McEntyre v. McRae
| Citation | 240 Ga. App. 148,522 S.E.2d 731 |
| Decision Date | 24 September 1999 |
| Docket Number | No. A99A1936.,A99A1936. |
| Parties | McENTYRE v. McRAE et al. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
McNatt, Greene & Thompson, Troy L. Greene, Vidalia, John T. Croley, Jr., Fitzgerald, for appellant.
Newton, Smith, Durden, Kaufold & Rice, Wilson R. Smith, Vidalia, for appellees.
Annelle McRae sued Lorene McEntyre for personal injuries sustained in an automobile accident. Her husband also joined the suit, alleging loss of consortium. Following a jury trial, the jury returned a verdict in favor of the McRaes. McEntyre appeals from the judgment entered on the jury verdict. We affirm.
1. McEntyre contends the trial court erred in denying her motion to exclude the expert opinion testimony of Drs. Bryan Siddall and Todd Gracen because they had not been identified as expert witnesses in response to her interrogatories. We disagree.
While the record shows that these two doctors were not formally identified as expert witnesses in response to the interrogatory question, it is undisputed that: (1) McRae identified both doctors in her answers to interrogatories as her treating physicians; (2) McRae identified both doctors in her trial brief as "may call" witnesses; and (3) McEntyre's counsel had obtained the medical records of these doctors during discovery. Following opening statements, McEntyre moved to exclude the opinion testimony of these two doctors on the ground that neither had been identified as expert witnesses in response to her interrogatory requests. During this motion, she stated that she had no problem with the doctors testifying as fact witnesses because they were on the witness list; however, she wished to exclude any opinion testimony. McEntyre did not suggest she would be prejudiced in any way or that she could not adequately go forward with her case. She did not claim surprise, request a continuance or a mistrial, or ask for an opportunity to interview the witnesses prior to their testifying. In addition, the trial transcript shows that McEntyre cross-examined the doctors and never indicated any additional ground for either excluding the doctors' testimony or requiring a continuance.
It is well established that the admission of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. American Petroleum Products v. Mom & Pop Stores, 231 Ga.App. 1, 7(3), 497 S.E.2d 616 (1998). In the present case, the trial court denied McEntyre's motion in limine finding that it should have been obvious to anyone associated with the case that the plaintiff's treating doctors were going to give expert testimony. The trial court did not abuse its discretion in allowing the evidence.
Moreover, Hunter v. Nissan Motor Co. &c., 229 Ga.App. 729(1), 494 S.E.2d 751 (1997). The only appropriate remedy for McRae's alleged failure to list the two treating doctors as expert witnesses rather than fact witnesses was postponement of trial or a mistrial. Id. at 730, 494 S.E.2d 751. Neither was requested in the present case. This enumeration of error lacks merit.
2. McEntyre contends the trial court should have permitted her to ask McRae on cross-examination about a letter written by her employer to McEntyre's counsel which stated that it had asked McRae three times to consent to the production of her personnel file and she had refused. McEntyre's counsel conceded that the letter was inadmissible and acknowledged that he was not going to read it to the jury. However, he argued that he should be allowed to show the letter to McRae to refresh her recollection if McRae testified that she was not asked to give her permission. The trial court ruled this was not appropriate and would not be allowed. We agree.
Although a witness may refresh her memory by referring to a writing prepared by herself or prepared by another at her direction or in her presence, " " Atlanta Fire Systems v. Alexander Underwriters &c., 185 Ga.App. 873, 875(4), 366 S.E.2d 197 (1988); Zilinmon v. State, 234 Ga. 535, 537(3), 216 S.E.2d 830 (1975). The trial court did not err in refusing to allow McEntyre to show McRae the letter written by McRae's employer to McEntyre's counsel.
3. McEntyre contends the trial court erred in precluding her from...
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...they add no evidence to the record. In the Interest of C.M., 258 Ga.App. 387, 388(2), 574 S.E.2d 433 (2002); McEntyre v. McRae, 240 Ga.App. 148, 150(3), 522 S.E.2d 731 (1999). On this basis alone, the ante litem notice was insufficient. See Dempsey v. Bd. of Regents, etc. of Ga., 256 Ga.App......
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