No. 93-621 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

ESTATE OF ROBERT N. NIEISEN, JR., 

Deceased, 

plaintiff and Appellant, 

MICHAEL H. PARDIS, d/b/a 

PARDIS CHIROPRACTIC CLINIC, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeannette Ellen Berry; Berry Law ~im, 

Bozeman, Montana 

For Respondent: 

Steve Reida; Landoe, Brown, Planalp & Braaksma, 

Bozeman, Montana 
Justice Karla M. Gray delivered the Opinion of the Court. 

The Estate of Robert N. Nielsen, Jr., appeals from orders of 

the First Judicial District Court, Lewis and Clark County, granting 

Michael H. Pardis' motion for summary judgment and denying its 

motion for relief from judgment or, alternatively, to alter or 

amend the judgment. We affirm. 

A brief factual and procedural outline of this case will set 

the stage for the legal issues before us. While Robert Nielsen 

(Nielsen) and his wife June were vacationing in Montana in August 

of 1988, Nielsen was treated by Michael H. Pardis, a chiropractic 

physician in Helena, Montana, doing business as Pardis Chiropractic 

Clinic (Pardis). Pardis treated Nielsen over a span of several 

days; x-rays were taken, and examinations and manual manipulations 

were performed. 

Nielsen filed his chiropractic malpractice complaint on August 

8, 1991, alleging that his right clavicle was subluxed, dislocated 

or broken from his sternum by Pardis' treatments. Pardis answered 

in December of 1991, denying that he breached the duty of care and 

that Nielsen was injured as a result. Nielsen died in January, 

1992, and the Estate of Robert N. Nielsen, Jr. (the Estate), 

subsequently was substituted as plaintiff. Nielsen's death was not 

related to the chiropractic malpractice alleged in this case. 

The case proceeded through the usual pre-trial stages. 

Discovery was to close on November 13, 1992, with trial set for 

February 1, 1993. On the Estate's motion, discovery was extended 

until January 15, 1993, and the trial was rescheduled for February 

2 
22, 1993. The Estate moved to continue that trial date because 

June Nielsen had broken her ankle and was unable to travel. Over 

Pardis' objection, the court rescheduled the trial for September 7, 

1993. The discovery deadline of January 15, 1993, was not 

extended. 

On July 30, 1993, with approximately five weeks remaining 

until the trial date, Pardis filed his motion for summary judgment. 

He asserted entitlement to summary judgment based on the Estate's 

failure to produce evidence of the applicable standard of care, any 

violation of that standard, and causation. The motion was heard on 

August 27, 1993. On the date of the hearing, Pardis conducted a 

deposition of Woodrow Fowler, D.C. (Fowler), the Estate's expert 

witness. He also conducted a deposition of June Nielsen four days 

later. On September 1, 1993, the District Court granted Pardis' 

motion for summary judgment; the court's memorandum of decision 

followed on September 17, 1993. 

The Estate filed its alternative Rule 60(b) and Rule 59(g), 

M.R.Civ.P., motion on September 27, 1993. In conjunction with its 

motion, the Estate requested Pardis to file or make available for 

filing the depositions of Fowler and June Nielsen, asserting that 

the deposition testimony constituted newly discovered evidence. 

Pardis objected to the filing of the depositions. The District 

Court denied the Estate's motion for relief from or, alternatively, 

to alter or amend the summary judgment. The Estate appeals. 

Did the District Court err by granting summary judgment for 

Pardis? 

3 
The District Court granted summary judgment to Pardis based on 

the Estate's failure to produce expert medical testimony regarding 

the applicable standard of care and a violation of that standard. 

The court declined to apply the doctrine of res ipsa loquitur to 

establish the Estate's malpractice claim. 

Our standard for reviewing a grant of summary judgment is the 

same as that used by the district court. Emery v. Federated Foods, 

Inc. (1993), 262 Mont. 83, -, 863 P.2d 426, 431. We determine 

whether there is an absence of genuine issues of material fact and 

whether the moving party is entitled to judgment as a matter of 

law. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 

P.2d 212, 214. The party moving for summary judgment has the 

initial burden of establishing the absence of any genuine issue of 

fact and entitlement to judgment as a matter of law. Brinkman and 

Lenon v. P & D Land Enterprises (Mont. 1994), 867 P.2d 1112, 1115, 

51 St.Rep. 36, 37. The burden then shifts to the nonmoving party 

to set forth specific facts, by affidavit or as otherwise provided 

in Rule 56, M.R.Civ.P., establishing a genuine issue of material 

fact. Minnie, 849 P.2d at 214. 

As the party moving for summary judgment, Pardis met his 

burden. He demonstrated that there was no genuine issue as to any 

material fact because the Estate had not established a prima facie 

medical malpractice claim; it failed to produce the expert medical 

testimony regarding standard of care and departure from that 

standard generally required in malpractice cases. Mont. Deaconess 

Hosp. v. Gratton (l976), 169 Mont. 185, 189, 545 P.2d 670, 672; 
Baylor v. Jacobson (1976), 170 Mont. 234, 240, 552 P.2d 55, 58. 

The burden then shifted to the Estate to establish a genuine issue 

of material fact regarding the malpractice claim. 

The Estate does not contend that it met this burden by 

affirmatively producing the required expert medical testimony. The 

Estate contends, however, that the District Court erred in failing 

to conclude that it had presented a prima facie case under the 

doctrine of res ipsa loquitur. We disagree. 

While res ipsa loquitur Itpermits proof of what happened to be 

made by circumstantial evidence," plaintiff is still required to 

present a prima facie case that defendant breached a duty of care. 

Clark v. Norris (l987), 226 Mont, 43, 48, 734 P.2d 182, 185. We 

have specifically rejected the notion that res ipsa loquitur can be 

used to supplant the expert testimony regarding standard of care 

and breach thereof required in a malpractice case. Dalton v. 

Kalispell Reg. Hospital (1993), 256 Mont. 243, 248, 846 P.2d 960, 

Furthermore, we agree with the District Court that a causal 

connection between the purported negligence and the injury must be 

established before res ipsa loquitur can be applied. The doctrine 

of res ipsa loquitur provides: 

"[Wlhen an instrumentality which causes injury without 

any fault of the injured person, is under the exclusive 

control of the defendant at the time of the injury, and 

the injury is such as in the ordinary course of things 

does not occur if one having such control uses proper 

care, then the law infers negligence on the part of the 

one in control as the cause of the injury." 

I Clark 734 P.2d at 185 (emphasis added, citations omitted). 
Here, the Estate presented no evidence prior to the court's 

grant of summary judgment that Pardis' chiropractic treatment 

caused the dislocation of Nielsen's clavicle from his sternum. 

Indeed, the record reflects the opposite. X-rays taken in August 

of 1988, February of 1989, and August of 1991, and a chest CT scan 

taken in February of 1989, did not reveal a separation in the 

joint. While M. Brooke Hunter, M.D., who examined Nielsen shortly 

after the chiropractic treatment, diagnosed a sternoclavicular 

joint aggravation, he could not determine its cause. Absent a 

causal connection, the Estate cannot rely on res ipsa loquitur to 

infer negligence by Pardis. 

Because the Estate failed to produce medical expert testimony 

establishing the applicable standard of care and a departure from 

that standard, it did not make a factual showing placing Pardis' 

breach of a standard of care at issue. Thus, the core element of 

a medical malpractice claim is missing and Pardis is entitled to 

summary judgment as a matter of law. We hold that the District 

Court did not err by granting summary judgment in his favor. 

Did the District Court err by refusing to grant the Estate's 

motion for relief from or, in the alternative, to alter or amend 

the summary judgment? 

Pardis conducted depositions of Fowler, the Estate's expert 

witness, and June Nielsen on August 27 and 31, 1993, respectively. 

The depositions were not transcribed or part of the record at the 

time of the summary judgment hearing or when the court granted 

summary judgment to Pardis on September 1, 1993. 
According to the Estate, Fowler's deposition testimony 

established that it was more likely than not that Pardis' failure 

to meet the applicable standard of care caused Nielsen's 

sternoclavicular injury and that June Nielsen's deposition 

testimony generally supported that position. On the basis of this 

"newly discovered" evidence, the Estate moved for relief from 

judgment under Rule 60(b) (2) and (6), M.R.Civ.P. Alternatively, it 

moved the court to alter or amend the judgment under Rule 59(g), 

M.R.Civ.P. 

Rule 60(b), M.R.Civ.P., Motion for Relief from Judment 

The District Court determined that the Estate could not 

request relief from judgment under both subsections (2) and (6) of 

Rule 60 (b) , M.R.Civ.P., relying on Koch v. Billings School Dist. 

No. 2 (1992), 253 Mont. 261, 833 P.2d 181. On that basis, the 

court considered the Estate's motion solely under Rule 60(b) (2), 

M.R.Civ.P. It declined to grant relief under that provision, 

determining that the deposition testimony of Fowler and June 

Nielsen was neither new evidence nor evidence which could not have 

been produced with due diligence. 

Our review of a district court's decision to grant or deny a 

Rule 60(b) motion depends on the issues involved. Where, as in the 

case before us, the district court engages in the discretionary 

appraisal or weighing of the facts to dispose of the motion, we 

determine whether the district court abused its discretion. 

Marriage of Barnes (1992), 251 Mont. 334, 336, 825 P.2d 201, 203. 

The Estate first contends that the District Court erred by 
failing to allow alternative grounds for relief from judgment under 

subsections (2) and (6) of Rule 60(b), M.R.Civ.P. We disagree. 

The first five subsections of Rule 60(b), M.R.Civ.P., set 

forth specific bases pursuant to which a court may relieve a party 

from a final judgment. Under subsection (2), such relief may be 

granted in the event of "newly discovered evidence which by due 

diligence could not have been discovered in time . . . . II 

Subsection (6) allows a judgment to be set aside for "any other 

reason justifying relief from the operation of the judgment.I1 

In m, we stated that a party cannot seek relief under Rule 

60 (b) (6) , M.R. Civ. P., if it seeks relief under any other subsection 

of the rule. m, 833 P.2d at 183. We subsequently have 

clarified that a party is precluded from seeking relief under Rule 

60(b)(6), M.R.Civ.P., when the facts or circumstances would bring 

the case under one of the first five subsections. Maulding v. 

Hardman (1993), 257 Mont. 18, 25, 847 P.2d 292, 297. Here, the 

Estate premised its entitlement to relief under subsection (6) on 

the purported "newly discoveredl1 evidence which formed the basis 

for its subsection (2) request for relief. Because the Estate's 

subsection (6) request was based on the same facts as its 

subsection (2) request, the District Court properly considered the 

Estate's motion for relief from judgment solely under Rule 

6O(b) (2), M.R.Civ.P. 

The Estate next contends that Halse v. Murphy (1989), 237 

Mont. 509, 774 P.2d 418, mandates relief from judgment under Rule 

60(b)(2), M.R.Civ.P. In m, a physician moved for summary 
judgment based on plaintiff's failure to produce expert medical 

testimony to support her medical malpractice claim. Before the 

physician's motion could be ruled on, plaintiff's counsel withdrew. 

Her subsequent attorney requested and received three extensions to 

obtain expert medical testimony and to respond to the summary 

judgment motion. When a response was not filed within the allotted 

time, the district court dismissed plaintiff's malpractice claim. 

One month later, plaintiff obtained the affidavit of a medical 

expert indicating negligence by the treating physician and moved 

for relief from judgment under Rule 60(b) (2) , M.R.Civ. P. In 

support of the motion, plaintiff's attorney testified by affidavit 

that plaintiff "had made every effortw to locate expert testimony 

to support the malpractice claim. The district court denied the 

motion. 

We reversed the district court, determining that the medical 

testimony obtained by plaintiff was "newly discovered1' evidence 

under Rule 6O(b), M.R.Civ.P. We emphasized that the failure to 

produce such evidence prior to the court's grant of summary 

judgment was not caused by the plaintiff's lack of due diligence, 

observing that plaintiff had sought several extensions over a 

period of years to obtain the required expert testimony to defend 

against summary judgment. Halse, 774 P.2d at 422. Plaintiff's 

medical expert also testified that he was unable to render an 

opinion concerning plaintiff's malpractice claim prior tothe grant 

of summary judgment because he had not had the opportunity to 

review the notes and records af plaintiff's treating physician. 
Halse, 774 P.2d at 422-23. 

Halse is clearly distinguishable from the case before us. 

Here, the Estate did not exercise due diligence in producing the 

required expert testimony. It had obtained its expert by at least 

the January 4, 1993, disclosure of his name to Pardis via 

discovery. Notwithstanding, the record indicates that the Fowler 

affidavit submitted by the Estate in opposition to Pardis' summary 

judgment motion did not contain the required medical testimony. 

Moreover, to the extent June Nielsen's testimony regarding 

breach of any applicable standard of care was at all relevant, she 

was an obvious witness for the Estate from the outset of the 

lawsuit in August of 1991. The Estate advances no explanation-- 

much less a compelling one--for its failure to produce the required 

testimony from its own witnesses. Indeed, the record does not 

contain any affidavit indicating that the Estate had made every 

effort to locate and produce the necessary expert testimony as was 

the case in Halse. 

The Estate also contends that State Medical Oxygen & Supply, 

Inc. v. American Medical Oxygen Co. (1988), 230 Mont. 456, 750 P.2d 

1085, required the District Court to consider the Fowler and June 

Nielsen depositions when ruling on Pardis' motion for summary 

judgment. However, that case does not address Rule 60(b) (2), 

M.R.Civ.P. and, thus, provides no support for the Estate's position 

that the deposition testimony of Fowler and June Nielsen 

constitutes "newly discovered" evidence under that rule. 

Furthermore, Medical Oxyqen is distinguishable from the case 
before us. There, we determined that the district court's failure 

to consider three depositions taken the morning of the summary 

judgment hearing was fatal to its grant of summary judgment against 

the plaintiff. Medical Oxvsen, 750 P.2d at 1089. Although the 

factual basis on which Medical Oxvqen was decided is not entirely 

clear from the opinion, the appeal briefs indicate that the 

plaintiff scheduled and conductedthe depositions. In addition, as 

the opinion notes, the plaintiff specifically did not waive the 

introduction and consideration of the depositions as relevant to 

the summary judgment issue. Medical Oxvqen, 750 P.2d at 1088. 

Here, on the other hand, it was Pardis, not the Estate, who 

scheduled and conducted the depositions, presumably to timely 

prepare for trial in the event he did not prevail on summary 

judgment. In addition, nothing in the record before us suggests 

that the Estate timely requested the court to postpone its decision 

until the as yet unavailable (and, as to June Nielsen, untaken) 

depositions were transcribed. Nothing in Medical Oxvsen required 

the District Court to consider these depositions at either the 

summary judgment or post-trial motion stage of the proceedings. 

We conclude that the Estate's failure to exercise due 

diligence in producingthe testimony it needed to withstand summary 

judgment precludes the Fowler and June Nielsen depositions from 

being "newly discoveredr1 evidence under Rule 60(b)(2), M.R.Civ.P. 

We hold, therefore, that the District Court did not abuse its 

discretion in denyingthe Estate's motion for relief from judgment. 
Rule 59(~) Motion to Alter or Amend Judqment 

The District Court did not rule on the Estate's Rule 59(g), 

M.R.Civ.P., motion to amend the judgment and, therefore, it was 

deemed denied by operation of law, The amendment of a judgment is 

within the discretion of a district court. See Marriage of 

Grounds/Coward (1993), 256 Mont. 397, 402-03, 846 P.2d 1034, 1037- 

38; Marriage of Vakoff (1992), 252 Mont. 56, 59-60, 826 P.2d 552, 

554. Thus, we review the District Court's denial of the Estate's 

motion to amend for an abuse of discretion. Steer, Inc. v. Dep't 

of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603. 

In neither the District Court nor this Court has the Estate 

advanced any basis for amending the summary judgment apart from the 

arguments supporting its motion for relief from judgment. Because 

we have determined that the court properly declined to grant relief 

from judgment under Rule 60 (b) (2) , M.R.Civ. P., we hold that the 

court did not abuse its discretion in denying the Estate's Rule 

59(g), M.R.civ.P., motion to amend the judgment. 

Af f inned. 

We concur: 
Justice Terry N. Trieweiler, specially concurring. 

I concur that based on the facts in this case, the doctrine of 

res ipsa loquitur was inapplicable and that based on lack of proof 

that the defendant was negligent, the District Court properly 

granted summary judgment. 

I don't agree that professional negligence may not under other 

circumstances be established by the doctrine of res ipsa loquitur 

and without expert testimony. 

I also agree that the District Court did not abuse its 

discretion when it denied the estate's motions under Rules 60(b) (2) 

and 59(g), M.R.Civ.P., and therefore concur with the result of the 

majority opinion. 
July 1, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Jeannette Ellen Berry 

BERRY LAW FIRM 

2631 West Main STreet 

Bozeman, MT 59715 

Gene I. Brown & Steve Reida 

LANDOE, BROWN, PLANALP & BRAAKSMA, P.C. 

P. 0. Box One 

Bozeman, MT 59771-0001 

ED SMITH 

CLERKOFTHE 

SUPREME COURT 

STATE OF 

MONTANA