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IN THE SUPREME COURT OF THE STATE OF MONTANA
KRISTIE ANN HALSE,
p l a i n t i f f and A p p e l l a n t ,
-vsJ A M E S P . MURPHY,
Defendant and Respondent.
~ i s t r i c t o u r t o f t h e S e c o n d ~ u d i c i a l~ i s t r i c t ,
I n a n d f o r t h e C o u n t y o f s i l v e r Bow,
The H o n o r a b l e Mark P . S u l l i v a n , ,Tudge p r e s i d i n g .
COUNSEL OF RECORD:
M i c h a e l E . Wheat; Cok & W h e a t , Rozeman, Montana
D o u g l a s Buxbaum; P o o r e , R o t h & ~ o b i n s o n ,B u t t e ,
Submitted on R r i e f s :
J u n e 8 , 1989
3 , 1989
Mr. Justice John C.
Sheehy delivered the Opinion of the
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 ~onteggias 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
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 ~ospitalin Helena
on December 23, 1980 because she showed persistent renal
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
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
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
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.
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
A sterile dressing was applied and
stainless steel wire.
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
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
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
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
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
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.
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
One month later, October 6, Dr. Humberger's records
indicate that Halse bumped her arm while driving.
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
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.
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.
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
An answer was filed on August 8, 1984.
Extensive discovery took place over a two year period.
July 16, 1987, appellant requested a trial date.
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
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
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 :
-- 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 negligence issue presented by Halse was
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 . 2 d
6A J. Moore, J. Lucas & G. Grotheer, Jr. Moore's Federal
Practice 9 60.23  (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
If so, the motion must be made
Rule 60 (b)(2)
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  (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
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
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
The grounds for substantial relief
from a final judgment under original Rule 6 0 ( b ) did
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.
. . .;
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. 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
This fact shows the requisite diligence on Halse's
The belated evidence submitted by Dr. Humberger would
have precluded the granting of the summary judgment.
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
We reverse the judgment and remand this action to the
District Court for further proceed
Mr. Justice John Conway Harrison, 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 in which she suffered, among several other injuries,
a tri-segmental fracture of her right forearm.
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
fracture as well as possibly a middle
On November 9 ,
one-third distal one-third ulnar fracture.
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.
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
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
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
You haven 't taken
the position of being counsel of record.
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
THE COURT: I will give you a continuance
here but I would like to hear in thirty
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.
I understand that.
THE COURT: There is no chance going to
trial if you can't come up with an
MR. WHEAT: Absolutely, your honor, and I
have explained that to Mrs. Halse. She
When no evidence was forthcoming, Judge Sullivan
granted Murphy's motion for summary judgment on March 10,
F i n a l judgment was e n t e r e d i n f a v o r o f Murphy on March
1 4 , 1988.
On A p r i l 22, 1 9 8 8 , H a l s e f i l e d a Motion f o r R e l i e f From
. . . and
F r a n k W.
t h e D i s t r i c t Court ordered
t h a t Murphy would h a v e u n t i l May 31, 1988, t o r e s p o n d t o t h e
Murphy r e s p o n d e d t o t h e m o t i o n by b r i e f on May 1 9 , 1988
and t h e D i s t r i c t C o u r t o r d e r e d a J u l y 1, 1988 h e a r i n g on t h e
h e a r i n g be
6 0 ( c ) , Murphy
m o t i o n was deemed d e n i e d s i n c e 45 d a y s had e l a p s e d from t h e
d a t e t h e R u l e 6 0 ( b ) ( 2 ) m o t i o n was made, which p u t t h e m o t i o n
out of the D i s t r i c t Court's jurisdiction.
h e a r i n g o n t h e g r o u n d t h e m o t i o n was deemed d e n i e d .
R u l e 6 0 ( b ) , M.R.Civ.P.,
provides i n part:
On m o t i o n and upon s u c h terms a s
a r e j u s t , t h e c o u r t may r e l i e v e a p a r t y
o r h i s l e g a l r e p r e s e n t a t i v e from a f i n a l
judgment, o r d e r , o r p r o c e e d i n g f o r t h e
which by due d i l i g e n c e c o u l d n o t have
been d i s c o v e r e d i n t i m e t o move f o r a new
t r i a l under Rule 5 9 ( b )
. . .
( 1 9 7 7 ) , 175 Mont.
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
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 - trial with the
exercise o f
reasonable - "due", per
diligence, or could
- -60, MRCVP) discovered by reasonable
not have been
--diligence in time to move f o r a new trial
under Rule 59, M.R.Civ.P.
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:
1986, I gave
deposition testimony concerning my care
and treatment of Kristie.
deposition, I was unable to render an
opinion concerning the care and treatment
of Kristie by Dr. James P. Murphy because
- - - not had the opportunity to review
Dr. ~ u r ~ h ~ ' s m e d i cnotes andrecords
4. Since the date of my deposition, I
have reviewed all of Dr. ~ u r p h ~ '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 - Kristie. wherein she
states - -Dr. Murphy faiied to palpate
of the rod
- - following removal - - - -on
March 31, 1981.
Based on my review of
the ~ a E h 4 1981, x-ray of Kristiels
arm, Dr. Murphy's medical notes and
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
- - -Murphy was negligent in his care
and treatment of Kristie, and failed to
skillfulness ordinarily used in like
cases by other doctors practicing in Dr.
(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
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.
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
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
I would affirm the decision of the District Court.
Mr. Chief Justice J. A. Turnag/ land Mr. Justice L . C.
Gulbrandson join in the foregoing i sent of Mr. Justice John