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Robertson v. Nelson9/6/1994
lowing is a list of all known exhibits the plaintiff William James Robertson, Jr., may offer at the trial:
A. All discovery materials, including video depositions and all demonstrative exhibits used during the depositions of any witness or party; (emphasis added).
By the parties' own agreement, the discovery deposition was admissible evidence at trial. Consequently, it was error for the trial court to exclude the discovery deposition from the evidence.
We must now determine whether the exclusion of the discovery deposition was prejudicial error. The trial court reviewed both depositions and excluded the discovery deposition, finding it to be cumulative. Plaintiff contends the discovery deposition contained significant information which could have influenced the jury's decision regarding the cause of plaintiff's impotence. We agree. With defendant stipulating to his negligence as the cause of the collision, this case went to trial on damages to the plaintiff and loss of consortium, and attendant damages thereto, for plaintiff's wife. Defendant contended plaintiff's impotence was due to pre-existing conditions, especially inguinal hernias, and not the collision. Our review of the two depositions leads us to the Conclusion that the exclusion of the discovery deposition might have had a material effect on the jury's verdict on damages to the plaintiff and the jury's finding of no loss of consortium for plaintiff's wife. In the discovery deposition, Dr. Leitner states that "there is no neurological reason that inguinal hernia surgery would cause impotency." He also testified that a hernia does not usually affect sexual function.
Defendant contends these and other differences referenced by plaintiff are "negligible at best and could not reasonably be portrayed as having any significant effect on the outcome of the trial." We must disagree. Viewing all of the evidence, we are unable to conclude that the exclusion had no effect on the jury's considerations. A new trial is in order.
Finally, we turn to an issue raised by defendant concerning the need for separate discovery depositions and trial depositions. Defendant contends the need for separate depositions was brought about by our Supreme Court's decision in Crist v. Moffatt, 326 N.C. 326, 389 S.E.2d 41 (1990). In Crist, the Court concluded:
In summary, the gravamen of the issue is not whether evidence of plaintiff's medical condition is subject to discovery, but by what methods the evidence may be discovered. We conclude that considerations of patient privacy, the confidential relationship between doctor and patient, the adequacy of formal discovery devices, and the untenable position in which ex parte contacts place the nonparty treating physician supersede defendant's interest in a less expensive and more convenient method of discovery. We thus hold that defense counsel may not interview plaintiff's nonparty treating physicians privately without plaintiff's express consent.
Id. at 336, 389 S.E.2d at 47. We recognize the holding in Crist has caused problems for the trial bar. We are not convinced that having separate "trial" depositions and "discovery" depositions is the answer. Perhaps our General Assembly should consider amending the Rules of Discovery to address these concerns.
New trial.
Judges ORR and GREENE concur.
Disposition
New trial.
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