Appellant says trial court barred experts from explaining PTSD basis in Flanzer appeal

Shelby Lemelift, counsel for appellant Gary Flanzer, told a three-judge panel that a trial court’s limine ruling excluded a March 2018 incident and then was applied at trial as a broader ban on evidence predating 2019, preventing experts from explaining the trauma histories underlying their PTSD diagnoses and thereby "depriv[ing] my client of the ability to make his case for the jury," Lemelift said.

Lemelift said the limine order (referenced in the Clerk’s Papers and reported proceedings) expressly excluded only the 2018 event but that, at trial, objections were sustained when three different experts tried to describe the historical trauma that informed their opinions. "There is no way that my client can convince a jury that he has suffered negligent infliction of emotional distress...when those experts cannot state the basis of their opinion," he argued.

Respondent counsel Matthew Kennedy told the panel the trial court properly applied the Gresham factors and Evidence Rule 403 in excluding prior-act evidence as more prejudicial than probative. "The trial court got it right," Kennedy said, arguing that in many instances counsel attempted to have experts read hearsay from their reports into the record rather than lay proper foundations. He also noted prior domestic-violence proceedings and appellate review that did not find in the appellant’s favor.

During argument the court asked why appellant’s trial counsel had not objected during opening statements and discussed a court-offered limiting instruction that no party accepted. A panel member observed that the record includes a colloquy during which the court sought an offer of proof and focused on which discrete events fell inside the applicable statutes of limitations.

Appellant emphasized a legal distinction between exclusion under Rule 403 and an ER 404(b)-style analysis that first determines whether prior misconduct occurred and then assesses admissibility for a non-propensity purpose. Lemelift argued the record lacks a proper ER 404(b) inquiry and that reliance on Rule 403 alone improperly foreclosed the experts’ ability to explain the basis of their diagnoses.

The appellate panel took the case under advisement after hearing argument; no decision was announced from the bench. The parties urged different standards of review and requested reversal or affirmation based on whether the trial court exceeded its discretion in limiting expert testimony and excluding contextual evidence.