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Nelson v. University of Hawaii12/11/2001
ticipated that Defendants would present specific evidence of the 1996 contract renewal process --especially in light of their motion in limine -- or that they would be allowed, over objection, to introduce the 1996 personnel committee's evaluation of Nelson. Although she presented some evidence of her publications during her case-in-chief, it was introduced primarily in the context of refuting Dr. Ho's 1995 negative evaluation and discussing her work load generally. In our view, the trial court's ruling unreasonably precluded Nelson from presenting any rebuttal evidence to specifically refute Defendant's purported reasons for not renewing her contract. Further, the exclusion of such evidence could have contributed to the jury's verdict regarding Nelson's claims of employment discrimination based on sex and disability and her claim of damages for infliction of emotional distress.
Based on the foregoing, we hold that the trial court abused its discretion in excluding Nelson's proffered rebuttal evidence with respect to her publications and that the exclusion of such evidence prejudiced Nelson with respect to her claims for employment discrimination and infliction of emotional distress.
At trial, Nelson also sought to recall Dr. Ginandes in rebuttal to refute Dr. Slomoff's testimony that Nelson was able to continue working in March 1997. Specifically, Nelson proffered rebuttal included Dr. Ginandes' testimony that: (1) he reported Nelson's disability to the Social Security Office, and Nelson is now on disability; (2) stated the reasons why he disagreed with Dr. Slomoff's opinion that Nelson was able to work in 1997 and 1998; (3) although Nelson had had prior bouts of depression, she was able to work during the prior bouts because they were not as severe as the emotional distress she suffered due to Defendants' actions; (4) he reported Nelson's job restrictions to the University; and (5) his medical opinion is based on a longstanding relationship with Nelson, in contrast to the two-hour interview conducted by Dr. Slomoff. Defendants argued that Nelson should have presented all of the foregoing evidence in her case-in-chief because she was given Dr. Slomoff's IME report prior to trial, no new evidence was introduced by Defendants, and Dr. Ginandes had already testified as to his treatment of Nelson and her history of depression. We agree with Defendants.
The proffered rebuttal testimony of Dr. Ginandes was clearly confirmatory of Nelson's case and supported her claim for damages. However, unlike her proffered evidence to rebut the Defendants' reasons for not renewing her contract, Nelson could and should have presented such evidence in her case-in-chief. Indeed, Dr. Ginandes had already testified as to his treatment of Nelson, her depression, and why he believed she was unable to work. With respect to evidence that Nelson was on disability, there is no indication that this evidence was "new" or could not have been introduced earlier, Nelson herself testified that she was on "Social Security disability," and Nelson should have presented all available evidence in support of damages in her case-in-chief. See Takayama, 82 Hawaii at 496-97, 923 P.2d at 913-14. Thus, we hold that the trial court did not abuse its discretion in denying Nelson's request to recall Dr. Ginandes in rebuttal.
B. Jury Instructions
Nelson contends that the trial court erred in instructing the jury regarding the sexual harassment claim by giving Defendants' requested instruction No. 9 [hereinafter, instruction No. 9], quoted infra, and failing to give her requested supplemental instructions. Nelson claims that instruction No. 9 was "verbose, jumbled, and confusing" and misstated the law regard
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