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Wolfington v. Wilson N. Jones Memorial Hospital8/31/2000
id. We make every reasonable presumption in favor of orders refusing new trials. See id.
The "newly discovered evidence" in this case was a Cardiolite film that showed the results of a stress test performed on Carl Wolfington. The Wolfingtons requested this evidence both informally and formally through a deposition and subpoena duces tecum. However, Noaman and the Hospital contended the requested evidence was not in their possession and was presumably lost. On the second day of trial, the Hospital produced the Cardiolite film to the Wolfingtons for the first time.
Although the Wolfingtons contend on appeal that this evidence and its interpretation was crucial to their case, they did not move for a continuance, introduce the film into evidence, or have an expert review the evidence prior to the conclusion of the trial. Further, the evidence was available during the trial. Based on these facts, we conclude the Wolfingtons can not meet the first criterion for a new trial based on newly discovered evidence that the evidence came to their knowledge "since the trial." We decline to extend the newly discovered evidence doctrine to evidence discovered during a trial. See Ramirez v. Otis Elevator Co., 837 S.W.2d 405, 413 (Tex. App.--Dallas 1992, writ denied). We overrule the Wolfingtons' fourth issue.
Having overruled all of the Wolfingtons' issues, we need not address the Hospital's two cross appeal issues regarding whether the trial court erred in denying their motion for directed verdict. See Tex. R. App. P. 47.1.
We affirm the trial court's judgment.
JIM MOSELEY, JUSTICE
Do Not Publish
Tex. R. App. P. 47
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