Lumerman

In this action three plaintiffs seek damages for personal injuries resulting from a freeway accident in which their ear, which had been stopped by traffic conditions, was “rear-ended” by defendant’s car. The case was tried to a jury and a defense verdict resulted.

As a basis for appeal plaintiffs complain of an incident at the trial which occurred at 18 minutes before the 12 o’clock recess when counsel for the defense approached the bench and out of the hearing of the jury moved that the defense be given an opportunity to have its heart specialist examine one of the plaintiffs, Joseph H. Lumer, during the noon recess. This motion was opposed by counsel for plaintiffs upon the basis that the motion was not timely made; the defense had known through discovery proceedings that this plaintiff had had a preexisting heart condition and that the testimony given concerning this condition could not have come to defense counsel unexpectedly or through surprise. Plaintiffs’ counsel further argued that if such permission were to be granted by the court it would mean that plaintiffs would then be put in the position of having to ask for a recess and an opportunity to have their own expert…