No. 88-308
I N THE SUPREME COURT OF THE STATE O F MONTANA
CATHERINE D A H L I N ,
Plaintiff and Appellant,
-vs-
J A N I C E HOLMQUIST,
D e f e n d a n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of Y e l l o w s t o n e ,
T h e H o n o r a b l e G. T o d d R a u g h , J u d g e p r e s i d i n q .
COUNSEL O F RECORD:
For A p p e l l a n t :
Hoyt & Blewett; Michael J . G e o r g e , G r e a t F a l l s ,
Montana
For R e s p o n d e n t :
D o n a l d L. H a r r i s ; C r o w l e y , H a u g h e y , Hanson, Toole
and D i e t r i c h , B i l l i n g s , M o n t a n a
S u b m i t t e d on B r i e f s : Oct. 6, 1988
Decided: November 29, 1988
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Mr. Justice L. C. Gulbrandson delivered. the Opinion of the
Court.
Catherine Dahlin appeals from the denial of her motion
for a new trial hy the District Court of the Thirteenth
Judicial District, Yellowstone County. We reverse and remand
for a new trial.
Appellant raises the following issues upon appeal :
1. Did the District Court's denial of plaintiff's
motion in limine to exclude the secondary gain testimony of
Dr. Lovitt deny plaintiff her right to a fair trial?
2. Was plaintiff denied a fair trial by the District
Court's denial of plaintiff's request to inform the jury of
defendant's insurance coverage following defendant's allusion
to a lack of insurance by the comment "we paid"?
3. Was plaintiff denied a fair and impartial jury by
the District Court's refusal to permit plaintiff to voir dire
potential jurors about any bias resulting after media
exposure to articles or advertisements on the "liability
crisis"?
On February 26, 1984, the parties to this case were
involved in an automobile accident in Lewistown, Montana.
Catherine Dahlin suffered neck and shoulder injuries j n the
.
accident. She was subsequently seen by Dr. James Lovitt, an
orthopedic surgeon, in March of 1984. He diagnosed her as
suffering from a cervical and lumbar strain. To date, Dahlin
continues to experience headaches and neck pain, even though
the normal healing period for such an injury is six to twelve
weeks.
On February 23, 1987, Dahlin filed a complaint alleging
that the defendant's negligent vehicular operation caused the
collision which resulted in her physical injury, pain and
suffering, loss of established course of life, and lost
earning capacity. The District Court granted plaintiff's
motion for summary judgment on the issue of liability after
determining that defendant's negligence caused the accident.
The court scheduled a jury trial on the issue of damages to
begin February 16, 1988.
Prior to trial, plaintiff notified the court of her
intent to question potential jurors about whether they
believe, and consequently would be biased because of anything
they had heard or read indicating that jury verdicts for
plaintiffs in personal injury cases result in higher
insurance premiums. On the morning of trial, plaintiff
general-ly asserted that the extensive "media blitz" on the
issue of "tort reform" and the "liability crisis" was
sufficient to warrant such questioning. Plaintiff then
offered four articles, generally published two years prior to
trial, as proof of this "media blitz." The court held such
articles were too remote in time to have any potential
prejudicial eFfect on the jurors, and consequently it denied
plaintiff's request to conduct such questioning.
Plaintiff filed a motion in limine four days prior to
trial, requesting the court to exclude, among other things,
all "secondary gain" testimony by Dr. Lovitt. The doctor
defined such secondary gain as that financial, emotional, or
other type of benefit received by virtue of the injury which
serves to encourage the continuation of an injury. The court
delayed ruling on this motion the first morning of trial,
stating that it would review the deposition containing the
secondary gain testimony prior to its presentation to the
jury. The court later ruled, without having read the con-
tested deposition testimony, that all of the deposition was
admissible. Both parties subsequently read portions of Dr.
Lovitt's deposition, including the testimony about "secondary
gain," to the jury. Plaintiff then renewed her objection and
the court repeated its former ruling. However, the court did
strike and admonish the jury to disregard the followina
highly prejudicial comment espoused by Dr. Lovitt when asked
for a definition of secondary gain:
It frequently is intentional, and we all
know the-you know, the situation in
which, you know, somebody stands to make
a hunch of money if they have a liberal,
nonperceptive jury that gives them a big
award based on only subjective symptoms
and findings.
Plaintiff also objected at the conclusion of
defendant's closing argument to defense counsel's remark
that, " [wle paid." Plaintiff asserted that this allusion to
insurance effectively "opened the door" on the subject of
insurance. Therefore, the court should permit plaintiff to
also comment on insurance coverage. The court denied thic
request.
The jury subsequently returned a verdict awarding the
plaintiff $10,000 in damages. After subtracting those
medical costs previously paid by the defendant's insurer, the
court entered a judgment for plaintiff in the amount of
$8,048.05.
Plaintiff moved for a new trial on March 18, 1988,
alleqing that she was denied her right to a fair trial. T h e
court denied the motion for a new trial on ~ p r i l 26, 1988.
This appeal followed.
The first issue, raised upon appeal challenges the
District Court's decision to allow the admission of the
secondary gain testimony in Dr. Lovitt's deposition.
Appellant alleges that all testimony of secondary gain was
irrelevant and highly prejudicial, and that its admission
deni.ed plaintiff her right t.n a fair trial.
Evidence that is not relevant is inadmissible. Rule
402, M.R.Evid. Rule 401, M.R.Evid., defines relevant
evidence as:
[Elvidence having any tendency to make
the existence of any fact that is of
consequence to the determination of the
action more probable or less probable
than it would be without the evidence.
This determination of relevancy and of the admissibility of
evidence is within the discretion of the trial court. Welnel
v. Hall (Mont. 1984), 694 P.2d 1346, 1348, 42 St.Rep. 195,
197. Consequently, we will not disturb the District Court's
denial of plaintiff's motion in limine and permission to
admit the disputed secondary gain testimony unless the court
abused its discretion.
We hold that the trial judge in this case did in fact
abuse his discretion when he denied plaintiff's motion in
limine and ruled that all Dr. Lovitt's deposition testimony
could be read to the jury. The proffered evidence of
secondary gain did not meet the test of relevancy as it did
not naturally and logically tend to make either the extent or
validity of plaintiff's alleged continuing injury more or
less probable. Britton v. Farmers Ins. Group (Mont. 1986) ,
721 P.2d 303, 315, 43 St.Rep. 641, 654. No evidence was
introduced even implying that the concept of secondary gain
was applicable to plaintiff. Dr. Lovitt did not suggest that
the plaintiff's allegations of continuing pain were a result
of either conscious or subconscious expectations of
financial, emotional or other type of gain. Rather, Dr.
Lovitt himself stated that he perceived plaintiff as a
reasonable person who was "probably not going to improve a
whole heck of a lot anytime i.n the near future." Dr. T,ovitt
thus concluded that:
Yes I do really tend to believe her.
I'll tell you why. Because her symptoms
have been pretty much persistent over
time, and she has continued to work.
Given the lack of any evidence even suggesting that
plaintiff's injuries were influenced by secondary gain
motives, the court's decision to allow the introduction of
such testimony amounted to an abuse of discretion.
We will not reverse a judgment, however, unless the
error affects the substantial rights of a party. See, State
v. Fitzpatrick (1980), 186 Mont. 187, 205, 606 P.2d 1343,
1353, cert. denied, 449 U.S. 891. The facts in this case
indicate that the court's erroneous ruling to admit all Dr.
Lovitt's testimony did substantially prejudice the jury and
affect plaintiff's right to a fair trial. One portion of the
secondary gain testimony was so prejudicial that the District
Court ruled to strike it from the record and then admonished
the jury to disregard it. Yet the jury had already heard
this highly prejudicial testimony and other irrelevant
testimony of secondary gain because of the court's erroneous
denial of plaintiff's prior motion in limine. It is
irrelevant which party at trial read the preiudicial
testimony to the jury, in view of the court's erroneous
ruling. In this case, as in Kuiper v. Goodyear Tire (1983),
207 Mont. 37, 673 P.2d 1208, the failure of the trial court
to exclude such evidence prejudicial to the defendant
permitted the jury "to indulge in improper speculation and
guesswork." Kuiper, 673 at 1217. The failure to exclude all
secondary gain testimony constituted an error of sufficient
magnitude to warrant a new trial. Consequently, the District
Court erred in denying plaintiff's motion for a mistrial.
We need not address the second and third issues, having
held. the plaintiff is entitled to a new trial under the first
issue. W e admonish b o t h p a r t i e s , however, t o r e f r a i n from
a n y m e n t i o n o f i n s u r a n c e upon r e t r i a l .
R e v e r s e d and remanded f o r a new t r i a l .
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We concur:
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