Henricksen v. State

No. 02-519

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 20

KRISTIN HENRICKSEN, individually and a parent
and guardian of HUNTER HENRICKSEN, a minor,

Plaintiff, Respondent and Cross-Appellant,

v.

STATE OF MONTANA and MONTANA
STATE UNIVERSITY,

Defendants and Appellants.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 96-408,
Honorable Mike Salvagni, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Steven J. Harman, Brown Law Firm, Billings, Montana

Honorable Mike McGrath, Attorney General; Katherine J. Orr,
Assistant Attorney General, Helena, Montana

For Respondent:

Monte D. Beck, Beck, Richardson & Amsden, PLLC, Bozeman,
Montana

Submitted on Briefs: June 5, 2003

Decided: January 28, 2004

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 The State of Montana and Montana State University (collectively the State) appeal

multiple District Court rulings detailed below. Kristin Henricksen (Kristin) cross-appeals.

We affirm in part and reverse in part.

¶2 The issues on appeal are as follows:

¶3 1. Whether the District Court erred in granting partial summary judgment on the

issue of liability?

¶4 2. Whether the District Court erred in bifurcating liability and damages and in

bifurcating Kristin’s and Hunter’s damages?

¶5 3. Whether the District Court erred in denying the production of (1) Kristin’s

medical and mental health records; and (2) her financial documents, school

transcripts, and personnel records?

¶6 4. Whether the District Court erred in not allowing the State to depose Hunter or

to call him as a witness?

¶7 5. Whether the District Court erred in prohibiting the State from conducting an

IME and in excluding the State’s expert witness?

¶8 6. Whether the District Court erred in excluding evidence of (1) stressors in

Kristin’s life unrelated to the accident and counseling services Kristin received

prior to Hunter’s accident; and (2) a prior fall at the MSU library?

¶9 7. Whether the District Court erred in its jury instructions for the claims of

emotional distress and loss of established course of life?

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¶10 8. Whether the District Court erred in excluding the videotapes of Hunter?

¶11 9. Whether the District Court erred in not dismissing jurors for cause?

Factual and Procedural Background

¶12 On November 2, 1995, Kristin and her three-year-old son Hunter were at the Montana

State University (MSU) library. Hunter slipped between the stairway balusters of a second

story open stairwell and fell approximately twenty feet to the concrete floor below, landing

on the left side of his head. Within hours of Hunter’s fall, Kristin learned that another child

had fallen through the same stairway weeks earlier. As a result of this fall, Hunter suffered

three skull fractures. Since the fall, medical tests have revealed that an area of his brain

tissue about the size of a golf ball has atrophied.

¶13 On December 17, 1996, Kristin individually, and as parent of Hunter, filed a

complaint against the State. Kristin’s claim was based on emotional distress, loss of

consortium, and post-traumatic stress disorder, all related to Hunter’s fall. Hunter’s claim

was for medical expenses related to his injuries, loss of enjoyment of lifestyle, and pain and

suffering.

¶14 On February 23, 1999, the District Court granted partial summary judgment against

the State, regarding duty and breach. The court bifurcated the issues of liability and damages

and also the issues of Kristin’s and Hunter’s damages.

¶15 The court granted motions in limine excluding the following evidence: lack of prior

accidents at the library; evidence that the stairway complied with the Uniform Building Code

in effect at the time the stairway was constructed; evidence of a child’s fall weeks before

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Hunter’s fall from the same stairway; and evidence concerning Kristin’s divorce and prior

unrelated counseling. The court also granted a motion to strike Dr. David Price’s testimony

and limit Dr. Paul Bach’s testimony (both expert witnesses for the State). After conducting

an in camera review of Kristin’s medical records, the court denied a motion to compel

production of Kristin’s health care records from before and after Hunter’s fall. The court

also denied the motion to compel production of all Kristin’s financial documents. The State

requested, before the discovery deadline, an independent medical examination of Kristin

which the District Court at first granted but later denied after reconsideration.

¶16 At the start of the trial, beginning on April 15, 2002, the State challenged several

jurors for cause because they had read a newspaper article regarding Hunter’s accident that

mentioned the prior fall. All but one of these challenges were denied after the jurors were

questioned about potential bias. After a five-day trial, a jury rendered a verdict against the

State. The verdict amount was reduced by 20 percent based on Kristin’s comparative

negligence.

¶17 The State has appealed numerous issues, delineated above. In the event that a new

trial is ordered, Kristin cross-appealed the preclusion of the evidence regarding the prior fall.

We affirm in part and reverse in part.

Discussion

¶18 Issue 1: Whether the District Court erred in granting partial summary judgment on

the issue of liability?

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¶19 We review a district court’s grant of summary judgment de novo, applying the same

criteria as the district court, based on Rule 56, M.R.Civ.P. Wiley v. City of Glendive (1995),

272 Mont. 213, 216, 900 P.2d 310, 312. The party moving for summary judgment must

demonstrate that no genuine issues of material fact exist. Wiley, 272 Mont. at 216, 900 P.2d

at 312. If this is demonstrated, “the burden then shifts to the party opposing the motion to

establish otherwise.” Wiley, 272 Mont. at 216, 900 P.2d at 312. Although negligence

actions involve questions of fact and are ordinarily not susceptible to summary judgment,

when reasonable minds cannot differ, questions of fact can be determined as a matter of law.

Wiley, 272 Mont. at 216, 900 P.2d at 312.

¶20 A negligence action has four elements: (1) duty; (2) breach of duty; (3) causation;

and (4) damages. Wiley, 272 Mont. at 217, 900 P.2d at 312. In this case, the District Court

granted summary judgment on the duty and breach of duty elements. Causation and damages

were left for determination at trial.

¶21 The question of whether the State owed a legal duty to Kristin and Hunter and the

scope of this duty are questions of law. Webb v. T.D. (1997), 287 Mont. 68, 72, 951 P.2d

1008, 1011. “The existence of a duty of care depends upon the foreseeability of the risk and

upon a weighing of policy consideration for and against the imposition of liability.” Estate

of Strever v. Cline (1996), 278 Mont. 165, 173, 924 P.2d 666, 670. The policy consider-

ations weighed to determine whether to impose a duty include:

(1) the moral blame attached to the defendant’s conduct; (2) the desire to
prevent future harm; (3) the extent of the burden to the defendant and the
consequences to the community of imposing a duty to exercise care with

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 resulting liability for breach; and (4) the availability, cost and prevalence of
insurance for the involved.

Estate of Strever, 278 Mont. at 173, 924 P.2d at 670.

¶22 A duty of care is breached, as a matter of law, if a defect or dangerous condition

exists of a sufficient magnitude to cause a reasonable person to conclude that an accident is

likely to occur because of the condition and the person or entity exercising control over the

condition had notice of the defect. Wiley, 272 Mont. at 218, 900 P.2d at 313. “[W]hen the

State has notice of a defect and opportunity to act, it has the duty to cure, remove, or warn

of that defect.” Wiley, 272 Mont. at 217, 900 P.2d at 313.

¶23 After reviewing the record before us, we conclude that the State owed a duty of

ordinary care to prevent children from falling through the balusters in the MSU library.

Section 27-1-701, MCA. As the State has a duty to maintain sidewalks and highways in a

safe condition for ordinary and public use, Wiley, 272 Mont. at 217, 900 P.2d at 312, so too

does it have a duty to maintain the balcony and staircase at the MSU library in a safe

condition for ordinary and public use. The State knew the distance between the balusters of

the stairway was a gaping eleven to twelve inches. This alone was sufficient to make

Hunter’s fall foreseeable. Additionally, the State knew that approximately two weeks earlier

another child fell through the balusters at the library. After this first accident, the dangerous

condition of the balusters could not be ignored. Yet the State did not act.

¶24 Policy considerations support the imposition of a duty upon the State. The baluster

spacing which led to the accident was in a state library open to the public. Society has a

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legitimate interest in prevention of harm to all library users because the library should be safe

for all users and their children. The State had a minimal burden placed upon it to remedy

the situation, as shown by the placement of chickenwire in front of the balusters within

twenty-four hours of Hunter’s fall. Lastly, the public suffers no negative cost if the State is

held to a duty of care because any liability is covered by the State’s insurance.

¶25 The State breached its duty of ordinary care when it failed to take any remedial action

following the first fall. The State had a duty to maintain the stairway in a reasonably safe

condition and to take measures to prevent small children from falling through the balusters.

The State had notice of the defect caused by the unsafe distance between the stairway

balusters when the first fall occurred. “When defects are present the State’s duty to cure or

remove the same, or give warning thereof begins when it has notice of the same and

opportunity to act.” Buck v. State (1986), 222 Mont. 423, 430, 723 P.2d 210, 214 (overruled

on other grounds). Here, despite notice, the State did not act to cure, remove, or warn of the

stairway defect.

¶26 The State contends that because it had a relatively accident-free history at the library

and the building was grand-fathered in under an older version of the Uniform Building Code

there are genuine issues of material fact which make summary judgment inappropriate.

However, foreseeability is determined at the time the event occurred, irrespective of a long

history free from accidents. Jackson v. State, 1998 MT 46, ¶¶ 56-58, 287 Mont. 473, ¶¶ 56-

58, 956 P.2d 35, ¶¶ 56-58.

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¶27 “Property owners owe a duty of ordinary care to keep the premises reasonably safe

and to warn people of any hidden or lurking dangers.” Welton v. Lucas (1997), 283 Mont.

202, 207, 940 P.2d 112, 115. This duty is not abrogated by either a long or relatively

accident-free history, Allis-Chalmers Corp. v. Occupational Safety & Health Review Com.

(7th Cir. 1976), 542 F.2d 27, 31 (an employer’s accident-free record may be considered in

determining the gravity of a safety violation but the record is not dispositive); Faultless Div.,

Bliss & Laughlin Indus., Inc. v. Secretary of Labor (7th Cir. 1982), 674 F.2d 1177, 1184 (a

history free from accidents is not dispositive regarding whether a safety regulation violation

occurred), or having a building grand-fathered in under older building codes, Moffatt v.

University of Montana (1992), 254 Mont. 285, 837 P.2d 401 (compliance of stairs with

building code does not prove conclusively that property owner properly maintained its

premises); Hull v. Greater Cleveland Reg’l Transit Auth. (Ohio App. 1987), LEXIS 7574,

2 (complying with building codes does not establish that one does not breach the duty of

ordinary care). Because we agree with the District Court that no material issues of fact exist

regarding the State’s duty and breach of duty, we affirm the grant of partial summary

judgment on these issues. The remaining issues are discussed in regards to damages only.

¶28 Issue 2: Whether the District Court erred in bifurcating liability and damages and in

bifurcating Kristin’s and Hunter’s damages?

¶29 A court may bifurcate claims in order to avoid the danger of prejudice or for court

convenience. Rule 42(b), M.R.Civ.P. The decision whether to bifurcate claims pursuant to

this rule is a matter left to the broad discretion of the district court. Malta Public School

8
Dist. v. 17th Jud. Dist. (1997), 283 Mont. 46, 50, 938 P.2d 1335, 1338. This Court reviews

a decision to bifurcate for abuse of discretion. Malta Pub. School Dist., 283 Mont. at 51,

938 P.2d at 1338. “The test for abuse of discretion is whether the trial court acted arbitrarily

without employment of conscientious judgment or exceeded the bounds of reason resulting

in substantial injustice.” Jarvenpaa v. Glacier Electric Co-op., 1998 MT 306, ¶ 13, 292

Mont. 118, ¶ 13, 970 P.2d 84, ¶ 13 (citation omitted). It is not appropriate to bifurcate

issues when the issues are so intertwined that if they are separated it will create confusion

and uncertainty, Miller v. Fairchild Industries, Inc. (9th Cir. 1989), 885 F.2d 498, 511, or

needless and endless litigation, State ex rel. Fitzgerald v. Dist. Court (1985), 217 Mont. 106,

118, 703 P.2d 148, 156.

¶30 In State ex rel. Fitzgerald v. District Court, we determined that bifurcation was not

appropriate because the issue of exemplary damages was so interwoven with proving

negligence and malice or oppression that to have separate trials would lead to extended and

needless litigation. State ex rel. Fitzgerald, 217 Mont. at 118, 703 P.2d at 156.

¶31 In the instant case, the court ordered bifurcation of liability and damages as well as

bifurcation of Kristin’s and Hunter’s damages. The court did this both for court convenience

and to avoid the danger of prejudice. With respect to bifurcation of liability and damages,

duplication of evidence would be minimal because the evidence proving liability and that

proving damages is fundamentally different. They are not so interwoven that bifurcation

would prevent a fair trial or lead to endless litigation. Bifurcation of liability from damages

is appropriate because witnesses (for the liability phase) could be lost or their memories

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clouded if they have to wait to testify until the full extent of Hunter’s damages is known.

The trial court also stated that a finding of liability may help speed the judicial process by

enhancing the possibility of a settlement.

¶32 Bifurcation of Kristin’s and Hunter’s damages is appropriate because Kristin’s

damages are currently assessable. Because of Hunter’s young age, the full extent of his

damages will not be known for several years. Forcing Kristin to wait until the time when

Hunter’s damages are fully assessable or forcing both issues to be tried now, before Hunter’s

damages are fully known, would be prejudicial. Although the same facts surround the

underlying accident causing both Kristin’s and Hunter’s damages, the claims are fundamen-

tally different. Although slight overlap of witnesses may occur between their claims, the

witnesses and evidence will not be extensively duplicated. Different witnesses will and have

provided testimony regarding the impact the accident had on Kristin and on Hunter.

¶33 Based on the foregoing, we conclude that the District Court did not abuse its

discretion by ordering bifurcation. Unlike the Fitzgerald decision, judicial economy in this

case does not call for a unified trial. The District Court did not act arbitrarily without

employment of conscientious judgment or exceed the bounds of reason. Bifurcation was

appropriate both for court convenience and to prevent prejudice resulting in substantial

injustice. We affirm.

¶34 Issue 3: Whether the District Court erred in denying the production of (1) Kristin’s

medical and mental health records; and (2) her financial documents, school transcripts, and

personnel records?

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Medical and Mental Health Records

¶35 “The District Court has inherent discretionary power to control discovery based on

its authority to control trial administration.” Anderson v. Werner Enterprises, Inc., 1998 MT

333, ¶ 13, 292 Mont. 284, ¶ 13, 972 P.2d 806, ¶ 13. We review a district court’s rulings on

discovery motions for an abuse of discretion. Anderson, ¶ 13. The party claiming error in

the district court’s discovery rulings must show prejudice. Anderson, ¶ 13. We will reverse

these discretionary rulings only when the court’s “judgment may materially affect the

substantial rights of the complaining party and allow the possibility of a miscarriage of

justice.” Anderson, ¶ 13.

¶36 Medical records are private and “deserve the utmost constitutional protection.” State

v. Nelson (1997), 283 Mont. 231, 242, 941 P.2d 441, 448. Article II, Section 10, of the

Montana Constitution guarantees informational privacy in the sanctity of one’s medical

records. Nelson, 283 Mont. at 242, 941 P.2d at 448. However, “[w]hen a party claims

damages for physical or mental injury, he or she places the extent of that physical or mental

injury at issue and waives his or her statutory right to confidentiality to the extent that it is

necessary for a defendant to discover whether plaintiff’s current medical or physical

condition is the result of some other cause.” State ex rel. Mapes v. District Court (1991),

250 Mont. 524, 530, 822 P.2d 91, 94. Nonetheless, the waiver is not unlimited; the

defendant may only discover records related to prior physical or mental conditions if they

relate to currently claimed damages. The plaintiff’s right to confidentiality is balanced

against the defendant’s right to defend itself in an informed manner. State ex rel. Mapes, 250

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Mont. at 530, 822 P.2d at 94. A defendant “is not entitled to unnecessarily invade plaintiff’s

privacy by exploring totally unrelated or irrelevant matters.” State ex rel. Mapes, 250 Mont.

at 530, 822 P.2d at 95.

¶37 The District Court denied the State’s motion to compel production of all Kristin’s

health care records (including medical and counseling records) from before and after

Hunter’s fall and granted a protective order on the basis that the records were constitutionally

protected, irrelevant to the issues in this case, and therefore not discoverable. The court

conducted an in camera review of Kristin’s medical records. An in camera review is often

used at various stages throughout discovery and trial “to balance the privacy interests of the

parties and the need to know. The in camera procedure can effectively offer protection to

both parties by avoiding needless exposure of potentially harmful information.” State v.

Burns (1992), 253 Mont. 37, 39, 830 P.2d 1318, 1319-20. The court can preview potentially

damaging information before it is released, Burns, 253 Mont. at 39, 830 P.2d at 1320, and

decide what information is properly discoverable, In re Lacy (1989), 239 Mont. 321, 326,

780 P.2d 186, 189.

¶38 A defendant is not allowed unfettered access to all medical records he believes may

help his defense. In State v. Mix, the trial court refused access to records because the subject

matter was irrelevant and too remote to the case. State v. Mix (1989), 239 Mont. 351, 360,

781 P.2d 751, 756. In that case, a defendant charged with deliberate homicide sought

medical records regarding the victim’s asthma condition. Mix, 239 Mont. at 360, 781 P.2d

at 756.

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¶39 In the present case, Kristin commenced an action for damages for her personal injuries

which placed in issue her mental and physical condition arising from the accident. Jaap v.

District Court (1981), 191 Mont. 319, 322, 623 P.2d 1389, 1391; State ex rel. Mapes, 250

Mont. at 530, 822 P.2d at 94. In doing this, she waived any physician-patient privilege as

to a mental or physical condition in controversy. Jaap, 191 Mont. at 322, 623 P.2d at 1391;

Rule 35(b)(2), M.R.Civ.P. This includes testimony her physicians may have provided

concerning her prior mental condition. Kristin did not produce records from before Hunter’s

accident because the records were “sensitive and personal.” She did produce redacted

medical records for the period after Hunter’s accident which she determined were relevant.

The State did view the redacted portion of Kristin’s medical records. However, the State

sought all Kristin’s mental and medical health records from ten years before Hunter’s

accident (1985) through time of trial.

¶40 Kristin claims that because she provided her doctors with complete copies of the

disputed medical records, and her doctors stated the records showed no causal correlation

between any previous injury or condition and her current injuries, this ends the inquiry into

the medical records. Kristin argues that the State should be denied access to the records

because it did not present any expert medical opinion that her alleged injuries were more

probably than not caused by some factor other than witnessing Hunter’s fall. The fallacy in

this argument is that there was no way that the State could have provided this opinion

because it was denied access to the very records which would have enabled it to make this

13
determination. The court’s denial of these records only allowed for one-sided review of the

medical records by Kristin’s physicians.

¶41 The State was prejudiced when it was denied the right to defend itself in an informed

manner. It had the right to discover evidence related to prior physical or mental conditions

possibly connected to Kristin’s current damages. State ex rel. Mapes, 250 Mont. at 530, 822

P.2d at 94. The State is not entitled to unnecessarily invade Kristin’s privacy by exploring

totally unrelated or irrelevant matters. State ex rel. Mapes, 250 Mont. at 530, 822 P.2d at

95. However, because Kristin presented her entire medical records file to her treating

physicians and asked for their expert medical opinions, which were at least in part based on

the records which were denied to the defense, she waived her statutory right to confidential-

ity but only to the extent that it is necessary for the State to discover for itself whether

Kristin’s current medical or physical condition is the result of some other cause. State ex rel.

Mapes, 250 Mont. at 530, 822 P.2d at 94. The State thus has a right to review Kristin’s

medical records to determine whether her present condition is attributable to some

preexisting cause.

¶42 The similarity between Kristin’s present claims and those for which she was

previously treated shows the possible correlation between her pre-accident records and her

present claims. Kristin’s claims involve emotional distress, loss of consortium, and post-

traumatic stress disorder (PTSD). The record indicates that prior to Hunter’s accident, she

was taking medications which can be used to treat depression, headaches, sleep disorders,

and anxiety. The connection between Kristin’s present claims and her past conditions is not

14
attenuated as it was in Mix where access to records was denied. Mix, 239 Mont. at 360, 781

P.2d at 756. Accordingly, we reverse the District Court’s denial of the State’s motion to

compel production of the medical records.

Financial Documents, School Transcripts, and Personnel Records

¶43 The District Court granted an order protecting Kristin’s financial documents, school

transcript, and personnel records. The State sought to have these records produced in an

effort to quantify Kristin’s damages. However, the court ruled that Kristin’s statement of

damages was sufficient and the documents were not likely to lead to discovery of any

relevant information.

¶44 Because the State is the party alleging error in the District Court’s discovery rulings,

the State must show how it was prejudiced by the trial court’s ruling. Anderson, ¶ 13.

Kristin does not claim lost earnings or lost earning capacity; rather her mental and emotional

states are at issue. The requested documents have no bearing on these legitimate issues. The

State fails to show that the denial of the requested documents substantially prejudiced it or

impaired its ability to present a defense. We find no abuse of discretion. We affirm.

¶45 Issue 4: Whether the District Court erred in not allowing the State to depose Hunter

or to call him as a witness?

¶46 We review a grant or denial of a motion in limine for an abuse of discretion. Bramble

v. State, 1999 MT 132, ¶ 16, 294 Mont. 501, ¶ 16, 982 P.2d 464, ¶ 16. We will not overturn

a district court’s ruling on discovery unless the party alleging error proves an abuse of

discretion and resulting prejudice. Anderson, ¶ 13. Rule 26(c), M.R.Civ.P., allows a court

15
to “make any order which justice requires to protect a party or person from annoyance,

embarrassment, oppression, or undue burden . . . including . . . that the discovery not be

had[.]” There is no minimum age requirement with regard to child testimony. State v. Eiler

(1988), 234 Mont. 38, 42, 762 P.2d 210, 213 (testimony from four-year-old and five-year-old

children allowed). However, child witnesses need “protection against the potential emotional

and psychological injuries” that may occur with regular litigation procedures. State v. Sor-

Lokken (1991), 247 Mont. 343, 349, 805 P.2d 1367, 1372. Furthermore, needlessly

cumulative evidence may be excluded. Rule 403, M.R.Evid.

¶47 The District Court issued a protective order precluding a deposition of Hunter and

reaffirmed this decision when it granted a motion in limine to exclude Hunter as a witness.

The court reasoned that because Hunter was only three years old at the time of the accident,

and only nine years old at the time of the trial, little probative information could be gained

by forcing him to testify regarding the stress his mother suffers because of his head injury.

The court also stated that such testimony would be traumatic and unduly burdensome to

Hunter. Additionally, any information Hunter could have provided was available from other

witnesses, such as physicians and school teachers, and thus would be cumulative. Rule 403,

M.R.Evid.

¶48 The State has failed to show prejudice resulting from the exclusion of Hunter’s

testimony. Due to his young age, Hunter does not remember the accident or his mother’s

condition before the accident. He could not testify as to how the accident changed her life.

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The State had the opportunity to question Kristin and other adult witnesses regarding her

condition before and after Hunter’s accident.

¶49 Furthermore, because the State had the opportunity to use expert witness testimony

regarding Hunter’s condition, it did not need Hunter to testify regarding the effects the

accident had on him. The State listed Dr. Bach as an expert witness for Kristin’s trial to

present testimony based on his examination of Hunter and also to report on Hunter’s past and

present condition. Since the State could have used Dr. Bach’s testimony but chose not to,

it was not prejudiced by the inability to call Hunter as a witness. The court did not act

arbitrarily without conscientious judgment and did not abuse its discretion. We affirm the

order of the court protecting Hunter from having to testify at deposition or at trial.

¶50 Issue 5: Whether the District Court erred in prohibiting the State from conducting an

IME and in excluding the State’s expert witness?

¶51 We review a district court’s rulings on discovery motions for an abuse of discretion.

Anderson, ¶ 13. Rule 35, M.R.Civ.P., recognizes an independent medical examination

(IME) as a form of discovery. This Court has recognized an IME as a valid tool to determine

if and to what extent a defendant suffers from an alleged injury. Winslow v. Montana Rail

Link, 2001 MT 269, ¶ 16, 307 Mont. 269, ¶ 16, 38 P.3d 148, ¶ 16. “A plaintiff in a

negligence action who asserts mental or physical injury places that mental or physical injury

clearly in controversy and provides the defendant with good cause for an examination to

determine the existence and extent of such asserted injury.” Winslow, ¶ 9 (citation and

internal citation omitted). Thus if a plaintiff alleges mental or physical injury, he or she puts

17
the existence of that injury at issue and provides the defendant with good cause to request

that an IME be conducted. Winslow, ¶ 9.

¶52 In this case, the court issued a scheduling order that required exchange of all expert

witnesses (including a comprehensive statement of the proposed expert’s opinions and the

grounds for the opinions) by November 15, 2001. The discovery deadline was December

15, 2001. The court amended the deadline for taking depositions to January 25, 2002.

¶53 As early as September 23, 1997, and numerous times thereafter, the State had access

to records that indicated Kristin suffered from emotional distress resulting from her son’s

injuries. However, it was not until October 22, 2001, that Kristin used, for the first time, the

term “on-going post traumatic stress” in a supplemental discovery response. Kristin’s

November 15, 2001, expert witness disclosure stated that Dr. Erin Bigler believed Kristin

suffered from PTSD. On this same day, the State disclosed Dr. Price as an expert witness,

and reserved the right to conduct an IME of Kristin. The State disclosed Dr. Price’s general

opinion without details because he had not yet performed the IME. On November 30, 2001,

the State requested Kristin submit to an IME. Kristin did not make herself available for this

examination.

¶54 On December 6, 2001, the State moved the court to order Kristin to submit to an

“emergency IME” because it had not been previously informed Kristin suffered from PTSD.

This motion, made before the discovery deadline, was initially granted. However, the IME

was later denied because, after reconsideration, the court determined that since the State

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knew of Kristin’s PTSD since September 1997, the request for the IME came too late in the

proceedings. We are not so persuaded.

¶55 Kristin claims the State had four years to conduct an IME because she provided the

State with her mental health records from 1997 which contained the PTSD diagnosis.

Nonetheless, the mere existence of the record is insufficient notice that she was planning to

use this diagnosis as a basis for damages in the present lawsuit. The State did not know that

fact until the supplemental discovery response from October of 2001. Upon learning this,

the State timely filed its motions to have Kristin undergo an IME so that the State could

adequately prepare its defense. If Kristin had earlier revealed the fact that she was going to

use the PTSD diagnosis as a basis for damages, the State would not have been forced to run

so close to the ever-looming discovery deadline. As it was, the State complied with the

court’s discovery deadlines. We reverse the court’s denial of the State’s request for an IME.

¶56 Now we examine the fact that Dr. Price was precluded from testifying as a witness.

The State disclosed Dr. Price as an expert witness within the time-limit imposed by the

scheduling order. The State twice provided the required supplementation regarding his

testimony, to the extent possible given the limited amount of information with which he had

to work. The court, however, barred Dr. Price from testifying as a witness because he had

not conducted an IME as a basis for his testimony. Although much of the information

necessary to provide a comprehensive report was not available to him because Kristin’s

complete medical records and the IME were denied, Dr. Price still could have testified based

on his medical knowledge and the redacted medical records available to him.

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¶57 “The underlying policies of Rule 26, M.R.Civ.P., are to eliminate surprise and to

promote effective cross-examination of expert witnesses.” Hawkins v. Harney, 2003 MT 58,

¶ 21, 314 Mont. 384, ¶ 21, 66 P.3d 305, ¶ 21. In Scott v. Dupont De Nemours & Co. (1989),

240 Mont. 282, 286-87, 783 P.2d 938, 941, we stated that although discovery answers

regarding an expert witness were very brief, the expert was not a surprise witness and

refusing to allow him to testify because full and complete discovery answers were not

provided was an extreme sanction.

¶58 In this case, the District Court sanctioned the State by preventing Dr. Price from

testifying. We have identified the following criteria to determine whether a sanction is an

abuse of discretion or too severe: “1) whether the consequences imposed by the sanctions

relate to the extent and nature of the actual discovery abuse; 2) the extent of the prejudice

to the opposing party which resulted from the discovery abuse; and 3) whether the court

expressly warned the abusing party of the consequences.” Maloney v. Home & Investment

Center, Inc., 2000 MT 34, ¶ 35, 298 Mont. 213, ¶ 35, 994 P.2d 1124, ¶ 35.

¶59 Applying the above criteria, we determine that the court sanction was too severe. The

discovery abuse committed by the State, if any, was a tardy request for an IME which was,

nonetheless, still within the court-mandated time. An IME need not be conducted by the

date set for expert disclosures. The State provided a list of expert witnesses, including Dr.

Price, by the court-imposed deadline. The information provided regarding Dr. Price’s

testimony was sufficient to satisfy the Rule 26 requirements. The State provided the subject

matter, the factual substance, and a summary of the grounds for Dr. Price’s opinion. The

20
State also supplemented Dr. Price’s testimony by the deadline for all discovery to be

completed. The State supplemented Dr. Price’s testimony a second time, after the deadline

for discovery passed but before the extended January 25, 2002, deadline for the taking of

depositions. Ideally, the State would have provided all supplementation by the discovery

deadline. However, the State was attempting to provide as complete a picture as possible

regarding Dr. Price’s testimony. If his testimony was not comprehensively described in

answers to interrogatories, that was in large part due to the District Court’s rulings

precluding an IME and excluding full access to Kristin’s medical records.

¶60 In addition, Dr. Price’s disclosures were provided before the deadline for all

depositions had passed. Any prejudice suffered by Kristin was minimal because she was

well-aware Dr. Price was listed as an expert witness and she had ample time to depose him.

No surprise is alleged and none occurred. In its scheduling order, the court generally warned

that noncompliance with the order’s provisions could result in the imposition of sanctions.

However, no more specific warning was ever given.

¶61 Having reviewed the court’s ruling in the context of the three Maloney criteria, we

conclude that the court abused its discretion in not allowing Dr. Price to testify. The facts

here are distinguishable from Seal v. Woodrows Pharmacy, 1999 MT 247, 296 Mont. 197,

988 P.2d 1230. In that case, we upheld a trial court’s prohibition of a doctor’s testimony

because of continual and blatant discovery abuses when Seal refused to provide the required

Rule 26 information even after being afforded numerous opportunities to do so. Seal, ¶ 25.

In this case, the State did not engage in continual and blatant discovery abuses. The court

21
should have, at a minimum, allowed Dr. Price to testify based on his review of Kristin’s

redacted medical records. We reverse the District Court’s decision not to allow Dr. Price to

testify as an expert witness.

¶62 Issue 6: Whether the District Court erred in excluding evidence of (1) stressors in

Kristin’s life unrelated to the accident and counseling services Kristin received prior to

Hunter’s accident; and (2) a prior fall at the MSU library?

¶63 We review a grant or denial of a motion in limine for an abuse of discretion.

Bramble, ¶ 16. The trial court has the inherent power to deny or grant a motion in limine to

ensure that a fair trial is afforded to all parties. Bramble, ¶ 16. Litigants must establish a

causal connection more probable than not connecting any possible cause of a plaintiff’s

injuries before alternate causation testimony is allowed at trial; mere speculation is not

sufficient and not admissible. Newville v. State, Dept. of Family Svcs. (1994), 267 Mont.

237, 260, 883 P.2d 793, 807.

¶64 A district court has broad discretion to determine whether evidence is relevant and

admissible, and we will not overturn the district court’s decision absent an abuse of

discretion. Kissock v. Butte Convalescent Center, 1999 MT 322, ¶ 10, 297 Mont. 307, ¶ 10,

992 P.2d 1271, ¶ 10. A court may exclude relevant evidence if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, needless

presentation of cumulative evidence, waste of time, undue delay, or misleading the jury.

Rule 403, M.R.Evid.

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¶65 In Kimes v. Herrin (1985), 217 Mont. 330, 333, 705 P.2d 108, 110, we stated that it

was an abuse of discretion for a trial court to allow testimony suggesting that a plaintiff’s

home environment may have caused the plaintiff’s symptoms because no medical connection

was established between the home environment and the appellant’s symptoms.

¶66 The question of what caused Kristin’s symptoms is critical to the issue of her

damages. If any information has a tendency to make the alleged cause of the symptoms more

or less probable, it would be relevant and admissible, unless otherwise provided by law.

Rules 401 and 402, M.R.Evid.

Unrelated Stressors and Prior Counseling

¶67 The District Court, pursuant to Rule 403, M.R.Evid., granted Kristin’s motion in

limine excluding evidence regarding other life stressors because it would be more prejudicial

than probative. The life stressors included Kristin’s divorce in 1994, her parents’ divorce

in 1974, work issues, and child custody issues. The State did not offer an expert opinion that

it was more probable than not that prior stressors may have contributed to or were relevant

to Kristin’s present claims.

¶68 Before Hunter’s accident, Kristin received brief counseling in 1983 or 1984 and also

in 1992. Kristin was able to produce a portion of these counseling records but claims others

were unavailable because the counseling occurred so long ago. The State has offered no

evidence to dispute this. Kristin also produced some more recent redacted counseling

records. The District Court granted Kristin’s motion in limine excluding evidence of this

23
prior unrelated counseling because it was information unrelated to Kristin’s case, too remote,

irrelevant, and more prejudicial than probative.

¶69 On appeal, the State presents a cursory two paragraph argument that it is entitled to

discover evidence of any alternative causation for Kristin’s claims and that she waived her

right to privacy by putting her emotional state at issue in this suit. Kristin placed her mental

and physical condition at issue by claiming damages for this type of injury. Jaap, 191 Mont.

at 322, 623 P.2d at 1391. However, by doing so she has only waived the physician-patient

privilege that applies to her mental or physical condition in controversy. Jaap, 191 Mont.

at 322, 623 P.2d at 1391.

¶70 The State did not present expert testimony that established a causal connection

between Kristin’s present symptoms and the other stressors or the prior counseling records.

Absent this more probable than not causal link, the State is not entitled to present alternate

causation evidence regarding the other stressors and is also not entitled to any more records

than it already has access to. Kimes, 217 Mont. at 333, 705 P.2d at 110; Newville, 267 Mont.

at 260, 883 P.2d at 807. The State is not entitled to embark upon an unbridled fishing

expedition into Kristin’s life, spanning years far-removed from the present case, in an

attempt to fashion some alternate cause for her current claims. Moreover, the State has not

disputed Kristin’s assertion that she was unable to access the other counseling records. We

affirm the trial court’s order precluding the prior counseling records and evidence of other

stressors.

Prior Fall

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¶71 In the event we remand for a new trial, Kristin cross-appeals the motion in limine

denying evidence of a prior fall at the same location as Hunter’s fall. Because we remand

for a new trial on damages, we examine her cross-appeal.

¶72 The District Court granted the State’s motion in limine excluding evidence of the prior

fall. The court concluded the prior fall related only to the duty and breach elements of

negligence. It specifically noted that evidence of the prior fall was excluded because the

issue of liability had already been fixed and the fall did not relate to Kristin’s direct

emotional impact. The court stated that the prior fall did not directly contribute to Kristin’s

emotional distress because shock suffered in a negligent infliction of emotional distress claim

must result from a direct emotional impact upon the plaintiff from the sensory and

contemporaneous perception of the accident, as compared to learning of the accident from

others after its occurrence. However, this reasoning is inconsistent with Sacco v. High

Country Independent Press (1995), 271 Mont. 209, 232, 896 P.2d 411, 425, in which we

stated that “[a] cause of action for negligent infliction of emotional distress will arise under

circumstances where serious or severe emotional distress to the plaintiff was the reasonably

foreseeable consequence of the defendant’s negligent act or omission.” One is not required

to be a bystander at an accident to have a valid claim for emotional distress damages. It is

one factor a court can consider but it is not determinative. Wages v. First Nat’l Ins. Co. of

Am., 2003 MT 309, ¶ 25, 318 Mont. 232, ¶ 25, 79 P.3d 1095, ¶ 25.

¶73 We have recognized that evidence of prior accidents may be offered for various

reasons besides proving negligence. Kissock, ¶ 15 (evidence of prior accidents may be

25
admitted to show cause in fact, notice of a condition or defect, the existence or dangerous-

ness of a particular physical condition, and the possibility that a condition might cause an

accident similar to the type alleged). Kristin claims that learning of the prior fall soon after

witnessing Hunter’s fall contributed to her psychological injuries. Accordingly, she

contends, the prior fall relates to damages as well as duty and breach. Kristin’s learning of

the prior fall made her claim of psychological/emotional distress more or less probable. Rule

401, M.R.Evid. As such, it was relevant to the issue of damages. To the extent the District

Court excluded evidence of the prior fall for the reason that there was no contemporaneous

perception, we reverse. We note, however, that the State also objected to evidence of the

other fall as being more prejudicial than probative under Rule 403, M.R.Evid. That question

was not addressed in the proceedings below and is more appropriately left to the discretion

of the District Court on remand.

¶74 Issue 7: Whether the District Court erred in its jury instructions concerning the claims

of emotional distress and loss of established course of life?

¶75 A trial court has broad discretion in determining whether to give a proposed jury

instruction. Christofferson v. City of Great Falls, 2003 MT 189, ¶ 9, 316 Mont. 469, ¶ 9, 74

P.3d 1021, ¶ 9. We will not reverse a district court on the basis of its jury instructions absent

an abuse of discretion. Christofferson, ¶ 9. “In reviewing whether a particular jury

instruction was properly given or refused, we consider the instruction in its entirety, as well

as in connection with the other instructions given and with the evidence introduced at trial.”

Christofferson, ¶ 9 (citation omitted). The party alleging error in a jury instruction must

26
demonstrate prejudice. Christofferson, ¶ 9. Prejudice will not be found if the jury

instructions in their entirety state the applicable case law. Christofferson, ¶ 9.

¶76 Montana law provides for monetary compensation to every person who suffers

detriment from the unlawful act or omission of another. Section 27-1-202, MCA. Emotional

distress produces its own unique damages. Damages can be compensatory (permitted for

both intentional and negligent infliction of emotional distress) or punitive (permitted for

intentional infliction of emotional distress to address the culpability of a defendant’s

conduct). Sacco, 271 Mont. at 238, 896 P.2d at 429. Damages for loss of ability to pursue

an established course of life compensate for impairment of the ability to pursue one’s chosen

pursuits in life, calculated separately from the loss of one’s earning capacity. Mullery v.

Great Northern Ry. Co. (1915), 50 Mont. 408, 426, 148 P. 323, 328. Contrary to the State’s

contention, a claim for the loss of ability to pursue an established course of life need not be

premised on a physical limitation. A plaintiff is “entitled to recover, in the case of permanent

injuries, a reasonable compensation for the destruction of his capacity to pursue an

established course of life.” Rasmussen v. Sibert (1969), 153 Mont. 286, 297, 456 P.2d 835,

841.

¶77 In this case, expert medical testimony was introduced at trial which described

Kristin’s PTSD symptoms. The expert stated this well-recognized mental injury has physical

components, including brain chemistry and hormone level alterations. PTSD symptoms are

a response to an emotional trauma that leads to a physical impact upon the brain.

27
¶78 In settling jury instructions on Kristin’s claim for negligent infliction of emotional

distress, the court reasoned that the heightened standard of severe or serious distress from

Sacco only applies in cases where there is no physical or mental injury. Since Kristin

suffered PTSD with resulting physical impact, the court concluded the Sacco severe or

serious standard did not apply. Accordingly, the court instructed that Kristin only had to

prove that she suffered emotional distress or psychological injury as a result of Hunter’s fall.

The State contends that the instructions were incorrect because they did not require that the

emotional distress meet the severe or serious standard required by Sacco, which cited

Restatement 2nd of Torts, § 46, comment j. Sacco, 271 Mont. at 233, 896 P.2d at 425.

¶79 Since we are remanding for a new trial on damages, we take this opportunity to clarify

the rule from Sacco that emotional distress must be severe or serious. In cases where there

is a physical manifestation of bodily harm resulting from emotional distress, such as PTSD,

this bodily harm is sufficient evidence that the emotional distress suffered by the plaintiff is

genuine and severe. As explained in the Restatement 2nd of Torts, § 46, comment k,

“[n]ormally, severe emotional distress is accompanied or followed by shock, illness, or other

bodily harm, which in itself affords evidence that the distress is genuine and severe.”

(Emphasis added.) This manifestation assures that only genuine harm, not fraudulent claims,

will be compensated.

¶80 The State also claims that Kristin is not permitted to recover damages for both loss

of ability to pursue an established course of life and damages for emotional distress.

However, the State has failed to provide any law supporting this contention. Contrary to the

28
State’s claims, no dual recovery has occurred. We have previously recognized claims for

emotional distress as separate, independent claims and we continue this rule. Sacco, 271

Mont. at 238, 896 P.2d at 429. Loss of established course of life and emotional distress are

two separate and distinct claims with differing elements and different compensable damages.

Hence, if supported by the evidence, a separate recovery is allowed for each. Whether the

damages overlap is a question of proof. For example, PTSD may or may not impact upon

one’s ability to pursue an established course of life.

¶81 The court incorrectly instructed the jury regarding emotional distress but correctly

instructed regarding loss of established course of life. A jury instruction on emotional

distress should state that the severe and serious standard applies and that this standard can

be met by proof that emotional distress resulted in shock, illness, or other bodily harm.

¶82 Issue 8: Whether the District Court erred in excluding the videotapes of Hunter?

¶83 A district court has broad discretion in admitting or excluding evidence. Rocky

Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 290, 951 P.2d 1326, 1331. The

decision whether to admit videotape evidence lies in the discretion of the trial court and will

not be reversed absent a manifest abuse of discretion. Palmer by Diacon v. Farmers Ins.

Exch. (1988), 233 Mont. 515, 523, 761 P.2d 401, 406. For an exhibit to be admissible for

demonstrative purposes it must supplement a witness’s spoken description of the transpired

event, clarify some case issue, and be more probative than prejudicial. State v. Ingraham,

1998 MT 156, ¶ 94, 290 Mont. 18, ¶ 94, 966 P.2d 103, ¶ 94.

29
¶84 In this case, the State sought to introduce video footage, as demonstrative evidence,

showing Hunter as a well-adjusted child, not suffering from any deficits. The State

attempted to introduce this evidence through the testimony of Hunter’s grandmother. The

District Court refused to allow the evidence because it did not supplement testimony or

clarify issues and, as the court noted, the tape did not accurately depict Hunter’s life. The

tape was edited from hours of home videos showing the best of the best–happy occasions

such as birthdays and holidays and fun outdoor activities like swimming.

¶85 On appeal, the State argues that because it attempted to introduce the videotape with

Hunter’s grandmother’s testimony that the tape depicted happier moments of Hunter’s life,

it provided adequate foundation for the tape to be admitted. The State claimed that the tape

accurately portrays Hunter as a happy, well-adjusted child. The State sought to introduce

the tape to counter Kristin’s assertions that, due to Hunter’s condition, she suffered

emotional distress. The State, however, has failed to establish that the exclusion of the

videotape was a manifest abuse of discretion. The videotape fails to satisfy the requirements

set out in Ingraham. Ingraham, ¶ 94. Therefore, we affirm the exclusion of the videotape.

¶86 Issue 9: Whether the District Court erred in not dismissing jurors for cause?

¶87 We review a trial “court’s refusal to grant a challenge for cause for an abuse of

discretion.” Reff-Conlin’s, Inc. v. Fireman’s Fund Ins. Co., 2002 MT 60, ¶ 16, 309 Mont.

142, ¶ 16, 45 P.3d 863, ¶ 16. Section 25-7-223, MCA, provides specific grounds for posing

challenges for cause. The State contends that § 25-7-223(7), MCA, “the existence of a state

of mind in the juror evincing enmity against or bias in favor of either party[,]” was satisfied

30
because several jurors, days before the trial, saw a local newspaper article that mentioned the

prior fall.

¶88 In order to ensure against bias, the District Court interviewed the eight jurors who had

read the article. One juror who stated that he was not sure if he could keep the prior fall out

of his mind was excused for cause. The other seven jurors stated they would be able to keep

an open mind and fairly decide the case. The State has not demonstrated that any of these

remaining jurors had a state of mind “evincing enmity against or bias in favor of either party”

as a result of reading the article. Section 25-7-223(7), MCA.

¶89 The only case the State relies on in support of its argument is Reff-Conlin’s, Inc. In

that case, we determined that a juror should have been excluded because of the existence of

a debtor-creditor relationship, satisfying another, more specific, statutory grounds for

challenge. Reff-Conlin’s, Inc., ¶ 21. That case is factually dissimilar to the case at bar

because no specific grounds for challenge for cause have been established. The State has not

shown that the District Court abused its discretion in denying the challenges for cause. We

affirm.

¶90 In conclusion, we reverse and remand for a new trial on damages in light of our

rulings on issues three, five, and six.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ JIM RICE

31
Justice John Warner Concurring and Dissenting.

¶91 I concur in Issues 1-5 and 7-9. Relating to Issue 6, I also agree that evidence of the

prior fall of another child at the MSU Library, if such were admissible, would be subject to

a discretionary Rule 403, M.R.Evid., analysis.

¶92 However, ordering that the evidence of the prior fall may be admitted, not to prove

fault or causation, but damages, is a serious mistake. As noted in the Court’s opinion, it is

true that Sacco and Wages stand for the propositions that a claim for negligent infliction of

emotional distress will arise where serious or severe emotional distress was a reasonably

foreseeable consequence of a defendant’s negligence, and that the plaintiff does not have to

be a bystander to have a valid claim. However, these are not the issues presented by the facts

here. Here, the majority of this Court takes a giant leap forward in the law and determines

that when a person is negligent, as the State apparently was in the instance of the prior fall,

it is foreseeable that other persons who observe the results of a subsequent, separate

negligent act or omission may suffer increased damages, actually caused by the first incident,

because their already severe emotional damages are increased when they hear of such prior

negligence. Thus, we may now have changed the law in Montana and held that it is

foreseeable that an act or omission constituting negligence may result in damages owed to

other, as yet uninjured persons, for an indefinite time in the future. We have held that such

initial negligence may be admissible, along with other subsequent negligent acts or

omissions, as evidence of emotional damages, even though such do not arise from the same

accident or even concern the same injured person. And, the person claiming such damages

need not have any relationship with or connection to the person actually injured in the first

32
incident. A subsequent negligent act or omission which causes emotional damage could

somehow be deemed to be the cause of the damage really suffered as a result of the first

negligent act or omission.

¶93 To summarize what is apparently the new rule, with which I emphatically disagree,

in Montana, a person who is negligent has a duty, and by his negligence has already

breached that duty, to all other persons who in the future may suffer an increase in their

emotional distress because of such negligent act or omission. Cause is established when the

subsequently severely emotionally damaged person learns of the prior negligence, and all

that has to be proven is damages. Further, the prior act apparently need not be included in

the pleadings even though it is the cause of damages.

¶94 Where will it end? As Schultz’s Charlie Brown is wont to say; Good Grief! Kristin

deserves the damages she suffered as a result of Hunter’s accident, not every other stairway

accident on campus. I dissent from this Court’s Opinion that evidence of the prior fall may

be admitted if the District Court finds that its evidentiary value is not outweighed by its

prejudice to the State.

/S/ JOHN WARNER

Chief Justice Karla M. Gray joins in the foregoing concurrence and dissent.

/S/ KARLA M. GRAY

33
Justice Patricia O. Cotter concurring in part and dissenting in part.

¶95 I concur in the Court’s disposition of Issues 1, 2, 3(2), 4, 6, and 7 through 10. I

dissent from the Court’s disposition of Issues 3(1) and 5. I would affirm the verdict and

judgment of the District Court.

¶96 Issue 3(1) presents the question of whether the District Court abused its discretion

when it denied the defendants’ request for the production of all of Kristin’s medical and

mental health records. As the Court points out, the District Court entered its Order following

an in camera inspection of the medical and mental health care records in question. ¶ 37. We

have consistently upheld the use of the in camera review as a tool that effectively protects

both parties. See Burns, 253 Mont. at 39, 830 P.2d at 1319-20; State v. Thiel (1989), 236

Mont. 63, 768 P.2d 343; State v. Mix (1989), 239 Mont. 351, 781 P.2d 751; and In re Lacy

(1989), 239 Mont. 321, 780 P.2d 186. As we stated in Burns, “[p]rohibiting discovery of

materials that are not probative is one of the functions of trial judges which is within their

discretionary powers.” Burns, 253 Mont. at 43, 830 P.2d at 1322. I would conclude that the

District Court judge properly conducted an in camera review under the circumstances

presented in this case, and that, in concluding from his review that the subject records were

“. . . subject to strong constitutional protections, are irrelevant to the issues in this case, and

are not discoverable,” he performed precisely the function we have historically endorsed.

We do not disturb the rulings of the district court absent an abuse of discretion. Burns, 253

Mont. at 42, 830 P.2d at 1322. I see nothing in the record before us that establishes an abuse

of discretion in the District Court’s handling of the disputed medical records. I would

therefore affirm on this issue.

34
¶97 I would also affirm the District Court’s decision prohibiting the State from conducting

an IME and excluding the testimony of the State’s expert witness. (Issue 5). We review

such a ruling to determine whether the district court abused its discretion. ¶ 51. I would

conclude that no abuse of discretion was shown.

¶98 In denying the State’s request for an IME, the District Court found, based upon the

medical records, that the State had known of Kristin’s PTSD since September, 1997. It

therefore rejected the State’s contention that her disclosure of the condition in late 2001 was

a surprise. This Court concludes at ¶ 55 that the early disclosure of the records containing

the PTSD diagnosis was insufficient notice that Kristin intended to use the diagnosis as a

basis for her damages claim. This is entirely too fine a distinction for us to draw, especially

when applying an abuse of discretion standard of review. The fact is, as the State conceded

in its brief opposing reconsideration of the IME issue, the State was aware early in the

proceedings that Kristin was claiming she suffered from emotional distress, depression and

anxiety, and emotional disturbance, as a result of her son’s fall and injuries. The medical

records contained the technical diagnosis. It seems to me, and it apparently seemed to the

District Court as well, that this combination of disclosures, given well in advance of the

discovery deadlines, provided the State with ample time and notice to arrange for an IME

prior to the deadline for disclosure of expert witnesses.

¶99 While the Court may feel that greater latitude should have been shown by the District

Court, it is not our function to overturn a discretionary ruling that is supported by the facts

in the record. I would uphold the District Court’s exercise of discretion on this issue.

35
¶100 Finally, I would affirm the District Court’s refusal to allow Dr. Price to testify. The

District Court’s scheduling order required the filing of a “comprehensive statement of the

proposed expert’s testimony” and “a comprehensive statement” of the grounds for the

expert’s opinion, on or before November 15, 2001. Dr. Price’s disclosure of November 15,

2001, did not list any opinion, much less any grounds for an opinion. The supplementary

response was not filed until a month later. Given these circumstances, the District Court was

well within its discretion to strike Dr. Price’s testimony. We have consistently held that it

is within the district court’s discretion to impose sanctions for the failure to comply with a

court’s scheduling orders. McKenzie v. Scheeler (1997), 285 Mont. 500, 506, 512, 949 P.2d

1168, 1172, 1175. This is what the District Court did. There was no abuse of discretion.

¶101 For the foregoing reasons, I would affirm the District Court’s disposition of the

matters raised in Issues 3(1) and 5, and would affirm the judgment of the District Court. I

dissent from our refusal to do so.

/S/ PATRICIA O. COTTER

Justice James C. Nelson and Justice Jim Regnier join in the concurrence and dissent of

Justice Patricia O. Cotter.

/S/ JIM REGNIER
/S/ JAMES C. NELSON

36