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Sandoz Pharmaceuticals Corp. v. Gunderson10/21/2005
she had to a considerable extent been accepted in the Gunderson household, she did not live there exclusively but still maintained her own residence. She was, in a word, Mr. Gunderson's girlfriend whose relationship with the boys was still derived from him and had not become so stable or so mutually dependant and supportive as to be deemed consortium-giving.
Not only was that relationship thus irrelevant, but its admission into evidence would likely have necessitated the admission of evidence of another of Mr. Gunderson's relationships of comparable duration. The trial court could rightly determine that the multiplication of such collateral evidence was likely to confuse the jury and distract it from the real issues in the case. The trial court did not abuse its discretion, therefore, by excluding evidence of the boys' relationship with Janice Hays.
Nor is this result affected by Justice Cooper's aside in Miller ex. rel. Monticello Banking Company v. Marymount Medical Center, that whether the appellant in that case had been living with his girlfriend was "a fact relevant to his claim for loss [of spousal] consortium." We do not understand Justice Cooper's remark to imply that all of a claimant's subsequent relationships will, without more, be relevant to a lost consortium claim.
Finally, Armstrong and Sandoz also contend that the trial court abused its discretion by admitting the expert testimony of Dr. Barbara Bower. Dr. Bower's doctorate is in education, and she is licensed as a psychological counselor. She testified to extensive experience as a guidance counselor, as a university teacher, and as a private children's counselor. Trial counsel hired her in 2000 to perform an assessment of Nicholas and Wesley. She met with the boys eight times during 2000 and 2001 and attempted through conversations, drawings, and writing assignments to elicit their feelings about themselves and the loss of their mother. She did not attempt to diagnose or treat the boys, only to observe them, and her testimony was largely limited to reporting her observations and showing the jury the boys' drawings and writings. She testified, not surprisingly, that the absence of their mother loomed large in the boys' lives; that Nicholas, the elder, remembered a good and loving relationship with his mother; and that both boys would be at some increased risk for developmental issues, risk taking behaviors, and depression. She interpreted certain "happy" drawings by Nicholas, not, as appellants contend, as expressions of a sense of abandonment, but rather as expressions of Nicholas's need, in the wake of his abandonment, to be reassured that it was possible and acceptable for him to feel happy-the implication clearly being that he often did feel happy.
Appellants maintain that Dr. Bower's testimony was not sufficiently objective and scientific to pass muster under Daubert. They note that in Staggs v. Commonwealth, our Supreme Court rejected testimony by an art therapist who purported to characterize a child's drawings as abnormal and indicative of sexual abuse. And they complain that Dr. Bower's testimony appealed unduly to the jury's emotions.
Daubert and KRE 702 are not limited to scientific testimony, however, but also apply to "other specialized knowledge" that is reliable, relevant, and likely to be helpful to the trier of fact. The trial court did not abuse its discretion by determining that by virtue of her training and experience Dr. Bower had specialized knowledge about children dealing with emotional problems and about ways to help such children express emotions they may not be able otherwise to articulate.
Although "art therapy" may be of dubious value as a diagnost
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