*1 Defendant/Appellant, CO., AND SEARS ROEBUCK
Respon de Transfer, nt MANUILOV, Plaintiff/Appellee,
Milan
Petitioner on Transfer.
No. 73S01-0002-CV-119.
Supreme Court Indiana. 23,
Jan. *2 Hill Fulwider Levenhagen,
Donald D. Matthews, Indianapolis, Funk McDowell & Indiana, Attorneys Appellant. for Montross, Townsend, W. Scott John F. Montross, III, Indianapolis, Townsend & Indiana, Attorneys Appellee. Assoc., Lawyers Ind. Theodore F. Trial Anderson, Indiana, Jr., Product Lia- Smith Council, Inc., bility Advisory Chilton Davis Power, Varner, Amy King Spalding, M. & Atlanta, Jr., F. Re- Georgia; Hugh Young, sten, Dahm, Virginia; Albert J. James J. Daniels, Ammeen, Jr., Indianapo- Baker & Indiana, lis, Amicus Curiae. Transfer
On Petition to
intends
ask “because it
be extreme-
prejudicial
ly
in front of
jury.”
Rec-
DICKSON, Justice
ord at
761. Counsel for the
ex-
defendant-appellant,
Roebuck
Sears
pressed concern
potential
about the
for a
Co.,
jury
trial and
appeals following
*3
mistrial.1
responded
The defense
that it
judgment awarding compensatory dam would not reveal
questions
the intended
$1,400,000
ages
plaintiff-appellee,
of
to the
plaintiff
and asserted that
the
was not
Manuilov, 34-year
high-
Milan
a
old circus
entitled to an
in
pre-screen
order
limine to
performer
injured in 1988
wire
who was
court,
questions.
its
The trial
in-
after
shopping
while
at the defendant’s retail
plaintiff
structing
lady
the
and a
seated in
Appeals
The
store.
Court
reversed
the back of the courtroom to leave the
trial.
Roebuck
remanded for new
Sears
courtroom,
invited further
explanations
(Ind.
Manuilov,
and Co. v.
Exclusion of
malingering opinion.”
Id.
at 765-66.
The defendant first contends that
When directed
the trial court to identi-
improperly
the trial court
excluded evi
factor,
fy the
defense counsel at first re-
plaintiffs prior
dence of the
domestic vio
comply except
pos-
fused to
to name three
lence,
history,
criminal
and untruthfulness.
record,
plaintiffs
sibilities:
work
his
Specifically, the defendant
argues
record,
discipline
doing
school
and his
“un-
erroneously precluded
trial court
it from
savory” things.2
encourage-
After further
calling
girlfriend
and his
to
O’Connor,
Judge
ment from
defense coun-
testify on these matters.
judge,
sel handed the
not opposing
but
portion
The
of the record submitted on counsel, a fax document that defense coun-
that,
appeal indicates
at the conclusion of
previous night
said he received
sel
plaintiffs
case-in-chief but before the
purportedly
identified the matter
began presentation
defendant
evi-
sought
to
raised
the defense.
dence,
trial court conducted
confer-
presence
responded that,
ence with counsel outside the
Plaintiffs counsel
from
counsel,
jury.
secrecy
surrounding cir-
Asserting
that defense
the attendant
cumstances,
contrary
alleged representations
inquiry
to
the nature of the
prior day,
likely
evidentiary harpoon
intended to call the
to be an
that
friend,
Kurihara,
witnesses,
subjected
any
Helen
should be disclosed and
to
objections
pres-
an in-cam-
requested
counsel
resolution out of
jury.
era
court
session
determine what the defense
ence
stated:
jury
discussing
1. This was the second
trial in this case.
2. Dr. Blinder in
the various factors
trial,
Wayne Superior
In the first
Court,
held
“unsavory things”
gave as ex-
included
jury
abuse,
was unable to reach a unani-
amples
beating, drug
wife
minor arrest
mous verdict. The case was then venued
records,
pay
and failure to
bills.
Shelby Circuit Court.
you
Obviously,
things
make an
one of the
that bothers
maybe
better first
I guess
case,
me in this
and I mentioned
way
That’s the
that
prove.
offer
certain
yesterday,
when
addressed
about it because the nature
go
I know to
courtroom,
I was
conduct
that
...
it could
the evidence is such
counsel,
asked, essentially by
and in-
certainly
prejudicial
be highly
put on
track because it
case be
the fast
flammatory
might,
and that
and of
before, everyone agreed
had been tried
itself,
jury
outweigh any
benefit
certain
respect
to the deadlines with
any
the issues....
to determine
dates,
cut-off
the trial date was set
from
After
resistance
at 769.
further
Id.
go
as if
wanted to
everybody
seemed
counsel,
added: “under
the court
defense
guess
principle
and I
forward
at least an offer to
the circumstances that
*4
I’ve adhered
over the last fifteen
jury
the
presence
the
is
prove outside
this
years
everybody
is that
comes into
determine,
so that I can
or at
appropriate
field
playing
on the same
Courtroom
determine,
or not the
try to
whether
least
try
byor
by
and we don’t
cases
ambush
and ...
prejudice outweighs the relevance
And,
course,
surprise.
I don’t know
any
jury
to the
to determine
the assistance
known, this
knowledge
whether this
Id.
fact
issue.”
at 770-71.
[in]
.
information was made known to
courtroom,
jury still
of the
With the
out
discovery
not.
cut-off
Obviously,
or
the
then called the
the
know,
the defense
and,
long
you
past
date is
since
questions
and asked
about
stand
several
day
we’re into the fourth full
of what I
previous incident of violence
alleged
an
be
thought
4-day
would
trial and now
plaintiffs girlfriend. Noting
the
against
knows
going.
who
where we’re
Obvi-
appeared
reading
that the defense
to be
concerned,
ously,
certainly
plain-
I’m
the
documents,
counsel
from official
credibility
point
at this
tiffs
is an issue
by stipulat-
inquiry
offered to shorten the
di-
because of the information that was
purpose
the
ing
vulged.
divulging
the documents for
the
timing of
The defen-
prove.
really
defendant’s offer to
the information
strikes me as be-
agreed,
ing interesting,
any
counsel and
trial court
I don’t have
dant’s
the
but
except
through my
I
admitted
control over that
and Defendant’s Exhibit was
preju-
deadlines and
purpose.
for this limited
cut-off dates. The
impact
jury receiving
dicial
the
this
(a)
page
of:
The seven
exhibit consisted
information, regardless of what kind of
Application
Temporary
an
Protective
limiting
or
gave
instructions the court
alleging
plaintiff had
Order
that
the
forth,
cautioned or so
far out-
would
threatened
committed acts of violence
opinion,
weigh, my
probative
the
val-
against Helen Kurihara
Nevada two
course,
hand,
ue. Of
we
other
(b)
earlier;
Master’s rec-
years
the Court
response
what
don’t know
Dr. Blinder’s
granted;
that
ommendation
the order be
would
to how
this information would
(c)
County
the Clark
Nevada District
opinion
plaintiff.
affect his
about the
So
Temporary
Court’s
Protective Order
really caught
I’m
in a
I don’t
dilemma.
(d)
Violence;
Against
proof
Domestic
option
want to lose
I
this case. One
(e)
service;
resulting
minutes of
have, obviously,
point
to de-
this
hearing
parties
court
which both
testi-
people
a mistrial
you
clare
and have
and,
upon
applicant’s request,
fied
that,
all
I
again.
start
over
If
did
protective order was dissolved.
somebody
would be
I can as-
with
else
Following
from both
arguments
me,
further
you, it wouldn’t
but I’m
sure
be with
counsel, Judge
prohibited
O’Connor
approach
not sure
that’s an
want
presenting
point
Keeping
defense from
the information to
to take at this
either....
jury,
fol-
explaining
reasoning
all those factors in mind and under-
pros
standing
lows:
and cons and
plusses
prejudice
and minuses and the
“relevant evidence—that which logically
sides,
day
to both
the time of
and where
prove
tends to
a material fact—is not inad
are, and in view of how the informa-
we
missible simply
prejudicial
because of its
appeared
tion
into the ...
fourth full
impact.”
Indiana Evidence Rule 403 Rules of Evidence in 1994 and this Court’s relevant, “Although vides: specific adoption of Rule 403’s federal probative if be excluded value is sub counterpart in Hardin v. stantially outweighed by the of un danger (1993). 123, 128-29 Contrary to the limita issues, prejudice, fair confusion of or Swanson, applied tions in Barnes and misleading jury, considerations *5 expressly rule authorizes trial courts to delay, of undue presentation needless of exclude relevant if probative cumulative evidence.” Trial courts are value is substantially outweighed by given making wide latitude in the evalua 403, danger prejudice. of unfair required appel tion under Rule The rule does and appropriate only late reversal is not limit exclusion to marginally pro abuse State, Ingram of discretion. v. 715 N.E.2d bative evidence. 405, (Ind.1999); State, Tompkins 408 The emphatically argues defendant 394, (Ind.1996). 669 N.E.2d 398 trial The the excluded evidence highly was relevant correct, court’s ruling presumptively is urges precluded that its exclusion a challenger appeal bears the on of burden opportunity expose defense from an persuading us that the court erred in its plaintiff precisely “as type lying, exercise discretion. Anderson v. unsavory character” that would establish 703, (Ind.1997). 681 N.E.2d 706 him as a malingerer under the criteria Urging that the excluded evidence was by Appellant used Dr. Brief at Blinder. highly probative upon relevant and 19. malingering,
issue of the defendant cites Barnes, 1337, Barnes v. 603 N.E.2d Considering present- the circumstances (Ind.1992), and City Indianapolis v. ed, the of the trial presumptive correctness (Ind. Swanson, 668, 671-72 ruling, thoughtful court’s and its evalua- 1983), support his demand for a new tion, we decline to find an abuse of discre- argues trial. The defendant that a trial in excluding tion the evidence. may only court balance marginal evidence Testimony Medical prejudicial against evidence and it “has no discretion to exclude evidence that The defendant contends that the is better than marginal.” Reply Brief of admitting trial court erred in medical testi Appellant at 4. mony concerning plaintiffs the cause of injuries capacity and his to return to work. opinion
Our in Barnes held that appellate discern its claim to be that We Rape Indiana ap- Shield Statute does not 702(a) Indiana Evidence Rules 403 and ply in civil cases to exclude evidence of a (b) plaintiffs prior were violated the admission of medi sexual activities. ex-We pressly noted that a trial cal that the fall caused court’s latitude to prejudicial syn- exclude evidence was limited: him to post-concussion suffer from I physical injuries, way him there’s no can returning from prevented drome high-wire performer.3 you symptoms as a circus tell how much of all the to work concussion, are attributable to the experts. called two medical plaintiff psychological But opposed to factors.' M.D., physician Quillen, with Jeffrey amalgam physical there is an here of department at Reid Memorial emergency psychological and I can’t draw a Indiana, Richmond, initially ex- Hospital in in- bright They’re line between them. plaintiff when he amined and treated and ... I cannot do that. I terwoven So emergency room brought fall. Dr. immediately apportion physical after his cannot between the ambulance diagnosed that he Quillen testified psychological. Finally, though, and the “post-concussion dizzi- plaintiffs injury as thing I know a or two about the affects ness,” 514, “has Record at injury patients of head in terms [sic] post-concussive syn- related to symptoms mentally, to function ability of their 519, drome,” “that he suffers from id. physically, psychologically, emotionally, id. at post-concussive syndrome,” sexually.... There’s no doubt that I plaintiffs persistent that the reason for the somebody had would defer to who even fall symptoms original “stems from the I greater expertise than do.... do for which I saw him injury to his head monopoly not have a on truth when it time,” for the id. at first damage. assessing comes to brain With Blinder, M.D., Psychiatrist Martin ex- qualifications, my opinion, to a those in 1991 and 1995. Af- amined the degree probabili- reasonable of medical describing specialty ter his medical and ty, based on the available evidence for training, experience, teach- education and limitations, all that this man of its took research, pro- Dr. ing, writing, Blinder That hit hell a hit to the head. post-con- explanation vided an extensive *6 him the head has disabled for reasons then his syndrome cussion detailed combined, physical that are both psychiatric examination and assessment of Uh, that psychological factors. there is plaintiff. He determined that improvement some room for down the plaintiff post-concussion syn- suffers from road, uh, but that he will have a substan- drome, 608, “causally at which is relat- id. disability, disability impacts tial and that 27, January ed” to fall on 1988. Id. at his upon personal upon his life and his ca- damage 628. Asked whether brain associ- pacity previous to profes- to return his post-concussion syndrome ated with exists sion. fall, plaintiffs Dr. Blind- as result of the Id. at 711-12. Dr. Blinder also stated er answered: that, amalgam psychiatric “this I the extent to which prove [the cannot post-concussive syndrome symptoms would plaintiff] currently damage. suffers brain nonetheless, reasonably prob- to a medical my inadequacy less in This reflects ability, plaintiff] safely negoti- [the allow to the state of the field at this time tha[n] other, ate high-wire one end of the to the century. of the 20th Second- the end ly, anywhere ninety-six ninety-seven clinical from to though think there are indi- concussion, percent for which is listed under the time.” Id. at ces 627-28. brief, 2001, argument analogous specific requirements. In the section of his have identify specific compliance Rev.App. defendant does not testi- R. 46. Full and careful mony alleged erroneously reviewing to have been admit- with the rule enables the Court to 8.3(A)(7) present Appellate ted. re- address the claims asserted. case, In the Indiana quires, among things, by analyzing other that each error the Statement of Facts brief, specifically” argu- "be set forth and that the section of the defendant’s we have been contentions, sup- specific ment contain the reasons in able to discover the errors claimed port, parts applicable parts and citations to “the of the record and the of the Record. This upon.” Appellate presentation relied has made our re- The revised Rules of unconventional January challenging. Procedure that are effective on view physical asserting The defendant contends causes. Also' Dr. opinions by Quillen qualified Dr. and Blinder not admission was to render a voca- claims, fall caused opinion, Dr. Blinder that the tion defendant further post-concussion syndrome testimony that disabled that error to admit was his violate returning him from to his work concerning percentage of times the the. The rule plaintiff Indiana Evidence Rule 702. is to safely would able cross pro “Testimony by Experts” high-wire opinion his plaintiff titled impact upon vides: suffered an capacity high-wire return to his work as a circus (a) scientific, technical, spe- If or other performer. knowledge will the trier of cialized assist or to
fact understand the evidence objections The defendant’s phy- issue, qual- a fact in determine a witness testimony sicians’ suf- skill, expert by knowledge, as an ified post-concussion syndrome fers from were education, experience, training, extensively presented both at trial and testify opinion thereto in the form of an before trial. The pre-trial defendant’s or otherwise. motion in limine sought to exclude all evi- (b) Expert scientific is admis- testimony dence that the diagnosed only if sible the court is satisfied that suffering post-concussion syndrome. from which principles upon motion, scientific hearing At the of this parties expert testimony rests are reliable. submitted briefing extensive and materi- als, Dr. including deposition Blinder’s R. 702. The trial court’s Evid. determina Quillen Dr. testimony of and Dr. Blinder regarding admissibility expert tion during trial, the inconclusive first testimony under Rule 702 is a matter with explained physicians both the basis discretion, broad be re will diagnosis zealously their and were versed for abuse of that discretion. by the cross-examined defense. Dr. State, (Ind. 563, 570 Cook v. 734 N.E.2d testimony Blinder’s included the follow- 2000); McGrew v. ing: (Ind.1997). The defendant claims Quillen’s post-concussion syndrome that Dr. causation is refers reliable, that, scientifically contrary all, to Rule brain injury first of 702(b), say because the doctor examined than last diffuse. Rather bullet or *7 years bruising the almost ten before the on the the localized surface of argues brain, impact fairly that spread trial. defendant further out the Quillen throughout of and Dr. all the so evenly the both Dr. brain cells syn there of regarding post-concussion perhaps Blinder that is [sic] thousands little, jury, contrary twistings turnings did not to or drome assist undetectable 702(a), syn of a of “[p]roof damage Rule because neurons the brain symptom a variety symptoms drome does not mean that that cause of known; headache, merely a etiology is instead it means dizziness and ranging from subject fit symptoms cognitive slowing, slowing has which a that is down remember, pattern ability in to new recognized symptoms of sub of the to learn information, back, jects history injury.” give personality of head Brief to it with addition, if depression anxiety. at In and Appellant changes, of 22-23. And you’re lucky, symptoms contends that Dr. Blinder’s cau these as to defendant scientifically away opinions sation were insuffi concussion fade after several 702(b) psy Rule as a is a certain of group cient under because months. There chiatrist, however, diagnose symp- he for whom qualified people, is not to these permanent. brain or to be That is damage; possible appear subtle because toms area the rest of their with ganic they spend causes were not within his lives just subtle dizzi- expertise; and because he did rule out some subliminal—some textbooks, taught and lished and the we’re ness, levels of tension heightened' school, patterns in and melancholy they that can’t these medical anxiety, recognize on the sunniest of trained to and search to shake even we’re seem out, that their mental func- a sense days recognize them them when we quick they as as once just aren’t patients tions encounter our the clinic. nothing up shows though even were and contrast, Id. at 592-93. In the defendant tests, on the standard x-rays on present any at trial or did not lives, for the rest their people, these proceedings motions in limine during the at a somewhat reduced level operate post-concussion syn- to establish that the typical post-con- that is a function. So Quillen Dr. Dr. diagnosis drome syndrome. cussion Blinder was not based on reliable scientific The doctor had also Record at 83-85. principles. part, diagnosis stated: “for most syndrome] is made post-concussion [of adopting In Evidence Rule falling into a complaints patient, interpose an this Court did not intend to well-described, precise circumscribed unnecessarily procedure or burdensome pattern.” Id. methodology By requiring for trial courts. Notwithstanding vigor- the defendant’s expert opin trial courts to satisfied accuracy challenge ous to the basis and that ions will assist fact-finder the trial court physicians’ diagnosis, reliable, underlying principles are scientific denied the motion limine. guides expert Rule 702 the admission of testimony. Although scientific autho trial, At the court received further infor- purported rizes the exclusion of scientific principles relating mation to the scientific evidence when the trial court finds that it testimony when Dr. challenged for the principles, adop is based on unreliable explained: Blinder an tion of Rule 702 reflected intent life, conclusions, In real at our liberalize, constrict, than rather the ad diagnoses, by attempting we call to es- mission of reliable scientific evidence. Be patient’s com- tablish whether or not 702(b), applied fore Rule Indiana courts plaints fall into an established constella- Frye4 test which determined the ad tion, pattern, spoke and I a familiar missibility of novel scientific evidence pattern symptoms earlier of the upon general acceptance based in the concussion, means heart attack or be- community. Hopkins scientific being are made cause these conclusions (Ind.1991). 1301-04 basis, clinic, opposed in a a clinical 702(b) than Frye is broader test being laboratory, made in a or as permits in that it trial courts to consider opposed subject to the being kinds of general acceptance factors other than to, you might scientific use studies new, may permit expert testimony thus uh, *8 speed light, of or the measure the though general innovative areas even ac speed particular equation, of a chemical ceptance may yet not uh, have been achieved they are called clinical conclusions to but which are otherwise found to be based distinguish perhaps legal them from con- principles. on reliable scientific This is logical clusions of or other kinds conclu- analogous liberalizing Frye to the of the They upon sions. clinical are based ob- by many, many people, rule achieved the United States Su servations made preme many physicians long peri- other over a Court Daubert v. Merrell Dow Pharmaceuticals, Inc., 579, od of patterns time. The are estab- 509 U.S. 113 1013, States, Frye opinion testimony depended 4. v. F. United 293 1014 was "suffi- (D.C.Cir.1923) proponents (required that of ciently gained acceptance to have established novel scientific evidence demonstrate that the belongs.”). particular in the field in which it principle technique upon scientific
461 (1993).5 Quillen Dr. permitted L.Ed.2d 469 See Dr. Blinder to 125 S.Ct. McGrew, testify regarding post-concussion syn- N.E.2d at 1291 n. Given 702(b) considering rejecting was to drome after the thrust of our Rule claim that it admissibility of reliable scientific defendant’s was not based on liberalize evidence, principles. improbable most that a reliable scientific The medical “it is principle explained accepted testimony diag- scientific the basis for this generally Notwithstanding into nosis. cross-ex- be too unreliable to be admitted robust would Jr., argument Miller, amination and of defense coun- evidence.” 13 Robert Lowell (1995). sel, § Judge 702.202 at 395 O’Connor overruled defense Indiana Evidence objections. counsel’s We decline to find as separately applied If evaluate diagnosis a matter of law that a medical of every subsidiary point during made post-concussion syndrome scientifically testimony qualified expert regarding aof unreliable. further find We that the trial science, matters on reliable based required court was not to exclude Dr. 702(b) excessively can burdensome become opinions in response Blinder’s causation fair and efficient administration of organic defendant’s claims justice. It court to consid directs trial physical damage directly brain were not underlying reliability general er the of the expertise physician within his area of as a principles subject involved in the matter of psychiatrist. These are matters of testimony, require it but does weight credibility vigorously and were micromanage trial court to re-evaluate and consideration, jury’s raised for the expert’s of an tes subsidiary each element they do not us to find in the require error subject. timony within the Once the trial admission the evidence. expert’s court is satisfied that the testimo As to the defendant’s claim that Dr. ny will the trier of fact and that the assist qualified Blinder was not to render a voca- expert’s on general methodology is based opinion, tional the trial court did not err. principles, then the accu reliable scientific testimony that The doctor’s the severe racy, consistency, credibility fall blow to the head from the expert’s opinions may properly be left to continuing dizziness and head- resulting cross-examination, presentation vigorous him preventing returning aches and from evidence, counsel, contrary argument high-wire performer to his career as is not fact. and resolution the trier of See prov- necessarily a matter restricted to the Hottinger Trugreen Corp., expert knowledgeable ince of a vocational (Ind.Ct.App.1996). requirements high-wire about the of circus above, expert As noted admission artistry. That dizziness would substantial- testimony challenged Rule 702 is under perform ly plaintiffs capacity affect the within the discretion of the trial court. is a matter of common high-wire testimony presented from The medical sense, require vocational ex- and does not expert clearly qualified witnesses as to pertise. jury. matters that assisted the The trial trial Mindful that the court’s determina- court did not abuse discretion when admissibility under Rule 702 tion admitted the of Dr. causation discretion, reversed for abuse of Quillen, emergency room doctor who we decline to find error on this issue. treated the the time of his defendant also contends that injury intervening period but not *9 physicians’ testimony regarding post-con- years almost ten to the time of trial. Nor syndrome should have been ex- did the court exceed its latitude when it cussion large deciding evidentiary issues. argument courts in 5. The defendant's is based in Indiana McGrew, 1290; part upon applying federal decisions Daubert. N.E.2d at Steward v. See State, 682 potentially helpful, jurispru- 490, (Ind. 1995). While federal 652 N.E.2d 498 interpreting binding dence Daubert is not on 462 inability actually look into the Rule 403 because Our Ind. Evid. under
eluded is, extent, jurors substantially large out- minds of the to a value was probative prejudice, behind the rule that we will danger of unfair reason weighed by the if within the not reverse the award falls potential to confuse particularly its cannot in- supra, we bounds of the evidence. We jury. As discussed mislead the making province jury latitude in vade the to decide trial courts wide afford we the facts and cannot reverse unless the required evaluation under correct, clearly a verdict is erroneous. ruling the court’s to be presume appeal on challenger bears the burden 686, 690, Annee v. 256 Ind. 271 court erred in its persuading us (1971). 711, 713 N.E.2d discretion, ruling will be and its exercise The evidence favorable to the award of only of discretion. overturned for abuse damages includes the medical trial court did not abuse its discretion The plaintiffs that the fall at the defendant’s over the defen- admitting in the evidence longstanding store caused serious and objections dant’s based on Rule 403. injuries, physical particularly and mental Damages and headaches. An exhibit was dizziness listing plaintiffs that the admitted incurred The defendant contends $10,147.13, $1,400,000 compensatory expenses award of in dam medical to which objection. At ages supported is not the evidence. He there was no trial the time accident, plaintiff argues 34-year that there was insufficient evidence of the was plaintiffs expenses internationally recognized high- medical were old circus accident, necessary years, and related to the that wire artist. For several he had earning capacity impaired, Ringling his was that his worked for the Brothers Circus. established, Nixon, pecuniary performed future loss was and He for Presidents Car- ter, Ford, symptoms disability ongoing Reagan. plaintiffs were The fall at the principal agent provided caused his defendant’s store. circus various de- regarding plaintiffs impaired tails jury damages A determination of earnings. agent, flying The a former tra- to great is entitled deference when chal peze twenty-five years, for had ex- artist n lenged appeal. applicable on The standard experience per- booking tensive circus review was discussed and summarized in forty years experience formers and had Appeals Prange in by the Court plaintiffs observing high-wire acts. The Martin, (Ind.Ct.App. per day act had been booked $800 1994), trans. denied. past, oppor- and there were sufficient are Damages particularly jury deter- available for engagements tunities these Appellate mination. courts will not sub- days year. about Just before the proper their idea of a damage stitute injured, agent had ar- Instead, jury. award for that of the ranged opportunity an for him to work at court will look the evidence Vegas per Circus Circus Las for $2000 support inferences therefrom which fifty-two per year. week for weeks jury’s verdict. We will not deem a ver- expenses agent regarding also testified improper dict to be the result of consid- plaintiffs high-wire associated with the explained unless it erations cannot be act. The intended to continue Thus, any ground. other reasonable if profession working high-wire per- his as a any there is the record sixties, former until in his which was award, supports the amount of the performers, according unusual for similar even if it conflicting, is variable or In addition to the agent. n award will not be disturbed. pain suffering continuing from the (citations omitted). Similarly, symptoms posLconcussion syndrome, Id. persistent resulting Court has noted: dizziness and fear *10 prejudice of the- obvious him from because reasonably prevented falling high- would result from evidence that Manuilov as a circus resuming profession his allegedly was involved in domestic vio- already had resulted performer and wire proof An established that during the lence. offer loss of income in substantial prepared and the defense was to offer evidence the accident years ten between almost charged Manuilov had with do- into the future. been and will continue the trial occasions, mestic violence on at least two sup- there was evidence find that We contempt and had been found in of a re- damages. port jury’s determination straining order. the verdict was decline to find We The balance under Indiana Evidence clearly erroneous. probative Rule 403 value and between court is af- of the trial judgment a of trial court discre- prejudice is matter firmed. made under diffi- ruling tion and this was experienced and cult circumstances an RUCKER, J., concurs. Certainly in highly respected judge. trial SULLIVAN, J., except as to the concurs would normal circumstances that balance Testimony” as “Medical captioned section or a preclude evidence of domestic violence in result. to which he concurs if marginally minor criminal record even however, Here, the evidence relevant. J., BOEHM, separate dissents with factually incorrect was offered to rebut SHEPARD, C.J. concurs. opinion in which purposefully had testimony that Manuilov BOEHM, Justice, dissenting. view, my his claim. In elicited to bolster because, in my it can respectfully opened I dissent Manuilov the door as wide as view, issues addressed simply permit party the first and second It unfair to get. majority independent are not open up subject of his own truthful- concert, other, and, produce ness, put expert each on an it based bolster testified, among Dr. Blinder assumptions, flawed trial. factual and then suc- on false opinion Manuilov things, that that undercuts cessfully oppose other opinion preju- This malingerer. assumptions was not those under a claim physical symp- ma- Appeals not based on observation of dice. believe Court tests, scientifically but on trial. jority ordering toms or valid a new was correct observation of Manuilov’s behav- Blinder’s SHEPARD, C.J., concurs. furnished and accounts of that behavior ior Among the by Manuilov or his counsel. that Manuilov had
latter was the assurance anti-social behavior. history
no criminal had jury that Manuilov
Blinder told the he was history suggested no criminal STEPHENSON, Appellant John M. assumptions These not a “wife beater.” (Defendant below), made a basis of his view explicitly were malingerer. This that Manuilov was not a Indiana, Appellee STATE of Indiana Evi- challenged under was not below). (Plaintiff 704(b), that a provides dence Rule No. 87S00-9605-DP-398. testify to whether an- witness so, truthfully,” has testified other “witness of Indiana. Supreme Court issue, an it is not to the extent this is Jan. However, de- when the presented here. that the information sought prove fense his views was
on which Blinder based
false, court excluded that evidence the trial