Brown v. Markve

No. 84-397
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
AMIE BROWN, by Darold Brown,
her next friend,
Plaintiff and Respondent,
-vs-
LARRY MARKVE ,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Fallon,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
Montana
For Respondent :
Huntley & Eakin; Gene Huntley, Baker, Montana
Submitted on Briefs: May 9, 1985
Decided: May 23, 1985
Filed:
MHY ." ,/'J&
-
Clerk
Mr. J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n of t h e C o u r t .
D e f e n d a n t a p p e a l s from t h e o r d e r o f t h e S i x t e e n t h J u d i -
cial District, Fallon County, granting a new t r i a l . The
D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e g r o u n d s t h a t t h e
$25,000 jury award t o the plaintiff constituted inadequate
damages. W e reverse t h e D i s t r i c t C o u r t .
The o n l y i s s u e i s w h e t h e r t h e D i s t r i c t C o u r t e r r e d in
g r a n t i n g p l a i n t i f f ' s motion f o r a new t r i a l a f t e r t h e p l a i n -
t i f f had r e c e i v e d a j u r y v e r d i c t o f $ 2 5 , 0 0 0 .
Plaintiff had stopped her vehicle at a stop light in
B a k e r , Montana. H e r s t o p p e d v e h i c l e was s t r u c k from t h e r e a r
by a p i c k u p t r u c k o p e r a t e d by t h e d e f e n d a n t . Prior t o the
commencement of trial, defendant admitted liability for
damages p r o x i m a t e l y c a u s e d by t h e a c c i d e n t . As a result, a
t r i a l was h e l d on t h e i s s u e o f t h e n a t u r e and e x t e n t o f t h e
p l a i n t i f f ' s damages. Following t h e jury t r i a l , a v e r d i c t f o r
$25,000 was returned for the plaintiff. Judgment in that
amount was e n t e r e d . P l a i n t i f f moved f o r a new t r i a l and t h e
D i s t r i c t C o u r t g r a n t e d a new t r i a l on t h e g r o u n d s o f i n a d e -
q u a t e damages and insufficiency of t h e evidence t o j u s t i f y
the verdict.
I n h o l d i n g t h a t t h e v e r d i c t g r a n t e d i n a d e q u a t e damages,
the District Court concluded t h e r e was n o t s u f f i c i e n t e v i -
d e n c e upon which t o b a s e an award o f $25,000. Essentially
t h i s i s no d i f f e r e n t t h a n t h e c o n c l u s i o n t h a t a n e w t r i a l was
granted because of the insufficiency of the evidence to
justify the verdict. The standard t o be a p p l i e d upon t h e
g r a n t i n g o f a new t r i a l and t h e c o n s e q u e n t r e v e r s a l o f a j u r y
v e r d i c t i s s t a t e d i n N e l s o n v . Hartman (Mont. 1 9 8 2 ) , 648 P.2d
1176, 1178, 3 9 St.Rep. 1409, 1412, a s f o l l o w s :
"The D i s t r i c t C o u r t ' s s e c o n d g r o u n d f o r g r a n t i n g
r e s p o n d e n t a new t r i a l was t h a t t h e j u r y v e r d i c t
was c o n t r a r y t o t h e e v i d e n c e . A t r i a l court's
d e n i a l o f a m o t i o n f o r new t r i a l i s g r a n t e d g r e a t e r
d e f e r e n c e t h a n a m o t i o n which h a s t h e e f f e c t o f
nullifying a jury verdict. This Court w i l l n o t
h e s i t a t e t o r e i n s t a t e t h e v e r d i c t which i s s u p p o r t -
ed by s u b s t a n t i a l e v i d e n c e . Beebe v. Johnson
(1974), 1 6 5 Mont. 96, 526 P.2d 128, citing
Campeau v. Lewis ( 1 9 6 5 ) , 1 4 4 Mont. 543, 398 P.2d
960. "
The t e s t t o b e applied i n t h e p r e s e n t c a s e i s whether t h e
verdict of $25,000 is supported by substantial evidence.
I n r e v i e w i n g t h e Memo Opinion and O r d e r o f t h e D i s t r i c t
Court, w e f i n d t h a t t h e d i s t r i c t judge r e f e r r e d t o t h e f a c t
that i n c l o s i n g argument, defense counsel suggested t o t h e
j u r y t h a t "a f a i r v e r d i c t would b e $30,000." The c o u r t t h e n
c o n c l u d e d t h a t t h i s argument t o t h e j u r y had t h e l e g a l e f f e c t
of an a d m i s s i o n a g a i n s t i n t e r e s t which s e t t h e l o w e r l i m i t s
of t h e v e r d i c t a t $30,000. No c i t a t i o n o f l e g a l a u t h o r i t y i s
cited f o r t h a t conclusion. I n addition, t h e conclusion of
t h e t r i a l c o u r t c o n t r a d i c t s i t s own I n s t r u c t i o n No. 1 which
i n p a r t s t a t e d a s follows:
" S t a t e m e n t s o f c o u n s e l a r e n o t t o b e r e g a r d e d by
you a s e v i d e n c e and you w i l l d i s r e g a r d a n y s u c h
s t a t e m e n t s which a r e n o t s u p p o r t e d by t h e e v i d e n c e
r e c e i v e d upon t h i s t r i a l . "
By h i s a r g u m e n t , t h e d e f e n s e c o u n s e l o b v i o u s l y s o u g h t t o
encourage t h e jury t o reach a lower v e r d i c t because o f t h e
presence of an admission o f liability on the part of his
client. However, t h a t suggestion cannot be c l a s s e d a s evi-
dence o r an admission a g a i n s t i n t e r e s t which s e t a f l o o r o f
$30,000 below wh.ich t h e j u r y c o u l d n o t go. The j u r y remained
the finder of fact with the right to set t h e damages at
$25,000 o r s u c h o t h e r f i g u r e a s t h e j u r o r s m i g h t c o n c l u d e t o
be a p p r o p r i a t e under t h e evidence.
We have examined the medical evidence submitted in
behalf of both the plaintiff and the defendant.
Well-qualified medical experts in the field of neurology
testified for both the plaintiff and the defendant. The
e v i d e n c e r e g a r d i n g t h e e x t e n t o f t h e damages and t h e d i s a b i l -
i t y on t h e p a r t o f the plaintiff is sharply contradictory.
As an example, the plaintiff's doctor t e s t i f i e d that there
were p o s i t i v e i n d i c a t i o n s o f a p y r a m i d a l t r a c t d i s t u r b a n c e i n
the plaintiff. T h i s i s claimed t o be a response i n d i c a t i n g
involvement of the great pyramidal motor system somewhere
between the brain and the spinal cord and can indicate a
r a t h e r s e r i o u s problem. In c o n t r a s t , t h e neurologist testi-
f y i n g f o r t h e d e f e n d a n t s t a t e d t h a t t h e r e was a b s o l u t e l y no
s i g n o f any p y r a m i d a l t r a c t d i s t u r b a n c e and t o t a l l y d i s a g r e e d
t h a t t h e r e was a p o s i t i v e B a b i n s k i s i g n which had been ob-
served by the plaintiff's doctor. This type of conflict
appears throughout t h e medical testimony involving t h e n a t u r e
o f t h e i n j u r y t o p l a i n t i f f , and t h e e x t e n t o f h e r d i s a b i l i t y .
Apparently the jury concluded that i n c e r t a i n medical
aspects, t e s t i m o n y s u b m i t t e d i n b e h a l f o f t h e d e f e n d a n t was
more b e l i e v a b l e than t h a t of the plaintiff. T h a t was t h e
function of t h e jury. A s we review t h i s e v i d e n c e s u b m i t t e d
i n b e h a l f o f t h e d e f e n d a n t , we c o n c l u d e t h a t it was c l e a r l y
substantial. The e v i d e n c e which supports the v e r d i c t was
presented by a w e l l - q u a l i f i e d medical doctor, who was ade-
q u a t e l y examined and c r o s s - e x a m i n e d t o e s t a b l i s h t h e conten-
t i o n s on t h e p a r t o f t h e d e f e n d a n t w i t h r e g a r d t o t h e n a t u r e
o f t h e i n j u r y and t h e d e g r e e o f d i s a b i l i t y . W e conclude t h a t
there c l e a r l y was s u b s t a n t i a l c r e d i b l e evidence t o support
t h e v e r d i c t of t h e jury.
We r e v e r s e t h e D i s t r i c t C o u r t and d i r e c t t h a t t h e v e r -
d i c t s h a l l be r e i n s t a t e d and judgment entered i n accordance
with t h e verdict.
We c o n c u r :
,'
+
Justices
Mr. Justice John C. Sheehy, dissenting:
I would affirm the grant of a new trial by the District
Court.
Mr. Justice Wesley Castles, in his dissent in Beebe v.
Johnson (1974), 165 Mont. 96, 116, 526 P.2d 1.28, 138,
complained that "what the rule may now be in this Court's
review of a trial court's order granting a new trial is
highly speculative."
Beebe v. Johnson is the founding case upon which Nelson
v. Hartman (Mont. 1982), 648 P.2d 1176, 39 St.Rep. 1409, is
based. Nelson v. Hartman is the case relied on by the
majority in this case to determine that the grant of a motion
for new trial is not entitled to the deference on appeal that
traditionally is given to a denial of a motion for new trial.
Justice Castles had reason to be concerned. Tn Beebe,
this Court determined,that it would set aside a grant of new
trial if this Court found "there is nothing incredible about
the verdict,'' relying on Campeau v. Lewis (1965), 1-44 Mont.
543, 398 P.2d 960. This Court came to that rule by ignoring
Tigh v. College Park Realty Company (1967), 149 Mont. 358,
427 P.2d 57 and Garrison v. Trolbridge (1947), 119 Mont. 505,
177 P.2d 464; and Brennan v. Mayo (1935), 100 Mont. 439, 50
P.2d 245, where we had established the rule that the trial
court will not be reversed on a grant of new trial except
upon - ma.nifest abuse - discretion.
a of
In Ployhar v. Board of Trustees of Missoula County High
School (involving the same counsel) (19801, 187 Mont. 363,
609 P.2d 1226, this Court reverted to its prior rule:
"The trial court has broad discretion in granting
or refusing to grant a new trial. Its order will
not be disturbed on appeal the absence - -
of a
clear showing - - manifest abuse of discretion.
of a
See Yerkich v. Opsta (1978), 176 ~ r n t . 272, 577
P.2d 857. This Court is especially reluctant to
reverse a.n order granting a new trial because it
gives both parties an equal chance to relitigate
their positions in a second trial. Tigh v. College
Park Realty Company (1967), 149 Mont. 358, 427 P.2d
57. An order granting a new trial will be upheld
if it can be sustained on any of the grounds
contained in the order. Tigh, supra. " 187 Mont.
at 365. (Emphasis added.)
In Nelson v. Hartman, in 1982, we seem to have backed
off again to the position in Beebe, although Nelson v.
Hartman does not really contain any standard for review with
respect to a grant of a new trial. I regret that when I
joined in the opinion in Nelson v. Hartman, I did not
perceive that the opinion could be construed as suggesting a
lesser standard of review than manifest abuse of discretion
in determining the propriety of a district court's order
granting a new trial.
In the federal court system, there is no appeal from the
order of a federal district court granting a new trial. The
federal theory is that since the issues will be relitigated
in the new trial, no party is aggrieved until a final-
judgment is entered. We do not, therefore, have from the
federal system a body of law to which we could advert to
determine a generally-accepted rule for review in this
jurisdiction where an appeal is allowed from a grant of new
trial.
In every other instance, we give deference to the orders
and decisions of a d.istrict court in the course of a trial.
Its ruling on evidence will generally be sustained; its
decisions as to whether jurors should be excused, where venue
should lie, whether issues will be tried at once or
separately, are regarded with respect on appeal. In a bench
trial, its findings of fact will not be set aside unless they
are "clearly erroneous." There is no logical reason to say
that in this one instance, the district judge's decision must
give way if there is "substantial" evidence, an ephemeral
term at best.
If we are to abandon the rule of review requiring
"manifest abuse of discretion" in this type of appeal, we
should still place the burden upon the appellant to take the
laboring oar where a new trial grant is appealed. At least
the rule should be that in an appeal from an order granting a
new trial the appellant must affirmatively establish that the
reasons stated in the order for a new trial do not justify a
new trial. See Santanello v. Cooper (Ariz . 1970) , 475 P.2d
246, 248. It offends my view of appropriate appellate
procedure that the respondent, under the view here, must
affirmatively justify the District Court's order and not the
appellant. That is really the effect of this decision.
A further reason that we should determine an appropriate
standard of review in this type of case is the example we get
from this case itself. The majority have turned themsel-ves
into fact-finders, weighing medical evidence, and, as I will
suggest, weighing it inadequately.
As the District Court pointed out in its memorandum and
order granting the new trial, the $25,000 verdict here
included $13,000 in special damages, which were uncontested
by the defendant. That means that the jury awarded the
meager sum of $12,000 for pain and suffering (past and
future), loss of ability to lead a normal life, and possible
loss of earning capacity.
I think the jury totally rejected the testimony of
defendant's medical witness, Dr. Smith. Let me explain why.
Amie called on her behalf Dr. Keilman, a chiropractor
from Glendive, Montana. Amie had been his patient from
August 23, 1980. She had stiffness of the lower back,
thoracic cervical tension, nervousness and an elbow problem.
He saw her several times between 1980 and February 9, 1981.
He stated that on her last visit to him she described her
health as "fantastic" and that as far as he was concerned,
she had recovered full health in February of 1981.
Amie's accident occurred on February 22, 1981. On
February 23, 1981, she again came to his office complaining
of severe head pain and tired neck. She related those
complaints immediately to the injury sustained in the
collision, where she was rammed from behind by the truck.
Dr. Keilman testified that in the nine years that he had been
practicing, she was probably the most severely injured
patient he had ever had in his office. She was hurting to
the point that she could no longer support her head with her
own muscles. She was holding her head with her hands because
her neck was too tender and too sore. His x-rays revealed
that Amie had a loss of lordotic curvature, i n other words,
.
her neck spine had straightened out instead of presenting the
normal curve. His diagnosis was her neck was sprained with
constant pain, and laceration of the entire "spacious"
ligaments in the area of C-1 to C-5.
Amie's second medical witness was Dr. Richard Nelson of
Billings, a specialist in neurology. He described neurology
as that branch of medicine that studies the normalities and
abnormalities of the nervous system, including the anatomy
and physical functions of the brain and spinal cord and their
rel-ation to all the nerves and organs of the body system. In
his physical examination of Amie, on March 22, 1983, 13
months following the accident, he found a Babinski response
from which eventually he determined that Amie had a cervical
sprain which affected the pyramidal motor system somewhere
between her brain and her spinal cord, and also a possible
thoracic syndrome. To eliminate other causes, he had. CAT
scans taken, to remove the possibility of subdural hematoma
and cervical spine degeneration, and other tests to exclude
multiple sclerosis as a possible cause of her difficulty. He
also caused thermograms to be taken which he testified
confirmed his diagnosis. He further indicated that Arnie's
condition was chronic, that he could not predict at what
point in time she would find relief from her pain. At trial,
he demonstrated a Babinski response by conducting the test on
Amie before the jury.
Dr. Maurice Camp Smith, a Billings neurological surgeon,
testified by deposition, on behalf of the defendant. Dr.
Smith found. no Babinski response, and ridiculed what Dr.
Nelson found, saying:
". . . She told me that Dr. Nelson had said that
she had a Babinski response. Now this is a
pathologic response indicating involvement of the
great pyramidal motor system somewhere between the
brain and. the spinal cord, and it was rather--would
indicate a rather serious problem, so I think what
had happened that he called this a Babinski on the
extension of the toe but must have failed to
continue the plantar stimulation and realize that
the toes all flex normally and this was perfectly
normal . . ."
Dr. Smith found no sensory diminution in Amie and he
reviewed the x-rays and the CAT scans of the brain and neck.
His determination was that she had symptoms of a tension
headache, that she had no abnormal neurological findings, no
x-ray findings that were abnormal, and no abnormal findings
in the CAT scan of her brain. He felt that she had a.
flexion-extension injury a.t the time of the accident, causing
a sprained neck. He woulc? not agree that any symptoms
existed beyond six weeks that could be attributed to the
accident.
His cross-examination is more revealing. Dr. Smith
demeaned the testimony of Dr. Keilman, the chiropractor:
"Q. Well, one of the things you said you read was
Dr. Keilman's deposition. A. He is not a
physician.
"Q. What is he? A. A chiropractor.
"Q. All right, he's a, a--he treats people
medically. A. No, he doesn't. He treats by
chiropractic means.
"A. Even if he were a physician, and even if then
he were a specialist in a -- this particular field,
even specialists in the same field can have
marketedly different opinions. I would just say it
was a difference of opinion and in this opinion it
is a difference of opinion without the -- the
expertise that I have."
Dr. Smith further testified that he attached no
significance to the loss of lordotic curvature found by Dr.
Keilman. He intimated indirectly that Dr. Nelson did not
know how to conduct a Rabinski test, since Dr. Nelson was a
neurologist, and he, Smith, was a neurosurgeon. He
discounted any medical authority cited to him, saying:
"9. Well, here's another. A. Proving my point
that you can get any article to support any point
you want.
"Q. I want to ask you something about that,
doctor. When you go to -- to school you read
books, don't you? A. Sure.
"(2. And don't you rely upon them for your practice
of medicine. A. Never.
"Q. You don't? No.
"Q. And don't your -- the people that teach you
and your other experts, don't they write books? A.
Sure.
"Q. But you don't rely on them? A. Never. The
purpose of a medical education is to learn to sort
out the Literature so that you can rely on some
things, you can use some things to help you, but
your total -- what you rely on is your knowledge of
the anatomy, the physiology, a knowledge of
pathology, of what happens, and you don't learn
that in books. In fact, you don't learn medicine
in books or articles.
'Q. And you don't apparently practice medicine
from books. A. No I don't.
"Q. There is a vast literature that has grown up
in the medical field, don't you pursue any of that?
A. Of course I do. I take it all into advisement,
but I never rely solely upon any article. To do so
would be absolutely foolhearty.
"(2. And you don't recognize any article as being
authoritative? A. Well, of course not.''
Thus if the world disagreed with Dr. Smith, the world
was wrong and he was right.
At the risk of being called a fact-finder myself, I
think the jury rejected the testimony of Dr. Smith, but I am
positive that the court rejected it. For that reason, the
District Court, viewing the remaining testimony of the
medica.1 witnesses for Amie Brown and her own testimony,
determined that a $12,000 award for her pain, suffering and
other damages, past and future, was inadequate as a matter of
law. I agree.
Counsel for the defendant must also have agreed when he
suggested to the jury that $30,000 was a fair, proportionate
award. Counsel for the defendant was not in the business of
giving away his client's money.
The only effect of a district court's motion to grant a
new trial is to have another jury take a look at the case. A
fear seems to be developing in this Court that juries are not
to be trusted in the matter of damages. (See for example,
Weber v. Blue Cross of Montana (Mont. 1982), 643 ~ . 2 d
198, 39
St.R.ep. 245.) I trust we are not about to revert to the
philosophy of 20 years ago expressed in the O'Brien cases, an
e r a of d e c i s i o n s t h a t b r o u g h t a b o u t s o much d i s c r e d i t t o t h i s
C o u r t among members of t h e Bar. O'Brien v. Great Northern
Railway ( 1 9 6 6 ) , 148 Mont. 429, 4 2 1 P.2d 710; ( 1 9 6 5 ) 1 4 5 Mont.
+ ;XL? 6.
Justice
I concur i n t h e f o r e g o i n g d i s s e n t .