DA 07-0050

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 182

CAROLYN MCCORMACK,

 Plaintiff and Appellee,

 v.

ANDREA ANDRES,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DV 05-569

Honorable Holly Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Lyman H. Bennett, III, Attorney at Law, Bozeman, Montana

William Conklin, Conklin, Nybo & Lanning, Great Falls, Montana

For Appellee:

Michael E. Wheat and Travis W. Kinzler, Cok, Wheat & Kinzler, Bozeman, 

Montana

Submitted on Briefs: February 6, 2008

 Decided: May 28, 2008 

Filed:

__________________________________________

Clerk

Justice Brian Morris delivered the Opinion of the Court.

May 28 2008
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¶1 Andrea Andres (Andres) appeals from orders of the Eighteenth Judicial District Court, 

Gallatin County, granting motions in limine filed by Carolyn McCormack (McCormack) to 

exclude certain testimony and documentary evidence at trial. She also appeals the District 

Court’s failure to continue the trial and the court’s admission of certain evidence concerning 

McCormack’s medical expenses. We affirm.

¶2 We review the following issues on appeal:

¶3 Did the District Court abuse its discretion when it prevented Andres from crossexamining McCormack and her medical providers about McCormack’s previous injuries and 

impairment ratings?

¶4 Did the District Court abuse its discretion when it prevented Andres from soliciting 

statements made by McCormack’s orthopedic physician concerning McCormack’s brain 

injury? 

¶5 Did the District Court abuse its discretion when it did not continue the trial date? 

¶6 Did the District Court abuse its discretion by admitting into evidence McCormack’s 

summary of medical expenses? 

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Andres’s Ford F-350 pickup collided with McCormack’s Chevrolet Corsica on the 

stretch of Interstate 90 (I-90) that lies between Belgrade and Bozeman. McCormack had 

slowed her vehicle to approximately 55 miles per hour as she passed a vehicle fire on the 

shoulder of I-90. Andres’s pickup struck McCormack’s vehicle while traveling at 

approximately 75 miles per hour. Andres’s pickup crushed the back end of McCormack’s 

car and completely eliminated the rear passenger compartment. Andres admitted that her 
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negligence caused the collision. McCormack sustained injuries to her brain, neck, and back

as a result of the collision.

¶8 Andres deposed McCormack in December of 2005. McCormack revealed that in 

1993 she had sustained a whiplash injury in a car accident. McCormack said that she had 

applied for Social Security disability compensation following the 1993 car accident. 

McCormack also informed Andres that she had injured her neck and upper back while lifting 

a computer at work in 1996. McCormack had filed a worker’s compensation claim for the 

1996 work injury. McCormack further revealed that she had sustained head, neck, and back 

injuries in a car accident in 1999. Andres requested the medical records, attorney’s files, and 

settlement documents related to McCormack’s prior incidents in January of 2006.

¶9 The District Court ordered the parties to complete discovery by September 1, 2006. 

Andres deposed Dr. Sherry Reid, a neurologist treating McCormack, in January of 2006. 

Andres deposed McCormack’s orthopedic physician, Dr. John Vallin, in May of 2006. Dr. 

Vallin made several statements concerning McCormack’s brain injury in response to 

questions posed by Andres’s counsel. McCormack’s counsel later asked if Dr. Vallin had 

treated McCormack “for her back pain and not her head injury; is that correct?” Dr. Vallin 

responded, “That’s correct.” 

¶10 Andres deposed Dr. Jeff Cory, a neuropsychologist treating McCormack, in July of 

2006. Dr. Cory testified that he had discussed with McCormack her 1993 car accident in 

assessing her current brain injury. He stated that the 1993 incident did not affect his 

diagnosis. Andres’s counsel asked Dr. Cory whether McCormack had informed him of her 

involvement in the 1999 car accident. Dr. Cory responded that McCormack had not told him 
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of the accident. Andres’s counsel then asked if that would “have been a significant history 

for you to consider . . . ?” Dr. Cory responded “Yes.” 

¶11 McCormack provided the medical records relating to her 1999 car accident in March 

of 2006. McCormack provided records pertaining to her 1993 car accident, her application 

and denial for Social Security disability compensation, and her 1996 work injury on August 

31, 2006--one day before the close of discovery. 

¶12 The documents provided by McCormack on the last day of discovery included a 

medical report issued by Dr. Bruce Johnson (the Johnson Report) concerning her 1996 work 

injury. The Johnson Report concluded that McCormack had suffered a permanent 

neurologic impairment of 30% of her normal total function. The Johnson Report also stated 

that McCormack had suffered a permanent psychiatric impairment of 22.5% of her normal 

total function. 

¶13 McCormack filed a motion in limine to preclude Andres from presenting at trial 

certain statements regarding her brain injury, as well as evidence relating to her 1993 car 

accident and 1996 work injury. The District Court responded with an order prohibiting 

Andres from soliciting testimony from McCormack’s orthopedic physician regarding 

McCormack’s brain injury. The District Court’s order also precluded Andres from 

introducing evidence relating to McCormack’s 1993 car accident, her corresponding Social 

Security disability claim, and her 1996 work injury and corresponding worker’s 

compensation claim. Andres filed a motion for reconsideration of the court’s order granting 

McCormack’s motion in limine. 
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¶14 The District Court held a hearing approximately two weeks before trial on Andres’s 

motion for reconsideration. Andres asserted at the hearing that she did not receive the 

Johnson Report until after she had deposed Dr. Cory and Dr. Reid. The court asked 

Andres’s counsel how he would hope to proceed in light of these circumstances. Andres’s 

counsel said that he “would be glad if the Court were to vacate trial and I would be glad to 

travel . . . .” The court stated “Well, I don’t want to vacate the trial. Can you fit it in?” 

Andres’s counsel then asserted that he would have tried to depose Dr. Johnson if he had 

received the Johnson Report with more time. He stated, “But with the close of discovery the 

day after, and probably the day I received [the Johnson Report], my hands were tied as far as 

that. So I said, fine, I will live with that. I’ll just cross-examine Dr. Cory, Dr. Reid, or any 

of the other experts saying, how would this--would this affect your opinion . . . .”

¶15 Andres also argued at the hearing on the motion for reconsideration that the District 

Court should allow her to question Margot Hart (Hart), McCormack’s vocational expert, 

about statements made by McCormack’s orthopedic physician, Dr. Vallin, regarding 

McCormack’s brain injury. Hart had conducted a rehabilitation assessment and had made a 

life care plan for McCormack. Hart filed an addendum to the assessment after Andres had 

taken Hart’s deposition. The addendum referenced Dr. Vallin and included statements that 

he had made concerning McCormack’s brain injury. 

¶16 The District Court agreed at the hearing on the motion for reconsideration to reopen 

discovery for the limited purpose of determining whether the Johnson Report would have 

had any effect on the diagnoses or opinions of Dr. Cory or Dr. Reid. The District Court also 

agreed that Andres could cross-examine Hart about McCormack’s brain injury if Hart “opens 
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the door to either [Dr. Vallin’s] correspondence or any opinion that she may have attributed 

to [Dr. Vallin] in regard to the brain injury . . .” during direct examination. 

¶17 Andres deposed Dr. Cory a second time after the hearing on the motion for 

reconsideration. Andres’s counsel asked Dr. Cory if the permanent impairment ratings from 

the Johnson Report indicated that McCormack’s symptoms from the 1996 injury “would 

continue being an impairment for the rest of Ms. McCormack’s life . . . ?” Dr. Cory stated 

that he “would disagree with that . . . [and] if you read the Diagnostic and Statistical Manual 

of Mental Disorders No. IV, you won’t find . . . that either of these disorders are lifelong or 

permanent by nature . . . .” 

¶18 Andres also deposed Dr. Reid a second time after the hearing on the motion for 

reconsideration. Andres’s counsel confirmed that McCormack previously had failed to 

inform Dr. Reid of having suffered the symptoms listed in the Johnson Report at any time 

before the most recent accident. Andres’s counsel asked Dr. Reid if such a history “is 

important for you not only for treatment but in formulating an opinion or diagnosis [as to] 

what was causing those symptoms?” Dr. Reid responded that “It would be important to 

know that.” McCormack’s counsel asked Dr. Reid if there is “anything in [the Johnson 

Report] that would change any of your opinions . . . ?” Dr. Reid responded “No.” 

¶19 The District Court issued an order the day before trial denying Andres’s motion for 

reconsideration. The court also granted a motion filed one day earlier by McCormack to 

preclude evidence at trial regarding the 1999 car accident. The case proceeded to trial. 

¶20 McCormack testified at trial. McCormack identified a one-page document as a 

summary of all of her medical expenses up to the date of trial related to the recent car 
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accident. Andres objected. Andres asserted that McCormack could not testify to the 

necessity and reasonableness of the expenses. Andres argued that McCormack’s medical 

providers had to establish the necessary foundation for admitting the summary. The court 

overruled the objection and admitted the summary into evidence. 

¶21 The jury awarded McCormack $361,684 in compensatory damages. Andres appeals 

the District Court’s orders granting McCormack’s motions in limine. Andres also appeals 

the District Court’s failure to continue the date of trial and the court’s admission of the 

medical expense summary. 

STANDARD OF REVIEW

¶22 District courts possess broad discretion when determining the admissibility of 

evidence. Seltzer v. Morton, 2007 MT 62, ¶ 65, 336 Mont. 225, ¶ 65, 154 P.3d 561, ¶ 65. A

court may exclude relevant evidence if the danger of unfair prejudice, confusion of the 

issues, needless presentation of cumulative evidence, waste of time, undue delay, or 

misleading of the jury substantially outweighs the evidence’s probative value. Henricksen v. 

State, 2004 MT 20, ¶ 64, 319 Mont. 307, ¶ 64, 84 P.3d 38, ¶ 64. We review a district court’s 

evidentiary rulings for an abuse of discretion. Seltzer, ¶ 65. A district court abuses its 

discretion when it acts arbitrarily without employment of conscientious judgment or so 

exceeds the bounds of reason as to work a substantial injustice. Peterson v. Doctors’ Co., 

2007 MT 264, ¶ 31, 339 Mont. 354, ¶ 31, 170 P.3d 459, ¶ 31. 

¶23 We review a district court’s decision to continue a trial for an abuse of discretion. 

State v. Ibarra-Salas, 2007 MT 173, ¶ 13, 338 Mont. 191, ¶ 13, 164 P.3d 898, ¶ 13. We will 
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not overturn a court’s decision to deny a motion for a continuance absent a showing of both 

an abuse of discretion and prejudice to the complaining party. Ibarra-Salas, ¶ 13. 

DISCUSSION

ISSUE ONE

¶24 Did the District Court abuse its discretion when it prevented Andres from crossexamining McCormack and her medical providers about McCormack’s previous injuries and 

impairment ratings?

¶25 Andres asserts that the District Court should have allowed her to cross-examine 

McCormack and her medical providers about the injuries that McCormack previously had 

suffered from the car accidents in 1993 and 1999 and the work related incident in 1996. 

Andres also faults the District Court for precluding evidence that McCormack had submitted 

a claim for Social Security disability benefits as a result of the 1993 car accident. Andres 

argues that the jury would have apportioned the damages for the injuries stemming from this 

accident after learning of McCormack’s previous injuries. 

¶26 A defendant must establish a “more probable than not causal link . . .” before a court 

will allow it to present alternate causation evidence. Henricksen, ¶ 70. The party seeking to 

introduce alternate causation evidence must demonstrate a causal connection between the 

present symptoms complained of and a prior accident. Henricksen, ¶ 70. Mere speculation 

constitutes an insufficient basis for admitting alternate causation evidence. Henricksen, ¶ 63. 

¶27 The District Court determined that Andres had failed to present any evidence 

connecting McCormack’s present injuries and the 1993 car wreck and the related Social 

Security claim. The court cited Dr. Cory’s statements that the 1993 accident did not affect 
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his diagnosis of McCormack’s present injuries. The District Court also determined that 

Andres had failed to question McCormack or other pertinent witnesses as to the relevance of 

the Social Security claim that stemmed from the 1993 accident. The court determined that 

Andres had failed to affirmatively demonstrate a causal connection between these incidents 

and McCormack’s present injuries. 

¶28 The hearing on the motion for reconsideration revealed that Andres did not have 

access to the Johnson Report, which detailed McCormack’s 1996 work incident injuries, 

until after Andres had deposed McCormack’s medical providers. The District Court 

provided Andres with the opportunity to depose for a second time both Dr. Cory and Dr. 

Reid. Dr. Cory testified that the injuries listed in the Johnson Report were not permanent by 

nature. Dr. Reid specifically testified that nothing in the Johnson Report changed her 

opinions and diagnosis of McCormack’s present injuries. 

¶29 The District Court noted that Andres likely had established the fact that McCormack’s 

medical providers deemed important the Johnson Report. The District Court concluded that 

demonstrating the importance of the report, however, did not equate to a demonstration that a 

“more probable than not” causal connection existed between the 1996 work incident and 

McCormack’s present injuries. 

¶30 Finally, the District Court determined that Andres had failed to establish a causal 

connection between McCormack’s present injuries and the 1999 car accident. The District 

Court made a conscientious decision to exclude evidence of McCormack’s previous 

accidents after providing to Andres the opportunity to establish a probable alternate cause of 

McCormack’s claimed injuries. The court’s decision to prohibit Andres from soliciting 
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alternate causation evidence did not constitute an abuse of discretion under these 

circumstances. Peterson, ¶ 31. 

¶31 Andres also argues that the District Court should have allowed her to use evidence of 

the prior accidents on cross-examination to impeach McCormack. Andres cites the fact that 

McCormack initially did not disclose all of her past medical information to her doctors as a 

basis for attacking McCormack’s credibility. 

¶32 The District Court determined in its initial order that Andres had failed to provide any 

evidence demonstrating dishonest conduct committed by McCormack. Andres did not raise 

the issue of McCormack’s credibility in its motion to reconsider. Andres also failed to raise 

McCormack’s credibility at the hearing on the motion to reconsider. Accordingly, the 

District Court did not address the issue of McCormack’s credibility in its final order granting 

McCormack’s motions. Andres abandoned her argument regarding McCormack’s credibility 

before the District Court and we need not consider it on appeal. See e.g. State v. Minez, 2004 

MT 115, ¶ 31, 321 Mont. 148, ¶ 31, 89 P.3d 966, ¶ 31. 

ISSUE TWO

¶33 Did the District Court abuse its discretion when it prevented Andres from soliciting 

statements made by McCormack’s orthopedic physician concerning McCormack’s brain 

injury?

¶34 Andres asserts that the District Court improperly precluded evidence concerning 

McCormack’s brain injury. She argues that the District Court should have allowed her to 

explore statements made by McCormack’s orthopedic doctor, Dr. Vallin, concerning the 

brain injury. Andres further asserts that the vocational expert, Hart, made assessments based 
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in part on Dr. Vallin’s statements about the brain injury. Andres argues that the District 

Court should have allowed her to cross-examine Hart about Dr. Vallin’s statements. 

¶35 District courts possess broad discretion when determining the boundaries of 

admissible evidence. Seltzer, ¶ 65. McCormack’s counsel asked Dr. Vallin during his 

deposition if he had seen McCormack “for her back pain and not her head injury; is that 

correct?” Dr. Vallin responded, “That’s correct.” The District Court noted that Dr. Vallin 

“did not evaluate [McCormack] for treatment of any brain injuries . . . .”

¶36 The District Court learned at the hearing on the motion for reconsideration that the 

vocational expert, Hart, had filed an addendum to her initial rehabilitation assessment. The 

court learned that the addendum referenced Dr. Vallin and statements that Dr. Vallin had 

made concerning McCormack’s brain injury. The District Court acknowledged the potential 

relevance of the references in the addendum. The court gave permission to Andres to elicit 

these statements from Hart during cross-examining if Hart “opens the door to either [Dr. 

Vallin’s] correspondence or any opinion that [Hart] may have attributed to [Dr. Vallin] in 

regard to the brain injury . . . .” 

¶37 McCormack affirmatively demonstrated that Dr. Vallin treated her only for back pain. 

 McCormack established that Dr. Vallin made only incidental and secondary observations 

concerning her brain injury. The District Court, in light of the scope of treatment provided 

by Dr. Vallin, set forth reasoned restrictions concerning both direct and indirect evidence of 

the doctor’s statements regarding McCormack’s brain injury. The record reveals that the 

District Court did not abuse its discretion in granting McCormack’s motions in limine with 

regard to Dr. Vallin’s statements. Peterson, ¶ 31. 
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ISSUE THREE

¶38 Did the District Court abuse its discretion when it did not continue the trial date?

¶39 Andres argues that the District Court improperly refused to continue the trial date in 

light of McCormack’s last-minute disclosures. Andres contends that McCormack’s lastminute disclosures and the day-before-trial ruling by the court to preclude certain evidence 

prejudiced Andres’s ability to prepare adequately for trial. McCormack asserts that the 

District Court properly maintained the original trial date in light of Andres’ failure to make a 

formal motion for a continuance and her failure to provide an affidavit in support of a motion 

to continue. 

¶40 McCormack supplied evidence of her previous car accidents early in discovery. 

McCormack supplied the Johnson Report and other materials on the last day of discovery. 

The hearing on Andres’s motion for reconsideration took place two weeks before trial began. 

¶41 The court asked Andres’s counsel at the hearing for his proposed course of action in 

light of the fact that Andres had received some discovery materials after she had deposed a 

number of McCormack’s medical providers. Andres’s counsel stated, “I would be glad if the 

Court were to vacate trial and I would be glad to travel . . . .” The court responded “Well, I 

don’t want to vacate the trial. Can you fit it in?” 

¶42 Andres asserts that her counsel’s statements constituted a motion for a continuance. 

Andres further contends that the court’s response rendered futile a formal motion for a 

continuance. The exchange between Andres’s counsel and the court fails to rise to the level 

of an affirmative motion. The statement “I would be glad if the Court were to vacate trial . . 

.” does not constitute a motion for a continuance. See M. R. Civ. P. 7(b)(1); see also 
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Luppold v. Lewis, 172 Mont. 280, 294-95, 563 P.2d 538, 546 (1977) (citing State ex rel. 

McVay v. District Court, 126 Mont. 382, 393, 251 P.2d 840, 846 (1953) for the proposition 

that a motion must provide both notice to a party interested in opposing the motion and an 

opportunity to oppose intelligently the motion). The court’s indication that it “[did not] want 

to vacate the trial” similarly does not demonstrate that the court held a predetermined 

position with regard to a formal motion for a continuance. We generally decline to consider 

on appeal arguments that the District Court did not have an opportunity to consider. Prosser 

v. Kennedy Enterprises, Inc., 2008 MT 87, ¶ 35, 342 Mont. 209, ¶ 35, 179 P.3d 1178, ¶ 35. 

Andres failed to provide the District Court with the opportunity to rule on a motion for a 

continuance. We decline to review a decision that the District Court did not make.

ISSUE FOUR

¶43 Did the District Court abuse its discretion by admitting into evidence McCormack’s 

summary of medical expenses?

¶44 Andres faults the District Court for admitting into evidence McCormack’s summary 

of medical expenses. Andres asserts that McCormack’s medical providers had to lay the 

foundation for the admission of the one-page summary. 

¶45 We do not require a plaintiff to establish with certainty the causal connection between 

her accident and her injuries. Moralli v. Lake County, 255 Mont. 23, 30, 839 P.2d 1287, 

1291 (1992). We confirmed in Moralli that a plaintiff need not provide medical expert 

testimony where the nature of an injury allows a layperson to see plainly or infer the cause of 

the injury. Moralli, 255 Mont. at 29, 839 P.2d at 1291 (citing Cain v. Stevenson, 218 Mont. 
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101, 706 P.2d 128 (1985)). We determined in Moralli that a plaintiff suffering from injuries 

caused by a slip and fall in a public facility could testify competently to her past and present 

conditions. Moralli, 255 Mont. at 30, 839 P.2d at 1291. 

¶46 The one-page exhibit introduced by McCormack comprised a summary of the medical 

expenses that she had incurred as of the date of trial. McCormack testified that the summary 

reflected accurately her medical expenses stemming from the accident. Like the plaintiff’s 

injuries in Moralli, the back and brain injuries that McCormack sustained comprised the type 

of injuries that a layperson could infer had occurred as a result of a car accident. 

McCormack could testify competently to these injuries. McCormack also could testify 

competently to the past expenses that she had incurred as a result of her injuries. We 

conclude that the District Court did not abuse its discretion in admitting the one-page 

summary of medical expenses. Peterson, ¶ 31. 

¶47 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ JIM RICE