460 P.3d 942
Mont.2020Background
- In June 2015 Howlett experienced right-hand numbness and upper‑back stiffness and saw chiropractor Michael Morris; she signed a general consent form before treatment.
- Howlett testified she felt an electric shock during an initial cervical adjustment and got worse after multiple follow‑up adjustments; MRI showed spinal cord compression and neurosurgeon Brewington recommended urgent surgery.
- Howlett sued, alleging Morris herniated her cervical disc, failed to obtain informed consent, breached the chiropractic standard of care, and sought general and punitive damages.
- Pretrial disputes included competing expert opinions on the applicable chiropractic standard of care and causation, a denied motion for partial summary judgment on liability, and motions in limine about habit evidence, alternate causes, and impeachment material.
- At trial Morris testified about his routine practices; he presented alternate‑cause evidence (smoking, genetics, repetitive work), and impeached Howlett with her attorney’s prior application to the Montana Chiropractic Legal Panel.
- A jury found Morris not negligent; the district court’s rulings on summary judgment, evidentiary matters, expert supplementation, alternate‑cause proof, and impeachment were appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| (1) Denial of partial summary judgment on liability (informed consent) | Howlett: no informed consent was obtained; liability should be decided as a matter of law | Morris: disputed whether informed consent was given and whether a particular content standard exists; experts disagreed on the standard of care | Denied — factual disputes exist about the chiropractic standard of care and whether Morris departed from it, so summary judgment was improper |
| (2) Exclusion of Morris’s habit/routine practice evidence (M. R. Evid. 406) | Howlett: habit evidence irrelevant and barred by Rule 406 | Morris: routine practice is relevant to show conformity or departure; foundational testimony shows routine | Denied — trial court within discretion to admit habit evidence subject to Rule 406(c) foundation |
| (3) Application of witness sequestration (M. R. Evid. 615) to perpetuated expert depositions and supplemental expert disclosures | Howlett: admission of Morris’s perpetuated supplemental expert testimony violated sequestration and was unfair surprise | Morris: Rule 615 does not apply to deposition/perpetuated testimony; he had a duty to supplement after Howlett raised a new loss‑of‑chance theory | Denied — Rule 615 doesn’t cover depositions in Montana; supplementation and admission were proper to allow a fair trial |
| (4) Admission of alternate‑cause evidence without proof to a reasonable degree of medical probability | Howlett: alternate causes must be proved to reasonable medical probability before admission | Morris: may introduce relevant alternate‑cause evidence to rebut causation; reasonable‑probability proof is required only when seeking apportionment | Denied — alternate‑cause evidence admissible to rebut causation; defendant need not prove divisibility unless apportioning damages; any error was harmless |
| (5) Impeachment with attorney’s application to the Chiropractic Legal Panel | Howlett: application is not a prior pleading or admissible factual statement | Morris: application shows Howlett changed theories of causation and impeaches her credibility | Denied — impeachment was allowed as a statement by a party opponent; any error was harmless because jury found no negligence |
Key Cases Cited
- Howard v. Replogle, 450 P.3d 866 (Mont. 2019) (medical‑malpractice elements and expert proof requirement)
- Estate of Nielsen v. Pardis, 878 P.2d 234 (Mont. 1994) (plaintiff must produce expert evidence of breach to avoid summary judgment)
- Collins v. Itoh, 503 P.2d 36 (Mont. 1972) (content of informed consent is a medical judgment, fact‑dependent)
- Clark v. Bell, 220 P.3d 650 (Mont. 2009) (defendant may introduce evidence of subsequent accidents or preexisting conditions to rebut causation)
- Cheff v. BNSF Ry. Co., 243 P.3d 1115 (Mont. 2010) (apportionment of injury requires proof to a reasonable medical probability)
- Daley v. BNSF Ry., 425 P.3d 669 (Mont. 2018) (trial court has broad discretion on evidentiary rulings)
- Faulconbridge v. State, 142 P.3d 777 (Mont. 2006) (plaintiff bears burden of proving causation)
- Steffensmier v. Huebner, 422 P.3d 95 (Mont. 2018) (no reversal where outcome would be the same absent the error)
- Pula v. State, 40 P.3d 364 (Mont. 2002) (harmless‑error principle)