No. 92-080
IN THE SUPREME COURT OF THE STATE OF MONTANA
ESTATE OF VONNIE D. SPICHER, Deceased, by
and through WAYNE SPICHER, Personal
Representative, WAYNE SPICHER, individually
and as Guardian Ad Litem for MALYNDA KaANN
SPICHER and BRITON EARL SPICHER, Minors,
Plaintiffs and Appellants,
FRANK MILLER, M.D., and HAVRE CLINIC,
Defendants and Respondents.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Frank Altman and Dan Boucher, Altman & Boucher,
Havre , Montana
Diane Fenner, Adler & Kops, Philadelphia,
Pennsylvania
For Respondent:
James Aiken, Jardine Stephenson, Blewett & Weaver,
Great Falls, Montana
Submitted on Briefs: September 2, 1993
Decided: October 6, 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.
This is an action for wrongful death and survivorship. A jury
in the Twelfth Judicial District, Hill County, returned a verdict
for plaintiffs and awarded damages of $302,461. The plaintiffs
appeal. We affirm.
The issues are:
1. Did the District Court err in refusing to grant a new
trial on grounds of juror misconduct and irregularity in the
proceedings?
2. Did the court err in refusing to grant a new trial on
grounds that the amount of the verdict was not supported by the
evidence?
Vonnie Spicher, age thirty-five, died in the recovery room at
Northern Montana Hospital in Havre, Montana, following hysterectomy
surgery. She is survived by her husband, Wayne Spicher, and two
young children. Defendant Frank Miller, M.D., who was associated
with Havre Clinic, performed the surgery. In bringing this action,
plaintiffs also named other defendants, who settled prior to trial.
The jury found that Dr. Miller was not negligent but that the
nurse anesthetist at surgery was negligent and that Dr. Miller was
responsible for the nurse anesthetist's actions. The jury further
found that such negligence was a substantial factor causing the
death of Vonnie Spicher. It awarded $50,000 as damages to the
estate of Vonnie Spicher for lost earnings and services; $2,461 for
funeral expenses; $50,000 as damages to Vonnie Spicher's surviving
2
husband and children for lost services from her: $100,000 to the
surviving family for lost society, comfort, guidance, education,
care, protection and companionship; and $100,000 forthe survivors'
grief, sorrow, and mental anguish.
Plaintiffs moved for new trial, claiming irregularities in the
proceedings and insufficiency of the evidence, under subsections
(1) and (6) of g 25-11-102, MCA. They filed affidavits by three
jurors stating that, during jury deliberations, certain other
jurors expressed opposition to large damage awards and the belief
that damages should not be awarded for the death of a person.
The District Court denied the motion for new trial, ruling
that the verdict could not be impeached by affidavits. The court
also rejected the argument that the amount of the verdict is
insufficient under the evidence presented. Plaintiffs appeal.
I
Did the District Court err in refusing to grant a new trial on
grounds of juror misconduct and irregularity in the proceedings?
A new trial may be granted on grounds which have materially
affected the substantial rights of the aggrieved party. Section
25-11-102, MCA. Our standard of review of a ruling on a motion for
new trial is whether the district court abused its discretion.
Gass v. Hilson (1990), 240 Mont. 459, 461, 784 P.2d 931, 933.
Plaintiffs contend that three jurors failed to honestly answer
material questions on voir dire. Although no transcript was made
of voir dire, both parties submitted their versions of that portion
3
of the record to the District Court and the court generated a
written summary of what occurred, pursuant to Rule 9(d), M.R.App.P.
During voir dire, plaintiffs' counsel inquired about the
prospective jurors' ability to enter a verdict for damages in
substantial amounts; specifically, whether they could award damages
in excess of one million dollars. Counsel also inquired whether
any potential jury member believed that a suit for damages should
not be filed or maintained for the loss of a family member. None
of the jurors indicated any problems in either area. Yet, argue
the plaintiffs, the post-trial juror affidavits prove that not all
of the eventual jurors were being truthful during voir dire.
Rule 606(b), M.R.Evid., provides:
Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement
occurring during the course of the jury's deliberations
or to the effect of anything upon that or any other
juror's mind or emotions as influencing the juror to
assent or dissent from the verdict or indictment or
concerning the juror's mental processes in connection
therewith. Nor may a juror's affidavit or evidence of
any statement by the juror concerning a matter about
which the juror would be precluded from testifying be
received for these purposes.
However, as an exception to this subdivision, a
juror may testify and an affidavit or evidence of any
kind be received as to any matter or statement concerning
only the following questions, whether occurring during
the course of the jury's deliberations or not: (1)
whether extraneous prejudicial informationwas improperly
brought to the jury's attention; or (2) whether any
outside influence was brought to bear upon any juror; or
(3) whether any juror has been induced to assent to any
general or special verdict, or finding on any question
submitted to them by the court, by a resort to the
determination of chance.
None of the exceptions listed in the second paragraph of Rule
606(b), M.R.Evid., are present in this case.
This Court has consistently held that under Rule 606(b),
M.R.Evid., the use of juror affidavits to impeach a jury verdict is
limited to showing external influences on the jury. See, Greytak
v. Reg0 Company (Mont. 1993), 848 P.2d 483, 487, 50 St. Rep. 204,
206-07. The rationale is:
The rule is ...
for the purpose of preventing litigants
or the public from invading the privacy of the jury room,
either during the deliberations of the jury or afterward.
... [I]f after being discharged and mingling with the
public, jurors are permitted to impeach verdicts which
they have rendered, it would open the door for tampering
with jurors and would place it in the power of a dissat-
isfied or corrupt juror to destroy a verdict to which he
had deliberately given his assent under sanction of an
oath . . ..
Testimony of the jurors to impeach their own verdict
is excluded not because it is irrelevant to the matter in
issue, but because experience has shown that it is more
likely to prevent than to promote the discovery of the
truth.
76 Am.Jur.2d, Trial, 1219, as cited in Boyd v. State ~edical
Oxygen & Supply, Inc. (1990), 246 Mont. 247, 252, 805 P.2d 1282,
1285-86. See also Charlie v. Foos (1972), 160 Mont. 403, 408, 503
Plaintiffs refer to their right to a fair trial and cite cases
from other jurisdictions in which new trials were granted based on
false or biased answers by prospective jurors to questions on voir
dire. However, some of those cases involved false answers to
questions about personal experiences, which are more easily proven
than are omissions to state beliefs or opinions held by the juror.
See, e.g., Skiles v. Ryder Truck Lines, Inc. (Fla. 1972), 267 So.2d
379, cert. denied 275 So.2d 253. In some of the cases, no rule
similar to Rule 606(b), M.R.Evid., was cited. See, e.g., Smith v.
Kent (Wash. App. 1974), 523 P.2d 446. Further, Rule 606(b),
M.R.Evid., while based on a federal rule of evidence, is unique to
Montana.
We hold that the District Court did not abuse its discretion
in denying the motion for new trial on grounds of juror misconduct.
II
Did the court err in refusing to grant a new trial on grounds
that the amount of the verdict was not supported by the evidence?
The plaintiffs argue that the amounts awarded by the jury as
damages for loss of earnings and loss of services cannot be
explained based upon the evidence. At trial, they presented the
testimony of an expert who calculated the loss of services over
Vonnie Spicherls expected lifetime as $422,383 if she remained at
home working as a ranch wife and loss of services at $400,458 and
loss of earnings at $404,650 if she returned to the outside work
force as a teacher after her youngest child reached the age of
eighteen.
The defense did not offer an alternative calculation as to the
value of the lost earnings and services. However, on cross-
examination, the defense elicited testimony from the plaintiffs1
expert that his figures were estimates based upon assumptions about
6
the future, made from the information he was given. The record
further discloses that the jury was properly instructed that it was
the sole judge of the facts and that it alone was to determine the
extent to which any witness should be believed. The jury was also
properly instructed that it was not bound by an expert's opinion,
but should give the opinion the weight, if any, to which the jury
deemed it entitled.
We hold that the court did not abuse its discretion in
refusing to grant a new trial on damages.
Af finned.
We concur:
October 6. 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Frank Altman
Dan Boucher
Altman & Boucher
P.O. Box 268
Havre, MT 59501
Diane Fenner
Adler & Kops
210 W. Washington Square
Philadelphia, PA 19106
James Aiken
Jardine, Stephenseon, Blewett & Weaver
P.O. Box 2269
Great Falls, MT 59403
ED SMITH
CLERK OF THE SUPREME COURT