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Carson v. Fine2/10/1994
.2d at 994). Here, Dr. Duenhoelter's testimony was undeniably probative of the central issue: whether the defendant's care of the plaintiff fell below the applicable standard of care.
Equally important to recognize is that nearly all evidence will prejudice one side or the other in a lawsuit. Evidence is not rendered inadmissible under ER 403 just because it may be prejudicial. We note, for example, that accurate but graphic photographs are admissible even when repulsive or gruesome if their probative value outweighs their prejudicial effect. State v. Crenshaw, 98 Wash. 2d 789, 806, 659 P.2d 488 (1983); State v. Toennis, 52 Wash. App. 176, 188, 758 P.2d 539, review denied, 111 Wash. 2d 1026 (1988). By the same token, police officers are allowed to testify in uniform, even if their presence is prejudicial to a defendant. See K. Tierney, Courtroom Testimony: A Policeman's Guide 51 (1970). Various types of evidence and witnesses prejudice one party or the other; prejudicial evidence and credible witnesses make lawsuits. Under ER 403 the court is not concerned with this ordinary prejudice. It is unthinkable that a trial court would decline to admit evidence probative of the central issue in a case based solely on the witness' profession, the manner in which the witness dresses or on whether the court believes that the jury may think that the
witness owes either party some obligation or loyalty. Instead, limitation of the number of experts per side, effective use of voir dire and cross examination, proper instructions to the jury concerning its duty to weigh credibility, and the standard admonition not to permit sympathy or prejudice to affect the verdict are the tools to direct the jury to a proper consideration of the evidence.
In addition to the considerations discussed above we also note that under ER 403, the burden of showing prejudice is on the party seeking to exclude the evidence. 5 K. Tegland, Wash. Prac., Evidence § 105, at 346 (1989). Through its 6-prong proposed evaluation, the Court of Appeals would reverse the usual ER 403 burden and force the party seeking admission to bear the burden of justification. Moreover, there is a presumption favoring admissibility under ER 403. See 5A K. Tegland § 237, at 243; 5 K. Tegland § 105, at 346. The Court of Appeals' requirement of a 6-factor evaluation is inconsistent with this presumption.
Finally, it should go without saying that ER 403 must be administered in an evenhanded manner. 5 K. Tegland § 105, at 346; United States v. Sellers, 566 F.2d 884, 886 (4th Cir. 1977). In the present case, one of plaintiff's treating physicians testified on her behalf that the defendant's treatment fell below the proper standard of care. Dr. Duenhoelter testified for the defense that the defendant's treatment was within the appropriate standard of care. Under Sellers, Dr. Duenhoelter's testimony was properly admitted: "[rule 403] may not be utilized to exclude the otherwise admissible opinion of a party's expert on a critical issue, while allowing the opinion of his adversary's expert on the same issue." Sellers, at 886; see also 5 K. Tegland § 105, at 346 ("If evidence has already been admitted on behalf of one party, similar evidence offered by the opposing party should not be excluded under Rule 403.") The Court of Appeals violated the requirement of evenhandedness under
ER 403 even more fundamentally when it set up an evaluation aimed at excluding a treating physician's testimony only when o
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