BROWN v MARKVE

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No. 84-397 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 AMIE BROWN, by Darold Brown, her next friend, Plaintiff and Respondent, -vsLARRY MARKVE , Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Fallon, The Honorable Alfred B. Coate, Judge presiding. COUNSEL OF RECORD: For Appellant: Crowley, Haughey, Hanson, Toole Montana & Dietrich, Billings, For Respondent : Huntley & Eakin; Gene Huntley, Baker, Montana Submitted on Briefs: Decided: Filed: MHY ." - ,/'J& Clerk May 9, 1985 May 23, 1985 Mr. J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n of t h e C o u r t . D e f e n d a n t a p p e a l s from t h e o r d e r o f t h e S i x t e e n t h J u d i - cial District, Fallon County, granting a new t r i a l . The D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e g r o u n d s t h a t t h e $25,000 damages. jury award t o the plaintiff constituted inadequate W e reverse t h e D i s t r i c t C o u r t . The o n l y i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d g r a n t i n g p l a i n t i f f ' s motion in f o r a new t r i a l a f t e r t h e p l a i n - t i f f had r e c e i v e d a j u r y v e r d i c t o f $ 2 5 , 0 0 0 . Plaintiff had stopped her vehicle at a stop in H e r s t o p p e d v e h i c l e was s t r u c k from t h e r e a r B a k e r , Montana. by a p i c k u p t r u c k o p e r a t e d by t h e d e f e n d a n t . commencement light of trial, defendant Prior t o the admitted liability for As a result, damages p r o x i m a t e l y c a u s e d by t h e a c c i d e n t . a t r i a l was h e l d on t h e i s s u e o f t h e n a t u r e and e x t e n t o f t h e p l a i n t i f f ' s damages. $25,000 was Following t h e jury t r i a l , a v e r d i c t f o r returned amount was e n t e r e d . for the plaintiff. Judgment in that P l a i n t i f f moved f o r a new t r i a l and t h e D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e g r o u n d s o f i n a d e q u a t e damages and insufficiency of t h e evidence t o j u s t i f y the verdict. I n h o l d i n g t h a t t h e v e r d i c t g r a n t e d i n a d e q u a t e damages, the District Court concluded t h e r e was n o t s u f f i c i e n t e v i - d e n c e upon which t o b a s e an award o f $25,000. Essentially t h i s i s no d i f f e r e n t t h a n t h e c o n c l u s i o n t h a t a n e w t r i a l was granted because of justify the verdict. the insufficiency The standard of t o be the evidence to a p p l i e d upon t h e g r a n t i n g o f a new t r i a l and t h e c o n s e q u e n t r e v e r s a l o f a j u r y v e r d i c t i s s t a t e d i n N e l s o n v . Hartman 1176, 1178, 3 9 St.Rep. (Mont. 1 9 8 2 ) , 648 P.2d 1409, 1412, a s f o l l o w s : "The D i s t r i c t C o u r t ' s s e c o n d g r o u n d f o r g r a n t i n g r e s p o n d e n t a new t r i a l was t h a t t h e j u r y v e r d i c t A t r i a l court's was c o n t r a r y t o t h e e v i d e n c e . d e n i a l o f a m o t i o n f o r new t r i a l i s g r a n t e d g r e a t e r d e f e r e n c e t h a n a m o t i o n which h a s t h e e f f e c t o f nullifying a jury verdict. This Court w i l l n o t h e s i t a t e t o r e i n s t a t e t h e v e r d i c t which i s s u p p o r t ed by s u b s t a n t i a l e v i d e n c e . Beebe v. Johnson (1974), 1 6 5 Mont. 96, 526 P.2d 128, citing Campeau v. Lewis ( 1 9 6 5 ) , 1 4 4 Mont. 543, 398 P.2d 960. " The t e s t t o b e verdict of applied i n t h e p r e s e n t c a s e i s whether t h e $25,000 is supported by substantial evidence. I n r e v i e w i n g t h e Memo Opinion and O r d e r o f t h e D i s t r i c t Court, w e f i n d t h a t t h e d i s t r i c t judge r e f e r r e d t o t h e f a c t that i n c l o s i n g argument, defense counsel suggested t o t h e j u r y t h a t "a f a i r v e r d i c t would b e $30,000." The c o u r t t h e n c o n c l u d e d t h a t t h i s argument t o t h e j u r y had t h e l e g a l e f f e c t of an a d m i s s i o n a g a i n s t i n t e r e s t which s e t t h e l o w e r l i m i t s No c i t a t i o n o f l e g a l a u t h o r i t y i s of t h e v e r d i c t a t $30,000. cited f o r t h a t conclusion. I n addition, t h e conclusion of t h e t r i a l c o u r t c o n t r a d i c t s i t s own I n s t r u c t i o n No. 1 which i n p a r t s t a t e d a s follows: " S t a t e m e n t s o f c o u n s e l a r e n o t t o b e r e g a r d e d by you a s e v i d e n c e and you w i l l d i s r e g a r d a n y s u c h s t a t e m e n t s which a r e n o t s u p p o r t e d by t h e e v i d e n c e r e c e i v e d upon t h i s t r i a l . " By h i s a r g u m e n t , t h e d e f e n s e c o u n s e l o b v i o u s l y s o u g h t t o encourage t h e jury presence of an client. However, t o reach a admission o f lower v e r d i c t because o f t h e liability on the part of his t h a t suggestion cannot be c l a s s e d a s evi- dence o r an admission a g a i n s t i n t e r e s t which s e t a f l o o r o f $30,000 below wh.ich t h e j u r y c o u l d n o t go. the finder of fact with the right to The j u r y remained set t h e damages at $25,000 o r s u c h o t h e r f i g u r e a s t h e j u r o r s m i g h t c o n c l u d e t o be a p p r o p r i a t e under t h e evidence. We behalf have of examined both the Well-qualified medical testified both for the the medical evidence plaintiff experts in plaintiff and the and the field the submitted in defendant. of neurology defendant. The e v i d e n c e r e g a r d i n g t h e e x t e n t o f t h e damages and t h e d i s a b i l i t y on t h e p a r t o f As an example, the plaintiff the plaintiff's is sharply contradictory. doctor t e s t i f i e d that there were p o s i t i v e i n d i c a t i o n s o f a p y r a m i d a l t r a c t d i s t u r b a n c e i n T h i s i s claimed t o be a response i n d i c a t i n g the plaintiff. involvement between of the great the brain and pyramidal the spinal motor cord system and can somewhere indicate a In c o n t r a s t , t h e neurologist testi- r a t h e r s e r i o u s problem. f y i n g f o r t h e d e f e n d a n t s t a t e d t h a t t h e r e was a b s o l u t e l y no s i g n o f any p y r a m i d a l t r a c t d i s t u r b a n c e and t o t a l l y d i s a g r e e d t h a t t h e r e was a p o s i t i v e B a b i n s k i served by the plaintiff's s i g n which had been ob- doctor. This type of conflict appears throughout t h e medical testimony involving t h e n a t u r e o f t h e i n j u r y t o p l a i n t i f f , and t h e e x t e n t o f h e r d i s a b i l i t y . Apparently aspects, the jury concluded that i n c e r t a i n medical t e s t i m o n y s u b m i t t e d i n b e h a l f o f t h e d e f e n d a n t was more b e l i e v a b l e than t h a t of function of t h e jury. the plaintiff. T h a t was t h e A s we review t h i s e v i d e n c e s u b m i t t e d i n b e h a l f o f t h e d e f e n d a n t , we c o n c l u d e t h a t it was c l e a r l y substantial. presented The e v i d e n c e which by a w e l l - q u a l i f i e d supports medical q u a t e l y examined and c r o s s - e x a m i n e d the doctor, v e r d i c t was who was ade- t o e s t a b l i s h t h e conten- t i o n s on t h e p a r t o f t h e d e f e n d a n t w i t h r e g a r d t o t h e n a t u r e o f t h e i n j u r y and t h e d e g r e e o f d i s a b i l i t y . there c l e a r l y was W e conclude t h a t s u b s t a n t i a l c r e d i b l e evidence t o support t h e v e r d i c t of t h e jury. We r e v e r s e t h e D i s t r i c t C o u r t and d i r e c t t h a t t h e v e r - d i c t s h a l l be r e i n s t a t e d and judgment with t h e verdict. entered i n accordance We c o n c u r : Justices ,' + Mr. Justice John C. Sheehy, dissenting: I would affirm the grant of a new trial by the District Court. Mr. Justice Wesley Castles, in his dissent in Beebe v. Johnson (1974), 165 Mont. 96, 116, 526 P.2d 1.28, 138, complained that "what the rule may now be in this Court's review of a trial court's order granting a new trial is highly speculative." Beebe v. Johnson is the founding case upon which Nelson v. Hartman (Mont. 1982), 648 P.2d 1176, 39 St.Rep. 1409, is based. Nelson v. Hartman is the case relied on by the majority in this case to determine that the grant of a motion for new trial is not entitled to the deference on appeal that traditionally is given to a denial of a motion for new trial. Justice Castles had reason to be concerned. Tn Beebe, this Court determined,that it would set aside a grant of new trial if this Court found "there is nothing incredible about the verdict,'' relying on Campeau v. Lewis (1965), 1-44 Mont. 543, 398 P.2d 960. This Court came to that rule by ignoring Tigh v. College Park Realty Company (1967), 149 Mont. 358, 427 P.2d 57 and Garrison v. Trolbridge (1947), 119 Mont. 505, 177 P.2d 464; and Brennan v. Mayo (1935), 100 Mont. 439, 50 P.2d 245, where we had established the rule that the trial court will not be reversed on a grant of new trial except a of upon - ma.nifest abuse - discretion. In Ployhar v. Board of Trustees of Missoula County High School (involving the same counsel) (19801, 187 Mont. 363, 609 P.2d 1226, this Court reverted to its prior rule: "The trial court has broad discretion in granting or refusing to grant a new trial. Its order will the absence - of a not be disturbed on appeal clear showing - - manifest abuse of discretion. of a See Yerkich v. Opsta (1978), 176 ~ r n t . 272, 577 P.2d 857. This Court is especially reluctant to reverse a.n order granting a new trial because it gives both parties an equal chance to relitigate their positions in a second trial. Tigh v. College Park Realty Company (1967), 149 Mont. 358, 427 P.2d 57. An order granting a new trial will be upheld if it can be sustained on any of the grounds contained in the order. Tigh, supra. " 187 Mont. at 365. (Emphasis added.) In Nelson v. Hartman, in 1982, we seem to have backed off again to the position in Beebe, although Nelson v. Hartman does not really contain any standard for review with respect to a grant of a new trial. joined in the opinion I regret that when I in Nelson v. Hartman, I did not perceive that the opinion could be construed as suggesting a lesser standard of review than manifest abuse of discretion in determining the propriety of a district court's order granting a new trial. In the federal court system, there is no appeal from the order of a federal district court granting a new trial. The federal theory is that since the issues will be relitigated in the new trial, no judgment is entered. party is aggrieved until a final- We do not, therefore, have from the federal system a body of law to which we could advert to determine a generally-accepted rule for review in this jurisdiction where an appeal is allowed from a grant of new trial. In every other instance, we give deference to the orders and decisions of a d.istrict court in the course of a trial. Its ruling on evidence will generally be sustained; its decisions as to whether jurors should be excused, where venue should lie, whether issues will be tried separately, are regarded with respect on appeal. at once or In a bench trial, its findings of fact will not be set aside unless they are "clearly erroneous." There is no logical reason to say that in this one instance, the district judge's decision must give way if there is "substantial" evidence, an ephemeral term at best. If we are to abandon the rule of review requiring "manifest abuse of discretion" in this type of appeal, we should still place the burden upon the appellant to take the laboring oar where a new trial grant is appealed. At least the rule should be that in an appeal from an order granting a new trial the appellant must affirmatively establish that the reasons stated in the order for a new trial do not justify a new trial. 246, 248. . See Santanello v. Cooper (Ariz It offends my 1970) , 475 P. 2d view of appropriate appellate procedure that the respondent, under the view here, must affirmatively justify the District Court's order and not the appellant. That is really the effect of this decision. A further reason that we should determine an appropriate standard of review in this type of case is the example we get from this case itself. The majority have turned themsel-ves into fact-finders, weighing medical evidence, and, as I will suggest, weighing it inadequately. As the District Court pointed out in its memorandum and order granting the new trial, the $25,000 verdict here included $13,000 in special damages, which were uncontested by the defendant. meager sum of That means that the jury awarded the $12,000 for pain and suffering (past and future), loss of ability to lead a normal life, and possible loss of earning capacity. I think the jury totally rejected the testimony of defendant's medical witness, Dr. Smith. Let me explain why. Amie called on her behalf Dr. Keilman, a chiropractor from Glendive, Montana. August 23, 1980. Amie had been his patient from She had stiffness of the lower back, thoracic cervical tension, nervousness and an elbow problem. He saw her several times between 1980 and February 9, 1981. He stated that on her last visit to him she described her health as "fantastic" and that as far as he was concerned, she had recovered full health in February of 1981. Amie's accident occurred on February 22, 1981. On February 23, 1981, she again came to his office complaining of severe head complaints pain and immediately to tired neck. the She related those injury sustained in the collision, where she was rammed from behind by the truck. Dr. Keilman testified that in the nine years that he had been practicing, she was probably the most patient he had ever had in his office. severely injured She was hurting to the point that she could no longer support her head with her own muscles. She was holding her head with her hands because her neck was too tender and too sore. His x-rays revealed that Amie had a loss of lordotic curvature, i n other words, . her neck spine had straightened out instead of presenting the normal curve. constant pain, His diagnosis was her neck was sprained with and laceration of the entire "spacious" ligaments in the area of C-1 to C-5. Amie's second medical witness was Dr. Richard Nelson of Billings, a specialist in neurology. He described neurology as that branch of medicine that studies the normalities and abnormalities of the nervous system, including the anatomy and physical functions of the brain and spinal cord and their rel-ation to all the nerves and organs of the body system. his physical examination of Amie, on March In 22, 1983, 13 months following the accident, he found a Babinski response from which eventually he determined that Amie had a cervical sprain which affected the pyramidal motor system somewhere between her brain and her spinal cord, and also a possible thoracic syndrome. To eliminate other causes, he had. CAT scans taken, to remove the possibility of subdural hematoma and cervical spine degeneration, and other tests to exclude multiple sclerosis as a possible cause of her difficulty. also caused thermograms to confirmed his diagnosis. be taken which he He testified He further indicated that Arnie's condition was chronic, that he could not predict at what point in time she would find relief from her pain. At trial, he demonstrated a Babinski response by conducting the test on Amie before the jury. Dr. Maurice Camp Smith, a Billings neurological surgeon, testified by deposition, on behalf of the defendant. Dr. Smith found. no Babinski response, and ridiculed what Dr. Nelson found, saying: ". . . She told me that Dr. Nelson had said that she had a Babinski response. Now this is a pathologic response indicating involvement of the great pyramidal motor system somewhere between the brain and. the spinal cord, and it was rather--would indicate a rather serious problem, so I think what had happened that he called this a Babinski on the extension of the toe but must have failed to continue the plantar stimulation and realize that the toes all flex normally and this was perfectly normal . . ." Dr. Smith found no sensory diminution in Amie and he reviewed the x-rays and the CAT scans of the brain and neck. His determination was that she had symptoms of a tension headache, that she had no abnormal neurological findings, no x-ray findings that were abnormal, and no abnormal findings in the CAT scan of her brain. He felt that she had a. flexion-extension injury a.t the time of the accident, causing a sprained neck. He woulc? not agree that any symptoms existed beyond six weeks that could be attributed to the accident. His cross-examination is more revealing. Dr. Smith demeaned the testimony of Dr. Keilman, the chiropractor: "Q. Well, one of the things you said you read was Dr. Keilman's deposition. A. He is not a physician. "Q. What is he? A. A chiropractor. "Q. All right, he's a, a--he medically. A. No, he doesn't. chiropractic means. treats people He treats by "A. Even if he were a physician, and even if then he were a specialist in a -- this particular field, even specialists in the same field can have marketedly different opinions. I would just say it was a difference of opinion and in this opinion it is a difference of opinion without the -- the expertise that I have." Dr. Smith further testified that he attached no significance to the loss of lordotic curvature found by Dr. Keilman. He intimated indirectly that Dr. Nelson did not know how to conduct a Rabinski test, since Dr. Nelson was a neurologist, and he, Smith, was a neurosurgeon. discounted any medical authority cited to him, saying: "9. Well, here's another. A. Proving my point that you can get any article to support any point you want. "Q. I want to ask you something about that, doctor. When you go to -- to school you read books, don't you? A. Sure. "(2. And don't you rely upon them for your practice of medicine. A. Never. "Q. You don't? No. "Q. And don't your -- the people that teach you and your other experts, don't they write books? A. Sure. "Q. But you don't rely on them? A. Never. The purpose of a medical education is to learn to sort He out the Literature so that you can rely on some things, you can use some things to help you, but your total -- what you rely on is your knowledge of the anatomy, the physiology, a knowledge of pathology, of what happens, and you don't learn that in books. In fact, you don't learn medicine in books or articles. 'Q. And you don't apparently practice medicine from books. A. No I don't. "Q. There is a vast literature that has grown up in the medical field, don't you pursue any of that? A. Of course I do. I take it all into advisement, but I never rely solely upon any article. To do so would be absolutely foolhearty. "(2. And you don't recognize any article as being authoritative? A. Well, of course not.'' Thus if the world disagreed with Dr. Smith, the world was wrong and he was right. At the risk of being called a fact-finder myself, I think the jury rejected the testimony of Dr. Smith, but I am positive that the court rejected it. District Court, viewing the For that reason, the remaining testimony of the medica.1 witnesses for Amie Brown and her own testimony, determined that a $12,000 award for her pain, suffering and other damages, past and future, was inadequate as a matter of law. I agree. Counsel for the defendant must also have agreed when he suggested to the jury that $30,000 was a fair, proportionate award. Counsel for the defendant was not in the business of giving away his client's money. The only effect of a district court's motion to grant a new trial is to have another jury take a look at the case. A fear seems to be developing in this Court that juries are not to be trusted in the matter of damages. (See for example, 198, 39 Weber v. Blue Cross of Montana (Mont. 1982), 643 ~ . 2 d St.R.ep. 245.) I trust we are not about to revert to the philosophy of 20 years ago expressed in the O'Brien cases, an e r a of d e c i s i o n s t h a t b r o u g h t a b o u t s o much d i s c r e d i t t o t h i s C o u r t among members of t h e Bar. O'Brien v. Railway ( 1 9 6 6 ) , 148 Mont. 429, 4 2 1 P.2d 710; Great Northern ( 1 9 6 5 ) 1 4 5 Mont. + ;XL? 6. Justice I concur i n t h e f o r e g o i n g d i s s e n t .

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