 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Breeden v. Anesthesia West2/28/2003
under the rule enunciated in Momsen, supra, Clark's "earlier deposition which indicates that the entry was made at a time on or before the day of surgery or the specific words of her own testimony will be the testimony at trial as a matter of law." Such determination was incorporated into jury instruction No. 5, which provided that " he Court has determined as a matter of law that the following fact exists and you must accept it as true: Nurse Joyce Clark entered her nursing note on the computer at 9:50 a.m. on August 16, 1994."
In Momsen, a defendant doctor made statements during a pretrial deposition which in effect admitted his negligence. However, during trial, he testified to new facts which contradicted his earlier statements. On appeal, this court considered "whether, under the circumstances of this case, the [doctor's deposition] admissions bind him or simply go to the issue of his credibility." Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 53, 313 N.W.2d 208, 212 (1981). We determined that a party who changes his or her testimony during the course of litigation is bound by his or her earlier statements upon proof "that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony." Id. at 55, 313 N.W.2d at 213. See, also, Neill v. Hemphill, 258 Neb. 949, 607 N.W.2d 500 (2000). Accordingly, we held that the doctor was bound by his earlier deposition testimony, since the changed testimony concerned the central issue of the doctor's negligence, it was clear the doctor deliberately changed his testimony to meet the exigencies of the trial, and the doctor could not explain the change in his testimony. Momsen, supra.
This court has specifically declined to extend Momsen, supra, to instances of changed testimony by nonparty witnesses. Ketteler v. Daniel, 251 Neb. 287, 556 N.W.2d 623 (1996). A nonparty witness' changed testimony, even if made without reasonable explanation and in order to meet the exigencies of pending litigation, "is a factor to be considered by the jury when determining the weight and credibility to be given the witness' testimony." Id. at 295, 556 N.W.2d at 628. See, also, State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992); State v. Robertson, 223 Neb. 825, 394 N.W.2d 635 (1986). We again decline to extend Momsen to nonparty witnesses.
Since Momsen, supra, does not apply to nonparty witnesses, the district court erred in giving jury instruction No. 5.
VIII. CONCLUSION
For the reasons stated herein, the matter is reversed, and the cause is remanded for a new trial.
Reversed and remanded for a new trial.
|