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J.W. v. B.B.5/26/2005
sexual orientation is not relevant to any claim or defense in this action, and the plaintiffs have not identified any admissible evidence to which the disclosure might lead, we conclude the circuit court erred in ordering the disclosure of the physician's sexual orientation. See WIS. STAT.§ 804.01(2)(a). By analogizing these malpractice actions to criminal prosecutions and concluding that motive evidence is relevant and potentially admissible at trial, the circuit court based its decision on an error of law. The court thus erroneously exercised its discretion in ordering the physician to disclose his sexual orientation. We reverse the appealed orders insofar as they require the physician to disclose his sexual orientation.
We turn to the remaining provisions in the appealed orders. These require the physician to disclose "other complaints by inmates, clients, patients, or examinees, to the effect that touched them inappropriately or unnecessarily did rectal or prostate exams, and ... the reasons left previous professional employment." The physician contends that this information, like his sexual orientation, is irrelevant to the subject matter of the litigation and would be inadmissible at trial. He notes that, under WIS. STAT.§ 904.04(2), evidence of "other ... acts is not admissible to prove the character of a person to show that the person acted in conformity therewith." The physician asserts that evidence he has been the subject of complaints or discipline for performing unnecessary rectal examinations, if these facts exist, would not be admissible for the purpose of showing that he was professionally negligent in performing the exams on the plaintiffs in this case. For that reason, the physician argues he should not be compelled to disclose any arguably similar "other acts" during discovery.
We agree that evidence of a person's "other acts" cannot be offered to show his or her character or "propensity" to behave in a certain way, in order to permit a fact finder to infer the person acted in conformity with that propensity on a particular occasion. See Sullivan, 216 Wis. 2d at 783. However, evidence of "other acts" may be admitted under WIS. STAT.§ 904.04(2) when offered for a purpose other than showing that the person's actions at issue in the present litigation were "in conformity" with his or her character. See id. As to the permissible purposes for introducing "other acts" evidence, the physician asserts that "the only exceptions to WIS. STAT.§ 904.04(2) are directly related to the proof of motive or intent." We disagree.
As we have explained, the physician's motive or intent in performing the rectal exams on these plaintiffs is not relevant to the dispositive question of whether he violated the standard of professional care in performing the exams. We therefore agree with the physician that proof of his motive or intent in conducting the rectal exams would not provide a basis for introducing evidence of his "other acts" at trial. We reject, however, the physician's contention that the permissible purposes for admitting other acts evidence are limited to efforts to establish a person's state of mind. The listing of acceptable purposes for introducing other acts evidence set forth in WIS.STAT.§ 904.04(2) is exemplary, not exclusive. See Sullivan, 216 Wis. 2d at 783.
We can envision circumstances in which the plaintiffs might be entitled to admit evidence that the physician was previously sanctioned for conduct similar to that complained of in this action, if such evidence exists. For example, the physician might testify that he customarily performs digital-rectal prostate exams on healthy twenty-five-year-old males because, in his professional opinion,
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