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Brunt v. Stoddard12/28/2001
nt filed a cross appeal, contesting the ten percent negligence attributed to him by the jury.
DISCUSSION
I. ADMISSION OF EVIDENCE
Stoddard raises several claims of error regarding the district court's admission or exclusion of evidence. He argues that the district court allowed improper impeachment and rebuttal in the testimony of the plaintiff's expert, Doctor Selznick. He submits that the district court should have ruled inadmissible Doctor Selznick's opinions challenging the defense expert's qualifications on the basis that no foundation for Doctor Selznick's testimony had been established and that the opinions were not true rebuttal.
Impeaching evidence is that which is directed to the credibility of a witness. The credibility of a witness may be attacked by any party including the party calling the witness. I.R.E. 607. A witness may not be impeached before he has testified. Boeck v. Boeck, 29 Idaho 639, 161 P.2 576 (1916). In this case, Doctor Selznick testified during the plaintiff's case in chief that he ran a very busy clinical practice, unlike Doctor Knoebel who, according to Doctor Selznick, does not take care of patients. Doctor Selznick testified that he did not agree with the way Doctor Knoebel forced Van Brunt to raise his arms above his head during the independent medical examination, which was videotaped for viewing by the plaintiff; and he commented that treatment by Doctor Knoebel "would have killed [Van Brunt]." A little later in his testimony, Doctor Selznick reiterated his opinion that Doctor Knoebel is not a treating physician and that he does strictly insurance exams and testifies for the defense in court. Stoddard objected to Selznick's "gratuitous" statements and moved to strike. It appears that the objection essentially questioned whether this testimony was proper impeachment evidence because Doctor Knoebel had not yet testified in the trial. The district court admonished plaintiff's counsel to refrain from presenting impeachment evidence until his opportunity arose to offer rebuttal evidence after Doctor Knoebel had testified. There does not appear to have been a contemporaneous ruling by the district court on the defense's request to strike Doctor Selznick's statements.
Although the defense objection to lack of foundation for impeachment evidence could have been more clearly sustained, we conclude that the trial court determined that Doctor Selznick's testimony was not offered as proof of Doctor Knoebel's character but to provide medical expert testimony regarding Van Brunt's injuries from the accident.
Rebuttal evidence is evidence that explains, repels, counteracts or disproves evidence which has been introduced by or on behalf of the adverse party. State v. Olsen, 103 Idaho 278, 647 P.2d 734 (1982). The standard of review of a trial court's decision regarding the admission of evidence in rebuttal is one of deference to the trial court. See State v. Lewis, 126 Idaho 77, 879 P.2d 776 (1994); State v. Smith, 117 Idaho 225, 786 P.2d 1127 (1990); State v. Hewitt, 73 Idaho 452, 254 P.2d 677 (1953). Decisions regarding the admission of evidence are reversed only upon a showing of an abuse of discretion. State v. Lewis, supra.
After Doctor Knoebel testified, the plaintiff recalled Doctor Selznick as a rebuttal witness. In his testimony, Doctor Selznick stated that in his past seven years of practice, a number of his patients had also been seen by Doctor Knoebel. Comparing reports and second opinions he had seen from fellow orthopedic physicians in the area, Doctor Selznick stated that Doctor Knoebel had never provided him a confirmatory response and had disagreed with him on the cases 100% of the time. Th
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