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, Inand forthe County of silver Bow, The HonorableMark P. Sullivan, ,Tudge presiding.
COUNSEL OF RECORD:
ForAppellant:
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.

AppellantKristieAnn Halse appeals to this Court froma summary judgment of the Second Judicial ~istrict, Silver Bow County, in favor of respondent,Dr. JamesMurphy on amedical malpractice actionwhich Halsehad instituted onMay 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 inserta 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 functionreturned and shewas transferred back to St. James Hospital in Butte where "shewas 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. InMarch, 1981, twoand ahalf months afterher fracture
was repaired, Halse began experiencing palsy in her right hand. Dr. Murphy referred her to Dr. Charles Jennings, an orthopedic surgeon practicing inGreat 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 therewas 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 elbowpain due toprotrusion of the pin; and thatHalse could not flex her elbow more than 30 

### degrees due to the pain. Dr. ~enningswrote to Dr. Murphy stating his opinion that Halse would probably recover from the nerve palsy and that Halse had "not developed significant deformity" from thispalsy. Dr. Jennings recommended that thepin 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 itwith 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 thewrist and fingers to regain range ofmovement.Two weeks after consultingDr. Jennings,Halse again saw Dr. Murphy. One week after that, on March 31, 1981, Halse

was taken to the operating room at St. Jameswhere Dr. Murphy removed the pin under regional anesthetic. The hospital medical records indicate that a stabwound 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 shedeemed 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. Halsemoved to Great Falls in the summer of 1981. while there, she consulted Dr. ~ennings' associate,Dr. Bloemendaal and a GreatFalls 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 abouther 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. Herecommended 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 siteswere 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 waswell 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 Halsersantibiotic 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 appearedwell healed. Halse was advised, "warmsoaks,active range of motion exercises, proper wound care, minimal resistance activity." Two weeks later, on September 6,Dr. Humbergerrsrecords indicate that the wound was healingwell. He did not feel X-rays were necessary. He advised the same

care of the arm asbefore and asked Halse to comeback 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 screwholes. Dr. FIumberger advised her to continue wearing her present splint, to perform range ofmotion exercises to the elbow and to remove the splintwhile bathing. On October 25, Halse was started back on Tegopen again by Dr. Blackwood, an associate of Dr. Humberger,because she felt "the infectionmight 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 fracturewas 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 counselwithdrew. Two months later, on November 23, 1987, Attorney Michael Wheat requested, inwriting, 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 judgmentwas granted. OnApril 

### 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 inhis care and treatmentof 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 medicalmalpractice 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 judgmentwas under the provisions of Rule 60(b),M.R.Civ.P. That ruleprovides: 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 trialunder Rule 59(b).
Rule 

### 59(b)provides: Time for motion. Amotion for a new trial shallbe 

### -- served not later than 10 days after service of notice of the entry of the judgment.
The first issue before this Court iswhether an opinion of a trial expert, offered for the first time after final judgment and based upon a fact asserted by theplaintiff and within her knowledge prior to the judgment, can constitute "newly discovered evidence"under Rule 60,M.R.Civ.P. We seeno reason to distinguish between opinion evidence and other kinds of evidence, if the opinion evidence itselfmeets the tests ordinarilyrequired ofnewly 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 courtprocesses and facilitate the deciding of cases on theirmerits. The new rules encouragedisposition of cases quickly and

on themerits,and it is a serious matter when a party moves to have a case disposed of on grounds other than themerits. 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 cannotdelay beyond that time and seek relief under Rule 60(b)(2)

# .. .. If so, the motionmust 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."
6AJ. Moore, J. Lucas & 

### G. Grotheer, Jr.Moore's Federal practice 9 60.23[4] (2ded. 1983) states: [F] or relief tobe granted under Rule 60(b)(2)

## ,the failure to produce the evidence at the trial must not have been caused by themoving 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 Transportationv. State of ~issouri(8thCir. 1981), 640 F.2d 173. For years, ~alse's counsel sought extensions to obtain an expert who wouldtestify 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 amotion 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 judgmentunder originalRule 60(b)did not originally include newly discovered evidence

# . ..; The 1946 revisionof 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 judgmentwas 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 (2ded. 1983). The evidence must be admissible and credible, must be of such a material and controlling nature as will probably change the outcome. 6AJ. 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 andrecords. 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 judgmentmust 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 DistrictCourt for furtherproceed

Justlce We Concur:

\ ,,'

Chief ~ustice

### Mr. Justice JohnConwayHarrison,dissenting.

I dissent and would find that the affidavit 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 inwhich 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 fractureby placing a metal rod through theulna. After numerousmedical visits to Dr. Murphy and after examination by another Orthopedic surgeon in Great Falls, Montana, Dr. Murphy removed the rod fromHalse's arm onMarch 31, 1981. Halsewas examined onOctober 29, 1982,by Dr. Theodore Greenlee of University Hospital, Seattle,Washington. From x-rays, Dr. Greenlee discovered Halse had a "nonunionof 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 inBozeman,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 remainedunder the care ofDr. Humberger for the treatmentof the fracture. Halse instituted a medical malpractice action against Dr. Murphy onMay 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 topermit it to heal,butmerely gave Halse a splint to wear asneeded. 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 standardsofmedical 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 submittedhis affidavit in which he stated he had not yet decidedwhether to representHalse. He statedhewas attempting to find adoctorwhowould review themedical recordsand renderan opinion aboutMurphy's care and treatmentof Halse. During the brief hearing on February 5, 1988,Mr. Wheat again informed the Judge he was not counsel of record but need-edtime to find an expertwitness. THE COURT: Mr. Wheat said they have an expert that might qualify [to testify againstDr. Murphy].
MR. WHEAT: This isan 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 canyoudo that,Mr. Wheat?
MR. WHEAT: I

### think itcanbe donewithin thirty (30) 

### days 

# .. . I 

### think we can easily be prepared to knowwithin thirty days.

THE COURT: I

### will giveyoua continuance here but I 

### would like to hear in thirty

(30)

### days.
MR. 

### WHEAT: Youwill, yourhonor.

THE COURT: Nevertheless 

### if you don't come up with some evidence from an expert that there is

### a case ofmalpractice here, you are going tobe 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. Finaljudgment was enteredin favor of Murphy on March 14, 1988. On April 22, 1988, Halse fileda Motion forRelief 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 thatMurphy would have untilMay 31, 1988, torespond tothe motion. Murphy responded tothemotionby brief on May 19, 1988 and theDistrict Court ordered a July 1, 1988hearing 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)motionwas made, which put themotion outof theDistrictCourt'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 inpart: 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 intimetomove fora new trialunder 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 "newlydiscovered" evidence sought to be introducedmust be material to the issue involved in the trial.
3. The "newlydiscovered" evidence must be such as could not have been discovered andproduced 

### - at trialwith 

## -- 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 tomove foranew trial under Rule 59, M.R.Civ.P. (Emphasis added.) 

### Additionally, in Kerriganv. Kerrigan (1943),115Mont. 136, 144, 139 P.2d 533, 535, this Court correctly noted that theburden ison themovingparty to show: (1) That the evidencemust have come to the knowledge of the applicant since the trial; (2) 

### that itwas not throughwant of diligence that it was not discovered earlier; (3) that it is somaterial 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 circumstanceswhichwere 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 ofKristieby 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 allofDr. ~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 

## ---- thatDr. Murphywas negligent inhis 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 thathe 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 setof circumstancesprior 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 discoveredprior 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 doesnot constitutenewly discovered evidenceunder 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

### ofMr. Justice John