Jones v. Colley, 820 S.W.2d 863 (Tex. Ct. App. 1991)

OPINION

CORNELIUS, Chief Justice.

Jeannie Marie Jones sued Dr. Johnny M. Colley and Anesthesia & Intensive Care of Texarkana, alleging that they were negligent in administering anesthesia to her during a cesarean section delivery of her second child. The jury found no negligence, and the trial court rendered judgment that Jones take nothing. On appeal, Jones’ only complaint is that the trial court erred in excluding from evidence the videotaped deposition of her medical expert, Dr. Keszler. We will affirm the judgment.

Although no record of the session was made, there are in the record statements by the trial judge and counsel for both sides showing that, at an in-chambers session before the trial began, Jones’ counsel asked the judge for permission to introduce at trial an edited version of Dr. Keszler’s videotaped deposition. The judge sustained opposing counsel’s objection and refused to allow the videotape because it had been edited by Jones’ counsel to present the doctor’s testimony out of the chronological sequence in which it was given. In the face of this ruling, Jones opened her case by reading the written transcript of the entire deposition in the chronological order in which it was given.

At the close of Jones’ case, and outside the presence of the jury, her counsel again offered to play the edited videotape of Dr. Keszler’s deposition. The court again refused to allow it, sustaining opposing counsel’s objection that the edited version would be misleading, confusing, and unfair to the parties and the jury. The court did, however, allow the introduction of the edited tape on a bill of exceptions for purposes of this appeal.

Jones then requested that she be allowed to play the entire videotaped deposition. Opposing counsel objected because they had not been furnished a copy of the videotape after it had been edited to remove the objections made at the time it was taken.

The trial court sustained the objection, stating:

Jones complains on appeal that the trial court erred in overruling her motion for new trial based on the alleged error in refusing to admit the doctor’s videotaped deposition in either its edited or unedited form.

A motion for new trial is addressed to the trial court’s sound discretion, and the court’s ruling will not be disturbed absent a clear abuse of that discretion. Napier v. Napier, 555 S.W.2d 186, 188-89 (Tex.Civ.App.-El Paso 1977, no writ). The test is whether the trial court acted arbitrarily or unreasonably, without reference to any guiding rules and principles. Simon v. York Crane & Rigging Co., 739 S.W.2d 793 (Tex.1987); Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). The complaining party has the burden to bring forth a record showing an abuse of discretion. Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968); Tex.R.App.P. 50(d). Absent such a record, the reviewing court must presume that the evidence before the trial judge was adequate to support his decision. Simon v. York Crane & Rigging Co., supra.

To obtain a new trial because of the exclusion of evidence, the complaining party must show that the court’s ruling was error and that it was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App. P. 81(b); see McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 75 (Tex.1989); Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). Moreover, the exclusion of evidence is harmless if it is merely cumulative of other evidence that was admitted on the same issue. Gee v. Liberty Mutual Fire Ins. Co., supra; Reina v. General Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex.1981).

Tex.R.Civ. P. 200(1) provides that “[a]fter commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination.” Tex.R.Civ. P. 2021 expressly authorizes the recording of a deposition by non-stenographic means, including videotape recordings. Burr v. Shannon, 593 S.W.2d 677 (Tex.1980); Garza v. Serrato, 699 S.W.2d 275, 279 (Tex.App.-San Antonio 1985, writ ref’d n.r.e.). Furthermore, Tex.R.Civ. P. 207(l)(a) provides,

tion or who had reasonable notice thereof.

(Emphasis added.)

Jones had Dr. Keszler’s deposition edited so that it presented his testimony in an order most favorable to her case. She contends that the court should not have excluded the videotaped deposition simply because she elected, as a matter of trial strategy, to put questions and answers in a particular order. She asserts that the defendants could have presented their own version of the video showing their pertinent cross-examination in its best light, but chose not to do so.

Defendants argue that the court did not err in disallowing the videotape because, in effect, he was simply applying the rule of optional completeness.2

The rule of optional completeness is that if one party introduces part of a statement or document, the opposing party may contemporaneously introduce as much of the balance as is necessary to explain the first part. Travelers Ins. v. Creyke, 446 S.W.2d 954, 957 (Tex.Civ.App.-Houston [14th Dist.] 1969, no writ); Tex.R.Civ.Evid. 106. The rule is based on two considerations: (1) the danger that material may be made misleading by being taken out of context, and (2) the inadequacy of a delayed repair. See Wellborn, Article I of the Texas Rules of Evidence and Articles I and XI of the Texas Rules of Criminal Evidence: Applicability of the Rules, Procedural Matters, and Preserving Error, 18 St. Mary’s L.J. 1165, 1194-95 (1987). Rule 106, however, is not enforced by excluding the partial statement, but by allowing the opposing party to contemporaneously introduce any other part of the statement that should be considered with the portion introduced by the proponent. Thus, the defendants, on the sole ground that the tape was out of chronological order or was not complete, had no right to prevent the use of the edited videotape. Their remedy was to introduce the unedited deposition or their own edited version in response to Jones’ offer.

A deposition, or any portion thereof, may be offered by either party to support the contention of the offering party. See Gilcrease v. Hartford Accident & Indemnity Co., 252 S.W.2d 715, 719 (Tex.Civ.App.-El Paso 1952, no writ); Tex.R.Civ. P. 207(l)(a); 2 R. McDonald, Texas Civil Practice in District and County Courts § 10.02.17, at 456, 459 (rev.1982). No rule requires that a deposition be read into the record or played before the jury in chronological order. A party, as a matter of trial strategy, is entitled to present his evidence in the order he believes constitutes the most effective presentation of his case, provided that it does not convey a distinctly false impression.3 There is no suggestion here that Jones’ edited version presented any distinctly false impression as to Dr. Keszler’s testimony. Prima facie, then, Jones had the right to play the edited version of the tape with the defendants being allowed to counter it with the full tape, or such portions as they desired. If, however, the trial judge found that the repetitious playing of the tape or portions of it would unduly delay the trial, mislead the jury, or needlessly present cumulative evidence,4 he had the discretion to avoid that result by admitting the full tape initially under the rule of optional completeness. Tex.R.Civ. Evid. 106. He did not do that in this case.

In any event, we conclude that the exclusion of the videotape was harmless

and was not calculated to cause and probably did not cause the rendition of an improper judgment. Tex.R.App. P. 81(b). The testimony was strictly cumulative, as all of it had previously been introduced verbatim before the jury by reading the written transcript. See Gee v. Liberty Mutual Fire Ins. Co., supra; Reina v. General Accident Fire & Life Assurance Corp., supra; Tex.R.Civ.Evid. 403.

We agree, as Jones suggests, that videotaped testimony may be more convincing and more revealing than that presented only orally or in writing, primarily because a videotape is more attention stimulating and conveys to the jury certain nonverbal messages that are helpful in evaluating a witness’ credibility. See Boudreaux, Is it Time for Texas to Amend Rule 215c to Adopt Guidelines for Taking Videotape Depositions?, 24 S. Tex.L.Rev. 225, 226-27 (1983). Nevertheless, we cannot conclude that the exclusion of the videotape here changed the result of the trial. Dr. Kesz-ler’s credibility was not really in question. It was the competency of his medical evaluation that was questioned. It is highly unlikely that seeing him testify, rather than hearing him, would have made any difference in the jury's evaluation of his medical opinions.

Jones also contends that the court erred in refusing to play the videotaped deposition in its entirety and in its original chronological sequence so that the jury could properly evaluate the credibility of the witness. As noted earlier, we agree that the full deposition was admissible. Again, however, we conclude that the action of the court here was harmless because the evidence is merely cumulative of the deposition testimony that was read into the record.

Defendants bring one cross-point, asking that we impose penalties for frivolous appeals as authorized in Tex.R.App. P. 84.

Before an appellate court may assess damages under Rule 84, it must find that the appeal was taken for delay and without sufficient cause. Bainbridge v. Bainbridge, 662 S.W.2d 655, 657 (Tex.App.-Dallas 1983, no writ). In making these findings, this Court must review the case from the advocate’s point of view and determine whether he had reasonable grounds to believe the case would be reversed. Mid-Continent Casualty Co. v. Whatley, 742 S.W.2d 475, 479 (Tex.App-Dallas 1987, no writ).

In reviewing the statement of facts and the record from Jones’ point of view, we cannot conclude that she had no arguable basis for the appeal or that she took the appeal solely for delay. St. Louis Southwestern Ry. Co. v. Marks, 749 5.W.2d 911, 915 (Tex.App.-Texarkana 1988, writ denied).

For the reasons stated, the judgment of the trial court is affirmed.

BLEIL, Justice,

concurring.

I agree that the trial court’s judgment should be affirmed. I write separately to state my opinion that Jeannie Jones has shown no instance of trial court error.5 Therefore, I concur in the decision affirming the trial court’s judgment.

To the extent that the opinion of this Court suggests that the trial court erred in failing to admit an edited version of Kesz-ler’s videotaped deposition, I disagree. The first request to admit the edited videotape was made to the court before the presentation of any evidence, in chambers and outside the presence of the court reporter. Because no offer was made in open court and no ruling was made in court, Jones fails to show any trial court error in initially excluding the videotape.6 When, at the end of the plaintiff’s case, the edited video deposition was offered — after the written deposition had been introduced and read to the jury — it could have been excluded be

cause of a danger of confusion of the issues, unfair prejudice, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex.R.Civ.Evid. 403.

Additionally, I believe the language in the majority opinion concerning Tex.R.Civ. P. 207(l)(a), which provides that all or part of a deposition may be used in evidence, is ill advised and overly broad. The majority opinion might be interpreted as holding that a party has an absolute right to present evidence in any order desired so long as a distinctly false impression is not created. Such a holding is not necessary and is also violative of the spirit of Tex. R.Civ. P. 265, which allows the trial court leeway in directing the order of proceedings.

The majority opinion also makes the statement that, under Tex.R.Civ.Evid. 106, the defendants had “no right to prevent the use of the edited videotape. Their remedy was to introduce the unedited deposition or their own edited version in response to Jones’ offer.”7 (Majority op. p. 866). The majority opinion confuses the “rights” of civil defendants with the duty of a trial court to insure that a case is properly presented to the jury so that a just, fair and equitable adjudication of the case under the law may be had. See Tex.R.Civ. P. 1. No question is presented concerning the defendants’ “rights” under Tex.R.Civ.Evid. 106.

Under the present circumstances, we do the trial court a disservice to hint that it erred, but conclude that its actions were harmless.

GRANT, Justice,

concurring.

I concur in the results reached by the majority. A trial judge has considerable leeway in controlling the order of the evidence so that it will be understandable to the jury and at the same time to avoid delay. Furthermore, he has a duty to allow the opposing side to introduce evidence, which in this case was portions of a deposition, which ought in fairness to be considered contemporaneously with the evidence introduces initially. Tex.R.Civ.Evid. 106. The altered sequence of the video deposition could potentially have caused a delay or denied the opposing party the opportunity to contemporaneously and fairly offer other portions of the deposition. The trial judge expressed this concern in making the ruling.8 For that reason I do not find that the trial court erred in excluding the edited version of the videotaped deposition that altered the order of the deposition and was not submitted to opposing counsel prior to the trial.

The offer into evidence of the unedited video deposition came after the written deposition had been read into evidence. At that point in the trial, the trial judge could validly rule that the video deposition was cumulative of the evidence already introduced.