D. E. Holbrook, Jr., J.
Plaintiff Martin Moldovan was injured when he was struck by an unoccupied forklift truck which unexpectedly went into reverse. Basing his claim on negligence and sev[379]*379eral breach of warranty theories, plaintiff sued defendants Allis Chalmers Manufacturing Company and Fraza Equipment Company. Essentially plaintiffs claim was grounded on the failure of a safety valve device which, plaintiff contends, should have prevented the forklift from operating when unoccupied. After a 15-day trial the jury returned a verdict of no cause of action as to both defendants. Plaintiff appeals, raising 12 allegations of error.
First, plaintiff contends the trial judge should have disqualified himself since the judge had recently been found liable for $395,000 in a Federal court civil suit. Plaintiffs counsel argue their ignorance of this judgment until the day of final argument precluded a timely motion for disqualification as required by GCR 1963, 405. Plaintiff argued this issue in his motion for a new trial, which was denied. Regardless of when counsel discovered the judgment, the argument is without merit. Plaintiff has established none of the eight possible grounds for disqualification under GCR 1963, 405.1 and has not shown "actual prejudice” of the trial judge. Irish v Irish, 59 Mich App 635, 639; 229 NW2d 874 (1975), Armstrong v Ann Arbor, 58 Mich App 359, 369-370; 227 NW2d 343 (1975), lv den, 394 Mich 783 (1975). In the new trial hearing, the trial judge’s remarks indicate that, if anything, he was favorable to plaintiffs case—that he felt plaintiff should recover something for his injury and that perhaps the defendants could have been pressured into a $400,000 settlement (plaintiff rejected a $200,000 settlement offer). The jury, however, found no liability on the part of either defendant. We find no reversible error.
Second, plaintiff complains of several incidents of harsh treatment of plaintiffs counsel in front of [380]*380the jury. In any hotly contested 15-day trial there are bound to be episodes of judicial impatience with aggressive counsel. The standard of review, however, is whether such exchanges resulted in denying plaintiff a fair and impartial trial. St. Louis v Fisher & Co, Inc, 1 Mich App 55, 58; 134 NW2d 290 (1965). Taken alone and out of context, certain portions of the record could just as easily be used to show trial court bias against the defendants. We must review the record as a whole and we conclude plaintiff was not denied a fair trial.
Third, plaintiff contends the trial judge violated a pretrial order (issued by a different judge) to exclude any reference to plaintiff’s prior sex-related convictions. The violation occurred when the trial judge refused to excise certain references to the sex offenses in a video-tape deposition of plaintiff’s psychiatric witness. Initially we note that one aspect of plaintiff’s claimed injury was impairment of his sex drive and, indeed, plaintiff’s psychiatric witness concluded that plaintiff’s sex drive was impaired. However, the psychiatrist also stated that plaintiff’s sexual problems stemmed in part from his earlier sex offense incidents. The trial judge gave plaintiff the option of introducing the entire video-tape or excluding it totally. Plaintiff opted to let in the entire tape and now appeals. We uphold the ruling of the trial judge for several reasons: a) GCR 1963, 605 permits trial court discretion to require an expert witness to set forth the "data” upon which the expert’s conclusions are based, b) a person’s prior criminal record is relevant if a psychiatrist relied upon it in forming an opinion, People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975), c) in light of plaintiff’s claim of impaired sexual drive, the defense was entitled to have all of plaintiff’s psychiatric witness’s data [381]*381placed before the jury, see GCR 1963, 302.4(4), and, d) the pretrial judge did not know plaintiffs psychiatrist was going to testify as to plaintiff’s prior history before he (the pretrial judge) made his exclusionary ruling. In light of all these factors the trial judge properly exercised his discretionary power to modify the pretrial order and such a modification will not be overturned absent clear abuse. Hanlon v Firestone Tire & Rubber Co, 391 Mich 558, 564; 218 NW2d 5 (1974), State Highway Comm v Redmon, 42 Mich App 642, 645-646; 202 NW2d 527 (1972).
Fourth, plaintiff argues the trial judge erred by refusing to allow a representative of plaintiffs employer to read statements written on an accident report form (Form 100). The judge ruled the statements hearsay and refused to allow them to be read. However, he offered to allow the form in to show the accident took place and had been reported but refused to admit any statements as to how the accident happened. Plaintiff decided not to introduce the form at all and now appeals. The trial judge ruled correctly. The statements were written by someone no longer employed by plaintiffs employer and were written before the company representative was employed by plaintiffs employer. Since the employer was a third party intervenor and not an adverse party the statements were not admissible as admissions against interest. Nor were they admissible under the "business entry” exception to the hearsay rule. MCLA 600.2146; MSA 27A.2146. There are some ambiguities in that statute. Wade v Bay City, 57 Mich App 581; 226 NW2d 569 (1975), appeal dismissed, 394 Mich 755 (1975). The form is admissible to show the accident occurred and that the employer had knowledge of the accident, but the [382]*382written conclusions or statements detailing how the accident occurred—a critical fact issue at trial —would be excludable hearsay. In Central Fabricators, Inc v Big Dutchman Division of US Industries, Inc, 398 Mich 352; 247 NW2d 804 (1976), the Michigan Supreme Court quoted with approval from the United States Supreme Court case Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), which held statements contained in an accident report were not admissible under the Federal business entry statute. For a number of reasons accident reports are distinguishable from other types of so-called business records. We conclude the trial judge ruled correctly on the limited admissibility of the accident report.
Fifth, plaintiff complains the entire deposition of a former Allis Chalmers employee should have been admitted under either the adverse witness rule, or GCR 1963, 302.4(3), or as an "excited utterance”. A review of the judge’s ruling indicates that he excluded portions of the deposition on the grounds that they were speculation and conjecture. The admissibility of depositions is governed by the rules of evidence, GCR 1963, 302.4 and 302.5, and the trial judge properly exercised his discretion in refusing to admit speculative deposition testimony. Plaintiff further complains the trial judge abused his discretion by refusing to grant a continuance so plaintiff could bring the deposition witness to court to testify. The record indicates the plaintiff wished to bring the witness in near the close of trial and the judge felt taking the witness out of order so late in the trial would unduly confuse the jury. Granting a continuance is within the discretion of the trial judge and we find the judge did not abuse his discretion.
Sixth, plaintiff complains he should have been [383]
Free access — add to your briefcase to read the full text and ask questions with AI
D. E. Holbrook, Jr., J.
Plaintiff Martin Moldovan was injured when he was struck by an unoccupied forklift truck which unexpectedly went into reverse. Basing his claim on negligence and sev[379]*379eral breach of warranty theories, plaintiff sued defendants Allis Chalmers Manufacturing Company and Fraza Equipment Company. Essentially plaintiffs claim was grounded on the failure of a safety valve device which, plaintiff contends, should have prevented the forklift from operating when unoccupied. After a 15-day trial the jury returned a verdict of no cause of action as to both defendants. Plaintiff appeals, raising 12 allegations of error.
First, plaintiff contends the trial judge should have disqualified himself since the judge had recently been found liable for $395,000 in a Federal court civil suit. Plaintiffs counsel argue their ignorance of this judgment until the day of final argument precluded a timely motion for disqualification as required by GCR 1963, 405. Plaintiff argued this issue in his motion for a new trial, which was denied. Regardless of when counsel discovered the judgment, the argument is without merit. Plaintiff has established none of the eight possible grounds for disqualification under GCR 1963, 405.1 and has not shown "actual prejudice” of the trial judge. Irish v Irish, 59 Mich App 635, 639; 229 NW2d 874 (1975), Armstrong v Ann Arbor, 58 Mich App 359, 369-370; 227 NW2d 343 (1975), lv den, 394 Mich 783 (1975). In the new trial hearing, the trial judge’s remarks indicate that, if anything, he was favorable to plaintiffs case—that he felt plaintiff should recover something for his injury and that perhaps the defendants could have been pressured into a $400,000 settlement (plaintiff rejected a $200,000 settlement offer). The jury, however, found no liability on the part of either defendant. We find no reversible error.
Second, plaintiff complains of several incidents of harsh treatment of plaintiffs counsel in front of [380]*380the jury. In any hotly contested 15-day trial there are bound to be episodes of judicial impatience with aggressive counsel. The standard of review, however, is whether such exchanges resulted in denying plaintiff a fair and impartial trial. St. Louis v Fisher & Co, Inc, 1 Mich App 55, 58; 134 NW2d 290 (1965). Taken alone and out of context, certain portions of the record could just as easily be used to show trial court bias against the defendants. We must review the record as a whole and we conclude plaintiff was not denied a fair trial.
Third, plaintiff contends the trial judge violated a pretrial order (issued by a different judge) to exclude any reference to plaintiff’s prior sex-related convictions. The violation occurred when the trial judge refused to excise certain references to the sex offenses in a video-tape deposition of plaintiff’s psychiatric witness. Initially we note that one aspect of plaintiff’s claimed injury was impairment of his sex drive and, indeed, plaintiff’s psychiatric witness concluded that plaintiff’s sex drive was impaired. However, the psychiatrist also stated that plaintiff’s sexual problems stemmed in part from his earlier sex offense incidents. The trial judge gave plaintiff the option of introducing the entire video-tape or excluding it totally. Plaintiff opted to let in the entire tape and now appeals. We uphold the ruling of the trial judge for several reasons: a) GCR 1963, 605 permits trial court discretion to require an expert witness to set forth the "data” upon which the expert’s conclusions are based, b) a person’s prior criminal record is relevant if a psychiatrist relied upon it in forming an opinion, People v Hammack, 63 Mich App 87, 93; 234 NW2d 415 (1975), c) in light of plaintiff’s claim of impaired sexual drive, the defense was entitled to have all of plaintiff’s psychiatric witness’s data [381]*381placed before the jury, see GCR 1963, 302.4(4), and, d) the pretrial judge did not know plaintiffs psychiatrist was going to testify as to plaintiff’s prior history before he (the pretrial judge) made his exclusionary ruling. In light of all these factors the trial judge properly exercised his discretionary power to modify the pretrial order and such a modification will not be overturned absent clear abuse. Hanlon v Firestone Tire & Rubber Co, 391 Mich 558, 564; 218 NW2d 5 (1974), State Highway Comm v Redmon, 42 Mich App 642, 645-646; 202 NW2d 527 (1972).
Fourth, plaintiff argues the trial judge erred by refusing to allow a representative of plaintiffs employer to read statements written on an accident report form (Form 100). The judge ruled the statements hearsay and refused to allow them to be read. However, he offered to allow the form in to show the accident took place and had been reported but refused to admit any statements as to how the accident happened. Plaintiff decided not to introduce the form at all and now appeals. The trial judge ruled correctly. The statements were written by someone no longer employed by plaintiffs employer and were written before the company representative was employed by plaintiffs employer. Since the employer was a third party intervenor and not an adverse party the statements were not admissible as admissions against interest. Nor were they admissible under the "business entry” exception to the hearsay rule. MCLA 600.2146; MSA 27A.2146. There are some ambiguities in that statute. Wade v Bay City, 57 Mich App 581; 226 NW2d 569 (1975), appeal dismissed, 394 Mich 755 (1975). The form is admissible to show the accident occurred and that the employer had knowledge of the accident, but the [382]*382written conclusions or statements detailing how the accident occurred—a critical fact issue at trial —would be excludable hearsay. In Central Fabricators, Inc v Big Dutchman Division of US Industries, Inc, 398 Mich 352; 247 NW2d 804 (1976), the Michigan Supreme Court quoted with approval from the United States Supreme Court case Palmer v Hoffman, 318 US 109; 63 S Ct 477; 87 L Ed 645 (1943), which held statements contained in an accident report were not admissible under the Federal business entry statute. For a number of reasons accident reports are distinguishable from other types of so-called business records. We conclude the trial judge ruled correctly on the limited admissibility of the accident report.
Fifth, plaintiff complains the entire deposition of a former Allis Chalmers employee should have been admitted under either the adverse witness rule, or GCR 1963, 302.4(3), or as an "excited utterance”. A review of the judge’s ruling indicates that he excluded portions of the deposition on the grounds that they were speculation and conjecture. The admissibility of depositions is governed by the rules of evidence, GCR 1963, 302.4 and 302.5, and the trial judge properly exercised his discretion in refusing to admit speculative deposition testimony. Plaintiff further complains the trial judge abused his discretion by refusing to grant a continuance so plaintiff could bring the deposition witness to court to testify. The record indicates the plaintiff wished to bring the witness in near the close of trial and the judge felt taking the witness out of order so late in the trial would unduly confuse the jury. Granting a continuance is within the discretion of the trial judge and we find the judge did not abuse his discretion.
Sixth, plaintiff complains he should have been [383]*383allowed to read selected portions of depositions of witnesses who had already testified and had been excused. The record indicates the judge denied plaintiffs request since plaintiff should have cross-examined the witnesses about their deposition statements when they were on the stand rather than wait until they were excused to read selected highlights from the deposition. Plaintiff claims GCR 1963, 302.4(2) allows the use of depositions "for any purpose”. We do not think this broad language removes the trial judge’s control of the proceedings and we conclude the trial judge properly refused to let plaintiffs counsel introduce favorable excerpts of deposition testimony after the witnesses were excused.
Seventh, plaintiff argues the trial judge erred when he refused to permit co-counsel for plaintiff to divide the duties in conducting the lawsuit. The record indicates no specific request by plaintiffs attorneys to engage in a "division of labor” method. A review of the instances cited by plaintiff reveals the trial judge was acting well within his discretion in limiting arguments before the court. Plaintiffs argument is without merit.
Eighth, plaintiff complains the trial judge erred in excluding in-court experiments with a model of the allegedly defective valve and in excluding plaintiffs witness’s testimony of out-of-court experiments with a model valve. As to the in-court experiments, the trial judge refused to allow the experimentation because the conditions were not sufficiently similar to the allegedly defective valve on the date of the accident. The model valve was mounted on a board, not on a forklift, and plaintiffs expert conceded he had never seen the forklift in question nor had he compared the model valve with the allegedly defective valve. We con-[384]*384elude the trial judge did not abuse his discretion. Nor did he abuse his discretion in excluding testimony of the out-of-court experiments where plaintiffs expert could not testify that every part of the model valve met specifications. Admission of test results is within the wide discretion of the trial court. Taylor v Hannon-Colvin Post 180 of American Legion, 6 Mich App 398, 405; 149 NW2d 210 (1967), Pohlod v General Motors Corp, 40 Mich App 583; 199 NW2d 277 (1972).
Ninth, plaintiff argues that a pretrial order which excluded any reference to workers’ compensation benefits was violated. A review of the record indicates there was no mention of workers’ compensation, therefore the pretrial order was not violated and the trial judge was correct in refusing to give any curative instruction which may have resulted in exposing the fact of worker’s compensation benefits.
Tenth, after retiring, the jury returned with a question for the trial judge and the plaintiff claims the «judge erred where he responded to the question by having testimony read to the jury. Reading testimony back to the jury is within the wide discretion of the trial judge, Klein v Wagenheim, 379 Mich 558, 561; 153 NW2d 663 (1967), People v Howe, 392 Mich 670, 675; 221 NW2d 350 (1974), and the trial judge did not abuse that discretion in having pertinent testimony read to the jury.
Eleventh, plaintiff contends he should have been granted a new trial since after trial plaintiff located an expert witness who supposedly could rebut testimony of defendants’ expert. GCR 1963, 527.1(6) governs new trials based on newly discovered evidence. Plaintiff has shown no factual basis to show the. evidence is material, not cumulative or that it could not have been discovered before [385]*385trial. See Parlove v Klein, 37 Mich App 537, 542; 195 NW2d 3 (1972), lv den, 387 Mich 780 (1972). Denials of new trials based on newly discovered evidence will not be reviewed absent gross abuse of discretion, People v Hill, 21 Mich App 178, 180; 175 NW2d 305 (1970), and since all plaintiff really shows is that the new evidence might impeach defendants’ expert, plaintiffs argument must fail. Pociopa v Olson, 13 Mich App 324, 327; 164 NW2d 413 (1968), lv den, 381 Mich 797 (1969).
Twelfth, plaintiff urges the trial court erred by refusing to admit evidence of a post-accident design change in the safety valve. The record indicates defense counsel gave plaintiffs expert a model for illustration purposes, the expert took the model apart and discovered a different sized spring than used in the allegedly defective valve. Defendants immediately objected, the jury was excused and arguments heard, and the judge ruled the evidence of the design change was inadmissible. Excluding evidence of subsequent repairs or design changes is based on sound policy grounds. Unlike the situation in Denolf v Frank L Jursik Co, 395 Mich 661; 238 NW2d 1 (1976), admission of evidence of a design change would offend the policy grounds behind the exclusionary rule. Here the evidence would have been prejudicial to a party defendant. The policy grounds for excluding design changes to show negligence are equally applicable in a products liability setting. Phillips v J L Hudson Co, 79 Mich App 425; 263 NW2d 3 (1977).
Affirmed. Costs to appellees.
Beasley, P. J., concurred.