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PIERCE v. CENTRAL MAINE POWER CO.3/11/1993
statements made in the trial. We review for abuse of discretion or other error.
We recognize broad discretion by the presiding justice in ruling on the admissibility of evidence challenged as unfairly prejudicial. State v. Wallace, 431 A.2d 613, 616 (Me. 1981). Prior admissions by a party-opponent are admissible under M.R.Evid. 801(d)(2). Although authority exists elsewhere for admitting amended, withdrawn, or superseded pleadings under certain circumstances, the excluded pleadings in this case were not significantly probative in determining the factual circumstances of the accident but merely reflected plaintiffs' allegation, before discovery, that multiple parties had legal liability for the accident. The court did not abuse its discretion or err by refusing to admit plaintiffs' pleadings given the court's concern about jury confusion. See Vincent v. Louis Marx & Co., Inc., 874 F.2d 36, 41 (1st Cir. 1989) (finding that the issue whether to admit or exclude inconsistent allegations in a prior pleading requires a Fed.R.Evid. 403 balancing test). Neither was there error in declining to exercise the power of judicial estoppel.
The same rationale applies to the court's refusal to admit similar conclusory allegations contained in plaintiffs' answers to interrogatories. Such answers may be used at trial "to the extent permitted by the rules of evidence." M.R.Civ.P. 33(b). The court, however, did not abuse its discretion
II.
CMP contends the court erred by allowing plaintiffs' expert witness to testify that the accident was foreseeable. CMP argues that testimony was inadmissible because it was framed in the same language that the court would use in instructing the jury on the legal standards. Plaintiffs' expert witness, an electrical engineer, answered a hypothetical question concerning the "foreseeability" of a crane contacting a high voltage wire and testified to an "impression of foreseeability of possible contact" based upon his review of materials in this case. The court instructed the jury that "foresight" was the proper test to be applied and that negligence is a legal cause of damage if the damage is "a reasonably foreseeable consequence" of the negligent act.
Opinion testimony "otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." M.R.Evid. 704. We defer to the discretion of the presiding justice in making the M.R.Evid. 704 determination and will not disturb the exercise of that discretion "absent a clear abuse of discretion or an error of law.". Minott v. F.W. Cunningham & Sons, 413 A.2d 1325, 1330 (Me. 1980). The question posed to the witness, although phrased in the terminology of a legal standard, was not subject to misunderstanding by the witness or the jury. 1 McCormick on Evidence ยง 12, at 50-51 (4th ed. 1992). The court did not clearly abuse its discretion or commit an error of law in allowing the testimony into evidence.
III.
CMP contends the Superior Court erred by informing the jury that the maximum award for loss of comfort and society under the CMP argues that the information provided an incentive for the jury to increase the award for pain and suffering or economic loss in response to the natural sympathy it might entertain for these plaintiffs. We review for error of law.
Having chosen to instruct the jury with regard to the $50,000 statutory cap, the court expressly stated that the jury could not shift damages in excess of the cap from one category to another. We presume in the absence of evidence to the contrary that a properly instructed jury will not engage in misconduct by ignoring an instruction. Michaud v. Steckino, 390
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