97-187
No. 97-187
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 47
JESSE DURDEN and GRACE ANN DURDEN,
individually and as Guardians for APRIL DURDEN,
a Minor.
Plaintiffs, Respondents and Cross-Appellants.
vs.
HYDRO FLAME CORPORATION, a Utah
Corporation,
Defendant,
and.
CHIEF INDUSTRIES, INC., d/b/a KING
OF THE ROAD, a Kansas Corporation,
Defendant, Appellant, and Cross-Respondent.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable William Nels Swandal, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gig A. Tollefsen, Berg, Lilly, Andriolo & Tollefsen, Bozeman, Montana
For Respondents:
Monte D. Beck, Beck Law Offices, Bozeman, Montana; Joe
Bottomly, Kalispell, Montana
Submitted on Briefs: January 8, 1998
Decided: March 10, 1998
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
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¶1 This is an appeal by Chief Industries, Inc., d/b/a King of the Road (Chief)
from the
December 5, 1996 order of the Sixth Judicial District Court, Park County, granting
the
motion of Plaintiffs Jesse and Grace Ann Durden, individually and as guardians for
their
minor daughter, April Durden (Durdens) for judgment notwithstanding the verdict and
for
new trial. We reverse in part, affirm in part and remand for further proceedings
consistent
with this opinion.
BACKGROUND
¶2 Because we are remanding this case for a new trial on the issues of causation
and, if
causation is proven, damages, we will limit our discussion of the background of this
case to
the extent necessary to address the dispositive legal issues.
¶3 Durdens filed a product liability action against Chief, a trailer manufacturer
and
against Hydro Flame Corporation, a component manufacturer of the trailer furnace.
Durdens
alleged that personal injuries to Mrs. Durden and to April were caused by defects in
the
heating system allowing carbon monoxide, or CO, to enter the trailer. Durdens
settled with
Hydro Flame prior to trial. Liability was conceded by Chief. Durdens' action was
tried
against Chief on September 16 through 26, 1996. The jury returned a verdict finding
no
causation and, thus, did not reach the issue of damages. Thereafter, Durdens moved
for
judgment as a matter of law based on insufficient evidence to support the verdict
and for a
new trial based on misconduct of defense counsel. The District Court granted both
motions
on December 5, 1996, and, by a subsequent opinion and order issued December 23, 1996,
sanctioned Chief by requiring it to pay Durdens' reasonable attorneys' fees, costs
and
expenses incurred during the first trial and in obtaining a new trial.
¶4 Chief appealed from the trial court's December 5 and December 23 orders.
Durdens
cross-appealed from the court's denial of their pretrial motion to strike the
testimony of
Chief's medical expert, Dr. Donna Seger, on the grounds that Chief had failed to
provide an
adequate expert-witness disclosure pursuant to Rule 26(b), M.R.Civ.P.
ISSUES
¶5 At the outset, we note that, while Chief's notice of appeal encompasses the
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District
Court's order of December 23, 1996, granting sanctions for defense counsel's
misconduct,
that particular matter is neither briefed nor argued on appeal by Chief.
Accordingly, we
deem Chief's appeal of the trial court's imposition of sanctions waived, and we will
not
address this issue further. Rule 23, M.R.App.P.; In re Marriage of Lee (1997), 282
Mont.
410, 421, 938 P.2d 650, 657; DeVoe v. State (1997), 281 Mont. 356, 370, 935 P.2d 256,
265; Rieman v. Anderson (1997), 282 Mont. 139, 147, 935 P.2d 1122, 1126-27; Whalen
v.
Taylor (1996), 278 Mont. 293, 302, 925 P.2d 462, 467.
¶6 We will, however, address the following issues in this appeal:
¶7 I. Did the District Court err in granting Durdens' motion for judgment as a
matter
of law?
¶8 II. Did the District Court err in granting Durdens' motion for new trial?
¶9 By way of their cross-appeal, Durdens raise the issue of whether the District
Court
erred in allowing Chief's medical expert, Dr. Donna Seger, to testify. We will also
address
this issue in turn.
DISCUSSION
I.
¶10 Did the District Court err in granting Durdens' motion for judgment as a matter
of law?
A.
¶11 Appealability of the District Court's order granting judgment as a matter of law
¶12 Before deciding the merits of this issue we must first address Durdens'
argument that
an order granting judgment as a matter of law is not an appealable order. As
Durdens point
out, Rule 1, M.R.App.P., enumerates the orders from which appeals may be taken, and
this
rule does not include an order granting judgment as a matter of law. Durdens also
cite to our
decisions in Weston v. Kuntz (1980), 187 Mont. 453, 610 P.2d 172, and Bostwick v.
Department of Highways (1980), 188 Mont. 313, 613 P.2d 997, wherein we held that a
court
order determining liability only, and reserving the issue of damages is
interlocutory, and
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thus, not an appealable order. Weston, 187 Mont. at 454, 610 P.2d at 172; Bostwick,
188
Mont. at 325, 613 P.2d at 998.
¶13 In response, Chief points out that for several decades this Court has accepted
appeals
of district court orders granting or denying judgments as a matter of law. In
support of this
argument, Chief cites Fox Grain and Cattle Co. v. Maxwell (1994), 267 Mont. 528, 885
P.2d
432; Kestell v. Heritage Health Care Corp. (1993), 259 Mont. 518, 858 P.2d 3;
Greytak v.
RegO Co. (1993), 257 Mont. 147, 848 P.2d 483; Simchuck v. Angel Island Community
Ass'n
(1992), 253 Mont. 221, 833 P.2d 158; Larson v. K-Mart Corp. (1990), 241 Mont 428, 787
P.2d 361; and Wilkerson v. School Dist. No. 15, Glacier Cty. (1985), 216 Mont. 203,
700
P.2d 617. These cases, however, are distinguishable.
¶14 In Fox Grain, the judgment as a matter of law eliminated a portion of the
damages
awarded to the defendant; we reversed and ordered the verdict reinstated. Fox
Grain, 267
Mont. at 535, 885 P.2d at 437. In Kestell, the court denied the defendant's motion
for
judgment as a matter of law and we affirmed. Kestell, 259 Mont. at 528, 858 P.2d at
9. In
Greytak, the court denied the plaintiff's motion for judgment as a matter of law,
but ordered
a new trial because of claimed instructional error. We reversed the order granting
new trial.
Greytak, 257 Mont. at 155-56, 848 P.2d at 489. Simchuck involved a case where the
court
granted judgment as a matter of law in favor of the defendant and denied the
plaintiff's
motion for judgment as a matter of law on the issue of negligence. We reversed the
court's
granting judgment as a matter of law, ordering the plaintiff's verdict reinstated,
and affirmed
the court's denial of the judgment as a matter of law on negligence. Simchuck, 253
Mont.
at 227-28, 833 P.2d at 162. In Larson, we affirmed the court's denial of the
plaintiff's motion
for judgment as a matter of law. Larson, 241 Mont. at 433, 787 P.2d at 364. And,
finally,
in Wilkerson, we reversed the judgment as a matter of law for the defendant and
ordered the
plaintiff's verdict reinstated. Wilkerson, 216 Mont. at 211, 700 P.2d at 623.
¶15 Importantly, in each of the foregoing cases the order granting or denying
judgment
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as a matter of law was in the context of a final, and thus appealable, disposition
of the case.
Accordingly, the cases cited by Chief do not support its argument here. The mere
fact that
we have accepted other appeals of orders granting and denying motions for judgment
as a
matter of law does not resolve the issue raised by Durdens.
¶16 Our recent decision in Ryan v. City of Bozeman (1996), 279 Mont. 507, 928 P.2d
228, is very nearly on point, however. In that case, the trial court granted
plaintiff's motion
for judgment as a matter of law on the issue of liability and ordered a new trial on
damages.
The defendant appealed the order granting new trial and filed a petition for writ of
supervisory control with regard to the grant of judgment as a matter of law since,
as we
pointed out, "the grant of a [judgment as a matter of law] is not subject to appeal
under Rule
1, M.R.App.P." Ryan, 279 Mont. at 509, 928 P.2d at 229. In its petition for the
writ,
defendant, without opposition from the plaintiff, asked that the two issues be
combined.
Given the posture of the case and in the interests of judicial economy, we granted
the writ
and ordered that both the granting of the judgment as a matter of law and the
granting of a
new trial be combined for briefing. Ryan, 279 Mont. at 509, 928 P.2d at 229.
¶17 In this case Chief did not file a petition for writ of supervisory control
requesting
review of the order granting judgment as a matter of law in conjunction with its
appeal of the
order granting new trial. Accordingly, on that basis, we might well dismiss the
appeal of the
judgment as a matter of law issue. Notwithstanding, we conclude that because this
case
comes to us from the trial court in a posture procedurally identical to that of the
case in
Ryan, our same concerns regarding judicial economy and the near certainty that we
will
likely have to address this issue in another appeal following the trial on damages
justifies our
addressing the merits of this issue at this time.
¶18 Our authority to proceed in this manner derives from Rule 3, M.R.App.P., which
allows this Court, on its own motion, to suspend the requirements of the rules of
appellate
procedure in the interest of expediting a decision upon any matter before us or for
other good
cause shown.
¶19 Finally, on this latter point and given our decision in Ryan and, now, in this
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case, it
may be proper that we simply consider amending Rule 1, M.R.App.P., to specifically
allow
for the appeal of an order granting a motion for judgment as a matter of law when
that is
taken in conjunction with an order also granting a new trial on damages. In this
limited class
of cases, since the order granting a new trial is already appealable under Rule 1(b)
(2),
M.R.App.P., considering the two appeals together may save the necessity either for a
second
appeal or a second trial. In either event, the courts and the parties all save
valuable time,
money and resources.
B.
¶20 Merits of the District Court's order granting judgment as a matter of law
¶21 The standard to be used by a district court in deciding a motion for judgment
as a
matter of law, is well settled; it is the same standard used in resolving motions
for directed
verdict. As we stated in Kestell:
In considering a motion for a directed verdict or for [judgment as a
matter of law], the district court must view the evidence in a light most
favorable to the non-moving party. A motion for directed verdict must be
denied if there is any evidence that warrants submission to the jury
[Wilkerson, 216 Mont. at 211, 700 P.2d at 622]. A motion for [judgment as
a matter of law] must be denied if it appears that the non-moving party can
recover upon any view of the evidence, including legitimate inferences to be
drawn from it [Larson, 241 Mont. at 433, 787 P.2d at 364].
Kestell, 259 Mont. at 523, 858 P.2d at 6. Moreover, we have stated that motions for
directed
verdict and for judgment as a matter of law are properly granted only when there is a
"complete absence" of any evidence to warrant submission to the jury, such evidence
and all
inferences being considered in the light most favorable to the party opposing the
motion.
Jacques v. Montana Nat. Guard (1982), 199 Mont. 493, 504, 649 P.2d 1319, 1325
(citations
omitted).
¶22 This Court's standard of review of appeals from district court orders granting
or
denying motions for directed verdict and judgment as a matter of law is identical to
that
stated above. Ryan, 279 Mont. at 510, 928 P.2d at 229-30. Furthermore, in Ryan we
underscored that:
The courts will exercise the greatest self-restraint in interfering with the
constitutionally mandated processes of jury decision. Unless there is a
complete absence of any credible evidence in support of the verdict, a
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[judgment as a matter of law] motion is not properly granted. Barmeyer v.
Montana Power Company (1983), 202 Mont 185, 191, 657 P.2d 594, 597
(overruled on other grounds).
Ryan, 279 Mont. at 510, 928 P.2d at 230.
¶23 In the case at bar, the District Court ruled that Chief did not present
"sufficient
evidence to raise a substantial conflict in the evidence as to whether or not the
Plaintiffs
suffered some degree of harm from the malfunctioning furnace." The court believed
this to
be the case even considering the evidence and inferences in the light most favorable
to Chief.
However, as pointed out above, whether a party raises a substantial conflict in the
evidence
is not the correct standard for considering a motion for judgment as a matter of
law. Rather,
the trial court properly grants a motion for judgment as a matter of law only where
there is
a complete absence of any credible evidence in support of the verdict. If there is
any
evidence in support of the verdict and if the party opposing the motion can recover
on any
view of the evidence and legitimate inferences, then the court must exercise self-
restraint,
credit the constitutionally mandated process of jury decision, and deny the motion.
¶24 We conclude that the trial court erred in not following this standard when it
granted
Durdens' motion for judgment as a matter of law on the issue of causation. There was
credible evidence presented by Chief by which a jury could find or infer that
Durdens'
injuries were not caused by the malfunctioning furnace. We decline to exhaustively
review
this evidence inasmuch as this case is being remanded for a new trial on causation
and
damages. However, in our review of the record, we note that Chief did present
evidence
which, when viewed in a light most favorable to it, would support the jury's verdict.
¶25 For example, an assistant fire chief and Montana Power Company gas foreman both
testified that they were qualified to test for carbon monoxide, that they correctly
tested for
that substance at the time when Durdens alleged they were exposed to CO, and only
normal
levels were found. Evidence indicated that only Mrs. Durden and April were allegedly
afflicted with CO poisoning; some other family members living in the same trailer
were not.
Mrs. Durden's physician's office notes and her medical records indicated that
certain of her
symptoms which she attributed to the carbon monoxide exposure predated the purchase
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of
the trailer or were not communicated to the doctor by her on visits during the time
that she
claimed to be suffering severe CO symptoms. Moreover, there was evidence that during
this
time period, the physician diagnosed ailments unrelated to carbon monoxide exposure.
There
was evidence that the cracks in the furnace heat exchanger developed over time and
would
not have been present within days of the purchase of the trailer when Mrs. Durden
claimed
that her symptoms began. Evidence was presented that another physician tested Mrs.
Durden's and April's blood, did not find abnormal levels of CO, was not advised by
them of
various problems that Mrs. Durden and April attributed to carbon monoxide exposure,
and
did not diagnose CO poisoning. Finally, and without going into detail, there was
other
medical testimony from which the jury could have inferred that Mrs. Durden's and
April's
medical problems were not caused by CO leaking from the faulty trailer furnace.
¶26 While Durdens presented at trial countervailing witnesses, testimony and
evidence of
their own and offer on appeal various explanations, interpretations and refutations
of the
evidence presented by Chief, we cannot conclude on the record of this case that
there was
a complete absence of any credible evidence in support of the jury's verdict; that
there was
not any evidence in support of the verdict; or that Chief could not recover on any
view of the
evidence and legitimate inferences. Whether the conflict in the evidence was
substantial or
insubstantial is not the proper standard for assessing the merits of a motion for
judgment as
a matter of law.
¶27 Weighing and resolving conflicts in the evidence, judging the credibility of the
witnesses and finding the facts is uniquely within the province of the jury. Trial
courts
should invade this domain reluctantly and then only when, in the words of Rule 50(a),
M.R.Civ.P., "there is no legally sufficient evidentiary basis for a reasonable jury
to have
found for that party" on the matter at issue.
¶28 Given the District Court's analysis of and decision on Durdens' new trial
motion,
discussed in the next section of this opinion, it is, perhaps, understandable why
the court
granted their motion for judgment as a matter of law. In fact, Durdens argue on
appeal that
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judgment as a matter of law is an appropriate sanction for defense counsel's
misconduct.
However, we do not read the trial court's order as granting judgment as a matter of
law as a
punishment, but rather being based upon the court's weighing of the relative evidence
presented by each side and its finding that Chief's case was lacking. As will be
pointed out,
though, the standards for determining a motion for new trial and a motion for
judgment as
a matter of law are different, the former allowing more discretion to the trial
court than the
latter. As to their motion for judgment as a matter of law, on the record in the
case at bar,
the trial court should have exercised self-restraint; should have credited the
constitutionally
mandated process of jury decision; and should have denied Durdens' motion. We hold
that
the District Court erred in granting Durdens' motion for judgment as a matter of
law, and we
reverse on this issue.
II.
¶29 Did the District Court err in granting Durdens' motion for new trial?
¶30 Like the standard for considering a motion for judgment as a matter of law, the
law
regarding a district court's determination of a motion for new trial is well-
established. The
general rule is that the decision whether to grant a new trial is committed to the
sound
discretion of the trial judge and will not be disturbed absent a showing of manifest
abuse of
that discretion. Jim's Excavating Service v. HKM Associates (1994), 265 Mont. 494,
512,
878 P.2d 248, 259. We have also stated that an order granting a new trial will be
upheld if
it can be sustained on any ground stated in the order or opinion accompanying the
order,
Giles v. Flint Valley Forest Products (1979), 179 Mont. 382, 387, 588 P.2d 535, 538,
overruled on other grounds by Shannon v. Hulett (1983), 202 Mont. 205, 656 P.2d 825,
and
that an order granting a new trial will not be set aside as readily as an order
denying a new
trial since the latter ends the litigation while the former restores the parties to
their respective
positions before trial, Tigh v. College Park Realty Co. (1967), 149 Mont. 358, 362,
427 P.2d
57, 60 (citations omitted).
¶31 In granting Durdens' motion for new trial, the District Court concluded that
defense
counsel had interjected prejudicial, irrelevant and inflammatory remarks into the
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proceedings
which prevented Durdens from having a fair trial of their case. According to the
court, a
litany of the topics which were referred to by defense counsel, but which were not
material
or relevant to the issues or which were not substantiated by competent expert
testimony
included:
a. that Mrs. Durden had a personality change due to her religion and was
compelled to approach strangers and discuss Jesus with them;
b. that Mrs. Durden had a flirtatious affair with her husband's employee;
c. that Mrs. Durden had prior psychological problems;
d. that Mrs. Durden's sister worked for the law office that represented
Durdens
and that a witness received a referral from that law office;
e. that a witness had testified for Durdens' counsel or had worked on similar
cases with Durdens' counsel;
f. that Durdens had marital problems;
g. that April had prior learning problems, disabilities or behavior problems;
h. that home schooling for religious or other reasons is not as good for
children
as public school and/or causes problems for children;
i. that Durdens' living environment was the cause of problems for the family;
j. that April had a prior head injury with loss of consciousness;
k. that April had prior genetic abnormalities and that another member of the
family is mentally retarded; and
l. that April had hearing problems.
¶32 The trial court stated that during conferences in chambers, defense counsel was
asked
what doctor would testify that certain topics were supported by competent proof
under the
standards required by Montana law, and that counsel would not, or could not, give
the court
an answer. Moreover, the District Court observed that in his opening statement and
by cross-examination throughout the trial, Chief's attorney interjected matters in
front of the jury
which were not mere errors of judgment but which were deliberately designed to
prejudice
Durdens; that this conduct, in fact, left only prejudice against them; and that the
intended
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result of this behavior and conduct was achieved in that the jury found no causation
despite
Durdens' evidence (which the trial court characterized as substantial and
overwhelming).
The court then went on to describe various incidents of defense counsel's misconduct
in
greater detail, concluding that these trial tactics were unreasonable and prevented
Durdens
from having a fair trial.
¶33 Chief argues that where there is substantial evidence supporting the jury
verdict, the
trial court manifestly abuses its discretion in granting a new trial. Chief points
out that in
Nelson v. Hartman (1982), 199 Mont. 295, 300, 648 P.2d 1176, 1178, we stated:
A trial court's denial of a motion for new trial is granted greater deference
than
a motion which has the effects of nullifying a jury verdict. This Court will
not
hesitate to reinstate the verdict which is supported by substantial evidence.
¶34 Notwithstanding, in the case at bar, the court did not grant Durdens a new
trial solely
because Chief did not present substantial evidence. Rather, the court concluded
that there
was an independent basis for granting a new trial which was grounded in defense
counsel's
misconduct. On that basis, we stated in Nelson that improper argument of counsel may
be
the basis for granting a new trial "only when prejudice has resulted which prevents
a fair
trial." Nelson, 199 Mont. at 301, 648 P.2d at 1179. In that case we found no basis
for a new
trial because the court, unlike the trial judge in the case at bar, made no finding
of prejudice.
¶35 However, in Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916, we discussed
at greater length the effect of attorney misconduct (there, in the form of improper
and
irrelevant comment and argument to the jury) in a case where there was conflicting
but
substantial evidence on both sides. Holding that defense counsel's conduct had
prejudiced
the plaintiff's case, we stated:
where it appears that one of the parties was prevented from receiving a fair
trial by improper argument in summation, the question of whether substantial
evidence supports the jury verdict in spite of the oral argument does not
arise.
The acid of the improper argument may have eaten away the substantial
evidence presented by the plaintiff and left only prejudice against him. When
a party's right to a fair trial has been materially impaired by improper jury
argument, the fact of the imperfect trial transcends the substantial but
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conflicting evidence that supports the jury verdict.
Kuhnke, 210 Mont. at 125, 683 P.2d at 922.
¶36 As discussed above, it is uniquely the jury's task to weigh and resolve
conflicts in the
evidence, to judge the credibility of the witnesses and to find the facts.
Nonetheless, even
where there is substantial evidence supporting the jury's verdict, the trial court
has an
overriding duty to prevent a miscarriage of justice by granting a new trial where the
misconduct of counsel prevents the opposing litigant from having a fair trial on the
merits.
See § 25-11-102(1), MCA; Rule 59(a), M.R.Civ.P. See also Campeau v. Lewis (1965),
144
Mont. 543, 546, 398 P.2d 960, 962 (trial judge has power to sua sponte grant a new
trial to
prevent a miscarriage of justice). As we noted in Putro v. Baker (1966), 147 Mont.
139, 410
P.2d 717:
The guiding principle of our legal system is fairness. We must tenaciously
adhere to the ideal that both sides of a lawsuit be guaranteed a fair trial.
Sec.
27, Art. III, Montana Constitution [now sec. 17, Art. II].
Putro, 147 Mont. at 147-48, 410 P.2d at 722.
¶37 Thus, even though Chief may have presented sufficient evidence to prevail
against
Durdens' motion for judgment as a matter of law, the District Court was,
nevertheless,
correct in granting Durdens' motion for new trial where the trial judge found that
defense
counsel's misconduct prejudiced Durdens' right to a fair hearing and resolution of
their case.
The trial judge is in the best position to determine the prejudicial effect of an
attorney's
conduct. Buhr v. Flathead County (1994), 268 Mont. 223, 255, 886 P.2d 381, 400, cert
denied, 514 U.S. 1110, 115 S.Ct. 1962, 131 L.Ed.2d 853 (1995) (citations omitted).
Based
upon the record here and the trial court's findings, which are supported by that
record, we
conclude that the trial judge did not manifestly abuse his discretion in granting
Durdens'
motion for new trial.
¶38 Without going into detail on each of its twelve specifications of misconduct,
the trial
judge found that any one of several of those incidents were grounds for reversal of
the jury
verdict. Specifically, the court ruled that there was no legitimate reason to
introduce into
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evidence the fact that April's uncle is mentally retarded. The court noted that no
doctor or
other competent medical evidence established the cause of the uncle's mental
retardation or
that it had any connection with April's condition and that implying that April's
problems may
be related to a genetic family history when no such evidence exists to support the
implication
was improper.
¶39 The court also concluded that defense counsel's reference to an alleged hearing
problem of April not only had no relevance to any injury she suffered from the
claimed CO
exposure, but was unsubstantiated by any competent medical evidence as well. The
trial
judge also found it extremely prejudicial that defense counsel sought to appeal to
the public's
cynicism concerning the legal profession and personal injury victims by repeatedly
seeking
to introduce evidence that Mrs. Durden's sister worked for the law offices of one of
Durdens'
counsel and by telling the jury that "everything was directed" from that counsel's
law offices.
The District Court noted the lack of evidence to support this allegation or that it
had any
material relevance to the issues being tried.
¶40 The court found that defense counsel mentioned in opening argument and in cross-
examination that a number of other patients with legal claims have been referred by
Durdens'
counsel to certain of the physicians who testified for Durdens--the implication
being that
those physicians were unworthy of belief and perhaps were part of a conspiratorial
plan to
bilk Chief. The trial judge observed that the physicians who appeared at trial were
truthful,
competent and professional in every respect; that their integrity as medical
professionals was
impugned by counsel's statements; and that there was no evidence supporting any
conspiracy
among those doctors, Durdens and their counsel.
¶41 Finally, the court concluded that Durdens' case was prejudiced by defense
counsel's
presentation of prior personality and psychological problems of both April and Mrs.
Durden
without any substantiating evidence that religion, personality, living environment,
genetic
condition or personal family matters had any causal link to April's and Mrs.
Durden's injury
claims.
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¶42 Again, the trial court's findings are supported by the record, and because the
trial
judge is in the best position to determine the prejudicial effect of an attorney's
conduct, Buhr,
268 Mont. at 255, 886 P.2d at 400, we conclude that the court did not manifestly
abuse its
discretion in granting Durdens' motion for new trial. Indeed, the District Court's
ruling was
in accord with our recent decisions in Newville v. State, Dept. of Family Services
(1994),
267 Mont. 237, 883 P.2d 793 (holding that the trial court committed reversible error
in
allowing argument and questions regarding a variety of factors, including genetic
factors,
which "could contribute" to the plaintiff's injury, when no medical evidence was
presented
to make the causal connection more probable than not), and in Werre v. David (1996),
275
Mont. 376, 913 P.2d 625 (holding that the trial court did not abuse its discretion
in excluding
evidence of family conflicts, including an extramarital affair, when there was no
evidence
of any causal connection with those and plaintiff's mental disorders).
¶43 Finally, it is necessary that we address Chief's argument that the District
Court
manifestly abused its discretion in granting Durdens' motion for new trial because
Durdens
failed to object, request an admonition from the court to the jury or request
corrective jury
instructions with respect to the various testimony and incidents of attorney
misconduct on
which the court based its decision. Chief cites our decision in Rasmussen v. Sibert
(1969),
153 Mont. 286, 456 P.2d 835, for the rule that, with respect to improper testimony
and
argument, a litigant's failure to object, move to strike or for mistrial, or to
request an
admonition or corrective jury instruction constitutes a waiver of objection and
cannot be
urged for the first time in a motion for new trial. Rasmussen, 153 Mont. at 294,
456 P.2d
at 839-40.
¶44 While Chief's statement of the rule is accurate, its argument that the rule was
not
followed in this case is incorrect. The record reveals that Durdens' counsel filed
various
pretrial motions in limine, made contemporaneous objections, moved to exclude
improper
evidence and argument during trial and continued to object to Chief's questioning
regarding
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the same issues throughout the trial. This is not the sort of case that we faced in
Rasmussen,
where counsel "did nothing." Rasmussen, 153 Mont. at 295, 456 P.2d at 840.
¶45 Prior to trial, Durdens' counsel filed motions to exclude evidence of the
medical
conditions of other Durden family members without proper medical foundation and
evidence
that these other family members did not file claims; to exclude evidence of
comparative or
third party negligence; and to exclude evidence of settlement or collateral
sources. During
a discussion of these matters prior to opening statements, Durdens' counsel inquired
of the
judge, "point of clarification, so I don't jump up, but in terms of medical
evidence, we
reserve, at least, the adequacy of the medical foundation as it comes in then. Can
we make
those objections during trial?"
¶46 The litany of topics as described by the District Court were all brought out in
Chief's
opening statement at the end of the first day of trial. While Durdens' counsel did
not object
during Chief's opening, counsel did file a motion the following day, prior to the
start of that
day's proceedings, to exclude evidence of "possible" sources of symptoms not
properly based
on relevant medical evidence. At an in-chambers hearing on this matter, Durdens'
counsel
referred to Chief's attempt to attribute the cause of Mrs. Durden's and April's
problems to,
among other things, cramped living quarters, family environment, genetic
abnormalities,
home schooling, religious beliefs, hearing problems, and developmental delays. The
District
Court Judge ruled that Durdens' counsel could object as specific questions were
asked by
Chief's counsel.
¶47 An extensive review of the record reveals that Durdens' counsel did repeatedly
object,
throughout the course of the trial, to questions posed by Chief's counsel to both
lay and
expert witnesses regarding: whether April had hearing and other problems at birth;
whether
April met the normal developmental milestones while growing up; whether April had any
learning disabilities or behavioral problems prior to the CO exposure; whether there
was any
family history of mental retardation; whether April sustained a head injury in a
fall; whether
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Mrs. Durden had a personality disorder or psychological problems prior to the CO
exposure;
the nature of Mrs. Durden's religious beliefs and practices; the fact that Mrs.
Durden's sister
worked for Durdens' counsel's law firm; and the effectiveness of home schooling
children.
Furthermore, during the numerous in-chambers hearings on these matters, Chief's
counsel
was unable to lay adequate medical foundation that the matters referred to were the
cause
of Mrs. Durden's and April's condition.
¶48 We hold that the trial court did not manifestly abuse its discretion in
granting Durdens'
motion for new trial, and we affirm on this issue.
III.
¶49 Did the District Court err in allowing Chief's medical expert, Dr. Donna Seger,
to testify?
¶50 Prior to trial, Durdens filed a motion to exclude the testimony of Chief's
medical
expert, Dr. Donna Seger, or in the alternative, to limit her testimony to the facts
and opinions
that were disclosed prior to the close of discovery on July 31, 1996. After hearing
argument,
the District Court denied Durdens' motion to exclude Dr. Seger's testimony, but
granted
Durdens' motion to limit her testimony to the disclosures made in Chief's Rule 26(b)
(4)(A),
M.R.Civ.P., disclosures.
¶51 On cross-appeal, Durdens argue that the District Judge erred in failing to
grant their
pretrial motion to exclude Dr. Seger's testimony. Durdens contend that Chief
failed to
adequately disclose and supplement Dr. Seger's opinions and the basis for her
opinions, as
required by Rule 26(b)(4)(A), M.R.Civ.P., and also failed to live up to its
representation that
it would provide full disclosure. Finally, Durdens maintain that as a sanction,
this Court
should preclude Chief from calling Dr. Seger or any similar expert in the retrial of
this case
on damages. Chief contends that it complied with the expert-witness disclosure
rule, with
the court's scheduling order and that its expert-witness disclosure was as detailed
as Durdens'
expert-witness disclosure.
¶52 Generally, the district court judge is in the best position to determine good
faith
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discovery efforts, and, absent an abuse of discretion, this Court will not disturb
the trial
court's determinations relating to disclosure of experts and discovery in general.
Lutz v.
National Crane Corp. (1994), 267 Mont. 368, 381, 884 P.2d 455, 462-63. In this
case, Chief
filed a general disclosure on Dr. Seger on September 27, 1995. Durdens' expert, Dr.
Weaver,
was not deposed until July 1996. His opinion and medical records were not obtained
for
review by Dr. Seger until that time. Subsequently, Chief noticed Dr. Seger's
deposition for
August 22, 1996, however, Durdens canceled the deposition. Based on these facts, we
hold
that the District Court did not abuse its discretion in allowing Dr. Seger to
testify.
¶53 Furthermore, as indicated above, this case is being remanded for a new trial
on the
issue of causation and, if causation is proven, on damages as well. We have stated
that,
while the grant of a new trial by a district court is not the filing of a new action
and while
the parties are limited to the contents of their original pleadings, the new trial
must be
commenced fresh or new and that the evidence and testimony of the previous trial is
null and
void, except when governed by existing rules of evidence. Town Pump, Inc. v.
District
Court (1979), 180 Mont. 358, 361-62, 590 P.2d 1126, 1128-29 (citing Waite v. Waite
(1964), 143 Mont. 248, 389 P.2d 181). An order granting a new trial restores the
parties to
the position they occupied before the trial. Waite, 143 Mont. at 254, 389 P.2d at
185
(citation omitted).
¶54 Accordingly, on remand, the court is at liberty to allow discovery to be
reopened, to
compel discovery, to sanction discovery abuses and, generally, to make whatever other
discovery rulings may be required or appropriate under the circumstances and which
are
consistent with this case being tried anew as to causation and damages.
¶55 Reversed in part, affirmed in part, and remanded for further proceedings
consistent
with this opinion.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
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/S/ KARLA M. GRAY
/S/ JIM REGNIER
Justice Terry N. Trieweiler specially concurring.
¶56 I concur with the majority's decision to affirm the District Court's order
which granted
the plaintiffs a new trial, and to reverse that part of the District Court's order
which granted
judgment as a matter of law to the plaintiffs. In light of the decision to remand
this case for
a new trial, I disagree that it was necessary to discuss whether the testimony of
Dr. Donna
Seger was properly admitted in the previous trial. However, was I to reach that
issue, I
would also disagree with the majority's conclusion that much of her testimony did
not violate
the rules of discovery and need not have been excluded as a sanction for that
violation.
¶57 Because this case is being remanded for a new trial, the admissibility and
scope of
Dr. Seger's testimony at that trial will necessarily have to be considered based on
the posture
of discovery at that time. Except as it relates to issues raised on appeal, whether
evidence
was or was not properly admitted in the previous trial is irrelevant to any future
proceeding,
and there is no real point to the majority's discussion of that issue. Having said
that,
however, I also conclude that the majority's discussion of Dr. Seger's testimony
misses the
whole point of the plaintiffs' objection.
¶58 The majority apparently concludes that because the plaintiffs scheduled Dr.
Seger's
deposition and then canceled it, the District Court did not abuse its discretion
when it
allowed Dr. Seger to testify. But it is not the plaintiffs' contention that the
District Court
abused its discretion when it allowed Dr. Seger to testify. It is the plaintiffs'
contention that
the District Court abused its discretion when it first ordered that Dr. Seger's
testimony would
be limited to the disclosures made by the defendant pursuant to Rule 26(b)(4)(A),
M.R.Civ.P., and then allowed Dr. Seger to testify as an expert on matters which had
not been
disclosed.
¶59 For example, the defendant's expert witness disclosure gave no indication that
Dr. Seger would testify regarding the plaintiffs' psychological disorders, learning
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disabilities,
or possible causes, other than carbon monoxide, of their symptoms. Yet, she was
allowed
to do so. The defendant's expert witness disclosure gave no indication that Dr.
Seger would
be asked to testify as an expert psychological witness regarding the mental health
of people
that she had never examined, tested, nor seen. Yet, she was allowed to do so. The
discovery
responses which were provided by the defendant indicated that general statements
about Dr.
Seger's opinion and incomplete documentary evidence would be supplemented at a later
date.
However, supplementation was never provided. In short, the expert witness
disclosures
made by the defendant regarding the testimony of Dr. Seger were completely
inadequate to
enable plaintiffs to fully cross-examine Dr. Seger at the time of trial.
Furthermore, the rules
of discovery anticipate that written interrogatories and requests for production
should be
sufficient to discover the substance of the opinion of an opposing party's expert
and that
person's basis for his or her opinion. There is no right pursuant to Rule 26(b)(4),
M.R.Civ.P., to depose the other party's expert without court approval. Failure to
provide
adequate witness disclosure certainly cannot be excused on the basis that the party
which
sought disclosure did not take a deposition--especially when experts such as Dr.
Seger are
located so far from Montana and charge fees as high as $500 an hour to share their
opinions.
¶60 For these reasons, if I was to reach the issue of whether or not the District
Court
abused its discretion when it allowed Dr. Seger to testify to matters which had not
been
disclosed in the defendant's expert witness disclosure, I would hold that the
District Court
did abuse its discretion. I conclude that the majority first ventures into an area
which is
unwarranted by its disposition of the case, and then while doing so, arrives at the
wrong
conclusion.
¶61 For these reasons, I concur with the result arrived at by the majority, but
disagree with
its unnecessary discussion of the admissibility of Dr. Seger's opinions.
/S/ TERRY N. TRIEWEILER
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