No. 90-605
IN THE SUPREME COURT OF THE STATE OF MONTANA
LYLE D. THOMSEN,
Plaintiff and Appellant,
-vs-
JUN 1 5 3992
STATE OF MONTANA, acting by and through
its DEPARTMENT OF HIGHWAYS,
LA 3LitL
CLERK OF SUPSEWE COUR-,
Defendants and Respondents. STATE OF MONTANA
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald R. Murray; Murphy, Robinson, Heckathorn &
Phillips, Kalispell, Montana
For Respondent:
Betsy Brandborg, Special Assistant Attorney General,
Risk Management & Tort Defense Division, Helena,
Montana
Submitted on Briefs: March 26, 1992
Decided: June 15, 1992
Filed:
.. , d
.
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff appeals from the judgment entered in the District
Court, Eleventh Judicial District, Flathead County, holding that
the State of Montana was not liable for the injuries to the
plaintiff. We affirm in part and reverse in part.
The issues on appeal are:
1. Whether the District Court erred in limiting testimony of
the plaintiff's accident reconstruction expert.
2. Whether the District Court erred in permitting defense
counsel to question witnesses regarding the availability of medical
and rehabilitation services by the Veterans Administration, in
light of the order in limine prohibiting collateral source
evidence.
On February 5, 1980, Lyle Thomsen was driving from Whitefish
to Kalispell. Thomsen entered a section known as the LaSalle Road,
which was under construction. After traveling southbound on the
road for approximately one-half mile, Thomsen1s vehicle began to
leave the road, so that the right tires were about three feet right
of the fog line or edge line. The ditch adjoining the road had
flooded and frozen. At that point, the right tires were riding on
the ice. The ice gave way, and as Thomsen attempted to regain the
road, his vehicle went into a 180 degree spin, crossed the
centerline, and was struck from behind by an oncoming vehicle.
Thomsen suffered multiple injuries, including permanent brain
injury .
On January 28, 1983, Thomsen filed suit against the State of
Montana, Flathead County, and McIntyre construction Company--the
company in charge of the highway reconstruction. Flathead County
was subsequently granted summary judgment on April 13, 1990. Trial
commenced on June 14, 1990. The jury returned a special verdict,
finding that (1) McIntyre Construction was not negligent; and
(2) that the State of Montana was negligent, but that its
negligence did not cause plaintiff's damages. Thomsen appeals from
that judgment.
Thomsen asserts that the District Court erred in handling the
testimony of his accident reconstruction expert. Thomsen maintains
that the expert, a physics professor at Montana State University,
was precluded from explaining fundamental laws of physics, and was
not allowed to give his opinion on the angle of the tires on
Thomsen's vehicle at the time they broke through the ice. The
scope of expert testimony and the trial court's role in regulating
it is governed by Rule 702 of the Montana Rules of Evidence. Rule
702 provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a 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.
This Court has stated that the trial court is granted wide
discretion in determining whether to admit expert testimony.
Simonson v. White (1986), 220 Mont. 14, 713 P.2d 983. Further, the
court may, in its discretion, limit the scope of expert testimony.
Lindberg v. Leatham Bros., Inc. (1985), 215 Mont. 11, 693 P.2d 1234.
~ccordingly, we find no error in the court's determination
regarding these aspects of the expert testimony.
Thomsen further asserts that his expert was prevented from
testifying to standards contained in the ~merican~ssociationof
State Highway Transportation Officials' manual, entitled Hishway
~esisn
and Operational Practices Related to Hishway Safetv, despite
the fact that compliance with "current AASHTO manuals1' was a
requirement of the construction contract between the State and
McIntyre. However, the record discloses that plaintiff was unable
to provide foundation for introduction of the manual, due to
questions about whether it was in effect at the time of the
accident. After a subsequent offer of proof, the court ruled that
the expert could be recalled to lay additional foundation.
plaintiff failed to recall his expert witness. Therefore, the
District Court did not abuse its discretion by rejecting the
offered evidence.
Thomsen next contends that the court erred in allowing
questions concerning collateral sources, in direct contravention of
plaintiff's motion in limine. In spite of the motion and
subsequent objection, three separate witnesses were allowed to
respond to questions regarding the availability of medical and
rehabilitation services by the Veterans Administration. Thomsen
claims that the main thrust of the questioning was to suggest to
the jury that insurance coverage existed, and that any probative
4
value was clearly outweighed by the possibility of unfair
prejudice .
We agree with the plaintiff. Plaintiff's motion in limine,
granted before commencement of trial, sought to exclude, among
other things, any testimony, evidence, or comment that any
remuneration was received by Mr. Thomsen from a collateral source,
or that he may have had medical insurance. When counsel for
McIntyre Construction first delved into the matter of VA benefits,
Thomsen objected. On three separate occasions, the court allowed
the questioning which established the availability of VA benefits.
Courts have long recognized the strong likelihood of prejudice
resulting from the introduction of collateral source evidence.
Montana recognized the doctrine in Goggansv. Winkley (1972), 159 Mont.
85, 92, 495 P.2d 594, 598, wherein this Court stated that
w[i]njection of collateral matters involving transactions between
others . . . is collateral inadmissable evidence under the
collateral source doctrine."
Other courts have further expounded on the doctrine. In Hrnjak
v. Graymar, Inc. (Cal. 1971), 484 P.2d 599, 604, the California Supreme
Court stated:
The potentially prejudicial impact of evidence that
a personal injury plaintiff received collateral insurance
payments varies little from case to case. Even with
cautionary instructions, there is substantial danger that
the jurors will take the evidence into account in
assessing the damages to be awarded to an injured
plaintiff. Thus, introduction of the evidence on a
limited admissibility theory creates the danger of
circumventing the salutary policies underlying the
collateral source rule. Admission despite such ominous
potential should be permitted only upon such persuasive
showing that the evidence sought to be introduced is of
substantial probative value.
The Alaska Supreme Court has recognized the doctrine's
importance to a greater extent. In Tolan v. ERA Helicopters, Inc. (Alaska
1985), 699 P.2d 1265, 1267, the court stated:
[The doctrine] also has an evidentiary role, excluding
evidence of other compensation on the theory that such
evidence would affect the jury's judgment unfavorably to
the plaintiff on the issues of liabilitv and damages.
[~mphasis added.]
Defendants contend that the evidence was harmless because the
jury found that the State's negligence was not the proximate cause
of plaintiff's damages. As the court in Tolan stated, introduction
of collateral source evidence may be much more damaging to a
plaintiff's case than just affecting the jury's judgment regarding
damages. We agree with the Tolan court's recognition that such
evidence can have an impact upon a jury's verdict on the issue of
liability, as well as damages. We conclude that the District Court
erred in allowing the admission of collateral source evidence, and
that such error is reversible.
Accordingly, the judgment in favor of the State of Montana is
reversed and this cause remanded for a new trial consistent with
this opinion.
We concur: