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Simms v. Progressive Insurance Co.9/29/2004
ition of a party, particularly when the deposition is repetitious of matters in the record. Orea v. Scallan, 32,622 (La. App. 2d Cir. 1/26/2000), 750 So. 2d 483; Robledo v. Orr Motors of Louisiana, Inc., 582 So. 2d 892 (La. App. 2d Cir. 1991); Harrison v. State, Dept. of Highways, 375 So. 2d 169 (La. App. 2d Cir. 1979).
Defense counsel sought to introduce Simms' deposition for impeachment purposes on the grounds that there were inconsistencies between her trial testimony and deposition testimony as to the facts of the accident. Appellants argue that Simms' failure to recall certain facts from the moments leading up to the accident is contrary to her deposition, calls her credibility into question, and is relevant to the determination of fault. Appellants also argue that the trial court's failure to allow the deposition into evidence is legal error which requires this court to conduct a de novo review of the record. We disagree.
The record shows that Simms testified as to her recollection of the accident during direct examination and again on cross examination. Upon further questioning during cross examination, defense counsel impeached Simms with regard to particular facts which she claimed not to recall, such as where the van she was walking beside before she entered Highway 531 stopped, how long the van stopped before turning onto the highway, how long she waited before entering the highway after the van, and what she saw as she attempted to cross the highway. Defense counsel properly called Simms' attention to statements in her deposition perceived to be inconsistent with her trial testimony. Simms did not deny making such statements, nor did she deny the truthfulness of her deposition testimony. Rather, she testified that she could not recall details of the accident and that her memory was not refreshed by references to her deposition. At the close of Simms' testimony, defense counsel did not seek to introduce Simms' deposition or the parts used for impeachment. Rather, defense counsel sought to introduce the entire deposition at the close of trial. Noting that impeachment was well done, the trial judge refused to allow introduction of the entire deposition.
Considering this circuit's interpretation of La. C.C.P. art. 1450, we find that whether to allow introduction of the deposition was a matter within the trial court's discretion. We have reviewed both Simms' testimony and the proffered deposition, and we find no abuse of discretion in the trial court's ruling to deny introduction of Simms' deposition. The thorough cross examination and impeachment brought to the jury's attention any inconsistencies between Simms' deposition and trial testimony regarding the moments leading up to the accident. Introduction of the entire deposition would have been repetitive of matters already on the record.
Appellants also seek review of the trial court's refusal to allow introduction of Perot's deposition into evidence for the purpose of undermining the testimony of Simms' expert witness, A.J. McPhate. The defense asserted that introduction of Perot's deposition was necessary to make clear to the jury that McPhate disregarded portions of Perot's eyewitness account in giving his expert opinion at trial. However, this fact was made clear during McPhate's testimony. McPhate admitted that he disregarded Perot's placement of the van on the highway, Perot's claim that Simms and the van entered the highway at the same time, and Perot's contention that the van obstructed Williamson's view of Simms. McPhate explained that Perot was too far away and could have been mistaken in his positioning of the parties on the highway ahead of him.
The jury had the benefit of McPhate's tes
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