Idaho Case Law

MCKIM v. HORNER, 32003 (Idaho 12-20-2006) Sammye MCKIM, Plaintiff-Appellant, v. Richard HORNER, Defendant-Respondent. No. 32003. Supreme Court of Idaho, Boise, November 2006 Term. Filed: December 20, 2006.

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, for the County of Jerome. Hon. John K. Butler, District Judge.

Judgement on jury verdict is affirmed.

Crandall Law Office, Boise, for appellant. Cody A. Long argued.

Merrill & Merrill, Pocatello, for respondent. Thomas J. Lyons argued.

JONES, Justice

Sammye McKim filed a personal injury lawsuit against
Richard Horner, arising out of an automobile accident.
McKim appeals from a jury verdict finding that Horner was
not the proximate cause of injuries to her neck, back, or
left knee. We affirm.


On October 17, 2002, Horner’s truck collided with McKim’s
car on Birch Street near its intersection with Sixth Avenue
West in Jerome. After passing an address that he needed to
visit for his employer, Horner put his truck in reverse and
subsequently collided with McKim. The parties disagree
about the remainder of the facts, both regarding the
severity of the collision itself and the cause of McKim’s
alleged injuries.

As to the collision, the parties dispute Horner’s speed
while driving in reverse and the distance between the two
vehicles. The parties initially appeared to agree that the
accident was a low-speed impact. Twelve days before trial,
however, McKim disclosed the identity of an alleged
eyewitness, Jennifer Broncheau, whose testimony McKim
intended to use to suggest otherwise.[fn1] According to her
affidavit, Broncheau would have testified that she saw
Horner’s truck drive past her house, stop at a neighbor’s
house, and then travel in reverse at a “high speed” for
approximately fifty to sixty feet. McKim acknowledged that
disclosure of Broncheau came after the discovery deadline
imposed by the district court in its scheduling order.
McKim moved to vacate the trial setting in order to have
more time to prepare for Broncheau’s testimony, while
Horner filed a motion in limine to exclude Broncheau’s

The district court granted Horner’s motion in limine,
barring Broncheau from being a witness at trial. McKim
alleged that she did not know of Broncheau’s identity until
the day she was disclosed because Horner deceived McKim as
to her existence. McKim admits that she did not canvass the
neighborhood. Horner, however, allegedly did not disclose
that he had a conversation with Broncheau after the accident
wherein she stated she had seen the accident from her
house. Horner claims that he never discussed it with
Broncheau and that McKim never asked for the customer’s
name during discovery. In granting the motion, the district
court cited McKim’s failure to investigate potential
witnesses and her late disclosure of Broncheau as a lay
witness. The district court declined to vacate the trial
setting, expressing concern that the case was over 460 days
old and that a continuance would push the case over the 540
day recommended standard for case processing.

With regard to McKim’s injuries, the record discloses that
she visited her doctor the day after the accident with pain
in her neck. Dr. Laurence Martens diagnosed her with a mild
cervical strain but McKim did not report pain in her knee
or back at that time. She experienced back pain in 2002 at
Thanksgiving and Christmas but did not see her doctor until
January. She first complained of back pain to her doctor on
January 22, 2003, and then on May 1, 2003, pain in her left
knee. Dr. Martens referred her to Dr. Christian Zimmerman
for her back and Dr. James Retmier for her knee. McKim
underwent two surgeries for her back and one for her knee.
At trial, Drs. Martens, Zimmerman, and Retmier all opined
that McKim’s injuries likely were the result of the
accident. Horner hired a medical expert, Dr. David Simon,
who opined that her knee and back injuries likely did not
result from the accident. He did testify, however, that he
believed she suffered a cervical sprain, or whiplash
injury, as a result of the accident.

The trial turned on whether the accident was the proximate
cause of McKim’s injuries. Horner conceded he was negligent
in colliding with McKim’s car. He argued, however, that the
accident was not the proximate cause of the alleged
injuries to her neck, left knee, and back. The jury agreed.
McKim moved for a new trial but failed to support the
motion with oral or written argument. The district court
properly denied her motion because she failed to set forth
any grounds for a new trial under I.R.C.P. 59(a).[fn2] The
denial of the motion for a new trial is not at issue in
this appeal. McKim filed a timely appeal.

In this opinion, we address two issues: 1) whether the
district court erred in excluding Jennifer Broncheau as a
lay witness, and 2) whether the jury ignored the clear
weight of the evidence. We address McKim’s evidentiary
argument first because the decision whether to exclude
evidence affects our analysis of the jury’s verdict.


“Exclusion of testimony based on late disclosure is a
sanction under I.R.C.P. 37(b), and is subject to an abuse
of discretion review.” Bramwell v. S. Rigby Canal Co., 136
Idaho 648, 651, 39 P.3d 588, 591 (2001). “To determine if
there has been an abuse of discretion, this Court applies
the following three factors: (1) whether the trial court
correctly perceived the issue as one of discretion; (2)
whether the trial court acted within the boundaries of this
discretion and consistent with the legal standards
applicable to the specific choices available to it; and (3)
whether the trial court reached its decision by an exercise
of reason.” City of McCall v. Seubert, 142 Idaho 580, 586,
130 P.3d 1118, 1124 (2006).

McKim concedes that the disclosure of Broncheau as a lay
witness came after the discovery deadline imposed by the
district court. Upon motion or on its own initiative, the
district court may impose sanctions for failure to obey a
scheduling or pre-trial order. I.R.C.P. 16(i) (sanctions
may include those found in I.R.C.P. 37(b)(2)(B)). The
district court recognized that exclusion of Broncheau was
within its discretion. McKim argues, however, that the
district court abused its discretion because it did not
consider the applicable legal standards, citing to Viehweg
v. Thompson, 103 Idaho 265, 271, 647 P.2d 311, 317 (App.
1982); accord Farr v. Mischler, 129 Idaho 201, 207, 923 P.2d
446, 452 (1996). The Court of Appeals held that when a
party tardily discloses the identity of a witness, the
district court should consider the importance of the
testimony, the time necessary for the other party to
prepare, and the possibility of a continuance. Viehweg, 103
Idaho at 271, 647 P.2d at 317.[fn3]

The district court excluded Broncheau as a witness because
it could not find good cause to excuse the failure to
disclose her identity within the time required in the
scheduling order. Considering the parties’ earlier
acceptance of a low-speed impact and McKim’s inability to
recall the circumstances of the accident, the district
court questioned Broncheau’s importance to McKim’s case.
The district court also considered that disclosure came
twelve days before trial, leaving Horner little time to
prepare. Moreover, if a continuance was granted, Horner
faced additional expenses for his witnesses. The court
declined a continuance for the same reasons. The district
court acted within the bounds of its discretion and reached
its decision by an exercise of reason, so we will not
disturb its decision to strike Broncheau as a witness and
to decline a continuance. Bramwell, 136 Idaho at 652, 39
P.3d at 592.

McKim simply failed to use due diligence in investigating
for potential witnesses. All McKim needed to do to find
Broncheau was knock on the doors of the homes around the
accident scene or ask Horner for the identity of his
customer during discovery. We can find nothing in the
record to support the assertion that Horner deceived her.
This Court has previously upheld a jury verdict where
“there is no proof of a scheme [to defraud the court]; but,
as shown by the evidence, appellant did not with due
diligence investigate the case.” Telfair v. Greyhound
Corp., 89 Idaho 385, 388, 404 P.2d 875, 876 (1965)
(plaintiff claimed that the defendant failed to provide
witnesses’ complete addresses, which prevented her from
securing evidence necessary to prove her personal
injuries). As in Telfair, a little due diligence on the part
of counsel in this case to investigate his client’s claims
could possibly have resulted in learning about Broncheau
before the discovery cut-off. Absent that due diligence, we
affirm the district court in striking her as a witness.


We next turn to the issue of whether the jury verdict was
against the clear weight of the evidence on the question of
causation. We hold that it was not.

The jury’s verdict on factual issues will generally not be
disturbed on appeal. Boel v. Stewart Title Guar. Co., 137
Idaho 9, 12, 43 P.3d 768, 771 (2002). “When reviewing a
jury verdict on appeal the evidence adduced at trial is
construed in a light most favorable to the party who
prevailed at trial.” Garrett Freightlines, Inc. v. Bannock
Paving Co., Inc., 112 Idaho 722, 726, 735 P.2d 1033, 1037
(1987). When it appears to this Court that the verdict is
not supported by substantial and competent evidence or is
against the clear weight of the evidence, then those issues
become questions of law upon which this Court may review
freely. Boel, 137 Idaho at 12, 43 P.3d at 771.

On appeal, McKim argues that the jury erred because Horner
admitted that he was negligent and the four doctors who
testified at trial all agreed that at least some of McKim’s
injuries resulted from the accident. The elements of a
negligence action are: “(1) a duty, recognized by law,
requiring a defendant to conform to a certain standard of
conduct; (2) a breach of that duty; (3) a causal connection
between the defendant’s conduct and the resulting injuries;
and (4) actual loss or damage.” Slade v. Smith’s Mgt.
Corp., 119 Idaho 482, 487, 808 P.2d 401, 406 (1991). In
this case, the parties dispute the third element, proximate
cause, which is a factual question for the jury. See
Bramwell, 136 Idaho at 650, 39 P.3d at 590. This Court will
not overturn a jury verdict on proximate cause unless
unsupported by substantial and competent evidence. Id.

Regarding her neck injury, McKim asserts that the jury
ignored the clear weight of the evidence because both Dr.
Martens and Dr. Simon testified that it resulted from the
accident. Dr. Martens testified that McKim visited him the
day after the accident and that he diagnosed her with a
mild cervical strain. Also, in response to a question as to
whether McKim suffered any injuries from the accident, Dr.
Simon testified that she suffered a cervical sprain injury
based on his review of her medical records. The jury could
have found that Horner inflicted some injury but that he
should not be held liable for damages because any injury
was negligible. The district court noted that McKim took
anti-inflammatory medication before the accident, presented
little evidence on damages, and did not indicate her neck
injury limited her. While evidence may have existed to
support an award, the jury had substantial and competent
evidence to find that McKim suffered a mild neck sprain
that healed quickly, resulting in little, if any, damages.
See Meckling v. Fontes, 125 Idaho 689, 694, 873 P.2d 1343,
1348 (App. 1994).

Regarding her back and knee injuries, McKim argues that her
doctors’ testimony should be conclusive that her injuries
resulted from the accident, that the jury should have
discounted Dr. Simon’s testimony to the contrary because he
relied solely on information procured by McKim’s doctors,
and that Dr. Simon is not as qualified to testify because he
is not a surgeon. Weighing the evidence, including the
credibility of witnesses, is within the province of the
trier of fact — the jury. See Levin v. Levin, 122
Idaho 583, 587, 836 P.2d 529, 533 (1992). McKim’s testimony
suggested that the onset of pain from her back and knee
happened well after the accident. Also, like Dr. Simon, both
Dr. Zimmerman and Dr. Retmier relied on McKim’s recitation
of her medical history to arrive at their conclusions about
causation. Again, this implicates McKim’s credibility.
Although the jury arrived at a different conclusion than
McKim’s doctors, substantial and competent evidence
supported the jury’s verdict.


The factual findings of the jury regarding causation are
supported by substantial and competent evidence and will
not be disturbed on appeal. The district court did not
abuse its discretion in excluding Jennifer Broncheau as a
lay witness and refusing a continuance. Therefore, we
affirm. Costs to respondents.

Chief Justice SCHROEDER, and Justices TROUT, EISMANN and

[fn1] Broncheau was the customer that Horner went to visit
in Jerome.

[fn2] The district court did address a possible ground for
overturning the verdict — insufficiency of the
evidence to justify the verdict. See I.R.C.P. 59(a)(6). The
district court found that the jury verdict was not against
the clear weight of the evidence because the case turned on
the parties’ credibility, considering the lack of outside
evidence to corroborate either side.

[fn3] The Viehweg court ultimately concluded, though, that
the record was inadequate to review the district court’s
exercise of discretion. Id. at 271, 647 P.2d at 317.