No. 14407
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
VICTOR F. HILL and MINNIE M. HILL,
Plaintiffs and Appellants,
SQUIBB & SONS, E.R., A FOREIGN CORPORATION;
and FREDERIC S. MARKS, M.D.,
Defendants and Respondents.
Appeal from: District Court of the Thirteenth Judicial District,
Honorable Robert Wilson, Judge presiding.
Counsel of Record:
For Appellants:
Kelly and Foley, Billings, Montana
William T. Kelly argued, Billings, Montana
For Respondents:
Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
Montana
Jack Ramirez argued, Billings, Montana
Anderson, Symmes, Brown, Gerbase, Cebull & Jones,
Billings, Montana
Submitted: February 8, 1979
Decided: qp:, - i 1979
'
" - 5 - -
Filed: .c. ; -;rq
-
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal by plaintiffs from judgments entered
in the District Court of Yellowstone County on a directed ver-
dict in favor of defendant Squibb & Sons, a partial directed
verdict in favor of defendant Frederic S. Marks, and a jury
verdict rendered in favor of Dr. Marks on the remaining claims
against him.
Plaintiff Victor I?. Hill suffers from severe allergic
reactions (contact dermatitis) to a variety of substances and
most severely to petroleum based products. Hill was a mechanic
by trade, and thus was subject to constant exposure to those
products. He was first treated by defendant Dr. Marks in 1952,
at which time the flareups of his dermatitis were occurring only
about twice a year. By the mid-19601s, however, plaintiff's
condition had worsened to the point where he was seeing Dr. Marks
three or four times a month. After 1969, the visits to Dr. Marks
averaged about two times a month.
A well recognized treatment of skin problems is the use
of a class of drugs known as steroids, a kind of synthetic
cortisone. Cortisone and all cortisone related drugs have signif-
icant and well-known side effects.
Dr. Marks initially treated plaintiff with injections of
ACTH, a chemical which stimulates natural production of cortisone
by the adrenal glands. The ACTH was administered in conjunction
with topical steroid creams applied directly to the affected areas
and prescriptions for steroid pills to be orally ingested. In
1965, Dr. Marks began using an injectible steroid called Kenalog-
40 which had recently been put on the market by defendant Squibb
& Sons. From 1965 to 1970, Dr. Marks gave plaintiff injections
of Kenalog-40, together with oral and topical steroids, at approx-
imately two week intervals. Occasional injections of ACTH
were also given to plaintiff during that period.
In the summer of 1970 plaintiff spilled brake fluid
over a large part of his body, causing an extremely severe flare-
up of the dermatitis. Dr. Marks increased the steroid treat-
ments by supplementing the ACTH and Kenalog-40 injections with
more oral steroids. Over the last five months of his treatment
by Dr. Marks, up to his final visit on January 18, 1971, plain-
tiff was treated with a total of 1450 mg. of sterane, an oral
steroid, and 440 mg. of Kenalog-40 by injection.
At his last visit to Dr. Marks in January 1971, plain-
tiff was referred by Dr. Marks to the Billings Clinic. Plaintiff
had some facial swelling which Dr. Marks wanted the clinic to
check into. On January 20, 1971, the Billings Clinic referred
plaintiff to its staff dermatologist, a Dr. Smoot. Upon learn-
ing of plaintiff's history, Smoot immediately discontinued the
injections of steroids because he "could see nothing but problems
down the road." Dr. Smoot continued to prescribe oral steroids
and steroid creams, gradually tapering them off. As the steroid
treatment was lessened, the dermatitis worsened, until in July
1971 it was so bad Hill was disabled completely and had to give
up his job.
In March 1971, while under treatment at the Billings
Clinic, Hill first noticed blurring vision and in the fall of
that year he required surgical removal of cataracts. In 1973, he
developed back pain and was diagnosed to have osteoporosis, a loss
of calcium in the bones. Cataracts and osteoporosis of the types
that plaintiff exhibited are both characteristic side effects of
steroid treatment.
On September 9, 1974, a complaint was filed in Yellow-
stone County District Court by Victor and Minnie Hill alleging
that plaintiff's cataracts and osteoporosis were the result of
the actions of Squibb & Sons and Dr. Marks, The claim against
~ q u i b b& Sons was framed in three counts, alleging negligence,
strict liability in tort, and breach of express and implied
warranties. The central theory of the claim was that Squibb's
Kenalog-40 was negligently marketed and was a defective product
because the package inserts provided with the drug did not warn
specifically enough of its dangerous side effects. As to Dr.
Marks, the complaint alleged, in summary, negligence in failing
to fully advise plaintiffs in regard to the risks associated
with steroid treatments and in failing to properly monitor the
effects of the treatment on Victor Hill over the nearly twenty
year period in which steroids were administered to him.
After a period of extensive discovery, jury trial was
had on the matter before Judge Robert H. Wilson. Plaintiffs
testified that Dr. Marks had never told them of the side effects
of steroid treatment, and that if he had, then Victor Hill would
have quit his job to avoid exposure to the substances which
caused his dermatitis. Dr. Marks and his nurse, on the other hand,
testified that while the specific side effects were never enum-
erated, plaintiffs were informed many times that steroid treat-
ment was dangerous, that Dr. Marks hesitated to continue using it,
and that Victor Hill should get another job. There was evidence
that plaintiff did, in fact, try to seek other employment but had
no alternative skills. There was also testimony that plaintiff's
condition was a severe one, that long-term steroid therapy, while
risky, was not entirely unheard of, and that the decision to under-
take such therapy is a matter of informed judgment by the treat-
ing physician after weighing the risks and benefits.
At the close of plaintiffs' case, defendant Squibb & Sons'
motion for directed verdict was granted on the ground that there
was no expert testimony that the package insert Squibb included
with Kenalog-40 was inadequate in warning of its side effects,
~efendantMarks also moved for directed verdict, raising the
statute of limitations as a bar and arguing further that plaintiff
had failed to establish a prima facie case because there had
been no expert testimony that Dr. Marks had failed to act as
a reasonably prudent physician in the area would have acted in
the same circumstances. The court denied Marks' motion, hold-
ing that in regard to the statute of limitations there was a
question of fact for the jury as to when plaintiffs' claim arose;
and that while lack of expert testimony was fatal to the plain-
tiffs' claim in regard to the question of malpractice, the issue
of lack of informed consent should go to the jury because the
question of whether plaintiffs had been told enough to make their
own judgment as to continuation of the treatment was a question
"readily ascertainable by the layman." The case was submitted to
the jury in that posture, and a verdict in favor of defendant
Marks was returned. The verdict was rendered in a general form;
it does not appear from the record whether the jury found the
statute of limitations issue to be determinative or if it was
rather the merits of the informed consent question that controlled.
On appeal, plaintiffs raise the following issues:
1. Whether the filing of an - parte trial brief by de-
ex
fendant Squibb was a violation of plaintiffs' due process rights.
2. Whether the trial court erred in granting a directed
verdict in favor of defendant Squibb.
3. Whether the trial court erred in excluding from evi-
dence certain of plaintiffs' proposed exhibits.
4. Whether the trial court erred in granting a directed
verdict in favor of defendant Marks on the issue of malpractice.
5. Whether the trial court erred in submitting the issue
of the statute of limitations to the jury rather than treating it
as a matter of law to be decided by the court.
Plaintiffs first objected to Squibb's - parte trial brief
ex
in the lower court in a motion for a new trial. Plaintiffs' spec-
ific objection was that Squibb's - parte brief had compromised
ex
plaintiffs' case in that it failed to cite many pertinent deci-
sions and distorted plaintiffs' evidence and the applicable law.
Plaintiffs also objected to the practice of allowing - parte
ex
trial briefs in general, contending that it violates a party's
right to an adversary hearing.
Rule 19 of the Rules of Practice of the District Court
of the Thirteenth Judicial District specifically allows the filing
of trial briefs to be used solely for the benefit of the trial
court and not divulged to opposing counsel. There is little
authority addressed to the propriety or impropriety of this
practice.
The ABA Code of Professional Responsibility, DR 7-llO(B),
contemplates submission of trial briefs without service on oppos-
ing counsel where "authorized by law". "[Iln the absence of
statute, rule, direction of the court, or agreement between coun-
sel requiring service on opposing counsel, it is not necessary,
and indeed not wise, to exchange trial briefs because of the pos-
sibility of educating opposing counsel as to the lawyer's theories
in regard to his case." 5 Am.Jur.Trials p. 92-93. The liter-
ature on preparation for trial in products liability cases strong-
ly recommends filing of trial briefs by plaintiffs in such actions.
Cf. 12 Am. Jur. Trials p. 121.
We recognize that theoretically a rule allowing for the
filing of - parte briefs may be suspect in that it conflicts
ex
with the spirit of openness and cooperation underlying the modern
rules of civil procedure. Nonetheless, judges have a right to
secure a trial brief from the attorneys in a cause and, indeed,
in a complex case such a brief may be indispensible to inform
the judge of the nuances of the arguments that will be forwarded
at trial. In our opinion, if the fact that the contents of the
brief will be divulged inhibits counsel from accomplishing that
end and thereby impedes the ability of the judge to be fully
informed, then a rule allowing for - parte trial briefs is
ex
defensible.
In any event, plaintiffs' attack on the rule here on
constitutional grounds is not persuasive. Plaintiffs themselves
could have filed such a brief if there were matters they felt
were in need of clarification or explanation. Plaintiffs pre-
sented testimony for eight days, at the conclusion of which
Squibb moved for directed verdict. Thereafter, both the attorney
for Squibb and the attorneys for plaintiffs were given ample
opportunity to argue the motion. Under these circumstances, we
cannot find that plaintiffs were denied due process. Further-
more, our reading of the trial brief in conjunction with the
record and our review of the authorities cited in it does not
indicate that plaintiffs' case was in any way compromised there-
by. We find no error on this point.
We now turn to the second issue on appeal; alleged error
in the directed verdict for Squibb & Sons. Squibb maintains that
the directed verdict was proper because plaintiffs failed to
produce expert testimony that the package insert in Squibb's prod-
uct inadequately warned of dangers. Squibb contends that because
of this failure plaintiffs did not establish a prima facie case.
We agree.
As a general rule, the duty of a drug manufacturer to
warn of the dangers inherent in a prescription drug is satisfied
if adequate warning is given to the physician who prescribes it.
Dyer v. Best Pharmical (Ariz.App. 1978), 118 Ariz. 465, 577 P.2d
1084; Terhune v. A. H. Robins Co. (1978), 90 Wash.2d 9, 577 P.2d
975; McEwen v. Ortho Pharmaceutical Corp. (1974), 270 Or. 375,
528 P.2d 522; Davis v. Wyeth Laboratories, Inc. (9th Cir. 1968),
399 ~ . 2 d
121; 28 C.J.S. Drugs & Narcotics Supplement 857. By
logical extension, then, since the warning is directed to physicians,
only they or someone with similar expertise concerning pharmec-
euticals would be qualified to determine whether or not the warn-
ing was adequate.
There are no Montana cases specifically holding that a
plaintiff must produce expert testimony to sustain an action
against a drug company for failure to warn adequately of side
effects of its products. There are, however, numerous Montana
decisions to the effect that, in a malpractice suit against a
doctor or dentist, expert evidence is the only proper guide and
without it a plaintiff cannot recover. Cf. Llera v. Wisner
(1976), 171 Mont.254 , 557 P.2d 805, 33 St.Rep. 1211; Collins v.
Itoh (1972), 160 Mont. 461, 503 P.2d 36; Callahan v. Burton (1971),
157 Mont. 513, 487 P.2d 515; Negaard v. Feda (1968), 152 Mont. 47,
446 P.2d 436. We hold that the reasoning of these decisions ex-
tends to the situation involved here.
In matters "with respect to which a layman can have no
knowledge at all, the court and jury must be dependent on expert
evidence." Callahan, 157 Mont. at 520, 487 P.2d at 518-519. The
adequacy of a warning directed to physicians is such a matter.
This conclusion is consistent with the only other case we have
found where on similar facts an attempt was made to reach the
jury without expert testimony that the warning was inadequate.
Carlsen v. Javurek (8th Cir. 1979, 526 F.2d 202. In Carlsen,
of
a directed verdict in favor of the manufacturer/ an anesthetic
was upheld on appeal. Here, as in Carlsen, there was no expert
testimony that the warning was inadequate. On the contrary, the
only expert testimony on the issue was that of Dr. Marks, who
stated that in his opinion the warning - adequate.
was Therefore,
even viewing the evidence in the light most favorable to plain-
tiffs, we find that the directed verdict in favor of Squibb &
Sons was correct.
The third issue on appeal involves alleged error in
exclusion from evidence of several of plaintiffs' proposed ex-
hibits. The contested items are a 1977 Handbook of Practical
Pharmacology stating that osteoporosis could be a complication
of long-term steroid treatment, and a Contac package. We find
no error in the exclusion of the former because a 1977 publication
is no proof of knowledge that could be imputed to Squibb & Sons
during the period 1965 to 1971 when plaintiff was being treated.
Plaintiffs argued that the Handbook should have been admitted
under Rule 407, Mont.R.Evid. That rule has no application here
because the Handbook did not originate with Squibb and was not a
subsequent remedial measure taken by Squibb. As to the Contac
package, plaintiffs apparently offered it as an exhibit because
defense counsel in his opening statement noted that Kenalog-40
was "like a Contac pill" in that the drug is suspended in the
bloodstream and dissolved into the system over a period of time.
From this, plaintiffs sought to use the warning on the Contac
package that it is "not for frequent or prolonged use" as evi-
dence of inadequacy of the warning on the Kenalog-40 package
insert for lack of that phrase. Plaintiffs' argument is with-
out merit. The Contac package warning has no relevance because
Contac is a nonprescription drug and the warning is not intended
for the informed use of a physician but for the patient himself.
The District Court properly excluded both exhibits.
The fourth issue under consideration concerns the directed
verdict for Dr. Marks on the issue of malpractice. The District
Court held that plaintiffs! failure to produce expert testimony
in that regard was fatal to their cause of action. Plaintiffs
contend that this was error because Dr. Marks allegedly admitted
that he had violated the applicable standard of care and thereby
provided against himself sufficient expert testimony to establish
a prima facie case.
It is true that in several recent cases we have cited
with approval Evans v. Bernhard (1975), 23 Ariz.App. 413, 533
P.2d 721, for the proposition that third party expert testimony
is not necessary if a defendant doctor's own testimony establish-
es the standard of care and departure from it. Montana Deaconess
Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670; Llera
v. Wisner (1976), 171Mont.254 , 557 P.2d 805, 33 St.Rep. 1211.
Further, in Thomas v. Merriam (1959), 135 Mont. 121, 337 P.2d
604, we indicated that negligence of a doctor may be shown by
his own admissions. The crux of this issue is, then, did Dr.
Marks in fact testify what the standard of care was and that he
had violated it? We find that he did not.
In urging that Dr. Marks did so testify, plaintiffs rely
primarily on the following exchange that occurred during cross-
examination:
"Q. Is it fair to say that with respect to Vic
Hill, from the standpoint of the standard of
care, you didn't apply to him in administering
Kenalog that standard of care that you think you
should have, is that correct? A. In retrospect.
"Q. The answer is yes? A. Yes."
This short colloquy taken out of context does not, however, when
read in balance with the rest of Dr. Marks' testimony, have the
conclusive effect plaintiffs would give it. It does not appear
that Dr. Marks ever established what the standard of care was,
or admitted that he violated it. At one point he says "I -
was
the standard of care", since he was the only doctor in the com-
munity with specialized training in the treatment of disorders
like that of Victor Hill. He also testified that in Victor Hill's
case, in his best medical judgment, there were no alternatives to
the treatment he gave. Plaintiffs' contentions in this regard are
not b o r ~ o u t Dr. Marks' testimony, and the District Court did
by
not err in directing a verdict in his favor on the malpractice
claim for lack of expert testimony.
In conjunction with the directed verdict on the malpractice
issue, Dr. Marks has asked us to review the trial court's
denial of his motion for directed verdict on the issue of in-
formed consent. Marks contends that the trial court erred in
submitting the issue of informed consent to the jury in view of
the fact that there was no testimony, expert or otherwise, that
an ordinarily prudent physician would have been more specific
in warning of the possible side effects of steroid treatment.
Marks maintains that even though he has not cross-appealed on
this matter we can review the denial of his motion for directed
verdict on the informed consent issue under Rule 14, M.R.App.
Civ.P. From our research into the authorities construing the
statutory predecessors of Rule 14, M.R.App.civ.P., it does not
appear that Marks comes within either its scope or its purpose
on the circumstances present here. Francisco v. Francisco (1948),
120 Mont. 468, 191 P.2d 317, 1 ALR2d 625; J. M. Hamilton Co. v.
Battson (1935), 99 Mont. 583, 44 P.2d 1064, 101 A.L.R. 520;
5 Am Jur 2d Appeal and Error 8653. Therefore we decline to under-
take the review requested by Dr. Marks in this regard.
Nonetheless, we note in passing that the doctrine of in-
formed consent is one concerning which there is significant con-
fusion caused by a failure in many of the reported cases to
recognize distinctions. See 36 Ford.L.Rev. 639 (1968). "In
most cases involving this issue, courts have held that expert
testimony is necessary to establish the existence and scope of a
physician's duty to inform his patient of the risks of a proposed
treatment. The type of expert testimony required is testimony
as to the degree of risk or, more commonly, testimony as to the
standard medical practice to disclose risks under the same or
similar circumstances or, similarly, testimony as to whether a
reasonable medical practitioner would have disclosed a given
risk under the same or similar circumstances." Annot. 52 ALR3d 1084,
1088. Montana follows the latter version of the majority rule.
Negaard v. Feda (1968), 152 Mont. 47, 446 P.2d 436; Doerr v.
Movius (1970), 154 Mont. 346, 463 P.2d 477; Llera v. Wisner
(1976), 171 Mont. 254, 557 P.2d 805, 33 St-Rep. 1211.
The trial court judge in this case was aware of these
Montana decisions when he ruled on Dr. Marks' motion for direct-
ed verdict. He allowed the issue of informed consent to go to
the jury despite the absence of expert testimony because he felt
that the circumstances of the case came within language from
Llera, that expert medical testimony is not necessary if "the
conduct complained of is readily ascertainable by a layman."
Llera v. Wisner, 557 P.2d at 811, 33 St.Rep. at 1217-1218.
We note that this language from Llera goes to the question of
the establishment of a standard of care to demonstrate negligence
generally rather than to a standard of sufficiency of the physi-
cian's disclosure. In our opinion, there are different consid-
erations involved. Cf 36 Ford.L.Rev. 639 (1968). In any event,
since the jury found for Dr. Marks, if there was error in sub-
mitting the informed consent issue to them it was harmless error.
Therefore, any further discussion of the correctness or incorrect-
ness of the distinction drawn by the trial court judge would be
inappropriate here.
The final issue involved in this appeal is alleged error
by the court in submitting to the jury the question of whether
plaintiffs' claim was barred by the statute of limitations. Plain-
tiffs contend that in Montana the application of the statute of
limitations is to be determined by the court as a matter of law.
In support of that position plaintiffs rely on Hornung v. Richard-
son-Merrill, Inc. (D.Mont. 1970), 317 F.Supp. 183. Hornunq was a
products liability action against a drug manufacturer where the
defendant's motion for summary judgment on the statute of limi-
tations was denied because there was an issue of fact as to when
the plaintiffs should have become aware of the causal connection
between the damages at issue and the defendant's product. Judge
Russell Smith stated that on the trial of the case the Court
would resolve that issue of fact on the basis of the evidence
presented. In a footnote to that statement, Judge Smith noted:
"I would have thought that the fact problems
surrounding the application of a statute of lim-
itations would be resolved by a jury in a jury
case, but apparently the rule is otherwise."
Hornung, 317 F.Supp. at 185.
The cases cited in support of that footnote are Falls Sand &
Gravel v. Western Concrete, Inc. (D-Mont. 1967), 270 F.Supp. 495,
and Owens v. White (9th Cir. 1965), 342 F.2d 817. Our review of
those decisions and the cases cited in them indicates that they
represent a line of authority that was inapplicable to the cir-
cumstances, and that the initial thought mentioned by Judge
Smith in his footnote was correct.
Falls Sand & Gravel, supra, was a case involving alleged
negligent misrepresentation by a contractor of the amount of
materials to be furnished by a supplier. The court equated neg-
ligent misrepresentation with fraud and cited several Montana fraud
cases holding that the time at which there has been a discovery
of facts constituting fraud to start the running of the statute
of limitations is a question of law. Kerrigan v. O'Meara (1924),
71 Mont. 1, 227 P. 819; Ray v. Divers (1928), 81 Mont. 552, 264 P.
673. As to Owens, supra, that was a malpractice action, but it
was a decision construing Idaho law under which the issue of when
a plaintiff's claim accrued for purposes of the statute of limi-
tations is apparently a preliminary matter of law in every case
"and like all issues of law must be resolved by the court even
though this will require evidence." Owens, 342 F.2d at 819.
In relying on Falls Sand & Gravel and Owens, the court
in Hornung overlooked the line of authority which controls here
and should have been controlling there. Accordingly, plaintiffs'
reliance on Hornung here is inappropriate. The rule in Montana
and in the majority of jurisdictions is that whether an action is
b a r r e d by t h e s t a t u t e of l i m i t a t i o n s i s f o r t h e j u r y when t h e r e
i s c o n f l i c t i n g e v i d e n c e a s t o when t h e c a u s e of a c t i o n a c c r u e d .
S t a g g v. S t a g g ( 1 9 3 1 ) , 90 Mont. 180, 300 P. 539; 5 4 C.J.S.
L i m i t a t i o n s of A c t i o n s S399. That was t h e c a s e h e r e . Plain-
t i f f s made some u n s u b s t a n t i a t e d a l l e g a t i o n s t h a t D r . Marks had
somehow concealed t h e i r c a u s e of a c t i o n from them, b u t t h e r e i s
no e v i d e n c e i n t h e r e c o r d t h a t would s u p p o r t a p p l i c a t i o n of t h e
s p e c i a l r u l e i n fraud c a s e s here. W e hold t h a t t h e D i s t r i c t
C o u r t p r o p e r l y s u b m i t t e d t h e i s s u e of t h e s t a t u t e of l i m i t a t i o n s
t o t h e jury.
None of t h e s p e c i f i c a t i o n s of e r r o r r a i s e d by p l a i n t i f f s
have m e r i t . The judgments e n t e r e d by t h e D i s t r i c t C o u r t a r e
a f f irmed.
Chief J u s t i c e
Justice John C. Sheehy, specially concurring:
I concur with the foregoing opinion, but I want to
express my disapproval of Rule 19 of the Thirteenth Judicial
District, or any rule like it which permits the filing of -
ex
parte briefs with the Court.
I do not find in this case that the filing of the -
ex
parte trial brief deprived the plaintiff of due process, but
I can conceive of situations in which substantial harm would
be done to a party's case where trial briefs (in effect,
private communications to the trial court that are not
served upon the other party) deprive the District Court of
the benefit of the adversary process.
The spirit of the federal rules of civil procedure,
upon which the Montana rules of civil procedure are based,
is full and open disclosure of fact and law.
That spirit is best expressed in Burton v Weyerhaeuser
.
Timber Company (D.C. Oregon 1941), 1 F R 571, where the
.R
trial court said:
". . . I can sympathize with the desire of
counsel, experienced in the older forms
of practice, to withhold disclosure of
such dramatic issues until the midst
of trial, but it must be made clear that
surprise, both as a weapon of attack and
defense, is not to be tolerated under
the new federal procedure. . .
"Faithfully administered in spirit, as
my senior colleague and I are endeavoring
to administer them, the new rules outlaw the
sporting theory of justice from Federal
courts." 1 F.R.D. at p. 573.
All attorneys practicing under the Montana Rules of
Civil Procedure should come to know that the guidepost
of practice under the rules is full disclosure of law
and fact. This is most effectually done by adherence to
pretrial procedure. At that time, as the Court said in
Burton, supra:
"1. Parties are expected to disclose
all legal and fact issues which they
intend to raise at trial, save only
such issues as may involve privilege
or impeaching matter. As to these
two exceptions, disclosure may be
made to the judge conducting the
pretrial hearing without disclosure
to opposing counsel, and a ruling
will be made on the exception claimed.
"The test to be applied on impeaching
matter or any factual issue, which counsel
feels should not be disclosed to his
opponent in advance of the trial, is
the simple one--whether disclosure or
nondisclosure will best promote the ends
of justice. That is for the judge conducting
the pretrial hearing to determine." 1 F.R.D.
at 5 7 2 .
The day is gone when the prototype old fashioned attorney
produced the hidden witness at trial or the uncited but
decisive case and left the opposing attorney lying bloody
on the courtroom floor. Justice is achieved, under the
spirit of our modern rules, by full and open disclosure of
law and fact. The statements in Burton were approved in
the Ninth Circuit Court of Appeals in Walker v. West Coast
Fast Freight Inc. (9th Cir. 1956), 2 3 3 F.2d 939.