No. 88-308
INTHE SUPREME COURT OF THE STATE OF MONTANA

CATHERINE DAHLIN,
Plaintiff andAppellant,-vsJANICE HOLMQUIST,
Defendant and Respondent.

APPEAL FROM: DistrictCourtof the ThirteenthJudicialDistrict, Inand forthe Countyof Yellowstone, TheHonorableG. Todd Raugh, Judgepresidinq.
COUNSEL OF RECORD:
For Appellant: Hoyt & Blewett; Michael J. George, GreatFalls, Montana
For Respondent:
DonaldL. Harris; Crowley, Haughey, Hanson, Toole and Dietrich, Billings, Montana

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PI-, C" c>
.L 2- Submittedon Briefs: Oct. 6, 1988
Decided: November 29, 1988Mr. Justice L. C. Gulbrandson delivered.the Opinion of the Court.

Catherine Dahlin appeals from the denial of hermotion 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. Lovittdenyplaintiff 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 insurancecoverage followingdefendant's allusion to a lack of insuranceby the comment "wepaid"? 3. Was plaintiff denied a fair and impartial jury by the DistrictCourt's refusaltopermit plaintiff tovoir 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. Shewas subsequently seenby Dr. James Lovitt, an orthopedic surgeon, in March of 1984. He diagnosed her as suffering from a cervicaland lumbar strain. To date,Dahlin continues to experience headaches and neck pain, even though thenormalhealingperiod for such an injury is six to twelve weeks.On February 23, 1987, Dahlin filed a complaintalleging that thedefendant's negligent vehicular operation caused the collision which resulted in her physical injury, pain and suffering, loss of established course of life, and lostearning 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 consequentlywould 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-lyasserted that the extensive "mediablitz" on the issue of "tort reform" and the "liability crisis" was sufficient to warrant such questioning. Plaintiff then offered four articles,generally published twoyearsprior to trial, as proof of this "mediablitz." 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 ofbenefit 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'sdeposition, including the testimony about "secondary gain," to the jury. Plaintiff then renewedher objectionandthe courtrepeated its former ruling. However, the courtdid strike and admonish the jury to disregard the followina highly prejudicial comment espoused by Dr. Lovittwhen asked for a definitionof secondarygain: It frequently is intentional,and we all know the-you know, the situation in which, you know, somebody stands tomake 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, 

### "[wlepaid." Plaintiffasserted 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 costspreviously 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 shewas 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.edplaintiffher 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 evidenceas: [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 iswithin the discretion of the trial court. Welnel

v. Hall (Mont. 1984), 694 P.2d 1346, 1348, 42 St.Rep. 195, 197. Consequently,wewill not disturb the District Court's denial of plaintiff's motion in limine and permission to admit the disputed secondary gain testimonyunless 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 notnaturallyand logically tend tomake either the extentor 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 toplaintiff. Dr. Lovittdid not suggest that the plaintiff's allegations of continuingpainwere 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 ofdiscretion. 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 affectplaintiff's right to a fair trial. One portion of the secondarygain testimonywas soprejudicial that theDistrict 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, 673at 1217. The failure to exclude all secondary gain testimony constituted an error of sufficient magnitude towarrant 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 anew trialunder the firstissue. We admonish both parties, however, to refrain from any mention of insuranceupon retrial. Reversed andremanded fora new trial.

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We concur:

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