B. A. v. Webb

289 P.3d 300, 253 Or. App. 1, 2012 WL 5286169, 2012 Ore. App. LEXIS 1296
CourtCourt of Appeals of Oregon
DecidedOctober 24, 2012
Docket07C19633; A140608
StatusPublished
Cited by19 cases

This text of 289 P.3d 300 (B. A. v. Webb) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B. A. v. Webb, 289 P.3d 300, 253 Or. App. 1, 2012 WL 5286169, 2012 Ore. App. LEXIS 1296 (Or. Ct. App. 2012).

Opinion

HASELTON, C. J.

Defendant appeals a monetary judgment against him for the intentional torts of sexual battery of a child and intentional infliction of severe emotional distress. Defendant contends, inter alia, that (1) the trial court erred in allowing plaintiff’s two expert witnesses to provide opinion testimony regarding plaintiff’s credibility and (2) the admission of the experts’ diagnoses that plaintiff had been sexually abused, in the absence of physical findings, constituted plain error under State v. Southard, 347 Or 127, 218 P3d 104 (2009), and State v. Jury, 185 Or App 132, 136, 57 P3d 970 (2002), rev den, 335 Or 504 (2003).1 We conclude that the trial court did so err and, accordingly, reverse.2

We state the facts necessary to provide context for the testimony at issue on appeal. In 2008, when she was 24, plaintiff filed a complaint against defendant, alleging that he had subjected her to sexual and physical abuse when she was between the ages of 11 and 14. Defendant had been married to plaintiff’s mother during the time of the alleged misconduct. Plaintiff alleged, among other things, that defendant would dress himself in women’s clothing— including, particularly, nylon stockings — and sometimes, while so clothed, defendant would “play” with plaintiff by tying her up and encouraging her to try to escape. Plaintiff further alleged that, during the episodes when plaintiff was restrained, defendant would sometimes straddle her and make a “rocking motion” while on top of her. Plaintiff also alleged that defendant encouraged her to wear nylons and, when she did, he would rub her legs. Defendant categorically denied all allegations.

Defendant moved in limine to prohibit “any mention, evidence, argument or other reference *** [t]hat Plaintiff’s expert witness has determined” that “any fact alleged by Plaintiff in her Complaint to be true.” Defendant supported the motion “upon the ground that the information is irrelevant, and/or usurps the prerogative of the trier of the facts.” The court denied defendant’s motion and ruled that, [4]*4“so long as the Plaintiff! ] establish [es] a proper foundation for the testimony, the witness will be entitled to offer her opinions on those issues.”

Plaintiff testified at trial regarding the above-outlined allegations. Plaintiff also provided testimony from two expert witnesses, plaintiff’s mental health counselor, Dawn Hill, and Dr. Cynthia Steinhauser, who had administered a psychosexual evaluation of plaintiff. Plaintiff did not produce any physical evidence of the alleged abuse.

Critical to our analysis and disposition is Hill’s testimony that, in her expert opinion, plaintiff was credible and, based on that determination, she had diagnosed plaintiff as being a victim of childhood sexual abuse. Specifically, Hill testified as follows:

“[PLAINTIFF’S COUNSEL]: Based upon your education, your training, your experience as a licensed professional counselor and therapist, and more importantly, based upon your time with [plaintiff], do you have an opinion, to a reasonable degree of probability, as a licensed professional counselor, of whether [plaintiff] is a victim of childhood sex abuse?
“[HILL]: Yes, I do. I believe she is.
“ [PLAINTIFF’S COUNSEL]: Is there any doubt about that in your mind?
“[HILL]: No.
“[PLAINTIFF’S COUNSEL]: During your 37 visits with [plaintiff], did you get any indication that [plaintiff] is a malingerer?
“[HILL]: No.
“ [PLAINTIFF’S COUNSEL]: That she is hallucinating?
“[HILL]: No.
“[PLAINTIFF’S COUNSEL]: That she has delusions?
“[HILL]: No.
“[PLAINTIFF’S COUNSEL]: Did you find the events that she chronicled to you over 37 visits to be consistent [5]*5with what you have seen in your experience the victims of childhood sex abuse go through?
“[HILL]: Yes.
“[PLAINTIFF’S COUNSEL]: And with regard to her symptoms and the diagnosis, which we will get to in just a minute that you made of [plaintiff], is your diagnosis and her symptoms consistent with victims of childhood sex abuse, based upon your experience?
“[DEFENSE COUNSEL]: Objection.
“[HILL]: Yes.
“ [DEFENSE COUNSEL]: Leading.
“THE COURT: Overruled.
* * * *
“ [PLAINTIFF’S COUNSEL]: Given that you made the diagnosis that [plaintiff is] a victim of childhood sex abuse, given that you’ve made the diagnosis that she suffers from post-traumatic stress syndrome, do you have an opinion, as her treating counselor, as to the cause of her post-traumatic stress syndrome?
“[HILL]: Yes, I do.
“[PLAINTIFF’S COUNSEL]: What is that opinion?
“[HILL]: Childhood sex abuse over a three-year period [.]
* * * *
“[PLAINTIFF’S COUNSEL]: You testified earlier you made the diagnosis that [plaintiff] is a victim of childhood sex abuse?
“[HILL]: Yes.
“[PLAINTIFF’S COUNSEL]: In order to make that diagnosis, did you happen to determine whether she was an accurate reporter—
“[HILL]: Yes.
“[PLAINTIFF’S COUNSEL]: —of what happened to her?
[HILL]: Yeah.
[6]*6<(* * * ^ Hi
“[PLAINTIFF’S COUNSEL]: And in treating [plaintiff], did you see, Counselor Hill, one scintilla, one shred of evidence that would indicate she’s malingering, or to use your phrase, [‘[making it up?[’]
“[HILL]: No.”
Later, on cross-examination, Hill testified, “In my education and experience over time, and based on my experience over ten years, I believe [plaintiff] to be credible.” On redirect, plaintiff’s counsel again asked Hill for her opinion regarding plaintiff’s credibility:
“ [PLAINTIFF’S COUNSEL]: You’ve been treating and dealing with people like [plaintiff] for ten years. Do you have any shred of concern, any doubt in your mind whatsoever, that what she told you is the absolute truth?
“[DEFENSE COUNSEL]: I’ll object to that, Your Honor.”
The court overruled the objection and allowed Hill to answer:
“[HILL]: I have no doubt.
“[PLAINTIFF’S COUNSEL]: Why?
“[HILL]: Just based on experience and education, there isn’t anything that has led me to distrust what she’s reported to me. And the — the whole relationship in counseling is based on trust, and the trust has to go both ways. It’s not just them trusting me, it’s me trusting them. And so based on that, * * * I believe that she has reported the truth.

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Cite This Page — Counsel Stack

Bluebook (online)
289 P.3d 300, 253 Or. App. 1, 2012 WL 5286169, 2012 Ore. App. LEXIS 1296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-a-v-webb-orctapp-2012.