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Simms v. Progressive Insurance Co.9/29/2004
Emmitt Bankston, who was involved in a prior incident, underwent thorough questioning by counsel for both sides and the trial court to determine whether he could serve as a fair and impartial juror. As did the three prior jurors, Bankston expressed some reservations about his ability to put aside all sympathy in deciding the case. However, Bankston was rehabilitated. He expressed to the court that he could judge the matter on the facts presented and follow the court's directions. The trial judge decided that Bankston would not be excused for cause, and we find no abuse of discretion in this decision.
Neither Bankston nor the other three jurors expressed responses which showed bias, prejudice, or the inability to render an impartial decision. Though they expressed the understandable difficulty of being able to totally divorce oneself from the natural inclinations toward sympathy, their answers revealed their willingness to decide the case based on the facts presented and law as instructed by the court. There was no abuse of the trial court's broad discretion in denying the challenges for cause.
Appellants also argue that two other jurors, Deborah Pope and Kelli Philips, should have been excused for cause. Both served on the jury. Appellants contend that Pope should have been excused for cause, as she became visibly upset during questioning and revealed that she had been involved in a prior automobile accident with a pedestrian when she was sixteen. However, in response to questioning, Pope stated that she would be able to be fair. She told the trial judge that the trial would not be too emotional for her. Our review of Pope's voir dire reveals no abuse of discretion on the part of the trial court in denying the challenge for cause. Neither bias, prejudice, nor an inability to render judgment according to law was shown on the part of Pope.
Appellants now assert that Kelli Philips should have been excused for cause due to the fact that she knew Richard Jason Perot, a witness to the accident. However, the record reveals no objection or challenge to Philips by the defense during voir dire. Philips explained that she had met Perot years before, that he was an acquaintance of her husband, and that he had last been to her home two years ago. There appeared to be no close personal acquaintance between Philips and Perot. There was no indication that knowing Perot would influence her decision-making in any way. When the trial judge indicated that he was inclined to keep Philips on the jury, defense counsel answered, "We acquiesce." The record does not support appellants' claim that Philips should have been dismissed for cause.
Introduction of Depositions
Appellants contend that the trial court erred in refusing to allow into evidence the depositions of Sara Simms and Jason Perot. The use of depositions is governed by La. C.C.P. art. 1450, which states in relevant part as follows:
A. At the trial ... any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(2) The deposition of a party ... may be used by an adverse party for any purpose.
This court has typically construed this provision to allow the trial court discretion in admitting or refusing to admit into evidence the discovery depos
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