                                                                                                October 23 2015


                                            DA 14-0540
                                                                                                Case Number: DA 14-0540

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 308N



LINDA FRENCH,

              Plaintiff and Appellant,

         v.

JOHN K. BEIGHLE, D.P.M.,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV-09-1010
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Patrick F. Flaherty, Paul Gallardo, Flaherty Law Office, Great Falls,
                        Montana

                For Appellee:

                        John H. Maynard, Christopher K. Oliveira, Crowley Fleck, PLLP, Helena,
                        Montana



                                                      Submitted on Briefs: September 23, 2015
                                                                 Decided: October 23, 2015


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 quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Linda French (French) appeals a jury verdict for the defense in a medical

malpractice case in the Fourth Judicial District Court, Missoula County. The case arises

from care provided to French in 2007 by podiatrist, Dr. John K. Beighle (Dr. Beighle).

This appeal concerns a motion in limine regarding evidentiary issues and two rulings

made during trial. We affirm.

¶3     French injured her right big toe in March 2004 when she jammed it into a table in

her home. She consulted with her family practitioner at the time of her injury who

confirmed she had not broken her foot. A few months later, in June 2004, French sought

assistance from Dr. Beighle. An MRI indicated degenerative arthritis in the right big toe,

a condition that can be caused by multiple factors, one being trauma. Dr. Beighle

prescribed non-surgical treatments and French reported no pain at a follow-up

appointment in July 2004.       French returned to Dr. Beighle in January 2007 with

observable limited range of motion and renewed pain in the joint. A comparison of

x-rays from 2004 and 2007 indicated that her degenerative arthritis had progressed.

Dr. Beighle recommended corrective surgery and French decided to have the existing

bone spurs removed. She did not want to fuse the joint which was another surgical


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choice indicated by her condition. Dr. Beighle removed the spurs on February 1, 2007.

During the operation, he found a greater loss of cartilage than anticipated. He made an

intraoperative decision to use a Nexa bone plug procedure with the goal of creating new

cartilage. The Nexa plug procedure was not successful in stimulating growth of new

cartilage and on May 30, 2008, an orthopedist fused the joint.

¶4     French filed a complaint against Dr. Beighle on August 20, 2009, claiming the

intraoperative decision to perform a bone plug operation was (1) performed without her

informed consent; (2) a negligent election of surgery, as less extreme options were

available and appropriate; and (3) negligently performed. Beighle denied the claims and

the case proceeded to trial.

¶5     The parties filed various motions in limine. Relevant to this appeal, French moved

to exclude evidence of collateral source payments, such as health insurance, in

accordance with § 27-1-308(3), MCA. The Court granted this motion on June 23, 2014.

Dr. Beighle moved to exclude evidence of other malpractice claims against him as

irrelevant and prejudicial pursuant to M. R. Evid. 401, 402, and 403. The court granted

the motion concluding that French had failed to establish how the evidence indicated a

habit or routine as required by M. R. Evid. 406. Trial began on July 15, 2014 and the

jury returned a verdict for the defense on July 18, 2014.

¶6     On appeal, French contends that the trial court erred in excluding reference to her

health insurance status under M. R. Evid. 411. French contends that the evidence was not

going to be offered to show there was insurance paying the cost of defense, but rather to




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show Dr. Beighle’s financial motive in opting for early surgery and then deciding

mid-surgery to perform the Nexa bone plug procedure.

¶7     We review a district court’s decision to exclude evidence for an abuse of

discretion. Martin v. BNSF Ry. Co., 2015 MT 167, ¶ 10, 379 Mont. 423, 352 P.3d 598.

A trial court has broad discretion to determine whether evidence is relevant and

admissible. Absent a showing of an abuse of discretion, the trial court’s determination

will not be overturned. Mickelson v. Mont. Rail Link, Inc., 2000 MT 111, ¶ 35, 299

Mont. 348, 999 P.2d 985.

¶8     We begin by noting that M. R. Evid. 411 is a rule governing liability insurance. It

precludes admission of liability insurance upon the issue of whether a person acted

negligently or otherwise wrongfully. The rule does not preclude evidence of liability

insurance when offered for another purpose such as proof of agency, ownership, or

control, or bias or prejudice of a witness. M. R. Evid. 411. In the present case, French

wanted to introduce information regarding her own health insurance, not Dr. Beighle’s

malpractice insurance. Therefore, Rule 411 was not the basis for the Court’s decision to

exclude discussion of her insurance pursuant to the collateral source rule.

¶9     Collateral source rules prohibit jury consideration of insurance so that payments

from an independent source do not reduce the amount of damages for which a defendant

is responsible.   Montana’s collateral source rule, codified at § 27-1-308(3), MCA,

requires that a jury “determine its award without consideration of any collateral sources.”

See Meek v. Mont. Eighth Jud. Dist. Ct., 2015 MT 130, ¶ 17, 379 Mont. 150, 349 P.3d

493. The definition of a collateral source in Montana includes “any health, sickness, or


                                             4
income disability insurance.” Section 27-1-307(1)(b), MCA. In this case, the District

Court excluded evidence of French’s health insurance based upon the collateral source

statute.    Montana law prohibits a jury from considering any collateral source and

French’s health insurance was a collateral source. The District Court also observed that it

had granted French’s motion in limine prohibiting Dr. Beighle from arguing French had

no damages because her insurance company paid for it, French could not consistently

maintain that Dr. Beighle performed the surgery because she had medical insurance.

Based upon this record, we conclude that the District Court did not abuse its discretion by

excluding evidence that French had health insurance.

¶10      French also argues on appeal that the District Court abused its discretion when it

limited cross-examination of Dr. Beighle’s expert witness, Dr. Thomas Smith, concerning

prior work experience with defense counsel’s firm.          Trial courts have discretion in

defining the parameters and latitude of cross-examination and this Court will not interfere

unless it is manifest that the trial court abused its discretion. State v. Atlas, 224 Mont. 92,

101, 728 P.2d 421, 427 (1986).

¶11      During French’s cross-examination of Dr. Smith, the following exchange took

place:

         Q. [By Mr. Gallardo, counsel for French]: Have you acted as a medical
         expert or medical adviser for the Crowley Fleck law firm in the past?

         A. This is the only time.

         Q. So you’ve never worked with the Crowley Fleck law firm in--in any
         other cases outside of Linda French’s?




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       THE COURT: That’s been answered. Move on to another question--

       MR. GALLARDO: Okay.

¶12    French claims that the court was instructing counsel to move on from the topic.

To the extent French believed this instruction to be improper, French did not object and

provide an offer of proof of the testimony French intended to obtain and provide an

opportunity for the court to correct any alleged error. See M. R. Evid. 103(a)(2). To

preserve an issue for appeal, an appellant must first raise that specific issue in the district

court. Ginn v. Smurfit Stone Container Enters., 2015 MT 81, ¶ 35, 378 Mont. 378, 344

P.3d 972. Accordingly, we first note that this issue has not been properly preserved.

Nevertheless, based upon a review of the record, we conclude that the court did not abuse

its broad discretion when it instructed French’s counsel to move on to another question.

¶13    Finally, French contends that the District Court abused its discretion by excluding

evidence of earlier unrelated medical malpractice claims. We review a district court’s

evidentiary ruling regarding the admission of evidence of other crimes, wrongs, or acts

for abuse of discretion. State v. Bieber, 2007 MT 262, ¶ 21, 339 Mont. 309, 170 P.3d

444.

¶14    Before trial French argued that Dr. Beighle’s manner and routine in his podiatry

practice qualifies as admissible habit evidence under M. R. Evid. 406. French planned to

provide testimony from three other patients to show that Dr. Beighle’s conduct and

practices were substantially similar. In its opinion and order on the parties’ motions in

limine, the District Court found that French did not adequately identify a habit or routine

and excluded other malpractice cases and unnamed individuals alleging malpractice


                                              6
against Dr. Beighle. The court relied upon M. R. Evid. 403 which states that relevant

evidence is inadmissible “if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury. . . .” M. R. Evid. 403.

The District Court also noted that while evidence of habit or a routine practice is relevant

to prove that conduct on a particular occasion was in conformity with the habit or routine

practice under M. R. Evid. 406(b), “evidence of a person’s character or a trait of

character is not admissible for the purpose of proving action in conformity therewith

. . . .” M. R. Evid. 404(a). We have stated numerous times that district courts are in the

best position to make evidentiary rulings. See Waller v. Hayden, 268 Mont. 204, 885

P.2d. 1305 (1994). Given the clear danger of unfair prejudice, the District Court did not

abuse its discretion in excluding the testimony of earlier unrelated medical malpractice

claims.

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

our Internal Operating Rules, which provides for memorandum opinions. The District

Court did not abuse its discretion by excluding collateral source evidence of French’s

health insurance; limiting cross-examination of Dr. Beighle’s expert witness concerning

prior work experience with French’s counsel’s firm; or excluding evidence of earlier,

unrelated medical malpractice claims. Affirmed.


                                                  /S/ LAURIE McKINNON

We concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA

                                             7
Justice Jim Rice, concurring.

¶16    I agree with French that the District Court should not have excluded the evidence

of Beighle’s comment about French’s health insurance under the collateral source rule.

As French argues, the purpose of that rule is to protect plaintiffs—to prohibit defendants

from telling the jury that the plaintiff had insurance to pay her bills, and thus prejudice

her recovery. Here, Plaintiff French wanted to introduce Defendant Beighle’s comment

about her insurance coverage to support her theory that Beighle had initiated an

unauthorized procedure for financial gain, and thus committed malpractice.             This

reference to her insurance is not prohibited by the collateral source rule, and is not

inconsistent with her motion in limine to exclude evidence of the payment of her medical

bills by insurance.

¶17    However, given the diminutive content and speculative nature of this evidence, I

believe it was well within the District Court’s discretion to exclude the evidence on other

grounds and, therefore, I conclude the exclusion did not constitute reversible error. I thus

concur in affirming the District Court.



                                                 /S/ JIM RICE




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