Sears Roebuck and Co. v. Manuilov

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE AMICUS CURIAE

Donald D. Levenhagen W. Scott Montross Ind.

Trial Lawyers Assoc.

Hill Fulwider McDowell Funk & John F. Townsend, III

Theodore F. Smith Jr.

Matthews Townsend & Montross Anderson,

Indiana

Indianapolis, Indiana Indianapolis, Indiana

Product Liability

Advisory Council, Inc.

Chilton Davis

Varner

Amy M. Power

King & Spalding

Atlanta, Georgia;

Hugh F. Young, Jr.

Reston, Viginia;

Albert J. Dahm

James J. Ammeen,

Jr.

Baker & Daniels

Indianapolis,

Indiana

In The

INDIANA SUPREME COURT

SEARS ROEBUCK AND CO. )

Defendant/Appellant )

Respondent to Transfer ) Supreme Court No.

) 73S01-0002-CV-119

v. )

)

MILAN MANUILOV ) Court of Appeals No.

Plaintiff/Appellee ) 73A01-9805-CV-193

Petitioner on Transfer )

________________________________________________

APPEAL FROM THE SHELBY CIRCUIT COURT

The Honorable Charles D. O’Connor, Judge

Cause No. 73C01-9705-CT-5

________________________________________________

On Petition to Transfer

January 23, 2001

DICKSON, Justice

The defendant-appellant, Sears Roebuck and Co., appeals following a

jury trial and judgment awarding compensatory damages of $1,400,000 to the

plaintiff-appellee, Milan Manuilov, a 34-year old circus high-wire

performer who was injured in 1988 while shopping at the defendant's retail

store. The Court of Appeals reversed and remanded for a new trial. Sears

Roebuck and Co. v. Manuilov, 715 N.E.2d 968 (Ind. Ct. App. 1999). We

granted the plaintiff's petition for transfer, thereby vacating the

decision of the Court of Appeals. The issues presented in the defendant’s

appeal are now before us, pursuant to Indiana Appellate Rule 11(B)(3). The

defendant asserts that the trial court erred as to (1) the exclusion of

evidence; (2) the admission of medical testimony; and (3) the award of

substantial damages. We affirm the judgment of the trial court.

Exclusion of Evidence

The defendant first contends that the trial court improperly excluded

evidence of the plaintiff's prior domestic violence, criminal history, and

untruthfulness. Specifically, the defendant argues that the trial court

erroneously precluded it from calling the plaintiff and his girlfriend to

testify on these matters.

The portion of the record submitted on appeal indicates that, at the

conclusion of the plaintiff's case-in-chief but before the defendant began

presentation of its evidence, the trial court conducted a conference with

counsel outside the presence of the jury. Asserting that defense counsel,

contrary to alleged representations the prior day, intended to call the

plaintiff and his friend, Helen Kurihara, as witnesses, the plaintiff's

counsel requested an in-camera session to determine what the defense

intends to ask "because it may be extremely prejudicial in front of this

jury." Record at 761. Counsel for the plaintiff expressed concern about

the potential for a mistrial.[1] The defense responded that it would not

reveal the intended questions and asserted that the plaintiff was not

entitled to an order in limine to pre-screen its questions. The trial

court, after instructing the plaintiff and a lady seated in the back of the

courtroom to leave the courtroom, invited further explanations from

counsel.

The defendant's counsel noted that Dr. Martin Blinder, a psychiatrist

who had testified regarding the plaintiff's post-concussion syndrome, had

testified that the plaintiff was not a malingerer based in part upon

information provided by the plaintiff. Defense counsel observed that Dr.

Blinder noted that there were about thirty different possible factors and

argued that the plaintiff failed to disclose to his doctor "one of these

factors that go to the malingering opinion." Id. at 765-66. When directed

by the trial court to identify the factor, defense counsel at first refused

to comply except to name three possibilities: the plaintiff's work record,

his school discipline record, and his doing "unsavory" things.[2] After

further encouragement from Judge O'Connor, defense counsel handed the

judge, but not opposing counsel, a fax document that defense counsel said

he received the previous night and which purportedly identified the matter

sought to be raised by the defense.

Plaintiff's counsel responded that, from the attendant secrecy and

surrounding circumstances, the nature of the inquiry is likely to be an

evidentiary harpoon that should be disclosed and subjected to any

objections for resolution out of the presence of the jury. The court

stated:

I guess maybe you better first make an offer to prove. That's the

only way that I know to go about it because the nature of the evidence

is such that . . . it could certainly be highly prejudicial and

inflammatory and that might, in and of itself, outweigh any benefit to

the jury to determine any of the issues . . . ."

Id. at 769. After further resistance from defense counsel, the court

added: "under the circumstances that at least an offer to prove outside the

presence of the jury is appropriate so that I can determine, or at least

try to determine, whether or not the prejudice outweighs the relevance and

. . . the assistance to the jury to determine any fact [in] issue." Id. at

770-71.

With the jury still out of the courtroom, the defense then called the

plaintiff to the stand and asked several questions about an alleged

previous incident of violence against the plaintiff’s girlfriend. Noting

that the defense appeared to be reading from official documents,

plaintiff's counsel offered to shorten the inquiry by stipulating the

documents for the purpose of the defendant's offer to prove. The

defendant's counsel and the trial court agreed, and Defendant's Exhibit I

was admitted for this limited purpose.

The seven page exhibit consisted of: (a) an Application for Temporary

Protective Order alleging that the plaintiff had threatened and committed

acts of violence against Helen Kurihara in Nevada two years earlier; (b)

the Court Master's recommendation that the order be granted; (c) the Clark

County Nevada District Court's Temporary Protective Order Against Domestic

Violence; (d) proof of service; and (e) minutes of the resulting court

hearing in which both parties testified and, upon the applicant's request,

the protective order was dissolved.

Following further arguments from both counsel, Judge O'Connor

prohibited the defense from presenting the information to the jury,

explaining his reasoning as follows:

Obviously, one of the things that bothers me in this case, and I

mentioned it yesterday, or when I addressed certain conduct in the

courtroom, that I was asked, essentially by counsel, that this case be

put on the fast track because it had been tried before, everyone

agreed to the deadlines with respect to certain cut-off dates, the

trial date was set and seemed as if everybody wanted to go forward and

I guess the principle that I've adhered to over the last fifteen years

is that everybody comes into this Courtroom on the same playing field

and we don't try cases by ambush or by surprise. And, of course, I

don't know whether this knowledge was known, this information was made

known to plaintiff or not. Obviously, the discovery cut-off date is

long since past and, you know, we're into the fourth full day of what

I thought would be a 4-day trial and now who knows where we're going.

Obviously, I'm concerned, certainly the plaintiff's credibility is an

issue at this point because of the information that was divulged. The

timing of the divulging of the information really strikes me as being

interesting, but I don't have any control over that except through my

deadlines and cut-off dates. The prejudicial impact of the jury

receiving this information, regardless of what kind of limiting

instructions the court gave or cautioned or so forth, would far

outweigh, in my opinion, the probative value. Of course, on the other

hand, we don't know what Dr. Blinder's response would be to how this

information would affect his opinion about the plaintiff. So I'm

really caught in a dilemma. I don't want to lose this case. One

option I have, obviously, is at this point to declare a mistrial and

have you people start all over again. If I did that, it would be with

somebody else I can assure you, it wouldn't be with me, but I'm not

sure that that's an approach I want to take at this point either. . .

. Keeping all those factors in mind and understanding the pros and

cons and the plusses and minuses and the prejudice to both sides, the

time of day and where we are, and in view of how the information

appeared into the . . . fourth full day of trial, with very little

opportunity for there to be any investigation, other than what

occurred in the courtroom by the opposing party, it's my determination

that, and I think the offer to prove is sufficient for the record,

that this information will not go to the jury.

Id. at 796-98.

Indiana Evidence Rule 403 provides: "Although relevant, evidence may

be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, or needless presentation of

cumulative evidence." Trial courts are given wide latitude in making the

evaluation required under Rule 403, and appellate reversal is appropriate

only for abuse of discretion. Ingram v. State, 715 N.E.2d 405, 408 (Ind.

1999); Tompkins v. State, 669 N.E.2d 394, 398 (Ind. 1996). The trial

court's ruling is presumptively correct, and a challenger bears the burden

on appeal of persuading us that the court erred in its exercise of

discretion. Anderson v. State, 681 N.E.2d 703, 706 (Ind. 1997).

Urging that the excluded evidence was highly relevant and probative

upon the issue of malingering, the defendant cites Barnes v. Barnes, 603

N.E.2d 1337, 1342 (Ind. 1992), and City of Indianapolis v. Swanson, 448

N.E.2d 668, 671-72 (Ind. 1983), to support his demand for a new trial. The

defendant argues that a trial court may only balance marginal evidence

against prejudicial evidence and that it "has no discretion to exclude

evidence that is better than marginal." Reply Brief of Appellant at 4.

Our opinion in Barnes held that the Indiana Rape Shield Statue does

not apply in civil cases to exclude evidence of a plaintiff's prior sexual

activities. We expressly noted that a trial court's latitude to exclude

prejudicial evidence was limited: "relevant evidence—that which logically

tends to prove a material fact—is not inadmissible simply because of its

prejudicial impact." 603 N.E.2d at 1343. In Swanson, noting that "a trial

court may not properly deny the cross-examination of a party concerning

facts connected with that party's own acts and statements relating to the

case which tend to impair that party's credibility," we found that the

trial court erred in excluding prejudicial evidence. 448 N.E.2d at 671-72.

Both these decisions preceded the adoption of the Indiana Rules of

Evidence in 1994 and this Court's specific adoption of Rule 403's federal

counterpart in Hardin v. State, 611 N.E.2d 123, 128-29 (1993). Contrary to

the limitations applied in Barnes and Swanson, the rule expressly

authorizes trial courts to exclude relevant evidence if its probative value

is substantially outweighed by the danger of unfair prejudice. The rule

does not limit exclusion only to marginally probative evidence.

The defendant emphatically argues that the excluded evidence was

highly relevant and urges that its exclusion precluded the defense from an

opportunity to expose the plaintiff "as precisely the type of lying,

unsavory character" that would establish him as a malingerer under the

criteria used by Dr. Blinder. Brief of Appellant at 19.

Considering the circumstances presented, the presumptive correctness

of the trial court’s ruling, and its thoughtful evaluation, we decline to

find an abuse of discretion in excluding the evidence.

Medical Testimony

The defendant contends that the trial court erred in admitting

medical testimony concerning the cause of plaintiff's injuries and his

capacity to return to work. We discern its appellate claim to be that

Indiana Evidence Rules 403 and 702(a) and (b) were violated by the

admission of medical testimony that the plaintiff's fall caused him to

suffer from post-concussion syndrome that prevented him from returning to

work as a circus high-wire performer.[3]

The plaintiff called two medical experts. Jeffrey Quillen, M.D., a

physician with the emergency department at Reid Memorial Hospital in

Richmond, Indiana, initially examined and treated the plaintiff when he was

brought to the emergency room by ambulance immediately after his fall.

Dr. Quillen testified that he diagnosed the plaintiff's injury as "post-

concussion dizziness," Record at 514, that the plaintiff "has symptoms

related to post-concussive syndrome," id. at 519, "that he suffers from

post-concussive syndrome,” id. at 531, and that the reason for the

plaintiff’s persistent symptoms “stems from the original fall and injury to

his head for which I saw him for the first time,” id. at 531, 532.

Psychiatrist Martin Blinder, M.D., examined the plaintiff in 1991 and

1995. After describing his medical and specialty education and training,

experience, teaching, research, and writing, Dr. Blinder provided an

extensive explanation of post-concussion syndrome and then detailed his

psychiatric examination and assessment of the plaintiff. He determined

that the plaintiff suffers from post-concussion syndrome, id. at 608, which

is "causally related" to his fall on January 27, 1988. Id. at 628. Asked

whether brain damage associated with post-concussion syndrome exists as a

result of the plaintiff's fall, Dr. Blinder answered:

I cannot prove the extent to which [the plaintiff] currently suffers

brain damage. This reflects less in my inadequacy tha[n] the state of

the field at this time at the end of the 20th century. Secondly,

though I think there are clinical indices for concussion, which is

listed under physical injuries, there's no way I can tell you how much

of all the symptoms are attributable to the concussion, as opposed to

psychological factors. But there is an amalgam here of physical and

psychological and I can't draw a bright line between them. They're

interwoven and . . . I cannot do that. So I cannot apportion between

the physical and the psychological. Finally, though, I know a thing

or two about the affects [sic] of head injury on patients in terms of

their ability to function mentally, physically, psychologically,

emotionally, sexually. . . . There's no doubt that I would defer to

somebody who had even greater expertise than I do. . . . I do not

have a monopoly on truth when it comes to assessing brain damage.

With those qualifications, it is my opinion, to a reasonable degree of

medical probability, based on the available evidence for all of its

limitations, that this man took a hell of a hit to the head. That

this hit to the head has disabled him for reasons that are combined,

both physical and psychological factors. Uh, that there is some room

for improvement down the road, uh, but that he will have a substantial

disability, and that disability impacts upon his personal life and

upon his capacity to return to his previous profession.

Id. at 711-12. Dr. Blinder also stated that, "this amalgam of psychiatric

and post-concussive syndrome symptoms would nonetheless, to a reasonably

medical probability, allow [the plaintiff] to safely negotiate one end of

the high-wire to the other, anywhere from ninety-six to ninety-seven

percent of the time." Id. at 627-28.

The defendant contends that the admission of opinions by Dr. Quillen

and Dr. Blinder that the plaintiff's fall caused post-concussion syndrome

that disabled him from returning to his work violate Indiana Evidence Rule

702. The rule is titled "Testimony by Experts" and provides:

(a) If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of

an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is

satisfied that the scientific principles upon which the expert

testimony rests are reliable.

Evid. R. 702. The trial court's determination regarding the admissibility

of expert testimony under Rule 702 is a matter within its broad discretion,

and will be reversed only for abuse of that discretion. Cook v. State, 734

N.E.2d 563, 570 (Ind. 2000); McGrew v. State, 682 N.E.2d 1289, 1292 (Ind.

1997). The defendant claims that Dr. Quillen's causation testimony is not

scientifically reliable, contrary to Rule 702(b), because the doctor last

examined the plaintiff almost ten years before the trial. The defendant

further argues that the testimony of both Dr. Quillen and Dr. Blinder

regarding post-concussion syndrome did not assist the jury, contrary to

Rule 702(a), because "[p]roof of a syndrome does not mean that the symptom

etiology is known; instead it merely means that the subject has symptoms

which fit a recognized pattern of symptoms in subjects with a history of

head injury." Brief of Appellant at 22-23. In addition, the defendant

contends that Dr. Blinder's causation opinions were scientifically

insufficient under Rule 702(b) because as a psychiatrist, he is not

qualified to diagnose subtle brain damage; because possible organic causes

were not within his area of expertise; and because he did not rule out

physical causes. Also asserting that Dr. Blinder was not qualified to

render a vocation opinion, the defendant further claims that it was error

to admit his testimony concerning the percentage of times the plaintiff

would be able to safely cross the high-wire and his opinion that the

plaintiff suffered an impact upon his capacity to return to his work as a

high-wire circus performer.

The defendant's objections to the physicians' testimony that the

plaintiff suffers from post-concussion syndrome were extensively presented

both at trial and before trial. The defendant's pre-trial motion in limine

sought to exclude all evidence that the plaintiff was diagnosed as

suffering from post-concussion syndrome. At the hearing of this motion,

the parties submitted extensive briefing and materials, including Dr.

Blinder's deposition and testimony of Dr. Quillen and Dr. Blinder during

the inconclusive first trial, in which both physicians explained the basis

for their diagnosis and were zealously cross-examined by the defense. Dr.

Blinder's testimony included the following:

The post-concussion syndrome refers to injury to the brain that, first

of all, is diffuse. Rather than say a bullet or a localized bruising

on the surface of the brain, the impact is spread out fairly evenly

throughout all the brain cells so that perhaps there is [sic]

thousands of little, undetectable twistings or turnings or damage to

the neurons of the brain that may cause a variety of symptoms ranging

from dizziness and headache, a cognitive slowing, that is slowing down

of the ability to remember, to learn new information, to give it back,

personality changes, depression and anxiety. And if you're lucky,

these symptoms as to the concussion fade away after several months.

There is a certain group of people, however, for whom these symptoms

appear to be permanent. That is they spend the rest of their lives

with just some subliminal – some subtle dizziness, heightened levels

of tension and anxiety, a melancholy that they can't seem to shake

even on the sunniest of days and a sense that their mental functions

just aren't as quick as they once were and even though nothing shows

up on x-rays and on the standard tests, these people, for the rest of

their lives, operate at a somewhat reduced level of function. So that

is a typical post-concussion syndrome.

Record at 83-85. The doctor had also stated: "for the most part, the

diagnosis [of post-concussion syndrome] is made by the complaints of the

patient, falling into a well-described, circumscribed and precise pattern."

Id. at 89.

Notwithstanding the defendant's vigorous challenge to the basis and

accuracy of the physicians' diagnosis, the trial court denied the motion in

limine.

At trial, the court received further information relating to the

scientific principles for the challenged testimony when Dr. Blinder

explained:

In real life, at our conclusions, which we call diagnoses, by

attempting to establish whether or not a patient's complaints fall

into an established constellation, a familiar pattern, and I spoke

earlier of the pattern of symptoms that means [sic] heart attack or

concussion, because these conclusions are being made in a clinic, on a

clinical basis, as opposed to being made in a laboratory, or as

opposed to being subject to the kinds of scientific studies that you

might use to, uh, measure the speed of light, or the speed of a

particular chemical equation, uh, they are called clinical conclusions

to distinguish them from perhaps legal conclusions or other kinds of

logical conclusions. They are based upon clinical observations made

by many, many people, many other physicians over a long period of

time. The patterns are established and the textbooks, we're taught

these patterns in medical school, and we're trained to recognize and

search them out, and recognize them when we encounter our patients in

the clinic.

Id. at 592-93. In contrast, the defendant did not present any evidence at

trial or during the motions in limine proceedings to establish that the

post-concussion syndrome diagnosis of Dr. Quillen and Dr. Blinder was not

based on reliable scientific principles.

In adopting Evidence Rule 702, this Court did not intend to interpose

an unnecessarily burdensome procedure or methodology for trial courts. By

requiring trial courts to be satisfied that expert opinions will assist the

fact-finder and that the underlying scientific principles are reliable,

Rule 702 guides the admission of expert scientific testimony. Although it

authorizes the exclusion of purported scientific evidence when the trial

court finds that it is based on unreliable principles, the adoption of Rule

702 reflected an intent to liberalize, rather than to constrict, the

admission of reliable scientific evidence. Before Rule 702(b), Indiana

courts applied the Frye[4] test which determined the admissibility of novel

scientific evidence based upon its general acceptance in the scientific

community. Hopkins v. State, 579 N.E.2d 1297, 1301-04 (Ind. 1991). Rule

702(b) is broader than the Frye test in that it permits trial courts to

consider factors other than general acceptance and thus may permit expert

testimony in new, innovative areas even though general acceptance may not

yet have been achieved but which are otherwise found to be based on

reliable scientific principles. This is analogous to the liberalizing of

the Frye rule achieved by the United States Supreme Court in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125

L.Ed.2d 469 (1993).[5] See McGrew, 682 N.E.2d at 1291 n.4. Given that

the thrust of our Rule 702(b) was to liberalize admissibility of reliable

scientific evidence, “it is most improbable that a generally accepted

scientific principle would be too unreliable to be admitted into evidence.”

13 Robert lowell Miller, Jr., Indiana Evidence §702.202 at 395 (1995).

If applied to separately evaluate every subsidiary point made during

the testimony of a qualified expert regarding matters based on reliable

science, Rule 702(b) can become excessively burdensome to the fair and

efficient administration of justice. It directs the trial court to

consider the underlying reliability of the general principles involved in

the subject matter of the testimony, but it does not require the trial

court to re-evaluate and micromanage each subsidiary element of an expert's

testimony within the subject. Once the trial court is satisfied that the

expert's testimony will assist the trier of fact and that the expert's

general methodology is based on reliable scientific principles, then the

accuracy, consistency, and credibility of the expert's opinions may

properly be left to vigorous cross-examination, presentation of contrary

evidence, argument of counsel, and resolution by the trier of fact. See

Hottinger v. Trugreen Corp., 665 N.E.2d 593, 598 (Ind. Ct. App. 1996).

As noted above, the admission of expert testimony challenged under

Rule 702 is within the discretion of the trial court. The medical

testimony was presented from clearly qualified expert witnesses as to

matters that assisted the jury. The trial court did not abuse this

discretion when it admitted the causation testimony of Dr. Quillen, the

emergency room doctor who treated the plaintiff at the time of his injury

but not in the intervening period of almost ten years to the time of trial.

Nor did the court exceed its latitude when it permitted Dr. Quillen and

Dr. Blinder to testify regarding post-concussion syndrome after considering

and rejecting the defendant's claim that it was not based on reliable

scientific principles. The medical testimony explained the basis for this

diagnosis. Notwithstanding robust cross-examination and argument of

defense counsel, Judge O'Connor overruled defense counsel’s objections. We

decline to find as a matter of law that a medical diagnosis of post-

concussion syndrome is scientifically unreliable. We further find that the

trial court was not required to exclude Dr. Blinder's causation opinions in

response to the defendant's claims that organic and physical brain damage

were not directly within his area of expertise as a physician and

psychiatrist. These are matters of weight and credibility and were

vigorously raised for the jury's consideration, and they do not require us

to find error in the admission of the evidence.

As to the defendant's claim that Dr. Blinder was not qualified to

render a vocational opinion, the trial court did not err. The doctor's

testimony that the severe blow to the head from the plaintiff's fall

resulting in continuing dizziness and headaches and preventing him from

returning to his career as high-wire performer is not a matter necessarily

restricted to the province of a vocational expert knowledgeable about the

requirements of circus high-wire artistry. That dizziness would

substantially affect the plaintiff's capacity to perform on the high-wire

is a matter of common sense, and does not require vocational expertise.

Mindful that the trial court's determination of admissibility under

Rule 702 may be reversed only for abuse of discretion, we decline to find

error on this issue.

The defendant also contends that the physicians' testimony regarding

post-concussion syndrome should have been excluded under Ind. Evid. Rule

403 because its probative value was substantially outweighed by the danger

of unfair prejudice, particularly its potential to confuse and mislead the

jury. As discussed supra, we afford trial courts wide latitude in making

the evaluation required under Rule 403, we presume the court's ruling to be

correct, a challenger bears the burden on appeal of persuading us that the

court erred in its exercise of discretion, and its ruling will be

overturned only for abuse of discretion. The trial court did not abuse its

discretion in admitting the evidence over the defendant's objections based

on Rule 403.

Damages

The defendant contends that the award of $1,400,000 in compensatory

damages is not supported by the evidence. He argues that there was

insufficient evidence that the plaintiff's medical expenses were necessary

and related to the accident, that his earning capacity was impaired, that

his future pecuniary loss was established, and that ongoing symptoms and

disability were caused by his fall at the defendant's store.

A jury determination of damages is entitled to great deference when

challenged on appeal. The applicable standard of review was discussed and

summarized by the Court of Appeals in Prange v. Martin, 629 N.E.2d 915, 922

(Ind. Ct. App. 1994), trans. denied.

Damages are particularly a jury determination. Appellate courts will

not substitute their idea of a proper damage award for that of the

jury. Instead, the court will look only to the evidence and

inferences therefrom which support the jury's verdict. We will not

deem a verdict to be the result of improper considerations unless it

cannot be explained on any other reasonable ground. Thus, if there is

any evidence in the record which supports the amount of the award,

even if it is variable or conflicting, the award will not be

disturbed.

Id. (citations omitted). Similarly, this Court has noted:

Our inability to actually look into the minds of the jurors is, to a

large extent, the reason behind the rule that we will not reverse if

the award falls within the bounds of the evidence. We cannot invade

the province of the jury to decide the facts and cannot reverse unless

the verdict is clearly erroneous.

Annee v. State, 256 Ind. 686, 690, 271 N.E.2d 711, 713 (1971).

The evidence favorable to the award of damages includes the medical

testimony that the plaintiff's fall at the defendant's store caused serious

and longstanding physical and mental injuries, particularly dizziness and

headaches. An exhibit was admitted listing the plaintiff's incurred

medical expenses of $10,147.13, to which there was no trial objection. At

the time of the accident, the plaintiff was a 34-year old internationally

recognized circus high-wire artist. For several years, he had worked for

the Ringling Brothers Circus. He performed for Presidents Nixon, Carter,

Ford, and Reagan. The plaintiff's principal circus agent provided various

details regarding the plaintiff's impaired earnings. The agent, a former

flying trapeze artist for twenty-five years, had extensive experience

booking circus performers and had forty years experience in observing high-

wire acts. The plaintiff's act had been booked for $800 per day in the

past, and there were sufficient opportunities available for these

engagements about 300 days a year. Just before the plaintiff was injured,

the agent had arranged an opportunity for him to work at Circus Circus in

Las Vegas for $2000 per week for fifty-two weeks per year. The agent also

testified regarding the expenses associated with the plaintiff's high-wire

act. The plaintiff intended to continue working his profession as a high-

wire performer until in his sixties, which was not unusual for similar

performers, according to the agent. In addition to the plaintiff's pain

and suffering from the continuing symptoms of post-concussion syndrome, his

persistent dizziness and resulting fear of falling reasonably prevented him

from resuming his profession as a circus high-wire performer and had

already resulted in substantial loss of income during the almost ten years

between the accident and the trial and will continue into the future.

We find that there was evidence to support the jury's determination

of damages. We decline to find that the verdict was clearly erroneous.

The judgment of the trial court is affirmed.

RUCKER, J., concurs. SULLIVAN, J., concurs except as to the section

captioned “Medical Testimony” as to which he concurs in result. BOEHM, J.,

dissents with separate opinion in which SHEPARD, C.J. concurs.

ATTORNEYS FOR APPELLANT

Donald D. Levenhagen

Rori L. Goldman

Indianapolis, Indiana

AMICUS CURIAE

PRODUCT LIABILITY ADVISORY COUNCIL, INC.

Chilton Davis Varner

Amy M. Power

Atlanta, Georgia

Hugh F. Young, Jr.

Reston, Virginia

Albert J. Dahm

James J. Ammeen, Jr.

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

W. Scott Montross

John F. Townsend, III

Indianapolis, Indiana

AMICUS CURIAE

INDIANA TRIAL LAWYERS ASSOCIATION

Theodore F. Smith, Jr.

Anderson, Indiana

__________________________________________________________________

IN THE

SUPREME COURT OF INDIANA

__________________________________________________________________

SEARS, ROEBUCK & CO. )

)

Appellant (Defendant Below), ) Indiana Supreme Court

) Cause No. 73S01-0002-CV-119

v. )

) Indiana Court of Appeals

MILAN MANUILOV, ) Cause No. 73A01-9805-CV-193

)

Appellee (Plaintiff Below). )

__________________________________________________________________

APPEAL FROM THE SHELBY CIRCUIT COURT

The Honorable Charles D. O’Connor, Judge

Cause No. 73C01-9705-CT-5

__________________________________________________________________

ON PETITION TO TRANSFER

__________________________________________________________________

January 23, 2001

BOEHM, Justice, dissenting.

I respectfully dissent because, in my view, the first and second

issues addressed by the majority are not independent of each other, and, in

concert, produce a flawed trial. Dr. Blinder testified, among other

things, that in his opinion Manuilov was not a malingerer. This opinion

was not based on observation of physical symptoms or scientifically valid

tests, but on Blinder’s observation of Manuilov’s behavior and accounts of

that behavior furnished by Manuilov or his counsel. Among the latter was

the assurance that Manuilov had no criminal history or anti-social

behavior.

Blinder told the jury that Manuilov had no criminal history and

suggested he was not a “wife beater.” These assumptions were explicitly

made a basis of his view that Manuilov was not a malingerer. This was not

challenged under Indiana Evidence Rule 704(b), which provides that a

witness may not testify as to whether another “witness has testified

truthfully,” so, to the extent this is an issue, it is not presented here.

However, when the defense sought to prove that the information on which

Blinder based his views was false, the trial court excluded that evidence

because of the obvious prejudice that would result from evidence that

Manuilov was allegedly involved in domestic violence. An offer of proof

established that the defense was prepared to offer evidence that Manuilov

had been charged with domestic violence on at least two occasions, and had

been found in contempt of a restraining order.

The balance under Indiana Evidence Rule 403 between probative value

and prejudice is a matter of trial court discretion and this ruling was

made under difficult circumstances by an experienced and highly respected

trial judge. Certainly in normal circumstances that balance would preclude

evidence of domestic violence or a minor criminal record even if marginally

relevant. Here, however, the evidence was offered to rebut factually

incorrect testimony that Manuilov had purposefully elicited to bolster his

claim. In my view, Manuilov opened the door as wide as it can get. It is

simply unfair to permit a party to open up the subject of his own

truthfulness, put on an expert to bolster it based on false factual

assumptions, and then successfully oppose evidence that undercuts those

assumptions under a claim of prejudice. I believe the Court of Appeals

majority was correct in ordering a new trial.

SHEPARD, C.J., concurs.

-----------------------

[1] This was the second jury trial in this case. In the first trial,

held in Wayne Superior Court, the jury was unable to reach a unanimous

verdict. The case was then venued to Shelby Circuit Court.

[2] Dr. Blinder in discussing the various factors included “unsavory

things” and gave as examples wife beating, drug abuse, minor arrest

records, and failure to pay bills.

[3] In the argument section of his brief, the defendant does not

identify the specific testimony alleged to have been erroneously admitted.

Indiana Appellate Rule 8.3(A)(7) requires, among other things, that each

error "be set forth specifically" and that the argument contain the

contentions, reasons in support, and citations to "the parts of the record

relied upon." The revised Rules of Appellate Procedure that are effective

on January 1, 2001, have analogous specific requirements. Rev. App. R. 46.

Full and careful compliance with the rule enables the reviewing Court to

address the claims asserted. In the present case, by analyzing the

Statement of Facts section of the defendant's brief, we have been able to

discover the specific errors claimed and the applicable parts of the

Record. This unconventional presentation has made our review challenging.

[4] Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)(required

that proponents of novel scientific evidence demonstrate that the

scientific principle or technique upon which the opinion testimony depended

was “sufficiently established to have gained acceptance in the particular

field in which it belongs.”).

[5] The defendant's argument is based in large part upon federal

decisions applying Daubert. While potentially helpful, federal

jurisprudence interpreting Daubert is not binding on Indiana courts in

deciding evidentiary issues. See McGrew, 682 N.E.2d at 1290; Steward v.

State, 652 N.E.2d 490, 498 (Ind. 1995).