Reese v. Stanton

• Decision Date: 13 October 2015
• Docket Number: No. DA 14–0791.,DA 14–0791.
• Citation: Reese v. Stanton, 2015 MT 293, 381 Mont. 241, 358 P.3d 208 (Mont. 2015)
• Parties: Robin REESE, Plaintiff and Appellant, v. Betty Roseann STANTON and Harlow's School Bus Service, Inc. of Montana, a Montana Corporation, Defendants and Appellees.
• Court: Montana Supreme Court

381 Mont. 241

358 P.3d 208

2015 MT 293

Robin REESE, Plaintiff and Appellant

v.Betty Roseann STANTON and Harlow's School Bus Service, Inc. of Montana, a Montana Corporation, Defendants and Appellees.

No. DA 14–0791.

Supreme Court of Montana.

Submitted on Briefs Aug. 19, 2015.

Decided Oct. 13, 2015.

For Appellant: Angela Jacobs Persicke, Hammer, Jacobs & Quinn, PLLC; Kalispell, Montana, Michael A. Viscomi, Viscomi & Gersh, PLLP; Whitefish, Montana.

For Appellees: Patrick M. Sullivan, Poore, Roth, & Robinson, PC; Butte, Montana.

Opinion

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Robin Reese (Reese) appeals from the denial of Reese's motion for a new trial by the Eleventh Judicial District Court, Flathead County. We affirm in part, reverse in part, and remand for a new trial.

¶ 2 We address the following issues on appeal:

1. Did the District Court abuse its discretion when it admitted into evidence the opinions and reports of doctors who did not testify at trial?

2. Did the District Court abuse its discretion when it excluded evidence of the original charges billed by medical providers?

3. Did the District Court abuse its discretion when it struck portions of a video deposition as previously undisclosed expert opinion?

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On November 13, 2009, Reese, while in the course of her employment with Montana Coffee Traders, Inc., was a passenger in a van that was struck by a bus owned by Harlow's School Bus Service (HSBS). As a result of the accident, Reese suffered injuries.

¶ 4 Reese filed a Workers' Compensation claim. Reese's Workers' Compensation claim was managed by Mary Jane Barrett, a nurse. Barrett's management of the claim involved several inquiries. First, the claim was referred to Rod Wallette, a vocational rehabilitation expert, to conduct a job analysis to determine the demands of Reese's current job. Wallette's report determined that Reese's job at Montana Coffee Traders was a medium-duty job. Next, Reese's physical condition was evaluated by an Independent Medical Panel (Wellcare Panel), which consisted of Drs. Wilson, Vincent, and Heidi. Then, Reese was evaluated by Dr. Stratford, a psychiatrist. The Wellcare Panel's evaluation and report on Reese's condition opined that Reese could return to her time-of-injury job at Montana Coffee Traders. Dr. Stratford opined that nothing prohibited Reese from returning to work. Barrett prepared a closure report, concluding Reese was under no work restrictions. As a result, Workers' Compensation discontinued payments to Reese.

¶ 5 In July 2012, Reese filed suit against HSBS for accident-related injuries and sought medical payments, lost wages, and loss of earning capacity damages. The District Court granted Reese partial summary judgment on the issue of liability, and ordered that the issues of causation and damages would be determined at trial.

¶ 6 Reese retained Anne Arrington as a vocational rehabilitation expert. Arrington opined that Reese could not return to her job at Montana Coffee Traders, and as a result, would have a permanent loss of earning capacity because she would have to be employed in a light duty or sedentary job. Arrington's report stated that she had reviewed the Wellcare Panel's report, Dr. Stratford's report, Barrett's report, and Wallette's reports, along with numerous other documents, as part of her review. At her deposition, Arrington stated she had relied on the medical records identified in her report, including the Wellcare Panel's report and Dr. Stratford's report, in forming her opinion.

¶ 7 HSBS retained Dr. Righetti as a medical causation expert. Dr. Righetti opined that Reese suffered no permanent injuries from the accident. Dr. Righetti relied, in part, on the reports of the Wellcare Panel and Dr. Stratford. The contents of Dr. Stratford's report was referenced and quoted throughout Dr. Righetti's report.

¶ 8 Several months before trial, Reese filed a motion in limine seeking to exclude (1) evidence that some of her medical expenses had been paid by insurance carriers; (2) the Wellcare Panel report; (3) Dr. Stratford's report; (4) Wallette's reports; and (5) Barrett's report. With regard to the reports, Reese argued that unless the authors were called to testify at trial, the reports lacked foundation and were inadmissible hearsay. HSBS did not oppose Reese's motion with respect to evidence that insurance carriers paid some of her medical expenses, but did oppose Reese's motion with respect to the reports. HSBS argued that it was entitled to cross-examine Arrington on the reports because she had reviewed them prior to preparing her report, and had relied upon them in forming her opinion. The District Court granted Reese's motion with respect to evidence that insurance carriers paid some of her medical expenses. Regarding the reports, the court denied the motion, but stated “either the parties stipulate to the foundation of exhibits before trial or a foundation must be laid for each exhibit before it can be introduced into evidence” and that “[a] ruling on whether a foundation has been laid for the documents Plaintiff seeks to exclude would be premature....”

¶ 9 Reese was unclear about the effect of the order, so the District Court received further argument on the issue. Reese stated her concern was that HSBS would introduce the opinions of the Wellcare Panel, Dr. Stratford, Wallette, and Barrett through its cross-examination of Arrington, instead of calling the authors to testify to their opinions and be subject to cross-examination themselves. Reese argued that HSBS could not use Arrington as a conduit for other experts' testimony without violating the rules against hearsay, and that admitting their reports without the authors' testimony would violate the rules against hearsay and authentication.

¶ 10 HSBS countered that Arrington had acknowledged that she reviewed and relied upon the reports in formulating her own opinion, and that HSBS had a right to cross-examine her on the basis for her opinion. When the District Court asked HSBS whether it was attempting to admit the reports as exhibits, or merely cross-examine Arrington in regard to the reports, HSBS replied that, depending on the testimony, it might seek to admit the reports.

¶ 11 The District Court again denied Reese's motion in limine, holding that Arrington acknowledged reviewing and relying upon the reports in preparing her opinion, and that HSBS had a right to cross-examine Arrington about the basis of her opinion. The District Court did not specify whether HSBS's use of the reports was limited to cross-examining Arrington on the basis for her opinion, or whether HSBS could also introduce the reports themselves as exhibits.

¶ 12 HSBS filed a motion in limine to preclude Reese from introducing the original amount charged by her medical providers, $107,970.38, as evidence of the reasonable value of her medical expenses. HSBS argued that the amount the medical providers actually accepted as payment, $92,486.16, was the proper measure of the medical expenses. The District Court granted the motion, allowing Reese to introduce the amount of $92,486.16 as evidence of the reasonable value of her medical expenses.

¶ 13 At trial, in view of the District Court's ruling that HSBS could cross-examine Arrington on the reports, Reese questioned Arrington about the involvement of the Wellcare Panel, Dr. Stratford, Wallette, and Barrett. Arrington testified generally about Barrett's job as the case manager and what that entailed. Similarly, Arrington testified generally about Wallette's job as a vocational rehabilitation expert and the job analysis he performed for Reese's Workers' Compensation claim. Then, Arrington briefly testified regarding the findings of the Wellcare Panel and Dr. Stratford, stating that “they felt that she would be able to continue to do sales work” and “the doctors themselves had said that she could continue to work in that job.”

¶ 14 During cross-examination, HSBS directed Arrington to follow along as HSBS's counsel read aloud the contents of Wallette's reports, stopping occasionally to ask Arrington to confirm that HSBS was reading the reports correctly. HSBS questioned Arrington on the Wellcare Panel's report, asking Arrington several times to confirm that the Wellcare Panel's report concluded Reese could return to her job at Montana Coffee Traders. HSBS asked Arrington to confirm that Barrett had agreed with the Wellcare Panel's report, and that Barrett's report stated that two other doctors who had seen Reese, Dr. Burns and Dr. Ericksen, likewise agreed with the Wellcare Panel's report. HSBS did not specifically cross-examine Arrington concerning Dr. Stratford's report. Near the end of the trial, HSBS moved for admission of Barrett's report, Wallette's reports, and the Wellcare Panel's report. Reese stipulated to the admission of Barrett's and Wallette's reports, and the Wellcare Panel report was admitted over Reese's objection. Dr. Stratford's report was not admitted, although the report of HSBS's expert, Dr. Righetti, which was later admitted, contained numerous references and quotations to Dr. Stratford's report.

¶ 15 The videotaped deposition of Dr. DuMontier, who was one of Reese's treating physicians, was played for the jury. In his final report, Dr. DuMontier opined that a permanent injury to Reese was caused by the accident. Reese's expert disclosure provided that Dr. DuMontier would testify consistent with his final report. Sometime after Reese disclosed this, Reese provided Dr. DuMontier with additional medical records that pre-dated the accident. Then, during the deposition, Reese questioned Dr. DuMontier on the additional medical records. Dr. DuMontier testified his opinion remained unchanged after reviewing the additional pre-accident medical records, stating “My assessment is as I presented in [his final report].” HSBS objected to the testimony concerning the additional medical records on the basis it was undisclosed...