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O'leyar v. Callender12/1/1992
, 49 St.Rep. 1008
Submitted on Briefs August 27, 1992.
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. O'Leyar) 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. O'Leyar 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. O'Leyar to Dr. Baldridge, a Great Falls dermatologist, who referred her back to Dr. Callender.
Dr. Callender ultimately performed laser surgery on Ms. O'Leyar to remove areas of HS infection. The night before surgery, as instructed by Dr. Callender, 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. O'Leyar marked or a larger area. The surgery was conducted and thereafter, Ms. O'Leyar had severe complications, resulting in anal stenosis and fecal incontinence.
I
Did the trial court err in disallowing expert opinion testimony by Dr. Davis?
Dr. Davis, Callender's chief expert, was not allowed to give testimony concerning nerve damage affecting the sphincter muscle. Upon Callender's counsel asking the following question, O'Leyar's counsel objected: "If 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?" O'Leyar's counsel requested voir dire to establish a foundation for Davis to testify concerning the sphincter muscle. O'Leyar contended that because of Davis' earlier deposition statement, he was incompetent to testify regarding the sphincter muscle. Dr. Davis had previously stated that "the 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."
Callender's 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. Callender's 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. " he party presenting a witness as an expert must establish, to the satisfaction of the trial court, that the w
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