No. 92-191 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

DEBRA 0' LEYAR, 

Plaintiff and Respondent, 

-vsAPPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bruce R. Toole: )hn T. Dyre; Crowley, Haughe: 

Hanson, Toole & Dietrich; Billings, Montana 

For Respondent: 

John C. Hoyt; Alexander Blewett, 111; Hoyt 

Blewett; Great Falls, Montana 

Submitted on Briefs: August 27, 1992 

Decided: December 1, 1992 

Filed: 
Justice R. C. McDonough delivered the Opinion of the Court. 

This is an appeal from an Eighth Judicial District Court, 

Cascade County jury trial award of $2,000,000 in a medical 

malpractice action. We affirm. 

There are several issues on appeal: 

1. Did the trial court err in disallowing expert opinion 

testimony by Dr. Davis? 

2. Did the trial court err in admitting the photographs of 

the pathology slides? 

3. Was there improper jury voir dire? 

4. Were improper comments made by the trial court? 

5. Did the trial court err regarding the direct examination 

of Dr. Callender? 

6. Did the trial court properly instruct the jury? 

7. May Callender impeach the jury verdict through affidavits? 

Debra O'Leyar (Ms. OtLeyar) is a woman with Hidradenitis 

Suppurativa (HS), a disease of the apocrine glands. HS results in 

abscesses and boils which can be quite uncomfortable or painful. 

When Ms. OtLeyar went to her gynecologist, Dr. Dennis Callender 

(Dr. Callender), in July of 1988 for her regular yearly checkup, 

she was suffering from the symptoms of HS. Dr. Callender noticed 

an HS lesion and the two discussed treatment for the outbreak of 

HS. Dr. Callender referred Ms. OtLeyar to Dr. Baldridqe, a Great 

Falls dermatologist, who referred her back to Dr. Callender. 

Dr. Callender ultimately performed laser surgery on Ms. 
OILeyar to remove areas of HS infection. The night before surgery, 

as instructed by DK. Callendex, Ms. O'Leyar used a magic marker to 

mark the places in her groin area where she could feel HS. There 

was a dispute concerning whether Dr. Callender excised the area 

that Ms. OILeyar marked or a larger area. The surqery was 

conducted and thereafter, Ms. OILeyar had severe complications, 

resulting in anal stenosis and fecal incontinence. 

I 

Did the trial court err in disallowing expert opinion 

testimony by Dr. ~avis? 

Dr. Davis, Callenderls chief expert, was not allowed to give 

testimony concerning nerve damage affecting the sphincter muscle. 

Upon Callenderls counsel asking the following question, OILeyar's 

counsel objected: ItIf the testimony was that Dr. Callender injured 

nerve fibers, and that the injury of these nerve fibers rendered 

the entire surface of the nerve--service of the nerve to the 

sphincter muscle making it dysfunctional, would you agree or 

disagree?" OILeyarls counsel requested voir dire to establish a 

foundation for Davis to testify concerning the sphincter muscle. 

OILeyar contended that because of Davis1 earlier deposition 

statement, he was incompetent to testify regarding the sphincter 

muscle. Dr. Davis had previously stated that Itthe sphincter muscle 

is a very complex system, which I have not studied in a long time, 

so, I am sorry, I am incompetent in that area." 

Callenderis counsel argued that the question was permissible 
because he was actually asking questions about the pudendal nerve, 

which services the sphincter muscle. The court, however, concluded 

Dr. Davis was incompetent in this area by his own admission and 

could not testify in that particular area. Callenderrs counsel 

requested to make an offer of proof and this was done in chambers. 

Was Dr. Davis incompetent to testify regarding the sphincter 

muscle? Even though Dr. Davis may deal with the pudendal nerve in 

his work, he was asked to talk about the nerve in its relation to 

the sphincter muscle. Dr. Davis specifically stated that he was 

incompetent to testify concerning the sphincter muscle. "[Tlhe 

party presenting a witness as an expert must establish, to the 

satisfaction of the trial court, that the witness possesses the 

requisite knowledge, skill, experience, training, and education to 

testify as to the diagnosis and treatment in question ...." Glover 

v. Ballhagen (1988), 232 Mont. 427, 430, 756 P.2d 1166, 1168. 

"[Tlhe determination of the qualification of a skilled or expert 

witness is a matter largely within the discretion of the trial 

judge and, in the absence of a showing of abuse, ordinarily will 

not be disturbed." Goodnough v. State (1982), 199 Mont. 9, 18, 647 

P.2d 364, 369. We conclude the trial court did not abuse its 

discretion. 

T T 

Did the trial court err in admitting photographs of the 

pathology slides? 

Pathologist, Dr. Dachs, made slides of the tissue removed from 
Ms. O'Leyar shortly after the laser procedure and issued a 

pathology report concerning the tissue slides. At a later date, 

MS. O'Leyarts attorney contacted Dr. Dachs and asked him to review 

the slides for the presence of nerve fibers or muscle bundle. Dr. 

Dachs viewed the slides again and reported to Ms. O'Leyar's 

counsel, via a letter, stating that he had seen nerve fibers and 

muscle bundles in the slides. Ms. O'Leyar's counsel asked Dr. 

Dachs to take photographs of the slides for use at trial. 

Callender's counsel states that he learned about the letter 

and photographs of the slides during the deposition of Dr. Scott on 

October 21, 1991. Ms. OILeyar's use of those photographs became an 

issue in chambers during the course of the trial. During this 

recess in chambers, Callender's counsel stated that he made copies 

of the photographs within a few days to a week of Dr. Scott's 

deposition and sent them to Dr. Davis. The court responded to 

counsel s statement by saying "that ' s 3 weeks. Callender ' s 

counsel responded "I am not complaining about that, I am 

complaining about Zander's attack on him (Davis) and trying to 

impeach him for having a slightly different opinion when he did his 

deposition, because the slides weren't available and that's not 

fair. The court concluded that Callender's counsel could 

rehabilitate Dr. Davis by explaining that he did not have the 

slides when he gave his opinion during his deposition. Callender's 

counsel was amenable to this and no further objection was heard. 

However, by Callender's counsel's own admission, the photos 
were known and available to him within at least 15 days before 

trial. According to the pretrial order, dated August 6, 1991, the 

trial was rescheduled and all discovery was to "be completed 15 

days prior to the trial." Even if it took Callenderls counsel a 

week to prepare copies of the photographs, the pictures would have 

been available to the defense 15 days before trial and within the 

calendar scheduled in the pretrial order. 

I11 

Did the court allow improper voir dire? 

Ms. OILeyar's counsel discussed Ms. O'Leyar's HS condition, 

her past successful treatment of that condition and Dr. Callender's 

treatment of the HS by using laser surgery. He also related that 

Dr. Callender had never before used laser surgery for this type of 

procedure. Also, he described the complications of the surgery and 

her current life as a result of those complications. These are the 

salient facts that form the basis for Ms. OrLeyar's action against 

Dr. Callender. The judge concluded that this voir dire was within 

acceptable limits. "It has long been held in this state and other 

jurisdictions that a trial judge has wide discretion in conducting 

voir dire." State v. Poncelet (l98O), 187 Mont. 528, 541, 610 P. 2d 

698, 706. 

Callender also contends that it was prejudicial for Ms. 

O'Leyar's counsel to relate to the jury that the judge had 

previously granted summary judgment on the issue of consent to 

remove Ms. O'Leyar's hemorrhoid tags. (When Dr. Callender was 
operating on Ms. OILeyar's HS areas, he removed hemorrhoid tags 

near her anus as a llcourtesy.ll) This information streamlined the 

issues for the jury and made them aware that they did not have to 

consider whether the doctor had his patient's consent to remove her 

hemorrhoid tags - this issue had been previously decided. We 

conclude the trial judge did not err in his handling of the voir 

dire. 

IV 

Were improper comments made by the trial court? 

Rule 103 (a) (1) , M. R. Evid. , states that 'I. . .Error may not be 

predicated upon a ruling which admits or excludes evidence unless 

a substantial right of the party is affected, and (1) ...[ i]n case 

the ruling is one admitting evidence, a timely objection or motion 

to strike appears of record, stating the specific ground of 

objection, if the specific ground was not apparent from the 

context. . . . In this case, there was only one objection to a 

comment made by the judge. 

This objection was made to a comment which occurred during 

cross examination of Dr. Davis. Dr. Davis was asked his opinion 

concerning the depth of Dr. Callenderrs surgery for the HS. Dr. 

Davis asked if he could use the slides to answer the question. The 

court replied, "Just answer the question. " Callender s counsel 

then stated, "We object to that, Your Honor. Counsel made no 

attempt to explain the objection or to put the judge on notice that 

his comments might be reviewed on appeal. 
Furthermore, Rule 611 (a) (2), M.R.Evid., states " . . . [t] he 

court shall exercise reasonable control over the mode and order of 

interrogating witnesses and presenting evidence so as to ...( 2)avoid 

needless consumption of time." It is within the judge's discretion 

to adjust the tempo and flow of the proceedings. 

v 

Did the trial court err regarding the direct examination of 

Dr. Callender? 

Although Callender's attorney argues that it was error to 

preclude examination of Dr. Callender by his attorney directly 

after he was examined as an adverse witness by Ms. OtLeyar's 

attorney, he made no objection to the court's action at the time. 

"This Court has made it clear that where a defendant does not 

object at trial to the remarks and conduct of the trial judge, the 

issue will not be considered upon appeal. " State v. Martin (1987) , 

226 Mont. 463, 467, 736 P.2d 477, 480. 

Furthermore, Rule 611, M.R.Evid., states that " [tlhe court 

shall exercise reasonable control over the mode and order of 

interrogating witnesses and presenting evidence so as to . . . (1) 

make the interrogation and presentation effective for the 

ascertainment of the truth, (2) avoid needless consumption of 

time.. . ." The Commission Comments on the rule state that "order of 

presentation refers to the alteration of the normal order of 

presentation of evidence by the parties at the discretion of the 

court." (Emphasis added.) 
Further comments to Rule 611, M.R.Ev~~., suggest that the order 

of trial is a matter of discretion for the court, and has been 

since R.C.M. 93-1901-9 and cases interpreting the statutes. Wyant 

v. Dunn (1962), 140 Mont. 181, 368 P.2d 917, remains as viable 

today as it did when it was written. 

In Wvant, the Court concluded that the trial court did not 

abuse its discretion when it denied the defendant the right to 

reexamine the defendant immediately after an adverse examination by 

the plaintiff. The defendant was called by his counsel later that 

day and he was examined fully as to his examination as an adverse 

witness. Wyant, 368 P.2d at 920-921. 

The trial court may use its discretion to rearrange the order 

of the trial. In fact, Callender was called the very next day and 

was given a full opportunity to provide testimony and evidence to 

support his case as well as to counter the plaintiff's case. 

VI 

Did the trial court properly instruct the jury? 

Callender argues that the "mere fact of injuryu instruction 

should have been given to the jury because there was no instruction 

given to prevent the jurors from believing "that because the 

injuries were so severe, there must have been negligence." Ms. 

O'Leyar counters that the instructions provided still made her 

prove that Callender "violated the standard of care described in 

these instructions or that he failed to obtain informed consent" 

and that these instructions set forth appropriate Montana law and 
were not objected to at trial. 

We conclude that the jury instructions were properly given. 

Instruction 11 states I1[p}laintiff contends that through his 

failure to provide proper care in operating on plaintiff, that 

defendant was negligent, and this negligence caused her damages. 

In this regard, plaintiff has the burden or proving: 

(1) That the defendant was negligent. 

(2) That the plaintiff was injured. 

(3) That defendant's negligence was a proximate cause 

of plaintiffls damage. 

(4) The amount of money that will compensate the plaintiff 

for her damage. 

This instruction informs the jury that if the defendant fails to 

provide "proper care1' to the plaintiff, then he has been 

negligent. It establishes a threshold over which the plaintiff's 

proof must pass before the doctor is considered "negligent." This 

threshold is clearly more than presenting a severe injury and 

expecting the jury to believe that the injury must be the result of 

negligence merely because of its severity. The plaintiff must 

prove that the doctor did not provide "proper care." 

Instruction 13 provides: I1[i]t is the doctor's duty to use 

that skill and learning as ordinarily used in like cases by other 

doctors practicing in that same specialty and who hold the same 

national board certification, at the time the services were 

provided. The violation of this duty is negligence." This 
instruction also supports the argument that the defendant is not 

negligent unless he fails to give proper care and uses skills 

comparable to other doctors in good standing. 

Instruction 17 advises the jury that the proper test for 

determining negligence in a doctor's actions is "whether the 

doctor's performance met the accepted standards of skill and care 

. . ." The instructions given were sufficient. 

VII 

May Callender impeach the jury verdict through affidavits? 

Rule 606 concerns the competency of juror as witness and is at 

issue here. Rule 606 (b), M.R.Evid. provides: 

(b) Inquiry into validity of verdict or indictment. 

Upon an inquiry into the validity of a verdict or 

indictment, a juror may not testify as to any matter or 

statement occurring during the course of the jury's 

deliberations or to the effect of anything upon that or 

any other juror's mind or emotions as influencing the 

juror to assent or dissent from the verdict or indictment 

or concerning the juror's mental processes in connection 

therewith. Nor may a juror's affidavit or evidence of 

any statement by the juror concerning a matter about 

which the juror would be precluded from testifying be 

received for these purposes. 

However, as an exception to this subdivision, a 

juror may testify and an affidavit or evidence of any 

kind be received as to any matter or statement concerning 

only the following questions, whether occurring during 

the course of the jury's deliberations or not: (1) 

whether extraneous prejudicial information was improperly 

brought to the jury's attention; or (2) whether any 

outside influence was brought to bear upon any juror; or 

(3) whether any juror has been induced to assent to any 

general or special verdict, or finding on any question 

submitted to them by the court, by a resort to the 

determination of chance. 

Callender contends that the jury considered extraneous matters 

during its deliberations and therefore, the case should be remanded 
for a new trial. We disagree with Callender. 

Rule 606(b) contemplates that a juror may not testify upon 

matters occurring during the jury's deliberations or anything upon 

his or other juror's minds, emotions or mental processes that is 

connected with reaching a decision on the verdict. The rule is 

concerned with extraneous information brought to the attention of 

the jury. Examples of extraneous information include: comments by 

the bailiff, telephoning a relative for information, and visiting 

the scene of an accident. See Henrichs v. Todd (1990), 245 Mont. 

286, 800 P.2d 710; Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 

P.2d 316; Goff v. Kinzle (1966), 148 Mont. 61, 417 P.2d 105. 

However, in this case, we are not concerned with extraneous 

information - there is no allegation that someone outside of the 

jurors discussed jury issues with the jurors. What the defendant 

wants this Court to consider are the internal mechanisms of the 

jurors1 decision making process. This is improper according to 

Rule 606(b), M.R.Evid., which does not allow juror testimony 

regarding the thought processes of the jurors during deliberation. 

lflnternaln processes are out of the reach of juror affidavits 

which impeach the jury verdict. As we stated in Harry v. Elderkin 

(1981), 196 Mont. 1, 8, 637 P.2d 809, 813, "[wlhere external 

influence is exerted on the jury or where extraneous prejudicial 

information is brought to the jury's attention, juror affidavits 

can be the basis for overturning the judgment if either party was 

thereby deprived of a fair trial. . . . (Citations omitted.) On 
the other hand, juror affidavits may not be used to impeach the 

verdict based upon internal influences on the jury, such as a 

mistake of evidence or misapprehension of the law." (Emphasis 

added.) AFFIRMED. 

We Concur: