Evidentiary error in admitting a defendant doctor’s felony conviction at trial led to a reversal by the Utah Supreme Court of a $3,300,000 wrongful death verdict in a Farmington trial.

Robinson v. Taylor, 2015 UT 69. (11 August 2015)

This was a wrongful death case filed by the heirs of Brad Robinson, who died of an overdose of methadone taken for intractable back pain and prescribed by Dr. Paul Taylor.  The Farmington jury awarded 3.3 million in damages, 300K of which was for punitives, and 3M in general damages for the two adult heirs.

After the death of Mr. Robinson, Dr. Taylor was convicted of illegally distributing a controlled substance and was in federal prison at the time of the Robinson trial. Only his deposition was available at trial in lieu of his attendance.

The case was tried for the plaintiffs by a group of Texas lawyers who specialize in methadone cases, Harris Davis Steakley Morrison PC. Defense counsel was George Naegle of Richards Brandt Miller & Nelson, assisted by Cortney Kochevar. (I mediated the case– unsuccessfully- twice, both before and after trial.)

Dr. Taylor contended that he gave verbal instructions to the decedent about using the methadone that differed from his written instructions. Thus, his credibility was at issue.

The trial court’s (Judge John Morris) error was in admitting evidence of Dr. Taylor’s felony conviction on the ground that writing a false prescription (the basis of his felony charge) was probative of his character for truthfulness under Rule 608(b). The Court reversed, finding that 608(b) permits impeachment only by specific acts that did not result in a criminal conviction, while Rule 609 covers evidence on impeachment by a criminal conviction.

This seems self-evident under a plain reading of the rules: Rule 608(b) begins with the phrase “except for a criminal conviction under Rule 609 . . .” Nearly all the authorities agree. So the Supreme Court reversed Judge Morris on this point.

But it also considered the admissibility of the conviction under Rule 609, and found that to be an abuse of discretion as well. First, automatic admission of a conviction under Rule 609(a)(2) only applies to crimes where the elements require proving a dishonest act or false statement. That was not the case for Dr. Taylor’s narcotics conviction.

Second, admissions under Rule 609(a)(1)(A) (to attack character for truthfulness) are subject to Rule 403’s balancing test of relevant evidence against undue prejudice. Here, the criminal conviction had minimal probative value on whether Dr. Taylor really gave the oral dosing instructions to Mr. Robinson. Whether he did or he didn’t, he still would have been negligent according to plaintiffs’ expert. Therefore, whether he was telling the truth about the oral dosing instructions was fairly inconsequential, and there was no real need to impeach his credibility. (Justice Lee strongly dissents from this logic.)

The minimal probative value of the conviction was far outweighed by the undue prejudice of admitting it. The Robinsons apparently presented evidence of Dr. Taylor selling oxycodone in a parking lot, which probably elicited an emotional response in the jury. This may have enticed the jury “to reason Dr. Taylor is a bad doctor because he is a bad person.” (Par. 34). In short, evidence of the conviction may have led the jury to conclude that Dr. Taylor should be punished, regardless of his liability in this particular case. (Par. 37).

It’s curious to me why anything beyond the fact of the conviction was allowed into evidence, as I always thought that was improper. See, e.g., State v. Colwell, 2000 UT 8, Par. 33, 994 P.2d 177 (“When impeaching a defendant, it is permissible to inquire into the fact and nature of the prior conviction, but not the details or circumstances surrounding the event, absent unusual circumstances.”) (prior rule) and U.S. v. Smalls, 752 F.3d 1227, 1240 (10th Cir. 2014) (“The well-settled rule in this circuit is that the permissible scope of cross-examination under Rule 609 extends to the essential facts of convictions, the nature of the crimes, and the punishment.”)

In any event, the judgment was reversed and the case remanded for retrial. Here’s a link to the Salt Lake Tribune’s story today about the decision.