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, MontanaJustice Karla M. Gray delivered the Opinion of the Court.

The Estate of Robert N. Nielsen, Jr., appeals from orders of the FirstJudicialDistrictCourt,Lewisand ClarkCounty,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 inAugust of 1988, Nielsen was treated by Michael H. Pardis, a chiropractic physician inHelena,Montana,doing business asPardisChiropractic Clinic (Pardis). Pardis treated Nielsen over a span of several days;x-rays were taken,and examinationsandmanual manipulations

were performed. Nielsen filedhischiropractic malpracticecomplaintonAugust 8, 1991, alleging that his right claviclewas subluxed,dislocated

or broken fromhis sternumby 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), subsequentlywas substitutedasplaintiff. Nielsen's deathwasnot 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, discoverywas extended until January 15, 1993, and the trial was rescheduled for February 222, 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 courtrescheduled 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 trialdate,Pardis filedhismotion for summary judgment. He asserted entitlement to summary judgment based on the Estate's failuretoproduce evidence of the applicable standard of care,any violation of that standard,and causation. Themotionwasheard 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 JuneNielsen 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 theEstate's motion forrelief fromor,alternatively, to alter or amend the summary judgment. The Estate appeals.

Did the District Court err by granting summary judgment for Pardis? 3TheDistrictCourt granted summary judgment to Pardisbased on the Estate's failure toproduce 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 thatused 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 amatter of law. Brinkman and Lenonv. 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 otherwiseprovided 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. Hedemonstrated that therewas 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 expertmedical testimony regarding standard of care and departure from that standard generallyrequired inmalpractice 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. Theburden 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 producingthe required expert medical testimony. The Estate contends, however, that theDistrict 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 specificallyrejected thenotionthat res ipsa loquiturcanbe 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 thepurported negligence and the injury must be established before res ipsa loquitur canbe applied. The doctrine of res ipsa loquiturprovides: "[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." Clark 734 P.2d at 185 (emphasis added, citations omitted). IHere, 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 toproduce 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 JuneNielsen onAugust 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 thatposition. On thebasis of this "newly discovered" evidence, the Estate moved for relief from judgmentunder 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 

### byfailingto allowalternativegrounds forrelief from judgmentunder 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 specificbases pursuant towhich a courtmay 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 aparty cannot seek relief under Rule 60(b)(6)

## ,M.R.Civ.P., if it seeksrelief 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 circumstanceswould 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 discoveredl1evidence 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 Courtproperly 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 summaryjudgment based on plaintiff's failure to produce expert medical testimony to support her medical malpractice claim. Before the physician's motion couldbe ruledon,plaintiff's counselwithdrew. Her subsequent attorney requestedand received three extensions to obtain expert medical testimony and to respond to the summary judgmentmotion. When a response was not filedwithin the allotted time, the district court dismissedplaintiff's malpractice claim. Onemonth later,plaintiff obtainedthe affidavit of amedical 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 testifiedby affidavit that plaintiff "hadmade 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 concerningplaintiff's malpractice claim prior tothegrant 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. Ithad 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 submittedby the Estate inopposition 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 carewas 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 failuretoproduce 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 aswas the case in Halse. The Estate also contends that State Medical Oxygen & Supply, Inc. v. AmericanMedical OxygenCo. (1988), 230Mont. 456,750P.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,providesno support forthe 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 casebefore 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 judgmentagainst 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 scheduledand conductedthedepositions. Inaddition, 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 timelyrequested the court topostpone its decision until the as yet unavailable (and, as to June Nielsen, untaken) depositions were transcribed. Nothing inMedical 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 inproducingthe testimony itneeded towithstand summary judgment precludes the Fowler and June Nielsen depositions from being "newlydiscoveredr1 evidence under Rule 60(b)(2), M.R.Civ.P. We hold, therefore, that the District Court did not abuse its discretion indenyingtheEstate's motion forrelief 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 anybasis foramending the summary judgmentapart fromthe arguments supporting its motion for relief from judgment. Because

we have determined that the courtproperly declined togrant 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. Affinned.

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

Iconcur thatbased on the facts in this case,the doctrine of

res ipsa loquitur was inapplicableand that based on lack of proof that the defendant was negligent, the District Court properly granted summary judgment. Idon't agree thatprofessional negligencemay 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 itdenied the estate's motionsunderRules 60(b) (2) and 59(g), M.R.Civ.P., and therefore concur with the result of the majority opinion.July 1,1994 CERTIFICATEOFSERVICE Ihereby certify that the following certifiedorderwas sentby UnitedStates mail, prepaid, tothe followingnamed: Jeannette Ellen Berry BERRY LAWFIRM 2631WestMainSTreet Bozeman,MT59715 GeneI.Brown&Steve Reida LANDOE, BROWN,PLANALP&BRAAKSMA,P.C. P. 0.BoxOne Bozeman,MT59771-0001

EDSMITH CLERKOFTHE SUPREME COURT STATE OF MONTANA