Steffensmier v. Huebner, 422 P.3d 95

Background

In Dec. 2006 David Bushong presented to podiatrist Dr. David Huebner with a soft‑tissue mass on the sole of his right foot; Huebner diagnosed a probable benign ganglion cyst, aspirated bloody fluid, sent fluid for infection testing but did not send it for cytology or biopsy, and advised surgery was not emergent.
About five months later Dr. Ronald Ray ordered a new MRI and referred Bushong to the University of Washington, where he was diagnosed with extraskeletal osteosarcoma; Bushong died in March 2009.
Plaintiffs (estate, widow, children) sued Huebner and the Great Falls Clinic for medical malpractice alleging failure to diagnose or take steps to diagnose the cancer; after a nine‑day trial the jury found no negligence by Huebner and thus did not reach causation or damages.
Plaintiffs moved for a new trial raising three primary complaints: refusal to give a statutory loss‑of‑chance jury instruction (§ 27‑1‑739, MCA), exclusion/limitation of testimony and impeachment of treating physician Dr. Ray, and alleged defense counsel misconduct during trial.
The District Court denied relief; Plaintiffs appealed and the Montana Supreme Court considered standards of review for jury instructions, evidentiary rulings, and motions for new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jury should have been instructed on loss of chance under § 27‑1‑739	Loss of chance is part of causation and need not be separately pleaded; experts provided sufficient testimony to warrant instruction	Instruction unnecessary here and was not pleaded separately; in any event jury found no negligence so instruction would be moot	No reversible error: because jury found no negligence, any instructional error was harmless and did not affect substantial rights
Whether court erred in barring Dr. Ray from testifying that Huebner breached the standard of care and in limiting impeachment on redirect	Dr. Ray was disclosed as a treating physician and later supplementation identified his opinion that Huebner breached standard of care; plaintiffs should be allowed to elicit that opinion and impeach him	Dr. Ray repeatedly stated in two depositions he would not offer standard‑of‑care opinions; defendants lacked adequate notice of any new expert opinion; redirect question was outside scope and plaintiffs failed to preserve offer of proof	Court did not abuse discretion: Dr. Ray disclaimed expert breach opinions so defendants lacked adequate notice; plaintiff failed to make timely offer of proof regarding impeachment, so appellate review not preserved
Whether defense counsel's alleged misconduct warranted a new trial	Counsel made repeated inappropriate and prejudicial remarks about plaintiffs' experts and vouched for defense experts, depriving plaintiffs of a fair trial	Remarks were isolated, within bounds of aggressive advocacy, and did not materially prejudice plaintiffs	No manifest abuse of discretion in denying new trial: remarks, though inappropriate, were isolated and did not undermine trial fairness to an extent requiring retrial

Key Cases Cited

Seltzer v. Morton, 154 P.3d 561 (Mont. 2007) (deference to jury verdict; reluctance to disturb jury factfinding)
Kneeland v. Luzenac Am., Inc., 961 P.2d 725 (Mont. 1998) (standard on interfering with jury decision)
S & P Brake Supply, Inc. v. STEMCO LP, 385 P.3d 567 (Mont. 2016) (prejudice to substantial right required to reverse evidentiary exclusion)
Aasheim v. Humberger, 695 P.2d 824 (Mont. 1985) (loss‑of‑chance theory is part of causation)
Norris v. Fritz, 270 P.3d 79 (Mont. 2012) (notice required for non‑retained treating physicians to offer expert opinions)
Pula v. State, 40 P.3d 364 (Mont. 2002) (harmless error doctrine when an instruction could not have affected outcome)
Cooper v. Hanson, 234 P.3d 59 (Mont. 2010) (attorney misconduct can require new trial when it invites jurors to decide on improper grounds)
Evans v. Scanson, 396 P.3d 1284 (Mont. 2017) (standard for manifest abuse of discretion on motions for new trial)