INTHE SUPREME COURT OF THE STATE OF MONTANA

NANCY A. FELLER, Plaintiff and Appellant,-VSJAKE FOX, Defendant and Respondent.

APPEAL FROM: District Court of theThirteenthJudicialDistrict, Inand for theCounty of Yellowstone, The Honorable Diane G. Rarz, Judge presiding.

COUNSEL OF RECORD:
ForAppellant: Joseph P. Hennessey; Hennessey L?.w Office, Billi.ngs, Montana
For Respondent: 1,awrence R. Martin; Felt & Martin, nillings, Montana James D. Walen; Keefer, Royhal, Hanson, Stacey & v7al.en, Billings, Nontana

Submittedon Briefs: March 2, 1989 Decided: April 25, 1989

0Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Nancy A. Feller (Feller) appeals the April 12, 1988 order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying her motion for a new trial. Feller also appeals the court's denial o=her motion in limine to exclude the testimony of Dr. Gary Ray. Having examined the record and the lawwe affirm the rulings of the DistrictCourt. This case arose from an automobile accident which occurred on April 20, 1986, at an intersection in Billings, llontana. Feller, a passenger in her own 1977 Chevrolet Nova, sustained injuries when her vehiclewas rear-ended by a vehicle drivenby the respondent,JakeFox (Fox). Fellerwas transported to a Billings hospital by ambulance,treated for trauma to her neck and hack an2 then released. This trauma condition is more commonly known as whiplash. In the following days and months Feller consulted with her family physician in Rridger, Montana, several other doctors in the Billings area and a physical therapist. She complained of pain in theneck areaand severe,disablingheadaches. One of the doctors Feller contacted was Dr. Gary Ray,

an osteopathic physician. Feller made an appointment with Dr. Ray and was examined by him three days after the accident. Feller indicated on 

### a patient information sheet that she had been referred by a Dr. Berg, who had an office in the same building. Based upon the examination, which lasted 15 to 30minutes,Dr. Ray found Feller's symptomswere exaggerated. As she was already being treated by several otherphysicians,Dr. Ray declined to treat her and forwarded

a copy ofhis findings toher regularphysician.In October of 1986, Feller filed suit against Fox seeking damages for her physical injuries and pain, mental anguish and emotional distress, and medical and non-medical expenses. The complaint also sought compensation for lost wages and for damages arising because of her potential-ly permanent inability to engage in her normal work or activities. Prior to trial, Fox admitted liability and then filed

an offer of judgment in the am'ount of $20,000. Feller, however, declined this offer o+ judgment and the case proceeded to trial before a jury on the issue of damages. Feller filed a motion in limine prior to FOX'S case-in-chief, seeking to exclude the testimony of Dr. Gary Ray. The District Court denied the motion and Dr. Ray's deposition testl'monywas read into the record. The jury returned 

### a verdict 

### in favor of Feller in the amount of $7,837.49. Feller filed amotion fora new trial pursuant to § 25-11-102(I), (2),(6),(7), MCA, alleging irregularityin the proceedings, misconduct of the jury, insufficiency of the evidence to justify the verdict, that the verdictwas against law, and error in law occurring at trial. The court denied. the motion for a new trial after finding that themotion was procedurally flawed for failure to include juror affidavits and. further, that substantial credible evic?ence existed to sustain the jury's verdict. From this holding Feller appealsand presents the following issues forreview: (1) Did the District Court err in denying Feller's motion in limine to exclude the testimony of Dr. Ray?

(2) Did the District Court abuse its djscretior, in denying Feller's motion 

### For anew trial? (3) Did the Distrj-ctCourt. abuse its discretion 

### in refusing to give Feller's offered jury instructtons, numbers 4 ar? 

### P:In Feller's first issue she claims the District Court incorrectly allowed the introduction of Dr. Ray's deposition testimony. Initially, we note that "questions of the admissibility of evidence are left largely to the sound discretion of the trial court 

# .

# .. " Rrittorl v. Farmer's Insurance Group (Mont. 1986), 721 P.2d 303, 315, 43 St.Rep. 641, 654; Cooper v. Rosston (Mont. 1988), 756 P.2d 1125, 45 St.Rep. 978; Cech v. State (19791, 184Mont. 522, 604 P.2d 97. The district court's decision in such evidentiary matters will be subject to review only in cases ofmanifest abuse of thatdiscretion. Britton, 721 P.?d at 315: Cooper, 756 P.2d at 1127. The purpose 

### of the motion in limine is to prevent the introduction of evidence which is irrelevant, immaterial or unfairly prejudicial. Wallin v. Kenyon Estate (1974), 164 Mont. 160, 165, 519 P.2d 1236, 1238. This Court thus has held that the authority to grant or deny a motion in limine "rests in the inherentpower of the court toadmitor exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties." Wallin, 519 P.2d at 1238. Feller claims the court ahused its discretion in denying the motion in 1i.minefor the following reasons. Dr. Ra:r's testimony did not tend to prove or disprove any of the elements of this case. Dr. Ray was not Feller's attending



## . . phys~clan. Dr. Ray was nothired by either theplaintiff or defendant as an independent expert. Dr. Ray's testimony would be hiqhly prejudicial and woul-cj.have no true value to the litigation. And, Dr. Ray only saw Feller for fifteel-r minutes on oneoccasion. The trial in this case dealt with two central issues. As the 6efendant admitted liability, the jury was charged wjth determining the e~te~t of Feller's i-njuries whichresulted from the accident and what compensation was reasonable and necessary to fully compensate her for the injuries sustained. Dr. Ray's testimony was presented for the purpose of impeaching the credibility of Feller and Dr. Asbury, her treating physician. Specifically, Dr. Ray's testimony contradicts their testimony regarding the extent of Feller's injury three days after the accident. InCooper, this Court examined a district court

### 's exclusion of testimony relating to a witness's credibility. Cooper, 756 P.2d at 1127-1128. There we examined 5 26-1-302,MCA,which provides that while

a witness is presumed to speak the truth, that presumption may be overcome "by any matter that has a tendency to disprove the truthfulness of a witness's testimony;" including "evidence contradi.cting the witness's testimony." Section 26-1-302(9),MCA. We also founzRule 401,M.R.Evid., provides that: "[rlelevant evidence may include evidence bearing upon the credibilityof awitness or declarant.

### " Credibility evidence, though relevant, "maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

# .." Rule 403, M.R.Evid. Cooper, 756 P.2d at 1128. As the jury is the exclusive judge of a witness's credibility, S 26-1-302, MCA, the district court is obliged to admit evidence bearing on that credibility. Cooper,756 P.2d at 1128. 

### - Dr. Ray's testimony in this case goes directly to the credj.bility of witnesses for the appellant. As such, his testimony is relevant. Rule 401, M.R.Evid. Further, his testimony is probative of the issuesbefore the courton the extent of Feller's injuries. We find that this testimony is not so unfairly prejudicial that it substantiallv outweighsits probativevalue. Rule 403,M.R.Evid.; Cooper, 756 P.2d at 1128. The record shows Feller herself solicited the additional medical examination after the accident. Her own physician testified that his examinations were routinely completed in 10-15 minutes. The fact that the examination failed to support her position is insufficient to exclude this testimony. We find theDistrict Court correctly allowed the introduction ofDr. Ray'sdeposition. Feller's second contention is that the District Court abused its discretion in denying her motion for a new trial. Feller's primary complaint on this issue is based upon her contention that the jury returned an inadequate damage award.. She maintains the award of $7,837.49 is contrary to all the evidencepresented at trial. Recently, this Court reviewed another district court's denial 

### of a motion for a new trial. Tope v. Taylor (Mont. 1988), 768 P.2d 845, 45 St.Rep. 2242. There we rej-terated that the decision to grant or deny a new trial iswithin the sound discretion of the trial court,and this Court will not overturn, absent a showing of manifest abuse of that discretion. Tope, 768 P.2d at 849-850, 45 St.Rep. at 2248, citing Walterv. Evans ProductsCo. (1983),207Mont. 26, 672 P.2d 613. "Thelower court's discretion to granta new trial for insufficiencv of the evidence is exhausted when it finds substantialevidence to support theverdict." Tope, 768P.2d at 850, 45 St.Rep. at 2248,citing Lindquistv. Moran (1983), 203Mont. 268, 662P.2d 281. We are also constrained toview the evidence in a light most favorable to the prevailing party at trial, when making our determination of whether the record supports the adequacy of an award. WaI.1-sv. Rue

(Mont. 1988), 759 P.2d 169, 171, 45 St.Rep. 1451, 1455, citing Lauman 17. Lee (Monk. 1981), 626 P.2d 830, 833, 41 St.Rep. 499,502.In the present case, the partiespresented conflicting medical testimony on the extent of Feller's injuries. This conflict of the evidence was alsopresent in the laywitness testimony. When facedwith a similar conflict.under similar

.c ,acts, this Court stated: Apparently the jury concluded that in certain medical aspects, testimony submittec? in behalf of the defendantwas more believable than that of the plaintiff. That was the function of the jury. As we review this evidence submitted onbehalf of the defendant, we concludet.hatit was clearly substantial. The evidence which supports the verdict was presented by a well-qualifiedmedical doct.or,who was adequate!-y examined and cross-examined to establish the contentionson the part of the defendant with regard to the nature of the injury and the degree of disability. We conclude that there clearly was substantial credible evidence to support theverdictof the jury.

Rrownby Rrown

### v. blarkve (1985),216Mont. 145, 140, 700P.2d

As in Brown, we conclude substantial credible evidence exists to support the verdict of the jury. Dr. Ray gave an opinionas to the extent of Feller's injuries after examining her history, noting her symptoms and complaints, performing

a 15-30 minute examination of her three days after the accident and viewing x-rays of her taken shortly after the accident. His opinion was that: Having gone over her x-rays and I see no abnormalities in t-he skull or cervical spine and I find no hard evidence of neurologic deficit. I do find evidence that the patient is exaggerating her symptomatology and that she is refusing tomove her neck and is claiming farmore than could be related to the rear-end motor vehicle accidert.The fact that she is receiving medications from three physicians, none of whom know what is being done by the other ones,and 

### Itoldher that Idid not want to get involved inhermedical care, end that she was evaluated only and no treatment was rendered. A copy of this is being sent to Dr. Asbury, whom the patient says is her primary treating physician.

Dr. Ray's testimony is supported by the video deposition testimony of Dr. Meyer that Feller was not suffering 6ue to injuries which he would attribute to the accident, hut rather to c?epression caused hy the extended medication prescribed by Dr. Asbury. Dr. Meyer examined Feller approximately 18 ncrt-hs after the accident when 

### Dr. Ashury referred Feller to him for aneurological examination. Additionally, Fox introduced the testimony of a private investiga.torwho observed Feller at work on two separate occasions shortly before the t.rial. Pis testimony conflicted with that of Fellerand others who testified onher abilities to complete certain physical tasks at work. Also, on cross-examinationof Feller at trial, Fox's attorney brought the jury's attention to a number of discrepancies between Feller's trial testimony and previous deposition testimony. Fox introduced sufficient credible evidence for the jury to conclude Feller's injuries were not as extensive as sheherselfclaimed. We find nomanifest abuse ofdiscretion



### on the part of the District Court indenying Feller'smotion foranew trial. Feller's final contention is that the District Court erred. in failing to give plairtiff's offered jury instructions,numbers 4 and 8. When examini.ngwhether or not certain jury instructions were properly given or refused,wemust consider the jury instructionsin their entirety,and in connectionwith the other inst.ructionsgiven and the evidence introduced at trial. Brothers v. Town of Virginia City (1976), 171 Mont. 352, 359, 558 P.2d 464, 468. Where the instructionspresented to t.hejury state the applicable law, "aparty cannot claim reversible error as to the giving or denying of certain instructions." Id., citing Franck v. 

### - Hudson (1962),140Mont. 480, 373 P.2d 951. Our review of the jury instructi.ons leads us to conclude that the instructions adequately covered the law applicable to the case. Feller's proposed instruction number 4, that proof may be based on subjective symptoms, was adequately covered in the court's instructions numbers 3, 5, 11, 15, a-nd18. Further,theDistrictCourt correctly found the proposed instructionhad no basis inMontana law ("i. e.

## , sources for the instruction were from California caseswith themost recent being 1963"). Feller's proposed instruction number 9 on loss of established course of life and expenses,
was offered without citing to any authority. Additionally, number 8 was adequately covered by the court's instructions numbers 10, 12, 13, 14, 15 and 16. FJe do not find reversibleerror from our review of the jury instructions. Finding that the testimony ofDr. Raywa.s properly admitted, that substantial credible evidenceexisted supporting the jury's lrerdict, and that the jury was adequately instructed on the applicable law,we affirm the District Court's denial of appellant's motion in limine and motion foranew trial. Affirmed.We concur: