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08/05/93 MARY COOPER v. SAFEWAY STORES

DISTRICT OF COLUMBIA COURT OF APPEALS


August 5, 1993

MARY COOPER, APPELLANT
v.
SAFEWAY STORES, INC., APPELLEE

Appeal from the Superior Court of the District of Columbia; (Hon. Ricardo M. Urbina, Trial Judge)

Before Rogers, Chief Judge, and Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge : Appellant Mary Cooper challenges two evidentiary rulings made by the trial court during the trial of her slip and fall claim for personal injury damages *fn1 against appellee, Safeway Stores. Specifically, appellant claims that the trial court committed reversible error by refusing to allow a medical expert, who was not listed in the parties' joint pretrial statement, to testify as a "rebuttal" witness, and by admitting as impeachment evidence, on the third day of trial, a videotape showing appellant engaging in various activities in her backyard, although this evidence also was not listed in the pretrial statement. We affirm the judgment, after a jury trial, in favor of appellee. *fn2

I.

A. The Exclusion of Expert Testimony

Appellant filed suit against appellee claiming that, on March 13, 1988, she slipped and fell in the produce section of one of appellee's stores, causing injury to her back and left knee. The parties filed a Joint Pretrial Statement *fn3 in January, 1991. In this statement, appellant identified as an expert witness only her treating physician, Dr. Luis Bentolila. *fn4 Dr. Bentolila referred appellant to an orthopedic surgeon, Dr. Walter Abendschein, in March, 1991. On July 28, 1991, appellee filed a motion in limine asking the court to limit Dr. Bentolila's testimony by prohibiting him from testifying as to the observations, opinions, Conclusions or diagnoses of Dr. Abendschein. On August 22, 1991, the day of trial, the trial court informed counsel that it was granting this motion in part by prohibiting Dr. Bentolila from testifying to the opinions and diagnoses of Dr. Abendschein with the exception that Dr. Bentolila could testify as to Dr. Abendschein's diagnosis of chondrocalcinosis. *fn5

At trial, Dr. Bentolila testified on direct examination that, as a result of her fall at the Safeway store, appellant suffered from radiculitis *fn6 and that she had sustained some damage to ligaments in her left knee causing pain and instability. He testified that both of these conditions were permanent. Dr. Bentolila also testified to a limited degree concerning appellant's treatment by Dr. Abendschein, *fn7 and concerning the diagnosis of another doctor finding that appellant suffered from radiculitis.

Appellee presented the expert testimony of Dr. David Linehan, an orthopedic surgeon. Dr. Linehan examined appellant in November, 1989. He testified that appellant had chondrocalcinosis in the knee, a degenerative condition that was not accident induced. He also described tests that he performed to evaluate appellant's back and spine and to test for radiculitis. Dr. Linehan stated that during a straight leg lifting test, appellant claimed to have pain when lifting her leg to a thirty degree angle while lying down, but when he performed the same test from a sitting position, he could flex her leg to ninety degrees. From this test, Dr. Linehan concluded that appellant was "dissembling" or "not being straight up with ." When appellee's attorney asked if he thought appellant was "lying," Dr. Linehan responded "yes." *fn8 He concluded that any problems appellant had with her back and knee were not related to a fall in the Safeway store.

On cross-examination, appellant's attorney asked Dr. Linehan questions concerning Dr. Abendschein. He elicited testimony that Dr. Linehan and Dr. Abendschein's training and board certification were the same; that Dr. Abendschein's "physical findings" were "about the same" as his, and that Dr. Abendschein's diagnosis *fn9 was the same as his. Appellant's attorney also elicited testimony that Dr. Abendschein found tenderness around the knee. Dr. Linehan stated that he found tenderness as well, noting that this finding was based on appellant's subjective statements.

On the third day of trial, appellant asked that Dr. Abendschein be allowed to testify "as rebuttal witness[] *fn10 or whatever," even though he was not listed in the pretrial statement, because he would be "rebutting" Dr. Linehan by testifying about his opinions which were "diametrically contradiction to. . . Dr. Linehan's testimony." *fn11 He proffered that Dr. Abendschein would testify that he was treating appellant for a "real injury" and emphasized that Dr. Linehan had testified that appellant did not have an injury and that Dr. Abendschein agreed with him. Appellee opposed appellant's request. *fn12 The trial court ruled that Dr. Abendschein's testimony did not qualify as rebuttal because Dr. Linehan's opinion was "clearly predictable" based on the discovery that was done pretrial. It concluded that the testimony did not fit into any exception to the pretrial statement disclosure rule and accordingly denied appellant's request.

B. The Admission of Videotape Evidence

Appellant, Mary Cooper, testified on direct-examination as to the limitations that her physical injuries placed on her daily activities. She stated that she could not stand for very long, and that when she came down steps, she "mostly" did so "like a two year old child," one foot at a time. Sometimes she slid down the stairs and pushed herself up them backwards. She also stated that since the accident she needed help with the household duties and shopping. On cross-examination, appellant reiterated that she had difficulty doing housework and going up and down stairs. She elaborated on the ways in which she went up and down stairs, and claimed that when using the stairs, she used a banister. She stated that she had these problems with stairs since the accident and indicated that they continued to the present. She stated that she sometimes used a cane to walk around the house and when she got out of the car, and that she would not drive at times because she would become nervous. *fn13

In the defense case, on the third day of trial, appellee proffered as impeachment evidence, a videotape of appellant that had been taken a few weeks before trial. Appellee stated that the tape would show appellant going up and down stairs, *fn14 going away from the house unassisted, and performing minor tasks without assistance. Appellee asserted that the videotape was being offered for impeachment of appellant's and her daughter's testimony, and to show that they misrepresented facts that related to the extent of damages. Appellant's attorney opposed the admission of the evidence, arguing that it was surprise evidence and that appellant was not contending that she was bedridden, only that she had diminished capabilities. The trial court concluded that the evidence was proper "for presentation on the issues of damages and general credibility -- impeachment." *fn15

II.

We first address the exclusion, as rebuttal evidence, of the testimony of Dr. Abendschein. A trial court has broad discretion in the admission or exclusion of expert testimony generally, see, e.g., Payne v. Soft Sheen Products, Inc., 486 A.2d 712, 726 (D.C. 1985); in interpreting pretrial orders, see Keyes v. Lauga, 635 F.2d 330, 335 (5th Cir. 1981); in refusing to admit evidence which was required to be disclosed in a pretrial statement, see Hillman v. Funderburk, 504 A.2d 596, 601 (D.C. 1986) (expert not listed in pretrial statement); District of Columbia v. Sterling, 578 A.2d 1163, 1167 (D.C. 1990) (defense not listed in pretrial statement), and in deciding what constitutes proper rebuttal evidence, see Lacy v. District of Columbia, 424 A.2d 317, 324 (D.C. 1980); Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 174 n.6 (8th Cir. 1977).

A trial court may properly "exclude as rebuttal testimony that which should have been introduced by the plaintiff in his [or her] case in chief," Brennan v. Jones, 176 A.2d 877, 878 (D.C. 1962), and generally should exclude such evidence unless sufficient reason is offered for not introducing it at the proper time. Lacy, supra, 424 A.2d at 324. Moreover, if testimony would be cumulative of the case in chief, the trial court may disallow it as surplusage. Brennan, supra, 176 A.2d at 878. A plaintiff may not reopen his or her main case under the guise of rebuttal. Id.

In Hillman, supra, this court faced a situation very similar to the case here. There, the appellant/plaintiff in a medical malpractice suit arising out of a breast reduction operation claimed that the trial court had erroneously precluded an expert from testifying as a rebuttal witness. Hillman, supra, 504 A.2d at 597. The plaintiff proffered that the expert would refute certain contentions by the defendants' experts. *fn16 The court noted that although the expert had at one point been listed on the plaintiff's pretrial statement, his name had later been deleted, and that he had never been the subject of discovery along with the other experts in the case. Id. at 601. In upholding the trial court's exclusion of the witness, the court found it important that the testimony would not be "'in the nature of true rebuttal,'" citing Brennan, supra.

In light of these legal principles, we conclude that the trial court here did not abuse its discretion in precluding Dr. Abendschein from testifying as a rebuttal witness. Appellant wanted Dr. Abendschein to counter the testimony of Dr. Linehan that appellant was "dissembling" and to show that she had suffered a "real injury." *fn17 However, appellant's testifying expert, in her case in chief, affirmed the legitimacy of appellant's injury and its relation to appellant's fall in the Safeway store. The trial court could properly limit evidence bolstering this contention, ruling that it should have been brought in appellant's case in chief. The record belies appellant's claim that Dr. Linehan's testimony was a surprise to her, *fn18 and there was no other persuasive reason requiring the trial court to allow as rebuttal evidence a response to testimony which the court found to be "clearly predictable." *fn19 As in Hillman, supra, permitting the testimony of Dr. Abendschein would, in effect, have allowed appellant to present another expert witness without giving appellee the benefit of deposing the expert or of otherwise preparing for his appearance.

III.

We next address the admission of the videotape evidence. "The basic aim of all credibility rules . . . to admit evidence which better enables the trier of fact on the basis of his experience to determine whether it is reasonable to conclude that the witness is lying or telling the truth." 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN, EVIDENCE, P 607[02] (1992). "Impeachment by contradiction or specific error is a technique well-recognized in the federal courts by which specific errors in the witness' testimony are brought to the attention of the trier of fact." Id. at P 607[05] (citing cases). Here, appellant had testified that she was compelled to use various laborious methods to go up and down stairs, and that she needed assistance while shopping and performing household duties. Appellee proffered to the trial court that it would show appellant going up and down stairs "outside her home and elsewhere," moving away from the house unassisted, and performing household duties without assistance. *fn20

As noted previously, the trial court has discretion in interpreting its pretrial orders, see Keyes, supra, 635 F.2d at 335, and in the admission of evidence generally, Morrison v. United States, 547 A.2d 996, 998 (D.C. 1988). The trial court's rule requiring disclosure of exhibits in the pretrial statement specifically exempted exhibits for impeachment. Here appellee proffered the evidence "in direct impeachment of [appellant's and her daughter's] testimony." The trial court agreed with this characterization of the evidence and ruled that the video was proper for "general credibility -- impeachment." *fn21 Given the posture of the testimony in the case, we can find no abuse of discretion by the trial court in interpreting and applying its pretrial order by admitting the videotape. Cf. Patterson v. United States, 580 A.2d 1319, 1322-24 (D.C. 1990).

Affirmed.


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