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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 47946

MICHAEL SUMMERFIELD,

 Plaintiff-Appellant,

v.

ST. LUKE'S McCALL, LTD., 

 Defendants-Respondents,

and

JOHN/JANE DOES I-X, whose true identities 

are presently unknown,

 Defendants.

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Boise, June 2021 Term

Opinion filed: August 31, 2021

Melanie Gagnepain, Clerk 

Appeal from the District Court of the Fourth Judicial District of the State of 

Idaho, Valley County. Jason D. Scott, District Judge.

The decision of the district court is affirmed in part, reversed in part, and

remanded.

Johnson & Monteleone, LLP, Boise, for Appellant. Jason Monteleone argued.

Brassey Crawford, Boise, for Respondents. Andrew Brassey argued.

 _______________________________________________

MOELLER, Justice.

Michael Summerfield brought a medical malpractice suit against St. Luke’s McCall, Ltd. 

(St. Luke’s), following the surgical removal of his gallbladder. During surgery, the attending 

surgeon, who was employed by St. Luke’s, unknowingly spilled and left a gallstone in 

Summerfield’s peritoneal cavity. When it was later determined that the gallstone was not in the 

removed gallbladder, the surgeon failed to inform Summerfield of the incident, warn him of any 

potential complications, or properly document the incident in his medical records. 

St. Luke’s moved for summary judgment, challenging the admissibility of the opinions 

offered by Summerfield’s expert witness. St. Luke’s asserted that Summerfield’s expert, as an 
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emergency medicine and wound care physician, was unable to establish the requisite knowledge 

of the applicable standards of care and breaches thereof by St. Luke’s and the attending surgeon. 

The district court initially agreed with St. Luke’s and granted its motion for summary judgment. 

Summerfield then filed a motion for reconsideration and attached a supplemental declaration 

from his expert witness that established the requisite foundation. The district court considered 

this additional evidence and granted Summerfield’s motion. However, the district court later 

reversed itself, relying on Ciccarello v. Davies, 166 Idaho 153, 456 P.3d 519 (2019), which held 

that a trial court is afforded discretion in determining whether to consider new declarations 

accompanying a motion for reconsideration if they were untimely for consideration at summary 

judgment. Summerfield appealed to this Court and contends the district court’s sua sponte

reversal of itself was in error and contrary to previous decisions issued by this Court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

Michael Summerfield had a large gallstone in his gallbladder. On August 31, 2015, Dr. 

Amy Ocmand, an employee of St. Luke’s, performed a laparoscopic cholecystectomy to remove 

Summerfield’s gallbladder. Following the procedure, Dr. Ocmand sent the removed gallbladder

off for examination, but no gallstone was found. Unknown to Dr. Ocmand, the gallstone had 

spilled out of the gallbladder during surgery and was left inside Summerfield’s peritoneal cavity.

After learning that the gallstone had been left inside Summerfield, Dr. Ocmand chose not to 

inform him of that fact. Dr. Ocmand also did not make any notation in Summerfield’s medical 

chart to reflect the retained stone. Summerfield saw Dr. Ocmand two more times on September 

15, 2015, and December 2, 2015, and Dr. Ocmand did not inform him of the missing gallstone. 

The retained gallstone unknowingly began to cause health problems for Summerfield. 

From January of 2016 through March of 2016, Summerfield saw Dr. Ostermiller for right flank 

pain and shoulder pain. Summerfield underwent a urinalysis, an ultrasound of his kidney, and 

acupuncture to relieve the pain. In April of 2016, Summerfield received medical care for a 

cough, fever, and congestion. In June of 2016, he received more medical care for a cough, 

achiness, and a fever. Summerfield also had an unexplained weight loss of six pounds. The 

following month Summerfield saw Dr. Ostermiller again with a cough, right lower back pain, 

and upper quadrant abdominal pain. Summerfield had lost an additional 12 pounds from the 

previous month. Dr. Ostermiller noted a large mass on Summerfield’s right flank. The doctor 

speculated that it could be cancer. Summerfield underwent a CT scan of the chest, abdomen, and 
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pelvis. The CT scan revealed a “multiloculated peripherally enhancing fluid collection involving 

the right posterior flank and retroperitoneal space.” Summerfield was referred to a surgeon who 

opined that it was a “chronic intraabdominal abscess with a retained gallstone.” In late July, 

Summerfield underwent surgery to drain the abscess and remove the gallstone. However, “the 

gallstone was so invested in vital structures by then that it could not be safely removed.” 

Initially, the abscess improved; but then it required additional drainage the following month. The 

abscess recurred again in September of 2016. Finally, the abscess was able to be drained and the 

gallstone removed in an additional surgery. The final surgery required lengthy use of a wound 

vacuum to close the large “defect” that was left. 

Summerfield brought suit against St. Luke’s on a respondeat superior theory. 

Summerfield alleged that Dr. Ocmand, an employee of St. Luke’s, negligently failed to (1) notice 

the spilled gallstone during surgery, (2) retrieve it, (3) inform him of the spilled gallstone or 

potential health complications, (4) conduct imaging afterward to identify the spilled gallstone’s 

location, and (5) make a notation of the spilled gallstone on his medical chart. 

Pursuant to discovery, Summerfield disclosed Dr. Julie Madsen as his expert witness. 

Summerfield’s disclosure stated that Dr. Madsen was familiar with the standard of care because 

she had been “practicing medicine at St. Luke’s at the time relevant to this action” and “was 

actively engaged in the practice of medicine in both Boise and McCall in August 2015 and 

September 2015.” 

Trial was scheduled for November 19, 2019, and the deadline for Summerfield’s expert 

witness disclosure was set for June 24, 2019. On June 26, 2019, two days after the deadline, 

Summerfield disclosed Dr. Madsen as his sole expert witness, and attached her curriculum vitae

and a report summarizing her findings. Dr. Madsen is board-certified in emergency medicine and 

has practiced in wound care for the previous eight years. Dr. Madsen’s experience did not 

include the performance of any laparoscopic cholecystectomies. While Dr. Madsen’s report

referenced what is expected of general surgeons, it failed to state the particular standard of care 

when it comes to board-certified surgeons performing laparoscopic cholecystectomies. 

Additionally, Dr. Madsen did not detail any inquiries she conducted of other physicians who 

perform laparoscopic cholecystectomies. 

St. Luke’s filed a motion for summary judgment asserting that Summerfield could not 

establish a foundation for his claim because Dr. Madsen was not familiar with the standard of 
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care required of general surgeons who perform laparoscopic cholecystectomies. Summerfield 

responded by filing an affidavit from Dr. Madsen in an attempt to address St. Luke’s contentions

(the “first affidavit”). Dr. Madsen expanded on her experience with laparoscopic 

cholecystectomies by stating that as an Emergency Medicine Physician-Specialist, she routinely 

evaluates patients with gallbladder disease and refers them to surgery. Further, she regularly

manages complications of gallbladder surgery, including wound infection, retained or spilled 

gallstones, and other related complications. Dr. Madsen listed many surgical standards in her 

affidavit that applied to laparoscopic cholecystectomies but most were very broad surgical 

standards, such as “obtain informed consent from the patient.” Again, Dr. Madsen did not detail 

any inquiries she conducted of other physicians who perform laparoscopic cholecystectomies. 

After the district court heard argument on St. Luke’s motion for summary judgment, it

granted Summerfield leave to submit a supplemental affidavit regarding the names of the 

surgeons with whom Dr. Madsen had spoken in order to familiarize herself with the applicable 

standard of care. The district court also requested the publication of the American College of 

Surgeons to which Dr. Madsen had cited when listing the surgical standards in her prior 

affidavit. 

Dr. Madsen’s supplemental affidavit (the “second affidavit”) provided the publication for 

her list of surgical standards. The second affidavit also detailed her discussion with two general 

surgeons from Wyoming who had worked at St. Luke’s on a locum tenens1 basis. Dr. Madsen 

stated, “in discussing the details of performing general surgery at St. Luke’s McCall in 2015, 

these two locum tenens physicians . . . verified for me that the [standards of care] that applied to 

them were the same as the national [standards of care].” This discussion, however, occurred in 

late 2014 or into the middle of 2015, predating Summerfield’s surgery on August 31, 2015 and 

his post-operative complications. Dr. Madsen went on to further detail a conversation with other 

physicians:

Specifically, I spoke to Jon Getz, M.D., and Johnny Green, M.D., who are Boisebased general, abdominal surgeons, relative to the [standards of care] applicable 

to general, abdominal surgeons in McCall, Idaho, also in the late 2014 or into the 

middle of 2015 time frame. Both Drs. Getz and Green confirmed for me that my 

understanding of the [standards of care] applicable in this case regarding Mr. 

Summerfield was, in fact, correct and accurate and also that the national 

[standards of care] controlled.

 1 A doctor taking the place of another or temporarily filling an open position.
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Dr. Madsen’s second affidavit also alleged that Dr. Ocmand violated the applicable standards of 

care when she failed to inform Summerfield of the spilled gallstone and by failing to make any 

notation concerning it in his medical chart. 

The district court granted St. Luke’s motion for summary judgment, finding that Dr. 

Madsen could not establish familiarity with the applicable standard of care to maintain 

Summerfield’s action. The district court noted that, as a matter of law in a medical malpractice 

case, the plaintiff must offer expert testimony that the defendant negligently failed to meet the 

applicable standard of care. The expert witness’s opinions and testimony must be supported by 

the following foundation: 

(a) that such an opinion is actually held by the expert witness, (b) that the said 

opinion can be testified to with reasonable medical certainty, and (c) that such 

expert witness possesses professional knowledge and expertise coupled with 

actual knowledge of the applicable said community standard to which his or her 

expert opinion testimony is addressed[.]

I.C. § 6-1013.

Initially, the district court noted that Dr. Ocmand is a board-certified general surgeon and 

Dr. Madsen is not. The standard of care for board-certified specialists is the national standard of 

care. Because Dr. Madsen is not board-certified, the district court reasoned that she could not be 

presumed to know that standard. However, Dr. Madsen could still demonstrate her knowledge of 

the applicable standard of care through her experience or study of the specialty of the defendant 

physician. Nevertheless, the district court determined she also failed to meet this burden. Dr. 

Madsen described her experience as managing complications of gallbladder surgery, evaluating 

patients with gallbladder disease, and referring patients for laparoscopic cholecystectomies. Her 

experience never described actually performing laparoscopic cholecystectomies.

The district court found that Dr. Madsen’s affidavits only referenced general knowledge 

of what is expected of general surgeons, not particular knowledge of board-certified physicians 

performing laparoscopic cholecystectomies. Additionally, Dr. Madsen did not perform any

pertinent inquiries of other physicians. For example, she spoke with two unidentified surgeons 

from Wyoming who told her the national standard of care applies to general surgeons. She also 

spoke with two general surgeons who practice in Boise, Dr. Getz and Dr. Green, who told her the 

same information. Dr. Madsen alleged she had specific conversations with Dr. Getz and Dr. 

Green that “confirmed for me that my understanding of the [standards of care] applicable in this 
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case regarding Mr. Summerfield, was, in fact, correct and accurate.” However, she spoke to them 

well before Summerfield’s post-operative complications began. The district court remained

unconvinced: “[l]eft unsaid is precisely what ‘understanding’ of Dr. Madsen’s was ‘confirmed’ 

by Drs. Getz and Green. That’s one reason Dr. Madsen’s description of these conversations isn’t 

convincing evidence that she learned from them the standard of care applicable to general 

surgeons in connection with laparoscopic cholecystectomies.”

The district court further noted that Dr. Madsen failed to demonstrate her knowledge of 

the applicable standard of care through study of authoritative texts or articles.2 Even though Dr. 

Madsen listed the surgical standards from the American College of Surgeons’ website, the 

website specifically qualified that the list “does not constitute a standard of care.” The district 

court concluded: “Relying on a statement that expressly disclaims being a standard of care to try 

to demonstrate knowledge of the standard of care suggests Dr. Madsen doesn’t know where to 

look to learn the standard of care.” 

In sum, the district court held that Dr. Madsen did not show knowledge of the applicable 

standards of care, either through her professional experience or study. Without such knowledge,

the district court reasoned that there was no foundation for Dr. Madsen’s opinions regarding Dr. 

Ocmand’s alleged breaches of those standards. Therefore, the district court could not consider 

Dr. Madsen’s opinion at summary judgment and Summerfield otherwise had no evidence to 

establish any breach of the applicable standards of care. 

Summerfield then filed a motion for reconsideration of the district court’s decision on 

summary judgment and attached a third affidavit from Dr. Madsen (the “third affidavit”).

Summerfield argued that Dr. Madsen’s third affidavit clearly demonstrates that she has 

knowledge and is familiar with the applicable standards of care. Dr. Madsen’s third affidavit 

stated that ten days after the entry of judgment dismissing Summerfield’s case on summary 

judgment, she called Dr. Matthew Macha—a Boise general surgeon who performs laparoscopic 

cholecystectomies—to discuss the standard of care for laparoscopic cholecystectomies. Although 

the district court stated, “before this conversation, Dr. Madsen hadn’t—according to the record in 

this case—made a bona fide effort to learn the applicable standard of care for laparoscopic 

cholecystectomies from someone with knowledge of it,” it decided to consider Dr. Madsen’s 

 2 The district court noted that Dr. Madsen did additional reading to try to learn the applicable standard of care and 

then cited several articles on spilled gallstones. Nevertheless, these articles were not part of the record in front of the 

district court and their content was unclear to the district court, so they were not considered. 
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third affidavit. The district court noted that Dr. Madsen’s third affidavit supplied the foundation 

that was missing when summary judgment was granted. St. Luke’s contended that the district 

court should not consider the late affidavit; the district court disregarded St. Luke’s assertions 

and considered Dr. Madsen’s third affidavit, recognizing that “case law dictates considering new 

evidence in connection with Rule 11.2(b) motions.” 

As the district court later noted, at the time it made this ruling it was under the impression 

that it must consider new evidence on a motion for reconsideration. Accordingly, upon 

consideration of Dr. Madsen’s third affidavit, the district court granted Summerfield’s motion for 

reconsideration and vacated the prior order granting summary judgment to St. Luke’s. However, 

the district court ordered a monetary sanction against Summerfield for the late filing in lieu of 

excluding Dr. Madsen’s third affidavit. 

Then, 28 days later, the district court sua sponte rescinded its order granting 

Summerfield’s motion for reconsideration and reinstated judgment in favor of St. Luke’s. The 

district court explained its reasons for reversing itself:

[T]he [district court’s] choice of sanction was influenced by case law requiring 

the trial courts to consider new evidence submitted with a motion to reconsider. 

. . . That case law seemed to put the Idaho Supreme Court’s thumb on the scale in 

favor of considering new evidence, despite the movant’s failure to submit the 

evidence when the movant should’ve submitted it. . . . That perception contributed 

to the [district court’s] decision to elevate—above the fairness and judicialeconomy concerns involved in letting the movant escape the natural consequences 

of missed deadlines—the aim of an adjudication made on the fullest factual 

record.” 

The district court further noted that it did not take notice of this Court’s recent decision in 

Ciccarello v. Davies, 166 Idaho 153, 456 P.3d 519 (2019), before making its initial decision.3 In 

Ciccarello, this Court held that a district court did not abuse its discretion in refusing to consider 

new evidence on reconsideration when the declarations were untimely for consideration at 

summary judgment, thereby clarifying the case law on a lower court’s obligation to consider new 

evidence submitted with a motion for reconsideration: 

While this Court has explained that when considering a motion for 

reconsideration the trial court should take into account any new facts presented by 

the moving party that bear on the correctness of the order, this rule was not 

designed to allow parties to bypass timing rules or fail to conduct due diligence 

 3 Cicarrello was decided after the parties briefed the issue but before the district court’s order granting 

Summerfield’s motion for reconsideration. 
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prior to a court’s ruling. Rather, the purpose of a motion for reconsideration is to 

reexamine the correctness of an order. 

166 Idaho at 162, 456 P.3d at 528 (internal citations, quotation marks, and brackets omitted). The 

district court stated that had it been aware of Ciccarello, it would have made a different decision.

The district court then reversed itself, reasoning:

Reevaluating the issues in light of Ciccarello, the [district court] no longer 

considers forgiving Summerfield’s missed deadlines and considering Dr. 

Madsen’s third affidavit to be the best exercise of its discretion. Instead, the best 

exercise of the [district court’s] discretion is to decline to consider that affidavit. It 

was submitted after Summerfield’s deadline for filing opposition papers on 

summary judgment, and it evidences a post-judgment effort to render Dr. Madsen 

qualified to render her opinions on the applicable standard of care, when that 

effort should’ve occurred much earlier—by the time of Summerfield’s expert 

disclosures and, if not then, not later than when his opposition papers came due. 

. . . Alternatively, the [district court] simply declines to consider that affidavit, as 

Ciccarello allows, because it wasn’t filed within the time allowed by I.R.C.P. 

56(b)(2) and there is no good excuse for Summerfield’s failure to develop and 

present the necessary foundation for Dr. Madsen’s opinions until after a decision 

was rendered on summary judgment. 

Summerfield timely appealed the district court’s order on summary judgment and the 

district court’s order reinstating judgment for St. Luke’s. 

II. STANDARD OF REVIEW

“This Court exercises de novo review of a grant of summary judgment and the ‘standard 

of review is the same as the standard used by the trial court in ruling on the motion for summary 

judgment.’ ” AED, Inc. v. KDC Invest, LLC, 155 Idaho 159, 163, 307 P.3d 176, 180 (2013) 

(quoting Stonebrook Const., LLC v. Chase Home Fin., LLC, 152 Idaho 927, 929, 277 P.3d 374, 

376 (2012)). Summary judgment is appropriate “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

I.R.C.P. 56(a). A material fact exists when a reasonable jury could return a verdict for the nonmoving party based on the evidence presented. Marek v. Hecla, Ltd., 161 Idaho 211, 220, 384 

P.3d 975, 984 (2016). “This Court liberally construes the record in favor of the party opposing 

the motion for summary judgment and draws any reasonable inferences and conclusions in that 

party’s favor.” Robinson v. Bateman-Hall, Inc., 139 Idaho 207, 209, 76 P.3d 951, 953, (2003). 

“The admissibility of expert testimony, however, is a threshold matter that is distinct 

from whether the testimony raises genuine issues of material fact sufficient to preclude summary 
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judgment.” Arregui v. Gallegos-Main, 153 Idaho 801, 804, 291 P.3d 1000, 1003 (2012) (internal 

citation omitted). The “liberal construction and reasonable inferences standard does not apply” 

when determining the admissibility of expert testimony; instead, “the trial court must look at the 

witness’ affidavit or deposition testimony and determine whether it alleges facts which, if taken 

as true, would render the testimony of that witness admissible.” Mattox v. Life Care Ctrs. of Am., 

Inc., 157 Idaho 468, 473, 337 P.3d 627, 632 (2014). 

This Court reviews a district court’s decision on a motion for reconsideration using the 

same standard of review the lower court used when deciding the motion. Monitor Finance, L.C. 

v. Wildlife Ridge Estates, LLC, 164 Idaho 555, 433 P.3d 183 (2019). When this Court reviews a 

trial court’s discretionary decision, it applies a four-prong test to determine whether there was an 

abuse of discretion: whether the trial court “(1) correctly perceived the issue as one of discretion; 

(2) acted within the outer boundaries of its discretion; (3) acted consistently with the legal 

standards applicable to the specific choice available to it; and (4) reached its decision by the 

exercise of reason.” Lunneborg v. My Fun Life, 163 Idaho 856, 867, 421 P.3d 187, 198 (2018).

III. ANALYSIS

A. The district court’s decision to grant summary judgment to St. Luke’s is affirmed in 

part and reversed in part.

Summerfield contends that the district court erred in granting St. Luke’s motion for 

summary judgment based on its finding Dr. Madsen failed to lay a proper foundation to testify to 

the applicable standard of care and the breaches thereof by Dr. Ocmand. Summerfield asserts

that Dr. Madsen’s second affidavit laid a sufficient foundation to testify that Dr. Ocmand 

breached the applicable standard of care by: (1) failing to notice and retrieve the spilled 

gallstone; (2) failing to inform Summerfield of the spilled gallstone; and, (3) failing to make a 

notation in Summerfield’s medical record of the spilled gallstone. We agree in part and conclude

Dr. Madsen, through her education, training, and practice at St. Luke’s, as set forth in the first 

and second affidavits, could offer an expert opinion regarding the latter two alleged breaches of 

care: the failure to inform and the failure to note the incident in Summerfield’s medical records.

Therefore, the district court erred when it granted summary judgment for St. Luke’s and 

dismissed Summerfield’s case entirely. 

1. Establishing the applicable standard of care.
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Idaho Code section 6-1012 requires that a plaintiff who brings a medical malpractice 

claim must provide expert testimony establishing that the healthcare provider did not meet the 

applicable standard of healthcare practice. Fisk v. McDonald, 167 Idaho 870, 880, 477 P.3d 924, 

934 (2020). Idaho Code section 6-1012 provides in part: 

In any case, claim or action for damages due to injury to or death of any person, 

brought against any physician and surgeon or other provider of health care, 

including . . . any . . . nurse practitioner, registered nurse, . . . hospital, . . . or any 

person vicariously liable for the negligence of them . . . such claimant or plaintiff 

must, as an essential part of his or her case in chief, affirmatively prove by direct 

expert testimony and by a preponderance of all the competent evidence, that such 

defendant then and there negligently failed to meet the applicable standard of 

health care practice of the community in which such care allegedly was or should 

have been provided, as such standard existed at the time and place of the alleged 

negligence . . . with respect to the class of health care provider that such defendant 

then and there belonged to and in which capacity he, she or it was functioning.

I.C. § 6-1012. 

An expert must have actual knowledge of the community standard of care at the time and 

place of the alleged malpractice in order to testify. Fisk, 167 Idaho at 880, 477 P.3d at 934. The 

expert can demonstrate knowledge of the community standard of care provided by Idaho Code 

section 6-1013: 

The applicable standard of practice and such a defendant’s failure to meet said 

standard must be established in such cases by such a plaintiff by testimony of one 

(1) or more knowledgeable, competent expert witnesses, and such expert 

testimony may only be admitted in evidence if the foundation therefore is first 

laid, establishing (a) that such an opinion is actually held by the expert witness, 

(b) that the said opinion can be testified to with reasonable medical certainty, and 

(c) that such expert witness possesses professional knowledge and expertise 

coupled with actual knowledge of the applicable said community standard to 

which his or her expert opinion testimony is addressed; provided, this section 

shall not be construed to prohibit or otherwise preclude a competent expert 

witness who resides elsewhere from adequately familiarizing himself with the 

standards and practices of (a particular) such area and thereafter giving opinion 

testimony in such a trial.

I.C. § 6-1013. The district court’s holding below focused on the third requirement—that Dr. 

Madsen did not possess the actual knowledge of the applicable community standard of care. 

Dr. Madsen can establish that she has “actual knowledge” of the applicable standard of 

care under Idaho Code section 6-1013 by being a “provider[] of the same class in the same 

community, taking into account [the defendant provider’s] training, experience, and fields of 
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medical specialization.” I.C. § 6-1012. In the alternative, Dr. Madsen can “ ‘demonstrate a 

knowledge acquired from experience or study of the standards of the specialty of the defendant 

physician sufficient to enable [her] to give an expert opinion as to the conformity of the 

defendant’s conduct to those particular standards.’ ” Dulaney v. St. Alphonsus Reg’l Med. Ctr.,

137 Idaho 160, 168, 45 P.3d 816, 824 (2001) (emphasis added) (quoting Clarke v. Prenger, 114 

Idaho 766, 769, 760 P.2d 1182, 1185 (1988)). 

2. Dr. Madsen did not establish a foundation to give expert testimony regarding 

whether, under the applicable standard of care, Dr. Ocmand should have noticed 

and retrieved the spilled gallstone during the surgery.

Regarding the first alleged breach of a standard of care, Dr. Madsen’s first and second 

affidavits did not sufficiently establish a foundation to give expert testimony concerning whether 

Dr. Ocmand should have noticed the spilled gallstone and retrieved it. Dr. Madsen is not a 

provider of the “same class in the same community” when considering Dr. Ocmand’s 

specializations. Dr. Ocmand is a board-certified general surgeon. Dr. Madsen is not. “For boardcertified specialists, the local standard of care is equivalent to the national standard of care.” 

Samples v. Hanson, 161 Idaho 179, 184, 384 P.3d 943, 948 (quoting Buck v. St. Clair, 108 Idaho 

743, 745, 702 P.2d 781, 783 (1985)). Dr. Madsen’s experience is in emergency medicine and in 

wound care. Her affidavits failed to describe any experience relating to laparoscopic 

cholecystectomies—she had never witnessed the procedure, nor has she performed one. In 

addition, Dr. Madsen did not describe any experience dealing with spilled gallstones or 

retrieving spilled gallstones during a laparoscopic cholecystectomy. She detailed her experience 

as evaluating patients with gallbladder disease, referring them for surgery, and managing postoperative wound infections from gallbladder surgery. Her experience as a physician did not 

include Dr. Ocmand’s specializations as a board-certified general surgeon who regularly 

performs laparoscopic cholecystectomies. Therefore, we affirm the district court’s conclusion 

that Dr. Madsen is not a “provider[] of the same class in the same community, taking into 

account [the defendant provider’s] training, experience, and fields of medical specialization” in 

order for her to give expert testimony relating to the complications of a spilled or retained 

gallstone during a laparoscopic cholecystectomy. I.C. § 6-1012.

Additionally, we also affirm the district court’s conclusion that Dr. Madsen failed to 

“ ‘demonstrate a knowledge acquired from experience or study’ ” of the applicable standard of 

care. Dulaney, 137 Idaho at 168, 45 P.3d at 824 (emphasis added) (quoting Clarke, 114 Idaho at 
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769, 760 P.2d at 1185). In her expert disclosure, Dr. Madsen merely referenced the care expected 

of general surgeons; she failed to come close to stating the particular standard of care when it 

comes to board-certified surgeons performing laparoscopic cholecystectomies. In her first 

affidavit filed in response to St. Luke’s motion for summary judgment, Dr. Madsen listed 

surgical standards obtained from the American College of Surgeons’ website. However, upon 

closer examination, the district court noted that the website clearly stated the surgical standards 

“do[] not constitute a standard of care.” 

In her second affidavit, Dr. Madsen stated that she had a discussion with two general 

surgeons from Wyoming who worked at St. Luke’s McCall on a locum tenens basis. During that 

discussion, Dr. Madsen claimed “these two . . . physicians . . . verified for me that the [standards 

of care] that applied to them were the same as the national [standards of care].” However, she 

still failed to detail what the standards of care are. Furthermore, by Dr. Madsen’s own admission, 

this discussion occurred in late 2014 or into the middle of 2015. Considering that Summerfield 

did not undergo gallbladder surgery until August 31, 2015, and his complications did not occur 

immediately after surgery, it would be impossible to presume that Dr. Madsen discussed this 

specific case—or even laparoscopic cholecystectomies generally—with the two Wyoming 

surgeons. 

Dr. Madsen also stated that she had a discussion with two other doctors, Dr. Getz and Dr. 

Green, who are Boise-area abdominal surgeons. According to Dr. Madsen, they discussed the 

relative standards of care applicable to general abdominal surgeons. Even though Dr. Madsen 

declared that these doctors “confirmed for me that my understanding of the [standards of care] 

applicable in this case regarding Mr. Summerfield, was, in fact, correct and accurate,” there is no 

indication that Dr. Madsen discussed laparoscopic cholecystectomies with them. As the district 

court properly noted, “[l]eft unsaid is precisely what ‘understanding’ of Dr. Madsen’s was 

‘confirmed’ by Drs. Getz and Green. That’s one reason Dr. Madsen’s description of these 

conversations isn’t convincing evidence that she learned from them the standard of care 

applicable to general surgeons in connection with laparoscopic cholecystectomies.” Dr. Madsen 

provided no foundation to provide an expert testimony regarding spilled or retained gallstones—

whether physicians performing laparoscopic cholecystectomies should notice a spilled stone 

during surgery or whether a physician should attempt to retrieve a spilled stone. Accordingly, we 

conclude that the district court properly determined that Dr. Madsen did not demonstrate 
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knowledge of the applicable standard of care through professional experience or study. 

Therefore, her opinion lacked foundation and was inadmissible. Her testimony, on that basis, 

was correctly not considered by the district court. Without admissible expert testimony, 

Summerfield had no evidence to establish his first breach of care claim against Dr. Ocmand—

that she should have noticed and retrieved the spilled gallstone. Thus, summary judgment on that 

ground was properly granted by the district court. 

3. Due to her training and experience, Dr. Madsen could offer an expert opinion on 

whether, under the applicable standard of care, Dr. Ocmand should have timely 

informed Summerfield of the spilled gallstone and whether Dr. Ocmand should have 

made a notation in Summerfield’s medical chart regarding the spilled gallstone. 

Although we affirmed the district court as to the first alleged breach of the standard of 

care, we must reverse its ruling as it pertains to the remaining two alleged breaches of the 

standard of care: (1) Dr. Ocmand’s failure to notify Summerfield of the spilled stone and (2) Dr. 

Ocmand’s failure to make a notation in Summerfield’s medical chart. The standard of care for 

these two claims are of such a general nature that Dr. Madsen was qualified to give an expert 

opinion on them. 

Dr. Madsen is a physician with consulting privileges at St. Luke’s. She had consulting 

privileges during Summerfield’s surgery. Part of Dr. Madsen’s work experience was to manage 

complications of gallbladder surgery, including spilled gallstones. Dr. Madsen’s second affidavit 

clarified that as a board-certified emergency medicine physician, Dr. Madsen is knowledgeable 

and aware of the ethical obligation to disclose surgical errors and inform patients of potential 

harm of those errors. Furthermore, Dr. Madsen noted that St. Luke’s By-Laws contain guidelines 

on error disclosure and set the standard of care for physicians at St. Luke’s. 

Dr. Madsen opined that Dr. Ocmand breached the applicable standard of care when the 

pathology report showed the absence of a gallstone, meaning the gallstone had been spilled and 

remained inside of Summerfield. At that point, Dr. Ocmand should have informed Summerfield 

of the retained stone, but she did not. Moreover, Dr. Ocmand should have made a notation in 

Summerfield’s medical chart regarding the spilled stone; but she did not do this either. Dr. 

Madsen testified that during this time there was no difference at St. Luke’s between how a 

surgeon reviews a pathology report and how physicians handle post-operative care. Dr. Madsen 

did not need to match the specific training and expertise of Dr. Ocmand in order to testify to 

these opinions; they are of such a general nature that Dr. Madsen’s experience, board-
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certification, and consulting privileges at the same facility are sufficient to meet the foundational 

requirements. As to these two claims, the district court erred by placing undue emphasis on Dr. 

Madsen’s lack of experience in laparoscopic cholecystectomies. She did not need experience 

performing laparoscopic cholecystectomies in order to give an expert opinion that Summerfield 

should have been notified of the spilled gallstone and a notation should have been made in his 

medical chart. We conclude that Dr. Madsen demonstrated the requisite knowledge to offer these 

opinions. Therefore, the district court erred by granting summary judgment in favor of St. Luke’s 

and the case is remanded for further proceedings.

B. The district court did not abuse its discretion by rescinding its order granting 

Summerfield’s motion for reconsideration and reinstating its order on summary 

judgment in favor of St. Luke’s. 

Summerfield contends the district court erred by sua sponte rescinding its order on 

reconsideration and reinstating summary judgment for St. Luke’s. Because we have reversed, in 

part, the district court’s ruling on summary judgment as it pertained to the latter two alleged 

breaches of the standard of care, we will only address whether the district court erred by 

rescinding its order on Summerfield’s motion for reconsideration as to the first alleged breach of 

the standard of care—failure to notice and remove the spilled gallstone.

Summerfield asserts the district court erred by solely relying on Ciccarello and ignoring 

this Court’s opinions in Fisk, 167 Idaho 870, 477 P.3d 924, Puckett v. Verska, 144 Idaho 161, 

158 P.3d 937 (2007), and Shane v. Blair, 139 Idaho 126, 75 P.3d 180 (2003). Regarding Fisk, 

Summerfield argues, “[t]his Court held that Idaho’s trial courts have no discretion to decide 

whether to entertain a motion for [re]consideration and that they must consider any new 

admissible evidence or authority bearing on the correctness of its orders.” (Emphasis added). In 

Fisk, the defendant was a board-certified neurological surgeon who performed an outpatient 

cervical spine fusion surgery on the plaintiff. 167 Idaho at 877, 477 P.3d at 931. The following 

day, before the plaintiff was released from the hospital, the plaintiff developed severe abdominal 

pain and began vomiting profusely. Her condition continued to worsen. Eventually, the plaintiff 

underwent an exploratory laparotomy, which led another doctor to discover that the plaintiff 

developed mesenteric artery ischemia—or a loss of blood supply to the small intestines. Id. at 

877–78, 477 P.3d at 931–32. Doctors removed a significant amount of the plaintiff’s small and 

large intestines. She recovered, but with serious ongoing repercussions. The plaintiff brought suit 

against the defendant and disclosed six retained expert witnesses. The defendant filed a motion 
15

to strike the plaintiff’s expert witness disclosures and a motion for summary judgment because 

the plaintiff failed to provide admissible evidence of the applicable standard of care or breach of 

that standard of care. Id. at 878, 477 P.3d at 32.

The district court granted the motion for summary judgment, finding none of the 

plaintiff’s disclosed expert witnesses had “actual knowledge” of the applicable community 

standard of care. Id. The plaintiff filed a motion for reconsideration and provided additional 

declarations from her retained expert witnesses. Id. at 878-79, 477 P.3d 932-33. The motion was 

denied. The plaintiff appealed the district court’s denial of her motion for reconsideration, among 

other alleged errors. Id. at 879, 477 P.3d at 933. When addressing the plaintiff’s appeal of the 

district court’s denial of reconsideration, this Court stated: 

The district court has no discretion to decide whether to entertain a motion for 

reconsideration. Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113 

(2012). In addition, the district court ‘must consider any new admissible evidence 

or authority bearing on the correctness of [the] order.’ Jackson v. Crow, 164 Idaho 

806, 811, 436 P.3d 627, 632 (2019) (quoting Fragnella, 153 Idaho at 276, 281 

P.3d at 113). 

Id. at 892, 477 P.3d at 946. 

Fisk is not quite on point with the case at hand because the district court in Fisk

considered the plaintiff’s additional expert declarations filed with the motion for reconsideration, 

but still denied the motion. The Court in Fisk was not asked to decide whether the district court 

should have considered the additional declarations but whether the district court’s denial of the 

motion was proper. Id. In the case before us, the district court exercised its discretion and 

decided not to consider Summerfield’s third affidavit from Dr. Madsen—and that is what 

Summerfield alleges was erroneous. 

Similarly, Puckett does not support Summerfield’s contention that a district court has no 

choice but to consider additional evidence submitted with a motion for reconsideration. In 

Puckett, this Court noted that a “decision to grant or deny a request for reconsideration rests in 

the sound discretion of the trial court.” 144 Idaho at 166, 158 P.3d at 942. It further stated, 

“when reviewing a motion for reconsideration, the district court ‘should take into account any 

new facts presented by the moving party that bear on the correctness of the interlocutory order. 

The burden is on the moving party to bring the trial court’s attention to the new facts.’ ” Id.

(emphasis added) (quoting Coeur d’Alene Mining Co. v. First Nat’l Bank, 118 Idaho 812, 823, 

800 P.2d 1026, 1037 (1990)). Puckett implies that consideration of additional evidence or facts 
16

accompanying a motion for reconsideration rests with the discretion of the district court, rather 

than a mandatory obligation. 

Shane, on the other hand, is a closer call. There, the plaintiff filed suit against a doctor 

the plaintiff alleged negligently breached the standard of care in operating on his spine. 139 

Idaho at 127, 75 P.3d at 181. The defendant filed a motion for summary judgment, which the 

district court granted, finding the plaintiff did not establish that his expert witness had knowledge 

of the relevant standard of care. Id. at 128, 75 P.3d at 182. The plaintiff filed a motion for 

reconsideration and submitted a fourth affidavit from his expert witness and another expert 

witness. Id. The district court struck both supplemental affidavits and denied the motion for 

reconsideration. Id. On appeal, this Court held that the district court erred in striking the 

supplemental affidavits. Id. at 130, 75 P.3d at 184. However, the Court’s analysis was rather 

short and did not state that the district court was required to consider the new affidavits, or that it 

abused its discretion by not considering them. Id. Moreover, Shane, the oldest of the cases cited 

by Summerfield, is less indicative of this Court’s recent jurisprudence on this issue. 

We find Ciccarello is directly on point here and reaffirm its holding. The district court 

had the discretion to refuse to consider Dr. Madsen’s untimely third affidavit filed with 

Summerfield’s motion for reconsideration. In Ciccarello, the plaintiff brought suit against his 

attorney for negligence and legal malpractice for his attorney’s alleged defective drafting of a 

company sales contract that was adverse to plaintiff’s interests and a breach of the applicable 

standard of care under the rules of professional conduct. 166 Idaho at 156–57, 456 P.3d at 522–

23. The plaintiff made his expert witness disclosure and then the defendant moved for summary 

judgment arguing the plaintiff had not proffered expert testimony establishing that the defendant 

failed to meet the standard of care. Id. After the district court took the matter under advisement, 

the plaintiff submitted a “rebuttal expert disclosure” affidavit from his retained expert. Id. at 158, 

456 P.3d at 524. The next day, the district court granted the defendant’s motion for summary 

judgment. Id. The plaintiff moved for reconsideration and filed an additional declaration from his 

proposed expert. Id. The district court denied the motion, noting that the plaintiff did not provide 

sufficient expert testimony at the time of the summary judgment motion. Id.

On appeal to this Court, we affirmed the district court’s denial of the plaintiff’s motion 

for reconsideration. Id. at 161–62, 456 P.3d at 527–28. We held: 
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As indicated by the district court, because the declarations provided by 

[the plaintiff’s] experts were untimely for consideration at summary judgment per 

Idaho Rule [of] Civil Procedure 56(b)(2), it was not required to consider them in 

ruling on the motion for reconsideration. While this Court has explained that 

when considering a motion for reconsideration ‘the trial court should take into 

account any new facts presented by the moving party that bear on the correctness 

of the order,’ Int’l Real Estate Solutions, Inc., v. Arave, 157 Idaho 816, 819, 340 

P.3d 465, 468 (2014), this rule was not designed to allow parties to bypass timing 

rules or fail to conduct due diligence prior to a court’s ruling. Rather, ‘[t]he 

purpose of a motion for reconsideration is to reexamine the correctness of an 

order.’ Id.

Id. at 162, 456 P.3d at 528 (emphasis added). This Court went on further to hold that the district 

court did not abuse its discretion in declining to consider the plaintiff’s additional expert 

declarations after summary judgment. Id. The plaintiff’s opposition brief and supporting 

documents were supposed to be filed at least fourteen days before the hearing, yet they were 

filed fifty days after that date. Id. Therefore, the district court exercised its discretion reasonably. 

Id.

Ciccarello held that the district court is afforded discretion on whether to consider 

untimely declarations of fact accompanying a motion for reconsideration. Ciccarello’s reasoning

is applicable here, too. The trial court should have the discretion to determine whether it will 

consider additional evidence in support of a motion for reconsideration, if it is submitted late. 

Without such discretion, “parties [can] bypass timing rules or fail to conduct due diligence prior 

to a court’s ruling” because the trial court must consider any additional evidence. Id. at 162, 456 

P.3d at 528. When addressing a motion for reconsideration, Ciccarello still requires a trial court 

to consider evidence touching on the “correctness” of its original order. For example, if the trial 

court’s ruling was based on a misunderstanding of the record, or if there was material evidence 

in the record that either side failed to present to the court on summary judgment, the court must 

consider such evidence on reconsideration if it would affect the correctness of its original 

decision. However, Ciccarello allows the court discretion to not consider evidence which 

reasonably should have been made a part of the record sooner, but was not. In short, while a 

motion for reconsideration is a safety valve to protect against legal and factual errors, it is not 

intended to be a mechanism that encourages tactical brinkmanship or a lack of diligence. 

On Summerfield’s motion for reconsideration, the district court was initially unaware of 

the broad discretion it had been granted under Ciccarello. The district court’s order implies that 
18

it was under the impression that it was required to consider the additional evidence. That is not 

what Ciccarello states. Once the district court realized its mistake, it then exercised its discretion

to correct its error. We find the district court did not abuse its discretion by reversing its decision 

to grant Summerfield’s motion for reconsideration and reinstating judgment for St. Luke’s. 

It is clear Dr. Madsen was retained at least six months before St. Luke’s filed a motion 

for summary judgment, as Summerfield identified Dr. Madsen as his sole expert witness in 

response to St. Luke’s interrogatory. The district court held that Dr. Madsen’s initial expert 

witness disclosure, her first affidavit in response to summary judgment, and her second affidavit 

permitted by leave of the district court all failed to establish her knowledge of the applicable 

standard of care. Dr. Madsen’s third affidavit, attached to Summerfield’s motion for 

reconsideration, was filed long past the expert disclosure deadline and well after the filing of his 

briefs and affidavits in opposition to St. Luke’s motion for summary judgment. Moreover, Dr. 

Madsen’s third affidavit consisted of knowledge obtained about the applicable standard of care

after the summary judgment motion had already been ruled on by the district court. Dr. 

Madsen’s third affidavit detailed her phone call with Dr. Macha, a Boise general surgeon who 

performs laparoscopic cholecystectomies, to discuss the standard of care 10 days after judgment 

had been entered against Summerfield. Dr. Madsen had not spoken with a general surgeon who 

performs laparoscopic cholecystectomies before this point. As the district court noted, “there is 

no good excuse for Summerfield’s failure to develop and present the necessary foundation for 

Dr. Madsen’s opinions until after a decision was rendered on summary judgment.” 

While we acknowledge that this may be a harsh outcome for Summerfield, the discretion 

rested with the district court to disregard the late affidavit, which consisted of evidence obtained 

after the summary judgment motion had been decided. The district court properly recognized the 

issue as one of discretion, acted within the outer boundaries of that discretion, applied the correct 

legal principles, and reached its decision by the exercise of reason. We cannot conclude the 

district court abused its discretion in light of the lack of diligence demonstrated by the record. 

Thus, we affirm the district court’s order rescinding its order granting Summerfield’s motion for 

reconsideration and reinstating judgment for St. Luke’s. Consistent with our opinion above, this 

holding only applies to Summerfield’s allegation that Dr. Ocmand breached the standard of care 

by failing to notice and retrieve the spilled gallstone.
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C. St. Luke’s is not entitled to attorney fees or costs on appeal. Summerfield is entitled to 

his costs. 

St. Luke’s requests attorney fees pursuant to Idaho Code section 12-121 or Idaho Rule of 

Civil Procedure 54(e)(2). Both award attorney fees to the prevailing party if a case or appeal was 

brought frivolously or without foundation. I.C. §12-121; I.R.C.P. 54(e)(2). Because we have 

concluded that the district court erred in granting summary judgment to St. Luke’s on two of the 

three grounds, Summerfield was the overall prevailing party and Summerfield’s appeal was

clearly not frivolous. Accordingly, we deny St. Luke’s request for attorney fees. 

St. Luke’s also requests costs under Idaho Appellate Rule 40. Costs under Idaho 

Appellate Rule 40 are awarded as a matter of course to the prevailing party. Because St. Luke’s 

is not the prevailing party, it is not entitled to costs on appeal; however, Summerfield, as the 

prevailing party, is entitled to costs on appeal.

IV. CONCLUSION

The district court’s summary judgment decision is affirmed in part and reversed in part. 

We affirm the district court’s decision to grant St. Luke’s motion for summary judgment on 

Summerfield’s claim that Dr. Ocmand breached the standard of care for not noticing the spilled 

gallstone and not retrieving it because Dr. Madsen did not establish a sufficient foundation to 

testify as to the appropriate standard of care. We also affirm the district court’s sua sponte

decision to reverse itself and not consider Dr. Madsen’s third affidavit and reinstate judgment for 

St. Luke’s on this same ground. However, we reverse the district court’s decision to grant St. 

Luke’s motion for summary judgment as to Summerfield’s claims that Dr. Ocmand breached the 

standard of care by failing to inform Summerfield of the spilled gallstone and by failing to note

the spilled gallstone in Summerfield’s medical chart because Dr. Madsen laid a sufficient 

foundation to testify as to these matters.

Summerfield is awarded his costs on appeal as the prevailing party. The case is remanded 

for further proceedings consistent with this opinion. 

Chief Justice BEVAN, and Justices BRODY, STEGNER and BURDICK CONCUR.