Siebken v. Voderberg, 2015 MT 296 (Oct. 13, 2015) (Baker, J.; Cotter, J., concurring) (6-0, aff’d)
Issue: (1) Whether Siebken is entitled to a new trial based on the district court’s admission of a letter regarding Siebken’s medical history and diagnosis; (2) whether Siebken is entitled to a new trial because the district court erroneously instructed the jury on the statute of limitations; and (3) whether substantial evidence supported the jury verdict.
Short Answer: (1) No; (2) the Court declines to review this issue because Siebken did not preserve the issue for appeal; and (3) yes.
Facts: In Siebken I, this Court reversed summary judgment for Voderberg on statute of limitations grounds. On remand, the primary factual dispute at trial was when the three-year statute began to run on Siebken’s negligence claim. Siebken was on duty as an officer at the Federal Reserve Bank in Helena on December 11, 2004 when he had a physical altercation with Voderberg, who was trespassing on bank property on his way home and refused to cooperate with Siebken’s commands. Siebken claims the incident resulted in a spinal injury that has left him permanently and totally disabled and unable to work. Siebken filed a complaint on March 18, 2009.
Dr. Sorini testified that he had concluded that Siebken’s neck problems were caused by the December 2004 incident by September 2005. Siebken testified that he did not learn of Dr. Sorini’s opinion about the casual connection until May 2006, at which point he sought legal counsel.
Procedural Posture & Holding: The jury returned a defense verdict after finding Siebken’s claims were barred by the statute of limitations. Siebken appeals, and the Supreme Court affirms.
Reasoning: (1) The district court admitted a letter from Dr. Speth to Dr. Sporini on Sept. 5, 2005 in which Dr. Speth said Siebken was involved in an altercation at the bank that exacerbated his neck pain. Siebken argues the district court erred in admitting the letter without a showing of authenticity or foundation, and without an appropriate hearsay exception. Both doctors appeared by deposition. The district court overruled Siebken’s foundation and authenticity objections on the basis that he did not make either objection at the deposition. Siebken’s trial objection did not include a hearsay objection. If a foundation objection could have been corrected during a deposition, it waived at trial for failure to make it at the deposition. The district court did not abuse its discretion in overruling Siebken’s foundation and authenticity objections.
Regarding hearsay, Voderberg offered the letter to show not that Siebken was involved in an altercation, but to show that the statement was made in Dr. Spieth and that Siebken was aware of the possible connection between the incident and his condition. The letter was not hearsay and the district court properly admitted it.
(2) The jury was instructed that if Siebken knew or should have known of facts that would have caused a reasonable person to suspect that his injuries were the result of defendant’s actions before March 18, 2006, his lawsuit is barred by the statute of limitations. Siebken argues that “suspecting” something is not the same as knowing, and that the statute of limitations requires discovery of an injury and its cause, not just suspicion. Because Siebken did not raise this objection to the trial court, the Court declines to review it.
(3) The Court declines to disturb the jury’s verdict.
Justice Cotter’s Concurrence: The Court’s interpretation of M. R. Civ. P. 32(d)(3)(A) in Olson v. Shumaker has prompted expressions of concern from the trial bar. Justice Cotter writes separately to emphasize that the general rules is that objections noted in the rule are not waived by failure to make them at a deposition, and that the exception is where the ground for the objection could have been corrected at the deposition. Justice Cotter cautions lawyers that if there is a possibility a deposition may be read into evidence in lieu of live testimony, lawyers should take care to make objections to a deponent’s competence or the competence, relevance, or materiality of evidence offered during the deposition.
Justice Cotter also writes to register her objection to the instruction on statute of limitations. Mere suspicion does not constitute discovery, and Justice Cotter believes this instruction is erroneous.