WALLER v HAYDEN
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No. 93-464 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994 LINDA WALLER, Plaintiff and Appellant, v. VIRGIL L. HAYDEN, Defendant APPEAL FROM: M.D., and Respondent District Court of the Seventh Judicial District, In and for the County of Richland, The Honorable Richard G. Phillips, Judge presiding. COUNSEL OF RECORD: For Appellant: Charles L. Neff Bhella, Wahl & Eiken, Williston, For Neff, North Rathert, Dakota Respondent: John H. Maynard and Ken C. Crippen, Browning, Kaleczyc, Berry & Haven, Helena, Montana Submitted on Briefs: Decided: Filed: July 6, 1994 December 13, 1994 Justice Terry N. Plaintiff for the Linda Seventh damages from her of surgical entered motion her District to were District disregard We affirm to was from District recover she alleged presented appeals Court to what a verdict and the trial. for Court. and reckless Wailer verdict, the the County M.D., Afterward, a new in battery, claims. of Richland claims that for a returned the in judgment Court's the jury denial judgment of the Court. The only its treatment, on all pursuant of in L. Hayden, trial. opinion a complaint Wailer's Hayden the District Virgil an eight-day favor filed Judicial well-being. during delivered Wailer defendant was negligent for Trieweiler issue discretion when it disciplinary based that subject of is excluded proceedings on conduct was the on appeal whether evidence which occurred District Court of Hayden's were ten Wailer's the commenced years prior involvement in to abused in another the state conduct which claim. FACTUAL BACKGROUND Since Wailer's a complete record provided, written and our pleadings defendant Virgil sufficient for On November County She District alleged appeal of the limited trial summary of L. Hayden, purposes 18, of in Hayden which was is of the set forth has necessarily parties above, not based been on the the filed and the testimony of However, M.D. Wailer issue proceedings facts resolving 1991, to the court the and arguments Court that is that record is issue presented. a complaint she named Hayden a physician licensed in as the to Richland defendant. practice in and Montana, care. that he She stated vaginal that discomfort surgical procedure as a result Wailer's his fallopian hysterectomy, salpingo oophorectomy, surgery Endometriosis of undergoes the Medical similar to (Rev. in ed. her the her negligently disclose For body. formed his her ovaries that the premature because tubes at the which exposes of age of her to those 38, of after of her numerous fallopian procedures tissue by similar the to The tissue pelvis. it endometrium and Bantam she suffered increased 3 at they were after her a loss health in alleged that those Hayden and was negligent tubes. of confirmed endometriosis diagnosis, removal was ovaries of and fallopian she a bilateral menstruation. and reason, pre-operative when he removed the presence that a 1990). studies not of in complaint, pathological did of 143 uterus, and both presence sites and that recommended and ovaries of 1989. other throughout alleged that removed pain 11, her uterus, her and that opinion he and underwent as the at changes Dictionary Wailer defined uterus periodic pelvic advice her a observation affecting of removal on August is causes trial, his of for performed the basis, 1989, 1989; his he formed On that removal or She accepted intra-abdominal parts or 11, and 20, he on July endometriosis tubes. gynecological on June that laparoscopy, from and complaints; examination the suffering complete lining obstetric saw Hayden other during and the first initial ovaries, tubes. in known as laparoscopy of was she and ovaries Wailer specialized She also ovaries of and fallopian natural risks. alleged estrogen, For Hayden was a second knew she did absolutely known, it not a her admitted, she suffered 11, conversations concealed during as a result disregard following it should them, it have he committed of Waller suffered bowel he a at that a later alleged that repaired, at Hayden more that way tore, some other the that location during to his health or her bowel consequences and that because she well-being, date. misrepresented was caused severe Hayden procedure surgically damage and was surgically surgery, concealment, admitted in consulted that by Wailer that 11, damaged that obstetric was entitled to a licensed physician the 1989. the later was gynecological complaints a laparoscopy surgical He also and surgically injury he and for he performed he performed August that or unless alleged, in of action, his specialized that knew, because of this reckless actual and damages. Hayden 1989; of she or be treated her for punitive restriction extent that of that removed surgical although her full the he cut, cause surgery; during had to with the he Wailer action, and that which a fourth ovaries because 1989, subsequent stenosis her alleged when he removed of that of her bowel, For to have and cause on August portion want Wailer person. third subsequently performed action, was unnecessary upon For of necessary, that a battery from cause repaired caused on her during stenosis 4 on July the which 20, 1989; previously plaintiff's August was 11, described that he on June care; she described procedures admitted that who bowel 11 surgery, had to be surgically and on was and However, he stated treated. that affirmatively with acceptable specifically injury denied her Prior to trial, to practiced medicine and mandatory review where department its sections. that required any further cesarean post-graduate He nature of the which of a fellow his led practice that the physician had performed two investigation, peer at the an unnecessary a committee ultimately consultation prior in led unnecessary to cesarean Hayden and was ordered sections, while obstetrics-gynecological had performed to obtain 1982 ultimately She learned which the until and that some aspects to the to 1973 complaint, of apparently additional education Therefore, he Montana, On November District complied was, for a to performing to obtain additional education. Hayden Sidney, her the an investigation a result and profession. that Hayden of time, process when Hayden response As from for Arkansas, of wrote that conducted conclusion her that review began worked In from education. Arkansas section. his Bluff, supervision Hayden department period a peer and complained cesarean that in of allegations care members Pine post-graduate process hospital for his learned in in her surgery. Wailer recommendations times he concealed following he was involved denied all for that bowel there at standards to Hayden otherwise Court concluded requirement terminated in 17, for that his he was unable and still practice to satisfy maintain Arkansas in his and the practice. moved to 1982. 1982, the Hayden Eastern filed District 5 a complaint of Arkansas in the in Federal which he named Jefferson eight of Regional the doctors Jefferson Regional practiced during his him 5 1983; (2) combine the him; to and business violation form interfered (3) with relationship. Hayden described. In protection equal Amendment boycott in violation and conspired and and 42 U.S.C. of him interfere Cir. and 55 1 and 2 of statements to (8th Bracy taken against made defamatory SeeHaydenv. which him a group Act; defendants. action denied power and disciplinary Fourteenth monopoly Antitrust at previously the (1) as hospital the of the to a certain (4) that administrator, staff, process defendants conspired Sherman is disciplinary alleged its medical Center he in Center, its Medical by the due process on the complaint, against Medical about with 1984), his 744 F.2d 1338. The district court 42 U.S.C. 5 1983 and the and after a nonjury the dismissed Prior order to the trial, trial precluding proceedings by Hayden in 1993, the that Hayden purposes. that the in this the occurred District evidence, to During District case, based granted the on Court that to that pretrial it its 6 On April order, to of the the for after an 2, extent Arkansas impeachment Wailer the for commenced except was necessary on disciplinary litigation admission conference, reconsider in limine Arkansas. motion, judgment, defendants the to in the moved or the Court door" extent the Hayden in Arkansas, Court by summary for referring District the Act judgment from Federal "opened or entered Wailer that Antitrust claims claims. other Sherman Hayden's District requested Court clarified that embellish on irrelevant to the that his Hayden's nothing do case as an adverse examined at with in Testimony Arkansas practice at 2. to and Hayden reasoned endometriosis had cesarean section was called presentation attorney. of Near her request if and from to allowed, the which the were named 3. law Hayden's 4. Hayden Montana the that her by Wailer case. He was conclusion the of court offered Jefferson of hospital copy Court in the Arkansas because Arkansas District Jefferson the A certified Federal Federal of was that reconsider to present the evidence: 1. States during renewed Court related trial limine, The District to earlier. to by her Wailer following years tried information diagnosis judgment ten and Arkansas case. for his testified the in this proceeded length order from issues witness examination, its defendant qualifications, performed This the qualifications to procedures of unless of were the for that in Eastern Medical that his he moved privileges to jeopardy. complaint the Regional fear trial filed by Hayden District Center of and its in the Arkansas staff in members as defendants. A certified from the copy Federal of the findings District Court of in fact and conclusions Arkansas which resolved complaint. A certified Court of District Regional copy Appeals Court's Medical for of the the published Eighth disposition opinion Circuit of Hayden's Center and its 7 staff which claim of the affirmed against members. United the the The District following Court rejected federal offer litigation of proof for the issues of reasons: 1. That since the defamation and wrongful it directly was not 2. That were probative value at sufficiently interference related even sections to if his with his Hayden's in the the issues in this perform offered, case, to work, qualifications; to evidence to ability professional qualifications issue to related cesarean it had little and therefore, was not relevant; 3. which Wailer's That were the the complained of subject in and dissimilar 4. this to That prejudicial passage of of eight Wailer's be relevant; impact if ten offer made the case, even to years of from until evidence prior proof the far events the acts too remote relevant, its and the evidence outweighed was whatever somehow probative value it might have. Following verdict in eight which days it negligent; (2) negligent; (3) was not found Hayden (4) Hayden of trial, that the (1) jury Hayden's recommendation Hayden's did not negligent commit in returned his a special diagnosis was not removal was not for battery upon Wailer; post-operative and care and pursuant to treatment. On May Rule Court's 59, 27, M.R.Civ.P., refusal Wailer 1993, and to allow moved 5 25-11-102, her for a new MCA, based to cross-examine 8 trial Hayden on the on his District reasons for leaving Arkansas, of her offer In and based on the District order dated motion primarily Wailer evidence Court's which District its conclusion the Arkansas for of the risk of it denied Court unfair relied that even if evidence was prejudice, and was inadmissible. appeals limine; by in the value outweighed it 1993, new trial, probative substantially in a 10, on Rule 403, M.R.Evid., the for August Wailer's therefore, rejection of proof. its relevant, Court's the District related order from the District Court's to Hayden's denying Court's orders Arkansas her motion for April during 2, 1993, trial experience; order excluding and the District a new trial. DISCUSSION Did the District evidence Court of Hayden's abuse its involvement discretion when it in disciplinary were commenced in another state years proceedings which was the subject prior to the conduct "We have held trial is within not be overturned that the sound discretion absent 262 Mont. Topev. Taylor 235 Mont. On appeal, that case, Wailer even though she called he was an expert that of Wailer's of the trial manifest court abuse." 505, 508, 866 P.2d 1106, 124, argues, 131-32, in the District Hayden as an adverse pursuant to Rule 9 702, ten claim? for a new and will Geiger v. 1108 (citing 768 P.2d 845, as she did which occurred to deny a motion of a showing Sherrodd, Inc. (1993), (1988), based on conduct the decision excluded 849-50). Court, witness in her own M.R.Evid., based on his knowledge, that an experience, he was subject expert. relies Mont. 63, 230 principle that parties are While and M.D., not mean fairness that are unless has of 943-44, an for expert knowledge, the witness, competency, and been and board his the relevance, the facts of about that does and remoteness, Furthermore, discretion, district we have court, and parties L. in each which is case, is in apply in Britton v. Farmers InsuranceGroup ( 19 8 6 ) , 22 1 Mont . 303, we held evidence that establish makes "[ulnless a fact sound discretion that in a fact issue, it in is the issue of relevancy more or and less We also held trial court, 10 that evidence subject whether likely. We tends to Britton , 721 P.2d admissible." of is logically not admissibility of test naturally omitted). of rules. the evidence (citations questions those testifying knowledge, abuse that Virgil obstetrician cross-examination. a manifest with when professional of that certified witness rules to concluding to P.2d proffered the 937, example, 721 case, P.2d position For 315 Hart-Anderson v. Hawk about of his concluded best held scope familiar in the expert inapplicable there intimately 67 an traditional traditionally the test physician is the decision 748 as witness. a licensed within qualifications our no reservation gynecologist, subjects at to that we have his cross-examination entitled of on and therefore, regarding 73-74, during qualifications and education, impeachment Wailer (1988), Hayden, to training, "[iln left are to the largely review usual only to in case of manifest (1979), abuse." 184 Mont. Britton , 721 P.2d at 315 (citing 522, 604 P.2d 97. In Prestonv. McDonnell (1983), 277, we held trial that court evidence. In that case, Department of their contract for aware of the offered to licenses in district court remote district in that time court to have on appeal to obtain the prior proffered a Red Lodge bakery seller from the to rescind he was they conditional health evidence was excluded by the conditional licenses any probative and held the two value. were We affirmed that: In determining whether evidence is too remote to be relevant, a trial court is not guided by any fixed rules. Rather, the nature of the evidence and the circumstances 2 Wigmore, Evidence of the particular case must control. For this reason, the 5 437 (Chadbourn rev. 1979). determination of remoteness is left in great part to the trial court's discretion. Wigmore, supra ; Courtneyv. Courtney ([Alaska] 1975), 542 P.2d 164; Gilliland v. Rhoads ( [wyo. I 539 P.2d 1221; Blankenshipv. Brookshier ( 19 6 6 ) , 9 1 1975), Ida[ho] 317, 420 P.2d 800; and Morrisonv.Bradley ([Cola. Ct. App.] 1980), 622 P.2d 81, cert. granted Dec. 15, 1980. The trial court's determination of relevancy is subject to review only in the case of manifest abuse. See also Gundersonv.Brewster (1970), 154 Mont. 405, 466 P.2d 589; Cech v.State (1979) 11841 Mont. 15221, 604 P.2d 97, 36 St.Rep. 2185. Here, discretion. the District The condition did not abuse its Court of the bakery ten years prior 11 a difficult, received This 276, was relevant, to shoti that made licensing he had 659 P.2d a license and in an effort 1968 and 1969. because of They sued the which 67, evidence bought unable purchase, prove 64, remoteness the plaintiffs Health. conditions the whether consider in 1979 and were subsequently Montana 203 Mont. in considering could Cechv.State too the to its sale could easily be considered too remote and irrelevant. Many old deficiencies may have been corrected, while new, yet similar, deficiencies may have arisen. The District Court did not err by refusing admission of the conditional health licenses. Preston, 659 P.2d For based We have excluded 259 Mont. a similar standard least seven years 138, 145, 855 P.2d a similar because is and was at that applied the standard district of court 527, of 531-32. review to evidence that by danger the review, seeInreMarriage old, concludes outweighed substantially its which probative of unfair In Zeke s Distributing Co. v. Brown-FormanCorp. ( 198 9 ) , 2 3 9 Mont. prejudice. 272, conclusion on evidence value 277-7'8 a similar ofStarks (19931, is at 277, 779 P.2d 908, 911, we held that: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the This determination of jury. Rule 403, M.R.Evid. admissibility is within the discretion of the trial judge and will not be disturbed unless there is manifest abuse of discretion. Welnelv.HaN (1985), 215 Mont. 70, 694 P.2d 1346, Kimesv. Herrin (1985), 217 Mont. 330, 705 P.2d 108, Dahlinv. Hohnquist, (1988), 1235 Mont. 17,l 766 P.2d 239. In this manifestly case, abused disciplinary resulted we its those were relevant, more prejudicial Arkansas prior to the either Arkansas, than held that of their probative. of 12 by District the Hayden's because proceedings complained the and Hayden's irrelevant disciplinary acts in that when it proceedings, Arkansas, the conclude discretion proceedings from cannot plaintiff; evidence lawsuit reasons eight for leaving those which to of which remoteness, The events occurred Court ten or if led to years complaints related to sections and federal lawsuit anything wrong--not within the there Hayden's his simply of 1989, that or he as particular, the additional education, qualifications it negligence, Court to exclude of than case within a manifest has not been established. the District motion Court for avoidance that since court clarify of the cases judges for future meaning businesses elsewhere its is that more or Wailer her in physical evidence, his that he issue and his of professional of discretion the on its conclusion that the District discretion that it the Court's when it District under we conclude in needed qualifications, We conclude of and was facts discretion that neither denied did plaintiff's a new trial. However, district the Therefore, abuse conclude of peers the based abuse done It he treated Arkansas to probative. this had made it nature Hayden's to evidence to which when the relevant the accusers his 1989. Wailer, still and professionally. true was relevant was more prejudicial in in cesarean members; discretion negligent judgment were his evidence the perform staff whether Arkansas was by other court's surgery argued to he was qualified concealed following If, the Hayden that condition resolved a district in when with whether range likely about relationships was nothing less judgment can find the this our read of future errors, decision. professionals sanctuary are purpose evidentiary of or like in This who Montana 13 it by attorneys guidance is and that and the appropriate decision have and does been their not to mean discredited past will never follow rules of district them. are notion discretionary every call district that in best The We concur: to this District range judgment make evidentiary correct It assumes that the the person closest that the to by the the we do not mean that admitted best to District the was district Court is answer for decision is a the case--the Court did not abuse proffered would it by abused have We simply exercised court. is court to evidence evidence. judgment left the the district District excluded that rulings. no absolutely Court's of traditional conviction is it it 1s there case, had court the decision left when affirms a By holding discretion permissible place best issue. discretion the this that judge. its and the evidentiary plaintiff simply assumes judgment its it review, appellate courts The Instead, affirmed. within the conclude that December13, 1994 CERTIFICATEOF SERVICE I hereby certify that the folowing ceritied order was sent by United Statesmaii, prepaid,to the following named: CharlesL. Neff, Esq. Bjella, Neff, Rathert, Wahl & Eiken, P.C. 111E. Broadway,Drawer 1526 Wiliston, ND 58802-1526 JohnH. Maynard, Esq. Browning, Kaleczyc,Berry & Hoven, P.C. P.O. Box 1697 Helena,MT 59624 ED SMITH CLERK OF THE SUPREMECOURT STATEOF MONTANA
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