Erickson v. KERR, MDPS, INC.

Durham, J.

(concurring in part, dissenting in part) — I agree with the majority opinion in all regards except the admission of one particular statement made by the Erick-sons’ family physician, Dr. Kerr. In 1987, Phillipa Erickson committed suicide by consuming an overdose of sleeping pills. Dr. Kerr had prescribed the pills. Almost a year after her death, Dr. Kerr, while treating her husband, asked how Phillipa "was doing”. In the subsequent malpractice action brought by the Erickson family against Dr. Kerr, the Erick-sons tried to introduce this incident as evidence of Dr. Kerr’s poor memory in his treatment of Phillipa. I disagree with the admission of this statement for two reasons. First, as a procedural matter, this issue was not preserved for appeal. Second, this particular statement has no bearing on Dr. Kerr’s professional competence or his credibility.

In response to a pretrial motion in limine, the trial court ruled that Dr. Kerr’s comment could not be used as substantive evidence by the Plaintiff. However, the court’s ruling on the motion in limine was only a preliminary ruling. The court explicitly left open the possibility that this evidence could come in as the trial progressed, as reflected in this colloquy regarding the admissibility of this conversation:

the court: He was obviously forgetful in this instance. Does that indicate general forgetfulness? You want to use it to impeach him. He says he can remember — you have to lay a foundation, if he says he never forgets anything.

mr. mcivor: Well, clearly, he won’t say that, your Honor.

*194 the court: I think that’s how you lay a foundation for impeachment. I think you have to lay a foundation to use for impeachment. I don’t see how it can come in as substantive evidence. It’s not substantive evidence of anything.

mr. vulliet: Well, they are going to be testifying apparently that Dr. Kerr relies on his memory to treat his patients. Say, "well, you don’t always remember everything, do you, Doctor?” mr. mcivor: I guess we will have to wait and see what we do testify to.

the court: I’m saying you can lay a foundation for impeachment. But it doesn’t come in as substantive evidence now. I will grant the motion.

With respect to any motion in limine, if circumstances seem, during the course of the trial, that counsel thinks that all bets are off, you don’t do it in front of the jury. You tell the Court and let me go into it.

But I will grant the motion on No. 5 now. And the plaintiff may be allowed to establish a foundation for impeachment.

Report of Proceedings (RP) (Oct. 7, 1991), at 37-38.

The judge, rather than making a final ruling, left it open for counsel to challenge this exclusion later if the evidence appeared to become probative as the trial progressed. No objection, challenge or offer of proof was ever made.

When a trial judge makes a tentative ruling on a motion in limine, leaving open the possibility of later admission, a party is obligated to raise the issue at the appropriate point during trial. State v. Noltie, 116 Wn.2d 831, 844 , 809 P.2d 190 (1991). Failure to make such later objection waives the issue for purposes of appellate review. State v. Koloske, 100 Wn.2d 889, 896 , 676 P.2d 456 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124 , 761 P.2d 588 (1988). Hence, any objection to the trial court’s preliminary ruling was waived by Erickson’s failure to raise the issue again once the trial had begun.

Even were we to ignore these procedural infirmities, the majority has given excessive weight to the probity of this evidence in conducting its ER 403 analysis. This rule allows relevant evidence to be "excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”. ER 403. Trial court rulings under ER 403 are reviewed under an *195 abuse of discretion standard. Carson v. Fine, 123 Wn.2d 206, 225 , 867 P.2d 610 (1994).

The majority admits this evidence is prejudicial, but finds that its prejudicial effect is substantially outweighed by its probity. Majority, at 191. Before the probative value of this evidence can be determined, the purpose of the evidence must be clear. There is a vital difference between Dr. Kerr’s ability to remember his course of treatment, relying on his notes and memory, and his ability to avoid a spontaneous social blunder. The incident represents only a misfired greeting, and does not imply a lack of intelligence, credibility, or professional competence. If the accidental misuse of such reflexive social rituals is probative of credibility or competence, every professional who has had to deal daily with more than one or two clients must be suspect.

On the other hand, if this evidence is considered probative of Dr. Kerr’s memory generally, then it is merely cumulative, as there was a wealth of other evidence indicating his memory was imperfect. The majority is factually mistaken when it claims that "there was little, if any, other evidence probative of Dr. Kerr’s forgetfulness”. Majority, at 191. The record is replete with examples of the doctor admitting that he could not remember some detail. See, e.g., RP (Oct. 10, 1991), at 258, 265, 268, 276, 287, 293, 298. When asked on cross examination whether his memory was infallible, he truthfully answered, "No”. RP (Oct. 10, 1991), at 279. Thus, the fallibility of his memory was never an issue, making this single insensitive comment marginal at best. State v. Cren-shaw, 98 Wn.2d 789, 807 , 659 P.2d 488 (1983).

For these reasons, I respectfully dissent on this issue.

Guy, J., concurs with Durham, J.