                                                                                           May 25 2010


                                           DA 09-0439

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2010 MT 113



JOYCE COOPER,

              Plaintiff and Appellant,

         v.

PETER D. HANSON, M.D.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDV 2007-951
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Erik B. Thueson, Thueson Law Office, Helena, Montana

                        James T. Towe, Towe Law Offices, Missoula, Montana

                For Appellee:

                        J. Daniel Hoven, Carlo J. Canty, Browning, Kaleczyc, Berry
                        & Hoven, P.C., Helena, Montana



                                                    Submitted on Briefs: March 31, 2010

                                                                Decided: May 25, 2010


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Joyce Cooper (Cooper) appeals from a jury verdict in the First Judicial District

Court finding that defendant Peter D. Hanson, M.D. (Dr. Hanson) was not negligent in

his treatment and care of Cooper. Cooper argues that her right to a fair and impartial trial

was prejudiced in the course of the proceedings below, and that her motion for a new trial

was improperly denied by the District Court. For the reasons set forth below, we reverse

the verdict of the jury and remand this matter to the District Court for a new trial.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶2     Cooper had been suffering from arthritis in her left knee, and conservative

treatment measures had failed to alleviate the condition. On December 1, 2005, Dr.

Hanson performed a total knee arthoplasty surgery (TKA) on Cooper’s left knee. During

surgery, complications arose due to damage to the popliteal artery in Cooper’s left knee.

Cooper alleged that she suffered various permanent injuries to vessels and nerves in her

left leg as a result of the complications.

¶3     On December 7, 2007, Cooper filed a negligence action against Dr. Hanson in the

First Judicial District Court. Cooper alleged that Dr. Hanson was negligent in his use and

placement of surgical tools during the operation, and that he was responsible for severing

the popliteal artery in her left leg. Dr. Hanson denied he was negligent.

¶4     Prior to trial, Cooper sought a motion in limine to prohibit defense counsel from

presenting improper argument to the jury on the following:

       1.    That the defendant could or would be financially affected by any
       adverse verdict;



                                              2
      2.      That the defendant could face consequences concerning the right to
      practice medicine, continuing licensure, hospital privileges, or loss of
      limitation of business;
      3.      That the defendant may be forced to close or limit his services;
      4.      That the defendant could have his professional reputation or standing
      damaged;
      5.      That the defendant needs special protection or that there could be
      unspecified effects or consequences of the malpractice claims, this trial, or
      medical malpractice verdicts against a doctor;
      6.      That the jury should put itself in the shoes of the defendant or
      analyze the case and its potential consequences from the defendant’s
      perspective;
      7.      That the defendant feels bad or similar comments.

¶5    The District Court denied the motion, concluding that the request to exclude these

arguments was “vague and overbroad.” Counsel for Dr. Hanson, Daniel Hoven (Hoven),

expressed offense at the suggestion that he would violate the Rules of Evidence, and

assured the court that he would not engage in improper argument. The District Court

noted that counsel for both parties should be “fully aware of their ethical obligations and

what is proper argument at trial,” and further noted that any issues related to the

above-mentioned arguments should be dealt with by a proper objection at trial.

¶6    Jury selection began on April 20, 2009.         During voir dire, Cooper elicited

responses from several jurors on the topic of the plaintiff’s burden of proof in a civil

medical malpractice case. For instance, in response to a question about whether any

members of the panel would require proof greater than the preponderance of the evidence

in a medical malpractice case, juror Chris Silvonen (Juror Silvonen) stated the following:

      A.    In this particular matter, I would. I think that for the very little I
      know about it, if we were to say he was in the wrong, it could be career
      damaging. I think all those things—I don’t know. I’m—I know very little
      about what’s going on at this point, but it’s almost like a criminal sentence



                                            3
       for a doctor that’s got a malpractice, you know, type of deal. So I would
       like to see quite a bit of proof.
       Q.      More than just—
               A.     More than just a little bit.
               Q.     You’re pretty strong on that?
               A.     Yes.
               Q.     Pretty hard to change? Hard for me to change your mind?
               A.     Seems like a life sentence to a medical doctor.

¶7     Another member of the panel, Frederick Demato, also stated that he was “against

preponderance of the evidence” in this type of case. 1 Other jurors expressed similar

sentiments implying that the preponderance of the evidence standard would be

insufficient in a medical malpractice case. In exploring this issue with the jury, Cooper’s

trial counsel Erik Thueson (Thueson) had the following exchange with Juror Wayne

Waters:

       A.     Well, without knowing the facts, I can’t say that, but it would have
       to be a preponderance of the evidence.
       Q.     Okay. So you could go 51/49?
       A.     Nope.
       Q.     Well if this were a basketball game, how much would Joyce have to
       win the basketball game in your mind before you have enough doubts set
       aside?
       A.     Let’s say it would have to go a lot more than 51 percent.

¶8     Thueson also questioned Waters about his feelings on awards for pain and

suffering. Waters indicated that he could not make such an award unless there was “a

deliberate act or deliberate negligence on the part of the doctor.” When questioned

further, however, Waters also agreed that he could award such damages if it was shown

that a doctor made a mistake that was below the standard of care, but unintentional.


1
   Unlike the other members of the panel discussed in this Opinion, Demato was ultimately not
selected to serve on the jury.

                                             4
¶9     Thueson also questioned Juror Richard Ellwein about his ability to award damages

for pain and suffering if proven at trial. On this point, the following exchange occurred:

       Q.     Okay. Mr. Ellwein?
       A.     I believe I want to hear what the facts are and make a determination
       on the whole picture.
       Q.     You could award—
       A.     I could award damages, but I’m not going to discuss any amounts or
       anything like that. I will not go into detail about any amounts or anything
       like that. The cause of it—if we deem it necessary, we’ll—I’ll figure that
       out when I make a decision on that.
       Q.     Well—I mean, so you don’t have a problem with the concept?
       A.     No.
       Q.     If the evidence shows, you could award two or three hundred
       thousand?
       A.     I said, sir, don’t mention an amount. I won’t—I’ll just say—I’ll just
       say that what the—whatever the instructions are, I’ll base it on the
       instructions.

¶10    In response to Thueson’s examination, Juror Dave Miller indicated that there

should be a greater burden of proof in a medical malpractice case. When asked by

Thueson if he could be convinced of anything different in the next couple of days, he

answered “No.” When questioned, Juror Michael Eby stated that he “would need a lot

more proof . . . beyond a reasonable doubt to decide,” and further indicated that he

“would need a lot more than, say, 75 percent to decide one way or the other.”

¶11    During this questioning, some members of the jury panel expressed uncertainty

about what burden of proof is legally required since none of the potential jurors had

actually been instructed by the court on this issue. Sensing the jury’s confusion on this

point, the District Court interjected and reminded Thueson that there were no assigned

percentages to a preponderance, and told counsel that he was confusing the court and jury

pool. Shortly thereafter, Thueson then went on to explore other topics with the jury.


                                             5
¶12    During a break and outside the presence of the jury panel, Thueson raised

concerns with the court that many panel members had indicated their inability to apply

the preponderance of the evidence standard in a civil malpractice case. Counsel indicated

his belief that if a juror demonstrated such a bias, he or she should be excused for cause.

Defense counsel responded that Thueson was confusing the jury and that, in any event,

defense counsel should be given the opportunity to rehabilitate any jurors who were

challenged for cause. The District Court reiterated its concerns that Thueson’s discussion

of the burden of proof was confusing the jury, and allowed Thueson to read to the jurors

the pattern jury instruction on the preponderance of the evidence standard in order to

clarify the issue.

¶13    Thueson continued to examine the jury panel after the break and discussion in

chambers. He challenged several potential jurors for cause on grounds not related to the

burden of proof question, and the District Court granted some of those challenges.

Thueson then returned to examining Juror Waters and questioned him about his ability to

be fair in a medical malpractice case.      Waters, whose job required him to decide

disability determinations on a regular basis, indicated that he could be fair, but wanted to

“know the evidence and see the medical evidence.”           Thueson questioned whether

“malpractice information” would creep into his decision-making process regarding a

doctor’s liability, to which Waters responded “If he’s not doing his job, then—but I don’t

know that at this point.” When pressed further if he would require a high burden of proof

in a medical malpractice case, Waters responded “Doctors can make mistakes like

anybody else.”       Thueson then challenged Waters for cause.      Hoven was given the


                                             6
opportunity to examine Waters, who stated that he would not be biased in judging the

evidence presented to him. The District Court subsequently denied Thueson’s challenge

for cause.

¶14    Voir dire continued. However, Jurors Silvonen and Eby were not specifically

challenged for cause based on their inability to apply the preponderance of the evidence

standard, or their general bias in a medical malpractice suit. As Thueson had been

instructed by the District Court to finish his examination before a noon-hour lunch break,

Thueson stopped his examination and thanked the jury for their time. Thueson did not

expressly inform the District Court at this time that he was passing the jury for cause,

although he did conclude his examination.

¶15    After the lunch break, but before the jury panel was reconvened, Thueson

specifically challenged jurors Silvonen, Eby, and Ellwein for cause, arguing that these

three jurors were unable or unwilling to apply the preponderance of the evidence standard

to the case. Thueson also reminded the court of Silvonen’s statement that a malpractice

verdict was like a “life sentence” to a doctor. Hoven objected, claiming that Thueson had

already passed the jury for cause prior to lunch. Thueson stated that he had not passed

the jury for cause before lunch, but finished his questioning solely because the District

Court wanted him to conclude his voir dire by noon.         At the same time, Thueson

conceded that Hoven was probably “technically right” on this point, but nonetheless

requested an opportunity to make a record of his challenges to these jurors. With respect

to Silvonen, the District Court denied the challenge for cause on the grounds that

Silvonen had been questioned after his initial statements and indicated he could be fair.


                                            7
With respect to Juror Eby, the District Court denied this challenge on similar grounds,

noting that there was significant discussion about the preponderance of the evidence

standard after his initial statements. Finally, with respect to Juror Ellwein, the District

Court denied that challenge as well, agreeing with Hoven’s claim that Ellwein did not

demonstrate a bias, but rather simply resisted attempts to assign a monetary figure to pain

and suffering damages without seeing or hearing any evidence.

¶16     Cooper used her preemptory challenges for jurors Waters and Ellwein and two

other potential jurors, but Eby and Silvonen served on the jury. Trial then commenced.

During the trial, both sides presented expert and lay testimony on various aspects of the

case, and the court received numerous exhibits into evidence.         During his closing

statements, Thueson presented the jury with some information about his personal

biography, and how he became a trial lawyer. In this connection, he stated:

        And I didn’t go the route that Dan [Hoven] went. I didn’t want to represent
        companies, businesses, corporations. I wanted to represent individuals.
        People. And I’m proud of that.

¶17     Later, during Hoven’s closing statement, he made the following statement to the

jury:

                And when Mr. Thueson suggested that I represent companies and
        corporations, I represent Pete Hanson. A person. Dr. Hanson is just as
        entitled to justice in this courtroom as Ms. Cooper. He’s a person. He’s a
        member of this community.
                He didn’t even have to come back here. He could have stayed in
        Akron. We’re lucky to have him. We’re lucky to have a trained orthopedic
        surgeon.
                MR. THUESON: May I? I think there’s a case called Wellcome
        [sic]. I would make an objection on the Wellcome case, Your Honor.
                THE COURT:            Overruled.



                                            8
¶18    Then, at the end of his closing statement, Hoven stated the following:

              So it’s been kind of a long week. And when you do these trials, I
       feel like I know some of you people now. And we’ll probably see each
       other on the street someday.
              But I want to make sure you guys are proud of your verdict. And I
       don’t think putting a black mark on Dr. Hanson in this case is going to
       make you proud.

Cooper did not object or ask the court to admonish the jury or counsel at the time this

statement was made.

¶19    After roughly one hour, the jury returned a defense verdict, finding that Dr.

Hanson was not negligent in his treatment of Cooper. After the jury was dismissed,

Cooper made a record in support of a motion for a new trial. Cooper argued that counsel

for Dr. Hanson made several improper comments to the jury during closing statements.

Cooper objected to comments that the jury should consider the effect of its verdict on Dr.

Hanson’s reputation, in particular to the fact that it would put a “black mark” on him.

Cooper pointed out that she sought to prohibit such argument in her motion in limine, and

noted that the timing of the comments put her in a difficult position. Cooper argued that

this was an appeal to passion and prejudice which should not have been permitted.

¶20    Cooper subsequently filed a written motion for a new trial, arguing in part that the

bias of the jury, the District Court’s failure to grant her challenges for cause, and

improper arguments by Dr. Hanson during closing, prejudiced her right to a fair trial.

The District Court denied the motion in a written order dated July 10, 2009. The District

Court noted that § 25-11-102, MCA, provides that a verdict may be vacated, and a new

trial granted, upon:



                                            9
       the application of the party aggrieved for any of the following causes
       materially affecting the substantial rights of the party:
              (1) irregularity in the proceedings of the court, jury, or adverse party
       or any order of the court or abuse of discretion by which either party was
       prevented from having a fair trial;

                                          .   .    .

             (3) accident or surprise which ordinary prudence could not have
       guarded against;

                                          .   .    .

             (7) error in law occurring at the trial and excepted to by the party
       making the application.

¶21    Addressing Cooper’s argument concerning jury bias and the denial of challenges

for cause, the District Court noted that Thueson’s voir dire of the jury had continued

beyond its allotted time, and reiterated its view that Thueson was confusing the jury and

trying to get them to commit to positions before they had heard any evidence.

¶22    After reviewing the transcript, the District Court concluded that the challenge to

Juror Waters was properly denied and that he did not express an unqualified belief as to

the merits of the case, nor did he exhibit a bias in favor of either party. Similarly, the

District Court concluded that challenges to Eby, Ellwein, and Silvonen were properly

denied. With respect to each of these jurors, the District Court determined that the

challenges were untimely and that a review of the entire examination failed to show that

there was a bias in these jurors affecting Cooper’s substantial right to a fair trial. The

District Court noted that Cooper’s challenges to Eby, Silvonen, and Ellwein occurred

after lunch recess, well after the actual exchanges with the jurors, and that Cooper failed

to follow up with these jurors on the burden of proof question after Thueson was allowed


                                              10
to read the instruction on burden of proof to the jury. The District Court noted that

Cooper placed the court in a difficult position by lodging her challenges after lunch

recess, since it did not have a transcript of the voir dire at the time and was left to attempt

to recollect the statements of the panel members.

¶23    The District Court further concluded that there was nothing in the responses of

Ellwein which required that he be excused for cause. Regarding Eby and Silvonen, the

District Court noted that their challenged statements “were made early in the voir dire

process, prior to a reading of the instruction on the preponderance of the evidence and

prior to, literally, hours of additional discussion of the issues with the jury panel.” Based

on this, the District Court concluded that Cooper had failed to establish that the denial of

her challenges for cause resulted in the seating of a biased jury. Additionally, the District

Court also concluded that Cooper’s challenges were untimely under M. R. Civ. P. 47(b),

and found it “inconceivable” the Cooper’s failure to challenge Eby, Silvonen, or Ellwein

could be blamed on a lack of time to do so.

¶24    The District Court also addressed Cooper’s contentions that Hoven’s remarks

during closing statements substantially affected her right to a fair trial. The District Court

began its analysis here by noting that it had previously denied Cooper’s motion in limine

regarding improper argument. It reiterated its ruling that the motion was “vague and

overbroad,” and its direction that Cooper address issues of improper argument with a

proper objection at trial. In this connection, the District Court observed that Cooper did

not object to Hoven’s “black mark” comments at trial, and therefore waived her right to

appeal them in the post-judgment context. Cooper did object to Hoven’s remarks that the


                                              11
jurors were “lucky” to have Dr. Hanson in Helena.            However, the District Court

characterized the remarks as,

         [an] invited response to Cooper’s closing argument indicating defense
         represents corporations. While defense counsel’s statements that we were
         lucky to have Hanson in Helena may have gilded the lily, the Court does
         not believe that this statement at the end of a week-long jury trial denied
         Cooper’s right to a fair trial. Cooper’s motion for a new trial on the basis
         of improper closing argument by defense counsel should be denied.

¶25      Cooper now appeals from the jury’s verdict and the rulings of the District Court.

Cooper presents three separate issues on appeal. First, Cooper argues the District Court

abused its discretion in denying her motion in limine. Second, Cooper claims the District

Court abused its discretion in denying her challenges to jurors for cause. Third, Cooper

claims it was an abuse of discretion for the District Court to refuse to grant a new trial

based upon juror bias in voir dire and Hoven’s improper comments during closing

argument.

¶26      Although Cooper presents three separate issues on appeal, we find the District

Court’s denial of the motion for a new trial to be dispositive. Thus, we state the sole

issue on appeal as follows:

¶27      Did the District Court abuse its discretion in denying Cooper’s motion for a new

trial?

                                STANDARD OF REVIEW

¶28      We review a district court’s decision to deny a motion for a new trial on the

grounds enumerated in § 25-11-102, MCA, for an abuse of discretion.              Willing v.

Quebedeaux, 2009 MT 102, ¶ 19, 350 Mont. 119, 204 P.3d 1248. “The decision to grant



                                             12
or deny a new trial is within the sound discretion of the trial judge and will not be

disturbed absent a showing of manifest abuse of that discretion. ‘The standard requires

that the abuse of discretion be so significant as to materially affect the substantial rights

of the complaining party.’ ” Willing, ¶ 19 (quoting Lopez v. Josephson, 2001 MT 133,

¶ 16, 305 Mont. 446, 30 P.3d 326). A district court’s ruling on a motion in limine, and its

ruling denying a challenge to a juror for cause, are both reviewed for an abuse of

discretion. State v. Schmidt, 2009 MT 450, ¶ 27, 354 Mont. 280, 224 P.3d 618; State v.

Hart, 2009 MT 268, ¶ 9, 352 Mont. 92, 214 P.3d 1273. A district court abuses its

discretion if it makes a ruling arbitrarily, unreasonably, or without employing

conscientious judgment, resulting in substantial injustice. Hart, ¶ 9.

                                      DISCUSSION

¶29    In order to determine whether the District Court abused its discretion when it

denied Cooper’s motion for a new trial, we must examine the various errors which

Cooper alleges combined to deny her a fair trial. First, Cooper argues that the District

Court’s denial of her challenges to cause, amounts to structural error requiring reversal

and a new trial under State v. Hausauer, 2006 MT 336, 335 Mont. 137, 149 P.3d 895.

Cooper claims that Silvonen’s comment that a plaintiff’s verdict is like a “life sentence”

to a doctor, and the comments of Eby, Waters, and Ellwein, demonstrating a reluctance to

apply the preponderance of evidence standard and bias towards the defendant,

demonstrated bias sufficient to have them removed for cause. Cooper contends that these

jurors were not sufficiently rehabilitated to allow them to serve impartially on the jury,




                                             13
and that the District Court committed reversible error by denying her challenges for

cause.

¶30      Additionally, Cooper disputes the District Court’s determination that her

challenges for cause to jurors Eby, Ellwein, and Silvonen were untimely under

M. R. Civ. P. 47(b). This rule reads in pertinent part as follows:

                 Rule 47(b). Manner of selection and order of examination of
         jurors. From the entire jury panel, an initial panel of 20 jurors shall be
         called in the first instance, and before any voir dire examination of the jury
         shall be had. Examination of all jurors in the initial panel shall be
         completed by the plaintiff before examination by the defendant. If
         challenges for cause are allowed, an additional juror shall be called from
         the entire panel immediately upon the allowance of challenge, and the juror
         called to replace the juror excused for cause shall take the number of the
         juror who has been excused, to provide a full initial panel of 20 jurors,
         whose examination shall be completed before any peremptory challenges
         are made. When the voir dire examination has been completed, each side
         shall have four peremptory challenges, and they shall be exercised by the
         plaintiff first striking one, the defendant than striking one, and so on, until
         each side has exhausted or waived its right.

Here, Cooper’s challenges were made before examination by the defendant commenced;

thus, she argues her challenges were not untimely.

¶31      Cooper also claims that Hoven’s improper comments during closing prejudiced

her right to a fair trial and constituted additional grounds for reversal. Cooper argues that

Dr. Hanson’s “black mark” comments in closing statements were not supported by the

evidence, were highly prejudicial, and constitute grounds for a new trial under Kuhnke v.

Fisher, 210 Mont. 114, 683 P.2d 916 (1984) and Havens v. State, 285 Mont. 195, 945

P.2d 941 (1997). Cooper also argues that Hoven’s statements that the jury was “lucky”




                                               14
to have Dr. Hanson in Helena constituted improper argument which prejudiced her right

to a fair trial.

¶32     In this connection, Cooper notes that the purpose of her motion in limine was to

place her objection to such comments on the record before trial, without requiring her

counsel to repeatedly object to the improper argument and draw the jury’s attention to

these types of prejudicial comments.        Cooper notes that Dr. Hanson specifically

represented to the District Court that he would he would refrain from improper argument

and respect the rules of evidence. For instance, in Dr. Hanson’s brief in opposition to the

motion in limine, he stated:

               Plaintiff’s request to exclude “improper argument” is vague and
        overbroad, and should not be granted unless and until it becomes necessary
        in the context of trial. Defense counsel is an experienced trial attorney and
        recognizes and respects the Rules of Evidence. Defense counsel resents
        Plaintiff’s suggestion that he would flagrantly violate those rules.
               Defense counsel further submits that several of the specific items
        Plaintiff lists as “irrelevant” and “inflammatory” should not be
        categorically excluded from trial, particularly in the context of closing
        argument. Defense counsel is cognizant of his duties and responsibilities in
        doing his part to facilitate a fair trial for all parties. However, he is
        confident in his ability to refrain from improper argument, and, more
        importantly, he is confident in the Court’s abilities to rule properly in the
        context of trial on what is and is not relevant and proper argument.

¶33     Cooper argues the “black mark” comments to the jury were particularly prejudicial

given the statements by the panel members during voir dire reflecting a predisposition in

favor of the defendant, and concerns about the consequences a verdict against the doctor

could have. Cooper argues that a new trial is warranted under Havens since Hoven

represented to the District Court he would not engage in the prohibited conduct and then

engaged in the very conduct itself. Cooper argues that her substantial right to a fair trial


                                             15
was materially affected by these irregularities, and that the District Court manifestly

abused its discretion when it denied her motion for a new trial.

¶34    Dr. Hanson urges us to affirm, and contends that any claimed irregularities in the

proceedings did not prejudice Cooper’s right to a fair trial. First, Dr. Hanson argues that

the District Court’s denial of the motion in limine was not an abuse of discretion. Dr.

Hanson claims that the motion in limine was vague and overbroad and notes that the

District Court specifically instructed Cooper to raise any objections based on the

arguments noted in the motion at trial. However, Cooper objected only to the comments

that the Helena jurors were “lucky” to have Dr. Hanson, and did not raise an objection to

the “black mark” comments. Dr. Hanson argues the “lucky” comments were not

prejudicial, and that Cooper waived her objections to the “black mark” comments, which

were not prejudicial at any rate.

¶35    Second, Dr. Hanson argues the District Court acted within its discretion when it

denied Cooper’s challenges for cause. Dr. Hanson asserts that Cooper’s examination of

the jury was confusing and was simply an attempt to pin potential members of the jury to

a specific position before they had a chance to see evidence and hear argument. Dr.

Hanson further contends that none of the potential jurors evinced bias or enmity in favor

of either party. Dr. Hanson notes that Cooper failed to question jurors Eby and Silvonen

about any potential bias after the preponderance of the evidence instruction was read, and

failed to challenge them while in the presence of the jury. Thus, whether any of the

jurors were actually biased or would not apply the preponderance of the evidence

standard at trial is not known. Dr. Hanson further argues that Ellwein did not evince bias


                                            16
or enmity, but was simply reluctant to define an amount of damages without hearing any

evidence.   With respect to Waters, who was challenged in the jury’s presence, Dr.

Hanson contends that he did not evince any bias, and was properly rehabilitated.

Additionally, Dr. Hanson argues that the District Court correctly concluded that Cooper

waived her right to challenge the jurors for cause under M. R. Civ. P. 47(b), by failing to

bring such challenges at the conclusion of her examination before the lunch recess.

¶36   With regard to the denial of the motion for a new trial, Dr. Hanson contends there

was sufficient evidence to support the defense verdict and that the District Court’s denial

of the motion in limine and challenges for cause did not constitute irregularities since

they were made within the District Court’s discretion. Further, Dr. Hanson disputes that

Hoven’s comments during closing statements materially affected Cooper’s substantial

right to a fair trial. Dr. Hanson faults Cooper for failing to object to the challenged

comments during trial, and also contends that “Dr. Hanson’s counsel did not break his

word during his closing argument,” and that Havens is inapposite.

¶37   As noted by the District Court, § 25-11-102, MCA, sets forth the bases upon

which a verdict may be vacated and a new trial granted. Irregularities in the proceedings

on behalf of the court, jury, or adverse party may constitute a grounds for reversal and a

new trial under § 25-11-102(1), MCA. Upon a careful review of the record in this case,

we conclude that Dr. Hanson’s “black mark” statement during closing, in combination

with juror Silvonen’s “life sentence” statement and expressed concerns of the other jurors

about the preponderance of the evidence standard, and Hoven’s assurances to the court




                                            17
that he would not engage in improper argument, constitute irregularities in the court

proceedings which materially prejudiced Cooper’s substantial right to a fair trial.

¶38    As noted above, several of the jury panel members were overtly reluctant to apply

a preponderance of the evidence standard to the case before them. One juror voiced his

belief that a plaintiff’s verdict would be tantamount to a life sentence. This being so,

Cooper’s pretrial motion in limine, seeking to preclude improper argument on these

sensitive issues, was prescient. Cooper sought a pretrial ruling precisely to guard against

appeals to passion or prejudice—and the voir dire indeed revealed that such passions and

prejudices were in the air.       Understandably, Cooper wanted to avoid objecting to

improper arguments in front of the jury, as such objections only underscore the

inappropriate points made by opposing counsel. We have historically encouraged the

filing of motions in limine for precisely this reason. See State v. Ingraham, 1998 MT

156, ¶ 36, 290 Mont. 18, 966 P.2d 103 (“A motion in limine has special advantages in

situations such as this. A party may not wish to register an objection in the presence of

the jury for tactical reasons, yet may wish to preserve the objection on appeal.”); State v.

Krause, 2002 MT 63, ¶ 32, 309 Mont. 174, 44 P.3d 493 (quotations omitted) (“The

purpose of a motion in limine is to prevent the introduction of evidence which is

irrelevant, immaterial, or unfairly prejudicial. Accordingly, the authority to grant or deny

a motion in limine rests in the inherent power of the court to admit or exclude evidence

and to take such precautions as are necessary to afford a fair trial for all parties.”).

¶39    The “black mark” comment must be considered in the context of the anxieties

expressed by the jurors. The remark was timed and intended to remind the jurors that the


                                               18
doctor’s reputation would be tarnished by a verdict against him, and to let them know it

was alright—indeed, important—for them to take account of that prospect when deciding

the outcome of the case.       This suggestion that reputation should be taken into

consideration during deliberations was improper and highly prejudicial, especially under

the circumstances presented by voir dire.

¶40    In Kuhnke we expressly held that reputation argument was improper. Kuhnke, 210

Mont. at 122, 683 P.2d at 920-21. Cooper specifically cited Kuhnke to the District Court

as a basis for her motion in limine. See also Rush v. Hamdy, 627 N.E.2d 1119, 1123 (Ill.

App. 4 Dist. 1994) (“The impact of a verdict against a defendant upon the defendant’s

reputation is irrelevant and should not be considered by the jury in resolving the issue of

defendant’s negligence.    A reference to the impact of a verdict upon defendant’s

reputation is an appeal to the passions and sympathy of the jury.”). Further, the prospect

of Hoven meeting the jurors “on the street” and their feeling ashamed of their verdict is

highly improper and prejudicial. Such comments can play no legitimate role in the

context of a civil jury trial. These comments were “well placed” in a manner which

maximized their prejudicial effect on the jury and deprived Cooper of a meaningful

opportunity to respond. See Willing, ¶¶ 26-27.

¶41    In light of the timing and circumstances present here, after Hoven made his “black

mark” comments, the District Court’s previous rulings should have been reexamined in

conjunction with Cooper’s motion for a new trial. An analogous situation was presented

to this Court in Havens. In that case, plaintiff Steven Havens (Havens) was struck by an

automobile at an intersection in Butte, Montana, and sued the state of Montana for


                                            19
negligence in failing to install a traffic light at that intersection. Havens, 285 Mont. at

196, 945 P.2d at 941. After the collision, the motorist who struck Havens was issued a

citation. However, Havens had been consuming alcohol the day of the accident, and a

subsequent toxicology report showed a blood alcohol concentration of .068 and yielded a

positive result for marijuana. Havens, 285 Mont. at 196, 945 P.2d at 941. Havens filed a

motion in limine to prohibit the introduction of this evidence, which was denied by the

district court. The State asserted that it would present this evidence at trial. In order to

blunt the effect of such evidence on the jury, Havens himself introduced it in his

case-in-chief.   However, the State did not offer evidence that Havens’ alcohol

consumption contributed to the accident. Furthermore, the investigating officer testified

at trial that the other motorist pulled in front of Havens so quickly that there was nothing

Havens could have done to avoid the accident, and that his alcohol consumption did not

play a part in the accident. Havens, 285 Mont. at 198, 945 P.2d at 942. The jury

subsequently returned a verdict in favor of the State.

¶42    After the verdict, Havens moved for a new trial. Havens argued that evidence of

his alcohol consumption and the results of the toxicology report had no relevance and

caused him severe prejudice. The district court denied the motion for a new trial, and

Havens appealed. First, this Court agreed with Havens that the evidence concerning his

alcohol consumption and the toxicology report was prejudicial and irrelevant since it was

not alleged that his consumption of alcohol or marijuana in any way contributed to the

accident. Havens, 285 Mont. at 200, 945 P.2d at 943-44. Second, while the Court

concluded that the district court did not err when it originally denied the motion in limine


                                             20
based on the State’s assurances, we nonetheless held that the district court should have

reconsidered its ruling in the post-trial context “in light of the State’s failure to fulfill its

promise to elicit testimony establishing Havens’ alcohol consumption as a factor in

causing the collision.” Havens, 285 Mont. at 201, 945 P.2d at 944. We prefaced this

holding with the following analysis:

               Although we rarely find a manifest abuse of discretion in the denial
       of a motion for a new trial, there are certain instances in which the
       prejudicial matter at issue undermines the fairness to such a degree that a
       new trial is the only remedy. In Kuhnke v. Fisher (1984), 210 Mont. 114,
       683 P.2d 916, we addressed the question of improper argument to the jury
       and noted that “the only way to be sure which, if any, of the defendants
       should be exonerated or whether plaintiff should recover at all is to grant a
       new trial.” Kuhnke, 683 P.2d at 922. In Putro v. Baker (1966), 147 Mont.
       139, 410 P.2d 717, we were confronted with a situation wherein jurors had
       been exposed to a prejudicial newspaper article about the case under
       consideration. The district court denied both a motion for a mistrial and a
       motion for a new trial. We reversed and held that “the guiding principle of
       our legal system is fairness. We must tenaciously adhere to the ideal that
       both sides of a lawsuit be guaranteed a fair trial. Sec. 27, Art. III, Montana
       Constitution [now Sec. 17, Art. II].” Putro, 410 P.2d at 722. We also
       reasoned “that unexplained prejudicial references to important matters in
       litigation may have a ‘natural tendency’ to infect the proceedings with an
       unfairness that can be corrected only by starting anew the legal contest.”
       Putro, 410 P.2d at 722.

Havens, 285 Mont. at 200-01, 945 P.2d at 944.

¶43    In light of the foregoing, we conclude that the District Court abused its discretion

in failing to grant Plaintiff’s motion for a new trial. Because cumulative prejudice,

culminating in the Defendant’s unlawful appeal to the passions and prejudices of the jury,

denied the plaintiff a fair trial, the only way this unfairness can be corrected is “ ‘by

starting anew the legal contest.’ ” Havens, 285 Mont. at 201, 945 P.2d at 944 (quoting




                                               21
Putro, 147 Mont. at 149, 410 P.2d at 722). Therefore, we reverse and remand for a new

trial.

                                       CONCLUSION

¶44      For the foregoing reasons, we conclude this is one of those rare cases in which it is

manifest that a district court has abused its discretion in failing to grant a motion for a

new trial. We therefore reverse the jury’s verdict and remand this matter to the District

Court for further proceedings consistent with this Opinion.


                                                          /S/ PATRICIA O. COTTER


We concur:

/S/ JIM RICE
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON




Justice James C. Nelson concurs.

¶45      I concur in the Court’s Opinion and the Court’s reversal on the issues involving

the challenges for cause and defense counsel’s closing arguments.

¶46      I would also reverse and remand for a new trial, however, on the matter of the trial

court’s denial of Cooper’s motion in limine. The District Court erred in its determination

that Cooper’s motion was “vague and overbroad.” It was not; the motion was specific in

requesting the court to exclude certain categories of clearly inadmissible evidence.




                                              22
Granting it should have been a no-brainer. Indeed, the motion turned out to be prescient

as to at least two categories of the specified evidence.

¶47    Cooper properly requested the court to prohibit references to Hanson’s

professional reputation or standing; that Hanson needed special protection; or that there

could be unspecified effects or consequences of the malpractice claims, this trial, or a

malpractice verdict against Hanson—Numbers 4 and 5 in Cooper’s motion. Opinion, ¶ 4.

As the Court’s Opinion states, that sort of evidence and argument is improper in a

professional negligence case; it is irrelevant to the question of whether the professional

person breached the applicable standard of care and, in so doing, caused the plaintiff

damages. It does nothing but appeal to the passions, sympathies and biases of the jurors.

Opinion, ¶¶ 37, 39, 40. Any professional person can make a mistake, and this State’s tort

system is designed to compensate the injured party for the professional’s negligence—

regardless of what sort of “mark” or effect that may have on his or her reputation,

standing, practice or personal finances.

¶48    Even defense counsel recognized the impropriety of these types of comments and

arguments—he feigned offense at even the suggestion that he would violate the Rules of

Evidence and he assured the court and counsel that he would not engage in the very sort

of improper comment and argument that he, eventually, did. Opinion, ¶¶ 5, 32.

¶49    Therefore, independently of any other error committed by the trial court in this

cause, I would hold that the trial court erred in denying Cooper’s motion in limine, and I

would reverse and remand for a new trial on that error.




                                             23
¶50    Finally, while I concur with the Court’s Opinion generally in its resolution of the

challenges for cause issue, I do not necessarily extend my agreement to the manner in

which Cooper’s challenges for cause were made in this case. However, since we do not

actually interpret the language of M. R. Civ. P. 47(b), I am satisfied to leave the proper

construction of this Rule for another day.

¶51    I concur.


                                                  /S/ JAMES C. NELSON


Chief Justice Mike McGrath, specially concurring.


¶52    I concur in the result reached by the Court. The refusal of the District Court to

remove the disputed jurors for cause warrants reversal and a new trial.

¶53    However, I disagree with the Court’s conclusions regarding defense counsel’s

statements in closing argument. The comments did not deny plaintiff a fair trial when

considered in the context of the entire argument. The District Court correctly noted that

counsel’s remarks were an “invited response to Cooper’s closing argument” and an

appropriate reply. Nor was the “black mark” comment sufficiently improper or

prejudicial within the context of the proceeding. That statement by defense counsel is

different in character and degree from those in Kuhnke, the opinion cited by the majority

where the remarks of counsel in closing caused the trial judge to describe them as terribly

disturbing. Kuhnke, 210 Mont. at 125, 683 P.2d at 922.




                                             24
¶54   The jurors were admonished by the court that statements by the attorneys are not

evidence. Juries are certainly capable of parsing argument from evidence and, thus,

attorneys are generally given some latitude in closing argument.

¶55   I do not join with the Court’s opinion regarding cumulative prejudice.



                                                /S/ MIKE McGRATH




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