was not questioned as he would have been had plaintiffs decided not to summon him as a witness and defendants had elected to do so. We find this contention unpersuasive. It was understood that the witness would testify with all objections made and preserved for ruling at trial. Plaintiffs objected to the defendants questioning the witness as to the cause of a rotator cuff tear, but he answered the question subject to having the testimony stricken if the objection was sustained. Similarly, when plaintiffs' counsel heard the adverse testimony, he could then have declared the witness hostile and proceeded as if on cross-examination. Fed. R. Evid. 611(c). To be sure, defendants may have objected, but the testimony would have provided sufficient protection to the plaintiff. That he did not avail himself of the opportunity to pursue it provides no basis for post-trial relief.
Next, we consider the argument that the Court should have sustained plaintiffs' objection to the testimony regarding the cause of a rotator cuff tear as beyond the scope of the direct examination. It is true that plaintiffs did not explore the cause of the original injury with this witness, but they did ask Dr. McCrae if he was aware of the prior injury and whether such an injury would make the impingement syndrome, for which the witness treated the plaintiff, more likely to occur. As we ruled at trial, these questions sufficiently opened the subject matter of a rotator cuff tear and its causation to allow cross-examination on it. In addition, as noted previously, defendants had other, albeit duplicative and time-consuming means for producing the same testimony by the same witness.
Assuming, however, that the Court were now to conclude that the testimony should have been excluded for any of the reasons cited by the plaintiffs, we also consider that any error in permitting it was harmless in that it is "highly probable" that any such error did not affect the plaintiffs' "substantial rights". McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d Cir. 1985). As noted, the testimony in question concerns only the issue of causation. Importantly, and we emphasize that since the jury did not reach that issue, finding at the outset that there was no defect, the testimony is not likely to have affected the outcome.
We have considered, but dismiss as pure conjecture, the plaintiffs' tenuous argument that the jury's viewing of the videotape of Dr. McCrae, followed by defense counsel's remark during closing argument that the witness had originally been called by the plaintiffs, so prejudiced the jury that it rejected the testimony of plaintiffs' engineering expert as to the existence of the defect.
There was ample basis for the jury's rejection of the expert testimony if, indeed, that was the basis for the verdict. The jury was instructed that it could reject expert testimony if it found that there was insufficient foundation for the expert's opinion. Here, the jury may well have concluded that the plaintiffs' engineering expert's testimony should be accorded little or no weight on that basis. Plaintiffs' expert, e.g., was uncertain whether he took any measurements of the distance between the driver's seat and the air conditioning units in 1980 truck cabs. He was not sure which of the photographs he was shown represented 1980 vehicles. (N.T. of 7/16/86 at 53-56). Having reviewed no engineering drawings of 1980 GMC trucks, (Id. at 78), he was not prepared to testify to the feasibility of an alternative, safe design, nor did he prepare and present one. (Id.) The sum and substance of the expert's testimony was that the defect in the cab was obvious to anyone who observed the positions of the air conditioner and the driver's seat.
Moreover, plaintiffs have failed to consider another possible basis for the verdict. The jury could have concluded that the plaintiff's version of how his injury occurred was simply not credible, that he never struck the air conditioner even if it was located close to the driver's seat. As defense counsel noted in his closing argument, medical records obtained from the hospital where plaintiff was treated immediately after the accident revealed that external signs of injury were consistent with his being thrown left and forward and away from the air conditioner rather than right and to the rear and towards the air conditioner. (N.T. of 7/28/86 at 45, 48). Plaintiffs' engineering expert had testified that his opinion that the position of the air conditioner constituted a design defect depended, in part, upon the plaintiff's account of how the accident occurred. (N.T. of 7/17/86 at 126). Thus, if the jury rejected plaintiff's testimony as to striking the air conditioner it logically concluded that the opinion as to the defective design was invalid, as plaintiffs' expert frankly conceded it might be if the information provided by the plaintiff was unreliable. (Id.)
In sum, the Court concludes that none of the errors which plaintiffs contend were committed are likely to have affected the outcome of the trial in light of the quantity of conflicting evidence available for the jury's consideration. Consequently, we find no basis for granting a new trial in this case. Therefore, plaintiffs' motion for judgment n.o.v. and, in the alternative, for a new trial will be dismissed.
AND NOW, this 20th day of August, 1987, IT IS ORDERED that plaintiffs' motion for judgment n.o.v. and, in the alternative, for a new trial is DENIED.