Waller v. Hayden

No. 93-464
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

LINDA WALLER,
Plaintiff and Appellant,
v.
VIRGIL L. HAYDEN, M.D.,
Defendant and Respondent

APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Charles L. Neff Bhella, Neff, Rathert,
Wahl & Eiken, Williston, North Dakota
For Respondent:
John H. Maynard and Ken C. Crippen,
Browning, Kaleczyc, Berry & Haven,
Helena, Montana

Submitted on Briefs: July 6, 1994
Decided: December 13, 1994

Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Linda Wailer filed a complaint in the District Court

for the Seventh Judicial District in Richland County to recover

damages from defendant Virgil L. Hayden, M.D., for what she alleged

was negligent surgical treatment, battery, and reckless disregard

for her well-being. Wailer's claims were presented to a jury

during an eight-day trial. Afterward, a verdict was returned in

favor of Hayden on all claims. Wailer appeals from the judgment

entered pursuant to that verdict, and the District Court's denial

of her motion for a new trial. We affirm the judgment of the

District Court.

The only issue on appeal is whether the District Court abused

its discretion when it excluded evidence of Hayden's involvement in

disciplinary proceedings which were commenced in another state

based on conduct that occurred ten years prior to the conduct which

was the subject of Wailer's claim.
FACTUAL BACKGROUND

Since Wailer's appeal is limited to the issue set forth above,

a complete record of the trial court proceedings has not been

provided, and our summary of the facts is necessarily based on the

written pleadings and arguments of the parties and the testimony of

defendant Virgil L. Hayden, M.D. However, that record is

sufficient for purposes of resolving the issue presented.
On November 18, 1991, Wailer filed a complaint in Richland

County District Court in which she named Hayden as the defendant.

She alleged that Hayden was a physician licensed to practice in
Montana, and that he specialized in obstetric and gynecological

care. She stated that she first saw Hayden on June 20, 1989, for

vaginal discomfort and other complaints; that he performed a

surgical procedure known as laparoscopy on July 11, 1989; and that

as a result of his initial examination and his observation of

Wailer's ovaries during the laparoscopy, he formed the opinion that

Wailer was suffering from endometriosis affecting her uterus,

ovaries, and fallopian tubes. On that basis, he recommended a
complete hysterectomy, or removal of her uterus, and a bilateral

salpingo oophorectomy, or removal of her ovaries and fallopian

tubes. She accepted his advice and underwent both procedures by

intra-abdominal surgery on August 11, 1989.

Endometriosis is defined as the presence of tissue similar to

the lining of the uterus at other sites in the pelvis. The tissue

undergoes periodic changes similar to those of the endometrium and

causes pelvic pain throughout and after menstruation. Bantam

Medical Dictionary 143 (Rev. ed. 1990).

Wailer alleged in her complaint, and it was confirmed at

trial, that pathological studies of her ovaries after they were

removed did not disclose the presence of endometriosis in those

parts of her body. For that reason, she alleged that Hayden

negligently formed his pre-operative diagnosis, and was negligent

when he removed her ovaries and fallopian tubes. She also alleged

that because of the premature removal of her ovaries and fallopian

tubes at the age of 38, she suffered a loss of natural estrogen,

which exposes her to numerous increased health risks.

3
 For a second cause of action, Wailer alleged that because
Hayden knew she did not want to have her ovaries removed unless it

was absolutely necessary, and because he knew, or should have

known, that it was unnecessary when he removed them, he committed

a battery upon her person.

For a third cause of action, Wailer alleged, and Hayden

subsequently admitted, that during the surgical procedure that he

performed on August 11, 1989, he cut, or in some other way tore, a
portion of her bowel, and that although it was surgically repaired,

she suffered subsequent restriction of the bowel at that location

from stenosis which had to be treated surgically at a later date.

For a fourth cause of action, Waller alleged that during his

conversations with her following surgery, Hayden misrepresented or

concealed the full extent of damage that was caused to her bowel
during surgery; that she suffered more severe health consequences

as a result of his concealment, and that because of this reckless

disregard for her well-being, she was entitled to actual and

punitive damages.

Hayden admitted that he was a licensed physician who

specialized in obstetric and gynecological care; that he was

consulted by Wailer for the complaints she described on June 20,

1989; that he performed a laparoscopy on her on July 11, 1989; and

that he performed the surgical procedures described previously on

August 11, 1989. He also admitted that plaintiff's bowel was

damaged and surgically repaired during the August 11 surgery, and

that that injury later caused stenosis which had to be surgically

4
treated. However, he otherwise denied her allegations and
affirmatively stated that at all times his care for her complied

with acceptable standards for members of his profession. He

specifically denied that he concealed from her the nature of the

injury to her bowel following surgery.

Prior to trial, Wailer learned that from 1973 until 1982

Hayden practiced medicine in Pine Bluff, Arkansas, and that while

there he was involved in a peer review process which ultimately led

to recommendations for supervision of some aspects of his practice

and mandatory post-graduate education. She learned that the peer

review process in Arkansas began when a fellow physician at the

hospital where Hayden worked wrote to the obstetrics-gynecological

department and complained that Hayden had performed an unnecessary

cesarean section. In response to that complaint, a committee in

that department conducted an investigation which ultimately led to

its conclusion that Hayden had performed two unnecessary cesarean

sections. As a result of the investigation, Hayden was, for a

period of time, required to obtain consultation prior to performing

any further cesarean sections, and was ordered to obtain additional

post-graduate education.
Hayden apparently concluded that he was unable to satisfy the

additional education requirement and still maintain his practice.

Therefore, he terminated his practice in Arkansas and moved to

Sidney, Montana, in 1982.

On November 17, 1982, Hayden filed a complaint in the Federal

District Court for the Eastern District of Arkansas in which he

5
named Jefferson Regional Medical Center, its administrator, and
eight of the doctors on its medical staff, as defendants.
Jefferson Regional Medical Center is the hospital at which Hayden

practiced during the disciplinary process previously described. In

his complaint, he alleged that the disciplinary action taken

against him by the defendants (1) denied him equal protection and

due process in violation of the Fourteenth Amendment and 42 U.S.C.

5 1983; (2) conspired to form a group boycott against him and

combine to a certain monopoly power in violation of 55 1 and 2 of

the Sherman Antitrust Act; (3) made defamatory statements about

him; and (4) interfered with and conspired to interfere with his

business relationship. SeeHaydenv. Bracy (8th Cir. 1984), 744 F.2d

1338.

The district court dismissed Hayden's claims based on

42 U.S.C. 5 1983 and the Sherman Antitrust Act by summary judgment,
and after a nonjury trial, entered judgment for the defendants on

the other claims.

Prior to the trial in this case, Hayden moved in limine for an

order precluding Wailer from referring to the disciplinary

proceedings that occurred in Arkansas, or the litigation commenced

by Hayden in the Federal District Court in Arkansas. On April 2,

1993, the District Court granted that motion, except to the extent

that Hayden "opened the door" to admission of the Arkansas

evidence, or to the extent that it was necessary for impeachment

purposes. During the pretrial conference, after Wailer requested

that the District Court reconsider its order, the District Court

6
clarified that unless the defendant testified and tried to
embellish on his qualifications, the Arkansas information was
irrelevant to the issues in this case. The District Court reasoned

that Hayden's qualifications for diagnosis of endometriosis had

nothing to do with his judgment related to cesarean section

procedures performed ten years earlier.

This case proceeded to trial and Hayden was called by Wailer

as an adverse witness during the presentation of her case. He was
examined at length by her attorney. Near the conclusion of that

examination, Wailer renewed her request that the court reconsider
its order in limine, and if allowed, offered to present the
following evidence:

1. Testimony from Hayden in the Arkansas trial that he moved

from Arkansas to Montana because of fear that his privileges to

practice at the Arkansas hospital were in jeopardy.

2. A certified copy of the complaint filed by Hayden in the

Federal District Court for the Eastern District of Arkansas in

which the Jefferson Regional Medical Center and its staff members

were named as defendants.

3. A certified copy of the findings of fact and conclusions

of law from the Federal District Court in Arkansas which resolved

Hayden's complaint.

4. A certified copy of the published opinion of the United

States Court of Appeals for the Eighth Circuit which affirmed the

Federal District Court's disposition of Hayden's claim against the

Jefferson Regional Medical Center and its staff members.

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 The District Court rejected Wailer's offer of proof for the
following reasons:

1. That since the federal litigation related to issues of

defamation and wrongful interference with Hayden's ability to work,

it was not directly related to his professional qualifications;

2. That even if his qualifications to perform cesarean

sections were at issue in the evidence offered, it had little

probative value to the issues in this case, and therefore, was not

sufficiently relevant;

3. That the passage of eight to ten years from the events

which were the subject of Wailer's offer of proof until the acts

complained of in this case, made the prior evidence far too remote

and dissimilar to be relevant; and

4. That even if the evidence was somehow relevant, its

prejudicial impact outweighed whatever probative value it might

have.

Following eight days of trial, the jury returned a special

verdict in which it found that (1) Hayden's diagnosis was not

negligent; (2) Hayden's recommendation for removal was not

negligent; (3) Hayden did not commit battery upon Wailer; and

(4) Hayden was not negligent in his post-operative care and

treatment.

On May 27, 1993, Wailer moved for a new trial pursuant to

Rule 59, M.R.Civ.P., and 5 25-11-102, MCA, based on the District

Court's refusal to allow her to cross-examine Hayden on his reasons

8
for leaving Arkansas, and based on the District Court's rejection
of her offer of proof.
In its order dated August 10, 1993, in which it denied
Wailer's motion for a new trial, the District Court relied
primarily on Rule 403, M.R.Evid., for its conclusion that even if
relevant, the probative value of the Arkansas evidence was
substantially outweighed by the risk of unfair prejudice, and
therefore, it was inadmissible.
Wailer appeals from the District Court's April 2, 1993, order
in limine; the District Court's orders during trial excluding
evidence related to Hayden's Arkansas experience; and the District
Court's order denying her motion for a new trial.
DISCUSSION
Did the District Court abuse its discretion when it excluded
evidence of Hayden's involvement in disciplinary proceedings which
were commenced in another state based on conduct that occurred ten
years prior to the conduct which was the subject of Wailer's claim?
"We have held that the decision to deny a motion for a new
trial is within the sound discretion of the trial court and will

not be overturned absent a showing of manifest abuse." Geiger v.

Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108 (citing

Topev. Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50).

On appeal, Wailer argues, as she did in the District Court,
that even though she called Hayden as an adverse witness in her own
case, he was an expert pursuant to Rule 702, M.R.Evid., based on

9
his knowledge, experience, training, and education, and therefore,

that he was subject to impeachment regarding his qualifications as

an expert. Wailer relies on our decision in Hart-Anderson v. Hawk

(1988), 230 Mont. 63, 73-74, 748 P.2d 937, 943-44, for the
principle that during cross-examination of an expert witness,

parties are entitled to test the knowledge, competency, and

qualifications of that witness.

While we have no reservation about concluding that Virgil L.

Hayden, M.D., a licensed physician and board certified obstetrician

and gynecologist, is an expert witness when testifying about

subjects within the scope of his professional knowledge, that does

not mean that traditional rules of relevance, remoteness, and

fairness are inapplicable to his cross-examination. Furthermore,
unless there has been a manifest abuse of discretion, we have

traditionally concluded that the district court, which is

intimately familiar with the facts and parties in each case, is in

the best position to apply those rules.

For example, in Britton v. Farmers InsuranceGroup ( 19 8 6 ) , 22 1 Mont .

67‘ 721 P.2d 303, we held that the test of relevancy is whether

proffered evidence makes a fact in issue more or less likely. We

held that "[ulnless evidence naturally and logically tends to

establish a fact in issue, it is not admissible." Britton , 721 P.2d

at 315 (citations omitted). We also held that "[iln the usual

case, questions of admissibility of evidence are left largely to

the sound discretion of the trial court, subject to review only in

10
case of manifest abuse." Britton , 721 P.2d at 315 (citing Cechv.State

(1979), 184 Mont. 522, 604 P.2d 97.
In Prestonv. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d 276,

277, we held that in considering whether evidence was relevant, a
trial court could consider the remoteness of the proffered
evidence. In that case, the plaintiffs bought a Red Lodge bakery
in 1979 and were subsequently unable to obtain a license from the
Montana Department of Health. They sued the seller to rescind
their contract for purchase, and in an effort to shoti that he was
aware of the conditions which made licensing difficult, they
offered to prove that he had received two conditional health
licenses in 1968 and 1969. This evidence was excluded by the
district court because the prior conditional licenses were too
remote in time to have any probative value. We affirmed the
district court on appeal and held that:
In determining whether evidence is too remote to be
relevant, a trial court is not guided by any fixed rules.
Rather, the nature of the evidence and the circumstances
of the particular case must control. 2 Wigmore, Evidence
5 437 (Chadbourn rev. 1979). For this reason, the
determination of remoteness is left in great part to the
trial court's discretion. Wigmore, supra ; Courtneyv. Courtney
([Alaska] 1975), 542 P.2d 164; Gilliland v. Rhoads ( [wyo. I
1975), 539 P.2d 1221; Blankenshipv. Brookshier ( 19 6 6 ) , 9 1
Ida[ho] 317, 420 P.2d 800; and Morrisonv.Bradley ([Cola. Ct.
App.] 1980), 622 P.2d 81, cert. granted Dec. 15, 1980.
The trial court's determination of relevancy is subject
to review only in the case of manifest abuse. See also
Gundersonv.Brewster (1970), 154 Mont. 405, 466 P.2d 589; Cech
v.State (1979) 11841 Mont. 15221, 604 P.2d 97, 36 St.Rep.
2185.
Here, the District Court did not abuse its
discretion. The condition of the bakery ten years prior

11
 to its sale could easily be considered too remote and
irrelevant. Many old deficiencies may have been
corrected, while new, yet similar, deficiencies may have
arisen. The District Court did not err by refusing
admission of the conditional health licenses.

Preston, 659 P.2d at 277-7'8

For a similar conclusion and a similar standard of review,

based on evidence that was at least seven years old, seeInreMarriage

ofStarks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-32.

We have applied a similar standard of review to evidence which
is excluded because the district court concludes that its probative

value is substantially outweighed by the danger of unfair

prejudice. In Zeke’sDistributing Co. v. Brown-FormanCorp. ( 198 9 ) , 2 3 9 Mont.

272, 277, 779 P.2d 908, 911, we held that:

Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury. Rule 403, M.R.Evid. This determination of
admissibility is within the discretion of the trial judge
and will not be disturbed unless there is manifest abuse
of discretion. Welnelv.HaN (1985), 215 Mont. 70, 694 P.2d
1346, Kimesv. Herrin (1985), 217 Mont. 330, 705 P.2d 108,
Dahlinv. Hohnquist, (1988), 1235 Mont. 17,l 766 P.2d 239.

In this case, we cannot conclude that the District Court

manifestly abused its discretion when it held that the evidence of

disciplinary proceedings in Arkansas, Hayden's lawsuit which

resulted from those proceedings, and Hayden's reasons for leaving

Arkansas, were either irrelevant because of their remoteness, or if

relevant, more prejudicial than probative. The events which led to

the Arkansas disciplinary proceedings occurred eight to ten years

prior to the acts complained of by plaintiff; those complaints

12
related to Hayden's judgment about when to perform cesarean
sections and his relationships with other staff members; and his

federal lawsuit simply resolved whether his accusers had done

anything wrong--not whether he was qualified professionally. It is
within the range of a district court's discretion to conclude that

there was nothing in the Arkansas evidence which made it more or

less likely that Hayden was negligent when he treated Wailer in

1989, or that he concealed the true nature of her physical
condition following surgery in 1989.

If, as argued by Wailer, the Arkansas evidence, and in
particular, the judgment of Hayden's peers that he needed

additional education, was relevant to his qualifications, and his

qualifications were relevant to the issue of professional

negligence, it was still within the discretion of the District

Court to exclude the evidence based on its conclusion that it was

more prejudicial than probative. We conclude that under the facts

in this case a manifest abuse of the District Court's discretion

has not been established. Therefore, we conclude that neither did

the District Court abuse its discretion when it denied plaintiff's

motion for a new trial.
However, since cases like this are read by attorneys and
district court judges for the purpose of future guidance and the

avoidance of future evidentiary errors, it is appropriate to
clarify the meaning of our decision. This decision does not mean

that businesses or professionals who have been discredited

elsewhere can find sanctuary in Montana and that their past will

13
never follow them. Instead, it simply affirms the traditional
rules of appellate review, and this court 1s conviction that
district courts are the best place to make evidentiary rulings.

The notion that a decision by the district court is
discretionary assumes there is no absolutely correct answer for

every evidentiary issue. It assumes that the decision is a

judgment call best left to the person closest to the case--the

district judge. By holding that the District Court did not abuse
its discretion when it excluded the evidence proffered by the

plaintiff in this case, we do not mean that it would have abused
its discretion had it admitted the evidence. We simply conclude
that the District Court's judgment was exercised within that

permissible range best left to the district court.

The judgment of the District Court is affirmed.

We concur:
 December13, 1994

CERTIFICATEOF SERVICE

I hereby certify that the folowing ceritied order was sent by United Statesmaii, prepaid,to the
following named:

CharlesL. Neff, Esq.
Bjella, Neff, Rathert, Wahl & Eiken, P.C.
111E. Broadway,Drawer 1526
Wiliston, ND 58802-1526

JohnH. Maynard, Esq.
Browning, Kaleczyc,Berry & Hoven, P.C.
P.O. Box 1697
Helena,MT 59624

ED SMITH
CLERK OF THE SUPREMECOURT
STATEOF MONTANA