No
No. 98-608
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 125
294 Mont. 444
981 P.2d 275
NORMA HUNT and HARVEY HUNT,
Plaintiffs and Respondents,
v.
K-MART CORPORATION, a Michigan corporation,
Defendant and Appellant.
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APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Guy W. Rogers and James E. Roberts, Brown Law Firm, P.C.;
Billings, Montana
For Respondents:
Lon J. Dale; Milodragovich, Dale, Steinbrenner & Binney, P.C.;
Missoula, Montana
Submitted on Briefs: March 25, 1999
Decided: June 3, 1999
Filed:
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__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1. This products liability action was filed by Norma and Harvey Hunt against K-
Mart Corporation. The case was tried to a jury in the Twenty-First Judicial District
Court, Ravalli County, and a verdict was rendered in favor of the Hunts. At the close
of trial, K-Mart filed a motion for new trial on grounds that the District Court
improperly allowed expert evidence of hedonic damages. The District Court denied
the motion. K-Mart appeals the denial of its motion for new trial and the resulting
judgment against it. We affirm.
¶2. The sole issue presented on appeal is whether the District Court erred in
admitting expert testimony of Norma's hedonic damages.
BACKGROUND
¶3. On April 1, 1996, the Hunts filed a complaint against K-Mart on a theory of strict
products liability resulting from Norma's fall from an office chair purchased from K-
Mart by Norma's employer. K-mart admitted the chair was defective, but disputed
the amount of damages alleged in the complaint.
¶4. At trial, the Hunts introduced evidence concerning Norma's damages for loss of
enjoyment of life, otherwise known as "hedonic damages," through the tandem
testimony of two expert witnesses, one in psychology and another in economics.
These experts calculated Norma's hedonic damages by assessing a percentage of loss
suffered by her in each area of her life on a "loss of pleasure of life scale" and then
inserting those percentages into a formula which translated the losses into actual
dollar amounts. According to the expert testimony, the monetary value of Norma's
loss of enjoyment of life was $228,526.
¶5. The jury awarded damages to Norma in the amount of $525,000 and to Harvey in
the amount of $34,000. Although the jury's verdict was presented in a special verdict
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form, the verdict did not specifically set forth that portion of the total damages
representing hedonic damages. After trial, K-Mart filed a motion for new trial on
grounds that the expert testimony regarding Norma's hedonic damages was
improperly admitted and resulted in an unfair trial and excessive damages. The
District Court denied the motion. K-Mart appeals.
DISCUSSION
¶6. Did the District Court err in admitting expert testimony of Norma's hedonic
damages?
¶7. The district court has broad discretion to determine whether or not evidence is
relevant and admissible pursuant to the Montana Rules of Evidence. We therefore
review evidentiary rulings for an abuse of discretion. Vincelette v. Metropolitan Life
Ins. Co., 1998 MT 259, ¶ 12, 968 P.2d 275, ¶ 12, 55 St. Rep. 1071, ¶ 12. Moreover, in
order for the erroneous admission of evidence to constitute grounds for a new trial
under § 25-11-102, MCA, the error must be so significant as to materially affect the
substantial rights of the complaining party. Zeke's Distr. Co. v. Brown-Forman Corp.
(1989), 239 Mont. 272, 278, 779 P.2d 908, 912. We review a district court's denial of a
motion for new trial to determine whether the court abused its discretion. Kneeland
v. Luzenac America, Inc., 1998 MT 136, ¶ 54, 961 P.2d 725, ¶ 54, 55 St. Rep. 541, ¶ 54.
¶8. In its order denying K-Mart's motion for new trial, the District Court found that:
Plaintiffs disclosed that Dr. Velin would testify as to psychological aspects of hedonic
damages and Dr. Vinso would testify as to economic aspects of hedonic damages. In this
Court's Scheduling Order of August 26, 1997, the Court ordered that all pre-trial motions,
including motions in limine were to be filed on or before January 2, 1998. Prior to trial,
Plaintiffs filed a Statement of Claim which enumerated total specific damages of almost
$800,000.00, only $228,000.00 of which were specified as hedonic damages. On April 8,
1998, the Court issued a Jury Trial Preparation Order which stated that the final pre-trial
Order was to be submitted to the Court for approval prior to June 1, 1998. The pre-trial
order identified Drs. Velin and Vinso as two Plaintiff witnesses to be called, and identified
exhibits related to the doctors. The Court also stated in its checklist for pre-trial
conference and trial that all motions must be set for hearing at least five business days
prior to trial. At no time did the Defendant file any motions or objections with respect to
the proposed testimony and/or evidence to be presented by Drs. Vinso and Velin.
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Defendant did not take exception to the testimony and evidence presented by Drs. Vinso
and Velin until Dr. Velin was placed on the witness stand the second day of trial.
¶9. The record reflects that when K-Mart objected at trial to the offered testimony,
the District Court recessed and heard arguments on the objection in chambers. The
basis of K-Mart's objection was that the experts were not qualified to testify and that
hedonic damages in general are not an appropriate subject for expert testimony in
Montana. When the District Court inquired whether K-Mart could supply any legal
authority regarding the propriety of such testimony, K-Mart failed to cite any. The
District Court overruled K-Mart's objection and the testimony was admitted.
¶10. Under Rule 103(a)(1), M.R.Evid., in order to preserve an objection to the
admission of evidence for purposes of appeal, the objecting party must make a timely
objection and state specific grounds for the objection. To be timely, the objection
must be made as soon as the grounds for the objection become apparent. Kizer v.
Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234 (citing McCormick on
Evidence (3d ed.1984), § 52 at p. 126). An objection to the introduction of evidence is
sufficiently specific if it is accompanied by a reasonably definite statement of the
grounds for the objection. Kizer, 251 Mont. at 207, 824 P.2d at 234. Failure to make a
timely and specific objection constitutes a waiver of the right to claim error on
appeal and results in the evidence being treated the same as any other admissible
evidence. Kizer, 251 Mont. at 207, 824 P.2d at 234.
¶11. The United States Supreme Court's opinion in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993), 509 U.S. 579, 592-93, 113 S. Ct. 2786, 2796, 125 L. Ed.
2d 469, 482, contemplates a hearing to determine admissibility of expert testimony
which deals with questionable science in order that the court may make "a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning or methodology
properly can be applied to the facts in issue." The usual and customary procedure
for obtaining such a hearing is the filing of a motion in limine. See Brothers v. Town
of Virginia City (1976), 171 Mont. 352, 356-57, 558 P.2d 464, 466-67. A motion in
limine is a request for guidance by the court regarding an evidentiary question,
which the court may provide at its discretion to aid the parties in formulating trial
strategy. Jones v. Stotts (10th Cir. 1995), 59 F.3d 143, 146.
¶12. The grounds upon which K-Mart lodged its objection first became apparent as
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early as September 9, 1997, when the Hunts disclosed their intention to present
expert testimony regarding Norma's hedonic damages at trial. However, K-Mart
failed to file a motion in limine at that time seeking to have this evidence excluded. K-
Mart had another opportunity to object to the introduction of this evidence when the
District Court issued its pre-trial order listing the witnesses and exhibits to be used at
trial, but again, K-Mart did nothing.
¶13. K-Mart finally lodged its objection to the admission of the expert testimony on
the second day of trial, and a hearing on the objection was held at that time. At the
hearing, the District Court inquired whether either party was aware of any appellate
decisions regarding the use of expert testimony on hedonic damages. Counsel for the
Hunts responded that "there have been decisions in other states . . . that have gone
both ways on the subject." Counsel for the Hunts argued that the article relied on by
the experts in this case had been published by the National Association of Clinical
Economists and that both experts were qualified to testify with regard to that portion
of the evidence related to their respective fields of expertise. Counsel for the Hunts
also argued that because K-Mart had known for at least a year prior to trial of the
Hunts' intention to introduce this testimony, K-Mart's objection was not timely.
¶14. K-Mart did not dispute that it was aware of the Hunts' intention to use expert
testimony to demonstrate the amount of Norma's hedonic damages, or that the
District Court's scheduling order had required all motions in limine to have been
filed by January 1998. K-Mart did not cite any legal authority to the District Court
in support of its position that this kind of testimony is not allowable in the courts of
Montana or elsewhere and, when asked whether it was aware of any professional
articles attacking the approach used by Drs. Velin and Vinso, K-Mart responded,
"Nothing that directly attacks it; no, Judge."
¶15. We conclude that the District Court did not abuse its discretion in allowing
expert testimony regarding Norma's hedonic damages due to the lack of a timely and
specific objection to the introduction of this evidence at trial. Moreover, because the
District Court did not err in allowing this evidence in the first instance, we hold that
the District Court did not abuse its discretion in denying K-Mart's motion for new
trial on the grounds that the admission of the evidence resulted in an unfair trial and
excessive damages.
¶16. Affirmed.
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/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
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