No. 93-621
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
ESTATE O F ROBERT N. NIEISEN, JR.,
Deceased,
plaintiff and Appellant,
MICHAEL H. PARDIS, d/b/a
PARDIS CHIROPRACTIC CLINIC,
Defendant and Respondent.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeannette Ellen Berry; Berry Law ~ i m ,
Bozeman, Montana
For Respondent:
Steve Reida; Landoe, Brown, Planalp & Braaksma,
Bozeman, Montana
Justice Karla M. Gray delivered the Opinion of the Court.
The Estate of Robert N. Nielsen, Jr., appeals from orders of
the First Judicial District Court, Lewis and Clark County, granting
Michael H. Pardis' motion for summary judgment and denying its
motion for relief from judgment or, alternatively, to alter or
amend the judgment. We affirm.
A brief factual and procedural outline of this case will set
the stage for the legal issues before us. While Robert Nielsen
(Nielsen) and his wife June were vacationing in Montana in August
of 1988, Nielsen was treated by Michael H. Pardis, a chiropractic
physician in Helena, Montana, doing business as Pardis Chiropractic
Clinic (Pardis). Pardis treated Nielsen over a span of several
days; x-rays were taken, and examinations and manual manipulations
were performed.
Nielsen filed his chiropractic malpractice complaint on August
8, 1991, alleging that his right clavicle was subluxed, dislocated
or broken from his sternum by Pardis' treatments. Pardis answered
in December of 1991, denying that he breached the duty of care and
that Nielsen was injured as a result. Nielsen died in January,
1992, and the Estate of Robert N. Nielsen, Jr. (the Estate),
subsequently was substituted as plaintiff. Nielsen's death was not
related to the chiropractic malpractice alleged in this case.
The case proceeded through the usual pre-trial stages.
Discovery was to close on November 13, 1992, with trial set for
February 1, 1993. On the Estate's motion, discovery was extended
until January 15, 1993, and the trial was rescheduled for February
2
22, 1993. The Estate moved to continue that trial date because
June Nielsen had broken her ankle and was unable to travel. Over
Pardis' objection, the court rescheduled the trial for September 7,
1993. The discovery deadline of January 15, 1993, was not
extended.
On July 30, 1993, with approximately five weeks remaining
until the trial date, Pardis filed his motion for summary judgment.
He asserted entitlement to summary judgment based on the Estate's
failure to produce evidence of the applicable standard of care, any
violation of that standard, and causation. The motion was heard on
August 27, 1993. On the date of the hearing, Pardis conducted a
deposition of Woodrow Fowler, D.C. (Fowler), the Estate's expert
witness. He also conducted a deposition of June Nielsen four days
later. On September 1, 1993, the District Court granted Pardis'
motion for summary judgment; the court's memorandum of decision
followed on September 17, 1993.
The Estate filed its alternative Rule 60(b) and Rule 59(g),
M.R.Civ.P., motion on September 27, 1993. In conjunction with its
motion, the Estate requested Pardis to file or make available for
filing the depositions of Fowler and June Nielsen, asserting that
the deposition testimony constituted newly discovered evidence.
Pardis objected to the filing of the depositions. The District
Court denied the Estate's motion for relief from or, alternatively,
to alter or amend the summary judgment. The Estate appeals.
Did the District Court err by granting summary judgment for
Pardis?
3
The District Court granted summary judgment to Pardis based on
the Estate's failure to produce expert medical testimony regarding
the applicable standard of care and a violation of that standard.
The court declined to apply the doctrine of res ipsa loquitur to
establish the Estate's malpractice claim.
Our standard for reviewing a grant of summary judgment is the
same as that used by the district court. Emery v. Federated Foods,
Inc. (1993), 262 Mont. 83, -, 863 P.2d 426, 431. We determine
whether there is an absence of genuine issues of material fact and
whether the moving party is entitled to judgment as a matter of
law. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849
P.2d 212, 214. The party moving for summary judgment has the
initial burden of establishing the absence of any genuine issue of
fact and entitlement to judgment as a matter of law. Brinkman and
Lenon v. P & D Land Enterprises (Mont. 1994), 867 P.2d 1112, 1115,
51 St.Rep. 36, 37. The burden then shifts to the nonmoving party
to set forth specific facts, by affidavit or as otherwise provided
in Rule 56, M.R.Civ.P., establishing a genuine issue of material
fact. Minnie, 849 P.2d at 214.
As the party moving for summary judgment, Pardis met his
burden. He demonstrated that there was no genuine issue as to any
material fact because the Estate had not established a prima facie
medical malpractice claim; it failed to produce the expert medical
testimony regarding standard of care and departure from that
standard generally required in malpractice cases. Mont. Deaconess
Hosp. v. Gratton (l976), 169 Mont. 185, 189, 545 P.2d 670, 672;
Baylor v. Jacobson (1976), 170 Mont. 234, 240, 552 P.2d 55, 58.
The burden then shifted to the Estate to establish a genuine issue
of material fact regarding the malpractice claim.
The Estate does not contend that it met this burden by
affirmatively producing the required expert medical testimony. The
Estate contends, however, that the District Court erred in failing
to conclude that it had presented a prima facie case under the
doctrine of res ipsa loquitur. We disagree.
While res ipsa loquitur Itpermitsproof of what happened to be
made by circumstantial evidence," plaintiff is still required to
present a prima facie case that defendant breached a duty of care.
Clark v. Norris (l987), 226 Mont, 43, 48, 734 P.2d 182, 185. We
have specifically rejected the notion that res ipsa loquitur can be
used to supplant the expert testimony regarding standard of care
and breach thereof required in a malpractice case. Dalton v.
Kalispell Reg. Hospital (1993), 256 Mont. 243, 248, 846 P.2d 960,
Furthermore, we agree with the District Court that a causal
connection between the purported negligence and the injury must be
established before res ipsa loquitur can be applied. The doctrine
of res ipsa loquitur provides:
"[Wlhen an instrumentality which causes injury without
any fault of the injured person, is under the exclusive
control of the defendant at the time of the injury, and
the injury is such as in the ordinary course of things
does not occur if one having such control uses proper
care, then the law infers negligence on the part of the
one in control as the cause of the injury."
Clark
I 734 P.2d at 185 (emphasis added, citations omitted).
Here, the Estate presented no evidence prior to the court's
grant of summary judgment that Pardis' chiropractic treatment
caused the dislocation of Nielsen's clavicle from his sternum.
Indeed, the record reflects the opposite. X-rays taken in August
of 1988, February of 1989, and August of 1991, and a chest CT scan
taken in February of 1989, did not reveal a separation in the
joint. While M. Brooke Hunter, M.D., who examined Nielsen shortly
after the chiropractic treatment, diagnosed a sternoclavicular
joint aggravation, he could not determine its cause. Absent a
causal connection, the Estate cannot rely on res ipsa loquitur to
infer negligence by Pardis.
Because the Estate failed to produce medical expert testimony
establishing the applicable standard of care and a departure from
that standard, it did not make a factual showing placing Pardis'
breach of a standard of care at issue. Thus, the core element of
a medical malpractice claim is missing and Pardis is entitled to
summary judgment as a matter of law. We hold that the District
Court did not err by granting summary judgment in his favor.
Did the District Court err by refusing to grant the Estate's
motion for relief from or, in the alternative, to alter or amend
the summary judgment?
Pardis conducted depositions of Fowler, the Estate's expert
witness, and June Nielsen on August 27 and 31, 1993, respectively.
The depositions were not transcribed or part of the record at the
time of the summary judgment hearing or when the court granted
summary judgment to Pardis on September 1, 1993.
According to the Estate, Fowler's deposition testimony
established that it was more likely than not that Pardis' failure
to meet the applicable standard of care caused Nielsen's
sternoclavicular injury and that June Nielsen's deposition
testimony generally supported that position. On the basis of this
"newly discovered" evidence, the Estate moved for relief from
judgment under Rule 60(b) (2) and (6), M.R.Civ.P. Alternatively, it
moved the court to alter or amend the judgment under Rule 59(g),
M.R.Civ.P.
Rule 60(b), M.R.Civ.P., Motion for Relief from Judment
The District Court determined that the Estate could not
request relief from judgment under both subsections (2) and (6) of
Rule 60(b), M.R.Civ.P., relying on Koch v. Billings School Dist.
No. 2 (1992), 253 Mont. 261, 833 P.2d 181. On that basis, the
court considered the Estate's motion solely under Rule 60(b) (2),
M.R.Civ.P. It declined to grant relief under that provision,
determining that the deposition testimony of Fowler and June
Nielsen was neither new evidence nor evidence which could not have
been produced with due diligence.
Our review of a district court's decision to grant or deny a
Rule 60(b) motion depends on the issues involved. Where, as in the
case before us, the district court engages in the discretionary
appraisal or weighing of the facts to dispose of the motion, we
determine whether the district court abused its discretion.
Marriage of Barnes (1992), 251 Mont. 334, 336, 825 P.2d 201, 203.
The Estate first contends that the District Court erred by
failing to allow alternative grounds for relief from judgment under
subsections (2) and (6) of Rule 60(b), M.R.Civ.P. We disagree.
The first five subsections of Rule 60(b), M.R.Civ.P., set
forth specific bases pursuant to which a court may relieve a party
from a final judgment. Under subsection (2), such relief may be
granted in the event of "newly discovered evidence which by due
diligence could not have been discovered in time . . . . II
Subsection (6) allows a judgment to be set aside for "any other
reason justifying relief from the operation of the judgment.I1
In m, we stated that a party cannot seek relief under Rule
60(b) (6), M.R. Civ.P., if it seeks relief under any other subsection
of the rule. m, 833 P.2d at 183. We subsequently have
clarified that a party is precluded from seeking relief under Rule
60(b)(6), M.R.Civ.P., when the facts or circumstances would bring
the case under one of the first five subsections. Maulding v.
Hardman (1993), 257 Mont. 18, 25, 847 P.2d 292, 297. Here, the
Estate premised its entitlement to relief under subsection (6) on
the purported "newly discoveredl1 evidence which formed the basis
for its subsection (2) request for relief. Because the Estate's
subsection (6) request was based on the same facts as its
subsection (2) request, the District Court properly considered the
Estate's motion for relief from judgment solely under Rule
6O(b) (2), M.R.Civ.P.
The Estate next contends that Halse v. Murphy (1989), 237
Mont. 509, 774 P.2d 418, mandates relief from judgment under Rule
60(b)(2), M.R.Civ.P. In m, a physician moved for summary
judgment based on plaintiff's failure to produce expert medical
testimony to support her medical malpractice claim. Before the
physician's motion could be ruled on, plaintiff's counsel withdrew.
Her subsequent attorney requested and received three extensions to
obtain expert medical testimony and to respond to the summary
judgment motion. When a response was not filed within the allotted
time, the district court dismissed plaintiff's malpractice claim.
One month later, plaintiff obtained the affidavit of a medical
expert indicating negligence by the treating physician and moved
for relief from judgment under Rule 60(b) (2), M.R.Civ. P. In
support of the motion, plaintiff's attorney testified by affidavit
that plaintiff "had made every effortw to locate expert testimony
to support the malpractice claim. The district court denied the
motion.
We reversed the district court, determining that the medical
testimony obtained by plaintiff was "newly discovered1' evidence
under Rule 6O(b), M.R.Civ.P. We emphasized that the failure to
produce such evidence prior to the court's grant of summary
judgment was not caused by the plaintiff's lack of due diligence,
observing that plaintiff had sought several extensions over a
period of years to obtain the required expert testimony to defend
against summary judgment. Halse, 774 P.2d at 422. Plaintiff's
medical expert also testified that he was unable to render an
opinion concerning plaintiff's malpractice claim prior tothe grant
of summary judgment because he had not had the opportunity to
review the notes and records af plaintiff's treating physician.
Halse, 774 P.2d at 422-23.
Halse is clearly distinguishable from the case before us.
Here, the Estate did not exercise due diligence in producing the
required expert testimony. It had obtained its expert by at least
the January 4, 1993, disclosure of his name to Pardis via
discovery. Notwithstanding, the record indicates that the Fowler
affidavit submitted by the Estate in opposition to Pardis' summary
judgment motion did not contain the required medical testimony.
Moreover, to the extent June Nielsen's testimony regarding
breach of any applicable standard of care was at all relevant, she
was an obvious witness for the Estate from the outset of the
lawsuit in August of 1991. The Estate advances no explanation--
much less a compelling one--for its failure to produce the required
testimony from its own witnesses. Indeed, the record does not
contain any affidavit indicating that the Estate had made every
effort to locate and produce the necessary expert testimony as was
the case in Halse.
The Estate also contends that State Medical Oxygen & Supply,
Inc. v. American Medical Oxygen Co. (1988), 230 Mont. 456, 750 P.2d
1085, required the District Court to consider the Fowler and June
Nielsen depositions when ruling on Pardis' motion for summary
judgment. However, that case does not address Rule 60(b) (2),
M.R.Civ.P. and, thus, provides no support for the Estate's position
that the deposition testimony of Fowler and June Nielsen
constitutes "newly discovered" evidence under that rule.
Furthermore, Medical Oxyqen is distinguishable from the case
before us. There, we determined that the district court's failure
to consider three depositions taken the morning of the summary
judgment hearing was fatal to its grant of summary judgment against
the plaintiff. Medical Oxvsen, 750 P.2d at 1089. Although the
factual basis on which Medical Oxvqen was decided is not entirely
clear from the opinion, the appeal briefs indicate that the
plaintiff scheduled and conductedthe depositions. In addition, as
the opinion notes, the plaintiff specifically did not waive the
introduction and consideration of the depositions as relevant to
the summary judgment issue. Medical Oxvqen, 750 P.2d at 1088.
Here, on the other hand, it was Pardis, not the Estate, who
scheduled and conducted the depositions, presumably to timely
prepare for trial in the event he did not prevail on summary
judgment. In addition, nothing in the record before us suggests
that the Estate timely requested the court to postpone its decision
until the as yet unavailable (and, as to June Nielsen, untaken)
depositions were transcribed. Nothing in Medical Oxvsen required
the District Court to consider these depositions at either the
summary judgment or post-trial motion stage of the proceedings.
We conclude that the Estate's failure to exercise due
diligence in producingthe testimony it needed to withstand summary
judgment precludes the Fowler and June Nielsen depositions from
being "newly discoveredr1evidence under Rule 60(b)(2), M.R.Civ.P.
We hold, therefore, that the District Court did not abuse its
discretion in denyingthe Estate's motion for relief from judgment.
Rule 59(~)Motion to Alter or Amend Judqment
The District Court did not rule on the Estate's Rule 59(g),
M.R.Civ.P., motion to amend the judgment and, therefore, it was
deemed denied by operation of law, The amendment of a judgment is
within the discretion of a district court. See Marriage of
Grounds/Coward (1993), 256 Mont. 397, 402-03, 846 P.2d 1034, 1037-
38; Marriage of Vakoff (1992), 252 Mont. 56, 59-60, 826 P.2d 552,
554. Thus, we review the District Court's denial of the Estate's
motion to amend for an abuse of discretion. Steer, Inc. v. Dep't
of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.
In neither the District Court nor this Court has the Estate
advanced any basis for amending the summary judgment apart from the
arguments supporting its motion for relief from judgment. Because
we have determined that the court properly declined to grant relief
from judgment under Rule 60(b)(2), M.R.Civ. P., we hold that the
court did not abuse its discretion in denying the Estate's Rule
59(g), M.R.civ.P., motion to amend the judgment.
Af finned.
We concur:
Justice Terry N. Trieweiler, specially concurring.
I concur that based on the facts in this case, the doctrine of
res ipsa loquitur was inapplicable and that based on lack of proof
that the defendant was negligent, the District Court properly
granted summary judgment.
I don't agree that professional negligence may not under other
circumstances be established by the doctrine of res ipsa loquitur
and without expert testimony.
I also agree that the District Court did not abuse its
discretion when it denied the estate's motions under Rules 60(b) (2)
and 59(g), M.R.Civ.P., and therefore concur with the result of the
majority opinion.
July 1, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Jeannette Ellen Berry
BERRY LAW FIRM
2631 West Main STreet
Bozeman, MT 59715
Gene I. Brown & Steve Reida
LANDOE, BROWN, PLANALP & BRAAKSMA, P.C.
P. 0. Box One
Bozeman, MT 59771-0001
ED SMITH
CLERKOFTHE
SUPREME COURT
STATE OF
MONTANA