No. 88-308 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

CATHERINE DAHLIN, 

Plaintiff and Appellant, 

-vsJANICE HOLMQUIST, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Raugh, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Hoyt & Blewett; Michael J. George, Great Falls, 

Montana 

For Respondent : 

Donald L. Harris; Crowley, Haughey, Hanson, Toole 

and Dietrich, Billings, Montana 

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PI-, C" c> .L 2- 

Submitted on Briefs: Oct. 6, 1988 

Decided: November 29, 1988 
Mr. Justice L. C. Gulbrandson delivered. the Opinion of the 

Court. 

Catherine Dahlin appeals from the denial of her motion 

for a new trial hy the District Court of the Thirteenth 

Judicial District, Yellowstone County. We reverse and remand 

for a new trial. 

Appellant raises the following issues upon appeal : 

1. Did the District Court's denial of plaintiff's 

motion in limine to exclude the secondary gain testimony of 

Dr. Lovitt deny plaintiff her right to a fair trial? 

2. Was plaintiff denied a fair trial by the District 

Court's denial of plaintiff's request to inform the jury of 

defendant's insurance coverage following defendant's allusion 

to a lack of insurance by the comment "we paid"? 

3. Was plaintiff denied a fair and impartial jury by 

the District Court's refusal to permit plaintiff to voir dire 

potential jurors about any bias resulting after media 

exposure to articles or advertisements on the "liability 

crisis"? 

On February 26, 1984, the parties to this case were 

involved in an automobile accident in Lewistown, Montana. 

Catherine Dahlin suffered neck and shoulder injuries j.n the 

accident. She was subsequently seen by Dr. James Lovitt, an 

orthopedic surgeon, in March of 1984. He diagnosed her as 

suffering from a cervical and lumbar strain. To date, Dahlin 

continues to experience headaches and neck pain, even though 

the normal healing period for such an injury is six to twelve 

weeks. 

On February 23, 1987, Dahlin filed a complaint alleging 

that the defendant's negligent vehicular operation caused the 

collision which resulted in her physical injury, pain and 

suffering, loss of established course of life, and lost 
earning capacity. The District Court granted plaintiff's 

motion for summary judgment on the issue of liability after 

determining that defendant's negligence caused the accident. 

The court scheduled a jury trial on the issue of damages to 

begin February 16, 1988. 

Prior to trial, plaintiff notified the court of her 

intent to question potential jurors about whether they 

believe, and consequently would be biased because of anything 

they had heard or read indicating that jury verdicts for 

plaintiffs in personal injury cases result in higher 

insurance premiums. On the morning of trial, plaintiff 

general-ly asserted that the extensive "media blitz" on the 

issue of "tort reform" and the "liability crisis" was 

sufficient to warrant such questioning. Plaintiff then 

offered four articles, generally published two years prior to 

trial, as proof of this "media blitz." The court held such 

articles were too remote in time to have any potential 

prejudicial eFfect on the jurors, and consequently it denied 

plaintiff's request to conduct such questioning. 

Plaintiff filed a motion in limine four days prior to 

trial, requesting the court to exclude, among other things, 

all "secondary gain" testimony by Dr. Lovitt. The doctor 

defined such secondary gain as that financial, emotional, or 

other type of benefit received by virtue of the injury which 

serves to encourage the continuation of an injury. The court 

delayed ruling on this motion the first morning of trial, 

stating that it would review the deposition containing the 

secondary gain testimony prior to its presentation to the 

jury. The court later ruled, without having read the contested deposition testimony, that all of the deposition was 

admissible. Both parties subsequently read portions of Dr. 

Lovitt's deposition, including the testimony about "secondary 

gain," to the jury. Plaintiff then renewed her objection and 
the court repeated its former ruling. However, the court did 

strike and admonish the jury to disregard the followina 

highly prejudicial comment espoused by Dr. Lovitt when asked 

for a definition of secondary gain: 

It frequently is intentional, and we all 

know the-you know, the situation in 

which, you know, somebody stands to make 

a hunch of money if they have a liberal, 

nonperceptive jury that gives them a big 

award based on only subjective symptoms 

and findings . 

Plaintiff also objected at the conclusion of 

defendant's closing argument to defense counsel's remark 

that, " [wle paid." Plaintiff asserted that this allusion to 

insurance effectively "opened the door" on the subject of 

insurance. Therefore, the court should permit plaintiff to 

also comment on insurance coverage. The court denied thic 

request. 

The jury subsequently returned a verdict awarding the 

plaintiff $10,000 in damages. After subtracting those 

medical costs previously paid by the defendant's insurer, the 

court entered a judgment for plaintiff in the amount of 

$8,048.05. 

Plaintiff moved for a new trial on March 18, 1988, 

alleqing that she was denied her right to a fair trial. The 

court denied the motion for a new trial on ~pril 26, 1988. 

This appeal followed. 

The first issue, raised upon appeal challenges the 

District Court's decision to allow the admission of the 

secondary gain testimony in Dr. Lovitt's deposition. 

Appellant alleges that all testimony of secondary gain was 

irrelevant and highly prejudicial, and that its admission 

deni.ed plaintiff her right t.n a fair trial. 
Evidence that is not relevant is inadmissible. Rule 

402, M.R.Evid. Rule 401, M.R.Evid., defines relevant 

evidence as: 

[Elvidence having any tendency to make 

the existence of any fact that is of 

consequence to the determination of the 

action more probable or less probable 

than it would be without the evidence. 

This determination of relevancy and of the admissibility of 

evidence is within the discretion of the trial court. Welnel 

v. Hall (Mont. 1984), 694 P.2d 1346, 1348, 42 St.Rep. 195, 

197. Consequently, we will not disturb the District Court's 

denial of plaintiff's motion in limine and permission to 

admit the disputed secondary gain testimony unless the court 

abused its discretion. 

We hold that the trial judge in this case did in fact 

abuse his discretion when he denied plaintiff's motion in 

limine and ruled that all Dr. Lovitt's deposition testimony 

could be read to the jury. The proffered evidence of 

secondary gain did not meet the test of relevancy as it did 

not naturally and logically tend to make either the extent or 

validity of plaintiff's alleged continuing injury more or 

less probable. Britton v. Farmers Ins. Group (Mont. 1986) , 

721 P.2d 303, 315, 43 St.Rep. 641, 654. No evidence was 

introduced even implying that the concept of secondary gain 

was applicable to plaintiff. Dr. Lovitt did not suggest that 

the plaintiff's allegations of continuing pain were a result 

of either conscious or subconscious expectations of 

financial, emotional or other type of gain. Rather, Dr. 

Lovitt himself stated that he perceived plaintiff as a 

reasonable person who was "probably not going to improve a 

whole heck of a lot anytime i.n the near future." Dr. T,ovitt 

thus concluded that: 
Yes I do really tend to believe her. 

I'll tell you why. Because her symptoms 

have been pretty much persistent over 

time, and she has continued to work. 

Given the lack of any evidence even suggesting that 

plaintiff's injuries were influenced by secondary gain 

motives, the court's decision to allow the introduction of 

such testimony amounted to an abuse of discretion. 

We will not reverse a judgment, however, unless the 

error affects the substantial rights of a party. See, State 

v. Fitzpatrick (1980), 186 Mont. 187, 205, 606 P.2d 1343, 

1353, cert. denied, 449 U.S. 891. The facts in this case 

indicate that the court's erroneous ruling to admit all Dr. 

Lovitt's testimony did substantially prejudice the jury and 

affect plaintiff's right to a fair trial. One portion of the 

secondary gain testimony was so prejudicial that the District 

Court ruled to strike it from the record and then admonished 

the jury to disregard it. Yet the jury had already heard 

this highly prejudicial testimony and other irrelevant 

testimony of secondary gain because of the court's erroneous 

denial of plaintiff's prior motion in limine. It is 

irrelevant which party at trial read the preiudicial 

testimony to the jury, in view of the court's erroneous 

ruling. In this case, as in Kuiper v. Goodyear Tire (1983), 

207 Mont. 37, 673 P.2d 1208, the failure of the trial court 

to exclude such evidence prejudicial to the defendant 

permitted the jury "to indulge in improper speculation and 

guesswork." Kuiper, 673 at 1217. The failure to exclude all 

secondary gain testimony constituted an error of sufficient 

magnitude to warrant a new trial. Consequently, the District 

Court erred in denying plaintiff's motion for a mistrial. 

We need not address the second and third issues, having 

held. the plaintiff is entitled to a new trial under the first 
issue. We admonish both parties, however, to refrain from 

any mention of insurance upon retrial. 

Reversed and remanded for a new trial. 

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We concur: 

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