Court reviews denial of motion for a new trial based on evidence that was not admitted during trial

DUANE MCCRORY v. ANTHONY TRIBBLE and CYNTHIA TRIBBLE (Tenn. Ct. App. April 22, 2010)

This is a premises liability case. The plaintiff worker allegedly injured his knee while in the defendants' home. The plaintiff visited a doctor the next day, and ultimately had surgery on the knee the next month. Subsequently, the plaintiff sued the defendants, alleging premises liability. A jury trial was held. After the testimony concluded, the trial court declined to include a jury instruction requested by the plaintiff.

During closing arguments, the plaintiff's attorney started to read from a deposition that had not been entered into evidence; the trial court sustained a timely objection. Also during closing argument, the closing remarks of the defendant's attorney alerted the plaintiff's attorney to the fact that a particular medical record was not a part of the evidence submitted to the jury. While the jury was deliberating, the plaintiff sought to reopen proof to admit into evidence the omitted medical record; the trial court declined to reopen the proof. The jury returned a verdict for the defendants. The plaintiff filed a motion for a new trial, which was denied. The plaintiff now appeals. We affirm.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/mccroryd_042210.pdf