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Jensen v. IHC Hospitals11/14/2003
ffs' proffered evidence of admissions by conduct on the part of Dr.Healy was not clear and unequivocal, would be unfairly prejudicial, would confuse the jury, and would unfairly taint McKay-Dee. Therefore, the court excluded the evidence. We affirm the trial court's decision on this issue.
A. Connection Between Conduct and Cover-Up of Medical Malpractice
Plaintiffs concede that defendants presented sufficient evidence to support the jury's verdict. They argue, nevertheless, that the jury's verdict should be overturned because the exclusion of the alleged admissions by conduct of Dr.Healy "deprived the jury of having all of the relevant evidence in deciding the negligence issues." The crux of plaintiffs' argument, therefore, is that if the jury had been made aware of Dr. Healy's conduct, the inference from the conduct likely would have "satisf the need for proof of a particular fact essential to" prove negligence. 2 John W. Strong et al., McCormick on Evidence § 265, at 193 (4th ed. 1992). Thus, we must determine if the connection between Dr. Healy's conduct and the alleged cover-up of medical malpractice was sufficient to support this inference and whether such evidence would have been unfairly prejudicial or would have likely confused the jury.
B. What Constitutes Admissions by Conduct
Admissions by conduct may be admitted as substantive evidence of the truth of the matter asserted. McCool v. Gehret, 657 A.2d 269, 277 (Del. 1995). The "wrongdoing by party in connection with its case amounting to an obstruction of justice is . . . commonly regarded as an admission by conduct." 2 Strong et al., supra, § 265, at 190. This is so because when a party resorts to wrongful devices, it "provide a basis for believing that he or she thinks the case is weak and not to be won by fair means." Id. Hence, the jury is invited to infer a person's guilt from the individual's conduct " o long as the conduct is the sort of behavior a guilty person might resort to in order to" avoid liability. Edward J. Imwinkelried, A New Antidote for an Opponent's Pretrial Discovery Misconduct: Treating the Misconduct at Trial as an Admission by Conduct of the Weakness of the Opponent's Case, 1993 BYU L. Rev. 793, 797.
1. Potential to Unfairly Prejudice a Jury
Courts must exercise caution, however, in admitting such evidence because of the uncertainty involved in interpreting conduct, see State v. Sanders, 27 Utah 2d 354, 360, 496 P.2d 270, 273 (1972), and its potential to unfairly prejudice a jury. Imwinkelried, supra, at 801. When a jury learns of a defendant's wrongdoing, "they might be tempted to return a verdict adverse to the [defendant] as a means of punishing the [defendant] for his misdeed," even if it was not otherwise convinced of the defendant's liability. Id.
2. Potential to Confuse or Mislead a Jury
Additionally, admissions by conduct have the potential to confuse or mislead the jury because the introduction of a collateral issue may cause the jurors to "lose sight of the main events on which they should focus." Id. at 804. For example, plaintiffs bore the burden in this case of proving that defendants committed medical malpractice when they treated Ms.Hipwell. Introducing the collateral issue of Dr. Healy's later involvement with his brother and attorney Sharp easily could cause the jury to focus on the later acts rather than on the issue of Ms. Hipwell's medical care. See id. Hence, a trial court must carefully examine the risk posed by the evidence before it may be admitted to the jury. Id. at 805.
3. Admission by Conduct Must be Clear and Unequivocal
Because of the substantial risk posed
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