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Hobbs v. Harken6/9/1998
p in view of the objection." When the jury again requested the exhibit, the trial court allowed the exhibit to go to the jury, despite Mr. Harken's objection. One-half hour later, the jury returned a verdict for Mr. Hobbs for $340,000. Mr. Harken argues that admission of the exhibit was prejudicial error because it was a testimonial exhibit which can never be sent to the jury and also because he had abandoned his attempt to write Dr. Ward's assumptions on the exhibit in specific reliance on the court's ruling that the exhibit would not go to the jury.
We need not determine whether, on these unique facts, the trial court abused its discretion in reversing its earlier ruling that the exhibit would not go to the jury, for we are remanding for a new trial and we presume this fact situation will not recur on remand. However, the issue of whether this or a similar exhibit is a testimonial exhibit and whether it may go to the jury may arise again on remand if evidence is presented in the second trial supporting future damages for lost wages. Accordingly, we exercise our discretion to consider it.
Mr. Harken relies on O'Neal v. Pipes Enterprises, Inc., 930 S.W.2d 416 (Mo. App. 1995), to support his argument that Exhibit 29 was a "summary testimonial exhibit" and hence could not be allowed to go to the jury. In O'Neal, the trial court allowed the jury to take into the jury room an "exhibit" which was the videotaped testimony of a witness. We held that the trial court erred in sending this videotaped deposition to the jury room because it violated "the long-standing rule in Missouri that trial testimony may not be reread to the jury without the consent of both parties." Id. at 421 (citations omitted). We held that the principle underlying this rule is "that repetition of a portion of trial testimony would cause that portion to be emphasized by reiteration, which in turn 'might lead to interminable confusion or to an unwarranted advantage to one party over the other,' and which further would invade a juror's duty to solely determine the facts according to their memory alone." Id. at 421, quoting, Israel v. Fanchon & Marco, 58 S.W.2d 774, 778 (Mo. App. 1933). Accordingly, we found that this error was prejudicial, since the testimony indicated the plaintiff's comparative fault, which the jury found against the plaintiff, in spite of evidence to the contrary. Id. at 422.
Unlike Exhibit 29, the videotape at issue in O'Neal contained the actual testimony of a witness. Mr. Harken cites us to no authority, nor do we find any, that an exhibit such as Exhibit 29, which simply sets out certain of the Conclusions and calculations testified to by a witness, should also be characterized as a testimonial exhibit. To the contrary, many exhibits contain opinions or facts also testified to by witnesses. Many such exhibits are used by witnesses during their testimony in order to help explain the witness' testimony, or as a way of assisting the jury in understanding complicated issues or summarizing lengthy records. We agree with Mr. Hobbs that such exhibits are not the type of testimonial exhibit which O'Neal said could not go to the jury room. Because the exhibit at issue here did not constitute a prior trial transcript or deposition, but was rather simply a summary of calculations made by the witness, it was not a testimonial exhibit and the trial court was not prohibited from sending it to the jury.
For the reasons stated above, the case is reversed and remanded for a new trial on all issues.
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