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Dahlin v. Holmquist11/29/1988
e error affects the substantial rights of a party. See, State v Fitzpatrick (1980), 186 Mont. 187, 205, 606 P.2d 1343, 1353, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118. The facts in this case indicate that the court's erroneous ruling to admit all Dr. Lovitt's testimony did substantially prejudice the jury and affect plaintiff's right to a fair trial. One portion of the secondary gain testimony was so prejudicial that the District Court ruled to strike it from the record and then admonished the jury to disregard it. Yet the jury had already heard this highly prejudicial testimony and other irrelevant testimony of secondary gain because of the court's erroneous denial of plaintiff's prior motion in limine. It is irrelevant which party at trial read the prejudicial testimony to the jury, in view of the court's erroneous ruling. In this case, as in Kuiper v. Goodyear Tire (1983), 207 Mont. 37, 673 P.2d 1208, the failure of the trial court to exclude such evidence prejudicial to the defendant permitted the jury "to indulge in improper speculation and guesswork." Kuiper, 673 at 1217. The failure to exclude all secondary gain testimony constituted error of sufficient magnitude to warrant a new trial. Consequently, the District Court erred in denying plaintiff's motion for a mistrial
We need not address the second and third issues, having held the plaintiff is entitled to a new trial under the first issue We admonish both parties, however, to refrain from any mention of insurance upon retrial
Reversed and remanded for a new trial
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, WEBER, HUNT and McDONOUGH concur
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