Evans v. Scanson and Peters
2017 MT 157
| Mont. | 2017Background
- Plaintiff Kerrie Evans (age 38 at pregnancy) sued her prenatal providers, nurse practitioner Peggy Scanson and Dr. William Peters, alleging they failed to adequately inform her about genetic screening options and that, had she known her fetus had cystic fibrosis (CF) in utero, she would have aborted. Her child was born with CF.
- At an October 2009 prenatal visit Scanson gave Evans pamphlets on prenatal testing, including CF screening and information on CVS and amniocentesis; Scanson and Dr. Peters both instructed Evans to obtain genetic counseling prior to CVS and offered CF carrier blood testing, which Evans declined or did not request.
- Evans alleged malpractice (negligence) and negligent infliction of emotional distress; at trial the core disputes were whether defendants breached the standard of care in informing Evans and whether Evans credibly would have aborted if informed.
- Evans had introduced testimony about her insurance and child’s medical expenses; defendants sought to elicit limited collateral-source evidence in rebuttal after Evans raised cost/insurance issues herself.
- The jury found defendants did not breach the standard of care; Evans appealed, arguing (1) improper admission of collateral-source testimony under curative admissibility, (2) improper expert testimony beyond disclosure or as collateral-source evidence, and (3) prejudicial closing argument; the Supreme Court of Montana affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of collateral-source testimony (curative admissibility) | Evans: defense elicited prohibited collateral-source evidence in violation of § 27-1-308(3), which prejudiced her. | Defendants: Evans opened the door by introducing insurance/cost issues; limited rebuttal was proper to correct false impressions. | Court: Affirmed district court—defense rebuttal fell within curative admissibility; trial court properly limited scope and avoided substantial injustice. |
| Expert testimony scope and collateral-source content (Dr. Lysinger and Dr. Merlo) | Evans: testimony about Orkambi cost and defendants’ experts’ questions on access to Orkambi were beyond disclosures and injected collateral-source matters. | Defendants: Questions were impeachment/rebuttal to plaintiff’s expert and within Merlo’s disclosed rebuttal topics on CF management. | Court: No abuse of discretion—stricken answers were cured by instruction; Dr. Merlo’s testimony was within disclosure and properly admitted as rebuttal. |
| Motion for mistrial/new trial based on closing argument | Evans: defense counsel’s closing was inflammatory and suggested Evans sued for personal gain rather than child’s interest; curative instruction was insufficient. | Defendants: Statements were not so pervasive or egregious; district court issued curative instruction after contemporaneous objection. | Court: Denial of new trial/mistrial affirmed—Evans forfeited many objections by not contemporaneously objecting; the court’s instruction cured the single challenged remark. |
| Preservation of a fourth issue (partial summary judgment on causation) | Evans: asked court to consider if prior issues reversed. | Defendants: N/A—issue contingent on reversal. | Held: Not considered because appellate court affirmed on Issues 1–3. |
Key Cases Cited
- Stevenson v. Felco Indus., 352 Mont. 303, 216 P.3d 763 (Mont. 2009) (discusses rule of curative admissibility/opening the door)
- Mickelson v. Mont. Rail Link, Inc., 299 Mont. 348, 999 P.2d 985 (Mont. 2000) (collateral-source evidence may be admitted when probative and to cure misleading impressions)
- Byrum v. Andren, 337 Mont. 167, 159 P.3d 1062 (Mont. 2007) (standard for abuse of discretion in evidentiary rulings)
- O’Connor v. George, 381 Mont. 127, 357 P.3d 323 (Mont. 2015) (district court’s discretion in denying mistrial and assessing prejudice)
- Hawkins v. Harney, 314 Mont. 384, 66 P.3d 305 (Mont. 2003) (expert disclosure standards under Rule 26 and when exclusion is appropriate)
- Lopez v. Josephson, 305 Mont. 446, 30 P.3d 326 (Mont. 2001) (gross misconduct by counsel in repeatedly injecting impermissible matters can require reversal)
- State v. West, 252 Mont. 83, 826 P.2d 940 (Mont. 1992) (presumption that striking testimony and instructing jury cures error)
- State v. Long, 327 Mont. 238, 113 P.3d 290 (Mont. 2005) (courts should not presume juries ignore instructions; striking testimony plus instruction is presumed effective)