I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
NANCY A . FELLER,
P l a i n t i f f and A p p e l l a n t ,
-VS-
JAKE FOX,
D e f e n d a n t and Respondent.
APPEAL FROM: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l District,
I n and f o r t h e County o f Y e l l o w s t o n e ,
The H o n o r a b l e Diane G . R a r z , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J o s e p h P . Hennessey; Hennessey L?.w O f f i c e , B i l l i . n g s ,
Montana
F o r Respondent:
1,awrence R . M a r t i n ; F e l t & M a r t i n , n i l l i n g s , Montana
James D . Walen; K e e f e r , Royhal, Hanson, S t a c e y & v7al.en,
B i l l i n g s , Nontana
S u b m i t t e d on B r i e f s : March 2 , 1989
Decided: A p r i l 2 5 , 1989
0
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Nancy A. Feller (Feller) appeals the April 12, 1988
order of the District Court of the Thirteenth Judicial
District, Yellowstone County, denying her motion for a new
trial. Feller also appeals the court's denial o= her motion
in limine to exclude the testimony of Dr. Gary Ray. Having
examined the r e c o r d and the law we affirm the rulings o f t h e
District Court.
This case arose from an automobile accident which
occurred on April 20, 1986, at an intersection in Billings,
llontana. Feller, a passenger in her own 1977 Chevrolet
Nova, sustained injuries when her vehicle was rear-ended by a
vehicle driven by the respondent, Jake Fox (Fox). Feller was
transported to a Billings hospital by ambulance, treated for
trauma to her neck and hack an2 then released. This trauma
condition is more commonly known as whiplash. In the
following days and months Feller consulted with her family
physician in Rridger, Montana, several other doctors in the
Billings area and a physical therapist. She complained of
pain in the neck area and severe, disabling headaches.
One of the doctors Feller contacted was Dr. Gary Ray,
an osteopathic physician. Feller made an appointment with
Dr. Ray and was examined by him three days after the
accident. Feller indicated on a patient information sheet
that she had been referred by a Dr. Berg, who had an office
in the same building. Based upon the examination, which
lasted 15 to 30 minutes, Dr. Ray found Feller's symptoms were
exaggerated. As she was already being treated by several
other physicians, Dr. Ray declined to treat her and forwarded
a copy of his findings to her regular physician.
In October of 1986, Feller filed suit against Fox
seeking damages for her physical injuries and pain, mental
anguish and emotional distress, and medical and non-medical
expenses. The complaint also sought compensation for lost
wages and for damages arising because of her potential-ly
permanent inability to engage in her normal work or
activities.
Prior to trial, Fox admitted liability and then filed
an offer of judgment in the am'ount of $20,000. Feller,
however, declined this offer o+ judgment and the case
proceeded to trial before a jury on the issue of damages.
Feller filed a motion in limine prior to FOX'S
case-in-chief, seeking to exclude the testimony of Dr. Gary
Ray. The District Court denied the motion and Dr. Ray's
deposition testl'mony was read into the record. The jury
returned a verdict in favor of Feller in the amount of
$7,837.49. Feller filed a motion for a new trial pursuant to
§ 25-11-102 ( I ) ,(2),(6) ( ,
,7) MCA, alleging irregularity in the
proceedings, misconduct of the jury, insufficiency of the
evidence to justify the verdict, that the verdict was against
law, and error in law occurring a t trial. The court denied.
the motion for a new trial after finding that the motion was
procedurally flawed for failure to include juror affidavits
and. further, that substantial credible evic?ence existed to
sustain the jury's verdict. From this holding Feller
appeals and presents the following issues for review:
(1) Did the District Court err in denying Feller's
motion in limine to exclude the testimony of Dr. Ray?
(2) Did the District Court abuse its djscretior, in
denying Feller's motion For a new trial?
( 3 ) Did the Distrj-ct Court. abuse its discretion in
refusing to give Feller's offered jury instructtons,
numbers 4 a r ? P :
In Feller's first issue she claims the District Court
incorrectly allowed the introduction of Dr. Ray's deposition
testimony. Initially, we note that "questions of the
admissibility of evidence are left largely to the sound
discretion of the trial court . .." Rrittorl v. Farmer's
Insurance Group (Mont. 1986), 721 P.2d 303, 315, 43 St.Rep.
641, 654; Cooper v . Rosston (Mont. 1988), 756 P.2d 1125, 45
St.Rep. 978; Cech v. State (19791, 184 Mont. 522, 604 P.2d
97. The district court's decision in such evidentiary
matters will be subject to review only in cases of manifest
abuse of that discretion. Britton, 721 P.?d at 315: Cooper,
756 P.2d at 1127.
The purpose of the motion in limine is to prevent the
introduction of evidence which is irrelevant, immaterial or
unfairly prejudicial. Wallin v. Kenyon Estate (1974), 164
Mont. 160, 165, 519 P.2d 1236, 1238. This Court thus has
held that the authority to grant or deny a motion in limine
"rests in the inherent power of the court to admit or exclude
evidence and to take such precautions as are necessary to
afford a fair trial for all parties." Wallin, 519 P.2d at
1238.
Feller claims the court ahused its discretion in
denying the motion in 1i.mine for the following reasons. Dr.
R:'
a r s testimony did not tend to prove or disprove any of the
elements of this case. Dr. Ray was not Feller's attending
. .
phys~clan. Dr. Ray was not hired by either the plaintiff or
defendant as an independent expert. Dr. Ray's testimony
would be hiqhly prejudicial and woul-cj.have no true value to
the litigation. And, Dr. Ray only s a w Feller for fifteel-r
minutes on one occasion.
The trial in this case dealt with two central issues.
As the 6efendant admitted liability, the jury was charged
w j t h determining the e ~ t e ~ of Feller's i-njuries which
t
resulted from the accident and what compensation was
reasonable and necessary to fully compensate her for the
injuries sustained.
Dr. Ray's testimony was presented for the purpose of
impeaching the credibility of Feller and Dr. Asbury, her
treating physician. Specifically, Dr. Ray's testimony
contradicts their testimony regarding the extent of Feller's
injury three days after the accident. In Cooper, this Court
examined a district court ' s exclusion of testimony relating
to a witness's credibility. Cooper, 756 P.2d at 1127-1128.
There we examined 5 26-1-302, MCA, which provides that while
a witness is presumed to speak the truth, that presumption
may be overcome "by any matter that has a tendency to
disprove the truthfulness of a witness's testimony;"
including "evidence contradi.cting the witness's testimony."
Section 26-1-302(9), MCA. We also founz Rule 401, M.R.Evid.,
provides that:
"[rlelevant evidence may include evidence
bearing upon the credibility of a witness
or declarant. " Credibility evidence,
though relevant, "may be excluded if its
probative value is substantially
outweighed by the danger of unfair
prejudice. . ." Rule 403, M.R.Evid.
Cooper, 756 P . 2 d at 1128. As the jury is the exclusive judge
of a witness's credibility, S 26-1-302, MCA, the district
court is obliged to admit evidence bearing on that
credibility. - Cooper, 756 P.2d at 1128.
Dr. Ray's testimony in this case goes directly to the
credj.bility of witnesses for the appellant. As such, his
testimony is relevant. Rule 401, M.R.Evid. Further, his
testimony is probative of the issues before the court on the
extent of Feller's injuries. We find that this testimony is
not so unfairly prejudicial that it substantiallv outweighs
its probative value. Rule 403, M.R.Evid.; Cooper, 756 P.2d
at 1128. The record shows Feller herself solicited the
additional medical examination after the accident. Her own
physician testified that his examinations were routinely
completed in 10-15 minutes. The fact that the examination
failed to support her position is insufficient to exclude
this testimony. We find the District Court correctly allowed
the introduction of Dr. Ray's deposition.
Feller's second contention is that the District Court
abused its discretion in denying her motion for a new trial.
Feller's primary complaint on this issue is based upon her
contention that the jury returned an inadequate damage award..
She maintains the award of $7,837.49 is contrary to all the
evidence presented at trial.
Recently, this Court reviewed another district court's
denial of a motion for a new trial. Tope v. Taylor (Mont.
1988), 768 P.2d 845, 45 St.Rep. 2242. There we rej-terated
that the decision to grant or deny a new trial is within the
sound discretion of the trial court, and this Court will not
overturn, absent a showing of manifest abuse of that
discretion. Tope, 768 P.2d at 849-850, 45 St.Rep. at 2248,
citing Walter v. Evans Products Co. (1983), 207 Mont. 26, 672
P.2d 613. "The lower court's discretion to grant a new trial
for insufficiencv of the evidence is exhausted when it finds
substantial evidence to support the verdict." Tope, 768 P.2d
at 850, 45 St.Rep. at 2248, citing Lindquist v. Moran (1983),
203 Mont. 268, 662 P.2d 281. We are also constrained to view
the evidence in a light most favorable to the prevailing
party at trial, when making our determination of whether the
record supports the adequacy of an award. WaI.1-s v. Rue
(Mont. 1988), 759 P.2d 169, 171, 45 St.Rep. 1451, 1455,
citing Lauman 17. Lee (Monk. 1981), 626 P.2d 830, 833, 41
St.Rep. 499, 5 0 2 .
In the present case, the parties presented conflicting
medical testimony on the extent of Feller's injuries. This
conflict of the evidence was also present in the lay witness
testimony. When faced with a similar conflict. under similar
.
c
,acts, this Court stated:
Apparently the jury concluded that in
certain medical aspects, testimony
submittec? in behalf of the defendant was
more believable than that of the
plaintiff. That w a s the function of the
jury. As we review this evidence
submitted on behalf of the defendant, we
conclude t.hat it was clearly substantial.
The evidence which supports the verdict
was presented by a well-qualified medical
doct.or, who was adequate!-y examined and
cross-examined to establish the
contentions on the part of the defendant
with regard to the nature of the injury
and the degree of disability. We
conclude that there clearly was
substantial credible evidence to support
the verdict of the jury.
Rrown by Rrown v. blarkve (1985), 216 Mont. 145, 140, 700 P.2d
As in Brown, we conclude substantial credible evidence
exists to support the verdict of the jury. Dr. Ray gave an
opinion as to the extent of Feller's injuries after examining
her history, noting her symptoms and complaints, performing
a 15-30 minute examination of her three days after the
accident and viewing x-rays of her taken shortly after the
accident. His opinion was that:
Having gone over her x-rays and I see no
abnormalities in t-he skull or cervical
spine and I find no hard evidence of
neurologic deficit. I do find evidence
that the patient is exaggerating her
symptomatology and that she is refusing
to move her neck and is claiming far more
than could be related to the rear-end
motor vehicle accidert.
The fact that she is receiving
medications from three physicians, none
of whom know what is being done by the
other ones, and I told her that I did not
want to get involved in her medical care,
end that she was evaluated only and no
treatment was rendered. A copy of this
is being sent to Dr. Asbury, whom the
patient says is her primary treating
physician.
Dr. Ray's testimony is supported by the video
deposition testimony of Dr. Meyer that Feller was not
suffering 6ue to injuries which he would attribute to the
accident, hut rather to c?epression caused hy the extended
medication prescribed by Dr. Asbury. Dr. Meyer examined
Feller approximately 18 ncrt-hs after the accident when Dr.
Ashury referred Feller to him for a neurological examination.
Additionally, Fox introduced the testimony of a private
investiga.tor who observed Feller at work on two separate
occasions shortly before the t.rial. Pis testimony conflicted
with that of Feller and others who testified on her abilities
to complete certain physical tasks at work. Also, on
cross-examination of Feller at trial, Fox's attorney brought
the jury's attention to a number of discrepancies between
Feller's trial testimony and previous deposition testimony.
Fox introduced sufficient credible evidence for the
jury to conclude Feller's injuries were not as extensive as
she herself claimed. We find no manifest abuse of discretion
on the part of the District Court in denying Feller's motion
for a new trial.
Feller's final contention is that the District Court
erred. in failing to give plairtiff's offered jury
instructions, numbers 4 and 8. When examini.ng whether or not
certain jury instructions were properly given or refused, we
must consider the jury instructions in their entirety, and in
connection with the other inst.ructions given and the evidence
introduced at trial. Brothers v. Town of Virginia City
(1976), 171 Mont. 352, 359, 558 P.2d 464, 468. Where the
instructions presented to t.he jury state the applicable law,
"a party cannot claim reversible error as to the giving or
denying of certain instructions." - citing Franck v .
Id.,
Hudson (1962), 140 Mont. 480, 373 P . 2 d 951.
Our review of the jury instructi.ons leads us to
conclude that the instructions adequately covered the law
applicable to the case. Feller's proposed instruction number
4, that proof may be based on subjective symptoms, was
adequately covered in the court's instructions numbers 3, 5,
11, 15, a-nd 18. Further, the District Court correctly found
the proposed instruction had no basis in Montana law ("i.e. ,
sources for the instruction were from California cases with
the most recent being 1963"). Feller's proposed instruction
number 9 on loss of established course of life and expenses,
was offered without citing to any authority. Additionally,
number 8 was adequately covered by the court's instructions
numbers 10, 1 2 , 13, 14, 15 and 16.
F e do not find reversible error from our review of the
J
jury instructions. Finding that the testimony of Dr. Ray wa.s
properly admitted, that substantial credible evidence existed
supporting the jury's lrerdict, and that the jury was
adequately instructed on the applicable law, we affirm the
District Court's denial of appellant's motion in limine and
motion for a new trial.
Affirmed.
We c o n c u r :