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Harbolt v. Attum4/29/2005
eon. Although Dr. Ganzel does not perform MIDCAB procedures, he was undoubtedly qualified to express opinions in this matter. However, as Dr. Attum correctly observed, it is impossible to discern from the record before us whether Dr. Ganzel was truly willing to testify as an expert in this matter. In his answers to interrogatories and in his expert disclosure, Harbolt was careful to state that he had not formally retained Dr. Ganzel as an expert witness. Even if Dr. Ganzel could offer comments critical of Dr. Attum, and even if he had been willing to share his medical reservations with the jury, Harbolt cannot excuse his own failure to disclose the substance of those opinions as contemplated by CR 26.02.
In order to preserve properly the trial court's exclusion of evidence for our review, Harbolt was required to offer the testimony by avowal. The Supreme Court has recently re-emphasized this duty of preservation in Hart v. Commonwealth, 116 S.W.3d 481, 483 (Ky. 2003) as follows:
A reviewing court requires more than the general substance of excluded evidence in order to determine whether a defendant has suffered prejudice. In Partin v. Commonwealth, Ky., 918 S.W.2d 219 (1996), we held that a description of proposed testimony by defense counsel was insufficient to preserve an alleged error in exclusion of evidence for review. "Counsel's version is not enough. A reviewing court must have the words of the witness." Id. at 223. More recently, in Commonwealth v. Ferrell, Ky., 17 S.W.3d 520 (2000), we reaffirmed our holding in Partin, stating: "a party must offer an avowal by the witness in order to preserve for appellate review an issue concerning the exclusion of evidence." Id. at 525.
As noted earlier, Harbolt failed to elicit the opinions of Dr. Ganzel that were allegedly critical of Dr. Attum when Dr. Ganzel's deposition was taken just days before the trial. Accordingly, we shall not disturb the decision of the trial court.
The judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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