No, 13173 INTHE SUPREME COIJRT OF THE STATE OF MONTANA 1976

GERALD 

### E

# .ANKENY

## ,JR.

# , Plaintiff and Respondent,

LAURIE GRUNSTEAD, ROLAND

### M. GRUNSTEAD and MILLIE GRUNSTFAD, Defendants and Appellants.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellants: Garlington, Lohn and Robinson, Missoula, Montana Sherman V. Lohn argued, and Gary L, Graham argued,

Missoula

# ,Montana For Respondent: Reno and Dolve, Billings, Montana James A. Reno argued, Billings, Montana Roger A. Kander, Long Beach, California

Submitted: March 

### 8, 1976 Decided: 

### JUR 2

### 4

## 1976 Filed: 

### rjUM

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### 19-0Hon. A.B. Martin, District Judge, si~ting for Chief Justice James T. Harrison, delivered the Opinion of the Court:

In this action the district court, Yellowstone County, sittingwithout a jury, awarded Gerald E. Ankeny, Jr. $83,302

as damages for injuries claimed to have been sustained on June 15, 1970, as a result of an intersection collision between a motor bike operated by Ankeny and a car owned by Roland M. Grunstead and Millie Grunstead and driven by their daughter Laurie Grunstead. Of the total damages the court awarded $409 for emergency hospital expenses, $5,248 formedical care provided by the Veterans Administration, and the balance of $77,645 for general damages. Grunsteads do not, on this appeal, deny responsibility for the collision, but claim as a defense that the vehicular collision was not the cause of the low back injuries forwhich the court in large part awarded damages. Ankeny began experiencing low back trouble while in the military service in 1965. From that time he was plagued with low back pain forwhich he repeatedly sought medical relief. Histrouble was finallydiagnosed as spondylolisthesis, a congential low back defect. As a last resort he underwent surgery for a spinal fusion, which was performed February 16, 1969. Following a postoperative period of about one year, Ankeny

was directed toDoctor Pearlman, a radiologist with the Denver Veterans Hospital. According toAnkeny, Doctor Pearlman examined him, told him to discontinue theuse of theback brace and reLeased him without prescribing furthermedication or treatment. Ankeny testified that from March 1970 to June 15, 1970, a periodoiabout three and one half months, he was free of low back pain. The inferencewhich Ankeny would have drawn from the foregoing circumstances is that a solid fusion had been achieved but that itwas displaced by the force of the intersection collision. To fortify this inference, Ankeny calledDoctor Hertwig

as a witness. Doctor Hertwig testified that 

### asAnkeny's ward physician he had examined X-ray reports prepared by Doctors Pearlman, Edwards and McCowen. In response to a request for admission by Grunsteads, Ankeny admitted these reports were genuine. Pertinent portions of Doctor pearlman's report were put inevidence by this testimony: 

### "Q. Well do you have a copy of Doctor Pearlman's letterthere? A. Yes, the X-rays were taken in February of 1970 attheDenver VA Hospital and I willread the reports as

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# ** As seen by Doctor Pearlman, 'Mr. GeraldAnkeny had a back fusion 

# *** in February, 1969. X-rays of his back inFebruary of 1970 to thishospital, show a solid fusion and stableback.' And then he goes on to state

# *** 'There isno disability in, and he is able towork, performing any activities that he wishes.

## ', and it 

### is signed by N. Pearlman, M.D." Dr. Hertwig also testified from a hospital discharge summary dictated by a Dr. Edwards for a hospitalization period running fromAugust 13through September 21, 1969. Dr. Hertwig summarized this report: "A. 

# * ** the report atthat time was that Mr. Ankeny complained of no radiation of pain down either leg, and straight leg raising and neurologic examinations were essentiallynegative. His fusion was stated to be moderately stable, and found this patient tobe remarkably normal physically. X-ray of the lumbar area was essentiallynormal andshowed .thearea of previous fusion." Dr. Hertwig afterbeing shown an X-ray taken August 18, 1969, was asked: "Q. Now with reference to that negative, 

### is there anything there that indicates any findings that would indicate to you that there isnot a solid fusion?A. No, there isnot

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# * *.I'Dr. Hertwig next made a comparison of two X-rays, one taken inAugust 1969, before the accident, and one taken in August 1970, about two months after the accident. The doctor's comparison elicited the testimony that the 1970 X-ray showed "some increased subluxation, slipping forward of thisvertebra, and I think you can see that distance there, a distance of about one centimeter

# ." Preliminary toposing 

### a hypothetical question counsel stated, "Now from the facts that you have recited so far, itwould appear therewas a fusion and that following the fusion something happened which caused theX-rays taken in 1970 to show subluxation

# ** *.I! Because the "facts recited" had reference to the reports read by Dr. Hertwig, Grunsteads objected that the facts relied on in the hypothetical question should notbe given probative weight. While counsel did not atthis time clearly statethathe was objecting

on the ground of hearsay, subsequent objections to the use of the reports leave no doubt thathearsay was thebasis of the objection. Dr. Hertwig responded tothehypothetical questionby concluding that therewas "considerable possibility" that thebody blow received in the accident would have a "likely

# **

# * effect" on Ankeny

## 's fusion. Atconclusion of Dr. Hertwig's testimony on direct examination, counsel for defendants moved: "MR. JONES: Prior tocross examination of the doctor, counsel for the defendants moves to strikeany testimony and any opinions rendered by thiswitness which are predicated upon alleged factual reports by third parties, not present in the courtroom and not subject to cross examination, and moves

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# *-*to strikeany testimony based upon his own knowledge, based upon his own expertise.11In contradistinction toAnkeny's medical evidence, Grunsteads called two expert witnesses, Dr. McDonald and Dr. Drouillard, specialistsrespectively in orthopedic surgery and radiology. Both examined X-rays taken before and after the accident and each testified that essentially the same degree of fusion failure existed before the accident, as after the accident. It was Dr. McDonald's conclusion that the accident did not cause the fusionbreak down, and that while it "may have aggravated the situation

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# ** the aggravation was minimal compared to the existing problem." The crux of Grunsteads' appeal is that unless the X-ray reports of Dr. Pearlman and Edwards are given probative weight there isno substantial evidence to support the conclusion the collision

was the cause of the fusion failure, particularly so inthe light of the contrary testimony by Grunsteads' medical experts. We, therefore, turn to the question of what weight and consideration, if any, should be given to themedical reports objected toby Grunsteads. We find no difficulty inholding the reports areper se hearsay. Ankeny likewise does not question this facet of defendants' objection to the reports. Instead, Ankeny asserts there are other grounds justifying the reception and consideration of the reports by the trialcourt, notwithstanding theirhearsay nature. One of these grounds ispredicated on Grunsteads' request for an admission by Ankeny that the reports in question were genuine. Ankeny in substance claims the request for admission of genuineness is tantamount toGrunsteads introducing the contents of the report into evidence, and having done so, they waive any objection to Ankeny's use of the reports. This claim 

### ishardly worthy of note.Grunsteads repeatedly pointed out that by asking for an admission of genuineness of the reports they were not conceding that the information contained therein was true. Ankeny next suggests that Dr. Hertwig's reliance on the reports gave the reports probative value for the purpose of determining the cause of the fusionbreak. We disagree and hold the probative value of the reports 

### is limited to the use that Dr. Hertwig made of them. In making prognosis or recommending treatment, doctors frequently relyupon medical diagnosis made by others who

are experts in a given specialty. Klaus v. Hillberry, 157 Mont. 277, 485 P.2d 54. Dr. Hertwig's testimony clearly shows thathis

use of the reports was limited toadvising Ankeny as tohis condition and future care. For this limited purpose the reports were not objectionable on the ground of hearsay. Wallace v. Wallace, 85 Mont. 492, 279 P. 374. During the course of trial, Ankeny sought tohave Dr. Hertwig express opinions relative to the fusionbreak. The record isbarren of any expert opinion by Dr. Hertwig on the critical issue of whether the fusion was solid orbroken prior to the accident. The absence of such an opinion isunderstandable. Atone point Dr. 

### k.twig frankly admitted that he was not qualified to interpret X-rays. When questioned on cross examination relative to the critical issue, he statedhe would have to defer to the opinion of a specialist in radiology and orthopedic surgery. In summary, the limiting circumstances of Dr. Hertwig's use of the reports denied Grunsteads any opportunity to test the truth of the reports by cross examination. The reports are therefore clearlyhearsay and inadmissible for the purpose of showing that the accident was the cause of the fusion break. Shillingstadv. Nelson, 141Mont. 412, 378 P.2d 393; Pickett v. Kyger, 151Mont. 87, 439 P.2d 57.



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# -With theX-ray reports removed from consideration, the next issue raised 

### iswhether there issufficient evidence to support the trialcourt's judgment as to the cause of theback defect. We keep inmind the rule that a trialcourt's findings willnot be disturbed on appeal where there 

### is substantial evidence to support them. Olsen v. Sundling, 128Mont. 596, 281 P.2d 499. In Sands v. SuperiorBldg. Co., 136 Mont. 531, 349 P.2d 314, the Court explains substantial evidence: "Substantial evidence has been defined by this court as such evidence 'as

### willconvince reasonablemen and on which suchmen may not reasonably differ as towhether it establishes theplaintiffs1 case, and, if allreasonable men must conclude that the evidence does not establish such case, then it 

### isnot substantial evidence. I" In this case, the determination of whether the fusionwas solid prior to the accident must necessarilybe made by medical specialists sufficiently competent toassess the injury. It cannot be left to speculation, conjecture, inference orguess. Graham



### v. Rolandson, 150Mont. 270, 435 P.2d 263. As said inBearman v. Prudential Ins. Co. of America, 186 F.2d 662, 665, (10th Cir.1951), "only a medical expertwith training, skill, and experience could form a consideredjudgment and express an intelligent opinion." With respect tocausation the general rule as toproof required was set forthby Judge Jameson inWilson v. Northland Greyhound Lines, 166 F.Supp. 667, 675 (D.Mont. 1958):

"

## 'Plaintiff must prove by legally sufficient evidence that allthe injuries forwhich he claims damages are properly attributable, ina medical sense, to the accident. While plaintiff need not establish such causal connectionwith certainty, he must do sowith reasonable certainty orby a preponderance of theevidence. 

# ** * There can be no recovery for an injury or conditionwhich the evidence shows might have resulted from two ormore causes, for only one of which defendant 

### isresponsible. So, too, it 

### isnot sufficient for one seeking damages fora condition claimed tohave resulted from an accident or injury to show that such accident or injury might or could have caused the condition; other causes should be excluded. "I With the hearsay reports of Doctors Pearlman and Edwards excluded, and with Dr. Hertwig eliminated as an expert, the only legally sufficient testimony relative to the condition of the fusion before and afterthe accident isthat of Dr. McDonald and Dr. Drouillard which clearly refutes the contention the accident caused the fusion to fail. We therefore hold there 

### isno substantialcredible evidence for the trialcourt's conclusion the accident was the cause of the fusion failure. Ankeny next proposes that if the evidence isnot sufficient to show the fusion failurewas caused by the accident, then the evidence is sufficient for the purpose of proving aggravation of the preexisting condition of hisback. The casewas not presented to the district court on this theory, but there 

### isevidence to support some degree of aggravation. As we understand Ankeny's reasoning, the general damages awarded by the court was primarily for the pain and anticipated continuing discomfort of the low back injury. He argues it 

### is unimportant whether the pain 

### is from thebreak of the fusion in the accident, or from the aggravation of a preexisting fusion failure, because ineither instance the pain and discomfort 

### will be the same. From this he deduces the damages should be the same. However clever this argument may be, it does not take into account the fullscope of Dr. McDonald's uncontradicted testimony. While the doctor's testimony gives medical support toAnkeny's theory of aggravation, the doctor minimizes the aggravationby comparing it with the condition of Ankeny's back prior to the accident. The flaw

### inAnkeny's contention is ,pointed out by the doctor. The preexisting condition of the backwas much more serious injurywise than the aggravation of that condition. We therefore cannot accept Ankeny's proposition the damages would be the same under either theory. We recognize Ankeny is entitled to some special and general damages,but a proper assessment of these damageswould require

a new trial. IfAnkeny can prove nomore thanminimal aggravation, any recovery on a new trialmight not justify the delay and expense involved. As a means of providing Ankeny an alternative to a new trial, the district court's judgment is modified to award damages in the total amount of $15,000. In fixing damages in this amount, the $409 for special damages allowed by the district court is not included for the reason there is no legally sufficient evidence of such damage. We also exclude allbut $500 of themedical bill submitted by the Veterans Administration for the reason that the medical treatment furnishedby the Veterans Administrationwas primarily for physical and mental conditions not shown to be caused by the accident. IfAnkeny should elect not to accept the judgment as modified, the judgment of the district court is reversed and the cause is remanded for a new trial on the issue of damages for aggravation of the injury.

Judge, sitting for Chief Justice James T. Harrison.We Concur:

Mr. Justice Frank I. Haswell, concurring inpart and dissenting inpart: I concur in themajority holding that there 

### isno substantialcredible evidence that the accident caused plaintiff's fusion failure. I also concur with themajority in finding evidence to support some degree of aggravation of 

### a preexisting back injury.

### I cannot agree thatwe, as an appellate court, can separate and determine theamount of damages attributableto aggravation of the preexisting back injury from those attributableto the fusion failure, reduce thejudgment accordingly, and give the plaintiff the option of accepting the reduced award or securing a

new trial. The trialjudge must make this factual determination and fixthe damages accordingly. I would award a new trialon the amount of such damages.

Justice. 

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