Gettel v. Handwerk , 2007 MT 18N ( 2007 )

No. DA 06-0002
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 18N
____________________________________
MARY GETTEL and STEVEN GETTEL,
Plaintiffs and Appellants,
v.
FRANCIS HANDWERK, M.D., Individually, and
GREAT FALLS CLINIC,
Defendants and Respondents.
____________________________________
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. BDV 01-845,
The Honorable Julie Macek, Presiding Judge.
COUNSEL OF RECORD:
For Appellants:
David B. Gallik, Attorney at Law, Helena, Montana
For Respondents:
Cathy J. Lewis and Neil E. Ugrin, Ugrin, Alexander, Zadick & Higgins,
Great Falls, Montana
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Submitted on Briefs: October 25, 2006
Decided: January 29, 2007
Filed:
_____________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be
cited as precedent. Its case title, Supreme Court cause number and disposition shall be
included in this Court’s quarterly list of noncitable cases published in the Pacific
Reporter and Montana Reports.
¶2 Plaintiffs Mary and Steve Gettel (Gettels) appeal an Order from the Eighth
Judicial District, Cascade County, granting summary judgment to Defendants Francis
Handwerk, M.D., and Great Falls Clinic (Defendants). We affirm.
¶3 In September 2001, the Gettels filed their complaint seeking monetary damages
for personal injuries they claim were sustained during a January 1998 surgical procedure
performed on Mary by Dr. Handwerk. In December 2004, Defendants filed their first
discovery request seeking expert disclosure. Defendants followed this with a second
discovery request in February 2005. In response, Plaintiffs moved for and were granted
an extension of time to respond until May 2005. Gettels’ May 2005 responses to
Defendants’ discovery requests did not name an expert witness. Later that summer,
Defendants sent a letter to Plaintiffs again requesting disclosure of experts. Plaintiffs still
did not name an expert witness.
¶4 In August 2005, Defendants moved for summary judgment based in part on the
Gettels’ failure to name an expert witness, as is required to establish a prima facie
medical malpractice case. At the hearing on Defendants’ motion, Plaintiffs, appearing
pro se, provided a document entitled “Plaintiffs’ Supplanted [sic] Response to
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Defendants’ Second Discovery Requests to Plaintiffs.” Included was a response to an
interrogatory purporting to identify one Joseph C. Ptasinski, M.D., as an expert for the
Plaintiffs. Also filed was a letter from Ptasinski stating that the 1998 surgical procedure
performed on Mary Gettel, “did not meet the standard of care.” This letter was not in
affidavit form, nor did it do anything to establish Dr. Ptasinski’s competence to testify as
a medical expert. The letter did not specify what materials Ptasinski had reviewed, what
the appropriate standard of care was, the basis for Ptasinski’s opinion that the standard of
care was not met, and whether the failure to meet the standard of care caused Mary
Gettel’s injuries.
¶5 Gettels claim that the letter was a supplemental discovery response pursuant to M.
R. Civ. P. 26(e). Thus, according to the Gettels’ logic, by considering answers to
interrogatories, as provided by M. R. Civ. P. 56(c), and drawing all inferences in favor of
the Plaintiffs as the non-moving party, the letter created a genuine issue of material fact
which precluded the District Court from granting summary judgment for the Defendants.
¶6 We review a district court’s summary judgment ruling de novo. Cape-France
Enter. v. Estate of Peed, 2001 MT 139, ¶ 13, 305 Mont. 513, ¶ 13, 29 P.3d 1011, ¶ 13. In
doing so, we apply the same criteria as the district court in M. R. Civ. P. 56. Stutzman v.
Safeco Ins. Co., 284 Mont. 372, 376, 945 P.2d 32, 34 (1997). Summary judgment shall
be granted if there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. M. R. Civ. P. 56(c).
¶7 The letter purportedly from Dr. Ptasinski is not an affidavit which satisfies the
requirements of M. R. Civ. P. 56(e). Nor does it establish Dr. Ptasinski’s competency to
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testify, another requirement of M. R. Civ. P. 56(e). Also, it was filed too late. A party
opposing a motion for summary judgment must serve opposing affidavits prior to the day
of the hearing. M. R. Civ. P. 56(c); Konitz v. Claver, 1998 MT 27, ¶ 34, 287 Mont. 301,
¶ 34, 954 P.2d 1138, ¶ 34. Gettels did not provide Ptasinski’s letter until the actual day
of the summary judgment hearing.
¶8 M. R. Civ. P. 26(b)(4)(A)(i), regarding expert discovery, requires that a party
disclose who they plan to have testify as an expert witness, the subject matter about
which the expert is expected to testify, the substance of facts and opinions to which the
expert will testify, and a summary of the grounds for each opinion. Ptasinski’s letter does
not provide this information.
¶9 The letter naming Dr. Ptasinski as an expert was insufficient to create a material
issue of fact. Summary judgment in favor of Defendants was appropriate.
¶10 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE
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