Reese v. Stanton, 2015 MT 293 (Oct. 13, 2015) (Rice. J.) (5-0, aff’d & rev’d)
Issue: (1) Whether the district court abused its discretion in admitting into evidence opinions and reports of doctors who did not testify at trial; (2) whether the district court abused its discretion when it excluded evidence of the original charges billed by medical providers; and (3) whether the district court abused its discretion in striking portions of a video deposition as previously undisclosed expert opinion.
Short Answer: (1) yes, and the error affected the outcome of trial; (2) yes, as held in Meek; and (3) no.
Affirmed in part, reversed in part, and remanded for a new trial
Facts: In November 2009, while working for Montana Coffee Traders, Inc., Robin Reese was injured while riding in a van struck by a bus owned by Harlow’s School Bus Service. She filed a work comp claim, which was managed by Mary Jane Barrett, a nurse. After consulting a vocational rehab expert, and independent medical panel, and a psychiatrist, Barrett concluded Reese was under no work restrictions, and work comp discontinued payments to Reese.
Reese filed suit against Harlow’s in July 2012. The district court granted Reese partial summary judgment on liability, ordering causation and damages to go to trial. Reese retained Arrington, a vocational rehab expert, who opined that Reese could not return to her job and would have a permanent loss of earning capacity as a result of the accident. Arrington’s report stated she had reviewed the reports prepared for Reese’s work comp claim. At her deposition, Arrington stated she had relied on medical records, including the independent panel report and the psychiatrist’s report, in forming her opinion.
Before trial, Reese moved to exclude the work comp reports, arguing that unless the authors testified, the reports lacked foundation and were inadmissible hearsay. Harlow’s argued it was entitled to cross-examine Arrington on the reports because she had relied on them in forming her opinion. The district court denied Reese’s motion but stated the parties must stipulate to foundation or a foundation must be laid for each exhibit before it would be admitted into evidence.
During cross-exam of Harrington, Harlow’s read Wallette’s report aloud, stopping occasionally to confirm counsel was reading correctly. Harlow’s asked Arrington several times to confirm the independent panel report’s conclusion that Reese could return to her job. Harlow’s moved to admit Barrett’s report, Wallette’s report, and the independent panel’s report. Reese stipulated to the admission of the first two but the panel report was admitted over Reese’ objection.
The videotaped deposition of Dr. DuMontier, one of Reese’s treating physicians, was played for the jury. In his final report, Dr. DuMontier opined that Reese suffered a permanent injury from the accident. Reese’s expert disclosure said Dr. DuMontier would testify consistent with his final report. After Reese disclosed this, she provided Dr. DuMontier with additional medical records that pre-dated the accident. During the deposition, Reese questioned Dr. DuMontier on the additional medical records. Dr. DuMontier testified his opinion remained unchanged after reviewing the additional pre-accident medical records. Harlow’s objected to the testimony concerning the additional medical records on the basis it was undisclosed expert opinion, and renewed its objection at trial. The court sustained Harlow’s objection to the portion of the deposition where Dr. DuMontier addressed the additional medical records.
Procedural Posture & Holding: The jury returned a verdict for $59,500. Reese moved for a new trial, which was deemed denied, and appeals. The Supreme Court affirms in part, reverses in part, and remands for a new trial.
Reasoning: (1) Reese argues Harlow’s was allowed to put several expert opinions into the record without calling those experts to testify. The Court agrees. A party may cross-examine an expert about reports she relied on in forming her opinion for purposes of impeachment. Cross-examination must be limited to the “underlying facts or data” relied upon by the expert, and is not to be admitted as independent substantive evidence. While it is questionable whether extensive reading of the reports was allowable under Rule 705, it is undisputable that the panel’s report changed from impeachment evidence to substantive evidence when it was admitted into evidence. In essence, Harlow’s was able to submit the out-of-court opinions and report of the three doctors on the panel without qualification, not subject to cross-examination, and without foundation. The district court abused its discretion, and its error affected the outcome of the trial.
(2) Under Meek, evidence of the original charges for medical services is admissible to establish the reasonable value of medical service. Harlow’s is free to contest the reasonableness of those bills as a measure of damages.
(3) Reese argues the district court abused its discretion by striking portions of Dr. DuMontier’s deposition as undisclosed expert opinion because his causation opinion was unchanged by medical records he reviewed after the expert disclosure but before his deposition. The district court was within its discretion to exclude the testimony.