by: Colin E. Flora
There are some weeks in which finding a single decision to discuss can be quite difficult. Then there are weeks like this past week. We will narrow our focus to the Indiana Supreme Court decision Sims v. Pappas, which addressed the admissibility of prior alcohol-related convictions in a trial for injuries from a drunk-driving car crash. However, because there were a couple other decisions that merited discussion, we will take a brief look at them first. If you only want the Sims discussion, skip the next two sections and pick up below.
I. Oaks v. Chamberlain: Cross-Examination of Medical Expert
In Oaks v. Chamberlain, the Court of Appeals of Indiana was presented with a question of first impression: whether a medical expert testifying about the standard of care in a medical malpractice case can be cross-examined about his/her personal practice. Surprisingly, at trial, the plaintiff was not permitted to cross-examine the defendant’s medical expert on the expert’s personal practice. The court, looking to guidance from other states and Indiana Evidence Rule 607 held that the expert should have been subject to cross-examination as to his personal practice because it contradicted his testimony regarding the standard of care. In doing so, the court rejected the defendant’s argument that the testimony would do no more than prove that the expert goes above the baseline standard of care. The court also rejected an argument for exclusion under Indiana Evidence Rule 403, which we discussed at length last week, concluding that juries can understand the distinction between the standard of care and an attack on the credibility of a witness whose testimony is used to establish the standard of care.
II. Sandberg Trucking, Inc. v. Johnson: Duty to Warn of Hazard on Road
Sandberg Trucking, Inc. v. Johnson is a case eerily similar to one we discussed in August of last year. In Sandberg, a woman was seriously injured and her fiancé, who was driving the vehicle, was killed after their car struck a stopped semi on the shoulder of a highway. The truck had stopped after hitting a deer. The driver had exited his vehicle but had not turned on his hazard lights or placed reflective triangles. Moments before the accident, the driver turned on the truck’s hazard lights and reached for the case with the reflective triangles, but the car struck the truck before the driver was able to open the case.
The jury found the semi driver 13% at fault for the accident, awarding a substantial judgment against him in favor of the seriously injured woman. The jury’s allocation of fault against the fiancé would have been enough to defeat any case brought on his behalf. The court affirmed the award, finding substantial guidance in last year’s decision in J.B. Hunt Transport, Inc. v. Zak, in which the court affirmed a verdict for the plaintiff where a semi, which was parked in the median of a highway during icy conditions, was hit when a car slid off the highway, injuring the driver of the car.
Notably, in Zak, the driver testified that he would have slowed down had he seen the emergency flashing lights. Due to the death of the driver and head injury to the passenger, in Sandberg, no such testimony could be adduced. Nevertheless, the court determined that the jury could permissibly infer from the evidence that a different result might have occurred had the semi driver adhered to federal regulations on use of flashing lights and triangles:
Moreover, we will not adopt a rule that effectively eliminates the possibility of a verdict in favor of the plaintiff(s) in failure-to-warn cases if the relevant person does not testify that he or she would have done anything differently had he or she been warned of the danger. Put bluntly, it will not be uncommon in such cases for that person to be dead. The jurors should be entitled to infer that things would have played out differently had there been a warning, despite the lack of testimony to that effect.
III. Sims v. Pappas: Evidence in Drunk Driving Injury Cases
Finally we come to our main case for discussion, Sims v. Pappas. The decision is the last authored by Justice Robert Rucker as a member of the Indiana Supreme Court. Justice Rucker will take senior judge status and return to assist the Court of Appeals of Indiana, of which he was a judge for eight years prior to his appointment to the state’s highest court.
The case stems from a head-on collision caused by a drunk driver whose BAC was .18% at the time of the wreck. The accident occurred in 2013, but the drunk driver had a history of alcohol offenses. He was convicted of reckless driving after failing a chemical test in 1996 and had lost his license in 1983 after an accident while intoxicated. The prior convictions came in at trial, and the jury returned a substantial verdict for the other driver and his wife.
On appeal, the drunk driver argued that his prior convictions were not admissible evidence. As we discussed in a similar analysis last week, the first step of the resulting analysis is whether the evidence is relevant under the broad previsions of Indiana Evidence Rule 401. As a general rule, prior bad conduct is not admissible to prove liability or harm in the present case. The basic logic being that just because you caused a car wreck in the past does not mean that you caused the one at issue now. It also generally has nothing to do with the actual injuries suffered, i.e. the compensatory damages.
The Indiana Supreme Court, as had the court of appeals, agreed that the prior alcohol convictions are not relevant to prove compensatory damages–liability was stipulated, so not at issue in the case. That, however, does not mean that the evidence was inadmissible. The injured driver asserted a claim for punitive damages. The court recognized:
“The central purpose of punitive damages is to punish the wrongdoer and to deter him from future misconduct . . . .” To come within the embrace of a punitive damages claim the defendant must have “subjected other persons to probable injury, with an awareness of such impending danger and with heedless indifference of the consequences.” The tortious conduct must be marked by malice, fraud, gross negligence, or oppressiveness not resulting from “mistake of law or fact, honest error of judgment, overzealousness, mere negligence or other such noniniquitous human failing.”
In Rule 401 terms the question at this juncture is whether evidence of Sims’ prior alcohol related driving offenses had any tendency to make a fact—for example, gross negligence—more or less probable than it would be without the evidence; and whether gross negligence for example is of consequence in determining the action. Gross negligence is defined as “[a] conscious, voluntary act or omission in reckless disregard of . . . the consequences to another party.”
As the Court of Appeals has previously observed evidence of similar acts may be admissible “because of the light which it throws on the state of mind of a person, as for example, his knowledge, motive or intent.” The Court of Appeals has also held “evidence of [the tortfeasor’s] four previous DUI convictions was clearly relevant to his state of mind at the time of the accident and whether his actions were willful and wanton justifying the imposition of punitive damages.” We agree with these precedents and conclude that evidence of Sims’ two prior similar acts had at least some, if not substantial, “tendency” in demonstrating whether Sims’ conduct at the time of the collision was a conscious and voluntary act committed in reckless disregard of the consequences to others. The evidence was thus relevant within the meaning of Rule 401.
The Court made an important point about the limited scope of the admissibility of the evidence and actions that can be taken to keep the evidence limited to its permissible scope. The prior convictions are only admissible to establish a basis for punitive damages. To the degree that either party was concerned about the evidence, the party could have requested an instruction to the jury under Indiana Evidence Rule 105 or requested that the trial be submitted to the jury in stages under Indiana Trial Rule 42(C).
The next question was whether, despite being relevant under Rule 401, the evidence could be barred under Rule 403, which renders otherwise admissible evidence inadmissible if its probative value is outweighed by its prejudicial value–i.e., it is more likely to confuse the jury than to help them properly decide the case. The drunk driver attempted to buttress his argument by invoking Indiana Evidence Rule 609, which governs admissibility of criminal convictions as evidence. Under Rule 609, certain convictions are admissible without any direct connection to the case to attack the credibility of a witness. Rule 609 places a time component on automatically allowing evidence of certain convictions, leaving the door open to a balancing test for admitting stale convictions.
The court rejected the reliance on Rule 609 because the prior convictions were not admitted for credibility issues. Importantly, Rule 609 is not a rule that renders evidence admissible, it is a conduit for admitting evidence. Consequently, the argument came down to Rule 403. This meant that the argument that the convictions were stale had no legs, because Rule 403 does not have a temporal limitation.
The court fond that 403 did not prohibit admission of prior alcohol convictions in asserting a punitive damages claim for an accident caused by a drunk driver:
Here, given the underlying rationale for admission of past criminal offenses, we conclude the remoteness of a prior offense does not affect the admissibility of the evidence. A 30-year old prior offense may have just as much persuasive force as a 30-day old prior offense. In sum we conclude that although evidence of Sims’ prior conviction was prejudicial it was not unfairly so. In the end we are of the view that the remoteness of a prior offence is a matter of weight to be determined by the jury—not a matter of admissibility. Stated somewhat differently, the parties can argue, and the factfinder can determine, just how much weight to give a remote-in-time criminal conviction. But the fact of an otherwise stale conviction does not render the evidence inadmissible as matter of law. In this case the trial court did not abuse its discretion in admitting evidence of Sims’ 1983 and 1996 alcohol-related traffic offenses.
For those of you who may be wondering whether Indiana Evidence Rule 404, which generally bars character evidence, applies, the answer is no.
Generally employed in the context of criminal law and procedure, Indiana Evidence Rule 404(b) provides in relevant part: “Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” This Rule “is designed to prevent the jury from making the ‘forbidden inference’ that prior wrongful conduct suggests present guilt.” Hence in the criminal context much caution is used when exploring the circumstances under which prior offenses are introduced into evidence lest the jury infer that a defendant’s past criminal act suggests present guilt.
But the policy rationales for excluding prior offense evidence in the criminal context and admitting such evidence in support of a punitive damages claim in the civil context are much different. Indeed they are polar opposites. That is to say unlike its criminal law counterpart, “[t]he central purpose of punitive damages is to punish the wrongdoer and to deter him from future misconduct.” Admitting evidence of past similar criminal conduct allows the factfinder to determine whether defendant has learned his lesson and profited by his past experience or whether despite his past experience the defendant nonetheless engaged in a “conscious, voluntary act or omission in reckless disregard of the consequences to another party.” Essentially, evidence of a civil defendant’s past similar convictions is sought to be introduced precisely to show his proclivity to engage in the prohibited conduct.
For those of us who have followed the Indiana Supreme Court for the past couple decades, this case marks the end of an era the likes of which this state may never see again. What we often refer to now as “the old court” was a long period of stability marked by excellent opinions from the state’s highest court. For more than a decade, Chief Justice Randall Shepard and Justices Brent Dickson, Theodore Boehm, Frank Sullivan, and Robert Rucker guided the Indiana judicial system with a collectively steady hand. Since Justice Boehm’s retirement at the end of September 2010, the court has seen four new faces, and will soon have a fifth.
Join us again next time for further discussion of developments in the law.
- Sims v. Pappas, 73 N.E.3d 700 (Ind. 2017) (Rucker, J.).
- Oaks v. Chamberlain, ---N.E.3d---, No. 92A04-1609-CC-2041, 2017 Ind. App. LEXIS 201 (Ind. Ct. App. May 11, 2017) (Najam, J.).
- Sandberg Trucking, Inc. v. Johnson, ---N.E.3d---, No. 79A04-1605-CT-1069, 2017 Ind. App. LEXIS 200 (Ind. Ct. App. May 11, 2017) (Bradford, J.).
- J.B. Hunt Transp., Inc. v. Zak, 58 N.E.3d 956 (Ind. Ct. App. 2016) (Baker, J.), trans. denied.
- Ind. Evidence Rule 105.
- Ind. Evidence Rule 401.
- Ind. Evidence Rule 403.
- Ind. Evidence Rule 404.
- Ind. Evidence Rule 607.
- Ind. Evidence Rule 609.
- Ind. Trial Rule 42(C).
- Colin E. Flora, Indiana Supreme Court Answers Questions of Admissibility of Immigration Status in Tort Cases, Hoosier Litig. Blog (May 7, 2017).
- Colin E. Flora, Indiana Court of Appeals Affirms $32.5M Verdict For Passenger in Car, Which Slid Into a Jackknifed Semi in Median, Hoosier Litig. Blog (August 19, 2016).
- Colin E. Flora, Damages Pt. 10: Punitive Damages Under Indiana Law, Hoosier Litig. Blog (June 22, 2012).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.