No. 14407 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

VICTOR F. HILL and MINNIE M. HILL, 

Plaintiffs and Appellants, 

SQUIBB & SONS, E.R., A FOREIGN CORPORATION; 

and FREDERIC S. MARKS, M.D., 

Defendants and Respondents. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellants: 

Kelly and Foley, Billings, Montana 

William T. Kelly argued, Billings, Montana 

For Respondents: 

Crowley, Haughey, Hanson, Toole & Dietrich, Billings, 

Montana 

Jack Ramirez argued, Billings, Montana 

Anderson, Symmes, Brown, Gerbase, Cebull & Jones, 

Billings, Montana 

Submitted: February 8, 1979 

qp:, -i 1979 Decided: ' 

"-5 - - Filed: .c. ; -;rq - 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by plaintiffs from judgments entered 

in the District Court of Yellowstone County on a directed verdict in favor of defendant Squibb & Sons, a partial directed 

verdict in favor of defendant Frederic S. Marks, and a jury 

verdict rendered in favor of Dr. Marks on the remaining claims 

against him. 

Plaintiff Victor I?. Hill suffers from severe allergic 

reactions (contact dermatitis) to a variety of substances and 

most severely to petroleum based products. Hill was a mechanic 

by trade, and thus was subject to constant exposure to those 

products. He was first treated by defendant Dr. Marks in 1952, 

at which time the flareups of his dermatitis were occurring only 

about twice a year. By the mid-19601s, however, plaintiff's 

condition had worsened to the point where he was seeing Dr. Marks 

three or four times a month. After 1969, the visits to Dr. Marks 

averaged about two times a month. 

A well recognized treatment of skin problems is the use 

of a class of drugs known as steroids, a kind of synthetic 

cortisone. Cortisone and all cortisone related drugs have significant and well-known side effects. 

Dr. Marks initially treated plaintiff with injections of 

ACTH, a chemical which stimulates natural production of cortisone 

by the adrenal glands. The ACTH was administered in conjunction 

with topical steroid creams applied directly to the affected areas 

and prescriptions for steroid pills to be orally ingested. In 

1965, Dr. Marks began using an injectible steroid called Kenalog40 which had recently been put on the market by defendant Squibb 

& Sons. From 1965 to 1970, Dr. Marks gave plaintiff injections 

of Kenalog-40, together with oral and topical steroids, at approximately two week intervals. Occasional injections of ACTH 

were also given to plaintiff during that period. 
In the summer of 1970 plaintiff spilled brake fluid 

over a large part of his body, causing an extremely severe flareup of the dermatitis. Dr. Marks increased the steroid treatments by supplementing the ACTH and Kenalog-40 injections with 

more oral steroids. Over the last five months of his treatment 

by Dr. Marks, up to his final visit on January 18, 1971, plaintiff was treated with a total of 1450 mg. of sterane, an oral 

steroid, and 440 mg. of Kenalog-40 by injection. 

At his last visit to Dr. Marks in January 1971, plaintiff was referred by Dr. Marks to the Billings Clinic. Plaintiff 

had some facial swelling which Dr. Marks wanted the clinic to 

check into. On January 20, 1971, the Billings Clinic referred 

plaintiff to its staff dermatologist, a Dr. Smoot. Upon learning of plaintiff's history, Smoot immediately discontinued the 

injections of steroids because he "could see nothing but problems 

down the road." Dr. Smoot continued to prescribe oral steroids 

and steroid creams, gradually tapering them off. As the steroid 

treatment was lessened, the dermatitis worsened, until in July 

1971 it was so bad Hill was disabled completely and had to give 

up his job. 

In March 1971, while under treatment at the Billings 

Clinic, Hill first noticed blurring vision and in the fall of 

that year he required surgical removal of cataracts. In 1973, he 

developed back pain and was diagnosed to have osteoporosis, a loss 

of calcium in the bones. Cataracts and osteoporosis of the types 

that plaintiff exhibited are both characteristic side effects of 

steroid treatment. 

On September 9, 1974, a complaint was filed in Yellowstone County District Court by Victor and Minnie Hill alleging 

that plaintiff's cataracts and osteoporosis were the result of 

the actions of Squibb & Sons and Dr. Marks, The claim against 

~quibb & Sons was framed in three counts, alleging negligence, 
strict liability in tort, and breach of express and implied 

warranties. The central theory of the claim was that Squibb's 

Kenalog-40 was negligently marketed and was a defective product 

because the package inserts provided with the drug did not warn 

specifically enough of its dangerous side effects. As to Dr. 

Marks, the complaint alleged, in summary, negligence in failing 

to fully advise plaintiffs in regard to the risks associated 

with steroid treatments and in failing to properly monitor the 

effects of the treatment on Victor Hill over the nearly twenty 

year period in which steroids were administered to him. 

After a period of extensive discovery, jury trial was 

had on the matter before Judge Robert H. Wilson. Plaintiffs 

testified that Dr. Marks had never told them of the side effects 

of steroid treatment, and that if he had, then Victor Hill would 

have quit his job to avoid exposure to the substances which 

caused his dermatitis. Dr. Marks and his nurse, on the other hand, 

testified that while the specific side effects were never enumerated, plaintiffs were informed many times that steroid treatment was dangerous, that Dr. Marks hesitated to continue using it, 

and that Victor Hill should get another job. There was evidence 

that plaintiff did, in fact, try to seek other employment but had 

no alternative skills. There was also testimony that plaintiff's 

condition was a severe one, that long-term steroid therapy, while 

risky, was not entirely unheard of, and that the decision to undertake such therapy is a matter of informed judgment by the treating physician after weighing the risks and benefits. 

At the close of plaintiffs' case, defendant Squibb & Sons' 

motion for directed verdict was granted on the ground that there 

was no expert testimony that the package insert Squibb included 

with Kenalog-40 was inadequate in warning of its side effects, 

~efendant Marks also moved for directed verdict, raising the 

statute of limitations as a bar and arguing further that plaintiff 
had failed to establish a prima facie case because there had 

been no expert testimony that Dr. Marks had failed to act as 

a reasonably prudent physician in the area would have acted in 

the same circumstances. The court denied Marks' motion, holding that in regard to the statute of limitations there was a 

question of fact for the jury as to when plaintiffs' claim arose; 

and that while lack of expert testimony was fatal to the plaintiffs' claim in regard to the question of malpractice, the issue 

of lack of informed consent should go to the jury because the 

question of whether plaintiffs had been told enough to make their 

own judgment as to continuation of the treatment was a question 

"readily ascertainable by the layman." The case was submitted to 

the jury in that posture, and a verdict in favor of defendant 

Marks was returned. The verdict was rendered in a general form; 

it does not appear from the record whether the jury found the 

statute of limitations issue to be determinative or if it was 

rather the merits of the informed consent question that controlled. 

On appeal, plaintiffs raise the following issues: 

1. Whether the filing of an ex parte trial brief - by defendant Squibb was a violation of plaintiffs' due process rights. 

2. Whether the trial court erred in granting a directed 

verdict in favor of defendant Squibb. 

3. Whether the trial court erred in excluding from evidence certain of plaintiffs' proposed exhibits. 

4. Whether the trial court erred in granting a directed 

verdict in favor of defendant Marks on the issue of malpractice. 

5. Whether the trial court erred in submitting the issue 

of the statute of limitations to the jury rather than treating it 

as a matter of law to be decided by the court. 

Plaintiffs first objected to Squibb's - ex parte trial brief 

in the lower court in a motion for a new trial. Plaintiffs' specific objection was that Squibb's - ex parte brief had compromised 
plaintiffs' case in that it failed to cite many pertinent decisions and distorted plaintiffs' evidence and the applicable law. 

Plaintiffs also objected to the practice of allowing - ex parte 

trial briefs in general, contending that it violates a party's 

right to an adversary hearing. 

Rule 19 of the Rules of Practice of the District Court 

of the Thirteenth Judicial District specifically allows the filing 

of trial briefs to be used solely for the benefit of the trial 

court and not divulged to opposing counsel. There is little 

authority addressed to the propriety or impropriety of this 

practice. 

The ABA Code of Professional Responsibility, DR 7-llO(B), 

contemplates submission of trial briefs without service on opposing counsel where "authorized by law". "[Iln the absence of 

statute, rule, direction of the court, or agreement between counsel requiring service on opposing counsel, it is not necessary, 

and indeed not wise, to exchange trial briefs because of the possibility of educating opposing counsel as to the lawyer's theories 

in regard to his case." 5 Am.Jur.Trials p. 92-93. The literature on preparation for trial in products liability cases strongly recommends filing of trial briefs by plaintiffs in such actions. 

Cf. 12 Am. Jur. Trials p. 121. 

We recognize that theoretically a rule allowing for the 

filing of - ex parte briefs may be suspect in that it conflicts 

with the spirit of openness and cooperation underlying the modern 

rules of civil procedure. Nonetheless, judges have a right to 

secure a trial brief from the attorneys in a cause and, indeed, 

in a complex case such a brief may be indispensible to inform 

the judge of the nuances of the arguments that will be forwarded 

at trial. In our opinion, if the fact that the contents of the 

brief will be divulged inhibits counsel from accomplishing that 
end and thereby impedes the ability of the judge to be fully 

informed, then a rule allowing for - ex parte trial briefs is 

defensible. 

In any event, plaintiffs' attack on the rule here on 

constitutional grounds is not persuasive. Plaintiffs themselves 

could have filed such a brief if there were matters they felt 

were in need of clarification or explanation. Plaintiffs presented testimony for eight days, at the conclusion of which 

Squibb moved for directed verdict. Thereafter, both the attorney 

for Squibb and the attorneys for plaintiffs were given ample 

opportunity to argue the motion. Under these circumstances, we 

cannot find that plaintiffs were denied due process. Furthermore, our reading of the trial brief in conjunction with the 

record and our review of the authorities cited in it does not 

indicate that plaintiffs' case was in any way compromised thereby. We find no error on this point. 

We now turn to the second issue on appeal; alleged error 

in the directed verdict for Squibb & Sons. Squibb maintains that 

the directed verdict was proper because plaintiffs failed to 

produce expert testimony that the package insert in Squibb's product inadequately warned of dangers. Squibb contends that because 

of this failure plaintiffs did not establish a prima facie case. 

We agree. 

As a general rule, the duty of a drug manufacturer to 

warn of the dangers inherent in a prescription drug is satisfied 

if adequate warning is given to the physician who prescribes it. 

Dyer v. Best Pharmical (Ariz.App. 1978), 118 Ariz. 465, 577 P.2d 

1084; Terhune v. A. H. Robins Co. (1978), 90 Wash.2d 9, 577 P.2d 

975; McEwen v. Ortho Pharmaceutical Corp. (1974), 270 Or. 375, 

528 P.2d 522; Davis v. Wyeth Laboratories, Inc. (9th Cir. 1968), 

399 ~.2d 121; 28 C.J.S. Drugs & Narcotics Supplement 857. By 

logical extension, then, since the warning is directed to physicians, 
only they or someone with similar expertise concerning pharmeceuticals would be qualified to determine whether or not the warning was adequate. 

There are no Montana cases specifically holding that a 

plaintiff must produce expert testimony to sustain an action 

against a drug company for failure to warn adequately of side 

effects of its products. There are, however, numerous Montana 

decisions to the effect that, in a malpractice suit against a 

doctor or dentist, expert evidence is the only proper guide and 

without it a plaintiff cannot recover. Cf. Llera v. Wisner 

(1976), 171 Mont.254 , 557 P.2d 805, 33 St.Rep. 1211; Collins v. 

Itoh (1972), 160 Mont. 461, 503 P.2d 36; Callahan v. Burton (1971), 

157 Mont. 513, 487 P.2d 515; Negaard v. Feda (1968) , 152 Mont. 47, 

446 P.2d 436. We hold that the reasoning of these decisions extends to the situation involved here. 

In matters "with respect to which a layman can have no 

knowledge at all, the court and jury must be dependent on expert 

evidence." Callahan, 157 Mont. at 520, 487 P.2d at 518-519. The 

adequacy of a warning directed to physicians is such a matter. 

This conclusion is consistent with the only other case we have 

found where on similar facts an attempt was made to reach the 

jury without expert testimony that the warning was inadequate. 

Carlsen v. Javurek (8th Cir. 1979, 526 F.2d 202. In Carlsen, 

of 

a directed verdict in favor of the manufacturer/ an anesthetic 

was upheld on appeal. Here, as in Carlsen, there was no expert 

testimony that the warning was inadequate. On the contrary, the 

only expert testimony on the issue was that of Dr. Marks, who 

stated that in his opinion the warning - was adequate. Therefore, 

even viewing the evidence in the light most favorable to plaintiffs, we find that the directed verdict in favor of Squibb & 

Sons was correct. 
The third issue on appeal involves alleged error in 

exclusion from evidence of several of plaintiffs' proposed exhibits. The contested items are a 1977 Handbook of Practical 

Pharmacology stating that osteoporosis could be a complication 

of long-term steroid treatment, and a Contac package. We find 

no error in the exclusion of the former because a 1977 publication 

is no proof of knowledge that could be imputed to Squibb & Sons 

during the period 1965 to 1971 when plaintiff was being treated. 

Plaintiffs argued that the Handbook should have been admitted 

under Rule 407, Mont.R.Evid. That rule has no application here 

because the Handbook did not originate with Squibb and was not a 

subsequent remedial measure taken by Squibb. As to the Contac 

package, plaintiffs apparently offered it as an exhibit because 

defense counsel in his opening statement noted that Kenalog-40 

was "like a Contac pill" in that the drug is suspended in the 

bloodstream and dissolved into the system over a period of time. 

From this, plaintiffs sought to use the warning on the Contac 

package that it is "not for frequent or prolonged use" as evidence of inadequacy of the warning on the Kenalog-40 package 

insert for lack of that phrase. Plaintiffs' argument is without merit. The Contac package warning has no relevance because 

Contac is a nonprescription drug and the warning is not intended 

for the informed use of a physician but for the patient himself. 

The District Court properly excluded both exhibits. 

The fourth issue under consideration concerns the directed 

verdict for Dr. Marks on the issue of malpractice. The District 

Court held that plaintiffs! failure to produce expert testimony 

in that regard was fatal to their cause of action. Plaintiffs 

contend that this was error because Dr. Marks allegedly admitted 

that he had violated the applicable standard of care and thereby 

provided against himself sufficient expert testimony to establish 

a prima facie case. 
It is true that in several recent cases we have cited 

with approval Evans v. Bernhard (1975), 23 Ariz.App. 413, 533 

P.2d 721, for the proposition that third party expert testimony 

is not necessary if a defendant doctor's own testimony establishes the standard of care and departure from it. Montana Deaconess 

Hospital v. Gratton (1976), 169 Mont. 185, 545 P.2d 670; Llera 

v. Wisner (1976), 171Mont.254 , 557 P.2d 805, 33 St.Rep. 1211. 

Further, in Thomas v. Merriam (1959), 135 Mont. 121, 337 P.2d 

604, we indicated that negligence of a doctor may be shown by 

his own admissions. The crux of this issue is, then, did Dr. 

Marks in fact testify what the standard of care was and that he 

had violated it? We find that he did not. 

In urging that Dr. Marks did so testify, plaintiffs rely 

primarily on the following exchange that occurred during crossexamination: 

"Q. Is it fair to say that with respect to Vic 

Hill, from the standpoint of the standard of 

care, you didn't apply to him in administering 

Kenalog that standard of care that you think you 

should have, is that correct? A. In retrospect. 

"Q. The answer is yes? A. Yes." 

This short colloquy taken out of context does not, however, when 

read in balance with the rest of Dr. Marks' testimony, have the 

conclusive effect plaintiffs would give it. It does not appear 

that Dr. Marks ever established what the standard of care was, 

or admitted that he violated it. At one point he says "I - was 

the standard of care", since he was the only doctor in the community with specialized training in the treatment of disorders 

like that of Victor Hill. He also testified that in Victor Hill's 

case, in his best medical judgment, there were no alternatives to 

the treatment he gave. Plaintiffs' contentions in this regard are 

not bor~out by Dr. Marks' testimony, and the District Court did 

not err in directing a verdict in his favor on the malpractice 

claim for lack of expert testimony. 

In conjunction with the directed verdict on the malpractice 
issue, Dr. Marks has asked us to review the trial court's 

denial of his motion for directed verdict on the issue of informed consent. Marks contends that the trial court erred in 

submitting the issue of informed consent to the jury in view of 

the fact that there was no testimony, expert or otherwise, that 

an ordinarily prudent physician would have been more specific 

in warning of the possible side effects of steroid treatment. 

Marks maintains that even though he has not cross-appealed on 

this matter we can review the denial of his motion for directed 

verdict on the informed consent issue under Rule 14, M.R.App. 

Civ.P. From our research into the authorities construing the 

statutory predecessors of Rule 14, M.R.App.civ.P., it does not 

appear that Marks comes within either its scope or its purpose 

on the circumstances present here. Francisco v. Francisco (1948), 

120 Mont. 468, 191 P.2d 317, 1 ALR2d 625; J. M. Hamilton Co. v. 

Battson (1935), 99 Mont. 583, 44 P.2d 1064, 101 A.L.R. 520; 

5 Am Jur 2d Appeal and Error 8653. Therefore we decline to undertake the review requested by Dr. Marks in this regard. 

Nonetheless, we note in passing that the doctrine of informed consent is one concerning which there is significant confusion caused by a failure in many of the reported cases to 

recognize distinctions. See 36 Ford.L.Rev. 639 (1968). "In 

most cases involving this issue, courts have held that expert 

testimony is necessary to establish the existence and scope of a 

physician's duty to inform his patient of the risks of a proposed 

treatment. The type of expert testimony required is testimony 

as to the degree of risk or, more commonly, testimony as to the 

standard medical practice to disclose risks under the same or 

similar circumstances or, similarly, testimony as to whether a 

reasonable medical practitioner would have disclosed a given 

risk under the same or similar circumstances." Annot. 52 ALR3d 1084, 

1088. Montana follows the latter version of the majority rule. 
Negaard v. Feda (1968), 152 Mont. 47, 446 P.2d 436; Doerr v. 

Movius (1970), 154 Mont. 346, 463 P.2d 477; Llera v. Wisner 

(1976), 171 Mont. 254, 557 P.2d 805, 33 St-Rep. 1211. 

The trial court judge in this case was aware of these 

Montana decisions when he ruled on Dr. Marks' motion for directed verdict. He allowed the issue of informed consent to go to 

the jury despite the absence of expert testimony because he felt 

that the circumstances of the case came within language from 

Llera, that expert medical testimony is not necessary if "the 

conduct complained of is readily ascertainable by a layman." 

Llera v. Wisner, 557 P.2d at 811, 33 St.Rep. at 1217-1218. 

We note that this language from Llera goes to the question of 

the establishment of a standard of care to demonstrate negligence 

generally rather than to a standard of sufficiency of the physician's disclosure. In our opinion, there are different considerations involved. Cf 36 Ford.L.Rev. 639 (1968). In any event, 

since the jury found for Dr. Marks, if there was error in submitting the informed consent issue to them it was harmless error. 

Therefore, any further discussion of the correctness or incorrectness of the distinction drawn by the trial court judge would be 

inappropriate here. 

The final issue involved in this appeal is alleged error 

by the court in submitting to the jury the question of whether 

plaintiffs' claim was barred by the statute of limitations. Plaintiffs contend that in Montana the application of the statute of 

limitations is to be determined by the court as a matter of law. 

In support of that position plaintiffs rely on Hornung v. Richardson-Merrill, Inc. (D.Mont. 1970), 317 F.Supp. 183. Hornunq was a 

products liability action against a drug manufacturer where the 

defendant's motion for summary judgment on the statute of limitations was denied because there was an issue of fact as to when 

the plaintiffs should have become aware of the causal connection 

between the damages at issue and the defendant's product. Judge 
Russell Smith stated that on the trial of the case the Court 

would resolve that issue of fact on the basis of the evidence 

presented. In a footnote to that statement, Judge Smith noted: 

"I would have thought that the fact problems 

surrounding the application of a statute of limitations would be resolved by a jury in a jury 

case, but apparently the rule is otherwise." 

Hornung, 317 F.Supp. at 185. 

The cases cited in support of that footnote are Falls Sand & 

Gravel v. Western Concrete, Inc. (D-Mont. 1967), 270 F.Supp. 495, 

and Owens v. White (9th Cir. 1965), 342 F.2d 817. Our review of 

those decisions and the cases cited in them indicates that they 

represent a line of authority that was inapplicable to the circumstances, and that the initial thought mentioned by Judge 

Smith in his footnote was correct. 

Falls Sand & Gravel, supra, was a case involving alleged 

negligent misrepresentation by a contractor of the amount of 

materials to be furnished by a supplier. The court equated negligent misrepresentation with fraud and cited several Montana fraud 

cases holding that the time at which there has been a discovery 

of facts constituting fraud to start the running of the statute 

of limitations is a question of law. Kerrigan v. O'Meara (1924), 

71 Mont. 1, 227 P. 819; Ray v. Divers (1928), 81 Mont. 552, 264 P. 

673. As to Owens, supra, that was a malpractice action, but it 

was a decision construing Idaho law under which the issue of when 

a plaintiff's claim accrued for purposes of the statute of limitations is apparently a preliminary matter of law in every case 

"and like all issues of law must be resolved by the court even 

though this will require evidence." Owens, 342 F.2d at 819. 

In relying on Falls Sand & Gravel and Owens, the court 

in Hornung overlooked the line of authority which controls here 

and should have been controlling there. Accordingly, plaintiffs' 

reliance on Hornung here is inappropriate. The rule in Montana 

and in the majority of jurisdictions is that whether an action is 
barred by the statute of limitations is for the jury when there 

is conflicting evidence as to when the cause of action accrued. 

Stagg v. Stagg (1931), 90 Mont. 180, 300 P. 539; 54 C.J.S. 

Limitations of Actions S399. That was the case here. Plaintiffs made some unsubstantiated allegations that Dr. Marks had 

somehow concealed their cause of action from them, but there is 

no evidence in the record that would support application of the 

special rule in fraud cases here. We hold that the District 

Court properly submitted the issue of the statute of limitations 

to the jury. 

None of the specifications of error raised by plaintiffs 

have merit. The judgments entered by the District Court are 

aff irmed. 

Chief Justice 
Justice John C. Sheehy, specially concurring: 

I concur with the foregoing opinion, but I want to 

express my disapproval of Rule 19 of the Thirteenth Judicial 

District, or any rule like it which permits the filing of - ex 

parte briefs with the Court. 

I do not find in this case that the filing of the - ex 

parte trial brief deprived the plaintiff of due process, but 

I can conceive of situations in which substantial harm would 

be done to a party's case where trial briefs (in effect, 

private communications to the trial court that are not 

served upon the other party) deprive the District Court of 

the benefit of the adversary process. 

The spirit of the federal rules of civil procedure, 

upon which the Montana rules of civil procedure are based, 

is full and open disclosure of fact and law. 

That spirit is best expressed in Burton v. Weyerhaeuser 

Timber Company (D.C. Oregon 1941), 1 F.RR 571, where the 

trial court said: 

". . . I can sympathize with the desire of 

counsel, experienced in the older forms 

of practice, to withhold disclosure of 

such dramatic issues until the midst 

of trial, but it must be made clear that 

surprise, both as a weapon of attack and 

defense, is not to be tolerated under 

the new federal procedure. . . 

"Faithfully administered in spirit, as 

my senior colleague and I are endeavoring 

to administer them, the new rules outlaw the 

sporting theory of justice from Federal 

courts." 1 F.R.D. at p. 573. 

All attorneys practicing under the Montana Rules of 

Civil Procedure should come to know that the guidepost 

of practice under the rules is full disclosure of law 

and fact. This is most effectually done by adherence to 

pretrial procedure. At that time, as the Court said in 

Burton, supra: 
"1. Parties are expected to disclose 

all legal and fact issues which they 

intend to raise at trial, save only 

such issues as may involve privilege 

or impeaching matter. As to these 

two exceptions, disclosure may be 

made to the judge conducting the 

pretrial hearing without disclosure 

to opposing counsel, and a ruling 

will be made on the exception claimed. 

"The test to be applied on impeaching 

matter or any factual issue, which counsel 

feels should not be disclosed to his 

opponent in advance of the trial, is 

the simple one--whether disclosure or 

nondisclosure will best promote the ends 

of justice. That is for the judge conducting 

the pretrial hearing to determine." 1 F.R.D. 

at 572. 

The day is gone when the prototype old fashioned attorney 

produced the hidden witness at trial or the uncited but 

decisive case and left the opposing attorney lying bloody 

on the courtroom floor. Justice is achieved, under the 

spirit of our modern rules, by full and open disclosure of 

law and fact. The statements in Burton were approved in 

the Ninth Circuit Court of Appeals in Walker v. West Coast 

Fast Freight Inc. (9th Cir. 1956), 233 F.2d 939.