B. A. v. Webb
253 Or. App. 1
Or. Ct. App.2012Background
- Plaintiff, age 24 in 2008, sues defendant alleging abuse when she was 11–14; defendant formerly married to plaintiff’s mother during the acts.
- Plaintiff alleged defendant dressed in women’s clothing and restrained her, sometimes while wearing nylons, with implied sexualized behavior.
- Plaintiff claimed defendant encouraged nylons, rubbed legs, and engaged in a rocking motion while restrained.
- No physical evidence or eyewitnesses substantiated the abuse; defendant denied all allegations.
- Trial court admitted in limine and then allowed two expert witnesses to testify on plaintiff’s credibility and diagnoses.
- Jury awarded economic and noneconomic damages plus punitive damages; trial court entered judgment against defendant; Southard decision issued after trial in the opinion’s timeline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by allowing expert credibility vouching | Hill/Steinhauser credibly opined plaintiff truthful, tainting jury | Vouching testimony usurps jury’s credibility | Plain error; trial court reversal and remand |
| Whether admission of expert diagnoses without physical findings was plain error | Diagnoses supported by evaluation and history | Diagnoses improper without corroborating physical evidence | Plain error; reversal and remand |
Key Cases Cited
- State v. Middleton, 294 Or 427 (1983) (witness may not opine on another’s credibility)
- State v. Milbradt, 305 Or 621 (1988) (no psychotherapist may render credibility judgments)
- State v. McQuisten, 97 Or App 517 (1989) (trial court must not admit credibility comments by experts)
- State v. Hollywood, 250 Or App 675 (2012) (vouching testimony in absence of physical evidence central to case)
- State v. Lupoli, 348 Or 346 (2010) (diagnosis of sexual abuse based on belief, not corroborated)
- State v. Southard, 347 Or 127 (2009) (OEC 403 diagnosis with minimal probative value prejudicial)
- State v. Codon, 247 Or App 756 (2012) (plain error admitting medical diagnosis of sexual abuse without support)
- State v. Feller, 247 Or App 416 (2011) (reaffirm plain-error approach to admissibility of trauma diagnoses)
- State v. Remme, 173 Or App 546 (2001) (harmful impact of expert credibility testimony)
- State v. Jury, 185 Or App 132 (2002) (plain-error standard for reviewing unpreserved errors)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (discretionary review factors for correcting unpreserved error)