X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In this trip-and-fall case, Maerene Crosby sued Minyard Food Stores Inc. for injuries she allegedly sustained after tripping on a mat at the entrance of a grocery store. Although she prevailed at trial, Crosby appeals the jury’s verdict finding her 50 percent negligent and awarding her $488.75 for past medical care. Crosby contends the trial court erred by admitting into evidence the affidavit of Minyard’s expert doctor because the contents of the affidavit were hearsay. Crosby further contends the trial court’s admission of the affidavit probably caused the rendition of an improper judgment. HOLDING:Affirmed. All the evidence in this case showed that the mat at the entrance of the store had a tendency to buckle and required frequent straightening. The evidence also showed that Minyard was aware that the recurrent bumps in the mat were causing customers to fall. This evidence was sufficient to allow the issue of Minyard’s negligence to be presented to the jury. The trial court did not err in denying Minyard’s motion for directed verdict. Dr. Jack Kern’s affidavit sets forth his opinions about Crosby’s medical condition and her treatment by Dr. Mark Rayshell, a chiropractor. During Crosby’s direct examination of Rayshell at trial, Rayshell was asked if he had read Kern’s affidavit. Rayshell said he had. Rayshell was then asked to go over the affidavit. After the close of Crosby’s direct examination of Rayshell, Minyard moved to admit Kern’s affidavit into evidence. Crosby objected on the ground that the affidavit was hearsay. The trial court overruled the objection and admitted the affidavit. The court concludes Minyard clearly failed to meet the second requirement of Texas Rule of Evidence 107. Minyard has not shown why it was necessary to admit the affidavit to explain or understand the portions referred to by Rayshell. Although Rayshell discussed many of the opinions set forth in the affidavit and his reasons for disagreeing with them, Minyard made no attempt to show how Rayshell’s testimony could have confused or misled the jury regarding the contents of Kern’s affidavit or its meaning. Furthermore, Minyard did not contend that Rayshell misrepresented the statements in the affidavit in any way. Because Minyard failed to meet the second requirement for the application of Rule 107, the trial court erred in admitting the document. Crosby contends the affidavit’s admission was harmful because it was the only evidence refuting the reasonableness and necessity of her medical care and it was allowed to go unchallenged. Kern’s opinions were directly challenged by Rayshell, however, when he stated that his treatment of Crosby was appropriate and Kern’s diagnosis of Crosby was not consistent with her test results. Indeed, the jury could not have relied on Kern’s assessment of Crosby’s medical condition when it rendered its verdict because it awarded her even less money for past medical care than what Kern stated was reasonable and necessary. Crosby also complains she had no opportunity to cross-examine Kern about his credibility, bias, motive, education, training and experience. All of these topics, however, were discussed by Rayshell either directly or by implication. Moreover, because Kern was never called as a witness, he had no opportunity to dispute Rayshell’s statements that, as an expert hired for trial, Kern was careless and merely stated the opinions he was hired to say. Before Kern’s affidavit was admitted into evidence, Crosby elicited testimony from her own medical care provider, Rayshell, about a substantial amount of the affidavit’s content. During Rayshell’s cross-examination after the trial court erroneously admitted the affidavit, Rayshell testified without objection about the degenerative problems in Crosby’s spine noted by Kern in the affidavit. In examining the record as a whole, the court conclude the trial court’s error in admitting Kern’s affidavit did not contribute to or cause the rendition of an improper judgment. OPINION:Morris, J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.