Romans v. Lusin

• Citation: 2000 MT 84,997 P.2d 114,299 Mont. 182
• Decision Date: 04 April 2000
• Docket Number: No. 99-190.,99-190.
• Parties: Kester ROMANS, Plaintiff and Appellant, v. Gary LUSIN and Bozeman Physical Therapy Center, Defendants and Respondents.
• Court: United 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.

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." ¶ 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. 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 duty "must necessarily be developed on a case-by-case basis." Webb, 287 Mont. at 77,951 P.2d at 1014.

¶ 17 In this case, Romans' claim boils down to an allegation that Lusin breached his duty of care in selecting the specific tasks he had Romans perform during the FCE. Here, as in Webb, Lusin administered the FCE at the request of a third party and, thus, no patient-therapist relationship existed. Here, however, it is undisputed that Lusin owed Romans a duty of care. The Restatement (Second) of Torts § 229A (1965), provides that "one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade...." Similarly, in Webb, we concluded that the duty owed was consistent with the level of care required by the examiner's professional training and experience. Webb, 287 Mont. at 77, 951 P.2d at 1014. On these bases, Lusin had a duty to exercise the skill and knowledge in conducting the FCE which is consistent with the training and experience required for his profession.

¶ 18 In addition, while the tasks themselves, which included lifting and moving weights and objects between various heights and locations, undoubtedly are within the common knowledge and understanding of a jury, the selection of which tasks should be performed, which weights and objects used and the sequence of the tasks are not. Indeed, Dr. Campbell testified in his deposition that he was not trained to perform an FCE. Similarly, Dr. Herbert Prussack, a neurologist, testified he orders FCEs, but gave no indication that he was qualified to perform them. Given this testimony, it is clear that administering an FCE requires special education, knowledge and skill. Even absent such testimony, however, it is clear that matters concerning the standard of care owed by a physical therapist in conducting an FCE are outside the common experience and knowledge of lay people and, as a result, expert testimony is required to assist them in resolving such cases. Thus, applying Webb to the present case, Lusin's duty—that is, the standard of care applicable to the administration of an FCE—can be established only through expert testimony which takes into account the training and experience of a physical therapist relative to administering an FCE.

¶ 19 Romans argues that Webb is distinguishable on its facts and, consequently, our holding is inapposite because he did not seek or receive advice from Lusin and his injury occurred during the FCE. While it is true that our holding in Webb focused on the duty of a physician performing an independent medical exam at the request of a third party to discover and communicate conditions to the examinee, the basis of our holding was the conclusion that a physician owed a duty to an examinee who was not his patient "to exercise the level of care required by the examiner's professional training and...