Norris v. Fritz

• Decision Date: 07 February 2012
• Docket Number: No. DA 10–0481.,DA 10–0481.
• Citation: 2012 MT 27,270 P.3d 79,364 Mont. 63
• Parties: Joe and Kathryn NORRIS, Individually and on Behalf of their Minor Son, T.M.N., Plaintiffs and Appellants, v. Dr. Blayne FRITZ, Defendant and Appellee.
• Court: Montana Supreme Court

2012 MT 27

270 P.3d 79

364 Mont. 63

Joe and Kathryn NORRIS, Individually and on Behalf of their Minor Son, T.M.N., Plaintiffs and Appellants,

v.Dr. Blayne FRITZ, Defendant and Appellee.

No. DA 10–0481.

Supreme Court of Montana.

Submitted on Briefs Nov. 10, 2011.Decided Feb. 7, 2012.

For Appellants: Linda M. Deola; Jonathan R. Motl; Morrison, Motl & Sherwood, PLLP, Helena, Montana.

For Appellee: Gary Kalkstein; C.J. Johnson; Kalkstein, Johnson & Dye, P.C., Missoula, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

[364 Mont. 64] ¶ 1 Kathryn Norris and Joe Norris (collectively Norris) appeal from a judgment in the First Judicial District, Lewis and Clark County, following a jury trial. We reverse.

¶ 2 Norris raises the following dispositive issue:

¶ 3 Did the District Court abuse its discretion when it determined that the pre-trial circumstances warranted excluding a treating physician's testimony regarding the appropriate standard of care?

¶ 4 Kathryn contracted a viral infection eight months into her pregnancy with T.M.N. Doctors advised an immediate C-section. Doctors delivered T.M.N. through C-section the next day on October 11, 2001. The treating pediatrician, Dr. Tom Strizich (Strizich), admitted T.M.N. to the Special Care Nursing unit later that same day following a cyanotic episode.

¶ 5 Strizich ordered an IV with glucose. He also directed that T.M.N.'s blood glucose be tested the morning of October 12, 2001. T.M.N.'s blood glucose test revealed a reading of 63. Strizich responded to the 63 result by increasing the rate of the IV infusion and thereby increasing the amount of glucose that T.M.N. was receiving. He ordered a re-testing of T.M.N.'s glucose for the morning of October 13, 2001.

¶ 6 Strizich served at that time in the same pediatric clinic as Dr. John Reynolds (Reynolds) and Dr. Blayne Fritz (Fritz). Reynolds took over T.M.N.'s care on the evening of October 12, 2001. Reynolds was caring for T.M.N. when the second glucose lab result arrived. The second lab result showed a glucose level of 38. The lab report identified the 38 level as “critical.” The 38 level prompted lab employees to call the results to the nursing floor. Reynolds discontinued the IV and ordered no re-testing of T.M.N.'s glucose after T.M.N. began breastfeeding.

¶ 7 Fritz took over T.M.N.'s care at noon on October 13, 2001. Fritz had been made aware of T.M.N.'s earlier glucose results. Fritz did not restart the IV or order any follow-up tests. Fritz testified that he could monitor a baby's glucose level by visual inspection. He further testified that he believed that T.M.N. would receive sufficient glucose from his mother's milk.

¶ 8 A nurse found T.M.N. flaccid and unresponsive the morning of October 14, 2001. Fritz ordered a glucose lab test. The test result revealed that T.M.N.'s glucose level was zero. Doctors administered glucose. T.M.N.'s body began recovering after several hours, but he soon began having seizures. Doctors life-flighted T.M.N. to Benefis Hospital in Great Falls after he stabilized. T.M.N. suffered severe, permanent development issues.

¶ 9 Norris filed a complaint on May 5, 2005, against Reynolds, Fritz, and St. Peter's Hospital (collectively Defendants). District Judge Thomas Honzel assumed jurisdiction. The parties conducted extensive discovery. Pretrial proceedings continued for a number of months into years. These proceedings included a 2005 deposition of Strizich. Counsel for Norris and Defendants questioned Strizich at the deposition.

¶ 10 The parties identified their lay and expert witnesses in September, October, and November of 2006. Norris filed an expert disclosure that identified all of T.M.N.'s treating physicians. Defendants filed motions in limine in March 2007 to prevent the treating physicians from providing opinion testimony. The District Court denied the motion.

¶ 11 The court determined that the treating physicians could provide expert testimony. The court noted that the treating physicians “were not retained ... in advance of or for purposes of litigation” so an expert disclosure under M.R. Civ. P. 26(b)(4) was unnecessary. The order implied that the disclosure provided by Norris was wholly consistent with the scope of the treating physician's allowable testimony. The court concluded its order with the somewhat contradictory directive that Defendants could object at trial if “Plaintiffs are attempting to elicit opinions from the treating physicians beyond what is set out in the Plaintiff's disclosure....”

[364 Mont. 66] ¶ 12 Fritz's counsel filed another motion in limine in November 2008, after Judge Honzel's March 2007 order, to prevent the treating physicians from providing standard of care testimony. Norris's counsel filed a brief in opposition to that motion in December 2008. Neither party has cited any ruling by the District Court as to this motion in limine. And nothing in the record indicates whether the District Court provided any ruling.

¶ 13 Judge Honzel retired on December 31, 2008. District Judge Kathy Seeley assumed jurisdiction of the case. Norris settled with Reynolds and St. Peter's Hospital in 2009. The settlement left Fritz as the sole defendant. The court granted Fritz's motion for leave to re-depose certain treating physicians. Fritz did not seek to depose Strizich a second time.

¶ 14 The case went to trial on July 19, 2010. Norris's counsel described during her opening statement the events that culminated in T.M.N.'s developmental injury. She specifically described the treatment offered by Strizich. She further informed the jury that Strizich would testify that a glucose level of 50 represents “his threshold for a baby like [T.M.N.].” She also stated that Strizich would testify that T.M.N. was hypoglycemic when the test results of October 13, 2001, revealed a glucose level of 38. Norris called Strizich as her first witness on July 21, 2010.

¶ 15 Before trial started that morning, however, Fritz moved to limit the scope of Strizich's proposed testimony. Fritz argued that he had become aware only during Norris's opening statement that Strizich would testify that he considered a sick newborn with a 50 glucose level to be at risk. Norris countered that Strizich would testify only to the standard of care for blood glucose level, but would not state specifically that Fritz had violated that standard in his treatment of T.M.N. The District Court granted Fritz's motion.

¶ 16 The court directed Strizich not to testify as to any standard of care. The court limited Strizich to testify as to his own personal practice. The District Court also instructed the jury that a physician's testimony regarding his personal practice does not establish a general medical standard of care. The jury returned a verdict in favor of Fritz. Norris appeals.

STANDARD OF REVIEW

¶ 17 We review for an abuse of discretion a district court's rulings on the admissibility of expert testimony. Weber v. BNSF Ry. Co., 2011 MT 223, ¶ 18, 362 Mont. 53, 261 P.3d 984.

DISCUSSION

¶ 18 Did the District Court abuse its discretion when it determined that the pre-trial circumstances warranted excluding a treating physician's testimony regarding the appropriate standard of care?

¶ 19 Montana R. Civ. P. 26(b)(4) governs expert disclosures. It allows a party, through interrogatories, to require the opposing party to disclose certain information regarding his expert and the expert's predicted testimony. M.R. Civ. P. 26(b)(4). These disclosure requirements eliminate surprise and promote effective cross-examination of expert witnesses. Smith v. Butte–Silver Bow County, 276 Mont. 329, 333, 916 P.2d 91, 93 (1996). Absent such disclosures, a party would incur difficulty in ascertaining the particular approach of an adversarial expert. Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 72, 338 Mont. 259, 165 P.3d 1079. Disclosure provides a party sufficient information and time, therefore, to plan effectively for cross-examination and to obtain an expert to refute the adversarial expert's testimony. Superior Enters. LLC v. Mont. Power Co., 2002 MT 139, ¶ 18, 310 Mont. 198, 49 P.3d 565.

¶ 20 Notably, M.R. Civ. P. 26(b)(4) limits disclosure requirements to retained experts. Its language restricts the provision's application to “facts known and opinions held by experts ... acquired or developed in anticipation of litigation or for trial ....” (Emphasis added). This language, when adopted, mirrored its federal counterpart. The Federal Advisory Committee noted that Fed.R.Civ.P. 26(b)(4) had limited application when it adopted the rule. It stated that the rule “does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit.” Fed.R.Civ.P. Comments (1970). The Committee determined that “[s]uch an expert should be treated as an ordinary witness.” Fed.R.Civ.P. Comments (1970).

¶ 21 The rule's limited application supports the idea that the purpose underlying expert disclosure simply does not apply to non-retained experts. The M.R. Civ. P. 26(b)(4) disclosures and pre-trial depositions provide a party's only access to an adversarial, retained expert's identity and opinions. A retained expert's identity could remain unknown and his opinions unattainable until the expert disclosure deadline within a scheduling order. See, e.g., Sunburst, ¶ 70.

¶ 22 In contrast, a non-retained expert's role in the factual scenario makes his identity well known to both parties and his opinions more readily available. A non-retained expert typically will be a hybrid witness. This witness possesses personal knowledge of factual events relevant to the case. He also possesses specialized training that allows him to formulate expert opinions regarding those factual events. His involvement usually stems from his profession thereby making his...