No. 90-605 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

LYLE D. THOMSEN, 

Plaintiff and Appellant, 

-vsJUN 15 3992 

STATE OF MONTANA, acting by and through 

its DEPARTMENT OF HIGHWAYS, LA 3LitL 

CLERK OF SUPSEWE COUR-, 

Defendants and Respondents. STATE OF MONTANA 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Donald R. Murray; Murphy, Robinson, Heckathorn & 

Phillips, Kalispell, Montana 

For Respondent: 

Betsy Brandborg, Special Assistant Attorney General, 

Risk Management & Tort Defense Division, Helena, 

Montana 

Filed: 

Submitted on Briefs: March 26, 1992 

Decided: June 15, 1992 

.. , .d 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Plaintiff appeals from the judgment entered in the District 

Court, Eleventh Judicial District, Flathead County, holding that 

the State of Montana was not liable for the injuries to the 

plaintiff. We affirm in part and reverse in part. 

The issues on appeal are: 

1. Whether the District Court erred in limiting testimony of 

the plaintiff's accident reconstruction expert. 

2. Whether the District Court erred in permitting defense 

counsel to question witnesses regarding the availability of medical 

and rehabilitation services by the Veterans Administration, in 

light of the order in limine prohibiting collateral source 

evidence. 

On February 5, 1980, Lyle Thomsen was driving from Whitefish 

to Kalispell. Thomsen entered a section known as the LaSalle Road, 

which was under construction. After traveling southbound on the 

road for approximately one-half mile, Thomsen1s vehicle began to 

leave the road, so that the right tires were about three feet right 

of the fog line or edge line. The ditch adjoining the road had 

flooded and frozen. At that point, the right tires were riding on 

the ice. The ice gave way, and as Thomsen attempted to regain the 

road, his vehicle went into a 180 degree spin, crossed the 

centerline, and was struck from behind by an oncoming vehicle. 

Thomsen suffered multiple injuries, including permanent brain 

injury . 
On January 28, 1983, Thomsen filed suit against the State of 

Montana, Flathead County, and McIntyre construction Company--the 

company in charge of the highway reconstruction. Flathead County 

was subsequently granted summary judgment on April 13, 1990. Trial 

commenced on June 14, 1990. The jury returned a special verdict, 

finding that (1) McIntyre Construction was not negligent; and 

(2) that the State of Montana was negligent, but that its 

negligence did not cause plaintiff's damages. Thomsen appeals from 

that judgment. 

Thomsen asserts that the District Court erred in handling the 

testimony of his accident reconstruction expert. Thomsen maintains 

that the expert, a physics professor at Montana State University, 

was precluded from explaining fundamental laws of physics, and was 

not allowed to give his opinion on the angle of the tires on 

Thomsen's vehicle at the time they broke through the ice. The 

scope of expert testimony and the trial court's role in regulating 

it is governed by Rule 702 of the Montana Rules of Evidence. Rule 

702 provides: 

If scientific, technical, or other specialized 

knowledge will assist the trier of fact to understand the 

evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, 

training, or education may testify thereto in the form of 

an opinion or otherwise. 

This Court has stated that the trial court is granted wide 

discretion in determining whether to admit expert testimony. 

Simonson v. White (1986), 220 Mont. 14, 713 P.2d 983. Further, the 
court may, in its discretion, limit the scope of expert testimony. 

Lindberg v. Leatham Bros., Inc. (1985), 215 Mont. 11, 693 P.2d 1234. 

~ccordingly, we find no error in the court's determination 

regarding these aspects of the expert testimony. 

Thomsen further asserts that his expert was prevented from 

testifying to standards contained in the ~merican ~ssociation of 

State Highway Transportation Officials' manual, entitled Hishway 

~esisn and Operational Practices Related to Hishway Safetv, despite 

the fact that compliance with "current AASHTO manuals1' was a 

requirement of the construction contract between the State and 

McIntyre. However, the record discloses that plaintiff was unable 

to provide foundation for introduction of the manual, due to 

questions about whether it was in effect at the time of the 

accident. After a subsequent offer of proof, the court ruled that 

the expert could be recalled to lay additional foundation. 

plaintiff failed to recall his expert witness. Therefore, the 

District Court did not abuse its discretion by rejecting the 

offered evidence. 

Thomsen next contends that the court erred in allowing 

questions concerning collateral sources, in direct contravention of 

plaintiff's motion in limine. In spite of the motion and 

subsequent objection, three separate witnesses were allowed to 

respond to questions regarding the availability of medical and 

rehabilitation services by the Veterans Administration. Thomsen 

claims that the main thrust of the questioning was to suggest to 

the jury that insurance coverage existed, and that any probative 

4 
value was clearly outweighed by the possibility of unfair 

prejudice . 

We agree with the plaintiff. Plaintiff's motion in limine, 

granted before commencement of trial, sought to exclude, among 

other things, any testimony, evidence, or comment that any 

remuneration was received by Mr. Thomsen from a collateral source, 

or that he may have had medical insurance. When counsel for 

McIntyre Construction first delved into the matter of VA benefits, 

Thomsen objected. On three separate occasions, the court allowed 

the questioning which established the availability of VA benefits. 

Courts have long recognized the strong likelihood of prejudice 

resulting from the introduction of collateral source evidence. 

Montana recognized the doctrine in Goggansv. Winkley (1972), 159 Mont. 

85, 92, 495 P.2d 594, 598, wherein this Court stated that 

w[i]njection of collateral matters involving transactions between 

others . . . is collateral inadmissable evidence under the 

collateral source doctrine." 

Other courts have further expounded on the doctrine. In Hrnjak 

v. Graymar, Inc. (Cal. 1971), 484 P.2d 599, 604, the California Supreme 

Court stated: 

The potentially prejudicial impact of evidence that 

a personal injury plaintiff received collateral insurance 

payments varies little from case to case. Even with 

cautionary instructions, there is substantial danger that 

the jurors will take the evidence into account in 

assessing the damages to be awarded to an injured 

plaintiff. Thus, introduction of the evidence on a 

limited admissibility theory creates the danger of 

circumventing the salutary policies underlying the 

collateral source rule. Admission despite such ominous 
potential should be permitted only upon such persuasive 

showing that the evidence sought to be introduced is of 

substantial probative value. 

The Alaska Supreme Court has recognized the doctrine's 

importance to a greater extent. In Tolan v. ERA Helicopters, Inc. (Alaska 

1985), 699 P.2d 1265, 1267, the court stated: 

[The doctrine] also has an evidentiary role, excluding 

evidence of other compensation on the theory that such 

evidence would affect the jury's judgment unfavorably to 

the plaintiff on the issues of liabilitv and damages. 

[~mphasis added.] 

Defendants contend that the evidence was harmless because the 

jury found that the State's negligence was not the proximate cause 

of plaintiff's damages. As the court in Tolan stated, introduction 

of collateral source evidence may be much more damaging to a 

plaintiff's case than just affecting the jury's judgment regarding 

damages. We agree with the Tolan court's recognition that such 

evidence can have an impact upon a jury's verdict on the issue of 

liability, as well as damages. We conclude that the District Court 

erred in allowing the admission of collateral source evidence, and 

that such error is reversible. 

Accordingly, the judgment in favor of the State of Montana is 

reversed and this cause remanded for a new trial consistent with 

this opinion. 
We concur: