July 9 2009
DA 08-0329
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 231
DONALD S. EKLUND,
Plaintiff and Appellant,
v.
WHEATLAND COUNTY, and
its Sheriff, JAMES ROSENBERG,
Defendant and Appellees.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Wheatland, Cause No. DV 01-13
Honorable Katherine M. Irigoin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfeld, PLLP,
Billings, Montana
For Appellees:
Norman H. Grosfield and Dee Ann G. Cooney, Grosfield Law Firm,
Helena, Montana
Submitted on Briefs: May 13, 2009
Decided: July 9, 2009
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 We reversed the summary judgment issued in favor of Wheatland County and its
sheriff in Eklund v. Trost, 2006 MT 333, 335 Mont. 112, 151 P.3d 870, (Eklund I) and
remanded the case to the District Court. The case proceeded to trial and from those
proceedings Donald Eklund (Eklund) filed this timely appeal. We affirm.
¶2 Eklund raises the following issues on appeal:
¶3 Issue 1: Whether § 3-15-302(2), MCA, violates provisions of the Montana and
United States Constitutions.
¶4 Issue 2: Whether the District Court erred when it denied Eklund’s motion for
change of venue.
¶5 Issue 3: Whether the District Court erred when it refused to allow the jury to
consider the source of payment for any damages that might be awarded.
¶6 Issue 4: Whether the District Court erred when it refused to strike a
prospective juror for cause.
¶7 Issue 5: Whether the District Court erred when it denied Eklund’s motion for
judgment notwithstanding the verdict, or motion for new trial.
PROCEDURAL AND FACTUAL BACKGROUND
¶8 We discussed at length the facts giving rise to this matter in Eklund I, specifically
¶¶ 6-19. We will repeat here only those facts pertinent to this appeal.
¶9 Eklund attempted to change the venue of the trial following our remand in Eklund
I. He argued that the amount of damages that he sought would affect the potential jurors.
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He reasoned that the jurors most likely would be taxpayers in Wheatland County who
would be saddled with the cost of any judgment against Wheatland County. Eklund
feared that the juror’s concerns of potentially higher taxes to pay the award would
prejudice him. The District Court denied Eklund’s motion.
¶10 Eklund raised the issue of who would be liable for a judgment against Wheatland
County during voir dire. Eklund attempted to have potential juror Wayne Butts (Butts)
removed for cause. Butts owned a particularly large tract of land in the county. Butts
expressed concerns from where the money for a potential verdict would come. Counsel
for Wheatland County objected to the removal of Butts. The Court allowed the parties to
question Butts further before denying Eklund’s motion. Eklund eventually removed
Butts from the panel with a preemptory challenge.
¶11 Eklund attempted to inform the jurors of Wheatland County’s pooling
arrangements (insurance coverage) regarding the satisfaction of any verdict. The court
did not allow Eklund to question the potential jurors directly about the source of the
money available to cover any judgment against Wheatland County during voir dire,
during the presentation of evidence, and through the issuing of jury instructions. The
court also denied Eklund’s attempts to present evidence of the pooling arrangements to
the jurors.
¶12 The issue arose again during the settling of jury instructions. The court instructed
the jury that they could not consider whether the county could afford to pay an award in
determining damages. The court also instructed the jury not to consider whether an
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award would raise taxes and whether an award would serve as a windfall for Eklund.
The court struck the mention of “insurance” from an instruction offered by Eklund.
¶13 The jury returned a verdict in favor of Wheatland County. Eklund moved for a
judgment notwithstanding the verdict. Eklund asserted that he had presented
overwhelming evidence to demonstrate the county’s liability. Eklund also argued that
this overwhelming evidence, in conjunction with various alleged errors made by the trial
court, required the court to grant the motion. Eklund moved in the alternative for a new
trial. The court denied both requests. Eklund appeals.
STANDARDS OF REVIEW
¶14 We presume statutes to be constitutional and it is the duty of the Court to avoid an
unconstitutional interpretation if possible. Montanans for Responsible Use of School
Trust v. State of Montana ex rel. Board of Land Commissioners, 1999 MT 263, ¶ 11, 296
Mont. 402, 989 P.2d 800. A statute will be upheld on review except when proven to be
unconstitutional beyond a reasonable doubt. School Trust, ¶ 11.
¶15 We review for an abuse of discretion a district court’s ruling on a motion for
change of venue. State v. Pease, 227 Mont. 424, 433, 740 P.2d 659, 664 (1987). We
will not overturn a district court’s ruling on admissibility of evidence absent a showing of
abuse of discretion. Christofferson v. City of Great Falls, 2003 MT 189, ¶ 8, 316 Mont.
469, 74 P.3d 1021. The same abuse of discretion standard applies to jury instructions.
Edie v. Gray, 2005 MT 224, ¶ 12, 328 Mont. 354, 121 P.3d 516. We likewise review for
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abuse of discretion a district court’s denial of a challenge for cause of a potential juror.
Crail Creek Associates, LLC v. Olson, 2008 MT 209, ¶ 13, 344 Mont. 321, 187 P.3d 667.
¶16 When reviewing a motion for judgment notwithstanding the verdict, we view all
of the evidence in a light most favorable to the non-moving party. Okland v. Wolf, 258
Mont. 35, 38, 850 P.2d 302, 304 (1993). The court may grant the motion only if it
appears that the non-moving party cannot recover upon any view of the evidence,
including legitimate inferences to be drawn from it. Okland, 258 Mont. at 38, 850 P.2d at
304. We determine whether substantial credible evidence supported the verdict when
reviewing a district court’s refusal to grant a new trial based upon alleged insufficiency of
the evidence. Payne v. Knuston, 2004 MT 271, ¶ 25, 323 Mont. 165, 99 P.3d 200.
DISCUSSION
¶17 Issue 1: Does § 3-15-302(2), MCA, violate provisions of the Montana and
United States Constitutions?
¶18 Eklund asserts that concern by jurors regarding the size of the potential verdict
denied him a fair trial and violated due process. Section 3-15-302(2), MCA, provides
that the inhabitants of the county may serve as jurors if otherwise competent and
qualified according to the law when a county is an interested party in a trial. A person is
competent to serve on a jury if they are 18 or older, a resident of the area for 30 days, and
a United States citizen. Section 3-15-301, MCA.
¶19 We previously have addressed this residency issue and held that being a taxpayer
of a county or district that is a party does not provide a reason for disqualification.
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Carter County v. Cambrian Corp., 143 Mont. 193, 387 P.2d 904 (1963); School District
No. 1 v. Globe and Republic Ins. Co., 142 Mont. 220, 383 P.2d 482 (1963). The potential
jurors at issue in Carter County and School District 1 had remote potential interests in the
outcome of the case due to the possibility of increased taxes to cover a potential award
against the governmental entity. We rejected challenges in both cases that the jurors’
status as taxpayers of the county or district could constitute grounds for disqualification.
¶20 Eklund provides little support other than his repeated concern that allowing jurors
to serve who fear that they would be liable for satisfaction of the verdict is
unconstitutional. Eklund cites no authority to support his claim that simply being a
taxpayer constitutes a disqualifying interest. Eklund has failed to establish beyond a
reasonable doubt that § 3-15-302(2), MCA, violates his constitutional right to a fair trial
and due process of law. School Trust, ¶ 11.
¶21 Issue 2: Did the District Court err when it denied Eklund’s Motion for
Change of Venue?
¶22 A judge must change the place of trial when there exists a reason to believe that an
impartial trial cannot be held or when the convenience of witnesses and the ends of
justice would be promoted. Section 25-2-201(2)-(3), MCA. Eklund asserts that ample
reason exists to believe that an impartial jury could not be achieved in Wheatland
County. Eklund further asserts that, as each juror was either a taxpayer or related to a
taxpayer, each juror had an interest in the outcome.
6
¶23 A party seeking to overturn a denial of change of venue must show that a fair and
impartial trial could not have been had. School Dist. No. 1, 142 Mont. at 223, 383 P.2d at
484. The legislature did not intend that simply being a taxpayer would disqualify a
person from sitting on the jury. School Dist. No. 1, 142 Mont. at 225, 383 P.2d at 485.
¶24 Counsel for Eklund and Wheatland County established during voir dire that the
potential jurors were willing to return a verdict in favor of Eklund if the facts necessitated
such a finding. The jurors also admitted they would be willing to return a large verdict if
the evidence supported one. Nothing from voir dire leads us to believe that the jury
would have been unwilling to deliver a verdict in Eklund’s favor. Some jurors
admittedly expressed concerns about the source of the verdict award, but none of the
jurors stated that this concern would affect their impartiality.
¶25 Eklund cites multiple cases from other jurisdictions in support of his argument.
We find these cases to be distinguishable from the issue at hand. For example Eklund
cites Wheeler v. Cobbs & Mitchell Co., 253 P. 5 (Ore. 1927), in which the court held that
taxpayers are absolutely disqualified from serving on a jury when the county is a party.
Eklund fails to inform that this rule of law no longer applies in Oregon as evident by the
decision in State ex rel. Douglas County v. Sanders, 655 P.2d 175 (Ore. 1982). The
court in Douglas County specifically held “that county residents are not disqualified from
serving as jurors solely because the county has a pecuniary interest in the outcome.”
Douglas County, 655 P.2d at 175.
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¶26 Eklund also relies on an old case from North Dakota. In Sheridan County v.
Davis, 240 N.W. 867 (N.D. 1932), the North Dakota court determined that the jury
panel’s status as taxpayers implied bias on the entire jury pool. The court reversed a
denial of a motion for change of venue. Sheridan County, 240 N.W. at 871. The court in
Linington v. McLean County, 150 N.W.2d 239 (N.D. 1967), also refused to reverse a
district court’s decision to grant a motion for a change of venue. The court cited the fact
that “the trial court after weighing all of the allegations and the contentions” reached the
conclusion the people of McLean County were sympathetic to McLean County and for
this and other reasons granted a motion for change of venue.
¶27 Here we face a situation where the District Court denied a motion for a change of
venue. We review this denial for an abuse of discretion. Pease, 227 Mont. at 433, 740
P.2d at 664. The District Court weighed all of the allegations and contentions before
reaching the conclusion that the citizens of Wheatland County could be fair and impartial
jurors. Nothing in record leads us to believe that the District Court abused its discretion
in determining that the jury could be fair and impartial. We decline to imply bias based
solely on the juror’s status as taxpayers. The District Court did not abuse its discretion
in denying a change of venue.
¶28 Issue 3: Did the District Court err when it refused to allow the jury to
consider the source of payment for any damages that might be awarded?
¶29 Evidence of insurance generally may not be admitted upon the issue of whether a
party acted negligently or otherwise wrongfully. Evidence of insurance may be admitted,
8
however, when offered to prove agency, ownership, control, bias or prejudice of a
witness. M. R. Evid. 411. Eklund does not argue that evidence of insurance would have
been offered to prove agency, ownership, control, bias or prejudice. Eklund sought to
offer evidence regarding Wheatland County’s insurance coverage to alleviate the fears
voiced by some jurors regarding what party would be responsible to pay an award.
¶30 A jury determining liability and fixing damages may not consider the method of
satisfying a judgment. Wollaston v. Burlington Northern, Inc., 188 Mont. 192, 206, 612
P.2d 1277, 1284 (1980). The plaintiff in Wollaston submitted a proposed jury instruction
regarding insurance to eliminate the “juror-taxpayer” problem in an action in which
Sanders County was a co-defendant. Wollaston, 188 Mont. at 206, 612 P.2d at 1284.
The district court had instructed the jury that they were “not to consider in what manner
the defendant Sanders County meets its obligation as to a judgment if rendered.”
Wollaston, 188 Mont. at 206, 612 P.2d at 1284. The Court held the district court
properly had instructed the jury on this matter and that further instruction about possible
sources might have lead to speculation on issues not before the jury. Wollaston, 188
Mont. at 206, 612 P.2d at 1284.
¶31 Similar to Wollaston, the District Court adopted Eklund’s proposed instruction
that the jury should not consider whether Wheatland County could afford any award or
the source of any award. The court removed mention of “insurance” from the proposed
instruction in a manner similar to the instruction provided in Wollaston.
9
¶32 Eklund relies on Goodnough v. State, 199 Mont. 9, 647 P.2d 364 (1982), to
support his argument that the court erred in not allowing him to mention insurance during
voir dire. We held in Goodnough that it is appropriate for counsel to question potential
jurors during voir dire about their beliefs as taxpayers and their concerns on the financial
outcome of the case. Goodnough, 199 Mont. at 19, 647 P.2d at 369.
¶33 The District Court allowed Eklund’s counsel to question the jury during voir dire
in a manner similar to the type of questioning affirmed by this Court in Goodnough.
Eklund had ample opportunity to question the potential jurors about whether their status
as taxpayers would allow them to be fair and impartial. Eklund’s counsel questioned the
jurors about the possibility of having to issue a large award that would affect their ability
to serve. Eklund’s argument might carry more weight if the jury had issued a small
award to Eklund in the face of evidence that established that Eklund had suffered severe
injuries as a result of Wheatland County’s negligence. The jury found no liability on the
part of Wheatland County.
¶34 The Dissent chides our lack of citation to Jenks v. Bertelsen, 2004 MT 50, 320
Mont. 139, 86 P.3d 24. In Jenks, defense counsel repeatedly discussed the fact that the
plaintiff had contacted a lawyer shortly after the accident. Jenks, ¶ 14. The plaintiff
sought to introduce evidence of the fact that she had retained the lawyer to assist with
negotiations with the defendant’s insurance adjustor over the damage to her truck. Jenks,
¶ 15. We noted that the district court should evaluate the admissibility of evidence of
insurance on a case-by-case basis under the facts and circumstances of each case. Jenks,
10
¶ 25. We found no abuse of discretion in the district court’s decision to allow the
plaintiff to explain her decision to retain a lawyer shortly after the accident without any
direct mention of insurance. Jenks, ¶ 28. The district court concluded that this course
would remedy any prejudice caused by the defense counsel’s repeated reference to the
plaintiff’s decision to retain a lawyer without permitting “the insurance bulldozer to be
brought in to level the playing field.” Jenks, ¶ 27.
¶35 The District Court here determined that it would not allow mention of insurance
absent an exception to M. R. Evid. 411. Juror Butts initially raised the topic of insurance
during voir dire. Juror Butts speculated that Wheatland County must possess some
insurance, but he voiced concern as to whether the policy limits would cover the full
amount of any verdict. Neither the court, nor the parties, took any step to disabuse Juror
Butts, or the other members of the jury pool, that Wheatland County possessed some
insurance coverage. The District Court did instruct the jury not to consider whether the
County could afford to pay an award in determining damages. The court also instructed
the jury not to consider whether an award would raise taxes and whether an award would
provide a windfall to Eklund. Similar to Jenks, we cannot say that the solution crafted by
the District Court to address concerns raised by the jurors regarding who would be
responsible for any award without expressly discussing Wheatland County’s insurance
coverage rose to the level of an abuse of discretion. Wollaston, 188 Mont. at 206, 612
P.2d at 1284.
11
¶36 The District Court also did not abuse its discretion when it restricted the depth of
questioning regarding the availability of insurance during voir dire.
¶37 Issue 4: Did the District Court err when it refused to strike a prospective
juror for cause?
¶38 A court may remove for cause members of a potential jury panel if they can be
shown to have an interest in the action, an unqualified opinion or belief as to the merits of
the action, or can be shown to have bias. Section 25-7-223(5)-(7), MCA. Voir dire
questioning revealed that juror Butts had a problem with suits against Wheatland County.
He explained his concerns that, as a taxpayer, he could be responsible through increased
taxes for any verdict returned against the county. Juror Butts reiterated his concern
throughout voir dire regarding the source of an award. Juror Butts also maintained,
however, that he could be fair and impartial. At no point during voir dire did juror Butts
state that he was unwilling to be fair or that he would be biased. Juror Butts stated that he
would follow the instructions and law given to him by the judge.
¶39 Eklund cites multiple cases where a juror demonstrated bias against one party and
the court removed for cause the potential juror. See Mahan v. Farmers Union Central
Exchange, Inc., 235 Mont. 410, 768 P.2d 850 (1989); Crail Creek. The potential jurors
in these cases demonstrated actual bias.
¶40 For example in Mahan, one potential jury exhibited a fixed scruple against
punitive damages, while the other stated he preferred management over employees in
disputes. Mahan, 235 Mont. at 418, 768 P.2d at 855. Juror Butts expressed some
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concern regarding the source of the money. Juror Butts did not express a fixed view
against damages being awarded to a plaintiff in a negligence action. Juror Butts also did
not express favoritism for one side over the other in such a dispute.
¶41 The potential juror in Crail Creek likewise gave responses that reflected a biased
state of mind. The potential juror admitted that she was inclined to favor contractors and
that she did not know if she could set aside her bias. Crail Creek, ¶ 20. Juror Butts never
expressed a bias toward either party. In fact, juror Butts, maintained that he could be
impartial. When questioned about following the law and instructions, juror Butts replied,
“I’m going to do the best of my ability what I’m instructed to do.”
¶42 The trial judge stood in the best position to detect whether juror Butts
demonstrated actual bias against Eklund. Juror Butts’s hesitance regarding the size of a
potential verdict does not lead us to believe that he would have been biased or would
have failed to follow the law and instructions. The District Court did not abuse its
discretion in denying the motion to remove juror Butts for cause.
¶43 Issue 5: Whether the District Court erred when it denied Eklund’s motion for
judgment notwithstanding the verdict (JNOV), or motion for new trial.
¶44 A court may grant a motion for directed verdict, or a motion for a JNOV, only
when there is a complete absence of any evidence to warrant submission to a jury. Ryan
v. City of Bozeman, 279 Mont. 507, 510, 928 P.2d 228, 229-30 (1996). Wheatland
County points to evidence in the record that warranted submission of the case to the jury.
13
¶45 Undersheriff Les Christensen (Christensen) testified that he first saw the vehicle
that crashed into Eklund about three miles east of Harlowton. Christensen’s attempts to
stop the vehicle proved futile. The speeding vehicle crashed soon after entering
Harlowton. Christensen had slowed for safety purposes at the time of the crash, but he
had kept the fleeing vehicle in sight. Christensen testified that about four minutes had
passed from the time that he first saw the vehicle until he called for an ambulance after
the crash. Christensen also testified that he did not form a road block, or take other
drastic measures to stop the speeding vehicle.
¶46 Christensen’s passenger, Montana Highway Patrolman James Rosenberg
(Rosenberg), testified that Christensen had followed proper procedures for a high speed
pursuit. Katherine Parks (Parks) witnessed the stolen vehicle approach town followed by
Christensen. Parks testified that the stolen vehicle was traveling at a high rate of speed,
but that the police vehicle did not appear to be going nearly that fast.
¶47 In light of this testimony, Eklund cannot make the necessary showing that there
was a complete absence of credible evidence to support the verdict in favor of Wheatland
County. Counsel for Wheatland County elicited sufficient testimony regarding the timing
and policies followed by the officers in pursuit. The District Court did not err when it
denied Eklund’s motion for JNOV and his request for a new trial motion.
¶48 Affirmed.
/S/ BRIAN MORRIS
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We Concur:
/S/ MIKE McGRATH
/S/ JOHN WARNER
/S/ JIM RICE
Justice Patricia O. Cotter dissents.
¶49 I dissent from the Court’s resolution of Issue Three. I would reverse and remand
for a new trial.
¶50 The District Court erred when, citing M. R. Evid. 411, it completely prohibited
any mention of an insurance or pooling arrangement. In Jenks v. Bertelsen, 2004 MT 50,
320 Mont. 139, 86 P.3d 24, cited prominently by Eklund but not in my judgment
adequately considered in the Court’s analysis, we noted that under our previous caselaw
there are a number of exceptions to the general prohibition against injecting insurance
issues into a case under M. R. Evid. 411. See Jenks, ¶¶ 23-24. We cautioned that such
cases “do not represent an exhaustive survey . . . .” Jenks, ¶ 25. When the District Court
issued a prohibition on any mention of insurance prior to trial, it did so under the evident
assumption that the exceptions to M. R. Evid. 411 were fully codified, and that failure to
meet a specifically enumerated exception to M. R. Evid. 411 prohibited, ipso facto, any
mention of insurance. The District Court’s approach to this issue was contrary to Jenks.
“In the final analysis, Rule 411, M.R.Evid., and the exceptions thereto, do not present a
clear mandate for either admitting or denying evidence of liability insurance. What is
15
clear, however, from a review of the case law, is that district courts have broad discretion
in determining the admissibility of evidence pertaining to liability insurance . . . .” Jenks,
¶ 25. Thus, district courts should evaluate the admissibility and effect of a mention of
insurance on a case-by-case basis under the facts and circumstances then presented to the
court. Jenks, ¶ 25.
¶51 The facts and circumstances presented in this case called for an exercise of
discretion in favor of revealing the existence of insurance. Eklund sought to disclose the
existence of an insurance pooling arrangement to allay the concerns of the citizens of this
small county about the potential impact of a sizeable verdict upon them. However, he
was prohibited by the District Court from doing so, and was instead only permitted to
inquire whether any of the jurors’ status as taxpayers would affect their ability to render a
judgment against Wheatland County. In other words, he was allowed to raise their
worries but not relieve them. When Eklund’s counsel attempted during voir dire to walk
this fine line, one of the potential jurors, Butts, zeroed in quickly on the forbidden topic.
He said:
Wheatland County, which is made up of people that live here. And we’re
certainly insured by an insurance company, I would think, that might be
responsible for some of the money. But I’m not sure if it would be
responsible for all of the money. I don’t know how much of that would be
passed onto the citizens or residents of the county. I mean I don’t know, so
I’m a little apprehensive. And, you know, I’ll follow the law and what I’m
instructed to do the best that I can, but some of us have ingrained prejudices
already that may taint our decision or judgment. And I’m not trying to be
difficult here. I’m just trying to be honest, okay.
The question was thus early and squarely presented in the presence of the entire panel:
16
Do we have insurance, and is it enough? Yet, the District Court would not allow the
question to be answered, placing Eklund in an even worse position than he occupied
before the answer was given.
¶52 Remarkably, the District Court denied Eklund’s request to have this juror
dismissed for cause, even though he clearly indicated that he had an “ingrained
prejudice” on the issue of the source of payment for any judgment against Wheatland
County. This candid statement from the juror was an unequivocal demonstration of
concern at best, and bias at worst, especially given Eklund’s inability to allay the spoken
concerns. Under other circumstances, I would conclude that the District Court committed
reversible error by failing to dismiss Butts for cause. Here, however, I doubt that
excusing him for cause would have made any difference, once the entire panel heard the
insurance question asked but go unanswered.
¶53 The effect that this statement had on Eklund’s right to receive a fair trial cannot be
overstated. After Butts made his statement, the District Court gave no corrective
instruction or admonishment, and then rejected attempts to have this juror removed for
cause. This was a clear signal to the members of the jury that their questions about where
the money would come from, and the extent to which any insurance arrangement would
cover them, would not be answered, and further that having such worries would not
disqualify them from serving on the panel. In fact, a second juror voiced these same
unanswered concerns. That juror was seated.
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¶54 Once these overt concerns about whether there was any insurance to protect the
County were laid before the entire jury panel, the District Court should have reevaluated
its position with regards to the mention of insurance. I conclude that the District Court’s
blanket prohibition on any mention of insurance constituted an abuse of discretion at this
point, and was unreasonable in light of Eklund’s constitutional right to a fair and
impartial trial. Jenks and M. R. Evid. 411 clearly allowed the District Court to take
corrective action and briefly explain the insurance arrangement, since it would be done
not to prove negligence or wrongful action on behalf of Wheatland County, but only to
ensure that the jury’s concerns were allayed sufficiently to allow Eklund a fair and
impartial trial.
¶55 At the conclusion of trial, the District Court gave the following jury instruction:
In determining the amount of damages, you may not consider, even a
little, the following:
1) Whether the Defendant can afford it.
2) Whether it might raise your taxes.
3) Whether it is a windfall.
¶56 As an initial matter, I find it hard to reconcile the District Court’s instruction that
jurors were not to consider “even a little” whether a judgment against Wheatland County
would raise their taxes, with its denial of Eklund’s request to have Butts dismissed for
cause. For not only did this juror consider the issue significant, he clearly indicated that
it was on the level of an “ingrained prejudice” and would have an impact on his
deliberation. These two rulings are simply irreconcilable in my judgment.
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¶57 The greater problem is that this instruction compounded the prejudice to Eklund,
who sought to have the prospect of insurance at least mentioned in the list of factors “not
to be considered.” Essentially, the instruction highlights the three negative prospects that
a verdict for the plaintiff would present—one, we can’t afford this; second, it might raise
our taxes; and third, the plaintiff may reap a windfall at our expense. It highlights no
potentially saving factors, like the existence of insurance, again making matters worse for
Eklund.
¶58 In sum, the handling of voir dire, the restrictions on Eklund, and the District
Court’s instruction combined at best to leave the jury panel actively worried throughout
trial about what a verdict might mean to their pocketbooks. At worst, the refusal to
address the jury’s concerns and the ensuing refusal to mention insurance in the
instruction may well have left the impression that no insurance existed at all. Either way,
Eklund was prejudiced.
¶59 At a fundamental level, the District Court’s unreasonable disregard of the jury’s
concerns placed Eklund, an innocent and badly injured citizen, at a severe disadvantage.
Leaving the front-burner question of how a verdict might be satisfied unresolved in the
minds of the jurors from this small rural town prevented him from having his case
decided on the merits. While similar concerns seldom arise in larger states, or even
within larger counties in Montana, here they were open and real. The District Court
should have weighed the “competing concerns,” and employing its “conscientious
judgment,” see Jenks, ¶ 28, should have either allowed Eklund to reference an insurance
19
agreement, or told the jury directly that an arrangement of some sort existed. After all,
Eklund himself is a taxpayer too and deserves, as do all the citizens of this state, the
opportunity for a fair and impartial trial. I believe the District Court’s rulings in this case
unreasonably denied him this right and constituted an abuse of discretion. I would
reverse and remand for a new trial and respectfully dissent from the Court’s failure to do
so.
/S/ PATRICIA COTTER
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