NO. 89-127
IN THE SUPREME COURT OF THE STATE OF MONTANA 1989

FLOYD E. SCOTT, Plaintiff and Appellant,-vsE. I. DUPONT DE NEMOURS & CO., a corporation, Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. P. Ryan; Ryan & ~c~llister, Billings, Montana
For Respondent: Charles R. Cashmore; Crowley Law ~irm, Billings, P$ntana

Submitted on ~riefs:Nov. 21, 1989 Decided: December 19, 1989

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### A. Turnage delivered the Opinion of the Court. Floyd Scott brought this suit under a theory of strict liability, claiming that exposure to defendant's paint caused his respiratory disability. A jury in the District Court for the Thirteenth Judicial District,Yellowstone County,entered averdict for defendant. Scott appeals. We affirm. The issues are: 1. Did the trial court err in refusing to allow Scott to take the deposition of defense counsel? 2. Did the trial court err in excluding from evidence postaccident changes in defendant's warning labels? 3. Did the trial court err in allowing the opinion testimony of expert witness Bruce Held? Scott was employed as a quality control inspector at Beall, Inc., of Billings, Montana. Beall manufactured tanks used for hauling liquid products. On January 28, 1981, Scott was working
on top of a new tank in Beall's paint room, calibrating the tank for the liquid it would hold. At the same time, another worker, Eldridge,was sprayingdefendant's Imronpolyurethane enamel paint onto the undercarriage of the tank. Scott claimed that inhaling the fumes from the Imron paint causedhis totally disabling respiratoryproblems. Healso claimed that defendant failed to provide adequate warning on the Imron paint cans, because the Imron label recommended the use of a vapor/particulate mask,which did not provide a fresh air supply. Defendant elicited testimony that Scott was not wearing any protective mask on the day he claims he was injured, and that Eldridge warned Scott thathe should not be in thepaint roomwhile Eldridge was painting. It also presented evidence that Scott's respiratory problems are likely a result of his 40+ years of smoking.The jurywas provided with a special verdict form. The first question was, "Was the Defendant s product defective and unreasonably dangerous because of an inadequate warning?" The jury answered, eliminatingany further questions under theverdict form. The court entered judgment upon that verdict. I Did thetrial courterr inrefusing to allow Scott to take the deposition of defense counsel? Eldridge, the painter, was deposed in July 1984. In his deposition,Eldridge stated that he had not previously spokenwith either side's attorney. He also stated that he knew everyone in his area should have been wearing a protective mask while he was using Imron paint and that he warned Scott that he should not be there. Scott's counsel later discovered that defense counsel Cashmore had interviewed Eldridge two weeks prior to the deposition. Because Eldridge could not be located at the time of trial, his depositionwas to be read into evidence. In May 1988, several months prior to trial, ScottIs counsel issued a notice that they planned to take Cashmorels deposition. The subjectof thedepositionwould be thepre-deposition interview with Eldridge. Defendant applied for and was granted a protective order quashing the subpoena duces tecum issued in connection with the planned deposition. Scott argues on appeal that the court's refusal to allow the depositionwas error. While the lower court did not state its reasons for granting theprotective order,counsel's arguments focuson thework product rule,Rule 26(b)(3), M.R.Civ.P. The defense argues that allowing Cashmore tobe deposedwould invadehismental impressionsandwork products,which are protected under the work product rule. Scott asserts that adepositionof Cashmoreconcerning his interviewwith Eldridgewould fall within the exceptions to thework product rule
or couldbe structuredtoprotect against invasionofworkproduct.Defendant contends that the courtarranged ample alternatives to adeposition of Cashmore. These includedadvising the jury that the interviewhad taken place,which directly impeached Eldridgels deposition statement that he had not talked with either side's attorney. The court also offered, in spite of their hearsay character, to allow into evidence two post-deposition written statements of Eldridge. These statements acknowledged the interview with Cashmore and contradicted other aspects of the deposition testimony. Further, witness Dvorak apparently would have testified that Eldridge later recanted his deposition testimony thathe knew of the dangers of using Imron paint without fresh air masks. Scott chose not to offer Dvorak's testimony or the post-deposition written statements of Eldridge into evidence. The court did advise the jury that Cashmore's pre-deposition interview with Eldridge had taken place. Rulings limiting discovery under Rule 26(c), M.R.Civ.P., are discretionary. Matter of Estate of Counts (1985), 217 Mont. 350, 355, 704 P.2d 1052, 1056. We conclude that in view of the alternate means of impeaching Eldridge offered to Scott in this case, the District Court did not abuse its discretion in refusing to allow Scott to take Cashmore's deposition.

Did the trial court err in excluding from evidence postaccident changes in defendant's warning labels? Rule 407,M.R.Evid., provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another pur-pose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

At the time of the incident, the label on Imron paint suggested, in some circumstances,the use of vapor/particulate masks not containing fresh air supplies. Scott contends that, for purposes of impeachment,he should have been allowed to introduce evidence that after January 1981 defendant changed the label to require the use of freshair respirators when Imron isbeing used. Defendant'sposition isthattheevidence regarding whichmask
was recommended is a red herring because Scott was wearing no mask whatsoever. We agree. ~iven that circumstance,we hold that the courtdid not err in excluding from evidence post-accident changes in the Imronpaint labels. I11 Did the trial court err in allowing the opinion testimony of expert witness Bruce Held? BruceHeld, an industrialhygienist, testified for defendant. Scott argues that he should not have been allowed to testify because defendant failed to adequately answer Scott's discovery request for the substance of Held's expert opinion. Rule 26(b) (4)(A),M.R.Civ.P., governs:
(A)(i) A party may through interrogatories require any other party to identify each person whom the otherparty expects to call as an expert witness at trial, to state the subject matter onwhich the expert is expected to testify, and to state the substance of the facts and opinions 

### to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) Upon motion, the courtmay order further discoveryby other means, subject to such restrictions as to scope and such provisions, pursuant to sub-division (b)(4)(C) of this rule, concerning feesand expenses as the courtmay deem appropriate.

Scott propounded interrogatoriesto defendant asking the names of experts who would testify at trial, the opinions of the experts, and the factual bases for the opinions. In answer to Scott's interrogatories,defendantprovidedthefollowinginformation about Held:

Bruce J. Held, Livermore, CA, Industrial hygiene, Toxicology, Respirators, Respirator testing and precautionary labeling.
Bruce J. Held--Effectiveness of the vaporparticulate respirator (TC-23C) and requirements ofproper respiratorprogram required of employer.

In the pretrial order, Scott asked the court not to allow Held to testify. The court denied that request. Held's testimony at trial was within the subject matter indicated in the answers to interrogatories. While the answers were not as complete as they should have been, Held was not a surprisewitness. The above answers to interrogatorieswere made
over three years prior to trial. Scott did not move to compel furtheranswers. The time elapsed lessens the importance of these inadequate answers. We do not condone defendant's failure to provide full and complete answers to interrogatories. However, refusing to allow Held to testify would have been an extreme sanction,given thatdefendant's offensewas incompleteness in its
answers to interrogatories, not failure to answer. We hold that the lower court did not err in permitting Held to testify.We concur: