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Bruno's Supermarkets2/25/2005
[MASSEY'S COUNSEL]: I haven't asked her how much she has to pay or whether she knows that, so the objection is premature.
"[BRUNO'S COUNSEL]: He asked her what other companies intend to do and the best evidence comes from those companies not from Ms. Massey. That's not her decision.
"[MASSEY'S COUNSEL]: The best evidence is an objection about documents.
"[THE COURT]: I am going to sustain the objection, but not for the reasons stated.
"[BRUNO'S COUNSEL]: All right, sir.
"[MASSEY'S COUNSEL]: May I approach, Your Honor?
"[THE COURT]: Yes.
"[MASSEY'S COUNSEL]: Ms. Massey, let me ask you to identify these documents. I'm not going to be able to get them in. I'm just asking you to identify them. Do you recognize them?
"[MASSEY]: Yes, I do.
"[MASSEY'S COUNSEL]: Do you want to see them first? [Directed to Bruno's counsel].
"[BRUNO'S COUNSEL]: Yes. I've never seen them before.
"[MASSEY'S COUNSEL]: They are the bills from the insurance company or some letters she received
"[BRUNO'S COUNSEL]: These are to you?
"[MASSEY'S COUNSEL]: She got a copy of it.
"[BRUNO'S COUNSEL]: Okay.
"[MASSEY'S COUNSEL]: Ms. Massey, do you recognize these letters?
"[MASSEY]: Yes, I do.
"[MASSEY'S COUNSEL]: And did you receive these letters in the mail?
"[MASSEY]: Yes.
"[MASSEY'S COUNSEL]: And who did you receive these letters from?
"[MASSEY]: This right here is from Medicare (indicating).
"[BRUNO'S COUNSEL]: Judge, before we go any further, this is hearsay that she's testifying about. We object to it. She can identify the letters that she's seen them, to tell about who they came from and what they said would be hearsay.
"[MASSEY]: Well, right up here it tells you who they came from (indicating).
"[BRUNO'S COUNSEL]: Yes, ma'am. You're right again, Ms. Massey. It does tell who it came from, but it's improper.
"[MASSEY'S COUNSEL]: We'll move on.
"[THE COURT]: Sometimes the rules of evidence don't make common sense.
"[BRUNO'S COUNSEL]: No, they don't, but we have to go by them."
Following this exchange, Massey's counsel "moved on" to other inquiries without attempting to otherwise authenticate the letter in question or to introduce it into evidence.
At no other time during the trial did Massey attempt to present other evidence -- through either witnesses or documentation -- as to the issue of subrogation. After the close of all the evidence, a colloquy involving the parties' counsel and the trial court occurred in which Bruno's counsel requested that Massey's counsel not be allowed to mention the issue of subrogation in his closing statement because " hat's not in evidence." After an extended discussion of the matter, the trial court stated: "There is no evidence before this Court that [Massey] has to pay back a specific amount of money." The trial court then sustained the objection and forbade Massey's counsel from mentioning subrogation in his closing statement to the jury.
Nevertheless, during Massey's closing statement to the jury, the following occurred:
"[MASSEY'S COUNSEL]: But I want you to understand something[:] the law requires that you award medical expenses and there's a reason for that. There's a reason for that. You heard evidence of these medical bills and medical expenses and you heard -- well, you heard this lawyer get up and talk about her insurance. Here is what you didn't hear. You didn't hear a witness f
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