PATRICIA ELLEN CLARK, Plaintiff and Appellant, v. KARA TAYLOR BELL, Defendant and Appellee.
DA 08-0573
IN THE SUPREME COURT OF THE STATE OF MONTANA
November 17, 2009
2009 MT 390
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV 06-1157, Honorable Dirk M. Sandefur, Presiding Judge
For Appellant:
Benjamin R. Graybill; Graybill Law Firm, P.C.; Great Falls, Montana
For Appellee:
Paul Haffeman; Davis, Hatley, Haffeman & Tighe; Great Falls, Montana
Submitted on Briefs: July 22, 2009
Decided: November 17, 2009
Filed:
Clerk
¶1 Patricia Clark brought a negligence action to recover damages for injuries sustained in an automobile accident. A jury in the Eighth Judicial District Court, Cascade County, rendered a verdict in favor of Defendant Kara Bell. Clark appeals. We affirm in part, reverse in part, and remand for a new trial.
¶2 We restate the issues as follows:
¶3 1. Did the District Court err by allowing Defendant Bell to introduce evidence of Clark‘s preexisting conditions to challenge Clark‘s proof of causation?
¶4 2. Did the District Court manifestly abuse its discretion by denying Clark‘s motion for a new trial, based upon unfair surprise?
¶5 Although we reverse and remand for a new trial under issue 2, we address the first issue to provide guidance to the court and parties upon remand. We do not reach the remaining issues raised by Clark.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On August 2, 2004, Clark was stopped in traffic in Great Falls when her vehicle was struck from behind by a pick-up truck driven by Bell. After the collision, Clark and Bell drove their vehicles into an adjacent parking lot and waited for police to arrive. Clark appeared alert and oriented, and told Bell she was “okay.” Both women declined medical treatment to responding paramedics. Later that day, Clark went to the emergency room complaining of moderate pain to her neck, back and arm, as well as
¶7 More than a year later, Clark also began treating with medical doctors she would call as expert witnesses in the trial, Patrick Galvas, D.O., Ph.D., James English, Ph.D., and James Zander, D.D.S. She complained of pain to her head, neck, shoulder, back, wrist, arm, knee, and abdominal muscles, as well as a cracked tooth, distractibility, forgetfulness, headaches, confusion, memory loss, problems with concentration, depression and fatigue, and other cognitive impairments.
¶8 Clark filed suit, alleging the accident caused her injuries, and that Bell was liable for her damages. Bell admitted that she caused the accident, but denied that some of Clark‘s injuries had occurred or were attributable to the accident. The District Court granted Bell a
¶9 Clark moved in limine to exclude testimony regarding her preexisting conditions or injuries by the independent medical physicians and proposed defense experts, Sousa, Stratford, and Wilson, on the ground that their expert disclosures were insufficient and did not divide or apportion her pre- and post-accident injuries. The District Court granted
¶10 On the morning of trial, the District Court addressed several outstanding matters outside of the jury‘s presence. The District Court explained that the testimony of Doctors Sousa, Wilson, and Stratford would be excluded in light of their insufficient pretrial disclosures.1 Regarding other evidence of preexisting injuries, the District Court attempted to clarify its order. The District Court stated that Bell‘s interpretation of its order, as set forth in Bell‘s arguments to this Court in her petition for supervisory control, was overbroad. The District Court explained that it had not excluded other relevant testimony about preexisting injuries, but had only excluded the testimony of Sousa, Stratford, and Wilson. In response, Clark‘s counsel expressed concern, and sought further explanation. Clark‘s counsel highlighted the language of the District Court‘s order which seemed to prohibit all references to Clark‘s preexisting injuries. The District
¶11 During his opening statement, Bell‘s counsel began discussing Clark‘s preexisting injuries. Clark objected and, outside the presence of the jury, argued to the District Court that Bell had violated the order prohibiting discussion of preexisting injuries. After receiving a proffer of evidence from Bell, the District Court overruled Clark‘s objection and permitted Bell to continue his discussion of Clark‘s preexisting injuries in his opening statement.
¶12 During the trial, Clark called Doctors Galvas, English, and Zander as expert witnesses, and solicited testimony from them supporting her injury claims. Under Bell‘s cross-examination, Dr. Galvas testified that having an accurate medical history was important, but conceded that the history provided by Clark was not accurate in many respects and that he did not have a full picture when he had diagnosed her and formed his opinions that the accident caused her injuries. Dr. Galvas testified that, while Clark had initially told him she developed various physical injuries soon after the accident, the symptoms did not appear to develop until much later. He acknowledged that, although told by Clark she suffered from “no residuals” from previous traumas, her medical records established a history of multiple complaints to medical doctors relating to prior traumas.
¶13 Dr. English likewise opined that Clark had suffered an accident-related head injury, premised upon the assumption that she had suffered a concussion. Under Bell‘s
¶14 Following the presentation of evidence, Clark moved for judgment as a matter of law on the issue of causation. Clark argued that, pursuant to Truman v. Mont. Eleventh Jud. Dist. Ct., 2003 MT 91, 315 Mont. 165, 68 P.3d 654, Bell was required to prove that Clark‘s injuries were divisible and apportionable to a reasonable degree of medical probability. Because Bell had failed to provide testimony from physicians regarding apportionment, Clark argued that her evidence was unchallenged and she was entitled to a verdict on causation as a matter of law. The District Court denied the motion, ruling that Clark still bore the burden of proving causation and that the jury was entitled to weigh her evidence. The District Court also rejected Clark‘s proposed instruction to the jury that Bell had not proven that Clark‘s preexisting injuries were the cause of her current injuries.
¶15 The jury returned a unanimous verdict for Bell, awarding no damages. Clark thereafter filed a motion for a new trial, which the District Court denied. Additional facts will be discussed herein as necessary.
¶16 District courts have broad discretion to determine the admissibility of evidence, and we review for abuse of discretion. Neal v. Nelson, 2008 MT 426, ¶ 16, 347 Mont. 431, 198 P.3d 819 (citing Seeley v. Kreitzberg Rentals, LLC, 2007 MT 97, ¶ 14, 337 Mont. 91, 157 P.3d 676, overruled on other grounds, Giambra v. Kelsey, 2007 MT 158, ¶ 27, 338 Mont. 19, 162 P.3d 134). We likewise review a district court‘s decision to give or refuse a proposed jury instruction for an abuse of discretion. Neal, ¶ 16 (citing Giambra, ¶ 28). An abuse of discretion occurs if the district court “acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.” Neal, ¶ 16 (quoting Linn v. Whitaker, 2007 MT 46, ¶ 13, 336 Mont. 131, 152 P.3d 1282).
¶17 Whether a judgment as a matter of law should have been granted or denied is a question of law which we review de novo, entitling the parties to full review without special deference to the views of the district court. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727.
¶18 The standard of review of a district court‘s ruling on a motion for a new trial based on surprise or irregularity in the proceedings is abuse of discretion. Willing v. Quebedeaux, 2009 MT 102, ¶ 19, 350 Mont. 119, 204 P.3d 1248 (citing Lopez v. Josephson, 2001 MT 133, ¶ 16, 305 Mont. 446, 30 P.3d 326). “The decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed
DISCUSSION
¶19 1. Did the District Court err by allowing Bell to introduce evidence of Clark‘s preexisting conditions to challenge Clark‘s proof of causation?
¶20 Clark argues that the District Court erred by permitting Defendant Bell to cross-examine her experts regarding her preexisting injuries to defeat the causation element of her negligence claim. Citing to Truman, Clark argues that a defendant must prove the divisibility of an injury, by a reasonable medical probability, before she is able to submit relevant evidence to negate an allegation that she is the cause of an injury. Thus, Clark insists that Bell was required to offer expert medical evidence demonstrating that Clark‘s alleged injuries could be divided, or apportioned, between the accident at issue and her preexisting conditions, before Bell was allowed to cross-examine her experts about those conditions.
¶21 Bell responds that Truman did nothing to change the plaintiff‘s burden of proving the elements of a negligence claim, including causation, and did not hold that defense expert testimony is the only means by which a defendant can challenge causation. Bell argues that she was entitled to cross-examine Clark‘s experts regarding preexisting injuries to challenge the bases of their opinions as well as Clark‘s contention that her injuries were caused by the accident.
¶23 Truman did not disturb the basic right to challenge causation, here, by testing the opinions of the plaintiff‘s experts by reference to relevant evidence on cross-examination. Truman affirmed that “a defendant is permitted to submit relevant evidence of subsequent
¶24 Since Truman, our cases have illustrated these principles. Similar to the facts here, the defendant in Ele v. Ehnes, 2003 MT 131, ¶¶ 5, 7, 316 Mont. 69, 68 P.3d 835, admitted her liability in causing a rear-end collision, but disputed that the accident had caused any injury to the plaintiff Ele. Defendant Ehnes presented no medical experts, but cross-examined Ele and his experts, eliciting admissions that Ele had not informed his medical providers of his preexisting conditions. Ele, ¶¶ 10-13. Despite Ele‘s argument that Ehnes had presented no evidence, we affirmed the verdict for the defendant, acknowledging that the jury was entitled to weigh the evidence elicited on cross-examination. Ele, ¶¶ 30-35.
¶26 Here, the District Court reasoned that the “Plaintiff‘s preexisting head, cervical, and lumbar injuries, chronic pain, and depression were similar, if not identical, to the types of injuries attributed by Plaintiff to the subject accident at issue.” Bell elicited cross-examination revealing that Clark had suffered from the same or similar injuries for years, from prior accidents, and had not disclosed that history to her experts. Dr. Galvas conceded that, prior to the accident, Clark had sought, on numerous occasions, treatment for fatigue, increasing chronic back and neck pain, and depression—the same injuries she
¶27 Clark also argues that the District Court erred by denying her motion for judgment as a matter of law on the issue of causation or, alternatively, her request for an additional instruction on causation. These arguments are premised on her assertion that the District Court erred in allowing the jury to hear any evidence regarding her preexisting injuries, and are thus resolved by the above discussion. Clark also argues that because Bell presented no direct evidence from lay or expert witnesses, her causation evidence was unchallenged and she was entitled to judgment as a matter of law. However, as in Ele, Bell challenged Clark‘s evidence through cross-examination. The jury was entitled to weigh that evidence and determine its credibility against Clark‘s evidence. “[E]ven if uncontradicted direct testimony is admitted, the jury is entitled to weigh that testimony against adverse circumstantial evidence and other factors which may affect the credibility of the witness.” Ele, ¶ 32 (citation omitted). Thus, the District Court properly denied Clark‘s motion for judgment as a matter of law on causation, leaving the question to the jury.
¶28 2. Did the District Court abuse its discretion by denying Clark‘s motion for a new trial, based upon unfair surprise?
¶29 Clark argues that Bell‘s references to her preexisting injuries violated the District Court‘s order in limine, and that she was unfairly surprised and prejudiced, entitling her
¶30
1) the moving party was actually surprised; 2) the facts causing the surprise had a material bearing on the case; 3) the verdict or decision resulted mainly from these facts; 4) the surprise did not result from the moving party‘s inattention or negligence; 5) the moving party acted promptly and claimed relief at the earliest opportunity; 6) the moving party used every means reasonably available at the time of the surprise to remedy it; and 7) the result of a new trial without the surprise would probably be different.
Willing, ¶ 25 n. 2 (quoting Buhr, 268 Mont. at 253, 886 P.2d at 399).
¶31 Long before trial, Clark moved in limine to prohibit Bell “from attempting to elicit any testimony, introduce any evidence, or argue that any pre-existing condition or injury suffered by Ms. Clark cause[d] or contribute[d] to the present physical or mental symptoms that she and her expert treating physicians attribute to the motor vehicle crash giving rise to this action.” The basis for the motion was that Bell had not disclosed any medical expert who could apportion part or all of her injuries to a preexisting condition. Bell opposed the motion, arguing that “whatever the Plaintiff may claim about the
¶32 The District Court granted what it perceived to be Clark‘s motion, which it described as a request “to preclude Defendant Bell from presenting evidence, argument, or other express or implied reference to preexisting conditions as causes of Plaintiff‘s post-accident pain, depression, and anxiety on the ground that Defendant‘s expert disclosures [are] not sufficient bases under
¶33 After a 13-page analysis, the District Court‘s order stated, in pertinent part, as follows:
Plaintiff‘s motion in limine to exclude testimony from Drs. Sousa, Wilson, and Stratford attributing Plaintiff‘s post-accident pain, depression, and anxiety to preexisting conditions (Doc. 65-66, 79 and 81) is hereby granted. Accordingly, Defendant is hereby precluded from presenting any evidence, argument, or reference to Plaintiff‘s preexisting injuries or physical or mental condition and precluded from presenting evidence, argument, or reference to preexisting conditions as causes of post-accident pain, depression, or anxiety;
(Emphasis added.) The order further stated that this ruling did not relieve Clark of her burden of proving that Bell‘s negligence caused Clark‘s post-accident mental and physical injuries.
prevent[ed] Bell from presenting evidence of other causes through other witnesses, to challenge Clark‘s threshold burden of proving cause-and-effect. For example, in cross-examining Clark‘s experts, Bell should have been allowed to point out weaknesses in their opinions about cause-and-effect by referring to evidence of pre-existing conditions which contradicted those opinions.
The point here is that Bell read the District Court‘s order the same way that Clark read the order—to exclude “any evidence, argument or reference” to Clark‘s preexisting injuries, by any means. We declined to exercise supervisory control, concluding that Bell had an adequate remedy of appeal, and thus left the order in place.
¶35 On the morning of the first day of trial, the District Court addressed several outstanding preliminary matters outside of the jury‘s presence, including the proposed testimony of defense medical experts Sousa, Stratford, and Wilson. The District Court ruled that the pretrial disclosures of the defense experts were insufficient, and Bell was precluded from calling them as witnesses. The District Court then attempted to clarify its order in limine regarding evidence of Clark‘s preexisting injuries:
[T]he Court issued an order precluding introduction or argument regarding testimony by [defense experts] regarding pre-existing injuries as a source of or cause of post-accident pain, depression, and anxiety in this case. . . .
Now, the bottom line ruling was that the Defendant may not present evidence from these individuals attributing Plaintiff‘s post-accident pain, depression, or anxiety to pre-existing conditions due to the insufficiency of the expert medical disclosures as to divisibility and apportionment.
Thus, the Court ruled that the Defendant may not present evidence or argument referencing preexisting injuries or medical conditions attributing those pre-existing conditions as causes of the post-accident pain, depression, or anxiety.
Now, Defendant, in [her] application for Writ of Supervisory Control, argued, among other things, to the Montana Supreme Court that that ruling far exceeded the restrictions imposed by Truman . . . .
Now, so the record is clear, contrary to the way that it was presented to the Supreme Court, there was no argument before this court that there was other evidence from other witnesses of alternative causation . . . . [T]o the extent that the order that this Court has [] issued has been characterized as being overly broad, that is not accurate. This order was issued in the context of the dispute regarding the sufficiency of the expert disclosures for Doctors Wilson, Stratford, and Sousa.
(Emphasis added.) In response, Clark‘s counsel raised a concern about the meaning and scope of the court‘s clarification. He read back the language from the court‘s order, quoted earlier, that the “Defendant is hereby precluded from presenting any evidence, argument, or reference to Plaintiff‘s pre-existing injuries . . . .” Clark asked the court if its clarification meant that Bell was not permitted to ask questions about her “pre-existing conditions to the extent that that is asked in the context of asking about causes or suggesting that they are causes for anything that‘s going on now with regard to [Clark‘s] medical condition.” The District Court responded that Clark‘s understanding was correct “in general terms,” but that the court was not aware of what evidence Bell intended to introduce, so would reserve ruling until the evidence was presented.
¶37 Applying the above-stated criteria for obtaining a new trial due to unfair surprise, we conclude as follows: (1) the District Court‘s order was subject to multiple interpretations and, despite the attempt to clarify its ruling, that clarification came on the first day of trial and Clark was actually surprised; (2) admission of evidence about Clark‘s preexisting injuries had a material bearing on the case; (3) the jury‘s verdict rested on whether they believed Clark‘s injuries were caused by the accident; (4) the surprise did not result from Clark‘s inattention or negligence—prior to trial, she had moved to exclude evidence of her preexisting injuries and obtained an order; (5) Clark was vigilant at trial, objecting at Bell‘s first reference to her preexisting injuries; (6) aside from objecting at trial and changing her trial strategy by questioning her own experts about her preexisting injuries, there was nothing else Clark could have done to remedy the surprise; and (7) a new trial where Clark is properly advised of the ruling may well render a different result.
¶39 We conclude the District Court manifestly abused its discretion in denying Clark‘s motion for a new trial on the ground of unfair surprise. We reverse and remand for a new trial.
¶40 Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.
/S/ JIM RICE
/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS