Cleveland v. Ward, DA 15–0123.

• Decision Date: 12 January 2016
• Docket Number: No. DA 15–0123.,DA 15–0123.
• Citation: 382 Mont. 118,364 P.3d 1250
• Parties: Shelby CLEVELAND, Plaintiff and Appellant, v. Janice WARD, Defendant and Appellee.
• Court: Montana Supreme Court

382 Mont. 118

364 P.3d 1250

Shelby CLEVELAND, Plaintiff and Appellant,

v.Janice WARD, Defendant and Appellee.

No. DA 15–0123.

Supreme Court of Montana.

Submitted on Briefs Oct. 14, 2015.

Decided Jan. 12, 2016.

For Appellant: Brian J. Miller, Morrison, Sherwood, Wilson & Deola, PLLP; Helena, Montana.

For Appellee: Patrick M. Sullivan, Poore, Roth & Robinson, P.C.; Butte, Montana.

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

¶ 1 Shelby Cleveland appeals several rulings by the First Judicial District Court, Lewis and Clark County, excluding trial testimony by Cleveland's physical therapist and treating physician; directing a defense verdict on Cleveland's claim that her rotator cuff tear

and arthritis were caused by a vehicle collision; and ruling that Cleveland may not recover damages incurred by her business, Shelby House, Inc. We affirm.

¶ 2 We restate and address the issues on appeal as follows:

1. Whether the District Court abused its discretion by excluding trial testimony of Cleveland's treating physician, Dr. Phillip Steele.

2. Whether the District Court abused its discretion by excluding trial testimony of Cleveland's physical therapist, Anne Ripley.

3. Whether the District Court erred in granting a directed verdict on Cleveland's claim that her rotator cuff tear

and shoulder arthritis were caused by the collision.

4. Whether the District Court erred in concluding that Cleveland could not recover damages incurred by Shelby House.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On June 1, 2012, Cleveland was involved in a vehicle collision with another driver, Janice Ward. Cleveland was stopped in traffic when Ward struck her vehicle from behind and pushed it into the vehicle in front of Cleveland. The impact totaled Cleveland's vehicle. Ward admitted that she was negligent, and Cleveland filed suit for damages. Cleveland contended that she suffered physical injuries from the collision and sought, among other items, damages for emotional distress, past medical costs, and "business loss/lost income."

¶ 4 On November 5, 2014, Ward filed pre-trial motions in limine. Ward sought to exclude reference to any damages suffered by Shelby House, and to exclude any testimony by Dr. Steele that Cleveland suffered a rotator cuff injury as a result of the collision. On January 21, 2015, the District Court granted Ward's motions on those two issues.¹ The District Court concluded that, because Shelby House was not a named party, any discussion of damages it incurred was not relevant. The District Court further concluded that Dr. Steele could not testify as to the cause of Cleveland's rotator cuff tear

because he "clearly avoided giving an opinion" on causation in a September 2014 deposition. In reaching this conclusion, the District Court relied on the following testimony from Dr. Steele in that deposition:

My belief is that [Cleveland] had pre-existing shoulder pathology that to my knowledge had never bothered her. Its relationship to the automobile accident would be purely speculative on my part. I don't have a firm way to confirm or deny it. I think certainly the automobile accident could have exacerbated it; the automobile accident could have nothing to do with it. I don't really know at this point in time.

¶ 5 On January 6, 2015, the parties took Dr. Steele's perpetuation deposition. On January 23, 2015, Ward filed objections to certain parts of Dr. Steele's perpetuation deposition testimony based on the District Court's decision that Dr. Steele could not testify about the cause of Cleveland's rotator cuff tear

. On January 27, 2015, the District Court issued an order sustaining several of Ward's objections. The court concluded that Dr. Steele's testimony could not be "offered for the purpose of establishing the cause of the rotator cuff injury, as his testimony did not include medical opinions based on the required probability that the collision ‘more likely than not’ caused the injury," quoting Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, ¶ 35, 367 Mont. 21, 289 P.3d 131.

¶ 6 A three-day jury trial commenced on February 2, 2015. During the trial, Cleveland called her physical therapist, Anne Ripley, to testify. Outside of the presence of the jury, the District Court asked Ripley several questions to clarify the scope of her testimony. When asked whether she could diagnose the cause of Cleveland's rotator cuff tear

, Ripley responded: "I can't say that the accident caused the rotator cuff tear. But I can say function was normal before the accident and after the accident she had all of this change." The District Court therefore prohibited Ripley from offering "testimony as to medical causation" of Cleveland's rotator cuff tear. Cleveland's attorney then made an offer of proof by questioning Ripley.

¶ 7 At the close of evidence, Ward moved for a directed verdict on Cleveland's claim that her rotator cuff tear

and shoulder injuries were caused by the collision. Ward's attorney argued that Cleveland must have "medical expert testimony to establish the medical causation link" between Cleveland's shoulder injuries and the collision, and that "[t]he jury can't speculate on something like that." The District Court granted Ward's motion for a directed verdict, preventing Cleveland from arguing that her rotator cuff tear or shoulder arthritis were caused by the collision.

¶ 8 On February 4, 2015, the jury returned a verdict for Cleveland in the amount of $10,534. On February 17, 2015, the District Court entered judgment for Cleveland in the amount of $3,056.99, after factoring in offsets for previously-made payments. Cleveland appeals, contending that the District Court abused its discretion in limiting the scope of Dr. Steele's testimony, granting five of Ward's objections to Dr. Steele's testimony, and limiting the scope of Ripley's trial testimony. Cleveland further contends that the District Court erred by granting a directed verdict on Cleveland's shoulder injury claim and ruling that Cleveland may not recover damages incurred by Shelby House.

STANDARDS OF REVIEW

¶ 9 We review for abuse of discretion a district court's evidentiary rulings and determination whether a witness is qualified as an expert to testify. Harris v. Hanson, 2009 MT 13, ¶ 18, 349 Mont. 29, 201 P.3d 151 ; Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, 154 P.3d 561. District courts have broad discretion to control the admission of evidence at trial. Seltzer, ¶ 65. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Seltzer, ¶ 65.

¶ 10 If an appellant demonstrates that a district court has abused its discretion in rendering an evidentiary ruling, we determine whether that abuse of discretion constitutes a reversible error. Seltzer, ¶ 65. No reversible error occurs unless a substantial right of the appellant is affected or the evidence in question could have affected the outcome of the trial. Seltzer, ¶ 65.

¶ 11 Whether a directed verdict should be granted or denied is a question of law, which we review de novo. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. In reviewing a motion for a directed verdict, we determine "whether the non-moving party could prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom." Cameron v. Mercer, 1998 MT 134, ¶ 8, 289 Mont. 172, 960 P.2d 302. Courts must "exercise the greatest self-restraint in interfering with the constitutionally-mandated process of jury decision. Thus, unless there is a complete absence of any credible evidence in support of the verdict, a motion for a directed verdict is not properly granted." Cameron, ¶ 8 (internal citations omitted).

DISCUSSION

¶ 12 1. Whether the District Court abused its discretion by excluding trial testimony of Cleveland's treating physician, Dr. Phillip Steele.

¶ 13 Cleveland appeals the District Court's January 21, 2015 order that Dr. Steele could not testify on the cause of Cleveland's rotator cuff injury and its January 27, 2015 order excluding several specific portions of Dr. Steele's perpetuation deposition testimony. M. R. Evid. 702 permits "a witness qualified as an expert by knowledge, skill, experience, training, or education" to testify "in the form of an opinion or otherwise" if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." An expert's testimony is reliable if: (1) the expert field is reliable, (2) the expert is qualified, and (3) the qualified expert reliably applied the reliable field to the facts. Harris, ¶ 36 (citing M. R. Evid. 702 ). The first two factors are determined by the district court. By contrast, "[t]he question whether a qualified expert reliably applied the principles of th[e] reliable field to the facts of the case is for the finder of fact." Harris, ¶ 36. However, when expert medical testimony is required to establish a necessary element of a claim, "the expert must testify with a ‘reasonable medical certainty.’ " McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 29, 380 Mont. 204, 354 P.3d 604. Under this standard, "[a] medical expert's opinion is admissible if it is based on an opinion that it is ‘more likely than not’ that the alleged wrongdoing caused the plaintiff's injury." McClue, ¶ 29 (quoting Hinkle ex rel. Hinkle v. Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 36, 322 Mont. 80, 93 P.3d 1239 ).

¶ 14 Neither party disputes that Dr. Steele's field is reliable or that he is qualified as an expert. The parties dispute the scope of Dr. Steele's testimony and the District Court's exclusion of five portions of it. In its January 21, 2015 order, the District Court determined that Dr. Steele "cannot be offered for the purpose of establishing causation" because he would not say that the collision "more likely than not" caused Cleveland's rotator cuff tear

. The District Court based its decision on Dr. Steele's September...