NO. 92-131 IN THE SUPREMECOURTOFTHE STATE OFMONTANA 1992

OKCHAMASON,

Plaintiff and Appellant,
-vsJONW. DITZEL and EMPIRE SANDANDGRAVEL CO., INC.,

Defendants and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, The Honorable Maurice R. presiding. Colberg, Jr., Judge

COUNSELOFRECORD:

For Appellant: Thomas J. Lynaugh, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings, Montana For Respondents: James L. Jones, Dorsey &Whitney, Billings, Montana .i, Submitted on Briefs: September 24, 1992

Decided: November 24, 1992Justice John ConwayHarrison delivered the Opinion of the Court.

OkChaMasonappeals the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on aunanimous jury verdict in favor of respondents, Jon W.Ditzel and his employer, Empire SandandGravel Company, Inc. Masonbrought the action to
recover damages resulting from anautomobile accident in Billings
onSeptember 23, 1987. Respondents denied responsibility for the accident, andafter aseven-day trial in 1991the jury decided that the driver, Ditzel, had not been negligent. Weaffirm. Masonraises the following issues onappeal: 1. Did the District Court err in allowing Dr. Joseph Rich to testify asadefense witness? 2. Did the District Court err in denying Mason's motion for mistrial after an officer of Empire Sandand Gravel Company spoke with jurors during the trial? OkChaMason (Mason) wasborn in Korea in 1946. Shemet her husband, TedMason, while hewasanair traffic control specialist stationed in Seoul. They were married in Missoula, Montana, in 1973. From 1985, whenthe couple movedto Billings, until just before the accident, Masonworked as apart time bakery clerk. She
wasnot fluent in English andwastested in 1991at athird-grade reading level. At approximately 9:00 onthe morning of September 23, 1987, Masonwas driving her DodgeColt sedan south on Main Street, en route from her homein Billings Heights to adental appointment in Billings. Ditzel was driving his employer's Kenworth tractor2trailer truck, or "semi," southbound in an adjacent lane. It was

partly loaded, with an estimated gross vehicle weight of 35,000 to 40,000 pounds. Both vehicles were moving at approximately 35miles per hour. Main Street has three southbound lanes. Conflicting evidence
was presented as to whether Mason was driving in the curb lane or the center lane at the time of the accident, but in any case, Ditzel’s truck was at the left of Mason's car just before the collision. The truck and car collided, causing the car to skid
across the center and far left southbound lanes and hit the median. It then rolled over onto its top. Mason was taken by ambulance to
an emergency room, treated for injuries to her left hand and released the same day. Police testimony and photographs of the vehicles indicate that Mason's car was damaged only on the left side and top. The truck sustained minor damage to the left front bumper. Although Mason testified that the truck hit her car from behind, its rear bumper, tail lights, and trunk apparently were undamaged, though scratches appeared on the left rear quarter panel. Mason's expert witness attributed these scratches to the initial contact between truck and car, but the officer who wrote the accident report suggested that they represented damage done when the car rolled over onto the median. Mason told apolice officer, immediately after the accident, that she was driving in the curb lane when Ditzel's truck hit her
car. At the trial, however, she testified that she had been in the
3center lane, having changed lanes in front of McDonald's, nearly

two blocks north of the accident scene. Ditzel told officers at the scene that & had been driving in the center lane; this was corroborated by the driver of awrecker who had been travelling in the left or inside lane, passing Ditzel's truck just before it collided with Mason's car. When the officers arrived, shortly after the accident, Ditzel's truck was in the center lane at the end of parallel skid marks approximately 100 feet long. Mason's
car was lying on its top on the median to the left of the truck. Both drivers asserted that the other driver had caused the accident. Mason claimed that her car had first been hit from the rear, then pushed in front of the truck and hit again in the left side. Her theory, confirmed in part by astatement Ditzel made to
an insurance adjuster six months after the accident, was that Ditzel had been changing lanes from left to right when his truck rear-ended her car. Ditzel claimed at the trial that Mason pulled in front of him, apparently in the process of changing from the curb lane to the center lane, and that he never sawher car until it was on the left side of his truck. In his 1988 statement to the insurance adjuster, however, he said: Well, see I was changing lanes. I had myturn signal on and I was gonna change lanes and apparently she didn't see that or something. I don't know.

. . . I was changing to the righthand lane. The point of contention at the trial, then, was whether Ditzel
was changing lanes from left to right and in doing so ran into the
rear of Mason's car, or whether Mason was changing from the curb
4lane to the center lane andin doing sohit the right front bumper

of Ditzel's truck. Testimony onthis point is conflicting. At the trial, Mason said that she had movedfrom the curb lane to the center lane to avoid traffic going into McDonald's; then shesawthe truck behind her: Already he's coming, but I stay mylane. I keepgoing my center lane andthen I feel

. . .just boom.

. . . Then I turn left and just spin.

. . . I spin but he's not stop. Hejust comeandhit me: then I roll over upside down. In the telephone interview recorded by the insurance adjuster in April 1988, Ditzel stated that hehit Mason's car from behind: Interviewer: Andshe struck your vehicle? Ditzel: No. I hit her from behind. Interviewer: Whatpart of her vehicle washit? Ditzel: Well I

. . . I don't

. . . I guess right in the back end andshewas kind of at anangle. It spun her sideways.

. . . AndI hit her in the back. It spun her sideways and then she went sideways in front of the truck. I waspushing her downthe road. ThenI realized there wassomething in front of me, so I hit the brakes onthe truck cuz I couldn't seeher car cuz, youknow, it washidden downunder myhood. At the trial, however, Ditzel stated that heactually didn't know howthe accident hadhappened andthat muchof what hehadtold the insurance adjuster was "speculation." Heexplained: I said I wasgoing to change lanes. I didn't say I did change lanes.

. . . I don't knowwhat happened. I don't know where this lady camefrom, where she pulled out from, if shepulled out.

. . .Andfrom behind, I didn't meanI hit her.

. . . I thought shecameout at anangle and I thought I might have caught her in the back. DenmanLee, Mason's accident reconstruction expert, testified
5at the trial that hebelieved the accident occurred because Ditzel

was changing lanes and ran into the "back left rear bumper" of Mason's car. Leeexplained that Mason's car hada"shock absorber" built into the rear bumper, which U1flexedl' whenthe truck hit it andcaused the car to spring ahead of the truck at anangle. The scratches onthe left rear quarter panel, he said, occurred when the bumpercover movedforward asthe "shock absorber" flexed. Lee hadnot actually examined Mason's car, but hehadshownpictures of it to the Dodgedealer whoprovided aparts diagram of the rear bumper. Harry Towns, amechanical engineer whotestified asanexpert witness for the defense, challenged Lee's explanation. Hepointed out that if the truck had hit the left rear end or bumper of Mason's car, the car would have moved to the right, toward the curb, andnot to the left in front of the truck. Townsalso said that if the truck hadhit the rear endof the car, the rear bumper would have beendamaged. Towns' theory wasthat Mason caused the accident by changing lanes:Mrs. Masonwaspassing Mr. Ditzel onMr. Ditzel's righthandside. Sheovertook andwaspassing the truck. She pulled in front of the truck andattempted alane change, or started alane changetoo soon.
. . .Thecar actually ran into the truck. Her left rear door contacted the right side of the right front bumper of the truck.

. . . That pushed her car because her wheels were steered to the left.

. . . Her car went into aslight skid to the left. Mason's car had sustained adeep scratch onthe left rear door, which wasconsistent with Towns' theory. Towns also pointed out
6that Lee had obtained aparts diagram for the wrong model of Dodge,

and that the particular model that Mason had been driving did not have a "shock absorber" or "impact absorber" in its rear bumper. Thus, Towns testified, the scratches onthe left rear quarter panel could not have been caused by movement of the rear bumper cover because the 1986 Dodge Colt did not have that type of bumper. Towns testified onthe sixth day of the trial. Onthe seventh day, after final arguments, the jury received its instructions and retired for two hours of deliberation. Its verdict was reported in the following form: we, the jury in the above-entitled case, find the following special verdict onthe issues submitted to us: Question 1: Wasthe Defendant Jon W. Ditzel negligent? Answer: No. Because the jury found that Ditzel was not negligent, it did not
answer any of the questions about damages. I Did the District Court err in allowing Dr. Joseph Rich to testify as adefense witness? Mason first questions the propriety of the District Court's denial of her motion to exclude the testimony of Dr. Joseph Rich,
apsychiatrist. Although Dr. Rich's testimony ostensibly concerned damages, it was also relevant to Mason's credibility as awitness and will be considered here in that context. Trial had originally been set for October 28, 1991, and the parties had agreed that the respondents would disclose the identity of their expert witnesses and the subject matter of their expected
7testimony at least nine weeks in advance of that date, or before

August 26, 1991. OnOctober 7, 1991, the respondents notified Masonfor the first time that they intended to use Dr. Joseph Rich
asanexpert witness. Thenotice included athree-page report from Dr. Rich, summarizing his analysis of Mason's medical history and indicating a diagnosis of "somatoform pain disorder." Mason immediately movedto exclude Dr. Rich's testimony onthe grounds that she had not been given adequate notice in view of the fact that it offered a newtheory of the case and went far beyond a rebuttal of Mason's ownpsychiatric witness. The respondents countered by asserting that Mason had not responded adequately to their interrogatories in December 1990and that they were forced to discover most of her medical records themselves. As a result, the respondents argued, they had not known until September 1991 that psychiatric testimony would be important in determining damages. Masonpointed out in her reply, however, that she had identified her only psychiatric medical provider, Dr. Duncan Burford, in December 1990, and that the respondents hadoffered noreason for failing to depose Dr. Burford before September 1991. Masonhadconsulted Dr. Burford after the accident because shewashaving nightmares andwasafraid to drive. Dr. Burford diagnosed post-traumatic stress syndrome. OnOctober 18, 1991, Judge Maurice R. Colberg, Jr. postponed the trial until November 18, 1991. Hedenied Mason's motion to exclude Dr. Rich's testimony, reserving to Masonanyobjections her counsel might maketo the content of that testimony during the
8trial and indicating that the court would consider further motions

for acontinuance if Mason needed more time to prepare for trial. Judge Colberg explained in his Order that Mason's failure to make complete disclosure of past medical providers had "started a sequence of late discovery of medical information," which "to some degree led to the late disclosure of Dr. Rich as aproposed expert witness by defendants." Questions of admissibility of evidence are left to the sound discretion of the trial court, subject to review only in the case of manifest abuse. Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 86, 721 P.2d 303, 315. Further, the testimony and opinions of qualified experts are admissible whenever they will assist the jury in understanding evidence that is beyond the jury's experience. Wacker v. Park Rural Electric Cooperative, Inc. (1989), 239Mont. 500, 783 P.2d 360; Rule 702, M.R.Evid. Here, Dr. Rich, as Medical Director of Psychiatric Services at Billings Deaconess Hospital, was qualified as an expert for purposes of evaluating the post-traumatic stress disorder of which Mason complained. Because the trial was continued, Mason had ample time to depose Dr. Rich and prepare for cross-examination. Wehold that the District Court did not abuse its discretion in denying Mason's motion to exclude Dr. Rich's testimony. During the trial, Judge Colberg denied Mason's motion to limit Dr. Rich's testimony and overruled her objection to admission of her medical records. Although these actions did not rise to the level of error required for reversal, because "a reversal cannot be
9predicated upon an error in admission of evidence, where the

evidence in question wasnot of suchcharacter to haveaffected the result in the case," we feel that the circumstances require comment. Laumanv. Lee (1981), 192Mont. 84, 90, 626 P.2d 830, 834. Mason's Motion in Limine concerned her scores onaMinnesota Multiphasic Personality Inventory (MMPI) administered by Richard Agosto, a clinical psychologist hired by Mason. Dr. Agosto had interviewed Masonandreviewed her medical records in October 1991. OnNovember 7and8headministered anMMPI,aided byanassistant who read the 566 questions aloud to Mason. At the trial, Dr. Agosto testified that his primary diagnosis was post-traumatic stress disorder andthat hebelieved that Masonwasstill suffering from this disorder. On cross-examination, Dr. Agosto interpreted Mason's MMPI scores, indicating that Mason had scored at or above the 95th percentile (that is, higher than 95 percent of the total population) onsix scales, labelled asfollows:

Hypochondriasis Depression Hysteria Schizophrenia Paranoia Potential Drug or Alcohol Dependency Dr. Agosto explained onredirect examination that these terms were developed in 1940and no longer meanwhat they meant then (e.g., "schizophrenia" in the MMPIreflects "mental confusion andperhaps memory difficulties, concentration problems 'Ibut does not meanthat the person taking the test is schizophrenic). Heconcluded that 10the MMPI results were consistent with adiagnosis of post-traumatic

stress disorder and said that he had found no basis in Masons' record as awhole to indicate somatoform pain disorder. After Dr. Agosto testified, the respondents notified Mason that their psychiatrist, Dr. Rich, would testify on the following day to the effect that the results of the MMPIwere consistent with and supported his opinions concerning Mason. Mason immediately filed her Motion in Limine, seeking anorder that would prevent Dr. Rich from discussing the MMPI results in his testimony onNovember 26. She argued that she had not had adequate notice and would be unable to prepare for cross-examination. Judge Colberg denied the motion, based on his understanding that "the ultimate conclusion Dr. Rich is making in this case is the same as apparently he made in a deposition and apparently he made in a [pre-trial] report, although I don't have that information furnished." In his pretrial report, however, Dr. Rich stated, for example, "Mrs. Mason appears to have atendency towards exaggeration," and that she "has always experienced significant emotional problems." In contrast, he testified on the sixth day of the trial that his computer analysis of her MMPI responses showed that Mason "has significant hysterical features;" is l'immature, egocentric, and dependent;" and is "likely to have a long history of developing functional somatic complaints during periods of stress;" that "mild paranoid features are likely [with] potential for

. . .projecting blame and hostility onto others;" and that "substance abuse may be
aproblem.1'
11Although Dr. Rich stated that the MMPIresults were consistent

with the opinion hehadalready reached asto Mason's psychological condition, that is, that she had a long-term "somatization disorder" rather than post-traumatic stress disorder, his testimony expanded the definitions of Mason's scale scores and madethem directly relevant, not to any injuries that might havebeencaused bythe accident, but to her credibility asawitness. Thus, there is merit in Mason's argument, in her brief supporting her Motion in Limine, that newconclusions and opinions would emerge from Dr. Rich's testimony regarding her MMPIscores. The rest of Dr. Rich's testimony wasbased on his review of Mason's medical anddental records, dating back to 1977, andthe depositions of several of her doctors, including Dr. Burford, the psychiatrist. Despite Mason's objections, Judge Colberg admitted all of these records and depositions, representing approximately thirty-three medical or dental providers, as evidence. Dr. Rich read selections from these records to the jury during direct examination, emphasizing occasions onwhich the physician either had been unable to resolve her complaint or had prescribed tranquilizers and pain medication. He diagnosed l'somatization disorder" and suggested that with patients of this type, "once litigation hasbegun, it's extremely difficult to get really good, hard objective data out of apatient.

. . . [IIt's amatter of saving face." Masonhad objected before trial to admission of her medical records through the videotaped deposition testimony of Dr. Maurice
12Smith, aneurologist. In her brief in support of her Motion to

Exclude Medical Records, sheargued that Dr. Smith's reading of the records amounted to testimony lacking foundation and calling for hearsay and would expose the jury to irrelevant or prejudicial evidence. The court denied this motion on the grounds that Dr. Smith had reached aconclusion based onthe records, andoverruled Mason's objection at trial to Dr. Rich's reading of the same records. In the past wehave upheld admission of medical records when the testifying physician wasalso the attending physician whohad been responsible for the patient's care. Klaus v. Hillberry (1971)I 157 Mont. 277, 485 P.2d 54; Matter of G.S. (1985), 215 Mont. 384, 698 P.2d 406; Garza v. Peppard (1986), 222Mont. 244, 722P.2d 610; Palmer byDiacon v. Farmers Ins. Exchange (1988), 233 Mont. 515, 761 P.2d 401. In Garza -I we found that an attending physician's testimony based onanother doctor's records waswithin the hearsay exception in Rule 803(4), M.R.Evid., which provides that statements madefor purposes of medical diagnosis are excluded from the hearsay rule. Suchtestimony is also admissible under Rule 703, M.R.Evid., which allows an expert to testify based on inadmissible data if the data are of atype reasonably relied onby experts in that particular field in forming opinions on the subject. Here, Dr. Rich wasnot Mason's attending physician andin fact hadnever met her, muchless examined or treated her. His reading of her medical records therefore was not within the hearsay
13exception in Rule 803(4), M.R.Evid. Dr. Smith also wasnot Mason's

attending physician, though hedid examine her for approximately two hours. In both cases, however, the records were admissible under Rule 703, because Dr. Rich andDr. Smith were experts whohad followed the practice of medical experts in basing their opinions
on medical records. Matter of G.S., 698 P.2d at 409. Wehold, therefore, that the District Court did not abuse its discretion in allowing both doctors to read Mason's medical records aloud. Wewill not disturb ajury verdict whensubstantial, credible evidence exists to support that verdict. Palmer, 761P.2d at 404; Silvis v. Hobbs (1992), 251Mont. 407, 824 P.2d 1013. While the disputed testimony tended to confuse the issues andmayhave misled the jury, the police testimony and photographs alone provide sufficient evidence to support the jury's verdict. "In making our determination onsufficiency of the evidence, weare constrained to view the evidence in a light most favorable to the prevailing party." Gassv. Hilson (1990), 240Mont. 459, 462, 784 P.2d 931, 933. Further, where the record presents conflicting evidence, asit does here, and the jury resolves that conflict, this Court is precluded from disturbing the verdict. Lauman, 626 P.2d at 833. Here, the jury resolved conflicts between Mason's and Ditzel's versions of the accident, and between the parties' two accident reconstruction experts, in Ditzel's favor. Viewed in alight most favorable to the prevailing party, the evidence clearly supports that resolution and the jury's verdict. See Whiting v. State
14(1991), 248Mont. 207, 213, 810P.2d 1177, 1181 ("The credibility

and weight given to conflicting evidence is within the jury's province."). II Did the District Court err in denying Mason's motion for mistrial after an officer of Empire SandandGravel Company spoke with jurors during the trial? At the noon recess onNovember 22, 1991, the fifth day of the trial, Masonobserved Sandra Reiter, secretary-treasurer andoneof the owners of respondent Empire Sand and Gravel Company, Inc., talking with three jurors in the hall near the elevators. She heard Reiter say something like, "Isn't this incredible," to which
a juror responded "yesl' and laughed. Counsel met with Judge Colberg in chambers, and Mason's attorney moved for a mistrial. Still in chambers, without the lawyers, Judge Colberg questioned Mason, Reiter, andtwo of the three jurors involved. Reiter hadbeen sitting at the counsel table throughout the trial andhad been introduced to the jury during voir dire. She told Judge Colberg that the exchange in the hall had concerned a suspected rapist thought to beroaming the downtown Billings area. Thethree jurors hadbeendiscussing possible safety precautions in getting to the parking garage, Reiter said, andshehadcommented, "Yes, it's kind of incredible, isn't it? I just learned about it last night." Shealso told the judge that earlier in the trial she mayhave spoken to ajuror onthe wayto the garage, responding to
acommentabout the weather. Reiter identified two of the three jurors involved in the
15conversation about the rapist: Joanne Sheridan, whowasto bethe

jury foreman, andTanaHansen. Judge Colberg interviewed Sheridan in chambers. Sheconfirmed Reiter's impression of the noon recess conversation andadded that "If oneof ustalked to her, it wasa case of wewere talking andshe interjected." Sheridan hadstated in voir dire that shewasacquainted with Reiter in awork-related context, which mayexplain whyReiter was able to identify Sheridan as one of the jurors involved in the conversation. WhenJudge Colberg questioned Reiter as to the identity of the three jurors, she said, "Joanne Sheridan and I believe it wasMrs. Hansen and I'm not sure whothe rest of them [were]

." Judge Colberg interviewed another juror, Kay Burns, tentatively identified by Joanne Sheridan as having been in the group near the elevator. Burns remembered the conversation about the rapist but did not recall anyexchange with Reiter. In chambers with counsel, Judge Colberg summarized his interviews with Sheridan and Burns. Mason's attorney, Michael Eiselein, then moved for a mistrial on the grounds that the conversation in question "may have tended to establish some rapport" between Reiter andthe womenjurors, "whowere discussing
acommonconcern of women." JudgeColberg denied the motion, based
on his perception that any conversation that may have occurred between Reiter and the jurors consisted of a "general comment," unrelated to the trial, andonhis belief that the incident hadnot prejudiced the jurors. Masonrelies onPutro v. Baker (1966), 147Mont. 139, 410P.2d
16717, andState v. Eagan (1978), 178Mont. 67, 582 P.2d 1195, for

the proposition that any misconduct tending to injure aparty is presumed prejudicial, though the presumption maybe rebutted. In those cases werecognized a fundamental right to an unprejudiced jury and emphasized the importance of guarding jury trials from improper influences. Wealso said, however, that it is for the trial court to decide in each case whether prejudicial misconduct hasoccurred. Here, the fact that ajuror was acquainted with one of the parties wasrevealed during voir dire, but Masondid not challenge that juror. Whenthe same juror was later reported to have conversed with the party in question, the court immediately conducted athorough investigation of the incident. Basedonthe testimony of the juror andthe party, it found noevidence that the juror andthe party discussed the case andproperly denied Mason's motion for amistrial. SeeState v. Counts (1984), 209Mont. 242, 248, 679P.2d 1245, 1248 (any presumption of prejudice arising from the unusual circumstance of ajuror inviting aprincipal witness for lunch was overcome by the testimony of the juror and the witness prior to submission of the case to the jury): Turner v. Louisiana (1964), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (mistrial justified bycontinuous, intimate association throughout the trial, as opposed to a "brief encounter" between jurors and witnesses). Masonpoints out that Judge Colberg interviewed only two of the three jurors knownto have been involved in the exchange with
17Sandra Reiter and argues that the presumption of prejudice created

by the conversation was not overcome, due to this failure to interview the third juror, combined with the possibility of further contact between Reiter and juror Sheridan. Wefind this argument unpersuasive. The record does not indicate why Judge Colberq did not interview the third juror, but it does show that hewould have done so if asked. After Mason's attorney, Mr. Eiselein, moved for
amistrial, the following conversation took place: JUDGE COLBERG: okay, you've made your motion for a mistrial. And let meask you this. Is there any request that I make further investigation with the jurors -- the remaining jurors onthis panel in any way related to this issue? MR. EISELEIN: Your Honor, I'm satisfied with the record I've made. Mason's suggestion that further contact occurred between Reiter and Sheridan is based onReiter's statement, quoted above, that "Joanne Sheridan and I believe it was Mrs. Hansen.

. . .'I Mason concedes that if this statement does represent further contact, nothing is known about any conversation that took place. No evidence was offered to show that Reiter and Sheridan discussed the case or the trial. Wehave held that when the district court has considered a motion for mistrial, this Court will not lightly disturb its ruling. "To overthrow it this Court must beshown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court's ruling." Schmoyer v. Bourdeau (1966)‘ 148 Mont. 340, 343, 420 P.2d 316, 317-18. No such evidence has been produced here, and noprejudice to Mason has been established. The 18appearance of impropriety is not asufficient basis for reversal.

Counts, 679 P.2d at 1249. AFFIRMED. 

# We concur: /-=s---

19November 24,1992 CERTIFICATEOFSERVICE Ihereby certifythatthefollowingorderwassent byUnitedStates

mail,prepaid,tothefollowing named:
Thomas J.Lynaugh Lynaugh,Fitzgerald,

Eiselein &Eakin P.O.Box1729 Billings,MT 59103-1729 James L.Jones Dorsey&Whitney P.O.Box7188 Billings,MT 59103

EDSMITH CLERKOFTHESUPREME COURT