The exclusion of Kristen Hinman's live testimony in response to Defendants' repeated use of her hearsay testimony made it impossible for Plaintiff to receive a fair trial.... Plaintiffs...were left with no ability to attack the credibility or veracity of Defendants' testimony. Defendants were able to create an unassailable alibi - Hinman did it, not us. The result was clear prejudice to Plaintiff, requiring a new trial....
During opening statement, Defendants' counsel avowed, and in the questioning of each and every individual Defendant, counsel sought to elicit testimony directed toward establishing an "agreement," an "understanding," and a "conversation" between Hinman and one or more Defendants about alleged restrictions on the use of the photographs and pre-publication review rights of the article. Indeed, this was the cornerstone of Defendants' presentation for mitigating the damages of their admitted "mistake" of turning over a disc containing nude patient photographs to a reporter whom they had just recently met. Defendants claimed they were the victims, that they had been "duped."
[Outside the presence of the jury], Plaintiff asked Ms. Hinman the following questions, and Ms. Hinman gave the following answers:
1. Did she ever tell Defendants they would have the right to pre-publication review?
Hinman's Answer: No.
2. Did the Defendants tell her that she could not use the photographs on the disc?
Hinman's Answer: Absolutely not.
3. Who gave her the first disc containing Plaintiff's nude photographs?
Hinman's Answer: During a private meeting with Defendant Centeno - where they were reviewing the contents of the disc - Defendant Centeno asked an assistant to make a copy of the disc for Ms. Hinman's [use].
The relevance and probative value of this testimony cannot be seriously disputed. The Court's exclusion of this testimony severely prejudiced Plaintiff from offering obviously relevant testimony that directly contradicted Defendants' self-serving statements and the alleged hearsay statements attributed to Ms. Hinman by the Defendants. In short, Defendants had an unfettered opportunity to set up an unassailable defense based upon one side of a story that clearly involved two opposing sides: Defendants and Ms. Hinman.
You get the idea. In Witzel's view, the case turned on the doctors' ability to freely impugn RFT and Kristen Hinman without ever having to expose jurors to Hinman's version of events.
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