Judd v. Rodman

United States Court of Appeals,

Eleventh Circuit.

No. 95-8888.

Lisa Beth JUDD, Plaintiff-Appellant,

v.

Dennis RODMAN, Defendant-Appellee.

Feb. 13, 1997.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:94-CV-1063-ODE), Orinda D. Evans,
Judge.

Before BIRCH, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
SCHWARZER*, Senior District Judge.

BIRCH, Circuit Judge:

Lisa Beth Judd filed this action against Dennis Rodman and

alleged that he wrongfully transmitted genital herpes to her. The

jury entered a verdict in favor of Rodman. Judd appeals the final

judgment on the ground that evidence of her prior sexual history,

employment as a nude dancer, and breast augmentation surgery should

have been excluded under Rule 412 of the Federal Rules of Evidence.

Rodman argues that Rule 412 is not applicable to this case and, in

the alternative, that Judd waived her right to appeal the issue by

failing to object at trial. We affirm.

I. BACKGROUND

Judd contracted genital herpes following a sexual relationship

with Rodman. She subsequently filed a complaint against Rodman

alleging several causes of action related to her contraction of

genital herpes: tortious transmission of a sexual disease,

*
Honorable William W. Schwarzer, Senior U.S. District Judge
for the Northern District of California, sitting by designation.
battery, fraud, and intentional infliction of emotional distress.1

During discovery, Rodman asked numerous questions about Judd's

prior sexual history, employment as a nude dancer, and breast

augmentation surgery.

When Rodman failed to file a timely motion to admit evidence

of Judd's prior sexual behavior or sexual predisposition,2 Judd

filed before trial several motions in limine to exclude evidence of

her prior sexual history, employment as a nude dancer, and breast

augmentation surgery.3 Rodman then filed a conditional motion

under Rule 412(c), arguing that Rule 412 was inapplicable but that,

if applicable, the evidence of Judd's prior sexual history should

be admitted under Rule 412(b) because its "probative value

substantially outweighs ... the danger of unfair prejudice."4

At the pretrial conference, the trial judge denied Judd's

motions in limine5 but stated that "overruling the motion in limine

does not mean the evidence is going to come in at trial.... I just

1
Judd also sought punitive damages and attorneys' fees and
costs.
2
Rule 412(c) provides that the party seeking to introduce
evidence excludable under Rule 412(a) must file a written motion
at least fourteen days prior to the trial describing the evidence
and the purpose for introducing it.
3
The motions to exclude evidence of Judd's prior sexual
relationships and nude dancing employment were based on Rule 412.
The motion to exclude evidence of breast augmentation was based
on Rule 402.
4
Rodman also argued that given the uncertainty regarding the
applicability of Rule 412, the trial court should excuse his
failure to file the motion at least fourteen days before trial as
required by Rule 412(c)(1)(A). Rule 412(c) provides that the
court may "for good cause require a different time for filing or
permit filing during trial."
5
One motion was granted but is not at issue in this appeal.
need to hear more before I can rule.... [We] might as well just

take the issues up one at a time where necessary outside the jury's

presence." R4-3-4. The trial judge further stated that evidence of

nude dancing and breast augmentation surgery, while probably not

relevant to liability, could be relevant to damages. R4-5-6. The

trial judge instructed Judd to make the objection at trial to the

evidence "just as though it had never been brought up before." R4-

5.

At the beginning of the trial, Judd requested clarification as

to the applicability of Rule 412. The trial judge stated, "I think

that Rule 412 does not apply." Prior to testifying, Judd objected

under Rule 412 to admission of evidence of her employment as a nude

dancer. She explained that if the court overruled the motion she

intended to introduce the evidence on direct examination. The

motion was overruled, and Judd testified on direct examination

regarding her nude dancing and previous sexual history. On

cross-examination, Rodman questioned Judd regarding her breast

augmentation surgery. Judd objected on the basis of relevancy.

The court overruled the motion.

No limiting instructions to the jury were requested by Judd.

The jury returned a verdict for Rodman. The court subsequently

entered a final judgment in Rodman's favor which Judd appeals.

II. DISCUSSION

We review a district court's ruling on the admissibility of

evidence for abuse of discretion. Joiner v. General Elec. Co., 78

F.3d 524, 529 (11th Cir.1996), petition for cert. filed, 65

U.S.L.W. 3110 (U.S. Aug. 5, 1996). We overturn evidentiary rulings
only when the moving party has proved a substantial prejudicial

effect. King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir.1978).

Thus, we review the trial court's admission of evidence under Rule

412 for an abuse of discretion and reverse only when the party

asserting error shows that the error prejudiced a substantial right

of that party.

Rule 412, as amended in 1994, applies to "any civil ...

proceeding involving alleged sexual misconduct." Fed.R.Evid.

412(a). The rule provides that "[e]vidence offered to prove that

any alleged victim engaged in other sexual behavior," Fed.R.Evid.

412(a)(1) and "[e]vidence offered to prove any alleged victim's

sexual predisposition," Fed.R.Evid. 412(a)(2), are generally

inadmissible in civil cases. An exception is provided in Rule

412(b)(2) for evidence of sexual behavior and predisposition which

is otherwise admissible if "its probative value substantially

outweighs the danger of harm to any victim and of unfair prejudice

to any party." Fed.R.Evid. 412(b)(2). To date, Rule 412 has only

been applied to civil cases involving rape and sexual harassment.

E.g., Sheffield v. Hilltop Sand & Gravel Co., 895 F.Supp. 105

(E.D.Va.1995) (a sexual harassment case); Alberts v. Wickes Lumber

Co., No. 93 C 4397 (N.D.Ill. Mar.15, 1995) (a civil rape case).

Thus, the applicability of Rule 412 to cases involving transmission

of a sexually transmitted disease has not yet been determined by

any court.6

6
The district court in this case did not issue a conclusive
ruling regarding the applicability of Rule 412. Significantly,
although the court ordered that the pertinent motions in limine
be sealed consistent with the procedural requirements of Rule
412(c)(2), when pressed for clarification as to the applicability
 Because we find that any error in admitting evidence of Judd's

breast augmentation surgery, prior sexual history, and employment

as a nude dancer was not substantially prejudicial, we need not

analyze the applicability of Rule 412 to cases involving wrongful

transmission of a sexually transmitted disease. Thus, we assume,

without deciding, that Rule 412 applies to the facts presented in

this case and address in turn the admissibility of evidence of

breast augmentation surgery, prior sexual history, and nude

dancing.

A. Breast Augmentation Surgery

Judd argues on appeal that evidence of her breast

augmentation should have been excluded under Rule 412. Rule 103 of

the Federal Rules of Evidence, however, provides that error may not

be predicated on a ruling admitting evidence unless there was "a

timely objection or motion to strike appear[ing] of record."

Fed.R.Evid. 103(a)(1). Furthermore, an objection on specific

grounds does not preserve the error for purposes of appeal on other

grounds. United States v. Guerrero, 650 F.2d 728, 738-739 (5th

Cir. Unit A 1981) (holding that an objection for failure to lay a

proper predicate did not preserve an error for inadmissible

extrinsic act and hearsay). In this case, the motion in limine

filed with regard to the admissibility of evidence of breast

augmentation surgery cited only Rule 402 of the Federal Rules of

Evidence. Similarly, when Judd was questioned about her surgery on

cross-examination, her attorney objected only on the ground of

of Rule 412 at the beginning of trial, the trial judge stated, "I
think Rule 412 does not apply." R5-69.
relevancy. Judd's failure to object on the basis of Rule 412

precludes her from raising the issue of inadmissability under Rule

412 on appeal. We therefore conclude that Judd has waived her

objection based on Rule 412 to the admission of evidence regarding

her breast augmentation surgery.

B. Prior Sexual History

Judd contends that admission of evidence of her prior sexual

history warrants a reversal of the judgment against her. To find

error warranting reversal, however, we must find not only that Judd

made a timely objection, as previously noted, but also that a

substantial right was affected. See Fed.R.Evid. 103(d).

Judd argues that her motion in limine to exclude under Rule

412 evidence of her prior sexual history was sufficient to preserve

the issue for appeal. We previously have held that, as a general

proposition, an overruled motion in limine does not preserve a

party's objection for purposes of appeal; a timely objection at

trial is required. Collins v. Wayne Corp., 621 F.2d 777, 784 (5th

Cir.1980). Under certain circumstances, however, a motion in

limine may be adequate to preserve an error for appeal if a good

reason exists not to object at trial. Rojas v. Richardson, 703

F.2d 186, 189 (5th Cir.) (citing Reyes v. Missouri Pac. R.R., 589

F.2d 791, 793 n. 2 (5th Cir.1979)), vacated on other grounds, 713

F.2d 116 (5th Cir.1983). In Reyes, our predecessor circuit found

a motion in limine sufficient to preserve the movant's objection to

the admission of certain evidence when the movant, as a matter of

trial strategy, presented the objectionable evidence himself on

direct examination to minimize its prejudicial effect. Reyes, 589
F.2d at 793 n. 2. In rejecting the argument that the movant had

waived the error, we determined that the plaintiff had shown that

his introduction of objectionable evidence on direct examination

was an attempt to soften the blow of damaging information and,

therefore, represented valid trial strategy. Id.

In this case, Judd presented evidence of her prior sexual

history on direct examination only after the court overruled her

motion in limine to exclude the evidence and suggested at trial

that Rule 412 was inapplicable. We find that this constituted

valid trial strategy and, as a result, that Judd did not waive her

objection. See Rojas, 703 F.2d at 189 ("An objection to one's own

testimony is an absurdity.... This Circuit consequently found the

offensive use of damaging information to fall outside the general

rule requiring a timely objection.") We conclude that Judd's

motion in limine preserved the issue for appeal.

To warrant reversal, Judd must also establish that a

substantial right was affected by the admission of the evidence.

Rule 412(a) provides that "evidence offered to prove that any

alleged victim engaged in other sexual behavior" will generally be

excluded. Fed.R.Evid. 412(a). Rule 412(b) provides an exception

to exclusion when the "probative value substantially outweighs the

danger of harm to any victim and of unfair prejudice to any party."

Fed.R.Evid. 412(b).

Judd contends that, under the balancing test of Rule 412(b),

evidence of her prior sexual history should have been excluded

because its probative value failed to outweigh substantially the

unfair prejudice toward her. A central issue of the case, however,
is whether Judd contracted genital herpes from Rodman. Expert

testimony revealed that the herpes virus can be dormant for long

periods of time and the infected person can be asymptomatic.

Consequently, evidence of prior sexual relationships and the type

of protection used during sexual intercourse is highly relevant to

Rodman's liability. The court did not abuse its discretion in

admitting evidence of Judd's prior sexual history.7

C. Employment as a Nude Dancer

Judd contends that evidence of her prior employment as a nude

dancer should have been excluded under Rule 412(a)(2) because it

was offered to prove her sexual predisposition. Judd objected to

the admission of this evidence both in a motion in limine and at

trial and, thus, preserved the issue for appeal. She failed,

however, to show that a substantial right was affected by the

admission of the evidence.

As discussed above, the district court could have admitted

evidence of Judd's nude dancing upon a finding that the probative

value substantially outweighed the prejudicial effect. The

determination under such a balancing test is necessarily highly

fact specific. Judd testified that she felt "dirty" after she

7
We also reject Judd's argument that she was substantially
prejudiced by the failure of Rodman and the court to follow the
procedural requirements of Rule 412(c). Rodman's conditional
motion to admit evidence under Rule 412 and his questions during
discovery put Judd on notice that he intended to introduce
evidence of her prior sexual history. Furthermore, although the
trial judge failed to provide a hearing in camera before
introduction of the evidence, she stated at the pretrial
conference that issues of admissibility could be taken up outside
the presence of the jury at trial. Judd waived the hearing by
introducing the evidence herself without requesting a hearing in
camera.
contracted herpes. The court determined that Judd's employment as

a nude dancer before and after she contracted herpes was probative

as to damages for emotional distress because it suggested an

absence of change in her body image caused by the herpes infection.

Thus, although we recognize the potentially prejudicial nature of

the evidence of Judd's nude dancing, we find that, given the

specific facts of this case and the considerable evidence of sexual

history and predisposition which were appropriately admitted, the

district court could have decided, within its discretion, that the

probative value of the evidence substantially outweighed any

prejudicial effect. Accordingly, we resolve that Judd has not

shown that the court's admission of this evidence constituted

reversible error.

III. CONCLUSION

In this civil case involving wrongful transmission of a

sexually transmitted disease, Judd contends that the district court

abused its discretion in not excluding, under Rule 412 of the

Federal Rules of Evidence, evidence of Judd's breast augmentation

surgery, prior sexual history, and employment as a nude dancer.

Assuming, without deciding, that Rule 412 is applicable to the

facts presented in this case, we conclude that the court's

admission of this evidence did not constitute reversible error.

Specifically, we resolve that (1) Judd failed to preserve for

appeal the admissibility under Rule 412 of evidence of her breast

augmentation surgery, and (2) although Judd preserved her objection

based on Rule 412 regarding evidence of her sexual history and nude

dancing, this evidence was substantially more probative than
prejudicial and, therefore, could have been properly admitted at

trial. Accordingly, even assuming, arguendo, that there were

errors in the admission of evidence in this case with respect to

Rule 412, these errors did not affect Judd's substantial rights

and, consequently, do not merit reversal. We AFFIRM.