Romans v. Lusin, No. 99-190.

Docket NºNo. 99-190.
Citation2000 MT 84, 997 P.2d 114, 299 Mont. 182
Case DateApril 04, 2000
CourtUnited States State Supreme Court of Montana

997 P.2d 114
2000 MT 84
299 Mont. 182

Kester ROMANS, Plaintiff and Appellant,
v.
Gary LUSIN and Bozeman Physical Therapy Center, Defendants and Respondents

No. 99-190.

Supreme Court of Montana.

Submitted on Briefs July 22, 1999.

Decided April 4, 2000.

Rehearing Denied April 20, 2000.


997 P.2d 115
Joseph W. Rohan; Halliday & Watkins, Salt Lake City, Utah, For Appellant

Richard E. Gillespie; Keller, Reynolds, Drake, Johnson & Gillespie, Helena, Montana, For Respondents.

Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Kester Romans (Romans) appeals from the judgment of dismissal with prejudice entered by the Eighteenth Judicial District Court, Gallatin County, on its grant of summary judgment to the defendants. We affirm.

¶ 2 The overall issue on appeal is whether the District Court erred in granting summary judgment to the defendants. In resolving that issue, we address the following:

¶ 3 1. Is expert testimony necessary for Romans to establish the applicable standard of care and a breach of that standard?

¶ 4 2. Does Romans' Rule 26(b)(4), M.R.Civ.P., disclosure satisfy his burden for purposes of avoiding summary judgment?

¶ 5 3. Does the doctrine of res ipsa loquitur apply in this case?

BACKGROUND

¶ 6 In late 1993, Dr. John Campbell, an orthopedic surgeon, began treating Romans for a right foot and heel injury. Dr. Campbell referred him to physical therapist Gary Lusin (Lusin) at the Bozeman Physical Therapy Center (P.T. Center) for a functional capacities evaluation (FCE) to assist in developing a workers' compensation impairment rating. Lusin conducted the FCE to determine Romans' specific abilities and limitations secondary to his right foot injury.

¶ 7 Romans subsequently sued Lusin and the P.T. Center alleging that Lusin negligently performed the FCE, resulting in injury to his back, and that the P.T. Center was liable for Lusin's negligence on the theory of respondeat superior. Hereafter, we refer to Lusin and the P.T. Center collectively as Lusin.

¶ 8 Discovery ensued. As part of his first set of interrogatories to Romans, Lusin requested the identity of each person Romans expected to call at trial as an expert witness to opine about the applicable standards of care, breach of those standards, proximate cause of the alleged injury and damages. Romans answered the interrogatories by stating that "[t]he identity of the persons [sic] or persons has not been ascertained at this time, I will supplement this interrogatory when the information becomes available."

997 P.2d 116
¶ 9 In the meantime, the parties' counsel prepared a joint proposed scheduling order. The original scheduling order entered by the District Court required the exchange and filing of expert witness lists, together with Rule 26(b)(4), M.R.Civ.P., expert disclosures, not later than July 10, 1998, and completion of discovery by October 20, 1998. The scheduling order was amended twice, with a final date for the exchange and filing of expert witness lists and Rule 26(b)(4) expert disclosures of October 5, 1998. The October 20, 1998 date for completion of discovery remained unchanged

¶ 10 Lusin moved for summary judgment on October 27, 1998, on the basis that Romans had not identified an expert witness to provide the testimony required to establish the elements of his cause of action. At the pretrial conference on November 9, 1998, the District Court gave Romans until December 1, 1998, to file his expert witness list and disclosures. Romans failed to do so.

¶ 11 The court heard arguments on Lusin's summary judgment motion on December 21, 1998. Romans argued that he had alleged an action in ordinary negligence and, as a result, expert testimony was unnecessary because the duty element was merely the exercise of ordinary care. Romans also stated, however, that if an expert were necessary, Lusin knew by August of 1998 that Dr. Richard Nelson, a neurologist, would be his expert. He also contended he could rely on the doctrine of res ipsa loquitur to prove breach and causation. The court determined that res ipsa loquitur did not apply and gave Romans until January 14, 1999, to provide the Rule 26(b)(4), M.R.Civ.P., disclosure by Dr. Nelson. The court also stated that, if Romans' expert disclosure was not timely made or was inadequate, Lusin could renew his motion for summary judgment.

¶ 12 Romans mailed his Rule 26 disclosure on January 14, 1999, but it was not filed until January 21, 1999, two days after Lusin renewed his motion for summary judgment. The District Court concluded that, even if res ipsa loquitur were applicable, it would not permit a presumption of negligence, but would require Romans to establish a prima facie case that Lusin breached a duty of care via expert testimony. The court further concluded that Romans had failed to make the Rule 26(b)(4), M.R.Civ.P., expert disclosure required by law and the court's orders. The District Court granted Lusin's motion for summary judgment, dismissed Romans' complaint against both defendants with prejudice and entered judgment accordingly. Romans appeals.

STANDARD OF REVIEW

¶ 13 This Court reviews a district court's ruling on a motion for summary judgment de novo, using the same Rule 56, M.R.Civ.P., criteria applied by the district court. Gilkey v. Schweitzer, 1999 MT 188, ¶ 9, 295 Mont. 345, ¶ 9, 983 P.2d 869, ¶ 9. Rule 56(c), M.R.Civ.P., provides that summary judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Gomez v. State, 1999 MT 67, ¶ 7, 293 Mont. 531, ¶ 7, 975 P.2d 1258, ¶ 7.

DISCUSSION

¶ 14 1. Is expert testimony necessary for Romans to establish the applicable standard of care and a breach of that standard?

¶ 15 Romans contends that his action against Lusin is for ordinary negligence—not medical malpractice or professional negligence—and, therefore, he is not required to present expert testimony to establish Lusin's duty and a breach of that duty. Consequently, he argues that the District Court erred in concluding he needed expert testimony to establish the elements of his cause of action.

¶ 16 We addressed a somewhat analogous situation in Webb v. T.D. (1997), 287 Mont. 68, 72, 951 P.2d 1008, 1011, where the issues were whether a physician who examines a person at the request of a third party has a duty of care to the examinee and, if so, the scope of that duty. There, the physician contended he owed no duty as a matter of law because no physician-patient relationship existed between himself and the examinee.

997 P.2d 117
Webb, 287 Mont. at 72, 951 P.2d at 1011. We rejected that argument. Based on the standard of ordinary care set forth in § 27-1-701, MCA, we concluded that a duty is imposed on such a physician "to exercise the level of care required by the examiner's professional training and experience...." Webb, 287 Mont. at 77, 951 P.2d at 1014. Moreover, we concluded that the scope of that...

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3 practice notes
  • In the Matter of The Conservatorship of J.R., No. DA 10–0256.
    • United States
    • Montana United States State Supreme Court of Montana
    • April 5, 2011
    ...W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32 (W. Page Keeton ed., 5th ed., West 1984)); see also Romans v. Lusin, 2000 MT 84, ¶ 17, 299 Mont. 182, 997 P.2d 114 (“The Restatement (Second) of Torts § 229A (1965), provides that ‘one who undertakes to render services in th......
  • Looman v. Montana, CV 11-143-M-DWM-JCL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • January 31, 2013
    ...ordinary course of things does not occur if the one having such control uses proper care.Howard, 129 P.3d at 132 (quoting Romans v. Lusin, 997 P.2d 114, 119 (Mont. 2000)). Res ipsa loquitur is inapplicable under the facts of this case. The air brake canister and the truck to which it was at......
  • Howard v. St. James Community Hosp., No. 04-411.
    • United States
    • January 31, 2006
    ...(3) the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care. Romans v. Lusin, 2000 MT 84, ¶ 32, 299 Mont. 182, ¶ 32, 997 P.2d 114, ¶ ¶ 29 Howard maintains that res ipsa loquitur applies because the hospital restraints (the so-cal......
3 cases
  • In the Matter of The Conservatorship of J.R., No. DA 10–0256.
    • United States
    • Montana United States State Supreme Court of Montana
    • April 5, 2011
    ...W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32 (W. Page Keeton ed., 5th ed., West 1984)); see also Romans v. Lusin, 2000 MT 84, ¶ 17, 299 Mont. 182, 997 P.2d 114 (“The Restatement (Second) of Torts § 229A (1965), provides that ‘one who undertakes to render services in th......
  • Looman v. Montana, CV 11-143-M-DWM-JCL
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • January 31, 2013
    ...ordinary course of things does not occur if the one having such control uses proper care.Howard, 129 P.3d at 132 (quoting Romans v. Lusin, 997 P.2d 114, 119 (Mont. 2000)). Res ipsa loquitur is inapplicable under the facts of this case. The air brake canister and the truck to which it was at......
  • Howard v. St. James Community Hosp., No. 04-411.
    • United States
    • January 31, 2006
    ...(3) the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care. Romans v. Lusin, 2000 MT 84, ¶ 32, 299 Mont. 182, ¶ 32, 997 P.2d 114, ¶ ¶ 29 Howard maintains that res ipsa loquitur applies because the hospital restraints (the so-cal......

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