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Davolt v. Highland2/28/2003
also, Trageser, 887 S.W.2d at 636-37 (affirming the trial court's refusal to admit a computer-animated videotape that was created to act as a demonstrative aid to show spinal changes similar to that of an actual surgery like the defendant performed on the plaintiff). The third ground upon which the trial court could have chosen to exclude the videotape is that the edited videotape included a time signature that ran continuously, although the film was different cuts from different parts of a different surgery that ran over one-and-a-half hours, which was about half the time of Mr. Davolt's surgery. Accordingly, the court could have found the videotape's prejudicial effect far outweighed any probative value to Dr. Highland in assisting the jury to evaluate his testimony. Overall, we believe reasonable minds can differ about the propriety of the trial court's exclusion of the videotape, so we cannot say that the trial court abused its discretion in so excluding it. Trageser, 887 S.W.2d at 636.
Having found no abuse of discretion or prejudice in the trial court's refusal to admit the videotape, we deny Point II.Point III: Plaintiff's Expert Witness' ReportsIn his third point on appeal, Dr. Highland brings two complaints concerning the trial court's admission of Plaintiff's Exhibits 4 and 5 -- Dr. Dunn's letters to Mr. Davolt's attorney. First, he complains that the trial court abused its discretion in admitting Dr. Dunn's letters into evidence. Second, he complains that the trial court committed plain error in allowing Dr. Dunn's letters to go to the jury during deliberations.
I. Admission of Exhibit 5:
We initially consider the admission of "Plaintiff's Exhibit 5," which Dr. Dunn identified at trial as a copy of his report, in letter form, to Mr. Davolt's counsel dated January 29, 1999. Dr. Dunn testified that he generated the report after personally examining Mr. Davolt, "because, if was going to testify as to how [Mr. Davolt] was doing and whether thought these changes were permanent, wanted to say saw [Mr. Davolt], so could tell [Mr. Davolt's counsel] what felt." The trial court admitted Exhibit 5 over Mr. Highland's objection that "it's self-serving." Although he offered this general objection to Exhibit 5 at trial, Dr. Highland did not include his complaints regarding Exhibit 5 in his motion for new trial. Accordingly, this ground for error is not properly preserved for appellate review. Rule 78.07(a)(1); Foster v. Barnes-Jewish Hosp., 44 S.W.3d 432, 439 (Mo. App. E.D. 2001). Therefore, we decline to separately review the admission of Exhibit 5 and limit our review to Exhibit 4. Nonetheless, Exhibit 5 contains observations, conclusions, and opinions of Dr. Dunn similar to those found in Exhibit 4, so our analysis below would be applicable to both exhibits. Moreover, although we do not review the propriety of the admission of Exhibit 5, it is considered in our subsequent plain error review concerning the trial court's decision to provide Exhibits 4 and 5 to the jury during deliberations.
II. Admission of Exhibit 4:
We first consider whether the trial court erred in admitting Plaintiff's Exhibit 4. Because the admissibility of evidence lies within the sound discretion of the trial court, absent a showing that the court abused its discretion in admitting Exhibit 4, we will affirm. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 819 (Mo. banc 2000). In order to show that the trial court abused this discretion, Dr. Highland must show that "the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful considerat
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