Mason v. Ditzel

NO. 92-131
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

OK CHA MASON,
Plaintiff and Appellant,
-vs-
JON W. DITZEL and EMPIRE
SAND AND GRAVEL CO., INC.,
Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.

COUNSEL OF RECORD:
For Appellant:
Thomas J. Lynaugh, Lynaugh, Fitzgerald, Eiselein &
Eakin, Billings, Montana
For Respondents:
James L. Jones, Dorsey & Whitney, Billings, Montana
.i,

Submitted on Briefs: September 24, 1992
Decided: November 24, 1992
Justice John Conway Harrison delivered the Opinion of the Court.

Ok Cha Mason appeals the judgment entered by the Thirteenth
Judicial District Court, Yellowstone County, on a unanimous jury
verdict in favor of respondents, Jon W. Ditzel and his employer,
Empire Sand and Gravel Company, Inc. Mason brought the action to
recover damages resulting from an automobile accident in Billings
on September 23, 1987. Respondents denied responsibility for the
accident, and after a seven-day trial in 1991the jury decided that
the driver, Ditzel, had not been negligent. We affirm.
Mason raises the following issues on appeal:
1. Did the District Court err in allowing Dr. Joseph Rich to
testify as a defense witness?
2. Did the District Court err in denying Mason's motion for
mistrial after an officer of Empire Sand and Gravel Company
spoke with jurors during the trial?
Ok Cha Mason (Mason) was born in Korea in 1946. She met her
husband, Ted Mason, while he was an air traffic control specialist
stationed in Seoul. They were married in Missoula, Montana, in
1973. From 1985, when the couple moved to Billings, until just
before the accident, Mason worked as a part time bakery clerk. She
was not fluent in English and was tested in 1991 at a third-grade
reading level.
At approximately 9:00 on the morning of September 23, 1987,
Mason was driving her Dodge Colt sedan south on Main Street, en
route from her home in Billings Heights to a dental appointment in
Billings. Ditzel was driving his employer's Kenworth tractor-
2
trailer truck, or "semi," southbound in an adjacent lane. It was
partly loaded, with an estimated gross vehicle weight of 35,000 to

40,000 pounds. Both vehicles were moving at approximately 35 miles

per hour.

Main Street has three southbound lanes. Conflicting evidence

was presented as to whether Mason was driving in the curb lane or

the center lane at the time of the accident, but in any case,

Ditzel’s truck was at the left of Mason's car just before the

collision. The truck and car collided, causing the car to skid
across the center and far left southbound lanes and hit the median.

It then rolled over onto its top. Mason was taken by ambulance to

an emergency room, treated for injuries to her left hand and

released the same day.

Police testimony and photographs of the vehicles indicate that
Mason's car was damaged only on the left side and top. The truck
sustained minor damage to the left front bumper. Although Mason

testified that the truck hit her car from behind, its rear bumper,

tail lights, and trunk apparently were undamaged, though scratches

appeared on the left rear quarter panel. Mason's expert witness

attributed these scratches to the initial contact between truck and

car, but the officer who wrote the accident report suggested that

they represented damage done when the car rolled over onto the

median.

Mason told a police officer, immediately after the accident,

that she was driving in the curb lane when Ditzel's truck hit her

car. At the trial, however, she testified that she had been in the

3
center lane, having changed lanes in front of McDonald's, nearly

two blocks north of the accident scene. Ditzel told officers at

the scene that & had been driving in the center lane; this was

corroborated by the driver of a wrecker who had been travelling in

the left or inside lane, passing Ditzel's truck just before it

collided with Mason's car. When the officers arrived, shortly

after the accident, Ditzel's truck was in the center lane at the

end of parallel skid marks approximately 100 feet long. Mason's

car was lying on its top on the median to the left of the truck.
Both drivers asserted that the other driver had caused the

accident. Mason claimed that her car had first been hit from the

rear, then pushed in front of the truck and hit again in the left

side. Her theory, confirmed in part by a statement Ditzel made to

an insurance adjuster six months after the accident, was that
Ditzel had been changing lanes from left to right when his truck

rear-ended her car.

Ditzel claimed at the trial that Mason pulled in front of him,

apparently in the process of changing from the curb lane to the

center lane, and that he never saw her car until it was on the left

side of his truck. In his 1988 statement to the insurance

adjuster, however, he said:

Well, see I was changing lanes. I had my turn signal on
and I was gonna change lanes and apparently she didn't
see that or something. I don't know. . . . I was
changing to the righthand lane.

The point of contention at the trial, then, was whether Ditzel

was changing lanes from left to right and in doing so ran into the

rear of Mason's car, or whether Mason was changing from the curb

4
lane to the center lane and in doing so hit the right front bumper
of Ditzel's truck.
Testimony on this point is conflicting. At the trial, Mason
said that she had moved from the curb lane to the center lane to
avoid traffic going into McDonald's; then she saw the truck behind
her:
Already he's coming, but I stay my lane. I keep going my
center lane and then I feel . . . just boom. . . . Then
I turn left and just spin. . . . I spin but he's not
stop. He just come and hit me: then I roll over upside
down.
In the telephone interview recorded by the insurance adjuster in
April 1988, Ditzel stated that he hit Mason's car from behind:
Interviewer: And she struck your vehicle?
Ditzel: No. I hit her from behind.
Interviewer: What part of her vehicle was hit?
Ditzel: Well I . . . I don't . . . I guess right in the
back end and she was kind of at an angle. It spun her
sideways. . . . And I hit her in the back. It spun her
sideways and then she went sideways in front of the
truck. I was pushing her down the road. Then I realized
there was something in front of me, so I hit the brakes
on the truck cuz I couldn't see her car cuz, you know, it
was hidden down under my hood.
At the trial, however, Ditzel stated that he actually didn't know
how the accident had happened and that much of what he had told the
insurance adjuster was "speculation." He explained:
I said I was going to change lanes. I didn't say I did
change lanes. . . . I don't know what happened. I don't
know where this lady came from, where she pulled out
from, if she pulled out. . . . And from behind, I didn't
mean I hit her. . . . I thought she came out at an angle
and I thought I might have caught her in the back.
Denman Lee, Mason's accident reconstruction expert, testified

5
at the trial that he believed the accident occurred because Ditzel
was changing lanes and ran into the "back left rear bumper" of
Mason's car. Lee explained that Mason's car had a "shock absorber"
built into the rear bumper, which U1flexedl' when the truck hit it
and caused the car to spring ahead of the truck at an angle. The
scratches on the left rear quarter panel, he said, occurred when
the bumper cover moved forward as the "shock absorber" flexed. Lee
had not actually examined Mason's car, but he had shown pictures of
it to the Dodge dealer who provided a parts diagram of the rear
bumper.
Harry Towns, a mechanical engineer who testified as an expert
witness for the defense, challenged Lee's explanation. He pointed
out that if the truck had hit the left rear end or bumper of
Mason's car, the car would have moved to the right, toward the
curb, and not to the left in front of the truck. Towns also said
that if the truck had hit the rear end of the car, the rear bumper
would have been damaged.
Towns' theory was that Mason caused the accident by changing
lanes:
Mrs. Mason was passing Mr. Ditzel on Mr. Ditzel's right-
hand side. She overtook and was passing the truck. She
pulled in front of the truck and attempted a lane change,
or started a lane change too soon. . . . The car actually
ran into the truck. Her left rear door contacted the
right side of the right front bumper of the truck. . . .
That pushed her car because her wheels were steered to
the left. . . . Her car went into a slight skid to the
left.
Mason's car had sustained a deep scratch on the left rear door,
which was consistent with Towns' theory. Towns also pointed out

6
that Lee had obtained a parts diagram for the wrong model of Dodge,

and that the particular model that Mason had been driving did not

have a "shock absorber" or "impact absorber" in its rear bumper.

Thus, Towns testified, the scratches on the left rear quarter panel

could not have been caused by movement of the rear bumper cover
because the 1986 Dodge Colt did not have that type of bumper.

Towns testified on the sixth day of the trial. On the seventh

day, after final arguments, the jury received its instructions and

retired for two hours of deliberation. Its verdict was reported in

the following form:

we, the jury in the above-entitled case, find the
following special verdict on the issues submitted to us:

Question 1: Was the Defendant Jon W. Ditzel negligent?
Answer: No.

Because the jury found that Ditzel was not negligent, it did not

answer any of the questions about damages.
I

Did the District Court err in allowing Dr. Joseph Rich to
testify as a defense witness?

Mason first questions the propriety of the District Court's

denial of her motion to exclude the testimony of Dr. Joseph Rich,

a psychiatrist. Although Dr. Rich's testimony ostensibly concerned

damages, it was also relevant to Mason's credibility as a witness

and will be considered here in that context.
Trial had originally been set for October 28, 1991, and the

parties had agreed that the respondents would disclose the identity

of their expert witnesses and the subject matter of their expected

7
testimony at least nine weeks in advance of that date, or before
August 26, 1991. On October 7, 1991, the respondents notified
Mason for the first time that they intended to use Dr. Joseph Rich
as an expert witness. The notice included a three-page report from
Dr. Rich, summarizing his analysis of Mason's medical history and
indicating a diagnosis of "somatoform pain disorder." Mason
immediately moved to exclude Dr. Rich's testimony on the grounds
that she had not been given adequate notice in view of the fact
that it offered a new theory of the case and went far beyond a
rebuttal of Mason's own psychiatric witness.
The respondents countered by asserting that Mason had not
responded adequately to their interrogatories in December 1990 and
that they were forced to discover most of her medical records
themselves. As a result, the respondents argued, they had not
known until September 1991 that psychiatric testimony would be
important in determining damages. Mason pointed out in her reply,
however, that she had identified her only psychiatric medical
provider, Dr. Duncan Burford, in December 1990, and that the
respondents had offered no reason for failing to depose Dr. Burford
before September 1991. Mason had consulted Dr. Burford after the
accident because she was having nightmares and was afraid to drive.
Dr. Burford diagnosed post-traumatic stress syndrome.
On October 18, 1991, Judge Maurice R. Colberg, Jr. postponed
the trial until November 18, 1991. He denied Mason's motion to
exclude Dr. Rich's testimony, reserving to Mason any objections her
counsel might make to the content of that testimony during the

8
trial and indicating that the court would consider further motions
for a continuance if Mason needed more time to prepare for trial.

Judge Colberg explained in his Order that Mason's failure to make

complete disclosure of past medical providers had "started a

sequence of late discovery of medical information," which "to some

degree led to the late disclosure of Dr. Rich as a proposed expert

witness by defendants."

Questions of admissibility of evidence are left to the sound

discretion of the trial court, subject to review only in the case
of manifest abuse. Britton v. Farmers Insurance Group (1986), 221

Mont. 67, 86, 721 P.2d 303, 315. Further, the testimony and

opinions of qualified experts are admissible whenever they will
assist the jury in understanding evidence that is beyond the jury's

experience. Wacker v. Park Rural Electric Cooperative, Inc.

(1989), 239 Mont. 500, 783 P.2d 360; Rule 702, M.R.Evid. Here, Dr.

Rich, as Medical Director of Psychiatric Services at Billings

Deaconess Hospital, was qualified as an expert for purposes of

evaluating the post-traumatic stress disorder of which Mason

complained. Because the trial was continued, Mason had ample time

to depose Dr. Rich and prepare for cross-examination. We hold that

the District Court did not abuse its discretion in denying Mason's

motion to exclude Dr. Rich's testimony.

During the trial, Judge Colberg denied Mason's motion to limit
Dr. Rich's testimony and overruled her objection to admission of

her medical records. Although these actions did not rise to the

level of error required for reversal, because "a reversal cannot be

9
predicated upon an error in admission of evidence, where the
evidence in question was not of such character to have affected the
result in the case," we feel that the circumstances require
comment. Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830,
834.
Mason's Motion in Limine concerned her scores on a Minnesota
Multiphasic Personality Inventory (MMPI) administered by Richard
Agosto, a clinical psychologist hired by Mason. Dr. Agosto had
interviewed Mason and reviewed her medical records in October 1991.
On November 7 and 8 he administered an MMPI, aided by an assistant
who read the 566 questions aloud to Mason. At the trial, Dr.

Agosto testified that his primary diagnosis was post-traumatic
stress disorder and that he believed that Mason was still suffering
from this disorder.
On cross-examination, Dr. Agosto interpreted Mason's MMPI
scores, indicating that Mason had scored at or above the 95th
percentile (that is, higher than 95 percent of the total
population) on six scales, labelled as follows:
Hypochondriasis
Depression
Hysteria
Schizophrenia
Paranoia
Potential Drug or Alcohol Dependency
Dr. Agosto explained on redirect examination that these terms were
developed in 1940 and no longer mean what they meant then (e.g.,
"schizophrenia" in the MMPI reflects "mental confusion and perhaps
memory difficulties, concentration problems 'I but does not mean that
the person taking the test is schizophrenic). He concluded that
10
the MMPI results were consistent with a diagnosis of post-traumatic

stress disorder and said that he had found no basis in Masons'

record as a whole to indicate somatoform pain disorder.
After Dr. Agosto testified, the respondents notified Mason

that their psychiatrist, Dr. Rich, would testify on the following

day to the effect that the results of the MMPI were consistent with

and supported his opinions concerning Mason. Mason immediately

filed her Motion in Limine, seeking an order that would prevent Dr.

Rich from discussing the MMPI results in his testimony on November

26. She argued that she had not had adequate notice and would be

unable to prepare for cross-examination. Judge Colberg denied the

motion, based on his understanding that "the ultimate conclusion

Dr. Rich is making in this case is the same as apparently he made

in a deposition and apparently he made in a [pre-trial] report,
although I don't have that information furnished."

In his pretrial report, however, Dr. Rich stated, for example,

"Mrs. Mason appears to have a tendency towards exaggeration," and

that she "has always experienced significant emotional problems."

In contrast, he testified on the sixth day of the trial that his

computer analysis of her MMPI responses showed that Mason "has

significant hysterical features;" is l'immature, egocentric, and

dependent;" and is "likely to have a long history of developing

functional somatic complaints during periods of stress;" that "mild

paranoid features are likely [with] potential for . . . projecting
blame and hostility onto others;" and that "substance abuse may be

a problem.1'

11
 Although Dr. Rich stated that the MMPI results were consistent
with the opinion he had already reached as to Mason's psychological
condition, that is, that she had a long-term "somatization
disorder" rather than post-traumatic stress disorder, his testimony
expanded the definitions of Mason's scale scores and made them
directly relevant, not to any injuries that might have been caused
by the accident, but to her credibility as a witness. Thus, there
is merit in Mason's argument, in her brief supporting her Motion in
Limine, that new conclusions and opinions would emerge from Dr.
Rich's testimony regarding her MMPI scores.
The rest of Dr. Rich's testimony was based on his review of
Mason's medical and dental records, dating back to 1977, and the
depositions of several of her doctors, including Dr. Burford, the
psychiatrist. Despite Mason's objections, Judge Colberg admitted
all of these records and depositions, representing approximately
thirty-three medical or dental providers, as evidence. Dr. Rich
read selections from these records to the jury during direct
examination, emphasizing occasions on which the physician either
had been unable to resolve her complaint or had prescribed
tranquilizers and pain medication. He diagnosed l'somatization
disorder" and suggested that with patients of this type, "once
litigation has begun, it's extremely difficult to get really good,
hard objective data out of a patient. . . . [IIt's a matter of
saving face."
Mason had objected before trial to admission of her medical
records through the videotaped deposition testimony of Dr. Maurice

12
Smith, a neurologist. In her brief in support of her Motion to
Exclude Medical Records, she argued that Dr. Smith's reading of the
records amounted to testimony lacking foundation and calling for
hearsay and would expose the jury to irrelevant or prejudicial
evidence. The court denied this motion on the grounds that Dr.
Smith had reached a conclusion based on the records, and overruled
Mason's objection at trial to Dr. Rich's reading of the same
records.
In the past we have upheld admission of medical records when
the testifying physician was also the attending physician who had
been responsible for the patient's care. Klaus v. Hillberry

(1971) I 157 Mont. 277, 485 P.2d 54; Matter of G.S. (1985), 215
Mont. 384, 698 P.2d 406; Garza v. Peppard (1986), 222 Mont. 244,
722 P.2d 610; Palmer by Diacon v. Farmers Ins. Exchange (1988), 233
Mont. 515, 761 P.2d 401. In -I
Garza we found that an attending
physician's testimony based on another doctor's records was within
the hearsay exception in Rule 803(4), M.R.Evid., which provides
that statements made for purposes of medical diagnosis are excluded
from the hearsay rule. Such testimony is also admissible under
Rule 703, M.R.Evid., which allows an expert to testify based on
inadmissible data if the data are of a type reasonably relied on by
experts in that particular field in forming opinions on the
subject.
Here, Dr. Rich was not Mason's attending physician and in fact
had never met her, much less examined or treated her. His reading
of her medical records therefore was not within the hearsay

13
exception in Rule 803(4), M.R.Evid. Dr. Smith also was not Mason's
attending physician, though he did examine her for approximately
two hours. In both cases, however, the records were admissible
under Rule 703, because Dr. Rich and Dr. Smith were experts who had
followed the practice of medical experts in basing their opinions
on medical records. Matter of G.S., 698 P.2d at 409. We hold,
therefore, that the District Court did not abuse its discretion in
allowing both doctors to read Mason's medical records aloud.
We will not disturb a jury verdict when substantial, credible
evidence exists to support that verdict. Palmer, 761 P.2d at 404;
Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. While the
disputed testimony tended to confuse the issues and may have misled
the jury, the police testimony and photographs alone provide
sufficient evidence to support the jury's verdict. "In making our
determination on sufficiency of the evidence, we are constrained to
view the evidence in a light most favorable to the prevailing
party." Gass v. Hilson (1990), 240 Mont. 459, 462, 784 P.2d 931,
933.
Further, where the record presents conflicting evidence, as it
does here, and the jury resolves that conflict, this Court is
precluded from disturbing the verdict. Lauman, 626 P.2d at 833.
Here, the jury resolved conflicts between Mason's and Ditzel's
versions of the accident, and between the parties' two accident
reconstruction experts, in Ditzel's favor. Viewed in a light most
favorable to the prevailing party, the evidence clearly supports
that resolution and the jury's verdict. See Whiting v. State

14
(1991), 248 Mont. 207, 213, 810 P.2d 1177, 1181 ("The credibility
and weight given to conflicting evidence is within the jury's
province.").
II
Did the District Court err in denying Mason's motion for
mistrial after an officer of Empire Sand and Gravel Company
spoke with jurors during the trial?
At the noon recess on November 22, 1991, the fifth day of the
trial, Mason observed Sandra Reiter, secretary-treasurer and one of
the owners of respondent Empire Sand and Gravel Company, Inc.,
talking with three jurors in the hall near the elevators. She
heard Reiter say something like, "Isn't this incredible," to which
a juror responded "yesl' and laughed. Counsel met with Judge
Colberg in chambers, and Mason's attorney moved for a mistrial.
Still in chambers, without the lawyers, Judge Colberg questioned
Mason, Reiter, and two of the three jurors involved.
Reiter had been sitting at the counsel table throughout the
trial and had been introduced to the jury during voir dire. She
told Judge Colberg that the exchange in the hall had concerned a
suspected rapist thought to be roaming the downtown Billings area.
The three jurors had been discussing possible safety precautions in
getting to the parking garage, Reiter said, and she had commented,
"Yes, it's kind of incredible, isn't it? I just learned about it
last night." She also told the judge that earlier in the trial she
may have spoken to a juror on the way to the garage, responding to
a comment about the weather.
Reiter identified two of the three jurors involved in the

15
conversation about the rapist: Joanne Sheridan, who was to be the
jury foreman, and Tana Hansen. Judge Colberg interviewed Sheridan
in chambers. She confirmed Reiter's impression of the noon recess
conversation and added that "If one of us talked to her, it was a
case of we were talking and she interjected."
Sheridan had stated in voir dire that she was acquainted with
Reiter in a work-related context, which may explain why Reiter was
able to identify Sheridan as one of the jurors involved in the
conversation. When Judge Colberg questioned Reiter as to the
identity of the three jurors, she said, "Joanne Sheridan and I
believe it was Mrs. Hansen and I'm not sure who the rest of them
[were] . " Judge Colberg interviewed another juror, Kay Burns,
tentatively identified by Joanne Sheridan as having been in the
group near the elevator. Burns remembered the conversation about
the rapist but did not recall any exchange with Reiter.
In chambers with counsel, Judge Colberg summarized his
interviews with Sheridan and Burns. Mason's attorney, Michael
Eiselein, then moved for a mistrial on the grounds that the
conversation in question "may have tended to establish some
rapport" between Reiter and the women jurors, "who were discussing
a common concern of women." Judge Colberg denied the motion, based
on his perception that any conversation that may have occurred
between Reiter and the jurors consisted of a "general comment,"
unrelated to the trial, and on his belief that the incident had not
prejudiced the jurors.
Mason relies on Putro v. Baker (1966), 147 Mont. 139, 410 P.2d

16
717, and State v. Eagan (1978), 178 Mont. 67, 582 P.2d 1195, for
the proposition that any misconduct tending to injure a party is
presumed prejudicial, though the presumption may be rebutted. In
those cases we recognized a fundamental right to an unprejudiced
jury and emphasized the importance of guarding jury trials from
improper influences. We also said, however, that it is for the
trial court to decide in each case whether prejudicial misconduct
has occurred.
Here, the fact that a juror was acquainted with one of the
parties was revealed during voir dire, but Mason did not challenge
that juror. When the same juror was later reported to have
conversed with the party in question, the court immediately
conducted a thorough investigation of the incident. Based on the
testimony of the juror and the party, it found no evidence that the
juror and the party discussed the case and properly denied Mason's
motion for a mistrial. See State v. Counts (1984), 209 Mont. 242,
248, 679 P.2d 1245, 1248 (any presumption of prejudice arising from
the unusual circumstance of a juror inviting a principal witness
for lunch was overcome by the testimony of the juror and the
witness prior to submission of the case to the jury): Turner v.
Louisiana (1964), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424
(mistrial justified by continuous, intimate association throughout
the trial, as opposed to a "brief encounter" between jurors and
witnesses).
Mason points out that Judge Colberg interviewed only two of
the three jurors known to have been involved in the exchange with

17
Sandra Reiter and argues that the presumption of prejudice created

by the conversation was not overcome, due to this failure to

interview the third juror, combined with the possibility of further

contact between Reiter and juror Sheridan. We find this argument

unpersuasive. The record does not indicate why Judge Colberq did

not interview the third juror, but it does show that he would have

done so if asked. After Mason's attorney, Mr. Eiselein, moved for

a mistrial, the following conversation took place:

JUDGE COLBERG: okay, you've made your motion for a
mistrial. And let me ask you this. Is there any request
that I make further investigation with the jurors -- the
remaining jurors on this panel in any way related to this
issue?

MR. EISELEIN: Your Honor, I'm satisfied with the record
I've made.
Mason's suggestion that further contact occurred between Reiter and

Sheridan is based on Reiter's statement, quoted above, that "Joanne

Sheridan and I believe it was Mrs. Hansen. . . .'I Mason concedes

that if this statement does represent further contact, nothing is

known about any conversation that took place. No evidence was

offered to show that Reiter and Sheridan discussed the case or the

trial.
We have held that when the district court has considered a

motion for mistrial, this Court will not lightly disturb its

ruling. "To overthrow it this Court must be shown by evidence that

is clear, convincing, and practically free from doubt, of the error

of the trial court's ruling." Schmoyer v. Bourdeau (1966)‘ 148

Mont. 340, 343, 420 P.2d 316, 317-18. No such evidence has been

produced here, and no prejudice to Mason has been established. The

18
appearance of impropriety is not a sufficient basis for reversal.

Counts, 679 P.2d at 1249.

AFFIRMED.

We concur: /-=s---

19
 November24, 1992

CERTIFICATE OF SERVICE

I herebycertify that the following order was sentby United Statesmail, prepaid,to the following
named:

Thomas Lynaugh
J.
Lynaugh,Fitzgerald,Eiselein& Eakin
P.O. Box 1729
Billings, MT 59103-1729

James Jones
L.
Dorsey& Whitney
P.O. Box 7188
Billings, MT 59103

ED SMITH
CLERK OF THE SUPREMECOURT