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Rose Care6/1/2005
remiums would increase if they rendered a verdict for the plaintiff.
The second evidentiary point of error concerns Rose Care's motion in limine that sought, in part, to exclude testimony by appellee's experts regarding issues not disclosed during the experts' depositions. The court ruled, "let's try to avoid that happening." During Nurse Brown's testimony, she testified about what appropriate staffing levels would be required under federal regulations. Rose Care objected that Brown was offering an opinion that she had not offered during her deposition, but the trial judge allowed the testimony. During Dr. Joseph's testimony, he stated, over Rose Care's same objection, that malnutrition and dehydration could debilitate a person and that poor catheter care could lead to UTIs. Rose Care argues on appeal that the evidence should not have been admitted because the expert's opinions were not provided in discovery and that, under Ark. R. Civ. P. 26(e)(1)(B) (2004), a party is under a duty to supplement its discovery responses with the substance and subject matter upon which the party expects its experts to testify.
A trial court's decision to admit evidence is within its discretion and will not be reversed absent an abuse of discretion. See Aka v. Jefferson Hosp. Ass'n, 344 Ark. 627, 42 S.W.3d 508 (2001). Further, when a party complains about failure to update discovery, the matter lies within the discretion of the trial court. Hill v. Billups, supra.
Rose Care relies on Arkansas State Highway Commission v. Frisby, 329 Ark. 506, 951 S.W.2d 305 (1997), an eminent-domain case. There, our supreme court reversed on the basis of a discovery violation when the landowners' expert testified in his deposition that the pre-taking value of the land was either $113,000 or $117,000 but testified at trial, based on new facts and figures not previously provided, that its value was $158,000. In the case at bar, unlike Frisby, we are unable to tell exactly what opinions these experts offered in their depositions because those depositions are not contained in the record. Thus, we have no way of confirming that their trial testimony in fact exceeded the scope of the opinions that they offered in their depositions. It is an appellant's burden to bring up a record sufficient to demonstrate error, and matters outside the record will not be considered in making a ruling on appeal. See Estates of Seay v. Quinn, 352 Ark. 113, 98 S.W.3d 821 (2003). Because Rose Care has not met that burden, we affirm on this point.
The final evidentiary error asserted by Rose Care concerns the admission of a 1999 Office of Long Term Care (OLTC) survey into evidence. The survey cited Rose Care for a violation where a resident who was at risk for pressure sores was observed in the same position on September 29, 1999, from 9:20 a.m. until 12:16 p.m. Rose Care argues that the survey was irrelevant and unfairly prejudicial because it was conducted before Mrs. Givens became a resident and it involved issues relating to residents other than Mrs. Givens. Our standard of review remains the abuse-of-discretion standard. Aka v. Jefferson Hosp. Ass'n, supra.
In Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003), cert. denied, 540 U.S. 1004 (2003), a case similar to the case at bar, 1997 and 1998 OLTC surveys containing information about the care of residents other than Mrs. Sauer were admitted into evidence (although Mrs. Sauer was a resident of the facility during those periods). The supreme court held that the surveys were relevant because they reflected problems with staffing and lack of quality care that, according to the court, tended to show that the Sauer estate's allegations that those problems existe
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