, Michael T. Pulaski, Robert W. Maxwell, Pulaski Gieger & LaBorde, New Orleans, LA, for Appellees-Defendants.

OPINION

ROBERTSON, Senior Judge

Case Summary

Appellants-Plaintiffs, Joycelyne and Scott Stamper, individually and as the parents of Cristen, Lauren, Brandon, and Alicia (collectively "Stampers"), appeal from two jury verdicts in favor of Appellees-Defendants, Hyundai Motor Company, Hyundai Motor America, Five Star Motors of Lafayette, Inc., d/b/a Rob Rohrman Hyundai (collectively "Hyundai"). We affirm.

Issues

The Stampers raise five issues which we restate as:

I. Whether the trial court erred in permitting defense counsel to comment upon opposing counsel during opening argument;

II. Whether the trial court properly admitted or excluded new and undisclosed exhibits and expert theories;

III. Whether the trial court properly admitted two crash test videos;

IV. Whether the trial court properly instructed the jury regarding expert witness credibility; and,

V. Whether the trial court properly instructed the jury regarding duty of care.

Facts and Procedural History

The facts most favorable to the verdict show that

On March , 1991, Joycelyne Stamper was transporting four of her children to Indianapolis in her 1990 Hyundai Excel. While travelling [sic] along State Road 32 in Montgomery County, Indiana, the Stampers were involved in a collision. Alicia Stamper was killed, and Cristen Stamper was ejected from the vehicle and sustained severe and permanent brain damage.

On March 16, 1992, the Stampers filed suit against Hyundai alleging that their Hyundai Excel, which had split in half through the passenger compartment along a seam of welds, was in a defective condition and unreasonably dangerous.

Hyundai Motor Co. v. Stamper, 651 N.E.2d 803, 805 (Ind.Ct.App.1995).

In January 1995, the case was tried before a jury which rendered a verdict in favor of Hyundai for the Stampers' deceased child but failed to reach a verdict in regard to the Stampers' injured child or Joycelyne's claims for loss of services, financial losses and emotional injuries. In January 1996, a second trial was held and the jury again rendered a verdict in favor of Hyundai on the other claims.

Discussion and Decision

I. Misconduct of Counsel

The Stampers argue that the trial court committed reversible error when it permitted defense counsel to make comments about plaintiff's counsel and, presumably, failed to sua sponte declare a mistrial. During opening arguments in the 1995 trial, counsel for Hyundai stated, apparently in response to the Stampers' opening argument:

Now Mr. Fisher is from the firm of Ice and Miller. The largest firm in Indianapolis. Big, big firm. And you know, recently the Indianapolis [Star?] said that people in Mr. Fisher's firm, one of the associates on this case was involved in high priced ambulance chasing is just plain wrong. We now have removed bodies from the scene. An investigator was snapping pictures. Now that is not what this is about today.

(R. 3901). ¹ The Stampers failed to make an objection to these remarks.

The question of whether the conduct of counsel was so improper as to prejudice the fair conduct of the trial is within the sound discretion of the trial court, because the trial court has the advantage of observing the events and their effects at trial. Becker v. Plemmons, 598 N.E.2d 564, 567 (Ind.Ct.App.1992). In order to preserve a ruling with regard to remarks by opposing counsel, a specific objection and a request that the jury be admonished to disregard the remark are required. Chaiken v. Eldon Emmor & Co., Inc., 597 N.E.2d 337, 345 (Ind.Ct.App.1992). We must presume that the jurors would have followed the trial court's admonishment. See Becker, 598 N.E.2d at 567. A reviewing court will reverse a judgment due to improper remarks by counsel during argument only when it appears from the entire record that the remarks, in all probability, formed the basis for securing an incorrect verdict. Chaiken, 597 N.E.2d at 345.

To avoid waiver, the Stampers contend that no useful purpose would have been served by objecting to these comments. We disagree. The trial could would have been given the opportunity to exercise its discretion to determine whether the remarks were improper and if so, to admonish the jury. Following a ruling on such an objection, the Stampers could have moved for a mistrial, which was not done, and permitted the trial court to rule thereon. This court is not in as favorable a position as the trial court to determine the possible effect of these remarks upon the jury, and an objection is necessary to preserve the issue on appeal.

The Stampers also argue that Chaiken is distinguishable because that case involved a comment upon the existence of insurance. The Stampers posit that there are two types of misconduct: improper reference to inadmissible evidence and improper statements about opposing counsel. We decline to make such a distinction. The harmful effect of improper conduct by counsel is not measured by the target of the remark, but by its influence upon the jury.

We conclude that the Stampers' failure to object to defense counsel's remarks results in waiver of this issue on appeal.

II. Admission of New or Undisclosed Evidence New Crash Test

The Stampers argue that the trial court erred when it permitted Hyundai to show a video tape to the jury which depicted a crash test conducted during the 1995 trial, and undisclosed to Stamper. After the close of the Stampers' case-in-chief, a crash test was conducted during a weekend break in the trial, utilizing a 1990 Excel modified to eliminate some of the alleged design defects. ² The test results and video tape were not mentioned during direct or re-direct examination of Hyundai's defense witness, but were brought out on re-cross examination:

Q. ... If we simply looked at the strength of this sill outside the seam, compared to the strength of these two bolts we'd know which one would fail that failed next wouldn't we?

A. Well no sir there's a more direct way. I have test data that shows that if you make that seam indefinitely strong you just tear through the steel at a point forward of this the seam. You don't tear the bolts off you tear through the steel.

....

A. I don't know what the value will be all I can tell you is if you run the test that you are talking about and you make the seam indefinitely rigid you'll tear through the steel. You will not break those bolts.

A. ... The weakest part would come apart but there's something wrong with your premise because I have test data that show that the bolts don't come apart next. What happens next is you tear the steel in the body sill.

Q. Because you've taken an Excel and you have made this infinitely strong and you've crash tested it?

A. Yes.

Q. Did you remember to bring the data of the I want to see the infinitely strong connection that you fashion there.

A. Sure okay. I just happen to have that. I have a video tape and I have some data that show that.

(R. 5085-87) (emphases added).

On further re-direct examination, Hyundai requested to show the new video tape to the jury. The Stampers objected that the exhibit was not identified before trial and counsel had no opportunity to depose witnesses, to view the tape, the test procedures, or the test vehicles. When this objection was overruled, a hearing was held and the Stampers requested a continuance should the trial court permit the jury to view the tape. The trial court found that the failure to disclose the test was offset by the fact that the test came to light in response to the Stampers' questioning, and permitted the jury to view the tape. The trial court also granted the Stampers an opportunity to study the tape, do further discovery, and run additional tests. The Stampers also conducted further re-cross examination of the witness.

Approximately six days later, the Stampers presented rebuttal testimony from another expert witness regarding the new crash test. ³ This witness apparently had been given an opportunity to evaluate the testimony and data presented earlier. The Stampers did not recall Hyundai's expert witness who had conducted the test.

The trial court has broad discretion in ruling on the admissibility of evidence and in determining its relevance. Mitchell v. Mitchell, 685 N.E.2d 1083, 1087 (Ind.Ct.App.1997). We will disturb its ruling only upon a showing of abuse of that discretion. Id. The duty to seasonably supplement a discovery response is absolute and is not predicated on a court order. ⁴ Lucas v. Dorsey Corp., 609 N.E.2d 1191, 1196 (Ind.Ct.App.1993). Where there has been a failure to comply with discovery procedures, the trial judge is usually in the best position to determine the dictates of fundamental fairness and whether any resulting harm can be eliminated or satisfactorily alleviated. Vanway v. State, 541 N.E.2d 523, 527 (Ind.1989). Where remedial measures are warranted, a continuance is usually the proper remedy, but exclusion of evidence may be appropriate. Id.

Hyundai had a duty to disclose the new crash test data and video tape if it intended to use them as a trial exhibit. Assuming that Hyundai planned to introduce the video tape as evidence, though it...