No. 93-464 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

LINDA WALLER, 

Plaintiff and Appellant, 

v. 

VIRGIL L. HAYDEN, M.D., 

Defendant and Respondent 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable Richard G. Phillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles L. Neff Bhella, Neff, Rathert, 

Wahl & Eiken, Williston, North Dakota 

For Respondent: 

John H. Maynard and Ken C. Crippen, 

Browning, Kaleczyc, Berry & Haven, 

Helena, Montana 

Filed: 

Submitted on Briefs: July 6, 1994 

Decided: December 13, 1994 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiff Linda Wailer filed a complaint in the District Court 

for the Seventh Judicial District in Richland County to recover 

damages from defendant Virgil L. Hayden, M.D., for what she alleged 

was negligent surgical treatment, battery, and reckless disregard 

for her well-being. Wailer's claims were presented to a jury 

during an eight-day trial. Afterward, a verdict was returned in 

favor of Hayden on all claims. Wailer appeals from the judgment 

entered pursuant to that verdict, and the District Court's denial 

of her motion for a new trial. We affirm the judgment of the 

District Court. 

The only issue on appeal is whether the District Court abused 

its discretion when it excluded evidence of Hayden's involvement in 

disciplinary proceedings which were commenced in another state 

based on conduct that occurred ten years prior to the conduct which 

was the subject of Wailer's claim. 

FACTUAL BACKGROUND 

Since Wailer's appeal is limited to the issue set forth above, 

a complete record of the trial court proceedings has not been 

provided, and our summary of the facts is necessarily based on the 

written pleadings and arguments of the parties and the testimony of 

defendant Virgil L. Hayden, M.D. However, that record is 

sufficient for purposes of resolving the issue presented. 

On November 18, 1991, Wailer filed a complaint in Richland 

County District Court in which she named Hayden as the defendant. 

She alleged that Hayden was a physician licensed to practice in 
Montana, and that he specialized in obstetric and gynecological 

care. She stated that she first saw Hayden on June 20, 1989, for 

vaginal discomfort and other complaints; that he performed a 

surgical procedure known as laparoscopy on July 11, 1989; and that 

as a result of his initial examination and his observation of 

Wailer's ovaries during the laparoscopy, he formed the opinion that 

Wailer was suffering from endometriosis affecting her uterus, 

ovaries, and fallopian tubes. On that basis, he recommended a 

complete hysterectomy, or removal of her uterus, and a bilateral 

salpingo oophorectomy, or removal of her ovaries and fallopian 

tubes. She accepted his advice and underwent both procedures by 

intra-abdominal surgery on August 11, 1989. 

Endometriosis is defined as the presence of tissue similar to 

the lining of the uterus at other sites in the pelvis. The tissue 

undergoes periodic changes similar to those of the endometrium and 

causes pelvic pain throughout and after menstruation. Bantam 

Medical Dictionary 143 (Rev. ed. 1990). 

Wailer alleged in her complaint, and it was confirmed at 

trial, that pathological studies of her ovaries after they were 

removed did not disclose the presence of endometriosis in those 

parts of her body. For that reason, she alleged that Hayden 

negligently formed his pre-operative diagnosis, and was negligent 

when he removed her ovaries and fallopian tubes. She also alleged 

that because of the premature removal of her ovaries and fallopian 

tubes at the age of 38, she suffered a loss of natural estrogen, 

which exposes her to numerous increased health risks. 

3 
For a second cause of action, Wailer alleged that because 

Hayden knew she did not want to have her ovaries removed unless it 

was absolutely necessary, and because he knew, or should have 

known, that it was unnecessary when he removed them, he committed 

a battery upon her person. 

For a third cause of action, Wailer alleged, and Hayden 

subsequently admitted, that during the surgical procedure that he 

performed on August 11, 1989, he cut, or in some other way tore, a 

portion of her bowel, and that although it was surgically repaired, 

she suffered subsequent restriction of the bowel at that location 

from stenosis which had to be treated surgically at a later date. 

For a fourth cause of action, Waller alleged that during his 

conversations with her following surgery, Hayden misrepresented or 

concealed the full extent of damage that was caused to her bowel 

during surgery; that she suffered more severe health consequences 

as a result of his concealment, and that because of this reckless 

disregard for her well-being, she was entitled to actual and 

punitive damages. 

Hayden admitted that he was a licensed physician who 

specialized in obstetric and gynecological care; that he was 

consulted by Wailer for the complaints she described on June 20, 

1989; that he performed a laparoscopy on her on July 11, 1989; and 

that he performed the surgical procedures described previously on 

August 11, 1989. He also admitted that plaintiff's bowel was 

damaged and surgically repaired during the August 11 surgery, and 

that that injury later caused stenosis which had to be surgically 

4 
treated. However, he otherwise denied her allegations and 

affirmatively stated that at all times his care for her complied 

with acceptable standards for members of his profession. He 

specifically denied that he concealed from her the nature of the 

injury to her bowel following surgery. 

Prior to trial, Wailer learned that from 1973 until 1982 

Hayden practiced medicine in Pine Bluff, Arkansas, and that while 

there he was involved in a peer review process which ultimately led 

to recommendations for supervision of some aspects of his practice 

and mandatory post-graduate education. She learned that the peer 

review process in Arkansas began when a fellow physician at the 

hospital where Hayden worked wrote to the obstetrics-gynecological 

department and complained that Hayden had performed an unnecessary 

cesarean section. In response to that complaint, a committee in 

that department conducted an investigation which ultimately led to 

its conclusion that Hayden had performed two unnecessary cesarean 

sections. As a result of the investigation, Hayden was, for a 

period of time, required to obtain consultation prior to performing 

any further cesarean sections, and was ordered to obtain additional 

post-graduate education. 

Hayden apparently concluded that he was unable to satisfy the 

additional education requirement and still maintain his practice. 

Therefore, he terminated his practice in Arkansas and moved to 

Sidney, Montana, in 1982. 

On November 17, 1982, Hayden filed a complaint in the Federal 

District Court for the Eastern District of Arkansas in which he 

5 
named Jefferson Regional Medical Center, its administrator, and 

eight of the doctors on its medical staff, as defendants. 

Jefferson Regional Medical Center is the hospital at which Hayden 

practiced during the disciplinary process previously described. In 

his complaint, he alleged that the disciplinary action taken 

against him by the defendants (1) denied him equal protection and 

due process in violation of the Fourteenth Amendment and 42 U.S.C. 

5 1983; (2) conspired to form a group boycott against him and 

combine to a certain monopoly power in violation of 55 1 and 2 of 

the Sherman Antitrust Act; (3) made defamatory statements about 

him; and (4) interfered with and conspired to interfere with his 

business relationship. SeeHaydenv. Bracy (8th Cir. 1984), 744 F.2d 

1338. 

The district court dismissed Hayden's claims based on 

42 U.S.C. 5 1983 and the Sherman Antitrust Act by summary judgment, 

and after a nonjury trial, entered judgment for the defendants on 

the other claims. 

Prior to the trial in this case, Hayden moved in limine for an 

order precluding Wailer from referring to the disciplinary 

proceedings that occurred in Arkansas, or the litigation commenced 

by Hayden in the Federal District Court in Arkansas. On April 2, 

1993, the District Court granted that motion, except to the extent 

that Hayden "opened the door" to admission of the Arkansas 

evidence, or to the extent that it was necessary for impeachment 

purposes. During the pretrial conference, after Wailer requested 

that the District Court reconsider its order, the District Court 

6 
clarified that unless the defendant testified and tried to 

embellish on his qualifications, the Arkansas information was 

irrelevant to the issues in this case. The District Court reasoned 

that Hayden's qualifications for diagnosis of endometriosis had 

nothing to do with his judgment related to cesarean section 

procedures performed ten years earlier. 

This case proceeded to trial and Hayden was called by Wailer 

as an adverse witness during the presentation of her case. He was 

examined at length by her attorney. Near the conclusion of that 

examination, Wailer renewed her request that the court reconsider 

its order in limine, and if allowed, offered to present the 

following evidence: 

1. Testimony from Hayden in the Arkansas trial that he moved 

from Arkansas to Montana because of fear that his privileges to 

practice at the Arkansas hospital were in jeopardy. 

2. A certified copy of the complaint filed by Hayden in the 

Federal District Court for the Eastern District of Arkansas in 

which the Jefferson Regional Medical Center and its staff members 

were named as defendants. 

3. A certified copy of the findings of fact and conclusions 

of law from the Federal District Court in Arkansas which resolved 

Hayden's complaint. 

4. A certified copy of the published opinion of the United 

States Court of Appeals for the Eighth Circuit which affirmed the 

Federal District Court's disposition of Hayden's claim against the 

Jefferson Regional Medical Center and its staff members. 

7 
The District Court rejected Wailer's offer of proof for the 

following reasons: 

1. That since the federal litigation related to issues of 

defamation and wrongful interference with Hayden's ability to work, 

it was not directly related to his professional qualifications; 

2. That even if his qualifications to perform cesarean 

sections were at issue in the evidence offered, it had little 

probative value to the issues in this case, and therefore, was not 

sufficiently relevant; 

3. That the passage of eight to ten years from the events 

which were the subject of Wailer's offer of proof until the acts 

complained of in this case, made the prior evidence far too remote 

and dissimilar to be relevant; and 

4. That even if the evidence was somehow relevant, its 

prejudicial impact outweighed whatever probative value it might 

have. 

Following eight days of trial, the jury returned a special 

verdict in which it found that (1) Hayden's diagnosis was not 

negligent; (2) Hayden's recommendation for removal was not 

negligent; (3) Hayden did not commit battery upon Wailer; and 

(4) Hayden was not negligent in his post-operative care and 

treatment. 

On May 27, 1993, Wailer moved for a new trial pursuant to 

Rule 59, M.R.Civ.P., and 5 25-11-102, MCA, based on the District 

Court's refusal to allow her to cross-examine Hayden on his reasons 

8 
for leaving Arkansas, and based on the District Court's rejection 

of her offer of proof. 

In its order dated August 10, 1993, in which it denied 

Wailer's motion for a new trial, the District Court relied 

primarily on Rule 403, M.R.Evid., for its conclusion that even if 

relevant, the probative value of the Arkansas evidence was 

substantially outweighed by the risk of unfair prejudice, and 

therefore, it was inadmissible. 

Wailer appeals from the District Court's April 2, 1993, order 

in limine; the District Court's orders during trial excluding 

evidence related to Hayden's Arkansas experience; and the District 

Court's order denying her motion for a new trial. 

DISCUSSION 

Did the District Court abuse its discretion when it excluded 

evidence of Hayden's involvement in disciplinary proceedings which 

were commenced in another state based on conduct that occurred ten 

years prior to the conduct which was the subject of Wailer's claim? 

"We have held that the decision to deny a motion for a new 

trial is within the sound discretion of the trial court and will 

not be overturned absent a showing of manifest abuse." Geiger v. 

Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108 (citing 

Topev. Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50). 

On appeal, Wailer argues, as she did in the District Court, 

that even though she called Hayden as an adverse witness in her own 

case, he was an expert pursuant to Rule 702, M.R.Evid., based on 

9 
his knowledge, experience, training, and education, and therefore, 

that he was subject to impeachment regarding his qualifications as 

an expert. Wailer relies on our decision in Hart-Anderson v. Hawk 

(1988), 230 Mont. 63, 73-74, 748 P.2d 937, 943-44, for the 

principle that during cross-examination of an expert witness, 

parties are entitled to test the knowledge, competency, and 

qualifications of that witness. 

While we have no reservation about concluding that Virgil L. 

Hayden, M.D., a licensed physician and board certified obstetrician 

and gynecologist, is an expert witness when testifying about 

subjects within the scope of his professional knowledge, that does 

not mean that traditional rules of relevance, remoteness, and 

fairness are inapplicable to his cross-examination. Furthermore, 

unless there has been a manifest abuse of discretion, we have 

traditionally concluded that the district court, which is 

intimately familiar with the facts and parties in each case, is in 

the best position to apply those rules. 

For example, in Britton v. Farmers Insurance Group ( 19 8 6 ) , 22 1 Mont . 

67‘ 721 P.2d 303, we held that the test of relevancy is whether 

proffered evidence makes a fact in issue more or less likely. We 

held that "[ulnless evidence naturally and logically tends to 

establish a fact in issue, it is not admissible." Britton , 721 P.2d 

at 315 (citations omitted). We also held that "[iln the usual 

case, questions of admissibility of evidence are left largely to 

the sound discretion of the trial court, subject to review only in 

10 
case of manifest abuse." Britton , 721 P.2d at 315 (citing Cechv.State 

(1979), 184 Mont. 522, 604 P.2d 97. 

In Prestonv. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d 276, 

277, we held that in considering whether evidence was relevant, a 

trial court could consider the remoteness of the proffered 

evidence. In that case, the plaintiffs bought a Red Lodge bakery 

in 1979 and were subsequently unable to obtain a license from the 

Montana Department of Health. They sued the seller to rescind 

their contract for purchase, and in an effort to shoti that he was 

aware of the conditions which made licensing difficult, they 

offered to prove that he had received two conditional health 

licenses in 1968 and 1969. This evidence was excluded by the 

district court because the prior conditional licenses were too 

remote in time to have any probative value. We affirmed the 

district court on appeal and held that: 

In determining whether evidence is too remote to be 

relevant, a trial court is not guided by any fixed rules. 

Rather, the nature of the evidence and the circumstances 

of the particular case must control. 2 Wigmore, Evidence 

5 437 (Chadbourn rev. 1979). For this reason, the 

determination of remoteness is left in great part to the 

trial court's discretion. Wigmore, supra ; Courtney v. Courtney 

([Alaska] 1975), 542 P.2d 164; Gilliland v. Rhoads ( [wyo. I 

1975), 539 P.2d 1221; Blankenship v. Brookshier ( 19 6 6 ) , 9 1 

Ida[ho] 317, 420 P.2d 800; and Morrisonv.Bradley ([Cola. Ct. 

App.] 1980), 622 P.2d 81, cert. granted Dec. 15, 1980. 

The trial court's determination of relevancy is subject 

to review only in the case of manifest abuse. See also 

Gundersonv.Brewster (1970), 154 Mont. 405, 466 P.2d 589; Cech 

v.State (1979) 11841 Mont. 15221, 604 P.2d 97, 36 St.Rep. 

2185. 

Here, the District Court did not abuse its 

discretion. The condition of the bakery ten years prior 

11 
to its sale could easily be considered too remote and 

irrelevant. Many old deficiencies may have been 

corrected, while new, yet similar, deficiencies may have 

arisen. The District Court did not err by refusing 

admission of the conditional health licenses. 

Preston, 659 P.2d at 277-7'8 

For a similar conclusion and a similar standard of review, 

based on evidence that was at least seven years old, seeInreMarriage 

ofStarks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-32. 

We have applied a similar standard of review to evidence which 

is excluded because the district court concludes that its probative 

value is substantially outweighed by the danger of unfair 

prejudice. In Zeke’s Distributing Co. v. Brown-Forman Corp. ( 198 9 ) , 2 3 9 Mont. 

272, 277, 779 P.2d 908, 911, we held that: 

Relevant evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the 

jury. Rule 403, M.R.Evid. This determination of 

admissibility is within the discretion of the trial judge 

and will not be disturbed unless there is manifest abuse 

of discretion. Welnelv.HaN (1985), 215 Mont. 70, 694 P.2d 

1346, Kimesv. Herrin (1985), 217 Mont. 330, 705 P.2d 108, 

Dahlinv. Hohnquist, (1988), 1235 Mont. 17,l 766 P.2d 239. 

In this case, we cannot conclude that the District Court 

manifestly abused its discretion when it held that the evidence of 

disciplinary proceedings in Arkansas, Hayden's lawsuit which 

resulted from those proceedings, and Hayden's reasons for leaving 

Arkansas, were either irrelevant because of their remoteness, or if 

relevant, more prejudicial than probative. The events which led to 

the Arkansas disciplinary proceedings occurred eight to ten years 

prior to the acts complained of by plaintiff; those complaints 

12 
related to Hayden's judgment about when to perform cesarean 

sections and his relationships with other staff members; and his 

federal lawsuit simply resolved whether his accusers had done 

anything wrong--not whether he was qualified professionally. It is 

within the range of a district court's discretion to conclude that 

there was nothing in the Arkansas evidence which made it more or 

less likely that Hayden was negligent when he treated Wailer in 

1989, or that he concealed the true nature of her physical 

condition following surgery in 1989. 

If, as argued by Wailer, the Arkansas evidence, and in 

particular, the judgment of Hayden's peers that he needed 

additional education, was relevant to his qualifications, and his 

qualifications were relevant to the issue of professional 

negligence, it was still within the discretion of the District 

Court to exclude the evidence based on its conclusion that it was 

more prejudicial than probative. We conclude that under the facts 

in this case a manifest abuse of the District Court's discretion 

has not been established. Therefore, we conclude that neither did 

the District Court abuse its discretion when it denied plaintiff's 

motion for a new trial. 

However, since cases like this are read by attorneys and 

district court judges for the purpose of future guidance and the 

avoidance of future evidentiary errors, it is appropriate to 

clarify the meaning of our decision. This decision does not mean 

that businesses or professionals who have been discredited 

elsewhere can find sanctuary in Montana and that their past will 

13 
never follow them. Instead, it simply affirms the traditional 

rules of appellate review, and this court 1 s conviction that 

district courts are the best place to make evidentiary rulings. 

The notion that a decision by the district court is 

discretionary assumes there is no absolutely correct answer for 

every evidentiary issue. It assumes that the decision is a 

judgment call best left to the person closest to the case--the 

district judge. By holding that the District Court did not abuse 

its discretion when it excluded the evidence proffered by the 

plaintiff in this case, we do not mean that it would have abused 

its discretion had it admitted the evidence. We simply conclude 

that the District Court's judgment was exercised within that 

permissible range best left to the district court. 

The judgment of the District Court is affirmed. 

We concur: 

December 13, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the folowing ceritied order was sent by United States maii, prepaid, to the 

following named: 

Charles L. Neff, Esq. 

Bjella, Neff, Rathert, Wahl & Eiken, P.C. 

111 E. Broadway, Drawer 1526 

Wiliston, ND 58802-1526 

John H. Maynard, Esq. 

Browning, Kaleczyc, Berry & Hoven, P.C. 

P.O. Box 1697 

Helena, MT 59624 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA