September 10 2013
DA 12-0773
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 259N
JEROME ANDERSON,
Plaintiff and Appellant,
v.
LARRY ELLER,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-08-1307 Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Douglas C. Allen; Attorney at Law; Cut Bank, Montana
For Appellee:
Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana
Submitted on Briefs: August 14, 2013
Decided: September 10, 2013
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 This is a personal injury claim stemming from a motor vehicle accident that
occurred in Cascade County on October 3, 2005. After three days of trial, a jury returned
a verdict that Defendant/Appellee Larry Eller (“Eller”) did not cause any injury to
Plaintiff/Appellant Jerome Anderson (“Anderson”) when Eller backed his pickup truck
into Anderson’s car. Anderson filed a motion for new trial, citing insufficiency of the
evidence, which was deemed denied by operation of law. We affirm the judgment
entered by the District Court on the verdict and the District Court’s denial of Anderson’s
motion for new trial.1
¶3 On October 3, 2005, Anderson was stopped behind Eller at the intersection of
River Drive North and 25th Street, in Cascade County. Eller was driving a 1999 Ford
pickup truck and Anderson was driving a 1985 Subaru car. Both were waiting for a
vehicle stopped ahead of Eller to enter River Drive. Eller testified that he shifted into
reverse, took his foot off the brake, and was reaching down to put his foot on the gas
when he heard a “honk” and a “crunch,” indicating he had backed into Anderson’s
vehicle. Eller’s vehicle had moved approximately three feet and was traveling at a very
1 The District Court did not rule on Anderson’s motion; thus, the motion was “deemed denied” by operation of law on December 1, 2012. M. R. Civ. P. 59(f). 2 low speed. The trailer hitch of Eller’s vehicle went through the radiator of Anderson’s
vehicle, but the body of Eller’s vehicle itself never touched Anderson’s vehicle. Eller
testified he did not feel anything and there was no property damage to his vehicle. Eller
admitted that his negligence was the sole cause of the accident.
¶4 The jury was instructed by the District Court that “the accident occurred as a result
of Defendant Larry Eller’s negligence which was the sole cause of the accident.”
Accordingly, the only issue submitted to the jury on the verdict sheet was whether Eller’s
negligence caused injury to Anderson and, if so, what were the amount of damages. The
jury returned a verdict that Eller’s negligence did not cause any injury to Anderson.
Anderson argues that the evidence of his injuries resulting from the accident was
uncontradicted by Eller and that there was therefore insufficient evidence to justify the
verdict. Anderson contends that the District Court erred in denying his motion for new
trial.
¶5 This Court’s review of a district court’s decision on a motion for new trial where
the basis of the motion is insufficiency of the evidence is de novo. Styren Farms, Inc. v.
Roos, 2011 MT 299, ¶ 11, 363 Mont. 41, 265 P.3d 1230. Like the district court, we
determine whether there was substantial evidence to support the verdict. Renville v.
Taylor, 2000 MT 217, ¶ 14, 301 Mont. 99, 7 P.3d 400. “Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion; it may be less
than a preponderance of the evidence, but must be more than a ‘mere scintilla.’ ” Fish v.
Harris, 2008 MT 302, ¶ 8, 345 Mont. 527, 192 P.3d 238 (quoting Upky v. Marshall
Mountain, LLC, 2008 MT 90, ¶ 22, 342 Mont. 273, 180 P.3d 651).
3 ¶6 Anderson’s only expert witness was Dr. Michael Luckett. Dr. Luckett, who has a
general practice of orthopedics with Great Falls Orthopedic Associates, was questioned
regarding Anderson’s injury and the causation between the accident and Anderson’s
injury. Anderson saw Dr. Luckett twice between the timeframe of the 2005 accident and
trial on August 24, 2012. Ultimately, Dr. Luckett opined that Anderson “had suffered a
sprain–strain of the midthoracic and thoracal lumbar junction of the spine. And that he
had aggravated a preexisting, developmental degenerative condition, called
Scheuermann’s Kyphosis.” Dr. Luckett explained that Anderson was affected by
Scheuermann’s disease primarily in the thoracic spine. This was the same area that was
symptomatic, as related by Anderson, to the motor vehicle accident. Significantly,
Dr. Luckett’s opinion was “based on the history of onset” as attributed to him by
Anderson. Dr. Luckett knew nothing about Anderson’s treatment for pain by Dr. R. A.
Reynolds, a chiropractor, for several years prior to the accident, nor did Anderson call
Dr. Reynolds to testify regarding Anderson’s chiropractic treatment both before and
following the accident.
¶7 The jury heard evidence that Dr. Luckett opined, first, that he could not attribute
Anderson’s symptoms to his motor vehicle accident on a more probable than not basis.
The jury subsequently heard from Dr. Luckett that, following a meeting with Anderson’s
lawyer, his opinion changed to one of Anderson having suffered a mid-thoracic sprain as
a result of the accident. Specifically, a report issued April 5, 2012, by Dr. Luckett, and
admitted into evidence, stated:
4 I cannot conclude on a more probable than not basis that Mr. Anderson’s current symptoms are clearly related to his motor vehicular accident as the predominant cause. I think that it is more likely that he did have aggravation of symptoms. However, he had preexisting degeneration that likely would have become symptomatic at some point in time.
¶8 Dr. Luckett subsequently issued a letter dated May 18, 2012, which was also
admitted into evidence, indicating his previous causation opinion was incorrect because
he had “overlooked the fact that my past records indicated Jerome Anderson had no prior
spinal related symptoms before his automobile accident.” Dr. Luckett explained at trial
that “Scheuermann’s Kyphosis is not symptomatic and is primarily a cosmetic
deformity.” (Emphasis added.) Somewhat inconsistently, however, Dr. Luckett also
testified that the automobile accident aggravated a preexisting condition “because
Scheuermann’s Kyphosis is associated with degeneration, and a traumatic event would
be more likely to cause symptoms in a degenerative spine than in a nondegenerative
spine.” (Emphasis added.) The defense presented no expert testimony.
¶9 As previously stated, we review a jury’s verdict in a civil case to determine
whether substantial credible evidence in the record supports the verdict. We have
explained:
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September 10 2013
DA 12-0773
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 259N
JEROME ANDERSON,
Plaintiff and Appellant,
v.
LARRY ELLER,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-08-1307 Honorable Dirk M. Sandefur, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Douglas C. Allen; Attorney at Law; Cut Bank, Montana
For Appellee:
Paul R. Haffeman; Davis, Hatley, Haffeman & Tighe, P.C.; Great Falls, Montana
Submitted on Briefs: August 14, 2013
Decided: September 10, 2013
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 This is a personal injury claim stemming from a motor vehicle accident that
occurred in Cascade County on October 3, 2005. After three days of trial, a jury returned
a verdict that Defendant/Appellee Larry Eller (“Eller”) did not cause any injury to
Plaintiff/Appellant Jerome Anderson (“Anderson”) when Eller backed his pickup truck
into Anderson’s car. Anderson filed a motion for new trial, citing insufficiency of the
evidence, which was deemed denied by operation of law. We affirm the judgment
entered by the District Court on the verdict and the District Court’s denial of Anderson’s
motion for new trial.1
¶3 On October 3, 2005, Anderson was stopped behind Eller at the intersection of
River Drive North and 25th Street, in Cascade County. Eller was driving a 1999 Ford
pickup truck and Anderson was driving a 1985 Subaru car. Both were waiting for a
vehicle stopped ahead of Eller to enter River Drive. Eller testified that he shifted into
reverse, took his foot off the brake, and was reaching down to put his foot on the gas
when he heard a “honk” and a “crunch,” indicating he had backed into Anderson’s
vehicle. Eller’s vehicle had moved approximately three feet and was traveling at a very
1 The District Court did not rule on Anderson’s motion; thus, the motion was “deemed denied” by operation of law on December 1, 2012. M. R. Civ. P. 59(f). 2 low speed. The trailer hitch of Eller’s vehicle went through the radiator of Anderson’s
vehicle, but the body of Eller’s vehicle itself never touched Anderson’s vehicle. Eller
testified he did not feel anything and there was no property damage to his vehicle. Eller
admitted that his negligence was the sole cause of the accident.
¶4 The jury was instructed by the District Court that “the accident occurred as a result
of Defendant Larry Eller’s negligence which was the sole cause of the accident.”
Accordingly, the only issue submitted to the jury on the verdict sheet was whether Eller’s
negligence caused injury to Anderson and, if so, what were the amount of damages. The
jury returned a verdict that Eller’s negligence did not cause any injury to Anderson.
Anderson argues that the evidence of his injuries resulting from the accident was
uncontradicted by Eller and that there was therefore insufficient evidence to justify the
verdict. Anderson contends that the District Court erred in denying his motion for new
trial.
¶5 This Court’s review of a district court’s decision on a motion for new trial where
the basis of the motion is insufficiency of the evidence is de novo. Styren Farms, Inc. v.
Roos, 2011 MT 299, ¶ 11, 363 Mont. 41, 265 P.3d 1230. Like the district court, we
determine whether there was substantial evidence to support the verdict. Renville v.
Taylor, 2000 MT 217, ¶ 14, 301 Mont. 99, 7 P.3d 400. “Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion; it may be less
than a preponderance of the evidence, but must be more than a ‘mere scintilla.’ ” Fish v.
Harris, 2008 MT 302, ¶ 8, 345 Mont. 527, 192 P.3d 238 (quoting Upky v. Marshall
Mountain, LLC, 2008 MT 90, ¶ 22, 342 Mont. 273, 180 P.3d 651).
3 ¶6 Anderson’s only expert witness was Dr. Michael Luckett. Dr. Luckett, who has a
general practice of orthopedics with Great Falls Orthopedic Associates, was questioned
regarding Anderson’s injury and the causation between the accident and Anderson’s
injury. Anderson saw Dr. Luckett twice between the timeframe of the 2005 accident and
trial on August 24, 2012. Ultimately, Dr. Luckett opined that Anderson “had suffered a
sprain–strain of the midthoracic and thoracal lumbar junction of the spine. And that he
had aggravated a preexisting, developmental degenerative condition, called
Scheuermann’s Kyphosis.” Dr. Luckett explained that Anderson was affected by
Scheuermann’s disease primarily in the thoracic spine. This was the same area that was
symptomatic, as related by Anderson, to the motor vehicle accident. Significantly,
Dr. Luckett’s opinion was “based on the history of onset” as attributed to him by
Anderson. Dr. Luckett knew nothing about Anderson’s treatment for pain by Dr. R. A.
Reynolds, a chiropractor, for several years prior to the accident, nor did Anderson call
Dr. Reynolds to testify regarding Anderson’s chiropractic treatment both before and
following the accident.
¶7 The jury heard evidence that Dr. Luckett opined, first, that he could not attribute
Anderson’s symptoms to his motor vehicle accident on a more probable than not basis.
The jury subsequently heard from Dr. Luckett that, following a meeting with Anderson’s
lawyer, his opinion changed to one of Anderson having suffered a mid-thoracic sprain as
a result of the accident. Specifically, a report issued April 5, 2012, by Dr. Luckett, and
admitted into evidence, stated:
4 I cannot conclude on a more probable than not basis that Mr. Anderson’s current symptoms are clearly related to his motor vehicular accident as the predominant cause. I think that it is more likely that he did have aggravation of symptoms. However, he had preexisting degeneration that likely would have become symptomatic at some point in time.
¶8 Dr. Luckett subsequently issued a letter dated May 18, 2012, which was also
admitted into evidence, indicating his previous causation opinion was incorrect because
he had “overlooked the fact that my past records indicated Jerome Anderson had no prior
spinal related symptoms before his automobile accident.” Dr. Luckett explained at trial
that “Scheuermann’s Kyphosis is not symptomatic and is primarily a cosmetic
deformity.” (Emphasis added.) Somewhat inconsistently, however, Dr. Luckett also
testified that the automobile accident aggravated a preexisting condition “because
Scheuermann’s Kyphosis is associated with degeneration, and a traumatic event would
be more likely to cause symptoms in a degenerative spine than in a nondegenerative
spine.” (Emphasis added.) The defense presented no expert testimony.
¶9 As previously stated, we review a jury’s verdict in a civil case to determine
whether substantial credible evidence in the record supports the verdict. We have
explained:
It is not our function to agree or disagree with the jury’s verdict and, consequently, if conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other. . . . [I]n reviewing the sufficiency of the evidence to support a jury verdict, we review the evidence in a light most favorable to the prevailing party.
Magart v. Schank, 2000 MT 279, ¶ 4, 302 Mont. 151, 13 P.3d 390 (citations omitted).
¶10 Anderson’s argument that there is insufficient evidence to support the jury’s
failure to find injury causation is based primarily on his contention that Dr. Luckett’s
5 testimony was not controverted by an expert witness for the defense. We addressed a
similar scenario in Clark v. Bell, 2009 MT 390, 353 Mont. 331, 220 P.3d 650, where the
jury returned a defense verdict based on a finding that there was no causation between the
defendant’s negligence and the injury. Clark similarly had a preexisting injury and was
claiming a new injury. There, we affirmed the district court’s denial of a post-trial
motion for judgment as a matter of law which was premised upon a claim that the
plaintiff’s evidence of injury was uncontroverted. We held in Clark:
Clark also argues that because Bell presented no direct evidence from lay or expert witnesses, her causation evidence was unchallenged and she was entitled to judgment as a matter of law. However, as in Ele [v. Ehnes, 2003 MT 131, 316 Mont. 69, 68 P.3d 835], Bell challenged Clark’s evidence through cross-examination. The jury was entitled to weigh that evidence and determine its credibility against Clark’s evidence. “[E]ven if uncontradicted direct testimony is admitted, the jury is entitled to weigh that testimony against adverse circumstantial evidence and other factors which may affect the credibility of the witness.” Ele, ¶ 32 (citation omitted). Thus, the District Court properly denied Clark’s motion for judgment as a matter of law on causation, leaving the question to the jury.
Clark, ¶ 27.
¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions.
¶12 The evidence in the record before us establishes that Anderson’s claim stems from
a motor vehicle accident that had very little property damage, occurred at low speeds, and
with very little impact. Anderson initially told Eller and law enforcement officers at the
scene that he was fine. He did not seek medical treatment for four days following the
accident. Anderson’s sole expert witness testified to a preexisting condition and could
not initially conclude that the accident caused Anderson’s ongoing complaints. This
6 expert subsequently redacted his opinion indicating that he had overlooked certain
aspects of Anderson’s medical records relating to prior treatment. The expert saw
Anderson only twice during a seven-year period. Other evidence from lay witnesses as
well is present in the record which supports the jury’s verdict. Given consideration of the
record as a whole, we hold that there was substantial evidence for a jury to conclude that
Anderson did not prove injury resulted from his automobile accident with Eller. We
further hold that the District Court properly denied Anderson’s motion for a new trial.
¶13 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ MICHAEL E WHEAT /S/ BRIAN MORRIS /S/ JIM RICE