Carolyn McCormack v. Andrea Andres

May 28 2008
DA 07-0050
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 182CAROLYN MCCORMACK,
Plaintiff and Appellee,
v.
ANDREA ANDRES,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 05-569
Honorable Holly Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lyman H. Bennett, III, Attorney at Law, Bozeman, Montana
William Conklin, Conklin, Nybo & Lanning, Great Falls, Montana
For Appellee:
Michael E. Wheat and Travis W. Kinzler, Cok, Wheat & Kinzler, Bozeman,
Montana
Submitted on Briefs: February 6, 2008
Decided: May 28, 2008
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Andrea Andres (Andres) appeals from orders of the Eighteenth Judicial District Court,
Gallatin County, granting motions in limine filed by Carolyn McCormack (McCormack) to
exclude certain testimony and documentary evidence at trial. She also appeals the District
Court’s failure to continue the trial and the court’s admission of certain evidence concerning
McCormack’s medical expenses. We affirm.
¶2 We review the following issues on appeal:
¶3 Did the District Court abuse its discretion when it prevented Andres from cross-
examining McCormack and her medical providers about McCormack’s previous injuries and
impairment ratings?
¶4 Did the District Court abuse its discretion when it prevented Andres from soliciting
statements made by McCormack’s orthopedic physician concerning McCormack’s brain
injury?
¶5 Did the District Court abuse its discretion when it did not continue the trial date?
¶6 Did the District Court abuse its discretion by admitting into evidence McCormack’s
summary of medical expenses?
FACTUAL AND PROCEDURAL BACKGROUND
¶7 Andres’s Ford F-350 pickup collided with McCormack’s Chevrolet Corsica on the
stretch of Interstate 90 (I-90) that lies between Belgrade and Bozeman. McCormack had
slowed her vehicle to approximately 55 miles per hour as she passed a vehicle fire on the
shoulder of I-90. Andres’s pickup struck McCormack’s vehicle while traveling at
approximately 75 miles per hour. Andres’s pickup crushed the back end of McCormack’s
car and completely eliminated the rear passenger compartment. Andres admitted that her
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negligence caused the collision. McCormack sustained injuries to her brain, neck, and back
as a result of the collision.
¶8 Andres deposed McCormack in December of 2005. McCormack revealed that in
1993 she had sustained a whiplash injury in a car accident. McCormack said that she had
applied for Social Security disability compensation following the 1993 car accident.
McCormack also informed Andres that she had injured her neck and upper back while lifting
a computer at work in 1996. McCormack had filed a worker’s compensation claim for the
1996 work injury. McCormack further revealed that she had sustained head, neck, and back
injuries in a car accident in 1999. Andres requested the medical records, attorney’s files, and
settlement documents related to McCormack’s prior incidents in January of 2006.
¶9 The District Court ordered the parties to complete discovery by September 1, 2006.
Andres deposed Dr. Sherry Reid, a neurologist treating McCormack, in January of 2006.
Andres deposed McCormack’s orthopedic physician, Dr. John Vallin, in May of 2006. Dr.
Vallin made several statements concerning McCormack’s brain injury in response to
questions posed by Andres’s counsel. McCormack’s counsel later asked if Dr. Vallin had
treated McCormack “for her back pain and not her head injury; is that correct?” Dr. Vallin
responded, “That’s correct.”
¶10 Andres deposed Dr. Jeff Cory, a neuropsychologist treating McCormack, in July of
2006. Dr. Cory testified that he had discussed with McCormack her 1993 car accident in
assessing her current brain injury. He stated that the 1993 incident did not affect his
diagnosis. Andres’s counsel asked Dr. Cory whether McCormack had informed him of her
involvement in the 1999 car accident. Dr. Cory responded that McCormack had not told him
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of the accident. Andres’s counsel then asked if that would “have been a significant history
for you to consider . . . ?” Dr. Cory responded “Yes.”
¶11 McCormack provided the medical records relating to her 1999 car accident in March
of 2006. McCormack provided records pertaining to her 1993 car accident, her application
and denial for Social Security disability compensation, and her 1996 work injury on August
31, 2006--one day before the close of discovery.
¶12 The documents provided by McCormack on the last day of discovery included a
medical report issued by Dr. Bruce Johnson (the Johnson Report) concerning her 1996 work
injury. The Johnson Report concluded that McCormack had suffered a permanent
neurologic impairment of 30% of her normal total function. The Johnson Report also stated
that McCormack had suffered a permanent psychiatric impairment of 22.5% of her normal
total function.
¶13 McCormack filed a motion in limine to preclude Andres from presenting at trial
certain statements regarding her brain injury, as well as evidence relating to her 1993 car
accident and 1996 work injury. The District Court responded with an order prohibiting
Andres from soliciting testimony from McCormack’s orthopedic physician regarding
McCormack’s brain injury. The District Court’s order also precluded Andres from
introducing evidence relating to McCormack’s 1993 car accident, her corresponding Social
Security disability claim, and her 1996 work injury and corresponding worker’s
compensation claim. Andres filed a motion for reconsideration of the court’s order granting
McCormack’s motion in limine.
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¶14 The District Court held a hearing approximately two weeks before trial on Andres’s
motion for reconsideration. Andres asserted at the hearing that she did not receive the
Johnson Report until after she had deposed Dr. Cory and Dr. Reid. The court asked
Andres’s counsel how he would hope to proceed in light of these circumstances. Andres’s
counsel said that he “would be glad if the Court were to vacate trial and I would be glad to
travel . . . .” The court stated “Well, I don’t want to vacate the trial. Can you fit it in?”
Andres’s counsel then asserted that he would have tried to depose Dr. Johnson if he had
received the Johnson Report with more time. He stated, “But with the close of discovery the
day after, and probably the day I received [the Johnson Report], my hands were tied as far as
that. So I said, fine, I will live with that. I’ll just cross-examine Dr. Cory, Dr. Reid, or any
of the other experts saying, how would this--would this affect your opinion . . . .”
¶15 Andres also argued at the hearing on the motion for reconsideration that the District
Court should allow her to question Margot Hart (Hart), McCormack’s vocational expert,
about statements made by McCormack’s orthopedic physician, Dr. Vallin, regarding
McCormack’s brain injury. Hart had conducted a rehabilitation assessment and had made a
life care plan for McCormack. Hart filed an addendum to the assessment after Andres had
taken Hart’s deposition. The addendum referenced Dr. Vallin and included statements that
he had made concerning McCormack’s brain injury.
¶16 The District Court agreed at the hearing on the motion for reconsideration to reopen
discovery for the limited purpose of determining whether the Johnson Report would have
had any effect on the diagnoses or opinions of Dr. Cory or Dr. Reid. The District Court also
agreed that Andres could cross-examine Hart about McCormack’s brain injury if Hart “opens
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the door to either [Dr. Vallin’s] correspondence or any opinion that she may have attributed
to [Dr. Vallin] in regard to the brain injury . . .” during direct examination.
¶17 Andres deposed Dr. Cory a second time after the hearing on the motion for
reconsideration. Andres’s counsel asked Dr. Cory if the permanent impairment ratings from
the Johnson Report indicated that McCormack’s symptoms from the 1996 injury “would
continue being an impairment for the rest of Ms. McCormack’s life . . . ?” Dr. Cory stated
that he “would disagree with that . . . [and] if you read the Diagnostic and Statistical Manual
of Mental Disorders No. IV, you won’t find . . . that either of these disorders are lifelong or
permanent by nature . . . .”
¶18 Andres also deposed Dr. Reid a second time after the hearing on the motion for
reconsideration. Andres’s counsel confirmed that McCormack previously had failed to
inform Dr. Reid of having suffered the symptoms listed in the Johnson Report at any time
before the most recent accident. Andres’s counsel asked Dr. Reid if such a history “is
important for you not only for treatment but in formulating an opinion or diagnosis [as to]
what was causing those symptoms?” Dr. Reid responded that “It would be important to
know that.” McCormack’s counsel asked Dr. Reid if there is “anything in [the Johnson
Report] that would change any of your opinions . . . ?” Dr. Reid responded “No.”
¶19 The District Court issued an order the day before trial denying Andres’s motion for
reconsideration. The court also granted a motion filed one day earlier by McCormack to
preclude evidence at trial regarding the 1999 car accident. The case proceeded to trial.
¶20 McCormack testified at trial. McCormack identified a one-page document as a
summary of all of her medical expenses up to the date of trial related to the recent car
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accident. Andres objected. Andres asserted that McCormack could not testify to the
necessity and reasonableness of the expenses. Andres argued that McCormack’s medical
providers had to establish the necessary foundation for admitting the summary. The court
overruled the objection and admitted the summary into evidence.
¶21 The jury awarded McCormack $361,684 in compensatory damages. Andres appeals
the District Court’s orders granting McCormack’s motions in limine. Andres also appeals
the District Court’s failure to continue the date of trial and the court’s admission of the
medical expense summary.
STANDARD OF REVIEW
¶22 District courts possess broad discretion when determining the admissibility of
evidence. Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, ¶ 65, 154 P.3d 561, ¶ 65. A
court may exclude relevant evidence if the danger of unfair prejudice, confusion of the
issues, needless presentation of cumulative evidence, waste of time, undue delay, or
misleading of the jury substantially outweighs the evidence’s probative value. Henricksen v.
State, 2004 MT 20, ¶ 64, 319 Mont. 307, ¶ 64, 84 P.3d 38, ¶ 64. We review a district court’s
evidentiary rulings for an abuse of discretion. Seltzer, ¶ 65. A district court abuses its
discretion when it acts arbitrarily without employment of conscientious judgment or so
exceeds the bounds of reason as to work a substantial injustice. Peterson v. Doctors’ Co.,
2007 MT 264, ¶ 31, 339 Mont. 354, ¶ 31, 170 P.3d 459, ¶ 31.
¶23 We review a district court’s decision to continue a trial for an abuse of discretion.
State v. Ibarra-Salas, 2007 MT 173, ¶ 13, 338 Mont. 191, ¶ 13, 164 P.3d 898, ¶ 13. We will
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not overturn a court’s decision to deny a motion for a continuance absent a showing of both
an abuse of discretion and prejudice to the complaining party. Ibarra-Salas, ¶ 13.
DISCUSSION
ISSUE ONE
¶24 Did the District Court abuse its discretion when it prevented Andres from cross-
examining McCormack and her medical providers about McCormack’s previous injuries and
impairment ratings?
¶25 Andres asserts that the District Court should have allowed her to cross-examine
McCormack and her medical providers about the injuries that McCormack previously had
suffered from the car accidents in 1993 and 1999 and the work related incident in 1996.
Andres also faults the District Court for precluding evidence that McCormack had submitted
a claim for Social Security disability benefits as a result of the 1993 car accident. Andres
argues that the jury would have apportioned the damages for the injuries stemming from this
accident after learning of McCormack’s previous injuries.
¶26 A defendant must establish a “more probable than not causal link . . .” before a court
will allow it to present alternate causation evidence. Henricksen, ¶ 70. The party seeking to
introduce alternate causation evidence must demonstrate a causal connection between the
present symptoms complained of and a prior accident. Henricksen, ¶ 70. Mere speculation
constitutes an insufficient basis for admitting alternate causation evidence. Henricksen, ¶ 63.
¶27 The District Court determined that Andres had failed to present any evidence
connecting McCormack’s present injuries and the 1993 car wreck and the related Social
Security claim. The court cited Dr. Cory’s statements that the 1993 accident did not affect
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his diagnosis of McCormack’s present injuries. The District Court also determined that
Andres had failed to question McCormack or other pertinent witnesses as to the relevance of
the Social Security claim that stemmed from the 1993 accident. The court determined that
Andres had failed to affirmatively demonstrate a causal connection between these incidents
and McCormack’s present injuries.
¶28 The hearing on the motion for reconsideration revealed that Andres did not have
access to the Johnson Report, which detailed McCormack’s 1996 work incident injuries,
until after Andres had deposed McCormack’s medical providers. The District Court
provided Andres with the opportunity to depose for a second time both Dr. Cory and Dr.
Reid. Dr. Cory testified that the injuries listed in the Johnson Report were not permanent by
nature. Dr. Reid specifically testified that nothing in the Johnson Report changed her
opinions and diagnosis of McCormack’s present injuries.
¶29 The District Court noted that Andres likely had established the fact that McCormack’s
medical providers deemed important the Johnson Report. The District Court concluded that
demonstrating the importance of the report, however, did not equate to a demonstration that a
“more probable than not” causal connection existed between the 1996 work incident and
McCormack’s present injuries.
¶30 Finally, the District Court determined that Andres had failed to establish a causal
connection between McCormack’s present injuries and the 1999 car accident. The District
Court made a conscientious decision to exclude evidence of McCormack’s previous
accidents after providing to Andres the opportunity to establish a probable alternate cause of
McCormack’s claimed injuries. The court’s decision to prohibit Andres from soliciting
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alternate causation evidence did not constitute an abuse of discretion under these
circumstances. Peterson, ¶ 31.
¶31 Andres also argues that the District Court should have allowed her to use evidence of
the prior accidents on cross-examination to impeach McCormack. Andres cites the fact that
McCormack initially did not disclose all of her past medical information to her doctors as a
basis for attacking McCormack’s credibility.
¶32 The District Court determined in its initial order that Andres had failed to provide any
evidence demonstrating dishonest conduct committed by McCormack. Andres did not raise
the issue of McCormack’s credibility in its motion to reconsider. Andres also failed to raise
McCormack’s credibility at the hearing on the motion to reconsider. Accordingly, the
District Court did not address the issue of McCormack’s credibility in its final order granting
McCormack’s motions. Andres abandoned her argument regarding McCormack’s credibility
before the District Court and we need not consider it on appeal. See e.g. State v. Minez, 2004
MT 115, ¶ 31, 321 Mont. 148, ¶ 31, 89 P.3d 966, ¶ 31.
ISSUE TWO
¶33 Did the District Court abuse its discretion when it prevented Andres from soliciting
statements made by McCormack’s orthopedic physician concerning McCormack’s brain
injury?
¶34 Andres asserts that the District Court improperly precluded evidence concerning
McCormack’s brain injury. She argues that the District Court should have allowed her to
explore statements made by McCormack’s orthopedic doctor, Dr. Vallin, concerning the
brain injury. Andres further asserts that the vocational expert, Hart, made assessments based
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in part on Dr. Vallin’s statements about the brain injury. Andres argues that the District
Court should have allowed her to cross-examine Hart about Dr. Vallin’s statements.
¶35 District courts possess broad discretion when determining the boundaries of
admissible evidence. Seltzer, ¶ 65. McCormack’s counsel asked Dr. Vallin during his
deposition if he had seen McCormack “for her back pain and not her head injury; is that
correct?” Dr. Vallin responded, “That’s correct.” The District Court noted that Dr. Vallin
“did not evaluate [McCormack] for treatment of any brain injuries . . . .”
¶36 The District Court learned at the hearing on the motion for reconsideration that the
vocational expert, Hart, had filed an addendum to her initial rehabilitation assessment. The
court learned that the addendum referenced Dr. Vallin and statements that Dr. Vallin had
made concerning McCormack’s brain injury. The District Court acknowledged the potential
relevance of the references in the addendum. The court gave permission to Andres to elicit
these statements from Hart during cross-examining if Hart “opens the door to either [Dr.
Vallin’s] correspondence or any opinion that [Hart] may have attributed to [Dr. Vallin] in
regard to the brain injury . . . .”
¶37 McCormack affirmatively demonstrated that Dr. Vallin treated her only for back pain.
McCormack established that Dr. Vallin made only incidental and secondary observations
concerning her brain injury. The District Court, in light of the scope of treatment provided
by Dr. Vallin, set forth reasoned restrictions concerning both direct and indirect evidence of
the doctor’s statements regarding McCormack’s brain injury. The record reveals that the
District Court did not abuse its discretion in granting McCormack’s motions in limine with
regard to Dr. Vallin’s statements. Peterson, ¶ 31.
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ISSUE THREE
¶38 Did the District Court abuse its discretion when it did not continue the trial date?
¶39 Andres argues that the District Court improperly refused to continue the trial date in
light of McCormack’s last-minute disclosures. Andres contends that McCormack’s last-
minute disclosures and the day-before-trial ruling by the court to preclude certain evidence
prejudiced Andres’s ability to prepare adequately for trial. McCormack asserts that the
District Court properly maintained the original trial date in light of Andres’ failure to make a
formal motion for a continuance and her failure to provide an affidavit in support of a motion
to continue.
¶40 McCormack supplied evidence of her previous car accidents early in discovery.
McCormack supplied the Johnson Report and other materials on the last day of discovery.
The hearing on Andres’s motion for reconsideration took place two weeks before trial began.
¶41 The court asked Andres’s counsel at the hearing for his proposed course of action in
light of the fact that Andres had received some discovery materials after she had deposed a
number of McCormack’s medical providers. Andres’s counsel stated, “I would be glad if the
Court were to vacate trial and I would be glad to travel . . . .” The court responded “Well, I
don’t want to vacate the trial. Can you fit it in?”
¶42 Andres asserts that her counsel’s statements constituted a motion for a continuance.
Andres further contends that the court’s response rendered futile a formal motion for a
continuance. The exchange between Andres’s counsel and the court fails to rise to the level
of an affirmative motion. The statement “I would be glad if the Court were to vacate trial . .
.” does not constitute a motion for a continuance. See M. R. Civ. P. 7(b)(1); see also
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Luppold v. Lewis, 172 Mont. 280, 294-95, 563 P.2d 538, 546 (1977) (citing State ex rel.
McVay v. District Court, 126 Mont. 382, 393, 251 P.2d 840, 846 (1953) for the proposition
that a motion must provide both notice to a party interested in opposing the motion and an
opportunity to oppose intelligently the motion). The court’s indication that it “[did not] want
to vacate the trial” similarly does not demonstrate that the court held a predetermined
position with regard to a formal motion for a continuance. We generally decline to consider
on appeal arguments that the District Court did not have an opportunity to consider. Prosser
v. Kennedy Enterprises, Inc., 2008 MT 87, ¶ 35, 342 Mont. 209, ¶ 35, 179 P.3d 1178, ¶ 35.
Andres failed to provide the District Court with the opportunity to rule on a motion for a
continuance. We decline to review a decision that the District Court did not make.
ISSUE FOUR
¶43 Did the District Court abuse its discretion by admitting into evidence McCormack’s
summary of medical expenses?
¶44 Andres faults the District Court for admitting into evidence McCormack’s summary
of medical expenses. Andres asserts that McCormack’s medical providers had to lay the
foundation for the admission of the one-page summary.
¶45 We do not require a plaintiff to establish with certainty the causal connection between
her accident and her injuries. Moralli v. Lake County, 255 Mont. 23, 30, 839 P.2d 1287,
1291 (1992). We confirmed in Moralli that a plaintiff need not provide medical expert
testimony where the nature of an injury allows a layperson to see plainly or infer the cause of
the injury. Moralli, 255 Mont. at 29, 839 P.2d at 1291 (citing Cain v. Stevenson, 218 Mont.
13101, 706 P.2d 128 (1985)). We determined in Moralli that a plaintiff suffering from injuries
caused by a slip and fall in a public facility could testify competently to her past and present
conditions. Moralli, 255 Mont. at 30, 839 P.2d at 1291.
¶46 The one-page exhibit introduced by McCormack comprised a summary of the medical
expenses that she had incurred as of the date of trial. McCormack testified that the summary
reflected accurately her medical expenses stemming from the accident. Like the plaintiff’s
injuries in Moralli, the back and brain injuries that McCormack sustained comprised the type
of injuries that a layperson could infer had occurred as a result of a car accident.
McCormack could testify competently to these injuries. McCormack also could testify
competently to the past expenses that she had incurred as a result of her injuries. We
conclude that the District Court did not abuse its discretion in admitting the one-page
summary of medical expenses. Peterson, ¶ 31.
¶47 Affirmed.
/S/ BRIAN MORRIS
We Concur:
/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE
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