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Olson v. Walker6/27/1989
was designed to protect those convicted of crimes.
Ingraham, 430 U.S. at 665, 97 S.Ct. at 1408-09, 51 L.Ed.2d at 725; see also Downey, 189 Cal.App.3d at 1101, 234 Cal.Rptr. at 851 (" he Eighth Amendment applies only to criminal actions, not to purely civil penalties, as involved here."); Palmer v. A.H. Robins Co., 684 P.2d 187, 217 (Colo.1984); Celotex Corp., 6 Kan.App.2d at 356, 629 P.2d at 206. The award is not unconstitutional under the Eighth Amendment.
C. Double Jeopardy
Double jeopardy precludes a person from being put in "jeopardy" for the same offense twice. U.S. Const., amend. V; Ariz. Const. art. II, § 10. Walker contends that the criminal proceedings and subsequent civil proceedings resulting in a criminal fine and punitive damages award, respectively, put him in jeopardy twice for the same offense.
The U.S. Supreme Court has held that "the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 236-37, 93 S.Ct. 489, 492, 34 L.Ed.2d 438, 442 (1972) (quoting Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938) (emphasis added)). One Lot Emerald involved a civil forfeiture action taken by the federal government after the defendant was acquitted of criminal charges that he attempted to smuggle certain items into the United States. The U.S. Supreme Court concluded that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission." Id.; see also Murphy v. United States, 272 U.S. 630, 47 S.Ct. 218, 71 L.Ed. 446 (1926) (acquittal of nuisance charges not a bar to subsequent civil lawsuit to abate same nuisance). Here, by contrast, the civil action was pursued by a private party, as opposed to the governmental body that initiated and pursued the criminal proceedings. See also Celotex Corp., 6 Kan.App.2d at 356, 629 P.2d at 206 (double jeopardy does not apply to civil suits for punitive damages); Biswell v. Duncan, 742 P.2d 80 (Utah Ct.App.1987). We conclude that the double jeopardy argument is without merit.
IV. EXPERT TESTIMONY
Walker argues that the trial court should have instructed the jury to disregard expert testimony regarding arthritic changes to Olson's back or should have declared a mistrial. Its failure to do either entitles Walker to a new trial. The basis for his complaint is that Dr. Lise LaBarre, relying on an x-ray undisclosed before trial, testified at trial that Olson suffers from arthritis, a permanent condition, in his back.
Prior to trial, Olson primarily relied on Dr. LaBarre's opinion that he would eventually develop arthritis to support his claim of permanent back injury. Walker, however, intended to rely on one of Dr. LaBarre's medical reports suggesting that Olson's back was getting better, as well as certain portions of her deposition testimony. He claims he was prejudiced at trial because her testimony that Olson definitely had arthritis substantially expanded the extent of Olson's injuries. He was surprised and unprepared for this testimony. The trial court, he argues, erred by refusing to strike the testimony or declaring a mistrial.
Dr. LaBarre testified at trial that she had examined Olson three days before her testimony and that x-rays taken at that time confirmed her previous prognosis that Olson would develop arthritis at the point of injury. Walker objected to this testimony, as well as the introduction of the x-rays, on the ground that they were not timely disclosed before trial. Although the
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