Connie Ellis v. Mike K. Modi ( 2020 )

05/11/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 10, 2020 Session
CONNIE ELLIS v. MIKE K. MODI
Appeal from the Circuit Court for Davidson County
No. 15C3816 Joseph P. Binkley, Jr., Judge
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No. M2019-01161-COA-R3-CV
___________________________________
Following a jury trial, the plaintiff was awarded a substantial verdict against the
defendant for both compensatory and punitive damages. After the defendant’s motion for
a new trial was denied, he appealed to this Court. The defendant now argues, among
other things, that the trial court erroneously excluded his expert psychologist from
testifying at trial and, further, that the trial court erroneously allowed certain prejudicial
evidence against him to be admitted. For the reasons stated herein, we vacate the jury’s
verdict and the trial court’s judgment entered in this matter and remand the case for a new
trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.
Donald Capparella, Tyler Chance Yarbro, Kimberly Macdonald, James Walker, Derrick
Lee O’Dell and Julie-Karel Elkin, Nashville, Tennessee, for the appellant, Mike K. Modi.
Christopher Kim Thompson, Nashville, Tennessee, Daryl R. Fansler, Knoxville,
Tennessee, and Mary Francis Parker, Charlotte, North Carolina, for the appellee, Connie
Ellis.
OPINION
BACKGROUND AND PROCEDURAL HISTORY
This case concerns an alleged sexual assault that occurred in the early morning
hours of February 28, 2015 while the Plaintiff/Appellee in this litigation, Connie Ellis
(“Ms. Ellis”), a caregiver employed by Family Staffing Solutions, worked in the home of
the Defendant/Appellant Mike Modi (“Mr. Modi”). At the time of the alleged incident,
Mr. Modi allegedly required home care assistance following his hospitalization for
serious injuries sustained in a recent motor vehicle accident. The record further indicates
that, while in the hospital for treatment for the motor vehicle accident, Mr. Modi was
diagnosed with stage four lymphoma.
Litigation commenced over the claimed sexual assault at Mr. Modi’s home when
Ms. Ellis filed a complaint against him on October 16, 2015, asserting claims for assault,
battery, and intentional infliction of emotional distress, seeking compensatory damages
not to exceed $750,000. Mr. Modi filed an answer to the complaint on January 12, 2016,
wherein he prayed that the action against him be dismissed.1
Ms. Ellis later filed an amended complaint, seeking punitive damages and
increasing her ad damnum to $6,000,000. According to the amended complaint, Ms.
Ellis averred she struggled to get away from Mr. Modi during the alleged sexual assault
which she alleged continued for a period of approximately three hours. Mr. Modi denied
this specific allegation in his answer to the amended complaint and generally
characterized Ms. Ellis’ case against him as a “fabricated story.” Subsequently, pursuant
to an agreed order, the trial was scheduled to begin on February 11, 2019.
Prior to trial, motions in limine were filed by the parties in an attempt to limit the
proof to be considered by the jury in this matter. For her part, Ms. Ellis filed a motion to
exclude, or alternatively limit, the testimony of psychologist Dr. David Price (“Dr.
Price”). Mr. Modi intended to offer Dr. Price’s expert testimony to counter Ms. Ellis’
assertions that she had developed post-traumatic stress disorder (“PTSD”) as a result of
the alleged assault. Ms. Ellis argued that Dr. Price’s proposed testimony would not
substantially assist the jury, and further, she complained about the fact that Dr. Price had
not conducted an in-person examination of her. The trial court ultimately deferred ruling
on whether or not it would permit Dr. Price to testify until trial.
For his part, Mr. Modi requested that the court exclude testimony from another
employee of Family Staffing Solutions about an “alleged prior bad act.” Namely, Mr.
Modi wanted to exclude proposed testimony from Jerri Lynn Cain Briley (“Ms. Briley”)
that Mr. Modi had previously requested Ms. Briley to put lotion on his groin area when
she was caring for him. Mr. Modi also moved in limine to exclude certain personal
health records from coming into evidence and to exclude any reference to particular
health information about him. Among other things, he sought to exclude evidence
pertaining to a prior herpes diagnosis, as well as any evidence related to a penile implant.
1
In addition to requesting dismissal of the complaint filed against him, Mr. Modi’s answer
outlined what he submitted was his physical condition in the weeks leading up to the claimed incident. In
relevant part, he noted that he required twenty-four hour care, “suffered excruciating pain, vertigo,
weakness in his limbs,” and had discovered he was also suffering from cancer.
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The trial court denied Mr. Modi’s efforts in limine to exclude this evidence from
consideration.
The ensuing jury trial took place over multiple days in February 2019. When Ms.
Ellis testified, she described in detail the particulars of the alleged sexual assault,
including her contention that the episode had lasted “about three hours.” Mr. Modi, in his
testimony, denied that he had attacked Ms. Ellis, claiming the night and early morning of
February 28, 2015 had been as any other day. Of course, apart from the testimony of the
parties, much other testimony and evidence was entertained at trial, including evidence
which had been the subject of Mr. Modi’s objections in his pre-trial motions in limine.
Among other things, for example, the jury heard evidence from Ms. Briley, who, like Ms.
Ellis, had been a caregiver for Family Staffing Solutions. Ms. Briley testified that, prior
to the incident in question, on February 13, 2015, she went to Mr. Modi’s home to assist
in his care. On that date, according to Ms. Briley’s testimony, while she was rubbing
lotion and oil on Mr. Modi’s feet, legs, and thighs due to his diabetes, he asked her to also
apply it to his groin area complaining he had some chafing.
Because the trial court had deferred ruling on Ms. Ellis’ pre-trial request to
exclude Mr. Modi’s psychology expert, Dr. Price, from testifying, the issue became a
heated point of contention at trial. Although the trial court commented following the voir
dire of Dr. Price that he was “highly qualified,” that he had “specialized knowledge that
would substantially assist the trier of fact,” and that he had testimony that would be
relevant, it ultimately ruled that he should not be allowed to testify before the jury. The
court cited concerns of confusion by the jury and appeared to express additional concern
as to whether Dr. Price would be able to give testimony to a reasonable degree of medical
or scientific certainty.
The jury ultimately found in favor of Ms. Ellis on her claims for battery and
intentional infliction of emotional distress and awarded her over $7,600,000 in
compensatory damages. Further, the jury subsequently determined that Mr. Modi should
be assessed an additional $2,000,000 in punitive damages. On March 4, 2019, the trial
court entered its “Judgment Order,” which approved the jury verdict in its entirety.
Thereafter, on April 3, 2019, Mr. Modi filed a motion for a new trial and other
relief. Among other things, Mr. Modi argued that the jury’s verdict was the result of
passion and prejudice, and he contended that the trial court had erred in its evidentiary
rulings as to the exclusion of Dr. Price, the allowance of testimony from Ms. Briley, and
the admission of prejudicial evidence pertaining to his health. The motion also requested
that, absent the granting of a new trial, the court must reduce the judgment to $6,000,000,
the amount in Ms. Ellis’ ad damnum clause, and grant a substantial remittitur.
On May 23, 2019, the trial court entered an order on Mr. Modi’s motion for new
trial and other relief. Although the trial court denied Mr. Modi’s request for a new trial, it
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did conclude that the jury’s verdict should be modified to reflect an award of $4,000,000
in compensatory damages and $2,000,000 in punitive damages. This modification was
made in light of the fact that the verdict had exceeded the amount sought in the ad
damnum. In concluding its order, the trial court noted that it would be making findings
of fact and conclusions of law “setting forth the reasons for its approval of the jury’s
award of punitive damages.” Thereafter, on May 31, 2019, the trial court entered an
order setting forth its reasons for approving the $2,000,000 punitive damage award. This
appeal followed.
ISSUES PRESENTED
Mr. Modi raises a number of issues for our review in his appellate brief,2 which
we rephrase as follows:
1. Whether the trial court abused its discretion and committed reversible
error when it excluded the testimony of Dr. Price.
2. Whether the trial court abused its discretion in allowing Ms. Briley to
testify about a prior incident and in admitting certain evidence
pertaining to Mr. Modi’s health.
3. Whether the jury’s award for lost wages and loss of future earning
capacity was the result of passion, caprice, and prejudice requiring a
new trial.
4. Whether this Court should grant a remittitur.
DISCUSSION
We begin our discussion by turning to the propriety of the trial court’s decision to
exclude Dr. Price from testifying at trial before the jury. As stated earlier, Mr. Modi
intended to offer Dr. Price, a psychologist, as an expert witness in order to counter Ms.
Ellis’ assertions that she had PTSD as a result of the alleged assault. Part of Dr. Price’s
contemplated testimony was also to include a critique of the methodology utilized by Ms.
Ellis’ own psychology expert on that issue.
Here, the trial court openly acknowledged at trial that Dr. Price had “some good
opinions,” that he was “a very bright individual,” and that he was “qualified . . . to give
opinions without a doubt.” The court subsequently remarked again that Dr. Price was
“highly qualified,” that he had “specialized knowledge that would substantially assist the
trier of fact,” that he understood the issues before the court well, and that his testimony
2
Ms. Ellis also raises a jurisdictional concern in the “Statement of the Issues” section of her brief,
contending that Mr. Modi failed to timely file this appeal. Ms. Ellis previously raised her jurisdictional
concern pursuant to a motion to dismiss the appeal, a motion that has already been denied. As noted in a
July 26, 2019 per curiam order from this Court, we determined the appeal by Mr. Modi was timely.
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would be relevant. Notwithstanding these favorable comments about Dr. Price and the
worth of his proposed testimony, the trial court ultimately excluded Dr. Price from
testifying upon referencing Rule 403 of the Tennessee Rules of Evidence. To support its
ruling, the trial court cited concerns of potential jury confusion. The trial court also
appeared to express concern, based on Dr. Price’s testimony in voir dire about his
opinions appearing in expert interrogatory disclosures, that he would not be able to
provide testimony to a reasonable degree of certainty.
As a general matter, the decision whether to admit or exclude evidence is a
discretionary decision. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442
(Tenn. 1992) (“In Tennessee admissibility of evidence is within the sound discretion of
the trial judge.”); see also Seffernick v. Saint Thomas Hosp., 969 S.W.2d 391, 393 (Tenn.
1998) (noting that questions regarding the admissibility, relevancy, and competency of an
expert’s testimony are left to the trial court’s discretion). Although we presume that a
trial court’s decision is correct when reviewing its exercise of discretion, discretionary
decisions nonetheless “require a conscientious judgment, consistent with the facts, that
takes into account the applicable law.” White v. Beeks, 469 S.W.3d 517, 527 (Tenn.
2015). “A trial court abuses its discretion by applying an incorrect legal standard or
reaching an illogical or unreasonable decision that causes an injustice to the complaining
party.” Id.; see also Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010) (“A
court abuses its discretion when it causes an injustice to the party challenging the
decision by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the
evidence.”).
It is elementary that not all evidence that is logically relevant need be admitted.
Indeed, Rule 403 of the Tennessee Rules of Evidence, which was referenced by the trial
court here, specifically provides as follows: “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, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid.
403. This Court has previously described the balancing process required under this rule
as follows:
[The process] begins by recognizing that the rules of evidence favor the
admissibility of relevant evidence, and that relevant evidence is admissible
unless otherwise provided. Thus, excluding relevant evidence under Tenn.
R. Evid. 403 is an extraordinary remedy that should be used sparingly, and
persons seeking to exclude otherwise admissible and relevant evidence
have a significant burden of persuasion.
Each Tenn. R. Evid. 403 question must be decided on its own facts,
and the trial court must be careful not to usurp the function of the jury in
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the process. The balancing process under Tenn. R. Evid. 403 is a two-step
process. The trial court must first balance the probative value of the
evidence sought to be excluded against the countervailing factors. After the
court has engaged in the balancing analysis, it may then exercise its
discretion to determine whether the evidence should be excluded if the
prejudice substantially outweighs the probative value of the evidence.
During the first phase of the analysis, the court must determine
whether the countervailing factors in Tenn. R. Evid. 403 “substantially
outweigh” the probative value of the evidence. The trial court has no
discretion to exclude evidence under Tenn. R. Evid. 403 unless it concludes
that the probative worth of the evidence is substantially outweighed by one
or more of the countervailing factors. Thus, a trial court should not exclude
evidence under Tenn. R. Evid. 403 when the balance between the probative
worth of the evidence and the countervailing factors is fairly debatable.
White v. Vanderbilt Univ., 21 S.W.3d 215, 227 (Tenn. Ct. App. 1999) (internal citations
omitted).
Having carefully reviewed this issue, we are of the opinion that the trial court’s
decision to exclude Dr. Price from testifying was in error. First, as to the trial court’s
cited concern that Dr. Price would not provide testimony that his opinions were to a
reasonable degree of certainty, the trial court’s understanding of the record was clearly
erroneous. Contrary to the trial court’s concern, Dr. Price did answer the question of
whether his opinions were to a reasonable degree of certainty. When questioned at trial
as to whether he had made a diagnosis to a reasonable degree of scientific certainty, Dr.
Price testified as follows in his voir dire: “I have.”3
As to the trial court’s invoking of Rule 403 of the Tennessee Rules of Evidence
and cited concern for potential jury confusion, we are of the opinion that the trial court
erred to the extent it concluded that the probative value of Dr. Price’s testimony was
substantially outweighed by any of the countervailing considerations outlined in Rule
403.4 The trial court’s concern for jury confusion emanated from a fact that the parties
have spilled much ink over in this case—that Dr. Price did not conduct a personal
examination of Ms. Ellis. There has been much debate over this issue, with Ms. Ellis
3
When pressed by a member of this Court’s judicial panel at oral argument about whether Dr.
Price testified in his voir dire that his opinions were held to a reasonable degree of certainty, counsel for
Ms. Ellis admitted this point, stating, “He did.”
4
As noted by Mr. Modi in his appellate brief, the trial court never specifically articulated such a
conclusion. However, that appears to be the understanding that informed the court’s ruling. Indeed,
immediately before announcing its ruling that Dr. Price would be excluded, the trial court commented as
follows: “Although relevant, evidence may be excluded if its probative value is substantially outweighed
by the danger of confusion of issues.”
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contending that Dr. Price, who is licensed in South Carolina, cannot render an opinion
about her absent an in-person examination.5 The trial court evidently accepted Mr.
Modi’s argument that no such absolute prohibition existed,6 because as already noted, the
court based its decision to exclude Dr. Price on potential confusion concerns attendant to
his proposed testimony, not on his inability or incompetency to testify. Specifically, the
trial court expressed apprehension about having to explain why Dr. Price did not examine
Ms. Ellis despite a request to do so. Although no one appears to question that it was
permissible for Ms. Ellis to refuse a request by Dr. Price to examine her under the
particular facts of this case,7 the trial court was concerned that this would be too much for
the jury to digest when this information was brought out during Dr. Price’s examination
or through a clarifying instruction submitted to them. In relevant part, the trial court
stated as follows:
[T]he problem that we’re going to have is the fact that -- that -- and
Plaintiff’s counsel is going to do this on cross-exam, that Dr. Price did not
have an opportunity to examine the Plaintiff because Plaintiff’s counsel
wouldn’t let him. I mean -- and that’s just a fact. That is the way it came
down. And now, but why, is the issue of . . . . We can’t just leave it at that.
It’s got to be -- there’s got to be a why, why did Plaintiff’s counsel do that.
And then -- then we’re back to an instruction to the jury about why.
The court then went on to discuss all of the details it speculated it might need to explain
to the jury about why Ms. Ellis had been able to deny Dr. Price the ability to examine
her,8 ultimately stating, “I think it’s too much for them, and it -- and it takes away the
focus of what the case is about.” As the court explained, “Dr. Price will be excluded
because his testimony, although relevant -- because we have to explain why and how it
was possible for . . . Plaintiff’s counsel to refuse to allow their client to be interviewed by
Dr. Price.”
5
The trial court did not specifically rule in Ms. Ellis’ favor on this proposition, but it bears noting
again that Dr. Price’s testimony was not offered to be limited to his professional opinions about the
plaintiff. Mr. Modi also intended to offer Dr. Price to provide an opinion as to the methodology of the
plaintiff’s expert. That particular critique, of course, never initially contemplated an examination of the
plaintiff.
6
As discussed in the trial court and in the briefing in this Court, South Carolina’s regulation
concerning psychologists’ ethics specifically adopts the American Psychological Association (“APA”)
Code of Ethics “as the code of ethics for individuals licensed.” S.C. Code Regs. 100-4. As evidenced by
the extensive discussion of the APA ethical guidelines in the record, there is no absolute prohibition under
such authority in providing an opinion in the absence of an individual examination.
7
Ms. Ellis had previously been examined by another expert of Mr. Modi’s that he subsequently
decided not to offer at trial and Ms. Ellis objected to a second examination.
8
Among other things, the trial court discussed a need to get into the details of the scheduling
order that had governed litigation in the trial court.
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Respectfully, we do not share the court’s concern, certainly not to the extent that
would warrant the exclusion of Dr. Price’s testimony. We note that prior to Dr. Price’s
voir dire, the trial court had contemplated crafting some type of instruction to the jury on
this issue, but at the conclusion of voir dire, it appeared to believe that any instruction
submitted to the jury would be unduly burdensome. It is unclear to us why the court
would have needed to go into the specific legal detail that it speculated would need to
accompany a clarifying instruction to the jury. In our view, assuming it felt an
instruction was warranted, we do not know why the trial court would have needed to go
any further than communicating to the jury that the plaintiff was not legally required to
submit to an in-person examination by Dr. Price under the circumstances of this case.
Yet, even if the trial court was of the opinion that a more fulsome or intricate explanation
was necessary, we fail to see how the trial court’s implicit conclusion—that the risk of
confusion attendant to such an explanation substantially outweighed the probative value
of Dr. Price’s testimony—is supportable here.
As we have already noted, “excluding relevant evidence under Tenn. R. Evid. 403
is an extraordinary remedy that should be used sparingly, and persons seeking to exclude
otherwise admissible and relevant evidence have a significant burden of persuasion.” Id.
(internal citations omitted). Here, Dr. Price’s proposed testimony was highly probative
of whether Ms. Ellis suffered PTSD as a result of the alleged attack on her and would
have included, among other things, a critique of the methodology of Ms. Ellis’ expert.
The trial court’s own comments support the fact that Dr. Price had “specialized
knowledge that would substantially assist” the jury, and yet, the jury was foreclosed from
considering such expertise due to what was, in our view, an unwarranted fear of jury
confusion. Certainly, any confusion generated by an instruction of why Ms. Ellis had
refused an examination by Dr. Price would be in the hands of the trial court, and again, it
is unclear to us why the court would have needed to go into the excessive legal detail
about which it contemplated. Nevertheless, to the extent that any confusion might
somehow attach to an instruction offered by the trial court about why Ms. Ellis was
permitted to refuse an examination by Dr. Price, we must again stress that exclusion
under Rule 403 is an extraordinary remedy. In balancing the probative value of Dr.
Price’s proposed testimony with the risk of potential jury confusion, we fail to see how
the question is even a close one. Again, the high probative value of the testimony is
clear; the risk of any confusion on the part of the jury is a much more attenuated
proposition in our view. Yet, even assuming that these competing considerations were
more on par with one another, we note that “a trial court should not exclude evidence
under Tenn. R. Evid. 403 when the balance between the probative worth of the evidence
and the countervailing factors is fairly debatable.” Id. It was clear error to exclude Dr.
Price from testifying.
It was also error to allow the jury to consider the other evidence about which Mr.
Modi complains on appeal. As noted earlier, Mr. Modi moved pre-trial to exclude
testimony from Ms. Briley about a prior incident in which he had asked Ms. Briley to put
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lotion on his groin area. He also had moved pre-trial to exclude evidence pertaining to a
prior herpes diagnosis and penile implant. The trial court denied Mr. Modi’s efforts,
holding that the probative value of such evidence and testimony was not substantially
outweighed by any resulting prejudicial effect and that the proof was relevant to Mr.
Modi’s credibility. On appeal, Mr. Modi argues that the trial court’s allowance of this
evidence ran afoul of Rule 403 and, as to the testimony of Ms. Briley, also ran afoul of
Rule 404(b).
As to Ms. Briley’s testimony, which Mr. Modi has argued does not necessarily
describe ill conduct, Ms. Ellis took the position in this case that Ms. Briley’s account
“would tend to show among other things that Modi did sexually assault Plaintiff which he
denies.” The upshot of this argument involves a suggestion that Mr. Modi’s request of
Ms. Briley to apply lotion was for the purpose of sexual gratification and, therefore, this
tends to prove that he acted out in a sexual attack against Ms. Ellis. In other words, if he
allegedly acted improperly with one caregiver for purposes of sexual gratification as
sought to be conveyed by Ms. Briley, he must have acted improperly sexually with Ms.
Ellis. We agree with Mr. Modi that Ms. Briley’s testimony was improperly utilized for
propensity evidence. Rule 404(b) of the Tennessee Rules of Evidence provides that
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity with the character trait.” Tenn. R. Evid.
404(b).
We likewise agree with Mr. Modi that all of the admitted evidence about which he
complains should have been barred under Rule 403. It bears emphasizing that the issue
in this case centers on whether a sexual assault occurred on Ms. Ellis. As to the evidence
that Mr. Modi had previously been diagnosed with herpes and had a penile implant, it
appears to be Ms. Ellis’ contention that this evidence is relevant to contradict Mr. Modi’s
alleged portrayal of himself as a non-sexual person. However, as Mr. Modi has pointed
out on appeal, the evidence simply showed that, as of 2009, there was evidence that Mr.
Modi had been diagnosed with herpes and that, in 2001, he had a penile implant installed.
This evidence is clearly remote to counteracting any portrayal of Mr. Modi as a non-
sexual person in 2015 during the wake of his recovery from his car wreck and lymphoma
diagnosis, and in our opinion, unnecessarily casts a risk of unfair prejudice or confusion
of the pivotal issue before the trier of fact. Any marginal relevance this evidence may
have arguably had was clearly substantially outweighed in our view by the countervailing
considerations in Rule 403.
It has been suggested by Ms. Ellis on appeal, however, that the evidence pertaining
to Mr. Modi’s herpes diagnosis and penile implant was “fair game” in this case because
these topics were broached first by Mr. Modi at trial. We disagree. Instructive is the
Tennessee Supreme Court’s discussion in State v. McGhee, 746 S.W.2d 460 (Tenn.
1988). At issue in that case was the admissibility of a prior conviction. In relevant part,
the Supreme Court discussed the matter as follows:
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At the subsequent jury-out hearing the issue was developed. The trial
judge held the conviction admissible and made a clear and definitive ruling.
The accused then took the stand, and his counsel brought out the conviction
on direct examination without waiting for it to be introduced on cross-
examination by the State.
The Court of Criminal Appeals held that appellant had waived the
issue of the trial judge’s ruling by proceeding in this fashion. In this
particular case and on this record we are of the opinion that the Court of
Criminal Appeals was in error. The trial judge had clearly ruled that the
prior conviction was admissible. In our opinion it was not necessary for
counsel further to object to that ruling. After the ruling had been made,
clearly and unequivocally, in our opinion the issue was sufficiently
preserved for further review on appeal without the making of any further
objection. Of course, had the appellant not brought out the conviction on
direct examination, the State might not have pursued the matter on cross-
examination. The admissibility of the conviction, however, had been
determined; and the correctness of that ruling had been preserved as an
issue.
State v. McGhee, 746 S.W.2d 460, 463 (Tenn. 1988) (internal footnote omitted).
In this case, Mr. Modi objected to the disputed evidence pre-trial. Further, he
received a definitive ruling from the trial court holding that the evidence to which he
objected would be admissible at trial. Under such circumstances and in light of the
instruction in McGhee, Ms. Ellis’ argument on this point is without merit.
Although we have identified several evidentiary errors on the part of the trial
court, the mere identification of errors by an appellate court does not automatically
translate into the setting aside of a judgment. See Blackburn v. Murphy, 737 S.W.2d 529,
533 (Tenn. 1987) (“[A]n error does not of itself necessarily require reversal.”). “The
erroneous admission or exclusion of evidence is subject to harmless error analysis.”
Goodwin v. Hanebis, No. M2017-01689-COA-R3-CV, 2018 WL 4145889, at *4 (Tenn.
Ct. App. Aug. 29, 2018). Indeed, our rules of appellate procedure specifically provide as
follows: “A final judgment from which relief is available and otherwise appropriate shall
not be set aside unless, considering the whole record, error involving a substantial right
more probably than not affected the judgment or would result in prejudice to the judicial
process.” Tenn. R. App. P. 36(b).
In our opinion, the exclusion of Dr. Price alone justifies a new trial. In
determining whether the exclusion of testimony was harmless error, we consider, among
other things, the importance of the testimony and the overall strength of the case.
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Hatfield v. Allenbrooke Nursing & Rehab. Ctr., LLC, No. W2017-00957-COA-R3-CV,
2018 WL 3740565, at *22 (Tenn. Ct. App. Aug. 6, 2018). We must determine whether
the exclusion of testimony more probably than not influenced the jury’s verdict. See
Beeks, 469 S.W.3d at 529. Here, we are of the opinion that the exclusion of Dr. Price
more probably than not influenced the jury’s verdict. Ms. Ellis asserted she had PTSD as
a result of the alleged attack, and Mr. Modi was attempting to offer Dr. Price to counter
this allegation. Dr. Price’s testimony was no doubt vitally important to the defense in this
case, and as noted earlier, the trial court even remarked that he had “specialized
knowledge that would substantially assist the trier of fact.” By way of Dr. Price’s
exclusion, however, the claim of PTSD from the alleged attack went wholly
unchallenged, a point Ms. Ellis’ counsel emphasized during closing argument before the
jury. In our view, such an emphasis by counsel is not irrelevant to determining whether
harmful error exists. See In re Estate of Smallman, 398 S.W.3d 134, 153 (Tenn. 2013)
(“[T]he reviewing court should examine the degree to which the wrongly admitted
evidence was emphasized by its proponent during trial as an indicator of its likely
prominence in the minds of the jurors, noting in this regard whether the evidence was
mentioned by counsel in opening statement or closing argument.”). Because the
exclusion of Dr. Price more likely than not influenced the jury’s verdict, we vacate the
jury’s verdict and the trial court’s judgment, and remand the case for a new trial.9
CONCLUSION
For the reasons stated herein, the jury’s verdict and the trial court’s judgment are
vacated, and the case is remanded for a new trial and any other further proceedings
consistent with this Opinion.
_________________________________
ARNOLD B. GOLDIN, JUDGE
9
All other issues not specifically addressed herein are pretermitted.
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