Jones v. Colley

820 S.W.2d 863, 1991 WL 225303
Court of Appeals of Texas·Decided January 7, 1992·No. 6-90-081-CV·Published·Cited by 38 cases

Opinions

OPINION

CORNELIUS, Chief Justice.

Jeannie Marie Jones sued Dr. Johnny M. Colley and Anesthesia & Intensive Care of Texarkana, alleging that they were negligent in administering anesthesia to her during a cesarean section delivery of her second child. The jury found no negligence, and the trial court rendered judgment that Jones take nothing. On appeal, Jones’ only complaint is that the trial court erred in excluding from evidence the videotaped deposition of her medical expert, Dr. Keszler. We will affirm the judgment.

Although no record of the session was made, there are in the record statements by the trial judge and counsel for both sides showing that, at an in-chambers session before the trial began, Jones’ counsel asked the judge for permission to introduce at trial an edited version of Dr. Keszler’s videotaped deposition. The judge sustained opposing counsel’s objection and refused to allow the videotape because it had been edited by Jones’ counsel to present the doctor’s testimony out of the chronological sequence in which it was given. In the face of this ruling, Jones opened her case by reading the written transcript of the entire deposition in the chronological order in which it was given.

At the close of Jones’ case, and outside the presence of the jury, her counsel again offered to play the edited videotape of Dr. Keszler’s deposition. The court again refused to allow it, sustaining opposing counsel’s objection that the edited version would be misleading, confusing, and unfair to the parties and the jury. The court did, however, allow the introduction of the edited tape on a bill of exceptions for purposes of this appeal.

Jones then requested that she be allowed to play the entire videotaped deposition. Opposing counsel objected because they had not been furnished a copy of the videotape after it had been edited to remove the objections made at the time it was taken.

[865] The trial court sustained the objection, stating:

The Court has ruled that the video as presented, as — or part — to stop a video deposition to take this matter out would have caused undue delay. I don’t know what would have come out of this thing. That’s the reason these things are supposed to be taken care of beforehand. But in order to allow the evidence to come in, the Court, I think within its discretion under these circumstances, has the authority to order and did so order that the written deposition be read, and the Court is of the opinion that the plaintiff was not prejudiced by that....

Jones complains on appeal that the trial court erred in overruling her motion for new trial based on the alleged error in refusing to admit the doctor’s videotaped deposition in either its edited or unedited form.

A motion for new trial is addressed to the trial court’s sound discretion, and the court’s ruling will not be disturbed absent a clear abuse of that discretion. Napier v. Napier, 555 S.W.2d 186, 188-89 (Tex.Civ.App.-El Paso 1977, no writ). The test is whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules and principles. Simon v. York Crane & Rigging Co., 739 S.W.2d 793 (Tex.1987); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). The complaining party has the burden to bring forth a record showing an abuse of discretion. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968); Tex.R.App.P. 50(d). Absent such a record, the reviewing court must presume that the evidence before the trial judge was adequate to support his decision. Simon v. York Crane & Rigging Co., supra.

To obtain a new trial because of the exclusion of evidence, the complaining party must show that the court’s ruling was error and that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 81(b); see McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex.1989); Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). Moreover, the exclusion of evidence is harmless if it is merely cumulative of other evidence that was admitted on the same issue. Gee v. Liberty Mutual Fire Ins. Co., supra; Reina v. General Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex.1981).

Tex.R.Civ. P. 200(1) provides that “[a]fter commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination.” Tex.R.Civ. P. 2021 expressly authorizes the recording of a deposition by non-stenographic means, including videotape recordings. Burr v. Shannon, 593 S.W.2d 677 (Tex.1980); Garza v. Serrato, 699 S.W.2d 275, 279 (Tex.App.-San Antonio 1985, writ ref’d n.r.e.). Furthermore, Tex.R.Civ. P. 207(l)(a) provides,

At a trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition taken in the same proceeding, insofar as admissible under the Texas Rules of Civil Evidence, may be used by any person for any purpose against any party who was present or represented at the taking of the deposi[866] tion or who had reasonable notice thereof.

(Emphasis added.)

Jones had Dr. Keszler’s deposition edited so that it presented his testimony in an order most favorable to her case. She contends that the court should not have excluded the videotaped deposition simply because she elected, as a matter of trial strategy, to put questions and answers in a particular order. She asserts that the defendants could have presented their own version of the video showing their pertinent cross-examination in its best light, but chose not to do so.

Defendants argue that the court did not err in disallowing the videotape because, in effect, he was simply applying the rule of optional completeness.2

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Jones v. Colley, 820 S.W.2d 863, 1991 WL 225303 (Tex. Ct. App. 1992).

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