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Click here for the full text of this decision FACTS:In 1999, Deborah Sue McShane gave birth to Maggie Yvonne McShane. Maggie allegedly sustained injuries during the delivery that left her with brain damage and other physical complications. Deborah and James McShane sued Bay Area and two doctors but nonsuited the doctors before trial. The McShanes filed a motion in limine to prevent Bay Area from introducing into evidence the superseded pleadings that listed the doctors as defendants. The trial court denied that motion. At trial, neither party attempted to introduce the superseded pleadings into evidence, but attorneys for both sides discussed the doctors’ status during voir dire, and witnesses testified over objection that the McShanes had previously sued the doctors. After a three-week trial, the jury returned a 10-2 verdict in Bay Area’s favor, and the trial court signed a take-nothing judgment. A divided 13th Court of Appeals reversed and remanded, concluding that the trial court abused its discretion by admitting evidence that the McShanes had initially sued the two physicians. Bay Area presented several issues on appeal: 1. whether the 13th Court misapplied the Texas Rules of Evidence regarding the admissibility of information in superseded pleadings; 2. whether the 13th Court incorrectly concluded that the error was harmful; and 3. whether the court of appeals misapplied Texas Rule of Appellate Procedure 44.1. HOLDING:Reversed and rendered. Statements from pleadings, the court stated, can potentially be excluded as irrelevant or unfairly prejudicial. The McShanes cannot make this complaint on appeal, the court stated, because their attorney was the first to allude to the doctors’ party status by telling the jury panel that a doctor’s conduct “could have been brought before this Court in this trial” but “both sides have not done that at this trial.” Moreover, testimony is not inadmissible on the sole ground that it is prejudicial, because in our adversarial system, much of a proponent’s evidence is legitimately intended to wound the opponent. The court concluded that the danger of unfair prejudice did not substantially outweigh the probative value of the superseded pleadings. The Texas Rules of Evidence govern admissibility of evidence in court proceedings, the court stated. Bay Area introduced statements from superseded pleadings indicating that Bay Area sued the doctors. Under Rule 801(d), out-of-court statements are excluded as hearsay. But because the McShanes made the statements in the superseded pleadings, Rule 801(e)(2) deems the pleadings to be admissions by a party-opponent and not hearsay. Thus, the court held that the 13th Court erred in concluding that statements from the pleadings would only be admissible if they contained “some statement relevant to a material issue in the case” that is “inconsistent with the position taken by the party against whom it is introduced.” The court held that there is no requirement that the statement be inconsistent with the party’s position at trial. In addition, the McShanes argued by crosspoint that Bay Area improperly cross-examined their expert witness, regarding his prior treatment of a patient. The 13th Court of appeals held that the McShanes did not preserve the issue for appellate review by properly objecting and obtaining a ruling, and the court agreed. OPINION:Per curiam.

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