Montana Supreme Court Medical Malpractice Opinoin

The Montana Supreme Court decided Higgins v. Augustine yesterday. This lawsuit involved a dispute over whether a doctor had breached the standard of care during a circumcision.

The lawsuit alleged that the doctor was negligent in performing the procedure, causing the child to suffer an injury, and sought damages. The case went to trial, and the jury returned a verdict in favor of the doctor. However, the plaintiff appealed the District Court’s decision to exclude specific evidence related to a witness’s expert testimony.

During the trial, the expert witness testified that the injury suffered by the child was not consistent with the use of the correct tools and suggested that the doctor may have used incorrect scissors or misused the correct scissors. However, the plaintiff had not adequately disclosed the witness’s opinion promptly, leading the defendant to move for its exclusion. The District Court agreed, and the plaintiff appealed this decision.

Montana Supreme Court’s Holding

The appeal involved a pretrial discovery ruling. The plaintiff’s expert disclosed before her deposition that the surgery had been improperly performed and further disclosed the issue during the deposition. The plaintiff argued that the deposition testimony was sufficient to meet the underlying policy of eliminating surprise and promoting effective cross-examination of expert witnesses.

On the other hand, the defendant argued that the late disclosure of the “scissors opinions” violated the civil procedure rule, and the scheduling order, and caused prejudice, warranting the limited sanction of precluding evidence of the “scissors opinions.” The defendant further argued that the exclusion of this evidence should be upheld as it was based entirely on speculation.

Expert Disclosures and Sandbagging Opinion

The court noted that expert disclosures aim to avoid trial by ambush and to promote effective cross-examination of expert witnesses. The court recognized that it is not uncommon for an expert to make a more thorough and detailed disclosure during the expert’s deposition after filing the expert’s Rule 26 disclosure. Because that certainly smells and tastes like sandbagging and unfair surprise, right?

However, under the totality of the circumstances in this case, the district court did not abuse its discretion in precluding the plaintiff from presenting evidence related to the incorrect use of scissors during the surgical procedure. The plaintiff’s expert disclosure did not provide any facts or opinions related to the use of incorrect scissors or incorrect use of scissors because the surgery had been improperly performed.

Plaintiff’s Failure to Disclose Opinions

The plaintiff’s malpractice lawyer failed to supplement the client’s expert disclosure or respond to interrogatories to identify the failure to correctly use surgical scissors as how the surgery had been improperly performed. The plaintiff’s counsel did not respond to the defendant’s request to depose the plaintiff’s expert in a timely manner. As a result, the defendant had no opportunity to develop contrary evidence or consult with her expert to supplement her expert disclosure, which makes it even more challenging for plaintiffs to win on a pretrial ruling like this.

The court found that the district court’s evidentiary ruling properly warned the parties of the potential for sanctions for non-compliance with discovery deadlines. The district court evaluated the particular prejudice to the defendant of the plaintiff’s expert’s untimely scissors-related disclosures. It limited the exclusion to the scissors-related opinions, which were untimely disclosed. As such, the court found no abuse of discretion and affirmed the district court’s evidentiary rulings.

The Standard of Review

The problem for the appealing part in these types of cases is overcoming the standard of review which is abuse of discretion.  The abuse of discretion standard is a legal principle that Montana courts use to determine whether a lower court or other decision-making body acted unreasonably. Under this standard that you often see in evidentiary and pretrial rulings, a court will not reverse a decision simply because it would have ruled differently if it were making the decision in the first instance. Instead, the court will only overturn the decision if it finds that the decision-maker abused its discretion by acting arbitrarily, capriciously, or in a manner that was contrary to the law or evidence presented.

So when reviewing a lower court’s decision for an abuse of discretion in Montana, the appellate court will give deference to the lower court’s ruling and will not substitute its judgment for that of the lower court. The appellate court will only intervene if it finds that the lower court’s decision was clearly erroneous or an abuse of discretion. The standard is highly deferential to the lower court and requires the appellant to show that the lower court’s decision was not just wrong but that it was unreasonable or arbitrary. This is a high bar, and it was too high for the Montana Supreme Court in this case.

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