IN THE SUPREME COURT OF THE STATE OF MONTANA 

NANCY A. FELLER, 

Plaintiff and Appellant, 

-VSJAKE FOX, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Rarz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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 

Submitted on Briefs: March 2, 1989 

Decided: April 25, 1989 

0 
Mr. 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 law we affirm the rulings of the 

District Court. 

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 vehicle was rear-ended by a 

vehicle driven by the respondent, Jake Fox (Fox). Feller was 

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 the neck area and severe, disabling headaches. 

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 30 minutes, Dr. Ray found Feller's symptoms were 

exaggerated. As she was already being treated by several 

other physicians, Dr. Ray declined to treat her and forwarded 

a copy of his findings to her regular physician. 
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'mony was read into the record. The jury 

returned a verdict in favor of Feller in the amount of 

$7,837.49. Feller filed a motion for a new trial pursuant to 

§ 25-11-102 (I), (2), (6) ,(7), MCA, alleging irregularity in the 

proceedings, misconduct of the jury, insufficiency of the 

evidence to justify the verdict, that the verdict was against 

law, and error in law occurring at trial. The court denied. 

the motion for a new trial after finding that the motion 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 

appeals and presents the following issues for review: 

(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 a new trial? 

(3) Did the Distrj-ct Court. 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, 184 Mont. 522, 604 P.2d 

97. The district court's decision in such evidentiary 

matters will be subject to review only in cases of manifest 

abuse of that discretion. 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 inherent power of the court to admit or 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.mine for 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 not hired by either the plaintiff 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 one occasion. 

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 which 
resulted from the accident and what compensation was 

reasonable and necessary to fully compensate her for the 

in juries 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. In Cooper, 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 founz Rule 401, M.R.Evid., 

provides that: 

"[rlelevant evidence may include evidence 

bearing upon the credibility of a witness 

or declarant. " Credibility evidence, 

though relevant, "may be 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 issues before the court on the 

extent of Feller's injuries. We find that this testimony is 

not so unfairly prejudicial that it substantiallv outweighs 
its probative value. 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 the District Court correctly allowed 

the introduction of Dr. Ray's deposition. 

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 

evidence presented 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 is within 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 Walter v. Evans Products Co. (1983), 207 Mont. 26, 672 

P.2d 613. "The lower court's discretion to grant a new trial 

for insufficiencv of the evidence is exhausted when it finds 

substantial evidence to support the verdict." Tope, 768 P.2d 

at 850, 45 St.Rep. at 2248, citing Lindquist v. Moran (1983), 

203 Mont. 268, 662 P.2d 281. We are also constrained to view 

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-s v. 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 parties presented conflicting 

medical testimony on the extent of Feller's injuries. This 

conflict of the evidence was also present in the lay witness 

testimony. When faced with 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 defendant was 

more believable than that of the 

plaintiff. That was the function of the 

jury. As we review this evidence 

submitted on behalf of the defendant, we 

conclude t.hat it was clearly substantial. 

The evidence which supports the verdict 

was presented by a well-qualified medical 

doct.or, who was adequate!-y examined and 

cross-examined to establish the 

contentions on 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 

the verdict of the jury. 

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

As in Brown, we conclude substantial credible evidence 

exists to support the verdict of the jury. Dr. Ray gave an 

opinion as 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 

to move her neck and is claiming far more 

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 I told her that I did not 

want to get involved in her medical 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 a neurological examination. 

Additionally, Fox introduced the testimony of a private 

investiga.tor who observed Feller at work on two separate 

occasions shortly before the t.rial. Pis testimony conflicted 

with that of Feller and others who testified on her abilities 

to complete certain physical tasks at work. Also, on 

cross-examination of 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 

she herself claimed. We find no manifest abuse of discretion 

on the part of the District Court in denying Feller's motion 

for a new 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.ng whether or not 

certain jury instructions were properly given or refused, we 
must consider the jury instructions in their entirety, and in 

connection with the other inst.ructions given and the evidence 

introduced at trial. Brothers v. Town of Virginia City 

(1976), 171 Mont. 352, 359, 558 P.2d 464, 468. Where the 

instructions presented to t.he jury state the applicable law, 

"a party cannot claim reversible error as to the giving or 

denying of certain instructions." - Id., citing Franck v. 

Hudson (1962), 140 Mont. 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-nd 18. Further, the District Court correctly found 

the proposed instruction had no basis in Montana law ("i. e. , 

sources for the instruction were from California cases with 

the most 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 reversible error from our review of the 

jury instructions. Finding that the testimony of Dr. Ray wa.s 

properly admitted, that substantial credible evidence existed 

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 for a new trial. 

Affirmed. 
We concur: