At page 810 Reviewing trial court discretion on evidence exclusion42 citing cases“defendant's vague protestations against excluding the evidence were insufficient to assist the trial judge in making a rational determination of its admissibility.”
- Nicholas Daskarolis & Helen Daskarolis v. The Firestone Tire & Rubber Co., 651 F.2d 937 (4th Cir. 1981).published(This is a question of legal relevance, a matter on which the trial judge has wide discretion, and which the appellate court will not reverse unless the trial judge has clearly abused his discretion.)
- Marcus Allen Cooper v. Commonwealth of Virginia, No. 1221233 (Va. Ct. App. Oct. 29, 2024).unpublishedCo., 580 F.2d 809, 810 (5th Cir. 1978)).
- Villagran v. La Herradura L L C, No. 2:22-cv-00170 (W.D. La. Sept. 7, 2023).Co., 580 F.2d 809, 810 (5th Cir. 1978).
- Jason N. Creamer v. Commonwealth of Virginia, 767 S.E.2d 226 (Va. Ct. App. 2015).publishedCo., 580 F.2d 809, 810 (5th Cir.1978))).
- Yi Wu Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005).publishedCo., 580 F.2d 809, 810 (5th Cir.1978) (quoting United States v. Thomas, 429 F.2d 407, 408 (5th Cir. 1970)).
- Pickett v. Lindsay, 56 F. App'x 718 (7th Cir. 2002).unpublished(reasoning that trial courts may exclude evidence under Federal Rule of Evidence 403 without request)
- Boston Old Colony Ins. v. Tiner Assocs. Inc., 288 F.3d 222 (5th Cir. 2002).publishedWright v. Hartford Accident & Indemnity Company, 580 F.2d 809, 810 (5th Cir.1978).
- Boston Old Colony Ins. Co., Plaintiff-Counter Defendant-Appellee-Cross State of Louisiana, Through the Off. of Risk Mgmt., Div. of Admin., Off. of the Governor Louisiana Pub. Broad., Intervenor v. Tiner Assocs. Inc., Etc., Hrc Armco Inc., Defendant-Intervenor Defendant-Cross & Stainless Inc., Defendant-Intervenor & Allied Resource Mgmt. of Florida Inc., Defendant-Intervenor Defendant-Cross Claimant-Cross v. Gen. Star Indem. Co., Defendant-Intervenor Defendant-Cross Defendant-Third Party Plaintiff-Counter Claimant-Appellant-Cross-Appellee v. Marine Off. of Am. Corp. Nat'l Union Fire Ins. Co. Of Pittsburgh, Pennsylvania, Third Party, 288 F.3d 222 (3d Cir. 2002).publishedWright v. Hartford Accident & Indemnity Company, 580 F.2d 809, 810 (5th Cir.1978). 35 "When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was…
- Carney v. Internal Revenue Serv., 258 F.3d 415 (5th Cir. 2001).published (It is a well- accepted rule that an appellate court will not review actions of omission or commission by a trial court unless the defendant makes known to the court the action which he desires the court to take or his…)
- Spring v. Beverly Ent Ms, No. 99-60174 (5th Cir. Jan. 25, 2000).unpublishedCo., 580 F.2d 809, 810 (5th Cir.1978)).
Show 31 more citing cases
- Beverly P. Davis, Wife Of/& Willie Earl Davis v. Odeco, Inc., Murphy Expl. & Prod. Co., Originally Sued as Odeco, Inc., 18 F.3d 1237 (5th Cir. 1994).publishedCo., 580 F.2d 809, 810 (5th Cir.1978). 43 .
- Lucille Buford v. Michael Howe, M.D., 10 F.3d 1184 (5th Cir. 1994).published Co., 580 F.2d 809, 810 (5th Cir.1978). 27 We find that the trial court did not abuse its discretion in excluding evidence of the other surgeries performed by Dr. Howe.
- Buford v. Howe, No. 93-07073 (5th Cir. Jan. 11, 1994).publishedCo., 580 F.2d 809, 810 (5th Cir.1978).
- Neal v. Commonwealth, 425 S.E.2d 521 (Va. Ct. App. 1992).publishedCo., 580 F.2d 809, 810 (5th Cir. 1978). *422 When an objection identifies the rule of evidence on which admission or exclusion depends, the proponent ordinarily need not do more to preserve error than offer the evidence.
- James Yarbrough, Individually & as Next Friend of Robert Yarbrough, a Minor v. Sturm, Ruger & Co., 964 F.2d 376 (5th Cir. 1992).published Co., 580 F.2d 809, 810 (5th Cir.1978).
- United States v. Rodolfo Gonzalez-Lira, 936 F.2d 184 (5th Cir. 1991).published Co., 580 F.2d 809, 810 (5th Cir.1978). 58 Gonzalez has not shown a clear abuse of discretion by the district court.
- United States v. Jeff Edward Fortenberry, Jr., 919 F.2d 923 (5th Cir. 1990).publishedCo., 580 F.2d 809, 810 (5th Cir.1978); see also United States v. Johnson, 558 F.2d 744 (5th Cir.1977), cert. denied, 434 U.S. 1065 , 98 S.Ct. 1241 , 55 L.Ed.2d 766 (1978).
- Commonwealth v. Owens, 524 N.E.2d 387 (Mass. 1988).publishedCo., 580 F.2d 809, 810 (5th Cir. 1978). 2 In short, *642 we conclude, from our reading of the colloquy between judge and defense counsel, that the judge could fairly decide that his ruling was responsive to the defendant’s objection.
- Raymond L. Sprankle, Cross-Appellee v. Bower Ammonia & Chem. Co., Cross-Appellant, 824 F.2d 409 (5th Cir. 1987).publishedCo., 580 F.2d 809, 810 (5th Cir.1978).
- United States v. Robert Neal Allen, 798 F.2d 985 (7th Cir. 1986).published Allen has an uphill battle to prove an abuse of discretion because “[i]t is important to keep in mind that the trial judge has wide discretion in rendering FRE 403 rulings, and will be reversed on appeal only if there has been a clear abus…
- Holly Shipp v. Gen. Motors Corp., 750 F.2d 418 (5th Cir. 1985).publishedRule 403 determinations are often inextricably bound with the facts of a particular case and thus will not be disturbed absent a showing of “clear abuse.” Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir.1978).
- United States v. Mark Allan Pirolli, Jose Galardo, Terry Otalora, 742 F.2d 1382 (11th Cir. 1984).publishedWright v. Hartford Accident and Indemnity Co., 580 F.2d 809, 810 (5th Cir.1978), citing United States v. Johnson, 558 F.2d 744 (5th Cir.1977), cert. denied, 434 U.S. 1065 , 98 S.Ct. 1241 , 55 L.Ed.2d 766 (1978).
- Edna Goldstein v. Robert E. Kelleher, United States of Am., Intervenor, 728 F.2d 32 (1st Cir. 1984).publishedCoe v. Yellow Freight System, Inc., 646 F.2d 444, 454 (10th Cir. 1981); Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978).
- Noel Shows, Inc. v. United States, 721 F.2d 327 (11th Cir. 1983).published Wright v. Hartford Accident & Indemnity Company, 580 F.2d 809, 810 (5th Cir.1978).
- Brumley Est. v. Iowa Beef Processors, Inc., 704 F.2d 1351 (5th Cir. 1983).publishedWright v. Hartford Accident & Indemnity Company, 580 F.2d 809, 810 (5th Cir.1978).
- United States v. Juan Octavio Pena Gonzalez, 700 F.2d 196 (5th Cir. 1983).publishedWright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir.1978).
- David L. Robert v. Conti Carriers & Terminals, Inc., 692 F.2d 22 (5th Cir. 1982).publishedCo., 580 F.2d 809, 810 (5th Cir.1978) (per curiam). 8 .
- United States v. Daniel Pomerantz, 683 F.2d 352 (11th Cir. 1982).publishedThe trial court’s determination should not be overturned on appeal unless “the trial judge has clearly abused his discretion.” United States v. Mitchell, 666 F.2d 1385 (11th Cir. 1982); United States v. Johnson, 585 F.2d 119, 125 (5th Cir.…
- Doretha MITCHELL, Plaintiff-Appellee, v. M. D. ANDERSON Hosp., Et Al., Defendants-Appellants, 679 F.2d 88 (5th Cir. 1982).publishedWright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978).
- Jimmy Lee Gray v. Eddie Lucas, Warden, 677 F.2d 1086 (5th Cir. 1982).publishedSee Fed.R.Evid. 103(a)(1); Wright v. Hartford Accident & Indemnity, 580 F.2d 809, 810 (5th Cir. 1978) (per curiam); Markel Service v. National Farm Lines, 426 F.2d 1123, 1228 (8th Cir. 1970). 14 .
- United States v. Robert E. Mitchell, 666 F.2d 1385 (11th Cir. 1982).publishedUnited States v. Johnson, 585 F.2d 119, 125 (5th Cir. 1978); Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978); We think it clear that the trial judge did not abuse his discretion.
- Commonwealth v. McCreary, 428 N.E.2d 361 (Mass. App. Ct. 1981).publishedCo., 580 F.2d 809, 810 (5th Cir. 1978).
- F & S Offshore, Inc. v. K.O. Steel Castings, Inc., 662 F.2d 1104 (5th Cir. 1981).publishedStores, 630 F.2d 379, 388 (5th Cir. 1980); United States v. Johnson, 585 F.2d 119, 125 (5th Cir. 1978); Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978).
- Excel Handbag Co., Inc., Etc., Cross-Appellee v. Edison Bros. Stores, Inc., Etc., Cross-Appellant, 630 F.2d 379 (5th Cir. 1980).publishedUnited States v. Johnson, 585 F.2d 119, 125 (5th Cir. 1978); Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978).
- United States v. Joseph D. Fontenot, 628 F.2d 921 (5th Cir. 1980).publishedUnited States v. Johnson, 585 F.2d 119, 125 (5th Cir. 1978); Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978).
- E. I. Du Pont De Nemours & Co. v. Berkley & Co., Inc., E. I. Du Pont De Nemours & Co. v. Berkley & Co., Inc., 620 F.2d 1247 (8th Cir. 1980).publishedWright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978); Rigby v. Beech Aircraft Co., 548 F.2d 288, 293 (10th Cir. 1977); Kilarjian v. Horvath, 379 F.2d 547, 548 (2d Cir. 1967); Great American Insurance Co. v. Horab,…
- Terry v. Zions Coop. Mercantile Inst., 605 P.2d 314 (Utah 1979).published McCormick, On Evidence, Section 185 p. 438 (2nd ed. 1972); See Byers v. Santiam Ford, Inc., 281 Or. 411 , 574 P.2d 1122, 1124 (1977); This concept has been termed “legal relevance.” See Wright v. Hartford Accident and Indemnity Company, 58…
- United States (EPA) v. Env't Waste Control, Inc., 710 F. Supp. 1172 (N.D. Ind. 1989).published(Defendant’s failure to provide this support when requested by the trial judge precludes it from now arguing for admission of the evidence.)
- United States v. Haywood Wright, Jr., 799 F.2d 423 (8th Cir. 1986).published(excluding testimony as overly ambiguous)
- United States v. John R. Adamson, III, 665 F.2d 649 (5th Cir. 1982).published See Wright v. Hartford Accident & Indemnity Co., 580 F.2d 809, 810 (5th Cir. 1978); United States v. Arteaga-Limones, 529 F.2d 1183, 1198-99 (5th Cir. 1976), cert. denied, 429 U.S. 920 , 97 S.Ct. 315 , 50 L.Ed.2d 286 (1977); Fed.R.
- James H. VALLOT, Plaintiff-Appellant, v. Cent. GULF LINES, INC., & S. S. GREEN FOREST, in Rem, Defendants-Appellees, 641 F.2d 347 (5th Cir. 1981).publishedSee Wright v. Hartford Accident & Idemnity Co., 580 F.2d 809, 810 (5th Cir. 1978).
Other citing cases
- Dallas-Fort Worth Reg'l Airport Bd. v. Combustion Equip. Assocs., Inc., 623 F.2d 1032 (5th Cir. 1980).published
- Victor & Marie Perkins v. Volkswagen of Am., Inc., 596 F.2d 681 (5th Cir. 1979).published
v.
HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellant
The sole issue on this appeal is whether the trial court erred in refusing to admit certain deposition testimony. This is a worker’s compensation case in which the[*810] deposition testimony of plaintiff’s physician that the disputed accident was the “triggering factor” in plaintiff’s permanent disability was crucial for plaintiff’s recovery. On cross-examination in the same deposition, defendant’s attorney asked the doctor whether plaintiff’s prior arthritis and gout would have permanently disabled plaintiff even without the disputed injury. The physician apparently answered that plaintiff would be permanently disabled even if the work-related injury had not occurred. Plaintiff’s motion in limine to exclude this cross-examination was granted and plaintiff’s attorney objected both times defendant offered the testimony into evidence during the trial. After asking defendant’s attorney for some authority supporting the admission of the evidence and receiving no such authority, the trial court excluded the evidence. Plaintiff received all relief requested and defendant appeals.
Because the trial judge had granted plaintiff’s motion in limine to exclude this testimony, when defendant offered it into evidence, he was well aware of the objections against it. When the judge asked for authority for admitting the evidence, however, defendant ignored the request. It is a well-accepted rule that “[a]n appellate court will not review actions of omission or commission by a trial court unless the defendant makes known to the court the action which he desires the court to take or his objection to the action taken by the court and the grounds therefor.” United States v. Thomas, 429 F.2d 407, 408 (5 Cir. 1970). This rule has been codified in the federal rules. Fed.R.Civ.P. 46; Fed.R. Evid. 103(a)(2). See also Advisory Committee Notes to Fed.R.Evid. 103(a); 21 C. Wright & K. Graham, Federal Practice & Procedure § 5040 (1977). Defendant’s vague protestations against excluding the evidence were insufficient to assist the trial judge in making a rational determination of its admissibility. The fact that the excluded testimony was given on cross-examination is irrelevant. The arguments for a more relaxed requirement of an offer of proof on cross-examination, see C. Wright & K. Graham, supra, at 221, are inapplicable when, as in this case, the evidence is deposition testimony, counsel is forewarned of the objection, and the trial judge specifically requests that counsel provide support for admitting the evidence. Defendant’s failure to provide this support when requested by the trial judge precludes it from now arguing for admission of the evidence.
An additional reason to affirm the trial court is the confusing and misleading nature of the testimony. The question was asked in the form of a double negative and after asking counsel to repeat the question, the expert replied, “I would be doubtful.” On redirect, plaintiff’s attorney referred to the prior questioning and again asked the doctor if the accident was a factor in causing plaintiff’s disability. The doctor answered that it was. Because of the extremely complicated nature of defendant’s question and the ambiguous answer, the trial judge may have concluded that the testimony should be excluded because its probative value was substantially outweighed by its danger of misleading the jury. Fed.R.Evid. 403. This is a question of legal relevance, a matter on which the trial judge has wide discretion, and which the appellate court will not reverse unless the trial judge has clearly abused his discretion. United States v. Johnson, 558 F.2d 744 (5 Cir. 1977), cert. denied, 434 U.S. 1065, 98 S.Ct. 1241, 55 L.Ed.2d 766 (1978).
The judgment is AFFIRMED.