White v. Johnson

August 3 2009

DA 08-0460

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 254

BRIANNA WHITE,

Plaintiff and Appellant,

v.

LINDA JOHNSON, M.D.,

Defendant and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and For the County of Yellowstone, Cause No. DV 07-430
Honorable G. Todd Baugh, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James M. Ragain, John R. Christensen, Ben T. Sather, Ragain Christensen
Fulton & Filz, PLLC, Billings, Montana

For Appellee:

Herbert I. Pierce, III, Christopher Stoneback, Crowley Fleck, PLLP,
Billings, Montana

Submitted on Briefs: June 25, 2009

Decided: August 3, 2009

Filed:

__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1 Brianna White (Brianna) appeals from a jury verdict in the Thirteenth Judicial

District Court finding that defendant Linda Johnson, M.D. (Dr. Johnson) was not

negligent in her medical treatment of Brianna. Brianna asserts that the District Court

erred when it denied her motion for judgment as a matter of law, her motion for a

proposed jury instruction, her post-verdict motion for a new trial, and her request for

reasonable attorney fees and costs pursuant to § 37-61-421, MCA. We conclude the

District Court did not err in denying these motions and affirm the jury’s verdict.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On November 24, 1999, Brianna was brought to a medical clinic in Billings,

Montana, by her mother Gina White (Gina) with complaints about a headache and overall

flu symptoms. Brianna was seen by Dr. Johnson. At the time, Brianna was

approximately 11 years, 8 months old and weighed 57 pounds. Gina later testified that

during this visit she expressed to Dr. Johnson concerns that Brianna’s growth was

stagnant and that she was small for her age. Gina claims that Dr. Johnson told her that

some children were late bloomers and did not explore the topic further. Dr. Johnson

prescribed Imitrex for the headache and, according to Gina, told her to return in a couple

of days if the symptoms persisted.

¶3 Gina and Brianna did not return to see Dr. Johnson until February 12, 2001. At

that time, Brianna was complaining of pain in her jaw and upper facial area, headaches,

and flu-like symptoms. By this time, Brianna was approximately 12 years and 10 months

old. Gina claims that she once again inquired of Dr. Johnson about Brianna’s size and

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general lack of growth and development. Gina claims Dr. Johnson told her that if

Brianna did not show signs of maturing by age 16, then her lack of development would

be something to investigate. Dr. Johnson diagnosed Brianna with a sinus infection, and

gave her a prescription for an antibiotic.

¶4 On November 27, 2002, Brianna visited the clinic for possible strep throat. By

this time, Gina was nearly 15 years old. At this visit, Brianna and Gina saw Dr. Paul

Kelker (Dr. Kelker) because Dr. Johnson was on vacation. Dr. Kelker immediately

expressed concerns about Brianna’s size. According to Gina, Dr. Kelker seemed

“disgusted” at the fact that Brianna’s lack of development had not been previously

addressed and told Gina that Brianna appeared to him to be about 10 years old. Dr.

Kelker began testing and evaluation which ultimately led to the discovery of a

craniopharyngioma that had engulfed Brianna’s pituitary gland. Within 30 days, Brianna

underwent surgery in Denver, Colorado, for removal of the craniopharyngioma. After

the surgery, Brianna began daily hormone therapy in order to bring her development up

to normal standards.

¶5 In March 2007, Brianna filed a negligence action against Dr. Johnson. Brianna

alleged that Dr. Johnson had breached the applicable standard of care in her treatment of

her by failing to appreciate the signs and symptoms of her abnormally small stature,

immature appearance, and general lack of growth and development and by failing to

conduct the necessary follow-up and investigation of these symptoms. As a result,

Brianna asserted that she suffered serious, severe and permanent injuries and damages.

Dr. Johnson answered, denying she was negligent.

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¶6 Prior to trial, the District Court issued rulings with respect to several pretrial

motions and motions in limine filed by Brianna and Dr. Johnson, some of which are

germane to the present appeal. First, the District Court ruled that Dr. Johnson could not

argue or attempt to shift the fault or blame to Brianna or Gina for any alleged lack of

diligence in pursuing a diagnosis; however, Dr. Johnson would be allowed to address and

explain the standard of care. Second, the District Court prohibited Dr. Johnson from

calling Dr. Kelker to testify about whether or not she violated the standard of care in her

treatment of Brianna.

¶7 A jury trial was held from June 24 to June 27, 2008. The jury returned a verdict in

favor of Dr. Johnson, finding that she was not negligent in her treatment of Brianna.

During trial, the jury heard testimony from Brianna, Gina, Dr. Johnson, and other

witnesses for the defense and plaintiff, including the videotaped deposition testimony of

Richard Oken, M.D. (Dr. Oken) of California which had been taken by Brianna’s counsel

prior to trial.

¶8 Brianna claims that throughout the trial, Dr. Johnson’s defense counsel Herbert

Pierce (Pierce) repeatedly violated the District Court’s rulings noted directly above. With

respect to the first ruling—the prohibition on shifting blame to Gina or Brianna—Brianna

argues that Pierce first violated this ruling in his opening statement, when he pointed out

to the jury that Gina had only taken Brianna to Dr. Johnson for “sick” visits, but had not

taken her for “well child” visits. He told the jury:

Brianna White and her mother were one of [Dr. Johnson’s] patients.
And the first visit was in November of 1999. That visit and the second
visit and last visit with Dr. Johnson was in February of 2001. Both of

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 those visits were sick child visits. Those appointments were made that
day by Mrs. White to bring her daughter in for an urgent visit because of a
specific medical problem. The first visit was for a headache, the second
visit was for a sinus infection.
Now, there are other types of visits as I alluded to a little earlier.
There are visits for wellness checks and chronic problems. During well
child checkups is when a doctor—Mr. Ragain [Brianna’s counsel] put this
chart on the overhead for you—that’s when a doctor takes these values
and other values and puts them on a chart and tracks a child’s progress and
development. No pediatrician does that during a sick child visit. In fact,
their own expert, alluded to by Mr. Ragain, admitted that the standard of
care doesn’t require that a doctor during a sick child visit even to take a
patient’s heighth [sic]. Nobody does that.
So the two types of visits that were made and appointments that
were made by Brianna’s mother were for sick child visits. The first one
focused on the headache and the second one focused on a sinus infection.
They were not well child visits. They could have been, but they weren’t.
They were not for chronic problems, long-standing problems. They could
have been, but they weren’t.

¶9 Brianna argues that by raising this argument, Pierce was blaming Gina for the

failure to diagnose her condition in direct violation of the District Court’s order. Brianna

further points to several places in Pierce’s opening statement where he made references

to Gina and her role in the visits—including the fact that Gina herself was small in size,

thus making Brianna’s small size by comparison seem less abnormal—and reiterated the

fact that Gina had failed to schedule any medical appointments for the “specific purpose

of investigating heighth [sic] or weight or growth issues at all.”

¶10 Although Brianna’s counsel James Ragain (Ragain) did not object to these

statements during Pierce’s opening, he did bring them to the District Court’s attention

outside the presence of the jury immediately thereafter. Ragain asserted that Pierce was

violating the District Court’s pretrial ruling and shifting blame to Gina by referring to her

failure to schedule follow-up appointments to check on Brianna’s development. Pierce

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argued that he was not attempting to shift blame, but was simply challenging Gina’s

credibility regarding her concerns about Brianna’s development. Pierce asserted that

Gina’s failure to schedule well-child checkups was probative as to whether she was

actually worried about Brianna’s development at the time, and that such evidence was

admissible as corroborative evidence that Gina was not overly concerned about Brianna’s

development. To bolster this argument, Pierce observed that in Dr. Kelker’s notes of his

examination with Brianna and Gina, he stated that Gina is “just beginning to get

concerned” about Brianna’s development. The District Court reiterated its ruling that

counsel was “not going to cast blame upon the mother.” However, the District Court also

noted that Dr. Kelker’s notes would be part of the case and their contents were probative

of the issues to be determined at trial.

¶11 In spite of this ruling, Brianna’s counsel asserts that Pierce went on to violate this

prohibition later in trial. For instance, one aspect of Brianna’s damages claim was that

the delayed diagnosis of her condition had a negative impact on her social life and social

development among her peers because she was not developing physically at the same rate

as others of her age. When inquiring of the schedule for Brianna’s post-diagnosis

hormone injection regimen, Brianna asserts that Pierce implied to the jury that Brianna

had to take the injections on a rigid schedule which impacted her ability to carry on a

normal social life, in order to fit Gina’s schedule. Furthermore, Pierce posed questions to

Gina at other points in the trial about the circumstances of her concern over Brianna’s

development and whether she did, or did not, bring up these concerns in medical

appointments or schedule any appointments to look into these concerns. Brianna also

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argues that questions elicited during Dr. Johnson’s testimony about Brianna’s history of

well-child check ups was done in effort to imply to the jury that Gina had failed to bring

Brianna in for well-child check ups.

¶12 Another alleged instance of Pierce’s violation of the District Court’s rulings

occurred in connection with Gina’s testimony about her visit with Dr. Kelker. During

direct examination, Gina testified that Dr. Kelker had seemed irritated or disgusted that

nothing had previously been done in response to Brianna’s small size. Pierce interpreted

this as “opening the door” to testimony as to whether Dr. Kelker had ever been critical of

Dr. Johnson’s treatment and evaluation of Brianna. Accordingly, during direct of

examination of Dr. Johnson, Pierce asked her if in Dr. Kelker’s deposition he had ever

expressed any criticism of her, or expressed that she had violated the standard of care.

Brianna immediately objected, and the District Court responded that “as far as it goes to

criticisms, you can ask the question, but no further.” The following exchange then

occurred:

Q. (By Mr. Pierce) And, doctor [Johnson], I hand you a copy of [Dr.
Kelker’s] deposition. Was that deposition taken by Mr. Ragain.
A. Yes, it was.
Q. And when was it taken?
A. September 17th, 2007.
Q. And did Dr. Kelker anywhere in the deposition say you violated the
standard of care?
THE COURT: Rephrase your question.
MR. RAGAIN: No, no, no, move to strike.
THE COURT: Motion to strike is granted.
MR. RAGAIN: Let’s talk. It’s a direct contravention of the Court’s
order, Your Honor, direct and intentional.
THE COURT: You can ask about criticisms.
MR. PIERCE: I’m sorry, I apologize.
Q. (By Mr. Pierce) Did Dr. Kelker criticize you in his deposition?

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 A. No.

¶13 At this point in the proceedings, the jury was allowed to take a break and the

parties spoke with the District Court outside the presence of the jury. Ragain then moved

for judgment as a matter of law with respect to liability as a sanction for Pierce’s alleged

violation of the District Court’s rulings. The District Court heard arguments from both

sides as to whether its previous rulings had been violated, but reserved ruling on the

motion for judgment as a matter of law until a later time. The District Court ultimately

denied the motion.

¶14 During the settling of jury instructions, Brianna proposed the following

instruction:

You are hereby instructed that you are to consider the conduct of
Dr. Johnson only in this case and if you determine that Brianna sustained
damages, you may not consider whether the conduct of Gina White
contributed to the damages. The Court has already considered this issue
and will address the issue in accordance with Montana law.

Brianna’s counsel argued that the instruction should be given based on: (1) the District

Court’s rulings on the motion in limine; and (2) because Pierce violated the District

Court’s ruling on several occasions under the guise that argument or evidence concerning

Gina’s conduct could be presented to the jury for different reasons (i.e., challenging

Gina’s credibility). This instruction was refused by the District Court.

¶15 After the jury returned a defense verdict, Brianna filed a motion for a new trial.

The District Court held oral argument on the motion on August 28, 2008. At the hearing,

Ragain asserted that Brianna did not get a fair trial due to Pierce’s repeated violations of

the pretrial rulings. Ragain argued that if Pierce believed he could introduce evidence

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concerning Dr. Kelker’s opinion on whether Dr. Johnson breached the standard of care

for “another purpose,” then Pierce should have brought this issue to the District Court’s

attention ahead of time. Additionally, Ragain argued that Pierce’s comments in opening

statements, and his repeated attempts to imply that Gina had failed to appropriately

follow up on any concerns about Brianna’s development, were done to shift blame to

Gina in violation of the District Court’s ruling. Moreover, Ragain asserted that these

violations by Pierce were intentional. Ragain also argued that the District Court erred in

failing to give the proposed instruction, and that if Pierce was attempting to admit

evidence ostensibly prohibited under the District Court’s rulings for another purpose

under M. R. Evid. 105, a curative instruction to that effect should have been given.

¶16 For his part, Pierce argued that he had not violated any of the District Court’s

rulings, either intentionally or otherwise. Pierce reiterated his argument that inquiries

about whether Gina had taken Brianna to well-child checkups was appropriate for

impeachment purposes given her testimony that she had expressed concern on these

issues at her visits with Dr. Johnson, even though these concerns were not reflected in the

notes from Dr. Johnson’s examinations. Furthermore, Pierce argued that notes from Dr.

Kelker’s examination indicated that Gina was just beginning to get concerned about

Brianna’s development at that time. In this connection, Pierce pointed to evidence from

Dr. Oken’s deposition, which had been placed into evidence by Brianna at trial, wherein

he discussed the difference between well-child and sick visits in some length and their

significance on the standard of care issue. With regard to his questioning of Dr. Johnson

on whether Dr. Kelker had criticized her treatment of Brianna, Pierce asserted that the

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door had been opened to this inquiry when Gina testified that Dr. Kelker expressed

“disgust” at the previous failure to investigate the causes of Brianna’s smaller than

normal size.

¶17 At the conclusion of the hearing, the District Court denied the motion from the

bench. The District Court acknowledged that the issue of shifting blame to Gina had

presented a difficult situation for both sides in light of the evidence and argument

adduced at trial, but concluded that Pierce did not overtly blame Gina for Brianna’s

delayed diagnosis. On the issue of whether the District Court’s order had been breached

when Pierce inquired about whether Dr. Kelker had opined that Dr. Johnson breached the

standard of care, the District Court stated:

Now there was—the question, when we got down to asking it, was
asked in terms of criticism and standard of care. There was an objection.
It’s set out in the brief, and I sustained the objection and we struck a
question or something and the question was re-asked. And I think there
was a subsequent objection, because it was still phrased in terms of
standard of care. And that question was never answered, and it was
objected to and it was stricken. And then the proper question was asked
about whether Dr. Kelker was critical. And the answer was no. And we
moved on. It’s not exactly the way I would have planned all that to occur,
but in context, it was a valid and permissible impeachment, not blame.

¶18 Finally, the District Court held that the proposed instruction was properly denied

because it did not actually address the issue of blame, but only that of damages.

Moreover, the District Court held that the instruction was too restrictive and, further, that

the Brianna had never specifically cited to M. R. Evid. 105 as a basis for the instruction.

¶19 Brianna now appeals from these rulings. Additionally, Brianna asserts that she is

entitled to reasonable attorney fees and costs pursuant to § 37-61-421, MCA, based upon

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defense counsel’s unreasonable multiplication of the proceedings in this case. Since we

are affirming the District Court and the jury’s verdict, we do not address Brianna’s claims

for attorney fees and costs. We state the issues on appeal as follows:

¶20 Issue One: Did the District Court abuse its discretion in denying Brianna’s

motion to sanction Dr. Johnson with a finding of liability based on Pierce’s alleged

violations of the District Court’s pretrial rulings?

¶21 Issue Two: Did the District Court abuse its discretion in denying Brianna’s

proposed jury instruction?

¶22 Issue Three: Did the District Court manifestly abuse its discretion in denying

Brianna’s post-verdict motion for a new trial?

STANDARD OF REVIEW

¶23 We review a district court’s decision to impose or deny sanctions for an abuse of

discretion. Seal v. Woodrows Pharmacy, 1999 MT 247, ¶ 26, 296 Mont. 197, 988 P.2d

1230; Big Spring v. Jore, 2005 MT 64, ¶ 37, 326 Mont. 256, 109 P.3d 219. A district

court’s decision to refuse a proposed jury instruction is reviewed for an abuse of

discretion as well. Howard v. St. James Community Hosp., 2006 MT 23, ¶ 16, 331 Mont.

60, 129 P.3d 126. An abuse of discretion occurs when the district court, in the exercise

of its discretion, acts arbitrarily without the employment of conscientious judgment or

exceeds the bounds of reason in view of all the circumstances. Howard, ¶ 16.

¶24 We review a district court’s decision denying a motion for a new trial to determine

if the district court manifestly abused its discretion. Bailey v. Beartooth Communications

Co., 2004 MT 128, ¶ 10, 321 Mont. 305, 92 P.3d 1.

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 DISCUSSION

¶25 Issue One: Did the District Court abuse its discretion in denying Brianna’s
motion to sanction Dr. Johnson with a finding of liability based on Pierce’s
alleged violations of the District Court’s pretrial rulings?

¶26 As noted above, Brianna’s counsel moved the District Court to impose liability on

Dr. Johnson as a sanction for defense counsel Pierce’s alleged violations of the District

Court’s pretrial rulings throughout trial. Brianna argues the District Court erred in

denying this motion. Brianna notes that before trial the District Court specifically

prohibited inquiry of Dr. Kelker as to whether Dr. Johnson violated the standard of care

and asserts that the violation of this ruling warrants the imposition of liability on the

negligence count as a sanction. Furthermore, Brianna argues that Pierce shifted blame to

Gina throughout trial. See Opinion, ¶¶ 8-12.

¶27 In response, Pierce argues that Brianna opened the door to such inquiry regarding

Dr. Kelker’s opinion, by having Gina testify that Dr. Kelker was disgusted that nothing

had been done in previous visits with Dr. Johnson to address Brianna’s small size, and

that he was consequently entitled to inquire into this matter. Pierce also argues that he

did not try to shift blame to Gina in violation of the District Court’s order, and that

evidence and inquiry regarding any well-child visits was a necessary part of presenting

Dr. Johnson’s defense as it bears on the standard of care.

¶28 The decision whether to impose sanctions for an alleged violation of a district

court order is reviewed for an abuse of discretion.1 Seal, ¶ 26. In the first instance, we

1
Before the District Court, Brianna moved for judgment as a matter of law on the issue of
liability as a sanction for Pierce’s alleged violation of the District Court’s rulings. Judgment as a

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conclude the District Court did not abuse its discretion in concluding Pierce did not

violate the pretrial order prohibiting placing blame on Gina. Gina testified that she

expressed concern over Brianna’s development to Dr. Johnson during her visits.

However, Dr. Johnson’s notes from their visits did not reflect that Gina made such

statements. Furthermore, Dr. Kelker’s notes from his examination of Brianna stated that

Gina was “beginning to get concerned” about Brianna’s growth at the time. The

deposition of Dr. Oken, which was introduced into evidence by Brianna, contained an

extended discussion of the distinction between well-child and sick visits.

¶29 Under M. R. Evid. 401, evidence bearing upon the credibility of a witness is

considered relevant. While relevant evidence is generally admissible, it “may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .” M. R. Evid. 403. Under

M. R. Evid. 607, the credibility of a witness may be challenged by either party. Once

Gina testified that she had expressed concern to Dr. Johnson about Brianna’s height and

development, Brianna opened the door for Pierce to challenge the credibility of this

assertion so long as he did not cast blame directly on Gina. As the District Court

recognized, this presented a fine line for defense counsel to walk. While Pierce was not

permitted to blame Gina for the delayed diagnosis and any resulting damages, Pierce was

certainly allowed to present evidence concerning the frequency and scheduling of

matter of law is appropriate only when there is a complete absence of any evidence which would
justify submitting an issue to a jury. Vader v. Fleetwood Enterprises, Inc., 2009 MT 6, ¶ 20, 348
Mont. 344, 201 P.3d 139. It is clear that Brianna’s motion was in actuality not a motion for
judgment as a matter of law, but was instead a motion for sanctions.

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well-child visits in order to challenge the credibility of Gina’s statements concerning the

extent of her concern over Gina’s development. Inquiry into these topics in an effort to

present a defense was properly allowed by the District Court.

¶30 Additionally, we agree with Dr. Johnson that Pierce was properly allowed to

inquire whether Dr. Kelker expressed criticisms concerning her treatment of Brianna.

Clearly, Gina’s testimony about Dr. Kelker’s disgust over previous treatments by Dr.

Johnson implied that he was critical of Dr. Johnson. Once this testimony was offered,

rebuttal evidence on this point became relevant. See e.g. Cline v. Durden, 246 Mont.

154, 161, 803 P.2d 1077, 1081 (1990). While Pierce’s direct question to Dr. Johnson

about whether Dr. Kelker stated that she violated the standard of care was an arguable

violation of the pretrial ruling, the question was stricken before it was answered. See

Opinion, ¶ 12. Moreover, Brianna did not ask the District Court to admonish the jury in

any respect at that time. The jury was dismissed for a recess and Pierce then explained to

the District Court why he thought he was permitted to inquire into any criticisms Dr.

Kelker may or may not have had concerning Dr. Johnson’s treatment.

¶31 Under these circumstances, we cannot say that the District Court abused its

discretion in denying Brianna’s motion for imposition of liability as a sanction for

defense counsel’s conduct.

¶32 Issue Two: Did the District Court abuse its discretion in denying Brianna’s
proposed jury instruction?

¶33 Brianna also argues that the District Court erred in failing to give her proposed

jury instruction, in light of Pierce’s repeated attempts to cast blame upon Gina during

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trial. See Opinion, ¶ 14. Brianna further argues that since Pierce claimed that evidence

about well-child visits and Gina’s actions in respect to scheduling them was admissible

for the purpose of challenging Gina’s credibility, then the jury should have been

instructed accordingly pursuant to M. R. Evid. 105. This rule of evidence reads as

follows:

When evidence which is admissible as to one party or for one
purpose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly.

M. R. Evid. 105.

¶34 In denying Brianna’s motion for a new trial, the District Court explained the

rationale for denying this jury instruction as follows:

Let’s see, the curative instruction. Now, everybody’s right, that no one
told me about Rule 105. And I guess as many cases I’ve tried, I should
have that committed to memory anyway, but I didn’t. It wasn’t
mentioned. And the curative instruction, it, I suppose, according to
Plaintiff, intended to address blame or liabilities, but doesn’t. It addresses
damages. And it is too restrictive. It says, You are to consider the
conduct of Dr. Johnson only in this case. And that’s—that’s too
restrictive. That one was refused. No other one was ever offered. The
Court was never cited to Rule 105. We’ll leave that one to the Supreme
Court.

¶35 Brianna argues that the District Court’s denial of the jury instruction is reversible

error warranting a new trial under the authority of Lorang v. Fortis Ins. Co., 2008 MT

252, 345 Mont. 12, 192 P.3d 186. We disagree and conclude that the District Court’s

ruling in this regard was not unreasonable, and did not constitute an abuse of its

discretion. As the District Court correctly noted, Brianna did not explicitly request a jury

instruction based upon M. R. Evid. 105. See Cissel v. Western Plumbing and Heating

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Inc., 188 Mont. 149, 158, 612 P.2d 206, 211 (1980) (district court under no duty to give a

limiting instruction under M. R. Evid. 105 absent a request to limit the scope of the

consideration of testimony). The argument that such instruction fits within the

M. R. Evid. 105 requirement was not raised until after trial. Additionally, as noted by Dr.

Johnson, the jury instruction was actually proposed pretrial, thus undercutting the

argument that it was introduced to cure perceived evidentiary deficiencies at trial.

¶36 Further, we agree with the District Court that the jury instruction as presented was

too restrictive and was not in fact a limiting instruction pursuant to M. R. Evid. 105.

Rather, the instruction as proposed sought to categorically exclude from the jury’s

consideration evidence and argument that legitimately challenged Gina’s credibility. In

this respect, the instruction was too broad. Moreover, in light of the District Court’s

legitimate exercise of its discretion as noted under Issue One, it is questionable whether

there was any misconduct to cure. Finally, the instruction is focused upon what the jury

should consider in the event it concluded that Brianna sustained damages. The jury did

not reach this question. For the foregoing reasons, we conclude the District Court did not

abuse its discretion in denying Brianna’s proposed jury instruction.

¶37 Issue Three: Did the District Court manifestly abuse its discretion in denying
Brianna’s post-verdict motion for a new trial?

¶38 Finally, Brianna argues that the District Court erred in denying her motion for a

new trial. The arguments in support of overturning the District Court’s decision are

based on a combination of defense counsel Pierce’s alleged “gross misconduct” during

trial, the District Court’s failure to sanction Dr. Johnson with a finding of liability, and its

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failure to give Brianna’s proposed jury instruction. Brianna argues that Pierce’s gross

misconduct rises to the level of attorney misconduct described in Lopez v. Josephson,

2001 MT 133, 305 Mont. 446, 30 P.3d 326, and Durden v. Hydro Flame Corp., 1998 MT

47, 288 Mont. 1, 955 P.2d 160, thus warranting a new trial. In Lopez, for instance, we

stated that “[t]he repeated asking of questions clearly intended to keep the assumption of

damaging facts which cannot be proven before the jury, in order to impress upon their

minds the probability of the existence of the assumed facts upon which the questions are

based, constitutes gross misconduct.” Lopez, ¶ 35. Brianna argues that Pierce’s conduct

had an analogous effect, and put before the jury improper arguments and comments

undermining her right to a fair trial. See e.g. Harne v. Deadmond, 1998 MT 22, ¶ 11, 287

Mont. 255, 954 P.2d 732 (holding that improper comments made by counsel, without

proper admonishment or appropriate jury instruction, resulted in reversible error

warranting a new trial).

¶39 In denying Brianna’s motion for a new trial, the District Court stated:

In essence, bottom line is this is a small parent with a small child on
a sick child visit, no violation of the standard of care medically. Plaintiff
got in all of its evidence and arguments. Plaintiff didn’t violate the
Court’s rules, nor did the Defendant. The fact is the evidence shows
there’s no one to blame or at fault for the diagnosis not occurring earlier.
No standard of care, medical or parental, was violated.
In fact, I think, if on that third visit Dr. Johnson had been there and
they had gone to see Dr. Johnson, she would have discovered the same
things and made the same conclusions that Dr. Kelker did at that point in
time. All in all, it was a proper trial. It was a fair trial. Neither party was
prevented from having a fair trial.

¶40 Pursuant to § 25-11-102(1), MCA, a verdict or decision may be vacated and a new

trial granted when an “irregularity in the proceedings of the court, jury, or adverse party

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or any order of the court or abuse of discretion” prevents a party from having a fair trial,

thereby materially affecting that party’s substantial rights. See Willing v. Quebedeaux,

2009 MT 102, ¶ 22, 350 Mont. 119, 204 P.3d 1248. “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.” Lopez, ¶ 35

(citing Durden, ¶ 36).

¶41 In light of the foregoing rulings, we conclude that Brianna’s right to a fair trial was

not materially affected by any claimed irregularities in these proceedings, and that the

District Court did not manifestly abuse its discretion in denying the motion for a new

trial.

CONCLUSION

¶42 The District Court did not abuse its discretion in denying Brianna’s motion for

sanctions, or her proposed jury instruction. Furthermore, the District Court did not

manifestly abuse its discretion in denying Brianna’s motion for a new trial. Thus, we

affirm the jury’s verdict.

/S/ PATRICIA O. COTTER

We concur:

/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE

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