No. 85-215 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

SARAH GARZA, 

Plaintiff and Respondent, 

-vsDENISE S. PEPPARD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Richland, 

The Honorable WF-(%F=-M~+ , Judge presiding. 

H Obd-EF 

COUNSEL OF RECORD: 

For Appellant: 

McIntee & Whisenand; Bruce 0. Bekkedahl, Williston, 

North Dakota 

For Respondent: 

Phillip N. Carter, Sidney, Montana 

Submitted on Briefs: March 28, 1986 

Decided: July 15, 1986 

Filed: 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Denise S. Peppard, the defendant, appeals from a jury 

verdict and subsequent judgment for Sarah Garza, the 

plaintiff, entered in the Richland County District Court. 

She raises issues of whether the District Court improperly 

excluded medical evidence, whether she had a fair trial after 

the plaintiff's attorney questioned a prospective juror on 

his employment with an automobile insurance company, and 

whether the District Court erred in failing to rule on her 

motion for a new trial. We affirm. 

The defendant rear-ended a pick-up truck in which the 

plaintiff was a passenger in January 1981. In May 1982 the 

plaintiff filed an action against defendant for damages 

suffered as a result of the collision. Following trial, the 

jury returned a verdict in favor of defendant. The District 

Court, however, entered judgment notwithstanding the verdict 

for the plaintiff which was affirmed by this Court on appeal. 

Garza v. Peppard (Mont. 1984), 689 P.2d 279, 41 St.Rep. 1922. 

In that decision, this Court found no error in the District 

Court's action because the defendant was negligent as a 

matter of law for failing to keep a proper lookout. Garza, 

689 P.2d at 280, 41 St.Rep. at 1924. The case was remanded 

to the District Court for trial on the issues of proximate 

cause and damages. 

The second trial was held in February 1985. During 

voir dire, counsel for the plaintiff questioned a prospective 

juror, Henry J. Schepens, as follows: 

MR. CARTER: And are you still employed? 

MR SCHEPENS: No. I am retired. 
MR. CARTER: You are retired, and you 

used to be an insurance agent; were you 

not? 

MR. SCHEPENS: Right. 

MR. CARTER: You sold car insurance; 

didn't you? 

MR. SCHEPENS: Yes. 

MR. CARTER: Would that fact render your 

decision in this matter biased in any 

way? 

MR. SCHEPENS: It's possible. 

MR. CARTER: Could you explain that? 

MR. SCHEPENS: Well, I handled a lot of 

claims, you know, directly and 

indirectly, including whiplash, and so 

forth. 

MR. CARTER: Do you have a preconceived 

idea about the term "whiplash"? 

MR. SCHEPENS: I think I could tell you, 

yes, I have. 

this point, Mr. Carter' s request, counsel 

approached the bench and went into chambers. Defense counsel 

then objected and moved for a mistrial based on the improper 

mention of insurance. The District Court denied the motion 

and instructed the jury that this was a proper area of 

inquiry to determine possible bias or prejudice and to 

disregard any reference to insurance in all other respects. 

During the presentation of defendant's case, Dr. Ronald 

Wright, a chiropractor who treated the plaintiff, testified 

about her medical condition. Dr. Wright treated the 

plaintiff after purchasing a chiropractic practice from Dr. 

Richard Pokorny who had treated her previously. The 

plaintiff objected, on the basis of hearsay, to any evidence, 

testimony, or opinion by Dr. Wright utilizing Dr. Pokorny's 

records because Dr. Wright did not recall using Dr. Pokorny's 

records. She voiced her objection prior to Dr. Wright's 
testimony. In chambers, the District Court ruled that Dr. 

Wright's testimony would be limited to his own knowledge and 

that he could rely on Dr. Pokorny's records only to the 

extent he used them in examining and treating the plaintiff. 

The jury returned a verdict in favor of the plaintiff 

for $132,095.03. The defendant then filed a motion for a new 

trial. Although the parties briefed and argued this motion, 

the District Court did not have time to rule within the 45 

day time limit set out in Rule 59(d), M.R.Civ.P. 

On appeal, the defendant raises three issues: 

(1) Whether defendant received a fair trial after the 

plaintiff's attorney questioned a prospective juror on the 

juror's previous employment as an automobile insurance 

adjuster. 

(2) Whether the District Court erroneously excluded 

medica.1 evidence and testimony from Dr. Wright which relied 

on a prior treating chiropractor's records. 

(3) Whether the District Court erred in failing to 

rule on defendant's motion for a new trial. 

In the first issue, the defendant argues that she was 

prejudiced when the plaintiff's attorney asked a prospective 

juror about his employment with an automobile insurance 

company. She claims that the specific questions asked were 

unnecessary and that general introductory questions 

concerning possible bias or prejudice which did not mention 

insurance would have been adequate. In Borkoski v. Yost 

(1979), 182 Mont. 28, 594 P.2d 688, this Court discussed to 

what extent counsel could ask prospective jurors about their 

business relationship with insurance companies and reviewed 

Montana case law on the subject. Prior to 1973, the general 

rule was that questioning a prospective juror on investments 
in or business relations with insurance companies was 

prohibited. Borkoski, 182 Mont. at 34, 594 P.2d at 691. In 

1973, in Haynes v. County of Missoula (1973) , 163 Mont. 270, 

287-88, 517 P.2d 370, 380, this Court adopted a general rule 

that "if counsel acts in good faith, he may question 

prospective jurors on voir dire respecting their interest in, 

or connection with liability insurance companies." The 

rationale for this rule is to allow counsel to look for bias 

or prejudice on the part of a prospective juror enabling 

intelligent exercise of challenges and thus securing a fair 

and impartial jury. Haynes, 163 Mont. at 287-88, 517 P.2d at 

380. Here, counsel for plaintiff inquired about the 

prospective juror's former occupation without any suggestion 

that defendant had liability insurance. See Rule 411, 

M.R.Evid. He did not repeatedly inquire about insurance of 

each juror, a practice condemned in Avery v. City of Anaconda 

(1967), 149 Mont. 495, 428 P.2d 465. He used two brief 

questions to one prospective juror about his past work of 

selling insurance and then asked whether this would bias his 

decision. Such a limited inquiry serves the exact purpose of 

the general rule adopted in Haynes, supra. We hold that this 

brief questioning did not prejudice the defendant and did not 

prevent a fair trail. 

We question the timeliness of the defendant's 

objection, as well. Counsel made no objection at the time 

the questions were asked. Without proper objection, this 

Court will not find prejudicial error. Beeler v. Butte 

London Copper Development Co. (1910), 41 Mont. 465, 110 P. 

528. 

The defendant claims that the District Court 

erroneously excluded certain medical evidence and testimony 
as the second issue. When Dr. Wright testified, he stated 

the following: (1) he purchased Dr. Pokorny's practice and 

patient files which included plaintiff's file; (2) he treated 

plaintiff on June 5, 1981; (3) at that time she complained 

of headaches and neck and shoulder pain; (4) his records did 

not show that she ever complained of any lower back problem; 

(5) his treatment was only in the neck area; (6) if she had 

complained of a lower back injury he would have run tests to 

diagnose the problem prior to any treatment; and (7) based on 

the information he had available, she did not suffer lower 

back problems at the time he treated her. On 

cross-examination, Dr. Wright admitted he did not recall 

plaintiff specifically, his only session with her lasted 

10-15 minutes, he took no X-rays, she may have told him about 

other problems but he did not remember anything else, and 

that her upper back and neck injuries resulted from the 

collision. 

The defendant first argues that documents containing 

specific written information concerning treatment and 

statements of Dr. Pokorny with respect to diagnosis of the 

plaintiff could have been admitted. The questioned documents 

were brought to this Court's attention as part of an appendix 

to defendant's brief. They were never offered as exhibits at 

trial and thus are not in the record as refused exhibits. A 

review of the transcript shows no offer of proof to the 

District Court on what information the proposed exhibits 

contained. The Colorado Supreme Court discussed a similar 

problem in People In Interest of M.S.H. (Colo. 1983), 656 

P.2d 1294, where the appellant had not designated a tape as 

an exhibit, had not made an offer of proof, and stated he had 

not heard the tape so he did not know its contents. The tape 
was not part of the record on appeal. The Colorado court 

presumed the trial court's exclusion of the tape was correct 

because ll[b]ased on this record we are unable to evaluate the 

admissibility of the tape, and so cannot consider 

[appellant's] assertion that the trial court erred in ' 

excluding it from evidence." M.S.H., 656 P.2d at 1297. 

Similarly, this Court is unable to evaluate or rule on the 

admissibility of documents which were never offered into 

evidence or described in the record. 

In Farmers State Bank of Conrad v. Iverson (1973), 162 

Mont. 130, 509 P.2d 839, we condemned counsel for attaching 

extraneous material in appendices in an attempt to introduce 

evidence through the "back door." This Court will not 

consider such material on appeal and remind counsel again 

that such a practice will not be tolerated. 

Defendant's second argument in this issue is that the 

District Court improperly limited that part of Dr. Wright's 

testimony which was based on Dr. Pokornyls records. The 

plaintiff objected to this testimony claiming that because 

Dr. Wright did not specifically recall using Dr. Pokorny's 

records in treating the plaintiff, the records were 

excludable as hearsay and not within any hearsay exception. 

Rule 803 (4) , M.R.Evid. provides that: "Statements made for 

purposes of medical diagnosis or treatment and describing 

medical history, or past or present symptoms, pain, or 

sensations, or the inception or general character of the 

cause or external source thereof insofar as reasonably 

pertinent to diagnosis or treatment" are not excluded by the 

hearsay rule. Rule 703, M.R.Evid. allows an expert to 

testify based on facts or data not admissible in evidence if 

the data is reasonably relied on by experts when forming 
opinions or inferences on the subject. In Klaus v. Hilberry 

(1971), 157 Mont. 277, 485 P.2d 54, this Court allowed a 

doctor to testify from his case file which included reports 

and documents from another doctor. We noted that the 

situation presented was an exception to the hearsay rule. 

Here, Dr. Wright was continuing Dr. Pokorny's treatment of 

the plaintiff and utilized Dr. Pokorny's records in his case 

file. He stated that he would never treat Dr. Pokorny's 

patients without reviewing Dr. Pokorny's records. The 

foundation laid could place the excluded testimony within the 

hearsay exception, Rule 703, M.R.Evid., and the holding in 

Klaus, 157 Mont. at 286, 485 P.2d at 59. The District Court 

erred in excluding this testimony. 

Further, any error would have been harmless because the 

defendant was not prejudiced by the failure to allow this 

testimony. Where evidence has been improperly excluded, but 

goes to prove only facts established by other evidence, the 

ruling is harmless error. Wollaston v. Burlington Northern, 

Inc. (1980), 188 Mont. 192, 612 P.2d 1277. The excluded 

testimony, according to statements made by counsel in 

chambers, would have shown that Dr. Pokorny did not record 

any complaints from the plaintiff about lower back problems 

and did not treat the plaintiff ' s lower back. Presumably, 

the defendant would use this to argue that plaintiff did not 

complain about this problem, she would have complained if the 

problem existed in order to receive medical treatment, and 

therefore she did not suffer from lower back problems until 

after her visit to these chiropractors. At best, this is 

negative evidence with weak evidentiary value given possible 

explanations for the absence of a notation in Dr. Pokorny's 

records. In addition, Dr. Wright testified to this same 
information from his own records. Dr. Ise, an orthopedic 

surgeon, also testified that the medical records did not 

reflect a report of lower back problems until about 8-10 

months after the accident. This included the time during 

which Dr. Pokorny and Dr. Wright treated the plaintiff. The 

excluded evidence would not have provided any different 

information than the jury received through the other 

testimony and evidence. We hold that the exclusion of this 

testimony from Dr. Wright based on Dr. Pokorny's records was 

harmless error. 

The last issue the defendant raises concerns the 

District Court's failure to rule on her motion for a new 

trial. When the District Court failed to rule on the motion 

which raised the same issues as in this appeal, it was deemed 

denied under Rule 52 (c) , M. R.Civ.P. Since the District 

Court's judgment is correct, there was no error in failing to 

grant a new trial. 

The verdict and judgment of the District Court are 

affirmed. , /i 

/ 

fp;$&&n , 

Justice / 

We concur: /