                                                                                       November 17 2009




                                         DA 08-0573

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2009 MT 390



PATRICIA ELLEN CLARK,

              Plaintiff and Appellant,

         v.

KARA TAYLOR BELL,

              Defendant and Appellee.


APPEAL FROM:          District Court of the Eighth Judicial District,
                      In and For the County of Cascade, Cause No. DDV 06-1157
                      Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Benjamin R. Graybill; Graybill Law Firm, P.C.; Great Falls, Montana

               For Appellee:

                      Paul Haffeman; Davis, Hatley, Haffeman & Tighe; Great Falls, Montana



                                                  Submitted on Briefs: July 22, 2009

                                                              Decided: November 17, 2009


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Patricia Clark brought a negligence action to recover damages for injuries

sustained in an automobile accident. A jury in the Eighth Judicial District Court, Cascade

County, rendered a verdict in favor of Defendant Kara Bell. Clark appeals. We affirm in

part, reverse in part, and remand for a new trial.

¶2     We restate the issues as follows:

¶3     1. Did the District Court err by allowing Defendant Bell to introduce evidence of

Clark’s preexisting conditions to challenge Clark’s proof of causation?

¶4     2. Did the District Court manifestly abuse its discretion by denying Clark’s

motion for a new trial, based upon unfair surprise?

¶5     Although we reverse and remand for a new trial under issue 2, we address the first

issue to provide guidance to the court and parties upon remand. We do not reach the

remaining issues raised by Clark.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶6     On August 2, 2004, Clark was stopped in traffic in Great Falls when her vehicle

was struck from behind by a pick-up truck driven by Bell. After the collision, Clark and

Bell drove their vehicles into an adjacent parking lot and waited for police to arrive.

Clark appeared alert and oriented, and told Bell she was “okay.” Both women declined

medical treatment to responding paramedics.           Later that day, Clark went to the

emergency room complaining of moderate pain to her neck, back and arm, as well as




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nausea and vomiting.      She denied any loss of consciousness, and a neurological

evaluation was normal. She was found to have no dental injuries.

¶7     More than a year later, Clark also began treating with medical doctors she would

call as expert witnesses in the trial, Patrick Galvas, D.O., Ph.D., James English, Ph.D.,

and James Zander, D.D.S. She complained of pain to her head, neck, shoulder, back,

wrist, arm, knee, and abdominal muscles, as well as a cracked tooth, distractibility,

forgetfulness, headaches, confusion, memory loss, problems with concentration,

depression and fatigue, and other cognitive impairments.

¶8     Clark filed suit, alleging the accident caused her injuries, and that Bell was liable

for her damages. Bell admitted that she caused the accident, but denied that some of

Clark’s injuries had occurred or were attributable to the accident. The District Court

granted Bell a Rule 35 independent medical evaluation of Clark before a panel of

physicians associated with WellCare Community Medical Center, Inc., a non-profit

Missoula hospital. The panel members included neurologist Lennard Wilson, M.D.,

orthopedic surgeon Michael Sousa, M.D., and psychiatrist William Stratford, M.D. After

their examinations, Doctors Wilson, Sousa, and Stratford concluded that many of Clark’s

injuries preexisted the accident or were aggravations of preexisting conditions.

¶9     Clark moved in limine to exclude testimony regarding her preexisting conditions

or injuries by the independent medical physicians and proposed defense experts, Sousa,

Stratford, and Wilson, on the ground that their expert disclosures were insufficient and

did not divide or apportion her pre- and post-accident injuries. The District Court granted

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the motion with an order whose scope would later be contested. Bell then filed a petition

for writ of supervisory control with this Court challenging the order. Bell argued that the

District Court’s order was erroneous on the ground that, in addition to excluding

testimony by the physicians, it also barred her from presenting evidence of preexisting

injuries through other means, such as cross-examination of Clark’s witnesses, to refute

Clark’s allegations that her actions were the cause of Clark’s injuries. We denied Bell’s

petition, concluding that appeal was an adequate remedy.

¶10    On the morning of trial, the District Court addressed several outstanding matters

outside of the jury’s presence. The District Court explained that the testimony of Doctors

Sousa, Wilson, and Stratford would be excluded in light of their insufficient pretrial

disclosures.1   Regarding other evidence of preexisting injuries, the District Court

attempted to clarify its order. The District Court stated that Bell’s interpretation of its

order, as set forth in Bell’s arguments to this Court in her petition for supervisory control,

was overbroad. The District Court explained that it had not excluded other relevant

testimony about preexisting injuries, but had only excluded the testimony of Sousa,

Stratford, and Wilson. In response, Clark’s counsel expressed concern, and sought

further explanation. Clark’s counsel highlighted the language of the District Court’s

order which seemed to prohibit all references to Clark’s preexisting injuries. The District




1
 The District Court completely excluded the testimony of Doctors Sousa and Wilson. The court
permitted Dr. Stratford to testify on narrow grounds, but the defense did not call Stratford as a
witness.
                                            4
Court indicated that because it could not anticipate at that point what evidence Bell would

offer, it would reserve further clarification until then.

¶11    During his opening statement, Bell’s counsel began discussing Clark’s preexisting

injuries. Clark objected and, outside the presence of the jury, argued to the District Court

that Bell had violated the order prohibiting discussion of preexisting injuries. After

receiving a proffer of evidence from Bell, the District Court overruled Clark’s objection

and permitted Bell to continue his discussion of Clark’s preexisting injuries in his

opening statement.

¶12    During the trial, Clark called Doctors Galvas, English, and Zander as expert

witnesses, and solicited testimony from them supporting her injury claims. Under Bell’s

cross-examination, Dr. Galvas testified that having an accurate medical history was

important, but conceded that the history provided by Clark was not accurate in many

respects and that he did not have a full picture when he had diagnosed her and formed his

opinions that the accident caused her injuries. Dr. Galvas testified that, while Clark had

initially told him she developed various physical injuries soon after the accident, the

symptoms did not appear to develop until much later. He acknowledged that, although

told by Clark she suffered from “no residuals” from previous traumas, her medical

records established a history of multiple complaints to medical doctors relating to prior

traumas.

¶13    Dr. English likewise opined that Clark had suffered an accident-related head

injury, premised upon the assumption that she had suffered a concussion. Under Bell’s

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cross-examination, Dr. English conceded that Clark did not satisfy most of the criteria for

diagnosing a concussion, in that she had no loss of consciousness, post-traumatic

amnesia, or a skull fracture. Like Dr. Galvas, Dr. English admitted that he was not

provided all of Clark’s medical records when he had formulated his opinions, and that he

had not been told about some of Clark’s preexisting injuries.

¶14    Following the presentation of evidence, Clark moved for judgment as a matter of

law on the issue of causation. Clark argued that, pursuant to Truman v. Mont. Eleventh

Jud. Dist. Ct., 2003 MT 91, 315 Mont. 165, 68 P.3d 654, Bell was required to prove that

Clark’s injuries were divisible and apportionable to a reasonable degree of medical

probability. Because Bell had failed to provide testimony from physicians regarding

apportionment, Clark argued that her evidence was unchallenged and she was entitled to

a verdict on causation as a matter of law. The District Court denied the motion, ruling

that Clark still bore the burden of proving causation and that the jury was entitled to

weigh her evidence. The District Court also rejected Clark’s proposed instruction to the

jury that Bell had not proven that Clark’s preexisting injuries were the cause of her

current injuries.

¶15    The jury returned a unanimous verdict for Bell, awarding no damages. Clark

thereafter filed a motion for a new trial, which the District Court denied. Additional facts

will be discussed herein as necessary.




                                         6
                               STANDARD OF REVIEW

¶16    District courts have broad discretion to determine the admissibility of evidence,

and we review for abuse of discretion. Neal v. Nelson, 2008 MT 426, ¶ 16, 347 Mont.

431, 198 P.3d 819 (citing Seeley v. Kreitzberg Rentals, LLC, 2007 MT 97, ¶ 14, 337

Mont. 91, 157 P.3d 676, overruled on other grounds, Giambra v. Kelsey, 2007 MT 158,

¶ 27, 338 Mont. 19, 162 P.3d 134). We likewise review a district court’s decision to give

or refuse a proposed jury instruction for an abuse of discretion. Neal, ¶ 16 (citing

Giambra, ¶ 28). An abuse of discretion occurs if the district court “acted arbitrarily

without the employment of conscientious judgment or exceeded the bounds of reason, in

view of all the circumstances, ignoring recognized principles resulting in substantial

injustice.” Neal, ¶ 16 (quoting Linn v. Whitaker, 2007 MT 46, ¶ 13, 336 Mont. 131, 152

P.3d 1282).

¶17    Whether a judgment as a matter of law should have been granted or denied is a

question of law which we review de novo, entitling the parties to full review without

special deference to the views of the district court. Johnson v. Costco Wholesale, 2007

MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727.

¶18    The standard of review of a district court’s ruling on a motion for a new trial based

on surprise or irregularity in the proceedings is abuse of discretion.           Willing v.

Quebedeaux, 2009 MT 102, ¶ 19, 350 Mont. 119, 204 P.3d 1248 (citing Lopez v.

Josephson, 2001 MT 133, ¶ 16, 305 Mont. 446, 30 P.3d 326). “The decision to grant or

deny a new trial is within the sound discretion of the trial judge and will not be disturbed

                                         7
absent a showing of manifest abuse of that discretion.” Willing, ¶ 19 (citing Lopez, ¶ 16).

The court’s abuse of discretion must be so significant as to materially affect the

substantial rights of the party asserting error. Willing, ¶ 19 (citing Lopez, ¶ 16).

                                        DISCUSSION

¶19 1. Did the District Court err by allowing Bell to introduce evidence of Clark’s
preexisting conditions to challenge Clark’s proof of causation?

¶20    Clark argues that the District Court erred by permitting Defendant Bell to cross-

examine her experts regarding her preexisting injuries to defeat the causation element of

her negligence claim. Citing to Truman, Clark argues that a defendant must prove the

divisibility of an injury, by a reasonable medical probability, before she is able to submit

relevant evidence to negate an allegation that she is the cause of an injury. Thus, Clark

insists that Bell was required to offer expert medical evidence demonstrating that Clark’s

alleged injuries could be divided, or apportioned, between the accident at issue and her

preexisting conditions, before Bell was allowed to cross-examine her experts about those

conditions.

¶21    Bell responds that Truman did nothing to change the plaintiff’s burden of proving

the elements of a negligence claim, including causation, and did not hold that defense

expert testimony is the only means by which a defendant can challenge causation. Bell

argues that she was entitled to cross-examine Clark’s experts regarding preexisting

injuries to challenge the bases of their opinions as well as Clark’s contention that her

injuries were caused by the accident.


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¶22    First, as the District Court correctly noted, the Montana Rules of Evidence

expressly provide that an “expert may . . . be required to disclose the underlying facts or

data [of his or her opinion] on cross-examination.”        M. R. Evid. 705.      Rule 705

“mandates that the opinion of a qualified expert is admissible, and if opposing counsel

believe the opinion is not founded on sufficient data, cross-examination is the shield to

guard against unwarranted opinions.” Hart-Anderson v. Hauck, 230 Mont. 63, 73, 748

P.2d 937, 943 (1988) (quoting Stewart v. Casey, 182 Mont. 185, 193, 595 P.2d 1176,

1180 (1979)). We have repeatedly stated that Rule 705 affords a party an essential right

to cross-examine the plaintiff’s expert witness regarding the basis of that expert’s

opinion. See e.g., Lynch v. Reed, 284 Mont. 321, 332-33, 944 P.2d 218, 225 (1997)

(reversible error to deny latitude to cross-examine basis of expert opinion); State v. Van

Dyken, 242 Mont. 415, 428, 791 P.2d 1350, 1358 (1990) (“expert may in any event be

required to disclose the underlying facts or data on cross-examination”); Green v. Hagele,

182 Mont. 155, 159, 595 P.2d 1159, 1161 (1979) (party must be afforded wide latitude to

cross-examine expert regarding qualifications and bases of opinion).        “Indeed, John

Henry Wigmore called cross-examination the ‘greatest legal engine ever invented for the

discovery of truth.’” State v. Mizenko, 2006 MT 11, ¶ 13, 330 Mont. 299, 127 P.3d 458

(citations omitted).

¶23    Truman did not disturb the basic right to challenge causation, here, by testing the

opinions of the plaintiff’s experts by reference to relevant evidence on cross-examination.

Truman affirmed that “a defendant is permitted to submit relevant evidence of subsequent

                                         9
accidents to negate allegations that he is the cause or sole cause of an injury.” Truman,

¶ 31. Such evidence is “subject to traditional evidentiary considerations such as prejudice

and relevancy.” Truman, ¶ 31. However, Truman clarified that if a defendant asserts he

or she “is only liable for a portion of those damages,” or, in other words, asserts that the

plaintiff’s injuries can be apportioned to other causes and wants the jury to “reduce [the

defendant’s] obligation by the portion of [plaintiff’s] damages for which he has proven he

[is not] responsible,” then the defendant “must prove, by a reasonable medical

probability, that the injury is divisible.”    Truman, ¶ 32 (emphasis added).            If the

defendant fails to prove by reasonable medical probability that the plaintiff’s injury is

divisible and apportionable, he may not argue divisibility and apportionment to the jury,

nor seek an apportionment instruction. Truman, ¶ 33. Rather, the defendant “is liable for

the entire damage” and is entitled to a jury instruction to that effect. Truman, ¶ 32.

¶24    Since Truman, our cases have illustrated these principles. Similar to the facts

here, the defendant in Ele v. Ehnes, 2003 MT 131, ¶¶ 5, 7, 316 Mont. 69, 68 P.3d 835,

admitted her liability in causing a rear-end collision, but disputed that the accident had

caused any injury to the plaintiff Ele. Defendant Ehnes presented no medical experts, but

cross-examined Ele and his experts, eliciting admissions that Ele had not informed his

medical providers of his preexisting conditions. Ele, ¶¶ 10-13. Despite Ele’s argument

that Ehnes had presented no evidence, we affirmed the verdict for the defendant,

acknowledging that the jury was entitled to weigh the evidence elicited on cross-

examination. Ele, ¶¶ 30-35.

                                         10
¶25    We have affirmed the district court’s discretionary admission or exclusion of

evidence of preexisting injuries under the “traditional evidentiary considerations” noted

by Truman. Truman, ¶ 31. In Neal v. Nelson, 2008 MT 426, ¶¶ 26-28, 347 Mont. 431,

198 P.3d 819, we affirmed the district court’s admission of the defendant’s expert

testimony about the plaintiff’s preexisting knee and back injuries as relevant to the

plaintiff’s claim that the injuries in the subject accident had forced him to retire. In

McCormack v. Andres, 2008 MT 182, ¶¶ 25-27, 30, 343 Mont. 424, 185 P.3d 973, we

affirmed the district court’s exclusion of defendant’s cross-examination of plaintiff’s

medical providers about her preexisting injuries given the lack of a relevant connection

between those injuries and current injuries. Thus, our cases have demonstrated that a

defendant may submit evidence of other injuries to negate allegations that he or she is the

cause or sole cause of the current injury, subject to the trial court’s application of

traditional evidentiary considerations. While the evidence at issue in Truman involved

subsequent injuries, the same rule would apply to evidence of preexisting injuries.

¶26    Here, the District Court reasoned that the “Plaintiff’s preexisting head, cervical,

and lumbar injuries, chronic pain, and depression were similar, if not identical, to the

types of injuries attributed by Plaintiff to the subject accident at issue.” Bell elicited

cross-examination revealing that Clark had suffered from the same or similar injuries for

years, from prior accidents, and had not disclosed that history to her experts. Dr. Galvas

conceded that, prior to the accident, Clark had sought, on numerous occasions, treatment

for fatigue, increasing chronic back and neck pain, and depression—the same injuries she

                                        11
alleged were caused by Bell’s negligence. Bell used this evidence to challenge Clark’s

claim that Bell was the cause of Clark’s injuries, and did not seek jury apportionment of

Clark’s injuries between this and other causes or accidents. The evidence was relevant

and submitted for a proper purpose. The District Court did not abuse its discretion.

¶27     Clark also argues that the District Court erred by denying her motion for judgment

as a matter of law on the issue of causation or, alternatively, her request for an additional

instruction on causation. These arguments are premised on her assertion that the District

Court erred in allowing the jury to hear any evidence regarding her preexisting injuries,

and are thus resolved by the above discussion. Clark also argues that because Bell

presented no direct evidence from lay or expert witnesses, her causation evidence was

unchallenged and she was entitled to judgment as a matter of law. However, as in Ele,

Bell challenged Clark’s evidence through cross-examination. The jury was entitled to

weigh that evidence and determine its credibility against Clark’s evidence. “[E]ven if

uncontradicted direct testimony is admitted, the jury is entitled to weigh that testimony

against adverse circumstantial evidence and other factors which may affect the credibility

of the witness.” Ele, ¶ 32 (citation omitted). Thus, the District Court properly denied

Clark’s motion for judgment as a matter of law on causation, leaving the question to the

jury.

¶28 2. Did the District Court abuse its discretion by denying Clark’s motion for a
new trial, based upon unfair surprise?

¶29     Clark argues that Bell’s references to her preexisting injuries violated the District

Court’s order in limine, and that she was unfairly surprised and prejudiced, entitling her
                                          12
to a new trial pursuant to § 25-11-102(1), (3), MCA (2007). She asserts the District

Court abused its discretion in denying her motion for a new trial.

¶30    Section 25-11-102(3), MCA, provides that a new trial may be granted for causes

affecting a party’s substantial rights, including accident or surprise which ordinary

prudence could not have guarded against. We addressed surprise and the impact upon the

trial which is necessary to warrant a new trial in Donovan v. Graff, 231 Mont. 456, 459,

753 P.2d 878, 880 (1988); Buhr v. Flathead Co., 268 Mont. 223, 252-53, 886 P.2d 381,

398-99 (1994), overruled on other grounds, Johnson, ¶ 16; and recently in Willing,

¶¶ 20-28. A party seeking a new trial by virtue of surprise must demonstrate:

       1) the moving party was actually surprised; 2) the facts causing the surprise
       had a material bearing on the case; 3) the verdict or decision resulted
       mainly from these facts; 4) the surprise did not result from the moving
       party’s inattention or negligence; 5) the moving party acted promptly and
       claimed relief at the earliest opportunity; 6) the moving party used every
       means reasonably available at the time of the surprise to remedy it; and 7)
       the result of a new trial without the surprise would probably be different.

Willing, ¶ 25 n. 2 (quoting Buhr, 268 Mont. at 253, 886 P.2d at 399).

¶31    Long before trial, Clark moved in limine to prohibit Bell “from attempting to elicit

any testimony, introduce any evidence, or argue that any pre-existing condition or injury

suffered by Ms. Clark cause[d] or contribute[d] to the present physical or mental

symptoms that she and her expert treating physicians attribute to the motor vehicle crash

giving rise to this action.” The basis for the motion was that Bell had not disclosed any

medical expert who could apportion part or all of her injuries to a preexisting condition.

Bell opposed the motion, arguing that “whatever the Plaintiff may claim about the

                                         13
existence and cause of her alleged injuries and symptoms, there is strong evidence to the

contrary, which the jury must be allowed to hear.”

¶32    The District Court granted what it perceived to be Clark’s motion, which it

described as a request “to preclude Defendant Bell from presenting evidence, argument,

or other express or implied reference to preexisting conditions as causes of Plaintiff’s

post-accident pain, depression, and anxiety on the ground that Defendant’s expert

disclosures [are] not sufficient bases under M. R. Civ. P. Rule 26(b)(4)(A)(i) to support

such testimony at trial.”      Thus, while the District Court referenced the asserted

insufficiency of Bell’s experts’ disclosures, its description of the relief requested by Clark

was not merely a preclusion of the testimony by the experts, but a preclusion of any

“evidence, argument or other . . . reference” to the disputed evidence.

¶33    After a 13-page analysis, the District Court’s order stated, in pertinent part, as

follows:

       Plaintiff’s motion in limine to exclude testimony from Drs. Sousa, Wilson,
       and Stratford attributing Plaintiff’s post-accident pain, depression, and
       anxiety to preexisting conditions (Doc. 65-66, 79 and 81) is hereby granted.
       Accordingly, Defendant is hereby precluded from presenting any evidence,
       argument, or reference to Plaintiff’s preexisting injuries or physical or
       mental condition and precluded from presenting evidence, argument, or
       reference to preexisting conditions as causes of post-accident pain,
       depression, or anxiety;

(Emphasis added.) The order further stated that this ruling did not relieve Clark of her

burden of proving that Bell’s negligence caused Clark’s post-accident mental and

physical injuries.


                                          14
¶34    While it can fairly be said that the order in limine was subject to more than one

interpretation, Defendant Bell then filed a petition for writ of supervisory control with

this Court in which she set forth her interpretation of the order. Bell asserted that the

order not only excluded all testimony from her medical experts, but also prohibited her

“from even presenting evidence through other means of pre-existing injuries or physical

or mental conditions” to challenge causation for Clark’s injuries, which she argued was

inconsistent with Truman. Bell sought relief from the order because it:

       prevent[ed] Bell from presenting evidence of other causes through other
       witnesses, to challenge Clark’s threshold burden of proving cause-and-
       effect. For example, in cross-examining Clark’s experts, Bell should have
       been allowed to point out weaknesses in their opinions about cause-and-
       effect by referring to evidence of pre-existing conditions which
       contradicted those opinions.

The point here is that Bell read the District Court’s order the same way that Clark read

the order—to exclude “any evidence, argument or reference” to Clark’s preexisting

injuries, by any means. We declined to exercise supervisory control, concluding that Bell

had an adequate remedy of appeal, and thus left the order in place.

¶35    On the morning of the first day of trial, the District Court addressed several

outstanding preliminary matters outside of the jury’s presence, including the proposed

testimony of defense medical experts Sousa, Stratford, and Wilson. The District Court

ruled that the pretrial disclosures of the defense experts were insufficient, and Bell was

precluded from calling them as witnesses. The District Court then attempted to clarify its

order in limine regarding evidence of Clark’s preexisting injuries:


                                         15
               [T]he Court issued an order precluding introduction or argument
       regarding testimony by [defense experts] regarding pre-existing injuries as
       a source of or cause of post-accident pain, depression, and anxiety in this
       case . . . .
               Now, the bottom line ruling was that the Defendant may not present
       evidence from these individuals attributing Plaintiff’s post-accident pain,
       depression, or anxiety to pre-existing conditions due to the insufficiency of
       the expert medical disclosures as to divisibility and apportionment.
               Thus, the Court ruled that the Defendant may not present evidence
       or argument referencing preexisting injuries or medical conditions
       attributing those pre-existing conditions as causes of the post-accident pain,
       depression, or anxiety.
               Now, Defendant, in [her] application for Writ of Supervisory
       Control, argued, among other things, to the Montana Supreme Court that
       that ruling far exceeded the restrictions imposed by Truman . . . .
               Now, so the record is clear, contrary to the way that it was presented
       to the Supreme Court, there was no argument before this court that there
       was other evidence from other witnesses of alternative causation . . . . [T]o
       the extent that the order that this Court has [] issued has been characterized
       as being overly broad, that is not accurate. This order was issued in the
       context of the dispute regarding the sufficiency of the expert disclosures for
       Doctors Wilson, Stratford, and Sousa.

(Emphasis added.) In response, Clark’s counsel raised a concern about the meaning and

scope of the court’s clarification. He read back the language from the court’s order,

quoted earlier, that the “Defendant is hereby precluded from presenting any evidence,

argument, or reference to Plaintiff’s pre-existing injuries . . . .” Clark asked the court if

its clarification meant that Bell was not permitted to ask questions about her “pre-existing

conditions to the extent that that is asked in the context of asking about causes or

suggesting that they are causes for anything that’s going on now with regard to [Clark’s]

medical condition.” The District Court responded that Clark’s understanding was correct

“in general terms,” but that the court was not aware of what evidence Bell intended to

introduce, so would reserve ruling until the evidence was presented.
                                         16
¶36    During his opening statement, Bell’s counsel referenced Clark’s preexisting

injuries. Clark’s counsel objected and, outside the presence of the jury, again read back

to the court the language of its order in limine prohibiting Bell from presenting “any

evidence, argument or reference to Plaintiff’s preexisting injuries.” After argument and

an offer of proof by Bell, the District Court overruled Clark’s objection, permitting Bell’s

counsel to continue his opening statement. Bell’s counsel extensively cross-examined

Clark’s medical experts about her preexisting injuries, and called Bell as the only defense

witness.

¶37    Applying the above-stated criteria for obtaining a new trial due to unfair surprise,

we conclude as follows:         (1) the District Court’s order was subject to multiple

interpretations and, despite the attempt to clarify its ruling, that clarification came on the

first day of trial and Clark was actually surprised; (2) admission of evidence about

Clark’s preexisting injuries had a material bearing on the case; (3) the jury’s verdict

rested on whether they believed Clark’s injuries were caused by the accident; (4) the

surprise did not result from Clark’s inattention or negligence—prior to trial, she had

moved to exclude evidence of her preexisting injuries and obtained an order; (5) Clark

was vigilant at trial, objecting at Bell’s first reference to her preexisting injuries; (6) aside

from objecting at trial and changing her trial strategy by questioning her own experts

about her preexisting injuries, there was nothing else Clark could have done to remedy

the surprise; and (7) a new trial where Clark is properly advised of the ruling may well

render a different result.

                                           17
¶38      The District Court gave three reasons for denying Clark’s motion for a new trial

on the ground of unfair surprise: 1) Clark clearly understood the limited scope of the

court’s in limine order; 2) the court clarified its order before trial began; and 3) Clark

elicited testimony about her preexisting injuries from her own experts on direct

examination. However, it is apparent from the record that the “limited scope” of the

court’s order was not clearly understood. Indeed, the interpretation of the order which

Bell provided in her petition for supervisory control to this Court served to confirm

Clark’s own interpretation—that the order in limine precluded all evidence, testimony or

reference to Clark’s preexisting injuries. The District Court did not correct the parties’

mutual misunderstanding of the order until the morning of the first day of trial, creating

the unfair surprise to Clark. Although Clark questioned her own experts about her

preexisting injuries, she did so as a “last-ditch” change in trial strategy in response to the

surprise and was substantially disadvantaged in trying a case she had not prepared for.

¶39      We conclude the District Court manifestly abused its discretion in denying Clark’s

motion for a new trial on the ground of unfair surprise. We reverse and remand for a new

trial.

¶40      Affirmed in part, reversed in part, and remanded for further proceedings consistent

herewith.

                                                  /S/ JIM RICE




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We concur:

/S/ MIKE McGRATH
/S/ PATRICIA O. COTTER
/S/ JOHN WARNER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS




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