Siebken v. Voderberg

• Decision Date: 13 October 2015
• Docket Number: No. DA 14–0727.,DA 14–0727.
• Citation: 381 Mont. 256,2015 MT 296,359 P.3d 1073
• Parties: Richard SIEBKEN, Plaintiff and Appellant, v. Henry VODERBERG, Defendant and Appellee.
• Court: Montana Supreme Court

381 Mont. 256

359 P.3d 1073

2015 MT 296

Richard SIEBKEN, Plaintiff and Appellant

v.Henry VODERBERG, Defendant and Appellee.

No. DA 14–0727.

Supreme Court of Montana.

Submitted on Briefs Aug. 19, 2015.

Decided Oct. 13, 2015.

For Appellant: Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana.

For Appellee: Gary L. Walton, Walton & Luwe, Butte, Montana.

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Richard Siebken appeals a jury verdict and judgment rendered in favor of Henry Voderberg in the First Judicial District Court, Lewis and Clark County. We restate the issues on appeal as follows:

1. Whether Siebken is entitled to a new trial because the District Court allowed into evidence a letter from Dr. Speth to Dr. Sorini regarding Siebken's medical history and diagnosis.

2. Whether Siebken is entitled to a new trial because the District Court erroneously instructed the jury on the statute of limitations governing Siebken's claim.

3. Whether substantial evidence supported the jury verdict.

¶ 2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 This matter has been before this Court on a previous occasion. Siebken v. Voderberg, 2012 MT 291, 367 Mont. 344, 291 P.3d 572 (hereinafter Siebken I ). In Siebken I, this Court reversed the District Court's conclusion on summary judgment that the statute of limitations barred the action. On remand, the primary factual dispute at trial was when the three-year statute of limitations began running on Siebken's negligence claim. Because the background facts are delineated in Siebken I, we restate the facts only briefly.

¶ 4 Siebken was on duty as an officer at the Federal Reserve Bank in Helena, Montana on December 11, 2004, when he had a physical altercation with Voderberg. Voderberg was trespassing across Bank property on his way home from an evening with friends and refused to cooperate with Siebken's commands. Siebken and other officers forcibly handcuffed Voderberg. Siebken claims that the incident resulted in a spinal injury, leaving him permanently and totally disabled and unable to work. Siebken filed his complaint for damages against Voderberg on March 18, 2009.

¶ 5 At trial, Siebken testified that he had a headache immediately following the incident, which he attributed to exertion from the struggle. Later, Siebken began experiencing back pain. Between February and May 2005, Siebken saw physicians at Mountain View Medical Clinic several times for treatment. In July 2005, Siebken first consulted with Dr. Peter Sorini, a neurosurgeon in Anaconda, Montana. Siebken told Dr. Sorini his lower back pain began in December 2004. Dr. Sorini ordered an MRI, the results of which were discussed during an August 18, 2005 appointment. The results showed that Siebken's lower back pain resulted from compression of the spinal cord

by the vertebrae in his neck.

¶ 6 Siebken's wife Valerie accompanied him to both the July and August 2005 appointments. Valerie testified that she, Dr. Sorini, and Siebken discussed possible causes of the neck injury during the August 2005 appointment. Valerie testified that she brought up the December 2004 altercation because she thought “there was no other possibility of anything that would be considered traumatic enough for that kind of an injury.”

¶ 7 Dr. Sorini referred Siebken to Dr. Steven Speth for a second opinion regarding surgical options. Dr. Speth concurred with Dr. Sorini's recommendation for surgery and, in a September 8, 2005 letter to Dr. Sorini, stated, “In January/February [Siebken] was involved in an altercation at the bank which exacerbated his neck pain.” On September 19, 2005, Siebken returned to Dr. Sorini for a pre-surgery consultation. The record for this visit similarly referenced a January 2005 incident. Dr. Sorini testified by deposition that by September 2005, he had concluded that Siebken's neck issues were caused by an incident in December 2004 and any reference to a January 2005 incident was a typographical error.

¶ 8 Dr. Sorini performed surgery on Siebken's neck in October 2005. Siebken testified that it was not until a post-surgery follow-up appointment on May 26, 2006, that he first learned from Dr. Sorini a causal connection between the December altercation and his neck injury, and the need to seek legal counsel.

¶ 9 The jury returned a defense verdict after finding that Siebken's claims were barred by the statute of limitations. The District Court entered judgment in favor of Voderberg on October 30, 2014.

STANDARDS OF REVIEW

¶ 10 We review a district court's decisions regarding jury instructions and evidentiary rulings for an abuse of discretion. Ammondson v. Nw. Corp., 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1 ; City of Missoula v. Duane, 2015 MT 232, ¶ 10, 380 Mont. 290, 355 P.3d 729.

¶ 11 We generally do not consider issues raised for the first time on appeal. Dambrowski v. Champion Int'l Corp., 2000 MT 149, ¶ 29, 300 Mont. 76, 3 P.3d 617 (citation omitted). This rule “applies to both substantive and procedural matters, as well as to a change in a party's theory of the case.” Hansen Trust v. Ward, 2015 MT 131, ¶ 19, 379 Mont. 161, 349 P.3d 500 (quoting Day v. Payne, 280 Mont. 273, 276, 929 P.2d 864, 866 (1996) ). We will not review a claimed error in a jury instruction absent a specific objection before the trial court. Nott v. Booke, 194 Mont. 251, 255, 633 P.2d 678, 680 (1981).

¶ 12 We uphold a jury's verdict against a challenge to the sufficiency of the evidence if, viewing the evidence in a light most favorable to the prevailing party, there is substantial evidence to support the fact-finder's determination. Murray v. Whitcraft, 2012 MT 298, ¶ 7, 367 Mont. 364, 291 P.3d 587. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion, even if weak and conflicting. Teton Coop. Reservoir Co. v. Farmers Coop. Canal Co., 2015 MT 208, ¶ 16, 380 Mont. 146, 354 P.3d 579.

DISCUSSION

¶ 13 1. Whether Siebken is entitled to a new trial because the District Court allowed into evidence a letter from Dr. Speth to Dr. Sorini regarding Siebken's medical history and diagnosis.

¶ 14 The September 8, 2005 letter from Dr. Speth to Dr. Sorini included the following statement: “In January/February [Siebken] was involved in an altercation at the bank which exacerbated his neck pain.” On appeal, Siebken argues that the District Court erred in admitting the letter without a showing of authenticity or foundation and without an appropriate hearsay exception.

¶ 15 Neither Dr. Speth nor Dr. Sorini testified in person at trial, but both appeared by deposition. Siebken objected to portions of Dr. Speth's and Dr. Sorini's depositions on authenticity, hearsay, and foundation grounds. The District Court overruled Siebken's foundation and authenticity objection to the Speth letter on the basis that he made no contemporaneous objection during the deposition. Siebken's trial objection to the letter did not include a hearsay objection.

Foundation & Authenticity

¶ 16 Siebken did not object to the foundation or authenticity of the letter during Dr. Speth's deposition. Siebken waited until the morning of trial and during trial to object to the letter on those grounds. The District Court overruled Siebken's objections, ruling that because there was no objection to the foundation or authenticity of the letter at the deposition, the letter would be admitted.

¶ 17 M. R. Civ. P. 32 governs the use of depositions in court proceedings and addresses a party's waiver of objections. M. R. Civ. P. 32(b) provides that “an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying.” Rule 32(b) is subject to several exceptions set forth in subsection (d), under which objections may be deemed waived. Rule 32(d)(3)(A) provides that a party does not waive an objection “to a deponent's competence—or to the competence, relevance, or materiality of testimony ... by [failing] to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. ” (emphasis added). The principle underlying this exception “is to require defects in the taking of depositions to be pointed out promptly on pain of waiver ... [in order] to give the erring party an opportunity to correct the mistake, and to prevent waste of time and money....” Olson v. Shumaker Trucking & Excavating Contrs., Inc., 2008 MT 378, ¶ 44, 347 Mont. 1, 196 P.3d 1265 (quoting Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure Ch. 6, § 2153 (2d ed.1994) ). If a foundational objection could have been corrected during a deposition, it is waived at trial by failing to bring it contemporaneously with the deposition. Olson, ¶¶ 43–44.

¶ 18 In this case, Siebken waived any subsequent foundational or authenticity objections to the letter when he failed to object to it on those grounds during the depositions. Both Dr. Speth and Dr. Sorini were questioned about the letter during their depositions. Issues related to the authenticity and foundation of the letter and whether it was written, sent, and received “might have been corrected” during the doctors' depositions. The depositions reveal in any event the letter's authenticity and foundation. Dr. Speth had the letter in his medical records, identified it, and was questioned extensively about it during his deposition. At his deposition, Dr. Sorini also was shown and questioned about the letter and confirmed that he had indeed received it from Dr. Speth. Therefore, the District Court did not abuse its discretion when it overruled Siebken's foundation and authenticity objections.

Hearsay

¶ 19 Voderberg argues that Siebken did not preserve his hearsay objection because he failed to object on that basis at trial. M. R. Evid. 103(a)(1) provides that error may not be predicated on the admission of evidence unless the objection was timely and states the grounds for...