In diversity invasion of privacy and breach of confidentiality trial by plaintiff patient against defendant doctors who performed cosmetic surgery on the patient, reversing in part and remanding for a new trial on the level of punitive damages because the trial court erroneously excluded testimony by the reporter who received from the defendant doctors certain nude photographs of the plaintiff patient, which subsequently were published in the newspapers; the trial court's exclusion of the witness's testimony on the basis that its use would "unfair[ly] surprise" the defendants was not authorized by FRE 403 but could be sanctioned under Fed. R. Civ. P. 37 under appropriate circumstances, in Doe v. Young, __ F.3d __ (8th Cir. Dec. 28, 2011) (No. 10–3442)
FRE 403 authorizes a court to exclude relevant evidence if it is "substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." But what about exclusion because the proffered evidence "would be an unfair surprise" to the other party? The Eighth Circuit recently explained that while FRE 403 specifies various reasons for exclusion of relevant evidence, this does not include "unfair surprise" to a party. That problem is handled, instead, through the use of discovery rules and the use of appropriate sanctions under Fed. R. Civ. P. 37.
In the case, the circuit concluded that the trial court erred by excluding testimony by a reporter who wrote an article on the defendants' medical practice. The article included "before and after surgery nude frontal images of Doe from her shoulders to her knees," as an example of the defendants' services to a "massive-weight-loss patient." The article "did not identify Doe and the images did not reveal her face." The plaintiff alleged that the defendants gave the nude photographs of Doe's body to the reporter and that this led to their publication by the newspaper.
At trial, the defendants acknowledged that they
cooperated with [a] Riverfront Times ... writer ... in her preparation for the article, but the [defendant] surgeons claimed they believed the article was going to focus on “surgery for people who had had massive weight loss, not about [the defendant's medical] practice.” In addition to granting [reporter] Hinman interviews and access to their practice, the appellees gave Hinman a computer disk with a PowerPoint presentation. The presentation, which was originally created for an educational seminar ... included numerous patient photographs. Fourteen of the photographs were of Doe, comprising the images ultimately used in the [Riverfront Times'] article.Doe, __ F.3d at __.
The circuit identified the problem with excluding the reporter's testimony, as it :
was highly probative of Doe's claims for punitive damages, which, according to the jury instructions, required a finding the appellees' conduct was “outrageous because of ... evil motive or reckless indifference to the rights of others.” A juror would more likely find the appellees showed reckless indifference toward their fiduciary duties to Doe if the juror believed the appellees gave Hinman the PowerPoint presentation without instructing her not to use the pictures or, at a minimum, without getting Hinman's assurance the appellees would have an opportunity to approve the article before the article was published."Doe, __ F.3d at __.
The trial court's exclusion of the reporter's testimony under FRE 403 was inappropriate explained the circuit, because:
[N]ot all relevant evidence is admissible. Rule 403 of the Federal Rules of Evidence provides that 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, waste of time, or needless presentation of cumulative evidence.” Absent from this list is “unfair surprise”—the district court's principal justification for exclusion.Doe, __ F.3d at __ (citing Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008) (citing Fed.R.Civ.P. 37(c)(1)); Mawby v. United States, 999 F.2d 1252, 1254 (8th Cir. 1993)).
That is not to say excluding evidence for unfair surprise is never appropriate. Under Rule 37 of the Federal Rules of Civil Procedure, “[w]hen a party fails to ... identify a witness in compliance with [Fed. R. Civ. P.] 26(a) or (e) ... [t]he district court may exclude the ... testimony as a self-executing sanction unless the party's failure to comply is substantially justified or harmless.” One of the purposes of discovery is to eliminate unfair surprise. Rule 37's enforcement mechanism helps accomplish this purpose.
In the Doe case, the circuit noted that the trial record disclosed that the trial judge "did not reference Rule 37 as justification for excluding" [reporter] Hinman's testimony." For that matter, the record did not "indicate a Rule 26 disclosure violation" which could trigger the imposition of Rule 37 discovery sanctions. Neither Civil Procedure Rules 26 and 37 "support the district court's exclusion of [the reporter]'s testimony. Nor could FRE 403 serve as the foundation for sanctions since prevention of unfair surprises was not one of the enumerated examples that would justify the use of that rule. Doe, __ F.3d at __
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