No. 81-299
I N TIiE SUPREI4E COURT OF THE STATE OF ElOlJTANA
1982
DENNIS L. JOHNSON, G u a r d i a n Ad L i t e m
f o r MARK L. JOHNSON, a n i n f a n t ,
P l a i n t i f f and A p p e l l a n t ,
YOUNG plBN ' S CHRISITAN ASSOCIATION OF
GREAT FALLS,
Defendant and Respondent.
A p p e a l from: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e C o u n t y o f C a s c a d e , The H o n o r a b l e
J o h n M. M c C a r v e l , J u d g e p r e s i d i n q .
Counsel of Record:
For Appellant:
Eoward F. Strause, Great F a l l s , Montana
F o r Respondenk :
S m i t h , B a i l l i e & Walsh, G r e a t F a l l s , Montana
--
Submitted: September 20, 1982
Decided: O c t o b e r 6 , 1982
Filed: 2~-( _ I
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Plaintiff sued the Great Falls YMCA for negligence
after his son Mark was found submerged in defendant's
swimming pool. A jury returned a verdict for defendant, and
plaintiff appeals. We affirm.
At the outset, we note that appellant's brief does not
contain a separate statement of issues presented for review,
as required by Rule 23(a)(2), M.R.App.Civ.P., which makes
our ferreting out appellant's arguments a more difficult and
time-consuming task. Counsel are admonished to conform
their briefs to Rules 23 through 27, M.R.App.Civ.P.
In May 1977 Mark brought home from his school one of
defendant's brochures. In this brochure was a description
of the "Summer Action Club" which was advertised "safe,
well-supervised and inexpensive." Upon payment of the
required fee, Mark, age six, was enrolled in the Club and
his particular class was to run from June 27, 1977, to July
1, 1977. A day's activities in the Club usually concluded
with a "free swim" period in defendant's indoor pool, where
there was no formal instruction but individual informal
instruction was occasionally given. The shallow and deep
parts of the pool were divided by a rope.
Pam Boyle, a certified senior lifeguard at the YMCA,
gave Mark instructions on how to swim so that he was able to
dog-paddle the width of the pool without assistance. On
June 30, 1977, the Summer Action Club members had the usual
"free swim" period at the end of the day. There were not
more than twenty-five people in the pool at this time and
attendant at the pool were five counselors, including Boyle
and another senior lifeguard. All five were qualified in
lifesaving.
The f a c t s s u r r o u n d i n g M a r k ' s s u b m e r s i o n i n t h e w a t e r
are in dispute. M i s s y B l a i s , o n e of t h e j u n i o r c o u n s e l o r s ,
s t a t e d by a f f i d a v i t t h a t s h e n o t i c e d Mark p l a y i n g w i t h two
o t h e r b o y s and h a n g i n g o n t o t h e e d g e o f t h e p o o l a b o u t two
f e e t f r o m t h e d i v i d i n g r o p e , on t h e d e e p end s i d e . A short
time l a t e r s h e was summoned by o n e of t h e two b o y s who t o l d
h e r t h a t t h e y had b e e n p l a y i n g w i t h Mark b u t h e had n o t come
up y e t . However, t h e r e was o t h e r t e s t i m o n y i n d i c a t i n g t h a t
Mark had b e e n r u n n i n g a n d h a d f a l l e n i n . A t any r a t e , B l a i s
found Mark submerged in about four and one-half f e e t of
water, s i x t o e i g h t i n c h e s from t h e bottom o f t h e p o o l and
d r i f t i n g towards t h e middle of t h e pool.
B l a i s and a boy p u l l e d Mark f r o m u n d e r t h e w a t e r a n d
yelled for help. What h a p p e n e d n e x t is a l s o i n d i s p u t e .
B l a i s c l a i m e d s h e c a r r i e d Mark t o t h e e d g e o f t h e p o o l and
t h a t Nark was g i v e n no mouth-to-mouth resuscitation while i n
the water. B o y l e , on t h e o t h e r h a n d , t e s t i f i e d t h a t s h e m e t
B l a i s i n t h e w a t e r c a r r y i n g Mark, g r a b b e d Mark by t h e h a i r
and swam t o t h e s i d e o f t h e p o o l . Boyle f u r t h e r t e s t i f i e d
that, while still in the water, s h e g a v e Mark two q u i c k
b r e a t h s of air, using artificial resuscitation, and Mark
vomited. After c l e a r i n g h i s mouth o u t , s h e g a v e him two
more q u i c k b r e a t h s , and h e v o m i t e d again. Mark was t h e n
l i f t e d o u t o f t h e w a t e r where c a r d i o - p u l m i n a r y r e s u s c i t a t i o n
was a d m i n i s t e r e d u n t i l a m b u l a n c e p e r s o n n e l a r r i v e d . One o f
t h e ambulance p e r s o n n e l ( C h e r e w a t e n k o ) t e s t i f i e d t h a t when
h e a r r i v e d Mark was u n c o n s c i o u s b u t was b r e a t h i n g and had a
weak p u l s e . Mark was t h e n t a k e n t o t h e h o s p i t a l w h e r e h e
stayed for four days, two of which were for observation
purposes.
On April 14, 1978, plaintiff filed a complaint
alleging that defendant was negligent in the care and super-
vision of Mark. Defendant answered, denying the negligence
allegations and generally contending that defendant had
exercised ordinary care in supervising and assisting Mark
when he became endangered.
The parties exchanged numerous interrogatories and
submitted pretrial memoranda. Plaintiff's motion for
summary judgment on the issue of liability was denied. At
trial, one of the major issues was the length of time Mark
was under water. The trial judge admitted, over plaintiff's
objection, Boyle's testimony regarding an experiment per-
formed by her thirty minutes after the incident. In this
experiment, she threw a diving ring into the pool at the
location where Mark was recovered and timed how long it took
two young boys (one of whom had helped pull Mark from under
the water) to retrieve it. Boyle concluded from this ex-
periment that Mark was under water for about thirty seconds
or at the maximum, one to one and one-half minutes. A ten-
pound diving weight was also thrown in so that it settled
near the drain in the pool, and the boys were unable to
retrieve it. From this, Boyle concluded that Mark was not
on the bottom of the pool when rescued.
During the trial, plaintiff called psychologists to
testify that Mark had a learning disability proximately
caused by the lack of oxygen during his submersion in the
water. Defendant called the treating physician who testi-
fied that no brain damage had occurred. After receiving the
judge's instructions, which included statements addressing
t h e p ro p e r s t a n d a r d of c a r e , t h e j u r y r e t u r n e d a v e r d i c t f o r
the defendant. Plaintiff's motion for a new trial was
d e n i e d , and p l a i n t i f f a p p e a l s .
The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l :
1. Whether t h e D i s t r i c t Court erroneously admitted
t h e testimony regarding t h e diving r i n g experiment;
2. Whether plaintiff is entitled to a new trial
because of newly d i s c o v e r e d evidence or b e c a u s e of defen-
d a n t ' s a b u s e of p r e t r i a l d i s c o v e r y ;
3. Whether t h e D i s t r i c t C o u r t e r r o n e o u s l y i n s t r u c t e d
t h e j u r y on t h e p r o p e r s t a n d a r d o f c a r e ; a n d
4. Whether the District Court erred in failing to
g r a n t p l a i n t i f f ' s m o t i o n f o r summary judgment on t h e i s s u e
of l i a b i l i t y .
Initially, appellant argues that Boyle's testimony
r e g a r d i n g t h e d i v i n g r i n g e x p e r i m e n t was i m p r o p e r l y a d m i t t e d
because the test was not conducted under "substantially
similar" conditions. Appellant further argues that Boyle
was n o t q u a l i f i e d a s a n e x p e r t t o compare t h e d i f f e r e n c e s
b e t w e e n how a human body would r e a c t i n w a t e r a s o p p o s e d t o
the diving ring.
R e s p o n d e n t c o u n t e r s t h a t a s u f f i c i e n t f o u n d a t i o n was
l a i d and r e l i e s on H u r l y v. Star Transfer Company (1962),
1 4 1 Mont. 1 7 6 , 376 P.2d 504. I n H u r l y , we s t a t e d t h a t t h e
t r i a l c o u r t h a s d i s c r e t i o n on w h e t h e r t o a d m i t e v i d e n c e o f
an experiment and substantial s i m i l a r i t y of conditions
between t h e e x p e r i m e n t and t h e a c t u a l i n c i d e n t i s a l l t h a t
is necessary.
The t e s t i m o n y r e g a r d i n g t h e d i v i n g r i n g e x p e r i m e n t was
properly admitted. This evidence supported the conclusion
t h a t i t took one t o o n e and one-half minutes t o r e t r i e v e t h e
v i c t i m from t h e pool. T h u s , no b r a i n damage c o u l d h a v e o c -
c u r r e d i n view of one d o c t o r ' s expert testimony t h a t for
b r a i n damage t o o c c u r t h e v i c t i m m u s t b e d e p r i v e d o f o x y g e n
for three to four minutes. Moreover, another doctor
t e s t i f i e d t h a t l a c k o f oxygen f o r f i v e m i n u t e s i s r e q u i r e d
b e f o r e b r a i n damage o c c u r s .
Also, t h e circumstances of t h e e x p e r i m e n t h e r e were
substantially similar so as to allow the admission of
Boyle ' s testimony. The experiment was conducted thirty
m i n u t e s a f t e r t h e i n c i d e n t and i n v o l v e d t h e same boy who had
h e l p e d p u l l Mark o u t o f t h e w a t e r . A l t h o u g h it is o b v i o u s
t h a t a d i v i n g r i n g o r d i v i n g weight has d i f f e r e n t dimensions
t h a n a s m a l l b o y ' s body, t h i s e v i d e n c e was p r o b a t i v e t o p r o -
v i d e t h e f a c t f i n d e r w i t h a n i n d i c a t i o n o f t h e time i n v o l v e d
i n e f f e c t i n g t h e rescue. The t r i a l j u d g e d i d n o t a b u s e h i s
d i s c r e t i o n i n allowing evidence of t h e experiment. Hurly,
supra. S e e a l s o , Hanson v. Howard 0 . M i l l e r , Inc. (1969),
93 I d a h o 3 1 4 , 460 P.2d 739 ( a d m i s s i o n o f a b r a k i n g e x p e r i -
ment o f a d i f f e r e n t k i n d o f c a r t h a n t h a t i n v o l v e d i n t h e
accident was left to the sound discretion of the trial
court).
Appellant n e x t argues t h a t he is e n t i t l e d to a new
t r i a l because of newly d i s c o v e r e d e v i d e n c e and d e f e n d a n t ' s
p r e t r i a l discovery abuses. Regarding t h e p r e t r i a l d i s c o v e r y
abuse, a p p e l l a n t a r g u e s t h a t d e f e n d a n t was a l l o w e d t o add
four new witnesses the day before the trial, including
Boyle. According to appellant, defense counsel knew of
Boyle's whereabouts (from an undated letter received by
defendant describing the incident) but failed to inform
plaintiff of her addrsss in violation of defendant's duty to
supplement its interrogatory answers.
Respondent admits that it did not provide Boyle's
Nebraska address to plaintiff but contends that it would
have been a useless act because the address was outdated and
would not have led to contact with Boyle anyway. Respondent
argues that it had received a phone call that Boyle had come
to Great Falls on her own during her 1980 Christmas vacation
(the trial started January 7, 1981) and this was the first
time that defendant knew of Boyle's whereabouts. Respondent
also claims that appellant abused the discovery process
because ambulance employee Cherewatenko was never identified
in interrogatory answers as being an expert, was never iden-
tified in appellant's pretrial memorandum as being a wit-
ness, and Cherewatenko would not discuss the case with
defense counsel. Cherewatenko later testified as an expert
in the case.
Neither counsel's action in this regard is commendable
as both were lax in keeping the other party informed of
pretrial developments and in supplementing answers to inter-
rogatories. The District Court did not commit reversible
error by allowing Boyle to testify. Appellant strenuously
objected to her testimony because she was going to testify
that Mark could swim whereas appellant had previously been
under the impression that he could not. However, Boyle was
intimately involved in the incident. Her testimony was
probative of the matter surrounding the resuscitation of
Mark and the amount of time that he was deprived of oxygen.
Moreover, plaintiff interviewed Boyle prior to trial
and rejected offers of a continuance by defendant and the
trial judge. Under the circumstances here, plaintiff should
have requested a continuance, Kipp v. Wong (1974), 163 Mont.
476, 517 P.2d 879, and Hill v. McKay (1908), 36 Mont. 440,
33 P. 345. Plaintiff argued against such continuance,
submitted his case to the jury and, after an adverse jury
verdict, seeks a new trial. Plaintiff is not entitled to
have his cake and eat it too.
Appellant also argues for a new trial on the ground of
newly discovered evidence, i.e., Missy Blais was located in
Portland, Oregon, af ter the trial and an af fidavit obtained
from her differed in several aspects from Boyle's testimony.
Although a counteraffidavit of Blais (submitted by defense
counsel to correct some of the statements in Blais's
original affidavit) was filed, it still appears that Blais
did not remember handing Mark to Boyle or Boyle giving Mark
mouth-to-mouth resuscitation in the pool.
The statute describing grounds for a new trial states
in pertinent part:
"Grounds for new trial. The former ver-
dict or other decision may be vacated and
a new trial granted on the application of
the party aggrieved for any of the fol-
lowing causes materially affecting the
substantial rights of such party:
"(4) newly discovered evidence material
for the party making the application
which he could not, with reasonable dili-
gence , have discovered and produced at
the trial;
MCA.
. . .
" Section 25-11-102,
The statute requires that newly discovered evidence could
not have been discovered with reasonable diligence. In his
brief, plaintiff does not deny that one of plaintiff's
witnesses, Lisa Galligos (who was called at trial by plain-
tiff and was listed as one of the plaintiff 's witnesses on
both pretrial orders) knew where Blais was all along. A
si~nple inquiry by plaintiff of one of its own witnesses
would have been sufficient. Further, in one of defendant's
answers to plaintiff's interrogatories, Blais was described
as having pulled Mark from under the water and having taken
him to the edge of the pool. This established Blais as a
crucial witness. Had plaintiff interrogated his witnesses
more thoroughly prior to trial and during preparation of his
case, he would have discovered the whereabouts of Blais.
Appellant next argues that the District Court errone-
ously instructed the jury on the proper standard of care by
refusing to give three proposed instructions, which speci-
fically stated that a greater degree of care is owed to a
child than to an adult. The court sustained objections to
these instructions on the grounds that they did not state
the law in Montana as reflected in Henroid v. Gregson Hot
Springs (1916), 52 Mont. 447, 158 P. 824. The court instead
gave appellant's Instruction No. 22, which read:
"When a person undertakes the control of
supervision of a child, he has the duty
to use reasonable care to protect the
child from injury. Although such person
is not an insurer of the safety of the
child, he is required to use reasonable
care commensurate with the reasonable
foreseeable risk of harm to which the
child might be subjected while under his
control and supervision."
Henroid appears to be the sole Montana case discussing
a swimming pool operator's standard of care owed to a child.
In Henroid a thirteen-year-old boy who apparently could swim
(although plaintiff alleged otherwise) drowned in defen-
dant's pool. In affirming the trial court's granting of a
nonsuit, this Court said:
"Plaintiff must have had some purpose,
however, in alleging that Leo Henroid
could not swim and in attempting to prove
the fact, and that this fact was known to
defendant. It must have been the purpose
of this allegation to fix the measure of
defendant's duty in this particular
instance. That duty is to be measured by
the standard of ordinary care (Phillips
v. Butte, etc., Fair Ass'n, 46 Mont. 338,
127 Pac. 1011, 42 L.R.A. [N.S.] 1076),
and ordinary care- care proportionate
-- is-
to the risk to be apprehended and guarded
against (Bourke v. Butte, E. & P. Co., 33
Mont. 267, 83 Pac. 470). ..
"Other things being equal, the defendant
would owe a nigher degree of care to the
boy whom it knew could not swim, and who
was permitted in the pool, than to one
whom it knew could swim. In other words,
the ability to swim or the lack of it
would be an important factor in the sum
of all the circumstances which determine
what is and what is not ordinary care."
(Emphasis added.) 52 Mont. at 455-456,
158 P. at 825.
This statement in Henroid appears to be in keeping
with other pronouncements on the subject. In Gault v.
Tablada (S.D. Miss. 1975), 400 F.Supp. 136, aff'd, 526 F.2d
1405, a six-and-one-half-year-old boy (approximately the
same age as Mark here), who could dog paddle a little but
could not swim, drowned in defendant's motel pool. In
discussing the standard of care owed to the boy in
Mississippi, the court stated:
"In Mock v. Natcnez Garden Club, 238
Miss. 377, 9 2 So.2d 562 (1957), 8
k.L.R.2d 1315, the Mississippi Supreme
Court held that the owner or operator of
a bathing resort and swimming pool owed a
duty to use ordinary or reasonable care
for the safety of patrons or to guard
against injury to them, and must exercise
reasonable care and diligence to provide
a reasonably safe place or accommodations
and maintain the premises in a reasonably
safe condition for their use. This duty
varies according to the risk involved and
- age- the invitees on the premises,
the
- of
and the defendants were bound to consider
whether the pool area, although perhaps
s a f e enouah f o r a d u l t a u e s t s . D r e s e n t e d
aEY------------------------- d a n 2------
reasonably avoidable ers t o
c h i l d r e n of tender ase. -
G a r d e n C l u b , s u p r a a t 564.
Mock v. N a t c h e z
See a l s o ,
C i t y o f ~ a c k s o n v l l l ev . S t o k e s , 74 S o . 2 d
278 ( F l a . 1 9 5 4 ) . T h u s , t h e known p r e s e n c e
- [ d e c e d e n t ] , a s well a s v a r i o u s o t h e r
of
c h i l d r e n who were g u e s t s a t t h e d e f e n -
d a n t s ' m o t e l , imposed a d u t y o f c a r e upon
t h e defendants commensurate with the
f a c t s and circumstances t h e n e x i s t i n g .
Waugh v . Duke C o r p o r a t i o n , 248 F.Supp.
626 (M.D. N.C. 1966) . . .
" (Emphasis
added.) 400 F.Supp. a t 1 3 9 .
The c o u r t a l s o n o t e d t h a t i n M i s s i s s i p p i , a s i n Montana, a
child under s e v e n c a n n o t be contributorily negligent, 400
F.Supp. a t 140. See, Burns v. Eminger ( 1 9 2 7 ) , 8 1 Mont. 79,
261 P. 613, and Graham v. R o l a n d s o n ( 1 9 6 7 ) , 1 5 0 Mont. 270,
I n B a i l e y v. YMCA ( 1 9 6 5 ) , 1 1 2 Ga.App. 684, 1 4 6 S.E.2d
324, a nine-year-old boy who could not s w i m drowned in
defendant's swimming p o o l , and t h e r e , as here, no o n e saw
the boy go under the water or knew exactly how he had
entered the water. In affirming the jury verdict for
d e f e n d a n t and denying plaintiff's m o t i o n f o r a new t r i a l ,
the court said:
". . . c h i l d r e n of t e n d e r age . . .may
be e n t i t l e d t o a g r e a t e r d e g r e e o f care
f r o m a d u l t s t o w a r d - them, p r 6 p o r t i o n e d t o
t h e i r a b i l i t y t o f o r e s e e and a v o i d p e r i l s
w h i c h may b e e n c o u n t e r e d ; b u t r e g a r d l e s s
of t h e age o r c a p a c i t y of t h e i n j u r e d
p e r s o n , i f t h e r e i s no b r e a c h o f l e g a l
d u t y on t h e p a r t o f t h e d e f e n d a n t t o w a r d
t h a t p e r s o n , t h e r e c a n b e no l e g a l l i a -
bility. A u g u s t a Amusements, I n c . v .
P o w e l l , 93 Ga.App. 7 5 2 , 7 5 4 , 92 S.E.2d
720." (Emphasis added.) 1 4 6 S.E.2d a t
337.
The j u r y was p r o p e r l y c h a r g e d i n t h e i n s t a n t case by
a p p e l l a n t ' s I n s t r u c t i o n No. 22. Although it d o e s n o t s p e c i -
f i c a l l y s t a t e t h a t a g r e a t e r d u t y i s owed, i t e x p r e s s e s t h e
i d e a t h a t t h e reasonable c a r e t o be accorded t h e p l a i n t i f f
by defendant must be commensurate to the foreseeable risk of
harm, i.e., the child's age and maturity are factors to be
taken into account in determining what risks are reasonably
foreseeable. Henroid, Gault and Bailey, supra, all bear
this out.
Moreover, plaintiff's counsel fully argued to the jury
the proper standard of care and pointed out the particulars
of the alleged negligence of Boyle and the defendant.
Plaintiff's substantial rights were not prejudiced by the
failure to give the requested instructions. Associated
Agency of Bozeman, Inc. v. Pasha (1981), - Mon t . , 625
P.2d 38, 38 St.Rep. 344.
Lastly, appellant argues that the District Court erred
in failing to grant plaintiff's motion for summary judgment
on the liability issue, relying principally on the cases
cited as authority in his rejected jury instructions. We do
not agree. There were a number of genuine issues of material
fact presented by defendant, thereby precluding plaintiff's
motion for summary judgment on the issue of liability. Rule
56(c), M.R.Civ.P. For example, there was a factual question
of whether defendant had provided a sufficient ratio of
lifeguards to pool users according to water safety proce-
dure. There was also a factual question, raised by the
complaint and an expert's affidavit, as to how long Mark was
under water which, of course, is the nub of plaintiff's
case. Furthermore, there was a factual question of whether
defendant had properly instructed its patrons in pool use in
accordance with accepted water safety standards. By virtue
of these and other factual questions, we hold that the Dis-
trict Court did not err in failing to grant plaintiff's
motion for summary judgment on the liability issue.
Affirmed.
Q#
3 ~ 9~ qJ42.p
4
Chief Justice
We concur:
/7
Mr. Justlce John C. Sheehy, dissentlny:
The first ground upon which I would reverse and grant
a new trial of this cause is the impropriety of admitting
evidence of the experiment by Pam Boyle, and her opinion
based upon that experiment as to the length of time that
hark Johnson was under water, deprived of oxygen.
Pam Boyle's testimony of the near drowning incident
beglns witn herself being in the pool hanging onto the edge,
approximately half way between the two ends on the side of
the pool away from the boys' locker room. While she was
there a young boy swam up to her and informed her that a boy
had drowned. She then saw Missy Blais and another boy
bringing Mark Johnson from the water somewhere in the middle
oi the pool. She went to them, took Mark Johnson from Missy
Blals, and immediately started to administer mouth-to-mouth
resuscitation. She stated, probably truthfully, that she
hdd saved MarK Johnson's life.
After the incident, Pam staged a series of races among
several boys involving a rubber ring and a ten-pound weight
tor the purpose of determining how long Mark Johnson was
under tne water. According to her testimony, these tests
demonstrated that Mark was under water only thirty seconds.
She was allowed to testify to that conclusion as a fact.
Based on her observation, ner opinion as to the result
of the experiment, limiting Mark's underwater experience to
tnirty seconds, was clearly irrelevant. She did not estab-
llsh, and no other witness established, how long Mark
Johnson had been under the water before he was discovered
and brought to the surface by Ms. Blais and the boy. At the
most the races or games, conducted after the incident, only
showed how long it would take boys, diving and swimming, to
retrieve a rubber ring or a diving bell from under the
water. As a matter of fact, the boys were unable to
retrieve the diving bell.
It was, of course, irnpossible to establish that Pam
Boyle was an expert as to how long Mark was under the water
prior to being brought to the surface. It takes actual
observation, not expertise, to establish such a fact. -
She
did not have the actual observation.
The rule applicable to the admissibility of the
opinion of an expert witness in Montana, until now, has been
that if his opinion is unsupported by the details of his
nledsurements or observations, both as to the data upon which
they are based and the manner of reaching the result, his
opinion is not competent or relevant. When he gives the
details it is a question of law whether his method was
correct, and a question of fact as to whether his result was
correct. Irion v. Hyde (P940), 110 Mont. 570, 105 P.2d 666.
The rule in Irion applies with special force in this case:
"A witness, of special knowledge or skill
on a subject outside of the ordinary
realm of human experience, may be permit-
ted to state his inference, from facts
observed by him, as to matters connected
with his specialty, not only because of
the frequent difficulty of communicating
the facts to the jury but also because,
even if the facts could be fully laid
before them, they would not possess the
special knowledge or training necessary
to coordinate and weigh the facts so as
to draw the correct and proper inference
rherefrom. Such a witness is frequently
termed an expert, but this is inaccurate,
for the skilled witness testifies to the
result of his own observation, and
occupies tne same position as any other
witness except that within certain lines
ne possesses a superior knowledge which
enables him to understand, as one without
such special knowledge could not, what he
has observed, although he may also be
competent to testify as an expert upon
hypothetically stated facts. ..
It.. . the judgment of an expert, when
opposed to undisputed facts and the dic-
tates of common sense, will not support a
verdict, and the court should not-permit
the iurv to be influenced bv evidence on
which they could not, within the laws of
correct reasoning, make the finding. ..
"'l'he reasons for rejecting a conclusion
become stronger where it is apparent that
it cannot reasonably be reached on the
facts which are claimed to support it,
where such facts are themselves the
result of inference, or where the conclu-
sion is not a necessary one. . .I1 110
Mont. at 577-578, 105 P.2d at 671. (Em-
phasis added; citations omitted.)
'The evidence of this professed expert, not being based
upon her knowledge, observation, or an inference of fact
reasonably derived from other facts, was compounded when her
opinion as to length of time that Mark Johnson was under
water was used as a basis by defense medical witnesses to
testify that he could not have suffered oxygen deprivation.
Her opinion flies in the face of her observed condition of
the boy following his rescue, that his lips were blue, and
of an independent witness, who observed that the boy's face
was blue. In fact, in a later-discovered letter that Pam
Boyle herself had written to defense counsel, she stated,
"Mark's face was very blue and I got no response after
slapping his face."
The staged races among the boys could never be a basis
for her opinion as to how long Mark was under water when no
observation existed to support the conciusion given.
Secondly, this case should be reversed because of the
f a l l t i r e by d e f e n s e t o comply w i t h p r e t r i a l d i s c o v e r y r u l e s .
On t h e d a y b e f o r e t h e t r i a l , c o u n s e l f o r d e f e n s e moved
t h e c o u r t t o add f o u r w i t n e s s e s t o t h e l i s t of p r o p o s e d w i t -
nesses i n the t r i a l . One of t h e s e names, Pam B o y l e , t u r n e d
o u t t o be a c r i t i c a l w i t n e s s i n t h e c a u s e . The o t h e r t h r e e
w i t n e s s e s had n o t been i d e n t i f i e d t o p l a i n t i f f ' s c o u n s e l i n
any p r e t r i a l discovery beforehand, although seasonably
plaintiff had requested in interrogatories the names and
addresses of all witnesses having any knowledge of the
p e r t i n e n t f a c t s of t h e i n c i d e n t .
The s i t u a t i o n w i t h Pam B o y l e i s p a r t i c u l a r l y d i s t u r b -
ing. Her a d d r e s s g i v e n by t h e d e f e n s e i n t h e i r r e s p o n s e t o
t h e i n t e r r o g a t o r i e s was h e r p a r e n t ' s home, b u t i n f a c t t h i s
was n o t h e r t r u e a d d r e s s . I t was d i s c o v e r e d a t t h e t i m e o f
t h e m o t i o n f o r new t r i a l , when t h e a e f e n s e was r e q u i r e d by
t h e c o u r t t o "cough-up" a letter i t had r e c e i v e d f r o m Pam
Boyle b e f o r e the t r i a l , t h a t defense counsel did in fact
have her address, and that she was residing in Omaha,
Nebraska. Miss B o y l e w r o t e a l e t t e r t o t h e law f i r m , in
which she stated some facts that are certainly now at
variance with what she testified at the trial. In her
letter she s t a t e s :
". . . I was somewhere i n t h e s h a l l o w e n d
when Mark r e q u e s t e d p e r m i s s i o n t o go t o
t h e bathroom. P e r m i s s i o n was g i v e n .
" A s h o r t t i m e l a t e r ( I h a v e no i d e a o f
t n e e x a c t t i m e ) J o e y a n d a n o t h e r boy w e r e
s h o u t i n g a t m e a c r o s s t h e p o o l and Missy,
a j u n i o r c o u n s e l o r , b r o u g h t Mark t o m e .
I was by t h e s i d e , somewhere b e t w e e n t h e
t h r e e and f i v e f o o t mark on t h e r i g h t
s i d e of t h e p o o l .
" M a r k ' s f a c e was v e r y b l u e and I g o t no
response a f t e r slapping h i s face. . ."
It wiil be s e e n f r o m t h e c o n t e n t s of her letter to
counsel, a p p a r e n t l y some p e r i o d of t i m e before the t r i a l ,
t h a t Pam B o y l e had no b a s i s upon which s h e c o u l d e s t i m a t e
t h e p e r i o d o f t i m e t h a t Mark J o h n s o n had b e e n u n d e r w a t e r .
b e c a u s e of t h e f a i l u r e o f d e f e n s e c o u n s e l , w h e t h e r p u r p o s e l y
or inadvertently is unimportant, t o divulge t h e t r u e address
i n r e s p o n s e t o t h e i n t e r r o g a t o r i e s of Pam B o y l e , p l a i n t i f f
was d e p r i v e d o f t h i s m o s t i m p o r t a n t i n f o r m a t i o n .
Plaintiff, i m m e d i a t e l y b e f o r e t r i a l , made a m o t i o n -
in
l i m i n e t h a t Pam B o y l e and t h e o t h e r t h r e e w i t n e s s e s n o t b e
a l l o w e d t o t e s t i f y b e c a u s e of t h e f a i l u r e o f d e f e n s e c o u n s e l
t o a b i d e by t h e p r e t r i a l d i s c o v e r y r u l e s . The c o u r t r e f u s e d
t h a t motion, and o f f e r e d i n s t e a d t o a l l o w i n t e r v i e w s of t h e
w i t n e s s e s on t h e d a y o f t h e t r i a l , and o f f e r e d t o c o n t i n u e
the cause i f necessary. The o f f e r t o c o n t i n u e t h e c a u s e was
d e c l i n e d s e v e r a l times by p l a i n t i f f ' s c o u n s e l , they relying
on t h e i r b e l i e f t h a t u n d e r Montana l a w , t h e t e s t i m o n y o f t h e
witnesses should not be allowed at all because of the
f a i l u r e of d e f e n s e c o u n s e l t o p r o v i d e t h e p e r t i n e n t informa-
t i o n i n accordance with p r e t r i a l discovery r u l e s .
The Montana Rules of Civil Procedure provide a
p o s l t i v e d u t y on t h e p a r t o f t h e p a r t y r e s p o n d i n g t o i n t e r -
rogatories to supplement the same to include information
thereafter acquired. R u l e 2 6 ( e ) ( 2 ) , M.R.Civ.P., provides:
"A p a r t y i s u n d e r a d u t y seasonably to
amend a p r i o r r e s p o n s e i f h e o b t a i n s
i n f o r m a t i o n upon t h e b a s i s o f which ( A )
h e knows t h a t t h e r e s p o n s e was i n c o r r e c t
when made, o r ( B ) h e knows t h a t t h e r e -
s p o n s e t h o u g h c o r r e c t when made i s no
l o n g e r t r u e and t h e c i r c u m s t a n c e s a r e
s u c h t h a t a f a i l u r e t o amend t h e r e s p o n s e
is i n s u b s t a n c e a knowing c o n c e a l m e n t . "
(Emphasis added. )
A t t h e t i m e of t h e r e c e i p t by d e f e n s e c o u n s e l of the
letter from Pam Boyle, mailed f r o m Omaha, Nebraska, the
detense counsel knew that the response that they had made
respecting her address was incorrect. Under the language of
our Rule 26, whether their failure to disclose the correct
address was purposeful or inadvertent, the legal effect is
that it is a "knowing concealment." The same rule applies
to the witnesses which were not divulged until the day
before trial, other than Pam Boyle.
In Sanders v. Mount Haggin Livestock Company (1972),
16c) Mont. 73, 500 P.2d 397 (Haswell, J., and Daly, J.,
dissenting), this Court, on nearly the same details, held it
reversible error for a trial court to allow witnesses to
testify whose location had not been made known to the other
party :
"This situation justified and required
the exclusion of the witnesses1 testi-
mony. A motion to exclude and disallow
any testimony of these witnesses was
made, supported, and elaborated upon with
a complete statement of the surrounding
facts. The trial court was in error to
refuse this sanction for failure to make
proper and accurate responses to inter-
rogatories that were designed to elicit
exactly the information which was with-
held." 160 Mont. at 82, 500 P.2d at 402.
It is not an answer to this issue that plaintiff's
counsel themselves never identified in interrogatory answers
an expert, Vern Cherewatenko, as being an expert or a wit-
ness. Two wrongs do not make a right, and we are not here
considering whether prejudice resulted to the defense from
the failure to divulge information about Cherewatenko. The
issues should easily have been resolved at the District
Court level by an evenhanded ruling from the District Court
that the undisclosed witnesses presented by either party
would not be allowed to testify when the pretrial discovery
process was abused.
I t i s my b e l i e f , since I subscribe t o f u l l disclosure
of law and facts at all stages of the trial, that the
p u r p o s e o f .the R u l e s o f C i v i l P r o c e d u r e i s b e s t s e r v e d when
l a w y e r s a r e f u l l y c a n d i d w i t h f e l l o w l a w y e r s and t h e c o u r t s .
By i n s i s t i n g on t h e i n t e g r i t y o f d i s c o v e r y u n d e r the rules,
we open up the facts, encourage settlements, and avoid
protracted litigation. T h e s e w e r e t h e p r o m i s e s h e l d o u t by
members o f t h i s C o u r t when t h e y came t o t h e l e g i s l a t u r e i n
1 9 4 3 t o g e t a u t h o r i t y t o a d o p t t h e f e d e r a l r u l e s of p r o c e -
dure for Montana. S i n c e S a n d e r s v. Mount Haggin, supra,
t h i s C o u r t h a s shown some s p i n e in i n s i s t i n g on t h e inte-
grity of the discovery process. Owen v. F. A. Buttrey
Co. ( 1 9 8 1 ) , - Mont. , 627 P.2d 1233, 38 S t . R e p . 714;
Swenson v. B u f f a l o B u i l d i n g Co. (1981), - Mont. , 635
P.2d 978, 38 S t . R e p . 1 5 8 8 ; K u i p e r v. District Court (1981)
- Plont. , 6 3 2 P.2d 694, 38 S t . R e p . 1288. T h e r e i s no
r e a s o n t o s t e p back now f r o m r e q u i r i n g f o r t h r i g h t c a n d o r i n
the discovery process.
L'
Mr. J u s t i c e F r a n k B . M o r r i s o n , J r . :
I concur in the foregoing dissent of Mr. Justice
Sheehy.