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Brown v. Contemporary OB/GYN Associates3/27/2002
t was bifurcated that would be admissible if it were not a bifurcated trial?
[APPELLEES' COUNSEL]: That he was presented as a liability only witness. There has been no expert identification or supplemental answer to interrogatory or informal letter that has ever notified me that he is going to be testifying as to psychiatric damages.
They have two psychiatrists to testify.
THE COURT: I think -
[APPELLANTS' COUNSEL]: Your Honor, I did notify him, and it is in the records that I did provide a supplemental pre-trial statement.
It is in the records in which I indicated that Dr. Osborne was an expert, was qualified to render opinions with respect to patients who have suffered this kind of loss, and they have suffered some kind of mental anguish for them to be referred to a psychiatrist.
It is in the pre-trial, and I did give a copy to - I did send you a copy. This was a month ago, about a month or two ago.
[APPELLEES' COUNSEL]: I mean, I can debate whether that is present or not. Let's assume it is. He has two psychiatrists on tap to testify to that very issue tomorrow.
Ultimately, appellants elected to use the earlier testimony. Accordingly, the trial court carefully explained to the jury the use of prior testimony, stating, in part:
Now, at this time we are ready to continue, and I should explain to you the procedure about to be employed.
You have already learned through the course of this trial that our Rules provide for the taking of depositions before trial. In addition to that - and you have learned that these depositions may be taken at various places.
They are simply swearing in a witness the same as a witness is sworn in here, with the presence of counsel for both sides, and questioning, cross-examination, direct, redirect, exactly as it would occur in a courtroom.
And sometimes these depositions are used. Now, occasionally they are used - and you have seen them used primarily for purposes of asking a witness if in fact the witness did not say something on a previous occasion and refreshing their recollection or impeaching the witness's current testimony with prior testimony.
That is certainly a legitimate use of depositions. Both sides have utilized depositions for this purpose.
Sometimes depositions are used in lieu of the attendance of a witness and simply are read into evidence. Occasionally they are done even by videotape sometimes, and we play the videotape. So, there are a number of ways they are done.
Any testimony that qualifies, that is has been taken under oath and when both sides have an opportunity to be present and ask questions - qualifies for use at the trial.
And that is what we are going to do now. In lieu of calling as a witness in person, Dr. Newton Osborne, we are going to have read to you the testimony of Dr. Osborne, which will include the direct testimony and cross-examination.
We perceive no merit to appellants' claim that they were prejudiced because, in using Dr. Osborne's earlier testimony, they were denied the opportunity to present testimony from Dr. Osborne concerning mental anguish. As appellees point out, such testimony would have been cumulative, because appellants "had the benefit of expert testimony on mental pain and anguish" from two other witnesses. Moreover, given the jury's verdict, it never reached the issue of damages.
Furthermore, it is well settled that the "admissibility of expert testimony is within the sound discretion of the trial court, and its action will seldom constitute a ground for reversal." Pepper v. Johns
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