MASON v DITZEL
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92-131 NO. IN THE SUPREME COURT OF THE STATE OF MONTANA 1992 OK CHA MASON, Plaintiff and Appellant, -vsJON W. DITZEL and EMPIRE SAND AND GRAVEL CO., INC., Defendants APPEAL FROM: and Respondents. District Court of the Thirteenth Judicial In and for the County of Yellowstone, The Honorable Maurice R. Colberg, presiding. District, Jr., Judge COUNSEL OF RECORD: For Appellant: Thomas Eakin, For J. Lynaugh, Lynaugh, Billings, Montana Fitzgerald, Eiselein & Respondents: James L. Jones, .i, Dorsey Submitted & Whitney, on Briefs: Decided: Billings, Montana September 24, 1992 November 24, 1992 Justice John Conway Harrison delivered Ok Cha Mason appeals Judicial District verdict in Court, favor recover the judgment Yellowstone accident, the driver, Respondents a seven-day Ditzel, Mason raises denied trial following issues Did the District Court err in testify as a defense witness? 2. Did the District Court mistrial after an officer spoke with jurors during stationed in Seoul. 1973. From 1985, before the accident, was not fluent reading jury for the decided that We affirm. Dr. Joseph Rich to traffic control in Missoula, moved to as She met her a part and was tested specialist Montana, Billings, until time bakery in just clerk. She in 1991 at a third-grade level. Mason was driving Billings. to in Billings in Korea in 1946. couple Mason worked At approximately route the action responsibility allowing They were married in English employer, on appeal: he was an air when the and his jury err in denying Mason's motion for of Empire Sand and Gravel Company the trial? Ok Cha Mason (Mason) was born Ted Mason, while Thirteenth on a unanimous in 1991the 1. husband, by the accident had not been negligent. the of the Court. Mason brought from an automobile 23, 1987. and after County, Company, Inc. damages resulting on September entered Jon W. Ditzel of respondents, Empire Sand and Gravel the Opinion 9:00 her on the morning Dodge Colt from her home in Billings Ditzel was driving of September sedan south Heights his 2 1987, on Main Street, to a dental employer's 23, appointment Kenworth tractor- en in trailer truck, or partly loaded, with 40,000 pounds. per the Street vehicles has three as to center lane in gross an adjacent vehicle were moving collision. across the then lane. weight It of was 35,000 to at approximately 35 miles Conflicting evidence Mason's minor testified that lights, to truck and trunk on the attributed these car, but the they in lane any or case, before the the car to and hit lanes injuries curb just the median. Mason was taken for only damage the appeared top. car causing southbound its the but Mason's and photographs was damaged sustained accident, collided, left in to skid by ambulance her left to hand and day. testimony car the of car treated same Police of left and onto room, the the and far over emergency at lanes. Mason was driving time truck center rolled released the was The southbound whether at truck Ditzel s tail an estimated Both was presented an southbound hour. Main It "semi," left hit officer represented left side left front her car quarter its The truck Mason's Mason rear though contact bumper, scratches expert between witness truck accident when that Although undamaged, initial the and top. behind, panel. to the done from were who wrote damage indicate bumper. apparently scratches vehicles on the the rear of the report suggested the rolled over car and that onto the median. Mason told a police that she was driving car. At the trial, in officer, the however, immediately curb lane she testified 3 after when Ditzel's that the accident, truck she had been hit her in the center lane, two blocks the scene having north the collided skid pushed in Her theory, insurance Ditzel had been rear-ended her Ditzel center in lane, of adjuster, that was median six to the car the truck months trial that of travelling in before center it shortly lane at the long. Mason's the left of truck. driver first been saw her the left the had and hit changing he never was feet had after from this just caused the from the hit again by a statement lanes at arrived, the other in part officers 100 her of changing in the Ditzel made to accident, to right left was when that his truck car. the at the process and that his in that confirmed claimed apparently truck approximately front adjuster Ditzel's nearly lane; officers on the claimed told who had been truck asserted Mason then top McDonald's, center When the car. marks on its the a wrecker Ditzel's drivers accident. side Mason's of Ditzel in passing accident, Both an driving lane, was lying side. been of parallel rear, had front scene. driver with the car & in accident inside or end of the lanes by the left after of that corroborated changed truck. however, In his Mason pulled 1988 from car in front the until curb it statement to of him, lane to was on the the the left insurance he said: Well, see I was changing lanes. I had my turn signal on and I was gonna change lanes and apparently she didn't I don't know. . . . I was see that or something. changing to the righthand lane. The point was changing rear of of contention lanes Mason's car, from or at the left to whether trial, right Mason 4 then, and in was whether doing was changing so ran from Ditzel into the the curb lane to the center of Ditzel's avoid that so hit the right front bumper At the trial, Mason truck. Testimony said lane and in doing on this point is conflicting. she had moved from the curb traffic going into McDonald's; lane then to the center lane she saw the truck to behind her: Already he's coming, but I stay my lane. I keep going my center lane and then I feel . . . just boom. . . . Then I turn left and just spin. . . . I spin but he's not stop. He just come and hit me: then I roll over upside down. In the telephone April 1988, Ditzel Interviewer: Ditzel: interview stated recorded that he hit And she struck No. Interviewer: I hit her What part by the insurance Mason's adjuster in car from behind: your vehicle? from behind. of her vehicle was hit? Ditzel: Well I . . . I don't . . . I guess right in the back end and she was kind of at an angle. It spun her sideways. . . . And I hit her in the back. It spun her sideways and then she went sideways in front of the truck. I was pushing her down the road. Then I realized there was something in front of me, so I hit the brakes on the truck cuz I couldn't see her car cuz, you know, it was hidden down under my hood. At the trial, however, how the accident insurance adjuster Ditzel stated had happened and that was "speculation." that he actually didn't know much of what he had told He explained: I said I was going to change lanes. I didn't say I did change lanes. . . . I don't know what happened. I don't know where this lady came from, where she pulled out from, if she pulled out. . . . And from behind, I didn't mean I hit her. . . . I thought she came out at an angle and I thought I might have caught her in the back. Denman Lee, Mason's accident reconstruction 5 expert, testified the at the trial that he believed was changing lanes Mason's the accident Lee explained built car. into the rear and caused the scratches and ran into that bumper, on the left rear Mason's had not actually examined Mason's to the Dodge dealer left rear bumper" truck panel, car, who provided hit it at an angle. he said, as the "shock of absorber" U1flexedl' when the truck quarter moved forward because Ditzel car had a "shock ahead of the the bumper cover it "back the which car to spring occurred The occurred when flexed. Lee absorber" but he had shown pictures a parts diagram of the of rear bumper. Harry witness out for that that the defense, if the the car and not to the if the truck engineer challenged truck car, Mason's curb, Towns, a mechanical had hit would who testified Lee's the as an expert explanation. left have moved to rear the end or right, He pointed bumper of toward the said left in front of the truck. Towns also had hit the rear end of the car, the rear bumper would have been damaged. Towns' theory was that caused the accident Mason by changing lanes: Mrs. Mason was passing Mr. Ditzel on Mr. Ditzel's righthand side. She overtook and was passing the truck. She pulled in front of the truck and attempted a lane change, or started a lane change too soon. . . . The car actually ran into the truck. Her left rear door contacted the right side of the right front bumper of the truck. . . . That pushed her car because her wheels were steered to the left. . . . Her car went into a slight skid to the left. Mason's which car had sustained was consistent with a deep scratch on the Towns' Towns also theory. 6 left rear pointed door, out that Lee had obtained and that have the a parts particular a "shock model absorber" Thus, not or Towns testified, could because have the that caused Dodge Colt did on the sixth retired the final for arguments, two hours following wrong model had been driving absorber" in on the by movement 1986 after the Mason scratches Towns testified day, for "impact the been diagram not left of have that the jury Its rear panel bumper of not bumper. quarter type cover bumper. trial. On the its instructions received of deliberation. did rear rear the day of the its of Dodge, verdict seventh and was reported in form: the we, following jury in the special verdict Question 1: Answer: No. Because answer the any Was the jury of found the above-entitled on the issues Defendant that Jon W. Ditzel Ditzel questions case, find submitted to was about not the us: negligent? negligent, it did not Rich to damages. I Did the testify Mason denial of District Court err as a defense witness? first her questions motion a psychiatrist. to Although damages, it and will be considered Trial parties of their was also had Dr. here that witnesses the Rich's relevant allowing propriety exclude to of the Dr. the testimony of testimony Mason's Joseph District Dr. in that for Rich, concerned as a witness context. set Court's Joseph ostensibly credibility been originally had agreed expert the in respondents and the subject 7 October would 28, 1991, disclose the matter of their and the identity expected testimony August at least 26, 1991. Mason for Rich, weeks in advance of that On October the first as an expert Dr. nine time 7, that they summarizing his a diagnosis immediately moved to exclude she had not that it offered rebuttal were themselves. forced September important that provider, Dr. respondents Dr. she Duncan had offered September Burford diagnosed trial most of her grounds of the far fact beyond a her in only failing post-traumatic November 18, 1991. exclude Dr. Rich's testimony, reserving counsel might content 8 1990, would be medical and that Burford and was afraid the after the to drive. syndrome. R. Colberg, He denied of had not out in her reply, psychiatric Dr. stress until they records to depose Dr. Burford Mason had consulted nightmares medical testimony December for Mason had not argued, Mason pointed no reason the that psychiatric 18, 1991, Judge Maurice make to Mason in December 1990 and respondents identified because she was having On October the 1991. discover Burford, and on the case and went interrogatories damages. had history in view by asserting the from witness. 1991 that in determining however, accident to As a result, known until before to their report disorder." testimony notice of the countered adequately they adequate notified medical pain Rich's own psychiatric The respondents that of Mason's Dr. a new theory respondents a three-page "somatoform been given of Mason's responded of or before to use Dr. Joseph Rich included analysis indicating that intended The notice witness. the 1991, date, Jr. Mason's postponed motion to to Mason any objections her that the testimony during trial for and indicating that a continuance Judge Colberg complete if explained of degree late led witness to the late Mont. of of of manifest opinions the 86, of assist more Order past time medical disclosure consider that to further prepare Mason's Dr. Rich for trial. to make "started had information," of motions failure providers of medical the (1989), trial court, a which "to as a proposed 500, Medical Director Deaconess Hospital, evaluating the complained. to depose was District Rich some expert exclude During the Dr. Rich's her medical did Dr. trial, testimony of error as stress trial records. required not for abuse Rich's case (1986), 221 and they beyond the will jury's Inc. Cooperative, M.R.Evid. Here, at Dr. Billings for purposes of which Mason had ample time We hold that disorder Mason cross-examination. its the discretion in denying Mason's motion of Mason's testimony. Judge Colberg and overruled Although for is expert was continued, in sound testimony Services an the whenever 702, Psychiatric qualified and prepare Court to the only the that Rule to Group Electric 360; post-traumatic Because Dr. Rural of review admissible evidence 783 P.2d left Further, are Park are Insurance 315. in understanding 239 Mont. as 303, v. to Farmers experts Wacker evidence subject v. P.2d qualified jury of Britton 721 experience. level his admissibility abuse. 67, motion would by defendants." discretion the in of court needed discovery Questions Rich, Mason disclosure sequence the denied her these reversal, 9 objection actions because to did not "a reversal to limit admission rise of to the cannot be predicated upon evidence in question result in comment. an error the in admission of evidence, was not of such character we feel case," that Lee (1981), Lauman v. the where to have affected circumstances 192 Mont. the 84, 90, the require 626 P.2d 830, 834. Mason's Motion Multiphasic Agosto, in Limine Personality a clinical interviewed concerned Inventory on a Minnesota (MMPI) administered psychologist Mason and reviewed her scores hired by Mason. her medical by Richard Dr. records Agosto in October had 1991. On November 7 and 8 he administered an MMPI, aided by an assistant who read to the Agosto stress the 566 questions testified that disorder from this his and that primary indicating Dr. that that Agosto Mason had (that is, population) on six scales, higher trial, Dr. was post-traumatic Mason was still labelled Agosto developed explained in 1940 and no longer "schizophrenia" difficulties, the person on redirect taking suffering Mason's or percent above of the the MMPI 95th total as follows: Dependency that mean what they concentration is 95 at examination in the MMPI reflects the test interpreted scored than Hypochondriasis Depression Hysteria Schizophrenia Paranoia Potential Drug or Alcohol memory At disorder. percentile Dr. Mason. diagnosis he believed On cross-examination, scores, aloud "mental these terms meant then confusion were (e.g., and perhaps problems 'I but does not mean that schizophrenic). 10 He concluded that the MMPI results were said he had disorder record with and stress consistent as a whole to After their that Dr. Agosto effect his her Motion Rich from 26. to motion, Dr. in prepare Rich is "Mrs. that In making contrast, computer have a tendency have experienced analysis of dependent;" and blame and hostility is MMPI to complaints are likely onto Dr. Colberg a for example, exaggeration," and emotional day problems." the that his Mason "has of showed trial that l'immature, egocentric, history during periods of stress;" [with] potential and that 11 he made report, stated, a long a problem.1' the conclusion [pre-trial] towards is others;" be denied ultimate Rich responses have and would furnished." sixth features;" "likely notice significant on the her in Dr. on November same as apparently he made however, he testified features the with prevent testimony "the information always somatic is that hysterical paranoid case to significant functional that following immediately would Judge Mason consistent Mason had adequate report, appears "has this on the that in his Masons' notified MMPI were an order in disorder. Mason. MMPI results apparently pretrial Mason she in and I don't In his concerning understanding basis testify cross-examination. on his a deposition although for no respondents of the she had not of post-traumatic pain would seeking the that based Rich, opinions discussing the results in Limine, She argued unable Dr. the found somatoform testified, that supported filed indicate psychiatrist, day to the and that a diagnosis of and developing that "mild for . . . projecting "substance abuse may be Although with Dr. Rich stated the opinion he had already condition, that disorder" rather expanded the directly relevant, of testimony The rest of Dr. or dental tranquilizers these disorder" and suggested litigation has begun, objective saving data it's out emerge including from in Dr. occasions her medication. that with extremely 1977, Dr. representing to the complaint difficult . . . the admitted approximately jury Dr. Rich during direct the physician either or had He diagnosed patients of and the Burford, as evidence. on which of a patient. review Judge Colberg providers, records resolve and pain there her Motion back to objections, medical to would dating and depositions, unable Thus, was based on his records, Mason's emphasizing have been caused supporting of her doctors, from might and made them as a witness. testimony records selections scores and opinions Rich's Despite his testimony her MMPI scores. and dental psychiatrist. been disorder, in her brief argument, of several hard stress that depositions had "somatization long-term scale regarding medical examination, a Mason's new conclusions thirty-three psychological but to her credibility that of these had were consistent as to Mason's not to any injuries Limine, read reached she definitions in Mason's all the MMPI results than post-traumatic is merit Mason's that is, by the accident, Rich's that of this prescribed l'somatization type, "once to get really good, [IIt's a matter of face." Mason had objected records through before the videotaped trial to admission deposition 12 testimony of her medical of Dr. Maurice Smith, In her a neurologist. Exclude Medical Records, records amounted hearsay and would evidence. expose The court the denied at support jury this trial of her Dr. Smith's lacking a conclusion objection in she argued that to testimony Smith had reached Mason's brief reading foundation to Dr. for prejudicial grounds on the Rich's of the or that based on the records, to to and calling irrelevant motion Motion Dr. and overruled reading of the same records when records. In the past the testifying been we have upheld physician responsible for (1971) I 157 Mont. Mont. 384, was also the 277, 698 P.2d admission the attending patient's 485 P.2d 406; of medical care. Klaus 54; Matter Peppard Garza v. of 515, 761 P.2d physician's the 401. testimony hearsay that statements from the Rule 703, Rule 803(4), made for purposes hearsay rule. inadmissible data if experts that allows field 222 Mont. 244, Exchange M.R.Evid., is also to was within which provides are excluded admissible testify reasonably forming 233 an attending diagnosis an expert in (1988), records the data are of a type particular 215 that of medical Such testimony which M.R.Evid., in in Hillberry (1985), doctor's based on another exception G.S. we found In -I Garza who had v. (1986), 722 P.2d 610; Palmer by Diacon v. Farmers Ins. Mont. physician under based relied opinions on on by on the subject. Here, had never of her Dr. Rich was not Mason's attending met her, medical much less records physician examined or treated therefore 13 was not her. within and in fact His reading the hearsay exception in Rule 803(4), attending physician, two hours. M.R.Evid. Dr. Smith also was not Mason's though cases, In both he did examine her however, the for records approximately were admissible under Rule 703, because Dr. Rich and Dr. Smith were experts followed the practice on medical records. therefore, that of medical allowing both We will evidence Silvis the doctors testimony the sufficient the party." that verdict. 251 Mont. police to support in Gass v. Hilson We hold, and credible 761 P.2d at 404; While the and may have misled photographs alone verdict. "In provide making our we are constrained favorable 240 Mont. in aloud. 824 P.2d 1013. the issues most discretion records of the evidence, (1990), at 409. Palmer, the jury's a light opinions when substantial, 407, testimony on sufficiency evidence medical verdict tended to confuse evidence determination view (1992), their did not abuse its a jury to support v. Hobbs Court in basing 698 P.2d to read Mason's not disturb jury, of G.S., the District exists disputed Matter experts who had to 459, the 462, to prevailing 784 P.2d 931, 933. Further, does here, where the record and the jury presents resolves conflicting that precluded from disturbing jury conflicts conflict, the verdict. Here, the versions of the reconstruction favorable that resolved to resolution accident, experts, and between the prevailing and the jury's the favor. party, the verdict. 14 this as it Court is Lauman, 626 P.2d at 833. between in Ditzel's evidence, Mason's parties' and Ditzel's two accident Viewed in a light evidence clearly See Whiting most supports v. State (1991), 248 Mont. and weight 207, given 213, to 810 P.2d 1177, conflicting 1181 ("The credibility evidence is within the jury's province."). II Did the District Court mistrial after an officer spoke with jurors during on November 22, 1991, the fifth At the noon recess trial, the Mason observed owners talking of with a juror respondent in in the and the Judge Colberg that The three jurors had been discussing "Yes, last it's night." kind She also told may have spoken to a juror a comment about Reiter Judge a mistrial. questioned table during throughout voir the She dire. had concerned the downtown Billings possible Reiter said, isn't of incredible, with involved. in the hall to be roaming garage, met She to which Judge Colberg to the jury thought Inc., elevators. moved for jurors the exchange the Company, incredible," at the counsel rapist to the parking and one of Counsel lawyers, suspected getting this attorney and two of the three had been sitting near laughed. and had been introduced told hall "Isn't and Mason's without day of the secretary-treasurer Sand and Gravel like, "yesl' chambers, Mason, Reiter, trial in say something chambers, Reiter Empire jurors responded Colberg Still Sandra Reiter, three heard Reiter err in denying Mason's motion for of Empire Sand and Gravel Company the trial? it? the judge that safety a area. precautions in and she had commented, I just earlier learned about in the trial on the way to the garage, it she responding to the weather. identified two of the 15 three jurors involved in the conversation jury about foreman, the rapist: Joanne Sheridan, and Tana Hansen. in chambers. She confirmed conversation and added that case of we were talking Sheridan Reiter able had stated identify it [were] . " was Mrs. Sheridan conversation rapport" in perception between unrelated prejudiced Reiter and the to the trial, not "Joanne sure the the and I rest juror, of them Kay Burns, as having any exchange with Judge for been in about Colberg summarized attorney, a mistrial on the grounds have tended to and the women jurors, Judge Colberg any conversation jurors consisted and on his belief the Reiter. Mason's "may was in Sheridan who the another with as to Reiter and Burns. of women." that was a why Reiter involved questioned Sheridan counsel, question between Reiter a common concern on his not recall moved it Burns remembered the conversation with then jurors she said, by Joanne with Eiselein, to her, she was acquainted the interviewed chambers interviews Colberg jurors, near the elevator. In that as one of Colberg but did Sheridan of the noon recess which may explain Hansen and I'm identified the rapist dire context, three Judge tentatively group the impression one of us talked in voir When Judge of believe "If Sheridan conversation. identity Reiter's interviewed and she interjected." in a work-related to Judge Colberg who was to be the his Michael that establish the some "who were discussing denied that of the motion, may have a "general that the incident based occurred comment," had not the jurors. Mason relies on Putro v. Baker (1966), 16 147 Mont. 139, 410 P.2d 717, and State v. the proposition Eagan (1978), that any misconduct presumed prejudicial, those though cases we recognized jury and emphasized improper trial the influences. court 178 Mont. tending a fundamental importance 1195, for a party is may be rebutted. right of said, 582 P.2d to injure the presumption We also to decide 67, to an unprejudiced guarding however, in each case whether In jury that trials it is prejudicial from for the misconduct has occurred. Here, parties the fact that was revealed that juror. during When the conversed with the a thorough testimony of the juror and the party motion for was acquainted voir dire, same juror party conducted juror a juror in discussed a mistrial. was later it for lunch witness See State v. Counts Louisiana (mistrial the of a juror was overcome by the submission of trial, to (1964), justified 379 U.S. the 466, to a "brief arising case to the the 85 S.Ct. 546, encounter" from and the Turner 13 L.Ed.2d association between 242, witness juror jury): the Mason's 209 Mont. a principal of intimate that denied of prejudice testimony by continuous, as opposed Based on the (1984), inviting have immediately incident. the case and properly circumstance prior court to found no evidence 248, 679 P.2d 1245, 1248 (any presumption the unusual reported the of the and the party, one of the but Mason did not challenge question, investigation with v. 424 throughout jurors and witnesses). Mason points the three jurors out that Judge Colberg interviewed known to have been involved 17 only two of in the exchange with Sandra by Reiter the and argues conversation interview the contact done the so if a mistrial, the overcome, does After to but it failure of this why Judge does Mr. took to further argument Colberq did he would show that attorney, created this We find indicate conversation prejudice possibility Sheridan. Mason's following the not juror, of due with and juror third asked. presumption combined The record interview the not juror, Reiter unpersuasive. not was third between that have Eiselein, moved for place: JUDGE COLBERG: you've made your motion for a okay, And let me ask you this. Is there any request mistrial. that I make further investigation with the jurors -- the remaining jurors on this panel in any way related to this issue? MR. EISELEIN: I've made. Mason's Your suggestion that Sheridan is based Sheridan and I believe that if this Honor, known about offered to show that We have held for mistrial, satisfied with contact it occurred statement, on Reiter's statement any further I'm quoted was Mrs. does Hansen. represent conversation that Reiter and Sheridan record between above, . . further took the Reiter and "Joanne Mason .'I that concedes contact, place. nothing No evidence discussed the case is was or the trial. motion ruling. "To overthrow is clear, of the Mont. produced that convincing, trial 340, court's 343, here, when it district Court this the will this Court and practically ruling." 420 P.2d 316, and no prejudice not must free Schmoyer 317-18. court has lightly considered disturb its be shown by evidence that from v. doubt, of the Bourdeau (1966) 148 has been No such evidence to Mason has been established. 18 a error The appearance Counts, of impropriety 679 P.2d at is not a sufficient 1249. AFFIRMED. We concur: /-=s--- 19 basis for reversal. November24, 1992 CERTIFICATE OF SERVICE I herebycertify that the following order was sentby United Statesmail, prepaid,to the following named: Thomas Lynaugh J. Lynaugh,Fitzgerald,Eiselein& Eakin P.O. Box 1729 Billings, MT 59103-1729 James Jones L. Dorsey& Whitney P.O. Box 7188 Billings, MT 59103 ED SMITH CLERK OF THE SUPREMECOURT
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