ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE AMICUS CURIAE
Donald D. Levenhagen W. Scott Montross Ind. Trial Lawyers Assoc.
Hill Fulwider McDowell Funk & John F. Townsend, III Theodore F. Smith Jr.
Matthews Townsend & Montross Anderson, Indiana
Indianapolis, Indiana Indianapolis, Indiana
Product Liability Advisory Council, Inc.
Chilton Davis Varner
Amy M. Power
King & Spalding
Hugh F. Young, Jr.
Albert J. Dahm
James J. Ammeen, Jr.
Baker & Daniels
APPEAL FROM THE SHELBY CIRCUIT COURT
The Honorable Charles D. OConnor, Judge
Cause No. 73C01-9705-CT-5
January 23, 2001
The defendant-appellant, Sears Roebuck and Co., appeals following a jury trial and judgment
awarding compensatory damages of $1,400,000 to the plaintiff-appellee, Milan Manuilov, a 34-year old
circus high-wire performer who was injured in 1988 while shopping at the defendant's
retail store. The Court of Appeals reversed and remanded for a new
trial. Sears Roebuck and Co. v. Manuilov, 715 N.E.2d 968 (Ind. Ct.
App. 1999). We granted the plaintiff's petition for transfer, thereby vacating the
decision of the Court of Appeals. The issues presented in the defendants
appeal are now before us, pursuant to Indiana Appellate Rule 11(B)(3). The
defendant asserts that the trial court erred as to (1) the exclusion of
evidence; (2) the admission of medical testimony; and (3) the award of substantial
damages. We affirm the judgment of the trial court.
Id. at 769. After further resistance from defense counsel, the court added:
"under the circumstances that at least an offer to prove outside the presence
of the jury is appropriate so that I can determine, or at least
try to determine, whether or not the prejudice outweighs the relevance and .
. . the assistance to the jury to determine any fact [in] issue."
Id. at 770-71.
With the jury still out of the courtroom, the defense then called the plaintiff to the stand and asked several questions about an alleged previous incident of violence against the plaintiffs girlfriend. Noting that the defense appeared to be reading from official documents, plaintiff's counsel offered to shorten the inquiry by stipulating the documents for the purpose of the defendant's offer to prove. The defendant's counsel and the trial court agreed, and Defendant's Exhibit I was admitted for this limited purpose.
The seven page exhibit consisted of: (a) an Application for Temporary Protective Order alleging that the plaintiff had threatened and committed acts of violence against Helen Kurihara in Nevada two years earlier; (b) the Court Master's recommendation that the order be granted; (c) the Clark County Nevada District Court's Temporary Protective Order Against Domestic Violence; (d) proof of service; and (e) minutes of the resulting court hearing in which both parties testified and, upon the applicant's request, the protective order was dissolved.
Following further arguments from both counsel, Judge O'Connor prohibited the defense from presenting the information to the jury, explaining his reasoning as follows:
Obviously, one of the things that bothers me in this case, and I mentioned it yesterday, or when I addressed certain conduct in the courtroom, that I was asked, essentially by counsel, that this case be put on the fast track because it had been tried before, everyone agreed to the deadlines with respect to certain cut-off dates, the trial date was set and seemed as if everybody wanted to go forward and I guess the principle that I've adhered to over the last fifteen years is that everybody comes into this Courtroom on the same playing field and we don't try cases by ambush or by surprise. And, of course, I don't know whether this knowledge was known, this information was made known to plaintiff or not. Obviously, the discovery cut-off date is long since past and, you know, we're into the fourth full day of what I thought would be a 4-day trial and now who knows where we're going. Obviously, I'm concerned, certainly the plaintiff's credibility is an issue at this point because of the information that was divulged. The timing of the divulging of the information really strikes me as being interesting, but I don't have any control over that except through my deadlines and cut-off dates. The prejudicial impact of the jury receiving this information, regardless of what kind of limiting instructions the court gave or cautioned or so forth, would far outweigh, in my opinion, the probative value. Of course, on the other hand, we don't know what Dr. Blinder's response would be to how this information would affect his opinion about the plaintiff. So I'm really caught in a dilemma. I don't want to lose this case. One option I have, obviously, is at this point to declare a mistrial and have you people start all over again. If I did that, it would be with somebody else I can assure you, it wouldn't be with me, but I'm not sure that that's an approach I want to take at this point either. . . . Keeping all those factors in mind and understanding the pros and cons and the plusses and minuses and the prejudice to both sides, the time of day and where we are, and in view of how the information appeared into the . . . fourth full day of trial, with very little opportunity for there to be any investigation, other than what occurred in the courtroom by the opposing party, it's my determination that, and I think the offer to prove is sufficient for the record, that this information will not go to the jury.
Id. at 796-98.
Indiana Evidence Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Trial courts are given wide latitude in making the evaluation required under Rule 403, and appellate reversal is appropriate only for abuse of discretion. Ingram v. State, 715 N.E.2d 405, 408 (Ind. 1999); Tompkins v. State, 669 N.E.2d 394, 398 (Ind. 1996). The trial court's ruling is presumptively correct, and a challenger bears the burden on appeal of persuading us that the court erred in its exercise of discretion. Anderson v. State, 681 N.E.2d 703, 706 (Ind. 1997).
Urging that the excluded evidence was highly relevant and probative upon the issue of malingering, the defendant cites Barnes v. Barnes, 603 N.E.2d 1337, 1342 (Ind. 1992), and City of Indianapolis v. Swanson, 448 N.E.2d 668, 671-72 (Ind. 1983), to support his demand for a new trial. The defendant argues that a trial court may only balance marginal evidence against prejudicial evidence and that it "has no discretion to exclude evidence that is better than marginal." Reply Brief of Appellant at 4.
Our opinion in Barnes held that the Indiana Rape Shield Statue does not apply in civil cases to exclude evidence of a plaintiff's prior sexual activities. We expressly noted that a trial court's latitude to exclude prejudicial evidence was limited: "relevant evidencethat which logically tends to prove a material factis not inadmissible simply because of its prejudicial impact." 603 N.E.2d at 1343. In Swanson, noting that "a trial court may not properly deny the cross-examination of a party concerning facts connected with that party's own acts and statements relating to the case which tend to impair that party's credibility," we found that the trial court erred in excluding prejudicial evidence. 448 N.E.2d at 671-72. Both these decisions preceded the adoption of the Indiana Rules of Evidence in 1994 and this Court's specific adoption of Rule 403's federal counterpart in Hardin v. State, 611 N.E.2d 123, 128-29 (1993). Contrary to the limitations applied in Barnes and Swanson, the rule expressly authorizes trial courts to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. The rule does not limit exclusion only to marginally probative evidence.
The defendant emphatically argues that the excluded evidence was highly relevant and urges that its exclusion precluded the defense from an opportunity to expose the plaintiff "as precisely the type of lying, unsavory character" that would establish him as a malingerer under the criteria used by Dr. Blinder. Brief of Appellant at 19.
Considering the circumstances presented, the presumptive correctness of the trial courts ruling, and its thoughtful evaluation, we decline to find an abuse of discretion in excluding the evidence.
Id. at 711-12. Dr. Blinder also stated that, "this amalgam of psychiatric
and post-concussive syndrome symptoms would nonetheless, to a reasonably medical probability, allow [the
plaintiff] to safely negotiate one end of the high-wire to the other, anywhere
from ninety-six to ninety-seven percent of the time." Id. at 627-28.
The defendant contends that the admission of opinions by Dr. Quillen and Dr.
Blinder that the plaintiff's fall caused post-concussion syndrome that disabled him from returning
to his work violate Indiana Evidence Rule 702. The rule is titled
"Testimony by Experts" and provides:
(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied
that the scientific principles upon which the expert testimony rests are reliable.
Evid. R. 702. The trial court's determination regarding the admissibility of expert
testimony under Rule 702 is a matter within its broad discretion, and will
be reversed only for abuse of that discretion. Cook v. State, 734
N.E.2d 563, 570 (Ind. 2000); McGrew v. State, 682 N.E.2d 1289, 1292 (Ind.
1997). The defendant claims that Dr. Quillen's causation testimony is not scientifically
reliable, contrary to Rule 702(b), because the doctor last examined the plaintiff almost
ten years before the trial. The defendant further argues that the testimony
of both Dr. Quillen and Dr. Blinder regarding post-concussion syndrome did not assist
the jury, contrary to Rule 702(a), because "[p]roof of a syndrome does not
mean that the symptom etiology is known; instead it merely means that the
subject has symptoms which fit a recognized pattern of symptoms in subjects with
a history of head injury." Brief of Appellant at 22-23. In
addition, the defendant contends that Dr. Blinder's causation opinions were scientifically insufficient under
Rule 702(b) because as a psychiatrist, he is not qualified to diagnose subtle
brain damage; because possible organic causes were not within his area of expertise;
and because he did not rule out physical causes. Also asserting that
Dr. Blinder was not qualified to render a vocation opinion, the defendant further
claims that it was error to admit his testimony concerning the percentage of
times the plaintiff would be able to safely cross the high-wire and his
opinion that the plaintiff suffered an impact upon his capacity to return to
his work as a high-wire circus performer.
The defendant's objections to the physicians' testimony that the plaintiff suffers from post-concussion syndrome were extensively presented both at trial and before trial. The defendant's pre-trial motion in limine sought to exclude all evidence that the plaintiff was diagnosed as suffering from post-concussion syndrome. At the hearing of this motion, the parties submitted extensive briefing and materials, including Dr. Blinder's deposition and testimony of Dr. Quillen and Dr. Blinder during the inconclusive first trial, in which both physicians explained the basis for their diagnosis and were zealously cross-examined by the defense. Dr. Blinder's testimony included the following:
The post-concussion syndrome refers to injury to the brain that, first of all, is diffuse. Rather than say a bullet or a localized bruising on the surface of the brain, the impact is spread out fairly evenly throughout all the brain cells so that perhaps there is [sic] thousands of little, undetectable twistings or turnings or damage to the neurons of the brain that may cause a variety of symptoms ranging from dizziness and headache, a cognitive slowing, that is slowing down of the ability to remember, to learn new information, to give it back, personality changes, depression and anxiety. And if you're lucky, these symptoms as to the concussion fade away after several months. There is a certain group of people, however, for whom these symptoms appear to be permanent. That is they spend the rest of their lives with just some subliminal some subtle dizziness, heightened levels of tension and anxiety, a melancholy that they can't seem to shake even on the sunniest of days and a sense that their mental functions just aren't as quick as they once were and even though nothing shows up on x-rays and on the standard tests, these people, for the rest of their lives, operate at a somewhat reduced level of function. So that is a typical post-concussion syndrome.
Record at 83-85. The doctor had also stated: "for the most part,
the diagnosis [of post-concussion syndrome] is made by the complaints of the patient,
falling into a well-described, circumscribed and precise pattern." Id. at 89.
Notwithstanding the defendant's vigorous challenge to the basis and accuracy of the physicians' diagnosis, the trial court denied the motion in limine.
At trial, the court received further information relating to the scientific principles for the challenged testimony when Dr. Blinder explained:
In real life, at our conclusions, which we call diagnoses, by attempting to establish whether or not a patient's complaints fall into an established constellation, a familiar pattern, and I spoke earlier of the pattern of symptoms that means [sic] heart attack or concussion, because these conclusions are being made in a clinic, on a clinical basis, as opposed to being made in a laboratory, or as opposed to being subject to the kinds of scientific studies that you might use to, uh, measure the speed of light, or the speed of a particular chemical equation, uh, they are called clinical conclusions to distinguish them from perhaps legal conclusions or other kinds of logical conclusions. They are based upon clinical observations made by many, many people, many other physicians over a long period of time. The patterns are established and the textbooks, we're taught these patterns in medical school, and we're trained to recognize and search them out, and recognize them when we encounter our patients in the clinic.
Id. at 592-93. In contrast, the defendant did not present any evidence
at trial or during the motions in limine proceedings to establish that the
post-concussion syndrome diagnosis of Dr. Quillen and Dr. Blinder was not based on
reliable scientific principles.
In adopting Evidence Rule 702, this Court did not intend to interpose an unnecessarily burdensome procedure or methodology for trial courts. By requiring trial courts to be satisfied that expert opinions will assist the fact-finder and that the underlying scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony. Although it authorizes the exclusion of purported scientific evidence when the trial court finds that it is based on unreliable principles, the adoption of Rule 702 reflected an intent to liberalize, rather than to constrict, the admission of reliable scientific evidence. Before Rule 702(b), Indiana courts applied the Frye See footnote test which determined the admissibility of novel scientific evidence based upon its general acceptance in the scientific community. Hopkins v. State, 579 N.E.2d 1297, 1301-04 (Ind. 1991). Rule 702(b) is broader than the Frye test in that it permits trial courts to consider factors other than general acceptance and thus may permit expert testimony in new, innovative areas even though general acceptance may not yet have been achieved but which are otherwise found to be based on reliable scientific principles. This is analogous to the liberalizing of the Frye rule achieved by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See footnote See McGrew, 682 N.E.2d at 1291 n.4. Given that the thrust of our Rule 702(b) was to liberalize admissibility of reliable scientific evidence, it is most improbable that a generally accepted scientific principle would be too unreliable to be admitted into evidence. 13 Robert lowell Miller, Jr., Indiana Evidence §702.202 at 395 (1995).
If applied to separately evaluate every subsidiary point made during the testimony of a qualified expert regarding matters based on reliable science, Rule 702(b) can become excessively burdensome to the fair and efficient administration of justice. It directs the trial court to consider the underlying reliability of the general principles involved in the subject matter of the testimony, but it does not require the trial court to re-evaluate and micromanage each subsidiary element of an expert's testimony within the subject. Once the trial court is satisfied that the expert's testimony will assist the trier of fact and that the expert's general methodology is based on reliable scientific principles, then the accuracy, consistency, and credibility of the expert's opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact. See Hottinger v. Trugreen Corp., 665 N.E.2d 593, 598 (Ind. Ct. App. 1996).
As noted above, the admission of expert testimony challenged under Rule 702 is within the discretion of the trial court. The medical testimony was presented from clearly qualified expert witnesses as to matters that assisted the jury. The trial court did not abuse this discretion when it admitted the causation testimony of Dr. Quillen, the emergency room doctor who treated the plaintiff at the time of his injury but not in the intervening period of almost ten years to the time of trial. Nor did the court exceed its latitude when it permitted Dr. Quillen and Dr. Blinder to testify regarding post-concussion syndrome after considering and rejecting the defendant's claim that it was not based on reliable scientific principles. The medical testimony explained the basis for this diagnosis. Notwithstanding robust cross-examination and argument of defense counsel, Judge O'Connor overruled defense counsels objections. We decline to find as a matter of law that a medical diagnosis of post-concussion syndrome is scientifically unreliable. We further find that the trial court was not required to exclude Dr. Blinder's causation opinions in response to the defendant's claims that organic and physical brain damage were not directly within his area of expertise as a physician and psychiatrist. These are matters of weight and credibility and were vigorously raised for the jury's consideration, and they do not require us to find error in the admission of the evidence.
As to the defendant's claim that Dr. Blinder was not qualified to render a vocational opinion, the trial court did not err. The doctor's testimony that the severe blow to the head from the plaintiff's fall resulting in continuing dizziness and headaches and preventing him from returning to his career as high-wire performer is not a matter necessarily restricted to the province of a vocational expert knowledgeable about the requirements of circus high-wire artistry. That dizziness would substantially affect the plaintiff's capacity to perform on the high-wire is a matter of common sense, and does not require vocational expertise.
Mindful that the trial court's determination of admissibility under Rule 702 may be reversed only for abuse of discretion, we decline to find error on this issue.
The defendant also contends that the physicians' testimony regarding post-concussion syndrome should have been excluded under Ind. Evid. Rule 403 because its probative value was substantially outweighed by the danger of unfair prejudice, particularly its potential to confuse and mislead the jury. As discussed supra, we afford trial courts wide latitude in making the evaluation required under Rule 403, we presume the court's ruling to be correct, a challenger bears the burden on appeal of persuading us that the court erred in its exercise of discretion, and its ruling will be overturned only for abuse of discretion. The trial court did not abuse its discretion in admitting the evidence over the defendant's objections based on Rule 403.
Id. (citations omitted). Similarly, this Court has noted:
Our inability to actually look into the minds of the jurors is, to a large extent, the reason behind the rule that we will not reverse if the award falls within the bounds of the evidence. We cannot invade the province of the jury to decide the facts and cannot reverse unless the verdict is clearly erroneous.
Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971).
The evidence favorable to the award of damages includes the medical testimony that
the plaintiff's fall at the defendant's store caused serious and longstanding physical and
mental injuries, particularly dizziness and headaches. An exhibit was admitted listing the
plaintiff's incurred medical expenses of $10,147.13, to which there was no trial objection.
At the time of the accident, the plaintiff was a 34-year old
internationally recognized circus high-wire artist. For several years, he had worked for
the Ringling Brothers Circus. He performed for Presidents Nixon, Carter, Ford, and
Reagan. The plaintiff's principal circus agent provided various details regarding the plaintiff's
impaired earnings. The agent, a former flying trapeze artist for twenty-five years,
had extensive experience booking circus performers and had forty years experience in observing
high-wire acts. The plaintiff's act had been booked for $800 per day
in the past, and there were sufficient opportunities available for these engagements about
300 days a year. Just before the plaintiff was injured, the agent
had arranged an opportunity for him to work at Circus Circus in Las
Vegas for $2000 per week for fifty-two weeks per year. The agent
also testified regarding the expenses associated with the plaintiff's high-wire act. The
plaintiff intended to continue working his profession as a high-wire performer until in
his sixties, which was not unusual for similar performers, according to the agent.
In addition to the plaintiff's pain and suffering from the continuing symptoms
of post-concussion syndrome, his persistent dizziness and resulting fear of falling reasonably prevented
him from resuming his profession as a circus high-wire performer and had already
resulted in substantial loss of income during the almost ten years between the
accident and the trial and will continue into the future.
We find that there was evidence to support the jury's determination of damages. We decline to find that the verdict was clearly erroneous.
The judgment of the trial court is affirmed.
RUCKER, J., concurs. SULLIVAN, J., concurs except as to the section captioned Medical Testimony as to which he concurs in result. BOEHM, J., dissents with separate opinion in which SHEPARD, C.J. concurs.
Donald D. Levenhagen
Rori L. Goldman
PRODUCT LIABILITY ADVISORY COUNCIL, INC.
Chilton Davis Varner
Amy M. Power
Hugh F. Young, Jr.
Albert J. Dahm
James J. Ammeen, Jr.
ATTORNEYS FOR APPELLEE
W. Scott Montross
John F. Townsend, III
INDIANA TRIAL LAWYERS ASSOCIATION
Theodore F. Smith, Jr.