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Ross v. Olson4/20/2005
rm "iatrogenic," it is Dr. Shedd's common understanding of the term "iatrogenic," rather than Dr. Bloss's common understanding of the term, that is relevant. The Rosses have demonstrated no abuse of discretion by the trial court in its evidentiary ruling.
III. Exclusion of Exhibit
At trial, the Rosses tendered proposed Exhibit 13, an advertising brochure created by Innomed, a surgical instrument manufacturer. In part, the brochure provides that an "S" knee retractor "helps protect the collateral ligaments and popliteal structures while providing excellent visualization within the knee joint." (App. 149.) A redacted version of Exhibit 13 was admitted into evidence as Exhibit 19. The jury was permitted to view the pictorial portions of the brochure, but the text was excluded as hearsay. The Rosses contend that the brochure text was admissible pursuant to Indiana Evidence Rule 801(d)(2)(B), and that its exclusion was an abuse of discretion.
Generally, hearsay is not admissible. Ind. Evid. Rule 802. However, Ind. Evid. Rule 801(d)(2)(B) provides that a statement is not hearsay if the statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth. Dr. Olson acknowledged that retractors sometimes protect vascular structures and increase visualization. However, he testified that he had not used, and was not familiar with, the "S" and "Z" retractors depicted in proposed Exhibit 13. Inasmuch as Dr. Olson disavowed personal knowledge of the particular retractors depicted, his testimony could not support a conclusion by the trial court that Dr. Olson adopted the advertising claim at issue, and that the language of proposed Exhibit 13 was thus a statement by a party-opponent. Again, the Rosses have demonstrated no abuse of discretion in an evidentiary ruling by the trial court.
Conclusion
The doctrine of res ipsa loquitur is inapplicable; thus, the trial court properly refused the Rosses' res ipsa loquitur instruction. Moreover, the trial court's evidentiary rulings were within its discretion.
Affirmed.
SULLIVAN, J., and MATHIAS, J., concur.
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