,

No. 94-457

IN THE SUPREME COURT OF THE

1995

STATE OF MONTANA

EMMA JEAN "E J . . II HANDO,

Plaintiff and Appellant,

-vs- JUL 2 5 1995

PPG INDUSTRIES, INC., ETC., cf'$2Ltid

@&RK~i+.BUBREM~GOtlR%

Defendant,

bt%ATE @it tfw#TAMA

Respondent and Cross-Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Russell K. Fillner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Don Edgar Burris, Attorney at Law, Billings,

Montana

For Respondent: -

W. Anderson Forsythe and Brad H. Anderson; Moulton,

Bellingham, Longo & Mather, B,illings, Montana

Filed:

Submitted on Briefs: March 30, 1995

Decided: July 25, 1995
Justice Karla M. Gray delivered the Opinion of the Court.

Emma Jean Hando (Hando) appeals from an order of the

Thirteenth Judicial District Court, Yellowstone County, denying her

motion for a new trial. We affirm.

The dispositive issue on appeal is whether the District Court

abused its discretion in denying her motion for a new trial based

on the improper admission of evidence regarding Spring Creek Coal

Company (SCCC).

SCCC employed Hando as a control room operator at its mine in

Decker, Montana. During a production break in the summer of 1981,

SCCC assigned employees to various painting projects around the

mine site. The paint, which was manufactured by PPG Industries,

Inc. (PPG) , was surplus paint used in a prior painting project.

SCCC transferred the paint from five-gallon drums to smaller

containers which then were given to painting personnel, including

Hando. Neither the five-gallon drums nor the smaller containers

provided to the employees contained warnings concerning health

risks posed by use of the paint.

After using the paint for a period of time, Hando began

experiencing physical problems which included dizziness, lightheadedness, headaches, depression, and vaginal bleeding. After the

painting was completed in September 1981, Hando's symptoms slowly

improved.

Seven months later, Hando began using the same PPGmanufactured paint to paint the control room where she worked.

During this project, the paint was contained in one-gallon cans

2
purchased from a supplier. She painted for one and one-half days

and almost immediately experienced physical symptoms similar to

those she experienced in 1981. Hando states that she lost

consciousness on the second day of the control room painting

project and that her symptoms increased following that incident.

Hando sought medical treatment for her symptoms which, at that

time, included sensitivity to chemicals and fumes. She eventually

was diagnosed as having extreme chemical sensitivity. According to

her doctors, Hando was totally disabled from performing her work

due to an inability to tolerate exposure to chemicals commonly

found in her work environment. Several months later, while working

in SCCC's front offices, Hando retrieved a label listing several

health warnings from a One-gallon can of paint she had used in

painting the control room.

On October 25, 1985, Hando filed a complaint, later amended,

against PPG, SCCC, and NERCO, SCCC'S parent corporation. Her

claims against PPG alleged negligence and product liability based

on placing a dangerous product in commerce with inadequate

warnings. Hando settled her claims against SCCC, The District

court subsequently granted summary judgment in NERCO's favor on the

issue of whether it had a duty to provide a safe workplace to

Hando; the court denied NERCO's and PPG's motions for summary

judgment on the statute of limitations. All parties appealed, and

we affirmed. We held, in pertinent part, that NERCO, as SCCC's

parent corporation, did not have a duty to provide Hando with a

safe workplace. Hando v. PPG Industries, Inc. (1989), 236 Mont.

3
493, 500, 771 P.Zd 956, 961. Thus, after the first appeal, only

PPG remained as a party defendant.

Hando's negligence and failure to warn claims against PPG were

tried to a jury. The jury returned a verdict finding that PPG was

not negligent and that PPG's paint was not in an "unreasonably

dangerous defective condition."

Hando moved for a new trial under subsections (l), (6), and

(7) of § 25-11-102, MCA. The essence of her argument in each

regard was that PPG's presentation of evidence shifting blame to

SCCC permitted the jury to consider her employer's negligence, in

violation of § 27-l-703(4), MCA. The District Court denied Hando's

motion and Hando appeals.

Hando couches her argument as an error of law by the District

Court in not enforcing the provisions of § 27-l-703(4), MCA, which

provides, in pertinent part:

in attributing negligence among persons, the trier of

fact may not consider or determine any amount of

negligence on the part of any injured person's,employer

o r coemployee to the extent that such employer or

coemployee has tort immunity under the Workers'

Compensation Act or the Occupational Disease Act of this

state . .

In essence, however, her argument is that the District Court erred

in admitting PPG's evidence regarding SCCC's safety procedures to

protect its employees and alleged coercion against employees who

refused to paint. PPG contends that Hando presented evidence

relating to SCCC s conduct during her own testimony and,

furthermore, that she failed to object when PPG followed up by

introducing additional evidence of SCCC's conduct toward employees

4
who were exposed to the paint.

Our standard in reviewing a district court's ruling on a

motion for a new trial is whether the court abused its discretion.

Brockie v. OmO Const., Inc. (1994), 268 Mont. 519, 525, 887 p.2d

167, 170. Determinations regarding admissibility of evidence also

are within the broad discretion of the trial court and we will not

reverse a court's determination absent an abuse of that discretion.

King v. Zimmerman (1994), 266 Mont. 54, 65, 878 P.2d 895, 902.

The record is clear that the general subject of SCCC's conduct

and evidence regarding some of SCCC's specific acts or omissions

first were presented during Hando's case-in-chief. Hando testified

on direct examination that SCCC did not provide her with special

gloves or clothing to use when painting. Regarding the respirator

SCCC provided, she opined that it was designed only for dusty

conditions and was not appropriate for use when painting. She also

testified that, a few days after painting began, SCCC provided the

employees "paint mitts" to speed the painting process and that the

mitts resulted in direct contact between the paint and the

employees' hands.

Regarding the second painting project, Hando testified that

SCCC again did not provide her with gloves, special clothing, or

the correct respirator. She told the jury that the label on the

one-gallon paint can provided to her recommended using the paint in

a well-ventilated area. In response to that recommendation, she

stated that she took the only precautions available by running

several fans in the room and opening a window, but that those

5
precautions did not sufficiently ventilate the control room. Hando

also testified that SCCC again provided respirators, but that they

were ineffective against the paint fumes. It appears that Hando's

SCCC-related testimony was presented to blunt, in advance, any

suggestion by PPG that her own conduct caused, or contributed to,

her injuries.

On cross-examination, PPG's counsel followed up on Hando's

direct testimony about SCCC's conduct. Hando responded that her

supervisors provided employees with warnings about the paint. She

testified that, while SCCC provided respirators, she decided that

they were insufficient for employees who painted and impractical to

use. She did not request a different type of respirator.

During its case, PPG presented testimony from two SCCC

employees who described SCCC's safety precautions toward employees

assigned to painting projects. Howard Smothers testified that SCCC

had charcoal respirators specifically designed to deflect paint

vapors available and that employees were advised to wear the

respirators when painting. When he observed Hando painting, she

was not wearing a respirator. Hando cross-examined this witness

about whether SCCC provided employees with--and trained them in the

use of--respirators. In Suk Githens also testified that SCCC

supplied respirators to be used while painting.

As a general rule, "[w]e will not put a district court in

error for a ruling or procedure in which the appellant acquiesced,

participated, or to which the appellant made no objection."

Pedersen v. Nordahl (1993), 261 Mont. 284, 287, 862 P.2d 411, 413;

6
See also Buhr v. Flathead County (1994), 268 Mont. 223, 254, 886

P.2d 381, 400. Here, the record establishes that Hando first

introduced evidence regarding SCCC's safety procedures. Thus, she

clearly participated and acquiesced in its introduction and cannot

now assert error regarding its admissibility.

Moreover, with regard to PPG's cross-examination of Hando

about SCCC's safety procedures, it is axiomatic that a witness may

be cross-examined on any subject raised or fact stated on direct

examination. Rule 611(b) (l), M.R.Evid.; Tigh v. College Park

Realty (1967), 149 Mont. 358, 364, 427 P.2d 57, 61. In addition,

the SCCC-related conduct PPG presented in its case-in-chief was

relevant and admissible under Rules 401 and 402, M.R.Evid., because

it controverted Hando's direct testimony regarding SCCC's safety

procedures. Again, Hando opened the door to the subject and cannot

now complain because PPG walked through it.

Finally, we note that, even absent Hando's opening the door to

evidence of SCCC's safety-related conduct in presenting her case,

her counsel did not object to PPG's cross-examination of Hando

regarding SCCC's conduct or to its affirmative evidence on that

subject. While we need not rely on it in this case, the general

rule is that a party's failure to object to an alleged error during

trial precludes raising the issue on appeal. -See Buhr 886 -I P.2d at

400.

Based on the record before us, we cannot conclude that the

District Court abused its discretion in admitting the SCCC-related

evidence of which Hando now complains. Therefore, we hold that the

7
*

.

District Court did not abuse its discretion in denying Hando's

motion for a new trial.

Affirmed.

We concur:
July 25, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Don Edgar Burris

Attorney at Law

P.O. Box 2344

Billings, MT 59103

W. Anderson Forsythe

Brad H. Anderson

MOULTON, BELLINGHAM, LONGO, & MATHER

P.O. Box 2559

Billings, MT 59103

Joseph P. Mazurek, Attorney General

Clay Smith, Assistant

21.5 N. Sanders

Helena MT 5920

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

BY: A J

Deputy

a