No. 90-362
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
FRANZ E. LINDEN and PATRICIA
K. LINDEN,
Plaintiffs and Appellants,
v.
JASON D. HUESTIS, MAR 6 1991-
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas L. McMittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James R. Walsh, Smith, Walsh, Clarke & Gregoire,
Great Falls, Montana
For Respondent:
Joseph R. Marra, Marra, Wenz, Johnson & Hopkins,
Great Falls, Montana
Submitted on briefs: 01/24/91
Decided: 03/06/91
Filed:
Justice Terry N. Trieweiler delivered the Opinion of the Court.
The plaintiffs, Franz E. Linden and Patricia K. Linden sued
the defendant to recover damages resulting from injuries that Franz
Linden allegedly sustained when the motor vehicle he was operating
was struck from behind by the vehicle being operated by the
defendant. The defendant admitted liability for the collision, but
denied that the plaintiffs were damaged to the extent they claimed.
Following a jury trial, a verdict was returned finding that the
plaintiffs were not damaged as a result of the defendant's
negligence. Judgment was entered for the defendant. Plaintiffs1
motion for a new trial was denied. From that judgment and order,
the plaintiffs appeal. We reverse.
Plaintiffs raise the following issues on appeal:
1. Was there sufficient evidence to support a verdict for the
defendant?
2. Should the verdict for the defendant be set aside because
of juror misconduct?
3. Did the District Court err when it admitted testimony from
the defendant's expert to the effect that plaintiff was motivated
by considerations of secondary gain?
4. Did the District Court err when it admitted evidence that
plaintiff had consumed alcoholic beverages prior to the collision
in question even though there was no allegation that plaintiff's
conduct contributed to a cause of the accident?
5. Did the District Court err when it admitted evidence of
the price plaintiff was asking for the sale of his dental practice?
2
6. Do comments by defense counsel which may have suggested
that the defendant was uninsured require reversal?
7. Did the District Court err when it instructed the jury on
a portion of the law pertaining to Patricia K. Linden's retirement
benefits?
Summary of the Facts
On February 12, 1988, the plaintiff, Franz Linden, was
operating his motor vehicle in an easterly direction on Tenth
Avenue South in Great Falls. After stopping for a red light and
before he could resume movement, he was struck from behind by the
vehicle operated by the defendant. Plaintiff filed his complaint
against the defendant on December 21 of that same year. He claimed
that he had been injured, incurred medical expense and that his
earning capacity was impaired as a result of his injury.
Defendant originally denied liability and alleged that the
plaintiff had been contributorily negligent. However, he later
amended his answer and admitted that his negligence caused the
collision. He also withdrew his affirmative defense alleging that
plaintiff was contributorily negligent.
The complaint was also amended by adding Patricia K. Linden,
who claimed damages for loss of consortium.
In the Pretrial Order, plaintiffs alleged that Dr. Linden had
sustained muscular, vertebral and intervertebral disc injuries in
the area of his neck. They also alleged that as a result of those
injuries, he was forced to sell his dental practice and had,
therefore, been unemployed since July 1, 1989. The defendant
conceded that Dr. Linden may have sustained a I1minor whiplash
injuryw but contended that the damages plaintiffs claimed were far
in excess of the actual damages they sustained.
At trial, Franz Linden testified that he had experienced neck
symptoms since the day following his collision with the defendant
and that his symptoms were aggravated by the awkward position in
which he was forced to work as a dentist. After working in a great
deal of discomfort for 16 1/2 months, he testified that he quit the
practice of dentistry on June 30, 1989 and sold his practice to
another dentist on August 15 of that year. Plaintiffs called an
orthopedic surgeon and two neurosurgeons who had treated or
examined Franz Linden for his neck complaints. They testified in
person or by deposition and gave various opinions regarding the
nature of his injury. It was described as a soft tissue injury,
a herniation of an intervertebral cervical disc, and an injury to
a cervical facet joint.
The only other medical witness was the defendant's consultant,
Dr. Peter Fisher, from Seattle, Washington. His testimony was
internally inconsistent. During direct examination, he expressed
the opinion that plaintiff may have sustained a neck sprain when
his vehicle was struck by the defendantlsvehicle. However, during
cross-examination, he expressed the opinion that Franz Linden was
uninjured as a result of his collision with the defendant.
After four days of trial, the jury returned its verdict
finding that plaintiffs were not damaged as a result of the
defendant's admitted negligence.
After judgment was entered, plaintiffs filed their motion for
a new trial and in support of that motion submitted the affidavit
of Jack Stimac, one of the jurors. Mr. Stimac stated in his
affidavit that during deliberations, the jury discussed a
television show which had been broadcast the night before and which
indicated that many dentists were selling their practices because
they were having a difficult time making money. He also stated
that one of the jurors told the other jurors that she had seen the
plaintiff playing golf in Great Falls during the summer of 1989.
The testimony at trial had been that he had chosen not to play golf
in Great Falls during that summer because of the discomfort he
experienced from his injuries.
We reverse the judgment entered for the defendant and the
District Court's order denying plaintiffs8 motion for a new trial
based upon the inadmissible testimony of Peter Fisher, M.D., to the
effect that Franz Linden's complaints of pain were motivated by
considerations of "secondary gain." As a result, we remand this
case to the District Court for a new trial. Therefore, we do not
find it necessary to arrive at a decision regarding the sufficiency
of this jury's verdict or to decide whether this verdict should be
reversed based on juror misconduct.
Presuming, however, that some of these same evidentiary and
instructional issues which are raised on appeal will again be
issues during retrial, we will discuss those issues for the
guidance of the parties and the District Court.
Peter Fisher has been a doctor of medicine since 1948. He has
specialized training in internal medicine and in a field that he
refers to as "automotive medicine," which he describes as the
evaluation of highway injuries. He was engaged in the private
practice of medicine in Seattle for 24 years. However, since 1980,
his practice has been limited to serving as a consultant to
attorneys regarding injuries sustained from automobile accidents.
He has testified on over 200 occasions.
Dr. Fisher was called as an expert witness by the defendants
during the trial of this case. He had not examined nor treated the
plaintiff and in fact had never seen nor met the plaintiff until
he walked in the courtroom to testify. Any information he
possessed about the plaintiff or his physical condition was based
upon a review of other doctors' depositions, medical records, auto
repair bills, photographs of the vehicles, police reports, and
various forms of radiological film taken of the plaintiff's spine.
He gave his opinion regarding the extent of the impact when the
defendant's vehicle collided with the plaintiff's vehicle and he
gave his opinion regarding the type of injury plaintiff may
possibly have sustained from that impact. He also testified
regarding various other medical problems in Franz Linden's medical
history which would have an impact on his future health and life
expectancy.
Prior to trial, plaintiffs filed a motion in limine asking the
court to rule in advance of trial that Dr. Fisher would not be
allowed to testify that there were economic reasons for Franz
Linden's symptoms until after a foundation had been laid, and
plaintiffs' attorney was given an opportunity to object to that
testimony. Apparently, although the record on this point is
unclear, plaintiffs' motion in limine was denied.
Dr. Fisher expressed the opinion that plaintiff's present
complaints were a result of "chronic pain syndrome." When asked
during direct examination to describe what he meant by chronic pain
syndrome he explained that:
Chronic pain syndrome is a condition generally recognized
by doctors of continuation of pain, long after it would
seem logical that it would occur ... associated with
what's called secondary sain on either a conscious or
subconscious level where it serves a purpose to h e l ~us
with work, home or life or other thinss. It's one of
the bissest problems we have today, chronic pain
syndrome, because it s not physical injury. It's
complaints of pain not explainable any lonser on the
trauma. (Emphasis added.)
When asked during cross-examination what he meant by
"secondary gain," he stated,
I meant secondary gain being changes in our lifestyle,
things we feel capable of doing on a conscious level
which means they're doing it purposefully or more
commonly on a subconscious level as part of our symptom
complex that suddenly solves some of life's problems,
sex, marriage, work, money--I was giving the litany of
the usual things, not indicatins they specificallv apply
here.
But the secondary gain is involved in litigation and
being waited on, and its the I've got a headache for sex
and whatever. Its a pretty common scenario. (Emphasis
added. )
Rule 702, M.R.Evid. regarding testimony by experts provides
that:
If scientific, technical or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine the fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training
or education may testify thereto in the form of an
opinion or otherwise.
By education, training and experience, Dr. Fisher was
qualified as a medical expert. As such he was qualified to explain
to the jury what kind of objective signs or subjective symptoms are
associated with various injuries. Based upon his review of the
plaintiff's records, he was qualified to give his opinion that
those signs and symptoms were not present in this case and that,
therefore, plaintiff was not at the present time suffering from an
injury. However, he was no more qualified than anyone on the jury
to speculate about the plaintiff's possible motivation for making
complaints which Dr. Fisher felt could not be substantiated by his
physical findings. This is especially true where, as here, Dr.
Fisher had never met nor talked to plaintiff; and, when this
conclusion was not suggested by any of the health care providers
whose records and testimony he reviewed. He was not qualified as
a human polygraph. His testimony in this regard was not an
appropriate expert opinion.
We have had one prior occasion to consider opinion testimony
regarding "secondary gain." In Dahlin v. Holmquist (1988), 235
Mont. 17, 766 P.2d 239, this Court was presented with facts similar
to those which are present in this case. The plaintiff in that
case also claimed to have sustained a neck injury as a result of
an automobile accident and prior to trial moved in limine to
exclude all testimony regarding "secondary gainw by Dr. James
Lovitt. The trial court overruled the motion in limine and
admitted that testimony. We remanded that case for a new trial for
the following reasons:
... In this case as in Kuiper v. Goodyear Tire (1983),
207 Mont. 37, 673 P.2d 1208, the failure of the trial
court to exclude such evidence prejudicial to the
defendant permitted the jury Itto indulge in improper
speculation and guess~ork.~ Kui~er,673 P.2d at 1217.
The failure to exclude all secondary gain testimony
constituted an error of sufficient magnitude to warrant
a new trial. Consequently, the District Court erred in
denying plaintiff's motion for a mistrial.
Dahlin, 766 P.2d at 241.
In this case, liability was admitted and Dr. Fisher's
testimony was the only testimony which questioned Franz Linden's
injury. Therefore, his unqualified opinion regarding secondary
gain did prejudice the jury and in effect plaintiffs1 right to a
fair trial. For that reason alone this case is remanded to the
District Court for a new trial.
On appeal, the plaintiffs have raised several evidentiary and
instructional issues which we will discuss for the guidance of the
parties and the District Court during retrial of this case.
During the cross-examination of the plaintiff, Franz Linden,
the following dialogue was recorded:
Q. (By Mr. Joseph Marra) Now, would it be fair to say
that you weren't particularly alert to what was happening
because you had been drinking before the accident
occurred?
(Mr. Walsh) Objection, Your Honor. This is totally
irrelevant.
THE COURT: What is the relevancy of this question?
MR. JOSEPH MARRA: 1'11 show you the relevance to see
the fact that he didn't know what was going on around
him.
MR. WALSH: Wait a minute here. That's an argumentative
statement, Your Honor, and I request the jury be
instructed to disregard that.
MR. JOSEPH MARRA: And I will apologize for saying it in
that way. I will apologize to you, Dr. Linden.
THE COURT: The jury is cautioned and instructed not to
take into account statements of attorneys and that is to
be stricken from the record.
MR. WALSH: Can we be heard on this outside the jury's
presence, Your Honor? I apologize for this.
THE COURT: I don't think so. I want to keep this trial
going. You may proceed.
Q. (By Mr. Joseph Marra): Had you been drinking before
the accident occurred?
MR. WALSH: Objection as irrelevant.
THE WITNESS: Yes.
THE COURT: What is the relevancy of this?
MR. JOSEPH MARRA: To show his capacity to observe and
know what was going on at the scene of the accident, Your
Honor.
THE COURT: Counsel, if you would approach the bench.
(WHEREUPON, a discussion was had at the bench out of the
hearing of the jury)
Q. (By Mr. Joseph Marra): Had you been drinking before
the accident?
A.: Yes.
Q.: Did you admit in your deposition you had been in a
bar with a friend for about an hour and a half before the
accident?
A.: Yes.
Q.: Who's the friend you were with in the bar?
A.: Gorham Swanberg.
The plaintiff was never asked how much he had had to drink nor
was any independent evidence offered in that regard. Plaintiff was
never asked what, if any, effect the consumption of alcohol had had
on his physical capacities nor was any independent evidence offered
in that regard.
In fact, there was no claim at the time of trial nor any
evidence offered that plaintiff's operation of his motor vehicle
in any way contributed as a cause of his collision with the
defendant. The plaintiff's consumption of an unspecified amount
of alcohol at some unspecified point in time prior to his collision
with the defendant was completely irrelevant to any issue in this
case. Therefore, during any retrial of this case, no further
questioning nor comments from defense counsel regarding plaintiff's
consumption of alcohol should be permitted, unless some prior
foundation to establish its relevance is laid outside the presence
of the jury.
111.
Plaintiff testified that he practiced dentistry from 1963
until June 30, 1989 and that he would have continued practicing for
another 10 to 15 years had it not been for his injury. His
attorney represented to the jury during his opening statement that
up until the date of his accident, Franz Linden had worked fulltime
at his profession.
Plaintiff also testified that the position in which he was
forced to work aggravated his neck injury and increased his
symptomatology. He was advised by his treating physician in mid-
May of 1989 that he would have to discontinue his practice unless
he wanted to aggravate his condition. He testified that he had
difficulty selling his practice but that he eventually did sell it
on August 15, 1989.
During the cross-examination of Dr. Linden, the defendant
offered as an exhibit and cross-examined him with a document that
he had prepared and sent to various dental schools during his
efforts to sell his practice. It included a description of his
offices and equipment, the number of patients he served, his gross
income for the past two years and a description of his practice.
It also included the price plaintiff was asking for the sale of his
practice.
Plaintiff objected to the exhibit on the basis that
plaintiff's practice was an asset that he was entitled to sell
prior to the time he was injured and that the sale price should not
be considered by the jury to reduce the damages he claimed for loss
of future income. Plaintiff, furthermore, contended that the sale
price listed was misleading because it was not the sale price that
he eventually received.
Considerations of admissibility are left largely to the
discretion of the trial court and should be reviewed only in the
event of manifest abuse of discretion. Feller v. Fox (1989), 237
Mont. 150, 151-52, 772 P.2d 842, 844.
In this case the exhibit offered by the defendant did include
relevant information. Under the description of his practice in
that exhibit Dr. Linden stated:
I have managed to make a good living on a 4-day work week
with plenty of time off to llsmell the roses." A young,
aggressive dentist, I'm sure, could gross over $200,000
in time.
Dr. Linden was seeking over $1 million for future impairment
to his earning capacity. His attorney had told the jury that he
worked fulltime during his practice. In arriving at an evaluation
of his future earning capacity, the jury was entitled to consider
that he did not work fulltime; did not consider himself to be an
aggressive dentist and took plenty of time off to "smell the
roses. I'
The fact that the asking price was not the price eventually
received by Dr. Linden was pointed out during his redirect
testimony. The fact that his practice was an asset which should
not be used to reduce his damages for lost earning capacity was
clear from the court's instructions to the jury. Furthermore,
plaintiff's counsel was free to make that argument when discussing
damages with the jury.
We find no error in the admissibility of defendant's exhibit
regarding plaintiff's asking price for the sale of his dental
practice.
IV .
Plaintiffs contend on appeal that efforts by defense counsel
to imply to the jury that the defendant was without liability
insurance and that either he or his family would be personally
13
responsible for the damages in this case would also justify
reversal of the verdict for the defendant.
During his opening statement, the attorney for the defendant
told the jury:
And it would also be in evidence that the Huestises have
already paid his medical expenses, which are $1,723.10.
And they've paid for all of the repairs to his car, which
amount to $1,979.56.
Plaintiffs objected to this statement for the reason that
pretrial discovery had disclosed the defendant was covered by a $1
million liability insurance policy and that the damages had neither
been paid by the defendant nor his family. The trial court
sustained the objection and at the plaintiffs1 request, the
District Court appropriately instructed the jury that they were to
disregard comments by counsel that the defendant or his family had
personally paid for plaintiffs1 damages.
During closing argument, counsel for the defendant then made
the following statement to the jury:
Jason just happened to be the teenage son of an old and
prominent and apparently financially successful family
who someone would assume would either pay rather than
subject him and themselves to the ordeal and to the
embarrassment of a trial.
The plaintiffs again objected to the remarks of defense
counsel. The District Court sustained the objection and reminded
the jury of its prior instruction.
Based upon our reversal for the reason previously given, we
need not determine whether counsellsremarks would warrant reversal
in this case. However, during retrial of this case, we admonish
both parties to refrain from any further mention of insurance or
the absence of liability insurance. In that regard, we wish to
draw the attention to counsel to this Court's decision in Sioux v.
Powell (1982), 199 Mont. 148, 647 P.2d 861. In that case, we held
that:
. . .The admission of evidence showing that the
plaintiff Sioux was not insured was improper and
constitutes reversible error. Evidence of the absence
of insurance can be as prejudicial as evidence of the
presence of insurance . ...
Sioux, 647 P.2d at 864.
If evidence that an uninsured plaintiff had no insurance
constituted reversible error, certainly the suggestion that an
insured defendant has no insurance is impermissible. The parties
should be guided accordingly in their future remarks to the jury
during any retrial of this case.
The basis for plaintiff's economic damages was that due to
his injury, he could no longer continue to practice dentistry and
there were no forms of employment available in the Great Falls area
in which he could take advantage of his training as a dentist.
Furthermore, plaintiffs could not move from the Great Falls area
because ~atriciaLinden was a teacher in the Great Falls school
system with 20 years of experience and her seniority was not
transferrable. She also testified that if she had to leave her
current position sooner than five years from the date of trial, she
would lose all of her retirement benefits.
For these reasons, plaintiffs' economist calculated his future
projection of lost earnings based upon the difference in what he
could have earned as a dentist and what he could now earn outside
of his profession in the Great Falls area.
To counter this evidence, the defendant offered an instruction
setting forth a portion of 5 19-4-802, MCA. Defendant's proposed
instruction no. 67 read as follows:
All teachers in Montana are covered by the Montana
Teachers Retirement System. A teacher's rights are
vested and cannot be lost after 5 years of teaching.
The annual retirement benefit to which a teacher is
entitled is an amount equal to 1/60 of his or her average
final compensation multiplied by the number of years of
service. Average final compensation is the average of
a teacher's compensation earned during the 3 consecutive
years which yield the highest average compensation. The
normal retirement age is 60.
Plaintiffs objected to the instruction on the basis that it
was unsupported by the facts in evidence; on the further basis that
it was confusing to the jury; and, that it was not relevant to any
issue in the case. The objection on that basis was properly
overruled and the instruction was given.
On appeal, plaintiffs concede that instruction no. 67 was a
correct statement of the law but argues that it was incomplete
because it did not include additional law from the statute which
provides that teachers are not eligible for early retirement until
they reach the age of 50. Patricia Linden wouldn't have been
eligible for early retirement until June 3, 1991. Plaintiffs, on
appeal, furthermore state that the instruction was incomplete
because it did not set forth the formula which the entire statute
includes for reducing the amount of retirement benefits for
teachers who retire early.
Any objection to instructions cannot be heard on appeal unless
it was initially raised with particularity at trial. State Highway
Commission v. Beldon (1975), 166 Mont. 246, 250, 531 P.2d 1324,
1327; Salvail v. Great Northern Railway Co. (1970), 156 Mont. 12,
26, 473 P.2d 549, 557; and Rule 51, M.R.Civ.P.
Since the plaintiffs raised the issue of their immobility due
to the fact that Patricia Linden would lose all of her retirement
benefits, the District Court did not err by instructing the jury
on the law that pertains to early retirement. Furthermore,
plaintiffs did not object to defendant's instruction no. 67 for a
proper reason and the District Court was correct in overruling the
plaintiffs1 objection.
If during retrial of this case the District Court is again
requested to instruct the jury regarding the law that pertains to
early retirement and if the plaintiffs propose that that
instruction include the elements which the plaintiffs now claim
were deleted, then the jury should be instructed on all the legal
conditions that pertain to Patricia Linden's early retirement.
This case is reversed and remanded to the District Court for
a new trial.
I / Justice
We Concur:
Chlef Justlce