Making a Record

Here is another case out of our appellate courts that reminds us of the need to make a record.

Plaintiff failed to object to the introduction of certain medical records in a personal injury case. The defendant read excerpts of those records to the jury to establish the existance of a pre-existing condition. Citing Grandstaff v. Hawks, the Eastern Section of our Court of Appeals said “[o]bjections to the introduction of evidence must be timely and specific. … A party who invites or waives error, or who fails to take reasonable steps to cure an error, is not entitled to relief on appeal. Failure to object [to] evidence in a timely and specific fashion precludes taking issue on appeal with the admission of the evidence.”

The Court found that Plaintiff did offer an objection to the method of introduction of the pre-incident prescription records of the plaintiff, i.e. a paralegal read from a summary of records from five different pharmacies. However, on this issue the Court used the familiar “abuse of discretion” rule to uphold the decision of the trial judge.

The bottom line: trial judges are granted significant leeway in admitting or rejecting evidence at trial, but the lack of a timely, specific objection gives them 100% discretion. You don’t need to rant and rave about objectionable evidence, but you do need to make a record.

The case is McPeek v. Lockhart, No. E2004-01034-COA-R3-CV (Tenn. Ct. App. E.S. 4/28/06. Read the opinion here.

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