Waller v. Hayden , 51 State Rptr. 1291 ( 1994 )

No. 93-464
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
LINDA WALLER,
Plaintiff and Appellant,
v.
VIRGIL L. HAYDEN, M.D.,
Defendant and Respondent
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles L. Neff Bhella, Neff, Rathert,
Wahl & Eiken, Williston, North Dakota
For Respondent:
John H. Maynard and Ken C. Crippen,
Browning, Kaleczyc, Berry & Haven,
Helena, Montana
Submitted on Briefs: July 6, 1994
Decided: December 13, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Linda Wailer filed a complaint in the District Court
for the Seventh Judicial District in Richland County to recover
damages from defendant Virgil L. Hayden, M.D., for what she alleged
was negligent surgical treatment, battery, and reckless disregard
for her well-being. Wailer's claims were presented to a jury
during an eight-day trial. Afterward, a verdict was returned in
favor of Hayden on all claims. Wailer appeals from the judgment
entered pursuant to that verdict, and the District Court's denial
of her motion for a new trial. We affirm the judgment of the
District Court.
The only issue on appeal is whether the District Court abused
its discretion when it excluded evidence of Hayden's involvement in
disciplinary proceedings which were commenced in another state
based on conduct that occurred ten years prior to the conduct which
was the subject of Wailer's claim.
FACTUAL BACKGROUND
Since Wailer's appeal is limited to the issue set forth above,
a complete record of the trial court proceedings has not been
provided, and our summary of the facts is necessarily based on the
written pleadings and arguments of the parties and the testimony of
defendant Virgil L. Hayden, M.D. However, that record is
sufficient for purposes of resolving the issue presented.
On November 18, 1991, Wailer filed a complaint in Richland
County District Court in which she named Hayden as the defendant.
She alleged that Hayden was a physician licensed to practice in
Montana, and that he specialized in obstetric and gynecological
care. She stated that she first saw Hayden on June 20, 1989, for
vaginal discomfort and other complaints; that he performed a
surgical procedure known as laparoscopy on July 11, 1989; and that
as a result of his initial examination and his observation of
Wailer's ovaries during the laparoscopy, he formed the opinion that
Wailer was suffering from endometriosis affecting her uterus,
ovaries, and fallopian tubes. On that basis, he recommended a
complete hysterectomy, or removal of her uterus, and a bilateral
salpingo oophorectomy, or removal of her ovaries and fallopian
tubes. She accepted his advice and underwent both procedures by
intra-abdominal surgery on August 11, 1989.
Endometriosis is defined as the presence of tissue similar to
the lining of the uterus at other sites in the pelvis. The tissue
undergoes periodic changes similar to those of the endometrium and
causes pelvic pain throughout and after menstruation. Bantam
Medical Dictionary 143 (Rev. ed. 1990).
Wailer alleged in her complaint, and it was confirmed at
trial, that pathological studies of her ovaries after they were
removed did not disclose the presence of endometriosis in those
parts of her body. For that reason, she alleged that Hayden
negligently formed his pre-operative diagnosis, and was negligent
when he removed her ovaries and fallopian tubes. She also alleged
that because of the premature removal of her ovaries and fallopian
tubes at the age of 38, she suffered a loss of natural estrogen,
which exposes her to numerous increased health risks.
3
For a second cause of action, Wailer alleged that because
Hayden knew she did not want to have her ovaries removed unless it
was absolutely necessary, and because he knew, or should have
known, that it was unnecessary when he removed them, he committed
a battery upon her person.
For a third cause of action, Wailer alleged, and Hayden
subsequently admitted, that during the surgical procedure that he
performed on August 11, 1989, he cut, or in some other way tore, a
portion of her bowel, and that although it was surgically repaired,
she suffered subsequent restriction of the bowel at that location
from stenosis which had to be treated surgically at a later date.
For a fourth cause of action, Waller alleged that during his
conversations with her following surgery, Hayden misrepresented or
concealed the full extent of damage that was caused to her bowel
during surgery; that she suffered more severe health consequences
as a result of his concealment, and that because of this reckless
disregard for her well-being, she was entitled to actual and
punitive damages.
Hayden admitted that he was a licensed physician who
specialized in obstetric and gynecological care; that he was
consulted by Wailer for the complaints she described on June 20,
1989; that he performed a laparoscopy on her on July 11, 1989; and
that he performed the surgical procedures described previously on
August 11, 1989. He also admitted that plaintiff's bowel was
damaged and surgically repaired during the August 11 surgery, and
that that injury later caused stenosis which had to be surgically
4
treated. However, he otherwise denied her allegations and
affirmatively stated that at all times his care for her complied
with acceptable standards for members of his profession. He
specifically denied that he concealed from her the nature of the
injury to her bowel following surgery.
Prior to trial, Wailer learned that from 1973 until 1982
Hayden practiced medicine in Pine Bluff, Arkansas, and that while
there he was involved in a peer review process which ultimately led
to recommendations for supervision of some aspects of his practice
and mandatory post-graduate education. She learned that the peer
review process in Arkansas began when a fellow physician at the
hospital where Hayden worked wrote to the obstetrics-gynecological
department and complained that Hayden had performed an unnecessary
cesarean section. In response to that complaint, a committee in
that department conducted an investigation which ultimately led to
its conclusion that Hayden had performed two unnecessary cesarean
sections. As a result of the investigation, Hayden was, for a
period of time, required to obtain consultation prior to performing
any further cesarean sections, and was ordered to obtain additional
post-graduate education.
Hayden apparently concluded that he was unable to satisfy the
additional education requirement and still maintain his practice.
Therefore, he terminated his practice in Arkansas and moved to
Sidney, Montana, in 1982.
On November 17, 1982, Hayden filed a complaint in the Federal
District Court for the Eastern District of Arkansas in which he
5
named Jefferson Regional Medical Center, its administrator, and
eight of the doctors on its medical staff, as defendants.
Jefferson Regional Medical Center is the hospital at which Hayden
practiced during the disciplinary process previously described. In
his complaint, he alleged that the disciplinary action taken
against him by the defendants (1) denied him equal protection and
due process in violation of the Fourteenth Amendment and 42 U.S.C.
5 1983; (2) conspired to form a group boycott against him and
combine to a certain monopoly power in violation of 55 1 and 2 of
the Sherman Antitrust Act; (3) made defamatory statements about
him; and (4) interfered with and conspired to interfere with his
business relationship. SeeHaydenv. Bracy (8th Cir. 1984), 744 F.2d
1338.
The district court dismissed Hayden's claims based on
42 U.S.C. 5 1983 and the Sherman Antitrust Act by summary judgment,
and after a nonjury trial, entered judgment for the defendants on
the other claims.
Prior to the trial in this case, Hayden moved in limine for an
order precluding Wailer from referring to the disciplinary
proceedings that occurred in Arkansas, or the litigation commenced
by Hayden in the Federal District Court in Arkansas. On April 2,
1993, the District Court granted that motion, except to the extent
that Hayden "opened the door" to admission of the Arkansas
evidence, or to the extent that it was necessary for impeachment
purposes. During the pretrial conference, after Wailer requested
that the District Court reconsider its order, the District Court
6
clarified that unless the defendant testified and tried to
embellish on his qualifications, the Arkansas information was
irrelevant to the issues in this case. The District Court reasoned
that Hayden's qualifications for diagnosis of endometriosis had
nothing to do with his judgment related to cesarean section
procedures performed ten years earlier.
This case proceeded to trial and Hayden was called by Wailer
as an adverse witness during the presentation of her case. He was
examined at length by her attorney. Near the conclusion of that
examination, Wailer renewed her request that the court reconsider
its order in limine, and if allowed, offered to present the
following evidence:
1. Testimony from Hayden in the Arkansas trial that he moved
from Arkansas to Montana because of fear that his privileges to
practice at the Arkansas hospital were in jeopardy.
2. A certified copy of the complaint filed by Hayden in the
Federal District Court for the Eastern District of Arkansas in
which the Jefferson Regional Medical Center and its staff members
were named as defendants.
3. A certified copy of the findings of fact and conclusions
of law from the Federal District Court in Arkansas which resolved
Hayden's complaint.
4. A certified copy of the published opinion of the United
States Court of Appeals for the Eighth Circuit which affirmed the
Federal District Court's disposition of Hayden's claim against the
Jefferson Regional Medical Center and its staff members.
7
The District Court rejected Wailer's offer of proof for the
following reasons:
1. That since the federal litigation related to issues of
defamation and wrongful interference with Hayden's ability to work,
it was not directly related to his professional qualifications;
2. That even if his qualifications to perform cesarean
sections were at issue in the evidence offered, it had little
probative value to the issues in this case, and therefore, was not
sufficiently relevant;
3. That the passage of eight to ten years from the events
which were the subject of Wailer's offer of proof until the acts
complained of in this case, made the prior evidence far too remote
and dissimilar to be relevant; and
4. That even if the evidence was somehow relevant, its
prejudicial impact outweighed whatever probative value it might
have.
Following eight days of trial, the jury returned a special
verdict in which it found that (1) Hayden's diagnosis was not
negligent; (2) Hayden's recommendation for removal was not
negligent; (3) Hayden did not commit battery upon Wailer; and
(4) Hayden was not negligent in his post-operative care and
treatment.
On May 27, 1993, Wailer moved for a new trial pursuant to
Rule 59, M.R.Civ.P., and 5 25-11-102, MCA, based on the District
Court's refusal to allow her to cross-examine Hayden on his reasons
8
for leaving Arkansas, and based on the District Court's rejection
of her offer of proof.
In its order dated August 10, 1993, in which it denied
Wailer's motion for a new trial, the District Court relied
primarily on Rule 403, M.R.Evid., for its conclusion that even if
relevant, the probative value of the Arkansas evidence was
substantially outweighed by the risk of unfair prejudice, and
therefore, it was inadmissible.
Wailer appeals from the District Court's April 2, 1993, order
in limine; the District Court's orders during trial excluding
evidence related to Hayden's Arkansas experience; and the District
Court's order denying her motion for a new trial.
DISCUSSION
Did the District Court abuse its discretion when it excluded
evidence of Hayden's involvement in disciplinary proceedings which
were commenced in another state based on conduct that occurred ten
years prior to the conduct which was the subject of Wailer's claim?
"We have held that the decision to deny a motion for a new
trial is within the sound discretion of the trial court and will
not be overturned absent a showing of manifest abuse." Geiger v.
Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108 (citing
Topev. Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50).
On appeal, Wailer argues, as she did in the District Court,
that even though she called Hayden as an adverse witness in her own
case, he was an expert pursuant to Rule 702, M.R.Evid., based on
9
his knowledge, experience, training, and education, and therefore,
that he was subject to impeachment regarding his qualifications as
an expert. Wailer relies on our decision in Hart-Anderson v. Hawk
(1988), 230 Mont. 63, 73-74, 748 P.2d 937, 943-44, for the
principle that during cross-examination of an expert witness,
parties are entitled to test the knowledge, competency, and
qualifications of that witness.
While we have no reservation about concluding that Virgil L.
Hayden, M.D., a licensed physician and board certified obstetrician
and gynecologist, is an expert witness when testifying about
subjects within the scope of his professional knowledge, that does
not mean that traditional rules of relevance, remoteness, and
fairness are inapplicable to his cross-examination. Furthermore,
unless there has been a manifest abuse of discretion, we have
traditionally concluded that the district court, which is
intimately familiar with the facts and parties in each case, is in
the best position to apply those rules.
For example, in Britton v. Farmers InsuranceGroup ( 19 8 6 ) , 22 1 Mont .
67‘ 721 P.2d 303, we held that the test of relevancy is whether
proffered evidence makes a fact in issue more or less likely. We
held that "[ulnless evidence naturally and logically tends to
establish a fact in issue, it is not admissible." Britton , 721 P.2d
at 315 (citations omitted). We also held that "[iln the usual
case, questions of admissibility of evidence are left largely to
the sound discretion of the trial court, subject to review only in
10
case of manifest abuse." Britton , 721 P.2d at 315 (citing Cechv.State
(1979), 184 Mont. 522, 604 P.2d 97.
In Prestonv. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d 276,
277, we held that in considering whether evidence was relevant, a
trial court could consider the remoteness of the proffered
evidence. In that case, the plaintiffs bought a Red Lodge bakery
in 1979 and were subsequently unable to obtain a license from the
Montana Department of Health. They sued the seller to rescind
their contract for purchase, and in an effort to shoti that he was
aware of the conditions which made licensing difficult, they
offered to prove that he had received two conditional health
licenses in 1968 and 1969. This evidence was excluded by the
district court because the prior conditional licenses were too
remote in time to have any probative value. We affirmed the
district court on appeal and held that:
In determining whether evidence is too remote to be
relevant, a trial court is not guided by any fixed rules.
Rather, the nature of the evidence and the circumstances
of the particular case must control. 2 Wigmore, Evidence
5 437 (Chadbourn rev. 1979). For this reason, the
determination of remoteness is left in great part to the
trial court's discretion. Wigmore, supra ; Courtneyv. Courtney
([Alaska] 1975), 542 P.2d 164; Gilliland v. Rhoads ( [wyo. I
1975), 539 P.2d 1221; Blankenshipv. Brookshier ( 19 6 6 ) , 9 1
Ida[ho] 317, 420 P.2d 800; and Morrisonv.Bradley ([Cola. Ct.
App.] 1980), 622 P.2d 81, cert. granted Dec. 15, 1980.
The trial court's determination of relevancy is subject
to review only in the case of manifest abuse. See also
Gundersonv.Brewster (1970), 154 Mont. 405, 466 P.2d 589; Cech
v.State (1979) 11841 Mont. 15221, 604 P.2d 97, 36 St.Rep.
2185.
Here, the District Court did not abuse its
discretion. The condition of the bakery ten years prior
11
to its sale could easily be considered too remote and
irrelevant. Many old deficiencies may have been
corrected, while new, yet similar, deficiencies may have
arisen. The District Court did not err by refusing
admission of the conditional health licenses.
Preston, 659 P.2d at 277-7'8
For a similar conclusion and a similar standard of review,
based on evidence that was at least seven years old, seeInreMarriage
ofStarks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-32.
We have applied a similar standard of review to evidence which
is excluded because the district court concludes that its probative
value is substantially outweighed by the danger of unfair
prejudice. In Zeke’sDistributing Co. v. Brown-FormanCorp. ( 198 9 ) , 2 3 9 Mont.
272, 277, 779 P.2d 908, 911, we held that:
Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury. Rule 403, M.R.Evid. This determination of
admissibility is within the discretion of the trial judge
and will not be disturbed unless there is manifest abuse
of discretion. Welnelv.HaN (1985), 215 Mont. 70, 694 P.2d
1346, Kimesv. Herrin (1985), 217 Mont. 330, 705 P.2d 108,
Dahlinv. Hohnquist, (1988), 1235 Mont. 17,l 766 P.2d 239.
In this case, we cannot conclude that the District Court
manifestly abused its discretion when it held that the evidence of
disciplinary proceedings in Arkansas, Hayden's lawsuit which
resulted from those proceedings, and Hayden's reasons for leaving
Arkansas, were either irrelevant because of their remoteness, or if
relevant, more prejudicial than probative. The events which led to
the Arkansas disciplinary proceedings occurred eight to ten years
prior to the acts complained of by plaintiff; those complaints
12
related to Hayden's judgment about when to perform cesarean
sections and his relationships with other staff members; and his
federal lawsuit simply resolved whether his accusers had done
anything wrong--not whether he was qualified professionally. It is
within the range of a district court's discretion to conclude that
there was nothing in the Arkansas evidence which made it more or
less likely that Hayden was negligent when he treated Wailer in
1989, or that he concealed the true nature of her physical
condition following surgery in 1989.
If, as argued by Wailer, the Arkansas evidence, and in
particular, the judgment of Hayden's peers that he needed
additional education, was relevant to his qualifications, and his
qualifications were relevant to the issue of professional
negligence, it was still within the discretion of the District
Court to exclude the evidence based on its conclusion that it was
more prejudicial than probative. We conclude that under the facts
in this case a manifest abuse of the District Court's discretion
has not been established. Therefore, we conclude that neither did
the District Court abuse its discretion when it denied plaintiff's
motion for a new trial.
However, since cases like this are read by attorneys and
district court judges for the purpose of future guidance and the
avoidance of future evidentiary errors, it is appropriate to
clarify the meaning of our decision. This decision does not mean
that businesses or professionals who have been discredited
elsewhere can find sanctuary in Montana and that their past will
13
never follow them. Instead, it simply affirms the traditional
rules of appellate review, and this court 1s conviction that
district courts are the best place to make evidentiary rulings.
The notion that a decision by the district court is
discretionary assumes there is no absolutely correct answer for
every evidentiary issue. It assumes that the decision is a
judgment call best left to the person closest to the case--the
district judge. By holding that the District Court did not abuse
its discretion when it excluded the evidence proffered by the
plaintiff in this case, we do not mean that it would have abused
its discretion had it admitted the evidence. We simply conclude
that the District Court's judgment was exercised within that
permissible range best left to the district court.
The judgment of the District Court is affirmed.
We concur:
December13, 1994
CERTIFICATEOF SERVICE
I hereby certify that the folowing ceritied order was sent by United Statesmaii, prepaid,to the
following named:
CharlesL. Neff, Esq.
Bjella, Neff, Rathert, Wahl & Eiken, P.C.
111E. Broadway,Drawer 1526
Wiliston, ND 58802-1526
JohnH. Maynard, Esq.
Browning, Kaleczyc,Berry & Hoven, P.C.
P.O. Box 1697
Helena,MT 59624
ED SMITH
CLERK OF THE SUPREMECOURT
STATEOF MONTANA