Pumphrey v. Empire Lath and Plaster

No. 05-323

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 99

LISA BROTHERTON PUMPHREY,

Plaintiff and Respondent,

v.

EMPIRE LATH AND PLASTER, a

Montana Corporation, and RICK LEE PAGITT,

Defendants and Appellants.

APPEAL FROM: The District Court of the Thirteenth Judicial District,

In and For the County Yellowstone, Cause No. DV 03-1186,

Honorable Russell C. Fagg, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Randy J. Cox and Matthew B. Hayhurst, Boone Karlberg P.C.,

Missoula, Montana

For Respondent:

Elizabeth A. Halverson, Elizabeth A. Halverson, P.C.,

Billings, Montana

Submitted on Briefs: February 8, 2006

Decided: May 9, 2006

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Lisa Pumphrey (Pumphrey) sued Rick Lee Pagitt and Empire Lath and Plaster

(collectively, Empire) for negligence. A jury awarded Pumphrey $3.9 million. Empire

now appeals. We affirm.

¶2 The dispositive issues on appeal are:

¶3 (1) whether the District Court erred in denying Empire’s motion for an

independent medical examination pursuant to Rule 35, M.R.Civ.P.; and

¶4 (2) whether the District Court had authority to reconvene and re-poll the jury after

discharging the jurors.

FACTUAL AND PROCEDURAL BACKGROUND

¶5 This cause of action arose out of an automobile accident, wherein Pagitt, while in

the course of his employment for Empire, negligently drove a pickup truck into the rear

end of Pumphrey’s stopped SUV. The collision propelled Pumphrey’s SUV into the

vehicle of her then-fiancé, Sean Pumphrey. The collision totaled all three vehicles and

injured Pumphrey.

¶6 Pumphrey suffered injury to her neck and back and was later diagnosed with two

herniated discs and dislocated ribs. A doctor testified that Pumphrey would likely endure

life-long pain due to her injuries. Witnesses testified that the chronic pain that Pumphrey

suffered ultimately caused her to withdraw from law school and has prevented her from

pursuing gainful employment. Additionally, according to her own testimony and that of

her doctors, Pumphrey cannot even exercise, let alone participate in the recreational

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activities—backpacking, kayaking, mountain biking, and running—that she had so

enjoyed before the accident.

¶7 In January 2004, Empire admitted that Pagitt negligently caused the accident.

Therefore, as Empire acknowledges on appeal, “[t]he central issues at trial were causation

and damages.” Indeed, Empire identified only three issues of fact in the pre-trial order:

the degree of severity and permanency of Pumphrey’s injuries; whether the accident

caused Pumphrey’s present injuries; and the proper measure of damages.

¶8 On May 7, 2004, the court filed a scheduling order, setting a trial date of January

3, 2005. The court set October 11, 2004, as the deadline for disclosing experts, pursuant

to Rule 26(b)(4)(A)(i), M.R.Civ.P. The court set October 25, 2004, as the deadline for

disclosing rebuttal experts and November 8, 2004, as the close of discovery. The

scheduling order provided that these deadlines “may be modified upon mutual

agreement of the parties, in writing.”

¶9 On October 8, 2004, in accordance with the scheduling order, Pumphrey filed

expert disclosures with the court. Pumphrey identified six potential expert witnesses and,

in accordance with Rule 26(b)(4)(A)(i), MCA, specified the subject matter on which each

would testify, the substance of the facts and opinions to which each would testify, and

provided the bases for such opinions.

¶10 Meanwhile, on October 6, 2004, Empire’s counsel sent a letter to Pumphrey’s

counsel, requesting that Pumphrey submit to an independent medical examination (IME)

by Dr. John Taylor, a neurologist. Pumphrey’s counsel refused the following day, at

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which point Empire had four days remaining to disclose Dr. Taylor as an expert, or

eighteen days within which to disclose him as a rebuttal expert. Empire did neither. On

October 28, 2004, Empire moved the court to order Pumphrey to submit to an IME as

well as to extend the deadline for disclosure of rebuttal experts so that Empire could

properly disclose the anticipated testimony of Dr. Taylor, following his examination of

Pumphrey. In its motion, Empire noted that “the entire case may ultimately turn on two

issues: (1) the severity and extent of [Pumphrey’s] claimed injuries; and (2) whether her

claimed injuries were, in fact, actually caused by the accident at issue.”

¶11 By the deadline for disclosing rebuttal experts, Empire had not formally disclosed

Dr. Taylor as an expert witness pursuant to Rule 26(b)(4), M.R.Civ.P. Consequently, the

court denied Empire’s motion for an IME and extension of the disclosure deadline, noting

that Empire failed to provide sufficient justification for its failure to meet the scheduling

deadline and that Pumphrey would suffer hardship if forced to prepare a response to the

IME shortly before trial. The court indicated that “the main reason for the court-imposed

deadlines” is preventing the difficulties inherent in coordinating an IME at the last

minute. Although Empire argued that Pumphrey’s counsel “led [Empire] to believe that

an IME would be permitted,” and that the deadline for an IME would be extended, the

court noted that Empire did not point to any writing evincing that purported inclination.

¶12 After a two and a half day trial, the jury returned a verdict in favor of Lisa

Pumphrey, awarding her $3.9 million in special damages. After the court announced the

verdict, counsel for Empire requested that the court poll the jury, pursuant to § 25-7-501,

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MCA. The clerk then reread the verdict and addressed each juror in turn. The clerk

asked each of the first two jurors, “is that your verdict, [Jane Doe]?” As to the remaining

nine jurors, the clerk simply read their names. According to the poll, eleven jurors agreed

to the verdict and only one disagreed. The judge then discharged the jurors, informing

them:

now you can talk to anybody you wish about the case and you can tell them

anything you wish about the case. The attorneys or their representatives

might contact you and it is fine for you to talk to them, and in fact, you can

talk to them about things you discussed. . . . Again I want to thank you

very much for your time and work in this case. . . . Court is in recess.

¶13 A short while after the jury had been discharged and several jurors had left the

courtroom, some jurors told the bailiff that they had misunderstood the polling question.

Their confusion stemmed from the clerk’s use of the ambiguous possessive pronoun

“your.” According to the foreperson, some of the jurors thought that they were being

asked whether the verdict, as read in court, correctly reflected the verdict that the entire

jury had reached, rather than whether they personally agreed with the verdict. The court

then reconvened and reassembled ten of the jurors for the purpose of re-polling them.

Two jurors had already left the premises. Counsel for Pumphrey quarreled with the court

over the legality of this procedure, observing that the defendants had not objected to the

initial polling process and that in the absence of any objection, “[i]t was my

understanding that the jury was dismissed and that the record was closed as far as the trial

is concerned.” Nevertheless, the court reassembled the remaining jurors and, at the

suggestion of Empire’s attorney, proposed immediately re-polling the ten jurors who

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were present. With respect to the court’s suggestion to proceed with re-polling in this

particular manner—immediately re-polling ten of the twelve jurors—Pumphrey’s counsel

expressed no objection. The re-polling resulted in six persons voicing agreement with the

verdict and four voicing disagreement with the verdict.

¶14 The following day, the court reconvened to re-poll the two absconding jurors. At

the outset of the proceedings, counsel for Pumphrey “[i]n an abundance of caution . . .

reiterate[d her] objection on the record.” She noted that “[t]he correct and valid verdict

was entered in this case yesterday. At the Defendant’s request, the jury was polled, the

verdict was affirmed, and therefore the verdict was complete. This Court then

appropriately discharged the jury. . . . [T]hese proceedings are unnecessary and contrary

to law.” Counsel for Empire indicated that he had shared an elevator with these two

individuals following the discharge of the jury and “did engage both jurors in a brief

conversation” about the damages calculation in the case. Counsel later characterized this

interaction as “a several minute conversation [that] constituted substantial interaction

between counsel and jury members . . . before the re-polling took place.” Nevertheless,

the two were re-polled, and one of them agreed with the verdict and the other disagreed,

bringing the total tally in the second poll to seven jurors in agreement and five in

disagreement with the verdict.

¶15 The court then decided to re-poll the jury once more. The court re-assembled all

twelve jurors and, over objection from both parties, re-polled them. Nine expressed

agreement with the verdict and only three expressed disagreement. The court accepted

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this as a valid poll of the jury, denied Empire’s subsequent motion for a new trial and

entered judgment in favor of Pumphrey for $3.9 million.

STANDARDS OF REVIEW

¶16 We employ an abuse of discretion standard when reviewing a district court’s

ruling on a request for an IME, pursuant to Rule 35, M.R.Civ.P., Henricksen v. State,

2004 MT 20, ¶ 51, 319 Mont. 307, ¶ 51, 84 P.3d 38, ¶ 51, and when reviewing the

sanction a district court imposes for violation of a scheduling order, McKenzie v. Scheeler

(1997), 285 Mont. 500, 507, 949 P.2d 1168, 1172. “A court abuses its discretion if it acts

arbitrarily without employment of conscientious judgment or exceed[s] the bounds of

reason resulting in substantial injustice.” McDermott v. Carie, 2005 MT 293, ¶ 10, 329

Mont. 295, ¶ 10, 124 P.3d 168, ¶ 10 (quotations omitted, alteration in original).

¶17 We review a district court’s conclusions of law to determine whether the district

court’s interpretation of the law is correct. Chase v. Bearpaw Ranch Ass’n, 2006 MT 67,

¶ 14 331 Mont. 421, ¶ 14, __ P.3d __, ¶ 14. Whether a discharged jury retains authority

to revisit, alter or amend its verdict is a question of law.

¶18 We review a district court’s denial of a motion for a new trial for a manifest abuse

of discretion. Bailey v. Beartooth Communications Co., 2004 MT 128, ¶ 10, 321 Mont.

305, ¶ 10, 92 P.3d 1, ¶ 10.

DISCUSSION

Issue 1: Whether the District Court erred in denying Empire’s motion for an

independent medical examination pursuant to Rule 35, M.R.Civ.P.

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¶19 Empire argues that the central issues at trial were causation and damages,

specifically the extent and severity of Pumphrey’s injuries and whether they resulted

from the collision with Pagitt. Empire notes that Pumphrey placed her physical condition

in controversy; therefore, Rule 35, M.R.Civ.P., provides that Empire may conduct an

IME. Empire contends that its request for an IME, submitted prior to the close of

discovery, was timely and proper under Henricksen. Finally, Empire maintains that it

informally requested an IME and informally identified Dr. Taylor as the expert who

would perform the IME before the deadline for expert disclosure.

¶20 Pumphrey argues that the District Court properly exercised its broad discretion in

enforcing the scheduling order. Pumphrey notes that Empire agreed to the scheduling

order in May 2004. Pumphrey distinguishes Henricksen because there the State timely

disclosed its expert. Finally, Pumphrey suggests that Dr. Taylor, an undisclosed expert,

could not have testified at trial, so there was no reason for him to perform an IME.

¶21 Empire sought to have Dr. Taylor perform a neurological examination of

Pumphrey. Given that the sole issues at trial were causation and damages, we presume

that Dr. Taylor would have focused on these issues. It is beyond cavil that a witness who

performs a neurological examination and testifies concerning the results thereof,

deducing the potential causes of injuries and extrapolating long-term health effects

therefrom, qualifies as an expert witness.

¶22 Pursuant to the scheduling order, Empire had until October 25, 2004, to disclose

Dr. Taylor as a rebuttal expert. On October 6, 2004, Empire did provide Pumphrey with

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informal notice that it wished to have Dr. Taylor perform an IME. Given that it was not

served on Pumphrey, filed with the court, made under oath or subject to sanctions

provided for by Rule 11, M.R.Civ.P., such informal notice does not comply with the

scheduling order, which contemplates formal disclosure, pursuant to Rule 26(b)(4)(A)(i),

M.R.Civ.P. Empire never formally disclosed Dr. Taylor as an expert. Indeed, not until

three days after the deadline for disclosing rebuttal experts did Empire actually move the

court to order an IME, thereby first informing the court (albeit indirectly) of its intention

to call Dr. Taylor as an expert witness.

¶23 Relying on Henricksen, Empire argues that the District Court abused its discretion

by declining to order an IME when Empire submitted its formal request for such an order

prior to the close of discovery. Empire’s reliance on Henricksen is inapposite. In

Henricksen, we held that the District Court abused its discretion when it declined to order

an IME despite the State’s having formally issued a request for such nine days before the

close of discovery. ¶ 55. We noted that “[a]n IME need not be conducted by the date set

for expert disclosures.” Henricksen, ¶ 59. Our holding in Henricksen, however, was

premised on the fact that the State was surprised by Henricksen’s last-minute revelation

that she would seek to recover on the basis of suffering from post-traumatic stress

disorder. ¶ 55. Moreover, Henricksen presupposes that the party requesting an IME has,

pursuant to Rule 26(b)(4)(A)(i), M.R.Civ.P., formally and timely disclosed the expert

who will conduct the IME. ¶¶ 53, 59, 60.

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¶24 Here, in contrast, Empire never formally disclosed Dr. Taylor as an expert and

alleges no surprise concerning the nature of Pumphrey’s injuries. Accordingly, the court

did not err in denying Empire’s motion requesting an IME. See Miranti v. Orms (1992),

253 Mont. 231, 235, 833 P.2d 164, 166 (allowing two undisclosed experts to testify

constitutes an abuse of discretion, notwithstanding plaintiff’s assertion that defendant

“knew” that they would testify as experts); see also United First Fed. S & L v. White-

Stevens (1992), 253 Mont. 242, 247-48, 833 P.2d 170, 173-74 (allowing undisclosed

experts to testify constitutes abuse of discretion). Because the court could have properly

prevented Dr. Taylor from testifying, ordering Pumphrey to undergo an IME performed

by Dr. Taylor would serve no conceivable purpose.

¶25 Assuming, arguendo, that Empire formally disclosed Dr. Taylor when it moved

the court to order Pumphrey to submit to an IME, such an untimely formal disclosure

would only enable Dr. Taylor to testify if the delay were attributable to surprise caused

by Pumphrey or some other good cause. See, e.g., Mason v. Ditzel (1992), 255 Mont.

364, 370, 842 P.2d 707, 711-12 (allowing an untimely disclosed psychiatric expert to

testify for the defendant because the plaintiff’s failure to fully disclose her past medical

providers contributed to the defendant’s tardy realization that testimony from a

psychiatric expert would prove useful); see also Rule 16(b), M.R.Civ.P. (“[a] schedule

shall not be modified except by leave of the judge upon a showing of good cause”);

McKenzie, 285 Mont. at 507, 949 P.2d at 1172 (bestowing discretion on a district court to

impose sanctions for violations of a scheduling order). Empire asserts no surprise as to

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the extent or severity of Pumphrey’s injuries, nor does it provide any other good cause for

not complying with the scheduling order. While this Court may have imposed a different

sanction, we cannot say that the District Court abused its discretion by denying Empire’s

request for an IME in response to Empire’s disregard of the scheduling order.

¶26 Empire never formally disclosed Dr. Taylor as an expert pursuant to Rule

26(b)(4), M.R.Civ.P. Even if we treated Empire’s motion requesting an IME as an

untimely formal disclosure, Empire does not attribute the tardiness of such “disclosure”

to surprise or any other good cause. Accordingly, we hold that the District Court

properly exercised its discretion when it denied Empire’s motion for an IME.

Issue 2: Whether the District Court had authority to reconvene and re-poll the jury

after discharging the jurors.

¶27 Empire argues that the court properly reassembled and re-polled the jury. Empire

maintains that Pumphrey, by failing to object to re-polling the jury, acquiesced to the

process and waived any right to appeal the issue. Based on caselaw from other

jurisdictions, Empire suggests that even if Pumphrey had objected, the court had

authority to re-poll the jury, notwithstanding counsel’s ex parte contact with individual

jurors. Empire insists that only the second jury poll represented a valid poll. Thus,

Empire suggests, the District Court should have declared a mistrial, rather than poll the

jurors for a third time.

¶28 Pumphrey argues that the District Court correctly entered the verdict initially

announced by the jury and confirmed by the initial poll of the jurors. Pumphrey stresses

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that she immediately objected to the court’s decision to reconvene the ex-jurors for

further polling. Pumphrey maintains that once the jury was discharged, it lost authority

to alter the verdict—the twelve individuals no longer comprised a jury.

¶29 Whether a trial court has authority to reassemble and poll jurors after previously

discharging the jury is a question of first impression in Montana. Our resolution of this

issue is aided by recognition that re-polling the jury potentially results in altering the

verdict.

¶30 In light of the novelty of the situation she faced, we consider Pumphrey’s

protestations against the proposed reassembly and re-polling of the jurors to constitute an

adequate objection. We will consider an objection sufficient if it specifies the reason for

disagreement with the procedure employed by the court. See, e.g., Adams and Gregoire,

Inc. v. National Indemnity Co. (1962), 141 Mont. 103, 110, 375 P.2d 112, 116 (“mere

objection without assignment of the specific reason for the objection is not a proper

objection”). Although she did not utter the magic word “objection,” Pumphrey’s counsel

clearly expressed her disagreement with the procedure and adequately specified the basis

therefore—that Empire had not objected to the initial poll of the jurors and that the court

had consequently discharged the jury, marking completion of the trial. Only after it

became apparent that the court would re-poll the jurors, did Pumphrey indicate that she

did not object to the specific proposal to immediately poll ten of the twelve jurors. We

conclude that Pumphrey did not waive her right to appeal the propriety of reassembling

and re-polling the jurors following their discharge.

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¶31 It is evident that the statute authorizing a district court to poll jurors presupposes

that the jury remains impaneled at all times before it is polled. Section 25-7-501(2),

MCA, provides:

Either party may require the jury to be polled, which is done by the court or

clerk asking each juror if it is his [or her] verdict. If upon such inquiry or

polling more than one-third of the jurors disagree thereto, the jury must be

sent out again, but if no such disagreement be expressed, the verdict is

complete and the jury discharged from the case.

The statute plainly contemplates that jury polling will precede the discharge of the jury.

Although it has been re-enacted many times during the past century, the Legislature last

amended this statute in 1895. At that time, the law provided that the jury’s authority

terminated upon discharge. See Morris v. Burke (1895), 15 Mont. 214, 215, 38 P. 1065,

1066 (quoting In re Thompson (1890), 9 Mont. 381, 388, 34 P. 933, 934) (“[w]hen the

verdict is rendered and recorded, and the jury discharged, the jury is functus officio. Prior

to that time the verdict is in control of the jury in some respects. After those events the

province of the jury is exhausted”). We presume that the legislature is cognizant of

existing law. Matter of Investigative Records (1994), 265 Mont. 379, 382, 877 P.2d 470,

472. Had the legislature intended to modify existing law in order to provide courts with

authority to poll a jury after discharging the jurors, it would have provided for this

contingency when it amended the statute.

¶32 Subsequent to 1895, this Court has consistently held that the court effectively

nullifies a jury’s authority when it discharges the jurors. See Fauver v. Wilkoske (1949),

123 Mont. 228, 236-37, 211 P.2d 420, 425 (“[t]he time for correcting an insufficient

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verdict is . . . before the jury has been discharged from the case”); see also Poor v.

Madison River Power Co. (1910), 41 Mont. 236, 243, 108 P. 645, 648 (“[the jury] had

been finally discharged from consideration of the case, with the result that they had

become again members of the community at large, freed from the obligations of their

official oaths, and could not have been recalled except upon consent of all the parties”);

cf. Gilmore v. Mulvihill (1940), 109 Mont. 601, 98 P.2d 335 (affirming the court’s

alteration of a facially deficient verdict following the discharge of the jury). Moreover,

we have explained that “[i]f after being discharged and mingling with the public, jurors

are permitted to impeach verdicts which they have rendered, it would open the door for

tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to

destroy a verdict to which he had deliberately given his assent under sanction of an oath

. . . .” Estate of Spicher v. Miller (1993), 260 Mont. 504, 507, 861 P.2d 183, 185 (ruling

on the admissibility of juror affidavits to impeach a verdict, pursuant to Rule 606(b),

M.R.Evid.). This rationale applies equally to polling discharged jurors who have

dispersed.

¶33 In ascertaining the court’s authority to reassemble discharged jurors in order to

revisit the verdict, we abide by this Court’s existing precedent and supporting rationale,

while seeking further guidance from other courts. In Spears v. Mills (Ark. 2002), 69

S.W.3d 407, after the court announced a verdict, neither party requested that the court

poll the jurors and the court discharged the jurors. Subsequently, the jurors alerted the

bailiff that there had been a misunderstanding that affected the validity of the verdict, and

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the court reassembled the jury. The foreman indicated that the jury had not had contact

with any non-juror. The polling revealed that a majority of jurors disagreed with the

verdict. The court sent the jury back for additional deliberations, and they returned with

an amended verdict. Spears, 69 S.W.3d at 409-10. The Supreme Court of Arkansas held

that the trial court erred in polling the jurors following their discharge and dispersal. The

court declared “paramount” its concern that the jury remain “free from even the

appearance of taint or outside influences.” Spears, 69 S.W.3d at 413. Consequently, the

court held, once discharged, a jury may only correct or amend its verdict if it has “not left

the presence of the trial court and mingled with bystanders. . . . [M]ingling occurs once

the individual jurors have been discharged from their oath and duties as jurors and have

left the presence, control, and supervision of the court.” Spears, 69 S.W.3d at 412.

¶34 The rule articulated in Spears comports with existing Montana law, but provides a

narrow exception in cases where the jury could not have been subjected to any outside

influence after being formally discharged. This exception strikes the proper balance

between the pursuit of substantive justice and the need to maintain confidence in the

sanctity of jury verdicts by ensuring that the “fountain of justice” remains pure. Melton

v. Commonwealth (Va. 1922), 111 S.E. 291, 293. Finally, it embraces the rationale this

Court expressed in Estate of Spicher. Therefore, we adopt the rule that a jury lacks any

authority to revisit, alter or amend its verdict—including via juror polling—after the trial

court has discharged the jurors and any of them have left the presence, control and

supervision of the court.

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¶35 Indeed, several of the non-Montana cases that Empire cites, which it claims

support the court’s authority to re-poll the jurors after discharging the jury, resonate

generally with Spears. The majority of these courts allow a jury to alter its verdict only if

the jurors have not dispersed or commingled with non-jurors after being discharged. See

Newport Fisherman’s Supply Co. Inc. v. Derecktor (R.I. 1990), 569 A.2d 1051, 1053

(allowing a discharged jury to amend a verdict when the jurors had not contacted either

party and “remained an undispersed unit within the control of the court” because no

“extratrial influence [could have infected] the sanctity of the jury’s secrecy between the

time of discharge and reassembly”); see also Lapham v. Eastern Mass. St. Ry. Co. (Mass.

1962), 179 N.E.2d 589, 591 (permitting the jury to reassemble and correct a defective

verdict after being discharged and separating “if the judge determines that nothing

prejudicial to the cause of justice occurred during the separation”); Sierra Foods v.

Williams (Nev. 1991), 816 P.2d 466, 467 (creating an exception to the general rule that “a

trial court is without authority or jurisdiction to reconvene a jury once it has been

dismissed,” in situations “when the jury has not yet dispersed or lost its separate identity

and when the [party opposed to reconvening the jury] has presented no proof of outside

influence”); McCauley v. Charter Oak Fire Ins. Co. (Tex. Ct. App. 1984), 660 S.W.2d

863, 865 (“[s]ince the jurors were still assembled in the courtroom and were under the

control of the court, it is our view that the jury had not been discharged”). Empire also

relies on two cases from jurisdictions whose law irreconcilably conflicts with existing

Montana law on the jury’s lack of authority to alter a verdict after it has been discharged.

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See Drop Anchor Realty Trust v. Hartford Fire Ins. Co. (N.H. 1985), 496 A.2d 339, 345

(relying on Dearborn v. Newhall (N.H. 1884), 63 N.H. 301, 302-03, for the proposition

that an error in a verdict can be corrected after discharge of the jury “whether the jury had

or had not separated”); see also Indus. Savings Bank v. Mitchell (Ala. 1932), 140 So. 449,

452 (relying on Alabama’s rule that a verdict has not been rendered until it has been

accepted by the court to allow the jury to amend a facially defective verdict that had not

yet been accepted by the court). To the extent that the non-Montana authorities on which

Empire relies do not directly conflict with the existing Montana law, they fail to support

Empire’s position in this case.

¶36 Here, the jury rendered its verdict, which the court subsequently confirmed by

polling the jurors. The court then discharged the jury, and the jurors left the courtroom.

Two of the jurors conversed with Empire’s counsel about the calculation of damages—a

central issue in the case. Not only had the jurors left the presence and control of the trial

court (allowing at least the appearance of taint) two of them had actually been subjected

to the most pernicious of outside influences—ex parte discussion of the verdict with

Empire’s counsel. Having left the “presence, control, and supervision of the court,”

Spears, 69 S.W.3d at 412, the jurors could no longer correct their verdict. Consequently,

the trial court erred as a matter of law when it reassembled the jury and polled the jurors

for a second time.

¶37 Nevertheless, the District Court eventually polled the jury for a third time and

ultimately entered the $3.9 million verdict initially reached by the jury. On the basis of

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this final poll of the jurors, and the propriety of its earlier denial of Empire’s request for

an IME, the District Court denied Empire’s motion for a new trial. We will not reverse a

district court that reaches the correct result, even if for the wrong reason. Palmer v.

Bahm, 2006 MT 29, ¶ 20, 331 Mont. 105, ¶ 20, 128 P.3d 1031, ¶ 20. Accordingly, we

affirm the District Court’s entry of the verdict and denial of Empire’s motion for a new

trial.

CONCLUSION

¶38 Empire never formally disclosed Dr. Taylor as an expert witness. To the extent

that Empire did provide formal, albeit indirect, notice that it would offer expert testimony

from Dr. Taylor, it nonetheless failed to establish surprise or any other good cause for

circumventing the court’s scheduling order. Consequently, the District Court did not

abuse its discretion when it declined to order Pumphrey to submit to an IME.

¶39 As soon as any discharged juror left the presence, control and supervision of the

District Court, the court lost authority to re-empanel the jury and poll the jurors. The

District Court erred in twice re-polling the jurors. Nevertheless, the court ultimately

arrived at the correct result when it entered the initial verdict rendered by the jury and

denied Empire’s motion for a new trial.

¶40 We affirm.

/S/ W. WILLIAM LEAPHART

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We concur:

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS

/S/ JIM RICE

Justice Jim Rice specially concurring.

¶41 I concur with the Court’s opinion, and offer the following with regard to Issue #1.

¶42 Five days before the deadline for disclosing expert witnesses, Defendant’s counsel

wrote Plaintiff’s counsel, requesting that the Plaintiff undergo an IME, which had been

scheduled with Dr. Taylor for later in the month. Plaintiff’s counsel refused to participate

in the IME because “the deadline is upon us” and the IME proposal was “not workable.”

In its order denying Defendant’s motion for an IME and for extension of the disclosure

deadline, the District Court appears to have endorsed Plaintiff’s refusal to participate,

reasoning that the purpose of scheduling deadlines is to prevent “the difficulties inherent

in coordinating an IME at the last minute.” See ¶ 11.

¶43 I would merely offer that this opinion is about the sufficiency and timeliness of the

actions which Defendant took after Plaintiff refused to participate in the requested IME.

It says nothing about the validity of Plaintiff’s refusal to participate in the near-deadline,

yet timely, requested IME in the first place or about the validity of the District Court’s

rationale which approved the same.

/S/ JIM RICE

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