Blakely v. Bates

• Decision Date: 15 October 1986
• Docket Number: No. 85-1317,85-1317
• Citation: 394 N.W.2d 320
• Parties: Thomas BLAKELY, Appellee, v. Mark L. BATES, General Leasing, and Dannon Milk Products Company, Appellants.
• Court: Iowa Supreme Court

Page 320

394 N.W.2d 320

Thomas BLAKELY, Appellee, v. Mark L. BATES, General Leasing, and Dannon Milk Products Company, Appellants.

No. 85-1317.

Supreme Court of Iowa.

Oct. 15, 1986.

Steven K. Warbasse of White & Warbasse, P.C., Cedar Rapids, for appellants.

J. Nicholas Russo, R.N. Russo, Jerald W. Kinnamon, and Jon M. Kinnamon of Kinnamon, Kinnamon, Russo & Meyer, Iowa City, for appellee.

Considered en banc.

WOLLE, Justice.

Defendants Mark L. Bates, General Leasing (General), and Dannon Milk Products Company (Dannon) appeal from an adverse judgment in a personal injury case, contending that the trial court erroneously permitted the plaintiff Thomas Blakely on rebuttal to buttress his credibility with evidence of truthful character. Two rebuttal witnesses were allowed to testify concerning plaintiff's good reputation for truthfulness. Defendants contend that their timely two-pronged objection should have been sustained and the testimony excluded because (1) the plaintiff's character had not been attacked in such a manner as to permit rehabilitation pursuant to Iowa Rule of Evidence 608(a)(2), and (2) the testimony was beyond the scope of permissible rebuttal. We find no abuse of the trial court's discretion in permitting that testimony, and we therefore affirm.

The plaintiff commenced this personal injury action as a result of a 1984 collision between the car he was driving and a truck driven by Bates, owned by General, and leased by Dannon. Defendants admitted liability, and throughout the trial the jury's attention was focused solely on damages. Evidence was presented concerning the nature, cause, and extent of the plaintiff's injuries, with the defendants vigorously contending that preexisting conditions, not the car-truck collision, were to a great extent the cause of the plaintiff's pain, disability, and other injury-related complaints. With the battle lines sharply drawn on the cause of plaintiff's difficulties, defendants used several methods during the trial to discredit plaintiff's damage claim.

Defendants' first salvo was fired during opening statements, when their counsel told the jury

[t]hat Thomas L. Blakely, the plaintiff, was aware of the fact that Dannon Yogurt Corporation was a big corporation and that Blakely was going after the same and that when he went to Dr. Gelman, the doctor told him what Blakely didn't want to hear, and thereafter Blakely went to [his trial counsel] who steered him to Dr. Van Allen so that plaintiff would get a big verdict.

After plaintiff was examined as a witness on his own behalf, defendants' counsel undertook in several ways to impeach his testimony. It was undisputed that plaintiff before the car-truck collision had been hospitalized and received some treatment for a back condition from Dr. Gelman, an orthopedic specialist, but on direct examination plaintiff answered "no" to the question, "[D]id you ever go and seek medical help for your lower back because you couldn't work?" On cross-examination, defense counsel questioned plaintiff about hospital records from 1969 in which plaintiff reported having intermittent back pains for some ten years which had "been worse lately." Those 1969 records also contained a notation that "in the last month [plaintiff] has been only able to work three or four days."

Plaintiff in his direct examination testified that he had tried but was unable to do heavy work in the fall of 1984 after the collision. Defense counsel attacked the credibility of that testimony as well, pointing out that in deposition testimony given in October of 1984 plaintiff testified he was "not really sure" whether his pain prevented him from working since he had not engaged in much activity at that time.

Defense counsel completed cross-examination of plaintiff by exploring in detail the circumstances concerning a 1981 rear-end automobile accident which caused him low back problems and other injuries which plaintiff said had subsided before the car-truck collision. Defense counsel insinuated that plaintiff's alleged recovery from the preexisting injuries was in part attributable to his settlement of the claim arising from that earlier automobile accident.

Clearly the most vigorous attempt to discredit plaintiff's credibility occurred during the presentation of defendants' evidence when the plaintiff's own medical doctor, Dr. Gelman, testified that he had examined the plaintiff after the car-truck collision and concluded he was "not seriously injured." Gelman explained the difference between subjective findings and objective findings, then explained in detail the various tests he used to determine if there were any objective basis for the plaintiff's complaints, characterized by Gelman as including "moans and groans during the entire examination." Gelman then highlighted one test he performed on the plaintiff which caused him to conclude that the plaintiff's subjective complaint of pain was "totally illogical." When the doctor had pressed on a spot in the middle of the back, the plaintiff complained of leg and arm pains even though, as Gelman explained,

the nerves from that area go from that area, they go around the chest. They don't go up to the arm or down the leg.

Rather apologetically Dr. Gelman told the jury why it was his "responsibility as a physician" to test the validity of symptomatic complaints.

I have to use my--I have to use every ploy, every trick, every bit of experience and every bit of knowledge I have, I want to find out what he needs as a person with a problem. I have to prove to myself he has a serious problem or he doesn't have a serious problem because if he has a serious problem and I don't treat him properly, I feel responsible, okay.

In the balance of his testimony Gelman belittled the plaintiff's subjective complaints and told the jury "that the patient is in my opinion not seriously injured."

The plaintiff had before trial identified the two persons he planned to call as character witnesses concerning his reputation in the community for truth and veracity. The plaintiff did not call those witnesses as part of his case in chief but instead called them in rebuttal after defendants had presented the caustic Gelman testimony. The trial court overruled defendants' objection to that character testimony, relying on Iowa Rule of Evidence 608(a)(2) and holding:

It is clear that the actions of defendants' counsel did not specifically place the plaintiff's character in issue such as by calling witnesses to testify to the plaintiff's bad character for truth and veracity. I conclude, however, that the combined impact of the various statements counsel made and questions asked on cross-examination of the plaintiff and on direct examination of Dr. Gelman were sufficient to place the plaintiff's character in issue.

We first address defendants' contention that the character testimony was not admissible under rule 608(a)(2), then the contention that the testimony was beyond the scope of permissible rebuttal.

I. Iowa Rule of Evidence 608(a), which mirrors the federal rule of the same number, provides:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

The sharp question this case presents is whether the methods defendants used to discredit plaintiff's testimony constituted an attack on his character for truthfulness within the ambit of the rule's concluding words "or otherwise," opening the door for evidence of truthful character.

The language of this federal, and Iowa, rule of evidence was shaped by a much-debated controversy concerning just what types of impeachment should justify use of supportive character evidence. We listed in State v. Peterson, 219 N.W.2d 665, 671 (Iowa 1974), the five generally-recognized methods for calling into question the veracity of a witness: (1) inconsistent statements by the witness; (2) bias; (3) bad character; (4) defective capacity to observe, remember or recount; and (5) proof of material facts at variance with the witness's testimony. Cases and commentators have traditionally agreed that impeachment by the third method may be answered with rehabilitative character testimony, while impeachment by the second and fourth methods may not; but they have disagreed concerning the first and fifth methods. See generally, E. Cleary, McCormick's Handbook of the Law of Evidence § 49 (2d ed. 1972) (hereafter McCormick); 3 J. Weinstein & M. Berger, Weinstein's Evidence p 608 (1985) (hereafter Weinstein); 4 J. Wigmore, Evidence §§ 1104-10 (Chadbourn rev. 1972).

Wigmore expressed the view that a witness's self-contradictory statements, and contradiction of the witness's testimony by other witnesses, were impeachment methods too remote from attacks on the witness's character to justify supportive character testimony. Id. §§ 1108-09, at 240-44. This view was reflected in three early decisions of this court holding inadmissible supportive character testimony offered to rehabilitate witnesses impeached by their own contradictory statements. See State v. Hoffman, 134 Iowa 587, 592-93, 112 N.W. 103, 104-05 (1907) (upholding trial court's refusal to allow supportive character testimony); State v. Owens, 109 Iowa 1, 3, 79 N.W. 462, 463 (1899) (insinuation of witness's untruthfulness in cross-examiner's questioning did not warrant supportive character testimony); State v. Archer, 73 Iowa 320, 323-25, 35 N.W. 241, 243 (1887) (upholding exclusion of supportive character evidence offered to rehabilitate witness who made contradictory statements). In Hoffman we cited Wigmore's treatise and used his rationale that general reputation for truthfulness "is too remote to be...