No. 93-464 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1994

LINDA WALLER,

Plaintiff andAppellant,

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, TheHonorable Richard G. Phillips, Judge presiding.

COUNSELOFRECORD:

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, 1994Justice Terry N. Trieweiler delivered the opinion of the Court.

Plaintiff Linda Wailer filed acomplaint 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, averdict 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. Weaffirm the judgment of the District Court. The only issue onappeal 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 onconduct 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 onthe written pleadings and arguments of the parties andthe testimony of defendant Virgil L. Hayden, M.D. However, that record is sufficient for purposes of resolving the issue presented. OnNovember 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 inMontana, and that he specialized in obstetric and gynecological

care. She stated that she first sawHayden on June 20, 1989, for vaginal discomfort and other complaints; that he performed a surgical procedure known as laparoscopy onJuly 11, 1989; and that

as a result of his initial examination and his observation of Wailer's ovaries during the laparoscopy, heformed 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 abilateral salpingo oophorectomy, or removal of her ovaries and fallopian tubes. She accepted his advice and underwent both procedures by intra-abdominal surgery onAugust 11, 1989. Endometriosis is defined asthe 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 aloss of natural estrogen, which exposes her to numerous increased health risks. 3For 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

abattery upon her person. For a third cause of action, Wailer alleged, and Hayden subsequently admitted, that during the surgical procedure that he performed onAugust 11, 1989, hecut, or in some other waytore, a portion of her bowel, andthat although it wassurgically repaired, she suffered subsequent restriction of the bowel at that location from stenosis which had to betreated surgically at alater date. For afourth 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 aresult 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 heperformed alaparoscopy onher onJuly 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 11surgery, and that that injury later caused stenosis which had to besurgically 4treated. 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 hewas involved in apeer review process which ultimately led to recommendations for supervision of someaspects 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 hadperformed anunnecessary
cesarean section. In response to that complaint, acommittee in that department conducted aninvestigation 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, andwasordered to obtain additional post-graduate education. Hayden apparently concluded that hewas 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. OnNovember 17, 1982, Hayden filed acomplaint in the Federal District Court for the Eastern District of Arkansas in which he

5named 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 and42U.S.C. 51983; (2) conspired to form a group boycott against him and combine to acertain monopoly power in violation of 551and 2of 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. 51983 andthe Sherman Antitrust Act bysummary judgment, and after anonjury 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. OnApril 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 6clarified 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. Hewas 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 hemoved from Arkansas to Montana because of fear that his privileges to practice at the Arkansas hospital were in jeopardy. 2. Acertified 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. Acertified copy of the findings of fact and conclusions of law from the Federal District Court in Arkansas which resolved Hayden's complaint. 4. Acertified 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. 7The District Court rejected Wailer's offer of proof for the

following reasons: 1. That since the federal litigation related to issues of defamation andwrongful 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, andtherefore, 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, madethe 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 525-11-102, MCA, based on the District Court's refusal to allow her to cross-examine Hayden onhis reasons

8

### for leaving Arkansas, andbased onthe 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 onRule 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 wasinadmissible. 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; andthe District Court's order denying her motion for anewtrial. DISCUSSION Did the District Court abuse its discretion whenit excluded evidence of Hayden's involvement in disciplinary proceedings which
were commencedin another state basedonconduct that occurred ten years prior tothe conduct which wasthe subject ofWailer's claim? "Wehave held that the decision to deny amotion for anew trial is within the sounddiscretion of the trial court andwill not be overturned absent ashowing of manifest abuse." Geigerv. Sherrodd,

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

### (1988), 235Mont. 124, 131-32, 768P.2d 845, 849-50). Onappeal, Wailer argues, asshedid in the District Court, that eventhough shecalled Haydenasanadverse witness in her own case, hewasanexpert pursuant to Rule 702, M.R.Evid., based on

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

that hewas subject to impeachment regarding his qualifications as
an expert. Wailer relies on our decision in 

### Hart-Andersonv.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 wehave no reservation about concluding that Virgil L. Hayden, M.D., alicensed physician andboard 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 

### Brittonv.FarmersInsuranceGroup (1986), 221Mont

. 67‘ 721 P.2d 303, we held that the test of relevancy is whether proffered evidence makes afact in issue more or less likely. We held that "[ulnless evidence naturally and logically tends to establish afact in issue, it is not admissible." 

### Britton, 721 P.2d at 315 (citations omitted). Wealso 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

### caseof manifest abuse." Britton,721P.2d at 315 (citing Cechv.State

(1979), 184Mont. 522, 604P.2d 97. In Prestonv.McDonnell(1983), 203Mont. 64, 67, 659 P.2d 276, 277, weheld that in considering whether evidence wasrelevant, a trial court could consider the remoteness of the proffered evidence. In that case, the plaintiffs bought aRedLodgebakery in 1979andwere subsequently unable to obtain alicense from the Montana Department of Health. They sued the seller to rescind their contract for purchase, andin aneffort to shotithat hewas 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. Weaffirmed the district court onappeal andheld that:

In determining whether evidence is too remote to 

### be relevant, atrial court is not guided byanyfixed rules. Rather, the nature of the evidence andthe circumstances oftheparticular casemustcontrol. 2Wigmore, 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; Gillilandv.Rhoads([wyo.I 1975), 539 P.2d 1221; Blankenship v.Brookshier(1966), 91 Ida[ho] 317, 420P.2d 800; andMorrisonv.Bradley ([Cola. Ct. App.] 1980), 622P.2d 81, cert. granted Dec. 15, 1980. Thetrial court's determination of relevancy is subject to review only in the caseof manifest abuse. Seealso Gundersonv.Brewster(1970), 154Mont. 405, 466P.2d589; Cech v.State(1979) 11841Mont. 15221, 604P.2d 97, 36St.Rep. 2185.Here, the District Court did not abuse its discretion. Thecondition of the bakery ten years prior
11to 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 onevidence that was at least 

### sevenyears old, 

### seeInreMarriage ofStarks (19931, 259 Mont. 138, 145, 855 P.2d 527, 531-32. Wehave applied asimilar 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 DistributingCo.v.Brown-FormanCorp.(1989),239Mont. 272, 277, 779 P.2d 908, 911, weheld that: Relevant evidence maybeexcluded 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 andwill not bedisturbed unless there is manifest abuse of discretion. 

### Welnelv.HaN(1985), 215Mont. 70, 694 P.2d 1346, 

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

### Dahlinv.Hohnquist, (1988), 1235Mont. 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
12related 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 hewasqualified professionally. It is within the range of adistrict 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. Weconclude that under the facts in this case amanifest abuse of the District Court's discretion has not been established. Therefore, weconclude that neither did the District Court abuse its discretion when it denied plaintiff's motion for anewtrial. 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 13never 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. Byholding that the District Court did not abuse its discretion when it excluded the evidence proffered by the plaintiff in this case, wedo not mean that it would have abused its discretion had it admitted the evidence. Wesimply 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.

Weconcur:

### December 13,1994 CERTIFICATEOFSERVICE IherebycertifythatthefolowingceritiedorderwassentbyUnitedStatesmaii,prepaid,tothe followingnamed:

Charles L.Neff,Esq. Bjella,Neff,Rathert,Wahl&Eiken,P.C. 111E.Broadway,Drawer1526 Wiliston,ND58802-1526 JohnH.Maynard,Esq. Browning,Kaleczyc,

Berry&Hoven,P.C. P.O.Box1697 Helena,MT59624

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA