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Fehrenbach v. O'Malley10/21/2005
Lerer was asked by defense counsel if "some percentage of those [meningitis] patients that you treated timely with antibiotics still experienced complications and sequelae." Dr. Lerer responded by discussing his meningitis patients and their different outcomes. The Fehrenbachs' counsel moved to strike the testimony but stated no basis for the objection, which was overruled.
{ } In this final instance, we hold that the trial court did not abuse its discretion in overruling the unexplained objection. The trial court, as well as opposing counsel, must be made aware of the objecting party's specific ground for striking testimony when it is not obvious from the context. Further, even if the trial court erred, the testimony concerned the issue of damages, and the court's failure to strike this testimony could not have substantially prejudiced the Fehrenbachs because the jury, after finding no liability, never reached the issue of damages. The assignment of error is overruled.
Exclusion of CVs
{ } The eighth assignment of error alleges that the trial court erred in refusing to admit as exhibits the Fehrenbachs' experts' curricula vitae (CVs), where defense counsel did not object to the CVs at the time the witnesses' videotaped trial depositions were taken.
{ } A trial court has discretion to exclude relevant evidence if its probative value is substantially outweighed by the needless presentation of cumulative evidence. Absent a clear and prejudicial abuse of discretion, the trial court's determination not to admit such evidence should not be reversed on appeal.
{ } At the trial depositions, the Fehrenbachs' counsel had the experts explain their education and training. He did not have each expert read a CV containing pages of authored articles and chapters into the record; rather, he marked each CV as an exhibit and had each expert identify his own CV and confirm that it was complete, true, and upto-date. But each of the experts did testify to the fact that he had authored medical literature, except for Dr. Korobkin, a damages expert. At the time when the trial depositions were taken, defense counsel did not object to the qualification of the experts or to the use of the CVs as exhibits. Later, at trial, when the Fehrenbachs' counsel moved to admit the CVs into evidence for the jury's review, defense counsel objected. The trial court did not allow the CVs into evidence because information in them was cumulative to the experts' testimony about their qualifications and training.
{ } We conclude that this decision was reasonable under the circumstances, and that, accordingly, there was no abuse of discretion. The eighth assignment of error is overruled.
New Opinion of Expert Witness
{ } In the ninth assignment of error, the Fehrenbachs argue that the trial court erred in allowing defense expert Dr. Rotbart to render a new opinion at trial concerning when Tara had developed meningitis. Initially we reject the argument that the failure to make Dr. Rotbart's deposition transcript a part of the record is fatal to the Fehrenbachs' claim, as Dr. Rotbart both admitted at trial that he had added to his deposition testimony and explained the addition. Ultimately, though, we conclude that the court's refusal to strike Dr. Rotbart's new opinion was not an abuse of discretion.
{ } At his discovery deposition and at trial, Dr. Rotbart stated that Tara had developed meningitis within a twelve-to-twenty-four-hour period prior to her admission to Children's Hospital. But at trial he added that he thought it was more probable that the time of genesis was closer to twelve hours than to twenty-four because Tara had been able t
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