In Bowen v. Ryan (June 6, 2008) 08 C.D.O.S. the Court of Appeal for the Third Appellate District held that the trial court committed reversible error by allowing 13 witnesses to testify about nine different and unrelated incidents involving defendant during plaintiff’s dental malpractice and battery case against defendant. The court said that not only was such evidence very limited in probative value, it was highly prejudicial and time consuming, and given the circumstances of the case, the court of appeal believed there was a high probability the defendant would have prevailed had the evidence of the unrelated incidents been excluded. The appellate court reversed.

Plaintiff D’Michael Bowen was eight years old when he went to see defendant Donald Ryan for some dental work. The evidence showed that Ryan was a dentist who, during his 28 years of practice, had seen 35,000-45,000 patients, the vast majority of whom were children. He testified that other dentists frequently referred difficult-to-treat children to him. Indeed, the first dentist Bowen saw for his dental problems put Bowen on antibiotics and told Bowen’s mother to take her son to another dentist because Bowen refused to cooperate and would not open his mouth.

When Bowen finally saw Ryan for treatment, the infection of his tooth had progressed to the point a pulpectomy (similar to a root canal) was required. During the visit, the mother was asked to leave the operatory while her son received treatment. Bowen refused to allow Ryan and his assistant to administer an injection to numb the affected area. According to plaintiff, he cried when he saw the syringe and started screaming “no” while kicking his feet and putting his arms in front of him. He claimed that Ryan put his arm against his neck, which made it impossible for Bowen to breathe. Bowen also said he asked to go to the bathroom—which he was permitted to do—and upon his return was slammed up against a wall by Ryan who “angrily” asked him “if there was going to be a problem and if plaintiff would let defendant work on his teeth.” Plaintiff testified he was scared, but agreed to cooperate.

Predictably, Ryan offered a very different account. He said that as he got close to the plaintiff with the syringe, the boy began kicking and grabbed Ryan’s hand (with the syringe) with both hands. Ryan said he was worried the needle would hurt the plaintiff, or the dental assistant or himself, so he put his forearm on the patient’s chest in order to stabilize the syringe. Bowen asked to go to the bathroom and after he got up and out of the examination chair, Ryan stopped him in the doorway and firmly explained that his job was to fix plaintiff’s teeth, and that he could either have the procedure done at Ryan’s office or at the hospital. He said he would not tolerate any kicking or grabbing and plaintiff said he understood. Plaintiff then went to the bathroom and upon his return, the procedure continued without incident. Ryan denied every putting his arm against plaintiff’s neck or shoving him against a wall.

Ryan’s operatory assistant supported his version of events; another staff person corroborated plaintiff’s version. Before trial, plaintiff disclosed that he planned to call a number of other witnesses who had either experienced or would describe Ryan’s rough treatment of other pediatric dental patients. Defendant sought to exclude the evidence under Evidence Code section 1101, “Character to Prove Conduct”, but the trial court denied defendant’s motion and held the “evidence was relevant to demonstrating a common plan or design.” At trial, 13 witnesses described 9 different events involving pediatric patients who claimed they received rough treatment at the hands of Ryan. Defendant also offered the testimony of several patient witnesses, each of whom testified he provided appropriate care.

The jury deliberated on the issues of negligence, dental battery and battery over several days. Ultimately, they delivered a 9-3 verdict in favor of plaintiff, and awarded $10,000 for negligent treatment, $10,000 for dental battery and $70,000 for battery. They also held 9-3 that the defendant did not act with malice. Defendant appealed.

On appeal, Ryan argued that the trial court erred by admitting the testimony of other patients about treatment unrelated to the treatment of Bowen, and the appellate court agreed. The court explained why evidence of a person’s character or a character trait is inadmissible in a civil action. “First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and to punish the bad man because of their respective characters. Third, introduction of character evidence may result in confusion of the issues and require extended collateral inquiry.” (Emphasis in original).

Going further, the court stressed that “evidence a person is a competent or skilled [professional] (or the inverse), whether proven by reputation, opinion or specific acts, is not admissible to prove the defendant was negligent on a particular occasion.” The court specifically noted that a physician’s “reputation for skill and ability will not exonerate him, where gross negligence and want of the application of skill is alleged and proved. Nor can the fact that a doctor is reputed to be negligent or unskillful be allowed as proof to establish negligence or unskillful treatment in a particular case, because he may have treated that case with unusual skill and care.(Cites omitted) For that reason, evidence of a defendant’s prior negligence in medical treatment is inadmissible to prove negligence in a particular” situation.

The court also rejected Bowen’s contention that the testimony of other patients was necessary to prove Ryan “acted pursuant to a common plan or design” since none of the other witnesses described anything similar to what happened to Bowen. Plaintiff’s assertion that all of those occurrences “demonstrated inappropriate physical responses to difficult patients” was “too broad to describe a meaningful plan.”

Plaintiff contended that the testimony of the 13 witnesses was necessary to attack defendant’s credibility. However, plaintiff did not seek to introduce nor was the evidence actually introduced under that theory. And similarly, plaintiff’s argument that the evidence was admissible under Evidence Code section 1105, “Habit or Custom,” was rejected by the court. “The evidence here did not relate to custom or habit; it was instead plain and simple character evidence, and inadmissible.”

The court concluded the likelihood of prejudice to Ryan, confusion of the trier of fact, and consumption of time far outweighed any minimal probative value that might have been gleaned from the testimony of 13 witnesses about nine other patients. The court observed that the “case was not a disciplinary proceeding. It was a tort case, involving two specific instances of allegedly tortuous conduct by defendant committed against one patient during the course of one dental appointment.” Because the court found it “reasonably probably that the jury would have returned a different verdict” had the evidence of other acts been excluded, it reversed.

This is a detailed and well-reasoned decision with very thorough citation to case and statutory law on the preclusion of character evidence in civil cases. Any standard trial motions on this issue should be updated to include reference to this decision.