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 . . 0 rn 2 

Filed r a 13 iI 

cn 0 

m r ., 

Clerk . . 
Chief Justice J. 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 a verdict 

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 spraying defendant's Imron polyurethane enamel paint 

onto the undercarriage of the tank. 

Scott claimed that inhaling the fumes from the Imron paint 

caused his totally disabling respiratory problems. He also 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 that he should not be in the paint room while 

Eldridge was painting. It also presented evidence that Scott's 

respiratory problems are likely a result of his 40+ years of 

smoking. 
The jury was 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, eliminating any further questions under the verdict 

form. The court entered judgment upon that verdict. 

I 

Did the trial court err in refusing 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 spoken with 

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 deposition was to be read into evidence. 

In May 1988, several months prior to trial, Scott Is counsel 

issued a notice that they planned to take Cashmorels deposition. 

The subject of the deposition would be the pre-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 deposition was error. 

While the lower court did not state its reasons for granting 

the protective order, counsel's arguments focus on the work product 

rule, Rule 26(b)(3), M.R.Civ.P. The defense argues that allowing 

Cashmore to be deposed would invade his mental impressions and work 

products, which are protected under the work product rule. Scott 

asserts that a deposition of Cashmore concerning his interview with 

Eldridge would fall within the exceptions to the work product rule 

or could be structured to protect against invasion of work product. 
Defendant contends that the court arranged ample alternatives 

to a deposition of Cashmore. These included advising the jury that 

the interview had 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 that he 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 fresh air respirators when Imron is being used. 

Defendant's position is that the evidence regarding which mask 

was recommended is a red herring because Scott was wearing no mask 

whatsoever. We agree. ~iven that circumstance, we hold that the 

court did not err in excluding from evidence post-accident changes 

in the Imron paint labels. 

I11 

Did the trial court err in allowing the opinion testimony of 

expert witness Bruce Held? 

Bruce Held, an industrial hygienist, 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 other party expects to call as 

an expert witness at trial, to state the 

subject matter on which 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 court may order further discovery by other 

means, subject to such restrictions as to 

scope and such provisions, pursuant to sub- 
division (b) (4) (C) of this rule, concerning 

fees and expenses as the court may deem appropriate. 

Scott propounded interrogatories to 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, defendant providedthe following information 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 of proper respirator program 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 

surprise witness. The above answers to interrogatories were made 

over three years prior to trial. Scott did not move to compel 

further answers. 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 that defendant's offense was 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: