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The defendant BH Corp. …cont

The defendant BH Corp. raises many issues in its brief. Many of these issues do not receive separate headings. In discussing these issues, we have joined and rearranged the issues where appropriate.

The defendant BH Corp. did not except to these portions of the charge. Thus, the above excerpts constitute the law of the case. The defendant BH Corp. was and is bound by the charge on this point as a result of its failure to except.

For purposes of the retrial hereinafter ordered, we make the following comments. If the jury accepts the validity of the SWRI report, then the report may be considered as some evidence that the defendant BH Corp. violated a minimum safety standard. The report plus all other evidence in the record should be considered by the jury in determining whether there was an actual violation of the minimum safety standards set forth in F.M.V.S.S. No. 218. At the retrial, the jury must also consider the fact that the D.O.T. has dropped the investigation in this matter. An actual violation of the minimum safety standards must necessarily translate into a specific defect in the Super Magnum model. The jury must find, of course, that the specific defect was the proximate cause of plaintiff’s injury. The foregoing comments are not intended to be restrictive. Plaintiff, if so advised, may introduce such other evidence as may show a defect and the consequences of that defect.

Second, it should be stressed that the defendant BH Corp. did not object to the submission of the case upon the four theories mentioned above. Therefore, the defendant BH Corp. has not reserved its right to contend upon appeal that the case should have only been submitted on the theory of strict products liability.

The present action is a second collision case as against the defendant BH Corp. Under the crashworthiness or second collision doctrine, plaintiff was required to prove that her injuries were more severe than they would have been had the helmet been properly designed. The jury should not have been permitted to infer that the helmet was defective from the circumstances surrounding the occurrence. As a consequence of the collision, plaintiff would have necessarily sustained some injuries. Hence, the jury could not infer that the helmet was defective from the mere fact that plaintiff was injured. Plaintiff was required to show by independent proof that a defect in the helmet caused enhanced injuries. The error in these portions of the charge requires a new trial.

While the defendant BH Corp. did except to these portions of the charge, it failed to pursue the second collision doctrine in other phases of the charge. For example, the defendant BH Corp. never requested that its damages be limited to any enhancement caused by the defect in the helmet if such defect were found. Again, by failing to except at the trial level, the defendant BH Corp. may not raise this error on appeal.

As a fourth point, the defendant BH Corp. maintains that the trial court abused its discretion in limiting the direct examination of the defendant BH Corp.’s expert, Dr. G. This expert was a neurological surgeon who had treated over one thousand trauma injury to the brain. The defendant BH Corp. attempted to examine Dr. G with regard to the protection afforded to the plaintiff by the helmet. The trial court sustained an objection by plaintiff. Under the second collision doctrine, Dr. G’s testimony on this issue was very relevant. The defendant BH Corp. should have been permitted to show that the helmet reduced the injuries and did not cause any enhanced injuries.

Fifth, error is alleged with reference to the admission of the police report. This report was inexplicably admitted during the testimony of defendant MD. The police report indicates that a police officer was at the scene. The report is signed by police officer. Neither Byrne nor the police officer testified at trial. Therefore, no foundation was laid for the admission of this exhibit.

It should be stressed that this exhibit was particularly important to the resolution of the liability issues. It contained a schematic showing the point of impact to be on JS’s side of Schley Avenue. Additionally, it indicated that JS’s motorcycle did skid forty feet before the impact. Based upon the schematic in the police report, plaintiff’s reconstruction expert, Reconstruction expert, had made his own drawing of the event. JS and The defendant BH Corp. were denied the right to test the accuracy of the police report because neither of the responding officers was present at trial. It was impossible for the defendants to test whether the accident report was based upon eyewitness observations of the officers or whether it was based upon hearsay.

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