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Kravitz v. Beech Hill Hospital9/27/2002
ess whether it was error for the trial court to admit evidence of Doe's allegedly prior consensual sexual activity. While the plaintiffs maintain that the admission of this evidence was prejudicial error which severely affected the plaintiffs' damages claims, Beech Hill argues that it was plaintiffs' counsel who originally described the event as consensual. Beech Hill also contends that the use of the term "consensual" did not violate the pretrial order because it was offered to demonstrate that while Doe told one person that she was raped by three men, she told another person that the incident was consensual.
The testimony regarding the alleged rape by the three men was originally brought forward, without objection, during Beech Hill's cross-examination of Dr. Karen Wayment. Beech Hill questioned Dr. Wayment as to whether she was aware that Doe claimed that she had been raped by three men, but later recanted. Dr. Wayment responded that she was not aware that Doe had claimed that she was raped. On redirect-examination, the plaintiffs continued this line of questioning by asking Dr. Wayment whether she understood the contact with the three men to be rape. Dr. Wayment replied that the contact had not been reported as a rape. On recross-examination, Beech Hill asked the following questions:
Q: This business about the three men, Molly Connelly told you that it was not rape, didn't she?
A: She did not indicate it was rape.
Q: In fact, she told you it was consensual, didn't she?
A: Yes.
Q: No more questions.
After reviewing the above testimony, we conclude that these questions did not violate the pretrial order. The testimony was offered to prove that while Doe had informed Holly Nudd (Doe's caretaker) that she was raped by three men, she told Molly Connelly (Doe's therapist) that the sexual incident was consensual. Thus, Beech Hill used the word "consensual" to illustrate that Doe had provided inconsistent stories regarding her contact with the three men.
Moreover, even assuming this line of questioning did violate the pre-trial order, the trial court has broad discretion to determine whether such a violation warrants setting aside the verdict and ordering a new trial. See Hayes v. State, 109 N.H. 353, 355-56 (1969). Here, testimony that the incident had not been reported as rape had already been adduced during the plaintiffs' redirect-examination of Dr. Wayment, and thus any prejudice caused by Beech Hill's subsequent use of the word "consensual" would be minimal. The trial court also explained in its jury instructions that evidence of Doe's prior consensual activity could not be considered in determining whether the sexual activity in this case was consensual. We therefore conclude that the trial court's exercise of discretion in refusing to increase the verdict or to order a new trial on damages was sustainable. See id. at 356; see also State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard).
We next address the plaintiffs' arguments that the trial court erred by refusing to strike the entire testimony of a witness who inadvertently referred to the three men as "Jamaican" and that the curative instruction was inadequate to remedy the resulting prejudice. "The trial court is in the best position to gauge the prejudicial impact of particular testimony, and what steps, if any, are necessary to remedy that prejudice." State v. VanDerHeyden, 136 N.H. 277, 285 (1992) (quotations and brackets omitted). In this case, the court determined that it was unnecessary to strike the witness's entire testimony. It instead instructed the jury that " he race or ethnicity of
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