Sears Roebuck and Co. v. Manuilov
| Decision Date | 23 January 2001 |
| Docket Number | No. 73S01-0002-CV-119.,73S01-0002-CV-119. |
| Citation | 742 N.E.2d 453 |
| Parties | SEARS ROEBUCK AND CO., Defendant/Appellant, Respondent to Transfer, v. Milan MANUILOV, Plaintiff/Appellee, Petitioner on Transfer. |
| Court | Indiana Supreme Court |
Donald D. Levenhagen, Hill Fulwider McDowell Funk & Matthews, Indianapolis, Indiana, Attorneys for Appellant.
W. Scott Montross, John F. Townsend, III, Townsend & Montross, Indianapolis, Indiana, Attorneys for Appellee.
Ind. Trial Lawyers Assoc., Theodore F. Smith Jr., Anderson, Indiana, Product Liability Advisory Council, Inc., Chilton Davis Varner, Amy M. Power, King & Spalding, Atlanta, Georgia; Hugh F. Young, Jr., Reston, Virginia; Albert J. Dahm, James J. Ammeen, Jr., Baker & Daniels, Indianapolis, Indiana, Amicus Curiae. On Petition to Transfer
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 defendant's 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.
The defendant first contends that the trial court improperly excluded evidence of the plaintiff's prior domestic violence, criminal history, and untruthfulness. Specifically, the defendant argues that the trial court erroneously precluded it from calling the plaintiff and his girlfriend to testify on these matters.
The portion of the record submitted on appeal indicates that, at the conclusion of the plaintiff's case-in-chief but before the defendant began presentation of its evidence, the trial court conducted a conference with counsel outside the presence of the jury. Asserting that defense counsel, contrary to alleged representations the prior day, intended to call the plaintiff and his friend, Helen Kurihara, as witnesses, the plaintiff's counsel requested an in-camera session to determine what the defense intends to ask "because it may be extremely prejudicial in front of this jury." Record at 761. Counsel for the plaintiff expressed concern about the potential for a mistrial.1 The defense responded that it would not reveal the intended questions and asserted that the plaintiff was not entitled to an order in limine to pre-screen its questions. The trial court, after instructing the plaintiff and a lady seated in the back of the courtroom to leave the courtroom, invited further explanations from counsel.
The defendant's counsel noted that Dr. Martin Blinder, a psychiatrist who had testified regarding the plaintiff's post-concussion syndrome, had testified that the plaintiff was not a malingerer based in part upon information provided by the plaintiff. Defense counsel observed that Dr. Blinder noted that there were about thirty different possible factors and argued that the plaintiff failed to disclose to his doctor "one of these factors that go to the malingering opinion." Id. at 765-66. When directed by the trial court to identify the factor, defense counsel at first refused to comply except to name three possibilities: the plaintiff's work record, his school discipline record, and his doing "unsavory" things.2 After further encouragement from Judge O'Connor, defense counsel handed the judge, but not opposing counsel, a fax document that defense counsel said he received the previous night and which purportedly identified the matter sought to be raised by the defense.
Plaintiff's counsel responded that, from the attendant secrecy and surrounding circumstances, the nature of the inquiry is likely to be an evidentiary harpoon that should be disclosed and subjected to any objections for resolution out of the presence of the jury. The court stated:
I guess maybe you better first make an offer to prove. That's the only way that I know to go about it because the nature of the evidence is such that ... it could certainly be highly prejudicial and inflammatory and that might, in and of itself, outweigh any benefit to the jury to determine any of the issues....
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 plaintiff's 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.
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 Statute does not apply...
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