Document Type

Article

Publication Date

7-1-1994

Abstract

In an appeal to the Blackfeet Supreme Court, the Court partially affirmed a decision of the Blackfeet Court of Appeals, holding for the plaintiff, except on the issues of: Issue 1) whether the trial court’s having allowed testimony as to the economic loss of a non-party, plaintiff’s husband, was in error [defendant’s specification of error 2]; Issue 2) whether the trial court’s having allowed the jury to take a “damage chart” into the jury room during its deliberations was error [defendant’s specification of error 7]; and Issue 3) whether plaintiff’s attorney’s reference to punitive damages in closing argument was error [defendant’s specification of error 12].

o Issue 1 – Plaintiffs were allowed to offer some evidence concerning plaintiff’s husband’s loss of income due to plaintiff’s need to be taken care of by him. Defendant’s alleged that the comments should have been stricken or the court should have issued a limiting instruction directing the jury not to consider that testimony. Both counsels and presiding judge discussed the issue and plaintiff’s counsel specifically attempted to correct his argument in closing statements.

However, Defendant made no motion asking the judge for a limiting instruction. The Court ruled that since they did not raise the issue at trial, Defendants could not argue reversible error after the fact. Citing Stewart v. Fisher, 235 Mont. 432, 437, 767 P.2d 1321 (1989); Rasmussen v. Sibert, 153 Mont. 286, 295, 456 P.2d 835, 840 (1969). The Court further reasoned that the plaintiff’s counsel clearly negated any claim for non-party damages. The lower court’s ruling was without error on this issue.

o Issue 2 – In closing argument, plaintiff’s counsel used a chart reflecting the elements of damages the jury is allowed to consider when arriving at its verdict. As he argued each element, he wrote suggested figures for the jury to consider. Defendant’s counsel did not object to how plaintiff used the chart nor the amount of suggested damages. After the jury retired to deliberate, the jury asked for a copy of the chart, but defense counsel objected. The trial judge determined the jury would receive the blank version of the chart. Defense counsel did not object to the jury receiving the blank version of the chart and gave agreement to sending the chart without the suggested figures. Accordingly, Defendant’s counsel cannot complain about this issue for the first time on appeal. Citing Stewart v. Fisher, 235 Mont. 432, 437, 767 P.2d 1321 (1989); Rasmussen v. Sibert, 153 Mont. 286, 295, 456 P.2d 835, 840 (1969). The Court reasoned that “[t]he rule in Montana is to leave the propriety of counsel’s use of a per diem argument to the sound discretion of the trial court” and that absent persuasive showing as to how plaintiff's use of a “per diem” argument prejudiced defendants, the court would not say the trial judge abused its discretion in allowing plaintiff to use the chart in closing arguments. Citing Vogel v. Fetter Livestock Co., 144 Mont. 127, 394 P.2d 766 (1964).

o Issue 3 – Defendants referenced “punitive damages” in closing arguments, in the negative, stating “...I’m not asking...[for] what is called punitive damages... or made money or [to] punish the defendant.” The court analyzed the transcript of the argument and determined that plaintiff’s counsel left that statement in an incomplete though and then corrected himself into what punitive damages are, stating he “didn't want to punish anyone.” Counsel for defendant also did not object during Plaintiff’s closing argument nor close thereafter. As in issue 2, the chart didn't reference punitive damages at all.

o As to all other issues, the Court affirmed the determinations of the lower courts and the jury.

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