Craig Langsdorf v. Michael Hoefferle

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COURT OF APPEALS DECISION DATED AND FILED NOTICE December 23, 1997 This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. Marilyn L. Graves Clerk, Court of Appeals of Wisconsin A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See § 808.10 and RULE 809.62, STATS. No. 97-1153 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III CRAIG LANGSDORF, PLAINTIFF-APPELLANT, V. MICHAEL HOEFFERLE AND VIKING INSURANCE COMPANY OF WISCONSIN, DEFENDANTS-RESPONDENTS. APPEAL from a judgment of the circuit court for Price County: DOUGLAS T. FOX, Judge. Affirmed. Before Cane, P.J., Myse and Hoover, JJ. PER CURIAM. Craig Langsdorf appeals a judgment in his automobile accident lawsuit that awarded him damages against Michael Hoefferle and Viking Insurance Company of Wisconsin. His appeal seeks a new trial in an effort to obtain an increase in the damage award. He challenges two trial court NO. 97-1153 rulings that he believes had the effect of wrongly depressing the jury s damage award: (1) the trial court erroneously used the hearsay rule, in violation of the business record hearsay exception applied in Rennick v. Fruehauf Corp., 82 Wis.2d 793, 264 N.W.2d 264 (1978), to exclude from substantive evidence a consulting physician s written report that Langsdorf s chiropractor relied on in giving his expert testimony on Langsdorf s damages; and (2) the trial court should have instructed the jury on the effect its comparative negligence allocation would have on Langsdorf s damage recovery. Langsdorf may also be seeking the hearsay report s admission on the legal theory that the chiropractor relied on the report and as a collateral effect, this reliance rendered the report admissible as substantive evidence. See § 907.03, STATS. We reject Langsdorf s arguments and therefore affirm the judgment. First, Langsdorf waived the business record hearsay exception of § 908.03(6), STATS. He did not sufficiently present it to the trial court. Langsdorf briefly cited Rennick to the trial court, without citing the business record exception itself. He did not supply the trial court a copy of the Rennick decision or advise the trial court of its underlying rationale. Langsdorf s trial court argument was inadequate to preserve an issue under § 908.03(6). Without the business record exception, the physician s report was inadmissible hearsay. It was an out-of-court statement offered for the truth of the matter asserted. See State v. Hilleshiem, 172 Wis.2d 1, 19, 492 N.W.2d 381, 388-89 (Ct. App. 1992). Langsdorf believes the report is probative of the permanency of his injuries We therefore see no erroneous exercise of evidentiary discretion. See State v. Sorenson, 143 Wis.2d 226, 240, 421 N.W.2d 77, 82 (1988). Second, the chiropractor s reliance on the report does not itself as a byproduct make the hearsay admissible for Langsdorf. Langsdorf mistakes his 2 NO. 97-1153 evidentiary rights in this situation with those held by adverse parties. For example, the chiropractor s reliance may have permitted an adverse party to probe the expert about the report on cross-examination. See § 907.05, STATS.; see also State v. Weber, 174 Wis.2d 98, 106-08 & n.6, 496 N.W.2d 762, 766-67 & n.6 (Ct. App. 1993). Courts have also allowed adverse parties to introduce such reports, not as substantive evidence, but for the purpose of the expert s impeachment and in the interest of completeness. See Vinicky v. Midland Mut. Cas. Ins. Co., 35 Wis.2d 246, 151 N.W.2d 77 (1967); see also Korte v. New York, N.H. & H.R. Co., 191 F.2d 86 (2d Cir. 1951) (adverse party may introduce hearsay report). Langsdorf, however, as a nonadverse party, must still meet one of the hearsay exceptions in order to introduce the hearsay report as substantive proof. See Weber, 174 Wis.2d at 106-08 & n.6, 496 N.W.2d at 766-67 & n.6. He may not bootstrap the report into evidence as an adjunct to his own expert s testimony, in the absence of a showing that the report itself was an admissible business record under Rennick. Finally, Langsdorf had no right to tell the jury about the effect its comparative negligence allocation would have on Langsdorf s damage award. Juries must make their negligence allocations on the evidence and the parties relative culpabilities, free of such extraneous information as the allocation s effect on the damage award. See McGowan v. Story, 70 Wis.2d 189, 196-98, 234 N.W.2d 325, 328-30 (1975). If the trial court had allowed this information to have a part in the trial, the trial court would have expressly introduced bias, prejudice, and sympathy into the trial, and the verdict would rest in part on such inappropriate factors. See id. It would allow the jury to manipulate the apportionment of negligence to achieve a particular result, regardless of the evidence. Id. The Wisconsin Supreme Court has long prohibited such matters, 3 NO. 97-1153 see Ryan v. Rockford Ins. Co., 77 Wis. 611, 46 N.W. 885 (1890), and the legislature has never authorized otherwise. In short, Wisconsin s comparative negligence law does not authorize litigants to introduce such material into the trial. By the Court. Judgment affirmed. This opinion will not be published. See RULE 809.23(1)(b)5, STATS. 4

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