June 21 2011
DA 10-0246
IN THE SUPREME COURT OF THE STATE OF MONTANA
2011 MT 145N
JACKIE and BENARD JOHNSON,
Plaintiffs and Appellants,
v.
BETTIE CHAMBERS,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 08-1111
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Patrick T. Fox; Doubek & Pyfer; Helena, Montana
For Appellee:
Paul R. Haffeman; Davis, Haffeman, Hatley & Tighe, P.C.;
Great Falls, Montana
Submitted on Briefs: April 13, 2011
Decided: June 21, 2011
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 This case arises from an automobile collision between the parties. Bettie
Chambers (Chambers) struck Jackie Johnson’s (Johnson) vehicle when Chambers ran a
red light. Chambers admitted liability. A jury trial was held to determine damages. The
jury awarded Johnson $26,000, which was offset by advance medical payments made by
Chambers’s insurance. Johnson raises five issues on appeal, four of which relate to
evidentiary rulings made by the District Court. The fifth concerns the District Court’s
adoption of Chambers’s proposed verdict form.
¶3 We review a District Court’s rulings on the admissibility of evidence for abuse of
discretion. Clark v. Bell, 2009 MT 390, ¶ 16, 353 Mont. 331, 220 P.3d 650. A district
court has broad discretion in determining whether evidence is relevant and admissible.
Peterson v. Doctors’ Co., 2007 MT 264, ¶ 31, 339 Mont. 354, 170 P.3d 459. Having
reviewed the briefs and the record on appeal, we conclude that the appellants have not
met their burden of persuasion on any of the issues raised. We therefore affirm the
District Court.
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¶4 Whether the District Court erred in permitting Chambers to introduce evidence of
preexisting conditions.
¶5 The parties agreed at trial that Chambers was entitled to rebut Johnson’s evidence
of causation by discussing other causes of her claimed injuries, including at least some
preexisting injuries affecting the same region of Johnson’s back as was allegedly injured
in the accident. Plaintiff’s opening statement discussed several of these instances and
Johnson’s success at mitigating or eliminating resulting negative effects, ostensibly in
order to paint a picture of her health at the time of the accident. Plaintiff’s counsel
referred to a slip-and-fall accident in 2006, another incident in September 2007, and
another two months after the parties’ January 2008 motor vehicle accident.
¶6 Johnson conceded that these instances—three injuries to her mid-back region in
close temporal proximity to the accident—were relevant to rebut causation. She argued
at trial, and now argues on appeal, that evidence of other preexisting conditions and of
injuries to areas other than her mid-back was not relevant and was overly prejudicial.
Johnson argues the District Court abused its discretion by admitting evidence of these
other “transient, temporally-distant preexisting issues.”
¶7 Upon review of the record, we conclude that plaintiff’s own reference to prior
injuries in her opening statement opened the door to discussion of her preexisting
conditions. State v. Guill, 2010 MT 69, ¶ 39, 355 Mont. 490, 228 P.3d 1152 (“[w]hen
one party opens the door, or broaches a certain topic that would otherwise be off limits,
‘the opposing party has the right to offer evidence in rebuttal . . . ’ ”) (quoting State v.
Veis, 1998 MT 162, ¶ 18, 289 Mont. 450, 962 P.2d 1153). Johnson’s pretrial brief,
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submitted on the date of the final pretrial conference, raised the admissibility of previous
injuries as an issue for the court; however, no record has been provided of the final
pretrial conference and it does not appear any ruling was requested prior to trial.
Plaintiff’s counsel, after discussing a selected history of Johnson’s prior injuries at length
in his opening statement, first raised the issue before the court by objecting during the
defendant’s opening statement. In explaining his objection outside the presence of the
jury, counsel noted, “and I’ll tell you, I opened the door[,]” but argued that only the
preexisting conditions he raised should be allowed into evidence. Addressing defense
counsel, the trial court ruled that Chambers would be allowed to “discuss the evidence
that you’re representing to me is relevant and similar as to what we’re dealing with in this
case.”
¶8 As we have observed, “ ‘[u]nder the . . . ‘opening the door’ doctrine, the
introduction of inadmissible evidence by one party allows an opponent, in the court’s
discretion, to introduce evidence on the same issue to rebut any false impression that
might have resulted from the earlier admission.’ ” Stevenson v. Felco Indus., 2009 MT
299, ¶ 40, 352 Mont. 303, 216 P.3d 763 (quoting U.S. v. Whitworth, 856 F.2d 1268, 1285
(9th Cir. 1988)). With Johnson already having introduced the topic to the jury prior to
seeking any ruling from the court, she has not met her burden of proving that the court
abused its discretion by admitting additional evidence of preexisting injuries offered by
the defense. Nor has she shown that the manner of their introduction through various
witnesses merits a new trial. In order for the erroneous admission of evidence to
constitute grounds for a new trial under § 25-11-102, MCA, the error must be so
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significant as to materially affect the substantial rights of the complaining party.
Stevenson, ¶ 16. That showing has not been made.
¶9 Whether the District Court erred in permitting Dr. Stratford to testify or in
admitting his expert report into evidence.
¶10 Dr. William Stratford conducted an independent medical examination (IME) of
Johnson pursuant to M. R. Civ. P. 35. In her trial brief, Johnson stated she expected to
challenge the admissibility of Stratford’s testimony on the basis that he was not an
independent witness, having close ties with the insurance industry and defense bar. At
trial, Johnson moved to exclude Stratford’s testimony. The District Court denied the
motion on two grounds. First, the court found it to be untimely. Stratford performed the
IME in June 2009 and was disclosed as an expert witness in September 2009, but
Johnson did not raise any issues with respect to his selection until the final pretrial
conference in April 2010, and first moved to exclude his testimony at trial in May 2010.
As the court noted, the exclusion of Dr. Stratford’s testimony at that late point would
have deprived the defense of expert testimony. Second, the court held Johnson had failed
to demonstrate that Dr. Stratford was not independent.
¶11 We agree that Johnson’s motion was ill-timed and made at a point in the trial
when a grant of the motion would unfairly prejudice Chambers. Our decision in
Stevenson does not preclude a district court from exercising its discretion to deny a
motion made at trial. Johnson had not opposed the Rule 35 examination and was aware
of Dr. Stratford’s participation in the case for nearly a year before objecting to his
independence. Stevenson does not prohibit a District Court from considering such
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factors. Johnson cross-examined Dr. Stratford extensively on his alleged lack of
independence and the jury was free to evaluate his credibility.
¶12 Similarly, we cannot say the District Court abused its discretion when it admitted
Dr. Stratford’s report after also admitting several reports prepared by Johnson’s expert
witnesses. Johnson’s counsel already had questioned Dr. Stratford at length from the
contents of the report. Johnson has not shown that admitting the report itself into
evidence likely increased its effect on the jury. The distinctions Johnson draws between
Dr. Stratford’s report and other reports admitted into evidence at Johnson’s request do not
demonstrate grounds for a new trial.
¶13 Whether the District Court erred in prohibiting Johnson from cross-examining
Dr. Stratford on Dr. Wilson’s report.
¶14 Unlike Dr. Stratford, Dr. Leonard Wilson was neither present in the courtroom nor
available for cross-examination. His report therefore constituted inadmissible hearsay.
Shillingstad v. Nelson, 141 Mont. 412, 420, 378 P.2d 393, 397 (1963). While Johnson
complains the trial court prevented her from cross-examining Dr. Stratford on
Dr. Wilson’s report, the court simply sustained an objection to a wholesale reading of
Dr. Wilson’s report into evidence. Johnson had ample opportunity to cross-examine
Dr. Stratford on the bases for his opinions, and did so. Dr. Stratford did not incorporate
Dr. Wilson’s report into his own report, but rather consulted the report and included a
short summary of its findings in his report. Johnson cross-examined Dr. Stratford on this
portion, which was admitted into evidence. Dr. Stratford’s consultation of Dr. Wilson’s
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report does not somehow allow the report to evade the prohibition against hearsay
evidence.
¶15 Whether the District Court erred in using a general verdict form rather than the
special verdict form proposed by Johnson.
¶16 Johnson argues that a special verdict form would have been appropriate for the
present case, and cites several instances in which such forms have been used. Johnson
does not offer any reasons why a general verdict form was inappropriate—her arguments
merely extol the virtues of a special verdict form. Whatever the merits of a special
verdict form, the District Court did not abuse its discretion in using a general verdict
form, as Johnson’s argument tacitly admits.
¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
issues in this case are ones of judicial discretion and there clearly was not an abuse of
discretion.
¶18 Affirmed.
/S/ BETH BAKER
We concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS
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