FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
THOMAS H. SINGER EDWARD A. CHAPLEAU
CARMEN M. PIASECKI South Bend, Indiana
South Bend, Indiana
LAURA C. BONADIES, MARY T. BONADIES )
and TIMOTHY M. BONADIES, )
)
Appellants-Plaintiffs, )
)
vs. ) No. 71A03-9703-CV-87
)
HENDRICA E. SISK, M.D., )
)
Appellee-Defendant. )
STATON, Judge
leading questions is the risk that the Bonadieses took when they called an adverse party to
the stand. The jury found in favor of Dr. Sisk. The Bonadieses now appeal.
The scope, extent, method and manner of cross-examination rest primarily in the
sound discretion of the trial court. Sowders v. Murray, 151 Ind. App. 518, 524, 280 N.E.2d
630, 634 (1972), reh. denied, trans. denied. Accordingly, in its sound discretion, a trial court
may permit the use of leading questions.See footnote
1
Corbin v. State, 563 N.E.2d 86, 93 (Ind. 1990).
We do not reverse on the ground that leading questions were permitted unless the appellant
makes it clearly apparent that there was an abuse of discretion that did substantial injustice.
Webster v. State, 206 Ind. 431, 436, 190 N.E. 52, 54 (1934); see also Garrison v. State, 589
N.E.2d 1156, 1158 (Ind. 1992); Allen v. State, 518 N.E.2d 800, 804 (Ind. 1988); Sierp v.
Vogel, 592 N.E.2d 1253, 1255 (Ind. Ct. App. 1992), trans. denied; The Pelican, Inc. v.
Downey, 567 N.E.2d 847, 849 (Ind. Ct. App. 1991), trans. denied.
Here, the Bonadieses claim that they were denied a fair trial because the trial court
permitted defense counsel to ask leading questions of his own client on the issue of
causation. The Bonadieses insist that counsel should not have been permitted to introduce
testimony on a material issue through use of leading questions because, even though defense
counsel was technically cross-examining Dr. Sisk, it was cross-examination in form only, not
in substance.
To support their argument, the Bonadieses direct us to the following provision of
Indiana Evidence Rule 611:
(c) Leading Questions. Leading questions should not be used on the direct
examination of a witness except as may be necessary to develop the witness's
testimony. Ordinarily, leading questions should be permitted on cross-
examination. Whenever a party calls a hostile witness, an adverse party, or a
witness identified with an adverse party, interrogation may be by leading
questions.
Ind.Evidence Rule 611(c) (emphasis added). The Bonadieses cite the advisory committee
notes to the nearly identical federal rule,See footnote
2
which provide in pertinent part:
The purpose of the qualification 'ordinarily' is to furnish a basis for denying the
use of leading questions when the cross-examination is cross-examination in
form only and not in fact, as for example the 'cross-examination' of a party by
his own counsel after being called by the opponent . . . .
Fed R. Evid. 611(c) Notes of Advisory Committee on Proposed Rules.
Our resolution of this case is facilitated by Indiana Trial Rule 43(B), which has no
federal counterpart.See footnote
3
It reads:
A party may interrogate any unwilling or hostile witness by leading questions.
A party may call an adverse party . . . and interrogate him by leading questions
and contradict and impeach him in all respects as if he had been called by the
adverse party, and the witness thus called may be contradicted and impeached
by or on behalf of the adverse party also, and may be cross-examined by the
adverse party only upon the subject matter of his examination in chief.
Ind.Trial Rule 43(B). The comments to Rule 43(B), while not binding on this court, provide
the following guidance:
It should be noticed that when such party or person is called he may be
subjected to leading questions and impeachment by both sides, but may be
cross-examined only upon the subject matter of the examination in chief. This
substantially restates prior Indiana law allowing the right of a party to impeach
his own witness where the testimony was prejudicial to him.
Civil Code Study Commission Comments, as reported in William F. Harvey, Rules of
Procedure Annotated, 3 Indiana Practice, at 201 (1988) (emphasis added). Thus, in
Indiana, the trial court's decision to allow leading questions by both parties when the adverse
party is called as a witness is a matter within the court's traditional discretion in controlling
the manner of interrogation.
However, this does not mean that the unbridled use of leading questions is permitted
as a matter of right. We recognize that, while leading questions are generally an integral part
of the cross-examination process, when an adverse party is called as a witness by the
opponent, roles are reversed. In this situation, there is great danger that leading questions on
cross-examination will be substituted for the witness's thoughts and language as to material
facts in dispute. See Robert Lowell Miller, Jr., Indiana Evidence, 13 Indiana Practice
§ 611.302, at 215-16 (1995); see also Annotation, Cross-examination by Leading Questions
of Witness Friendly To or Biased in Favor of Cross-examiner, 38 A.L.R.2d 952, 954 (1954)
(most courts have refused to permit leading questions on cross-examination where adverse
party has been called as witness by opponent). As pointed out by Professor Harvey,
"Usually, leading one's own client is undesirable, and the court presumably would exercise
its discretion to prevent the client who had been called first by the other side from parroting
words put in his mouth by his lawyer." Harvey, supra, § 43.3, at 205.
We now turn to the facts of this case. On direct examination of Dr. Sisk, the
Bonadieses focused largely on the causation element of this cause of action.See footnote
4
They asked Dr.
Sisk what would have happened to Laura if she had never received the MMR vaccine. Dr.
Sisk answered, "That is a huge question that is open for major discussion for the rest of this
trial, and I think that's a phenomenal conclusion to jump to." Record at 223. The Bonadieses
also elicited testimony from Dr. Sisk regarding her completion of a "Vaccine Experience
Report" which was sent to the laboratory that manufactured the MMR vaccine. On the form,
Dr. Sisk was asked to identify the appropriate adverse event, and she placed an "x" in the box
labeled "resulted in permanent disability" after which she wrote "severe JRA [juvenile
rheumatoid arthritis]." Plaintiff's Exhibit 5, Appendix, Brief of Appellant. Dr. Sisk
explained that the adverse event was "alleged" and the Bonadiases acknowledged that Dr.
Sisk's completion of the form did not mean she was "making an admission of some sort."
Record at 230, 233. Dr. Sisk also testified regarding an expert's opinion that, while the MMR
vaccine might have triggered Laura's rheumatoid arthritis, an upper respiratory infection,
such as a cold, or trauma may have precipitated the disease.
A reading of the challenged leading questions presented on cross-examination shows
that they address causation and, in the main, summarize that part of Dr. Sisk's testimony
demonstrating the lack of scientific evidence linking the MMR vaccine and rheumatoid
arthritis. As such, the subject of the leading questions was limited to the scope of the direct
examination. We cannot say that permitting these questions was beyond the trial court's
discretion.
Even if the court would have better exercised its discretion by disallowing the leading
questions, the questions and answers did not unduly prejudice the Bonadieses. Dr. Sisk
could have given similar information during her case in chief. Furthermore, medical experts
corroborated Dr. Sisk's testimony concerning other factors that could have precipitated the
rheumatoid arthritis and the lack of scientific evidence linking it to the MMR vaccine.
The Bonadieses have not shown that the jury was improperly influenced by the use
of leading questions during the cross-examination of Dr. Sisk. We find no abuse of
discretion in this manner of questioning that justifies a reversal.
Affirmed.
SHARPNACK, C.J., and GARRARD, J., concur.
"suggests to the witness the answer desired", Snyder v. Snyder (1875), 50 Ind 492, at 494;
3 Wigmore, Evidence (Chadbourn Rev. 1970), § 769, at 155; "indicates to the witness the
real or supposed fact which the examiner expects and desires to have confirmed by the
answer", 4 Jones on Evidence (6th Ed. 1972), § 24:11, at 93; is in the form of an assertion
of fact, Cook v. State (1921), 191 Ind. 412, 133 N.E. 137; or which, embodying a material
fact, admits of a conclusive answer in the form of a simple "yes" or "no." DeHaven et al.
v. DeHaven et al. (1881), 77 Ind. 236.
Starks v. State, 163 Ind. App. 639, 641, 325 N.E.2d 855, 857 (1975), reh. denied, trans. denied.
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Annotated, 3 Indiana Practice § 43.1, at 204 (1988).
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