 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lewis v. Samson9/14/1999
overy.
{30} Concerning the sixth factor, we distinguish between the four new witnesses sought by Plaintiff. As Defendants point out, Ms. Faison and the witness from Amarillo would have likely provided cumulative testimony. Dr. Samson apparently stipulated to Ms. Faison's proposed testimony, namely that rib spreaders were available at Memorial Hospital on the night in question. The Amarillo witness would have testified about the feasibility of transferring patients from Tucumcari to Amarillo. Plaintiff's medical expert, however, attested to this fact during trial. As a result, the trial court did not abuse its discretion in disallowing the depositions of these two witnesses on the ground that their testimony would be superfluous. See, e.g., Davila v. Bodelson, 103 N.M. 243, 253-54, 704 P.2d 1119, 1129-30 (Ct. App. 1985) (trial court's error was harmless where excluded evidence was cumulative of other testimony).
{31} In contrast, however, Ms. Griner would have testified on factual issues central to the case. Plaintiff offered her testimony regarding UNM Hospital's procedures for responding to phone calls. She could opine on the reasons why UNM Hospital did not respond to Dr. Ortiz' alleged phone call at 3:06 a.m. for help with the patient. This testimony was highly relevant to both Defendants' standard of care and Dr. Ortiz' credibility as a witness in light of his testimony regarding the phone call.
{32} We recognize that Plaintiff could have timely identified Ms. Griner as a witness through diligent discovery far earlier than June 11, 1997, and that Defendants opposed Plaintiff's motion, considerations under the second and fourth factors. Even considering the fact that Defendants opposed Plaintiff's motion, however, we note there was no finding that Plaintiff's oversight was willful and that there was nothing in the record indicating that Plaintiff knew she would be calling Ms. Griner "at an earlier point in time and chose not to disclose their identities until it would be too late for [Defendants] to depose them." Baca v. Velez, 114 N.M. 13, 16, 833 P.2d 1194, 1197 (Ct. App. 1992); see also Shamalon Bird Farm, Ltd. v. United States Fidelity & Guar. Co., 111 N.M. 713, 715-16, 809 P.2d 627, 629-30 (1991). In summary, we conclude that the six factors balance in Plaintiff's favor.
{33} Additionally, the trial court refused to amend or alter its pretrial order despite the fact that the pretrial order's discovery deadline of June 27 explicitly pertained to the earlier trial date on July 14, 1997, which was vacated. The pretrial order itself expressly reflected the court's intention to allow discovery until approximately twenty days before trial.
{34} For these reasons, we conclude that the court abused its discretion in prohibiting discovery of Ms. Griner several months before the trial rescheduled in January of 1998. There was no support in the record to warrant such a drastic limit in the timetable for discovery. Because we are reversing on the failure to allow discovery of Ms. Griner, it is not necessary to address the issue relating to Dr. Hanosh.
B. The Trial Court Should Have Precluded the Issue of the Assailant's Comparative Negligence and Negligence Per Se on Plaintiff's Pretrial Motion
1. Preservation
{35} Initially, we address Defendants' contention that Plaintiff failed to preserve this issue for appeal. "To preserve an issue for review on appeal, it must appear that appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court." Woolwine v. Furr's, Inc., 106 N.M. 492, 496, 745 P.2d 717, 721 (Ct. App. 1987). In this case, Plaintiff filed a pretri
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|