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Carson v. Fine2/10/1994
ffered by the defense. If a treating physician's testimony can prejudice the plaintiff, it can also prejudice the defense.
Because of the trial court's considerable discretion in administering ER 403, reversible error is found only in the exceptional circumstance of a manifest abuse of discretion. State v. Gould, 58 Wash. App. 175, 180, 791 P.2d 569 (1990); State v. Gatalski, 40 Wash. App. 601, 610, 699 P.2d 804, review denied, 104 Wash. 2d 1019 (1985). While discretion does not mean immunity from accountability, we see no need or justification for extending the requirement of a balancing on the record to evidentiary objections and claims of error based on ER 403 alone. See United States v. Dwyer, 539 F.2d 924, 928 (2d Cir. 1976); Gould, at 184. "Such a rule would unnecessarily and unreasonably intrude upon the trial court's management of the trial process." Gould, at 184. While some reference to the ER 403 evaluation in the record is helpful to a reviewing court, we reject the 6-factor test proposed by the Court of Appeals as unworkable and contrary to the purposes of ER 403 and the Rules of Evidence in general.
[16, 17] We therefore hold that adverse testimony by a treating physician, if challenged under ER 403, may be evaluated as in any other challenge brought pursuant to this rule. While a balancing of probative value versus prejudicial effect on the record is helpful, it is not essential. Here, the trial court properly admitted Dr. Duenhoelter's testimony. It was undeniably probative of a central issue in the case and was offered in response to opinion testimony given by another of plaintiff's treating physicians. We do not see that the danger of unfair prejudice exceeded the probative value of such testimony, and we are mindful of the admonition that " f judicial self-restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribunal." United States v. Long, 574 F.2d 761, 767 (3d Cir. 1978). The admission of Dr. Duenhoelter's testimony
fulfilled the requirement of a fair and evenhanded application of ER 403, and a detailed balancing on the record of probative value versus prejudicial effect was not a prerequisite to its admissibility.
III
One remaining issue requires our attention. In her answer to the petition for review, plaintiff contended that the Court of Appeals erred in holding that defense counsel's ex parte contacts with Dr. Duenhoelter did not violate the prohibition of such contacts set forth in Loudon v. Mhyre, 110 Wash. 2d 675, 756 P.2d 138 (1988).
As stated earlier, this court held in Loudon that defense counsel may not communicate ex parte with a plaintiff's treating physicians but must use formal discovery procedures. Loudon, 110 Wash. 2d at 677. The court feared that ex parte interviews might result in disclosure of irrelevant, privileged information, and decided that the plaintiff's interest in avoiding such disclosure could best be protected by allowing plaintiff's counsel to participate in physician interviews. Loudon, at 678.
We disagree with plaintiff that the ex parte contacts in this case violated Loudon, and affirm the Court of Appeals' resolution of this issue. The initial meeting between the defendant and Dr. Duenhoelter occurred before Loudon was decided and was expressly authorized by plaintiff. Although she signed the authorizat
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