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Tex. R. Evid. 801(e)(2) is straight forward: subject to other rules of evidence that may limit admissibility, any statement by a party-opponent is admissible against that party.
Deborah Sue McShane gave birth to Maggie Yvonne McShane at a Bay Area Healthcare Group hospital. Maggie allegedly sustained injuries during the delivery that left her with brain damage and other physical complications. Deborah and James McShane sued Bay Area and two doctors, Dr. Rothschild and Dr. Eubank, but nonsuited the doctors before trial. The McShanes filed a motion in limine to prevent Bay Area from introducing into evidence the superseded pleadings that listed Rothschild and Eubank as defendants. The trial court denied that motion. At trial, neither party attempted to introduce the superseded pleadings into evidence, but attorneys for both sides discussed Rothschild and Eubank's status during voir dire, and witnesses testified over objection that the McShanes had previously sued Rothschild and Eubank. The jury returned a verdict in Bay Area’s favor, and the trial court signed a take-nothing judgment. The court of appeals reversed, holding that the trial court abused its discretion in admitting evidence that two doctors involved in the incident were originally sued by the plaintiffs, but were nonsuited before trial. Bay Area appealed.
Were the statements from the superseded pleadings listing nonsuited doctors as defendants admissible as evidence?
The court noted that while neither party introduced the superseded pleadings into evidence, the parents' counsel was the first to allude to the doctors' party status at voir dire, thus opening the door to rebuttal by the providers, and precluding the parents from arguing that the evidence was irrelevant or unfairly prejudicial, Tex. R. Evid. 402, 403. In any event, the information's probative value was not substantially outweighed by the danger of unfair prejudice. The providers introduced statements from the superseded pleadings indicating that they sued the doctors. The statements were not hearsay, Tex. R. Evid. 801(d), because the parents made the statements, which were considered admissions by party-opponents, Tex. R. Evid. 801(e)(2). Thus, under the rules of evidence, the statements from the superseded pleadings were admissible. While the parents raised a cross-point, asserting that the trial court allowed improper impeachment of their expert witness, they did not preserve the issue for review, Tex. R. App. P. 33.1(a). Accordingly, the court of appeals' judgment was reversed, and judgment was rendered that the parents take nothing.