NO. 85-147 

IN THE SUPREHE COURT OF THE STATE OF MONTANA 

1986 

ALICE EASTERDAY, 

Plaintiff and Appellant, 

-vsCHAR-LES R. CANTY, M.D., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver BOW, 

The Honorable Plark P. Sullivan, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rossbach & Whiston; William A. Rossbach, Missoula, 

Montana 

\ I \tl LL I*MJ , , I , 7 1 

For Respondent : 

Poore, Roth & Robinson; Urban L. Roth, Butte, 

Montana 

Wi.~iams--La~?--Firm;- -R-i&a r d- Ranne y , - M-is s ou la., 

Montana 

Submitted on Briefs: Oct. 10, 1985 

Decided: January 16, 1986 

Filed: ,iA(\l 1 ij 1986 

Pfll# 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

In the proceedings below, Alice Easterday (hereinafter 

Easterday) brought this action to recover damages for medical 

malpractice allegedly committed by Dr. Charles R. Canty 

(hereinafter Dr. Canty). The District Court of the Second 

J-udicial District, Silver Bow County, sitting with a jury, 

the Honorable Mark P. Sullivan presiding, found for Dr. Canty 

on the issue of liability. Easterday timely moved for a new 

trial and that motion, after a hearing, was denied. 

Easterday now appeals from both the jury verdict in favor of 

Dr. Canty and the District Court's order denying her motion 

for a new trial. We affirm the judgment of the District 

Court entered in favor of Dr. Canty and its order denying 

Easterday's motion for a new trial. 

In August of 1979, Easterday filed a complaint against 

Dr. Canty and Dr. John Davidson (hereinafter Dr. Davidson) . 

The complaint alleged that the two doctors had committed. 

medical malpractice by failing to properly diagnose and trea-t 

Easterday's genetic bone disorder. It should be noted that 

Easterday was a minor at the time of filing suit and her 

original complaint was amended to provide for her parents as 

plaintiffs in their capacity as guardians. Upon obtaining 

majority, Easterday then pursued the suit in her own name. 

Three days prior to trial, in September of 1984, 

Easterday voluntarily stipulated to the dismissal of Dr. 

Davidson from the suit. Accordingly, the District Court 

entered its order of dismissal. On the same day, Easterday 

also filed a motion in limine requesting that there be no 

mention at the trial of the compromise and settlement 

agreement regarding Dr. Davidson. 
On the first day of trial, counsel for both parties 

argued before the trial court Easterday's motion in limine 

regarding Dr. Davidson. Easterday's counsel moved that the 

trial court exclude any mention of Dr. Davidson's dismissal 

from the suit, and that the case be retitled "Easterday v. 

Canty" with no reference to Dr. Davidson's former presence in 

the suit. Dr. Canty's counsel agreed that Dr. Davidson's 

name should be taken off the title of the case, but argued 

that evidence of Dr. Davidson's former presence in the suit 

was admissible. After hea.ring the argument, the trial court 

did not immediately rule on the matter, but stated it would 

be "taken under advisement and see how it develops." 

At trial, before the trial court had ruled on the 

motion j.n limine, Dr. Canty's counsel cross-examined 

Easterday's mother and specifically asked her about the 

charges originally brought against Dr. Davidson. Easterday's 

counsel immediately objected. The trial court at first 

overruled the objection and allowed the questioning to 

continue, but very shortly thereafter sustained an objection 

as to the relevance of this line of questioning regarding Dr. 

Davidson. After the trial court ruled that no further 

inquiry would be allowed regarding the allegations against 

Dr. Davidson, Dr. Canty's counsel did not agaj-n raise the 

subject during the remainder of the trial. Easterday's 

counsel, however, during his redirect examination of 

Easterday's mother, explored at length the decision to 

dismiss Dr. Davidson as a party-defendant. 

The trial subsequently ran its course and the jury 

returned its verdict in favor of Dr. Canty on the issue of 

liability. Easterday filed her motion for a new trial, which 

was denied by the trial court. 
Attached to Easterday's motion for a new trial were 

several affidavits. Other affidavits were later filed by Dr. 

Canty's counsel. These affidavits concerned the issue of 

improper external information which allegedly had been 

received by certain jury members during the course of the 

trial. The contents of these affidavits basically presented 

conflicting versions of the conduct of jurors Kathleen 

Kissock and Shirley Ablonczy. The pertinent affidavits 

provided in relevant part as follows: 

(1) Affidavit of juror Bonnie Handcock: This juror 

stated that juror Ablonczy had told her that while she (juror 

Ablonczy) was at the beauty salon, during a recess in the 

trial, she was told by a hairdresser that Easterday's mother 

had called the hairdresser complaining about a haircut and 

had threatened to sue the hairdresser over it. Juror 

Ablonczy told juror Handcock that she took this information 

as proof that the parents of Easterday were out to sue 

anyone. 

(2) Affidavit of juror Ablonczy: Juror Ablonczy 

admitted overhearing a conversation between a hairdresser and 

ari~ther patron that Easterday's mother had threatened to sue 

the hairdresser, but she stated that she totally ignored 

these comments in making her deliberations in the insta.nt 

case. 

(3) Affidavit of John Whiston (associate of 

Easterday's counsel): Mr. Whiston stated that juror Kissock 

informed him that she was told by a co-worker (allegedly 

juror Ablonczy) , during a recess in the trial, that the 

co-worker thought the parents of Easterday were suing 

everyone because the co-worker knew that Easterday's parents 

were threatening to sue a hairdresser. 
(4) Affidavit of juror Kissock: Juror Kissock did not 

specifically deny the allegations made by John Whiston in his 

affidavit, but she insisted that absolutely no outside 

influence affected her deliberations in the instant case. 

The appellant, Easterday, presents the following two 

issues for review by this Court: 

(1) Whether the evidence of juror misconduct was 

prejudicial to the appellant and requires a new trial? 

(2) Whether the introduction by Dr. Canty's counsel of 

evidence concerning Dr. Davidson was an irregularity in the 

proceedings which deprived the appellant of a fair trial? 

With regard to the first issue raised by Easterday, we 

hold the trial court did not abuse its discretion in denying 

Easterday's motion for a new trial. In cases where a motion 

for a new trial is predicated upon an allegation of juror 

misconduct, this Court has applied a stringent standard of 

review. In Schmoyer v. Bourdeau (1966) , 148 Mont. 340, 343, 

420 P.2d 316, 317, this Court developed that standard as 

follows: 

We hold that once the District Court has 

considered the matter (jury misconduct) , however it is raised, whether on a 

question of mistrial or motion for a new 

trial this court will not lightly disturb 

that ruling. To overthrow it this court 

must be shown by evidence that is clear, 

convincing, and practically free from 

doubt, of the error of the trial court's 

ruling. 

Contrary to the argument presented by Easterday, the above 

standard is still the general rule of this Court where jury 

misconduct is alleged. 

Applying the above standard to the instant case, we 

find no evidence whatsoever that indicates the trial court 

erred in denying Easterday' s motion for a new trial. Judge 

Sullivan presided throughout the eight-day trial and became 
familiar with the trial jurors involved. He also handled the 

hearing on Easterday's motion for a new trial and became 

familiar with the affidavits, memoranda, and oral arguments 

presented by the parties. The record shows the subject 

affidavits presented to the trial court (many of which 

contained second-hand hearsay) indicate that the alleged 

juror misconduct did not affect a material issue in dispute 

and that Easterday was probably not prejudiced by such 

conduct. In short, Judge Sullivan's familiarity with the 

trial and post-trial activities placed him in the unique 

position to thoroughly evalua-te the respective positions of 

Easterday and Dr. Canty with regard to the alleged juror 

misconduct. Judge Sullivan considered the information 

presented to him and ruled that Easterday's motion for a new 

trial was not meritorious. We find no violation of the 

standard set forth in Schmoyer. 

The second issue raised by Easterday contends that the 

reference by Dr. Canty's counsel to the prior presence of Dr. 

Davidson in the lawsuit was inflammatory and prejudicial and 

requires granting her a new trial. We disagree. 

As set out in the facts section of this opinion, Dr. 

Davidson was one of the original defendants in this lawsuit. 

Shortly before trial, Easterday, for reasons not explained, 

entered into a stipulation of dismissal with Dr. Davidson. 

Easterday then filed a motion in limine asking that any 

reference to the "settlement and compromise" involving Dr. 

Davidson he excluded at trial. Counsel for both parties 

agreed that the caption of the case should be changed to 

reflect the dismissal of Dr. Davidson, but were unable to 

agree on whether any mention of Dr. Davidson should be 

excluded at trial. The trial judge then took the motion 

under advisement, to see how the trial developed. 
At the commencement of his cross-examination of 

Easterday's mother, counsel for Dr. Canty initially avoided 

any reference to Dr. Davidson's former presence in the 

lawsuit. However, after a few minutes of questioning, Dr. 

Canty's counsel brought to the jury's attention the fact that 

Dr. Davidson had previously been a defendant in the action. 

Easterday contends that although Dr. Canty's examination of 

her mother on this subject was very brief, the cat was out of 

the bag and her right to a fair trial was damaged beyond 

repair. 

We disagree with Easterday's contentions under this 

issue. Easterday contends that her motion in limine to 

exclude any mention of Dr. Davidson at trial was ba.sed on 

Rule 408 of the Montana Rules of Evidence (evidence of 

compromises or offers to compromise are inadmissible to prove 

liability for or invalidity of a claim). Easterday correctly 

points out that the policy behind this rule is to encourage 

compromise and settl-ement between parties. However, in the 

instant case, we find no evidence in the record that Dr. 

Canty's counsel introduced, or attempted to introduce, any 

evidence of Easterday's settlement with Dr. Davidson. Dr. 

Canty's counsel only brought to the jury's attention the fact 

that Dr. Davidson had also been charged in the original 

complaint. FJe see no violation of the provisions of Rule 

408. 

It has long been the rule in this state that 

party-defendant's may introduce into evidence the allegations 

set forth in a party-plaintiff's complaint. In Fox v. Fifth 

West, Inc. (1969), 153 Mont. 95, 100, 454 P.2d 612, 615, this 

Court developed the following general rule: 

We find too that the court erred in not 

allowing the appellant to use the 

original complaint to cross-examine the 
respondent on certain admissions of the 

respondent. The trial court took the 

position that because of the pre-trial 

order the allegations of the complaint 

had been superseded and the complaint was 

no longer relevant. Clearly it was error 

for it has been this Court's position - 

since Johnson - v. Butte - and Superior 

LL Comer .* Com~anv (citation . omitted), that 

the opposite party is entitled to 

introduce into - evidence inconsistent 

pleadings relating to the same issue for 

whatever the jury might find it worth in 

arriving at the truth of the controversy. 

See also McDonald v. Peters (1954), 128 Mont. 241, 272 ~.2d 

730. Therefore, under this general rule, the allegations set 

forth in Easterday's complaint charging Dr. Davidson with 

malpra-ctice are relevant and admissible. Consequently, Dr. 

Canty's counsel limited cross-examination of Easterday's 

mother establishing the fact that Dr. Davidson had also been 

charged in the original complaint was proper. 

The judgment of the District Court and its order 

denying the motion for a new trial are affirmed. 

We concurs 

,P