No. 92-209 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

LUCILLE P. YOUNG and 

LAURENCE G. YOUNG, 

Plaintiffs and Appellants, 

-vVEFW H. HORTON, M.D., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Edward P. McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Erik B. Thueson, Thueson Law Office, Helena, Montana 

For Respondent: 

E. Craig Daue, Garlington, Lohn & Robinson, 

Missoula, Montana 

submitted on Briefs: November 24, 1992 

Decided: June 10, 1993 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from a Fourth Judicial District Court, 

Missoula County, jury verdict in a medical malpractice action. 

There are several issues on appeal: 

Was there sufficient evidence to support the jury's 

verdict that Respondent Dr. Vern H. Horton (Horton) 

obtained informed consent for the surgery from Appellant 

Lucille Young (Young)? 

Were expert opinion and medical journal articles 

erroneously admitted on the issue of memory and 

credibility? 

Did the court abuse its discretion when it refused to 

allow the Appellants Lucille and Laurence Young (Youngs) 

to ask hypothetical questions about the law during voir 

dire? 

Were the parties affected by a recess of 5 days and one 

additional day later, during the trial and if so, was 

Appellants1 right to a fair trial prejudiced because of 

the recesses? 

Lucille Young began experiencing pain in her right leg after 

walking and when she asked her family doctor, Doctor Coriell about 

it, he determined that she was suffering from restriction of 

arterial circulation in the leg. He referred her to Horton for 

diagnosis and treatment of the problem. 

Horton scheduled an arteriogram for Young and when he obtained 

the results, prescribed surgery to alleviate the condition. Horton 
performed an aorto-bifemoral bypass on March 3, 1988 at Missoula 

Community Hospital. As a complication of the surgery, Young 

suffered a thrombosis of the anterior spinal artery, resulting in 

paraplegia. The complaint in this action was filed on February 26, 

1990. 

1. Informed Consent 

Youngs argue that there was insufficient evidence for the jury 

to conclude that Horton obtained informed consent. We cannot 

agree. 

This Court's function in reviewing jury verdicts is 

necessarily very limited. We must review the evidence in 

a light most favorable to the prevailing party to 

determine whether substantial evidence supports the 

jury's verdict. This Court cannot reweigh the evidence 

or disturb the findings of a jury unless that evidence is 

so inherently impossible or improbable as not to be 

entitled to belief. 

Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 

629, 636 (citations omitted). 

Horton testified that he advised Young of the risks of the 

surgery, such as death, lung damage, and problems with her heart or 

the graft or bleeding when he spoke with her and her husband, 

Laurence, on March 2, 1988 in her hospital room. Dr. Golding, one 

of Horton's medical experts, stated that Ifhis discussion...covers 

the significant risks of the operative procedure and would be the 

standard discussion that a surgeon would have with the patient 

prior to the surgery." Dr. Szilagyi, Horton's other medical 

expert, stated that 'I [a] ccording to the record, Dr. Horton informed 

the patient and her husband fully in complete accordance with what 

now is generally regarded as duty of the surgeon." 

3 
Although the Youngs dispute that there was ever any discussion 

about the risks of the operation, "when conflicting evidence 

exists, the credibility and weight given to the conflicting 

evidence is within the jury's pro~ince.'~ Whiting v. State (1991), 

248 Mont. 207, 213, 810 P.2d 1177, 1181. his Court will not 

overturn its determination by weighing conflicting evidence on 

appeal." Davis v. L.D.S. Church (l99O), 244 Mont. 61, 68, 796 P.2d 

The jury concluded that Horton obtained Young's informed 

consent before he performed the surgery. We conclude that there is 

substantial credible evidence to support the jury's verdict that 

Horton obtained Youngts consent prior to her surgery. 

2. Expert Opinion and Medical Journal Articles 

The scope of review for discretionary evidentiary rulings of 

the trial court, is whether there has been an abuse of discretion. 

Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 

The Youngs argue that the trial court improperly admitted four 

medical journal articles concluding that the majority of patients 

forget that they gave informed consent to their doctors prior to 

surgery. The Youngs contend these articles are improper for three 

reasons : 

a. The articles lack probative value and are unfairly 

prejudicial. 

b. The expert testifying regarding the articles did not 

give his conclusion to a degree of medical 

certainty. 

c. The respondent violated discovery rules. 

a. The Youngs state that f'the issue of credibility is supposed 

4 
to be decided by the jury--not by studies created by strangers 

which do not even fit the circumstances of the case." Respondent, 

however, contends that under Rule 702, M.R.Evid., expert testimony 

is permitted Itif scientific knowledge will assist the jury to 

understand the evidence to determine a fact in issue.Ir 

We conclude that the medical articles and the related 

testimony were admissible. The trial court ruled that the expert 

could testify and refer to the medical articles but they could not 

go before the jury as exhibits. Further, they could be referred to 

as accepted studies but the expert was not to testify as to whether 

Young was advised of the risks of surgery; that would be a question 

for the jury. 

vl[The] determination of relevancy and of the admissibility of 

evidence is within the discretion of the trial court. [W]e will 

not disturb the District Court's permission to admit the 

disputed ... testimony unless the court abused its discretion." 

Dahlin v. Holmquist (l988), 235 Mont. 17, 20, 766 P.2d 239,241. 

Here, the trial court carefully delineated what was admissible and 

what was inadmissible. The expert's testimony was based on four 

medical journal articles and his own experience as a doctor. He 

did not testify on "the workings of her mindtr nor did he comment as 

to whether Young had given informed consent. 

He did testify as to memory of a specific experience with 

which he had knowledge and used learned treatises as the basis of 

his testimony. Testimony by experts is admissible if scientific 

knowledge will assist the trier of fact to understand the evidence 
or to determine a fact in issue. Rule 702, ~.R.Evid. Here, the 

trial court determined that this medical doctor had knowledge and 

experience to testify as to the authoritativeness of the medical 

journal articles and could assist the jury with information about 

surgical patients and their memory of informed consent. He could 

testify as to the conclusions of the medical studies and of his own 

experience, but not as to the ultimate fact of whether Young gave 

Horton informed consent. Mahan v. Farmers union Cent. Exchange 

(1989), 235 Mont. 410, 421-422, 768 P.2d 850, 857. The trial court 

did not abuse its discretion in admitting the four medical journal 

articles and expert testimony as to his experience with the subject 

matter. 

b. The Youngs argue that the medical expert did not render a 

vconclusion to a reasonable degree of medical certainty that these 

studies or the expert's opinion on them applied to [Young] and her 

memory," The Youngs' objection came after Hortonfs attorney asked 

the expert if his experience in his own practice was consistent 

with a study in which most patients forgot the possible risks of 

the surgery the doctor discussed with them. The Youngst attorney 

stated, "1 would object, Your Honor, on the grounds that opinions 

have to be given with reasonable medical certainty." The doctor in 

this case was not asked to give an opinion, rather, to speak of his 

past experience. Under Rule 702, M.R.Evid., an expert may testify 

in the form of an opinion or otherwise. His answer here was 

acceptable in its form. 

c, The Youngs also argue that the medical articles were 
inadmissible because they were unfairly surprised and Horton 

violated discovery rules. They further contend that they made 

several attempts during discovery to obtain this information, but 

it was not until after the pretrial conference that the articles 

and the expert's opinion were revealed. 

The Pretrial Order, Part VI states that "[tlhe parties shall 

exchange on or before November 27, 1991 any learned treatises, 

medical journal articles, or similar documentary proof that they 

may wish to use during the case in chief of the trial." On 

November 27, 1991, respondent's attorney sent two letters to 

appellants' attorney by telecopy. The first letter contained a 

list of medical journal articles the respondent planned to rely on 

during his case in chief. The second letter contains information 

regarding the issues about which the medical expert, Dr. Golding, 

would testify. These letters were provided within the schedule set 

out in the pretrial order of November 20, 1991. 

In addition, Part 111, Defendant's contentions 8 in the 

pretrial order, states that: "[s]urgical patients have a wellrecognized tendency recall (sic) poorly the risks about which they 

were informed prior to the surgery. They tend to have greater 

recall of the information given to them before the surgery about 

the benefits of their operation. This contention provides 

sufficient notice that the memory of giving informed consent would 

be an issue for the respondent. The medical journal articles and 

the expert's testimony about patient recall about giving informed 

consent were properly admitted. 
3. Voir Dire 

The Youngs also argue that the trial court improperly 

restricted voir dire. They state that when their attorney 

attempted to ask the jurors whether they would follow the law on 

informed consent even if the surgery itself was technically 

correct, the trial court prevented them from asking any questions 

about the law at all, Horton counters that appellants had an 

opportunity to fully discuss the juryts duty to adhere to the law 

as the judge explains it. 

IfAbsent an abuse of discretion.. .the trial court has great 

latitude in controlling voir dire." Priest v. Taylor (1987), 227 

Mont. 370, 382, 740 P.2d 648, 655. (Citation omitted.) Upon 

review of the trial transcript, this Court concludes that the trial 

court did not abuse its discretion when it limited the Youngs1 

attorney's voir dire. 

The Youngsf attorney was able to question the panel generally 

as to whether they would follow the law as provided by the judge 

even if philosophically opposed. He later attempted to inquire as 

to whether the potential jurors would follow the particular law of 

informed consent. "The scope of questioning on voir dire is 

largely a matter of discretion for the trial judge who may set 

reasonable limits on the examination but should permit liberal and 

probing examination calculated to discover possible bias or 

prejudice, with due regard to the interests of fairness to both 

parties." Hill v. Turley (1985), 218 Mont. 521, 520, 710 P.2d 50, 

56. Here, the Youngst attorney had already elicited the assurance 
of the jurors that they would follow the law given by the judge 

even if they did not agree with the law. Anything more would be 

cumulative and the trial court properly exercised its discretion to 

move the voir dire process along. 

4. Recess during Trial 

Finally, the Youngs contend that their right to a fair trial 

was jeopardized by the interruptions during the course of the 

trial. The parties were given the trial schedule, including the 

two scheduled recesses at the pretrial conference on November 20, 

1991. The trial started on December 2, continued on December 3, 

then a break was taken until December 9. The trial then continued 

on December 10, recessed again on December 11 and concluded on 

December 12. 

We conclude that the trial court did not abuse its discretion 

in conducting the trial as scheduled. The Youngs' attorney did not 

object to the schedule at the pretrial conference nor did any 

jurors complain of problems due to the schedule. The Youngs 

presented no evidence of outside influences affecting the jury. 

When the court recessed on December 3, they were admonished 

not to discuss the case among themselves or anyone else. On 

December 10, before the trial was recessed until December 12, the 

court stated: 

The instruction I have been giving about not talking to 

anyone about this case becomes particularly important at this 

time. It is necessary that you retain an open mind and not 

form any opinion prior to this matter being submitted to you 

for your deliberations. In order to do that, we have to 

insure that you not discuss this case amongst yourselves or 

with anyone else, and that includes family members, prior to 

the matter being submitted to you for your deliberations. 
Any statements by appellants that they were prejudiced by the 

recesses is speculation. The trial court did not abuse its 

discretion when it recessed for other court matters. 

AFFIRMED. 

We Concur: 
Justice William E. Hunt, Sr., specially concurring. 

I concur with the majority's decision upholding the verdict of 

the jury relating to the issue of informed consent. While 

conscious of the province of the jury in determining the facts, I 

must comment upon what the jury found to be "informed consent." 

The discussion took place in a stressful atmosphere which 

would not enable someone to be in the best frame of mind to give 

informed consent. Dr. Horton visited Mrs. Young the night before 

the operation. He explained the risks of the surgery in a couple 

of sentences. He did not provide her with any further explanation 

of the risks of the surgery, nor did he inform her of any 

alternative treatments that were available. Mrs. Young testified 

that she was frightened the day before the operation. Mrs. 

Young's surgery was merely an elective procedure. At the time of 

the conversation, the surgical team was placed together and bills 

for the surgery were already being generated. 

Two doctors testified as expert witnesses for Dr. Horton 

stating that the explanation of the risks was adequate. Mrs. Young 

was unable to offer expert testimony to rebut those experts. 

Because she could not do so, the jury was left with no choice but 

to reach the verdict that it did. For this reason, I reluctantly 

concur with the decision of this Court.