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Allstate Insurance Co. v. Hennings5/31/2005
r to admit or exclude evidence lies within the sound discretion of the trial court and is afforded great deference on appeal. Strack and Van Til, Inc. v. Carter, 803 N.E.2d 666, 670 (Ind. Ct. App. 2004). We will not reverse that decision absent a showing of manifest abuse of that discretion. Id.
According to Allstate's appellate argument, the second deposition's testimony by Dr. Klassen about the condition of Hennings' knee after the second surgery that was performed between the two days of trial would have "added new information and clarified statements he made in his first deposition" about the affects of the October 2000 accident on Hennings' knee. Allstate's Br. at 20. However, this was not the argument made to the trial court. There, Allstate argued that the second deposition should be heard because of its discussion of "total knee replacement surgery" for Hennings in the future. (Tr. 127). Hennings responded that the matter was extensively discussed in the deposition already heard by the jury and that she did not intend to argue extensively for consideration of a possible knee replacement as part of her damages. The trial court stated, "The doctor did testify about the knee replacement and that she would likely need the knee replacement had she not had this most recent accident" and denied Allstate's motion to admit the deposition. (Tr. 128).
As noted in FACTS, Allstate elicited significant discussion by Dr. Klassen about the relationship between the October 2000 accident and the likelihood of Hennings' future need for a knee replacement. Further, consistent with her statement to the trial court when discussing Allstate's motion to admit the second deposition, Hennings did not argue to the jury that it should award an amount to include a future knee replacement. Moreover, Hennings' final argument suggested possible sums to properly compensate her for the damages resulting from the accident and that could reasonably be awarded based upon the evidence before the jury. The award was within this range.
Allstate's appellate argument would require that we find the trial court abused its discretion for not considering a basis for admitting the second deposition that was not asserted by Allstate. Based upon Allstate's argument to the trial court about why it should admit Dr. Klassen's second deposition, we find no manifest abuse of discretion by the trial court in excluding it.
CONCLUSION
We affirm in part, reverse in part, and remand for entry of judgment in the amount of $100,000.
BARNES, J., concurs.
MAY, J., concurs in result.
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