                                                                                         October 13 2015


                                          DA 14-0727
                                                                                         Case Number: DA 14-0727

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2015 MT 296



RICHARD SIEBKEN,

               Plaintiff and Appellant,

         v.

HENRY VODERBERG,

               Defendant and Appellee.


APPEAL FROM:           District Court of the First Judicial District,
                       In and For the County of Lewis and Clark, Cause No. CDV 09-225
                       Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana

                For Appellee:

                       Gary L. Walton, Walton & Luwe, Butte, Montana



                                                  Submitted on Briefs: August 19, 2015
                                                             Decided: October 13, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Richard Siebken appeals a jury verdict and judgment rendered in favor of Henry

Voderberg in the First Judicial District Court, Lewis and Clark County. We restate the

issues on appeal as follows:

       1. Whether Siebken is entitled to a new trial because the District Court allowed
       into evidence a letter from Dr. Speth to Dr. Sorini regarding Siebken’s medical
       history and diagnosis.

       2. Whether Siebken is entitled to a new trial because the District Court
       erroneously instructed the jury on the statute of limitations governing Siebken’s
       claim.

       3. Whether substantial evidence supported the jury verdict.

¶2     We affirm.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     This matter has been before this Court on a previous occasion.            Siebken v.

Voderberg, 2012 MT 291, 367 Mont. 344, 291 P.3d 572 (hereinafter Siebken I). In

Siebken I, this Court reversed the District Court’s conclusion on summary judgment that

the statute of limitations barred the action. On remand, the primary factual dispute at trial

was when the three-year statute of limitations began running on Siebken’s negligence

claim. Because the background facts are delineated in Siebken I, we restate the facts only

briefly.

¶4     Siebken was on duty as an officer at the Federal Reserve Bank in Helena, Montana

on December 11, 2004, when he had a physical altercation with Voderberg. Voderberg

was trespassing across Bank property on his way home from an evening with friends and

refused to cooperate with Siebken’s commands. Siebken and other officers forcibly

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handcuffed Voderberg. Siebken claims that the incident resulted in a spinal injury,

leaving him permanently and totally disabled and unable to work. Siebken filed his

complaint for damages against Voderberg on March 18, 2009.

¶5     At trial, Siebken testified that he had a headache immediately following the

incident, which he attributed to exertion from the struggle.     Later, Siebken began

experiencing back pain. Between February and May 2005, Siebken saw physicians at

Mountain View Medical Clinic several times for treatment. In July 2005, Siebken first

consulted with Dr. Peter Sorini, a neurosurgeon in Anaconda, Montana. Siebken told

Dr. Sorini his lower back pain began in December 2004. Dr. Sorini ordered an MRI, the

results of which were discussed during an August 18, 2005 appointment. The results

showed that Siebken’s lower back pain resulted from compression of the spinal cord by

the vertebrae in his neck.

¶6     Siebken’s wife Valerie accompanied him to both the July and August 2005

appointments. Valerie testified that she, Dr. Sorini, and Siebken discussed possible

causes of the neck injury during the August 2005 appointment. Valerie testified that she

brought up the December 2004 altercation because she thought “there was no other

possibility of anything that would be considered traumatic enough for that kind of an

injury.”

¶7     Dr. Sorini referred Siebken to Dr. Steven Speth for a second opinion regarding

surgical options. Dr. Speth concurred with Dr. Sorini’s recommendation for surgery and,

in a September 8, 2005 letter to Dr. Sorini, stated, “In January/February [Siebken] was

involved in an altercation at the bank which exacerbated his neck pain.”             On

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September 19, 2005, Siebken returned to Dr. Sorini for a pre-surgery consultation. The

record for this visit similarly referenced a January 2005 incident. Dr. Sorini testified by

deposition that by September 2005, he had concluded that Siebken’s neck issues were

caused by an incident in December 2004 and any reference to a January 2005 incident

was a typographical error.

¶8     Dr. Sorini performed surgery on Siebken’s neck in October 2005.            Siebken

testified that it was not until a post-surgery follow-up appointment on May 26, 2006, that

he first learned from Dr. Sorini a causal connection between the December altercation

and his neck injury, and the need to seek legal counsel.

¶9     The jury returned a defense verdict after finding that Siebken’s claims were barred

by the statute of limitations. The District Court entered judgment in favor of Voderberg

on October 30, 2014.

                              STANDARDS OF REVIEW

¶10    We review a district court’s decisions regarding jury instructions and evidentiary

rulings for an abuse of discretion. Ammondson v. Nw. Corp., 2009 MT 331, ¶ 30, 353

Mont. 28, 220 P.3d 1; City of Missoula v. Duane, 2015 MT 232, ¶ 10, 380 Mont. 290,

355 P.3d 729.

¶11    We generally do not consider issues raised for the first time on appeal.

Dambrowski v. Champion Int’l Corp., 2000 MT 149, ¶ 29, 300 Mont. 76, 3 P.3d 617

(citation omitted). This rule “applies to both substantive and procedural matters, as well

as to a change in a party’s theory of the case.” Hansen Trust v. Ward, 2015 MT 131,

¶ 19, 379 Mont. 161, 349 P.3d 500 (quoting Day v. Payne, 280 Mont. 273, 276, 929 P.2d

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864, 866 (1996)). We will not review a claimed error in a jury instruction absent a

specific objection before the trial court. Nott v. Booke, 194 Mont. 251, 255, 633 P.2d

678, 680 (1981).

¶12   We uphold a jury’s verdict against a challenge to the sufficiency of the evidence

if, viewing the evidence in a light most favorable to the prevailing party, there is

substantial evidence to support the fact-finder’s determination. Murray v. Whitcraft,

2012 MT 298, ¶ 7, 367 Mont. 364, 291 P.3d 587. Substantial evidence is evidence that a

reasonable mind might accept as adequate to support a conclusion, even if weak and

conflicting. Teton Coop. Reservoir Co. v. Farmers Coop. Canal Co., 2015 MT 208, ¶ 16,

380 Mont. 146, 354 P.3d 579.

                                    DISCUSSION

¶13 1. Whether Siebken is entitled to a new trial because the District Court allowed
into evidence a letter from Dr. Speth to Dr. Sorini regarding Siebken’s medical history
and diagnosis.

¶14   The September 8, 2005 letter from Dr. Speth to Dr. Sorini included the following

statement: “In January/February [Siebken] was involved in an altercation at the bank

which exacerbated his neck pain.” On appeal, Siebken argues that the District Court

erred in admitting the letter without a showing of authenticity or foundation and without

an appropriate hearsay exception.

¶15   Neither Dr. Speth nor Dr. Sorini testified in person at trial, but both appeared by

deposition. Siebken objected to portions of Dr. Speth’s and Dr. Sorini’s depositions on

authenticity, hearsay, and foundation grounds. The District Court overruled Siebken’s

foundation and authenticity objection to the Speth letter on the basis that he made no

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contemporaneous objection during the deposition. Siebken’s trial objection to the letter

did not include a hearsay objection.

                               Foundation & Authenticity

¶16    Siebken did not object to the foundation or authenticity of the letter during

Dr. Speth’s deposition. Siebken waited until the morning of trial and during trial to

object to the letter on those grounds. The District Court overruled Siebken’s objections,

ruling that because there was no objection to the foundation or authenticity of the letter at

the deposition, the letter would be admitted.

¶17    M. R. Civ. P. 32 governs the use of depositions in court proceedings and addresses

a party’s waiver of objections. M. R. Civ. P. 32(b) provides that “an objection may be

made at a hearing or trial to the admission of any deposition testimony that would be

inadmissible if the witness were present and testifying.” Rule 32(b) is subject to several

exceptions set forth in subsection (d), under which objections may be deemed waived.

Rule 32(d)(3)(A) provides that a party does not waive an objection “to a deponent’s

competence—or to the competence, relevance, or materiality of testimony . . . by [failing]

to make the objection before or during the deposition, unless the ground for it might have

been corrected at that time.” (emphasis added). The principle underlying this exception

“is to require defects in the taking of depositions to be pointed out promptly on pain of

waiver . . . [in order] to give the erring party an opportunity to correct the mistake, and to

prevent waste of time and money . . . .” Olson v. Shumaker Trucking & Excavating

Contrs., Inc., 2008 MT 378, ¶ 44, 347 Mont. 1, 196 P.3d 1265 (quoting Charles Alan

Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure Ch. 6,

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§ 2153 (2d ed. 1994)). If a foundational objection could have been corrected during a

deposition, it is waived at trial by failing to bring it contemporaneously with the

deposition. Olson, ¶¶ 43-44.

¶18    In this case, Siebken waived any subsequent foundational or authenticity

objections to the letter when he failed to object to it on those grounds during the

depositions. Both Dr. Speth and Dr. Sorini were questioned about the letter during their

depositions. Issues related to the authenticity and foundation of the letter and whether it

was written, sent, and received “might have been corrected” during the doctors’

depositions. The depositions reveal in any event the letter’s authenticity and foundation.

Dr. Speth had the letter in his medical records, identified it, and was questioned

extensively about it during his deposition. At his deposition, Dr. Sorini also was shown

and questioned about the letter and confirmed that he had indeed received it from

Dr. Speth. Therefore, the District Court did not abuse its discretion when it overruled

Siebken’s foundation and authenticity objections.

                                         Hearsay

¶19    Voderberg argues that Siebken did not preserve his hearsay objection because he

failed to object on that basis at trial. M. R. Evid. 103(a)(1) provides that error may not be

predicated on the admission of evidence unless the objection was timely and states the

grounds for the objection. “We repeatedly have held that the complaining party must

make a timely objection or motion to strike and state the specific grounds for its objection

in order to preserve an objection to the admission of evidence for purposes of appeal.” In

re Bower, 2010 MT 19, ¶ 20, 355 Mont. 108, 225 P.3d 784 (quoting Nelson v. Farmers

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Union Mut. Ins. Co., 2003 MT 101, ¶ 32, 315 Mont. 268, 68 P.3d 689). We will not

reverse a district court when it was not given an opportunity to correct the error alleged.

Kinsey-Cartwright v. Brower, 2000 MT 198, ¶ 19, 300 Mont. 450, 5 P.3d 1026. Pre-trial

motions may relieve a party of the obligation to object contemporaneously at trial, but

only if the motion is “sufficiently specific as to the basis for the objection.” State v.

Vukasin, 2003 MT 230, ¶¶ 27-29, 317 Mont. 204, 75 P.3d 1284; State v. Stock, 2011 MT

131, ¶ 45, 361 Mont. 1, 256 P.3d 899. “Broad, general objections do not suffice.”

Vukasin, ¶ 38 (quoting State v. Weeks, 270 Mont. 63, 85, 891 P.2d 477, 490 (1995)).

¶20    In the Final Pre-trial Order, Siebken’s contentions included an objection to

“all Defendant’s exhibits on foundation, authenticity, hearsay, insurance, collateral

source, and prejudice.”     Siebken repeated this same list of objections to each of

Voderberg’s exhibits in an attached exhibit list. The exhibit list did not specifically

identify the letter, but did identify both doctors’ “medical records.”

¶21    On the morning of trial, the District Court received Siebken’s additional written

objections for the doctors’ depositions and associated records. Both depositions were

taken in 2011—over three years before trial. The District Court noted “for the record”

that Siebken’s objections were “way, way late.” The court discussed the objections with

counsel outside the presence of the jury and decided that, given the late timing of the

objections, it would “hav[e] [Siebken] make the objections on the record [during the trial

proceeding] and . . . [the court would] have to rule at that time.” When Siebken objected

to the letter at trial, he raised no hearsay objection. In response to Siebken’s objection,

Voderberg argued that the letter was admissible under an exception to the hearsay rule.

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Siebken’s counsel then stated, “our objection is to the authenticity, the foundation of the

records.”   The District Court overruled the objection.        Although Siebken did not

expressly state a hearsay objection, Voderberg included a response to Siebken’s written

objection on that ground. The District Court had an opportunity to consider whether the

letter was hearsay and we will consider the merits of Siebken’s claim.

¶22    M. R. Evid. 801(c) defines hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” A statement is hearsay “only when the immediate inference the

proponent wants to draw is the truth of the assertion on the statement’s face. If the

proponent can demonstrate that the statement is logically relevant on any other theory,

the statement is nonhearsay.” Edward J. Imwinkelried, Evidentiary Foundations, 153

(1980). For example, a statement offered for the purpose of showing that the statement

was made and the resulting state of mind is properly admitted. Moats Trucking Co. v.

Gallatin Dairies, 231 Mont. 474, 479, 753 P.2d 883, 886 (1988) (citing Brown v.

Homestake Exploration Corp., 98 Mont. 305, 340, 39 P.2d 168, 179 (1934) (quoting J.H.

Wigmore, Wigmore on Evidence § 1789 (2d ed. 1915))).

¶23    In Cartwright v. Scheels All Sports, Inc., 2013 MT 158, ¶ 50, 370 Mont. 369, 310

P.3d 1080, we held that testimony from the plaintiff’s co-employees concerning rumors

they heard about his affair was not hearsay because it was offered not to prove the

existence of a love triangle, but to show the effect the rumors had on the listeners and on

the defendant’s workplace and business. In Sullivan v. Continental Construction. of

Montana, LLC, 2013 MT 106, 370 Mont. 8, 299 P.3d 832, we upheld the admission of

                                          9
deposition testimony from Continental Construction’s managers regarding interviews

they had conducted of Sullivan’s co-workers. We held that the testimony, along with the

accompanying interview notes, was not hearsay because it was not offered to prove the

truth of the allegations against Sullivan but to explain “the basis for [Continental

Construction’s] decision to terminate Sullivan’s employment.” Sullivan, ¶ 34.

¶24    In contrast, in Vincelette v. Metropolitan Life Insurance Co., 1998 MT 259, 291

Mont. 261, 968 P.2d 275, we held that the trial court improperly admitted a hotel

maintenance engineer’s testimony that he had received a radio report of a woman who

had fallen in the entryway and was drunk. We rejected the hotel’s argument that the

testimony was not hearsay because it was offered to show the effect on the witness’s state

of mind and why he went to investigate. Although the report of a fallen woman was

admissible for that purpose, we concluded that “the specific statement that the woman

was drunk . . . served no other purpose than to prove that [the plaintiff] fell because she

was drunk.” Vincelette, ¶ 21.

¶25    The statements at issue here are more like those in Sullivan and Cartwright.

Dr. Speth’s letter refers to Siebken’s altercation at the bank and its exacerbation of his

neck pain in the section entitled, “History of Present Illness.” Voderberg did not offer the

letter to prove that Siebken was involved in an altercation at the bank in January or

February. Voderberg offered the letter to show that the statement was made to Dr. Speth

in providing Siebken’s history and that Siebken was aware of the potential connection

between the incident and his condition. The letter was not hearsay and the District Court

properly admitted it.

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¶26 2. Whether Siebken is entitled to a new trial because the District Court
erroneously instructed the jury on the statute of limitations governing Siebken’s claim.

¶27    The District Court gave the following Jury Instruction No. 18:

       If Siebken knew or should have known of facts that would have caused a
       reasonable person to suspect that his injuries were the result of defendant’s
       actions before March 18, 2006, his lawsuit is barred by the applicable
       statute of limitations.

Siebken argues that this instruction should not have been given because it was a comment

on the evidence and an incorrect statement of law that prejudiced him. Siebken claims

that “suspecting” something is not the same as knowing, and the applicable statute

requires discovery of the injury and its cause, rather than suspicion. Siebken asserts that

because his injury was beyond the perception of a layperson and required an MRI to

diagnose, he should not be expected to “suspect” an injury only a neurosurgeon could

discover. Siebken concludes that because of the instruction, the jury misunderstood the

law and applied an improper standard of “speculation” as opposed to knowledge.

¶28    Voderberg counters that, taken together, the jury instructions accurately describe

the discovery standard. Further, Voderberg asserts that Siebken waived appellate review

by failing specifically to object at trial to the legality of the instruction’s phrase, “to

suspect.”

¶29    Defendant’s Proposed Instruction Nos. 23 through 28 addressed the statute of

limitations. In his written objections filed the day before trial, Siebken objected to

Defendant’s Proposed Instruction No. 24 (later given as Instruction No. 18), stating:

       It is res judicata that Officer Siebken’s cervical disc herniation and
       symptomatic stenosis are self-concealing . . . [and] [i]f the Court gives this
       instruction Officer Siebken requests a question within the Special Verdict
       Form whether Officer Siebken’s injury was self-concealing.
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At the conclusion of his written objections, Siebken stated, “Instructions 25 to 28 seek to

reiterate what is contained in Instructions 23 and 24, are cumulative, confusing or just

misstate the law. The Court should reject Defendant’s Proposed Instructions 1, 20, 22,

and 25 to 28.” At trial, Siebken objected to Defendant’s Proposed Instruction No. 24 on

the same grounds as in his written objection. The District Court overruled that objection

but did refuse Defendant’s Proposed Instruction No. 28 following Siebken’s objection to

it on the ground that it was cumulative of the other statute of limitations instructions.

¶30    Rule 51 provides that a party may only assign as error “an error in an instruction

actually given, if that party properly objected” to the instruction.          M. R. Civ. P.

51(d)(1)(A). The same rule provides, “A party who objects to an instruction . . . must do

so on the record, stating distinctly the matter objected to and the grounds for the

objection.” M. R. Civ. P. 51(c)(1). This Court consistently has concluded that a party is

barred from challenging an instruction on appeal for reasons not raised before the trial

court. Nott, 194 Mont. at 255, 633 P.2d at 680 (concluding that an objection to an

instruction on grounds that the instruction is an incorrect statement of the law without

specifying the defect is insufficient and will not be reviewed); Reno v. Erickstein, 209

Mont. 36, 45-46, 679 P.2d 1204, 1209 (1984) (concluding that plaintiff’s objection to a

jury instruction on grounds that cost of repair was not in the pleadings did not preserve

plaintiff’s ability to challenge the same instruction on grounds that the instruction

improperly conveyed the idea that the defendant had no liability insurance); Greytak v.

RegO Co., 257 Mont. 147, 152, 848 P.2d 483, 486 (1993) (concluding that plaintiff’s


                                          12
general objection to instructions did not preserve a specific objection based on the

sufficiency of the instruction for appeal).

¶31    Although Siebken did object to some of the Defendant’s Proposed Instructions as

cumulative or as a comment on the evidence, he did not object to Instruction No. 18 on

either basis. Further, Siebken said nothing about Instruction No. 18 as misstating the law

concerning discovery of the facts constituting his claim. Consequently, counsel did not

discuss and the District Court did not have the opportunity to consider whether the

instruction properly reflected the discovery rule.      Siebken’s objection to Instruction

No. 18 “did not advise the District Court of any specific defect” in the law set forth in the

instruction, and we conclude that he failed to preserve this objection for appeal. Wilhelm

v. Great Falls, 225 Mont. 251, 258, 732 P.2d 1315, 1320 (1987). We decline to review

this argument and we offer no opinion on the merits of Instruction No. 18. Siebken is not

entitled to a new trial on this ground.

¶32    3. Whether the jury verdict was supported by substantial evidence.

¶33    “Where the record presents conflicting evidence, resolved by the jury, this Court is

precluded from disturbing the verdict.” Murray, ¶ 7 (quoting Lauman v. Lee, 192 Mont.

84, 88-89, 626 P.2d 830, 833 (1981)). It is not the Court’s job to agree or disagree with

the jury’s verdict and “consequently, if conflicting evidence exists, we do not retry the

case because the jury chose to believe one party over the other.” Murray, ¶ 26 (quoting

Ele v. Ehnes, 2003 MT 131, ¶ 25, 316 Mont. 69, 68 P.3d 835). “Once we conclude that

substantial evidence supports the verdict, our inquiry is complete.”          Cartwright v.

Equitable Life Assurance Soc’y of the U.S., 276 Mont. 1, 23, 914 P.2d 976, 990 (1996).

                                          13
¶34    Siebken argues that the jury verdict was not supported by substantial evidence

under the “Court’s confusing instructions,” and that there is insufficient evidence that

Siebken knew or should have known the cause of his neck injury. As discussed in Issue

Two, Siebken waived his objection to the instructions.          Because his sufficiency of

evidence claim is predicated on the instructions, and based upon this Court’s review of

the record, we decline to disturb the verdict.

                                       CONCLUSION

¶35    For the foregoing reasons, the judgment of the District Court is affirmed.



                                                  /S/ BETH BAKER

We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ JIM RICE

Justice James Jeremiah Shea recused himself.

Justice Patricia Cotter, concurring.

¶36    I concur in the Court’s decision to affirm the jury verdict and judgment. I write
separately to offer additional comments with respect to M. R. Civ. P. 32(d)(3)(A), and to
register my disagreement with the jury instruction that is the subject of Issue Two.
¶37    It is apparent from the record that counsel for the plaintiff did not anticipate at the
time the physicians’ depositions were taken that the depositions would be read into
evidence at trial in lieu of live testimony. As is sometimes the case, it turned out that
neither Dr. Speth nor Dr. Sorini was available to testify at trial, and therefore their

                                          14
depositions were offered. During trial, Siebken objected to the admission of the Speth
letter on foundation and authenticity grounds. Counsel for the defendant argued in
response that any foundation objections to deposition testimony are waived if not made
during the deposition, citing Olson v. Shumaker. In other words, waiver was presented in
the District Court as the rule, not the exception.
¶38    In Olson, we said: “Rule 32(d)(3)(A) provides that a party waives objections to a
witness’s competency or the competency, relevancy, or materiality of testimony, if not
made at the deposition if ‘the ground of the objection is one which might have been
obviated or removed if presented at that time.’” This turn of phrase seemingly conveys a
presumption in favor of waiver when the rule actually provides that an objection is not
waived except under certain limited circumstances.
¶39    Our interpretation of Rule 32(d)(3)(A) in Olson has prompted expressions of
concern from the trial bar. I write separately here to underscore that the rule is that the
objections noted in the rule are not waived by failure to make them during the deposition;
the exception is where the ground for the objection could have been corrected or resolved
during the deposition.
¶40    In the case at hand, I cannot disagree with the Court’s conclusion that any
objections related to the authenticity of or foundation for the Speth letter could have been
resolved had the objections been raised during the physicians’ depositions. Determining
post hoc whether grounds for objections relating to the relevance or materiality of
testimony “might have been corrected” had the objections been raised during a deposition
presents a much trickier question. Unless and until Rule 32(d)(3)(A) is revised, however,
it will remain the task of this Court to apply the language of the rule as written.
Therefore, if there is a possibility that a subject deposition may end up being read into
evidence at trial in lieu of live testimony, lawyers should take care during that deposition
to interpose objections as to a deponent’s competence or the competence, relevance, or
materiality of the evidence offered during the deposition, should it appear that such
objections could be resolved or corrected if raised at that time.



                                          15
¶41    I also write to register my objection to Jury Instruction No. 18. The Court declines
to offer an opinion on the merits of this instruction. Opinion, ¶ 31. My opinion is that it
is an erroneous statement of the law. There is a qualitative difference between what one
knows or discovers, and what one suspects. We have held that “mere suspicion may not
constitute discovery.” Mobley v. Hall, 202 Mont. 227, 233, 657 P.2d 604, 607 (1983)
and Christian v. Atl. Richfield Co., 2015 MT 255, ¶ 66, 380 Mont. 495, ___ P.3d ___.
Because Instruction No. 18 improperly blends knowledge and suspicion, I believe it
would be error for any court to give this instruction.
¶42    With these caveats, I concur.



                                                  /S/ PATRICIA COTTER



Justice Laurie McKinnon joins in the concurrence of the Opinion.


                                                  /S/ LAURIE McKINNON




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