Everett v. Town of Bristol

Everett v. Town of Bristol  (93-620); 164 Vt 638; 674 A.2d 1275

[Filed 30-Jan-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 93-620

                             JANUARY TERM, 1995



Constance Everett and                }     APPEALED FROM:
Robert Everett                       }
                                     }
     v.                              }     Chittenden Superior Court
                                     }
Town of Bristol                      }
                                     }     DOCKET NO. S0793-89C


  In the above-entitled cause, the Clerk will enter:

       Plaintiff Constance Everett (FN1) appeals from a jury verdict in favor of
  defendant Town of Bristol, claiming the trial court erred by admitting
  highly inflammatory and unfairly prejudicial evidence as the basis for
  defendant's psychiatric expert's opinion, and allowing cross-examination
  of plaintiff regarding irrelevant and unfairly prejudicial personal history
  to attack plaintiff's character and credibility.(FN2)  We agree and reverse.

       In September 1986, plaintiff fell when she was descending the front
  steps of the Bristol Town Hall.  She filed a complaint in Chittenden
  Superior Court in June 1989, alleging that the town negligently maintained
  the steps, which caused her to fall, resulting in injury to her ankle.
  Defendant maintained that plaintiff's fall was not caused by any defect in
  the steps, and that plaintiff's injuries were not caused by the fall on the
  town hall steps.  A jury returned a verdict for defendant, and plaintiff
  appeals.

       Plaintiff raises several challenges to the testimony of defendant's
  psychiatric expert, Dr. Richard Bernstein.  Dr. Bernstein testified that,
  in his opinion, plaintiff suffers from somatoform pain disorder, which
  preexisted her fall on the town hall steps, and is the cause of her present
  ankle pain.  As a basis for his opinion, Dr. Bernstein gave a history of
  plaintiff's life.  He told the jury that plaintiff had a terrible
  relationship with her father, who was an alcoholic; that she was raped when
  she was a teenager; that there were allegations of a lesbian relationship
  with a commanding officer while she was in the army; that she was
  discharged from the Army because she was unsuitable; that she married a man
  in Italy who broke her jaw, causing a miscarriage; that the man followed
  her back to the United States and killed her mother; that her second
  husband was a "swinger and a bisexual," who liberally prescribed drugs for
  her to which she became addicted; that her second husband ran off with her
  best friend; and that she is now married for the third time.

  

       Dr. Bernstein also relied on plaintiff's psychiatric history, and gave
  a detailed description of her psychiatric records, including the records of
  two hospitalizations.  He also detailed plaintiff's medical history. 
  Finally, Dr. Bernstein explained how the detailed history that he provided
  substantiated his diagnosis.

       Plaintiff first argues that the trial court erred in allowing the
  psychiatric expert to testify because he could not testify to a reasonable
  degree of medical certainty that plaintiff's injury was not caused by the
  fall on the town steps.  She maintains that the expert's testimony could
  not, therefore, assist the trier of fact in understanding the evidence or
  determining a fact in issue. See V.R.E. 702.  "[E]xpert testimony must meet
  a standard of `reasonable probability' or a `reasonable degree of medical
  certainty.'"  Jackson v. True Temper Corp., 151 Vt. 592, 596, 563 A.2d 621,
  623 (1989) (quoting Campbell v. Heinrich Savelberg, Inc. 139 Vt. 31, 34,
  421 A.2d 1291, 1293 (1980)).  Thus, speculative expert testimony is
  irrelevant and is not admissible. Turgeon v. Schneider, 150 Vt. 268, 275,
  553 A.2d 548, 552 (1988).

       Although some of Dr. Bernstein's testimony was speculative, we
  disagree with plaintiff that he was uncertain regarding the cause of her
  current ankle pain.  In his opinion, plaintiff's pain was not caused by the
  fall on the steps; rather, the fall created the opportunity for her to
  express her anger and sadness through her body.  We agree with plaintiff
  that on cross-examination, Dr. Bernstein's testimony on causation was
  inconsistent; however, weaknesses in the expert's opinion brought out on
  cross-examination properly go to the weight the jury may accord the
  testimony, not its admissibility.  See Jackson, 151 Vt. at 596, 563 A.2d  at
  552.

       The main issue in this case is whether the trial court abused its
  discretion by admitting otherwise inadmissible evidence as the basis of the
  expert's opinion.  Initially, plaintiff argues that defendant's expert
  should not have been permitted to testify on direct examination about the
  basis for his opinions.  We have previously ruled, like the majority of
  courts, that basis testimony is admissible on direct examination, subject
  to a limiting instruction.  See State v. Recor, 150 Vt. 40, 48-49,
  549 A.2d 1382, 1388 (1988); see also Fox v. McLain, 142 Vt. 11, 14, 451 A.2d 1122, 1123 (1982) (underlying data may be developed after opinion is
  expressed on direct, cross, or redirect examination).  This rule does not
  mean that all basis testimony is admissible, however.  V.R.E. 703 is not a
  "backdoor" to circumvent the restrictions of other rules of evidence. 
  Recor, 150 Vt. at 48, 549 A.2d  at 1388.  Basis testimony must first meet
  the two-prong test under V.R.E. 703: (1) the expert must have relied on
  the facts or data in forming the opinion, and (2) the facts or data must be
  of a type reasonably relied upon by experts in the particular field.  Id. 
  Moreover, basis testimony that meets the V.R.E. 703 test is still subject
  to V.R.E. 402 relevance challenges and V.R.E. 403 balancing of probative
  value versus unfair prejudice.  See State v. Goodrich, 151 Vt. 367, 376-77,
  564 A.2d 1346, 1351-52 (1989) (basis testimony subject to V.R.E. 402 and 403).

       In this case, the trial court abused its discretion under V.R.E. 403
  by admitting highly inflammatory personal history as basis testimony.  We
  note -- Dr. Bernstein's testimony regarding plaintiff's marital and sexual
  history -- because this is a perfect example of abuse of V.R.E. 703 to
  present unfairly prejudicial and otherwise inadmissible evidence as basis
  testimony.  Dr. Bernstein testified that plaintiff allegedly had a lesbian
  relationship with a commanding officer while in the army and that
  plaintiff's second husband was a "swinger and a bisexual."  Any probative
  value to the central issues in this case is clearly outweighed by the
  danger of unfair prejudice to plaintiff.  See V.R.E. 403; Mission Ins. Co.
  v. Wallace Sec. Agency, 734 P.2d 405, 408 (Or. Ct. App. 1987) (excluding
  psychiatrist's testimony regarding sexual preference and drinking habits of
  security guard was not error; any possible relevance to plaintiff's claim
  that defendant was negligent in hiring and training its security guards was

  

       outweighed by chance of undue prejudice and potentially misleading
  introduction of collateral matters); cf. Arroyo v. City of New York, 567 N.Y.2d 257, 259-60 (N.Y. App. Div. 1991) (trial court erred in admitting
  plaintiff's medical and psychiatric history, which was highly prejudicial
  and irrelevant to plaintiff's claim for personal injuries resulting from
  fall in hole in or near sidewalk, where defendant did not dispute defective
  condition of area).
  
       Despite the personal nature of the evidence and the slight probative
  value to the tort claim, the court failed to exclude the evidence.  Indeed,
  the court did not exclude any of the highly inflammatory history recited by
  the expert that should have raised concerns under V.R.E. 403.  Cf. People
  v. Coleman, 695 P.2d 189, 204 (Cal. 1985) (reversing trial court because it
  allowed expert to testify on direct examination to details of inflammatory
  letters of deceased victim although small part of basis of psychiatric
  expert's opinion).  Not surprisingly, we have found no case to support the
  wholesale admission of plaintiff's personal history as the basis for a
  psychiatric diagnosis. "Rule 703 does not compel the admission of any
  evidence desired by a litigant simply because that otherwise inadmissible
  evidence can be fashioned by one expert witness into something he states he
  relied upon in reaching his opinion."  Emigh v. Consolidated Rail Corp.,
  710 F. Supp. 608, 613 (W.D. Pa. 1989).

       Defendant maintains that any error in the admission of psychiatric
  testimony was harmless because Dr. Bernstein's opinion was relevant only to
  the issue of damages and the jury never reached this issue.  We disagree. 
  Dr. Bernstein testified regarding the cause of plaintiff's injury. 
  Moreover, defendant argued before the trial court that Dr. Bernstein's
  basis testimony was relevant to assessing plaintiff's credibility, and
  then, in closing argument, defense counsel stated that "the central issue
  in this case [is] credibility, credibility, credibility."  Thus, the
  intended purpose of the basis testimony was, in part, to undermine
  plaintiff's credibility by putting in evidence a highly inflammatory
  personal history that was unfairly prejudicial.  Such error is not
  harmless.

       Next, plaintiff argues that the trial court erred in allowing
  cross-examination of plaintiff regarding facts that served as the basis of
  Dr. Bernstein's opinion, specifically about receiving disability benefits
  from the Veterans Administration for pelvic inflammatory disease. 
  Defendant maintains that it was entitled to show through plaintiff's
  admissions that the basis for the opinions was in fact true.  We disagree. 
  Plaintiff never challenged the accuracy of Dr. Bernstein's basis testimony
  and these facts were not otherwise admissible.  We reject defendant's
  bootstrap argument that it is entitled to prove the facts that form the
  basis for its expert's opinion, regardless of whether this evidence is
  otherwise relevant.  Indeed, defendant cites no authority to support this
  novel theory of admissibility.

       The trial court held that cross-examination of plaintiff was relevant
  to plaintiff's credibility, the central issue in this case.  We also reject
  this rationale; the evidence was not admissible to test plaintiff's
  credibility because none of the facts was indicative of truthfulness or
  lack of truthfulness.  Benefits received for unrelated disabilities almost
  thirty years ago are irrelevant to the claim in this case, except insofar
  as the trial court may in its discretion allow the expert to testify to
  such evidence to support his psychiatric diagnosis.

  

       Reversed and remanded.

     BY THE COURT:



     _______________________________________
     Frederic W. Allen, Chief Justice

     _______________________________________
     Ernest W. Gibson III, Associate Justice

     ---------------------------------------
     John A. Dooley, Associate Justice

     _______________________________________
     James L. Morse, Associate Justice

     _______________________________________
     Denise R. Johnson, Associate Justice




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                                  Footnotes


FN1.  Plaintiff Robert Everett, husband of Constance Everett, is also
  a appealing in this case.

FN2.  Plaintiff also argues that the court erred by (1) failing to
  excuse for cause a juror whose parents lived and owned property in the Town
  of Bristol, and (2) allowing defense counsel to imply that defendant town
  did not have insurance.  We do not reach these issues because we reverse on
  other grounds.