Gutierrez v. Iulo

OPINION OF THE COURT

This in limine motion raises a question of first impression concerning the admissibility of expert testimony on rape trauma syndrome (RTS) in a civil action to recover for personal injury.1 Plaintiff here claims to have been the victim of a sexual assault by defendant Soto, an employee of defendant lulo. Shortly prior to trial, plaintiff’s attorney notified defendants’ counsel that he intended to call an expert witness to testify about RTS. Defendants moved to preclude such testimony pursuant to the medical exchange rule, Uniform Rules for Trial Courts (22 NYCRR) § 202.17 (h).2 When informed that the proposed expert witness was not a doctor, but rather an M.S.W. with extensive experience in a rape crisis center, the defendants moved in the alternative to preclude her testimony for lack of the requisite expertise, and particularly because she is neither a medical doctor nor a Ph D. in psychology. Both arguments fail because they misunderstand the nature of the testimony sought to be adduced, and the purpose for which it is offered — or at least for which this court will permit it.

In the landmark decision of People v Taylor (75 NY2d 277, *81supra [1990]), the Court of Appeals upheld the admissibility of expert testimony concerning RTS in appropriate cases, finding that the syndrome is sufficiently accepted in the scientific community to meet the traditional test of Frye v United States (293 F 1013 [DC Cir 1923]) (People v Taylor, at 285). It then considered whether testimony about RTS was sufficiently outside the knowledge of an ordinary juror or trier of fact that such expert testimony "would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror” (supra, at 288, citing De Long v County of Erie, 60 NY2d 296, 307 [1983]),3 and analogizing to its prior decision upholding the admissibility of expert testimony on the sexually abused child syndrome (Matter of Nicole V., 71 NY2d 112 [1987]). The Court found that, like child sexual abuse, "rape is a crime that is permeated by misconceptions” (People v Taylor, at 288),4 and concluded: "Because cultural myths still affect common understanding of rape and rape victims and because experts have been studying the effects of rape upon its victims only since the 1970’s, we believe that patterns of response among rape victims are not within the ordinary understanding of the lay juror. For that reason, we conclude that introduction of expert testimony describing rape trauma syndrome may under certain circumstances assist a lay jury in deciding issues in a rape trial.” (Supra, at 289.)

Although the issue in Taylor (supra), and in the majority of cases which have followed was the rape victim’s delay in reporting the assault, a familiar symptom of RTS, the Court of Appeals also noted a number of other components of the syndrome, including postattack physical manifestations such as "tension headaches, fatigue, or disturbed sleep patterns” *82and emotional reactions such as “fear, humiliation, embarrassment, fear of violence and death, and self-blame” as well as more long term symptoms such as “the occurrence of nightmares and the development of phobias that relate to the circumstances of the rape.” (Supra, 75 NY2d, at 285-286.) In addition, the Court noted that a victim might well “persistently reexperience the traumatic event in a number of ways, as through dreams, flashbacks, hallucinations, or intense distress at exposure to events that resemble or symbolize the traumatic event.” (Supra, at 287, citing American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 247, 248 [3d ed rev 1987].)

It is precisely these aftereffects of sexual assault about which plaintiff here wishes to offer expert testimony. She seeks to recover damages not only for the attack itself, but for what she claims are the continuing sequelae which persist to this day, some nine years after the event. It is not her contention that she experiences fear or nightmares on a regular basis, but rather that, once the acute, posttraumatic phase concluded, such symptoms have arisen intensely, but only from time to time, based on particular stimuli such as reading or hearing about rapes or sexual attacks on other women. Expert testimony about RTS, in demonstrating that such reactions are common among victims of sexual assault, will be useful and necessary in dispelling what may be the jury’s more common notion that a victim of assault will, after a reasonable period of time, “get over” the attack and cease to have symptoms relating to it. (See, e.g., Frazier and Borgida, Juror Common Understanding and the Admissibility of Rape Trauma Syndrome Evidence in Court, 12 L & Hum Behav 101 [1988].) It thus clearly meets the Taylor test for admissibility.5

*83The fact that the proposed expert witness on RTS is not a medical doctor or a Ph D. in psychology is also not fatal to allowing her testimony. Consistent with general evidentiary rules in which it is the actual expertise of a witness in a particular area, rather than credentials taken apart from knowledge and experience (see, Matott v Ward, 48 NY2d 455 [1979]), 6 the Third Department has held that testimony of an experienced rape crisis advocate without formal medical or academic credentials is admissible to explain the behavior exhibited by the victim of a sexual assault in a criminal case. (People v Page, 166 AD2d 886 [4th Dept 1990]; see also, Matter of Nicole V., supra [expert had M.S.W., was director of two Bronx offices of the Victim Services Agency and had counseled sexually abused children for 2 Vi years].)

This welcome recognition by the appellate courts is particularly important given the medical profession’s long-standing lack of attention to health-related aspects of violence against women. (See generally, Scully, Men Who Control Women’s Health: The Miseducation of Obstetrician Gynecologists.)7 Although defendants clearly have the right to voir dire the proposed witness prior to her testimony, her curriculum vitae, demonstrating more than a decade as director of and consultant to the St. Vincent’s Hospital Rape Crisis Center as well as various consultancies in the criminal justice and Family Court systems, suggests that she is eminently qualified to testify on RTS.

And, although this has not been raised by defendants, it is of no matter that the sexual assault in this case involved an uncompleted, rather than a consummated rape. Courts have appropriately recognized that RTS includes all of the reactions *84of the victim to a sexual assault, including reactions prior to the assault itself (e.g., People v Bennett, 169 AD2d 369, 374 [3d Dept 1991]).

The fact that the witness is not a doctor, and that her testimony will not be offered — or permitted — to establish the injuries actually suffered by the plaintiff, but rather to explain their persistence and pattern of occurrence so long after the fact (assuming, of course, that the jury believes the plaintiffs testimony about her symptoms), demonstrates the inapplicability of the medical exchange rules in this case. It is not only that the witness is not a doctor, but the nature of her proposed testimony which takes it outside both the explicit language and rationale of that rule.

Consistent with this holding, the expert will be permitted to testify about RTS in general, and to give an opinion, based on the hospital records and an appropriate hypothetical, that the plaintiffs symptoms are consistent with RTS.8 The jury will be instructed that it may consider her testimony in deciding whether to accept or reject the plaintiffs’ testimony about the duration and severity of her nightmares and other episodes of fearfulness, but that the expert’s testimony may not be considered in determining whether such episodes occur. Nor, consistent with Taylor (supra), may her testimony be considered to determine whether the sexual assault complained of by plaintiff, and denied by defendant Soto, actually occurred.

Chief Judge Wachtler’s thoughtful and scholarly opinion in Taylor (supra) clearly supports its equal applicability in civil cases and compels a holding of both relevance and need in this case. The same reasoning necessary to insure that victims of sexual assault are given a fair hearing in the criminal justice system requires that their accounts of injury and the psychic and emotional damage done to them be given an equally understanding and informed hearing when they seek recompense in our civil courts.