Opinion
Case No. 20010528-CA.
Filed August 15, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Roger A. Livingston.
Peter C. Collins and Jacquelynn Carmichael, Salt Lake City, for Appellant.
Dennis C. Ferguson and Kurt M. Frankenburg, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Orme.
MEMORANDUM DECISION
Plaintiff first argues that the trial court committed reversible error by denying his motion to compel responses to certain interrogatories and requests for production of documents. The trial court denied Plaintiff's motion, in part, because it ruled the interrogatories and requests for documents at issue were overly broad and thus unduly burdensome. After reviewing the record, including Plaintiff's requests, the information submitted by Defendant, and both parties' memoranda in support and against the motion to compel, we conclude the trial court did not abuse its considerable discretion in reaching this conclusion. See Pack v. Case, 2001 UT App 232, ¶ 31, 30 P.3d 436, cert. denied, 40 P.3d 1135 (Utah 2001). Moreover, Plaintiff failed to avail himself of the obvious remedy to the denial of his motion based on overbreadth, namely, to more narrowly tailor his requests and interrogatories and resubmit them, nor did Plaintiff seek to narrow the interrogatories and resubmit them after deposing several defense witnesses. See id. at ¶ 30.
Plaintiff next argues that the trial court erred in several evidentiary rulings and that these errors were prejudicial. In particular, Plaintiff argues the court erred by (1) allowing Defendant to present evidence through one of Defendant's witnesses that Plaintiff used two sets of financial records, or "books," in his medical practice because this violated Rule 608(b) of the Utah Rules of Evidence; (2) that Defendant should not have been allowed to present evidence about Plaintiff's bankruptcy; and (3) that Defendant should not have been allowed to present evidence of Plaintiff's gambling activities and losses.
Defendant had both a theory of defense on liability — the accident did not happen — and a theory of defense on damages — even if the accident occurred as Plaintiff alleged, the damages he claimed to have suffered were either not caused by Defendant or were substantially less than Plaintiff alleged. Respecting the financial records, Plaintiff's argument based on rule 608(b) fails because the evidence complained of was not "offered as an attack on the general credibility of a witness," State v. Hackford, 737 P.2d 200, 203 (Utah 1987), but was instead offered to refute Plaintiff's damages claim and thus was not prohibited by rule 608(b).
The bankruptcy and gambling evidence is a closer call because the danger of unfair prejudice is readily apparent and substantial for this type of evidence. Indeed, in a pre-trial hearing on Plaintiff's motion in limine to exclude this evidence, the trial court acknowledged the substantial danger of unfair prejudice — especially from the gambling evidence. Nevertheless, even if we were to conclude that the trial court abused its discretion in admitting this evidence, Plaintiff would still have to demonstrate that the error was harmful before we would reverse the judgment. Thus, if we conclude that any error in admitting this evidence was harmless, we need not decide whether the court abused its discretion in admitting the evidence. See Jones v. Cyprus Plateau Min. Corp., 944 P.2d 357, 360 (Utah 1997).
Our standard for harmless error analysis is well settled. In reviewing an evidentiary ruling to determine whether an error was harmless, we determine whether the error is "sufficiently inconsequential that we conclude there is no reasonable likelihood that the error affected the outcome of the proceedings." Larsen v. Johnson, 958 P.2d 953, 958 (Utah Ct.App. 1998) (quotations and citations omitted); see also Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991). We have also stated that "[f]or an error to require reversal, the likelihood of a different outcome must be sufficiently high to undermine confidence in the verdict." Larsen, 958 P.2d at 958 (quotations and citations omitted).
In this case, overwhelming evidence supports the jury verdict rejecting Plaintiff's allegation. During the course of the proceedings, Plaintiff changed both the date and location of the alleged accident; other than himself, he did not produce a single eyewitness to the event — despite claiming that it happened while he was in the middle of a ski school class and despite the fact that he was accompanied by his wife during his vacation at Snowbird. There was evidence presented that Defendant kept records of all such skiing accidents and that there was no such record for this incident, and defense witnesses testified that the location identified by Plaintiff was not one where ski school classes were taught for his ability level. The ski instructors who taught classes of the size and ability level described by Plaintiff on the date of the alleged accident testified that they would have remembered such an incident and no such incident occurred. Plaintiff and his experts presented evidence of severe neck pain, but Plaintiff also claimed that after being struck in the neck and head by an airborne snowboarder and being somewhat dazed, he got up and skied down to the base area, returned his rental equipment, and picked up his child from day-care. There was also testimony that Plaintiff returned to Snowbird with his family after the alleged injury. Also, although Plaintiff sought extensive damages for a neck injury allegedly caused by this incident, there was evidence presented that Plaintiff also sought damages from another party in a prior California suit for substantially similar injuries.
Based on the evidence at trial, we conclude that any error in the admission of the bankruptcy and gambling evidence at Plaintiff's trial was harmless. See id. ("`The more evidence supporting the verdict, the less likely there was harmful error.'" (quoting State v. Hamilton, 827 P.2d 232, 240 (Utah 1992))).
Finally, Plaintiff argues that the court committed reversible error in excluding one of his witnesses from testifying as a rebuttal witness. However, this witness was not disclosed prior to trial as ordered by the trial court, and the need for the witness's testimony "could reasonably have been anticipated prior to trial." Turner v. Nelson, 872 P.2d 1021, 1024 (Utah 1994) (citation and emphasis omitted).
Affirmed.
WE CONCUR: Russell W. Bench, Judge, and Gregory K. Orme, Judge.