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 JohnM. McCarvel, Judgepresiding.

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:JusticeR. 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 impeachthe juryverdict throughaffidavits? 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. OtLeyarwent 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. OtLeyarto Dr. Baldridqe, a Great Falls dermatologist,who referred her back to Dr. Callender. Dr. Callender ultimately performed laser surgery on Ms.OILeyarto remove areas of HS infection. Thenight before surgery,

as instructedby 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. OILeyarhad 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, Callenderlschief expert, was not allowed to give testimony concerning nerve damage affecting the sphincter muscle. Upon Callenderlscounsel asking the following question, OILeyar's counsel objected: ItIfthe testimonywas 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. Davishad previously stated that Itthesphinctermuscle is a very complex system,which I have not studied in a long time, so, I am sorry, I 

### am incompetent in that area." Callenderiscounsel argued that the question was permissiblebecause he was actually asking questions about thepudendal nerve, which servicesthe sphinctermuscle. Thecourt,however,concluded Dr. Davis was incompetent in this area by his own admission and could not testify in that particular area. Callenderrscounsel requested tomake an offer of proof and thiswas done in chambers. Was Dr. Davis incompetent to testify regarding the sphincter muscle? Even though Dr. Davismay deal with the pudendal nerve in his work, he was asked to talk about the nerve in its relation to the sphinctermuscle. 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 thediagnosisand 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." Goodnoughv. State (1982),199Mont. 9,18,647 P.2d 364, 369. We conclude the trial court did not abuse its discretion.
TT Did the trial court err in admitting photographs of the pathology slides? Pathologist,Dr. Dachs,made slides of the tissue removed fromMs. O'Leyar shortly after the laser procedure and issued a pathology report concerning the tissue slides. At a later date, MS. O'Leyartsattorney contacted Dr. Dachs and asked him to review the slides for thepresence of nerve fibers ormuscle 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 andphotographs of the slidesduring thedeposition 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'scounsel stated that hemade 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 impeachhim forhaving a slightlydifferent opinionwhenhe 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 whenhegave his opinion duringhis deposition. Callender's counsel was amenable to this and no further objectionwas heard. However, by Callender's counsel's own admission, the photoswere known and available to him within at least 15 days before trial. According to thepretrial 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 Callenderlscounsel a week to prepare copies of thephotographs, thepictureswould have been available to the defense 15 days before trial and within the calendar scheduled in the pretrial order. I11 Did the court allow impropervoir dire? Ms. OILeyar'scounsel discussed Ms. O'Leyar's HS condition, herpast 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,hedescribed the complicationsof the surgeryand her current lifeas a result of those complications. These are the salient facts that form thebasis forMs. OrLeyar'saction against Dr. Callender. The judge concluded that thisvoir dire was within acceptable limits. 

### "Ithas long been held in this state and other jurisdictions that a trial judgehaswide discretion in conducting voir dire." Statev. Poncelet (l98O), 187Mont. 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 wasoperating on Ms. OILeyar'sHS 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 thedoctorhad hispatient's consentto removeher 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 commentsmade by the trial court? Rule 103(a)(1) 

### , M.R.Evid.

### , states that 'I.

# ..Errormay not be predicated upon a rulingwhich admits or excludes evidence unless

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

### is one admitting evidence,a timely objection ormotion 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. Callenderrssurgery for the HS. Dr. Davisasked ifhe 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 toput 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 andpresentingevidencesoasto...( 2)avoid needless consumption of time." It iswithin the judge'sdiscretion 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.

### " Statev. 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..

## .." TheCommission Comments on therule 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." (Emphasisadded.)Further commentstoRule 611,M.R.Ev~~., suggestthatthe order of trial is a matter of discretion for the court, and has been sinceR.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 reexaminethedefendant immediately afteran adverseexaminationby the plaintiff. The defendantwas 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 courtmay use itsdiscretion to rearrange the order of the trial. In fact,Callenderwas called thevery 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 courtproperly instruct the jury? Callender argues that the "mere fact 

### of injuryu instruction should havebeen given to the jurybecause therewas 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 appropriateMontana law andwere 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 negligencewas a proximate cause of plaintifflsdamage.

(4)The amount ofmoney 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 expectingthejury tobelieve 

### thatthe injurymust 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." Thisinstruction 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'sperformance met the accepted standards of skill and care



# . . ." The instructions given were sufficient. VII May Callender impeach the jury verdict through affidavits? Rule 606 concernsthe competencyof juroraswitness 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 jurorto assent or dissent fromtheverdict or indictment or concerning the juror'smental 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 kindbe received as toanymatter 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 influencewas 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. Callendercontends thatthe jury considered extraneousmatters during itsdeliberations and therefore,thecase should be remandedfor a new trial. We disagree with Callender. Rule 606(b) contemplates that a juror may 

### not testify upon matters occurring during the jury'sdeliberationsor anythingupon 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: commentsby 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 thoughtprocesses of the jurorsduring 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.) Onthe 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: