                                                                                          October 13 2015


                                          DA 14-0791
                                                                                          Case Number: DA 14-0791

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2015 MT 293



ROBIN REESE,

               Plaintiff and Appellant,

         v.

BETTY ROSEANN STANTON and
HARLOW’S SCHOOL BUS SERVICE, INC.
OF MONTANA, a Montana Corporation,

               Defendants and Appellees.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 12-776(C)
                       Honorable Heidi Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Angela Jacobs Persicke, Hammer, Jacobs & Quinn, PLLC; Kalispell,
                       Montana

                       Michael A. Viscomi, Viscomi & Gersh, PLLP; Whitefish, Montana

                For Appellees:

                       Patrick M. Sullivan, Poore, Roth, & Robinson, PC; Butte, Montana



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


Filed:

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

¶1     Robin Reese (Reese) appeals from the denial of Reese’s motion for a new trial by

the Eleventh Judicial District Court, Flathead County. We affirm in part, reverse in part,

and remand for a new trial.

¶2     We address the following issues on appeal:

       1. Did the District Court abuse its discretion when it admitted into evidence the

opinions and reports of doctors who did not testify at trial?

       2. Did the District Court abuse its discretion when it excluded evidence of the

original charges billed by medical providers?

       3. Did the District Court abuse its discretion when it struck portions of a video

deposition as previously undisclosed expert opinion?

              PROCEDURAL AND FACTUAL BACKGROUND

¶3     On November 13, 2009, Reese, while in the course of her employment with

Montana Coffee Traders, Inc., was a passenger in a van that was struck by a bus owned

by Harlow’s School Bus Service (HSBS). As a result of the accident, Reese suffered

injuries.

¶4     Reese filed a Workers’ Compensation claim. Reese’s Workers’ Compensation

claim was managed by Mary Jane Barrett, a nurse. Barrett’s management of the claim

involved several inquiries. First, the claim was referred to Rod Wallette, a vocational

rehabilitation expert, to conduct a job analysis to determine the demands of Reese’s

current job. Wallette’s report determined that Reese’s job at Montana Coffee Traders

was a medium-duty job.        Next, Reese’s physical condition was evaluated by an
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Independent Medical Panel (Wellcare Panel), which consisted of Drs. Wilson, Vincent,

and Heidi. Then, Reese was evaluated by Dr. Stratford, a psychiatrist. The Wellcare

Panel’s evaluation and report on Reese’s condition opined that Reese could return to her

time-of-injury job at Montana Coffee Traders.         Dr. Stratford opined that nothing

prohibited Reese from returning to work. Barrett prepared a closure report, concluding

Reese was under no work restrictions. As a result, Workers’ Compensation discontinued

payments to Reese.

¶5     In July 2012, Reese filed suit against HSBS for accident-related injuries and

sought medical payments, lost wages, and loss of earning capacity damages. The District

Court granted Reese partial summary judgment on the issue of liability, and ordered that

the issues of causation and damages would be determined at trial.

¶6     Reese retained Anne Arrington as a vocational rehabilitation expert. Arrington

opined that Reese could not return to her job at Montana Coffee Traders, and as a result,

would have a permanent loss of earning capacity because she would have to be employed

in a light duty or sedentary job. Arrington’s report stated that she had reviewed the

Wellcare Panel’s report, Dr. Stratford’s report, Barrett’s report, and Wallette’s reports,

along with numerous other documents, as part of her review.            At her deposition,

Arrington stated she had relied on the medical records identified in her report, including

the Wellcare Panel’s report and Dr. Stratford’s report, in forming her opinion.

¶7     HSBS retained Dr. Righetti as a medical causation expert. Dr. Righetti opined that

Reese suffered no permanent injuries from the accident. Dr. Righetti relied, in part, on


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the reports of the Wellcare Panel and Dr. Stratford. The contents of Dr. Stratford’s report

was referenced and quoted throughout Dr. Righetti’s report.

¶8     Several months before trial, Reese filed a motion in limine seeking to exclude

(1) evidence that some of her medical expenses had been paid by insurance carriers;

(2) the Wellcare Panel report; (3) Dr. Stratford’s report; (4) Wallette’s reports; and

(5) Barrett’s report. With regard to the reports, Reese argued that unless the authors were

called to testify at trial, the reports lacked foundation and were inadmissible hearsay.

HSBS did not oppose Reese’s motion with respect to evidence that insurance carriers

paid some of her medical expenses, but did oppose Reese’s motion with respect to the

reports. HSBS argued that it was entitled to cross-examine Arrington on the reports

because she had reviewed them prior to preparing her report, and had relied upon them in

forming her opinion. The District Court granted Reese’s motion with respect to evidence

that insurance carriers paid some of her medical expenses. Regarding the reports, the

court denied the motion, but stated “either the parties stipulate to the foundation of

exhibits before trial or a foundation must be laid for each exhibit before it can be

introduced into evidence” and that “[a] ruling on whether a foundation has been laid for

the documents Plaintiff seeks to exclude would be premature . . . .”

¶9     Reese was unclear about the effect of the order, so the District Court received

further argument on the issue. Reese stated her concern was that HSBS would introduce

the opinions of the Wellcare Panel, Dr. Stratford, Wallette, and Barrett through its

cross-examination of Arrington, instead of calling the authors to testify to their opinions

and be subject to cross-examination themselves. Reese argued that HSBS could not use
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Arrington as a conduit for other experts’ testimony without violating the rules against

hearsay, and that admitting their reports without the authors’ testimony would violate the

rules against hearsay and authentication.

¶10    HSBS countered that Arrington had acknowledged that she reviewed and relied

upon the reports in formulating her own opinion, and that HSBS had a right to

cross-examine her on the basis for her opinion. When the District Court asked HSBS

whether it was attempting to admit the reports as exhibits, or merely cross-examine

Arrington in regard to the reports, HSBS replied that, depending on the testimony, it

might seek to admit the reports.

¶11    The District Court again denied Reese’s motion in limine, holding that Arrington

acknowledged reviewing and relying upon the reports in preparing her opinion, and that

HSBS had a right to cross-examine Arrington about the basis of her opinion. The District

Court did not specify whether HSBS’s use of the reports was limited to cross-examining

Arrington on the basis for her opinion, or whether HSBS could also introduce the reports

themselves as exhibits.

¶12    HSBS filed a motion in limine to preclude Reese from introducing the original

amount charged by her medical providers, $107,970.38, as evidence of the reasonable

value of her medical expenses. HSBS argued that the amount the medical providers

actually accepted as payment, $92,486.16, was the proper measure of the medical

expenses. The District Court granted the motion, allowing Reese to introduce the amount

of $92,486.16 as evidence of the reasonable value of her medical expenses.


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¶13    At trial, in view of the District Court’s ruling that HSBS could cross-examine

Arrington on the reports, Reese questioned Arrington about the involvement of the

Wellcare Panel, Dr. Stratford, Wallette, and Barrett. Arrington testified generally about

Barrett’s job as the case manager and what that entailed. Similarly, Arrington testified

generally about Wallette’s job as a vocational rehabilitation expert and the job analysis he

performed for Reese’s Workers’ Compensation claim. Then, Arrington briefly testified

regarding the findings of the Wellcare Panel and Dr. Stratford, stating that “they felt that

she would be able to continue to do sales work” and “the doctors themselves had said that

she could continue to work in that job.”

¶14    During cross-examination, HSBS directed Arrington to follow along as HSBS’s

counsel read aloud the contents of Wallette’s reports, stopping occasionally to ask

Arrington to confirm that HSBS was reading the reports correctly. HSBS questioned

Arrington on the Wellcare Panel’s report, asking Arrington several times to confirm that

the Wellcare Panel’s report concluded Reese could return to her job at Montana Coffee

Traders. HSBS asked Arrington to confirm that Barrett had agreed with the Wellcare

Panel’s report, and that Barrett’s report stated that two other doctors who had seen Reese,

Dr. Burns and Dr. Ericksen, likewise agreed with the Wellcare Panel’s report. HSBS did

not specifically cross-examine Arrington concerning Dr. Stratford’s report. Near the end

of the trial, HSBS moved for admission of Barrett’s report, Wallette’s reports, and the

Wellcare Panel’s report. Reese stipulated to the admission of Barrett’s and Wallette’s

reports, and the Wellcare Panel report was admitted over Reese’s objection.

Dr. Stratford’s report was not admitted, although the report of HSBS’s expert,
                                           6
Dr. Righetti, which was later admitted, contained numerous references and quotations to

Dr. Stratford’s report.

¶15    The videotaped deposition of Dr. DuMontier, who was one of Reese’s treating

physicians, was played for the jury. In his final report, Dr. DuMontier opined that a

permanent injury to Reese was caused by the accident.          Reese’s expert disclosure

provided that Dr. DuMontier would testify consistent with his final report. Sometime

after Reese disclosed this, Reese provided Dr. DuMontier with additional medical records

that pre-dated the accident.        Then, during the deposition, Reese questioned

Dr. DuMontier on the additional medical records. Dr. DuMontier testified his opinion

remained unchanged after reviewing the additional pre-accident medical records, stating

“My assessment is as I presented in [his final report].” HSBS objected to the testimony

concerning the additional medical records on the basis it was undisclosed expert opinion.

At trial, HSBS renewed the objection and asked that the portion of the video deposition in

which Dr. DuMontier addressed the additional medical records be stricken. The District

Court sustained HSBS’s objection.

¶16    The jury returned a verdict for Reese for $59,500. Reese moved for a new trial,

arguing, among other things, that the District Court had abused its discretion (1) in

denying her motion in limine with regard to the Wellcare Panel’s report; (2) granting

HSBS’s motion in limine precluding evidence of the amount charged by Reese’s medical

providers; and (3) striking portions of Dr. DuMontier’s videotaped deposition as

undisclosed expert testimony. Reese’s motion was deemed denied by the District Court.

Reese appeals.
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                               STANDARD OF REVIEW

¶17    The standard of review of a trial court’s denial of a motion for a new trial

“depends on the basis of the motion.” Fish v. Harris, 2008 MT 302, ¶ 8, 345 Mont. 527,

192 P.3d 238. Regarding a district court’s evidentiary rulings, including rulings on the

admissibility of expert testimony, we review for abuse of discretion. Beehler v. Eastern

Radiological Associates, P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131.

                                       DISCUSSION

¶18    1. Did the District Court abuse its discretion when it admitted into evidence the

opinions and reports of doctors that did not testify at trial?

¶19    Reese argues HSBS was allowed to put several expert opinions into the record

without calling those experts to testify. HSBS responds that it properly exercised its right

to cross-examine Arrington on the underlying facts and data she relied on in forming her

opinion. We agree with Reese.

¶20    Montana Rule of Evidence 705 governs cross examination of experts. It provides:

       The expert may testify in terms of opinion or inference and give reasons
       therefor without prior disclosure of the underlying facts or data, unless the
       court requires otherwise. The expert may in any event be required to
       disclose the underlying facts or data on cross-examination.

¶21    Rule 705 allows the cross-examiner to “determine the underlying facts on which

the expert bases [her] opinion and expose the weaknesses if any of the underlying facts

for the consideration of the jury.” Jim’s Excavating Serv. v. HKM Assocs., 265 Mont.

494, 511, 878 P.2d 248, 257 (1994).             We have repeatedly stated the right to

cross-examine an opposing expert regarding the basis of that expert’s opinion is “the

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shield to guard against unwarranted opinions,” and is “essential” to the “discovery of

truth.” Clark v. Bell, 2009 MT 390, ¶ 22, 353 Mont. 331, 220 P.3d 650 (citations

omitted). District courts enjoy wide latitude when determining the admissibility of expert

testimony. Lynch v. Reed, 284 Mont. 321, 334, 944 P.2d 218, 226 (1997).

¶22    However, neither Rule 705 nor a district court’s discretion is without limits.

Cross-examination must be limited to the “underlying facts or data” relied upon by the

expert, and such data is not admitted as independent substantive evidence. Rather, the

data is “admitted for the limited and independent purpose of enabling the jury to

scrutinize the expert’s reasoning.” U.S. v. Wright, 783 F.2d 1091, 1100 (D.C. Cir. 1986).

Thus, generally, the cross-examination of an expert does not implicate the rule against

hearsay because the underlying facts and data are not offered to prove the truth of the

matter asserted. Mont. R. Evid. 801(c); see also Wright, 783 F.2d at 1100-01. Problems

can arise, however, when counsel, under the guise of impeachment, use Rule 705 to

introduce substantive evidence.      Such evidence bears the hallmark of unreliability

because it is not subject to cross-examination. See Weber v. BNSF Ry. Co., 2011 MT

223, ¶¶ 38-39, 362 Mont. 53, 261 P.3d 984 (noting, in discussion of Rule 703, that an

expert “may not simply transmit the out-of-court statements or opinions of others . . . .”);

Polythane Sys. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1208 (5th Cir. 1993) (“[T]o

admit the hearsay opinion of an expert not subject to cross-examination goes against the

natural reticence of courts to permit expert opinion unless the expert has been qualified

before the jury to render an opinion.”) (citation omitted).


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¶23    We initially note that only the Wellcare Panel report concerns us here.

Dr. Stratford’s report was not admitted into evidence. Dr. Righetti’s report, despite

containing numerous quotations and references to Dr. Stratford’s report, Wallette’s

reports, and Barrett’s report, were all admitted on stipulation.

¶24    The District Court was correct to deny Reese’s motion in limine with regard to

cross examination about the reports because they were “underlying facts and data” for

Arrington’s opinion for which HSBS had a right to inquire. Clark, ¶ 22. Arrington

admitted that she relied on the reports in forming her opinion. However, while it is

questionable whether the extensive reading from the reports stayed within the contours of

Rule 705, it is undisputable that the Wellcare Panel’s report changed from impeachment

evidence to substantive evidence when it was admitted into evidence. As substantive

evidence, the admission of the report violated a number of evidence rules designed to

ensure that only trustworthy and reliable evidence is admitted. See Mont. R. Evid. 702

(qualification as an expert a prerequisite to offering expert opinion); Mont. R. Evid. 705

(right to cross-examination expert opinion); Mont. R. Evid. 802 (hearsay); Mont. R. Evid.

901 (requirement of authentication). In essence, HSBS was able to submit the out-of-

court opinions and report of three doctors not qualified, not subject to cross-examination,

and without foundation. Thus, the District Court abused its discretion by admitting the

report into evidence.

¶25    We will not reverse a judgment based on an erroneous evidentiary ruling unless a

substantial right of the party is affected. Mont. R. Evid. 103. A substantial right of the

party is affected when the erroneously admitted evidence is of such character to have
                                          10
affected the result. In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, 995 P.2d 427. Here,

we conclude that the admission of the Wellcare Panel’s opinions and report as

substantive evidence affected the outcome of the trial.      The doctors’ opinions were

contrary to Reese’s theory of the case. Although HSBS’s expert witness, Dr. Righetti,

came to similar conclusions, his opinion and credibility were subject to attack on cross-

examination, while the three doctors of the panel were not. Their opinions were taken by

the jury to the jury room for deliberation. We conclude that the erroneous admission of

the Wellcare Panel’s opinions and report affected the outcome of the trial and affected

Reese’s substantial rights.

¶26    Although we reverse and remand on the above issue, we deem it necessary to

address two other alleged trial errors.

¶27    2. Did the District Court abuse its discretion when it excluded evidence of the

original charges billed by medical providers?

¶28    After Reese filed her opening brief, we decided Meek v. Mont. Eighth Jud. Dist.

Ct., 2015 MT 130, 379 Mont. 150, 349 P.3d 493. There, we held evidence of the original

charges for medical services is admissible to establish the reasonable value of the medical

services. Meek, ¶ 22. On remand, Reese should be allowed to introduce the original

charges billed by her medical provider as evidence of her reasonable damages. HSBS, of

course, is free to contest the reasonableness of those bills as a measure of damages.

Meek, ¶ 22.




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¶29    3. Did the District Court abuse its discretion when it struck portions of a video

deposition as previously undisclosed expert opinion?

¶30    Reese argues the District Court abused its discretion when it struck portions of

Dr. DuMontier’s     video    deposition    as   undisclosed    expert   opinion    because

Dr. DuMontier’s causation opinion remained unchanged by the medical records he

reviewed post-expert disclosure but pre-deposition. HSBS answers that it was caught off

guard because it had no notice Dr. DuMontier would give an opinion that included a

review of the medical records in question, and instead had been prepared to

cross-examine Dr. DuMontier’s opinion with the understanding Dr. DuMontier had not

reviewed those records.

¶31    Montana Rule of Civil Procedure 26(b)(4)(A)(i) addresses expert witnesses:

       A party may through interrogatories require any other party to identify each
       person whom the other party expects to call as an expert witness at trial, to
       state the subject matter on which the expert is expected to testify, and to
       state the substance of the facts and opinions to which the expert is expected
       to testify and a summary of the grounds for each opinion.

¶32    The underlying policies requiring expert disclosures are to eliminate surprise and

to promote effective cross-examination of expert witnesses. Hawkins v. Harney, 2003

MT 58, ¶ 26, 314 Mont. 384, 66 P.3d 305.            We analyze the adequacy of expert

disclosures on a case-by-case basis in light of the underlying policies of M. R. Civ. P. 26.

Hawkins, ¶ 24 (citing Scott v. E.I. Dupont De Nemours & Co., 240 Mont. 282, 783 P.2d

938 (1989) and Montana Power Co. v. Wax, 244 Mont. 108, 796 P.2d 565 (1990)).

¶33    Although HSBS’s objection was seemingly hypertechnical, the District Court was

within its discretion to exclude the testimony.      Dr. DuMontier’s opinion may have
                                          12
remained unchanged from reviewing the additional medical records, but his opinion

without review of all the medical records was ostensibly weaker than his opinion with

review of all the medical records. HSBS apparently planned to exploit that weakness

during its cross-examination, and the District Court reasoned HSBS was unfairly

surprised when it could not do so. Given the wide latitude district courts enjoy on

evidentiary issues, we conclude that it was within the District Court’s discretion to

exclude the testimony. Although not dispositive in the analysis, it bears noting that only

portions of his testimony were excluded, and Dr. DuMontier’s causation opinion was

stated elsewhere in the deposition and in the admission of his report.

¶34    Affirmed in part, reversed in part, and remanded for a new trial.



                                                 /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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