Exclusion of Defense Expert Reversible Error in Civil Battery Case

Where the probative value of an expert witness’s testimony outweighed the risk that such testimony would confuse the jury, the expert testimony should have been allowed and the jury verdict was vacated.

In Ellis v. Modi, No. M2019-01161-COA-R3-CV (Tenn. Ct. App. May 11, 2020), plaintiff filed a complaint for assault, battery and intentional infliction of emotional distress related to an alleged sexual assault committed by defendant. According to plaintiff, she was working as a caregiver in defendant’s home. Defendant needed in-home care after sustaining injuries in a car accident and receiving a diagnosis of stage four lymphoma. While plaintiff was in defendant’s home, she alleged that he sexually assaulted her for approximately three hours.

After a jury trial, the jury awarded plaintiff $7,600,000 in compensatory damages and $2,000,000 in punitive damages. The trial court modified the award to $4,000,000 in compensatory and $2,000,000 in punitive damages because the “verdict had exceeded the amount sought in the ad damnum.” The trial court denied defendant’s motion for a new trial, however, and this appeal followed, with the Court of Appeals eventually deciding to vacate the jury verdict and remand for a new trial.

This appeal involved several evidence issues, all of which the Court of Appeals decided in defendant’s favor. The primary issue was the trial court’s exclusion of defendant’s expert witness, Dr. Price. Dr. Price was a psychologist, and defendant planned to use his testimony “in order to counter [plaintiff’s] assertions that she had PTSD as a result of the alleged assault.” The trial court acknowledged that Dr. Price “had some good opinions,” “was a very bright individual,” and that he was “qualified…to give opinions without a doubt,” but ultimately excluded his testimony out of concern that it would confuse the jury because the court would need to explain why plaintiff’s counsel had been allowed to refuse Dr. Price’s request for an in-person examination of plaintiff. Further, the trial court stated that it was concerned that Dr. Price “would not be able to provide testimony to a reasonable degree of certainty.” The Court of Appeals rejected both of these bases for exclusion.

The Court explained that a balancing process must be used when considering whether to allow evidence under Tenn. R. Evid. 403, but noted that “a trial court should not exclude evidence under Tenn. R. Evid. 403 when the balance between the probative worth of the evidence and the countervailing factors is fairly debatable.” (internal citation omitted). “[E]xcluding relevant evidence…is an extraordinary remedy that should be used sparingly[.]” (internal citation omitted).

Regarding the trial court’s reasons for excluding Dr. Price, the Court first called the trial court’s “understanding of the record…clearly erroneous.” The Court pointed out that Dr. Price specifically responded in the affirmative when asked “whether he had made a diagnosis to a reasonable degree of scientific certainty.”

As to the potential for jury confusion, the Court of Appeals ruled that the trial court erred in attaching so much weight to the possibility that the jury would be confused by an instruction explaining why plaintiff’s counsel could refuse to have Dr. Price examine plaintiff under the circumstances of this case. The Court reasoned:

Here, Dr. Price’s proposed testimony was highly probative of whether [plaintiff] suffered PTSD as a result of the alleged attack on her and would have included, among other things, a critique of the methodology of [plaintiff’s] expert. …[T]o the extent that any confusion might somehow attach to an instruction offered by the trial court about why [plaintiff] was permitted to refuse an examination by Dr. Price, we must again stress that exclusion under Rule 403 is an extraordinary remedy. In balancing the probative value of Dr. Price’s proposed testimony with the risk of potential jury confusion, we fail to see how the question is even a close one. …Yet, even assuming that these competing considerations were more on par with one another, we note that ‘a trial court should not exclude evidence under Tenn. R. Evid. 403 when the balance between the probative worth of the evidence and the countervailing factors is fairly debatable.’

(internal citations omitted) (emphasis added). The Court thus ruled that Dr. Price’s testimony should have been allowed.

In addition, the Court of Appeals held that two other evidentiary rulings were wrongly decided in plaintiff’s favor. The Court agreed with defendant that the testimony of a previous caregiver who stated that while she was applying lotion to defendant’s legs and feet he asked her to also apply it to his groin area should have been excluded. The Court ruled that this “testimony was improperly utilized for propensity evidence” and should have been excluded under Rule 404(b).

The trial court also allowed plaintiff to introduce evidence that defendant was diagnosed with herpes in 2009 and had a penile implant in 2001, as plaintiff alleged that this evidence was “relevant to contradict [defendant’s] alleged portrayal of himself as a non-sexual person.” The Court of Appeals ruled that the evidence was “clearly remote to counteracting any portrayal of [defendant] has a non-sexual person in 2015 during the wake of his recovery from his car wreck and lymphoma diagnosis, and in our opinion, unnecessarily casts a risk of unfair prejudice or confusion of the pivotal issue before the trier of fact.” The Court ruled that “any marginal relevance” this evidence offered was “clearly substantially outweighed…by the countervailing considerations in Rule 403.”

After considering all the evidentiary issues, the Court ruled that “exclusion of Dr. Price more likely than not influenced the jury’s verdict,” as due to his exclusion plaintiff’s claims of PTSD went uncontradicted. The Court of Appeals accordingly vacated the jury verdict and remanded for a new trial.

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