No. 88-351 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

KRISTIE ANN HALSE, 

plaintiff and Appellant, 

-vsJAMES P. MURPHY, 

Defendant and Respondent. 

APPEAL FROM: ~istrict Court of the Second ~udicial ~istrict, 

In and for the County of silver Bow, 

The Honorable Mark P. Sullivan, ,Tudge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael E. Wheat; Cok & Wheat, Rozeman, Montana 

For Respondent: 

Douglas Buxbaum; Poore, Roth & ~obinson, Butte, 

Montana 

Submitted on Rriefs: Feb. 3, 1989 

Decided: June 8, 1989 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant Kristie Ann Halse appeals to this Court from a 

summary judgment of the Second Judicial ~istrict, Silver Bow 

County, in favor of respondent, Dr. James Murphy on a medical 

malpractice action which Halse had instituted on May 3, 1984. 

Halse alleged that Dr. James Murphy was negligent when 

he failed to externally immobilize Halse' s fractured arm 

after he had removed a rod which he had inserted into the 

ulna bone of her right arm. The fracture was a result of a 

car accident. The initial medical records, entered when she 

was admitted to the hospital following the accident, indicate 

that Halse was 19 years old and well-nourished, appeared to 

be hypovolemic and had resultant hypovolemic shock; had a 

comminuted compound ~onteggia ' s fracture of the ulna; had a 

ruptured bladder and gross hematuria; had multiple face 

contusions with closed head injury; was comatose; and had 

multiple pelvic fractures. Dr. James Murphy repaired her 

right arm fracture. Two other physicians attended to the 

bladder repair and repair of inter-abdominal organs that were 

hemorrhaging. The fractures to the ulna could not be 

repaired by casting and surgery was necessary to repair the 

ulna and to insert a rod. 

Halse was transferred to St. Peter's ~ospital in Helena 

on December 23, 1980 because she showed persistent renal 

failure. She underwent multiple renal dialysis procedures 

there. Her urinary function returned and she was transferred 

back to St. James Hospital in Butte where "she was begun on 

physical therapy." Because of some persistent problems 

relating to nursing staff orders, the family transferred 

Kristie to the Sheridan Hospital in Sheridan, Montana, eight 
days later, on January 25, 1981. Her private physician 

accepted continuing care of the appellant. 

In March, 1981, two and a half months after her fracture 

was repaired, Halse began experiencing palsy in her right 

hand. Dr. Murphy referred her to Dr. Charles Jennings, an 

orthopedic surgeon practicing in Great Falls, who specializes 

in hand problems, for a second opinion. Dr. Jennings ' 

medical records indicate that he removed the cast put on by 

Dr. Murphy in order to completely evaluate Halse's injuries 

and to get good X-rays. The X-rays indicated that there was 

some displacement of the proximal fracture fragment which 

resulted in some relative shortening of the ulna; and that 

there was some callus at that site and that the distal 

fracture site showed "healing." The medical records also 

stated that Halse was having considerable difficulty with 

elbow pain due to protrusion of the pin; and that Halse could 

not flex her elbow more than 30 degrees due to the pain. 

Dr. ~ennings wrote to Dr. Murphy stating his opinion 

that Halse would probably recover from the nerve palsy and 

that Halse had "not developed significant deformity" from 

this palsy. Dr. Jennings recommended that the pin be removed 

from the forearm because it was such an irritation to her. 

He also recommended that if the fracture were not stable 

enough without immobilization, Halse should be placed in an 

arm cast again; and that if the proximal fracture fragment 

appeared to be significantly unstable, he would open it, 

realign it and fix it with a plate and screws. Dr. Jennings 

had his occupational therapist fabricate a resting splint to 

be worn at night which would hold Halse's wrist in slight 

extension and support the joints at 45 degree flexion. Dr. 

Jennings encouraged active motion of the wrist and fingers to 

regain range of movement. 
Two weeks after consulting Dr. Jennings, Halse again saw 

Dr. Murphy. One week after that, on March 31, 1981, Halse 

was taken to the operating room at St. James where Dr. Murphy 

removed the pin under regional anesthetic. The hospital 

medical records indicate that a stab wound was made over the 

tip of the rod; an extractor was then screwed into the rod; 

and it was removed by means of a mallet. The wound was 

irrigated and the skin was closed with two sutures of 

stainless steel wire. A sterile dressing was applied and 

Halse left the operating room awake and in good condition to 

go to the ward. No bleeding occurred. Dr. Murphy did not 

recast the arm but gave Halse a removable splint to use as 

she deemed necessary. 

Dr. Murphy continued to see Halse after the removal of 

the pin. It is at this stage that Halse, and subsequently 

Dr. Humberger, allege that Dr. Murphy was negligent. Halse 

asserts that Dr. Murphy did not X-ray the arm after removal 

of the rod, nor did he palpate the arm. Halse asserts that 

had he done so the unhealed fracture in the arm would have 

been detected. Dr. Humberger, in his late affidavit, states 

that if these facts are true, Dr. Murphy was negligent. 

Halse moved to Great Falls in the summer of 1981. while 

there, she consulted Dr. ~ennings' associate, Dr. Bloemendaal 

and a Great Falls surgeon, Dr. Mungas. 

On September 9, 1981, she was seen by Dr. Murphy in 

Bozeman and again on October 23, 1981. Murphy's records show 

no complaint about her arm. 

One year later, on October 29, 1982, Halse consulted 

physicians at the orthopedic department of the university of 

Washington. She was seen there by Dr. Theodore Greenlee. 

Dr. Greenlee X-rayed her arm and found that there was a 

non-union of the proximal ulnar fracture and possibly of the 

middle one-third of the distal ulnar fracture. He 
recommended a bone graft and plating of her fracture. On 

November 9, 1982, Halse underwent surgery at the University 

of Washington. The two ulnar non-union sites were debrided 

and plates were attached to the bone. 

On April 29, 1983, Halse was seen by Dr. Humberger in 

his office. Dr. Humberger's records indicate that Halse's 

wound was well healed. However, Dr. Humberger indicated that 

Halse had contracted osteomyelitis and that there "is a 

potential for the infection to flare up at any time." Dr. 

Humberger discontinued Halsers antibiotic treatment for the 

osteomyelitis on June 10, 1983. On July 22, 1983, Halse 

returned to Dr. Humberger with complaints of an aching 

sensation and tenderness in the ulna. The X-rays showed the 

wound to be well healed but there was a small lytic area 

beneath the plate which had been attached in Seattle. For 

this reason, Humberger put Halse back on Tegopen, a 

penicillin drug. 

Humberger suggested removal of the plates and curretage 

of the bones. This was done on August 10, 1983. On August 

22, 1983, the surgical staples were removed. The wound 

appeared well healed. Halse was advised, "warm soaks, active 

range of motion exercises, proper wound care, minimal 

resistance activity." Two weeks later, on September 6, Dr. 

Humbergerrs records indicate that the wound was healing well. 

He did not feel X-rays were necessary. He advised the same 

care of the arm as before and asked Halse to come back in one 

month. 

One month later, October 6, Dr. Humberger's records 

indicate that Halse bumped her arm while driving. She now 

had a transverse crack across the ulna and a small fracture 

through one of the screw holes. Dr. FIumberger advised her to 

continue wearing her present splint, to perform range of 
motion exercises to the elbow and to remove the splint while 

bathing. 

On October 25, Halse was started back on Tegopen again 

by Dr. Blackwood, an associate of Dr. Humberger, because she 

felt "the infection might be back." 

On November 3, Halse entered Dr. Humberger's office 

without her brace and said she had no symptoms referable to 

her forearm. On physical examination, she was tender over 

the ulna but had good flexion/extension. The X-rays showed 

that the midshaft ulna fracture was in good position and 

alignment, but the bone was not healed. Dr. Humberger 

advised Halse of the necessity of wearing the splint to 

protect the ulna in hope that it would heal. He expressed 

his disappointment that Halse had not been wearing the 

splint. He noted that Halse was very discouraged in regard 

to the prolonged treatment necessary for her arm. Dr. 

Humberger advised her to wear her brace to protect her arm. 

On December 13, 1983, X-rays showed that the new 

fracture was not healing. 

On April 30, 1984, Halse commenced this action against 

Dr. Murphy. An answer was filed on August 8, 1984. 

Extensive discovery took place over a two year period. On 

July 16, 1987, appellant requested a trial date. rial was 

set for September 22, 1987. On August 28, respondent made a 

motion for summary judgment. On September 1, twenty-one days 

before the trial date, Halse's counsel withdrew. Two months 

later, on November 23, 1987, Attorney Michael Wheat 

requested, in writing, 30 additional days to evaluate Halse's 

case and to respond to respondent's motion for summary 

judgment. On January 1, 1988, respondent again noticed his 

motion for summary judgment and the motion was heard on 

February 5, 1988. Appellant again requested additional time 

to have "the file reviewed by a physician for an opinion. " 
The court again gave appellant thirty additional days (until 

March 6, 1988) to respond to the summary judgment motion. 

On March 10, 1988, the respondent's motion for summary 

judgment was granted. On April 7, 1989, Dr. Frank Humberger, 

in a written affidavit, stated, it was his opinion that, if 

facts were correct, that it was his opinion that Dr. Murphy 

was negligent in his care and treatment of Halse. 

On April 21, 1988, appellant's counsel filed a motion 

for relief from the judgment. Michael Wheat, appellant's 

counsel, testified by affidavit that Halse had made every 

effort to locate expert testimony in her medical malpractice 

case. Halse was unable to elicit an opinion from Dr. 

Humberger concerning Dr. Murphy's care and treatment of her. 

Appellant's counsel contacted various medical doctors in 

California and New Mexico in an effort to obtain an expert 

opinion but to no avail. 

Halse's motion for relief from final judgment was under 

the provisions of Rule 60(b), M.R.Civ.P. That rule provides: 

On motion and upon such terms as are just, the 

court may relieve a party or his legal. 

representative from a final judgment, order, or 

proceeding for the following reasons: 

. . . (2) newly discovered evidence which by due 

diligence could not have been discovered in time to 

move for a new trial under Rule 59(b). 

Rule 59 (b) provides : 

-- Time for motion. A motion for a new trial shall be 

served not later than 10 days after service of 

notice of the entry of the judgment. 

The first issue before this Court is whether an opinion 

of a trial expert, offered for the first time after final 

judgment and based upon a fact asserted by the plaintiff and 

within her knowledge prior to the judgment, can constitute 

"newly discovered evidence" under Rule 60, M.R.Civ.P. We see 
no reason to distinguish between opinion evidence and other 

kinds of evidence, if the opinion evidence itself meets the 

tests ordinarily required of newly discovered evidence. 

This case is not a judgment as a result of a trial on 

the merits. The negligence issue presented by Halse was 

never litigated. The purposes of our Rules of Civil 

Procedure are to speed up court processes and facilitate the 

deciding of cases on their merits. 

The new rules encourage disposition of cases quickly and 

on the merits, and it is a serious matter when a party moves 

to have a case disposed of on grounds other than the merits. 

Rambur v. Diehl Lumber Co. (1964), 144 Mont. 84, 394 P.2d 

6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore's Federal 

Practice 9 60.23 [3] (2d ed. 1983) states: 

. . . [I] f new evidence is discovered, or by due 

diligence could have been, in time for a new trial 

under Rule 59(b), then a motion for a new trial 

must be made within that time; and that party 

cannot delay beyond that time and seek relief under 

Rule 60 (b) (2) . . . . If so, the motion must be made 

within a reasonable time, and, in any event, not 

later than one year after the "judgment, order or 

proceeding was entered or taken." 

6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore's Federal 

practice 9 60.23 [4] (2d ed. 1983) states: 

[F] or relief to be granted under Rule 60 (b) (2) , the 

failure to produce the evidence at the trial must 

not have been caused by the moving party's lack of 

due diligence. 

The failure to produce the evidence at the trial must 

not have been caused by the moving party's lack of due 

diligence. See Kansas City Area Transportation v. State of 

~issouri (8th Cir. 1981), 640 F.2d 173. For years, ~alse's 

counsel sought extensions to obtain an expert who would 
testify in her behalf. would be unjust for this Court 

deny Halse her day in court. 

The history of Rule 59(b) has aided us in making this 

decision. 

Original Rule 59(b) made an exception for a motion 

for new trial on the ground of newly discovered 

evidence by providing that such a motion could be 

made within the time allowed for appeal, which, at 

that time, was three months as a general 

proposition. The grounds for substantial relief 

from a final judgment under original Rule 60(b) did 

not originally include newly discovered 

evidence . . .; The 1946 revision of the Rules did 

the following things. It eliminated the exception 

in Rule 59(b) relative to a motion for a new trial 

on the ground of newly discovered evidence, so that 

a motion under Rule 59 on this ground, as on any 

other ground, must be served not later than 10 days 

after the entry of judgment. (~mphasis added.) 

. . . If new evidence is discovered, or by due 

diligence could have been, in time to move for a 

new trial under Rule 59 then a party is subject to 

the 10 day limit of Rule 59; and such a timely 

motion destroys the finality of the judgment for 

purposes of appeal. Otherwise a party may move 

under Rule 60(b) within a reasonable time, but not 

more than one year after the judgment was entered. 

Such a motion under 60(b) does not affect the 

finality of the judgment or suspend its operation. 

6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore's Federal 

Practice 9 59.04 (2d ed. 1983). 

The evidence must be admissible and credible, must be of 

such a material and controlling nature as will probably 

change the outcome. 6A J. Moore, J. Lucas & G. Grotheer, Jr. 

Moore's Federal practice 9 60.23[4]. Twenty-four days after 

respondent's summary judgment was granted, Dr. Hurnberger 

testified by signed affidavit that when he gave his 

deposition testimony on December 22, 1986, he was unable to 

render an opinion concerning Kristie's case because he had 

not had the opportunity to review Dr. Murphy's notes and 
records. This fact shows the requisite diligence on Halse's 

part. 

The belated evidence submitted by Dr. Humberger would 

have precluded the granting of the summary judgment. For 

this reason, the summary judgment must be reversed. 

The second issue before this Court is whether this 

expert opinion, if it is "newly discovered evidence," would 

change the outcome where it simply shows that the defendant 

was negligent but fails to show that such negligence was the 

proximate cause of any injury. In our court system, it is 

the jury, not witnesses, who decide such questions of 

negligence. 

We reverse the judgment and remand this action to the 

District Court for further proceed 

Justlce 

We Concur: \ ,,' 

Chief ~ustice 
Mr. Justice John Conway Harrison, dissenting. 

I dissent and would find that the af f idavit testimony 

of Dr. Humberger does not constitute "newly discovered 

evidence" which entitles appellant to relief from judgment. 

In December, 1980, Halse was involved in an automobile 

accident in which she suffered, among several other injuries, 

a tri-segmental fracture of her right forearm. Halse was 

treated by Dr. Murphy, an Orthopedic surgeon practicing in 

Butte, Montana. Dr. Murphy treated the fracture by placing a 

metal rod through the ulna. After numerous medical visits to 

Dr. Murphy and after examination by another Orthopedic 

surgeon in Great Falls, Montana, Dr. Murphy removed the rod 

from Halse's arm on March 31, 1981. 

Halse was examined on October 29, 1982, by Dr. Theodore 

Greenlee of University Hospital, Seattle, Washington. From 

x-rays, Dr. Greenlee discovered Halse had a "nonunion of her 

proximal ulna fracture as well as possibly a middle 

one-third distal one-third ulnar fracture. I' On November 9, 

1982, Dr. Greenlee repaired the two nonunion sites with 

plates and screws. After returning to Montana, Halse was 

under the care of Dr. Frank Humberger, an Orthopedic surgeon 

practicing in Bozeman, Montana. 

In October, 1983, Halse bumped her right arm while 

traveling to Denver, Colorado and suffered a transverse crack 

across the ulna. However, this crack apparently is unrelated 

to the original fractures suffered in the 1980 automobile 

accident. Halse remained under the care of Dr. Humberger for 

the treatment of the fracture. 

Halse instituted a medical malpractice action against 

Dr. Murphy on May 3, 1984. The Complaint alleged Dr. Murphy 

removed the metal rod before her arm healed, and that Dr. 

Murphy negligently failed to x-ray or otherwise determine 
whether the fracture had healed before he removed the metal. 

rod. Additionally, Halse alleged Dr. Murphy negligently 

failed to externally immobilize the arm so as to permit it to 

heal, but merely gave Halse a splint to wear as needed. 

After interrogatories were propounded and depositions 

noticed and taken by both parties, the preliminary pretrial 

order set an August 7, 1987 deadline for notices of 

depositions. On August 25, 1987, Murphy moved for summary 

judgment on the grounds that Halse's claim "fails for 

fundamental want of proof" because none of Halse's expert 

witnesses testified applicable standards of medical care were 

violated. 

On September 3, Halse's original counsel moved to 

withdraw from the case and for a continuance. The District 

Court vacated the September 4 hearing date scheduled for 

Murphy's summary judgment motion. On January 22, 1988, 

counsel for Murphy rescheduled the hearing for February 5, 

1988, and sent notice of the hearing to Halse's original 

counsel. On February 4, attorney Michael Wheat moved the 

court for a continuance and submitted his affidavit in which 

he stated he had not yet decided whether to represent Halse. 

He stated he was attempting to find a doctor who would review 

the medical records and render an opinion about Murphy's care 

and treatment of Halse. 

During the brief hearing on February 5, 1988, Mr. Wheat 

again informed the Judge he was not counsel of record but 

need-ed time to find an expert witness. 

THE COURT: Mr. Wheat said they have an 

expert that might qualify [to testify 

against Dr. Murphy]. 

MR. WHEAT: This is an expert independent 

of any of the experts that Mr. Buxbaum 

has had notice of up to this date. 
THE COURT: OK. Well, something I don't 

see is an order dismissing . . . [original counsel] . You haven 't taken 

the position of being counsel of record. 

MR. WHEAT: No. 

THE COURT: I think in all fairness to 

the Plaintiff here, we are going to allow 

Mr. Wheat time to confirm that doctor. 

When can you do that, Mr. Wheat? 

MR. WHEAT: I think it can be done within 

thirty (30) days . . . I think we can 

easily be prepared to know within thirty 

days. 

THE COURT: I will give you a continuance 

here but I would like to hear in thirty 

(30) days. 

MR. WHEAT: You will, your honor. 

THE COURT: Nevertheless if you don't 

come up with some evidence from an expert 

that there is a case of malpractice here, 

you are going to be out of Court. 

MR. WHEAT: I understand that. 

THE COURT: There is no chance going to 

trial if you can't come up with an 

expert. 

MR. WHEAT: Absolutely, your honor, and I 

have explained that to Mrs. Halse. She 

understands. 

THE COURT: OK, you have thirty (30) 

days. 

When no evidence was forthcoming, Judge Sullivan 

granted Murphy's motion for summary judgment on March 10, 
1988. Final judgment was entered in favor of Murphy on March 

14, 1988. 

On April 22, 1988, Halse filed a Motion for Relief From 

Judgment, pursuant to Rule 60(b), M.R.Civ.P., "on the 

strength of her Affidavit . . . and the newly discovered 

evidence set out in the Affidavit of Frank W. Humberger, 

M.D. . . . " On May 2, 1988, the District Court ordered 

that Murphy would have until May 31, 1988, to respond to the 

motion. 

Murphy responded to the motion by brief on May 19, 1988 

and the District Court ordered a July 1, 1988 hearing on the 

motion. On June 27, 1988, Murphy requested the July 1 

hearing be vacated. Under Rule 60(c), Murphy argued, the 

motion was deemed denied since 45 days had elapsed from the 

date the Rule 60(b) (2) motion was made, which put the motion 

out of the District Court's jurisdiction. 

On June 29, 1988, the District Court vacated the 

hearing on the ground the motion was deemed denied. Halse 

appealed the denial of her Rule 60(b) (2) motion to this 

Court. 

Rule 60(b), M.R.Civ.P., provides in part: 

On motion and upon such terms as 

are just, the court may relieve a party 

or his legal representative from a final 

judgment, order, or proceeding for the 

following reasons: 

( 2) newly discovered evidence 

which by due diligence could not have 

been discovered in time to move for a new 

trial under Rule 59(b) . . . 

In Kartes v. Kartes (1977), 175 Mont. 210, 214, 573 

P.2d 191, 193, this Court stated the basic criteria for 
determining whether to grant relief from judgment under Rules 

59 and 60, M.R.Civ.P.: 

1. The substantial rights of the 

party moving for new trial must be 

materially affected. 

2. The "newly discovered" evidence 

sought to be introduced must be material 

to the issue involved in the trial. 

3. The "newly discovered" evidence 

must be such as could not have been 

discovered and produced - at trial with -- the 

exercise of reasonable - (or "due", per 

-- Rule 60, M:R.C~V,P.) diligence, or could 

--- not have been discovered by reasonable 

diligence in time to move fora new trial 

under Rule 59, M.R.Civ.P. (Emphasis 

added. ) 

Additionally, in Kerrigan v. Kerrigan (1943), 115 Mont. 

136, 144, 139 P.2d 533, 535, this Court correctly noted that 

the burden is on the moving party to show: 

(1) That the evidence must have come to 

the knowledge of the applicant since the 

trial; (2) that it was not through want 

of diligence that it was not discovered 

earlier; (3) that it is so material that 

it would probably produce a different 

result upon another trial; (4) that it 

is not cumulative merely--that is, does 

not speak as to facts in relation to 

which there was evidence at the trial 

The essence of Halse's "newly discovered" evidence is 

the affidavit testimony of Dr. Humberger, in which he gives 

an opinion based upon circumstances which were available for 

his consideration prior to the grant of summary judgment. 

Humberger's affidavit states in part: 

3. On December 22, 1986, I gave 

deposition testimony concerning my care 

and treatment of Kristie. During that 

deposition, I was unable to render an 
opinion concerning the care and treatment 

of Kristie by Dr. James P. Murphy because 

I had not had the opportunity to review --- 

- Dr. ~ur~h~'smedica1 notes andrecords . 

4. Since the date of my deposition, I 

have reviewed all of Dr. ~urph~'s medical 

notes and records related to his care of 

Kristie, including an x-ray taken on 

March 24, 1981, and --- I have also reviewed 

the Affidavit - of Kristie. wherein she 

states -- that Dr. Murphy faiied to palpate 

-- her arm following removal of ---- the rod on 

March 31, 1981. Based on my review of 

the ~aEh 24, 1981, x-ray of Kristiels 

arm, Dr. Murphy's medical notes and 

records, and Kristiel s Affidavit 

testimony that Dr. Murphy did not 

clinically assess the stability of her 

arm by palpating her arm following 

removal of the rod. and assumincr - this 

---- fact to be true, then it is my opinion 

that Dr. Murphy was negligent in his care 

and treatment of Kristie, and failed to 

exercise that degree of care and 

skillfulness ordinarily used in like 

cases by other doctors practicing in Dr. 

Murphy's specialty. (Emphasis added. ) 

Halse claims that, despite her "previous diligent 

attempts to obtain an opinion," Dr. Humberger would not 

render an opinion prior to entry of summary judgment. 

However, Humberger's own affidavit states that he was unable 

to render an opinion because he did not have Murphy's notes 

and records. I can only assume that Humberger would have 

rendered his opinion had he been given the opportunity to 

review those records and consider the testimony of Halse. 

There is no evidence before this Court showing that 

Humberger was asked to give his opinion based upon a 

hypothetical set of circumstances prior to entry of judgment. 

If, based upon those hypothetical circumstances, Humberger 

had been of the opinion Murphy was not negligent, but, 
subsequent to the entry of summary judgment, changed that 

opinion, Halse could more plausibly argue this constitutes 

"newly discovered" evidence. However, notwithstanding 

Halse ' s label of "conspiracy of silence, " Humberger ' s 

opinion, whatever it may have been, could have been 

discovered prior to entry of summary judgment. 

Halse argues the District Court's deemed denial of her 

Rule 60 (b) (2) motion constitutes an abuse of discretion. I 

disagree. It is my conclusion that Hwnberger's affidavit 

testimony does not constitute newly discovered evidence under 

Rule 60(b) (2), M.R.Civ.P., and I would find no abuse of 

discretion. 

I would affirm the decision of the District Court. 

Mr. Chief Justice 

Gulbrandson join in 

Conway Harrison. 

J. 

the 

A. Turnag/ land Mr. Justice L. C. 

foregoing i sent of Mr. Justice John