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Olson v. Walker6/27/1989
rial court agreed, it denied the motion to strike because the objection was tardy. It did, however, preclude further testimony on the current arthritis " s subsequently revealed in the examination and x-rays of January 18 . . . ." The court denied Walker's motion for mistrial.
The effect of these rulings was to allow testimony concerning Dr. LaBarre's previous prognosis that Olson would eventually develop arthritis in his back, as disclosed in her medical reports and her deposition. Further testimony that the prognosis had been objectively confirmed by x-ray, however, was disallowed. As a result, Olson's counsel made no further reference to the January 18, 1988, examination or x-rays.
In defense of the trial court's rulings, Olson points out that Walker knew long before trial that Olson claimed he had a permanent back injury and that Dr. LaBarre believed arthritis would develop and had recommended on several occasions that x-rays be taken to confirm her prognosis.
The trial court has broad discretion in admitting or rejecting evidence at trial. Ofstedahl v. City of Phoenix, 129 Ariz. 85, 88, 628 P.2d 968, 971 (App.1981). Its ruling will not be disturbed absent an abuse of discretion. Circle K Corp. v. Rosenthal, 118 Ariz. 63, 67, 574 P.2d 856, 860 (App.1977). In light of the previously disclosed reports and deposition testimony reflecting Dr. LaBarre's opinion that Olson would eventually suffer arthritis, we cannot say that the trial court abused its discretion by refusing to strike the single reference to the undisclosed x-rays. But see Ries v. McComb, 25 Ariz. App. 554, 545 P.2d 65 (1976) (trial court abused its discretion by allowing previously undisclosed witness to testify and by admitting undisclosed exhibit).
Walker's claim of surprise, in our view, is unfounded. Dr. LaBarre's opinion did not change; it was merely confirmed. Moreover, Dr. LaBarre suggested several times in her reports that x-rays would confirm her prognosis. Walker points to no evidence contradicting this prognosis. A defense to Dr. LaBarre's opinion that arthritis would in all likelihood develop, and that it did develop, would not differ much. In addition, nothing in the record suggests that Olson's failure to disclose the results of the January 18 examination and x-rays was deliberate. See Greco v. Manolakos, 24 Ariz. App. 490, 539 P.2d 964 (1975) (failure to update interrogatories regarding medical expenses did not warrant sanction of excluding all evidence pertaining to expenses because it did not prejudice defendant and omission was not willful).
Finally, although the trial court did not allow any further references to the recent examination or x-rays, it denied Walker's motion to strike, at least in part, because the objection was tardy. The record, however, is unclear because a bench conference immediately following the testimony in question was not recorded. Under these circumstances, we cannot conclude the trial court abused its discretion, and we therefore affirm its ruling.
Conclusion
In conclusion, there was sufficient evidence to support the punitive damage instruction to the jury. The resulting award was not excessive. We reject Walker's arguments that the punitive damage award is unconstitutional. Finally, the trial court did not err by refusing to strike the portion of Dr. LaBarre's testimony of which Walker complains, or by refusing to declare a mistrial.
The judgment of the trial court is affirmed.
GERBER, Judge, dissenting:
I
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