Norris v. Fritz

February 7 2012
DA 10-0481
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 27JOE and KATHRYN NORRIS,
INDIVIDUALLY AND ON BEHALF
OF THEIR MINOR SON, T.M.N.,
Plaintiffs and Appellants,
v.
DR. BLAYNE FRITZ,
Defendant and Appellee.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDV 2005-287
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Linda M. Deola; Jonathan R. Motl; Morrison, Motl & Sherwood, PLLP,
Helena, Montana
For Appellee:
Gary Kalkstein; C.J. Johnson; Kalkstein, Johnson & Dye, P.C., Missoula,
Montana
Submitted on Briefs: November 10, 2011
Decided: February 7, 2012
Filed:
__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.
¶1 Kathryn Norris and Joe Norris (collectively Norris) appeal from a judgment in the
First Judicial District, Lewis and Clark County, following a jury trial. We reverse.
¶2 Norris raises the following dispositive issue:
¶3 Did the District Court abuse its discretion when it determined that the pre-trial
circumstances warranted excluding a treating physician’s testimony regarding the
appropriate standard of care?
¶4 Kathryn contracted a viral infection eight months into her pregnancy with T.M.N.
Doctors advised an immediate C-section. Doctors delivered T.M.N. through C-section the
next day on October 11, 2001. The treating pediatrician, Dr. Tom Strizich (Strizich),
admitted T.M.N. to the Special Care Nursing unit later that same day following a cyanotic
episode.
¶5 Strizich ordered an IV with glucose. He also directed that T.M.N.’s blood glucose be
tested the morning of October 12, 2001. T.M.N.’s blood glucose test revealed a reading of
63. Strizich responded to the 63 result by increasing the rate of the IV infusion and thereby
increasing the amount of glucose that T.M.N. was receiving. He ordered a re-testing of
T.M.N.’s glucose for the morning of October 13, 2001.
¶6 Strizich served at that time in the same pediatric clinic as Dr. John Reynolds
(Reynolds) and Dr. Blayne Fritz (Fritz). Reynolds took over T.M.N.’s care on the evening of
October 12, 2001. Reynolds was caring for T.M.N. when the second glucose lab result
arrived. The second lab result showed a glucose level of 38. The lab report identified the 38
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level as “critical.” The 38 level prompted lab employees to call the results to the nursing
floor. Reynolds discontinued the IV and ordered no re-testing of T.M.N.’s glucose after
T.M.N. began breastfeeding.
¶7 Fritz took over T.M.N.’s care at noon on October 13, 2001. Fritz had been made
aware of T.M.N.’s earlier glucose results. Fritz did not restart the IV or order any follow-up
tests. Fritz testified that he could monitor a baby’s glucose level by visual inspection. He
further testified that he believed that T.M.N. would receive sufficient glucose from his
mother’s milk.
¶8 A nurse found T.M.N. flaccid and unresponsive the morning of October 14, 2001.
Fritz ordered a glucose lab test. The test result revealed that T.M.N.’s glucose level was
zero. Doctors administered glucose. T.M.N.’s body began recovering after several hours,
but he soon began having seizures. Doctors life-flighted T.M.N. to Benefis Hospital in Great
Falls after he stabilized. T.M.N. suffered severe, permanent development issues.
¶9 Norris filed a complaint on May 5, 2005, against Reynolds, Fritz, and St. Peter’s
Hospital (collectively Defendants). District Judge Thomas Honzel assumed jurisdiction.
The parties conducted extensive discovery. Pretrial proceedings continued for a number of
months into years. These proceedings included a 2005 deposition of Strizich. Counsel for
Norris and Defendants questioned Strizich at the deposition.
¶10 The parties identified their lay and expert witnesses in September, October, and
November of 2006. Norris filed an expert disclosure that identified all of T.M.N.’s treating
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physicians. Defendants filed motions in limine in March 2007 to prevent the treating
physicians from providing opinion testimony. The District Court denied the motion.
¶11 The court determined that the treating physicians could provide expert testimony. The
court noted that the treating physicians “were not retained . . . in advance of or for purposes
of litigation” so an expert disclosure under M. R. Civ. P. 26(b)(4) was unnecessary. The
order implied that the disclosure provided by Norris was wholly consistent with the scope of
the treating physician’s allowable testimony. The court concluded its order with the
somewhat contradictory directive that Defendants could object at trial if “Plaintiffs are
attempting to elicit opinions from the treating physicians beyond what is set out in the
Plaintiff’s disclosure. . . .”
¶12 Fritz’s counsel filed another motion in limine in November 2008, after Judge
Honzel’s March 2007 order, to prevent the treating physicians from providing standard of
care testimony. Norris’s counsel filed a brief in opposition to that motion in December 2008.
Neither party has cited any ruling by the District Court as to this motion in limine. And
nothing in the record indicates whether the District Court provided any ruling.
¶13 Judge Honzel retired on December 31, 2008. District Judge Kathy Seeley assumed
jurisdiction of the case. Norris settled with Reynolds and St. Peter’s Hospital in 2009. The
settlement left Fritz as the sole defendant. The court granted Fritz’s motion for leave to re-
depose certain treating physicians. Fritz did not seek to depose Strizich a second time.
¶14 The case went to trial on July 19, 2010. Norris’s counsel described during her
opening statement the events that culminated in T.M.N.’s developmental injury. She
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specifically described the treatment offered by Strizich. She further informed the jury that
Strizich would testify that a glucose level of 50 represents “his threshold for a baby like
[T.M.N.].” She also stated that Strizich would testify that T.M.N. was hypoglycemic when
the test results of October 13, 2001, revealed a glucose level of 38. Norris called Strizich as
her first witness on July 21, 2010.
¶15 Before trial started that morning, however, Fritz moved to limit the scope of Strizich’s
proposed testimony. Fritz argued that he had become aware only during Norris’s opening
statement that Strizich would testify that he considered a sick newborn with a 50 glucose
level to be at risk. Norris countered that Strizich would testify only to the standard of care
for blood glucose level, but would not state specifically that Fritz had violated that standard
in his treatment of T.M.N. The District Court granted Fritz’s motion.
¶16 The court directed Strizich not to testify as to any standard of care. The court limited
Strizich to testify as to his own personal practice. The District Court also instructed the jury
that a physician’s testimony regarding his personal practice does not establish a general
medical standard of care. The jury returned a verdict in favor of Fritz. Norris appeals.
STANDARD OF REVIEW
¶17 We review for an abuse of discretion a district court’s rulings on the admissibility of
expert testimony. Weber v. BNSF Ry. Co., 2011 MT 223, ¶ 18, 362 Mont. 53, 261 P.3d 984.
DISCUSSION
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¶18 Did the District Court abuse its discretion when it determined that the pre-trial
circumstances warranted excluding a treating physician’s testimony regarding the
appropriate standard of care?
¶19 Montana R. Civ. P. 26(b)(4) governs expert disclosures. It allows a party, through
interrogatories, to require the opposing party to disclose certain information regarding his
expert and the expert’s predicted testimony. M. R. Civ. P. 26(b)(4). These disclosure
requirements eliminate surprise and promote effective cross-examination of expert witnesses.
Smith v. Butte-Silver Bow County, 276 Mont. 329, 333, 916 P.2d 91, 93 (1996). Absent such
disclosures, a party would incur difficulty in ascertaining the particular approach of an
adversarial expert. Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 2007 MT 183, ¶ 72, 338 Mont.
259, 165 P.3d 1079. Disclosure provides a party sufficient information and time, therefore,
to plan effectively for cross-examination and to obtain an expert to refute the adversarial
expert’s testimony. Superior Enters. LLC v. Mont. Power Co., 2002 MT 139, ¶ 18, 310
Mont. 198, 49 P.3d 565.
¶20 Notably, M. R. Civ. P. 26(b)(4) limits disclosure requirements to retained experts. Its
language restricts the provision’s application to “facts known and opinions held by experts
. . . acquired or developed in anticipation of litigation or for trial. . . .” (Emphasis added).
This language, when adopted, mirrored its federal counterpart. The Federal Advisory
Committee noted that Fed. R. Civ. P. 26(b)(4) had limited application when it adopted the
rule. It stated that the rule “does not address itself to the expert whose information was not
acquired in preparation for trial but rather because he was an actor or viewer with respect to
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transactions or occurrences that are part of the subject matter of the lawsuit.” Fed. R. Civ. P.
Comments (1970). The Committee determined that “[s]uch an expert should be treated as an
ordinary witness.” Fed. R. Civ. P. Comments (1970).
¶21 The rule’s limited application supports the idea that the purpose underlying expert
disclosure simply does not apply to non-retained experts. The M. R. Civ. P. 26(b)(4)
disclosures and pre-trial depositions provide a party’s only access to an adversarial, retained
expert’s identity and opinions. A retained expert’s identity could remain unknown and his
opinions unattainable until the expert disclosure deadline within a scheduling order. See,
e.g., Sunburst, ¶ 70.
¶22 In contrast, a non-retained expert’s role in the factual scenario makes his identity well
known to both parties and his opinions more readily available. A non-retained expert
typically will be a hybrid witness. This witness possesses personal knowledge of factual
events relevant to the case. He also possesses specialized training that allows him to
formulate expert opinions regarding those factual events. His involvement usually stems
from his profession thereby making his expertise obvious. His opinions largely are
ascertainable, therefore, and useful to any party who seeks them.
¶23 Courts from various jurisdictions recognize this concept, particularly with treating
physicians. The California Supreme Court noted that treating physicians—who are
inherently hybrid witnesses—can be identified early in the litigation through interrogatories
or through discovery of the plaintiff’s medical records. Schreiber v. Estate of Kiser, 989
P.2d 720, 725 (Cal. 1999). Opposing counsel also possesses a strong incentive to depose a
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treating physician early in the litigation to ascertain his opinions. Opposing counsel can use
the treating physician’s opinion in order to assess the viability of the plaintiff’s claims.
Schreiber, 989 P.2d at 725. The treating physician’s opinions are well known to opposing
counsel long before the deadline for expert disclosures. Schreiber, 989 P.2d at 725. The
court accordingly concluded that the rules governing disclosure of an expert’s opinions do
not apply to treating physicians. Schreiber, 989 P.2d at 725.
¶24 Other courts also have determined that concerns regarding the unfair surprise that
accompanies an undisclosed expert do not apply to treating physicians. For example, the
Utah Supreme Court recognized a party’s ability to subpoena medical records to identify
treating physicians. Drew v. Lee, 250 P.3d 48, 55 (Utah 2011). These medical records
generally will provide greater information than any expert disclosure. The abundant
information available through a party’s medical records negates claims of unfair surprise
from a treating physician’s testimony. Drew, 250 P.3d at 55. Drew and Schreiber reached
this conclusion in the context of a plaintiff asking the treating physician to opine as to the
cause of the plaintiff’s personal injury outside the medical malpractice realm. We agree with
these courts that the heightened disclosure requirements of the opinions to be offered by
retained experts do not apply to non-retained, treating physicians under these circumstances.
Schrieber, 989 P.2d at 725; Drew, 250 P.3d at 55.
¶25 Few courts have addressed, however, whether a treating physician remains a hybrid
witness when opining on the standard of care in medical malpractice cases. The Iowa
Supreme Court has determined that, in ordinary circumstances, a treating physician may not
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testify on the standard of care without a full expert disclosure. Cox v. Jones, 470 N.W.2d 23,
25 (Iowa 1991). In such circumstances, a physician’s opinion regarding standard of care
does not represent an obvious line of deposition inquiry, and thus, disclosure is required to
prevent unfair surprise. See Hansen v. C. Hosp. Corp., 686 N.W.2d 476, 481-82 (Iowa
2004).
¶26 The rule stems from the notion that a “physician ordinarily is not required to
formulate such an opinion in order to treat the patient.” Hansen, 686 N.W.2d at 482(emphasis added). Hansen’s statement that an expert disclosure “may” be required and that
disclosure “ordinarily” is necessary suggests, however, that a treating physician may be
required occasionally to develop an opinion regarding standard of care in his treatment of the
patient. See Hansen, 686 N.W.2d at 482.
¶27 Several courts have recognized expressly that a physician may develop an opinion
regarding standard of care in his treatment of the patient. The Illinois Supreme Court ratified
the “treating physician” exception to the expert disclosure requirement in Boatmen’s Natl.
Bank v. Martin, 614 N.E.2d 1194, 1201 (Ill. 1993). The Illinois court permitted a non-
disclosed, treating physician to opine on the standard of care in a medical malpractice case.
The court reasoned that the treating physician had offered this expert testimony based on
information that he had acquired through his treatment of the plaintiff. The court cited the
central role that the treating physician had played in the plaintiff’s treatment to support the
likelihood that he would have formed an opinion as to the cause of plaintiff’s injury.
Boatmen’s Natl. Bank, 614 N.E.2d at 1203. The treating physician further testified that he
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had formed his opinion when he had first examined the plaintiff, based on his own
knowledge and experience, and well before the prospect of litigation had developed.
Boatmen’s Natl. Bank, 614 N.E.2d at 1203.
¶28 The California Supreme Court has offered similar reasoning. Schreiber, 989 P.2d at
726. The California court disagreed with an appellate court’s determination that “a treating
physician could never, regardless of the manner in which he obtained the factual basis of his
opinion, testify as to the standard of care. . . .” Schreiber, 989 P.2d at 726. A treating
physician’s ability to testify as to standard of care instead would be determined by whether
the physician formulated the opinion during medical treatment. See Schreiber, 989 P.2d at
726. Under these circumstances, prudent counsel would inquire during a deposition whether
the treating physician had developed an opinion regarding the standard of care. Schreiber,
989 P.2d at 726. An opinion formulated by the physician regarding the standard of care in
this context would be inherent to his treatment of the patient. Schreiber, 989 P.2d at 726.
¶29 Strizich’s role required that he formulate an opinion regarding the requisite standard
of care for treating T.M.N. even before the alleged negligence occurred. Strizich had to
determine what standard of care needed to be employed to monitor T.M.N.’s glucose level
when he initiated T.M.N.’s treatment. As a result, Strizich developed his opinion regarding
standard of care in the context of patient treatment rather than in the context of litigation.
Strizich accordingly remains a hybrid witness even for the purposes of standard of care
testimony. Schreiber, 989 P.2d at 726.
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¶30 Strizich’s proffered testimony nevertheless required some disclosure to prevent unfair
surprise. Indeed, the federal rules address squarely the issue of unfair surprise stemming
from hybrid witness testimony. The federal rule distinguishes between the disclosure of the
identity of a hybrid witness and disclosure of a hybrid witness’s opinions. Federal R. Civ. P.
26(a)(2)(A) requires a party to disclose the identity of all witnesses who will provide expert
testimony. Retained experts must additionally provide a report that includes “a complete
statement of all opinions.” Fed. R. Civ. P. 26(a)(2)(B). Non-retained experts, in contrast,
must provide only a summary of their expected testimony. Fed. R. Civ. P. 26(a)(2)(C).
Federal R. Civ. P. 26(a)(2)’s requirement that the identity of non-retained experts be
disclosed, and the general nature of that expert’s opinion, prevents unfair surprise. This
same provision acknowledges that comprehensive disclosure for non-retained experts is
unnecessary to prevent unfair surprise. Fed. R. Civ. P. 26(a)(2).
¶31 The language of M. R. Civ. P. 26 fails to provide the same level of clarity. Montana
R. Civ. P. 26(b)(4) dictates the permissible disclosure for retained experts. This disclosure
includes the identity of retained experts, the opinions of these retained experts, and the basis
of those opinions. M. R. Civ. P. 26(b)(4). Our rules do not provide, however, any disclosure
requirements for either identity or opinions of non-retained experts. M. R. Civ. P. 26(b).
¶32 Absent an express rule, we must review the pre-trial circumstances to determine
whether sufficient notice existed of the non-retained expert’s identity and any opinions to be
offered by the non-retained expert to prevent unfair surprise. Faulconbridge v. State, 2006
MT 198, ¶¶ 43-44, 333 Mont. 186, 142 P.3d 777. We attempted in Faulconbridge to explain
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the distinction between retained experts and non-retained experts. A full M. R. Civ. P.
26(b)(4) disclosure must be made for retained experts. Faulconbridge, ¶ 43. This same
disclosure does not apply to non-retained experts. See Faulconbridge, ¶¶ 43-44. We
suggested, however, that the opposing party should have adequate notice of the non-retained
expert’s testimony in order to be admissible. See Faulconbridge, ¶¶ 43-44.
¶33 The inquiry should focus on whether the objecting party had adequate notice of the
non-retained expert’s proposed testimony. The discussion in Faulconbridge parallels the
principle established through M. R. Civ. P. 26(b)(4)—that opposing counsel have adequate
notice of the identity of an expert and the expert’s opinions to prevent unfair surprise. The
standard also recognizes, though, that the comprehensive disclosure requirements of M. R.
Civ. P. 26(b)(4) regarding an expert’s opinion are not necessary to prevent unfair surprise
when a hybrid witness provides expert testimony. See Ostermiller v. Alvord, 222 Mont. 208,
212, 720 P.2d 1198, 1201 (1986).
¶34 Our discussion in Faulconbridge proved central to Judge Honzel’s 2007 order that
allowed expert testimony from T.M.N.’s treating physicians. Norris’s expert disclosure
noted that the treating physicians were “hybrid witnesses” who need not be disclosed under
Montana law. Norris identified all of T.M.N.’s treating physicians individually, including
Strizich, as potential witnesses in her M. R. Civ. P. 26(b)(4) disclosure in order to “provide
full disclosure and no surprise to the Defendants.” Judge Honzel’s order in 2007 agreed that
the treating physicians qualified as hybrid witnesses who were not retained for litigation
purposes.
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¶35 Fritz contends that Judge Honzel’s original scheduling order required Norris to
“disclose expert witnesses together with Rule 26(b)(4), M. R. Civ. P., expert disclosures.”
We agreed in Sunburst that a disclosure requirement pursuant to an M. R. Civ. P. 16 order
“carried the same effect as would a party’s interrogatory” that requested disclosure of expert
witnesses pursuant to M. R. Civ. P. 26(b)(4), and thereby negated “the need for either party
to file interrogatories.” Sunburst, ¶ 70. The district court excluded testimony from several
of Texaco’s retained expert witnesses due to Texaco’s failure to provide full expert
disclosures pursuant to M. R. Civ. P. 26(b)(4). We affirmed. Sunburst, ¶ 73. Here, of
course, Strizich represents a hybrid witness based on his role as a treating physician for
T.M.N. Montana R. Civ. P. 26(b)(4) limits full disclosure requirements to retained experts.
Norris never retained Strizich.
¶36 Fritz does not contend that Norris failed to provide sufficient notice as to Strizich’s
identity. He argues instead that Norris failed to provide sufficient notice as to Strizich’s
opinions. Fritz contends that Strizich’s proposed testimony regarding the standard of care
for an infant’s glucose level exceeded the scope of Judge Honzel’s order. He further notes
that Norris’s disclosure fails to identify a level-specific blood glucose standard. Fritz claims
that he first became aware of this standard, and Strizich’s proposed testimony about it,
during Norris’s opening argument.
¶37 It would be difficult to conclude, based on the totality of the pre-trial circumstances,
that Fritz lacked sufficient notice of Strizich’s proposed testimony on standard of care to
prevent unfair surprise. Schreiber, 989 P.2d at 726. The disclosure submitted by Norris on
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October 16, 2006, stated that Strizich, as a treating physician, would testify as to the standard
of care that he would employ generally. Similar to any treating physician, Strizich
presumably would not create his own standard of care out of whole cloth. Strizich’s standard
of care instead likely would conform to his medical training, current medical literature, and
to national practice. Chapel v. Allison, 241 Mont. 83, 92, 785 P.2d 204, 213 (1989). Cross-
examination normally would reveal any faulty basis on which Strizich relied in opining as to
standard of care. N. Plains Resource Council v. Bd. of Nat. Resources & Conserv., 181
Mont. 500, 537, 594 P.2d 297, 317 (1979).
¶38 Fritz’s access to T.M.N.’s medical records, particularly when the records catalog
Strizich’s own treatment, further negates Fritz’s claim of unfair surprise at the prospect that
Strizich would testify as to the standard of care for a newborn’s blood glucose level. Drew,
250 P.3d at 55; Boatmen’s Natl. Bank, 614 N.E.2d at 1201. These medical records contain
several reports prepared specifically by Strizich. The records further detail Strizich’s care of
T.M.N. through notes prepared by assisting nurses and lab reports requested by Strizich.
Strizich’s opinion regarding the appropriate standard of care, therefore, should have been
relatively obvious given his actions to treat T.M.N. Schreiber, 989 P.2d at 726.
¶39 Any ambiguity within these records readily could have been clarified through proper
inquiry at Strizich’s deposition. Strizich also opined in that deposition, without objection,
that a newborn infant with a glucose level of 40 would be hypoglycemic. Norris’s counsel
highlighted this opinion by Strizich in her opening statement. Strizich also testified that a
glucose level of 63 presented a normal level for an infant. Strizich believed that the
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threshold for risk, therefore, fell clearly between a glucose level of 40 and 63. Fritz never
inquired as to where Strizich specifically considered that the risk level fell.
¶40 Strizich repeatedly referred to his “standard teaching and training” and to “the
teaching” that he had received in responding to questions. Some of these questions dealt
specifically with matters related to blood glucose levels in newborns. Strizich’s references to
“standard teaching and training” and “the teaching” that he had received paraphrases the
standard of care. Fritz’s counsel left the matter hanging and took no steps to clarify when
given the opportunity at Strizich’s deposition.
¶41 Fritz later moved to re-depose various treating physicians after both parties had filed
expert disclosures. The District Court granted Fritz’s motion. Fritz did not re-depose
Strizich. Fritz made this decision despite Strizich’s central role in T.M.N.’s treatment and
despite Norris’s expert disclosure that indicated Strizich would testify to his standard of care
in treating T.M.N. As noted by the court in Schreiber, defendants have a strong incentive to
depose treating physicians “to ascertain whether their observations and conclusions support
the plaintiff’s allegations.” Schreiber, 989 P.2d at 725. Fritz declined this second
opportunity to depose Strizich.
¶42 Fritz himself actually admitted standard of care testimony from Dr. Donald Wight,
who treated T.M.N. at Benefis Hospital. Neither party had disclosed Wight as an expert
witness. Fritz nevertheless took advantage of the inquiry by Norris’s counsel at Wight’s
deposition as to whether Wight had formed an opinion regarding the care that Fritz had
provided to T.M.N. Fritz successfully moved the District Court, over Norris’s objection, to
15
admit those portions of Wight’s deposition that contained his standard of care opinion.
Neither Fritz nor Norris asked Strizich during his deposition for his opinion regarding
standard of care. In effect, Fritz seeks to distinguish the admissibility of opinion testimony
from a treating physician on the basis of whether either counsel inquired on the matter during
the treating physician’s deposition. We decline to encourage counsel, plaintiff’s or
defendant’s, to avoid obvious standard of care issues during a discovery deposition in order
to claim unfair surprise at trial. We agree with the Ohio Supreme Court’s conclusion that a
defendant cannot claim unfair surprise when he could have inquired, at a deposition, into the
treating physician’s opinions. See Savage v. Correlated Health Services, 591 N.E.2d 1216,
1220 (Ohio 1992). As was the case with Strizich’s testimony, the Ohio court determined that
unfair surprise proved a difficult claim to substantiate when the “testimony on [the relevant
issues] was fairly predictable.” Savage, 591 N.E.2d at 1220.
¶43 Fritz reasonably cannot claim prejudice from Strizich’s proposed testimony regarding
a newborn’s blood glucose level. This testimony related to a central issue in the case—
whether Fritz violated the established standard of care for pediatricians by failing to monitor
T.M.N.’s glucose levels adequately. Fritz clearly had identified T.M.N.’s blood glucose
level to constitute a central issue for the jury’s consideration. Fritz presented three separate
experts who opined on the requisite standard of care regarding blood glucose levels. These
experts functioned as a sufficient rebuttal to Strizich’s proposed testimony.
¶44 Finally, any surprise claimed by Fritz derives from his narrow interpretation of Judge
Honzel’s order. Fritz contends that Judge Honzel’s order allowed Strizich to testify only as
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to his personal practice. This argument interprets Judge Honzel’s order, however, as
authorizing largely irrelevant and inadmissible testimony. A medical malpractice plaintiff
must establish that a physician’s conduct breached a national standard of care. Chapel, 241
Mont. at 92, 785 P.2d at 213. A physician’s individual practice, when not based on national
standards, lacks relevance to a medical malpractice case. Collins v. Itoh, 160 Mont. 461,
469, 503 P.2d 36, 41 (1972). Fritz’s counsel argued this point extensively in opposing
Strizich’s proposed testimony on standard of care. Fritz’s interpretation of Judge Honzel’s
order, however, would have allowed Strizich to offer only testimony that likely could have
been excluded as inadmissible under M. R. Evid. 402. Collins, 160 Mont. at 469, 503 P.2d
at 41.
¶45 Fritz alternatively argues that Strizich lacked the expertise to offer an expert opinion
on blood glucose levels. He notes that Strizich could not explain in his deposition the cause
of glucose problems present in newborns. For example, Strizich could not say with certainty
whether the body uses more glucose if the infant is under distress. Strizich admitted in his
deposition to little knowledge regarding glucose storage in infants at birth. Strizich also
could not explain why unhealthy newborns are more likely to have a problem with glucose.
Strizich further conceded in his deposition that depletion rates for glycogen stores following
birth was “out of my expertise.” Fritz cites similar examples from Strizich’s deposition to
contend that he lacked the requisite expertise to opine on the appropriate standard of care.
¶46 The examples cited by Fritz demonstrate that Strizich admittedly could not explain the
pathophysiology that underlies glucose depletion in newborns. Strizich’s inability to explain
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why a medical condition occurs, however, does not necessarily prevent him from possessing
expertise on the necessary medical treatment when the condition occurs. Fritz could have
used Strizich’s admissions regarding the limits of his expertise on cross-examination to
undermine the weight of Strizich’s testimony. Kissock v. Butte Convalescent Ctr., 1999 MT
322, ¶ 20, 297 Mont. 307, 992 P.2d 1271. Strizich’s admissions should not have affected the
admissibility of his testimony regarding the standard of care for a pediatrician when faced
with glucose-related concerns arising from his treatment of T.M.N. Kissock, ¶ 20.
¶47 We turn finally to the issue of whether the District Court’s exclusion of Strizich’s
proposed testimony prejudiced Norris’s case. Montana R. Civ. P. 61 dictates that a verdict
may be set aside only if an error affects a party’s substantial rights. We have recognized that
a district court’s ruling at trial may cause—through no fault of the party—unfair surprise that
detrimentally prevents a litigant from presenting his case. See Clark v. Bell, 2009 MT 390,
¶ 30, 353 Mont. 331, 220 P.3d 650. We specifically determined in Clark that unfair surprise
may occur when a district court issues a pre-trial order, but the district court only clarifies the
scope of that order at trial. Clark, ¶ 30. This unfair surprise affects a party’s substantial
rights when it relates to, and prevents a party from, addressing adequately a material issue.
See Clark, ¶ 30. Such circumstances warrant a new trial. Clark, ¶ 30.
¶48 Norris contends, and we agree, that exclusion of Strizich’s proposed testimony caused
unfair surprise. Norris had conducted video depositions with multiple witnesses. Norris
argues that the admissibility of these video depositions rested upon Strizich’s proposed
standard of care testimony. Norris specifically, and fairly, had relied on Judge Honzel’s
18
order to perpetuate this video testimony. Without Strizich’s testimony, though, Norris
claims that the video testimony was rendered useless as Norris could not modify these
depositions, and had to forgo entirely the video testimony due to the court’s late ruling.
¶49 Moreover, Fritz capitalized on Judge Seeley’s ruling to undermine the importance of
testimony of Strizich—Norris’s primary medical witness. The jury instructions directed the
jury not to consider any physician’s personal practice as relevant to the standard of care.
Fritz’s counsel used this instruction to his advantage during the closing, stating, “Dr. Strizich
talked about his personal practice. Dr. Strizich is a nice man, and he is a good pediatrician.
But his personal practice, the law says, is not to be considered as establishing standard of
care. . . .” This statement, combined with the jury instruction, undermined the importance of
Strizich’s testimony to Norris’s case.
¶50 We determine that the District Court abused its discretion when it prevented Strizich
from providing standard of care testimony. We reverse and remand with instructions to the
District Court to vacate its judgment and order a new trial.
/S/ BRIAN MORRIS
We Concur:
/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
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