*1 COOPER, JOYCE Appellant, Plaintiff v. M.D., HANSON, PETER D. Appellee.
Defendant DANo. 09-0439. Briefs 2010. March Submitted May 25, Decided 2010. Rehearing 2010. Denied June MT
CHIEF JUSTICE McGRATH concurred. specially Office, Appellant: Thueson, Helena; For Erik B. Thueson Law Towe, Offices, T. James Towe Law Missoula. Appellee: Hoven,
For J. Daniel J. Canty, Browning, Carlo Hoven, Kaleczyc, P.C., Berry & Helena.
JUSTICE COTTER delivered Opinion the the Court. Joyce Cooper (Cooper) appeals jury from verdict in the First ¶1 finding Hanson, Judicial District Court that defendant Peter D. M.D. (Dr. Hanson) negligent was not in treatment Cooper. his and care of Cooper argues right that her to a fair and trial impartial in prejudiced below, the course of the proceedings and that her motion for a new trial was the improperly denied District Court. For the below, set forth we jury reasons reverse the verdict and remand this matter to the Court District for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND Cooper suffering knee, had been from arthritis in her left conservative treatment measures had failed alleviate condition. the 1,2005, On December Dr. Hanson a total performed arthoplasty knee (TKA) surgery During left surgery, knee. complications damage artery arose due to to the popliteal in Cooper’s left knee. alleged Cooper that she suffered permanent injuries various to vessels leg and nerves her left as a complications. result of the 7,2007, On negligence December against filed a action Dr. Hanson in the First Judicial District Cooper alleged Court. that Dr. Hanson was his negligent placement use and of surgical tools operation, the and that he was responsible severing popliteal the artery in her left Dr. leg. negligent. Hanson denied he was trial, sought Prior to a motion limine to defense prohibit the presenting improper from counsel following: financially affected or would be That the defendant could
1. verdict; adverse the concerning consequences could face That the defendant 2. licensure, medicine, hospital continuing right practice business; limitation of or loss of privileges, services; or limit his forced close That defendant be 3. or professional reputation could have 4. That defendant standing damaged; could protection or that there special That the defendant needs
5. claims, malpractice or unspecified consequences effects doctor; against verdicts malpractice or medical put shoes of defendant That should itself 6. from the potential consequences analyze the case its perspective; defendant’s That the feels bad or similar comments. defendant motion, concluding request The District denied the Counsel for “vague these and overbroad.” arguments exclude Hanson, (Hoven), expressed
Dr. Hoven offense Daniel Evidence, Rules assured that he violate the suggestion *3 engage improper argument. that he not The District court would “fully of parties Court noted that counsel both should be aware trial,” at and obligations proper their ethical what is any noted that issues related to the above-mentioned further arguments by proper objection should be dealt with a trial. dire, Jury began During on voir April selection responses topic plaintiffs
elicited from several instance, For proof malpractice burden of in a civil medical case. any a question panel about whether members of would response greater in a require proof preponderance than the of evidence Silvonen) (Juror malpractice juror medical Chris Silvonen stated the following: very particular matter, In this I would. I think that for the
A. it, wrong, I if he it say little know about we were things-I all know. damaging. could be career I think those don’t point, at this it’s very going I’m-I know little about what’s but got like almost a criminal sentence for a doctor that’s know, quite So I like to see malpractice, you type of deal. proof. bit
Q. just- More than just
A. More than a little bit.
Q. pretty strong You’re on that?
A. Yes.
Q. Pretty change? hard to Hard change your for me to mind? A. Seems like life sentence to a medical doctor. Another panel, Demato, member of the Frederick also stated that
he “against preponderance of the evidence” in this type case.1 Other expressed similar implying sentiments preponderance of the evidence standard would be insufficient in a malpractice medical exploring case. In this issue with the (Thueson) Cooper’s trial counsel Erik Thueson had the following exchange Wayne with Juror Waters: Well, facts,
A. without knowing say that, I can’t but it would have to be a of the evidence.
Q. Okay. you go So could 51/49? Nope.
A. Q. Well if this were a game, basketball Joyce how much would have to win the game your basketball you mind before enough doubts set aside? say
A. Let’s it would go have to a lot more than 51 percent. Thueson questioned also Waters about feelings on awards for pain suffering. Waters indicated that he could not make such an award unless there was “a deliberate act or deliberate negligence on the part of the doctor.” When questioned further, however, Waters also agreed that he could damages award such if it was shown that a doctor made a mistake that was care, below the standard but unintentional. questioned Thueson also Juror Richard Ellwein ability about his
to award damages pain suffering if proven at trial. On this point, the following exchange occurred:
Q. Okay. Mr. Ellwein? A. I believe I want to hear what the facts are and make a determination on picture. the whole Q. You could award—
A. I could damages, award but I’m going not any to discuss anything amounts or like that. I will go into detail about amounts or anything like that. The cause of it-if we deem it *4 necessary, figure we’ll-I’ll that out when I make a decision on panel Unlike the other f Opinion, members the discussed in this Demato was ultimately jury. not selected to serve on the that. concept? the mean, problem have a with
Q. you so don’t Well-I A. No. three hundred
Q. shows, could award two or you If evidence the thousand? just say-1’11 I sir, I an amount. won’t-I’ll said,
A. don’t mention are, I’ll it the instructions base just say that what the-whatever on the instructions. examination, Dave Miller In Juror response Thueson’s in a medical greater proof there should burden of
indicated that if convinced of asked Thueson he could be malpractice case. When days, “No.”When anything couple in the next of he answered different he need a lot Eby Michael stated that “would more questioned, Juror decide,” further beyond ... a reasonable doubt to and indicated proof than, say, percent way he a lot to decide one that need more “would or the other.” panel members of the During questioning, some uncertainty proof legally required of
expressed about what burden actually jurors had instructed the potential since none of the been Sensing jury’s point, court on the confusion on this the this issue. that there no interjected District and reminded Thueson Court he assigned to a and told counsel that percentages preponderance, was thereafter, Shortly and Thueson then confusing jury pool. the court jury. the explore topics went other with jury panel, During presence a break outside the of many Thueson that members had panel raised concerns with the court inability apply preponderance indicated their evidence Counsel indicated his belief that malpractice standard in a civil case. bias, juror if a he or she be excused for demonstrated such a should responded confusing that Thueson the jury cause. Defense counsel event, that, given defense counsel should be challenged for opportunity any jurors to rehabilitate who were cause. The reiterated its concerns Thueson’s discussion of District Court confusing and allowed Thueson to proof the burden of pattern jury read to instruction on the clarify in order to the issue. evidence standard jury panel to examine the after the break and Thueson continued jurors for challenged potential discussion in chambers. He several and the proof question, cause on not related to the burden grounds Thueson granted challenges. District some of those then examining questioned him about his returned to Juror Waters *5 ability to fair in a malpractice Waters, medical case. job whose required him to decide disability basis, determinations on regular a fair, indicated that he could be but wanted to the “know evidence and see the medical evidence.” Thueson questioned “malpractice whether creep information” would into decision-making process his regarding liability, a doctor’s to responded which Waters “If doing job, he’s not his then-but I don’t know that at this point.” pressed When if further he require high burden of proof case, a medical malpractice responded Waters “Doctors can make mistakes like anybody else.” Thueson challenged then Waters for cause. Hoven given was the opportunity Waters, to examine who stated that he would not be biased in judging the evidence him. presented to The District Court subsequently challenge denied Thueson’s for cause. However, Voir dire continued. Jurors Eby Silvonen and were not
specifically challenged for cause inability based on their apply the standard, of the evidence general or their bias in a medical malpractice suit. As Thueson had been instructed District Court to finish his examination before a noon-hour lunch break, Thueson stopped his examination and thanked jury for their time. Thueson did expressly not inform the District Court at this time that he was passing jury cause, for although he did conclude his examination. After break, the lunch but before the jury panel reconvened,
Thueson specifically challenged jurors Silvonen, Eby, and Ellwein for cause, arguing that these three were unable or unwilling to apply the preponderance ofthe evidence standard to the case. Thueson also reminded the court of Silvonen’s statement that a malpractice verdict was like a “life sentence” to a objected, doctor. Hoven claiming that already Thueson had passed jury prior cause to lunch. Thueson stated that he had passed lunch, for cause before but finished his questioning solely because the District Court wanted him to conclude his voir dire time, noon. At the same Thueson conceded that probably Hoven was “technically right” on point, this but requested nonetheless an opportunity to make a record of his challenges jurors. these respect Silvonen, With the District Court denied challenge for cause on the grounds that Silvonen had been questioned after his initial statements and indicated he could be fair. respect With Eby, Juror the District Court denied challenge this grounds, similar noting that there significant discussion about the preponderance of the evidence standard after his initial statements. Finally, respect Ellwein, with to Juror the District Court denied that well, claim Ellwein did not challenge agreeing Hoven’s as with assign bias, attempts resisted simply but rather demonstrate damages seeing monetary suffering without figure pain hearing any evidence. jurors Waters and preemptory used Eby jurors, but and Silvonen served potential
Ellwein and two other During the both sides jury. Trial then commenced. lay testimony on various aspects presented expert During closing into evidence. his the court received numerous exhibits with information about statements, presented Thueson some In lawyer. biography, and how he became a trial personal connection, he stated: *6 [Hoven]
And Dan I didn’t want to go I didn’t route that went. businesses, I corporations. wanted to represent companies, I’m represent proud individuals. And of that. People. statement, following Later, during closing Hoven’s he made
¶17 jury: statement to the suggested companies Mr. that I represent
And when Thueson represent and I Pete Hanson. A Dr. Hanson corporations, person. just justice Cooper. is in this courtroom as Ms. He’s as entitled community. person. He’s a member of this stayed here. didn’t even have to come back He could
He lucky have a lucky in Akron. We’re to have him. We’re trained surgeon. orthopedic THUESON: I? I think there’s a case called Wellcome May
MR. objection [sic]. I make an Your would Wellcome Honor.
THE COURT: Overruled. Then, closing statement, the end of stated the Hoven
following: trials, kind of a And do these long you
So it’s been week. when I I you people probably feel like know some of now. And we’ll see someday. each other on the street your make are you guys proud
But I want to sure verdict. And mark on in this putting I don’t think a black Dr. Hanson case you proud. make going to or object not or ask the court to admonish the counsel did at the time this statement was made. verdict, hour, one returned a defense roughly After Cooper.
finding negligent in his treatment of that Dr. Hanson dismissed, Cooper support After the made a record in of a jury was Cooper argued motion for new trial. that counsel for Dr. Hanson made several the jury during comments closing statements. Cooper objected thatthejury to comments should consider the effect of its verdict Dr. reputation, particular Hanson’s fact that it put a “black mark” on Cooper pointed him. out that sought she prohibit such limine, her motion in timing noted that the of the difficult put comments her in a position. Cooper argued that appeal passion this was an prejudice which should not have been permitted. Cooper subsequently filed a written motion for a new
arguing part that the bias of the the District Court’s failure to grant cause, and improper arguments by Dr. Hanson closing, prejudiced her right to a fair trial. The District Court denied the motion in a written July 10, order dated 2009. The 25-11-102, District Court noted MCA, provides that § a verdict vacated, and a granted, upon: new trial application party aggrieved of the any following materially affecting causes rights substantial of the party: (1) irregularity in the proceedings court, jury, or adverse party order of the court or abuse of discretion which party either prevented from having trial; a fair (3) accident or surprise ordinary which prudence could not have guarded against;
(7) error in occurring law at the trial excepted party making application. Addressing Cooper’s argument concerning jury bias and the denial *7 challenges cause, the District Court noted that Thueson’s voir
dire had beyond continued time, its allotted and reiterated its view that Thueson confusing and trying get to them to commit to positions they before had heard evidence. After reviewing transcript, the District Court concluded that
the challenge to Juror Waters was properly denied and that he did not express unqualified belief as to the merits of nor did he exhibit a in bias favor of either party. Similarly, the District Court concluded that challenges Eby, Ellwein, and Silvonen were properly denied. With respect to each jurors, of these the District determined that the challenges untimely were and that a review of the entire examination failed to show that there jurors was a bias in these affecting Cooper’s right substantial to a fair trial. The District Court Eby, Silvonen, and Ellwein occurred Cooper’schallenges noted that recess, exchanges jurors, the actual with the after lunch well after up proof with these on the burden of Cooper failed follow after Thueson was allowed to read the instruction on burden question jury. Cooper placed The District Court noted that proof position by lodging challenges court in a difficult after lunch recess, transcript since it did not have a of the voir dire at the time and attempt panel was left to to recollect the statements of the members. nothing The District Court further concluded that there was responses required of Ellwein which that he be excused for cause. Silvonen, Regarding Eby and the District Court noted that their challenged early process, prior statements “were made the voir dire reading to a of the instruction on the of the evidence to, prior literally, hours of additional of the issues discussion with this, jury panel.” Based on the District Court concluded that Cooper had failed to establish that the denial of her seating jury. Additionally, cause resulted in the of a biased the District Cooper’schallenges untimely Court also concluded that under M. were 47(b), Cooper’s R. Civ. P. and found it “inconceivable” the failure to Silvonen, challenge Eby, or Ellwein could be on a lack of time blamed to do so. The District Court also addressed contentions that Cooper’s during closing substantially
Hoven’s remarks statements affected her right a fair began analysis trial. The District Court its here noting that it had denied previously Cooper’s motion limine regarding argument. It reiterated its that the improper ruling motion overbroad,” “vague and its direction that address Cooper improper argument proper objection issues of with a at trial. In this connection, the District Court that Cooper object observed did not mark” Hoven’s “black comments at and therefore waived her right to them in the appeal post-judgment object context. did “lucky” to Hoven’s remarks that the Dr. to have Hanson However, as, Helena. the District Court characterized the remarks response Cooper’s closing argument indicating [an] invited represents corporations. defense While defense counsel’s lucky statements that we were to have Hanson in Helena gilded lily, the Court does not that this statement believe week-long jury right at the end of a trial denied to a fair Cooper’s trial. motion for a new trial on the basis of closing argument by defense counsel should be denied. appeals jury’s rulings now from the verdict and the
318 First, appeal. on separate three issues Cooper presents District Court. denying her discretion in Court abused its argues the District Cooper abused its the District Court Second, Cooper claims in limine. motion Third, Cooper for cause. denying her in discretion to refuse to the District Court of discretion for it was an abuse claims dire and Hoven’s juror bias voir upon a trial based grant new closing argument. improper comments appeal, on we separate three issues Although Cooper presents for a new trial to be denial of the motion find the District Court’s Thus, appeal on as follows: we state the sole issue dispositive. denying Cooper’s abuse its discretion Did the District Court new trial? motion for OF REVIEW
STANDARD deny for a new decision to a motion a district court’s We review 25-11-102, MCA, abuse enumerated grounds § trial on 119, 102, 19, Quebedeaux, MT 350 Mont. Willing v. 2009 ¶ discretion. grant deny a new trial is within 1248. “The decision to 204 P.3d disturbed absent judge of the trial will sound discretion requires The standard showing of manifest abuse of discretion. materially affect the significant so as to that the abuse of discretion be ” party.’ Willing, (quoting 19 rights complaining ¶ substantial 326). 133, 16, 30 P.3d 2001 MT 305 Mont. Lopez Josephson, v. ¶ limine, ruling denying and its ruling A on a motion district court’s cause, are reviewed for an abuse of challenge juror to a both 450, 27, 280, 224 Schmidt, 2009 MT 354 Mont. State v. ¶ discretion. 92, 214 Hart, 268, 9, 352 MT Mont. P.3d 1273. 618; State v. 2009 ¶ P.3d ruling arbitrarily, its discretion if it makes a A district court abuses judgment, resulting unreasonably, employing or without conscientious Hart, injustice. in substantial ¶
DISCUSSION its determine whether the District Court abused In order to must it denied motion for a new we discretion when deny Cooper alleges errors which combined examine the various First, that the District Court’s denial of her Cooper argues a fair trial. cause, requiring amounts to structural error reversal challenges to 137, 149 Hausauer, MT Mont. under State v. a new trial plaintiffs that a that Silvonen’s comment P.3d 895. claims Eby, doctor, and the comments of a “life sentence” to a verdict is like Ellwein, demonstrating apply a reluctance to Waters, and defendant, preponderance of evidence standard and bias towards for cause. demonstrated bias sufficient to have them removed sufficiently to allow contends that these were not rehabilitated and that the District Court impartially them to serve *9 by denying challenges error her for cause. committed reversible Additionally, Cooper disputes the District Court’s determination Ellwein, challenges jurors Eby, that her for cause to and Silvonen were 47(b). untimely pertinent part under M. R. Civ. P. This rule reads in as follows: 47(b).
Rule Manner of selection and order of jurors. examination From the entire an initial jury panel, panel instance, of 20 shall called in be the first and before any voir dire examination of the jury shall be had. Examination panel by of all in the initial shall be completed plaintiff by challenges before examination the defendant. If for cause are allowed, juror panel additional shall be called from the entire immediately upon the challenge, juror allowance of and the called replace juror excused for cause shall take number ofthe juror excused, who provide panel has been a full initial of 20 jurors, whose examination shall completed be before peremptory challenges are made. When the voir dire examination completed, has been each peremptory side shall have four challenges, they and shall plaintiff be exercised first one, striking one, striking on, defendant than and until so each side right. has exhausted or waived its Here, Cooper’s challenges were made before examination commenced; thus, defendant she argues her were not untimely. Cooper also claims that Hoven’s improper comments
closing prejudiced
right
her
to a fair trial and constituted additional
grounds
Cooper argues
for reversal.
that Dr. Hanson’s “black mark”
closing
evidence,
comments in
supported by
statements were not
highly prejudicial,
grounds
and constitute
for a new trial under
(1984)
Fisher,
Kuhnke v.
210 Mont.
limine was to her to such comments on the record trial, before without requiring repeatedly object counsel to to the types attention to these jury’s and draw argument improper specifically Dr. Hanson notes that comments. prejudicial he would refrain from that he would District Court represented instance, in For of evidence. the rules respect and improper limine, he stated: to the motion opposition brief in Dr. Hanson’s argument” vague Plaintiffs “improper to exclude request it unless and until granted not be overbroad, and should and counsel is an of trial. Defense necessary in the context becomes the Rules recognizes respects attorney trial experienced he suggestion that resents Plaintiffs Defense counsel ofEvidence. those rules. flagrantly violate specific that several of the further submits Defense counsel “inflammatory” should not as “irrelevant” items Plaintiff lists in the context particularly from categorically excluded of his duties and cognizant counsel is Defense closing argument. a fair trial for all to facilitate doing part responsibilities refrain from ability in his However, he is confident parties. in the and, he is confident importantly, more argument, of trial on what is rule in the context properly Court’s abilities *10 argument. proper and is not relevant jury to the were mark” comments Cooper argues the “black ¶33 by panel the members given the statements prejudicial particularly defendant, of the in favor during reflecting predisposition dire voir against the doctor could consequences the a verdict and concerns about under Havens since argues that a new trial warranted Cooper have. engage not in the the District Court he would represented to Hoven Cooper itself. engaged very in the conduct conduct and then prohibited materially affected right to a fair trial was that her substantial argues manifestly abused and that the District Court irregularities, these trial. it denied her motion for a new its discretion when affirm, any that claimed to and contends urges Dr. Hanson us Cooper’sright to a prejudice in the did not irregularities proceedings denial of First, argues that the District Court’s Dr. Hanson fair trial. Dr. Hanson claims an abuse of discretion. the motion in limine was not the and notes that vague in limine was and overbroad that the motion any objections Cooper to raise specifically instructed District However, Cooper at trial. noted in the motion arguments based “lucky”to jurors that the Helena were only to the comments objected mark” Hanson, objection not raise an “black Dr. and did not “lucky” comments were argues the comments. Dr. Hanson mark” objections to the “black Cooper and that waived prejudicial, rate. comments, any prejudicial which were Court acted within its Second, argues the District Dr. Hanson for cause. Dr. Hanson Cooper’s challenges discretion when it denied confusing and was examination of the was Cooper’s asserts that specific to a pin potential members simply attempt argument. hear they chance to evidence and had a see position before jurors evinced potential further contends that none of Dr. Hanson Cooper that Dr. Hanson notes enmity party. in favor of either bias any potential bias jurors Eby and Silvonen about question failed to read, and of the evidence instruction was after the Thus, jury. presence them while in the challenge failed to actually apply biased or would not any whether were Dr. at trial is not known. preponderance of the evidence standard enmity, did not evince bias or but argues Hanson further that Ellwein hearing damages reluctant to define an amount of without simply was Waters, challenged jury’s in the any respect evidence. With who was bias, presence, Dr. Hanson contends that he did not evince Additionally, argues rehabilitated. Dr. Hanson properly correctly right District Court concluded that waived her 47(b), challenge by failing for cause under M. R. Civ. P. bring challenges at the her examination such conclusion of before lunch recess. regard With to the denial of the motion for a new Dr.
Hanson contends there sufficient support evidence to defense verdict and that the District denial of the motion in limine and Court’s irregularities they for cause did not constitute since Further, made within the District Court’s discretion. Dr. Hanson disputes during closing materially that Hoven’s comments statements affected fair right substantial to a trial. Dr. Hanson faults failing object challenged during trial, comments and also contends that “Dr. Hanson’s counsel did not break his word closing argument,” and that Havens is inapposite. Court, 25-11-102, MCA, As noted the District sets forth § upon the bases which verdict be vacated and a new trial *11 granted. Irregularities court, jury, in the proceedings on behalf of the party may grounds or adverse constitute a for reversal and a trial new 25-11-102(1), under Upon MCA. a careful review of the record in this § during we conclude that Dr. Hanson’s “black mark” statement closing, juror in combination with Silvonen’s “life sentence” statement expressed preponderance and concerns of the other about the standard, assurances to the court that he evidence Hoven’s
322 irregularities argument, constitute engage improper would not materially Cooper’ssubstantial prejudiced proceedings which the court a fair trial. right overtly were above, jury panel members several As noted of the evidence standard a apply
reluctant to verdict juror plaintiffs his belief that them. One voiced case before so, pretrial being Cooper’s This to a life sentence. would be tantamount these argument on limine, seeking preclude improper motion in ruling sought pretrial issues, prescient. sensitive was the voir prejudice-and or guard against appeals passion precisely to in the air. prejudices passions revealed that such dire indeed objecting improper to avoid Understandably, Cooper wanted only underscore the objections as such arguments in front of historically by opposing made counsel. inappropriate points We reason. See precisely motions in limine for encouraged filing (“A 36, 18, 156, MT 290 Mont. 966 P.2d Ingraham, v. ¶ State as A advantages in situations such this. special motion in limine has objection presence in the register not wish to party objection on reasons, yet may preserve wish to for tactical 174, Krause, 63, 32, 309 Mont. 44 P.3d v. 2002 MT appeal.”); ¶ State omitted) (“The in limine is to purpose of a motion (quotations immaterial, irrelevant, which is the introduction evidence prevent deny or Accordingly, authority grant unfairly prejudicial. to admit or power in the inherent of the court motion in limine rests necessary to precautions and to take such as are exclude evidence parties.”). trial for all afford a fair in the context mark” comment must be considered The “black timed and by jurors. The remark was expressed
of the anxieties
reputation
the doctor’s
would be
intended to remind the
that
him, and
let them know it was
against
a verdict
tarnished
prospect
account of that
alright-indeed,
important-for them to take
deciding
suggestion
reputation
the outcome ofthe case. This
when
should be taken into consideration
deliberations
highly
especially
presented
under the circumstances
prejudicial,
by voir dire.
reputation argument
held that
expressly
In Kuhnke we
Kuhnke,
improper.
Court as a basis for her motion
cited Kuhnke to the District
specifically
1123 (Ill.
App. 4
Hamdy,
Rush v.
627 N.E.2d
in limine. See also
(“The
1994)
against
upon
of a verdict
a defendant
impact
Dist.
considered
is irrelevant and should
reputation
defendant’s
*12
323
jury
resolving
negligence.
issue of defendant’s
A reference
of a
impact
upon
reputation
verdict
defendant’s
an appeal
the passions
sympathy
jury.”). Further,
prospect
meeting
Hoven
“on the street” and their feeling ashamed of
their
highly improper
verdict is
and prejudicial. Such comments can
play
legitimate
no
role in the context
jury
of a civil
trial. These
comments were “well
in a
placed”
manner which maximized their
prejudicial effect
deprived
meaningful
of a
opportunity
respond. Willing,
See
26-27.
¶¶
light
timing
In
ofthe
present here,
and circumstances
after Hoven
comments,
made his “black mark”
the District
previous rulings
Court’s
should
conjunction
have been reexamined in
with Cooper’smotion for
An analogous
new trial.
situation
presented
to this
(Havens)
Havens. In that
plaintiff Steven
Havens
was struck
Butte, Montana,
automobile at an intersection in
and sued the state
of Montana
negligence
in failing to install a traffic light at that
Havens,
196,
intersection.
that evidence of his alcohol consumption and the results of the toxicology report had no relevance and caused him prejudice. severe The district court denied the motion for a new and Havens appealed. First, agreed this Court with Havens that the evidence concerning his alcohol consumption and the toxicology report was prejudicial and irrelevant since it alleged was not consumption marijuana alcohol or in any way Havens, contributed to the accident. Second, the Court while 943-44. P.2d at at
285 Mont.
denied
originally
it
did not err when
court
that the district
concluded
assurances,
nonetheless
we
the State’s
motion in limine based
in the
ruling
its
reconsidered
the district court should
held that
promise
to fulfill its
State’s failure
light
“in
context
post-trial
as a factor
consumption
establishing Havens’ alcohol
testimony
elicit
945 P.2d
Havens,
Mont. at
causing the collision.”
analysis:
following
holding with
prefaced
We
manifest
abuse of discretion
rarely find a
Although we
instances in
trial, there are certain
a new
a motion for
denial of
*13
the fairness to
undermines
matter at issue
prejudicial
which
v.
only remedy. In Kuhnke
trial is the
degree that a new
such a
916,
114,
P.2d
we addressed
(1984),
683
210 Mont.
Fisher
that “the
and noted
to the
improper
question
should be
which,
any, of the defendants
if
only way to be sure
a
grant
at all is to
should recover
plaintiff
or whether
exonerated
(1966), 147
trial Kuhnke,
In Putro v. Baker
683 P.2d
new
717,
confronted with a situation
139, 410 P.2d
we were
Mont.
newspaper
exposed
prejudicial
jurors had been
wherein
The district court
under consideration.
about the case
article
a new trial.
and a motion for
a motion for a mistrial
denied both
legal
of our
guiding principle
that “the
and held
We reversed
to the ideal that
tenaciously
must
adhere
system is fairness. We
III,
a fair trial. Sec. Art.
guaranteed
be
sides of a lawsuit
both
Putro,
410 P.2d at
II].”
Art.
[now Sec.
Montana Constitution
references
unexplained prejudicial
“that
722. We also reasoned
tendency’ to
may have a ‘natural
litigation
matters in
important
can be corrected
with an unfairness that
proceedings
infect the
Putro,
CONCLUSION those rare reasons, this is one of we conclude foregoing For the cases in which it is manifest that a court district has abused its failing grant discretion in motion for new trial. We therefore jury’s reverse the and remand matter verdict this to the District Court proceedings for further consistent Opinion. with this RICE, JUSTICES WHEAT and NELSON cocnur.
JUSTICE NELSON concurs. I concur in the Opinion Court’s and the Court’s reversal on the involving issues the challenges for cause and defense closing counsel’s arguments. trial, I would also however, reverse and remand for a new
matter of the trial Cooper’s court’s denial of motion in limine. The District Court erred in its determination that motion was “vague not; and overbroad.” It was the motion specific requesting the court categories exclude certain of clearly Granting inadmissible evidence. it should have been a no-brainer. Indeed, the motion turned out to prescient be as to at least two categories of specified evidence. Cooper properly requested the court prohibit references to
Hanson’s professional reputation or standing; that Hanson needed special protection; or that there could unspecified effects or consequences claims, of the malpractice malpractice or a against verdict Hanson-Numbers 4 and in Cooper’s motion. Opinion, states, 4. As the Opinion Court’s ¶ sort of evidence and argument in a professional case; negligence it is irrelevant question of professional whether the person breached the applicable and, standard of care doing, so caused plaintiff damages. It does *14 nothing appeal but passions, sympathies and biases of the jurors. Opinion, 37, 39, Any 40. professional person ¶¶ can make a mistake, system and this State’s tort designed compensate injured party professional’s for the negligence-regardless ofwhat sort of “mark” or effect that have on his or her reputation, standing, practice personal or finances. Even defense counsel recognized
¶48 the impropriety types ofthese of arguments-he comments and feigned offense at suggestion even the that he would violate the Rules of Evidence and he assured the court and counsel that he would not engage very sort improper he, comment and argument that eventually, did. Opinion, ¶¶ Therefore, independently ¶49 other error by committed the trial cause, court in this I would hold that the trial court erred in denying Cooper’s limine, motion in I and would reverse and remand for a new
trial on that error. in its Opinion generally the Court’s I concur with Finally, while
¶50 issue, necessarily extend I do not for cause ofthe resolution cause challenges for in which to the manner my agreement actually interpret not However, we do since in this case. made were the proper to leave 47(b), I am satisfied P. of M. R. Civ. language day. for another of this Rule construction I concur. ¶51 McGRATH, concurring. specially
CHIEF JUSTICE refusal of the Court. The reached in the result I concur jurors for cause warrants disputed to remove Court District a new trial. reversal regarding conclusions However, the Court’s disagree I with did The comments closing argument. statements
defense counsel’s in the context trial when considered deny a fair plaintiff correctly noted that counsel’s The District argument. entire closing argument” and response Cooper’s an “invited remarks were sufficiently mark” comment was the “black reply. Nor appropriate That proceeding. the context of the within prejudicial from degree in character and is different by defense counsel statement majority the remarks Kuhnke, cited where opinion those terribly them as judge trial to describe closing caused the of counsel P.2d at 922. Kuhnke, Mont. at disturbing. by the by the court that statements admonished The certainly capable parsing are are not evidence. Juries
attorneys and, thus, attorneys generally given are some from evidence closing argument. latitude in cumulative regarding join opinion I the Court’s do not with
prejudice.