NO. 89-127
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
FLOYD E. SCOTT,
Plaintiff and Appellant,
-vs-
E. I. DUPONT DE NEMOURS & CO.,
a corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. P. Ryan; Ryan & ~c~llister,
Billings, Montana
For Respondent:
Charles R. Cashmore; Crowley Law ~ i r m ,
Billings,
P$ntana
Submitted on ~ r i e f s : Nov. 21, 1989
.. Decided: December 19, 1989
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Chief Justice J. A. Turnage delivered the Opinion of the Court.
Floyd Scott brought this suit under a theory of strict
liability, claiming that exposure to defendant's paint caused his
respiratory disability. A jury in the District Court for the
Thirteenth Judicial District, Yellowstone County, entered a verdict
for defendant. Scott appeals. We affirm.
The issues are:
1. Did the trial court err in refusing to allow Scott to take
the deposition of defense counsel?
2. Did the trial court err in excluding from evidence post-
accident changes in defendant's warning labels?
3. Did the trial court err in allowing the opinion testimony
of expert witness Bruce Held?
Scott was employed as a quality control inspector at Beall,
Inc., of Billings, Montana. Beall manufactured tanks used for
hauling liquid products. On January 28, 1981, Scott was working
on top of a new tank in Beall's paint room, calibrating the tank
for the liquid it would hold. At the same time, another worker,
Eldridge, was spraying defendant's Imron polyurethane enamel paint
onto the undercarriage of the tank.
Scott claimed that inhaling the fumes from the Imron paint
caused his totally disabling respiratory problems. He also claimed
that defendant failed to provide adequate warning on the Imron
paint cans, because the Imron label recommended the use of a
vapor/particulate mask, which did not provide a fresh air supply.
Defendant elicited testimony that Scott was not wearing any
protective mask on the day he claims he was injured, and that
Eldridge warned Scott that he should not be in the paint room while
Eldridge was painting. It also presented evidence that Scott's
respiratory problems are likely a result of his 40+ years of
smoking.
The jury was provided with a special verdict form. The first
question was, "Was the Defendant s product defective and unrea-
sonably dangerous because of an inadequate warning?" The jury
answered, eliminating any further questions under the verdict
form. The court entered judgment upon that verdict.
I
Did the trial court err in refusing to allow Scott to take the
deposition of defense counsel?
Eldridge, the painter, was deposed in July 1984. In his
deposition, Eldridge stated that he had not previously spoken with
either side's attorney. He also stated that he knew everyone in
his area should have been wearing a protective mask while he was
using Imron paint and that he warned Scott that he should not be
there. Scott's counsel later discovered that defense counsel
Cashmore had interviewed Eldridge two weeks prior to the deposi-
tion. Because Eldridge could not be located at the time of trial,
his deposition was to be read into evidence.
In May 1988, several months prior to trial, Scott Is counsel
issued a notice that they planned to take Cashmorels deposition.
The subject of the deposition would be the pre-deposition interview
with Eldridge. Defendant applied for and was granted a protective
order quashing the subpoena duces tecum issued in connection with
the planned deposition. Scott argues on appeal that the court's
refusal to allow the deposition was error.
While the lower court did not state its reasons for granting
the protective order, counsel's arguments focus on the work product
rule, Rule 26(b)(3), M.R.Civ.P. The defense argues that allowing
Cashmore to be deposed would invade his mental impressions and work
products, which are protected under the work product rule. Scott
asserts that a deposition of Cashmore concerning his interview with
Eldridge would fall within the exceptions to the work product rule
or could be structured to protect against invasion of work product.
Defendant contends that the court arranged ample alternatives
to a deposition of Cashmore. These included advising the jury that
the interview had taken place, which directly impeached Eldridgels
deposition statement that he had not talked with either side's
attorney. The court also offered, in spite of their hearsay
character, to allow into evidence two post-deposition written
statements of Eldridge. These statements acknowledged the
interview with Cashmore and contradicted other aspects of the
deposition testimony. Further, witness Dvorak apparently would
have testified that Eldridge later recanted his deposition
testimony that he knew of the dangers of using Imron paint without
fresh air masks. Scott chose not to offer Dvorak's testimony or
the post-deposition written statements of Eldridge into evidence.
The court did advise the jury that Cashmore's pre-deposition
interview with Eldridge had taken place.
Rulings limiting discovery under Rule 26(c), M.R.Civ.P., are
discretionary. Matter of Estate of Counts (1985), 217 Mont. 350,
355, 704 P.2d 1052, 1056. We conclude that in view of the
alternate means of impeaching Eldridge offered to Scott in this
case, the District Court did not abuse its discretion in refusing
to allow Scott to take Cashmore's deposition.
Did the trial court err in excluding from evidence post-
accident changes in defendant's warning labels?
Rule 407, M.R.Evid., provides:
When, after an event, measures are taken
which, if taken previously, would have made
the event less likely to occur, evidence of
the subsequent measures is not admissible to
prove negligence or culpable conduct in con-
nection with the event. This rule does not
require the exclusion of evidence of subse-
quent measures when offered for another pur-
pose, such as proving ownership, control, or
feasibility of precautionary measures, if
controverted, or impeachment.
At the time of the incident, the label on Imron paint sug-
gested, in some circumstances, the use of vapor/particulate masks
not containing fresh air supplies. Scott contends that, for
purposes of impeachment, he should have been allowed to introduce
evidence that after January 1981 defendant changed the label to
require the use of fresh air respirators when Imron is being used.
Defendant's position is that the evidence regarding which mask
was recommended is a red herring because Scott was wearing no mask
whatsoever. We agree. ~ i v e n that circumstance, we hold that the
court did not err in excluding from evidence post-accident changes
in the Imron paint labels.
I11
Did the trial court err in allowing the opinion testimony of
expert witness Bruce Held?
Bruce Held, an industrial hygienist, testified for defendant.
Scott argues that he should not have been allowed to testify
because defendant failed to adequately answer Scott's discovery
request for the substance of Held's expert opinion.
Rule 26(b) (4)(A), M.R.Civ.P., governs:
(A)(i) A party may through interrogatories
require any other party to identify each
person whom the other party expects to call as
an expert witness at trial, to state the
subject matter on which the expert is expected
to testify, and to state the substance of the
facts and opinions to which the expert is
expected to testify and a summary of the
grounds for each opinion. (ii) Upon motion,
the court may order further discovery by other
means, subject to such restrictions as to
scope and such provisions, pursuant to sub-
division (b) (4)(C) of this rule, concerning
fees and expenses as the court may deem appro-
priate.
Scott propounded interrogatories to defendant asking the names of
experts who would testify at trial, the opinions of the experts,
and the factual bases for the opinions. In answer to Scott's
interrogatories, defendant providedthe following information about
Held:
Bruce J. Held, Livermore, CA, Industrial
hygiene, Toxicology, Respirators, Respirator
testing and precautionary labeling.
Bruce J. Held--Effectiveness of the vapor-
particulate respirator (TC-23C) and require-
ments of proper respirator program required of
employer.
In the pretrial order, Scott asked the court not to allow Held to
testify. The court denied that request.
Held's testimony at trial was within the subject matter
indicated in the answers to interrogatories. While the answers
were not as complete as they should have been, Held was not a
surprise witness. The above answers to interrogatories were made
over three years prior to trial. Scott did not move to compel
further answers. The time elapsed lessens the importance of these
inadequate answers. We do not condone defendant's failure to
provide full and complete answers to interrogatories. However,
refusing to allow Held to testify would have been an extreme
sanction, given that defendant's offense was incompleteness in its
answers to interrogatories, not failure to answer. We hold that
the lower court did not err in permitting Held to testify.
We concur: