Franklin v. Stevenson

1999 UT 61, 987 P.2d 22, 372 Utah Adv. Rep. 10, 1999 Utah LEXIS 95, 1999 WL 398085
CourtUtah Supreme Court
DecidedJune 18, 1999
Docket970016
StatusPublished
Cited by16 cases

This text of 1999 UT 61 (Franklin v. Stevenson) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Stevenson, 1999 UT 61, 987 P.2d 22, 372 Utah Adv. Rep. 10, 1999 Utah LEXIS 95, 1999 WL 398085 (Utah 1999).

Opinion

HOWE, Chief Justice:

¶ 1 Plaintiff Cherese M. Franklin appeals from a final order granting defendant Kenton Ray Stevenson’s motion for a judgment notwithstanding the verdict.

BACKGROUND

¶ 2 In 1992, after experiencing inexplicable panic attacks and hearing hallucinatory voices' telling her to kill her infant daughter, Franklin began treatments with a psychologist,. Dr. Laurie Hoover. Franklin’s therapy included relaxation techniques such as deep breathing and self-reflective techniques such as “communicating” with her “inner child.” It was while she was. under Dr. Hoover’s care that Franklin began to “recall” previously “repressed” memories of abuse from her childhood. It is unnecessary for us to recount here the specific allegations of abuse. Suffice ■ it to say the “memories” involved particularly heinous, traumatic acts.

¶ 3 At first, Franklin feared that her father had been the abuser. As her therapy progressed, she focused instéad on Stevenson, á cousin approximately seven years her senior. Once she became convinced that Stevenson had committed the abuse, she filed this action against him. Stevenson’s mother was also named as a party to the suit. Prior to trial, Stevenson filed a motion in limine questioning the reliability of (1) the theory of repressed memory, (2) the therapeutic methods used to recover the memories, and (3) Franklin’s own testimony of her recovered and repressed memories. Additionally, in this motion, Stevenson requested the exclusion of the experts’ testimonies regarding repressed memory in general and Franklin’s memories in particular, based on a lack of inherent reliability. Furthermore, Stevenson requested that the trial court exclude any evidence and testimony — either from the expert witnesses or Franklin herself — derived from the memories that these therapeutic methods “recovered.” The trial court did not rule on this motion until the conclusion of the plaintiffs evidence, when the trial court denied the motion. Following the presentation of all the evidence, Stevenson again moved for exclusion of testimony concerning repressed memory and recovery techniques, as well as any testimony or evidence derived from Franklin’s “recapture of memory.” The trial court also denied this motion. The juiy returned a verdict against Stevenson, but in favor of his mother. 1

¶ 4 Stevenson moved for a judgment notwithstanding the verdict (“j.n.o.v.”) pursuant to Utah Rule of Civil Procedure 50, or in the alternative, a new trial pursuant to Utah Rules of Civil Procedure 50 and 59, or a remittitur. The trial court granted the motion for a j.n.o.v. The court drew a parallel *24 between hypnotic suggestion and communicating with one’s metaphorical inner child and concluded that these therapeutic techniques were “hypnosis-like” in nature. In its order, the court ruled that Franklin “failed to establish, as a matter of law, the inherent reliability of the methods used to recover a memory.” The court excluded this evidence and all related testimony from the record, then determined that insufficient evidence remained to support the jury’s verdict against Stevenson; therefore, the court ruled, he was entitled to a j.n.o.v. Franklin now appeals.

ANALYSIS

¶ 5 Franklin, makes three assignments of error: first, that the trial court erred in striking her testimony following the jury verdict and thereafter granting a j.n.o.v.; second, that the trial court erred in equating hypnosis with the techniques Franklin’s therapist used; third, that Stevenson waived all objections to this testimony by failing to object at the time the testimony was offered. We will address each issue in turn.

I. JUDGMENT NOTWITHSTANDING THE VERDICT

¶ 6 Franklin contends that the trial court erred in granting Stevenson’s motion for a j.n.o.v. In addressing such a motion, a trial court must look at the evidence and all reasonable inferences in a light most favorable to the nonmoving party, granting the j.n.o.v. motion only if this examination demonstrates that there is insufficient evidence to uphold the verdict. See Seale v. Gowans, 923 P.2d 1361 (Utah 1996); Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060 (Utah 1996); Hansen v. Stewart, 761 P.2d 14 (Utah 1988); Utah R. Civ. P. 59. On appeal, this court must apply the same standard. See Braithwaite v. West Valley City Corp., 921 P.2d 997 (Utah 1996); Gold Standard, 915 P.2d at 1066; Hansen, 761 P.2d at 17.

A. Abridging or Amending Record when Considering J.N.O.V. Motion

¶ 7 Franklin argues that this court should recognize that “[a] judge cannot grant a directed verdict or judgment notwithstanding the verdict by ignoring evidence he has admitted on the ground that the admission was error.” 21 Wright & Graham, Federal Practice and Procedure § 5041, at 229-30 (1977). Stevenson counters that in Roche v. Zee this court stated that the purpose behind Utah Rule of Civil Procedure 50 “is to permit the trial judge to submit the case to the jury for their determination, then if the verdict goes adverse to the moving party, he can, when there is more time for deliberation, reexamine and rule upon whether a jury question exists.” 1 Utah 2d 193, 264 P.2d 855, 855-56 (1953). While we do not disagree with that statement, it does not follow that after a jury returns a verdict, a trial court may strike evidence already admitted into the record and thereafter grant a j.n.o.v. based upon the abridged record. We are not alone in disallowing a trial court to use an “abridged record” when deciding a j.n.o.v. motion. At least seven other courts have also expressed their disapproval of such trial court actions. See, e.g., Jackson v. Pleasant Grove Health Care Ctr., 980 F.2d 692 (11th Cir.1993) (holding that trial court in deciding j.n.o.v. motion must consider record as presented to jury); Douglass v. Eaton Corp., 956 F.2d 1339 (6th Cir.1992) (same); Sumitomo Bank v. Product Promotions, Inc., 717 F.2d 215 (5th Cir.1983) (same); Midcontinent Broad. v. North Cent. Airlines, Inc., 471 F.2d 357 (8th Cir.1973) (same); Hernon v. Revere Copper & Brass, Inc., 363 F.Supp. 96 (E.D.Mo.1973) (same); Pratt v. District of Columbia, 407 A.2d 612 (D.C.1979) (same); Townsend v. United States Rubber Co., 74 N.M. 206, 392 P.2d 404 (1964) (same). But see Aloe Coal Co. v. Clark Equip. Co.,

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Bluebook (online)
1999 UT 61, 987 P.2d 22, 372 Utah Adv. Rep. 10, 1999 Utah LEXIS 95, 1999 WL 398085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-stevenson-utah-1999.