NO. 92-562 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

ROBERT ZIMMERMAN, 

Plaintiff and Appellant, 

-vsG.D. ROBERTSON, D.V.M., 

d/b/a BOZEMAN VETERINARY 

HOSPITAL, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jerrold L. Nye; Nye & Meyer, Billings, Montana 

For Respondent: 

Geoffrey R. Keller; Matovich, Addy & Keller, 

Billings, Montana 

Filed: 

Submitted on Briefs: May 20, 1993 

Decided: June 21, 1993 
Justice Karla M. Gray delivered the Opinion of the Court. 

Robert Zimmerman appeals from a judgment on directed verdict 

entered in favor of G.D. Robertson by the Thirteenth Judicial 

District Court, Yellowstone County. We affirm. 

We restate the issues on appeal as follows: 

1. Is expert testimony required in a negligence action 

against a veterinarian? 

2. Did the defendant's testimony constitute sufficient 

evidence of deviations from the standard of care to enable the 

plaintiff to withstand a directed verdict? 

3. Did the District Court abuse its discretion in refusing to 

admit testimony regarding whether the defendant obtained the 

informed consent of the horse's owner prior to surgery? 

Robert Zimmerman placed a colt in the care of Sarah Vaessen at 

the Bridger Canyon Stallion Station (BCSS) in March of 1991. In 

early May, Vaessen contacted veterinarian G.D. Robertson with 

regard to castration of a number of colts, including Zimmerman's. 

Robertson discovered that Zimmerman's colt was cryptorchid (one 

retracted testicle); the colt was transported to Robertson's clinic 

where cryptorchid surgery and castration was performed. 

The colt was returned to the BCSS in mid-May. On May 24, 

1991, Robertson was called to treat the colt for an upper respiratory infection. He treated the colt with antibiotics daily through 

the end of May; the infection appeared to be responding. 

To facilitate the healing process, Robertson applied Dermago 

2 to the surgical site on June 7. He was called back to the BCSS 

2 
on June 19 regarding an infection at the surgical site; the colt 

was transported back to Robertson's clinic. Robertson treated the 

colt with antibiotics, other medications and drains. The colt died 

on October 6, 1991. An autopsy was performed and a large abscess 

was discovered in the spleen; in addition, streptococcus zooepidemicus bacteria was isolated. 

Zimmerman filed a complaint against Robertson claiming 

negligence in both the surgical procedure and post-surgery 

treatment. A jury trial began on October 5, 1992. Zimmerman 

testified and also called Vaessen and Robertson as witnesses. 

Robertson moved for a directed verdict at the close of Zimmerman's 

case. The District Court granted the motion on October 6, 

concluding that Zimmerman had failed to provide necessary expert 

testimony. Zimmerman appeals. 

Is expert testimony required in a negligence action against a 

veterinarian? 

Zimmerman contends that expert testimony should not be 

required in an action against a veterinarian. We disagree. 

We have not previously addressed the specific question of 

whether expert testimony is required in a negligence action against 

a veterinarian in Montana. In Carlson v. Morton (1987), 229 Mont. 

234, 745 P.2d 1133, however, we discussed the elements a plaintiff 

must prove in any professional negligence action, stating that in 

such actions "[nlegligence cannot be inferred from the simple fact 

that a loss occurred." Carlson, 745 P.2d at 1136 (citations 

omitted). We went on to observe that, while the field of legal 
malpractice was relatively new in Montana, it was undisputed that 

expert testimony supporting a departure from "the prevalent 

standard of medical carew was required in medical malpractice 

actions. Carlson, 745 P.2d at 1136. Indeed, by that time, the 

necessity of expert testimony to establish the standard of care had 

been extended to professional negligence actions against dentists, 

orthodontists, manufacturers of pharmaceuticals, and abstractors of 

title. Carlson, 745 P.2d at 1136-1137 (citations omitted). We 

extended that requirement to actions against attorneys. 

The rationale for requiring expert testimony in professional 

negligence actions has been summarized by Professors Prosser and 

Keeton: 

Professional persons in general, and those who undertake 

any work calling for special skill, are required not only 

to exercise reasonable care in what they do, but also to 

possess a standard minimum of special knowledge and 

ability. Most of the decided cases have dealt with 

surgeons and other doctors, but the same is undoubtedly 

true of dentists, pharmacists, psychiatrists, veterinarians, lawyers, architects and engineers, accountants, 

abstractors of title, and many other professions and 

skilled trades. 

Since juries composed of laymen are normally incompetent 

to pass judgment on [such] questions . . . it has been 

held in the great majority of malpractice cases that 

there can be no finding of negligence in the absence of 

expert testimony to support it. . . . 

Carlson, 745 P.2d at 1137, citing Prosser and Keeton on The Law of 

-t Torts § 32, 5th Edition, (1984). 

As we did in Carlson in a professional negligence action 

against an attorney, we conclude here that expert testimony is 

necessary to establish the applicable standard of care in an action 
against a veterinarian which arises from the veterinarian's 

professional capacity. Matters concerning the standard of care 

owed by a veterinarian during and after surgery are outside the 

common experience and knowledge of lay jurors; expert testimony is 

necessary to assist them in resolving such cases. 

Our conclusion on this issue was clearly foreshadowed in 

Carlson. We note, as well, that other jurisdictions have adopted 

the expert testimony requirement in veterinary negligence actions. 

In Utah, for example, expert testimony is required to show that a 

veterinarian did not exercise the care and diligence ordinarily 

exercised by skilled veterinarians doing the same type of work in 

the community, and that the failure caused the injury. Posnien v. 

Rogers (Utah 1975), 533 P.2d 120, 121-122. See also 71 A.L.R.4th 

811, Veterinary Malpractice, 823-825. 

Zimmerman's argument that differences in training, conditions 

of practice and expected standards between veterinary doctors and 

physicians weigh against requiring expert testimony in negligence 

actions against veterinarians is not persuasive. Requiring expert 

testimony is not the equivalent of applying the same standards to 

veterinarians as are applied to physicians. Indeed, expert 

testimony regarding the standard of care owed by a veterinarian may 

reflect that the appropriate standard of care for veterinarians is 

significantly less than that required of physicians. We do not 

determine the appropriate standard of care merely by requiring 

expert testimony on the subject. 

Did the defendant's testimony constitute sufficient evidence 
of deviations from the standard of care to enable the plaintiff to 

withstand a directed verdict? 

Zimmerman argues that Robertson's own testimony established 

deviations from the applicable standard of care and that, on that 

basis, the District Court erred in directing a verdict for 

Robertson. We disagree. 

Zimmerman advances "admissions" by Robertson that his 

treatment of the colt fell below the standard of care in several 

regards. First, he quotes certain testimonjj with regard to the 

issue of informed consent. On the basis of our discussion and 

conclusion on Issue 3 below, we do not review this testimony. 

In addition, Zimmerman contends that Robertson admitted substandard care with regard to the use of certain medications and 

drains and his failure to obtain a culture or other determination 

of the type of bacteria in the abscess. Zimmerman asserts that 

these "admissions" were sufficient to withstand a directed verdict. 

We have recognized the "defendant's admissions" exception to 

the expert testimony requirement in several professional negligence 

cases. We acknowledged, but refused to apply, the exception in 

Dalton v. Kalispell Regional Hosp. (Mont. 1993), 846 P.2d 960, 50 

St.Rep. 54; Hunter v. Missoula Community Hosp. (1988), 230 Mont. 

300, 750 P.2d 106: and Hill v. Squibb & Sons, E.R. (1979), 181 

Mont. 199, 592 P.2d 1383. In Thomas v. Merriam (1959), 135 Mont. 

121, 127, 337 P.2d 604, 607, we applied the exception where the 

physician's admissions to a member of plaintiff's family as to the 

procedures he followed were sufficient to establish a deviation 
from the standard of care. 

The case before us is distinguishable from Thomas. Here, 

Robertson testified that his use of certain medications was not 

improper; similarly, he testified that it was not improper not to 

obtain a culture on the bacteria present. Finally, Robertson 

testified that his suction draining of the abscess prior to 

actually inserting drains--which he did in August and September-- 

constituted appropriate treatment. 

Robertson's testimony was that he believed his treatment and 

care of the colt, including both the surgery and the post-surgical 

treatment, fell within the applicable standard of care for 

veterinarians in the Bozeman area. We conclude that the "defendant's admissions" exception to the expert testimony requirement in 

professional negligence actions is not applicable here. Zimmerman 

having elicited no other expert testimony regarding deviations from 

the standard of care, we hold that the District Court did not err 

in directing a verdict for Robertson based on the absence of 

required expert testimony. 

Did the District Court abuse its discretion in refusing to 

admit testimony regarding whether the defendant obtained the 

informed consent of the horse's owner prior to surgery? 

During trial, Zimmerman attempted to question Robertson on the 

subject of whether Robertson had obtained his informed consent to 

the allegedly risky cryptorchid surgical procedure. On the basis 

of the pleadings alleging negligence during the surgery and the 

post-surgical treatment, the District Court sustained defense 
counsel's relevancy objections. Zimmerman argues that he was 

entitled to pursue the subject and that the District Court's 

refusal to admit the testimony warrants reversal. 

Rulings on the admissibility of evidence are within the sound 

discretion of the trial court and will not be overturned on appeal 

absent an abuse of discretion. Bache v. Gilden (19921, 252 Mont. 

178, 181, 827 P. 2d 817, 819. Relevant evidence is evidence "having 

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence." Rule 401, 

M.R.Evid. Relevant evidence generally is admissible; "[elvidence 

which is not relevant is not admissible." Rule 402, M.R.Evid. 

Zimmerman's complaint alleged negligence by Robertson during 

two stages of his treatment of the colt: 1) that, as a result of 

his negligent and careless castration procedure, infection set in; 

and 2) that he failed to promptly and properly treat the infection. 

The negligence was alleged to be the cause of the colt's death and 

Zimmerman's monetary damages. It is undisputed that the complaint 

was sufficient to state claims for relief for professional 

negligence under Rule 8(a), M.R.Civ.P. 

The parties and the District Court entered into a Pretrial 

Order (PTO) on September 24, 1992, some ten days prior to trial. 

"Plaintiff's Contentions'' in the PTO centered on Zimmerman's 

allegations that the surgical procedure was done under improper and 

unsanitary conditions, that conditions in the recovery area also 

were improper and unsanitary, that infection developed at the 
surgical site as a proximate result of those conditions, and that 

the colt died as a result of Robertson's failure to properly care 

for it. 

In addition, Zimmerman set forth his "Plaintiff's Issues of 

Factw as follows in the PTO: 

The following issues of fact, and no others, remain to be 

litigated upon the trial. 

1. The nature and condition of the area where the 

castration/surgery was performed and its level of 

sanitation. 

2. The nature and condition of the area in which 

the horse was placed to recover from the castration/surgery. 

3. Whether the lack of sanitation and/or nature of 

the surgical and recovery areas were the probable cause 

of the infection to the surgical/castration area and/or 

the respiratory infection. 

4. The effect of the respiratory infection on the 

infection in the surgical/castration area. 

5. The nature and extent of treatment of infection 

after it was discovered and care given by Defendant after 

the infection was discovered. 

6. The nature and extent of the loss suffered by 

Plaintiff as a result of the loss of the horse. 

Here, Zimmerman set forth his factual contentions and factual 

issues remaining for trial with some particularity. Those factual 

issues requiring litigation corresponded to the two areas of 

negligence alleged in the complaint, namely, the surgical care and 

post-surgical treatment. 

A pretrial order controls the subsequent course of the action. 

Rule 16(e), M.R.Civ.P. Indeed, the PTO in this case specifically 

provided that it would govern the course of trial. The purpose of 

pretrial orders is to prevent surprise, simplify the issues and 

permit counsel to prepare their case for trial on the basis of the 

pretrial order. Workman v. McIntyre Const. Co. (1980), 190 Mont. 
5, 617 P.2d 1281. 

Here, nothing in the pretrial order raised as a factual issue 

to be litigated the matter of an alleged failure to obtain 

Zimmerman's informed consent prior to the surgery. Under these 

specific circumstances, testimony regarding that alleged failure 

was irrelevant to the factual issues identified by Zimmerman 

himself in the PTO; it did not tend to make the existence of any 

fact of consequence to the determination of Robertson's negligence 

during either the surgery or the post-surgery period more or less 

probable. Permitting the introduction of this new factual matter, 

first raised during trial, would undermine the purposes pretrial 

orders are intended to serve. 

Citing numerous cases, Zimmerman argues that the failure of a 

doctor to obtain proper consent prior to medical treatment is 

malpractice. As set forth above, however, testimony relating to 

informed consent simply was not related to his specified allegations of negligence. 

Furthermore, Zimmerman relies primarily on Canterbury v. 

Spence (D.C.Cir. 1972), 464 F.2d 772; and Scott v. Bradford (Okla. 

1979), 606 P.2d 554, for the necessary elements of a lack of 

informed consent action. We need not address here the substantive 

questions relating to such an action in Montana. We note only that 

the cases generally support the proposition that a medical 

malpractice claim premised on a theory of lack of informed consent 

is a separate cause of action rather than an "element" in an 

otherwise specifically alleged claim of professional negligence, as 
Zimmerman asserts. In Canterbury, the plaintiff sought personal 

injury damages based, alternatively, on alleged surgical negligence, alleged negligence in post-operative care, and an alleged 

negligent failure by the doctor to disclose the risks inherent in 

the operation. Canterbury, 464 F.2d at 776. Similarly, in Scott, 

the Oklahoma Supreme Court had before it a claim that the defendant 

failed to advise of the risks involved in, or available alternatives to, surgery; it set forth the elements that a plaintiff in a 

medical malpractice action based on a theory of lack of informed 

consent "must alleqe and prove." a, 606 P.2d at 559 (emphasis 

added). 

These cases support our conclusion that Zimmerman did not 

sufficiently raise the informed consent issue prior to trial in 

either his pleadings or the pretrial order. We hold that the 

District Court did not abuse its discretion in refusing to admit 

testimony regarding whether the defendant obtained the informed 

consent of the horse's owner prior to surgery. 

AFFIRMED. 

"- We concur: 

Justice Terry N. Trieweiler specially concurring. 

Based on the unique facts and the available record in this 

case, I concur with the result of the majority opinion, although I 

do not agree witin all that is said in that opinion. 

I would especially caution Montana practitioners not to draw 

unwarranted conclusions that this case establishes any rules for 

pleading or procedure. 

The Montana Rules of Civil Procedure require only notice 

pleading; and there is no requirement that the facts alleged in a 

pretrial order be any more specific than those alleged in a 

complaint. 

In the typical professional negligence claim, it is sufficient 

that the plaintiff allege that the defendant was negligent. It is 

up to the defendant through the use of discovery to define the 

specific bases for that general allegation. In this case, we have 

no record before this Court of what, if any, discovery was 

conducted by either party. In addition, plaintiff chose, although 

he was not required to do so, to very specifically articulate each 

factual basis for his claim of negligence in the pretrial order. 

Without knowing more about the extent of discovery, and based 

simply on the limited record before this Court, it is reasonable to 

conclude, based on plaintiff's affirmative allegations, that 

defendant was surprised when the issue of informed consent was 

raised for the first time during trial. Under these limited 

circumstances, I conclude that the District Court did not abuse its 

discretion by excluding evidence on the issue of informed consent. 

13 
However, by concurring in this opinion, I do not intend to in 

any way add to the present requirements for pleading and proving 

claims of professional, or any other type of, negligence. Neither 

do I intend to lessen the burden on either plaintiffs or defendants 

to use pretrial discovery to fully explore the factual bases for 

the other party's general claims. 

Justice William E. Hunt, Sr., joins in the foregoing concurrence. 

P r 

Justice 
June 21, 1993 

CERTIFICATE OF SERVICE 

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

named: 

Jerrold L. Nye 

Nye & Meyer 

3317 Third Ave. No. 

Billings, MT 59101 

Geoffrey R. Keller 

Matovich, Addy & Keller 

225 Petroleum Bldg. 

2812 First Ave. No. 

Billings, MT 59101 

ED SMITH 

eLEiuc OF THE SUPREME COURT