Pumphrey v. Empire Lath and Plaster

• Decision Date: 09 May 2006
• Docket Number: No. 05-323.,05-323.
• Citation: 332 Mont. 116,2006 MT 99,135 P.3d 797
• Parties: Lisa Brotherton PUMPHREY, Plaintiff and Respondent, v. EMPIRE LATH AND PLASTER, a Montana Corporation, and Rick Lee Pagitt, Defendants and Appellants.
• Court: Montana Supreme Court

135 P.3d 797

2006 MT 99

332 Mont. 116

Lisa Brotherton PUMPHREY, Plaintiff and Respondent, v. EMPIRE LATH AND PLASTER, a Montana Corporation, and Rick Lee Pagitt, Defendants and Appellants.

No. 05-323.

Supreme Court of Montana.

Submitted on Briefs February 8, 2006.

Decided May 9, 2006.

COPYRIGHT MATERIAL OMITTED

Randy J. Cox and Matthew B. Hayhurst, Boone Karlberg P.C., Missoula, for Appellants.

Elizabeth A. Halverson, Elizabeth A. Halverson, P.C., Billings, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Lisa Pumphrey (Pumphrey) sued Rick Lee Pagitt and Empire Lath and Plaster (collectively, Empire) for negligence. A jury awarded Pumphrey $3.9 million. Empire now appeals. We affirm.

¶ 2 The dispositive issues on appeal are:

¶ 3 (1) whether the District Court erred in denying Empire's motion for an independent medical examination pursuant to Rule 35, M.R.Civ.P.; and

¶ 4 (2) whether the District Court had authority to reconvene and re-poll the jury after discharging the jurors.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 This cause of action arose out of an automobile accident, wherein Pagitt, while in the course of his employment for Empire, negligently drove a pickup truck into the rear end of Pumphrey's stopped SUV. The collision propelled Pumphrey's SUV into the vehicle of her then-fiancé, Sean Pumphrey. The collision totaled all three vehicles and injured Pumphrey.

¶ 6 Pumphrey suffered injury to her neck and back and was later diagnosed with two herniated discs and dislocated ribs. A doctor testified that Pumphrey would likely endure life-long pain due to her injuries. Witnesses testified that the chronic pain that Pumphrey suffered ultimately caused her to withdraw from law school and has prevented her from pursuing gainful employment. Additionally, according to her own testimony and that of her doctors, Pumphrey cannot even exercise, let alone participate in the recreational activities —backpacking, kayaking, mountain biking, and running—that she had so enjoyed before the accident.

¶ 7 In January 2004, Empire admitted that Pagitt negligently caused the accident. Therefore, as Empire acknowledges on appeal, "[t]he central issues at trial were causation and damages." Indeed, Empire identified only three issues of fact in the pre-trial order: the degree of severity and permanency of Pumphrey's injuries; whether the accident caused Pumphrey's present injuries; and the proper measure of damages.

¶ 8 On May 7, 2004, the court filed a scheduling order, setting a trial date of January 3, 2005. The court set October 11, 2004, as the deadline for disclosing experts, pursuant to Rule 26(b)(4)(A)(i), M.R.Civ.P. The court set October 25, 2004, as the deadline for disclosing rebuttal experts and November 8, 2004, as the close of discovery. The scheduling order provided that these deadlines "may be modified upon mutual agreement of the parties, in writing."

¶ 9 On October 8, 2004, in accordance with the scheduling order, Pumphrey filed expert disclosures with the court. Pumphrey identified six potential expert witnesses and, in accordance with Rule 26(b)(4)(A)(i), M.R.Civ. P., specified the subject matter on which each would testify, the substance of the facts and opinions to which each would testify, and provided the bases for such opinions.

¶ 10 Meanwhile, on October 6, 2004, Empire's counsel sent a letter to Pumphrey's counsel, requesting that Pumphrey submit to an independent medical examination (IME) by Dr. John Taylor, a neurologist. Pumphrey's counsel refused the following day, at which point Empire had four days remaining to disclose Dr. Taylor as an expert, or eighteen days within which to disclose him as a rebuttal expert. Empire did neither. On October 28, 2004, Empire moved the court to order Pumphrey to submit to an IME as well as to extend the deadline for disclosure of rebuttal experts so that Empire could properly disclose the anticipated testimony of Dr. Taylor, following his examination of Pumphrey. In its motion, Empire noted that "the entire case may ultimately turn on two issues: (1) the severity and extent of [Pumphrey's] claimed injuries; and (2) whether her claimed injuries were, in fact, actually caused by the accident at issue."

¶ 11 By the deadline for disclosing rebuttal experts, Empire had not formally disclosed Dr. Taylor as an expert witness pursuant to Rule 26(b)(4), M.R.Civ.P. Consequently, the court denied Empire's motion for an IME and extension of the disclosure deadline, noting that Empire failed to provide sufficient justification for its failure to meet the scheduling deadline and that Pumphrey would suffer hardship if forced to prepare a response to the IME shortly before trial. The court indicated that "the main reason for the court-imposed deadlines" is preventing the difficulties inherent in coordinating an IME at the last minute. Although Empire argued that Pumphrey's counsel "led [Empire] to believe that an IME would be permitted," and that the deadline for an IME would be extended, the court noted that Empire did not point to any writing evincing that purported inclination.

¶ 12 After a two and a half day trial, the jury returned a verdict in favor of Lisa Pumphrey, awarding her $3.9 million in special damages. After the court announced the verdict, counsel for Empire requested that the court poll the jury, pursuant to § 25-7-501, MCA. The clerk then reread the verdict and addressed each juror in turn. The clerk asked each of the first two jurors, "is that your verdict, [Jane Doe]?" As to the remaining nine jurors, the clerk simply read their names. According to the poll, eleven jurors agreed to the verdict and only one disagreed. The judge then discharged the jurors, informing them:

now you can talk to anybody you wish about the case and you can tell them anything you wish about the case. The attorneys or their representatives might contact you and it is fine for you to talk to them, and in fact, you can talk to them about things you discussed. . . . Again I want to thank you very much for your time and work in this case. . . . Court is in recess.

¶ 13 A short while after the jury had been discharged and several jurors had left the courtroom, some jurors told the bailiff that they had misunderstood the polling question. Their confusion stemmed from the clerk's use of the ambiguous possessive pronoun "your." According to the foreperson, some of the jurors thought that they were being asked whether the verdict, as read in court, correctly reflected the verdict that the entire jury had reached, rather than whether they personally agreed with the verdict. The court then reconvened and reassembled ten of the jurors for the purpose of re-polling them. Two jurors had already left the premises. Counsel for Pumphrey quarreled with the court over the legality of this procedure, observing that the defendants had not objected to the initial polling process and that in the absence of any objection, "[i]t was my understanding that the jury was dismissed and that the record was closed as far as the trial is concerned." Nevertheless, the court reassembled the remaining jurors and, at the suggestion of Empire's attorney, proposed immediately re-polling the ten jurors who were present. With respect to the court's suggestion to proceed with re-polling in this particular manner—immediately re-polling ten of the twelve jurors—Pumphrey's counsel expressed no objection. The re-polling resulted in six persons voicing agreement with the verdict and four voicing disagreement with the verdict.

¶ 14 The following day, the court reconvened to re-poll the two absconding jurors. At the outset of the proceedings, counsel for Pumphrey "[i]n an abundance of caution . . . reiterate[d her] objection on the record." She noted that "[t]he correct and valid verdict was entered in this case yesterday. At the Defendant's request, the jury was polled, the verdict was affirmed, and therefore the verdict was complete. This Court then appropriately discharged the jury. . . . [T]hese proceedings are unnecessary and contrary to law." Counsel for Empire indicated that he had shared an elevator with these two individuals following the discharge of the jury and "did engage both jurors in a brief conversation" about the damages calculation in the case. Counsel later characterized this interaction as "a several minute conversation [that] constituted substantial interaction between counsel and jury members . . . before the re-polling took place." Nevertheless, the two were re-polled, and one of them agreed with the verdict and the other disagreed, bringing the total tally in the second poll to seven jurors in agreement and five in disagreement with the verdict.

¶ 15 The court then decided to re-poll the jury once more. The court re-assembled all twelve jurors and, over objection from both parties, re-polled them. Nine expressed agreement with the verdict and only three expressed disagreement. The court accepted this as a valid poll of the jury, denied Empire's subsequent motion for a new trial and entered judgment in favor of Pumphrey for $3.9 million.

STANDARDS OF REVIEW

¶ 16 We employ an abuse of discretion standard when reviewing a district court's ruling on a request for an IME, pursuant to Rule 35, M.R.Civ.P., Henricksen v. State, 2004 MT 20, ¶ 51, 319 Mont. 307, ¶ 51, 84 P.3d 38, ¶ 51, and when reviewing the sanction a district court imposes for violation of a scheduling order, McKenzie v. Scheeler (1997), 285 Mont. 500, 507, 949 P.2d 1168, 1172. "A court abuses its discretion if it acts arbitrarily without employment of conscientious judgment or exceed[s] the bounds of reason resulting in substantial injustice." McDermott v. Carie, 2005 MT 293, ¶ 10, 329 Mont. 295, ¶ 10, 124 P.3d 168, ¶ 10 (quotations omitted, alteration in original).

¶ 17 We review a district court's conclusions of law to determine whether the district court's interpretation of the law is...