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Holm-Waddle v. Hawley6/23/1998
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
WADDLE v. HAWLEY
___P.2d___
SUPREME COURT OF OKLAHOMA
APPEAL FROM DISTRICT COURT OF OKLAHOMA COUNTY
Honorable Bryan C. Dixon
Plaintiff in medical malpractice action asserts error in: 1) trial court's refusal to allow evidence of common membership of defense expert and Defendant in a mutual malpractice insurance company to demonstrate expert's bias or prejudice; 2) trial court's exclusion of autopsy evidence because no notice of autopsy was provided to Defendant; and 3) trial court's failure to limit defense counsel's comments during voir dire. No abuse of discretion by trial court has been demonstrated.
AFFIRMED
This appeal raises three issues regarding admission of evidence in the jury trial of a medical malpractice action. First, is mere membership in a mutual medical malpractice insurance company admissible to demonstrate bias or prejudice on the part of a defense expert when the defendant is also a member? It is not. Second. was evidence of an undisclosed autopsy properly excluded? It was. Third, did the trial court abuse its discretion by allowing defense counsel's comments during voir dire? It did not. Because no abuse of discretion has been demonstrated, the trial court's judgment on the jury verdict is affirmed.
In July, 1990, Defendant, William Hawley, M.D., performed a procedure to bypass clogged arteries in the heart of decedent, Bonnie Risner. Ms. Risner had silicone breast implants surgically placed in 1980.
In July 1992, Mr. Risner brought a medical malpractice action against Defendant alleging that, during the bypass surgery, he allowed silicone to migrate into the pleural space between her chest wall and her left lung. Ms. Risner died on November 22, 1994, while her malpractice action was pending. Her daughter, Donna Marie Holm-Waddle, was substituted as Plaintiff.
On January 17, 1995, Defendant's counsel learned of Ms. Risner's death. Two weeks later, Defendant's counsel learned that an autopsy had been performed following Ms. Risner's death. It was performed by Plaintiff's expert witness. No notice of the autopsy and no autopsy report were provided to Defendant. Ms. Risner's body was subsequently cremated.
The malpractice action proceeded to jury trial in November, 1996. The jury returned a unanimous verdict for Defendant. Plaintiff asserts error in three of the trial court's evidentiary decisions. Rulings concerning the admission of evidence are measured against the abuse of discretion standard. See Jordan v. General Motors Corp. 590 P.2d 193, 196 (Okla. 1979).
I.
Plaintiff argues that the trial court should not have excluded evidence that the Defendant's expert witness and Defendant were both members of a mutual medical malpractice insurance company. The issue of whether a medical expert and a defendant's common membership in a mutual insurance company can be used to impeach the expert in a medical malpractice action was answered by this Court's recent decision in Mills v. Grotheer, 69 Okla. B.J. 1425 (Okla. April 14,1998). There, this Court held that the degree of connection between the witness and a defendant's insurer must be something more than mere membership in a mutual insurance company before evidence of the relationship becomes probative enough to substantially outweigh its danger of prejudice. Id. at 1427.
In this matter, nothing more than common membership in a mutual insurance company is alleged. The trial court did
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