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Perry v. Magic Valley Regional Medical Center2/28/2000
erry in the Hospital's offer of proof. There Perry testified that over the course of three and a half years, she received 120 pills per month most months and 30 pills per month for a few months. Even if Perry received 30 pills a month for almost a year, she would have received a total of over 4000 pills. Only one person claimed that Perry had given away more than ten pills. Perry herself claimed to have given away a total of eleven pills to two persons. Under the Hospital's offer of proof, Perry gave away approximately 100 pills. Weighed against this was the prejudicial value that Perry had broken the federal law that prohibits dispensing medications without a prescription.
In ruling the evidence inadmissible, the trial court mentioned the small amount at issue and its willingness to reconsider if the Hospital brought forward evidence that Perry was selling or giving away wholesale quantities of pills. Because the amount of pills at issue was minimal, the trial court held that the probative value was outweighed by the prejudicial value. At most, Perry gave away 3% of her pills. Although reasonable persons could differ over the characterization of 100 pills as de minimis, such a characterization is within the trial court's discretion. This Court holds that the trial court did not abuse its discretion in excluding testimony that Perry occasionally gave away prescription pain medication.
G. The Trial Court Did Not Abuse Its Discretion in Prohibiting the Use of Unemployment Documents to Refresh Perry's Recollection.
Perry's employment was terminated in the spring of 1995 for reasons unrelated to her physical symptoms. On cross-examination, Perry claimed that she was physically unable to work for the following three months, but she admitted that she received three unemployment checks during this period.
The Hospital grilled Perry about whether she represented to the State that she was physically able to work in order to receive unemployment benefits. Perry could not recall. When the Hospital sought to refresh her recollection with applications for unemployment benefits which Perry had signed, the trial court sustained the objection of Perry's counsel. On appeal, the Hospital asserts that it was prejudiced by not being able to have Perry testify that she had signed documents stating that she was physically able to work.
I.R.E. 612 allows a writing to be used to refresh the memory of a witness. "A party entitled to have a writing or object produced under this rule is entitled . . . to introduce in evidence those portions which relate to the testimony of the witness." I.R.E. 612(c). The trial court sustained an objection to the unemployment documents on the basis that it was not previously disclosed as an exhibit. Because the Hospital, as a matter of law, was entitled to introduce the documents into evidence once they had been used to refresh Perry's memory, the trial court was entitled to base its ruling on whether they could be admitted as exhibits.
The trial court did not abuse its discretion in refusing to allow use of the unemployment documents. Given the contentious nature of discovery in this trial and the recurring suggestion of evidence being withheld, the trial court considered whether there was a surprise necessity for admitting a previously undisclosed exhibit. It noted that the Hospital had already made its point that Perry signed unemployment documents with their inculpatory representations. The trial court stated that it was not making a blanket ruling excluding all impeachment evidence. Finally, the trial court allowed the Hospital two means of impeaching Perry: the Hospital could instruct Perry as to the wording of the Idaho Code reg
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