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Fuerst v. Tuccinardi2/19/2003
panic attacks, but had treated Lorrie instead for anxiety and depression. At best, this evidence merely provided an opportunity for a battle of semantics, or in the alternative, raised the question whether Lorrie used the term "panic attack" as a lay term for anxiety.
In any event, we agree with the trial court Lorrie did not put his mental state in issue and thus waive the patient/psychotherapist privilege. This was not a case where Lorrie testified, for example, that because of his mental delusions, or because his medications made him hallucinate, he thought Karen was instead some hideous monster he had to stab to death before it could kill him.
The evidence Lorrie said he was having a panic attack and for this reason came downstairs to wake Karen so she could drive him to the hospital similarly did not put his mental state in issue. What motivated him to awaken Karen is immaterial. It is what did or did not occur thereafter which determined whether he should be liable for Karen's death. In other words, if "bothering" her was the trigger as the evidence suggested at trial, then the case might have been the same if instead Lorrie had come downstairs, awakened Karen, said he was having trouble sleeping, and asked her if she wanted to join him for milk and cookies.
In short, we find no error in the trial court's ruling excluding the documentary evidence of Lorrie's medical treatments and the deposition testimony of his treating psychiatrist. It thus follows it was improper for the children's counsel to refer to the excluded evidence in closing argument by telling the jury they should regard Lorrie's claim of mental problems with suspicion because he produced no expert or documentary evidence to substantiate his claim of illness and treatments.
IV. THE CHILDREN HAVE FORFEITED THEIR RIGHT TO CLAIM THE TRIAL COURT DID NOT PROVIDE THEM ADEQUATE TIME FOR CLOSING ARGUMENT.
The trial court limited the time for closing arguments to three and one half hours, equally divided between the parties. It was not until the next day when the jury had begun their deliberations the children complained the time provided for closing arguments was inadequate.
This objection came too late. Accordingly, the issue is not preserved for review on appeal.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
PERLUSS, P.J.
WOODS, J.
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