 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Thompson v. Mehlhaff6/8/2005
for filing pre-trial motions. Everything Mehlhaff did in respect to Alcorn's testimony was dilatory. No other efforts appeared to faze Mehlhaff. The trial court did not err in determining exclusion was the only way to remedy the prejudice.
[ .] Fourth, Alcorn's testimony was not important enough to allow despite the violation of the disclosure deadline. Mehlhaff must show that Alcorn's testimony would have made a difference in the jury's finding. Schrader, 522 NW2d at 209-10. Thompson points out that the jury did find in Mehlhaff's favor so Alcorn's testimony would not have made a difference. While Thompson is correct, the argument begs the question because the trial court set aside the jury's verdict. The real question is whether the proffered evidence would have made a difference to the trial court which set aside the jury's finding of contributory negligence.
[ .] Alcorn's report was not based on personal knowledge. Alcorn's facts were taken solely from the State of South Dakota Investigator's Motor Vehicle Accident Report, the South Dakota Highway Patrol Case Report and the Lewis L. Dirk Accident Reconstruction Report-Witness Information. Each of these reports concluded that Thompson and Baltzer were in their proper lanes of travel (i.e., the "wrong" side of the road) prior to the collision and that Baltzer crossed over into Thompson's lane where the collision occurred. Inexplicably, Alcorn then concluded that Baltzer and Thompson were both traveling in the same lane and that Thompson was in the incorrect lane and that Thompson caused the accident by being in the incorrect lane. Where does this come from? There was no basis for this conclusion anywhere in the reports that Alcorn considered. Alcorn simply manufactured the conclusion out of whole cloth. Saying it is so does not make it so. Alcorn reached his conclusion based on a misinterpretation or misstatement of the evidence he considered. Therefore, it would have been misleading and should not have been admitted. If it had been admitted, cross-examination by Thompson would undoubtedly have exposed Alcorn's error. Therefore, there was no harm to Mehlhaff. There was no abuse of discretion when the trial court refused the offer of proof and no abuse of discretion in the trial court's refusal to extend the deadline to allow disclosure of Alcorn as a witness or to continue the trial.
ISSUE THREE
[ .] Whether the trial court erred in excluding evidence of Spencer Quarries negligence.
STANDARD OF REVIEW
[ .] Evidentiary rulings are reviewed under the abuse of discretion standard. Zepp v. Hofman, 444 NW2d 28, 31 (SD 1989). Rulings are presumed to be correct unless there is a clear abuse of discretion. Id.
DISCUSSION
[ .] Thompson filed a motion in limine to prevent Mehlhaff from introducing evidence that Spencer Quarries was also negligent. Mehlhaff resisted, claiming that if the jury returned a verdict for Thompson, the jury should be allowed to apportion liability between Spencer Quarries and Mehlhaff if it found them both to be negligent. Under the exclusive remedy provision of the worker 's compensation law found in SDCL 62-3-2, Spencer Quarries could not be held liable for Thompson's injury. However, Mehlhaff argued that the jury could still apportion liability between Spencer Quarries and Mehlhaff. Any apportioned liability against Spencer Quarries would reduce Mehlhaff's proportionate share of any award.
[ .] The trial court ruled that the jury would not be allowed to consider any claimed negligence by Spencer Quarries for apportionment. However, the trial court did allow Mehlhaff to introduce Spencer Quarries' "rules of the road" for the Gree
Page 1 2 3 4 5 6 7 8 9 10 11 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|