No. 01-381
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 139
SUPERIOR ENTERPRISES, LLC, a Montana
limited liability corporation,
Plaintiff and Appellant,
v.
THE MONTANA POWER COMPANY,
a Montana corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Mineral,
The Honorable Edward P. McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John E. Bohyer, Fred Simpson, Phillips & Bohyer, P.C., Missoula, Montana
For Respondent:
W. Wayne Harper, Attorney at Law, Butte, Montana
Submitted on Briefs: December 6, 2001
Decided: June 20, 2002
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 The Plaintiff, Superior Enterprises, LLC, brought this action
in the District Court for the Fourth Judicial District in Mineral
County to recover for fire damage to its sawmill which it claimed
was caused by the electrical lines of the Respondent, Montana Power
Company (MPC). Following a trial by jury, a verdict in favor of
MPC was returned. Superior Enterprises appeals the District
Court's refusal to exclude an expert witness which MPC had not
disclosed prior to trial. We reverse and remand for a new trial.
¶2 The sole issue on appeal is whether the District Court abused
its discretion when it allowed Ralph Parkin to testify as an expert
witness even though he had not been previously disclosed by MPC as
an expert witness.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Superior Enterprises, LLC, owned a sawmill located near
Superior, Montana. On November 26 or 27, 1996, a fire destroyed
several buildings, industrial equipment and inventory at the mill
site. Superior Enterprises claims the fire was caused by damaged
electrical lines. Three to four days before the fire, a chip truck
snagged communication lines overhanging the road adjacent to the
plant. Those communication lines were attached to the same utility
pole to which the electrical service lines were attached. Superior
Enterprises' theory at trial was that MPC negligently failed to
inspect the damaged lines, failed to disconnect the power, and
failed to advise Superior Enterprises to hire an electrician to
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inspect the lines even though Superior Enterprises had contacted
the MPC emergency service number on two separate occasions.
¶4 At trial, Superior Enterprises offered expert opinion evidence
from two witnesses, Bruce Goodwin, deputy state fire marshal, and
Don Armintrout, a private fire investigator. Both witnesses
expressed the opinion that the damaged electrical service lines
were the cause of the fire. During the presentation of its
evidence, MPC called retired fire chief Ralph Parkin as a witness.
Counsel for Superior Enterprises objected based on MPC's failure
to disclose Parkin as a witness prior to trial. MPC responded that
Parkin was being called as an impeachment witness. The District
Court overruled the objection and Parkin was allowed to testify.
Superior Enterprises had listed Parkin as a lay witness in its
pretrial order and on its witness disclosure list prior to trial,
but decided not to call Parkin as a witness at trial. Parkin's son
and daughter-in-law were seated as members of the jury panel.
¶5 On April 9, 2001, the jury returned a verdict for MPC and the
District Court subsequently entered judgment in MPC's favor. On
May 10, 2001, Superior Enterprises filed a Notice of Appeal of the
District Court's judgment.
STANDARD OF REVIEW
¶6 The district court has the discretion to rule on the
admissibility of evidence. We review those rulings for an abuse of
discretion. Massman v. City of Helena (1989), 237 Mont. 234, 241-
42, 773 P.2d 1206, 1211.
DISCUSSION
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¶7 Did the District Court abuse its discretion when it allowed
Ralph Parkin to testify as an expert witness even though he had not
been previously disclosed by MPC as an expert witness?
¶8 Superior Enterprises contends that the District Court abused
its discretion when it allowed Ralph Parkin, a retired fire chief,
to testify for MPC. Parkin offered testimony which contradicted
Superior Enterprises' theory of its case. Superior Enterprises
asserts that the testimony was inadmissible pursuant to the
requirement that when asked, a party must disclose its anticipated
expert witnesses prior to trial. Rule 26(b)(4), M.R.Civ.P. As
relief, Superior Enterprises urges this Court to order a new trial.
¶9 MPC, on the other hand, claims that Parkin was called as an
impeachment witness. Because Parkin had been a witness disclosed
by Superior Enterprises in response to formal discovery and in its
final pretrial order, MPC contends that calling Parkin did not
constitute surprise to Superior Enterprises. MPC also asserts that
Superior Enterprises did not object to the expert nature of
Parkin's testimony, and, therefore, may not raise that objection
for the first time on appeal.
¶10 Because a proper objection is necessary to preserve an issue
for appeal, we will first consider the adequacy of Superior
Enterprises' objection. MPC contends that Superior Enterprises'
only objection to the testimony of Parkin was based on MPC's
failure to disclose him as a witness, not as an expert witness.
Without objecting to the expert nature of Parkin's testimony, MPC
claims Superior Enterprises failed to preserve the issue on appeal.
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¶11 In order to preserve an objection to admission of evidence for
purposes of appeal, the objecting party must make a timely
objection and must state "the specific ground of objection, if the
specific ground was not apparent from the context; . . . ." Rule
103(a)(1), M.R.Evid. An objection is sufficiently specific "if it
is accompanied by a reasonably definite statement of the grounds
for the objection." Kizer v. Semitool, Inc. (1991), 251 Mont. 199,
207, 824 P.2d 229, 234 (citing Edward W. Cleary et al., McCormick
on Evidence § 52, at 128 (3rd ed. 1984)).
¶12 Here, Superior Enterprises made the following objection:
The Court: Mr. Bohyer, your objection to this witness?
Mr. Bohyer: Yes, Your Honor. In the pretrial order,
this witness is not listed by the Defendant as
one of the witnesses that they intend to call.
I would point out that in the pretrial order,
in terms of witnesses, we've identified a
bunch of them, including adverse. We also
identified Mr. Parkin on our list. He was not
called. The Defendant did not list this
witness as one of its own to call in its case
in chief and I object on that basis.
¶13 Superior Enterprises' objection advised the District Court
that MPC had never disclosed that it intended to call Parkin as a
witness, expert or otherwise. The District Court was apparently
aware that Parkin was testifying as an expert based on the
following exchange:
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Mr. Parkin: Speaking with some of the folks that were
there, they indicated that at that time that –
The Court: Excuse me. When I overrule the
objection, let me tell you what the rules are.
You are allowed to form a conclusion as an
expert witness based on what people have told
you, but you're not allowed to repeat what
they have told you. Do you understand what I
am saying? [Emphasis added.]
Therefore, in the context of this case, we decline to draw a
distinction between the failure to disclose a witness and the
failure to disclose an expert witness, and we conclude the
objection was adequate.
¶14 We must next determine whether MPC's failure to disclose
Parkin as a witness was prejudicial to Superior Enterprises.
Although characterized by MPC as an impeachment witness, Parkin
offered testimony regarding the cause of the fire and directly
refuted the testimony of Superior Enterprises' two expert
witnesses, Bruce Goodwin and Don Armintrout. He testified as
follows:
Q: Okay. And with your knowledge of fires and the
heat that would burn a timber of that size, could
that wire have been involved in the fire at the
time that that beam burned?
A: It appears that there's still insulation on the
wiring, and I don't know, it looks likes [sic] it's
aluminum wiring. And with as much heat was
involved in that building, the insulation should
have been burnt off completely and probably the
wire separated or melted down, if it's aluminum.
It doesn't take much heat to melt aluminum.
. . . .
Q: Likewise, could you have a beam with that kind of
insulation on it if it – Could that beam and
insulation or wire had [sic] burned together with
the heat that was there?
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A: The insulation, well, certainly would have burned
off if it would have been that much fire to burn
that kind of – That's a big beam.
. . . .
Q: . . . I've been told this is a textbook picture of
how a wire could work its way into a beam and spark
and slowly burn it up.
Have you even seen a wire work its way into a
beam and – or put a notch like that in a beam and
slowly burn it up?
A: Not to my knowledge on any fires that I've been on.
Q: Have you even seen a notch like that in a beam that
wasn't from a precut in the beam to fit something
else, in your experience?
A: Not in my experience, no.
Q: And, again, would there be insulation on the wires
that are in that beam?
A: Most certainly should be.
Q: Certainly should be?
A: Should be, yes.
Q: Okay. And if they were there and had insulation on
them and were involved in the fire, would they have
insulation on them, still?
A: No. It would be melted off.
Parkin's testimony relates information which is not within common
knowledge or experience of lay people and is, therefore, in the
nature of expert testimony. Expert witnesses offered by the
defendant who simply refute the plaintiff's theory of the case are
not "impeachment" witnesses. If they were, everyone called by the
defendant would be an impeachment witness. As an expert witness,
Parkin should have been disclosed.
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¶15 Prior to trial, MPC was given several chances to disclose
Parkin as a witness, yet failed to do so. Superior Enterprises
sent MPC the following interrogatory request:
INTERROGATORY NO. 4: In accordance with Rule 26(b)(4),
Montana Rules of Civil Procedure, please state the name,
telephone number, and present address of each person you
expect to call as an expert at the trial of this action.
With respect to each such expert, please set forth the
follow information:
(a) The subject matter on which each expert is
expected to testify;
(b) State in detail the substance of all facts
about which each such expert is expected to
testify;
(c) State in detail the substance of all opinions
to which each such expert is expected to
testify;
(d) State in detail a summary of the grounds for
each such opinion held by each expert and
state in detail the substance of all facts
upon which such opinions are based; and
(e) Please describe each and every document,
photograph or thing supplied by MPC to the
expert.
On September 22, 1998, MPC responded as follows: "None have been
identified. MPC acknowledges the continuing nature of this
request."
¶16 Despite MPC's acknowledgment of its continuing duty to
supplement its response with the identity of each person expected
to be called as an expert witness, the subject matter on which the
person is expected to testify, and the substance of the person's
testimony, as required by Rule 26(e)(1)(B), M.R.Civ.P., MPC failed
to do so.
¶17 In addition, the District Court entered a scheduling order,
agreed upon by both parties, which required each party to disclose
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its experts, pursuant to Rule 26(b)(4), M.R.Civ.P., by February 15,
2001. MPC did not disclose any experts.
¶18 The spirit of the Montana Rules of Civil Procedure requires
liberal disclosure on the part of all parties, including the
disclosure of witnesses. Smith v. Babcock (1971), 157 Mont. 81,
92, 482 P.2d 1014, 1020. Failure to disclose an expert witness
constitutes reversible error. Miranti v. Orms (1992), 253 Mont.
231, 235, 833 P.2d 164, 166 (district court abused its discretion
when it allowed two witnesses to testify as experts, when they had
only been listed as lay witnesses, because it severely limited the
objecting party's ability to effectively cross-examine the
witnesses); Vestre v. Lambert (1991), 249 Mont. 455, 462, 817 P.2d
219, 223 (district court committed reversible error when it allowed
the defendant to solicit undisclosed expert testimony from a
witness previously called to discuss factual issues, when neither
party had listed the witness as an expert); Babcock, 157 Mont. at
91-92, 482 P.2d at 1020 (district court erred in permitting an
expert witness to testify on behalf of the defendant at trial when
defendant failed to list expert in an interrogatory answer).
Failure to disclose an expert witness will usually prejudice the
opposing party because it has (1) no time to prepare for the
witness, (2) no time to effectively plan for cross-examination of
the witness, and (3) no time to obtain an expert to refute or
question the testimony of the witness. Babcock, 157 Mont. at 92,
482 P.2d at 1020.
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¶19 We conclude that the failure of MPC to disclose Parkin as an
expert witness resulted in prejudice to Superior Enterprises.
Although Superior Enterprises listed Parkin as a witness, neither
party listed him as an expert witness. Superior Enterprises did
not learn Parkin would testify until he was called to the stand by
MPC. Although Superior Enterprises had contact with Parkin prior
to the trial, the extent of that contact and whether Superior
Enterprises knew of Parkin's causation theories and was prepared to
rebut them is unknown. Superior Enterprises did not depose Parkin,
presumably because they had no reason to believe he would testify
as an expert witness. For purposes of trial preparation, there is
a big difference between knowing about a factual witness and
understanding that he will be called as an expert witness by your
opponent. Therefore, MPC's argument that Superior Enterprises was
not prejudiced because it had listed Parkin as a witness is
unpersuasive.
¶20 Because MPC did not identify Parkin as an expert witness in
response to discovery requests by Superior Enterprises and a
scheduling order agreed upon by the parties, we conclude that the
District Court abused its discretion when it allowed Parkin to
testify. Therefore, we reverse and remand for a new trial.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JIM RICE
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Justice W. William Leaphart dissenting.
¶21 I dissent for the reason that Superior Enterprises did not object to the expert
nature of Parkin’s testimony. The only objection to Parkin’s testimony was lodged
when Parkin was called to the stand. Superior Enterprises objected as follows: “The
defendant did not list this witness as one of its own to call in its case in chief and I object
on that basis.” Thus the objection was not to the expert nature of Parkin’s testimony,
but to the fact that although Parkin was listed on Superior’s witness list, he was not
listed on Montana Power’s pretrial order witness list. Furthermore, there was no
subsequent objection to the alleged expert nature of Parkin’s testimony. An objection
must stand or fall on the grounds relied upon at trial. Story v. City of Bozeman (1993),
259 Mont. 207, 217, 856 P.2d 202, 208.
¶22 In support of its conclusion that failure to disclose an
expert witness constitutes reversible error, the Court cites
Miranti v. Orms (1992), 253 Mont. 231, 235, 833 P.2d 164, 166, and
Vestre v. Lambert (1991), 249 Mont. 455, 462, 817 P.2d 219, 223.
Both of these cases are distinguishable from the present case in
that both cases involved a specific objection to the expert nature
of the testimony. Here there was no such specific objection. I
would affirm the decision of the District Court.
/S/ W. WILLIAM LEAPHART
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