McClue v. Safeco Ins. Co. of Ill.

• Decision Date: 04 August 2015
• Docket Number: No. DA 14–0375.,DA 14–0375.
• Citation: 354 P.3d 604,380 Mont. 204,2015 MT 222
• Parties: Carol J. McCLUE; and Dan L. McClue, individually and as husband and wife, Plaintiffs and Appellants, v. SAFECO INSURANCE COMPANY OF ILLINOIS, Defendants and Appellees.
• Court: Montana Supreme Court

380 Mont. 204
354 P.3d 604
2015 MT 222

Carol J. McCLUE; and Dan L. McClue, individually and as husband and wife, Plaintiffs and Appellants
v.
SAFECO INSURANCE COMPANY OF ILLINOIS, Defendants and Appellees.

No. DA 14–0375.

Supreme Court of Montana.

Submitted on Briefs May 20, 2015.
Decided Aug. 4, 2015.

354 P.3d 605

For Appellant: Natasha Prinzing Jones, Matthew B. Hayhurst, Randy J. Tanner, Boone Karlberg P.C., Missoula, Montana.

For Appellee: Paul N. Tranel, John E. Bohyer, Bohyer, Erickson, Beaudette & Tranel, Missoula, Montana.

Opinion

Justice BETH BAKER delivered the Opinion of the Court.

380 Mont. 205

¶ 1 Dan L. McClue, on behalf of himself and his deceased wife, Carol J. McClue,¹ appeals the decisions of the Twenty–First Judicial District Court excluding expert testimony and granting summary judgment to

354 P.3d 606

Safeco Insurance Company of Illinois. McClue raises two issues on appeal:

1. Whether the District Court abused its discretion by excluding the causation testimony of Dr. John Sabow;

2. Whether the District Court abused its discretion by excluding the causation testimony of Dr. Decontee Jimmeh–Fletcher.

¶ 2 We reverse on the first issue but affirm on the second. We reverse the entry of summary judgment and remand for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 In January 2009, Carol was involved in a serious car accident. In 2011, neurologists Sherry Reid, M.D., and Decontee Jimmeh–Fletcher, M.D., both diagnosed Carol with bulbar ALS. Carol died from the illness in 2013.

¶ 4 At the time of the car accident, Carol had Underinsured Motorist (UIM) insurance coverage through Safeco. After the diagnosis, McClue submitted claims to Safeco for UIM benefits for damages associated with Carol's ALS. Safeco denied those claims, taking the position that the car accident did not cause Carol to develop ALS. In 2011 and 2012, McClue commenced actions against both the driver of the other vehicle in the car crash—who later settled and was dismissed—and Safeco. McClue asserted that Safeco breached the insurance contract by failing to provide UIM benefits for Carol's ALS.

380 Mont. 206

¶ 5 McClue planned to present testimony from both Dr. Jimmeh–Fletcher and John Sabow, M.D.—a neurologist McClue retained in connection with this action—at trial. Both were deposed. Dr. Jimmeh–Fletcher opined that trauma could contribute to the development of ALS, but did not state that Carol's ALS was caused by the car accident. Dr. Sabow, on the other hand, opined that the car accident caused tissue damage in Carol's cervical spine and lower brainstem and that this tissue damage was more probably than not the “proximate cause” of Carol's ALS.

¶ 6 After the depositions, Safeco filed motions in limine to exclude testimony from both doctors at trial. The District Court granted the motions. Safeco then moved for summary judgment because, without the expert testimony, McClue did not have admissible evidence to establish that the car crash caused Carol's ALS. Reserving the right to appeal the rulings in limine, McClue did not oppose summary judgment, and the District Court granted Safeco's motion. McClue now appeals the exclusion of expert testimony and the resulting entry of summary judgment.

STANDARDS OF REVIEW

¶ 7 The parties dispute the standard of review that applies to the District Court's exclusions of expert testimony.

¶ 8 Indisputably, we review an entry of summary judgment de novo. Albert v. City of Billings, 2012 MT 159, ¶ 15, 365 Mont. 454, 282 P.3d 704. Also indisputably, we generally review an evidentiary ruling for an abuse of discretion. Harris v. Hanson, 2009 MT 13, ¶ 18, 349 Mont. 29, 201 P.3d 151. Summary judgment is appropriate when the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. M.R. Civ. P. 56(c)(3) ; Albert, ¶ 15. This determination is based on viewing “facts that would be admissible in evidence,” M.R. Civ. P. 56(e)(1), in the light most favorable to the non-moving party, Malpeli v. State, 2012 MT 181, ¶ 12, 366 Mont. 69, 285 P.3d 509. Rulings on the admissibility of evidence thus sometimes implicate summary judgment.

¶ 9 After the District Court ruled that the proffered expert testimony was not admissible, it determined that there was no evidence to demonstrate a genuine issue of material fact. In this situation, McClue argues that our summary judgment standard should swallow the normal standard for evidentiary rulings, and that we should review the exclusion of expert testimony de novo. Safeco asserts that we should keep the standards separate and review the exclusion of expert testimony for an abuse of discretion.

380 Mont. 207

¶ 10 Safeco finds support in Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, 367 Mont. 21, 289 P.3d 131. In Beehler, the defendants filed motions in limine to exclude

354 P.3d 607

expert testimony necessary for the plaintiffs to establish essential elements of their claim. The district court granted the motion. Beehler, ¶ 5. The defendants concurrently moved for summary judgment, arguing that, without expert testimony on essential elements of the plaintiffs' claim, judgment was appropriate as a matter of law. The district court granted that motion too. Beehler, ¶ 6. We reviewed the district court's rulings on the admissibility of expert testimony for an abuse of discretion. Beehler, ¶ 17.

¶ 11 McClue counters with decisions suggesting that we review evidentiary rulings in the context of summary judgment de novo. E.g., Smith v. Farmers Union Mut. Ins. Co., 2011 MT 216, ¶ 15, 361 Mont. 516, 260 P.3d 163 (“We review evidentiary rulings made in the context of a summary judgment proceeding de novo, and need not defer to the judgments and decisions of the district court, in order to determine whether evidentiary requirements for summary judgment have been satisfied.”) (citing In re Estate of Harmon, 2011 MT 84A, ¶ 14, 360 Mont. 150, 253 P.3d 821 ); Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 53, 345 Mont. 12, 192 P.3d 186 (“[I]n the context of summary judgment, a decision to categorically exclude certain evidence from consideration is not a discretionary function akin to admitting or excluding evidence at trial. Rather this determination is a conclusion of law which we must review de novo, just as we review all other aspects of the decision to grant summary judgment.”); Smith v. Burlington N. & Santa Fe Ry., 2008 MT 225, ¶ 41, 344 Mont. 278, 187 P.3d 639 (“[W]e have never held that evidentiary rulings going directly to the propriety of summary judgment are also reviewed for an abuse of discretion. Instead, under our case law, strict compliance with Rule 56(e) is required, and we review de novo whether the evidentiary requirements of Rule 56(e) have been satisfied.”). These cases invoke de novo review primarily “in order to determine whether the evidentiary requirements for summary judgment have been satisfied.” Harmon, ¶ 14.

¶ 12 In considering the correct standard to apply to the evidentiary rulings that contributed to entry of summary judgment in this case, our focus is not on whether particular evidence was appropriate for consideration by the trial court in ruling on the summary judgment motion, but on the standard by which to review the exclusion of expert testimony that left the plaintiff unable to present a prima facie case. Several points bear on our resolution of this issue.

¶ 13 First, in Beehler and other cases, we have applied an abuse of

380 Mont. 208

discretion standard in almost identical circumstances. E.g., Beehler, ¶ 17; Butler v. Domin, 2000 MT 312, ¶¶ 10–23, 302 Mont. 452, 15 P.3d 1189. Second, in cases dating back at least seven decades, we have situated rulings on the admissibility of expert testimony within the discretion of trial courts, vowing not to disturb such rulings “in the absence of a showing of abuse.” E.g., Harris, ¶ 18; Graham v. Rolandson, 150 Mont. 270, 285, 435 P.2d 263, 271 (1967) ; Nesbitt v. City of Butte, 118 Mont. 84, 93, 163 P.2d 251, 256 (1945). Finally, most appeals courts apply an abuse of discretion standard to rulings on the admissibility of expert testimony even when those rulings implicate summary judgment. See, e.g., Flesner v. Bayer AG, 596 F.3d 884, 889 (8th Cir.2010) (“We review for abuse of discretion the district court's decision to exclude testimony for purposes of determining whether there exists an issue of material fact.”) (citing GE v. Joiner, 522 U.S. 136, 142–43, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997) (rejecting the application of de novo review to the exclusion of expert testimony that was “outcome-determinative” to a summary judgment ruling)); Benson v. N. Gopher Enters., Inc., 455 N.W.2d 444, 445–46 (Minn.1990) (reviewing for an abuse of discretion the exclusion of expert...