DOUGLAS PIERCE v. MORRIS SHAPOW (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff Douglas Pierce (plaintiff) appeals from a judgment entered on a jury's special verdict in favor of defendants Morris Shapow and Wellness Medical Center (hereafter, Shapow, the clinic, and collectively, defendants).   Plaintiff's complaint alleges he was sexually battered by Shapow during a physical therapy treatment Shapow administered at the clinic.

As a basis for this appeal, plaintiff contends he was severely prejudiced when the trial court permitted defendants to elicit an opinion from defendants' expert witness psychiatrist regarding plaintiff's credibility.   The opinion was based on plaintiff's history of being the victim of childhood sexual abuse.   Plaintiff further contends defendants never followed statutory procedure for introducing such evidence.   He asserts there has been a miscarriage of justice.

Our review of the record on appeal convinces us that plaintiff's own trial strategy opened him up to the line of questioning of which plaintiff now complains, and that there was no prejudice from defendants' failure to strictly follow the statutory requirements for attacking plaintiff's credibility.   We will therefore affirm the judgment.

BACKGROUND OF THE CASE

1. Allegations in the Complaint

According to plaintiff's first amended complaint (complaint), defendants are health care providers practicing physical therapy and are licensed by the State of California.   Defendant Shapow is employed by defendant clinic.   The complaint alleges that, on October 14, 2003, plaintiff saw Shapow for an evaluation for outpatient physical therapy for fibromyalgia.   According to the complaint when plaintiff told Shapow he was experiencing the most pain in his right hip, Shapow had plaintiff pull down his pants and underwear about three to four inches and lie face down on a table.   Shapow showed plaintiff a device which Shapow described as new technology for pain relief.   Shapow applied the device to plaintiff's right hip and the device was “stinging and shocking” plaintiff.   Shapow then pulled plaintiff's pants and underwear down to his knees and informed a doctor that was observing the procedure to leave the room and close the door.   Shapow continued to use the device on plaintiff and when an office assistant entered the room Shapow directed her to leave.   When Shapow used the device on plaintiff's neck plaintiff felt a shock and saw a flash of light.   Thereafter plaintiff felt a heavy weight on his back as if he were being held down on the table by Shapow's forearm, and plaintiff felt a shock on his scrotum and a penetration inside his rectum, and then felt Shapow using the device on the inside of his legs.   When plaintiff recovered his composure sufficiently he got off the table and pulled up his pants.   Shapow told him to return for more treatment.   Plaintiff did not return.

Plaintiff alleged in the complaint that the treatment given to him was grossly negligent or was an assault or sexual assault, and as a result of this treatment he suffered severe physical injury, pain, loss of earnings, stress, severe emotional distress, humiliation and embarrassment, fright and shock, and depression.   He alleged causes of action for negligent medical treatment, negligent infliction of emotional distress, sexual battery under Civil Code section 1708.5, battery, medical battery, intentional infliction of emotional distress, and negligent retention and supervision of employee Shapow.

Defendants obtained an order compelling plaintiff to undergo a psychiatric examination by defendant's expert witness psychiatrist, James Long, M.D. The order states that the examination “shall not explore Plaintiff's past sexual history, other than as is reflected in Plaintiff's medical records which have already been produced.   The psychological examiner may make inquiry based on the medical records already produced because that information has already been disclosed in discovery.   The past sexual history inquiry shall be limited to the information already disclosed in the medical records.   No other past sexual history inquiry may be conducted.”

2. Plaintiff's Pretrial Motions

Trial was set for May 15, 2008.   Plaintiff filed, and served by fax and mail, a motion in limine on May 12, 2008, to exclude evidence and reference to his sexual orientation and to his sexual conduct that preceded or was subsequent to the acts which he alleged against defendants in his complaint.   He cited Evidence Code sections 1106, 783 and 352.¹  He argued that defendants had failed to bring a motion under sections 1106 and 783 to be permitted to use such evidence, and such evidence should also be excluded under section 352.

Subdivision (a) of section 1106 provides that in a civil case where sexual harassment, sexual assault or sexual battery is alleged, “opinion evidence, reputation evidence, and evidence of specific instances of plaintiff's sexual conduct, or any of such evidence, is not admissible by the defendant in order to prove consent by the plaintiff or the absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium.”   Subdivision (d) of section 1106 states that nothing in section 1106 “shall be construed to make inadmissible any evidence offered to attack the credibility of the plaintiff as provided in Section 783.

Under section 783, when a civil action alleges conduct that constitutes sexual harassment, sexual assault or sexual battery and evidence of the plaintiff's sexual conduct is offered to attack the plaintiff's credibility under section 780,² then four procedures that are set out in section 783 “shall be followed.”   One, the defendant must file and serve a written motion “stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the plaintiff proposed to be presented.”   Two, “[t]he written motion shall be accompanied by an affidavit in which the offer of proof shall be stated.”   Three, “[i]f the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the plaintiff regarding the offer of proof made by the defendant.”   Fourth, “[a]t the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the plaintiff is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted.   The defendant may then offer evidence pursuant to the order of the court.

Plaintiff filed a second motion in limine on May 13, 2008.   It was served by fax and mail the same day.   This motion sought to have excluded from evidence “[d]efendants' psychiatrist Dr. Longs' [sic] opinions and other evidence that should be excluded pursuant to sections 783, 1101, 1106, and 352.”   Plaintiff again argued that exclusion of evidence was required because defendants failed to follow the requirements of sections 783 and 1106, and that exclusion was also proper under sections 1101 and 352.   Section 1101 provides that except as provided in that section (and in certain other sections of the Evidence Code that relate to criminal cases), “evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”  Section 1101 also provides that nothing in that section “affects the admissibility of evidence offered to support or attack the credibility of a witness.”   Plaintiff's motion set out a lengthy list of portions of Dr. Long's written psychiatric evaluation of plaintiff that plaintiff contended should be excluded from evidence.

On May 14 and 15 the court held hearings on plaintiff's motions in limine concerning what, if any, evidence the defendants would be permitted to present regarding the possible causes of anal bleeding that plaintiff experienced after his therapy visit with defendant Shapow.   The bleeding was documented when he sought treatment for it at two hospitals, one on the first day after Shapow's therapy treatment (plaintiff was seen at Cedars-Sinai emergency room at 11:00 p.m., approximately 30 hours after the Shapow therapy), and the other on the second day after the Shapow therapy (at the UCLA rape treatment center at 8:45 p.m.).

On May 14 the trial court observed several times that one's sexual orientation is highly personal and such evidence could be highly prejudicial to plaintiff and for that reason the court would weigh the issue regarding plaintiff's sexual orientation under section 352 given the absence of evidence thus far presented to the court at the hearing on May 14 of a “sufficient showing that there was this kind of activity sufficiently proximate to October 14, 2003 [the day of the Shapow therapy] that would explain the rectal bleeding that was then seen.”   The court suggested that defense counsel could inform the court as to what evidence there is on the question how much prior to October 15 (the first hospital emergency room visit) “sexual conduct would have had to have occurred to show this kind of rectal bleeding.”

On May 14 the court also addressed plaintiff's second motion in limine concerning Dr. Long's report and the opinions given by Long in that report.   Defense counsel indicated she did not intend to offer the written report into evidence but plaintiff's attorney stated the expert would “try to opine” on plaintiff's credibility.   Defense counsel indicated Dr. Long had stated at his deposition he would not opine on credibility but rather would opine on “what his findings were that were consistent ․ or inconsistent with the story the plaintiff told.”   The court indicated that “the sensitive issue here” is that Dr. Long's report contains references to prior events and circumstances that could be prejudicial, and the court asked defense counsel to underline the portions of the report “in terms of the hearsay on which [Long] relied which you plan to have him testify to in a manner that would raise these issues.”

The following day the court indicated that its section 352 ruling from the previous day stood because there still was no evidence that plaintiff engaged in any activity sufficiently proximate to plaintiff's visits to the emergency room doctors the days after the alleged incident with defendant Shapow to warrant admission of plaintiff's sexual preferences or activity to show there was an alternate explanation for the bleeding.   Defendants argued there was such evidence in that one of the examining doctors testified at his deposition that plaintiff's anal bleeding was consistent with anal penetration within three to five days prior to plaintiff's emergency room visit.   Reviewing the deposition transcript, the court found it did not support defendant's position as there was no evidence plaintiff had sexual contact during that time span.   The court stated that under section 352 it would rule out such evidence.   The court ruled the doctor or other experts could be asked if there could be a medical explanation for the bleeding such as hemorrhoids, but could not be asked if the bleeding could be due to anal penetration of a kind other than the alleged penetration by defendant Shapow unless there was evidence of another kind of penetration, and the defense had already admitted there was no such evidence.

Regarding that section 352 ruling, the court did note that if there were “elements of [Dr. Long's] report that go to sexual issues” the court would examine them “in the context for which they are presented, which is the basis for an opinion.”   The court added that “[w]ithout looking at them separately I don't know whether they would fall under my ruling as to the direct admissibility of sexual conduct as an explanation of the injuries sustained.   There's a difference.”

In a discussion regarding whether there could be evidence presented at trial that plaintiff has a son, plaintiff asserted that although his having a son was not relevant, nevertheless, Dr. Long's report mentions plaintiff's family history of issues regarding the son and the basis of the doctor's opinions are subject to cross-examination.   The court stated that plaintiff's sexual orientation and activities are not in issue in the case based on the court's section 352 ruling, but “to the extent that [plaintiff would] open the door going into some area, well then I'll have to deal with it during trial.”

Regarding the issue of plaintiff's credibility, plaintiff noted that Dr. Long stated in his report that given that plaintiff has “extensive and many years experience of seeing doctors and going to emergency rooms, [i]t would seem inconsistent that ․ he did not go immediately to an emergency room for an immediate evaluation.”   Plaintiff told the court he wanted to make sure that his agreement with defendants regarding Long's statement was on the record, and reminded the court that the agreement was that Long could testify on plaintiff's actions that were:  “consistent and inconsistent” “so long as he is not going to comment on credibility, which is a different issue, and we have agreed to that.”   Defendants agreed, stating that the parties agreed that Dr. Long (and plaintiff's own witness Dr. David Silver who testified during his deposition regarding plaintiff's credibility), could testify at trial “about behavior being consistent or inconsistent with a particular path of action” but they would not comment at trial on plaintiff's credibility.³

Plaintiff questioned the “diagnosis” portion of Dr. Long's report that includes, among other things, a list of eight events in plaintiff's life that Long considered to be plaintiff's “psychosocial stressors.”   Specifically, plaintiff questioned the stressor described by Long as “history of physical and sexual abuse.”  (Plaintiff had told Dr. Long that his step-father's male friends sexually abused him.)   The court stated that Dr. Long was saying:  “History of physical and sexual abuse is the basis for the psychosocial stressors that contributed to the diagnosis.”   Plaintiff argued that the court had already ruled on the mention of sexual abuse.   The court disagreed, saying “that's entirely different than voluntary sexual activity weeks or months in advance of the alleged incident.”

When plaintiff argued that sexual abuse of a small child is not relevant to the instant case the court responded that is “up to the expert” and the court added that it might have to bring Dr. Long in for a preliminary hearing (under section 402 or 403) because it would need to ask the expert.   The court added that if Dr. Long “can credibly state that a person who is subject to childhood sexual abuse would have a propensity toward the condition he opined the plaintiff has well, then, I think he would be able to say that.”   The court stated that being a victim of sexual abuse does not have the “prejudice that I was worried about in my 352 ruling.   If anything, this would presumably generate sympathy toward the victim.”   The court stated it would not permit Dr. Long to introduce evidence of plaintiff's prior sexual activity that would be inconsistent with the court's section 352 ruling, but “if there is something very significant about this prior sexual action that goes to the diagnosis, and there's a way that it can be presented consistent with my ruling previously, under 352, I have to look at that.” ⁴

On May 19, 2008, just prior to voir dire of the jurors, the court again took up the issue of a preliminary hearing on Dr. Long's testimony and the court stated that until it “ruled on the 402 motion as to that on which the expert may base his opinion, then both counsel should forbear from touching on those elements of the expert's report which described these claimed prior events.”   By “these claimed prior events,” the court had reference to incidents in plaintiff's family life, to wit, his mother's psychiatric problems and plaintiff's having suffered verbal and physical abuse by his stepfather.   However, as noted above, the court had already indicated that whether the jury should hear about plaintiff's childhood sexual abuse would also be an appropriate matter for discussion at a hearing with Dr. Long. Plaintiff indicated to the court that because Long was going to testify last plaintiff might have to call rebuttal witnesses.   The court asked if the parties could work around that schedule or if Long should “come in immediately.”   The parties did not ask for an earlier hearing, and ultimately no section 402 or 403 hearing was held.

3. Plaintiff's Opening Statement and Trial Testimony

Vis-à-vis the In Limine Rulings and Agreements

a. Plaintiff's Opening Statement and Testimony

As noted above, although plaintiff argued during an in limine hearing that his being sexually abused as a young child is not relevant to this case, the trial court did not commit to a ruling on that matter at the in limine hearings but rather stated that if in a section 403 hearing Dr. Long “can credibly state that a person who is subject to childhood sexual abuse would have a propensity toward the condition he opined the plaintiff has well, then, I think he would be able to say that.”   Also as already noted, there was an agreement between plaintiff and defendants that Dr. Long would not comment on plaintiff's credibility.   Nevertheless, during his opening statement plaintiff's attorney alluded to both of those matters.   He told the jury that Dr. Long would be a witness that defendants would call to testify, and he mentioned Long by name.   He told the jury that Long performed a psychiatric examination of plaintiff and “review[ed plaintiff's] medical history from when he was a little boy;  okay?  [¶] And the evidence will show that there will be an attack on [plaintiff's] credibility from some of the events that happened when he was a little boy.”

The subject of plaintiff's having been sexually abused as a young child was specifically mentioned during the direct examination of plaintiff.   In his direct testimony, plaintiff gave a description of events that occurred when he went to defendant's clinic, including the alleged inappropriate therapy of which he complained in his complaint.   Plaintiff's testimony was generally the same as the description of therapy events set out in the complaint.   His attorney then asked him what he did after leaving defendants' clinic.   Plaintiff stated he called the police at the Hollywood substation and he called his psychotherapist that same day.   However, he stated he did not immediately go to the police nor did he immediately go to a hospital emergency room or a rape treatment center.   Asked why he had waited, he said:  “When I was a boy I was raped at nine, and the man was about 35 years old.   I was left for a four-day weekend.   My parents went to like a NASCAR event.   And over that weekend of two or three days, he anally penetrated me.  [¶] And I don't know.   It was really honestly just reliving the whole damn thing again.”   Additionally, despite the court's ruling that plaintiff's sexual orientation should not be brought up, including mentioning that plaintiff has a son, plaintiff's attorney allowed plaintiff to testify that he had previously been to the defendant clinic with his son, and then his attorney asked plaintiff how old his son was when plaintiff was previously there.

Soon after that testimony the noon break was taken and when the jury exited the courtroom defendants' attorney noted to the court that “there have been several motions in limine that have been violated, and there are several doors that have been opened.”  (Italics added.)   Plaintiff's attorney did not respond.

b. Dr. Long's and Defendant Shapow's Testimony

Despite plaintiff and defendant having agreed during the in limine hearings that Dr. Long could testify at trial “about [plaintiff's] behavior being consistent or inconsistent with a particular path of action” (but without any comment at trial on plaintiff's credibility), during defendants' direct examination of Long he was asked:  “Doctor, do you have an opinion to a reasonable medical probability whether an individual who is sexually abused as a child as [plaintiff] is more likely to fabricate an event of sexual abuse later?”   Plaintiff objected before Long could answer and the court overruled the objection.   Long answered:  “Yes.” Asked for his opinion, Long answered:  “That opinion is that if you have been, as he told me, raped by his stepfather's male friend multiple times when he was nine years old, that that would predispose a person who is in this particular situation when there are some strange sensations going on to translate that into here's an event that would make sense to that person that something that could either misinterpret it or fabricate.”   Asked whether by the term “fabricate” “it could be either willful or unintentional, both.   Correct?”  Dr. Long answered:  “Yes.”

Defense counsel's next two questions were whether it is possible, or consistent with Dr. Long's diagnosis of plaintiff, that plaintiff believed an event occurred that did not in fact occur.   Objections to the questions were sustained.   Defendants' attorney then asked whether plaintiff's having taken a lie detector test means anything to Long as a psychiatrist, and whether he had other patients who had taken lie detector tests.   Objections to both questions were sustained although not before Long could state that plaintiff's having taken the test did “certainly mean something to him as a psychiatrist.   On cross-examination Long was asked if he believed plaintiff “is faking.”   Long answered:  “I think that's up to the jury.”

During his testimony defendant Shapow described the therapy he gave to plaintiff on the day in question.   He denied all of the aspects of assault to which plaintiff had testified.   When asked if plaintiff “made the whole thing up,” he responded:  “Yes.”

CONTENTIONS ON APPEAL

On appeal, plaintiff contends defendants failed to comply with sections 783, 1106, 352, and failed to comply with the trial court's in limine pretrial orders regarding presentation of evidence.   Plaintiff also contends the trial court's failure to sustain the objection to defense counsel's question about fabricating an event resulted in a miscarriage of justice.

Defendants contend they satisfied the statutory requirements for use of a plaintiff's sexual conduct to attack the plaintiff's credibility.   Defendants also contend that because plaintiff himself introduced evidence of childhood sexual abuse before Dr. Long gave his testimony, “plaintiff elected to introduce the issue regarding such sexual matters” [and][h]ence plaintiff cannot complain that Dr. Long as an expert psychiatrist was asked to give an opinion regarding the significance of that history of sexual abuse.”

DISCUSSION

1. Standard of Review

Judgments and orders are presumed to be correct and reversible error must be demonstrated by the appellant.  (Walling v. Kimball (1941) 17 Cal.2d 364, 373.)   Rulings on evidentiary matters are examined for abuse of the trial court's discretion.   The same is generally true for rulings on motions in limine.  (Gordon v. Nissan Motor Co. Ltd. (2009) 170 Cal.App.4th 1103;  Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493;  Siegel v. Anderson Homes, Inc. (2004) 118 Cal.App.4th 994, 1000.)   Nevertheless, plaintiff appears to be asserting that the issues raised in this appeal are questions of law since he observes that such questions are reviewed de novo.   They are not questions of law.

2. Violation of the Agreement to Not Address Plaintiff's Credibility

Plaintiff neglected to state in his opening brief on appeal that (1) his own attorney told the jurors in his opening statement that they would hear an attack on plaintiff's credibility stemming from events in plaintiff's childhood and (2) his attorney's remark to the jury was made immediately following the attorney's statement that defendants had hired Dr. Long to conduct a psychiatric examination of plaintiff and Long reviewed plaintiff's history “from when he was a little boy.”   By his remarks, plaintiff's attorney essentially connected up Dr. Long with an expected attack on plaintiff's credibility that would be based on things that happened when plaintiff was a boy.

Putting aside whether Long's “fabrication” testimony would otherwise be admissible, we find that if it were not for plaintiff's remarks to the jury in his opening statement, followed by plaintiff testifying he was sexually abused by anal penetration as a child, Long's testimony about fabrication would be a breach of the parties' agreement that Long would not testify regarding plaintiff's credibility.   Reasonable inferences can be drawn that plaintiff's opening statement and testimony sent a signal that plaintiff's attorney no longer considered defendants bound by the agreement and that plaintiff had waived the right to have the trial court rule on Long's use of plaintiff's childhood sexual abuse as a basis for Long's opinion evidence.

Additionally, after plaintiff's opening statement and testimony on direct that he had been sexually abused as a child, the defendants' attorney remarked to the court that “there have been several motions in limine that have been violated, and there are several doors that have been opened.”  (Italics added.)   Yet despite defense counsel's remark, plaintiff's attorney did not respond by saying that plaintiff would hold defendants to their agreement that Long would not give an opinion on plaintiff's credibility.   Moreover, when the defendants' attorney asked Long if he had an opinion regarding whether a victim of childhood sexual abuse is “more likely to fabricate an event of sexual abuse later,” plaintiff's attorney sole response was:  “Object.”   Plaintiff's attorney did not argue that the parties had agreed, at the in limine hearing, that no questions about plaintiff's credibility would be asked of Long. A reasonable inference can be drawn that plaintiff waived the right to hold defendants to that agreement.

Whatever prejudice plaintiff suffered by Dr. Long's opinion about his credibility, blame cannot be laid entirely at the doorstep of defendants or the trial court.   This was a matter of an evidentiary agreement between the parties that plaintiff failed to assert and reassert when it mattered, and plaintiff appears to have toyed with the agreement for his own purposes.   Thus, we find there is no cause for reversal of the judgment.   If the trial court erred, it was invited error.⁵

3. Statutory Requirements for Attacking Credibility in Civil Suits

That Allege Sexual Harassment, Assault or Battery

Dr. Long's psychiatric interview of plaintiff took place on December 2, 2007, and lasted three hours.   Both Long and plaintiff audio-taped the interview.   Long's written report of his psychiatric evaluation of plaintiff is dated December 18, 2007, and plaintiff received the report on January 3, 2008.   Plaintiff deposed Long on May 13, 2008, the day he filed his second motion in limine.   Apparently the parties had difficulty scheduling Long's deposition during the intervening period between January 3 and May 13.

Plaintiff contends that defendants did not comply with the statutes that address defense attacks on a plaintiff's credibility in cases alleging sexual harassment, assault or battery.   Specifically, plaintiff contends defendants did not submit a section 783 written motion indicating their intent to use sexual conduct to attack plaintiff's credibility.   In response, defendants argue that statutory compliance was effected because they served a copy of Long's report on plaintiff, and because Long testified at his deposition, given under oath, that in his opinion someone who is sexually abused as a child is more prone to fabricate an event of sexual abuse later in life.   Defendants also assert that their position on evidentiary matters was addressed in writing when they filed opposition to plaintiff's first motion in limine and a trial brief to address admissibility of plaintiff's sexual history.

We find that defendants failed to comply with the specific requirements of section 783 in that they filed no motion under that section.   However, we also find that Long's deposition put plaintiff on notice of Long's opinion regarding fabrication, and the in limine hearings were extensive on the issues of sexual matters and what the trial court would and would not allow into evidence, as well as what the court believed would require a section 403 hearing.   Indeed, during the hearings the court instructed the attorneys to confer on evidentiary issues, and instructed defense counsel to highlight the portions of Long's report “on which you plan to have [Long] testify as being the basis for his opinion.”   The court was clear that it understood the difference between (1) whether plaintiff engaged in sexual conduct that would explain the anal injuries the doctors at the hospitals saw and (2) evidence of a sexual nature relating to other matters.   It was the hearings that produced the agreement that defendants would not inquire of Long regarding his

DISPOSITION

The judgment from which plaintiff has appealed is affirmed.   Costs on appeal to defendants.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We Concur:

FOOTNOTES

FN1. Unless otherwise indicated, all references herein to statutes are to the Evidence Code..  FN1. Unless otherwise indicated, all references herein to statutes are to the Evidence Code.

FN2. Section 780 provides that “[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:  ․ “ Section 780 then sets out 11 matters which would have a tendency in reason to prove or disprove the truthfulness of testimony..  FN2. Section 780 provides that “[e]xcept as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:  ․ “ Section 780 then sets out 11 matters which would have a tendency in reason to prove or disprove the truthfulness of testimony.

FN3. At trial, Dr. Silver testified he is a physician who practices in internal medicine and rheumatology and he treated plaintiff for an injury plaintiff had at work.   He stated he had performed “probably thousands” of rectal examinations.   He was asked about plaintiff's medical records, including the records from plaintiff's visits to Cedars-Sinai and UCLA that came after the subject treatment plaintiff had at the defendant clinic.   Silver stated that to a reasonable degree of medical probability the injuries reported in the latter reports were consistent with trauma, and the version of events as reported to him by plaintiff was consistent with the findings in the records..  FN3. At trial, Dr. Silver testified he is a physician who practices in internal medicine and rheumatology and he treated plaintiff for an injury plaintiff had at work.   He stated he had performed “probably thousands” of rectal examinations.   He was asked about plaintiff's medical records, including the records from plaintiff's visits to Cedars-Sinai and UCLA that came after the subject treatment plaintiff had at the defendant clinic.   Silver stated that to a reasonable degree of medical probability the injuries reported in the latter reports were consistent with trauma, and the version of events as reported to him by plaintiff was consistent with the findings in the records.

FN4. Dr. Long's diagnosis was “major depressive disorder”;  “psychological factors affecting a medical condition”;  “mixed personality traits-narcissistic, borderline, and dependent”;  “fibromyalgia by history [,] right bundle branch block[,] status post cytomegalovirus rectal infection”;  “psychosocial stressors” (Dr. Long mentioned eight stressors);  and “global assessment of functioning:  current 50 (serious symptoms), best in the last year, 53 (moderate symptoms).”.  FN4. Dr. Long's diagnosis was “major depressive disorder”;  “psychological factors affecting a medical condition”;  “mixed personality traits-narcissistic, borderline, and dependent”;  “fibromyalgia by history [,] right bundle branch block[,] status post cytomegalovirus rectal infection”;  “psychosocial stressors” (Dr. Long mentioned eight stressors);  and “global assessment of functioning:  current 50 (serious symptoms), best in the last year, 53 (moderate symptoms).”

FN5. We reject plaintiff's contention that he had to introduce in his direct testimony evidence that he was sexually abused as a minor because otherwise “he would have looked like he was trying to cover up events that defendants [sic] expert thought were important.”   We also reject his assertion that the trial court had “indicated that it was going to allow ․ Dr. Long to use such evidence as the basis for his opinions.”   Plaintiff misstates the trial court's ruling on the issue.   What the trial court indicated at the in limine hearing was that it wanted to hear from Long regarding use of information that plaintiff was sexually abused as a child.   The court made no ruling on use of that information other than to indicate it was a matter for latter discussion.   And, as noted, no section 403 hearing was ever held with Long.Nor do we find persuasive plaintiff's assertion that because there was objective evidence of contusions in plaintiff's anus after his visit to defendants' clinic Dr. Long's opinions about the matter could not be “the proper subject for expert testimony.”   On its face, the argument seeks to insulate plaintiffs from scrutiny of credibility, but section 1106 allows evidence to attack the plaintiff's credibility..  FN5. We reject plaintiff's contention that he had to introduce in his direct testimony evidence that he was sexually abused as a minor because otherwise “he would have looked like he was trying to cover up events that defendants [sic] expert thought were important.”   We also reject his assertion that the trial court had “indicated that it was going to allow ․ Dr. Long to use such evidence as the basis for his opinions.”   Plaintiff misstates the trial court's ruling on the issue.   What the trial court indicated at the in limine hearing was that it wanted to hear from Long regarding use of information that plaintiff was sexually abused as a child.   The court made no ruling on use of that information other than to indicate it was a matter for latter discussion.   And, as noted, no section 403 hearing was ever held with Long.Nor do we find persuasive plaintiff's assertion that because there was objective evidence of contusions in plaintiff's anus after his visit to defendants' clinic Dr. Long's opinions about the matter could not be “the proper subject for expert testimony.”   On its face, the argument seeks to insulate plaintiffs from scrutiny of credibility, but section 1106 allows evidence to attack the plaintiff's credibility.

KITCHING, J. ALDRICH, J.