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Yardman v. San Juan Downs Inc.8/23/1995
lled as a witness. On cross-examination, defense counsel propounded a hypothetical question to the witness and asked whether he agreed that if a Fontana Safety Rail System had been in place, and if Plaintiff had impacted either the aluminum portion or the flat surface "with his head leading, there is at least the possibility of significant head and neck injuries?" Plaintiff's counsel objected, stating that the question required the witness to speculate. The trial court sustained the objection, stating: "You're asking him to speculate about what your witnesses are going to say." Thereafter, the trial court stated that "you can ask your hypothetical; but it can't relate to [Plaintiff], because that isn't the way he came off [the horse]." Defendants objected to the trial court's comment when the next opportunity arose, outside the presence of the jury.
37. Defendants argue that the Judge's statement had the effect of indicating to the jury the manner in which the accident occurred before Defendants could present their case. Whether an attorney may propound a hypothetical question to an expert witness and the admission of the witness's opinion based thereon is within the sound discretion of the trial court. . As a general rule, under SCRA 1986, 11-705 (Repl. 1994), hypothetical questions must be based on facts which are already in evidence or upon evidence which the questioner assures the court will be produced and is admissible in evidence. ), cert. denied, 111 N.M. 678, 808 P.2d 963 (1991); see also SCRA 1986, 13-209 (Repl. 1991) (hypothetical question "assumes as true certain facts which may or may not be true"); ) (counsel may propound hypothetical questions based on his theory of case if based on evidence which has been or which may be presented), cert. denied, 89 N.M. 6, 546 P.2d 71 (1976). If material facts upon which the hypothetical question is constructed are not subsequently presented and admitted into evidence, the opposing party must move to strike the answer to preserve the error for review on appeal.
38. While we agree that the rulings and comments of a Judge before the jury must not intimate the Judges belief or feelings concerning the merits of either party's case or the credibility of witnesses, under the circumstances presented here, the trial court's comments did not constitute reversible error. The jury had been previously shown a videotape of the race which captured the circumstances and manner of Plaintiff's fall. At the outset of the trial, the court instructed the jury pursuant to SCRA 1986, 13-106(6) (Repl. 1991) that "remarks, arguments and statements of the lawyers are not evidence; neither are comments of the court." Moreover, defense counsel neither asked the trial court to disregard the court's statement nor submitted a proposed jury instruction to neutralize the alleged error.
6. Denial of Offset
39. At the request of the Jockeys Guild, Defendants purchased several insurance policies which provided medical and disability benefits on behalf of the jockeys at San Juan Downs. Following his accident, Plaintiff received medical benefits under the policies, totalling approximately $61,000.
40. Defendants filed a motion requesting that the jury award of $400,000 be reduced to $300,000 in accord with the limitation on recovery under the Tort Claims Act and for an offset against the judgment for the amount of medical and disability benefits paid to Plaintiff under the policies obtained by the County. Plaintiff opposed any offset, arguing that the policies had been purchased as a result of negotiations and demands by the Jockeys Guild and, thus, any benefits obtained thereunder constituted a collateral source. The trial court agreed that
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