RENDERED: NOVEMBER 15, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2022-CA-0649-MR
DANIEL BAUER, ADMINISTRATOR FOR THE ESTATE OF SANDRA BAUER; DANIEL BAUER, ADMINISTRATOR FOR THE ESTATE OF ANDREA BAUER; DANIEL BAUER, INDIVIDUALLY; PAMELA KENDRICK BAUER, ADMINISTRATOR FOR THE ESTATE OF NEVAEH BAUER; PAMELA KENDRICK BAUER, INDIVIDUALLY; NATHAN BAUER, INDIVIDUALLY; AND BRADEN BAUER, AN INFANT BY AND THROUGH HIS MOTHER AND NEXT FRIEND, PAMELA KENDRICK BAUER APPELLANTS
APPEAL FROM FLOYD CIRCUIT COURT v. HONORABLE THOMAS M. SMITH, JUDGE ACTION NO. 16-CI-00829
HYUNDAI MOTOR AMERICA, INC. AND HYUNDAI MOTOR COMPANY, LTD APPELLEES
AND NO. 2022-CA-0737-MR
HYUNDAI MOTOR AMERICA, INC. AND HYUNDAI MOTOR COMPANY, CROSS-APPELLANTS LTD
CROSS-APPEAL FROM FLOYD CIRCUIT COURT v. HONORABLE THOMAS M. SMITH, JUDGE ACTION NO. 16-CI-00829
DANIEL BAUER, ADMINISTRATOR FOR THE ESTATE OF SANDRA BAUER; DANIEL BAUER, ADMINISTRATOR FOR THE ESTATE OF ANDREA BAUER; DANIEL BAUER, INDIVIDUALLY; PAMELA KENDRICK BAUER, ADMINISTRATOR FOR THE ESTATE OF NEVAEH BAUER; PAMELA KENDRICK BAUER, INDIVIDUALLY; NATHAN BAUER, INDIVIDUALLY; AND BRADEN BAUER, AN INFANT BY AND THROUGH HIS MOTHER AND NEXT FRIEND, PAMELA KENDRICK BAUER CROSS-APPELLEES
-2- OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, A. JONES, AND TAYLOR, JUDGES.
JONES, A., JUDGE: Daniel Bauer, Pamela Bauer, and Nathan Bauer,
(collectively, “the Bauers”) appeal from a jury verdict in favor of Hyundai Motor
America, Inc. and Hyundai Motor Company, Ltd. (collectively, “Hyundai”) in a
crashworthiness product liability case involving a 2013 Hyundai Tucson. Hyundai
cross-appealed. After a thorough review of the facts and the law, we affirm the
judgment in favor of Hyundai.
I. BACKGROUND
On December 24, 2015, a 2013 Hyundai Tucson driven by Sandra
Bauer collided with a 2012 Chevrolet Cruze driven by Roland Patrick in Floyd
County. Patrick’s vehicle crossed the center line of Kentucky Highway 114,
causing the two vehicles to collide head-on but slightly offset, with the right front
of the Tucson meeting the right front of the Cruze. The combined speed of the two
vehicles was approximately 120 miles per hour, and the results of the collision
were both tragic and horrifying. Patrick, the only occupant of the Cruze, died. The
Tucson was occupied by five members of the Bauer family, three of whom died as
a result of the accident. Sandra Bauer was driving, and her daughter, Andrea
-3- Bauer, was sitting in the front passenger seat. Pamela Kendrick Bauer1 was sitting
in the left rear passenger seat. Pamela’s two young children were sitting in the
back of the Tucson with her. Braden, six years old, was sitting in the right rear
seat. Nevaeh, four years old, was sitting in the middle rear seat. Sandra, Andrea,
and Nevaeh died as a result of the collision.
Approximately one year after the crash, in December 2016, members
of the Bauer family filed suit against Hyundai alleging that certain unspecified
manufacturing defects in the Tucson contributed to the injuries sustained by its
occupants.2 For nearly a year after the Bauers filed suit, Hyundai repeatedly
attempted to discover the specific nature of the manufacturing defect upon which
the Bauers based their claims. According to Hyundai, it was not until the Bauers’
engineering expert, Dr. O. J. Hahn, filed his third expert disclosure in 2021 that the
Bauers arrived at an assertion that the welds in the Tucson’s front bumper were too
short.
1 Pamela Kendrick and Nathan Bauer had two small children at the time of this collision: Braden, born in 2009, and Nevaeh, born in 2011. After the collision and during the pendency of these proceedings, Pamela and Nathan were married. The record refers to Pamela variously as Pamela Kendrick, Pamela Bauer, and Pamela Kendrick Bauer. Even though she was not yet married to Nathan at the time of the collision, we refer to her here as Pamela Kendrick Bauer for the sake of consistency and because that is how she is named in the notice of appeal. 2 Daniel Bauer asserted a claim for loss of consortium due to the death of his wife, Sandra Bauer. He also asserted claims as the administrator of Sandra’s estate, as well as the estate of his daughter, Andrea Bauer. Pamela Kendrick Bauer asserted claims for her own injuries and on behalf of her son, Braden Bauer, for his injuries. She also asserted a claim as the administrator of Nevaeh’s estate. Both Pamela Kendrick Bauer and Nathan Bauer asserted claims based on the loss of companionship for their daughter, Nevaeh Bauer.
-4- For their part, the Bauers were unhappy with the way Hyundai
responded to document requests during discovery. First, Hyundai Motor America
denied that it possessed any design documents. Rather, it asserted that all design
documents were in the possession of Hyundai Motor Company, Ltd., the Korean
parent company of Hyundai Motor America. Then, when the parent company
eventually provided the discovery, Hyundai provided the documents as they were
ordinarily kept, in Korean. These documents included design and manufacturing
documents from Hyundai, as well as design and manufacturing documents from
the South Korean manufacturer of Hyundai’s front bumper assembly, Sungwoo
Hitech (“Sungwoo”). The Bauers asked the trial court to compel Hyundai to
translate the documents into English, but the trial court declined. There is no
indication that the Bauers ever sought out their own translation; however, Hyundai
later translated the documents into English for the benefit of its own expert
witnesses, and these translated documents were provided to the Bauers.
At this point, it is important to discuss two of the discovery
documents and their relevance to the key issue litigated at trial. The first document
is designated as Bates Numbered Document 1010, and the second is Bates
Numbered Document 976.3 By themselves, these documents are almost
3 “Bates Numbering is a helpful method for organizing documents that need identification. Medical, legal, and commercial institutions use Bates Numbering to process a large amount of documents. Bates Numbers are added to PDF files in the header and footer to identify pages.”
-5- completely indecipherable to a layman, in either English or Korean.4 Nevertheless,
a significant portion of the two-week trial centered on the interpretations the
parties’ dueling experts extrapolated from these documents. As previously stated,
Dr. Hahn gave expert testimony on behalf of the Bauers. In his opinion, Bates No.
1010, a “drawings and specifications document” from Hyundai Motor Company,
required the front bumper welds to be at or exceeding a particular length, and
several of those welds fell short of those lengths when he measured them. The top
driver side weld of the front bumper, according to Dr. Hahn, should have measured
40 millimeters according to Bates No. 1010. Yet, when he measured the length of
the weld, it was only 31.29 millimeters. In Dr. Hahn’s opinion, the short welds
were a significant defect that contributed to the injuries sustained by the Tucson’s
occupants as “[t]he driver side main rail, being separated from the bumper, could
not support the passenger side main rail, resulting in substantial, massive intrusion
into the passenger compartment.” (Appellants’ Brief at 7.)
Hyundai argued that Dr. Hahn was mistaken, and the front bumper
welds did not require a length of 40 millimeters. As support, Hyundai pointed to
Guide to Bates Numbering in PDF files, https://www.adobe.com/acrobat/hub/what-is-bates- numbering-pdf.html. (Last accessed Aug. 27, 2024.) 4 On May 6, 2022, the trial court conducted a hearing on the Bauers’ motion for a new trial. During the hearing, counsel for the Bauers described the documents as “damned confusing” before apologizing to the court for his choice of language. After our own review of the documents, we must confess that it is difficult to fault counsel’s colorful description of the documents.
-6- Bates No. 976, an inspection document used by Sungwoo, the manufacturer of the
front bumper assembly. According to Hyundai, Bates No. 976 indicates that the
allegedly short welds identified by Dr. Hahn were only required to be 30
millimeters in length, not 40 millimeters. The reason for the discrepancy in these
figures was revealed in further discovery. Prior to the second deposition of one of
Hyundai’s expert engineers, Jack Ridenour, the Bauers requested production of all
of the materials he reviewed for this case. One of these items was an affidavit
provided by Kyung Tae Kwak, a senior research engineer with Hyundai in South
Korea. Kwak explained that he is familiar with the manufacture and assembly
with the front bumper of the Tucson, and the 40-millimeter specification “does not
reflect the final accepted dimension of those welds. . . . The correct accepted
length of those welds is 30 mm, with a tolerance of plus 20 percent as indicated in
the Sungwoo [discovery documents].” (Record (R.) at 3984-85.)
The Bauers moved to exclude the Kwak affidavit and the English
translation of the Sungwoo discovery documents, arguing that Hyundai knew that
the length of the welds was at issue, and Hyundai had improperly waited until after
Dr. Hahn’s depositions to produce this new information. They also moved to
exclude one of Hyundai’s fact witnesses, Greg Webster, who was to give
testimony regarding the foundation of the Hyundai documents. The Bauers argued
that Mr. Webster was an employee of Hyundai Motor America, not Hyundai in
-7- South Korea, so he had no direct knowledge of the making and retention of the
Korean documents for either Hyundai or Sungwoo. For these reasons, they argued
that Hyundai should not be permitted to use Mr. Webster to introduce the
documents.
On March 4, 2022, after a hearing on the various motions in limine,
the trial court granted the Bauers’ motion to exclude the Kwak affidavit on grounds
that was not timely. (R. at 4135.) However, the trial court also ruled that Mr.
Webster would be allowed to testify about the Korean documents, including the
Sungwoo documents, as a fact witness.
The two-week trial in this case took place from March 14, 2022, to
March 24, 2022. During the trial, the jury heard extensive testimony for the Bauer
plaintiffs regarding the facts surrounding the collision, as related by the first
responders, eyewitnesses, and the coroner. The jury also heard personal testimony
from Daniel Bauer, Nathan Bauer, and a friend of Andrea Bauer, who described
how the deaths affected them. Aside from the eyewitness and personal
testimonies, however, a substantial portion of the trial involved testimony from
experts. Two reconstruction experts gave testimony about the mechanics of the
collision. The first was Kenneth Agent, an accident reconstructionist and professor
at the University of Kentucky College of Engineering. Jonathan Dixon, a recently
retired Kentucky State Police accident reconstructionist, also testified. The
-8- reconstruction experts identified the Cruze as the cause of the accident when it
crossed the center line and connected with the Tucson in an offset head-on
collision. Furthermore, the toxicology report indicated that Patrick, the driver of
the Cruze, was under the influence of prescription drugs.
Ultimately, however, the Bauers’ product defect theory was grounded
in the video deposition of Dr. Hahn, which was provided to the jury. As
previously described, Dr. Hahn testified that the welds of the Tucson failed to
comply with Hyundai specifications and requirements, which created a substantial
risk of injury to the occupants. Dr. Hahn described the front bumper rail as a
critical safety feature, and the failure of the welds was a substantial factor in
causing the injuries and deaths suffered by the Bauers inside the Tucson.
Hyundai initially countered Dr. Hahn’s testimony with its defense
witness, Greg Webster. Mr. Webster holds a master’s degree in mechanical
engineering and works as a senior group manager in the safety office of Hyundai
Motor America. He described his job as monitoring the North American market
for safety-related concerns. Mr. Webster testified that, through his employment, he
has personal knowledge and regularly works with technical documents from the
parent corporation, Hyundai Motor Company in South Korea, and that these
documents are kept in the ordinary course of business. Mr. Webster also testified
that he was familiar with technical documents from suppliers, including Sungwoo,
-9- which Hyundai obtained and maintained in the ordinary course of business. He
confirmed that he had spoken with both Kyung Tae Kwak, the senior research
engineer at Hyundai, as well as Sung Jae Lee, an employee at Sungwoo, about the
discovered documents, including Bates No. 976. Mr. Webster testified that, based
on his personal knowledge as well as these conversations, the discovered
documents were authentic. When asked about the Sungwoo documents, including
Bates No. 976, Mr. Webster explained that these were quality control documents
from the bumper supplier, and that Bates No. 976 indicates that the top weld of the
driver’s side bumper should be 30 millimeters.
It should be noted that the Bauers objected to this line of testimony,
arguing that Mr. Webster could not properly authenticate the business documents
because he was not the creator or custodian of the records. Furthermore, the
Bauers objected to Mr. Webster giving what they considered to be opinion
testimony about the length of the welds. The trial court agreed with Hyundai that a
proper foundation for the documents was presented by Mr. Webster’s testimony.
Under cross-examination, the Bauers elicited testimony from Mr. Webster in
which he stated he did not author or participate in the production of the documents.
Mr. Webster believed that the documents were originally produced, in Korean, by
Mr. Kwak through Hyundai’s lawyers. He then stated his belief that the
documents were provided in discovery approximately one year before trial.
-10- Following Mr. Webster’s testimony, the most significant expert
testimony on the length of the welds came from Jack Ridenour. An automotive
engineer with fifty years of experience, Mr. Ridenour worked for General Motors
and Ford before retiring from Ford in 2008 and starting his own consulting firm.
He also testified that he had experience in front end design, including bumpers.
Prior to his retirement from Ford, he worked as the chief safety engineer at Ford’s
automotive safety office. Mr. Ridenour informed the jury that Hyundai hired him
to evaluate the performance of the vehicle structure in the crash. Of the hundreds
of accidents Mr. Ridenour has investigated, he testified that this crash was
“extremely severe,” one of the ten worst he has seen in his fifty-year career. The
only incident that he could recollect as being comparable or worse was one in
which a Lamborghini was driven at 170 miles per hour into a wall. Despite the
Hyundai Tucson being what he called a very safe vehicle for front crashes; Mr.
Ridenour opined that the rapid deceleration5 of the Tucson was disastrous for the
vehicle’s occupants.
When asked if he believed Dr. Hahn’s assertion that the front bumper
welds were short, Mr. Ridenour said they were not. He based his conclusion on his
5 In accident reconstruction terms, experts refer to what is called the “delta-V,” which is the change in velocity from immediately before the accident to immediately afterward. Experts for Hyundai believed the delta-V for the Tucson in this case was fifty-six miles per hour, which they considered extremely severe. The Bauers’ expert, Kenneth Agent, disagreed and stated that the delta-V of the Tucson was, at most, forty-four miles per hour. The jury heard both figures and the attendant reasoning from each side’s experts during trial.
-11- review of the engineering drawings, specifications, and quality control documents.
Specifically, he stated that the front bumper welds were supposed to be 30
millimeters long, with a tolerance of up to 36 millimeters. For this Tucson, Mr.
Ridenour testified that all welds were within the appropriate specifications. When
asked to comment on Dr. Hahn’s theory that the torn bumper welds caused
intrusion into the driver’s compartment, Ridenour said, “that’s the craziest thing
I’ve ever heard. . . . totally contrary to physics. It’s not what crash forces do.” In
Mr. Ridenour’s opinion, the weld length was of no consequence in this crash
because the crash was over by the time the bumper actually separated.
When cross-examined by the Bauers, Mr. Ridenour was asked to
explain the reference to the 40-millimeter figure on Bates No. 1010. Mr. Ridenour
said that 40 millimeters referred to the “total dimension” in the drawing, but the
weld itself was 30-35 millimeters. The Bauers then asked him whether the amount
he earned from this case was unusually high, alluding to the more than $100,000
he had been paid by Hyundai. Mr. Ridenour answered by stating, “Most cases
don’t last three and a half years and have fifteen different allegations.” On redirect
examination, Hyundai asked Mr. Ridenour to clarify that Dr. Hahn’s weld theory
was the fifteenth presented by the Bauers. Mr. Ridenour stated that it was, and that
there was no merit to the previous fourteen arguments, either.
-12- The last expert to testify directly regarding the welds was Dr. Viola
Acoff, who is employed as a professor of metallurgical and materials engineering
at the University of Alabama. Dr. Acoff testified that she has a special expertise in
the area of welding metallurgy, and Hyundai had retained her to testify as to the
quality of the welds. After her examination, she determined that some of the welds
were torn out by the high energy of the collision, but the welds themselves were
“good quality welds, they were not defective, and [she] saw no issues with the
welds whatsoever.” However, she admitted on cross-examination that she was not
retained to opine on the length of the welds. On redirect, Dr. Acoff testified that
she did not examine the effect of weld length because the Bauers did not conduct
any testing themselves on that point, so there was nothing for her to evaluate.6
After closing arguments, the jury deliberated for approximately one
and a half hours before returning a verdict. In the first interrogatory, the jury was
asked, “Are you satisfied from the evidence that a manufacturing defect existed in
the front bumper welds of the 2013 Hyundai Tucson in question at the time it was
manufactured?” The jury marked the line for “no” and unanimously returned a
verdict for Hyundai. Approximately two weeks later, on March 30, 2022, the trial
6 One of Hyundai’s themes during the trial was that Dr. Hahn, one of the Bauers’ main experts, had not performed any modeling with respect to how the weld length affected the collision. According to Hyundai, Dr. Hahn’s opinion that the weld length was a factor in severity of the collision was merely an untested and unsupportable hypothesis.
-13- court entered a final judgment in accordance with the jury’s verdict. Two days
later, the Bauers moved the trial court for a new trial pursuant to CR7 59.01.
Following a hearing on the motion, the trial court denied the motion for a new trial
on May 18, 2022. This appeal and Hyundai’s cross-appeal followed.
II. STANDARD OF REVIEW
The Bauers present the same three arguments on appeal as they
presented in their CR 59.01 motion. Specifically, they allege: (1) Hyundai
committed misconduct during discovery; (2) the trial court erred in allowing Bates
No. 976 into evidence; and (3) there was insufficient evidence to support the jury
verdict. Before analyzing each issue, we must determine the appropriate standard
of review.
“Our standard of review in matters involving a trial court’s rulings on
evidentiary issues and discovery disputes is abuse of discretion.” Manus, Inc. v.
Terry Maxedon Hauling, Inc., 191 S.W.3d 4, 8 (Ky. App. 2006) (citations
omitted). “The test for abuse of discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Our review of a trial court’s decision on a CR 59.01 motion is a two-
step process. “The trial court must first determine if the grounds for a new trial
7 Kentucky Rules of Civil Procedure.
-14- under CR 59.01 exist, which will be reviewed for clear error. If such
circumstances exist, the decision whether to grant a new trial lies within the sound
discretion of the trial court[.]” Gibson v. Fuel Transport, Inc., 410 S.W.3d 56, 62
(Ky. 2013) (quoting CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 72 (Ky. 2010)).
III. ANALYSIS
A. Alleged Discovery Misconduct
Pursuant to CR 59.01(b) a new trial may be granted due to the
misconduct of the prevailing party, or of his attorney. In their first issue on appeal,
the Bauers argue Hyundai committed misconduct during discovery when it
“purposefully and egregiously withheld from the Bauers the fact that it would
claim at trial that 30 millimeters, not 40 millimeters, was the required length” of
the welds. (Appellants’ Brief at 16.) The Bauers allege that Hyundai purposefully
allowed Dr. Hahn to give a video deposition on his 40-millimeter weld theory
while holding information about the 30-millimeter specification found in Bates No.
976 in reserve, in what amounted to a case of “bushwhacking or sandbagging.”
For its part, Hyundai argues that this issue is not preserved for review
because the misconduct claim was not raised in a contemporaneous trial objection;
rather, it was asserted for the first time in the Bauers’ CR 59.01 motion for a new
trial. Alternatively, Hyundai urges us to reject the claim because there is no
support for it in fact or law.
-15- Discovery misconduct is serious. “Pretrial discovery simplifies and
clarifies the issues in a case; eliminates or significantly reduces the element of
surprise; helps to achieve a balanced search for the truth, which in turn helps to
ensure that trials are fair; and it encourages the settlement of cases.” LaFleur v.
Shoney’s, Inc., 83 S.W.3d 474, 478 (Ky. 2002). To this end, trial courts are vested
with an enormous amount of discretion in addressing violation of their discovery
orders. Turner v. Andrew, 413 S.W.3d 272, 279 (Ky. 2013). “This includes the
decision to impose, or not impose, even the most severe sanctions against a party
for failing to comply with discovery orders.” Johnson v. Wood, 626 S.W.3d 543,
551 (Ky. 2021).
The proper method to seek redress for discovery misconduct is
through a CR 37.02 motion for sanctions. Such motions should, in the normal
course, be filed before the jury returns its verdict. Notably, granting a new trial is
not one of the sanctions CR 37.02 lists as appropriate for a discovery violation.
This, of course, is because discovery misconduct should be addressed prior to trial.
Had the Bauers raised the discovery misconduct issue prior to trial, the trial court
could have considered whether to impose sanctions on Hyundai. Bramblett v.
Penske Truck Leasing Company, L.P., 598 S.W.3d 567, 575 (Ky. App. 2019).
Such sanctions could have even included an order barring Hyundai from claiming
at trial that the weld length was supposed to be 30mm. See CR 37.02(2)(b).
-16- If there was an issue of overall misconduct during discovery, and it
was prevalent to the point of manifesting clear error, the Bauers should have
recognized this misconduct and brought it to the trial court’s attention prior to trial,
and not for the first time in a post-judgment motion following an adverse jury
verdict. The trial court was not provided with a timely opportunity to consider
discovery sanctions prior to the jury’s verdict. This being the case, we cannot
conclude that the trial court erred in not granting a new trial based on Hyundai’s
alleged discovery misconduct.
B. Introduction of Bates No. 976
For their second issue on appeal, the Bauers contend the trial court
erroneously permitted the introduction of Bates No. 976 through the testimony of
Greg Webster and in allowing him to read “30 millimeters” from that document to
the jury. Hyundai argues, and the Bauers admit, that Dr. Hahn referred to one of
the other Korean documents in the video deposition presented to the jury. Hyundai
thereafter argues that the “rule of completeness” should be used here to allow the
presentation of “any other writing or recorded statement which ought in fairness to
be considered contemporaneously with it.” KRE8 106. Alternatively, Hyundai
argues that Bates No. 976 was properly admitted as a business record pursuant to
KRE 803(6).
8 Kentucky Rule of Evidence.
-17- Bates No. 976 was among the set of Sungwoo documents Hyundai
produced during discovery. The Bauers admit they first introduced part of the set
of Sungwoo records into evidence. Specifically, during his video deposition, Dr.
Hahn referred to a diagram on one of these documents to prove human
involvement in the manufacturing process.9
“Generally stated, ‘opening the door’ to otherwise inadmissible
evidence is a form of waiver that happens when one party’s use of inadmissible
evidence justifies the opposing party’s rebuttal of that evidence with equally
inadmissible proof.” Commonwealth v. Stone, 291 S.W.3d 696, 702 (Ky. 2009)
(emphasis added). Accordingly, KRE 106 “allows a party to introduce the
remainder of a statement offered by an adverse party for the purpose of putting the
statement in its proper context and avoiding a misleading impression.” Soto v.
Commonwealth, 139 S.W.3d 827, 865-66 (Ky. 2004). The determinative factor is
whether the meaning of the included portion is altered by the excluded portion.
Sykes v. Commonwealth, 453 S.W.3d 722, 726 (Ky. 2015). However, “KRE 106
does not ‘open the door’ for introduction of the entire statement or make other
portions thereof admissible for any reason once an opposing party has introduced a
portion of it.” Schrimsher v. Commonwealth, 190 S.W.3d 318, 331 (Ky. 2006).
9 Dr. Hahn’s video deposition was played for the jury in lieu of his live testimony at trial.
-18- Hyundai wished to admit Bates No. 976 for the purpose of proving the
proper length of the welds. While Bates No. 976 came from the same set of
documents as the document Dr. Hahn referred to in his deposition, Hyundai was
not relying on Bates No. 976 to contradict testimony regarding human involvement
in the manufacturing process or otherwise place the Sungwoo document Dr. Hahn
referred to in the proper context. As such, KRE 106 did not authorize admission of
Bates No. 976 into evidence.
Therefore, we must consider whether the document was admissible in
its own right. To this end, Hyundai asserts the trial court properly admitted Bates
No. 976 as a business record. KRE 803(6) governs the “records of regularly
conducted activity” exception to the hearsay rule. Such records are admissible:
if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
KRE 803(6) (emphasis added). The Bauers argue that Mr. Webster was not a
“qualified witness,” asserting he knew nothing about Bates No. 976 or any of the
other Sungwoo documents and that the entirety of his knowledge came from
conversations with Mr. Kwak at Hyundai and Mr. Lee at Sungwoo. (Appellants’
Brief at 17.)
-19- At trial, Mr. Webster testified that he had personal knowledge of
Hyundai and Sungwoo documents from his employment experience, and that he
regularly works with technical documents from Hyundai in South Korea, despite
being an employee of Hyundai Motor America. Mr. Webster also testified that
Hyundai has a regular practice of obtaining and storing documents from suppliers,
including Sungwoo. He believed these documents from Sungwoo were authentic
based on this personal experience, and he confirmed his belief through his personal
conversations with Mr. Kwak and Mr. Lee. On cross-examination, Mr. Webster
admitted he did not author or participate in the production of the documents, nor
did he review the documents for production in discovery. Mr. Webster believed
Mr. Kwak was the person responsible for producing the documents in discovery,
along with Hyundai’s counsel, and the documents were produced about one year
prior to trial.
The trial court allowed Mr. Webster to serve as a “qualified witness”
under KRE 803(6) based on the Kentucky Supreme Court’s ruling in Hunt v.
Commonwealth, 304 S.W.3d 15 (Ky. 2009):
Anyone who can testify from personal knowledge about the circumstances surrounding the making and keeping of the records can qualify as a foundation witness. As stated by one authority, “in the end the requirement may be satisfied by the testimony of anyone who is familiar with the manner in which the record was prepared, and even if he did not himself either prepare the record or even observe its preparation.”
-20- Id. at 39-40 (quoting ROBERT LAWSON, THE KENTUCKY EVIDENCE LAW
HANDBOOK § 8.65 at 463 (3d ed. 1993)). Although authentication is not the same
as admissibility, see Matthews v. Commonwealth, 163 S.W.3d 11, 23 (Ky. 2005),
we are also mindful of KRE 901(a), which states, “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.”
Here, it appears that Mr. Webster was sufficiently acquainted with
Hyundai’s creation and keeping of engineering documents that the trial court
believed Hyundai had laid a “pretty good” foundation for the admission of Bates
No. 976. Contrary to the Bauers’ assertions, Mr. Webster did not ground his
testimony regarding these documents entirely on the conversations he had with Mr.
Kwak and Mr. Lee, but rather that these conversations confirmed his belief in their
authenticity.
Even though these specific documents may have been transmitted to
Hyundai for the purpose of this litigation, they were of the type regularly kept by
Hyundai in the regular course of its business and were admissible as business
records. St. Clair v. Commonwealth, 140 S.W.3d 510, 538 (Ky. 2004); R.T.
Vanderbilt Co., Inc. v. Franklin, 290 S.W.3d 654, 665 (Ky. App. 2009). While
perhaps a close question under these facts, we cannot conclude the trial court
-21- abused its discretion when it allowed the introduction of Bates No. 976 into
evidence.
However, even if Mr. Webster’s testimony and Bates No. 976 were
erroneously admitted, they would not warrant the grant of a motion for a new trial
because Hyundai’s 30-millimeter argument did not rest entirely on Mr. Webster’s
testimony. Jack Ridenour effectively and unequivocally testified that, from his
review of the engineering documents and specifications, Dr. Hahn’s assertions
regarding the short bumper welds were incorrect, and the proper length for the top
bumper weld was 30 millimeters. When there is testimony in the record which
duplicates the testimony forming the basis of an appellant’s objection, the latter is,
at most, harmless error. Davis v. Commonwealth, 147 S.W.3d 709, 726 (Ky.
2004). Based on these factors, we cannot say that the trial court committed clear
error in denying the CR 59.01 motion on this issue.
C. Sufficiency of the Evidence
For the Bauers’ third and final issue on appeal, they contend the trial
court erred when it denied their CR 59.01 motion for a new trial based on
insufficient evidence to support the jury’s determination that the welds were not
defective. The Bauers argue that, even if Mr. Webster’s testimony and Bates No.
976 were allowed into evidence, there was no evidence (1) Hyundai switched from
40 millimeters to 30 millimeters for its weld specification; (2) Hyundai modified,
-22- changed, or in any way departed from its original drawings in Bates No. 1010; (3)
Bates No. 976 indicated that all welds were now to be 30 millimeters; (4) Bates
No. 976 was relevant to the time of manufacture of the Bauer Tucson’s front
bumper assembly; (5) the Bauer Tucson only needed to comply with a 30-
millimeter length on the top and bottom welds; or that (6) the Bauer Tucson front
bumper assembly was manufactured by Sungwoo. (Appellants’ Brief at 19.)
This argument regarding insufficiency of the evidence fails in at least
two respects. First, the Bauers’ arguments improperly shift the plaintiffs’ burden
at trial. It is the plaintiffs’ responsibility to show evidence of a manufacturing
defect and its role as the probable cause of an accident. Midwestern V. W. Corp. v.
Ringley, 503 S.W.2d 745, 747 (Ky. 1973). Second, Hyundai presented significant
evidence to the jury indicating that its product was not defective, most notably in
the form of Jack Ridenour’s testimony. The jury, as the finder of fact, had the right
to believe this testimony over that submitted by the Bauers. “It has long been held
that the trier of fact has the right to believe the evidence presented by one litigant
in preference to another[.]” D.W. Wilburn, Inc. v. H&H Painting, LLC, 648
S.W.3d 687, 695 (Ky. App. 2022) (citation omitted). For these reasons, the trial
court did not err in denying the Bauers’ CR 59.01 motion on this issue.
-23- III. CROSS-APPEAL
In its protective cross-appeal, Hyundai argues the trial court should
have excluded Dr. Hahn’s testimony because it was not grounded in data or testing
and amounted to mere ipse dixit statements which should have been excluded
under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), and Goodyear Tire & Rubber Co. v. Thompson,
11 S.W.3d 575 (Ky. 2000). As we have stated previously, however, “our
resolution of the issues raised on direct appeal renders the issue[s] raised on cross-
appeal moot. No discussion is necessary or warranted.” Stanziano v. Cooley, 598
S.W.3d 82, 88 (Ky. App. 2019).
IV. CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
ALL CONCUR.
-24- BRIEFS FOR APPELLANTS / BRIEF FOR APPELLEES / CROSS-APPELLEES: CROSS-APPELLANTS:
Joe C. Savage David T. Schaefer Lexington, Kentucky Jeremy S. Rogers Louisville, Kentucky John C. Collins Salyersville, Kentucky Robert W. Maxwell Covington, Louisiana Don McFarland William Tinker C.V. Reynolds Salyersville, Kentucky Prestonsburg, Kentucky
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