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).