Papich v. Quality Life Concepts, Inc., 03-643

• Decision Date: 04 May 2004
• Docket Number: No. 03-643,03-643
• Citation: 321 Mont. 156,2004 MT 116,91 P.3d 553
• Court: Montana Supreme Court
• Parties: STEVAN W. PAPICH and MARY LOU PAPICH, Plaintiffs and Appellants, v. QUALITY LIFE CONCEPTS, INC., a Montana Corporation, Defendant and Respondent.

2004 MT 116

321 Mont. 156

91 P.3d 553

STEVAN W. PAPICH and MARY LOU PAPICH, Plaintiffs and Appellants, v. QUALITY LIFE CONCEPTS, INC., a Montana Corporation, Defendant and Respondent.

No. 03-643

Supreme Court of Montana.

Submitted on Briefs: January 27, 2004

Decided: May 4, 2004

For Appellants: Alexander (Zander) Blewett, III, Christopher D. Meyer; Hoyt & Blewett, Great Falls, Montana.

For Respondent: Maxon R. Davis; Davis, Hatley, Haffeman & Tighe, Great Falls, Montana.

Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Stevan W. Papich and Mary Lou Papich (the Papiches) filed suit against Quality Life Concepts, Inc. (QLC) in the Eighth Judicial District Court, Cascade County, alleging they suffered injuries as a result of QLC's negligent failure to control A.M., a developmentally disabled person. A jury found QLC was not negligent and the District Court denied the Papiches' motion for a new trial and to alter or amend the judgment. The Papiches appeal. We affirm.

¶2 We restate the issues as follows:

¶3 1. Did the District Court manifestly abuse its discretion in denying the Papiches' motion for a new trial?

¶4 2. Does sufficient evidence support the jury's finding that QLC was not negligent?

BACKGROUND

¶5 On November 5, 1997, Stevan W. Papich, an employee of the Easter Seal vocational day program in Great Falls, Montana, was preparing to take a van full of developmentally disabled consumers on a day program outing. He heard A.M., the passenger sitting immediately behind him, say something. Papich turned in his seat to ask A.M. what he wanted, and A.M. punched Papich in the eye. The punch broke Papich's eyeglasses and caused the retina in his left eye to detach.

¶6 A.M. was 51 years old at the time, but had the mental age of a 4-year-old and an IQ of less than 40. Since 1983, he had lived in a group home operated by QLC, a nonprofit corporation which contracts with the Montana Department of Public Health and Human Services (DPHHS) to provide services for developmentally disabled persons.

¶7 The Papiches filed this action in District Court alleging that QLC negligently failed to prevent A.M. from hurting others, resulting in Stevan's loss of eyesight and other damages and loss of consortium for Mary Lou. Before trial, the District Court granted the Papiches' request to exclude any evidence of negligence by Easter Seal, which has tort immunity under the Workers' Compensation Act. The court also ruled QLC had a special relationship of custody and control over A.M. and, as a result, had a legal duty of care to those placed within the foreseeable zone of risk created by any breach of that duty. See Lopez v. Great Falls Pre-Release Services, Inc., 1999 MT 199, 295 Mont. 416, 986 P.2d 1081,

and LaTray v. City of Havre, 2000 MT 119, 299 Mont. 449, 999 P.2d 1010.

¶8 At trial, the Papiches testified about their injuries. They also presented Stevan's and others' testimony about prior incidents in which A.M. had been sexually or physically aggressive toward other persons. Expert witnesses supported the Papiches' position that QLC breached its duty of care by, among other things, failing to properly medicate A.M. with the behavioral medication Depakote, and that the breach caused the Papiches' injuries. QLC presented testimony by lay and expert witnesses supporting its position that it did not breach its duty of care and met that duty through staffing and services provided to A.M., using behavioral modification programs, consulting with medical professionals, and communicating with Easter Seal and DPHHS regarding what was happening in A.M.'s life.

¶9 At the end of the four-day trial, the District Court gave the jury a special verdict form on which the first question asked "Was Defendant Quality Life Concepts, Inc., negligent?" The jury was instructed to answer additional questions on the special verdict form only if it answered the first question "yes." The jury answered "no" to the negligence question, thereby ending its deliberations. The District Court subsequently entered judgment dismissing the Papiches' action.

¶10 Thereafter, the Papiches filed a combined motion for a new trial and an altered or amended judgment pursuant to Rule 59, M.R.Civ.P. They argued that, at trial, QLC repeatedly and deliberately violated the pretrial order prohibiting it from presenting any evidence of Easter Seal's negligence. The Papiches also moved the court to alter or amend the judgment and determine that QLC was negligent as a matter of law, based on: (1) admissions by QLC's former chief executive officer, Charles Trott; (2) testimony of Dr. Patrick Galvas, a physical medicine and rehabilitation physician who had reviewed A.M.'s records, and opined that, as early as 1994, a behavioral modification program, behavioral medications and movement to a more secure and structured living facility should have been implemented to prevent A.M. from hurting others; and (3) testimony by Drs. John Mendenhall, a psychiatrist who had treated A.M. from September of 1997 to September of 1998, and Jack Hornby, a psychiatrist who treated A.M. from November of 1998 through the time of trial, concerning medication for A.M. After QLC responded, the District Court denied the Papiches' motion.

¶11 The Papiches appeal. On appeal, they make no argument concerning the testimony of Dr. Galvas. Moreover, because they do not expressly argue their motion to alter or amend the judgment, we do not address it.

ISSUE ONE

¶12 Did the District Court manifestly abuse its discretion in denying the Papiches' motion for a new trial?

¶13 Rule 59(a), M.R.Civ.P., allows a district court to grant a new trial "for any of the reasons provided by the statutes of the state of Montana." Section 25-11-102, MCA, lists causes which, if they materially affect the substantial rights of a party, may be grounds for new trial; the list includes "irregularity in the proceedings . . . by which either party was prevented from having a fair trial." Section 25-11-102(1), MCA. A decision on whether to grant a new trial is committed to the sound discretion of the trial judge and will not be disturbed without a showing of manifest abuse of that discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 30, 288 Mont. 1, ¶ 30, 955 P.2d 160, ¶ 30 (citations omitted).

¶14 The District Court's pretrial ruling prohibited any evidence of negligence on the part of Easter Seal, Stevan Papich's employer. The Papiches proposed—and the District Court gave—an instruction directing the jury not to consider the conduct of the State of Montana or Easter Seal "for any purpose whatsoever" in determining whether QLC was negligent.

¶15 The Papiches contend counsel for QLC nevertheless "blamed" Easter Seal for the injury to Stevan Papich. They argue that this constituted serious attorney trial misconduct and advance Durden and Lopez v. Josephson, 2001 MT 133, 305 Mont. 446, 30 P.3d 326, as cases in which we have condemned serious attorney trial misconduct because it prevents opposing litigants from having a fair trial.

¶16 Durden was a product liability action against the manufacturer of a trailer furnace which the plaintiffs claimed allowed carbon monoxide to enter the plaintiffs' trailer. There, we affirmed the district court's decision to grant a new trial because defense counsel had referred at trial to "a litany" of topics not material or relevant to the issues or not substantiated by competent expert testimony—including the plaintiffs' religious beliefs and practices and marital problems. Durden, ¶¶ 31, 37. Lopez was a civil action for assault. There, we ordered a new trial where plaintiffs' counsel had repeatedly asked objectionable questions and raised impermissible inferences, including repeated references to a notarized statement which the court had ruled inadmissible. Lopez, ¶ 48.

¶17 The Papiches' brief lists occasions on which counsel for QLC queried witnesses about the interaction of QLC and Easter Seal staffs in providing services for A.M., specifically concerning the individual planning (IP) process. In the IP process, a team—including the developmentally disabled consumer, the day program (here, Easter Seal), the residential program (here, QLC), a DPHHS representative and any other interested parties—meets at least yearly to come to a consensus on goals and objectives for the consumer for the coming year. The Papiches contend QLC violated the pretrial order prohibiting evidence of Easter Seal's negligence by asking questions about the IP process during its cross-examination of Stevan Papich and its direct examination of both Lynn Morley, QLC's community support and services director, and Lori Wertz, a DPHHS quality assurance representative. They also contend QLC's counsel violated the ruling by referring to the IP process during closing argument:

And I think you've heard from the State people, Carol LaRocque and Lori Wertz; you've heard from an ex-Easter Seal employee, Ms. Derenberger. [QLC] met that duty by trying to bring as much information to the table so informed decisions could be made about what to do with [A.M.], could be made by the team, of which [QLC] was a participant. You heard Ms. Wertz say that that's how those decisions are made, in this IP process.

¶18 The Papiches' argument that QLC's questions and argument relating to the IP process violated the court's pretrial ruling and constituted serious attorney trial misconduct is disingenuous. The Papiches asked their very first witness, Stevan Papich, about the IP process. Counsel questioned Papich about his authority to make decisions regarding A.M., and Papich replied that his supervisors at Easter Seal, A.M.'s doctors, staff at QLC and the IP team had such authority. He then went on to describe the IP decision-making process and indicated he had participated in at least one IP meeting concerning A.M.

¶19 In short, both parties presented evidence about the IP process. In neither Durden nor Lopez did the...