No. 84-397 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

AMIE BROWN, by Darold Brown, 

her next friend, 

Plaintiff and Respondent, 

-vsLARRY MARKVE , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable Alfred B. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, 

Montana 

For Respondent : 

Huntley & Eakin; Gene Huntley, Baker, Montana 

Submitted on Briefs: May 9, 1985 

Decided: May 23, 1985 

Filed: 

MHY ." , /'J& 

- Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant appeals from the order of the Sixteenth Judicial District, Fallon County, granting a new trial. The 

District Court granted a new trial on the grounds that the 

$25,000 jury award to the plaintiff constituted inadequate 

damages. We reverse the District Court. 

The only issue is whether the District Court erred in 

granting plaintiff's motion for a new trial after the plaintiff had received a jury verdict of $25,000. 

Plaintiff had stopped her vehicle at a stop light in 

Baker, Montana. Her stopped vehicle was struck from the rear 

by a pickup truck operated by the defendant. Prior to the 

commencement of trial, defendant admitted liability for 

damages proximately caused by the accident. As a result, a 

trial was held on the issue of the nature and extent of the 

plaintiff's damages. Following the jury trial, a verdict for 

$25,000 was returned for the plaintiff. Judgment in that 

amount was entered. Plaintiff moved for a new trial and the 

District Court granted a new trial on the grounds of inadequate damages and insufficiency of the evidence to justify 

the verdict. 

In holding that the verdict granted inadequate damages, 

the District Court concluded there was not sufficient evidence upon which to base an award of $25,000. Essentially 

this is no different than the conclusion that a new trial was 

granted because of the insufficiency of the evidence to 

justify the verdict. The standard to be applied upon the 

granting of a new trial and the consequent reversal of a jury 

verdict is stated in Nelson v. Hartman (Mont. 1982), 648 P.2d 

1176, 1178, 39 St.Rep. 1409, 1412, as follows: 

"The District Court's second ground for granting 

respondent a new trial was that the jury verdict 

was contrary to the evidence. A trial court's 
denial of a motion for new trial is granted greater 

deference than a motion which has the effect of 

nullifying a jury verdict. This Court will not 

hesitate to reinstate the verdict which is supported by substantial evidence. Beebe v. Johnson 

(1974), 165 Mont. 96, 526 P.2d 128, citing 

Campeau v. Lewis (1965), 144 Mont. 543, 398 P.2d 

960. " 

The test to be applied in the present case is whether the 

verdict of $25,000 is supported by substantial evidence. 

In reviewing the Memo Opinion and Order of the District 

Court, we find that the district judge referred to the fact 

that in closing argument, defense counsel suggested to the 

jury that "a fair verdict would be $30,000." The court then 

concluded that this argument to the jury had the legal effect 

of an admission against interest which set the lower limits 

of the verdict at $30,000. No citation of legal authority is 

cited for that conclusion. In addition, the conclusion of 

the trial court contradicts its own Instruction No. 1 which 

in part stated as follows: 

"Statements of counsel are not to be regarded by 

you as evidence and you will disregard any such 

statements which are not supported by the evidence 

received upon this trial." 

By his argument, the defense counsel obviously sought to 

encourage the jury to reach a lower verdict because of the 

presence of an admission of liability on the part of his 

client. However, that suggestion cannot be classed as evidence or an admission against interest which set a floor of 

$30,000 below wh.ich the jury could not go. The jury remained 

the finder of fact with the right to set the damages at 

$25,000 or such other figure as the jurors might conclude to 

be appropriate under the evidence. 

We have examined the medical evidence submitted in 

behalf of both the plaintiff and the defendant. 

Well-qualified medical experts in the field of neurology 

testified for both the plaintiff and the defendant. The 
evidence regarding the extent of the damages and the disability on the part of the plaintiff is sharply contradictory. 

As an example, the plaintiff's doctor testified that there 

were positive indications of a pyramidal tract disturbance in 

the plaintiff. This is claimed to be a response indicating 

involvement of the great pyramidal motor system somewhere 

between the brain and the spinal cord and can indicate a 

rather serious problem. In contrast, the neurologist testifying for the defendant stated that there was absolutely no 

sign of any pyramidal tract disturbance and totally disagreed 

that there was a positive Babinski sign which had been observed by the plaintiff's doctor. This type of conflict 

appears throughout the medical testimony involving the nature 

of the injury to plaintiff, and the extent of her disability. 

Apparently the jury concluded that in certain medical 

aspects, testimony submitted in behalf of the defendant was 

more believable than that of the plaintiff. That was the 

function of the jury. As we review this evidence submitted 

in behalf of the defendant, we conclude that it was clearly 

substantial. The evidence which supports the verdict was 

presented by a well-qualified medical doctor, who was adequately examined and cross-examined to establish the contentions on the part of the defendant with regard to the nature 

of the injury and the degree of disability. We conclude that 

there clearly was substantial credible evidence to support 

the verdict of the jury. 

We reverse the District Court and direct that the verdict shall be reinstated and judgment entered in accordance 

with the verdict. 
We concur: ,+' 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I would affirm the grant of a new trial by the District 

Court. 

Mr. Justice Wesley Castles, in his dissent in Beebe v. 

Johnson (1974), 165 Mont. 96, 116, 526 P.2d 1.28, 138, 

complained that "what the rule may now be in this Court's 

review of a trial court's order granting a new trial is 

highly speculative." 

Beebe v. Johnson is the founding case upon which Nelson 

v. Hartman (Mont. 1982), 648 P.2d 1176, 39 St.Rep. 1409, is 

based. Nelson v. Hartman is the case relied on by the 

majority in this case to determine that the grant of a motion 

for new trial is not entitled to the deference on appeal that 

traditionally is given to a denial of a motion for new trial. 

Justice Castles had reason to be concerned. Tn Beebe, 

this Court determined, that it would set aside a grant of new 

trial if this Court found "there is nothing incredible about 

the verdict,'' relying on Campeau v. Lewis (1965), 1-44 Mont. 

543, 398 P.2d 960. This Court came to that rule by ignoring 

Tigh v. College Park Realty Company (1967) , 149 Mont. 358, 

427 P.2d 57 and Garrison v. Trolbridge (1947), 119 Mont. 505, 

177 P.2d 464; and Brennan v. Mayo (1935), 100 Mont. 439, 50 

P.2d 245, where we had established the rule that the trial 

court will not be reversed on a grant of new trial except 

upon - a ma.nifest abuse - of discretion. 

In Ployhar v. Board of Trustees of Missoula County High 

School (involving the same counsel) (19801, 187 Mont. 363, 

609 P.2d 1226, this Court reverted to its prior rule: 

"The trial court has broad discretion in granting 

or refusing to grant a new trial. Its order will 

not be disturbed on appeal the absence - of - a 
clear showing - of - a manifest abuse of discretion. 

See Yerkich v. Opsta (1978), 176 ~rnt. 272, 577 

P.2d 857. This Court is especially reluctant to 

reverse a.n order granting a new trial because it 

gives both parties an equal chance to relitigate 

their positions in a second trial. Tigh v. College 

Park Realty Company (1967), 149 Mont. 358, 427 P.2d 

57. An order granting a new trial will be upheld 

if it can be sustained on any of the grounds 

contained in the order. Tigh, supra. " 187 Mont. 

at 365. (Emphasis added.) 

In Nelson v. Hartman, in 1982, we seem to have backed 

off again to the position in Beebe, although Nelson v. 

Hartman does not really contain any standard for review with 

respect to a grant of a new trial. I regret that when I 

joined in the opinion in Nelson v. Hartman, I did not 

perceive that the opinion could be construed as suggesting a 

lesser standard of review than manifest abuse of discretion 

in determining the propriety of a district court's order 

granting a new trial. 

In the federal court system, there is no appeal from the 

order of a federal district court granting a new trial. The 

federal theory is that since the issues will be relitigated 

in the new trial, no party is aggrieved until a finaljudgment is entered. We do not, therefore, have from the 

federal system a body of law to which we could advert to 

determine a generally-accepted rule for review in this 

jurisdiction where an appeal is allowed from a grant of new 

trial. 

In every other instance, we give deference to the orders 

and decisions of a d.istrict court in the course of a trial. 

Its ruling on evidence will generally be sustained; its 

decisions as to whether jurors should be excused, where venue 

should lie, whether issues will be tried at once or 

separately, are regarded with respect on appeal. In a bench 

trial, its findings of fact will not be set aside unless they 
are "clearly erroneous." There is no logical reason to say 

that in this one instance, the district judge's decision must 

give way if there is "substantial" evidence, an ephemeral 

term at best. 

If we are to abandon the rule of review requiring 

"manifest abuse of discretion" in this type of appeal, we 

should still place the burden upon the appellant to take the 

laboring oar where a new trial grant is appealed. At least 

the rule should be that in an appeal from an order granting a 

new trial the appellant must affirmatively establish that the 

reasons stated in the order for a new trial do not justify a 

new trial. See Santanello v. Cooper (Ariz . 1970) , 475 P. 2d 

246, 248. It offends my view of appropriate appellate 

procedure that the respondent, under the view here, must 

affirmatively justify the District Court's order and not the 

appellant. That is really the effect of this decision. 

A further reason that we should determine an appropriate 

standard of review in this type of case is the example we get 

from this case itself. The majority have turned themsel-ves 

into fact-finders, weighing medical evidence, and, as I will 

suggest, weighing it inadequately. 

As the District Court pointed out in its memorandum and 

order granting the new trial, the $25,000 verdict here 

included $13,000 in special damages, which were uncontested 

by the defendant. That means that the jury awarded the 

meager sum of $12,000 for pain and suffering (past and 

future), loss of ability to lead a normal life, and possible 

loss of earning capacity. 

I think the jury totally rejected the testimony of 

defendant's medical witness, Dr. Smith. Let me explain why. 
Amie called on her behalf Dr. Keilman, a chiropractor 

from Glendive, Montana. Amie had been his patient from 

August 23, 1980. She had stiffness of the lower back, 

thoracic cervical tension, nervousness and an elbow problem. 

He saw her several times between 1980 and February 9, 1981. 

He stated that on her last visit to him she described her 

health as "fantastic" and that as far as he was concerned, 

she had recovered full health in February of 1981. 

Amie's accident occurred on February 22, 1981. On 

February 23, 1981, she again came to his office complaining 

of severe head pain and tired neck. She related those 

complaints immediately to the injury sustained in the 

collision, where she was rammed from behind by the truck. 

Dr. Keilman testified that in the nine years that he had been 

practicing, she was probably the most severely injured 

patient he had ever had in his office. She was hurting to 

the point that she could no longer support her head with her 

own muscles. She was holding her head with her hands because 

her neck was too tender and too sore. His x-rays revealed 

that Amie had a loss of lordotic curvature, i.n other words, 

her neck spine had straightened out instead of presenting the 

normal curve. His diagnosis was her neck was sprained with 

constant pain, and laceration of the entire "spacious" 

ligaments in the area of C-1 to C-5. 

Amie's second medical witness was Dr. Richard Nelson of 

Billings, a specialist in neurology. He described neurology 

as that branch of medicine that studies the normalities and 

abnormalities of the nervous system, including the anatomy 

and physical functions of the brain and spinal cord and their 

rel-ation to all the nerves and organs of the body system. In 

his physical examination of Amie, on March 22, 1983, 13 
months following the accident, he found a Babinski response 

from which eventually he determined that Amie had a cervical 

sprain which affected the pyramidal motor system somewhere 

between her brain and her spinal cord, and also a possible 

thoracic syndrome. To eliminate other causes, he had. CAT 

scans taken, to remove the possibility of subdural hematoma 

and cervical spine degeneration, and other tests to exclude 

multiple sclerosis as a possible cause of her difficulty. He 

also caused thermograms to be taken which he testified 

confirmed his diagnosis. He further indicated that Arnie's 

condition was chronic, that he could not predict at what 

point in time she would find relief from her pain. At trial, 

he demonstrated a Babinski response by conducting the test on 

Amie before the jury. 

Dr. Maurice Camp Smith, a Billings neurological surgeon, 

testified by deposition, on behalf of the defendant. Dr. 

Smith found. no Babinski response, and ridiculed what Dr. 

Nelson found, saying: 

". . . She told me that Dr. Nelson had said that 

she had a Babinski response. Now this is a 

pathologic response indicating involvement of the 

great pyramidal motor system somewhere between the 

brain and. the spinal cord, and it was rather--would 

indicate a rather serious problem, so I think what 

had happened that he called this a Babinski on the 

extension of the toe but must have failed to 

continue the plantar stimulation and realize that 

the toes all flex normally and this was perfectly 

normal . . ." 

Dr. Smith found no sensory diminution in Amie and he 

reviewed the x-rays and the CAT scans of the brain and neck. 

His determination was that she had symptoms of a tension 

headache, that she had no abnormal neurological findings, no 

x-ray findings that were abnormal, and no abnormal findings 

in the CAT scan of her brain. He felt that she had a. 

flexion-extension injury a.t the time of the accident, causing 
a sprained neck. He woulc? not agree that any symptoms 

existed beyond six weeks that could be attributed to the 

accident. 

His cross-examination is more revealing. Dr. Smith 

demeaned the testimony of Dr. Keilman, the chiropractor: 

"Q. Well, one of the things you said you read was 

Dr. Keilman's deposition. A. He is not a 

physician. 

"Q. What is he? A. A chiropractor. 

"Q. All right, he's a, a--he treats people 

medically. A. No, he doesn't. He treats by 

chiropractic means. 

"A. Even if he were a physician, and even if then 

he were a specialist in a -- this particular field, 

even specialists in the same field can have 

marketedly different opinions. I would just say it 

was a difference of opinion and in this opinion it 

is a difference of opinion without the -- the 

expertise that I have." 

Dr. Smith further testified that he attached no 

significance to the loss of lordotic curvature found by Dr. 

Keilman. He intimated indirectly that Dr. Nelson did not 

know how to conduct a Rabinski test, since Dr. Nelson was a 

neurologist, and he, Smith, was a neurosurgeon. He 

discounted any medical authority cited to him, saying: 

"9. Well, here's another. A. Proving my point 

that you can get any article to support any point 

you want. 

"Q. I want to ask you something about that, 

doctor. When you go to -- to school you read 

books, don't you? A. Sure. 

"(2. And don't you rely upon them for your practice 

of medicine. A. Never. 

"Q. You don' t? No. 

"Q. And don't your -- the people that teach you 

and your other experts, don't they write books? A. 

Sure. 

"Q. But you don't rely on them? A. Never. The 

purpose of a medical education is to learn to sort 
out the Literature so that you can rely on some 

things, you can use some things to help you, but 

your total -- what you rely on is your knowledge of 

the anatomy, the physiology, a knowledge of 

pathology, of what happens, and you don't learn 

that in books. In fact, you don't learn medicine 

in books or articles. 

'Q. And you don't apparently practice medicine 

from books. A. No I don't. 

"Q. There is a vast literature that has grown up 

in the medical field, don't you pursue any of that? 

A. Of course I do. I take it all into advisement, 

but I never rely solely upon any article. To do so 

would be absolutely foolhearty. 

"(2. And you don't recognize any article as being 

authoritative? A. Well, of course not.'' 

Thus if the world disagreed with Dr. Smith, the world 

was wrong and he was right. 

At the risk of being called a fact-finder myself, I 

think the jury rejected the testimony of Dr. Smith, but I am 

positive that the court rejected it. For that reason, the 

District Court, viewing the remaining testimony of the 

medica.1 witnesses for Amie Brown and her own testimony, 

determined that a $12,000 award for her pain, suffering and 

other damages, past and future, was inadequate as a matter of 

law. I agree. 

Counsel for the defendant must also have agreed when he 

suggested to the jury that $30,000 was a fair, proportionate 

award. Counsel for the defendant was not in the business of 

giving away his client's money. 

The only effect of a district court's motion to grant a 

new trial is to have another jury take a look at the case. A 

fear seems to be developing in this Court that juries are not 

to be trusted in the matter of damages. (See for example, 

Weber v. Blue Cross of Montana (Mont. 1982), 643 ~.2d 198, 39 

St.R.ep. 245.) I trust we are not about to revert to the 

philosophy of 20 years ago expressed in the O'Brien cases, an 
era of decisions that brought about so much discredit to this 

Court among members of the Bar. O'Brien v. Great Northern 

Railway (1966), 148 Mont. 429, 421 P.2d 710; (1965) 145 Mont. 

+ 6. ;XL? 

Justice 

I concur in the foregoing dissent.