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Durbin v. Sumner County Regional Health Systems9/6/2001
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This trial was held in April of 2000. Therefore, the Jordan decision should have been applied in this case. The trial court erred in not applying Jordan in its decision. However, we think this error was harmless. This issue goes to the question of damages, and the jury was instructed not to consider damage issues until finding one or both of the appellees liable. Because the jury found for the appellees, the issue of damages would not have been considered in the deliberations.
2. Photographs of Appellants Holding the Twins
One of the motions in limine filed by the appellees concerned the admissibility of three photographs of the twins and the appellants after the twins were delivered. After arguments on the issue the trial court found that the "prejudicial impact of the photographs outweigh the probative value . . . ." The trial court based this ruling on Tennessee Rules of Evidence Rule 403.
In a recent case concerning the admissibility of evidence under Rule 403, this court has stated:
The admissibility of evidence is a matter which rests within the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993); State v. Williams, 657 S.W.2d 405, 411-12 (Tenn.1983); Murray v. State, 214 Tenn. 51, 377 S.W.2d 918, 920 (1964); Wright v. Quillen, 909 S.W.2d 804, 809 (Tenn.App.1995); State v. Rhoden, 739 S.W.2d 6, 13 (Tenn.Crim.App.1987). This Court will not interfere with the trial court's exercise of its discretion absent clear abuse. Williams, 657 S.W.2d at 411-12; Murray v. State, 377 S.W.2d at 920; Rhoden, 739 S.W.2d at 13. Roy v. Diamond, 16 S.W.3d 783, 791 (Tenn. Ct. App. 1999).
We do not find that the trial court abused its discretion in excluding the photographs. The appellants wished to enter the photographs to prove that the twins died at different times. The appellants also wished to enter the photographs to counteract the appellees characterization of the twins as "fetuses." They wanted to show that the twins were "small, human babies." The appellants also argue that the photographs show that the appellants were already involved in the lives of the twins.
While the photographs are relevant as to the condition of the twins, we believe that the appellants' expert witness testimony was more reliable as to the difference in times of death of the twins. We do not believe that a lay person could make a conclusion as to the time difference from viewing the photographs. The appellants' expert witness did not even rely on the photographs as basis for his testimony. We therefore believe that the probative value of the photographs is limited and the other evidence presented by the appellants' expert witness was more probative evidence on the same question. The use of the photographs for the other two stated reasons would clearly have an emotional impact on the jurors viewing the photographs.
Because the admission of the photographs would be more prejudicial than probative, we find that the trial court correctly excluded the photographs.
G. Trial Court's Comments on the Charge
The appellants argue that the trial court made impermissible comments when it was reading the jury instructions to the jury. The language in question is as follows:
As nurses, the employer, Sumner Regional Medical Center is responsible for the nurses' negligence. In addition, you may also conclude that fault with or against Sumner Regional Medical Center if you find that Sumner Regional Medical Center was at fault separate and apart from the fault of the nurses.
Ladies and Gentleman , what Mr. Trentham was properly pointing out in reading the jury charge,
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