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No. 99-234
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 217
MARIA RENVILLE,
Plaintiff and Appellant,
v.
URSULA TAYLOR,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Marge Johnson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dennis P. Connor, Attorney at Law, Great Falls, Montana
For Respondent:
William J. Gregoire, Smith, Walsh, Clark & Gregoire, Great Falls,
Montana
Submitted on Briefs: February 17, 2000
Decided: August 11, 2000
Filed:
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__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
¶1 The Plaintiff, Maria Renville, brought this action in the District Court for the Eighth
Judicial District in Cascade County, to recover damages from the Defendant, Ursula
Taylor, for injuries suffered in an automobile collision. Following a jury trial, the jury
found in favor of Renville, and awarded damages in the amount of $17,553. Renville
moved for a new trial, based on insufficiency of evidence to justify the verdict and
irregularities in the proceedings. Renville also requested sanctions against Taylor for
violation of the District Court's order in limine which excluded certain evidence and for
improper closing argument. These motions were denied by operation of law. Renville now
appeals the jury's verdict and the District Court's denial of her motion for a new trial and
sanctions. We reverse the judgment of the District Court.
¶2 We find the following issues dispositive:
¶3 1. Was the jury's damage award supported by substantial evidence?
¶4 2. Should Taylor have been sanctioned for misconduct by her attorney?
FACTUAL BACKGROUND
¶5 On April 1, 1995, the Plaintiff, Maria Renville, was riding as a passenger in Matthew
MacDonald's 1984 Mazda pickup truck. MacDonald was traveling west on 36th Avenue
Northeast in Great Falls, Montana, when he stopped for traffic at the intersection with
Ninth Street Northeast. The Defendant, Ursula Taylor, was also driving west on 36th
Avenue Northeast in her 1987 Ford Taurus. Taylor was traveling directly behind
MacDonald and failed to stop when MacDonald stopped. Taylor's vehicle collided with
the rear end of MacDonald's truck. MacDonald's truck was not equipped with head rests
and the force of the collision caused Maria's head to snap back and hit a piece of metal
near the passenger side rear window.
¶6 Following the accident, Maria was treated for cervicothoracic and lumbosacral strain
injuries, myofascial pain syndrome, and a major depressive disorder with mood and
anxiety disturbance affecting her myofascial pain syndrome and muscle contraction
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headaches. Maria's treatment has been extensive and ongoing, and at the time of trial, in
December 1998, her past medical expenses had exceeded $17,357.
¶7 Maria's father, Robert Renville, suffers from a severely disabling disease of the spinal
cord, known as Ankylosing Spondylitis. Robert is an incomplete quadriplegic as a result
of his spinal disease. Prior to Maria's accident, her father's doctors suggested that she be
tested for the disease, which is hereditary. On February 3, 1995, the results of Maria's
blood test were received by the Renvilles. Her blood was found to be positive for HLAB-
27, the gene marker for Ankylosing Spondylitis. As a result of the positive blood test,
Maria's mother and father believed that she also had the disease.
¶8 On February 9, 1995, Maria's mother, Janice Renville, brought her to see Dr. Sweeney.
Dr. Sweeney wrote the following in his notes:
Mother was worried that the patient due to having back pain on and off for a few
years was developing this [Ankylosing Spondylitis] also and she is wondering if she
would be eligible for disability. She is presently going to Job Search and she has to
do a lot of walking looking for a job to qualify for her welfare check and mother
thinks it is making her back pain worse.
Dr. Sweeney referred Maria to Dr. Susan Effertz, a rheumatologist, for additional
evaluation.
¶9 On March 29, 1995, Janice brought her daughter to see Dr. Effertz. Janice testified that
she filled out the majority of the patient forms, including a form which stated that Maria
had Ankylosing Spondylitis and suffered from Juvenile Arthritis. Dr. Effertz's notes report
the following impression:
Social situation, in which a declaration of some kind of arthritis or disability would
make it a lot easier for her to continue getting her welfare check, but would also, I
think, discourage her from getting her GED and participating in society in a normal
fashion.
Dr. Effertz's notes also state as follows:
The mother describes enthusiastically the patient's father, who is said to have such
severe ankylosing spondylitis at age 42 that he keeps his head tucked in in a certain
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way and is tremendously disabled . . . . They expect Maria to end up the same and
she probably is disabled. Surely she must have some kind of arthritis, the mother
feels, because she has pain, pain in the neck and mid back and low back. There is no
history of injury . . . . In fact, the entire interview was quite bizarre and unique. Not
by subtlety or by tricks of eye contact nor by, eventually and desperately, my
barking out commands to the mother to be quiet and let the girl answer, could I ever
get an interview with the subject. The mother does volunteer that the girl has had the
back pain for 2 or 3 years.
¶10 Dr. Effertz's examination of Maria three days before her accident disclosed nothing
out of the ordinary. Dr. Effertz also attempted to explain to Maria's mother that 5 to 10
percent of the population tests positive for the Ankylosing Spondylitis gene marker HLAB-
27, and that a positive blood test only determines susceptibility for the disease. It does not
indicate that a patient actually has the disease.
¶11 Prior to trial, on October 20, 1998, Maria's attorney moved in limine for an order
prohibiting Taylor from offering testimony or otherwise referring to hearsay statements in
Maria's medical records, which were not attributable to Maria. He specifically sought to
exclude statements regarding welfare, and statements made by Maria's mother, Janice.
¶12 In the November 30, 1998, Pretrial Order the parties agreed that "Defendant Ursula
Taylor admits that she was at fault and negligently caused the accident between the
MacDonald vehicle and her vehicle." Accordingly, the only issues submitted to the jury
were whether the accident caused injuries to Maria and, if so, the amount of her damages.
¶13 On December 10, 1998, the jury returned a verdict which found that the accident on
April 1, 1995, did cause injury to Maria, and that she sustained damages in the amount of
$17,553. Even though the jury was instructed to award damages for past and future
medical expense, loss of earnings and earning capacity, pain and suffering, loss of ability
to pursue an occupation, and loss of ability to pursue an established course of life, the
jury's general verdict was limited to the amount of the past medical expenses.
STANDARD OF REVIEW
¶14 The function of this Court is not to agree or disagree with a jury's verdict. This Court's
role is to determine whether there was substantial evidence to support the verdict. Brockie
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v. Omo Const., Inc. (1994), 268 Mont. 519, 522, 887 P.2d 167, 169. If conflicting
evidence exists, we do not retry a case because the jury chose to believe one party over
another. Brockie, 268 Mont. at 522, 887 P.2d at 169. However, a jury may not disregard
uncontradicted, credible, nonopinion evidence. Brockie, 268 Mont. at 522, 887 P.2d at 169.
ISSUE 1
¶15 Was the jury's damage award supported by substantial evidence?
¶16 Maria contends that because the jury's general damage verdict compensated her for
only past medical bills, and ignored uncontroverted evidence of other damages, it was not
supported by substantial evidence.
¶17 Taylor contends that the jury's award of $17,553 is supported by substantial credible
evidence. Taylor asserts that the evidence of damages was not uncontroverted. Taylor
argues that the testimony of Drs. Stratford and Wilson contradicted other evidence of
damages because they testified that Maria's complaints were caused by a psychological
component unrelated to the accident. Additionally, Taylor contends that because Maria
only documented medical expenses of $17,357.44, and the jury awarded approximately
$200 more than that amount, that Maria was awarded damages in addition to past medical
expenses.
¶18 Maria gave the following testimony regarding the accident and her injury:
Q. Now, at times, despite your best efforts, and despite taking care of these
medications, does it get to the point where you can't take the pain and have to go
seek either emergency relief or seek immediate walk-in assistance at the clinic?
A. Yes.
Q. When is the last time that you had to go to the emergency room at the hospital?
A. Really early Friday morning, this last Friday.
....
Q. And what did they do and how did they treat you there?
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A. They had taken me and asked what was wrong. I told them what was going on. I
had gotten--I woke up with this pain. I need to go back to what happened. I woke up
with this pain that had woken me up from sleep, with my neck. And it had like
locked to one side, I could not turn it. And I was scared, and it hurt, very painful,
very excruciating. And I was scared. I went up to the emergency room, and they
treated me with giving me a shot of Demerol and a shot of Phenergan.
Q. Is that what you had to do also in the past at times when this pain has become
intractable?
A. Yes, I have.
....
Q. Now, in the meantime, what they did for you there, did you still see the need to
go see Lutes the next day?
A. Yes. I sure had to. I didn't want to. I wasn't looking forward to it. I figured I'd be
better by the next day. The pain wasn't going away. My neck was still locked, I
couldn't move it. I didn't know what was wrong. I figured I should follow up with
my doctor than having to seek or proceed going back to the emergency. So I
followed up with my doctor, Rod Lutes. And I had to get injections of, I believe it
was like a nerve block injections in my neck, which are definitely not fun to have.
They are very painful.
¶19 Maria's mother gave the following testimony regarding the effect of the accident on
her daughter:
Well, she can't do the things she used to do. In fact, I figured she would get better,
you know, after a couple of months. And she has gotten worse. Then about the time
I think she gets better again, she has gotten worse. We went from doctor to doctor to
doctor to find out, I said "Get to the bottom of this and find out what she has got so
we can fix it and get her well." Because she is--She gets very severe pain. And she
don't want to live on medication all of her life. She wants to be able to live normal.
¶20 Rodney Lutz, a physicians assistant who has treated Maria since February 1998,
related several office visits during which Maria appeared to be in severe pain, including
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the following visit:
On this particular day when I saw her, she was a walk-in patient. She had called and
told the front office she had this severe headache. And PA Hewett was not available,
so I told them to bring her in and I would take a look at her. And I think further in
the note here it will tell us that when I came into the exam room, I found her lying
on the exam table just kind of rocking back and forth, holding herself more or less in
a fetal type curled up ball. And she was in a lot of pain.
¶21 Taylor presented the testimony of a neurologist, Dr. Lennard Wilson, who examined
Maria prior to trial. Dr. Wilson testified that he questioned the legitimacy of certain claims
made by Maria regarding sensory loss and numbness. However, when asked by by
Taylor's counsel whether he came to any conclusions as to whether Maria was injured in
the accident, Dr. Wilson testified as follows:
I think she sustained a significant impact. From her description, I think she suffered
a whiplash injury, which is very common. I think that's a--That's very painful. It
takes a while to recover. And when we find an extensive evaluation such as she's
encountered . . . we would expect someone to recover after a whiplash injury of that
nature, without complication, in a reasonable period of time.
Additionally, when asked what a reasonable period of time would be, Dr. Wilson stated:
The standard--And again, this is a range, there is nothing exact in this, but most
people, we find are at maximal medical improvement at three months. That doesn't
mean they're absolutely pain free. Some of them still have residual pain.
¶22 Dr. Wilson also testified as follows:
Q. Okay. And you understand that Maria was getting trigger point injections?
A. We just talked about it. There were not numerous ones. Yes, there were some.
Q. And are those painful?
A. Yes. I don't give them, so I wouldn't want them done to me, no.
¶23 Taylor additionally presented the testimony of Dr. William Stratford, a psychiatrist,
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who examined Maria one month prior to trial. Dr. Stratford testified:
My opinion is that there is--that there is a long history of psychological disturbance
in her and that she probably does suffer from some depression and some anxiety;
and that there is every likelihood or probability that these symptoms are exaggerated
or magnified in her mind because of her depression or because of her circumstances,
and that these are, in many respects, reflections of her psychological condition and
are not neurological phenomenon.
¶24 We have previously held that "where a jury fails to award any damages when the only
evidence of record supports an award, that verdict is not supported by substantial evidence
and may be set aside." Thompson v. City of Bozeman (1997), 284 Mont. 440, 446, 945
P.2d 48, 52. In Thompson, we concluded that there was insufficient evidence to support
the jury's award of zero damages for Thompson's pain and suffering, and stated:
Thompson presented evidence that the City's negligence caused her injury and the
City presented conflicting evidence through its causation witnesses. The jury found
in Thompson's favor on that issue. Thompson also presented substantial evidence
that she experienced pain and suffering for at least several months as a result of
being injured in the vehicle accident. The City did not controvert her evidence on
pain and suffering. Because no substantial evidence supports the jury's failure to
award damages for pain and suffering, the jury's verdict in this regard was
impossible.
Thompson, 284 Mont. at 446-47, 945 P.2d at 52.
¶25 Similarly, in this case Maria presented evidence that Taylor's negligence caused her
injury and Taylor presented evidence that the injury was less severe than claimed. The
jury found that Maria had been injured in the collision. Maria also presented substantial
evidence that she experienced pain and suffering since the time of the accident in 1995.
The testimony of Maria, her mother, and the physicians assistant Lutz clearly supported an
award for pain and suffering. Moreover, the testimony of Dr. Wilson corroborated the fact
that Maria suffered a painful injury as a result of the accident. While Dr. Stratford's
testimony questioned the extent of her pain and suffering, it did not controvert the
evidence that she had pain and suffering as a result of the accident.
¶26 We have previously held that, although it is within the jury's province to weigh the
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evidence and determine credibility, a jury is not free to disregard uncontradicted, credible,
nonopinion evidence. Thompson, 284 Mont. at 443, 945 P.2d at 50. We conclude that
Maria was entitled to some award of damages for the pain and suffering proven in this
case. We further conclude that the jury's award limited to past medical expenses is not
supported by substantial evidence and should be set aside.
¶27 Taylor's assertion that the jury awarded other types of damages in addition to past
medical expenses because the jury award was approximately $200 more than the amount
of past medical expenses listed on Maria's trial exhibit is without merit. The jury had
heard testimony from Maria that she had visited the emergency room and the clinic the
week before trial. The expense of these visits was not included on her trial exhibit,
however, the jury was presented with evidence that the cost of Maria's emergency room
and clinic visits averaged about $130 per emergency visit and $69 per clinic visit.
Therefore, the additional $200 appears to cover those medical expenses, rather than any
other element of damages on which the jury was instructed.
¶28 Accordingly, we conclude that the jury's damage award was not supported by
substantial credible evidence. For that reason, we set aside the jury's verdict on damages
and remand to the District Court for a new trial limited to the issue of damages. We note
that Taylor has not appealed the jury's finding that Maria was injured as a result of the
parties' collision. Therefore, upon retrial that fact need not be re-established.
ISSUE 2
¶29 Should Taylor have been sanctioned for misconduct by her attorney?
¶30 Maria asserts that Taylor's violation of the District Court's order excluding hearsay
statements made by her mother and defense counsel's improper closing argument should
result in the imposition of sanctions. She cites to Kuhnke v. Fisher (1987), 227 Mont. 62,
740 P.2d 625, in which we upheld a District Court's award of sanctions pursuant to § 37-
61-421, MCA, which provides:
An attorney or party to any court proceeding who, in the determination of the court,
multiplies the proceedings in any case unreasonably and vexatiously may be
required by the court to satisfy personally the excess costs, expenses, and attorney
fees reasonably incurred because of such conduct.
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¶31 In response, Taylor contends that no sanctions are warranted because her attorney did
not violate the order in limine or incorrectly state the law during closing arguments.
¶32 Prior to trial, the District Court granted Maria's motion in limine to exclude from
evidence hearsay statements in the medical records which were not attributable to Maria,
but were made by her mother. Additionally, the District Court excluded all statements
from the medical records regarding welfare. However, during opening statement, Taylor's
counsel told the jury:
I think the evidence is going to show that this case actually started about three to
four years prior to any automobile accident. The automobile accident took place on
April 1st, 1995. We know, and the evidence will be, that Maria and her mother went
to Dr. Sweeney on February 9th, 1995, and told Dr. Sweeney that Maria has been
having back pains for two to three years. Maria's mother said, based upon these back
pains that Maria has been suffering for two to three years, is Maria entitled to a
medical disability?
....
So what is this case all about? This is a case about someone who is seeking a
disability, and the doctors won't give it to her.
¶33 During closing argument, Taylor's counsel made the following comment on the jury
instructions:
You'll see this instruction. This instruction can be easily misunderstood, so I'd better
go over it. It says, if you find that Maria was injured in this accident, then it goes
down here and says, your award should include, should, should, should. The judge
agrees, everyone in this courtroom agrees that doesn't mean you must award. That
just means if you find that she was injured in this accident and if the evidence is
sufficient.
¶34 Additionally, Taylor's counsel stated the following during closing argument:
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If you find that she should have been better at the time that Dr. Walz examined her,
you have to sit down and figure out, okay, what's reasonable to award her from the
time of the accident to the time that she should have been able to walk away from
this thing and get her life back together, that's the time period that you award that
for.
¶35 Following trial, Maria requested that the District Court grant a new trial and award
sanctions to her for counsel's disregard of the District Court's order excluding hearsay and
evidence regarding welfare, and for his remarks during closing argument. However, that
motion was denied by operation of law after 60 days, pursuant to Rule 59(d), M.R.Civ.P.
¶36 We conclude that the actions of Taylor's counsel do not warrant the imposition of
sanctions pursuant to § 37-61-421, MCA. Although counsel's statements appear to be in
violation of the order in limine, they do not demonstrate a blatant disregard for the District
Court's order, and we cannot conclude in light of other evidence that they unreasonably
and vexatiously multiplied the proceedings in this case. Accordingly, we decline to impose
sanctions against Taylor.
¶37 We reverse the judgment of the District Court and remand to the District Court for a
new trial limited to the issue of damages.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
Justice Karla M. Gray, concurring in part and dissenting in part.
¶38 I concur in the Court's opinion on issue two, whether Taylor should have been
sanctioned for the conduct of her attorney. I respectfully dissent, however, from that
opinion on issue one, whether substantial evidence supports the jury's damage award. I
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would conclude that it does and affirm.
¶39 The Court states that the only issues remaining for trial were whether the accident
caused injuries to Maria and, if so, the amount of her damages. There is no longer a
question of whether the accident caused injuries to Maria; the jury found it did and that
determination is not appealed. In my view, however, the second issue remaining for trial
was not merely the amount of Maria's damages, as the Court states it. It was the amount of
damages caused by the accident. That distinction is important to the first issue before us,
namely, whether substantial evidence supports the jury's damage award. The Court
concludes it does not. I disagree.
¶40 I do agree with the Court's statement of the controlling principles regarding this issue.
If conflicting evidence exists, we do not retry a case because the jury chose to believe one
party over another. At the same time, however, a jury may not disregard uncontroverted,
credible, nonopinion evidence. See Brockie, 268 Mont. at 522, 887 P.2d at 169 (citations
omitted). We also have held that where the only evidence supports an award of damages
and the jury fails to award any damages, the verdict is not supported by substantial,
credible evidence. Thompson, 284 Mont. at 446-47, 945 P.2d at 52. In Thompson, the
plaintiff presented substantial evidence that she experienced pain and suffering for some
months "as a result of being injured in the vehicle accident [and] [t]he City did not
controvert her evidence on pain and suffering." On that basis, we concluded there was
insufficient evidence to support the jury's award of zero dollars for pain and suffering.
Thompson, 284 Mont. at 446-47, 945 P.2d at 52.
¶41 There is another important principle relating to our review of jury damage awards that
the Court does not mention, but which is important in properly resolving this issue. That
principle is that it is impossible and improper for a court to try to segregate or ascertain the
underpinnings for a jury verdict which awards damages without breaking them into
separate elements. See Busta v. Columbus Hospital Corp. (1996), 276 Mont. 342, 375, 916
P.2d 122, 142; Evans v. Teakettle Realty (1987), 226 Mont. 363, 365-66, 736 P.2d 472,
474. On the record before us here, the proper application of all of these principles
regarding damage awards and the sufficiency of evidence to support them compels a
conclusion that the jury's award of damages to Maria in the amount of $17,553 is amply
supported by evidence and must be upheld.
¶42 The Court starts its analysis from the implicit premises that 1) Maria documented
medical expenses of $17,357.44; 2) her medical expense evidence was all uncontroverted
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insofar as the relationship between the accident and the expenses incurred; and 3) the jury
necessarily accepted those amounts and then "appears" to have merely added on
approximately $200 for Maria's most recent emergency room and clinic visits in reaching
its total damage award. At that point, the Court feels free to conclude that the jury awarded
her nothing for pain and suffering even though she presented substantial and
noncontroverted evidence about her extensive pain and suffering. A review of the record
debunks the Court's second premise, and controlling law negates the third.
¶43 Rather than trying to set forth every item of testimony which undercuts the Court's
conclusory notion that the documented medical expenses all related to injuries Maria
sustained in the accident, I will present only a few examples of testimony--from Maria's
own medical witnesses--which controverted their initial testimony that all the documented
expenses were accident related. Dr. Sweeney, who practiced at the Immediate Care
Center, for example, testified on direct examination that the medical bill summary
contained in Plaintiff's Exhibit 9 of treatment he provided, including the physical therapy
he ordered and associated treatment, all related to the accident. On cross-examination,
however, he testified that on April 7, 1995--the first time he saw Maria after the accident--
her chief complaint was tightness in the chest, coughing, and hurting to breathe. He saw
her again on May 5, when her main complaint and reason for coming in was an upper
respiratory infection. Again on June 2, her main complaint was still the upper respiratory
infection. On August 10, Dr. Sweeney saw Maria for a sore throat. In October of 1995, her
primary complaint was that she was not sleeping well, and Dr. Sweeney's opinion was that
the decongestants she had been taking may have contributed to her disrupted sleep.
¶44 These visits to Dr. Sweeney clearly were not related to the accident and, therefore, the
medical expenses associated with these visits were not damages resulting from the
accident. I would submit that the documented medical expenses regarding these visits to
Dr. Sweeney clearly controvert the Court's implicit premise that all documented medical
expenses were related to the accident and its corresponding determination that the jury
necessarily accepted all the medical expense evidence as relating to the accident.
Therefore, since the evidence was in conflict, it is clear that the jury was not required to
accept Maria's position that all the documented medical expenses resulted from the
injuries she sustained in the accident.
¶45 The testimony of physician's assistant Lutz, who was employed at Occupational
Sports Medicine Associates (Sports Medicine), is similar to that of Dr. Sweeney; that is, it
did not constitute uncontroverted evidence that all the medical expenses associated with
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his or Sports Medicine's treatment of Maria was related to, or resulted from, the accident.
Certainly, he began by testifying that all the Sports Medicine medical bills reflected on
Plaintiff's Exhibit 9 related to injuries Maria received in the accident. He also testified,
however, that Maria presented to Hewett, another physician's assistant, on two occasions
in June of 1997, with complaints of back pain and Hewett found no muscle spasm or
trigger points. The same was true of another visit to Hewett in January of 1999. Indeed,
Lutz's diagnosis of myofascial pain (back pain involving trigger points) resulting from the
accident was based entirely on Maria's statements to him--controverted throughout the
record--that she did not have back problems before the accident and was healthy prior to
that time. Again, the relationship between the expenses associated with the referenced
visits to Hewett and the accident is controverted and the jury was not required to accept all
the documented medical expenses.
¶46 Dr. Davis, Maria's clinical psychologist, also testified initially that, to the extent his
bills were reflected on Plaintiff's Exhibit 9, all treatment related to the accident. Later,
however, he testified that everything he had testified to did not necessarily result from the
accident and that some of Maria's problems preexisted that event. With regard to one visit
from Maria, he observed that part of the stress he was treating her for resulted from her
attorney vigorously encouraging her to become involved in job search activities. I am not
convinced that lawyer-induced stress of this type, and associated treatment, truly relates to
the accident or was perceived by the jury to do so.
¶47 Dr. Davis also agreed there is always a possibility that someone's problems were in
wanting to exhibit symptoms. But his later testimony concerning Maria's pain and
suffering did even more to controvert the picture she and her mother presented to the jury
on that subject. Dr. Davis testified that psychological factors are often judged to play a
role in maintaining myofascial pain syndromes. He gave Maria a pain behavior test,
explaining that much of pain behavior is learned and reinforced by environmental factors;
indeed, the more pain behavior demonstrated, the more likely the pain complained of is in
some degree controlled by environmental factors and reinforced from the environment.
Maria's score on the pain behavior test suggested some possibility of that in her case.
Another score, from a different test, indicated a possibility of symptom exaggeration by
Maria. Finally, Dr. Davis also testified that she had left, or complained of, several doctors
and emergency room personnel because they did not listen to her enough, did not "hear
her distress."
¶48 Finally, Dr. Peterson, associated with Sports Medicine, initially testified that all of the
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care and treatment on Plaintiff's Exhibit 9, including that from Dr. Davis, the Clinic, and
others "appear to be related to" Maria's injuries from the accident. However, he later
identified at least two occasions--one in June of 1997 and one in January of 1998--when
no muscle spasms were located. Importantly, and like Lutz, he related Maria's painful
trigger points to the accident because that was what she told him. Finally, Dr. Peterson
observed that Maria quit seeing Dr. Walz because they did not hit it off after the
examination he conducted could not locate anything wrong with Maria and he was unable
to find any pain in the lower back area.
¶49 In short, and without even reviewing the medical testimony presented by the
defendant, there is substantial conflict in the record about the relationship between some
of Maria's medical expenses and the accident at issue. Also importantly, given the Court's
discussion of her pain and suffering, there is substantially conflicting evidence about not
only the actual extent of that pain overall, but its relationship to--that is, whether it was
caused by--the accident. Clearly, the evidence of record required the jury to award Maria
some medical expense damages; just as clearly, the conflicting evidence did not require
the jury to award the total medical expense damages documented by Maria. In addition,
the evidence clearly supported an award of pain and suffering damages; but, since the
evidence conflicted regarding the extent of her pain and suffering and how much of it
resulted from the accident, it was within the jury's discretion how much to award for that
element of damages. In this regard, the present case differs significantly from Thompson,
where the City did not controvert the plaintiff's evidence of pain and suffering at all and,
as a result, we concluded there was insufficient evidence to support the jury's award of
zero dollars for pain and suffering. See Thompson, 284 Mont. at 446-47, 945 P.2d at 52.
Similarly, with regard to both medical expenses and pain and suffering, the jury here was
not presented with uncontradicted, reliable evidence which it would not have been free to
disregard. See Brockie, 268 Mont. at 522, 887 P.2d at 169.
¶50 There is another important difference between this case and Thompson, of course, and
it relates to the form of verdict the jury was provided and returned. In Thompson, the jury
was provided a verdict form with separate lines for damages for medical expenses, lost
wages, pain and suffering, loss of ability to pursue occupation, loss of future wages and
others. Thompson, 284 Mont. at 442, 945 P.2d at 49. It was the verdict form itself which
enabled this Court to determine precisely what the jury had awarded for each element of
damages and, in pertinent part, that it had awarded zero dollars for pain and suffering.
Thompson, 284 Mont. at 442, 945 P.2d at 49.
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¶51 In the present case, the verdict form had only one line for damages, and the total
damages awarded were $17,553. It simply is not possible for this Court to determine how
many separate damage elements were awarded and, indeed, the Court's opinion in this
regard is forced to admit that it "appears" that the approximately $200 more than the
documented medical expenses covered Maria's last emergency room and clinic visits,
which had not been included in the documentation. From this, the Court concludes that the
jury's award was "limited to past medical expenses" and that, as a result, it was not
supported by substantial evidence. Given this verdict form and this record, I submit that
the Court's conclusion is pure speculation and, further, that it is impossible for the Court to
know what the awarded damages encompassed. It is error to try to ascertain the
underpinnings of the total damage award. See, e.g., Busta, 276 Mont. at 375, 916 P.2d at
142; Evans, 226 Mont. at 365-66, 736 P.2d at 474.
¶52 I would conclude that the jury's damage verdict is supported by substantial, credible
evidence. Accordingly, I would affirm the District Court on this issue, as well as on the
second issue, and I dissent from the Court's failure to do so.
/S/ KARLA M. GRAY
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