                                                                                               06/27/2017


                                           DA 16-0363
                                                                                           Case Number: DA 16-0363

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 157



KERRIE EVANS,

              Plaintiff and Appellant,

         v.

PEGGY SCANSON, CNP and WILLIAM PETERS, M.D.,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DV 11-990B
                        Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        E. Casey Magan, Russell S. Waddell, Waddell & Magan, Bozeman,
                        Montana

                For Appellees:

                        Julie Lichte, Danielle A.R. Coffman, Jill Laslovich, Crowley Fleck PLLP,
                        Bozeman, Montana

                        John A. Scully, Cooper & Scully, Dallas, Texas
                        (Attorneys for Peggy Scanson, CNP)

                        Lisa A. Speare, William J. Speare, George T. Kimmet, Speare Law Firm,
                        Billings, Montana
                        (Attorneys for William Peters, M.D.)


                                                    Submitted on Briefs: April 19, 2017
                                                               Decided: June 27, 2017


Filed:

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

¶1     Kerrie Evans (Evans) appeals from a jury verdict after a nine-day trial in the

Eighteenth Judicial District Court that found Peggy Scanson (Scanson) and William Peters,

M.D. (Dr. Peters) did not deviate from the standard of care when providing Evans with

prenatal care. Evans seeks a new trial or amended judgment based on our disposition of

the following issues:

       1. Whether the District Court erred by admitting collateral source testimony under
       the rule of curative admissibility.

       2. Whether the District Court abused its discretion by ruling expert testimony was
       within the scope of its corresponding disclosure and otherwise admissible.

       3. Whether the District Court erred by refusing to grant a new trial or alter the
       judgment after hearing defense counsel’s closing argument.

¶2     We affirm.1

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     Kerrie Evans’ child was born in 2010 with Cystic Fibrosis (CF), a chronic condition

that will require medical care for the rest of her life. Faced with the prospect of paying for

years of medical expenses, Evans filed suit to recover against the medical professionals

who provided her with prenatal care and counseling because, she alleged, she would have

opted to abort her pregnancy had she been timely provided with the child’s CF diagnosis

in utero. Evans saw Scanson, a nurse practitioner at Livingston HealthCare, for a prenatal




1
  Evans asked that we consider her fourth issue, whether the District Court erred by refusing to
grant partial summary judgment on the issue of causation, if we “reversed and remanded under
Issues 1-3[.]” Accordingly, since we affirm the District Court on issues 1-3, we do not consider
Evans’ fourth issue.


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care appointment in October of 2009. Evans was 38 years old. Scanson’s notes from this

visit indicate the fetus was at risk for Down syndrome due to Evans’ advanced age, that

Evans wanted the fetus tested, and that Evans would abort for an abnormality. During that

initial visit, Scanson provided Evans with pamphlets containing information on pregnancy,

childbirth, and prenatal screening and diagnosis for genetic disorders, including CF.

¶4     One of the pamphlets focused on CF screening and diagnosis. CF is a genetic

disease, but the age of the mother does not increase its probability of occurrence, as is the

case with Down syndrome. The pamphlet explained that testing for CF begins with an

analysis of test samples from both parents to determine whether they carry the CF gene.

The brochure stated that, if both parents are carriers, there is a one-in-four chance their

child will have CF and “further prenatal testing can be done to see whether [the] baby has

CF.” If both parents carry the CF gene, the additional prenatal tests to determine whether

the baby will have CF are chorionic villus sampling (CVS), and amniocentesis.

¶5     Accordingly, one of the pamphlets Scanson gave Evans also provided information

on amniocentesis and CVS, explaining that pregnant women who are 35 or older on their

due date should opt for one of these tests because “the risk of having an infant with a

chromosomal problem such as Down syndrome increases with the age of the woman.” The

brochure discussed the differences between the two tests, particularly that CVS can be

performed earlier in the pregnancy. Scanson recalled, and her notes confirmed that Evans

was concerned during the visit that her child would have Down syndrome and that she

would opt to abort if that were so. Evans alleged, however, that she asked for CF testing

as well as testing for Down syndrome.


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¶6     According to Scanson, she gave Evans the pamphlet on prenatal testing and

informed her that Dr. Peters could perform the CVS. Scanson stated that Evans preferred

CVS over amniocentesis because it could be performed sooner than amniocentesis and

would test for Down syndrome. At that time, Scanson also informed Evans that Dr. Peters

would need an ultrasound of the fetus prior to performing the test. After scheduling the

ultrasound, Scanson returned to the exam room and began discussing CF with Evans.

Scanson showed Evans the CF pamphlet and discussed the information it provided,

stressing that it was important. Scanson instructed Evans to read the pamphlet and review

it with her husband. Evans agreed at trial that the pamphlet’s information was “fairly

clear,” but in the end, she and her husband did not read through the information Scanson

provided, including the pamphlet on CF, until after her daughter was born.

¶7     Scanson also instructed Evans to schedule mandatory genetic counseling prior to

the CVS test. In conjunction with Scanson’s instruction, Dr. Peters sent Evans a letter

explaining that she needed to call the genetic counselor for an appointment prior to the

CVS test. The record reflects that Evans declined the genetic counseling because she was

concerned about its expense. Dr. Peters nonetheless performed the CVS test. Dr. Peters

testified at trial that, during Evans’ visit for CVS, he explained to her that CVS could

identify chromosomal abnormalities like Down syndrome. He again instructed her to

schedule genetic counseling and informed her that if she wanted, he could draw her blood

for CF carrier screening, and that additional testing was available if she returned a positive

result. She did not ask for the initial CF carrier screening.




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¶8     Evans filed a complaint on October 21, 2011, alleging that Scanson, Dr. Peters, and

other defendants did not sufficiently inform her that the CVS she received would only test

for Down syndrome and certain other abnormalities, but not CF. She asserted claims in

equity, negligence, negligent misrepresentation, and negligent infliction of emotional

distress. By the time of trial, only Scanson and Dr. Peters remained as defendants to the

suit, and Evans’ theories of recovery had been winnowed to negligent infliction of

emotional distress and negligence, as a medical malpractice action. The jury found that

Scanson and Dr. Peters did not breach the standard of care in treating Evans and so did not

consider the remaining elements of negligence—causation and damages.                Whether

Scanson’s and Dr. Peters’ treatment fell below the standard of care turned on whether they

had adequately informed Evans of her genetic screening options, and the credibility of her

own testimony that she would have aborted her pregnancy had she known of an

abnormality. Although Evans testified to her concerns of genetic disorders and to her

willingness to terminate her pregnancy, Scanson and Dr. Peters testified that Evans had

been adequately informed of her screening options and the nature of the tests she would

undergo when Peters wrote and advised her and when Scanson provided her with brochures

on CF and genetic counseling resources.

¶9     At trial, Evans introduced testimony relating to her insurance coverage and medical

expenses to counter defense assertions that she would have declined medical services like

genetic counseling because of cost, and also to establish the extent of her damages and

cause of her mental anxiety relating to her negligent infliction of emotional distress claim.

She objected and sought a mistrial, however, when the District Court permitted the jury to


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hear similar evidence when it was elicited by defense counsel. Evans argued at trial, as she

does on appeal, that the defense’s line of questioning and testimony violated Montana’s

statutory prohibition against a jury hearing collateral source evidence, § 27-1-308(3),

MCA. Evans made similar arguments regarding expert testimony that centered on the

affordability of care and treatment options available for individuals with CF. At the

conclusion of the trial, she premised her motion for a new trial in part on the injection of

such collateral source testimony throughout trial, and in part on certain of defense counsel’s

closing statements, which she alleged were inflammatory. She seeks reversal of the District

Court’s denial of her motion for mistrial and her post-trial motion for new trial. We affirm

the District Court’s rulings denying her motions.

                               STANDARDS OF REVIEW

¶10    We review a district court’s evidentiary rulings for an abuse of discretion, which

occurs if the court acts arbitrarily without employment of conscientious judgment, or if it

exceeds the bounds of reason and substantial injustice results. Byrum v. Andren, 2007 MT

107, ¶ 15, 337 Mont. 167, 159 P.3d 1062. We review a district court’s denial of a motion

for a mistrial or an M. R. Civ. P. 59 motion for a new trial for a manifest abuse of discretion.

A manifest abuse of discretion is obvious, evident, or unmistakable, and significant enough

to materially affect the substantial rights of the complaining party. A district court’s denial

of a mistrial must be based on whether the moving party was denied a fair and impartial

trial. We will not lightly disturb the district court’s determination to deny a mistrial, as the

district court is in the best position to determine the prejudicial effect of attorney




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misconduct on the jury. O’Connor v. George, 2015 MT 274, ¶ 17, 381 Mont. 127, 357

P.3d 323.

                                       DISCUSSION

¶11 Issue 1: Whether the District Court erred by admitting collateral source testimony
under the rule of curative admissibility.

¶12    Evans’ concerns of cost were central to the District Court’s evidentiary rulings that

comprise the primary basis of this appeal. Indeed, in her complaint, Evans stated that

“[g]enetic counseling should also have been covered in full as a maternity benefit under

[Evans’] BCBS insurance, and would have cost her nothing.”              At trial, Evans first

introduced her concerns of cost during voir dire, stating that she could not afford the child’s

medical expenses and so had to sue to recover from her healthcare providers. In her

opening statement too, her counsel informed the jury that, “[Evans and her husband] can’t

afford that type of extraordinary care that a child would need.” Although Evans had filed

for and been granted two motions to exclude collateral source evidence, including evidence

of Evans’ health insurance, Evans nevertheless introduced evidence of her health

insurance. On direct examination, Evans’ counsel elicited testimony from Evans that

indicated she would not have refused genetic counseling on the basis of cost because she

had excellent health insurance as a federal employee. She answered additional questions

on direct examination about her out-of-pocket expenses, co-pays, the identity of her carrier,

and the existence and scope of her insurance coverage. Evans also testified to her fear of

being unable to afford her daughter’s medical care. During closing statements, Evans’




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counsel proffered that it would be illogical to conclude that Evans would “decline anything

due to costs when she had health insurance, which she testified to covered everything.”

¶13     On cross-examination, Scanson’s counsel moved outside of the jury’s presence to

be allowed to ask Evans questions regarding her insurance coverage, arguing that Evans

had opened the door to examine the topic of health insurance by giving the jury the

impression she is financially unable to care for her child. Evans’ counsel countered that

only Evans should be allowed to introduce evidence of her health insurance, to which

Scanson’s counsel replied, “my client [should] not be prejudiced by the Plaintiff’s decision

to inject health insurance into the trial without me being able to explain and address the

health insurance situation.” The District Court granted Scanson’s motion and permitted

defense counsel to question Evans on whether she had health insurance, and what the policy

provisions were. Yet, to narrow the breadth of questioning under the collateral source rule,

the court did not permit defense counsel to question Evans on the amounts the policy paid

for her medical expenses, or what the limits of her coverage were. Additionally, the court

limited the nature of defense counsel’s inquiry to Evans’ claim for emotional distress, since

Evans had premised that claim on anxiety arising from her baby’s unaffordable medical

care.   To comply with the court’s instructions, Scanson’s counsel asked Evans five

questions regarding insurance: (1) whether Evans had insurance through her employer; (2)

how long she had that insurance; (3) whether her insurance covered her child; (4) whether

her insurance covered the child from birth; and (5) whether the child was currently covered

by insurance.




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¶14    On appeal, Evans argues that she was forced to introduce evidence of insurance

coverage to refute the defense claim that she refused genetic counseling because of its

expense. Scanson and Dr. Peters argue that Evans in fact exceeded that threshold by

introducing evidence of insurance not only during her pregnancy, when the genetic

counseling was at issue, but also post-partum, introducing evidence of her out-of-pocket

expenses for the child’s medication and the general cost of her daughter’s medical care.

Scanson claims in response that Evans should not be permitted to open the door to these

topics without an opportunity for Scanson to respond.

¶15    “Under the rule of curative admissibility, or the ‘opening the door’ doctrine, the

introduction of inadmissible evidence by one party allows an opponent, in the court’s

discretion, to introduce evidence on the same issue to rebut any false impression that might

have resulted from the earlier admission.” Stevenson v. Felco Indus., 2009 MT 299, ¶ 40,

352 Mont. 303, 216 P.3d 763 (quoting U.S. v. Whitworth, 856 F.2d 1268, 1285 (9th Cir.

1988)). Despite the potential prejudice to a plaintiff, collateral source information may be

introduced where there has been a persuasive showing that the evidence has substantial

probative value. Mickelson v. Mont. Rail Link, Inc., 2000 MT 111, ¶ 38, 299 Mont. 348,

999 P.2d 985.     Here, the proffered testimony complies with the rule of curative

admissibility and our rule in Mickelson. Scanson’s counsel elicited collateral source

testimony only after Evans had herself injected collateral source matters into the

proceedings—in her complaint, in voir dire, and on direct examination. The District Court

was therefore entitled to exercise its discretion in admitting rebuttal evidence on the same

issue under the rule of curative admissibility articulated in Stevenson. In light of Evans’


                                             9
repeated references to collateral source information, the fact that she made affordability the

cornerstone of her negligent infliction of emotional distress claim, and her assertion she

would not have refused genetic counseling because of her adequate insurance coverage,

the District Court did not arbitrarily admit the rebuttal evidence without conscientious

judgment.    Neither can we conclude that Evans suffered substantial injustice by its

admission, since she first determined herself that such evidence was at issue and ought to

be brought into the proceedings. Thus, despite the potential for such evidence to prejudice

the jury, it bore substantial probative value to the plaintiff as a tenet of her claims, and to

the defendant as a means of impeachment. We note here too, that the District Court took

steps to dispel the potential prejudicial effect of defense counsel’s efforts by limiting the

scope of the permitted inquiry to whether Evans had insurance and the nature of its

provisions. That limitation, coupled with the precision of defense counsel’s questioning,

constrained the potentially prejudicial effects the evidence may have had on the jury and

enhanced its probative value such that its admission sufficiently complied with our rule in

Mickelson.

¶16 Issue 2: Whether the District Court abused its discretion by ruling expert testimony
was within the scope of its corresponding disclosure and otherwise admissible.

¶17    Evans argues also that the District Court erred by refusing her motion for a mistrial

following the testimony of her expert witness, Dr. Lysinger, who testified regarding the

expense of Orkambi, a drug used to treat CF. At trial, Dr. Lysinger testified on direct

examination that he had been told by a pharmacist that Orkambi costs $294,000 per year.

On cross-examination, Scanson’s counsel asked him whether he was aware that Orkambi’s



                                              10
manufacturer had “a program that is designed to help cystic fibrosis families and physicians

understand how to obtain Orkambi.” Evans objected to this question and others like it on

collateral source grounds. The District Court sustained the objections and the witness did

not answer. The court had already instructed the jury that, “when I strike an answer that

means that you’re . . . to disregard the answer[.] I’m not allowing the answer and you’re

not to consider the answer.” Evans moved for a mistrial, arguing that Scanson had raised

the issue of insurance or other collateral sources. The District Court denied the motion

after an in-chambers discussion, agreeing with defense counsel that the line of questioning

had not violated the court’s order against introducing evidence of collateral sources or

insurance, but was instead meant to impeach the witness’s credibility and show the witness

did not “research whatsoever into the cost of the drug.” The court took the additional

curative step of providing a final jury instruction that cautioned the jury against guessing

the answer to any stricken question or drawing inferences from the question itself.

¶18    Evans also argues the District Court abused its discretion by overruling her

objections concerning the testimony of Dr. Merlo, a pulmonary and critical care specialist

from Johns Hopkins specializing in CF, who was called as a defense expert to rebut the

opinions of Evans’ experts. Evans objected to Dr. Merlo’s testimony as outside the scope

of his expert disclosure and because, she alleged, he testified to collateral source

information. Scanson disclosed Dr. Merlo as an expert who would not only testify to “rebut

the opinions of Plaintiff’s experts[,]” but also regarding the medical treatment of adult

patients with cystic fibrosis; the long-term management of CF; and that CF is a chronic,

manageable disease. Evans objected initially on disclosure grounds when Scanson’s


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counsel asked Dr. Merlo whether he “ever had the situation where a cystic fibrosis patient

in need of a cystic fibrosis drug was unable to obtain it[.]” After examining the expert

disclosure, the District Court overruled Evans’ objection and permitted Dr. Merlo to

answer. When the question was repeated for the record, Evans objected again, this time on

collateral source grounds, which the District Court overruled. Evans soon objected to

another question, also on collateral source grounds, which the court sustained:

              [By Scanson’s counsel] Q: Have you ever had a patient who was
              unable to get Orkambi [the $294,000 per year drug] due to cost?

              A: No

              [By Evans’ counsel]: Objection Your Honor, Collateral Source.
              Outside the scope of disclosure as well.

              THE COURT: Sustained. The answer is stricken.


¶19    When counsel objects to the admission of evidence, the district court is presumed

to have cured any error committed by sustaining counsel’s objection, striking the evidence

from the record, and instructing the jury to disregard the evidence. State v. West, 252 Mont.

83, 91, 826 P.2d 940, 945 (1992). Evans made multiple objections to the testimony given

by Dr. Lysinger. The court sustained the objections, and had instructed the jury that it was

to disregard the testimony. The error alleged by Evans because of that stricken testimony

is therefore presumed cured. In examining the record, and in light of the great deference

we afford a district court’s determination to deny a mistrial, we cannot conclude that the

District Court here committed a manifest abuse of discretion by striking the testimony,

conducting an in-chambers hearing and instructing the jury, but refusing to grant a mistrial.



                                             12
The District Court overruled Evans’ collateral source objection, however, when Dr. Merlo

was questioned. We conclude that this question, probing the accessibility of Orkambi,

served as rebuttal to Dr. Lysinger’s testimony that Orkambi costs $294,000 per year. As

such, it fell within the rule of curative admissibility and bore sufficient probative value to

overcome any prejudice to the jury.

¶20    We further conclude that the District Court did not abuse its discretion by ruling Dr.

Merlo’s testimony fell within the scope of his expert disclosure. The rule of evidence

governing expert disclosures, M. R. Civ. P. 26, is meant to eliminate surprise and promote

the effective cross-examination of witnesses. Hawkins v. Harney, 2003 MT 58, ¶ 26, 314

Mont. 384, 66 P. 3d 305. Refusing the testimony of an expert is an extreme sanction when

the offense arises from incomplete discovery, but one which we have upheld when

opposing counsel’s ability to effectively cross-examine the witness has been severely

limited. Hawkins, ¶¶ 22-23. But even a brief expert disclosure, so long as it identifies the

facts and opinions to which the expert is expected to testify, can be sufficient to eliminate

the possibility that opposing counsel will be surprised by the testimony or unable to

adequately prepare for cross-examination. Hawkins, ¶¶ 25-26. Here, the District Court did

not exceed the bounds of reason or act arbitrarily by admitting Dr. Merlo’s testimony.

Defense counsel laid out the basis of his testimony as rebuttal evidence to the plaintiff’s

expert, who testified to the exorbitant costs of caring for patients with CF. The disclosure

additionally revealed that he would testify to the manageability and medical treatment of

the disease. It was reasonable therefore, for the District Court to conclude that, based on

this disclosure, plaintiff’s counsel could adequately prepare to cross-examine him when


                                             13
and if his testimony addressed his own experience of dealing with patients who might have

had difficulty procuring the costly medications required to treat the disease. The disclosure

at issue here in fact exceeds what we previously upheld in Hawkins, where the grounds for

the expert’s opinions were addressed with the phrase, “standard veterinary teaching and

practice.” Hawkins, ¶ 25. We conclude therefore that the District Court did not abuse its

discretion by admitting Dr. Merlo’s testimony over Evans’ objection.

¶21 Issue 3: Whether the District Court erred by refusing to grant a new trial or alter
the judgment after hearing defense counsel’s closing argument.

¶22    Evans lastly argues that Scanson’s and Dr. Peters’ counsel made inflammatory

statements during closing arguments that were sufficiently prejudicial to constitute

reversible error. She argues that the statements, which exhorted the jury to ponder the

immensity of the award sought, violated a Motion in Limine previously filed by counsel,

but never adopted by the District Court. Evans did not, however, contemporaneously

object to these statements at trial. Evans did object though, when, during closing, Dr.

Peters’ counsel admonished the jury that Evans’ child was not the plaintiff in the case, and

that although under Montana law a parent is entitled to bring an action on behalf of a child,

Evans had not done so, opting instead to recover for her own damages and not those of the

child. To that, the District Court issued an instruction that there had “been no determination

under Montana law as to whether a parent can bring a cause of action on behalf of the

parent’s child relating to the issues involved in this case.” Evans argues here that the

instruction was insufficient, prejudicial, and warranted granting her motion for a new trial,

or to alter or amend the judgment. The District Court did not rule on her motion for a new



                                             14
trial and so the motion was deemed denied pursuant to M. R. Civ. P. 59. See Challinor v.

Glacier Nat’l Bank, 283 Mont. 342, 344, 943 P.2d 83, 84 (1997).

¶23    A party who fails to contemporaneously object to purportedly impermissible

comments during closing argument forfeits the right to appeal that error. To preserve an

issue for appeal, a party must object when the grounds for the objection become apparent.

McDermott v. Carie, 2005 MT 293, ¶ 14, 329 Mont. 295, 124 P.3d 168. If defense counsel

made the allegedly inflammatory comments during closing argument, the grounds for

objection became apparent during the closing argument. Evans argues the comments

violated a proposed Order in Limine that addressed inflammatory statements and so

obviated the need to object. We disagree. Ultimately, the District Court did not adopt the

proposed order and so reliance upon it does not bolster Evans’ arguments on appeal.

Regardless of the order, however, if Evans believed the comments were inflammatory,

Evans should have objected and stated so when the comments were made, allowing the

court to rule on the issue. A party may not preserve an issue for appeal, even if based on

an opponent’s violation of an order in limine, without the party first obtaining a definitive

ruling from the district court on the issue. State v. Favel, 2015 MT 336, ¶ 19, 381 Mont.

472, 362 P.3d 1126. We decline to create such precedent here.

¶24    Evans did timely object, however, to Dr. Peters’ statement that parents in Montana

are legally entitled to bring an action on behalf of their minor children, but chose not to do

so in this action. On appeal, she argues this was an inflammatory statement that prejudiced

the jury to believe she was acting out of avarice for herself instead of her child’s well-

being. If the statement was inflammatory, Evans’ argument that the District Court’s jury


                                             15
instruction did not adequately address Dr. Peters’ statement of the law has shortcomings.

Although the District Court has an obligation to ensure a fair trial, a fair trial is not

necessarily an error-free trial. To support her argument, Evans calls our attention to Lopez

v. Josephson, 2001 MT 133, ¶ 35, 305 Mont. 446, 30 P.3d 326. There, we stated that,

“[t]he repeated asking of questions clearly intended to keep the assumption of damaging

facts which cannot be proven before the jury, in order to impress upon their minds the

probability of the existence of the assumed facts upon which the questions are based,

constitutes gross misconduct.” Lopez, ¶ 35. And indeed, in Lopez, we found error where

the District Court allowed counsel to repeatedly inject evidence into the proceedings after

he had been cautioned against it—to the extent we found it “difficult to grasp just how

ubiquitous and egregious the conduct of plaintiffs’ counsel was[,]” and that “[o]nly a

complete transcript review [could] establish the actual extent of counsel’s misconduct.”

Lopez, ¶ 36. We do not find the alleged misconduct here nearly so pervasive or pernicious.

Here, counsel made a single statement during closing that arguably reflected an accurate

statement of Montana law. Evans objected to the statement and, after an in-chambers

hearing, the District Court issued a curative instruction to the jury that explained counsel’s

statement might not be entirely accurate given the facts of the case. This does not rise to

the level of egregious conduct and inadequate cure by the District Court that we identified

in Lopez.

¶25    Moreover, since Evans objected to the comment contemporaneously, the District

Court was able to take effective corrective action by issuing a curative instruction. Our

review of the record reveals a thorough discussion of the comment at issue and the current


                                             16
state of Montana law, in addition to ways in which the District Court could adequately

address Evans’ concerns over the comment. To that end, the District Court formulated the

curative instruction in discussion with all counsel present, revised it more than once to

address Evans’ counsel’s concerns, sought his definitive approval of the final wording, and

then wrote it down to preserve the exact wording for presentation to the jury. Evans’

counsel did not object to the instruction or state during the hearing that it would

inadequately remedy defense counsel’s remark. We conclude upon our review of the

proceedings that this instruction, which Evans’ counsel sought and argued, did not

prejudice Evans’ right to a fair trial, especially given that Evans’ counsel participated in

and did not object to its formulation.

¶26    A district court is in the best position to observe jurors and the potentially prejudicial

effects of evidence presented to them. We, accordingly, afford district courts broad

discretionary latitude when ruling on prejudicial evidence. O’Connor, ¶ 17. When a

district court withdraws or strikes improper testimony from the record and provides the

jury an accompanying cautionary instruction, the error committed is presumed cured.

Reciprocally, we do not presume that the jury will ignore the district court’s instructions.

State v. Long, 2005 MT 130, ¶¶ 25-27, 327 Mont. 238, 113 P.3d 290. Here, the District

Court was in the best position to gauge the effect of the statement on the jury and its ability

to deliver a fair verdict. The court’s instruction is presumed to have cured the error alleged,

particularly given Evans’ counsel’s approval of it as a remedy and his participation in its

formulation. We do not find in our review of the record here any evidence of misconduct

comparable to the behaviors we discovered in Lopez, which would be sufficient to


                                               17
overcome the presumption that the instruction cured the error. The District Court did not

therefore exhibit an obvious abuse of discretion significant enough to materially affect

Evans’ substantial rights when it issued the curative jury instruction in response to the

comment.

                                    CONCLUSION

¶27   The judgment and rulings of the District Court are affirmed.


                                                /S/ LAURIE McKINNON


We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ DIRK M. SANDEFUR




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