 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lascano v. Vowell9/5/1996
scoverable and are subject to production through pretrial procedure. Crist v. Goody, 31 Colo. App. 496, 507 P.2d 478 (1972).
In Crist, the defendant in a personal injury action had filmed a surveillance movie of the plaintiff conducting routine activities. The defendant did not produce the film nor was its existence mentioned before trial. The trial court in its discretion allowed the film to be admitted into evidence and to be shown to the jury. However, a division of this court concluded that the trial court had abused its discretion in denying the plaintiff's motion for a mistrial or a continuance to avoid the effect of undue surprise.
Here, investigators working for defendant's insurer secretly made a surveillance movie of plaintiff on March 30 and April 2, 1994. Thereafter, on April 13, defendant moved to supplement her disclosure certificate and to endorse the movie as an exhibit for trial, which was scheduled to begin on May 2, 1994.
Plaintiff then filed a motion in limine seeking the exclusion of the surveillance movie and the testimony of those who had prepared it, arguing that defendant had sought endorsement too close to the trial date. In this motion, plaintiff expressly stated that, because the case had been pending for an extended time, the trial, scheduled to begin on May 2, 1994, should not be continued.
The trial court heard arguments on plaintiff's motion before trial and intermittently throughout plaintiff's case-in-chief. It was only after defendant was well into the presentation of her case that the trial court finally decided to permit the late endorsement of the surveillance movie and to admit it.
Under these circumstances, we view that ruling to be an abuse of the trial court's discretion.
First, defendant did not tender the movie 80 or more days before trial; thus, it could not have been made part of a supplemental disclosure certificate. See C.R.C.P. 16(b) & (c) (repealed). Moreover, defendant made no showing that the admission of the movie was essential "to prevent manifest inJustice" and the trial court did not find that it would be.
Second, the late attempt to endorse the exhibit left plaintiff with few options. On learning of the existence of the movie, plaintiff could have moved for a continuance to permit her to develop a strategy for meeting this evidence. See, e.g., Crist v. Goody, supra; see also J.P. v. District Court, supra. However, in our view, plaintiff was not required to do so. Rather, she was entitled to rely on the requirements of C.R.C.P. 16(c) (repealed) which expressly limited a party's ability to endorse an exhibit less than 80 days before trial unless the circumstances required that the late endorsement be allowed to prevent manifest inJustice.
By delaying its ruling on the admission of this exhibit until more than halfway through the trial, the trial court denied plaintiff the ability to prepare any effective method of meeting this evidence. Plaintiff was given the Hobson's choice of referring to the movie during voir dire, her opening statement, and her case-in-chief, possibly waiving any objection to the later admission of the movie, or waiting until the trial court had ruled on the issue of admissibility of the movie, thus preserving her objection but denying her any meaningful opportunity to present contrary evidence.
Third, plaintiff was placed at a significant disadvantage by having to rebut the exhibit without sufficient time to prepare properly.
Finally, the prejudice to plaintiff brought about by the admission of this movie is clear. The f
Page 1 2 3 4 5 Colorado Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|