dissenting
I dissent. A determination of the admissibility of expert testimony is a matter generally within the discretion of the trial judge and will not be disturbed absent an abuse of discretion. Buzzard v. State, 669 N.E.2d 996, 999 (Ind.Ct.App.1996). I would affirm the trial court’s ruling that the prejudicial effect of admitting evidence of alleged domestic violence far outweighed any probative value to the jury.
I would remind the majority of their own caveat that appears in this opinion that we must confine our review to the propriety of the ruling that the lower court was forced to make amidst the tumult and the shouting of a jury trial. It seems their analysis goes far beyond the confines of our appellate review.
Domestic violence evidence is prejudicial by its very nature. The Fourth Circuit Court of Appeals has stated: “We accept without need of extensive argument that implications of child molestation, homosexuality, and abuse of women unfairly prejudice a Defendant.” United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993). Evidence of domestic violence without a conviction goes to the character of the offender only. Rule 608(b) is very clear that a trial court cannot allow inquiry into specific acts, not amounting to a conviction, on cross examination of the impeachee. There are, of course, exceptions to the Indiana rule that allow inquiry into specific acts when the door has been opened by other evidence. Therein lies the rub.
Dr. Blinder’s statement that malingerers are often “wife beaters” does not open the door to allow into evidence all allegations of any type of domestic abuse. In this case, Sears sought to submit to the jury certified records from a civil family court in Clark County, Nevada, that contained allegations of domestic violence made by Manuilov’s girlfriend. During the offer to prove, Manuilov categorically denied the allegations. If this testimony of domestic violence that had not been adjudicated in Nevada were allowed, there would have been a trial within a trial. Even the protective order was issued without hearing. Further, there were no criminal charges filed and the civil protective order had already been dissolved by the court. I believe that we must carefully guard what type of “character” evidence is admitted even if the “door” has been opened. I agree with Judge O’Connor when he stated:
The prejudicial impact of the jury receiving this information would certainly be, regardless of what kind of limiting instructions the court gave or cautioned or so forth, would far outweigh, in my opinion, the probative value.
*992(R. 797).
Even if the majority opinion is correct, that the allegations of domestic abuse by Manuilov’s girlfriend were admissible, this extraneous factor does not rise to the level of reversible error. In City of Indianapolis v. Swanson, 448 N.E.2d 668, 670 (Ind.1983), it is easy to see how Swanson’s statements with respect to his alleged suffering from epilepsy and his inability to make a living “went to the very heart of his claim against the City.”
In this case, however, Dr. Blinder’s statement describing the profile of people who misrepresent symptoms in cases with “subjective” disabilities, does not go to the heart of this case. His testimony was that of an expert giving his opinion that considered approximately thirty different symptoms of a malingerer, including “they’re wife beaters.” In light of the fact that the offer to prove was an affidavit alleging unadjudicated acts of domestic violence, it is hard to say that this is the “heart” of the case. The erroneous exclusion of evidence requires reversal “only if the error related to a material matter of substantially affects the rights of the parties.” Zemco Mfg., Inc. v. Pecoraro, 703 N.E.2d 1064, 1069 (Ind.Ct.App.1998).
Moreover, the relevancy of this evidence is questionable. The alleged acts of domestic violence took place on December 13, 1995. However, Blinder testified that his last assessment of Manuilov was in June, 1995, and that Manuilov and his attorney had informed him that Manuilov had “no criminal history or [history of] anti-social behavior.” There is no inconsistency here. Even in the alleged incident of domestic violence actually occurred, it did not occur until six months after Blinder’s last assessment of Manuilov. Thus, there was no evidence that at the time of Blinder’s assessment of Manuilov he was misinformed by Manuilov or his counsel regarding an alleged incident that had yet to take place. Accordingly, there was no credibility issue concerning Manuilov to which this evidence would be relevant. Furthermore, the remoteness of this incident additionally calls into question the relevancy of the testimony. Manuilov was injured in January, 1988, and the alleged incident of domestic violence occurred in December, 1995, almost eight years after his injury. The relevancy of an incident that occurred eight years after an injury .to show that the plaintiff had been a malingerer during the previous eight years and continued to be malingerer thereafter, is at best suspect and any minimal relevancy was clearly outweighed by the unfair prejudice the evidence would have caused if admitted.
I would also affirm the trial court’s decision to admit the opinions of Quillen and Blinder concerning post-concussion syndrome that is raised in Issue II. Ind.Evidence Rule 703 allows “an expert witness to base an opinion on information received from others before trial, if the information is of a sort that other experts in the field reasonably” rely upon. Robert Miller, Jr., Indiana Practice § 703.106 at 423 (1995). The opinions of the doctors in this case were based on treatment, testing, record review, and examination of Manuilov. It is not necessary to apply a Daubert analysis to such routine medical opinions. Collins v. Commonwealth, 951 S.W.2d 569, 575 (Ky.App.1997). Post-concussion syndrome is a not a recent development in medical science. The resulting-symptoms of which he complains — recurrent headaches and dizziness — are not “purely subjective” when they prevent you from assuming your life-long career. Psychologists are qualified to diagnose mental and emotional disorders that have a physical etiology, such as concussion. Dr. Blinder testified that Manuilov will continue to fear falling from the tightrope because of the headaches and dizziness. The anxiety and depression from his fear of the high-wire resulted from his physical inability to perform while dizzy and in pain. (R. 610-611). The majority states that there was no indication that Dr. Blinder was qualified to offer an expert opinion on the likelihood that Manuilov could resume his career as a high-wire performer. I do not understand their reasoning. The diagnosis of post-concussion syndrome is a clinical diagnosis. Dr. Blinder testified:
They (symptoms) 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 text books, we’re taught these patterns *993in medical school, and we’re trained to recognize and search them out, and recognize them when we encounter our patients in the clinic.
(R. 592-593).
It is within Dr. Blinder’s expertise to opine that Manuilov cannot perform on a high-wire.
Dr. Quillen was-, the emergency room doctor at Reid Memorial Hospital who saw Man-uilov immediately after the fall. The diagnosis at that time made by Dr. Quillen was post-concussion dizziness. (R. 514.) He testified that Manuilov had symptoms related to post-concussion syndrome and, in fact, suffers from post-concussion syndrome. His opinion is based on his medical education, his background, training, credentials and experience, the medical records at Reid Memorial Hospital, the information he, obtained at the time of the accident and Manuilov’s testimony concerning his current symptoms. None of this is subject to a Daubert analysis.
The majority opinion concedes that such testimony of an expert witness (Dr. Quillen) might be relevant, probative, and only nominally prejudicial in other instances, that the testimony in this case was susceptible of misleading the jury on the issue of causation. The majority fears that the jury will infer that because Manuilov suffered from post-concussion syndrome, his headache and dizziness symptoms must be the result of a physical brain injury he incurred at Sears. I believe it is up to the jury to decide issues of causation and to make those inferences. The absence of justification for rewriting the causation element of tort is troubling in light of our constitutional guarantee of trial by jury.