Opinion
No. 2012-030
03-15-2013
Mary Fagnant v. Kim Foss
Todd D. Schlossberg of Law Office of Todd D. Schlossberg, Burlington, for Plaintiff-Appellant. Susan J. Flynn of Clark, Werner & Flynn, P.C., Burlington, for Defendant-Appellee.
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
Supreme Court On Appeal from Superior Court, Lamoille Unit, Civil Division September Term, 2012
Dennis R. Pearson, J.
Todd D. Schlossberg of Law Office of Todd D. Schlossberg, Burlington, for Plaintiff-Appellant.
Susan J. Flynn of Clark, Werner & Flynn, P.C., Burlington, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. ROBINSON , J. This case involves a low-impact, rear-end car collision. Plaintiff appeals from a jury verdict finding that defendant's conceded breach of a duty of care, and the resulting auto accident, was not the proximate cause of any injuries and harm to plaintiff. We conclude that the trial court's instruction concerning proximate cause improperly and prejudicially directed the jury to consider the foreseeability of plaintiff's injuries, even though "duty" and "breach" had been established as a matter of law, and we reverse. We consider several other issues raised by plaintiff that are likely to arise on remand and conclude that none would require reversal.
¶ 2. In March 2005, defendant's car collided with the rear-end bumper of plaintiff's car while plaintiff was waiting at a stop light in St. Albans. Defendant explained that her Jeep Cherokee had rolled forward into plaintiff's rear bumper when defendant lifted her foot off the brake while leaning over to retrieve something from the floor on the passenger side of the front seat.
¶ 3. Plaintiff sued defendant for her alleged injuries, and the case was tried before a jury in September 2011. At trial, plaintiff testified that she was stopped at a traffic light when she was suddenly "thrown forward" and back, her head hitting the headrest, as a result of the contact from behind the defendant's car. Plaintiff described ongoing, shooting pain in her head and neck since the accident requiring periodic physical therapy and regular pain-relief injections every three months. Plaintiff testified that as a result of this chronic pain, she has had to cut down on visiting with friends and family, traveling, spending time outside the house, driving in a car, taking care of her grandchildren, and generally leaving the house.
¶ 4. Plaintiff's medical expert opined that the collision caused soft tissue injuries to plaintiff's cervical spine and injured nerves at the back of her neck and head. He testified that her medical treatment to date, including the over $20,000 in medical expenses associated with that treatment, was reasonable, that plaintiff would likely continue to require injection management and periodic physical therapy for her ongoing neck pain, and that her ongoing symptoms would likely be permanent. Plaintiff's treating doctors concurred that the accident caused her injuries.
¶ 5. Defendant conceded that she was negligent and was responsible for causing the accident, and focused her defense on challenging whether plaintiff's claimed injuries were caused by the collision. Defense counsel's cross-examination of plaintiff highlighted plaintiff's prior history of back pain and suggested inconsistencies between plaintiff's testimony concerning her condition in the aftermath of the collision and her own prior statements and actions, the medical records, and the responding officer's testimony. Defendant's medical expert testified that "at most" plaintiff suffered "a minor soft tissue injury" or "whiplash type situation" and that her ongoing symptoms were not related to the accident. Defendant's expert based his opinion on several factors: plaintiff had suffered similar symptoms of head pain before the accident, the emergency room record of plaintiff's visit the day after the accident did not reflect any objective findings of neck injury, and two days after the accident plaintiff's doctor's physical examination of plaintiff's neck was "normal." Defendant's expert opined that if plaintiff had suffered an injury severe enough to result in symptoms four years later, she would not have had a normal objective examination two days after the accident; there would have been signs of tissue damage at that point.
¶ 6. After the close of evidence, plaintiff moved for "judgment as a matter of law on negligence and liability," leaving for the jury the issues of causation and damages. On the basis of defendant's concession with respect to her breach of a duty, the trial court granted plaintiff's motion for judgment with respect to the issues of duty and breach, reserving the questions of proximate cause and damages for the jury.
¶ 7. The court's proposed jury instructions included the following paragraph at the end of the proximate cause instruction:
The exact occurrence, or the precise injuries and damage which result need not have been actually anticipated; a person may be held liable for the results of her own negligent conduct if those consequences can be fairly regarded as normal incidents of the risk created by the circumstances. However, injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable.At the charge conference, plaintiff objected to this portion of the instruction arguing that it was potentially misleading because it "suggests that in order to find medical causation, . . . the jury would have to . . . determine that . . . the kind of injury would be reasonably foreseeable from a . . . low speed MVA." Plaintiff argued that the hurdle inherent in a low impact case was already high, "without injecting the possibility that individual jurors may say, ‘Well, I wouldn't have expected this.' "
¶ 8. Defendant described the instruction as "a statement of the concept of foreseeability as it relates to legal cause," noted that this was the only part of the instruction addressing foreseeability, and argued, "that makes it all the more important that it be part of the instruction." Plaintiff disagreed with defendant's statement that "legal cause" included the foreseeability of injury. The court agreed to consider the question.
¶ 9. The court instructed the jury before closing arguments. In particular, the court instructed:
I charge you as a matter of law that Defendant Kim Foss was negligent and violated a reasonable duty of care which she owed to the Plaintiff under the circumstances; and also, that Defendant's negligence was the cause of her vehicle coming into contact with Plaintiff's vehicle.The court then explained that defendant disputed whether the accident "was the cause of any of [plaintiff's] injuries, harm and damages now claimed" and "the amount of the monetary damages and compensation" to be awarded.
¶ 10. Having charged as a matter of law that plaintiff had satisfied the first two requirements for negligence liability—duty and breach—the court instructed the jury on proximate cause, stating:
An injury or harm is proximately caused by the actions or conduct of another person when it appears from all the evidence that those acts or omissions played a substantial part in bringing about or actually causing the harm or injury, and the injury or harm was either a direct result or a reasonably probable consequence of those acts or omissions . . . .The instruction also discussed the concept of "multiple proximate causes" in the context of preexisting medical conditions. The court then concluded the instruction on proximate causation exactly as it had initially proposed, including the instruction that "injury of the type or kind which did occur as a result of negligent conduct must have been not merely possible, but reasonably foreseeable."
¶ 11. The court gave the jury a written copy of the instructions to use during deliberations. After the court instructed the jury, plaintiff renewed his objection to the inclusion of the sentences relating to foreseeability in the proximate cause instruction.
¶ 12. In closing argument, defendant specifically highlighted the very provision in the instruction on proximate cause to which plaintiff objected and argued to the jury: "[The judge] will instruct you on this point, . . . and he . . . already has . . . on Page 11 here, . . . that the type or kind of injury alleged here must not have been merely possible, but the reasonably foreseeable result of this event." A significant portion of defendant's closing argument asserted an inconsistency between plaintiff's claimed injuries and the impact of the collision.
¶ 13. The court gave the jury a special verdict form that asked two questions: (1) "Was the negligence of [defendant], and the resulting auto accident on March 26, 2005, a proximate cause of any injuries and harm suffered by [plaintiff] on or after March 26, 2005?"; and (2) "What are [plaintiff]'s recoverable damages?" The jury answered "No" to the first question, and, thus, did not assess damages. The jury verdict for defendant entered on September 26, 2011.
¶ 14. On October 7, 2011, plaintiff filed a motion to set aside the verdict and for a new trial, pursuant to Vermont Rule of Civil Procedure 59. Among other arguments for new trial, the motion challenged the court's instruction on proximate cause. On November 22, 2011, the court denied this motion. On November 28, 2011, plaintiff filed a motion for reconsideration or clarification of the trial court's ruling on plaintiff's original Rule 59 motion, responding to a point in the trial court's opinion about plaintiff's failure to request an alternate instruction on "immediate, short-term injuries." On December 28, 2011, the court denied reconsideration. Plaintiff filed a notice of appeal on January 24, 2012.
I.
¶ 15. Before reaching the merits, we first consider defendant's contention that plaintiff's appeal is untimely, thus depriving us of jurisdiction. See City Bank & Trust v. Lyndonville Sav. Bank & Trust Co., 157 Vt. 666, 666, 599 A.2d 1051, 1052 (1991) (mem.) (noting jurisdictional nature of timeliness issue). Defendant acknowledges that a timely motion for new trial terminates the running of time for the appeals period, but notes that once a motion for new trial is denied, then the full time for filing a notice of appeal begins to run again. V.R.A.P. 4(b). Defendant argues that once the trial court denied plaintiff's motion for a new trial on November 22, the clock started anew, unaffected by defendant's subsequent motion to reconsider the court's denial of the new trial motion.
¶ 16. Although a "motion to reconsider" is not expressly recognized in the Vermont Rules of Civil Procedure, when the timing and content of a motion to reconsider indicate that it was, for all intents and purposes, a motion to alter or amend, we have treated motions captioned as motions to reconsider as motions under V.R.C.P. 59(e) that terminate the running of the appeal period. See Murray v. St. Michael's Coll., 164 Vt. 205, 208, 667 A.2d 294, 297 (1995); Fournier v. Fournier, 169 Vt. 600, 601, 738 A.2d 98, 100 (1999) (mem.). Although plaintiff's motion for reconsideration here was directed at the court's denial of a Rule 59 motion, rather than at its initial judgment, the principles underlying our previous decisions apply in this context. See Fournier, 169 Vt. at 601-02, 738 A.2d at 100-01 (caption on motion not determinative, and "motion to reconsider" was substantively indistinguishable from motion to alter or amend judgment). Plaintiff's motion to reconsider in this case was essentially a motion to alter or amend, responding primarily to the court's analysis in its denial of plaintiff's initial Rule 59 motion. Accordingly, the appeal period did not begin to run again until the court ruled on plaintiff's motion to reconsider, and plaintiff's appeal was timely filed.
II.
¶ 17. Plaintiff first argues that the trial court erroneously instructed the jury that foreseeability is an element of proximate cause. A party appealing a jury instruction has the burden of establishing that the instruction was erroneous and prejudicial. Mobbs v. Cent. Vt. Ry., Inc., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990). "While the trial court has some discretion regarding the degree to which it elects to elaborate on the points charged, the charge as a whole must impart the spirit of the law so that the jury is not misled." Malaney v. Hannaford Bros. Co., 2004 VT 76, ¶ 21, 177 Vt. 123, 861 A.2d 1069 (citation omitted). "[T]he trial court has the duty to instruct the jury fully and correctly upon every point raised by the evidence that is material to the decision of the case." Mobbs, 155 Vt. at 218, 583 A.2d at 571.
At oral argument, defendant suggested that plaintiff did not specifically preserve this issue for appeal. Although we retain the discretion to take up issues raised at oral argument, we usually do not. See TD Banknorth, N.A. v. Dep't of Taxes, 2008 VT 120, ¶ 33, 185 Vt. 45, 967 A.2d 1148 ("We will not address arguments raised for the first time at oral argument . . . ."); cf. State v. Pitts, 174 Vt. 21, 26, 800 A.2d 481, 485 (2002) (addressing defendant's claim, raised for the first time at oral argument, that information did not properly charge her, preventing her adequate preparation).
¶ 18. Ordinarily, an instruction regarding liability for negligence that includes consideration of the foreseeability of an adverse consequence would be unremarkable. In the typical negligence case, a plaintiff needs to establish four things in order to recover damages: a legally cognizable duty owed by the defendant to the plaintiff, a breach of that duty, that the breach was a proximate cause of plaintiff's injury, and damages. Powers v. Office of Child Support, 173 Vt. 390, 398, 795 A.2d 1259, 1265 (2002). The foreseeability of the consequences of a defendant's actions is relevant to the question of whether the defendant had and breached a legal duty to the plaintiff. Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 393, 264 A.2d 796, 799 (1970) ("Foreseeable consequences may be significant in the determination of the scope of legal duty and whether a duty of care had been violated." (quotation omitted)). What makes this case unique, and the instruction problematic, is the court's linkage of "foreseeability" to the concept of proximate cause, particularly where the defendant's breach of a legal duty to plaintiff was established as a matter of law, and the only issues left to the jury were causation and damages.
¶ 19. "[I]t has been so long settled in this jurisdiction that proximate cause relates only to cause-in-fact, with no foreseeability required, that extended discussion is unnecessary." Dodge v. McArthur, 126 Vt. 81, 83, 223 A.2d 453, 454 (1966) (reversing defendant's verdict in personal injury case based in part on court's erroneous instruction that foreseeability is essential to finding that negligent acts of defendants were proximate cause of harm to plaintiff). Although relevant to the determination of duty and breach, foreseeability "is not a factor in determining proximate cause." Finnegan v. State, 138 Vt. 603, 605-06, 420 A.2d 104, 105 (1980) (citing Dodge, 126 Vt. at 83, 223 A.2d at 454); Rivers v. State, 133 Vt. 11, 14, 328 A.2d 398, 400 (1974) (same); Thompson v. Green Mountain Power Corp., 120 Vt. 478, 485, 144 A.2d 786, 790 (1958) ("Foreseeable consequences may be significant in the determination of the scope of legal duty and whether a duty of care has been violated. But there is a distinction between foreseeable consequence and proximate cause.").
Defendant argues that the elements of negligence are not so neatly cabined. Although the cases defendant cites do show that courts sometimes describe the elements of "duty" and "breach" collectively as "negligence," they provide no support for the suggestion that we have ever endorsed entwining the duty/breach analysis with an evaluation of causation. If anything, several of the cases cited in defendant's brief reinforce the notion that foreseeability arises squarely in the duty and breach analysis, not in the causation inquiry. See Endres v. Endres, 2008 VT 124, ¶¶ 11-14, 185 Vt. 63, 968 A.2d 336 (discussing foreseeability in assessing defendant's breach of duty with respect to transmission of sexually transmitted disease, with no mention of causation issues); Morris v. Am. Motors Corp., 142 Vt. 566, 572, 459 A.2d 968, 971 (1982) (discussing vicarious liability and indemnity between car manufacturer and manufacturer of component part in manufacturing defect case and listing various elements, including foreseeability, separately); Forcier, 128 Vt. at 394, 264 A.2d at 799 (considering foreseeability in determining scope of grocer's duty to protect customer from food on floor and noting that "the duty of care increases proportionately with the foreseeable risks of the operations involved." (citation omitted)); LaFaso v. LaFaso, 126 Vt. 90, 94, 223 A.2d 814, 818 (1966) (distinguishing foreseeability as independent consideration of negligence analysis); Johnson v. Cone, 112 Vt. 459, 462-63, 28 A.2d 384, 387 (1942) (analyzing scope of defendant's duty with reference to foreseeability of danger, but not mentioning foreseeability in evaluation of but-for causation).
¶ 20. A defendant who has breached a legal duty to a plaintiff
is liable for all the injurious consequences that flow from [the] negligence until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law's notice.Thompson, 120 Vt. at 485-86, 144 A.2d at 790 (1958) (quotation omitted). In this case, rather than clearly instructing the jury that defendant was liable for all injurious consequences that flowed from her admitted breach of a duty to plaintiff, the trial court expressly directed the jury to consider the foreseeability of the type of injury plaintiff alleged as an element of proximate cause, even though duty and breach had been established as a matter of law by the court and the jury had been so instructed.
¶ 21. We do not accept defendant's argument that the instruction about foreseeability was simply "a contextual statement of negligence law that might better have been placed earlier in the charge." Where duty and breach were established, the instruction improperly directed the jury to consider the foreseeability of plaintiff's injuries in evaluating causation when the law does not so require.
Defendant also argues that the court's ruling that plaintiff had established duty and breach as a matter of law was interlocutory only, and was subject to revision by the court. There is no indication here that the court intended to revisit its ruling concerning duty and breach. It made this ruling immediately before the charge conference, proposed an instruction that said as much, and then proceeded to instruct the jury that these elements were established as a matter of law.
¶ 22. The court's instruction regarding foreseeability was not, as defendant suggests, a mere passing reference. The pivotal issue in the case was whether and to what extent the accident was the proximate cause of plaintiff's injuries. A central strand of defendant's theory of the case was that plaintiff's claimed injuries were so out of proportion with the impact that allegedly caused those injuries that she should not be believed. In opening statements, defendant told the jury, "[W]hen you consider all of the evidence . . . you're going to have to conclude that [plaintiff]'s claim that she sustained some kind of significant injury in this event just doesn't add up. It just doesn't make sense." In addition to defendant's direct reference to the judge's instruction on foreseeability, defendant's closing argument reiterated the notion that "this kind of event doesn't cause injury." The thrust of defendant's argument may have been that the disproportionality of plaintiff's injuries relative to the apparent force of impact rendered causal connection between the collision and plaintiff's ongoing injuries improbable; but in light of the court's instruction concerning foreseeability and defendant's focus on that instruction in closing, the jury could easily have concluded that plaintiff was not entitled to recover for her ongoing injuries, even if they were caused by defendant's actions, because the kind of injuries she suffered was not foreseeable.
¶ 23. Where the "instructions given [are] ‘an incomplete and incorrect statement of the issues material to a rightful decision,' " reversal is required. Dodge, 126 Vt. at 84, 223 A.2d at 455 (quoting Kinsley v. Willis, 120 Vt. 103, 112, 132 A.2d 163, 169 (1957)). The importance of the instruction in this case is heightened because the improper instruction was the last thing the jury heard regarding proximate cause, the written instruction accompanied the jurors into the jury room,and defendant's closing argument expressly capitalized on this erroneous language. Thus, we find the instruction given here does not breathe the true spirit and doctrine of the law and was prejudicial. See State v. Swift, 2004 VT 8A, ¶ 22, 176 Vt. 299, 844 A.2d 802 (finding prejudicial erroneous instruction that went to "the central question the jury had to decide"). We reverse on that basis.
III.
¶ 24. A number of issues on appeal are likely to recur upon retrial. For that reason, although we reverse on the basis of the improper proximate cause instruction, in the interest of judicial economy, we address several of plaintiff's other claims. See State v. Hazelton, 2006 VT 121, ¶ 22, 181 Vt. 118, 915 A.2d 224 (addressing remaining legal claim, despite reversal on other grounds, because it was likely to arise in new trial).
¶ 25. Two of plaintiff's claims of error involve the trial court's rulings relating to evidence of damage, or lack thereof, to the parties' vehicles. Before trial, plaintiff filed a motion in limine seeking an order precluding defendant from "referring to, eliciting evidence of, or making arguments on" the damage to the vehicles and any alleged correlation between the visible vehicle damage and injuries to the vehicle occupants. Plaintiff argued that the relationships between vehicle damage, speed of impact, actual force transferred to an impacted vehicle, the force actually transferred to a vehicle occupant, and actual injury are complex—even for experts. Plaintiff argued that substantial scientific evidence demonstrates that even low-speed, no-damage collisions can and do cause whiplash injuries—in some cases debilitating. Accordingly, because defendant did not offer any competent expert testimony connecting the speed of impact or the lack of physical damage to plaintiff's injuries, evidence concerning speed and vehicle damage would improperly play upon jurors' ignorance of the complexity of the damage-impact-injury relationship, drawing on "common sense" beliefs that are, plaintiff argued, counter to scientific and medical evidence. Plaintiff pointed to Vermont Rule of Evidence 402 (irrelevant evidence not admissible) and Vermont Rule of Evidence 403 (evidence excluded where prejudicial impact substantially outweighs probative value). The trial court denied plaintiff's motion.
¶ 26. Given the trial court's denial of plaintiff's motion and its admission of photographs of the vehicles, plaintiff requested the following jury instruction addressing the damage-injury connection:
Some major motor vehicle collision accidents result in little injury, and some minor collisions result in serious injury. The level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff's injuries resulting from this collision.Plaintiff relied on an opinion in which the New Jersey Supreme Court concluded that in recognition of "those cases outside the heartland of common knowledge where slight force causes great injury or where great force causes little injury," trial judges who admit photographs of vehicle damage should give such an instruction. Brenman v. Demello, 921 A.2d 1110, 1121 (N.J. 2007).
¶ 27. The trial court stated, "I think it's a great prophylactic rule if it's announced in advance by our Supreme Court, but I'm not going to give it in this case because I'm very concerned that—anything the Court has to say on that issue is going to be interpreted by the jury as some sort of message as to how it should decide the issue . . . ." Additionally, because the likelihood of such an instruction was not known to the parties in advance when defendant made the decision to introduce the photographs, the court declined to give the instruction.
¶ 28. We first consider the trial court's denial of plaintiff's motion in limine. Evidentiary rulings are committed to the trial court's discretion and reviewed for abuse of discretion. Quirion v. Forcier, 161 Vt. 15, 21, 632 A.2d 365, 369 (1993) ("The trial court has broad discretion in ruling on 403 questions, and review here is only for abuse of discretion. The burden of showing abuse is a heavy one." (citation omitted)).
¶ 29. There is a genuine dispute about the accuracy of the "common sense" belief in "proportionality"—the view that the extent of an individual's injuries is likely related to the extent of damage to the cars in a collision. Compare Brenman, 921 A.2d at 1119 ("In the end, the standard is clear: in the absence of competent proofs to the contrary, the aggregate of everyday knowledge and experience fairly entitles a jury to infer that there is a proportional relationship between the amount of force applied and the injuries resulting therefrom."), with A. Croft & M. Freeman, Review Article, Correlating Crash Severity with Injury Risk, Injury Severity, and Long-Term Symptoms in Low Velocity Motor Vehicle Collisions, 11 Med. Sci. Monitor 316, 320 (2005) (reviewing scientific literature and concluding that "property damage is neither a valid predictor of acute injury risk nor of symptom duration").
Although this case involves a plaintiff's claim of substantial personal injury alongside minimal vehicle damage, the issue could arise in the opposite context: a claim that a plaintiff has suffered minimal personal injury alongside extensive vehicle damage.
¶ 30. Given the controversy, the Delaware Supreme Court ruled that photographs or other evidence of physical damage to vehicles are not admissible without supporting expert testimony linking the damage (or lack thereof) to a plaintiff's injuries when the issue is the extent of those injuries. That court reversed a lower court ruling allowing such evidence and argument explaining:
As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such expert testimony, any inference by the jury that minimal damage to the plaintiff's car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation.Davis v. Maute, 770 A.2d 36, 42 (Del. 2001); see also Eskin v. Carden, 842 A.2d 1222, 1233 (Del. 2004) (reiterating conclusion that "the common sense notion that the lesser the force in an accident, the less likely the average human body will suffer serious injury . . . does not account for other circumstances, such as pre-existing injuries or the particularly susceptible individual" but noting that photographs may be introduced for other legitimate purposes without expert testimony).
¶ 31. The New Jersey Supreme Court in Brenman expressly rejected this position, concluding:
[I]n most cases, there is a relationship between the force of impact and the resultant injury, and the extent of that relationship remains in the province of the factfinder. We acknowledge those instances where slight force causes grave injury . . . as well as those where great force results in little or no injury . . . Those instances inhabit, however, the margins of common knowledge. Juries are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury.921 A.2d at 1119.
¶ 32. This Court has not yet addressed the issue. In other contexts, in the face of an arguable (but not definitively established) disconnect between jurors' "common sense" perceptions and scientific evidence on a matter, we have relied on the party challenging the conventional wisdom to bring forward expert evidence to dispel jurors' misconceptions. For example, in the context of child sexual abuse, we have endorsed the admission of expert testimony about the behavior of child victims of sexual abuse to dispel common misconceptions jurors might otherwise have about how a child victim would typically respond to sexual abuse. We explained:
Profile evidence is typically admitted . . . to assist the jury in understanding superficially bizarre behavior of a putative victim, such as a child's ambivalence about pursuing a sexual abuse complaint, or a child's recantation of an earlier accusation. In these situations, the expert's testimony may be useful to dispel misconceptions about the behavior of victims of certain crimes and to show that the conduct of the complaining witness, however seemingly unusual, is consistent with the profile. The function of the testimony is thus primarily rehabilitative, where behaviors such as delay in reporting, recantation, or a continued relationship with the alleged abuser may be mistaken as impeaching the credibility of the child.State v. Gokey, 154 Vt. 129, 134, 574 A.2d 766, 768 (quotation and citations omitted).
¶ 33. Likewise, we have allowed expert evidence of rape trauma syndrome and the associated typical behavior of adult rape victims "to assist the jury in evaluating the evidence, and frequently to respond to defense claims that the victim's behavior after the alleged rape was inconsistent with the claim that the rape occurred." State v. Kinney, 171 Vt. 239, 250, 762 A.2d 833, 842 (2000). And we have reversed a trial court's instruction that a jury could not consider the fact that the alleged victim of domestic abuse remained in or returned to the relationship as evidence impairing her credibility. State v. Swift, 2004 VT 8A, 176 Vt. 299, 844 A.2d 802. We concluded,
As the cases recognize, a victim truly suffering from [Battered Women's Syndrome (BWS)] will, for various complex reasons, act in ways that may seem counterintuitive to the average juror. It is up to the prosecution, not the judge, to recognize this potential for juror confusion and offer appropriate expert testimony on BWS that will help the jury understand an alleged victim's actions.Id. ¶ 21 (emphasis added).
¶ 34. We recognize that these cases do not deal directly with the issue presented here: Can a party relying on scientifically questionable "common-sense" inferences invoke those inferences without expert evidence? And the approach in those lines of cases may well have been influenced by the fact that the parties relying on questionable but widely-held perceptions were criminal defendants. Nevertheless, we are mindful that in other settings we have not barred the party seeking to tap into scientifically disputed common understandings from doing so without expert testimony but instead have relied on the party that is challenging those understandings to come forward with evidence.
¶ 35. There may come a time when jurors' "common sense" understanding of proportionality is at odds with an established scientific consensus so that a trial court has minimal discretion to admit or exclude photographs and other evidence of vehicle damage. We are not there now. Plaintiff makes a potentially persuasive case that evidence that the parties' cars were not visibly damaged does not prove that plaintiff could not have been seriously injured. But plaintiff's arguments go more to the weight of the evidence than to the question of whether it has any probative value. Brenman, 921 A.2d at 1120 ("Relevance is measured in terms of reasoned probabilities, not hardened certainties . . . ."). And the determination of whether the prejudicial impact of the evidence substantially outweighed that probative value is squarely within the trial court's discretion. Quirion, 161 Vt. at 21, 632 A.2d at 369; see Marron v. Stromstad, 123 P.3d 992, 1009 (Alaska 2007) ("The trial court properly has the discretion to weigh the prejudicial and probative value of photographs and other evidence of the severity of an accident."); Flores v. Gutierrez, 951 N.E.2d 632, 639 (Ind. Ct. App. 2011) ("The trial court was within its discretion to admit [the photograph of plaintiff's car] as relevant."). For these reasons, plaintiff should direct her arguments to the jury through expert testimony subject to Daubert and cross-examination. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993); State v. Brooks, 162 Vt. 26, 30, 643 A.2d 226, 229 (1993) (adopting Daubert as applicable standard for admitting scientific evidence under Vermont Rule of Evidence 702).
¶ 36. On this record, we conclude that the trial court did not abuse its discretion in denying plaintiff's motion in limine.
We do not mean to suggest that a decision by the trial court to exclude evidence regarding the damage to the parties' cars would not have been within the court's discretion. On the basis of this record, we simply do not reach that question.
¶ 37. Given the trial court's evidentiary ruling, plaintiff further challenges the trial court's refusal to offer a cautionary instruction concerning the weight of the car-damage evidence. "[T]he trial court has the duty to instruct the jury fully and correctly upon every point raised by the evidence that is material to the decision of the case." Mobbs, 155 Vt. at 218, 583 A.2d at 571. That said, the trial court enjoys considerable discretion in "the degree of elaboration" in the instruction. Knapp v. State, 168 Vt. 590, 591, 729 A.2d 719, 720 (1998) (mem.).
¶ 38. In this case, especially given the absence of expert testimony to support the disputable chain of inferences invoked by the defendant, the proposed instruction—essentially reminding the jurors that some major collisions result in little injury and some minor collisions result in serious injury—would have been well within the trial court's discretion. However, the trial court's considered decision to decline the instruction based on its concern that the instruction might be interpreted by the jury as "some sort of message as to how it should decide the issue" was likewise within its discretion.
IV.
¶ 39. Plaintiff also argues that the trial court improperly admitted evidence of her past history and treatment for anxiety and depression. Plaintiff filed a motion in limine to exclude evidence of her past mental health conditions and treatment, arguing that her condition had stabilized well before the collision in this case, that no doctor who had examined her had suggested that her chronic occipital nerve pain was caused or aggravated by any pre-existing history of depression or anxiety, and that mention of mental health issues would subject plaintiff to unfair and prejudicial stigma.
¶ 40. The court denied plaintiff's motion mid-trial and allowed evidence referencing plaintiff's history of depression. The court reasoned that plaintiff had made a claim for loss of enjoyment of life, essentially asking the jury to compare her quality of life before and after the collision, and records showing that plaintiff experienced periodic bouts of depression prior to and after the accident were relevant to that assessment.
¶ 41. Following this ruling plaintiff elicited testimony from her primary care doctor regarding the stability of her condition, and defendant cross-examined plaintiff and her husband about plaintiff's mental health conditions.
¶ 42. On appeal, plaintiff reiterates the arguments she made below. Our review on this issue is deferential. See Quirion, 161 Vt. at 21, 632 A.2d at 369.
¶ 43. We find no abuse of discretion in the trial court's decision to admit this evidence. Defendant's theory at trial was that at least some measure of plaintiff's alleged loss of enjoyment of life after the accident resulted from a preexisting condition—ongoing depression and anxiety for which she received treatment both before and after the collision. In arguing that the evidence is not probative because plaintiff's condition had stabilized by the time of the accident, plaintiff essentially asks this Court to draw one of several permissible inferences from the evidence in the record. We decline to do that; the evidence can reasonably be interpreted to support defendant's theory regarding plaintiff's damages, and the evidence is therefore relevant. See V.R.E. 401 (" ‘Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.").
¶ 44. The question of undue prejudice is closer. V.R.E. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ."). We do not deny that unwarranted stigma associated with mental illness, though greatly diminished through time, remains an unfortunate fact of life today. Evidence of mental illness may be remote in time, attenuated in connection to claimed damages, or otherwise so lacking in probative value that the prejudicial effect of admitting the evidence substantially outweighs its probative impact. Likewise, the prejudicial impact of specific kinds of evidence concerning mental illness may be particularly worrisome. In this case, the court acknowledged that "clinical depression" could be a pejorative term, but concluded that the evidence was important to help the jury conduct the before-and-after comparison essential to assessing plaintiff's damages. On this record, we conclude that the trial court did not abuse its discretion in conducting the Rule 403 balancing.
V.
¶ 45. We reject the balance of plaintiff's claims in short order. Over plaintiff's objection, defendant was allowed to testify about her retirement from social work with developmentally disabled adults, her marriage, and family relationships, particularly with her grandchildren. Plaintiff argues that this testimony was not relevant to any issue in the case, that defendant's character or credibility was not in issue, and that the sole purpose of the testimony was to elicit improper sympathy for defendant.
¶ 46. In State v. Baker, we recognized that preliminary "questions to a witness directed toward aiding the jury in setting a proper estimate on [the witness's] testimony . . . may properly be asked in direct examination, as, for example, questions which relate to" the witness's age, residence, occupation, and condition in life." 115 Vt. 94, 118, 53 A.2d 53, 67 (1947), abrogation on other grounds noted by State v. Martin, 2007 VT 96, ¶ 45 n.8, 182 Vt. 377, 944 A.2d 867 (noting, also, Baker superseded, on other grounds, by 1955 statute); see also Reporter's Notes, V.R.E. 401 (recognizing "broad sweep to the admission of collateral facts"); State v. Hussey, 521 A.2d 278, 281 (Me. 1987) ("Background information about a party or nonparty witness is ordinarily admissible, though not strictly relevant, unless undue prejudicial effect mandates exclusion . . . ."); State v. Jamison, 365 S.W.3d 623 (Mo. Ct. App. 2012) ("It is entirely proper, either by way of introduction or cross-examination, to identify a witness and to inquire into his residence, antecedents, social connections and occupation, particularly as they reflect his credibility either for good or bad."). The trial court did not abuse its discretion in allowing the testimony.
¶ 47. Plaintiff also argues that defendant's statement in closing argument that plaintiff had to show a "long-standing and permanent injury" was improper. During closing argument, defense counsel stated, "[plaintiff] has to prove to you that this incident with [defendant] caused her an injury, that that injury was long-standing and permanent for her, and that that injury changed her life."
¶ 48. Although defense counsel's statement did not accurately reflect the law, plaintiff failed to object to this statement at trial; thus, the matter is not properly preserved. See Spooner v. Town of Topsham, 2009 VT 43, ¶ 7, 186 Vt. 527, 973 A.2d 1202 ("[W]e allow plain error review in civil cases in only very limited circumstances—where the asserted error is a violation of fundamental rights or where a liberty interest is involved. . . . Because of defendant's failure to contemporaneously object at trial and because the circumstances that permit appellate plain-error review are not present, defendant waived these issues and cannot obtain review here."); Follo v. Florindo, 2009 VT 11, ¶ 15, 185 Vt. 390, 970 A.2d 1230 (declining to reach argument regarding improper closing argument where party advancing argument did not object at trial).
To the extent that plaintiff relies on McBrine v. Fraser, 128 Vt. 514, 266 A.2d 809 (1970), to argue that the issue is preserved by a motion for new trial, we do not agree. The error claimed in McBrine dealt with plaintiff's improper cross-examination questions of defendant in contravention of the Rules of Evidence in that the questions were irrelevant to any issue at trial and were merely offered to show the bad character of the defendant for drinking. Id. at 516-17, 266 A.2d at 811. After finding reversible error, the court also concluded, "In this situation an exception to the evidence at the time the questions were propounded would have been merely an exercise in futility." Id. at 518, 266 A.2d at 811. McBrine is not a closing-arguments case, but rather a case about the evidence itself, and may represent one of those "limited circumstances" where plain error review has been allowed in a civil case. We find no such justification for extending that review to this case.
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¶ 49. Finally, plaintiff argued that the two-page instruction regarding proximate cause was too long and could have been better stated in more concise and simple terms. A trial court must instruct the jury fully and correctly on every material point, but "the degree of elaboration lies within its sound discretion." Knapp v. State, 168 Vt. at 591, 729 A.2d at 720. Although we find no error in the instruction as given, other than the proximate-cause instruction on the basis of which we reverse, we endorse the proposition that where courts can provide clear guidance with concise, "plain-English" instructions that convey the proper legal standards, they should do so. See Ryder TRS, Inc. v. Hirsch, 900 So.2d 608, 613 (Fla. Dist. Ct. App. 2005) ("The modern trend is to revise and update jury instructions so that they are expressed in plain English."). The vast majority of jurors are not lawyers, and jury instructions should be written with that in mind.
Reversed and remanded.
FOR THE COURT:
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Associate Justice