                                                                                           September 10 2013


                                          DA 12-0773

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2013 MT 259N



JEROME ANDERSON,

              Plaintiff and Appellant,

         v.

LARRY ELLER,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. DDV-08-1307
                        Honorable Dirk M. Sandefur, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Douglas C. Allen; Attorney at Law; Cut Bank, Montana

                For Appellee:

                        Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C.;
                        Great Falls, Montana



                                                    Submitted on Briefs: August 14, 2013

                                                               Decided: September 10, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     This is a personal injury claim stemming from a motor vehicle accident that

occurred in Cascade County on October 3, 2005. After three days of trial, a jury returned

a verdict that Defendant/Appellee Larry Eller (“Eller”) did not cause any injury to

Plaintiff/Appellant Jerome Anderson (“Anderson”) when Eller backed his pickup truck

into Anderson’s car. Anderson filed a motion for new trial, citing insufficiency of the

evidence, which was deemed denied by operation of law. We affirm the judgment

entered by the District Court on the verdict and the District Court’s denial of Anderson’s

motion for new trial.1

¶3     On October 3, 2005, Anderson was stopped behind Eller at the intersection of

River Drive North and 25th Street, in Cascade County. Eller was driving a 1999 Ford

pickup truck and Anderson was driving a 1985 Subaru car. Both were waiting for a

vehicle stopped ahead of Eller to enter River Drive. Eller testified that he shifted into

reverse, took his foot off the brake, and was reaching down to put his foot on the gas

when he heard a “honk” and a “crunch,” indicating he had backed into Anderson’s

vehicle. Eller’s vehicle had moved approximately three feet and was traveling at a very


1
  The District Court did not rule on Anderson’s motion; thus, the motion was “deemed
denied” by operation of law on December 1, 2012. M. R. Civ. P. 59(f).
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low speed. The trailer hitch of Eller’s vehicle went through the radiator of Anderson’s

vehicle, but the body of Eller’s vehicle itself never touched Anderson’s vehicle. Eller

testified he did not feel anything and there was no property damage to his vehicle. Eller

admitted that his negligence was the sole cause of the accident.

¶4       The jury was instructed by the District Court that “the accident occurred as a result

of Defendant Larry Eller’s negligence which was the sole cause of the accident.”

Accordingly, the only issue submitted to the jury on the verdict sheet was whether Eller’s

negligence caused injury to Anderson and, if so, what were the amount of damages. The

jury returned a verdict that Eller’s negligence did not cause any injury to Anderson.

Anderson argues that the evidence of his injuries resulting from the accident was

uncontradicted by Eller and that there was therefore insufficient evidence to justify the

verdict. Anderson contends that the District Court erred in denying his motion for new

trial.

¶5       This Court’s review of a district court’s decision on a motion for new trial where

the basis of the motion is insufficiency of the evidence is de novo. Styren Farms, Inc. v.

Roos, 2011 MT 299, ¶ 11, 363 Mont. 41, 265 P.3d 1230. Like the district court, we

determine whether there was substantial evidence to support the verdict. Renville v.

Taylor, 2000 MT 217, ¶ 14, 301 Mont. 99, 7 P.3d 400. “Substantial evidence is evidence

that a reasonable mind might accept as adequate to support a conclusion; it may be less

than a preponderance of the evidence, but must be more than a ‘mere scintilla.’ ” Fish v.

Harris, 2008 MT 302, ¶ 8, 345 Mont. 527, 192 P.3d 238 (quoting Upky v. Marshall

Mountain, LLC, 2008 MT 90, ¶ 22, 342 Mont. 273, 180 P.3d 651).

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¶6     Anderson’s only expert witness was Dr. Michael Luckett. Dr. Luckett, who has a

general practice of orthopedics with Great Falls Orthopedic Associates, was questioned

regarding Anderson’s injury and the causation between the accident and Anderson’s

injury. Anderson saw Dr. Luckett twice between the timeframe of the 2005 accident and

trial on August 24, 2012. Ultimately, Dr. Luckett opined that Anderson “had suffered a

sprain–strain of the midthoracic and thoracal lumbar junction of the spine. And that he

had   aggravated    a     preexisting,   developmental   degenerative   condition,   called

Scheuermann’s Kyphosis.”          Dr. Luckett explained that Anderson was affected by

Scheuermann’s disease primarily in the thoracic spine. This was the same area that was

symptomatic, as related by Anderson, to the motor vehicle accident.          Significantly,

Dr. Luckett’s opinion was “based on the history of onset” as attributed to him by

Anderson. Dr. Luckett knew nothing about Anderson’s treatment for pain by Dr. R. A.

Reynolds, a chiropractor, for several years prior to the accident, nor did Anderson call

Dr. Reynolds to testify regarding Anderson’s chiropractic treatment both before and

following the accident.

¶7     The jury heard evidence that Dr. Luckett opined, first, that he could not attribute

Anderson’s symptoms to his motor vehicle accident on a more probable than not basis.

The jury subsequently heard from Dr. Luckett that, following a meeting with Anderson’s

lawyer, his opinion changed to one of Anderson having suffered a mid-thoracic sprain as

a result of the accident. Specifically, a report issued April 5, 2012, by Dr. Luckett, and

admitted into evidence, stated:



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      I cannot conclude on a more probable than not basis that Mr. Anderson’s
      current symptoms are clearly related to his motor vehicular accident as the
      predominant cause. I think that it is more likely that he did have
      aggravation of symptoms. However, he had preexisting degeneration that
      likely would have become symptomatic at some point in time.

¶8    Dr. Luckett subsequently issued a letter dated May 18, 2012, which was also

admitted into evidence, indicating his previous causation opinion was incorrect because

he had “overlooked the fact that my past records indicated Jerome Anderson had no prior

spinal related symptoms before his automobile accident.” Dr. Luckett explained at trial

that “Scheuermann’s Kyphosis is not symptomatic and is primarily a cosmetic

deformity.” (Emphasis added.) Somewhat inconsistently, however, Dr. Luckett also

testified that the automobile accident aggravated a preexisting condition “because

Scheuermann’s Kyphosis is associated with degeneration, and a traumatic event would

be more likely to cause symptoms in a degenerative spine than in a nondegenerative

spine.” (Emphasis added.) The defense presented no expert testimony.

¶9    As previously stated, we review a jury’s verdict in a civil case to determine

whether substantial credible evidence in the record supports the verdict.     We have

explained:

      It is not our function 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. . . . [I]n
      reviewing the sufficiency of the evidence to support a jury verdict, we
      review the evidence in a light most favorable to the prevailing party.

Magart v. Schank, 2000 MT 279, ¶ 4, 302 Mont. 151, 13 P.3d 390 (citations omitted).

¶10   Anderson’s argument that there is insufficient evidence to support the jury’s

failure to find injury causation is based primarily on his contention that Dr. Luckett’s

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testimony was not controverted by an expert witness for the defense. We addressed a

similar scenario in Clark v. Bell, 2009 MT 390, 353 Mont. 331, 220 P.3d 650, where the

jury returned a defense verdict based on a finding that there was no causation between the

defendant’s negligence and the injury. Clark similarly had a preexisting injury and was

claiming a new injury. There, we affirmed the district court’s denial of a post-trial

motion for judgment as a matter of law which was premised upon a claim that the

plaintiff’s evidence of injury was uncontroverted. We held in Clark:

       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 [v. Ehnes, 2003
       MT 131, 316 Mont. 69, 68 P.3d 835], 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.

Clark, ¶ 27.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions.

¶12    The evidence in the record before us establishes that Anderson’s claim stems from

a motor vehicle accident that had very little property damage, occurred at low speeds, and

with very little impact. Anderson initially told Eller and law enforcement officers at the

scene that he was fine. He did not seek medical treatment for four days following the

accident. Anderson’s sole expert witness testified to a preexisting condition and could

not initially conclude that the accident caused Anderson’s ongoing complaints. This

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expert subsequently redacted his opinion indicating that he had overlooked certain

aspects of Anderson’s medical records relating to prior treatment.        The expert saw

Anderson only twice during a seven-year period. Other evidence from lay witnesses as

well is present in the record which supports the jury’s verdict. Given consideration of the

record as a whole, we hold that there was substantial evidence for a jury to conclude that

Anderson did not prove injury resulted from his automobile accident with Eller. We

further hold that the District Court properly denied Anderson’s motion for a new trial.

¶13    Affirmed.


                                                     /S/ LAURIE McKINNON



We Concur:

/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ JIM RICE




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