Estate of Nielsen v. Pardis

• Decision Date: 26 July 1994
• Docket Number: No. 93-621,93-621
• Citation: 265 Mont. 470,878 P.2d 234
• Parties: ESTATE OF Robert N. NIELSEN, Jr., Deceased, Plaintiff and Appellant, v. Michael H. PARDIS, d/b/a Pardis Chiropractic Clinic, Defendant and Respondent.
• Court: Montana Supreme Court

Page 234

878 P.2d 234

265 Mont. 470

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.

Submitted on Briefs May 5, 1994.

Decided July 1, 1994.

Rehearing Denied July 26, 1994.

Jeannette Ellen Berry, Berry Law Firm, Bozeman, for appellant.

Steve Reida, Landoe, Brown, Planalp & Braaksma, Bozeman, for respondent.

GRAY, Justice.

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.

A brief factual and procedural outline of this case will set the stage for the legal issues before us. While Robert Nielsen (Nielsen) and his wife June were vacationing in Montana in August of 1988, Nielsen was treated by Michael H. Pardis, a chiropractic physician in Helena, Montana, doing business as Pardis Chiropractic Clinic (Pardis). Pardis treated Nielsen over a span of several days; x-rays were taken, and examinations and manual manipulations were performed.

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 Rule 60(b) and Rule 59(g), M.R.Civ.P., motion on September 27, 1993. In conjunction with its motion, the Estate requested Pardis to file or make available for filing the depositions of Fowler and June Nielsen, asserting that the deposition testimony constituted newly discovered evidence. Pardis objected to the filing of the depositions. The District Court denied the Estate's motion for relief from or, alternatively, to alter or amend the summary judgment. The Estate appeals.

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 Rule 56, M.R.Civ.P., establishing a genuine issue of material fact. Minnie, 849 P.2d at 214.

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.

According to the Estate, Fowler's deposition testimony established that it was more likely than not that Pardis' failure to meet the applicable standard of care caused Nielsen's sternoclavicular injury and that June Nielsen's deposition testimony generally supported that position. On the basis of this "newly discovered" evidence, the Estate moved for relief from judgment under Rule 60(b)(2) and (6), M.R.Civ.P. Alternatively, it moved the court to alter or amend the judgment under Rule 59(g), M.R.Civ.P.

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 Rule 60(b), M.R.Civ.P., relying on Koch v. Billings School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181. On that basis, the court considered the Estate's motion solely under Rule 60(b)(2), M.R.Civ.P. It declined to grant relief under that provision, determining that the deposition testimony of Fowler and June Nielsen was neither new evidence nor evidence which could not have been produced with due diligence.

Our review of a district court's decision to grant or deny a Rule 60(b) motion depends on the issues involved. Where, as in the case before us, the district court engages in the discretionary appraisal or weighing of the facts to dispose of the motion, we determine whether the district court abused its discretion. Marriage of Barnes (1992), 251 Mont. 334, 336, 825 P.2d 201, 203.

The Estate first contends that the District Court erred by failing to allow alternative grounds...