Submitted on Briefs: August 8, 2018
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
Appellant: Daniel G. Gillispie, Gillispie Law Office,
Billings, Montana Jeffrey A. Simkovic, Billings Legal, PLLC,
Appellee: Peter J. Stokstad, Elizabeth L. Hausbeck, Leah T.
Handelman, Garlington, Lohn & Robinson, PLLP, Missoula,
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
the District Court err by holding that Melton's expert
was not qualified under § 26-2-601(1)(a), MCA?
AND PROCEDURAL BACKGROUND
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.
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.
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.
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.
"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, ¶ 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 ...