Eklund v. Wheatland County

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.

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¶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.

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¶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.

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¶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
12
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.

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¶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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