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Robertson v. Nelson9/6/1994
COZORT, Judge.
Plaintiff William Robertson, Jr., filed this action against defendant Danny Ray Nelson to recover damages for injuries he sustained in a motor vehicle accident which occurred on 28 September 1987. His wife, Monika, joined in the suit claiming damages for loss of consortium. Defendant stipulated that his negligence was a proximate cause of the collision. A jury awarded damages in the amount of $62,500.00 to plaintiff William Robertson, Jr. The jury found no loss of consortium as to plaintiff Monika Robertson. Both plaintiffs made a motion for a new trial on 22 December 1992. The trial court granted a new trial to plaintiff Monika Robertson; it denied the motion as to plaintiff William Robertson, Jr. Plaintiff William Robertson, Jr., appeals. The sole issue presented on appeal is whether the trial court erred in excluding the "discovery" deposition of a physician from the evidence and in failing to order a new trial based on this ground. Defendant's counsel conducted a "discovery" deposition and a "trial" deposition of the male plaintiff's treating physician. We find the trial court's exclusion of the deposition was error, and we find sufficient potential prejudice to require a new trial. Pertinent facts and procedural history follow.
On 28 September 1987 a motor vehicle operated by plaintiff William J. Robertson, Jr., collided with a motor vehicle operated by defendant Danny Ray Nelson. The negligence of defendant Nelson was a proximate cause of the collision. Plaintiffs William J. Robertson and Monika R. Robertson were legally married on 15 September 1966 and have remained continuously married since that date and up to the time of trial. Plaintiffs filed suit on or about 21 September 1990 requesting damages for William J. Robertson for injuries suffered in the collision and damages for Monika R. Robertson for loss of William's society, companionship, sexual fulfillment and affection. Plaintiffs alleged William, as a result of the injuries sustained in the collision, was no longer able to function as Monika's marriage partner.
On 5 January 1991 as part of pre-trial discovery, defendant's counsel conducted two depositions of one of plaintiff's treating physicians, Dr. Thomas C. Leitner. Prior to the taking of the deposition, defendant's counsel sent letters to plaintiff and to plaintiff's counsel explaining that defendant's counsel would initially question Dr. Leitner on a "discovery basis" and "thereafter go through a direct examination for use in trial." Plaintiff's counsel did not object to the procedure of taking a "discovery" deposition separate and distinct from a "trial" deposition. Plaintiff's counsel cross-examined Dr. Leitner only during the "trial" deposition.
The first deposition, the discovery deposition, lasted approximately one hour and was conducted pursuant to the following stipulation: "Said deposition shall be taken for the purpose of discovery or for any other purpose allowed under the Rules of Civil Procedure." The second deposition (trial deposition) commenced immediately following the discovery deposition and was taken pursuant to this stipulation: "Said deposition shall be taken for the purpose of trial or for any other purpose allowed under the Rules of Civil Procedure."
At trial, the plaintiff attempted to introduce the discovery deposition into evidence. The trial court refused to admit the discovery deposition into evidence, ruling that, under N.C.R. Evid. 403, "to allow the same would be cumulative with the [trial] deposition of Dr. Leitner which has been read and that the same would be a waste of time in the court's opinion."
The issues submitted to the jury, and the jury's answers, are:
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