ESTATE OF ROBERT N. NIELSEN, JR., Deceased, Plaintiff and Appellant, v. MICHAEL H. PARDIS, d/b/a PARDIS CHIROPRACTIC CLINIC, Defendant and Respondent.
No. 93-621
Supreme Court of Montana
July 1, 1994
Rehearing Denied July 26, 1994
265 Mont. 470 | 878 P.2d 234 | 51 St. Rep. 591
Submitted on Briefs May 5, 1994.
For Respondent: Steve Reida, Landoe, Brown, Planalp & Braaksma, Bozeman.
JUSTICE 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.
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 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
Did the District Court err by granting summary judgment for Pardis?
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, 90-91, 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 (1994), 263 Mont. 238, 242, 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
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 (1976), 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 “permits proof 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 (1987), 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, 963.
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:
“[W]hen 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, 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.
Rule 60(b), M.R.Civ.P., Motion for Relief from Judgment
The District Court determined that the Estate could not request relief from judgment under both subsections (2) and (6) of
Our review of a district court‘s decision to grant or deny a
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
The first five subsections of
In Koch, 833 P.2d at 183, we stated that a party cannot seek relief under
The Estate next contends that Halse v. Murphy (1989), 237 Mont. 509, 774 P.2d 418, mandates relief from judgment under
One month later, plaintiff obtained the affidavit of a medical expert indicating negligence by the treating physician and moved for relief from judgment under
We reversed the district court, determining that the medical testimony obtained by plaintiff was “newly discovered” evidence under
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.
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
Furthermore, Medical Oxygen 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 Oxygen, 750 P.2d at 1089. Although the factual basis on which Medical Oxygen was decided is not entirely clear from the opinion, the appeal briefs indicate that the plaintiff scheduled and conducted the 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 Oxygen, 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 Oxygen 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 producing the testimony it needed to withstand summary judgment precludes the Fowler and June Nielsen depositions from being “newly discovered” evidence under
Rule 59(g) Motion to Alter or Amend Judgment
The District Court did not rule on the Estate‘s
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
Affirmed.
JUSTICES HARRISON, HUNT and WEBER concur.
JUSTICE 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