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Melton v. Speth

Supreme Court of Montana

September 4, 2018

JOHN MELTON, Plaintiff and Appellant,
STEVEN SPETH, M.D., Defendant and Appellee.

          Submitted on Briefs: August 8, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 12-1528 Honorable Rod Souza, Presiding Judge

          For Appellant: Daniel G. Gillispie, Gillispie Law Office, Billings, Montana Jeffrey A. Simkovic, Billings Legal, PLLC, Billings, Montana

          For Appellee: Peter J. Stokstad, Elizabeth L. Hausbeck, Leah T. Handelman, Garlington, Lohn & Robinson, PLLP, Missoula, Montana


          Jim Rice Justice

         ¶1 John Melton (Melton) appeals the summary judgment dismissal of his medical malpractice claim against Defendant Steven Speth, M.D. (Dr. Speth), entered by the Thirteenth Judicial District Court, Yellowstone County. We affirm, addressing the following issue:

         Did the District Court err by holding that Melton's expert was not qualified under § 26-2-601(1)(a), MCA?


         ¶2 In November 2009, Dr. Speth performed a spinal surgery on Melton, wherein Dr. Speth utilized a medical device manufactured by Medtronic, known as a TSRH-3D. The device employed locking screws, couplers, and rods to fuse the lower spine. One of the locking screws on the implanted device apparently failed or was not properly secured, resulting in only partial fusion of Melton's spine. Dr. Speth performed an additional surgery in 2012 to remove loose hardware and fuse an additional portion of Melton's spine. Melton brought this action in 2013, alleging that Dr. Speth breached the standard of care by failing to properly secure the locking screw during the 2009 surgery.

         ¶3 In discovery, Melton disclosed Steven Graboff, M.D. (Dr. Graboff), as his sole standard of care expert witness. Dr. Graboff, a board-certified orthopedic surgeon for over thirty years, explained in his deposition that he had ceased his surgery practice, performing his last surgery in December 2004. He testified that, during his surgery practice, he had performed spinal fusions, but had not utilized the Medtronic TSRH-3D, because it was introduced in 2009, after he had discontinued his surgery practice. Dr. Graboff stated that since January of 2005, his practice has been "nonsurgical" and "office-based." He currently practices what he described as "conservative care," screening out patients who will likely require surgery. He testified that if a patient needs surgery, he discusses their options, but ultimately refers them to a colleague who performs surgery. Dr. Graboff also testified he teaches physical therapy students, which includes an explanation of surgical techniques for context, but he does not teach how to perform surgery. He offered the opinion that, because the hardware used in Melton's surgery failed "immediately" after surgery, the locking screws were not properly tightened. Dr. Graboff admitted that the mere result of the surgery was the basis for his opinion that Dr. Speth had been negligent, but he could not identify anything in particular that Dr. Speth had done wrong.

         ¶4 Dr. Speth moved for summary judgment, arguing that Dr. Graboff was not qualified under § 26-2-601(1)(a), MCA, to opine on this malpractice claim because Dr. Graboff had not performed surgery since 2004, and that, even if qualified, his opinion was impermissibly based on the doctrine of res ipsa loquitur to establish Dr. Speth had breached the standard of care, citing Clark v. Norris, 226 Mont. 43, 48-49, 734 P.2d 182, 185-86 (1987). The District Court agreed with Dr. Speth on both arguments, granting summary judgment. Melton appeals.


         ¶5 We review summary judgment rulings de novo, applying the same M. R. Civ. P. 56 criteria as the district court to determine "whether the moving party has established both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law." Beehler v. E. Radiological Assocs., P.C., 2012 MT 260, ¶ 17, 367 Mont. 21, 289 P.3d 131 (citations omitted). However, "any determination underlying the order granting summary judgment is reviewed under the standard appropriate to that determination." McClue v. Safeco Ins. Co., 2015 MT 222, ¶ 13, 380 Mont. 204, 354 P.3d 604 (citations omitted). While the exclusion of expert testimony is generally reviewed for abuse of discretion, McColl v. Lang, 2016 MT 255, ¶ 7, 385 Mont. 150, 381 P.3d 574 (citations omitted), when the exclusion of an expert is based purely on the interpretation of evidentiary rules and statutes, we review for correctness. McClue, ¶ 14. Here, there is no dispute of material facts, and at issue is the exclusion of an expert based on the interpretation of a statute, which we review for correctness.

         ¶6 "Our objective when we interpret a statute is 'to implement the objectives the legislature sought to achieve.'" Hiland Crude, LLC v. Dep't of Revenue, 2018 MT 159, ¶ 12, 392 Mont. 44, 421 P.3d 275 (citations omitted). We ascertain legislative intent, in the first instance, from the plain meaning of the words used. Hiland Crude, LLC, ΒΆ 12. The role of a judge when interpreting a statute "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what ...

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