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Cottrell v. Burlington Northern11/2/1993
e her testimony and the letter she had offered on the grounds that she was not identified as an expert in a timely fashion, she was not qualified to express the opinions included in her letter, and her references to opinions by other health care providers were inadmissible hearsay. Her testimony, and the letter she authored, were also excluded by the District Court.
Additional facts, where relevant, will be discussed in relation to the various issues raised by defendant on appeal.
I.
Did the District Court commit reversible error when it excluded the opinion of Neil Meyer, M.D., regarding apportionment of plaintiff's damage between the incident which was the subject of this complaint and prior injuries?
We have held that issues concerning the admissibility of evidence are within the discretion of the district court. Cooper v. Rosston (1988), 232 Mont. 186, 190, 756 P.2d 1125, 1127. "The trial court is vested with great latitude in ruling on the admissibility of expert testimony." (Emphasis added). Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 332, 684 P.2d 1041, 1048. When discussing the standard of review from a district court's ruling on the qualifications of an expert to express an opinion, we have held that:
We set forth the standard that the determination of the qualification and competency of expert witnesses rests largely within the trial judge, and without a showing of an abuse of discretion, such determination will not be disturbed.
Foreman v. Minnie (1984), 211 Mont. 441, 445, 689 P.2d 1210, 1212.
Our review of the District Court's exercise of its discretion when it excluded the testimony of Dr. Neil Meyer must begin with Rule 702, M.R.Evid., which sets forth the criteria for admission of expert opinions. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Implicit in Rule 702 is the requirement that before a District Court allows a witness designated as an expert to express an opinion, some foundation must be laid to show that the expert has special training or education and adequate knowledge on which to base an opinion.
In this case, Cottrell did not question Dr. Meyer's qualifications as a neurosurgeon. He challenged whether Dr. Meyer had sufficient factual information which would enable him to express an opinion apportioning Cottrell's current symptoms and disability between two injuries which occurred nine years apart.
During Dr. Meyer's deposition, he acknowledged that the amount of damage to a person's back can vary depending on the forces applied to the back. He also agreed that the forces can depend on the amount of weight being lifted and the posture in which the lifting takes place. He testified that after surgical treatment of a herniated disc, reherniation occurs in only five to ten percent of patients, and the likelihood of reherniation depends in part on the kind of stress placed on the area of original injury .
However, in spite of these admissions, Dr. Meyer testified that he had never examined Cottrell, he had never met nor talked to him, and had never read his deposition testimony. Neither had he ever talked to Cottrell's treating physicians, nor read any of their testimony. He was aware that Cottrell had returned to work in 1982 following successful treatment of his original back injury, but was unaware of either the type of work he had
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