Broadhead v. State Farm Mut. Auto. Ins. Co., 97-0904

• Decision Date: 26 February 1998
• Docket Number: No. 97-0904,97-0904
• Citation: 217 Wis.2d 231,579 N.W.2d 761
• Parties: Peggy Allison BROADHEAD Plaintiff-Respondent-Cross-Appellant, General Casualty, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

Page 761

579 N.W.2d 761

217 Wis.2d 231

Peggy Allison BROADHEAD Plaintiff-Respondent-Cross-Appellant, General Casualty, Plaintiff-Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant-Appellant-Cross-Respondent.

No. 97-0904.

Court of Appeals of Wisconsin.

Submitted on Briefs Jan. 22, 1998.

Opinion Released Feb. 26, 1998.

Opinion Filed Feb. 26, 1998.

[217 Wis.2d 236] On behalf of the defendant-appellant cross-respondent, the cause was submitted on the briefs of Susan G. Molini of Czajkowski & Rider, S.C. of Prairie du Chien.

On behalf of the plaintiff-respondent cross-appellant, the cause was submitted on the brief of Kevin C. O'Keefe and Timothy S. Jacobson of O'Keefe Jacobson of La Crosse.

Before EICH, C.J., and VERGERONT and DEININGER, JJ.

DEININGER, Judge.

State Farm Mutual Automobile Insurance Company appeals a judgment awarding Peggy Broadhead damages and costs for personal injuries she sustained as a result of an automobile accident with State Farm's insured. State Farm claims the trial court erred when it refused to permit a former juror in the case to testify as a witness. State Farm also cites as error the admission, as "learned treatises" under § 908.03(18), STATS., of excerpts from two medical journals. Broadhead cross-appeals the trial court's refusal to award her double costs pursuant to § 807.01(3), STATS. ¹ We conclude that the trial court did not erroneously exercise its discretion when it refused to allow the former juror to testify. We also conclude that the admission of the medical journal excerpts as "learned treatises" was error, but that the error was harmless. Finally, we conclude that the trial court's decision to deny Broadhead double costs was correct. Accordingly, we affirm the judgment.

BACKGROUND

Peggy Broadhead was injured in a 1992 automobile accident with an insured of State Farm. The parties stipulated to the negligence of State Farm's insured and to State Farm's resulting liability, but they reached no agreement regarding the nature and extent of Broadhead's injuries. The damages issue was thus tried to a jury.

During a videotaped deposition conducted prior to trial, Broadhead's counsel asked State Farm's expert medical witness, Dr. Charles Desch, whether he had read particular articles from Spine magazine and the Journal of Musculoskeletal Medicine. Dr. Desch responded that he had not. Desch also testified that Spine magazine itself was "authoritative and reliable," but that the Journal of Musculoskeletal Medicine was "not a front-line journal for orthopedic surgeons." The physician was asked no questions about, and he made no comments regarding, the authors of the specific articles. Broadhead's counsel then requested that Dr. Desch read passages from the articles into the record. Counsel for State Farm objected to a lack of proper foundation, following which Dr. Desch complied with the request. Before trial, State Farm filed a motion in limine asking the court to exclude the portion of Dr. Desch's videotaped deposition in which he read from the articles. The trial court denied the motion and the challenged portion of the videotaped deposition was presented to the jury.

When Broadhead's husband testified on the first day of trial, juror Patrick Nolan realized that his assertion during voir dire that he did not know Broadhead was incorrect, and he so informed the bailiff when testimony had concluded for the day. Nolan subsequently explained to the court that he initially had not recognized Broadhead during jury selection, but that he recalled his acquaintance with her when hearing her husband's testimony. Specifically, Nolan recalled that Broadhead and her husband had done some work on a roof at his farm in 1995. Nolan went on to explain that he observed Broadhead carry five gallon buckets of roof coating material up a ladder and then apply the material to his roof. The activities which Nolan witnessed took place some two or three years after Broadhead's car accident.

After this revelation, the trial court dismissed Nolan as a juror but denied State Farm's request to call Nolan, his wife or his father as a witness in the trial. State Farm subsequently moved for a mistrial which the court also denied. The next day, State Farm again moved for a mistrial, or in the alternative, for a new trial because of "newly discovered evidence." The trial court denied these motions. The jury returned a verdict which awarded Broadhead a total of $38,116.25 in damages for her injuries.

In post-verdict motions, State Farm requested a new trial pursuant to § 805.15, STATS. Broadhead filed a post-verdict motion arguing that because State Farm had rejected a pretrial offer to settle the case for "$42,000, with costs," the trial court should award double costs under § 807.01, STATS., and interest from the date of the pretrial offer of settlement. The trial court denied all post-verdict motions and entered judgment for $38,116.25 in damages, $3,536.00 in costs, and $488.72 in post-verdict interest, for a total of $42,140.97.

On appeal, State Farm claims the trial court erred by refusing to permit testimony by the Nolans. State Farm also complains of the admission of the journal excerpts under § 908.03(18), STATS., the "learned treatise" exception to the hearsay rule, citing Broadhead's failure to lay a proper foundation for admission of the materials. In her cross-appeal, Broadhead claims error in the trial court's denial of her request for double costs under § 807.01(3), STATS.

ANALYSIS

a. Exclusion of Testimony from the Nolans

Whether to permit the testimony of a witness is generally within the trial court's discretion. Milwaukee Rescue Mission, Inc. v. Redevelopment Auth., 161 Wis.2d 472, 490, 468 N.W.2d 663, 671 (1991). Whether to grant a mistrial is also a matter for the trial court's discretion, and we accord great deference to a trial court's decision on a motion State Farm argues that the trial court erroneously exercised its discretion when it refused to permit Nolan, or Nolan's wife or his father, to testify after the court discharged Nolan from the jury. State Farm asserts that the trial court should have undertaken a probative value versus prejudice analysis, as required under § 904.03, STATS., ² which would show that testimony from one or more of these witnesses should have been permitted. According to State Farm, the Nolans' testimony would have been relevant and highly probative of Broadhead's injuries and her credibility, and it would have produced little or no unfair prejudice, confusion or undue delay.

for mistrial. State v. Foy, 206 Wis.2d 629, 644, 557 N.W.2d 494, 499 (Ct.App.1996). [217 Wis.2d 240] We review discretionary decisions to determine whether the trial court examined the relevant factors, applied the appropriate standard of law and engaged in a rational decision-making process. Id.

We cannot review the propriety of disallowing testimony from Nolan's wife or from his father in the absence of a showing in the record as to what their testimony would have been. While Nolan helpfully interjected "[w]hat about my wife. She knows all about it," after the court denied State Farm's request to call the former juror as a witness in the trial, there is nothing in the record to indicate what Mrs. Nolan actually observed on the day in question. Calling Nolan's father to testify was later mentioned as a possibility by State Farm's counsel, again without an offer of proof as to what, if anything, he might have testified to regarding the matter. When a claim of error is based upon the trial court's erroneous exclusion of evidence, "an offer of proof must be made in the trial court as a condition precedent to the review of any alleged error." McClelland v. State, 84 Wis.2d 145, 153, 267 N.W.2d 843, 847 (1978); see § 901.03(1)(b), STATS. State Farm's failure to establish whether Nolan's wife or father could have offered any relevant testimony therefore precludes us from reviewing this alleged error. State v. Hoffman, 106 Wis.2d 185, 217-18, 316 N.W.2d 143, 160 (Ct.App.1982).

Thus, we review only whether the trial court erred in excluding Nolan himself from testifying, and we conclude that the trial court's refusal to allow testimony from Nolan was reasonable under the circumstances. While "[e]very person is competent to be a witness," § 906.01, STATS., the Wisconsin rules of evidence contain an exception in the case of jurors:

A member of the jury may not testify as a witness before that jury in the trial of the case in which the member is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

Section 906.06(1), STATS. Nolan, of course, ceased to be a member of the jury once he was discharged by the court. Nonetheless, inasmuch as he had been a member of the jury during voir dire and an entire day of testimony, most of the problems which the juror incompetence rule implicitly seeks to avoid would have been present had Nolan been allowed to testify. See People v. Knox, 95 Cal.App.3d 420, 157 Cal.Rptr. 238, 246 (1979).

It is likely that Nolan's testimony would be accorded considerable weight and credibility by his former colleagues on the jury, regardless of whether it was merited, for no other reason than Nolan had been one of them. Broadhead's counsel might well have been unable to freely cross-examine or impeach Nolan due to a concern that it might antagonize the remaining jurors. Conversely, if Broadhead did not attack Nolan's credibility, the remaining jurors might have yet another reason to accord his testimony undue weight. The trial court succinctly stated its rationale for excluding any testimony from Nolan when it noted: "The reason is although we want to achieve justice, we can't be turning jurors into witnesses in front of the same Whether the trial court should have granted a mistrial, however, thereby permitting State Farm to...