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York v. El-Ganzouri9/27/2004
, or repetitious questions"); see also Martinez, 131 N.M. at 755, 42 P.3d at 860 (noting that with better organization of her voir dire, counsel could have asked the questions claimed to be precluded within the trial court's time limits).
Along these same lines, we also note that the record does not show that Dr. El-Ganzouri ever proposed questions to be asked of the venire by the judge, as permitted under Rule 234, which would not have counted against his time. At oral argument, Dr. El-Ganzouri stressed that he was not invited by the trial court to propose supplemental questions for its voir dire examination. However, we see no reason logically, or under the rule, for him to not seize the initiative and, instead, wait to be invited.
Dr. El-Ganzouri makes one other related argument surrounding voir dire. He claims that by indicating that it would count any use of Dr. York's "day-in-the-life" video against his 10 minutes for voir dire, the circuit court effectively, improperly precluded him from using the video in voir dire.
The following exchange also occurred during the May 28 discussion between the parties and the court surrounding voir dire:
"THE COURT: Let's talk about it real quickly. What I am saying is, there was an issue, and do you want to use it? Is anybody asking to use the day in life in jury selection?
MR. PETREK: I am, without sound.
MR. CLIFFORD: And we are opposed of showing it during the voir dire examination. I think that to do so highlights one piece of evidence, unfairly prejudices the plaintiff and ought not to be permitted.
THE COURT: Is it going to be used during the trial?
MR. CLIFFORD: Yes, Your Honor.
THE COURT: Okay. The objection is overruled. You could use it if you want. You have ten minutes. I don't know long the film is. If you want to take five minutes of the film to use it, go ahead, then you have five minutes left to do your questioning. You could use it if you want. Whatever you need, have it here.
MR. CLIFFORD: So it goes against his time?
THE COURT: Yes.
THE COURT: All right. Anything else?"
After this exchange, Dr. El-Ganzouri's counsel made no further statements to the circuit court. During voir dire, he made no objection to his perceived inability to use the video and otherwise conduct a thorough examination of the venire. Dr. York contends that, based on his lack of objection, Dr. El-Ganzouri has waived this voir dire claim on appeal as well as his claim surrounding the circuit court's time limit. In keeping with our previous analysis, we agree and therefore decline to review this issue.
B. Alleged Improper Impeachment of Dr. Meyer with Rule 213(g) Answers Prepared and Sworn To By Defense Counsel
At trial, Dr. Meyer testified on direct examination, on behalf of Dr. El-Ganzouri, that Dr. York's injuries resulted from a spinal infarct, meaning a deprivation of blood and oxygen to the spine, causing the death of the deprived tissues. Dr. Meyer opined that the infarction resulted from systemic hypotension (low blood pressure) during the knee replacement surgery. He denied that an injury was caused by the entry of a needle and injection of anesthesia into Dr. York's spinal cord, explaining that he would have expected to find a "blob" or "puddle" of anesthesia around the point of insertion in MRIs of Dr. York's spine, but he did not find such a mass. The effect of this testimony was to attribute Dr. York's injuries to the knee surgery and not to the anesthesia procedures.
The following exchange occurred when Dr. Meyer was subject to cross-examination:
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