State ex rel. Stenberg v. Nelson, 12030

Decision Date27 May 1971
Docket NumberNo. 12030,12030
Citation157 Mont. 310,486 P.2d 870
PartiesSTATE of Montana ex rel. Ivar STENBERG, Petitioner and Relator, v. Robert J. NELSON, District Judge of the Eighth Judicial District of the State of Montana In and for the County of Cascade, Respondents.
CourtMontana Supreme Court

Emmet T. Walsh (argued) Seattle, Wash., for petitioner and relator.

Jardine, Stephenson, Blewett & Weaver, John D. Stephenson, Jr. (argued), Great Falls, Poore, McKenzie & Roth, James A. Poore, Jr. (argued), Butte, Gough, Booth, Shanahan & Johnson, Ward A. Shanahan, (argued, Helena, for respondents.

HASWELL, Justice.

This is an application for a writ of prohibition or other appropriate relief by petitioner Ivan Stenberg from an order of the district court of Cascade County severing his medical malpractice suit against several doctors into three separate cases.

Petitioner here is the plaintiff in a medical malpractice action now pending in the district court of Cascade County against five physicians. Petitioner was injured in a mine accident in June 1963 while in the employ of the Boland Development Company engaged in sinking of a shaft in the Kelly mine of the Anaconda Company in Butte, Montana. He placed himself under the care of Dr. Jack Harper in Helena the following November and on December 6, 1963, Dr. Harper performed an anterior spinal fusion operation on petitioner which involved, among other things, the placing of a device known as a T-Humphrey clamp plate within petitioner's body against certain vertebrae.

Thereafter petitioner became dissatisfied with his postoperative condition and consulted Dr. R.B. Richardson of the Great Falls Clinic in August 1964. After a period of further examination and treatment, principally by Dr. Richardson, it was determined that corrective surgery involved removal of the T-Humphrey clamp plate should be undertaken. This operation was performed in the Deaconess hospital in Great Falls on November 9, 1964 by doctors associated with the Great Falls Clinic, principally Dr. L.M. Taylor as surgeon, with Dr. J.W. Bloemendaal assisting him. Following the operation and postoperative care, petitioner was discharged from the hospital on November 24, 1964.

On December 16, 1964, plaintiff went to the emergency room of the Silver Bow General Hospital due to bleeding from a right inguinal incision and placed himself under the care of Dr. N.C. Rosston of Butte. During hospitalization, Dr. Rosston performed an exploratory operation on petitioner to try to locate the source of the bleeding, and thereafter sent petitioner back to the doctors at the Great Falls Clinic by airplane on December 22, 1964. Due to inclement weather and the condition of petitioner enroute to Great Falls, petitioner was removed from the plane at Helena, examined by a physician, and later treated by Dr. John McMahon who hospitalized and operated on petitioner on December 26. He was released from the hospital on January 23, 1965.

As a result of the mine accident, petitioner filed a third party suit against the Anaconda Company and eventually settled the same for $40,000, executing a release on September 20, 1964.

On December 6, 1966, petitioner filed suit for damages based on alleged medical malpractice in the district court of Silver Bow County in Butte. Named as defendants were Dr. Harper, the Great Falls Clinic and three doctors there--Drs. Richardson, Taylor and Bloemendaal, and Dr. Rosston. One other doctor at the Great Falls Clinic was originally named as defendant, but was subsequently dismissed for nonservice upon him. The medical defendants fall into three groups: Dr. Harper in Helena; the three doctors and the Clinic in Great Falls; and Dr. Rosston in Butte. The three groups of defendants were charged with successive acts of negligence and although acting severally and independently and not jointly, are alleged to be jointly liable for all damages suffered by petitioner. Each group of defendants is represented by different counsel, have appeared separately and filed separate pleadings, and contend that each group is not liable for any negligent acts or omissions of any other group.

Subsequently the venue of the malpractice action was transferred to the district court of Cascade County in Great Falls on June 28, 1967. There the Hon. Paul G. Hatfield, district judge, assumed jurisdiction which he continuously held until his disqualification on January 13, 1971.

During the period of Judge Hatfield's jurisdiction, extensive pretrial discovery was carried on by all parties consisting of depositions, interrogatories and answers, requests for admission of fact and responses, conference and agreements including a pretrial conference, and a variety of motions and rulings thereon by the district court. it is readily apparent from detailed examination of the district court file, which consists of four separate and voluminous volumes, that throughout the history of this complex litigation all parties were thoroughly exhausting all procedures for pretrial discovery, formulation of issues, and preparation of proof for the trial which are available to them under the Montana Rules of Civil Procedure, and that none of the parties was chargeable with unnecessary delay or dilatory tactics.

Among other things, Judge Hatfield entered an order dated January 23, 1970 denying the separate motions of the defendants for separate trials and ordering all of petitioner's claims against the various defendants tried in one trial, before one jury. In the same order, defendants were required to serve their respective answers within 20 days.

The three groups of defendants answered separately, with defendants Harper and Rosston subsequently filing amended answers within two weeks. In general terms, the answers of the three groups of defendants were substantially similar consisting of (1) substantially a general denial of negligence, proximate cause, and damages coupled with an express denial of any joint action with any other group of defendants and (2) the defense of release by plaintiff of the Anaconda Company alleged to bar plaintiff's claims or alternatively to constitute a mitigating offset against any recovery by plaintiff.

Thereafter, about 25 days prior to the scheduled pretrial conference, plaintiff gave notice of his intention to seek amendment of his complaint at the pretrial conference by adding five additional allegations of negligence against the Great Falls Clinic and its defendant doctors, four additional allegations of negligence against defendant Harper, and three additional allegations of negligence against defendant Rosston. The additional allegations against the Great Falls Clinic and its defendant doctors related to plaintiff following his operation at the Great Falls Deaconess hospital. The additional allegations against defendant Harper concerned use of an alleged experimental device (the T-Humphrey clamp plate) not acceptable to the medical profession, failure to diagnose a postoperative infection, and failure to call in a specialist to perform the operation which was beyond the competency of a general surgeon. The additional allegations of negligence against defendant Rosston related to failure to call in a competent vascular surgeon, failure to provide medical accompaniment to plaintiff on his airplane trip, and failure to advise the Helena doctor of plaintiff's need for immediate emergency care and treatment.

A pretrial conference was held on November 16, 1970, but no pretrial order was entered. However, a resume of such conference was filed by Judge Hatfield indicating (1) the trial date was continued to February 1, 1971 upon agreement of counsel, and (2) plaintiff's amendments to his complaint were allowed. Various other matters were decided that have no significance in the present proceeding.

Judge Hatfield was disqualified on January 13, 1971 and the Hon. R.J. Nelson, district judge, assumed jurisdiction the same day. After notice and heairng, Judge Nelson entered an order dated January 25, 1971, requiring severance of petitioner's malpractice action into three separate cases: Case # 1--plaintiff's action against Dr. Harper. Case # 2--plaintiff's action against Dr. Rosston. The proposal to sever was raised by Judge Nelson on his own motion and not by counsel for any of the parties.

Thereafter petitioner filed the instant application with this Court seeking review of Judge Nelson's order of January 25, and issuance of a writ of prohibition or other appropriate relief therefrom, together with damages and attorney fees. Extensive briefs were filed by all parties, oral argument had, additional briefing time granted, with the matter finally submitted to this Court for decision.

The issue as stated by counsel for petitioner is whether Judge Nelson exceeded his jurisdiction by severing petitioner's malpractice action into three separate cases on his own motion in view of Judge Hatfield's previous ruling to the contrary.

The gist of petitioner's argument is that while Judge Hatfield had jurisdiction to change his previous order for one trial before one jury if he later determined that he had ruled incorrectly in the first instance, Judge Nelson had no jurisdiction to change Judge Hatfield's order which became res judicata and the "law of the case" upon Judge Hatfield's disqualification. Petitioner argues that the sole discretion to change his original order reposed in Judge Hatfield alone; otherwise it would amount to permitting a coequal judge of the same powers and the orders of the first judge. Petitioner cites the rationale of State ex rel. State Highway Commission v. Kinman, 150b Mont. 12, 430 P.2d 110, condemning such practice, as controlling precedent in the instant case. Petitioner alternatively argues that, in any event, Judge Nelson abused...

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7 cases
  • Board of Educ. of Granite School Dist. v. Salt Lake County, 17175
    • United States
    • Supreme Court of Utah
    • February 8, 1983
    ......body politic of the State of Utah, Plaintiff,. Appellant and Cross-Respondent,. v. ... See also State ex rel. Stenberg v. Nelson, 157 Mont. 310, 486 P.2d 870 (1971) ......
  • Ioerger v. Reiner
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    • United States State Supreme Court of Montana
    • June 21, 2005
    ......at 305, 678 P.2d at 642 (citing State ex rel. Stenberg v. Nelson (1971), 157 Mont. 310, 486 P.2d ......
  • State ex rel. Blond v. Stubbs
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    • Court of Appeal of Missouri (US)
    • September 7, 1972
    ......Stenberg v. Nelson, 157 Mont. 310, 486 P.2d 870, l.c. 875--876, as follows:. 'Applying these considerations ......
  • White v. Lobdell
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    • United States State Supreme Court of Montana
    • March 1, 1984
    ...... as a party defendant on the basis of our decision in State ex rel. City of Havre v. District Court (Mont.1980), 609 ...        In State ex rel. Stenberg v. Nelson (1971), 157 Mont. 310, 486 P.2d 870, we found ......
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