                                                                                            January 12 2016


                                           DA 15-0123
                                                                                            Case Number: DA 15-0123

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 10



SHELBY CLEVELAND,

              Plaintiff and Appellant,

         v.

JANICE WARD,

              Defendant and Appellee.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDV-2012-984
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brian J. Miller, Morrison, Sherwood, Wilson & Deola, PLLP;
                        Helena, Montana

                For Appellee:

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



                                                    Submitted on Briefs: October 14, 2015
                                                               Decided: January 12, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1    Shelby Cleveland appeals several rulings by the First Judicial District Court,

Lewis and Clark County, excluding trial testimony by Cleveland’s physical therapist and

treating physician; directing a defense verdict on Cleveland’s claim that her rotator cuff

tear and arthritis were caused by a vehicle collision; and ruling that Cleveland may not

recover damages incurred by her business, Shelby House, Inc. We affirm.

¶2    We restate and address the issues on appeal as follows:

      1. Whether the District Court abused its discretion by excluding trial testimony of
         Cleveland’s treating physician, Dr. Phillip Steele.

      2. Whether the District Court abused its discretion by excluding trial testimony of
         Cleveland’s physical therapist, Anne Ripley.

      3. Whether the District Court erred in granting a directed verdict on Cleveland’s
         claim that her rotator cuff tear and shoulder arthritis were caused by the
         collision.

      4. Whether the District Court erred in concluding that Cleveland could not
         recover damages incurred by Shelby House.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    On June 1, 2012, Cleveland was involved in a vehicle collision with another

driver, Janice Ward. Cleveland was stopped in traffic when Ward struck her vehicle from

behind and pushed it into the vehicle in front of Cleveland.         The impact totaled

Cleveland’s vehicle. Ward admitted that she was negligent, and Cleveland filed suit for

damages. Cleveland contended that she suffered physical injuries from the collision and

sought, among other items, damages for emotional distress, past medical costs, and

“business loss/lost income.”


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¶4       On November 5, 2014, Ward filed pre-trial motions in limine. Ward sought to

exclude reference to any damages suffered by Shelby House, and to exclude any

testimony by Dr. Steele that Cleveland suffered a rotator cuff injury as a result of the

collision. On January 21, 2015, the District Court granted Ward’s motions on those two

issues.1 The District Court concluded that, because Shelby House was not a named party,

any discussion of damages it incurred was not relevant. The District Court further

concluded that Dr. Steele could not testify as to the cause of Cleveland’s rotator cuff tear

because he “clearly avoided giving an opinion” on causation in a September 2014

deposition.      In reaching this conclusion, the District Court relied on the following

testimony from Dr. Steele in that deposition:

         My belief is that [Cleveland] had pre-existing shoulder pathology that to
         my knowledge had never bothered her. Its relationship to the automobile
         accident would be purely speculative on my part. I don’t have a firm way
         to confirm or deny it. I think certainly the automobile accident could have
         exacerbated it; the automobile accident could have nothing to do with it. I
         don’t really know at this point in time.

¶5       On January 6, 2015, the parties took Dr. Steele’s perpetuation deposition. On

January 23, 2015, Ward filed objections to certain parts of Dr. Steele’s perpetuation

deposition testimony based on the District Court’s decision that Dr. Steele could not

testify about the cause of Cleveland’s rotator cuff tear. On January 27, 2015, the District

Court issued an order sustaining several of Ward’s objections. The court concluded that

Dr. Steele’s testimony could not be “offered for the purpose of establishing the cause of

the rotator cuff injury, as his testimony did not include medical opinions based on the


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    The District Court also granted and denied Ward’s motions on other issues not appealed.

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required probability that the collision ‘more likely than not’ caused the injury,” quoting

Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, ¶ 35, 367 Mont. 21,

289 P.3d 131.

¶6     A three-day jury trial commenced on February 2, 2015.            During the trial,

Cleveland called her physical therapist, Anne Ripley, to testify. Outside of the presence

of the jury, the District Court asked Ripley several questions to clarify the scope of her

testimony. When asked whether she could diagnose the cause of Cleveland’s rotator cuff

tear, Ripley responded: “I can’t say that the accident caused the rotator cuff tear. But I

can say function was normal before the accident and after the accident she had all of this

change.” The District Court therefore prohibited Ripley from offering “testimony as to

medical causation” of Cleveland’s rotator cuff tear. Cleveland’s attorney then made an

offer of proof by questioning Ripley.

¶7     At the close of evidence, Ward moved for a directed verdict on Cleveland’s claim

that her rotator cuff tear and shoulder injuries were caused by the collision. Ward’s

attorney argued that Cleveland must have “medical expert testimony to establish the

medical causation link” between Cleveland’s shoulder injuries and the collision, and that

“[t]he jury can’t speculate on something like that.” The District Court granted Ward’s

motion for a directed verdict, preventing Cleveland from arguing that her rotator cuff tear

or shoulder arthritis were caused by the collision.

¶8     On February 4, 2015, the jury returned a verdict for Cleveland in the amount of

$10,534. On February 17, 2015, the District Court entered judgment for Cleveland in the

amount of $3,056.99, after factoring in offsets for previously-made payments. Cleveland

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appeals, contending that the District Court abused its discretion in limiting the scope of

Dr. Steele’s testimony, granting five of Ward’s objections to Dr. Steele’s testimony, and

limiting the scope of Ripley’s trial testimony. Cleveland further contends that the District

Court erred by granting a directed verdict on Cleveland’s shoulder injury claim and

ruling that Cleveland may not recover damages incurred by Shelby House.

                              STANDARDS OF REVIEW

¶9     We review for abuse of discretion a district court’s evidentiary rulings and

determination whether a witness is qualified as an expert to testify. Harris v. Hanson,

2009 MT 13, ¶ 18, 349 Mont. 29, 201 P.3d 151; Seltzer v. Morton, 2007 MT 62, ¶ 65,

336 Mont. 225, 154 P.3d 561. District courts have broad discretion to control the

admission of evidence at trial. Seltzer, ¶ 65. A district court abuses its discretion when it

acts arbitrarily without conscientious judgment or exceeds the bounds of reason.

Seltzer, ¶ 65.

¶10    If an appellant demonstrates that a district court has abused its discretion in

rendering an evidentiary ruling, we determine whether that abuse of discretion constitutes

a reversible error. Seltzer, ¶ 65. No reversible error occurs unless a substantial right of

the appellant is affected or the evidence in question could have affected the outcome of

the trial. Seltzer, ¶ 65.

¶11    Whether a directed verdict should be granted or denied is a question of law, which

we review de novo. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105,

152 P.3d 727. In reviewing a motion for a directed verdict, we determine “whether the

non-moving party could prevail upon any view of the evidence including the legitimate

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inferences to be drawn therefrom.”           Cameron v. Mercer, 1998 MT 134, ¶ 8,

289 Mont. 172, 960 P.2d 302.         Courts must “exercise the greatest self-restraint in

interfering with the constitutionally-mandated process of jury decision. Thus, unless

there is a complete absence of any credible evidence in support of the verdict, a motion

for a directed verdict is not properly granted.” Cameron, ¶ 8 (internal citations omitted).

                                       DISCUSSION

¶12    1. Whether the District Court abused its discretion by excluding trial testimony of
       Cleveland’s treating physician, Dr. Phillip Steele.

¶13    Cleveland appeals the District Court’s January 21, 2015 order that Dr. Steele could

not testify on the cause of Cleveland’s rotator cuff injury and its January 27, 2015 order

excluding several specific portions of Dr. Steele’s perpetuation deposition testimony.

M. R. Evid. 702 permits “a witness qualified as an expert by knowledge, skill,

experience, training, or education” to testify “in the form of an opinion or otherwise” if

“scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue.” An expert’s testimony is reliable

if: (1) the expert field is reliable, (2) the expert is qualified, and (3) the qualified expert

reliably applied the reliable field to the facts. Harris, ¶ 36 (citing M. R. Evid. 702). The

first two factors are determined by the district court. By contrast, “[t]he question whether

a qualified expert reliably applied the principles of th[e] reliable field to the facts of the

case is for the finder of fact.” Harris, ¶ 36. However, when expert medical testimony is

required to establish a necessary element of a claim, “the expert must testify with a

‘reasonable medical certainty.’”      McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 29,


                                              6
380 Mont. 204, 354 P.3d 604. Under this standard, “[a] medical expert’s opinion is

admissible if it is based on an opinion that it is ‘more likely than not’ that the alleged

wrongdoing caused the plaintiff’s injury.” McClue, ¶ 29 (quoting Hinkle ex rel. Hinkle v.

Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 36, 322 Mont. 80, 93 P.3d 1239).

¶14    Neither party disputes that Dr. Steele’s field is reliable or that he is qualified as an

expert. The parties dispute the scope of Dr. Steele’s testimony and the District Court’s

exclusion of five portions of it.     In its January 21, 2015 order, the District Court

determined that Dr. Steele “cannot be offered for the purpose of establishing causation”

because he would not say that the collision “more likely than not” caused Cleveland’s

rotator cuff tear. The District Court based its decision on Dr. Steele’s September 2014

deposition testimony that it would be “purely speculative” for him to opine on the

relationship between Cleveland’s rotator cuff tear and the collision. The District Court

did not abuse its discretion by prohibiting Dr. Steele from testifying that the collision

caused Cleveland’s rotator cuff tear because Dr. Steele clearly indicated that he could

give no such opinion.

¶15    The District Court relied on its decision that Dr. Steele could not testify on

causation to exclude several specific portions of Dr. Steele’s perpetuation deposition

testimony. Cleveland appeals five of these exclusions, summarized below. Cleveland

contends that the excluded evidence was offered to explain factual issues “related to

observations and conclusions Dr. Steele made in the course of his treatment” and should

have gone to the jury.



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¶16    Though district courts have broad discretion to control the admission of evidence

at trial, we have long recognized that it is “the sole province of the jury to determine

questions of fact.” Murray v. Heinze, 17 Mont. 353, 364, 42 P. 1057, 1061 (1895). As

such, courts should liberally construe the rules of evidence to admit all relevant expert

testimony, even if that evidence may be characterized as “shaky.” McClue, ¶ 23. “The

expert’s testimony then is open for attack through ‘the traditional and appropriate’

methods: ‘vigorous cross examination, presentation of contrary evidence, and careful

instruction on the burden of proof.’”        McClue, ¶ 23 (quoting State v. Clifford,

2005 MT 219, ¶ 28, 328 Mont. 300, 121 P.3d 489).

¶17    In the first excluded portion of his testimony, Dr. Steele responded to a request for

clarification of his treatment note that a vehicle collision “can be” a contributor to

Cleveland’s symptoms.       Dr. Steele did not opine whether the collision caused

Cleveland’s rotator cuff tear.    Rather, he testified about the medical difficulty of

determining the “pain generator” of shoulder and neck pain. This testimony was factual;

thus, it was admissible. Although this testimony should have been admitted, Dr. Steele

made a similar statement using nearly the same language earlier in his deposition. He

testified:

       [O]ne of the big conundrums of musculoskeletal care is all the nerve roots
       from the neck go there through the shoulder . . . so sometimes shoulder pain
       is neck pain and sometimes neck pain is shoulder pain. . . . It’s an
       extremely challenging area to determine what’s coming from where.




                                             8
The District Court did not exclude that testimony and, thus, there is not a reasonable

possibility that the excluded evidence contributed to the jury’s verdict. The District

Court’s exclusion of Dr. Steele’s testimony was not reversible error.

¶18    The second and third excluded portions of Dr. Steele’s testimony directly pertain

to the cause of Cleveland’s rotator cuff tear. In the second excluded portion, Dr. Steele

responded to a question regarding whether Cleveland had a rotator cuff tear in 2001 by

refusing to speculate as to when Cleveland’s rotator cuff tear occurred. In the third

excluded portion, during a discussion about whether Cleveland had a rotator cuff tear

prior to the collision, Dr. Steele testified that a person typically would show symptoms of

a tear. In the fourth excluded portion, Dr. Steele discussed the various treatment options

for Cleveland’s rotator cuff tear.

¶19    There is no dispute that Cleveland had a rotator cuff tear. However, as discussed

below in our resolution of Issue 3, Cleveland never produced expert testimony that her

rotator cuff tear was “more likely than not” caused by the collision, and the jury

ultimately did not consider that claim because of the District Court’s directed verdict. As

further discussed in our resolution of Issue 3, Cleveland never argued that her rotator cuff

tear, even if pre-existing, was aggravated or rendered symptomatic by the collision. In

the absence of either medical evidence supporting Cleveland’s causation theory or an

argument that the collision aggravated a pre-existing condition, the District Court did not

err by excluding testimony about the cause of Cleveland’s rotator cuff tear or treatment

for that injury.



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¶20    In the fifth excluded portion of his testimony, Dr. Steele testified that it was not

possible to apportion Cleveland’s symptoms between the vehicle collision and any

pre-existing conditions. Cleveland contends on appeal that this testimony was admissible

to rebut Ward’s contention that Cleveland’s symptoms were “100% attributable to a

pre-existing rotator cuff tear.” However, this was not Ward’s contention. The only

testimony in this regard came when Cleveland’s attorney asked Ward’s medical expert,

Dr. Heid, whether Cleveland’s limitations were “completely 100 percent unrelated to the

motor vehicle accident.” Dr. Heid responded that the question was misleading because it

was unclear how much of Cleveland’s limitations were due to her neck injury versus her

shoulder injury.      Since Ward never attempted to apportion potential causes of

Cleveland’s injuries to the jury, Dr. Steele’s testimony that it was not possible to

apportion Cleveland’s symptoms was not in rebuttal of anything. The District Court did

not err in excluding it.

¶21    2. Whether the District Court abused its discretion by excluding trial testimony of
       Cleveland’s physical therapist, Anne Ripley.

¶22    Cleveland next contends that the District Court abused its discretion by barring

Ripley from offering medical causation testimony. At trial and outside of the presence of

the jury, the District Court questioned Ripley about the scope of her testimony. When

asked by the court whether she could determine the cause of a rotator cuff tear, Ripley

responded: “I can’t say that the accident caused the rotator cuff tear. But I can say

function was normal before the accident and after the accident she had all of this change.”

Based in part on this statement, the District Court decided that it was “not going to allow


                                            10
[Ripley] to offer testimony as to medical causation.” The District Court further explained

that Cleveland had not produced required medical expert testimony that, “to a reasonable

degree of medical certainty[,] . . . this accident caused her rotator cuff tear.” On appeal,

Cleveland contends that the District Court reached this decision arbitrarily by not first

allowing Cleveland an opportunity to make an offer of proof. Cleveland further contends

that the District Court should have considered Ripley’s qualifications to determine

whether she was competent to testify under M. R. Evid. 702.

¶23    Regardless of whether Ripley was qualified as a physical therapist to testify on

medical causation, she clearly indicated that she could not opine that the collision caused

Cleveland’s rotator cuff tear.     The District Court did not abuse its discretion in

determining that Ripley could not testify that the collision “more likely than not” caused

Cleveland’s rotator cuff tear.

¶24    Moreover, it bears noting that the District Court did not exclude Ripley’s

testimony regarding Cleveland’s general pain and limitations in her shoulder. Outside of

the presence of the jury, Ripley told the court that she could testify “about the change in

function that I saw after the motor vehicle accident in [Cleveland]. I can talk about her

pain . . . .” The District Court never said that Ripley could not provide this information to

the jury. In fact, before the District Court made its ruling, and while Ripley was still in

front of the jury, Ripley extensively testified about Cleveland’s shoulder injuries,

functional limitations, and pain. The District Court did not exclude any of this testimony.

The District Court’s ruling that Ripley could not testify that the collision caused

Cleveland’s rotator cuff tear did not prevent Cleveland’s attorney from asking Ripley

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further questions about her treatment of Cleveland’s injuries. Nor did the Court’s ruling

prevent Cleveland’s attorney from asking whether Ripley believed the collision

aggravated a pre-existing injury or prevent Ripley from testifying about Cleveland’s pain

and limitations before and after the accident.

¶25    3. Whether the District Court erred in granting a directed verdict on Cleveland’s
       claim that her rotator cuff tear and shoulder arthritis were caused by the collision.

¶26    “A directed verdict . . . is not proper if reasonable persons could differ regarding

the conclusions which could be drawn from the evidence, and a directed verdict is proper

only in the complete absence of any evidence to warrant submission to the jury.” King v.

Zimmerman, 266 Mont. 54, 60, 878 P.2d 895, 899 (1994). The District Court granted

Ward’s motion for a directed verdict “as to the argument for the rotator cuff or arthritic

condition” because it concluded: “There is no medical causation, expert testimony, that

says that [Cleveland’s] rotator cuff arthritic condition in her shoulder is related to the

accident. . . . [N]obody has—and we have to have an expert—has said it was caused by

the motor vehicle accident.” On appeal, Cleveland contends that the District Court erred

in reaching this decision because the jury could infer from “substantial credible evidence”

that the collision was the “apparent cause” of Cleveland’s “on-going shoulder pain and

limitations.”

¶27    Regarding its directed verdict, the District Court instructed the jury:

       I have further concluded at the conclusion of the evidence that there is
       insufficient evidence to establish that the motor vehicle accident caused the
       plaintiff’s rotator cuff tear and arthritis in the right shoulder. So you are not
       to be awarding damages for the rotator cuff tear or the arthritis in her right
       shoulder.


                                              12
Nowhere in its ruling on Ward’s motion for a directed verdict or explanation of that

ruling to the jury did the District Court prevent Cleveland from arguing that the collision

aggravated a pre-existing condition or caused her pain and limitations.

¶28    On appeal, Cleveland conflates the District Court’s directed verdict on the issue of

whether the accident caused her objectively-diagnosed rotator cuff tear and shoulder

arthritis—an argument that did not have the required medical testimony to support it—

with the issue of whether the accident aggravated those injuries, irrespective of their

origin—an argument that was not made to the District Court. As a general rule, “this

Court will not address either an issue raised for the first time on appeal or a party’s

change in legal theory.”       Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15,

289 Mont. 255, 961 P.2d 100 (citing Day v. Payne, 280 Mont. 273, 276, 929 P.2d 864,

866 (1996)). This is because “it is fundamentally unfair to fault the trial court for failing

to rule correctly on an issue it was never given the opportunity to consider.” Easley, ¶ 15

(quoting Day, 280 Mont. at 276-77, 929 P.2d at 866). We will not fault the District Court

for failing to rule on Cleveland’s claim that the collision aggravated a pre-existing injury

or caused her pain because the District Court never was given the opportunity to consider

that issue.

¶29    4. Whether the District Court erred in concluding that Cleveland could not
       recover damages incurred by Shelby House.

¶30    In its January 21, 2015 order on Ward’s motions in limine, the District Court

concluded that Cleveland could not seek damages for “business loss/lost income” on

behalf of Shelby House because Shelby House was not a named party in the lawsuit.


                                             13
Cleveland claims that the District Court erred in excluding evidence of an alleged

increase in payroll expenses incurred by Shelby House, and that she has standing to assert

a claim for these losses because they filter through to her as the sole shareholder.

¶31    “A corporation has a separate and distinct entity from its stockholders.” First Sec.

Bank v. Gary, 245 Mont. 394, 402, 798 P.2d 523, 528 (1990). As the District Court

recognized, “[g]enerally, a shareholder may not bring a claim that belongs to their

corporation.” Weaver v. Advanced Refrigeration, 2011 MT 174, ¶ 14, 361 Mont. 233,

257 P.3d 378 (citing Gullett v. Van Dyke Constr. Co., 2005 MT 105, ¶ 14, 327 Mont. 30,

111 P.3d 220). This includes claims of profits lost to the corporation. Gullet, ¶¶ 14, 17.

Cleveland is bound by her pleadings, see Weaver, ¶ 15, and she does not allege personal

loss of income due to her injuries. Any claim against Ward for “business loss/lost

income” belongs to Shelby House, not to Cleveland personally. See Weaver, ¶ 15. The

District Court did not err in concluding that Cleveland could not recover damages

incurred by Shelby House.

                                     CONCLUSION

¶32    The District Court did not abuse its discretion in determining that Dr. Steele may

not testify that the vehicle collision caused Cleveland’s torn rotator cuff and shoulder

injuries. Any abuse of discretion in the court’s exclusion of the five disputed portions of

Dr. Steele’s testimony was not reversible error. The District Court did not abuse its

discretion in concluding that Ripley may not testify that the collision caused Cleveland’s

rotator cuff tear or shoulder arthritis. Because Cleveland produced no expert testimony

that her rotator cuff tear or shoulder arthritis more likely than not were caused by the

                                             14
collision, the District Court did not err in granting a directed verdict on that claim.

Finally, the District Court did not err in concluding that Cleveland may not recover

damages incurred by Shelby House. We affirm.


                                                   /S/ JAMES JEREMIAH SHEA

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE


Justice Patricia Cotter, concurring.

¶33    I concur in the outcome reached by the Court, but not in all that is said in the

Opinion. At ¶ 19, in addressing the exclusion of Dr. Steele’s testimony, the Court states

that Cleveland never argued that her rotator cuff tear was aggravated or rendered

symptomatic by the collision. However, as the Court notes at ¶ 4, Dr. Steele had already

opined in his deposition that “the automobile accident could have exacerbated it; the

automobile accident could have nothing to do with it. I really don’t know at this point.”

Thus, Dr. Steele was on record prior to trial that he would not offer an opinion as to

aggravation.    Cleveland’s counsel did inquire of the defendant’s expert orthopedic

surgeon Dr. Heid whether the motor vehicle accident caused any aggravation of a

pre-existing injury, and it was her opinion that it did not.

¶34    I also disagree with the Court’s contention at ¶ 24 that the District Court’s ruling

did not prevent Cleveland’s attorney from asking Ripley whether the collision aggravated

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a pre-existing injury. As we note in ¶ 22, the District Court ruled that it would not allow

Ripley to offer testimony as to medical causation. A witness testifying that an accident

aggravated an injury is clearly testifying as to causation for an aggravated injury;

therefore, this opinion too would likely have been excluded. For the same reason, I

disagree with the Court’s incorrect assertion at ¶ 27 that nothing prevented Cleveland

from arguing that the collision aggravated a pre-existing condition. As noted, Steele

refused to offer an opinion on aggravation, Heid denied it occurred, and Ripley was

precluded by court order from offering a causation opinion. Without expert testimony to

support a claim that the accident aggravated a pre-existing injury, Cleveland could not

present this argument to the jury.

¶35    With these caveats, I concur in the Court’s Opinion.



                                                 /S/ PATRICIA COTTER




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