Fisher v. Johnson

508 N.W.2d 352, 1993 N.D. LEXIS 211, 1993 WL 458845
CourtNorth Dakota Supreme Court
DecidedNovember 10, 1993
DocketCiv. 920254
StatusPublished
Cited by4 cases

This text of 508 N.W.2d 352 (Fisher v. Johnson) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Johnson, 508 N.W.2d 352, 1993 N.D. LEXIS 211, 1993 WL 458845 (N.D. 1993).

Opinions

NEUMANN, Justice.

Rodger D. Johnson appealed from the judgment entered in an action brought by Todd A. Fisher to recover damages arising out of a beating inflicted upon him by Johnson and from an order denying Johnson’s motion for new trial. We affirm.

Rodger, Fisher, and a number of others were involved in an altercation at a bar in Grafton on March 5, 1988. Rodger received a cut under his right eye and required medical attention.

Early on March 27, 1988, Rodger and his brother, Dale Johnson, waited outside Fisher’s home. Fisher was dropped off by a friend. As Fisher was walking toward his home, Dale and Rodger approached him and Rodger asked if he was Todd Fisher. Fisher was beaten by Rodger. Fisher was transported by ambulance to a hospital, where he was treated from 1:33 a.m. to 3:25 a.m.

Fisher sued Dale and Rodger for compensatory and exemplary damages. Rodger answered and counterclaimed for damages allegedly resulting from the March 5 incident. Dale answered separately.1 Rodger also filed a third-party complaint against Keith Lindenberg and Denton Offutt, alleging that in the March 5 incident, Lindenberg held him while he was repeatedly struck by Fisher and Offutt. Lindenberg and Offutt filed an answer denying the allegations in the third-party complaint.

After a four-day trial, the jury returned a special verdict finding that Rodger was 100% at fault for the injuries suffered by Fisher on March 27, 1988, and that Dale and Fisher were not at fault. The jury awarded Fisher past economic damages of $1,725.30, no future economic damages, non-economic damages of $15,000 and punitive damages of $30,-000. The jury also found that Fisher, Lin-denberg and Offutt were not at fault for causing Rodger damages in the March 5 incident.

Judgment was entered in favor of Fisher for $52,494.72, including interest, costs and disbursements. Lindenberg and Offutt were each awarded costs and disbursements of $450.85. The trial court denied Rodger’s motion for a new trial, and Rodger appealed from the judgment and from the order denying his motion for new trial.

On appeal, Rodger argues that the exemplary damages awarded were excessive, that the trial court erred in denying his motion to bifurcate the issue of exemplary damages from the issues of liability and compensatory damages, and that the trial court erred in denying him an opportunity to challenge the expert opinion of Fisher’s clinical psychologist or to impeach Fisher’s credibility by cross-examining him about his responses to three statements in a Minnesota Multiphasic Personality Inventory (MMPI)2 he completed.

[354]*354In his motion for a new trial, Rodger asserted only the trial court’s refusal to allow cross-examination about Fisher’s responses to three statements in the MMPI he completed as grounds for a new trial; he did not raise the exemplary damages and bifurcation issues as grounds for a new trial. We said in Andrews v. O’Hearn, 387 N.W.2d 716, 728 (N.D.1986):

“ ‘It is well settled that where a motion for a new trial is made in the lower court the party making such a motion is limited on appeal to a review of the grounds presented to the trial court.’ Zimbelman v. Lah, 61 N.D. 65, 67, 237 N.W. 207, 208 (1931). This restriction of appealable issues applies not only to review of a denial of the motion for a new trial, but also to the review of the appeal from the judgment itself or from a denial of a motion for judgment notwithstanding the verdict_”

Because Rodger filed a motion for a new trial and did not raise issues about exemplary damages and bifurcation as grounds for a new trial, appellate review of those issues is foreclosed. Thus, the only issues preserved for our review are whether or not the trial court erred in denying Rodger an opportunity to challenge the conclusion of Fisher’s clinical psychologist or to impeach Fisher’s credibility by cross-examining him about his responses to three statements in the MMPI.3

Sharon Hagen, a clinical psychologist, met with Fisher twice in 1991. She conducted a one-hour clinical interview, administered the MMPI to Fisher, and conducted another one-hour clinical interview. She diagnosed Fisher as having post-traumatic stress disorder. Hagen testified that her “opinion is based primarily on my clinical interview. The M.M.P.I. I used to substantiate what I found in the clinical interview.”

Rodger’s attorney sought to have Hagen read Fisher’s responses to the following statements in the MMPI: No. 41 — “I do not always tell the truth.”; No. 134 — “At times I feel like picking a fist fight with someone.”; and No. 150 — “Sometimes I feel as if I must either injure myself or someone else.” Fisher responded in the affirmative to all three statements in the MMPI. The trial court refused to allow Rodger’s attorney to ask Hagen about Fisher’s responses to those three MMPI statements:

“Second, I believe it’s using extrinsic evidence to address truthfulness and while there is some latitude in the rules of evidence and perhaps some discretion for the court to address, this does not appear to be one. Therefore, I’m going to deny the request to ask individual questions.
⅞' ⅞* ⅜ ⅝⅞ ⅜ ⅜
“You’ve made your point. I’m not going to change my ruling despite your statements. I believe he was answering those for a different purpose. He had not been instructed he could not answer those. Those questions have to be answered true or false. He has no choice to explain. It was done for a different purpose. My ruling stands.”

When Rodger’s attorney later sought to cross-examine Fisher about his responses to MMPI statements No. 41, No. 134, and No. 150, the trial court again refused to allow use of the individual statements:

“Okay. To add to my earlier ruling, I’m going to deny the asking of those three [355]*355questions. I think the truthfulness scale question was asked by plaintiffs counsel, but, Mr. Larivee, you had the chance to discuss and ask all the questions you wanted of Dr. Hagen about that. You had the chance to impeach her or to discredit her opinion and in fact numerous questions were asked about that. It was self-reporting by Mr. Fisher that she based her analyses upon. As I said earlier that is a questionnaire in which he was told he had to answer questions by her. He had no real choice in that if he was going to be considered cooperating in the testing. Two of the questions have to do with feelings. They do not have to do with actions; No. 134 and 150. I believe it would be unduly prejudicial to pick out one or two of questions and address them to that plaintiff. I’m going to deny your request and we will proceed on.”

In its order denying Rodger’s motion for a new trial, the trial court said that it “balanced the different interests and concluded that the questions and answers were not of sufficient probative value as to Plaintiffs motives and truthfulness to offset the undue prejudice to the Plaintiff which would occur if deemed admissible.”

Attempts to use MMPI responses have been limited and results mixed. In State v. Martini, 131 N.J. 176, 619 A.2d 1208

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Fisher v. Johnson
508 N.W.2d 352 (North Dakota Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
508 N.W.2d 352, 1993 N.D. LEXIS 211, 1993 WL 458845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-johnson-nd-1993.