                                       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
                                                  ____________________________________

                                                         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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