Breuer v. State

• Jurisdiction: Montana,United States
• Parties: John BREUER, Plaintiff and Appellee, v. STATE of Montana, Defendant and Appellant.
• Citation: 414 Mont. 256,539 P.3d 1147
• Decision Date: 19 December 2023
• Court: Montana Supreme Court
• Docket Number: DA 22-0062

414 Mont. 256

539 P.3d 1147

John BREUER, Plaintiff and Appellee,

v.STATE of Montana, Defendant and Appellant.

DA 22-0062

Supreme Court of Montana.

Submitted on Briefs: November 2, 2022

Decided: December 19, 2023

For Appellant: Andres N. Haladay, Risk Management & Tort Defense Division, Helena, Montana, Paul R. Haffeman, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana

For Appellee: John M. Fitzpatrick, Kimberly L. Towe, Towe & Fitzpatrick, PLLC, Missoula, Montana

Justice Dirk Sandefurdelivered the Opinion of the Court.

¶1Defendant State of Montana(State), by and through the University of Montana, appeals the 2021 final judgment of the Montana Third Judicial District Court, Powell County, on a $510,343.05 compensatory damages jury verdict in favor of PlaintiffJohn Breuer(Breuer) based on his negligence-based respondeat superior motor vehicle accident claim against the State.We address the following restated issue:

Whether the District Court erroneously excluded impeachment evidence in re Breuer's prior back injury and related pre-accident disabilities and pain as alternate cause evidence rebutting/negating his asserted sole cause evidence?

Reversed and remand for a new trial on the causation and damages elements of Breuer's pain/suffering and loss of established course of life claims.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In July 2005, Breuer suffered a career-ending back injury (lumbar spine injury ) when operating a heavy grinder while working as a railroad track section laborer.In 2007, he applied to the federal Railroad Retirement Board(RRB) for available railroad disability/retirement benefits based on his claim that he was permanently disabled as a result of his 2005 railroad injury.Upon review of his claim, supporting medical records, and a physician-conducted functional capacity evaluation (FCE), the RRB approved his claim based on its determination that he was "totally and permanently disabled" for purposes of performing "past relevant [railroad] work," to wit:

[A July 2006] MRI showed degeneration and bulging L2-3-4-5 [discs]. ...[A 2007 FCE indicated that Breuer] was limited to lifting or carrying up to 20 lbs. occasionally and up to 10 lbs. frequently.Other physical restrictions include: Unable to walk on uneven terrain, sitting at least 6 hours in an 8 hour workday, standing at lease 6 hours in an 8 hour workday, walking at least 6 hours in an 8 hour workday, balancing frequently, climbing ladders occasionally, climbing stairs frequently, crawling occasionally, crouching occasionally, kneeling frequently, [and] stooping occasionally. ...[The employee's] regular railroad occupation as a track laborer as he describes the job calls for frequent more than medium lifting of at least 50 pounds, and walking on uneven terrain.[He]cannot perform these tasks ....The employee is not able to do past relevant work ... [and] is ... [thus ]totally and permanently disabled .^[1]

(Emphasis added.)

¶3 In January and May 2011, following extensive post-injury chiropractic treatment for "lower back" and "leg pain" in 2010-11, Breuer underwent two lumbar spine surgeries (L-4 through S-1), followed by post-op physical therapy.On a subsequent physical therapy intake form in 2011, Breuer reported that he was still completely "unable to" perform or engage in "walking long distances, hopping, jumping, running, lifting, [and] carrying."He reported that he could perform or engage in certain functions or activities (i.e., "lying flat, rolling over, sitting, squatting, bending/stooping, pushing, pulling, [and] reaching") only "with much difficulty."He further reported that he could perform or engage in certain other functions or activities (i.e., "moving lying to sitting, balancing, kneeling, walking short distances, walking outdoors, [and] climbing stairs") only "with moderate difficulty."On the intake form checklist, Breuer did not identify any daily activity that he could do either "with little difficulty" or "without any difficulty."Upon consideration of Breuer's reported pain and functional limitations, and evaluative clinical examination, the physical therapist noted, inter alia , that Breuer had "very limited lumbar spine flexibility"; "pain with back extension,""symmetrical side bending," and "any rotation to either side"; was "unable to walk further than several hundred feet" and "unable to stand for more than 3 or 4 minutes without having back pain"; was "only able to reach his hands down just below his belt line"; had "trunk weakness, loss of flexibility of the extremities[ ] and low back"; and had "[d]egenerative joint disease" and "pain from damage to the sciatic nerve that will take a long time to heal."In addition to his earlier treatment for "lower back" and "leg pain," Breuer again sought and obtained chiropractic treatment in mid-2012 for reported "neck" and "mid-back" pain.

¶4 On January 11, 2013, the 61-year-old Breuer and his wife were driving on a highway outside Lincoln, Montana, when an oncoming vehicle slid across the center line on an icy curve and collided with the Breuer vehicle.The other driver was a student-employee of the University of Montana (UM) driving a state vehicle.Breuer later reported that his driver-side airbag deployed in the collision and violently wrenched his right arm backward.Upon ambulance transport to a Helena hospital, an emergency room physician diagnosed him with a "right shoulder sprain /strain."²

¶5 In late January 2013, Breuer sought treatment from his long-time primary care physician for upper body pain and muscle aches.³Upon examination, an attending physician's assistant diagnosed him with a "whiplash" injury of his cervical spine.In March 2013, Breuer obtained further chiropractic treatment for continuing headaches and neck, upper back, and shoulder pain.He also returned to his primary care physician and reported worsening shoulder pain associated with activity.Upon examination, the physician diagnosed him with a "right rotator cuff strain."He thereafter received additional chiropractic treatment into May 2013 for pain and range of motion limitations consistent with a shoulder "rotator cuff injury."

¶6 In September 2013, Breuer returned to his primary physician and reported continuing shoulder pain.Subsequent MRI imaging revealed, inter alia , a partial tear in his right rotator cuff.⁴The physician referred him to an orthopedic surgeon who upon examination treated him with interim steroid injections but ultimately recommended a reparative shoulder surgery.Seven months later, Breuer sought a second opinion from another orthopedic surgeon who similarly recommended reparative shoulder surgery upon review of a second MRI indicating partial rotator cuff and labral biceps tears.⁵

¶7 In March 2016, Breuer filed a negligence claim against the state employee, and a vicarious liability respondeat superior claim against the State, for compensatory damages (including past and future medical expenses, non-economic pain/suffering, and loss of established course of life) caused by the force of the 2013 accident.His second orthopedic surgeon later performed a right shoulder arthroscopic surgery to repair two tears, trim bone spurs, and remove related collarbone arthritis.⁶However, despite surgery and months of physical therapy, Breuer continued to complain of ongoing shoulder pain and stiffness.A third MRI revealed that one of his previously repaired shoulder tissue tears had yet to heal.He underwent a second arthroscopic shoulder surgery in December 2019 to address that residual issue.

¶8 As the litigation progressed, the State admitted vicarious liability for the accident, but continued to deny that it was the cause of Breuer's claimed post-accident disabilities that were similar to those previously and since attributed by him to his back and leg pain related to his prior back injury.In a M. R. Civ. P. 26(b)(4) expert disclosure report, Breuer's primary care physician acknowledged his "chronic spine issues," and that he"[c]ertainly ... had some physical problems prior to the ... 2013 accident."He asserted, however, that Breuer's "shoulder was not a problem prior to" the accident.(Emphasis added.)The physician thus opined that the accident likely caused his ongoing shoulder issues and claimed physical disabilities.

¶9 Prior to trial, Breuer filed a motion in limine seeking, in pertinent part, court exclusion of any and all evidence or reference to his pre-accident back injury and preexisting conditions.Distinguishing what he characterized as prior "lower back" injuries and related conditions from the 2013 shoulder injury and related problems, he sought exclusion of "any mention" of his prior back injury, railroad work, or related preexisting physical condition or disability.He asserted that any reference to those matters would be irrelevant and/or unduly prejudicial to his claim of shoulder pain and disability caused by the 2013 accident because his claim "ha[d] nothing to do with [his] lower back," and he was making "no claim ... for any damages relating to lower back issues."He further noted that the State in any event had no noticed expert medical opinion stating that any cause other than the 2013 accident was either the sole cause, or a quantifiable contributing cause, of his claimed pain and loss of established course of life.In the absence of any claim for loss of income or future earning capacity, he asserted that any evidence or reference to the fact that he claimed or received RRB or other disability benefits would be similarly irrelevant and/or prejudicial.

¶10 In opposition, the State asserted that evidence of Breuer's pre-accident injury, and resulting pre-accident physical disability and causative pain, would be critically relevant and admissible at trial not for the purpose of inviting or allowing the jury to apportion causation of his claimed pain and disability between his preexisting injury/conditions and the 2013...