Dente v. Riddell, Inc.

• Decision Date: 25 September 1981
• Docket Number: No. 80-1591,80-1591
• Citation: 664 F.2d 1
• Parties: 9 Fed. R. Evid. Serv. 599 Francis J. DENTE, Plaintiff, Appellant, v. RIDDELL, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

664 F.2d 1

9 Fed. R. Evid. Serv. 599

Francis J. DENTE, Plaintiff, Appellant, v. RIDDELL, INC., Defendant, Appellee.

No. 80-1591.

United States Court of Appeals First Circuit.

Argued May 4, 1981.

Decided Sept. 25, 1981.

William E. Searson, III, Boston, Mass., with whom James P. McCarthy, and McCarthy & Sheehan, Boston, Mass., were on brief, for plaintiff, appellant.

Phillip M. Davis, Boston, Mass., with whom Elizabeth A. Sharawara and Morrison, Mahoney & Miller, Boston, Mass., were on brief, for defendant, appellee.

Before COFFIN, Chief Judge, GIBSON, ^* Senior Circuit Judge, and CAMPBELL, Circuit Judge.

LEVIN H. CAMPBELL, Circuit Judge.

On October 25, 1975, Francis Dente was injured during a college football game while wearing a football helmet manufactured by Riddell, Inc. Two years later Dente sued Riddell for negligence and breach of warranty, alleging that defects in the helmet had caused him to sustain permanent brain damage. In a special verdict delivered after 13 days of trial and nearly two days of deliberation, the jury found that the helmet was defectively designed that Riddell failed to warn Dente adequately of a latent danger in the use of the helmet; that Riddell had violated an implied warranty of merchantability; and that Dente was not contributorily negligent. However, the jury also found that Riddell's conduct had not caused the plaintiff damage. Judgment was therefore entered for Riddell. His motion for a new trial having been denied, Dente appeals.

Dente contends that the district court committed reversible error when, on the eighth day of trial, it allowed into evidence certain portions of Dente's medical records previously excluded. We hold that the court's ruling was not an abuse of its discretion under Federal Rule of Evidence 403, and does not constitute cause for reversal.

The genesis of the challenged ruling is complicated. At trial, Dente testified that since October 25, 1975, the date of his football injury, he has suffered from headaches, dizziness, impaired balance and perception, a drooping eyelid, ringing in his ears and loss of weight. Several witnesses, among them Dente's mother and girlfriend, testified to a dramatic change in Dente's personality after his injury: formerly easygoing, personable, talkative, athletic and socially active, he purportedly became constantly fatigued, sleepy, irritable and unable to concentrate. He gave up athletics and, no longer able to keep up with his friends, became socially inactive. A medical expert testified that Dente's symptoms were the result of a permanent brain stem lesion sustained in the football game. Riddell presented a different picture. Dente's school and work records were said to show that he had remained active and had done well. Riddell's medical experts testified that the mishap on October 25, 1975 had caused Dente no permanent damage and that his symptoms were attributable to past ear infections and present psychological problems.

On the second day of trial, Dente put in evidence "Plaintiff's Exhibit Number 9," a file folder bearing the name "Francis Dente" and containing approximately 80 pages of medical records. Among the records was a set of lengthy handwritten notes taken during an examination at Massachusetts General Hospital on November 4, 1976-a little more than a year after Dente allegedly sustained a permanent brain injury. The notes included the following statements:

# 4 Penile Discharge

Pt. has few drops of clear fluid from penis intermittently thru day. c Blood on one occasion. * * * Pt has intercourse a twice a week with a 10 partners in the last year. o prostitutes. STS-8/75. o known contact c ge. Pt. concerned about VD.

Soc. hx: The pt grew up in E. Boston where he played for the E. Boston high school football team. Attended Wentworth Institute, now at Boston State in 3rd year where he is majoring in math & psych. Wants to be a teacher. Also has a sinecure c Boston recreation dep't which essentially consists of coaching E. Boston HS football team informally. Pt lives at home.

Pt concerned because last he was involved in gambling & other illicit activities. Now getting out of that scene, but still has few loose ends.

Habits meds: see P # 2-

also used anabolic steroids & amphetamines in sports last year-o cigarettes:

* * * said to get quite drunk at least once a week. 10 shots. Now will get drunk every few weeks-few drinks in evening 2-3 nights/week.

The above-quoted material was not brought to the district court's attention until the fourth day of trial when, apparently at Dente's request, the court ordered that the references to sexual intercourse, gambling and other illicit activities be deleted from the records. ¹ The court grounded its ruling on Federal Rule of Evidence 403, which 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, waste of time, or needless presentation of cumulative evidence. ²

Riddell objected on several grounds. ³ It represented to the court that its medical witnesses had relied on the excluded portions of Dente's medical records in diagnosing the nature and cause of his symptoms. Second, it argued that the evidence provided an alternative explanation for Dente's alleged sleepiness, fatigue and loss of concentration. Third, the defendant felt that evidence of Dente's sexual and other activity directly contradicted, or at least affected the credibility of, several witnesses' testimony about the decline in Dente's social activity. Finally, Riddell described the excluded evidence as "vital" to the issue of damages.

The district court initially indicated that it was unpersuaded by Riddell's arguments. It saw the excluded evidence as having little relevance. The court expressed the view that the meaning of "social activity" was too distinct from the meaning of "sexual activity" to permit the inference that because Dente had intercourse with some frequency he also, contrary to his claims, enjoyed an active social life. Dente's sexual activities as such were not in issue, nor was there evidence, for comparative purposes, of how sexually active he had been before the injury. To rebut testimony about Dente's alleged personality change, the court felt that Riddell could introduce Dente's school and work records as well as testimony of teachers, professors, fellow employees, teammates and neighbors. Under these circumstances, the court concluded that the danger of unfair prejudice "substantially outweighed" the probative value of the evidence and ordered it excluded.

On the eighth day of trial, however, the court reversed itself and ruled that the references in Dente's medical records to sex, gambling and illicit activities could be introduced into evidence. The court's ruling came while Dente's attorney was cross-examining one of defendant's expert witnesses, Dr. Ommaya. Probing the basis for Dr. Ommaya's opinion that Dente did not suffer from a brain injury, plaintiff asked whether testimony by Dente and his mother about Dente's condition was "significant." The plaintiff then asked,

Q What about the way he-his social life changed after October of '75 before he went to Brigham? Would that be significant?

A I have no evidence of any social activities.

Q Did you check into that?

A I was told not to.

Q And you didn't?

A I was told that.

Q Who told you not to?

A Mr. Davis (counsel for Riddell) said that the Judge had ruled--

MR. DAVIS: Excuse Me.

THE COURT: With respect to that one item?

THE WITNESS: As to the social activity.

THE COURT: That is what you call social activity?

THE WITNESS: Covering that, yes.

THE COURT: Does that cover all aspects of social activity as far as you are concerned?

THE WITNESS: Yes.

THE COURT: That is the only social activity you know of?

THE WITNESS: The only social activity I was told that is in the record.

THE COURT: Other than that activity, is there any activity?

THE WITNESS: I am not aware of any.

Q And Doctor--

THE COURT: Do you want to put it in?

MR. DAVIS: Pardon me?

THE COURT: Do you want to put that in? Are you rising to object? Do you want me to change my ruling and allow that into evidence, put it in?

MR. DAVIS: Not at this point. As part of my case and when I choose to.

THE COURT: I say you may put it in. Go ahead.

The court explained its reversal in a bench conference the next morning:

Now my understanding of the situation was that Dr. Ommaya injected into the case what it is that I wanted excluded from the case by saying that I had ordered excluded. Now there will be a couple of other reasons to that material but I asked you. "Will the defendant inject it at all?" And I began to feel that perhaps the effort to proscribe this material might in a way be more prejudicial than the actual evidence itself. I mean, after a while, people start to wonder what the heck it is that is being kept out, so for that reason, because the doctor injected the fact that the evidence had been weeded out by me, I felt-but I don't feel that he did it with malice or with any intent to violate my order. If I did, he would still be here but accept the fact that it was answered inadvertently. Now, I am going to leave it up to you. It's a matter of trial tactics. You want to use it, go ahead. The jury may be impressed by it one way, the jury may be impressed another way.

The court ultimately allowed Dente's entire medical record, including the references to sexual intercourse, gambling and other illicit activities, to go to the jury during its deliberations.

On appeal, Dente argues that the district court's rationale for admitting this evidence-"the effort to proscribe this material might in a way be more prejudicial than the actual evidence itself"-contravenes Federal Rule of Evidence 403, which requires a court passing upon the admissibility of...