Doucette v. Doucette

Doucette v. Doucette  (97-204); 168 Vt. 626; 725 A.2d 901

[Filed 4-Nov-1998]



                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-204

                             FEBRUARY TERM, 1998


Joseph Doucette                        }       APPEALED FROM:
                                       }
                                       }
     v.                                }       Franklin Superior Court
                                       }                                 
   Lynn Doucette                       }
                                       }       DOCKET NO. S127-96Fc


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

       Plaintiff appeals in this personal injury action arising out of an
  automobile-motorcycle accident in which the jury found that defendant's
  negligent driving was not the proximate cause of  plaintiff's injury. 
  Plaintiff claims that the court erred in  admitting evidence of the
  parties' divorce proceedings and of  defendant's diagnosis and treatment
  for breast cancer because the  evidence was irrelevant, and, even if
  relevant, the probative value was substantially outweighed by the danger of
  unfair prejudice. We affirm.

       We summarize the evidence presented to the jury.  The parties were
  married and had lived together for twenty years.  At the end of January
  1993, plaintiff filed for divorce.  Defendant suspected that plaintiff was
  having an affair with her friend, Rebecca Glover, but plaintiff repeatedly
  denied in the family court proceedings that he was involved with Ms.
  Glover.  During the same period, defendant was diagnosed with breast
  cancer.  Defendant had a mastectomy in late April and then chemotherapy
  treatment going into the summer.  At the time of the accident, plaintiff
  had lost sixty pounds, much of her strength in her right side and all of
  her hair.

       On August 1, 1993, defendant saw plaintiff riding his motorcycle with
  a passenger she suspected was Rebecca Glover. Defendant followed plaintiff
  through the streets of  St. Albans. Plaintiff came to a stop at a stop
  sign, and defendant drove into the rear of plaintiff's motorcycle.  The
  parties agreed that defendant's car did not touch plaintiff or Ms. Glover,
  and the motorcycle did not fall down.

       Plaintiff claimed that defendant was driving at twenty-five miles per
  hour when she drove into him and that the motorcycle did not fall down
  because the bumper of defendant's car had ridden on top of  the rear tire
  of the motorcycle.  To explain how the bike was standing separate from the
  car when the police arrived, he maintained that a group of French Canadian
  motorcyclists drove by the scene and removed the bike from beneath the car
  bumper.  An eyewitness to the accident, who stopped at the scene and
  remained until the police arrived, testified, however, that there were no
  motorcyclists at the scene prior to the arrival of the police.

       Defendant claimed that she had slowed down to first gear, but her foot
  slipped off the brake because her legs were shaking due to her illness and
  due to the anticipated confrontation with her husband.  According to
  defendant, she just bumped into the rear of the motorcycle, causing damage
  only to the rear fender and license plate.


 

       The report of the emergency medical technician, which was made at the
  scene of the accident, indicated that plaintiff was alert, walking and had
  no complaints.  Ten minutes later, plaintiff developed back pain and became
  unresponsive.  An ambulance came and took plaintiff to the hospital, where
  x-rays showed no injury.  Although doctors recommended that he stay at the
  hospital, plaintiff left that day.  He returned the next day for further
  tests, which again showed no injury.  In October 1993, after suffering
  several weeks with a bad cough, plaintiff went to the doctor, who diagnosed
  him with pneumonia. Plaintiff also indicated to his doctor that the
  coughing had aggravated his back pain. Plaintiff was referred to a
  specialist, and x-rays taken in January 1994 showed a defect in the spine.

       Plaintiff filed suit alleging that the August 1, 1993 accident caused
  serious back injury, which plaintiff's expert witness  maintained at trial. 
  On cross-examination, however, the expert testified that plaintiff told her
  he had had no previous back problems and that she had been given no medical
  records dated prior to the accident.  Defendant then introduced numerous
  medical records indicating that plaintiff had had a long history of back
  pain prior to the accident.  This history included that plaintiff reported
  falling from a helicopter onto his back in 1964 and having trouble with his
  back off and on since then; that his doctor had imposed a weight-lifting
  restriction of twenty pounds for one week in 1977 due to lower back pain;
  that he had a series of back x-rays in 1979; that his medical records from
  a former employer indicated in 1985 that he had chronic back problems; that
  he had been to a chiropractor for back pain through the late 1980s and
  early 1990s; and, that two weeks before the accident he had been to his
  doctor complaining of persistent lower back pain radiating down into his
  legs for the previous five weeks.

       In the meantime, the parties were divorced, and as a result of the
  final divorce order, plaintiff owes defendant a substantial sum of money. 
  At trial in this action, plaintiff indicated that he had not paid
  defendant, that he was not prepared to pay her, and that she would have to
  take further legal action to collect the money he owed her.  The evidence
  further indicated that plaintiff had married Ms. Glover and lived with her
  in the home that the parties had lived in together.

       In the instant action, plaintiff moved for summary judgment, but he
  filed the response to defendant's opposition three days before  trial.  The
  court did not rule on the motion, but at the close of the evidence, granted
  plaintiff's motion for judgment as a matter of law  on the issues of duty
  and breach -- defendant was driving negligently -- but submitted the issues
  of proximate cause and damages to the jury.  See O'Connell v. Killington,
  Ltd., 164 Vt. 73, 76, 665 A.2d 39,  42 (1995) (common-law negligence
  requires legal duty owed by defendant to plaintiff, breach of duty, breach
  was proximate cause of plaintiff's harm, and plaintiff suffered actual
  harm). The jury found  that defendant's negligence did not proximately
  cause plaintiff's lower-back injury, and the court entered judgment for
  defendant.  On appeal, plaintiff maintains that the court's delay in
  granting his  motion for summary judgment prejudiced him because no
  evidence of the collision, the presence of his girlfriend, or defendant's
  medical  condition would have been admitted if the motion had been properly
  granted before trial.  We disagree.  All of the evidence concerning the
  collision was relevant to proximate cause, an issue that went to the jury;
  consequently, plaintiff's claim of prejudice is without merit.

       Prior to trial, plaintiff also filed a motion in limine to exclude
  evidence of the parties' prior relationship, except that they  were
  divorced, and of defendant's diagnosis and treatment for breast cancer. 
  The motion was denied.  The court held that the evidence of the parties'
  divorce proceedings was relevant to plaintiff's motive in bringing the suit
  and that the evidence of defendant's illness was relevant to why her foot
  slipped off the brake.  On appeal, plaintiff

 

  claims that the court erred in denying his motion in limine. Plaintiff
  claims that the evidence was irrelevant under V.R.E. 402, and even if
  relevant, the probative value was outweighed by the danger of unfair
  prejudice under V.R.E. 403.

       "The trial court has broad discretion in the admission and  exclusion
  of evidence . . . ."  Ball v. Melsur Corp., 161 Vt. 35, 42,  633 A.2d 705,
  711 (1993).  In general, all relevant evidence is admissible.  See V.R.E.
  402.  "Relevant evidence" is any evidence that tends "to make the existence
  of any fact that is of consequence to the  determination of the action more
  probable or less probable." V.R.E.  401.  The trial court has broad
  discretion in determining the relevance of any evidence.  See Haynes v.
  Golub Corp., 166 Vt. 228, 236, 692 A.2d 377, 381 (1997).  Relevant evidence
  may be excluded if its probative value is substantially outweighed by an
  unfair prejudicial effect.  See V.R.E. 403.  Again, the trial court has
  broad discretion in ruling on a V.R.E. 403 issue, and the burden of showing
  an abuse of that discretion is a heavy one.  See Quirion v. Forcier, 161
  Vt. 15, 21, 632 A.2d 365, 369 (1993).  Plaintiff has not met this heavy
  burden.

       Plaintiff characterizes this case as a personal injury action arising
  out of an automobile/motorcycle accident, claiming that none of the
  evidence of the parties' prior relationship was relevant.   We disagree. 
  The accident occurred while the parties were engaged in an acrimonious
  divorce, which is an indispensable context for understanding the issues in
  the personal injury suit.  The relevant actions and motivations of each
  party in this case are inextricably entwined with the divorce matter, and
  cannot be separated out.  The jury was called upon to reconstruct the
  events of the collision, and to make a critical determination as to the
  proximate cause of plaintiff's claimed injuries. Because much of
  plaintiff's evidence in this regard was suspect, and was contradicted by
  defendant's account,  the jury's assessment of each party's relative
  credibility assumed paramount importance.  The jury was entitled to
  consider to what extent the events of the divorce might have caused either
  party to color his or her testimony about the automobile accident and
  injury claim.  There was no abuse of discretion in holding this evidence
  relevant, and more probative than prejudicial.  See Lebrecht v. Tuli, 473 N.E.2d 1322, 1335 (Ill. Ct. App. 1985) (where domestic circumstance of
  party in personal injury action is relevant, it is admissible).

       Similarly, the evidence of defendant's recent diagnosis and  treatment
  for breast cancer was probative of defendant's explanation  for the manner
  in which the collision occurred.  Although this evidence arguably has the
  potential to appeal to the jury's  sympathies, considering all the
  circumstances in this case, we cannot conclude that its admission exceeded
  the bounds of permissible discretion.  See State v. Bruyette, 158 Vt.
  21,31, 604 A.2d 1270, (1992) (in balancing probative value against
  prejudicial effect, court looks at degree of probative value and extent to
  which jury will be aroused to hostility by evidence).  To the extent that
  plaintiff claims that the details of defendant's treatment during the
  spring and  early summer were inflammatory and should have been excluded
  under V.R.E. 403, almost all of this evidence was brought out on
  cross-examination.  Plaintiff's counsel asked in detail about the  sequence
  of testing and treatments and the adverse effects of the chemotherapy.  As
  plaintiff elicited this testimony, he cannot now object on appeal.

       Affirmed.
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       SKOGLUND, J., concurring.  I concur in the result reached by the
  majority but cannot join in the opinion.  I cannot see how the timing and
  consequences of defendant's cancer treatment is relevant in  this
  negligence action, nor can I fathom how this evidence is relevant to the
  determination of whether the accident was the proximate cause of
  plaintiff's claim of 

 

  injury.  I would conclude, however, that, in the context of the entire
  trial, the admission of this evidence was harmless error, given the serious
  credibility problems in plaintiff's case, particularly on the  issue of
  proximate cause. Plaintiff's case further disintegrated when  his expert's
  testimony was seriously undermined on cross-examination.



Concurring:                               BY THE COURT:



______________________________________    ____________________________________
Marilyn S. Skoglund, Associate Justice    Jeffrey L. Amestoy, Chief Justice

                                          _____________________________________
                                          James L. Morse, Associate Justice
                   
                                          _____________________________________
                                          Denise R. Johnson, Associate Justice
                                      
                                          _____________________________________
                                          John P. Wesley, Superior Judge
                                          Specially Assigned