*1 individually HENRICKSEN, KRISTIN parent guardian and a HUNTER HENRICKSEN, minor, Respondent Cross-Appellant, Plaintiff, STATE OF MONTANA and MONTANA
STATE UNIVERSITY,
Appellants.
Defendants
No. 02-519.
Submitted
Briefs June
January
Decided
For Monte D. Richardson & PLLC, Bozeman.
JUSTICE LEAPHART Opinion delivered the of the Court. The State of University (collectively Montana Montana State State) appeal multiple rulings District Court detailed below. (Kristin) Kristin Henricksen cross-appeals. part We affirm in part. reverse in appeal The issues on are as follows: granting summary 1. Whether the District Court erred in partial
judgment liability? on the issue of bifurcating liability 2. Whether the District Court erred in bifurcating and in damages? Kristin’s and Hunter’s denying production the District Whether Court erred in
¶5 (1) (2) records; Kristin’s medical and mental her financial health *5 documents, transcripts, personnel school and records? allowing
4. the District Court erred in not the State to Whether him as a depose Hunter or to call witness? prohibiting
5. Whether the District Court erred conducting excluding expert an IME and in the State’s witness? (1) excluding the District Court erred in evidence of Whether counseling stressors in Kristin’s life unrelated to the accident and (2) accident; prior prior services Kristin to Hunter’s and a fall received library? at the MSU jury instructions for the
7. Whether the District Court erred in its and course of life? claims of emotional distress loss established excluding videotapes the District Court erred in Whether Hunter? dismissing jurors District Court erred in not for 9. Whether the cause? Background
Factual and Procedural 2,1995, three-year-old son Hunter On November Kristin and her (MSU) University library. slipped Hunter were at Montana State and stairway story open balusters of a second stairwell between below, landing on twenty fell feet to the concrete floor approximately fall, of his head. Within hours of Hunter’s Kristin learned the left side stairway through had fallen the same weeks earlier. that another child fall, Hunter suffered three skull fractures. Since As a result of this fall, an area of his tissue about medical tests have revealed that brain golf atrophied. has the size of ball individually, parent and as
On December Kristin Hunter, against the State. Kristin’s claim was based complaint filed consortium, distress, post-traumatic stress on emotional loss medical disorder, Hunter’s fall. Hunter’s claim was for all related to injuries, enjoyment lifestyle, pain loss of expenses related his suffering. granted partial February 23, 1999, the District Court On duty State, regarding and breach. summary judgment against the issues liability and also court the issues of bifurcated damages. of Kristin’s and excluding following in limine granted
The court motions library; accidents at the evidence prior lack of evidence: at the Building Code in effect the Uniform stairway complied with constructed; of a child’s fall weeks stairway evidence time the concerning stairway; and evidence fall from the same before Hunter’s counseling. Kristin’s divorce and unrelated The court also granted testimony motion strike Dr. David Price’s and limit Dr. (both State). Paul Bach’s expert witnesses for the After conducting records, in camera review of Kristin’s medical the court denied a compel production motion to of Kristin’s health care records from before and after Hunter’s fall. court also denied the motion compel production of all Kristin’s financial documents. The State requested, discovery deadline, before the an independent medical examination of Kristin which the District granted Court first but later denied after reconsideration. trial, At beginning the start of the April the State
challenged jurors they several newspaper cause because had read a *6 regarding article prior accident that mentioned the fall. All challenges but one of these jurors were denied after were questioned potential five-day trial, about bias. After a jury a rendered against a verdict the State. The verdict amount was reduced 20 percent based on comparative negligence. Kristin’s appealed The State has issues, ¶17 numerous delineated above. In the ordered, event that a new trial is Kristin cross-appealed preclusion regarding evidence part fall. We affirm in and reverse part.
Discussion Issue 1: Whether ¶18 District Court erred in granting partial summary judgment on the liability? issue of We review a district grant summary judgment novo, court’s of de
applying the
court,
same criteria as the
56,
district
based on Rule
Wiley City
213,
M.R.Civ.P.
v.
216,
Glendive
272 Mont.
900
of
310,
P.2d
party moving
summary
312. The
for
judgment must
genuine
demonstrate that no
issues of material fact
Wiley,
exist.
272
216,
Mont. at
demonstrated,
314 duty legal a to Kristin question ofwhether the State owed duty questions are of law. Webb scope
and Hunter and the of 1008, 1011. “The existence of T.D. a foreseeability upon of the risk duty depends upon a of care against imposition weighing of consideration for and policy (1996), 278 Mont. liability.” Estate Strever v. Cline weighed to determine whether 666, 670. policy considerations include: impose duty to (2)
(1)
conduct;
defendant’s
the moral blame attached
(3)
harm;
to the
prevent
future
the extent of
burden
desire
community
imposing
consequences
and the
to the
defendant
(4)
breach;
resulting liability for
duty to exercise care with
of insurance for the involved.
availability,
prevalence
cost and
Mont,
Strever,
at
State owed a 27-1-701, MCA. As library. Section through the in the MSU balusters highways in a safe duty has a to maintain sidewalks the State use, ordinary Wiley, 272 Mont. public condition balcony and duty maintain the does it have a P.2d at so too *7 ordinary public library in a safe condition for at the MSU staircase stairway the the balusters of knew the distance between use. The State was sufficient to inches. This alone gaping eleven to twelve was that Additionally, the State knew make Hunter’s fall foreseeable. through fell another child weeks earlier approximately two accident, dangerous this first library. at the After balusters did not ignored. Yet the State could not be condition of the balusters act. duty upon of a imposition Policy support considerations in a state the accident was which led to spacing The baluster
State. legitimate interest Society has a public. to the library open library should be library to all users because of harm prevention children. had a minimal burden The State users and their safe for all
315 situation, placed upon remedy by placement it to as shown of twenty-four chickenwire in front of the balusters within hours of Lastly, public Hunter’s fall. negative suffers no cost if the State is duty any held to a of care liability by because is covered the State’s insurance. duty ordinary State breached its of care when it failed to any following
take remedial action duty the first fall. The State had a stairway to maintain the reasonably in a safe condition and to take prevent measures to falling through small children from the balusters. The State had notice of the defect caused the unsafe distance stairway between the balusters when the fall first occurred. “When present defects are duty same, State’s to cure give or remove the or warning begins thereof when it has notice of the same and opportunity to act.” (1986), Buck v. State 222 210, Mont. 723 P.2d 214 (overruled grounds). Here, notice, other despite the State did not cure, remove, act to stairway or warn of the defect. The State contends that because it relatively had a accident-free
history at library and the building grand-fathered in under an older version Building of the Uniform genuine Code there are issues of material fact summary which make judgment inappropriate. However, foreseeability is determined at occurred, the time the event irrespective long of a history State, free from accidents. Jackson v. 46, 56-58, 287 473, 56-58, Mont. ¶¶ 956 P.2d 56-58. ¶¶ ¶¶ [5] “Property duty owners owe a ordinary care keep premises reasonably safe and to warn people any lurking hidden or dangers.” Welton v. Lucas 940 P.2d duty 115. This abrogated by is not long relatively either a or accident- history, free Corp. Allis-Chalmers v. Occupational Safety & Health (7th (an 1976), Review Com. Cir. 542 F.2d employer’s accident- free record be considered in determining gravity safety of a Div., violation but the record dispositive); is not Faultless Bliss & (7th Indus., Laughlin Secretary 1982), Inc. v. Labor Cir. 674 F.2d (a history free from dispositive regarding accidents is not safety regulation occurred), whether a having building violation grand-fathered codes, in under building University older Moffatt Montana (compliance of stairs building with code does not prove conclusively property owner properly maintained its premises); Reg’l Hull v. Greater Cleveland (Ohio 1987), Transit Auth. App. LEXIS 2 (complying with building codes does not duty establish one does not breach the care). ordinary agree Because we with the District that no Court *8 316 regarding duty of fact the State’s and breach of
material issues
exist
summary
duty,
grant
partial
judgment
affirm the
on these
we
remaining
regards
damages only.
issues. The
issues are discussed in
bifurcating liability
2:
the District Court erred in
Issue Whether
bifurcating
damages?
damages
and in
Kristin’s and Hunter’s
danger
[6] A court
claims in order
avoid the
bifurcate
42(b),
prejudice or for court convenience. Rule
M.R.Civ.P. The decision
pursuant
whether to
claims
to this rule is a matter left to the
bifurcate
Dist. v. 17th
broad discretion of the district court. Malta Public School
1335,
46, 50, 938 P.2d
1338. This Court
Jud. Dist.
283 Mont.
Malta
reviews a decision to bifurcate for abuse of discretion.
Pub.
51,
Dist.,
(citation omitted). issues appropriate It is not bifurcate when they separated if are it will create issues are so intertwined that (9th Industries, Cir. uncertainty, confusion and Miller v. Fairchild Inc. 1989), litigation, State ex F.2d or needless and endless Fitzgerald v. rel. Dist. Court Court, we determined that Fitzgerald In State ex rel. District exemplary the issue of appropriate
bifurcation was not because malice or damages proving negligence so interwoven with lead to extended and separate that to have trials would oppression 118, 703 P.2d litigation. Fitzgerald, State ex rel. 217 Mont. at needless at 156. liability case, the court ordered bifurcation of In the instant damages. of Kristin’s and Hunter’s damages as well as bifurcation danger and to avoid the
The court did this both for court convenience liability damages, respect to prejudice. With bifurcation proving minimal because the evidence duplication ofevidence would be fundamentally They damages is different. liability proving and that a fair trial or lead prevent that bifurcation would are not so interwoven liability damages is litigation. Bifurcation of to endless (for liability phase) could be lost witnesses appropriate because testify until the full they if have to wait to their memories clouded stated that The trial court also damages is known. extent of Hunter’s by enhancing judicial process liability may help speed the finding possibility of a settlement. Bifurcation of Kristin’s and damages appropriate Hunter’s damages because Kristin’s currently are assessable. Because of young age, Hunter’s the full extent of his will not be known years. Forcing several Kristin to wait until the time when *9 damages fully are assessable forcing now, or both issues to be tried before damages fully known, Hunter’s are prejudicial. would be Although the same facts the underlying causing surround accident both Kristin’s and damages, fundamentally claims are different. Although slight overlap of witnesses occur between claims, their the witnesses and extensively evidence will not be duplicated. Different witnesses will and provided have regarding impact the accident had on Kristin and on Hunter. Based on the foregoing, we conclude that the District Court did
not abuse its by ordering discretion Fitzgerald bifurcation. Unlike the decision, judicial economy in this case does not call for a unified trial. The District Court did not act arbitrarily without employment of judgment conscientious or exceed the bounds of reason. Bifurcation appropriate both for court prevent convenience and to prejudice resulting in injustice. substantial We affirm. Issue 3: Whether District Court erred denying (1)
production of (2) Kristin’s medical and records; mental health her financial documents, school transcripts, personnel records? Medical and Mental Health Records “The District Court has discretionary inherent power to control
discovery based on authority its to control trial administration.” Anderson v. Enterprises, Inc., Werner 333, 13, 292 Mont. ¶ 284, 13, 972 P.2d ¶ 13. We review a district rulings ¶ court’s on discovery motions for an abuse of Anderson, discretion. party 13. The claiming error in the district discovery rulings court’s must show prejudice. Anderson, 13. We will reverse discretionary rulings these only when the “judgment may court’s materially affect the substantial rights of the complaining party and allow the possibility of a miscarriage justice.” Anderson, Medical records are private and “deserve the utmost protection.”
constitutional State v. Nelson 283 Mont. II, 941 P.2d 448. Article Section of the Montana Constitution guarantees privacy informational sanctity of one’s medical Nelson, records. 283 Mont. at However, P.2d at 448. “[w]hen party claims physical for injury, or mental he places or she the extent physical of that or injury mental at issue and waives his or necessary confidentiality that it is statutory right to to the extent
her current medical or plaintiffs to discover whether defendant State ex rel. is the result of some other cause.” physical condition 822 P.2d Mapes v. District Court may only unlimited; the defendant Nonetheless, the waiver is not they mental conditions if prior physical related to discover records right currently damages. plaintiffs claimed relate right to defend itself confidentiality against the defendant’s balanced Mont, 530, 822 Mapes, State ex rel. in an informed manner. unnecessarily plaintiffs invade “is entitled to at 94. A defendant matters.” State ex by exploring totally unrelated or irrelevant privacy at 95. 250 Mont. at Mapes, rel. compel production denied the State’s motion to The District Court counseling (including medical and
of all Kristin’s health care records
records)
granted
protective
fall and
from before and after Hunter’s
constitutionally protected,
that the records were
order
the basis
case, and therefore not discoverable.
the issues in this
irrelevant
records.
review of Kristin’s medical
The court conducted
in camera
stages throughout
is often used at various
An in camera review
*10
parties
interests of the
discovery
privacy
“to
and trial
balance
effectively
can
offer
procedure
The in camera
the need to know.
by avoiding
exposure
potentially
needless
parties
to both
protection
(1992),
37, 39, 830 P.2d
harmful information.”
v.Burns
253 Mont.
State
damaging
1318,
preview potentially
can
1319-20. The court
Mont,
39,
at
released, Burns,
at
830 P.2d
it is
253
information before
discoverable,
Lacy
properly
In re
1320,
information is
and decide what
326, 780 P.2d
239 Mont.
all medical records
not
unfettered access to
A defendant is
allowed
Mix, the trial court
In State v.
may help his defense.
he believes
was irrelevant
subject
matter
refused access to records because
351, 360, 781
v. Mix
239 Mont.
too remote to the case. State
case,
charged with deliberate
a defendant
P.2d
756. In that
victim’s asthma
regarding
records
sought medical
homicide
Mont,
P.2d at 756.
Mix, 239
at
condition.
damages an action for
Kristin commenced
present
In the
physical
in issue her mental
injuries
placed
which
personal
her
(1981), v. District Court
Jaap
the accident.
arising condition
Mont, at
Mapes, 1389, 1391; State ex rel.
319, 322, Mont.
any
this,
physician-patient
doing
she waived
complete copies disputed records, medical and her doctors stated previous injury the records showed causal between any no correlation or injuries, inquiry condition and her current this ends the into the argues medical records. the State Kristin that should be denied access records it present any expert to the because did not medical opinion alleged injuries probably by that her were more than caused some witnessing argument factor other than fall. The this fallacy could way is that there provided was no State have opinion very because it denied access to records which would have enabled it to make this determination. The court’s denial of these only records allowed for one-sided review of the medical records physicians. Kristin’s prejudiced right State was it was when denied right
defend itself in an informed manner.
It had the
to discover
physical
evidence related to prior
possibly
or mental
conditions
Mapes,
State ex rel.
connected to
damages.
Kristin’s current
250 Mont.
530, 822
at
unnecessarily
P.2d at
The State
is not entitled to
invade
privacy by
Kristin’s
exploring totally unrelated or irrelevant matters.
Mapes,
State ex rel.
However,
which
was
treated shows the
correlation
present
her
her
pre-accident
between
records and
claims. Kristin’s
distress,
consortium,
post-
and
claims involve
loss of
emotional
(PTSD).
record indicates that
to
traumatic stress disorder
The
accident,
taking
used
she was
medications which can be
to
headaches,
disorders,
anxiety.
sleep
and
depression,
treat
and her
present
past
between Kristin’s
claims
conditions is
connection
not attenuated as it was in Mix where access
records was denied.
Mix,
Accordingly,
Financial Documents. School granted protecting an order Kristin’s financial The District Court documents, personnel sought records. transcript, school The State records Kristin’s produced quantify to have these an effort damages. However, that Kristin’s statement of the court ruled likely to lead sufficient and the documents were not discovery any relevant information. party alleging is the error in District Because State discovery rulings, prejudiced the State must show how it was
Court’s Anderson, Kristin not claim lost ruling. the trial court’s does ¶ earnings her and emotional earning capacity; or lost rather mental bearing have no on these requested states are at issue. documents fails the denial of the legitimate issues. The State to show ability substantially prejudiced impaired it or its requested documents find no discretion. We affirm. present a defense. We abuse of allowing erred in 4: Whether the District Court not Issue him depose Hunter or to call as a witness? of a in limine for an abuse of grant We or denial motion review State, 132, 16, 294 ¶ discretion. Bramble ruling a district court’s 982 P.2d 16. We will overturn of discretion party alleging proves error abuse discovery unless 26(c),M.R.Civ.P., Anderson, allows 13. Rule resulting prejudice. party or any justice requires protect a court to “make order which embarrassment, undue burden annoyance, oppression, person from no minimum discovery had[.]” There is including ... ... that be testimony. Eiler State v. age requirement regard with to child 210, 213 (testimony four-year-old 234 Mont. 762 P.2d allowed). However, need child witnesses five-year-old children injuries” psychological emotional “protection against potential State v. Sor-Lokken litigation procedures. regular occur with Furthermore, *12 321 403, needlessly cumulative evidence be excluded. Rule M.R.Evid. precluding protective The District Court issued a order a
¶47 granted Hunter and reaffirmed this decision it a deposition of when in to exclude as a court motion limine Hunter witness. The reasoned years old the of the only that because Hunter was three at time accident, years trial, the only and nine old at the time of little probative gained by could him forcing testify information be to regarding stress mother injury. his suffers because his head The testimony unduly court also be stated that such would traumatic and Additionally, any burdensome to Hunter. information Hunter could provided witnesses, physicians have available from other such as teachers, and school and thus would be cumulative. Rule M.R.Evid. The State has failed prejudice resulting to show from the testimony.
exclusion ofHunter’s Due young age, to his Hunter not does remember accident or his mother’s condition before accident. testify changed He could not as to how the accident her life. State opportunity question had the Kristin and other adult witnesses regarding her condition before and after Hunter’s accident. Furthermore, because the State had the opportunity use
expert testimony regarding condition, witness Hunter’s it did need not testify regarding Hunter to the effects the accident had on him. The expert State listed Dr. Bach as an witness for trial present Kristin’s testimony on based his report examination Hunter and also to on past and present condition. Since State could have used to, by Dr. Bach’s but not prejudiced chose it was not inability to call Hunter as a arbitrarily witness. The court did act judgment without conscientious and did abuse We its discretion. affirm the protecting having testify order the court Hunter from deposition ator trial. Issue prohibiting 5:Whether the District Court in erred conducting an IME and excluding expert the State’s witness? rulings discovery We review a district court’s motions for Anderson, 35, M.R.Civ.P., an abuse of recognizes discretion. 13. Rule ¶ (IME) independent discovery. medical examination as a form of recognized This Court has an IME as a valid tool to determine if and a alleged injury. what extent defendant suffers from an Winslow Link, MT Montana Rail 2001 ¶ ¶ plaintiff 16. “A in a negligence action who asserts mental or physical injury places clearly physical injury mental or controversy provides good with for an the defendant cause and extent of such
examination to determine existence asserted (citation omitted). if Winslow, Thus injury.” internal citation puts alleges physical injury, he or she plaintiff mental injury good with provides existence of that at issue defendant Winslow, 9. request cause to that an IME be conducted. scheduling required court issued order exchange expert (including comprehensive of all witnesses statement grounds opinions) for the proposed expert’s opinions discovery 15, 2001. deadline was December November taking depositions January The court amended deadline *13 thereafter, 23,1997, September As and numerous times early as ¶53 records that indicated Kristin suffered from the State had access to However, resulting injuries. from her it was emotional distress son’s used, 22, time, for first the until that Kristin the October discovery supplemental in a “on-going post term traumatic stress” 15, 2001, expert disclosure response. Kristin’s November witness Erin Kristin suffered from PTSD. On Bigler stated that Dr. believed witness, and expert the Dr. Price as an day, this same State disclosed right to an IME of Kristin. The State disclosed reserved the conduct yet had opinion because he general Dr. Price’s without details requested IME. November the State performed the On make herself available for Kristin to an IME. Kristin did not submit this examination. 6,2001, the court to order Kristin On December the State moved previously IME” it had not been “emergency submit to an because
to motion, made before the from PTSD. This informed Kristin suffered IME later deadline, initially granted. However, the was discovery was because, reconsideration, the court determined since denied after request September PTSD State knew of Kristin’s since persuaded. We not so proceedings. too in the are for the IME came late IME four to conduct an because years claims the had Kristin State health from 1997 her mental records provided the State with she Nonetheless, mere existence diagnosis. the PTSD which contained to this planning was use notice that she the record is insufficient did State diagnosis present for lawsuit. as a basis discovery response from supplemental not know that fact until this, filed its timely State motions Upon learning October of2001. adequately so could an IME that the State undergo have Kristin to fact she If had earlier revealed defense. Kristin prepare its damages, the State diagnosis a basis use the PTSD going as ever-looming have to run so would not been forced close was, discovery complied deadline. As it the State with the court’s discovery deadlines. We reverse the court’s denial the State’s request for an IME. precluded Now we examine the fact that Dr. Price was
testifying Dr. expert as witness. The disclosed Price as an time-limit imposed by scheduling witness within order. The provided required supplementation State twice his regarding testimony, possible given the extent the limited amount of court, however, information with which he had to work. barred Dr. Price from as testifying witness because he had not a. conducted testimony. IME as Although a basis for his much of the information provide necessary comprehensive report was not available to him complete denied, because Kristin’s medical records and the IME were Dr. Price could still have testified based on his medical knowledge the redacted medical records available him. policies “The underlying M.R.Civ.P., Rule are to eliminate
surprise promote and to effective of expert cross-examination 58, 21, 314 v. Harney, witnesses.”Hawkins Mont.
66 P.3d Dupont 21. In Scott v. De Nemours & Co. 282, 286-87, although we stated that discovery regarding very answers an expert brief, witness were expert was not a surprise testify witness and refusing allow him to because full and complete discovery provided answers were not was an extreme sanction. the District Court sanctioned preventing the State
Dr. testifying. following Price from We have identified the criteria to determine whether a sanction is an of abuse discretion or too severe: “1) consequences whether the imposed by the the sanctions relate to 2) discovery abuse; extent and nature the actual extent of the the prejudice discovery the opposing party which resulted from the 3) abuse; and expressly abusing whether the court the party warned Center, consequences.” Maloney Inc., ofthe v. & 2000 Home Investment MT 298 ¶ ¶ criteria, Applying the we above determine that the court sanction discovery by State, any,
was too severe. The if abuse committed the was, nonetheless, a tardy request was for an IME which still within IME by the court-mandated time. An need be conducted the date witnesses, for expert provided expert set disclosures. The State a list of including Price, by Dr. court-imposed deadline. The information provided regarding testimony satisfy Dr. Price’s was sufficient matter, requirements. provided subject
Rule 26 substance, Dr. summary grounds factual a Price’s testimony supplemented by The State Dr. Price’s opinion. also discovery to be Dr. completed. supplemented deadline for all The State discovery passed testimony time, Price’s a after the deadline for second January taking deadline for the but before extended depositions. Ideally, provided the State would have all discovery However, the supplementation by the deadline. State was provide complete picture possible regarding a as Dr. attempting to as testimony. testimony comprehensively Price’s If his was not described in interrogatories, large part in answers to that was due to District rulings precluding excluding an IME and full access to Court’s Kristin’s medical records. addition, provided In Dr. Price’s disclosures were before depositions passed. Any prejudice
deadline for all had suffered Kristin minimal she was well-aware Dr. Price was listed because ample depose as an witness and she had time him. No expert order, surprise alleged scheduling none occurred. In its the court is could generally noncompliance provisions warned that with the order’s However, more imposition specific result in the of sanctions. no given. warning was ever ruling the court’s in the context of three Having reviewed criteria, in
Maloney conclude that the court abused its discretion we distinguishable allowing testify. Dr. Price to The facts here are Pharmacy, Seal Woodrows case, a upheld prohibition In that we a trial court’s P.2d 1230. discovery of continual and abuses doctor’s because blatant even required Rule information provide when Seal refused to Seal, to do being opportunities after afforded numerous so. discovery in continual and engage the State did not blatant minimum, have, a allowed Dr. Price The court should abuses. records. We testify on his review of Kristin’s redacted medical based testify Dr. as not to allow Price reverse the District Court’s decision expert witness. an excluding evidence the District Court erred Issue 6: Whether (1) counseling life accident and unrelated to the stressors Kristin’s (2) accident; prior fall a received to Hunter’s
services Kristin library? at MSU in limine for abuse grant or denial of motion We review power Bramble, trial court has inherent 16. The
discretion. that a fair trial afforded in limine to ensure deny grant motion
325 Bramble, parties. Litigants to all 16. must establish causal ¶ connecting of a probable any possible connection more than not cause plaintiffs injuries testimony is before alternate causation allowed trial; speculation mere is not sufficient and not admissible. Newville v. State, Family Svcs. 883 Dept. Mont. P.2d A has district court broad discretion to determine whether admissible, evidence is we relevant will not overturn district court’s decision absent an abuse of discretion. Kissock Butte Center, 322, 10, 297 307, 10, 992 Convalescent Mont. A may court exclude relevant evidence if its probative value is substantially outweighed by danger prejudice, of unfair issues, presentation confusion of the evidence, needless of cumulative time, delay, misleading waste of undue jury. Rule M.R.Evid.
¶65 Kimes v. Herrin 108,110, we stated it was for a abuse discretion trial court allow suggesting plaintiffs home environment have plaintiffs caused symptoms because no medical connection was established between the home environment appellant’s and the symptoms. question
¶66 The symptoms what caused Kristin’s is critical to the issue of If damages. any her tendency information has a to make the alleged symptoms cause of the probable, more or less it be would admissible, relevant and provided by unless otherwise law. Rules M.R.Evid. Counseling Unrelated Prior Stressors and Court, pursuant 403, M.R.Evid., The District granted to Rule excluding
Kristin’s motion in limine regarding evidence life other stressors prejudicial because it would be than probative. more The life stressors included Kristin’s parents’ divorce in her divorce issues, custody work and child did issues. State not offer an expert opinion prior that it was probable more than not that stressors may have contributed to or present were relevant to Kristin’s claims. accident, ¶68 Before Hunter’s Kristin counseling received brief in 1983 or 1984 produce and also in 1992. Kristin was portion able to of these counseling records but claims others were unavailable because the counseling long ago. occurred so has no offered evidence to dispute this. produced Kristin also some more recent redacted counseling records. The granted District Court Kristin’s motion excluding counseling
limine evidence unrelated because remote, irrelevant, information it was to Kristin’s too unrelated *16 probative. prejudicial and more than presents cursory argument appeal, paragraph On the State two any
that it is entitled to discover evidence of
alternative causation for
privacy by putting
claims
that she
her
to
right
Kristin’s
waived
her
mental
placed
emotional state at issue
this suit. Kristin
her
injury.
physical
claiming damages
type
condition at issue
for this
of
However, by
Jaap,
doing
a causal connection between Kristin’s prior probable this counseling stressors or the records. Absent more link, present than causal the not to alternate not State is entitled regarding other and is also not causation evidence stressors already Kimes, any access entitled to more records than it has to. 110; Newville, 333, 705 883 P.2d at Mont. at P.2d at fishing is entitled embark an unbridled upon The State life, years into from the expedition spanning Kristin’s far-removed her present attempt in an some alternate cause for fashion Moreover, disputed State has not Kristin’s current claims. counseling she unable access other records. assertion that prior counseling precluding We affirm the trial court’s order records and evidence of other stressors.
Prior Fall trial, cross-appeals the remand for a new Kristin the event we prior location denying in limine evidence of a fall at same motion damages, trial on we fall. we for new as Hunter’s Because remand cross-appeal. examine her excluding in limine granted District Court the State’s motion The related prior prior fall fall. court concluded
evidence duty negligence. specifically It only and breach elements the issue of was excluded because prior noted that evidence of the fall the fall did not relate to Kristin’s already had been fixed and liability prior fall did not stated that impact. direct court emotional shock distress because Kristin’s emotional directly contribute to claim must emotional distress negligent in a infliction of suffered upon plaintiff from the impact result from a direct emotional sensory contemporaneous perception accident, compared as However, its learning of the accident from others after occurrence. High Country Independent is with Sacco v. reasoning inconsistent 209, 232, 896 411, 425, Press 271 Mont. in which we stated negligent “[a] that cause of action for infliction of emotional distress will arise circumstances where or emotional under serious severe plaintiff reasonably consequence distress to the was the foreseeable negligent defendant’s act omission.” is not required One be bystander at an accident to have a valid claim for emotional distress damages. It is one a court it factor can consider but Wages Am., Nat’l determinative. First Ins. Co. recognized prior We have may evidence of accidents be negligence. Kissock,
offered for various proving reasons besides 15¶ (evidence fact, accidents be admitted to show cause defect, notice of a condition or or dangerousness existence of a particular condition, physical possibility and the might a condition cause an type alleged). accident similar to the Kristin claims that *17 learning prior witnessing of fall soon after fall her psychological injuries. contributed to Accordingly, contends, she prior duty fall relates to as well as and breach. Kristin’s learning prior claim psychological/emotional of the fall made her of probable. 401, such, distress or less more Rule M.R.Evid. As it was damages. relevant to the issue of To the extent the District Court excluded of the fall evidence for the reason that there no contemporaneous perception, note, however, we reverse. We objected being also to evidence of the other fall as more prejudicial probative than under question Rule M.R.Evid. That was not in proceedings addressed appropriately below and more left to the of discretion the District Court on remand. jury Issue 7: Court in its Whether District erred instructions
concerning claims of emotional distress and loss of established course of life? A trial determining give court has broad discretion in whether to a proposed City Falls, jury instruction. Great 2003 Christofferson of 469, 9,
MT 74 P.3d 9. We not reverse will ¶ ¶ ¶ a jury district court on the its abuse of basis of instructions absent an Christofferson, jury discretion. “In reviewing particular 9. whether a properly given refused, instruction was or the instruction we consider in entirety, its as well in the other instructions as connection with given and with the introduced 9 Christofferson, evidence at trial.”
(citation omitted). jury in a party alleging error instruction must erson, Prejudice 9. will not be found prejudice. demonstrate Christoff entirety jury applicable in case if the instructions their state law. erson, 9.¶ Christoff provides monetary compensation every law for Montana unlawful who from act omission
person suffers detriment or produces 27-1-202, distress its own another. Section MCA. Emotional Damages (permitted for unique damages. compensatory can be both distress) negligent punitive intentional infliction of or emotional (permitted intentional infliction ofemotional distress to address the for conduct). Sacco, 238, 896 culpability a 271 Mont. at of defendant’s Damages ability pursue 429. for loss an established course of at compensate impairment ability pursue life for one’s chosen life, earning the loss one’s pursuits separately calculated from Ry. capacity. Mullery v. Great Northern Co. Mont. contention, Contrary P. State’s a claim for the loss to the ability premised course of life need not be pursue established recover, in the physical plaintiff limitation. A is “entitled case on injuries, compensation a reasonable the destruction permanent of life.” Rasmussen v. capacity pursue of his an established course Sibert In expert medical was introduced trial this well- symptoms. expert Kristin’s PTSD stated
which described injury including brain recognized physical components, mental has are chemistry symptoms PTSD and hormone level alterations. upon physical impact response to an emotional trauma that leads to the brain. negligent claim for settling jury instructions Kristin’s distress, heightened
infliction of emotional the court reasoned that only applies distress Sacco cases standard of severe serious Since Kristin suffered physical injury. is no or mental where there the court concluded the Sacco resulting physical impact, PTSD with the court apply. Accordingly, did not severe or serious standard *18 she suffered emotional only prove Kristin had to instructed that fall. The State injury as a result of Hunter’s psychological distress or did they because instructions were incorrect contends that the or standard meet severe serious that the emotional distress require Torts, 46, 2nd Sacco, § cited Restatement required by which at 425. j. Sacco, 896 P.2d comment 271 Mont. take this damages, new we remanding are for a trial Since we must that emotional distress clarify rule from Sacco
opportunity to physical be severe or serious. cases where there is manifestation PTSD, distress, bodily resulting harm from emotional such as this bodily harm sufficient evidence that the emotional distress suffered is
by genuine is in plaintiff explained and severe. As the Restatement Torts, k, “[njormally, 2nd of comment severe emotional distress § by shock, illness, bodily harm, is accompanied or followed or other genuine which affords distress evidence that itself added.) (Emphasis only severe.” This manifestation assures harm, genuine claims, compensated. fraudulent will be permitted The State also claims that Kristin is not to recover ability pursue for both loss of an established of life course However, and damages for emotional distress. has failed to State provide any supporting Contrary law contention. State’s claims, recovery no previously recognized dual has occurred. We have separate, independent claims for as emotional distress claims and we Sacco, continue this rule. Mont. at P.2d at 429. Loss of separate established course of life and emotional distress are two differing distinct claims with compensable elements and different damages. Hence, evidence, if supported by the a separate recovery is allowed damages overlap for each. Whether the is a question proof. For PTSD example, may upon ability or not impact one’s pursue an established of life. course incorrectly The court instructed jury regarding emotional correctly
distress but instructed regarding loss established course of life. A jury instruction on emotional distress should state that applies severe and serious standard and that this standard can be met by proof illness, shock, that emotional distress resulted in or other bodily harm. excluding Issue 8: Whether the District erred Court
videotapes of Hunter? A district court has admitting excluding broad discretion in Rocky Flooring (1997),
evidence. Mountain Ent. v. Pierce 286 Mont. 282, 290, 951 P.2d 1331. to admit The decision whether videotape evidence lies in the discretion of the trial court will not be reversed absent manifest abuse of discretion. Palmer Diacon 515, 523, v. Farmers Exch. 233 Mont. Ins.
For an exhibit to be admissible for demonstrative it must purposes supplement event, spoken description transpired a witness’s clarify issue, probative prejudicial. some case and more than be Ingraham, *19 case, footage, introduce as sought In this the State to video
¶84 child, evidence, showing not well-adjusted Hunter as demonstrative suffering any attempted deficits. The to introduce State testimony grandmother. The District through evidence the ofHunter’s supplement refused the it Court to allow evidence because did and, noted, tape did clarify issues as court of accurately tape life. The from hours depict Hunter’s edited as showing best-happy the best of the such home videos occasions swimming. birthdays holidays and fun outdoor activities like appeal, argues attempted On the State that because it ¶85 testimony that grandmother’s the videotape introduce with Hunter’s life, provided it tape depicted happier moments of claimed adequate tape foundation for the admitted. The State be well-adjusted tape accurately portrays Hunter as a happy, that tape The Kristin’s sought child. State introduce the counter that, condition, she emotional assertions due to Hunter’s suffered however, State, The has to establish that the exclusion distress. failed videotape fails videotape manifest discretion. The ofthe was a abuse of satisfy Ingraham. Ingraham, set out in requirements ¶ Therefore, videotape. we affirm the exclusion of jurors dismissing erred in not Issue 9: Whether the District Court for cause? for challenge for cause grant a trial “court’srefusal to We review Co., Ins. Reff-Conlin’s, Inc. v. Fireman’s Fund
an abuse discretion.” 25-7- 142, 16, 45 16. Section 16,309 ¶ cause. 223, MCA, grounds posing challenges for provides specific for a state 25-7-223(7), MCA, “the existence of The State that § contends either evincing against or bias in favor of juror enmity mind in the trial, days saw jurors, before the party[,]” was satisfied because several prior that fall. newspaper a local article mentioned bias, interviewed against the District Court In order to ensure he that juror One who stated eight jurors who had read article. ofhis mind was excused keep the fall out was not sure if he could keep jurors they would be able for cause. The seven stated other The has not demonstrated fairly mind and decide case. State open “evincing mind remaining jurors had a state of any of these reading as a result of against party” in favor of either enmity or bias 25-7-223(7), MCA. the article. Section argument is support in its only on case the State relies have juror that a should In Inc. we determined
Reff-Conlin’s, debtor-creditor the existence excluded because been another, for satisfying specific, statutory grounds more relationship, Inc., factually 21. That dissimilar to challenge. Reff-Conlin’s, case specificgrounds challenge because no for cause have case at bar been has not that the District Court established. shown denying challenges abused its for cause. affirm. discretion We conclusion, we for a trial reverse remand new three, light rulings five, six. of our on issues RICE JUSTICE concurs. concurring dissenting.
JUSTICE WARNER *20 Relating agree I in Issues to concur 1-5 and 7-9. Issue I also ¶91 of the of prior Library, evidence fall another child the MSU if admissible, subject such were be discretionary would to a Rule M.R.Evid., analysis. However, ordering prior may that the evidence of the fall be
admitted, prove causation, to or damages, not fault a serious but is opinion, mistake. As noted in the it is Comb’s true that Sacco and Wages propositions stand for the that a for negligent claim infliction of emotional distress or will arise where serious severe emotional distress reasonably consequence was a foreseeable of a defendant’s negligence, plaintiff and that the does have to bystander not be a However, have a valid claim. these presented by are not the issues the Here, facts here. the majority giant leap of this Court takes a forward in the person law and determines that when a is as negligent, the State apparently fall, was in the instance of it prior is foreseeable persons separate other who a subsequent, observe results of negligent may or damages, actually act omission suffer increased by incident, already caused the first because their severe emotional they prior Thus, are increased when hear of negligence. such may changed we have now law in Montana and held that it is may an act constituting negligence foreseeable that or omission result other, yet in damages uninjured persons, owed as for an indefinite time in negligence may the future. We have held that such initial be admissible, along omissions, with subsequent negligent other acts or damages, though as emotional evidence of even such do not arise from injured And, the same or person. accident even concern the same person claiming any relationship such damages need not have with or person actually injured connection in the incident. A first negligent damage subsequent act or omission which causes emotional damage really could somehow be deemed to be the cause of the negligent suffered result of the as a first act omission. rule, I apparently To summarize what new with which is Montana, negligent in who has
emphatically disagree, person is all duty, negligence already duty, his has breached that other may who in the future suffer an increase in their emotional persons negligent distress of such act or omission. Cause is established because severely subsequently emotionally damaged person learns when proven damages. prior negligence, and all that has to be is Further, prior apparently pleadings act not be included in the need though damages. even it is the cause of say; Where will it end? As Schultz’s Charlie Brown is wont damages she as a result Good Grief! Kristin deserves the suffered accident, every stairway campus. I other accident on Opinion dissent from this Court’s that evidence fall be evidentiary admitted if the District Court finds that its value outweighed by prejudice its the State. joins foregoing in the
CHIEF JUSTICE GRAY concurrence dissent. dissenting part. concurring part
JUSTICE COTTER
3(2), 4, 6, and
disposition
I concur in the Court’s
of Issues
3(1)
through
disposition
10.1
from the
Issues
and 5.
dissent
Court’s
I
affirm
Court.
judgment
would
the verdict
District
3(1)
question
of whether the District Court
presents
Issue
request
it
for the
its discretion when
denied the defendants’
abused
As
and mental health records.
production
all of Kristin’s medical
out,
following
its
an in
points
the District Court entered
Order
Court
*21
mental
care records in
inspection
camera
of the medical and
health
the
the in camera
question.
consistently upheld
37. We have
use of
Burns,
effectively
parties.
as a
that
both
See
protects
review
tool
Mont,
(1989),
Thiel
236 Mont.
1319-20;
at
830 P.2d at
State v.
351, 781
343;
751; and In
v. Mix
239 Mont.
P.2d
State
Burns,
in
186. As we stated
Lacy
re
780 P.2d
one of
discovery
probative
of
that are not
is
the
“[plrohibiting
materials
discretionary powers.”
which
their
judges
functions of trial
is within
Burns,
that the
State’s witness. We review a determine court whether the district abused its discretion. 51.1 would conclude that no abuse of discretion was shown. denying IME, State’s for an District request Court
found, records, upon based the medical that the State had known of September, rejected It Kristin’s PTSD since therefore the State’s contention that her disclosure of the condition in late 2001 was surprise. This that early Court concludes at 55 disclosure of the containing diagnosis records the PTSD was insufficient notice that as a diagnosis Kristin intended to use basis for her claim. draw, entirely This is fine a for especially too distinction us to when applying is, an abuse of discretion standard of review. The fact as the issue, brief opposing State conceded its reconsideration of the IME early in proceedings claiming the State was aware Kristin was that distress, depression anxiety, she suffered from emotional and disturbance, injuries. emotional as a her son’s result of fall me, medical diagnosis. records contained the technical It seems to apparently well, it seemed to the District Court as disclosures, given discovery combination of well advance deadlines, provided the ample arrange State with time notice IME prior for an to the deadline disclosure expert witnesses. While greater the Court feel that latitude should have been by Court, shown the District it not our is function overturn discretionary ruling in the I supported the facts record. uphold would the District Court’s on this exercise discretion issue. Finally, I would affirm the District refusal to Dr. Court’s allow testify. scheduling required Price to The District Court’s order filing of a “comprehensive proposed expert’s statement testimony’ comprehensive grounds and “a for the statement” opinion, 15,2001. expert’s on or before Dr. Price’s disclosure November any any did less opinion, grounds of November not list much opinion. supplementary response for an filed until circumstances, month later. Court was well Given these District testimony. within its discretion to strike Dr. Price’s We have consistently held that it is within the district court’s discretion *22 comply scheduling impose sanctions for the failure to with a court’s orders. McKenzie v. Scheeler did. There was no
1168, 1172, 1175. the District Court This is what abuse of discretion. reasons, I the District Court’s foregoing would affirm For 3(1) in Issues and would affirm of matters raised
disposition I refusal to dissent from our do so. judgment of District Court. join JUSTICE JUSTICE NELSON and REGNIER COTTER. concurrence and dissent of JUSTICE