Summary
noting trial court's discretion under Rule 403 to exclude original answer in deposition
Summary of this case from Tex. Tech Univ. Health Scis. Center-El Paso v. Dr. NiehayOpinion
No. 04-03-00342-CV
Delivered and Filed: June 30, 2004.
Appeal from the 198th Judicial District Court, Kerr County, Texas, Trial Court No. 01-798-B, Honorable Emil Karl Prohl, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Plaintiff Robert Ramsey appeals a judgment entered in favor of Russell S. Cravey, M.D. We affirm the judgment of the trial court.
Factual and Procedural Background
On November 7, 2000, Cravey performed routine cataract surgery on Ramsey's right eye. The following morning, November 8, 2000, Ramsey went to see Cravey for a follow-up visit. That afternoon, Ramsey began having problems with his vision.
The parties dispute what happened next. According to Cravey, Ramsey telephoned him the afternoon of November 8 and reported that he was experiencing obstructions in his vision. Ramsey did not, however, according to Cravey, report any symptoms of infection. According to Ramsey, his daughter telephoned Cravey twice on the afternoon of November 8. She told Cravey that Ramsey was suffering significant loss of vision and a blood clot in his eye. Additionally, she urgently requested that Cravey see Ramsey that afternoon. Despite her request, however, Cravey told her, "It's too late in the day. I can't do a thing in the world today. It's entirely too late. . . . Bring him in in the morning at eight o'clock, and I'll see him before I see any of my other patients."
It is undisputed that Ramsey did go to see Cravey early the next day, November 9. At that point, Cravey realized that Ramsey had developed a rare and serious eye infection. The infection became so serious that Ramsey's eye eventually had to be removed.
Ramsey sued Cravey for negligence, alleging that Cravey committed medical malpractice when he refused to see Ramsey the afternoon of November 8. The jury found that Cravey was not negligent, and the trial court entered judgment in accordance with the verdict.
Ramsey appeals the judgment of the trial court in three issues. We affirm the judgment of the trial court.
Deposition Testimony
Dr. Harry Flynn, Cravey's expert, originally testified at deposition as follows:
Q: Was Dr. Cravey negligent in telling Mr. Ramsey to come in the next day, and if it got worse that he would be happy to see him later on?
A: Yes.
According to counsels' statements at pre-trial evidentiary hearings, Flynn later corrected this testimony under oath. He said he misunderstood the question, and that the correct answer is "no." At a pre-trial hearing, Cravey argued that Flynn's original testimony be excluded at trial. Such testimony, argued Cravey, is more prejudicial than probative under Texas Rule of Evidence 403. See Tex. R. Evid. 403 (providing for the exclusion of evidence where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . ."). The trial court granted the motion.
The parties initially raised the issues regarding Flynn's original deposition testimony (Ramsey's first issue on appeal) and Lynda Webb's testimony (Ramsey's third issue on appeal) in pre-trial motions in limine. The parties eventually treated these issues, however, as pre-trial admissibility issues, and the trial court ruled on them as such. Accordingly, Ramsey's first and third issues are preserved for appeal. See Huckaby v. A.G. Perry Son, Inc., 20 S.W.3d 194, 203-06 (Tex. App.-Texarkana 2000, pet. denied) (holding that although rulings on motions in limine do not preserve error, pre-trial rulings on admissibility of evidence do).
In his first issue on appeal, Ramsey argues that the trial court erred in excluding this testimony. We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). Texas Rule of Civil Procedure 203.1(b) provides that a witness may change his responses as reflected in the original deposition transcript by making changes on a separate sheet of paper and indicating his reasons for making the changes. Tex. R. Civ. P. 203.1(b). No erasures or obliterations of any kind, however, may be made to the original deposition transcript. Id.
Citing Texaco, Inc. v. Pursley, 527 S.W.2d 236 (Tex. Civ. App. — Eastland 1975, writ ref'd n.r.e.), Ramsey interprets the "no erasures" provision of Rule 203.1(b) to mean that a witness's original deposition testimony is always admissible. We disagree. In Pursley, the trial court admitted both original and changed deposition testimony. Id. at 242. The issue on appeal, however, was not whether such admission was proper. Id. at 241-42. Rather, the issue was whether the trial court erred in allowing a witness to change his deposition testimony in the first place. Id. Neither Rule 203.1(b) nor Pursley provides that a trial court cannot, in its discretion, exclude a witness's original deposition testimony under Rule 403. Accordingly, we reject this argument on appeal.
Here, the record reflects that the trial court considered Flynn's original deposition as a whole and noted that his response in this one instance is totally inconsistent with the rest of his testimony. Thus, it was apparent to the trial court that Flynn had, in fact, misunderstood the question and, pursuant to the Rules of Civil Procedure, corrected his misstatement. Under these circumstances, we cannot say the trial court abused its discretion in excluding this testimony. We overrule this issue on appeal.
Motives for Filing Suit
During trial, defense counsel elicited testimony from Ramsey's daughter that she encouraged her father to file suit. The daughter further testified that she is Ramsey's sole heir and would benefit from any award of damages he might receive. To rebut any negative inferences the jury may have drawn from this testimony, Ramsey sought to elicit testimony that the reason his daughter encouraged him to file suit is because she and Ramsey learned that another of Cravey's patients, Lahoma Jones, lost her eye from an infection following cataract surgery. Ramsey tried to elicit this testimony during his questioning of Cravey:
Q: And do you know Mr. Ramsey went to a funeral up in Utopia, Texas, in February — roughly February of 2001, and he ran into another one of your patients, Lahoma Jones.
The trial court stopped this line of questioning, stating:
I'm not going to let you — I'm not going to let you go there at this point. When we get — before [Ramsey's daughter testifies], we're going to talk about this — because I think there's a way — I think there's a way to ask questions that would not bring in other patients, and it will get you to explain her basis. So I'm going to — I'm not going to let you go there right now.
The trial court then instructed the jury to disregard any testimony regarding Lahoma Jones.
On appeal, Ramsey argues that the trial court erred in excluding testimony regarding Ramsey's motives for filing suit. Here, however, the trial court did not exclude such testimony. Rather, the trial court disallowed the questioning "at this point" and invited Ramsey to bring up the issue again later. To preserve error regarding the exclusion of evidence, a party must attempt during the evidentiary portion of the trial to introduce the evidence and obtain a ruling from the trial court. Bean v. Baxter Healthcare Corp., 965 S.W.2d 656, 660 (Tex. App.-Houston [14th Dist.] 1998, no pet.). Here, Ramsey did not attempt to introduce this evidence again, either from his daughter or any other witness. Thus, there is no ruling excluding this evidence for us to review. Accordingly, we hold that Ramsey failed to preserve error. Tex.R.App.P. 33.1; see also Tex. R. Evid. 103(a)(2). We overrule this issue on appeal.
Testimony of Lynda Webb
At trial, Lynda Webb, Cravey's nurse, testified by deposition that she was present on November 9 when Ramsey came to see Cravey. According to Webb, she heard a conversation between Ramsey and Cravey about the communication that took place between them the day before. Although she couldn't remember "who said what to whom," she heard someone say that Ramsey "was seeing a spot which sounded like a floater. He wasn't having any pain or redness, no swelling."
In his third issue, Ramsey argues that such testimony constitutes inadmissible hearsay. Again, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
Under Texas Rule of Evidence 801(e)(2), an admission by a party-opponent is not hearsay. Tex. R. Evid. 801(e)(2). Admissions by a party-opponent include both a "party's own statement" as well as statements "of which the party has manifested an adoption or belief in its truth." See id. at §§ 801(e)(2)(A), 801(e)(2)(B).
Here, the key issue at trial was whether Cravey committed medical malpractice when he failed to see Ramsey on November 8 after Ramsey reported symptoms of an infection. Thus, regardless of whether it was Ramsey or Cravey who made the statements Webb heard, such statements are not hearsay. If it was Ramsey who stated on November 9 that he did not report pain, redness, or swelling on November 8, such statements constitute an admission by a party-opponent by a party's own statement. If, on the other hand, it was Cravey who stated on November 9 that Ramsey did not report pain, redness, or swelling on November 8 (and if, as the record reflects, Ramsey said nothing to dispute them), such statements constitute an admission by a party-opponent by an adoptive admission. Either way, we cannot say that the trial court abused its discretion in admitting this evidence. Accordingly, we overrule Ramsey's third issue.
Conclusion
Having considered and overruled Ramsey's three issues, we affirm the judgment of the trial court.