Eisenmenger by Eisenmenger v. Ethicon, Inc.

• Decision Date: 14 April 1994
• Docket Number: No. 93-034,93-034
• Citation: 871 P.2d 1313,264 Mont. 393
• Parties: Helen Kirwin EISENMENGER, an incapacitated person, by Veronica EISENMENGER, her Guardian and Conservator, Plaintiff, Respondent and Cross-Appellant, v. ETHICON, INC., a New Jersey corporation, Defendant and Appellant, and James E. Mungas and Montana Deaconess Medical Center, Defendants and Cross-Respondents.
• Court: Montana Supreme Court

Page 1313

871 P.2d 1313

264 Mont. 393

Helen Kirwin EISENMENGER, an incapacitated person, by Veronica EISENMENGER, her Guardian and Conservator, Plaintiff, Respondent and Cross-Appellant, v. ETHICON, INC., a New Jersey corporation, Defendant and Appellant and James E. Mungas and Montana Deaconess Medical Center Defendants and Cross-Respondents.

No. 93-034.

Supreme Court of Montana.

Submitted Feb. 1, 1994.

Decided March 24, 1994.

Rehearing Denied April 14, 1994.

Maxon Davis, Cure, Borer & Davis, P.C., Great Falls, Charles F. Preuss, Preuss, Walker & Shanagher, San Francisco, CA, for defendant and appellant.

Norman L. Newhall, Alexander, Baucus & Linnell, P.C., Susan J. Rebeck, Susan J. Rebeck, P.C., Great Falls, for Eisenmenger.

James E. Aiken and Tracy Axelberg, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, for Mungas.

Neil E. Ugrin, Ugrin, Alexander, Zadick & Slovak, Great Falls, for Montana Deaconess Medical Center.

TURNAGE, Chief Justice.

Helen Eisenmenger suffered serious injury after undergoing surgery in which suture material manufactured by defendant Ethicon, Inc., was used. She filed this product liability claim against Ethicon in the District Court for the Eighth Judicial District, Cascade County. Ethicon appeals a $2.3 million judgment entered against it. We affirm.

We restate the dispositive issues as:

1. Whether the District Court erred in holding that the statute of limitations for Eisenmenger's product liability claim against Ethicon was tolled by § 27-6-702, MCA.

2. Whether the court erred in denying Ethicon's motion for summary judgment.

3. Whether the court erred in imposing a default sanction against Ethicon on the issue of liability.

On October 30, 1985, Helen Eisenmenger underwent a left carotid endarterectomy at the Montana Deaconess Medical Center (the hospital) in Great Falls, Montana. James E. Mungas, M.D., performed the surgery. The incision in Eisenmenger's left carotid artery was closed using 6-0 Prolene suture material manufactured and sold by Ethicon.

Two days later, while she was resting in her hospital room, Eisenmenger suddenly experienced bleeding in and from the surgical site. She was returned to the operating room, where Dr. Mungas performed a second, emergency surgery to repair a broken suture in the carotid artery incision. After the second operation, Eisenmenger suffered a stroke and resulting serious complications. There was little doubt that the broken suture caused Eisenmenger's stroke and subsequent complications; the question was what caused the suture to break.

In January 1988, Eisenmenger, through her guardian and conservator, filed a product liability suit against Ethicon in the District Court for Montana's Eighth Judicial District. Ethicon removed the case to federal court based on diversity jurisdiction. That case was eventually voluntarily dismissed, after this action was filed.

On October 27, 1988, again through her guardian and conservator, Eisenmenger filed a malpractice claim with the Montana Medical Legal Panel against Dr. Mungas and the hospital. She named Ethicon as an "other necessary and proper part[y]" to that claim. After the panel rendered its decision, Eisenmenger filed this action on March 30, 1989.

Ethicon promptly moved for summary judgment, arguing that the general three-year tort statute of limitations on the claim against it had run. The court denied Ethicon's motion, holding that § 27-6-702, MCA, tolled the statute of limitations during the Medical Legal Panel's decision-making process and for thirty days thereafter.

Almost three years later, in February 1992, the court entered summary judgment in favor of Dr. Mungas and the hospital, holding that the theory of res ipsa loquitur was not applicable to the claims against those defendants and that Eisenmenger had produced no evidence of negligence by those defendants. At the same time, the court denied Ethicon's motion for summary judgment on grounds that it would be premature to rule out the admissibility of circumstantial evidence offered by Eisenmenger to show that there had been a manufacturing defect in the suture.

At the end of March 1992, Eisenmenger deposed Ethicon's witness Dr. Olcott, a professor of surgery at Stanford University. Dr. Olcott's opinions, as stated in his deposition, clearly supported a theory that conduct of Dr. Mungas or the hospital could have been the cause of the suture breakage leading to Eisenmenger's injuries. Ten days later, Eisenmenger filed a motion asking the court to assess sanctions against Ethicon for failure to disclose Dr. Olcott's opinions in response to discovery requests dating back to 1988.

In its order granting Eisenmenger's motion, the court stated that Ethicon had made a "knowing concealment" of Dr. Olcott's testimony, and that, had the court known of Dr. Olcott's testimony it was "very doubtful" that Dr. Mungas's motion for summary judgment would have been granted. The court concluded Eisenmenger had suffered extreme prejudice due to Ethicon's discovery abuses and that she was entitled to sanctions. It entered a default judgment against Ethicon on the issue of liability.

The case was tried to a jury for purposes of determining the amount of damages. Following the jury's verdict that Eisenmenger's damages totaled $2,308,155, Ethicon appeals. Eisenmenger and Dr. Mungas have each raised issues on cross-appeal but, as a result of our resolution of the issues raised by Ethicon, we do not reach those issues.

ISSUE 1

Whether the District Court erred in holding that the statute of limitations for Eisenmenger's product liability claim against Ethicon was tolled by § 27-6-702, MCA.

Section 27-6-702, MCA, which is part of the Montana Medical Legal Panel Act (Act), provides:

The running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application.

Ethicon contends § 27-6-702, MCA, tolls the statute of limitations in malpractice claims only, and not in product liability claims such as this one.

Ethicon's position reflects the reference, at the beginning of the statute, to "a malpractice claim." "Malpractice claim" is defined at § 27-6-103(5), MCA, as a claim or potential claim "against a health care provider." "Health care provider" is defined under § 27-6-103(3), MCA, to mean a physician, a dentist, or a health care facility.

Because "malpractice claim" is defined as a claim against a "health care provider," the statement in § 27-6-702, MCA, that the statute of limitations is tolled as to "all health care providers named in the application" addresses most "malpractice claims" as defined in the Act. The only exception initially appears to be malpractice claims against health care providers not named in the application. However, § 27-6-702, MCA, further provides that the tolling applies also "as to all other persons or entities named ... as necessary or proper parties for any court action ... out of the same factual circumstances." We conclude that § 27-6-702, MCA, is ambiguous about the types of claims for which it tolls the statute of limitations.

If the plain words of a statute are ambiguous, the next step in judicial interpretation of the statute is to determine the intent of the legislature. Montana Contractors' Ass'n. v. Dept. of Hwys. (1986), 220 Mont. 392, 394, 715 P.2d 1056, 1058. This is accomplished by examining the legislative history of the statute, including the title of the original bill. Montana Contractors' Ass'n., 715 P.2d at 1058; Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 428, 715 P.2d 443, 445.

Section 27-6-702, MCA (1983), read:

The running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review and does not begin again until 30 days after the panel's final decision is entered in the permanent files of the panel and a copy is served upon the complainant and his attorney by certified mail.

(Enacted 17-1314 by Sec. 14, Ch. 449, L. 1977.) The 1985 amendment to § 27-6-702, MCA, added the following language to the first sentence of the statute:

as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application. [Emphasis added.]

The 1985 amendment to § 27-6-702, MCA, unquestionably created the ambiguity with which we are faced.

The title to the 1985 amending act and the explanation offered with the proposed amendment to § 27-6-702, MCA, are instructive. The title to the amending act stated:

AN ACT REVISING THE MONTANA MEDICAL LEGAL PANEL ACT BY CLARIFYING THE DEFINITIONS OF "HEALTH CARE FACILITY," "MALPRACTICE CLAIM," AND "PHYSICIAN;" CLARIFYING THE ALLOCATION OF ASSESSMENTS AND DETERMINATION OF ASSESSMENTS; PROVIDING FOR A LATE FEE FOR DELINQUENT ASSESSMENTS; CLARIFYING THE COMPOSITION OF THE PANEL; CLARIFYING THE TOLLING OF THE STATUTE OF LIMITATIONS AGAINST PARTIES NOT PARTIES TO THE CLAIM AND PROVIDING FOR DISMISSAL OF CLAIMS AND THE RUNNING OF THE STATUTE OF LIMITATIONS; AMENDING SECTIONS 27-6-103, 27-6-206, 27-6-301, 27-6-303, 27-6-401, AND 27-6-702, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE. [Emphasis supplied.]

Ch. 332, L. 1985. The explanation offered by the Montana Medical Legal Panel for the proposed amendment was:

The current statute is unclear as to whether the statute does or does not toll as to those not parties to the panel, such as nurses, under circumstances where physicians in the...