                                                                                            November 13 2012


                                           DA 11-0618

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2012 MT 260


TONY BEEHLER, individually and as Co-representative
of the Estate of Katherine Ann Beehler-Goodson;
ROBERT GOODSON, individually and as Co-representative
of the Estate of Katherine Ann Beehler-Goodson, and
as natural guardian and next friend of E.G. and R.G., minors,

              Plaintiffs and Appellants,

         v.

EASTERN RADIOLOGICAL ASSOCIATES, P.C.; ANNE
GIULIANO, M.D.; and ST. VINCENT HEALTHCARE,

              Defendants and Appellees.


APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DV 10-648
                        Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

                For Appellants:

                        John L. Amsden (argued), Justin P. Stalpes, Beck & Amsden, PLLC,
                        Bozeman, Montana

                For Appellees:

                        Julie A. Lichte (argued), Kiely Keane, Christopher K. Olivereira, Crowley
                        Fleck, PLLP, Bozeman, Montana (Eastern Radiological Assoc.)

                        Robert C. Brown (argued), Charles K. Smith, Poore, Roth & Robinson,
                        P.C., Butte, Montana (St. Vincent Healthcare)


                                                                  Argued: August 1, 2012
                                                                Submitted: August 15, 2012
                                                                 Decided: November 13, 2012
Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1        Plaintiffs Tony Beehler (“Tony”), individually and as a co-representative of the

Estate of Katherine Ann Beehler-Goodson, and Robert Goodson (“Robert”), individually

and as a co-representative of the Estate and as natural guardian and next friend of E.G

and R.G., minors, 1 appeal an order from the Thirteenth Judicial District Court,

Yellowstone County, granting Defendants’ Eastern Radiological Associates (“ERA”), Dr.

Anne Giuliano (“Dr. Giuliano”), and St. Vincent Healthcare (“SVH”) 2 motion for

summary judgment. We reverse and remand.

                      FACTUAL AND PROCEDURAL BACKGROUND

¶2        Katherine Beehler-Goodson (“Katherine”) was the mother of minor children E.G.

and R.G., the wife of Robert, and the sister of Tony. Prior to 2009, Katherine had

suffered various back injuries. Katherine sought surgery in 2009 to address persistent

pain resulting from these injuries.            In preparation for surgery, Katherine saw Dr.

Giuliano, a board certified radiologist associated with ERA, for a myelogram.                           A

myelogram is a radiological procedure where a needle is used to inject dye into the sac

surrounding the spine to help reveal the bones, nerves, and fluid filled spaces in an X-ray.

As a radiological procedure, a myelogram consists of procedures, such as X-rays and the

analysis thereof, which are not pertinent to this case. For our purposes, the only relevant

portion of the myelogram consists of the infection control procedures taken preceding

and surrounding the insertion of the myelogram needle into Katherine’s spinal column


1
    When speaking collectively, we will refer to Tony, Robert, and the Estate as “Plaintiffs.”
2
    When speaking collectively, we will refer to Dr. Giuliano, ERA, and SVH together as “Defendants.”

                                                     2
and the subsequent injection of a dye into Katherine’s cerebrospinal fluid (“CSF”). The

further administration of radiological procedures is not at issue and was not raised by

Plaintiffs at the District Court or on appeal.

¶3     Dr. Giuliano performed the myelogram on Katherine on June 17, 2009, in a

radiology suite at SVH.      Dr. Giuliano did not wear a mask during the procedure,

including while she prepared the needle and inserted it into Katherine’s spinal column.

Both parties agree Dr. Giuliano was the only person within the zone of oral droplet

transmission surrounding Katherine during the critical portions of the myelogram.

Following the procedure, Katherine was discharged without complication and returned to

her hotel room to rest. Later that evening, Katherine developed a headache and nausea

and returned to SVH, where she was admitted to the SVH Emergency Room and

diagnosed with spinal meningitis. The time between the procedure and the diagnosis was

roughly 12 hours. Spinal meningitis is a bacterial infection of the membranes (meninges)

covering the spinal cord. Laboratory work determined that the bacteria that caused the

infection were Group B Streptococci (“GBS”). The parties agree that the GBS bacteria

were introduced into Katherine’s CSF when the myelogram needle entered her spinal

column. Katherine died as a result of the meningitis infection on June 20, 2009.

¶4     Plaintiffs filed a medical malpractice claim against the Defendants on April 8,

2010, alleging, inter alia, that “Defendants failed to adhere to proper infection control

measures,” thereby negligently causing Katherine’s meningitis infection. In particular,

Plaintiffs alleged Dr. Giuliano negligently failed to wear a mask during the myelogram,

causing Katherine’s infection. Regarding SVH, Plaintiffs alleged that the hospital had a

                                                 3
duty to promulgate infection control policies that specifically required wearing a mask

during a myelogram. Plaintiffs claimed that SVH’s failure to do so caused Katherine’s

infection.

¶5     Following extensive discovery and briefing, Defendants filed motions in limine on

August 19, 2011, attacking, inter alia, the qualifications of Plaintiffs’ proposed expert

witness, Dr. Patrick Joseph, MD, (“Dr. Joseph”). The Defendants opposed Dr. Joseph’s

qualification as an expert witness on the appropriate standards of care, departure from

those standards, and causation. Defendants sought to cast the subject matter of Plaintiffs’

malpractice claim as specifically concerning myelograms performed by radiologists, not

the infection prevention procedures taken surrounding the insertion of the needle into

Katherine’s spinal column. With regards to the relevant standards of care, Defendants

essentially claimed that Dr. Joseph was not qualified to testify as an expert under § 26-2-

601, MCA, because he is not a radiologist and does not perform myelograms. Regarding

causation, Defendants argued that Dr. Joseph’s testimony lacked a scientific basis and did

not establish that it was more likely than not that the GBS bacteria traveled from Dr.

Giuliano’s uncovered mouth into Katherine’s spinal column.

¶6     Defendants concurrently filed motions for summary judgment on the standard of

care and causation, alleging that if Plaintiffs’ sole expert witness on the standard of care,

breach, and causation was not qualified, judgment was appropriate as a matter of law.

See Montana Deaconess Hosp. v. Gratton, 169 Mont. 185, 189, 545 P.2d 670 (1976).

The District Court held a hearing on Defendants’ motions on September 22, 2011, and

granted summary judgment on the standard of care and causation on October 11, 2011.

                                             4
¶7     In its summary judgment order, the court found that Dr. Joseph was not qualified

to offer expert testimony on the applicable standards of care, breach, or causation. The

court found that “the requisite qualifications for expert witnesses in medical malpractice

cases are set forth in Mont. Code Ann. § 26-2-601,” and that because Dr. Joseph was not

a board certified radiologist, he “cannot give an opinion regarding Dr. Giuliano’s duty

based on board certified radiological standards.”

¶8     Respecting SVH, the court found that “[t]he standards of care for a given specialty

still control,” and focused on Dr. Joseph’s use of a 2007 Centers for Disease Control and

Prevention (“CDC”) publication recommending masks during myelograms. The court

found that because “the CDC does not impose requirements on healthcare providers,”

neither its recommendations nor Dr. Joseph’s use of them could establish a hospital’s

standard of care.

¶9     As to Dr. Joseph’s proposed opinion on causation, the court found that Dr.

Joseph’s testimony did not meet the necessary standard for expert medical opinion

testimony. In so holding, the court applied M. R. Evid. 702 and our requirement that

medical expert testimony be based upon a “more likely than not” standard. See Dallas v.

Burlington N. Inc., 212 Mont. 514, 523, 689 P.2d 273 (1984).

¶10    Without Dr. Joseph’s expert testimony, the court found Plaintiffs lacked the

necessary expert witness to establish the elements of medical negligence, making

summary judgment for the Defendants appropriate as a matter of law. See Seal v.

Woodrows Pharm., 1999 MT 247, ¶ 35, 296 Mont. 197, 988 P.2d 1230.

¶11    This appeal followed, and we held oral argument on August 1, 2012.

                                            5
                           STATEMENT OF THE ISSUES

¶12   We restate the issues on appeal as follows:

¶13   1. Did the District Court err by excluding Dr. Joseph’s expert testimony on Dr.

Giuliano’s and SVH’s standard of care?

¶14   2. Did the District Court err by excluding Dr. Joseph’s expert testimony on

causation?

¶15   3. Did the District Court err by granting the Defendants’ motion for summary

judgment?

¶16   4. Did the District Court err in granting costs for depositions?

                              STANDARD OF REVIEW

¶17   A district court’s evidentiary rulings are reviewed for an abuse of discretion. State

v. Wilmer, 2011 MT 78, ¶ 11, 360 Mont. 101, 252 P.3d 178. This includes rulings on the

admissibility of expert testimony. Norris v. Fritz, 2012 MT 27, ¶ 17, 364 Mont. 63, 270

P.3d 79. We do not simply determine whether this Court would have made the same

ruling, but determine “whether the district court ‘acted arbitrarily without conscientious

judgment or exceeded the bounds of reason’ and prejudiced a substantial right of the

appellant.” Weber v. BNSF Ry. Co., 2011 MT 233, ¶ 39, 362 Mont. 53, 261 P.3d 984. A

district court’s application of a statute is reviewed to determine whether it was correct.

Blackmore v. Dunster, 2012 MT 74, ¶ 6, 364 Mont. 384, 274 P.3d 748. We review

summary judgment rulings de novo. Estate of Wilson v. Addison, 2011 MT 179, ¶ 11,

361 Mont. 269, 258 P.3d 410 (citing Goettel v. Estate of Ballard, 2010 MT 140, 356

Mont. 527, 234 P.3d 99). In the course of this analysis we apply the same M. R. Civ. P.

                                            6
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.” Wilson, ¶ 11.

                                         DISCUSSION

¶18    Initially, “[i]n order to survive a motion for summary judgment in a negligence

action, the plaintiff must raise genuine issues of material fact with regard to a legal duty

on the part of the defendant, breach of that duty, causation, and damages.” B.J. v. Shultz,

2009 MT 245, ¶ 13, 351 Mont. 436, 214 P.3d 772 (citing Butler v. Domin, 2000 MT 312,

¶ 21, 302 Mont. 452, 15 P.3d 1189). With respect to medical malpractice claims in

particular, the plaintiff must generally produce expert medical testimony establishing the

applicable standard of care and a subsequent departure from that standard.3 Butler, ¶ 21.

We have repeatedly recognized that a plaintiff’s failure to provide this expert testimony

“is fatal to the plaintiff’s claim.” Griffin v. Moseley, 2010 MT 132, ¶ 31, 356 Mont. 393,

234 P.3d 869 (citing Montana Deaconess Hosp. v. Gratton, 169 Mont. 185, 189, 545

P.2d, 670, 672 (1976)).

¶19    Plaintiffs may not meet these requirements by offering CDC recommendations

after their lone expert has been excluded. Even assuming, arguendo, that such CDC

recommendations can set infection control standards of care, we require expert testimony

to establish the standard of care and breach. Griffin, ¶ 31; Butler, ¶ 21. Likewise,

Plaintiffs may not establish genuine issues of material fact with an attorney’s affidavit.

3
  The exception to this rule allowing lay testimony where the conduct complained of is readily
ascertainable to a layman has not been raised and does not apply in cases of infection. See Dalton v.
Kalispell Regional Hosp., 256 Mont. 243, 246, 846 P.2d 960 (1993).

                                                 7
M. R. Civ. P. 56(e); Hiebert v. Cascade County, 2002 MT 233, ¶¶ 29-30, 311 Mont. 471,

56 P.3d 848; Morales v. Tuomi, 214 Mont. 419, 424, 693 P.2d 532 (1985). As we have

repeatedly found, Plaintiffs must present expert testimony to survive a motion for

summary judgment. Accordingly, determining whether the District Court abused its

discretion by excluding Dr. Joseph’s testimony will resolve this appeal.

¶20    1. Did the District Court err by excluding Dr. Joseph’s expert testimony on

Defendants’ standards of care?

¶21    A. Is Dr. Joseph qualified to testify as an expert witness on Dr. Giuliano’s

standard of care under § 26-2-601, MCA?

¶22    To support their claim that Defendants breached the applicable standard of care

and caused Katherine’s death, Plaintiffs sought to proffer the expert testimony of Dr.

Joseph. Indeed, Dr. Joseph was the only expert Plaintiffs offered to establish the standard

of care, breach, or causation. Dr. Joseph is not a radiologist, but he is board certified in

Internal Medicine, Infectious Diseases, Epidemiology, Medical Management, and Quality

Assurance. Infection preventionists such as Dr. Joseph are specifically trained to prevent

nosocomial (acquired in the hospital) infections. In this role, Dr. Joseph has investigated

post-myelogram meningitis. Dr. Joseph is also the Chief of Infectious Disease for a

physician group, develops and reviews policies for preventing hospital-born infection as

the Chair of a hospital Infection Control Committee, and performs procedures involving

lumbar punctures, but not myelograms. Thus, Dr. Joseph has training and experience in

the infection and infection control policies at issue.



                                              8
¶23     Despite Dr. Joseph’s evident qualifications in the field of infection prevention, the

seeming subject of Plaintiffs’ negligence claim, the court excluded Dr. Joseph’s

testimony regarding Dr. Giuliano’s standard of care based on its application of § 26-2-

601, MCA. In particular, the court found that because Dr. Joseph was not a radiologist

and had never performed a myelogram, he was not qualified under § 26-2-601, MCA, to

testify on either the applicable standard of care or any departure from that standard.

Section 26-2-601, MCA, enacted in 2005 and effective that year, established

qualifications for medical malpractice expert witnesses. As a result, it must be considered

in conjunction with a district court’s admission of expert testimony pursuant to M. R.

Evid. 702. Rule 702 requires that expert witnesses be qualified by way of “knowledge,

skill, experience, training, or education.” M. R. Evid. 702. We have encouraged trial

courts to “construe liberally the rules of evidence so as to admit all relevant expert

testimony” when presented with scientific evidence. State v. Damon, 2005 MT 218,

¶¶ 17-19, 328 Mont. 276, 119 P.3d 1194 (2005). This is done with the understanding that

“ ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction

on the burden of proof are the traditional and appropriate means of attacking shaky but

admissible evidence.’ ” Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 62, 289

Mont. 1, 961 P.2d 75 (quoting Daubert v. Merrell Dow Pharms, Inc., 509 U.S. 579, 596,

113 S. Ct. 2786 (1993)).4


4
  While Daubert was limited to a court’s consideration of novel scientific evidence, its rationale for the
liberal admission of scientific evidence “is wholly consistent with our decision in [Barmeyer v. Montana
Power Co., 202 Mont. 185, 657 P.2d 594 (1983), overruled on other grounds by Martel v. Montana
Power Co., 231 Mont. 96, 752 P.2d 140 (1988)] concerning the admissibility of scientific evidence in
general.” Hulse, ¶ 63.

                                                    9
¶24    While we have not previously considered the effect of § 26-2-601, MCA, it adds

to Rule 702’s foundational requirements when courts consider medical malpractice

experts, stating:

       (1) A person may not testify as an expert witness on issues relating to
           negligence and standards of care and practice in an action on a
           malpractice claim, as defined in 27-6-103, for or against a health care
           provider, as defined in 27-6-103, unless the person:

           (a) is licensed as a health care provider in at least one state and routinely
               treats or has routinely treated within the previous 5 years the
               diagnosis or condition or provides the type of treatment that is the
               subject matter of the malpractice claim or is or was within the
               previous 5 years an instructor of students in an accredited health
               professional school or accredited residency or clinical research
               program relating to the diagnosis or condition or the type of
               treatment that is the subject matter of the malpractice claim; and
           (b) shows by competent evidence that, as a result of education, training,
               knowledge, and experience in the evaluation, diagnosis, or treatment
               of the disease or injury that is the subject matter of the malpractice
               claim against the health care provider, the person is thoroughly
               familiar with the standards of care and practice as they related to the
               act or omission that is the subject matter of the malpractice claim on
               the date of the incident upon which the malpractice claim is based.

       (2) If the malpractice claim involves treatment that is recommended or
           provided by a physician as defined in 37-3-102, a person may not testify
           as an expert witness with respect to issues of negligence or standards of
           care and practice concerning the treatment unless the person is also a
           physician.

       (3) A person qualified as an expert in one medical specialty or subspecialty
           is not qualified to testify with respect to a malpractice claim against a
           health care provider in another medical specialty or subspecialty unless
           there is a showing that the standards of care and practice in the two
           specialty or subspecialty fields are substantially similar. This subsection
           (3) does not apply if the subject matter of the malpractice claim against
           the health care provider is unrelated to the relevant specialty or
           subspecialty.

Section 26-2-601, MCA.

                                              10
¶25    Here, the court applied § 26-2-601, MCA, to exclude Dr. Joseph’s testimony,

determining that because he was not a radiologist, he could not testify on Dr. Giuliano’s

standard of care. However, Defendants and the court too narrowly conceived the subject

matter of Plaintiffs’ claim and, as a result, incorrectly excluded Dr. Joseph’s testimony.

When the specifics of Dr. Joseph’s deposition and experience are applied to the

requirements of § 26-2-601, MCA, and the subject of Plaintiffs’ claim, it is clear that Dr.

Joseph qualifies as an expert.      Specifically, Dr. Joseph is licensed to practice in

California, treats bacterial meningitis, and provides the type of treatment at issue,

infection prevention during a myelogram, satisfying Subsection 1(a). Moreover, Dr.

Joseph is board certified in infection prevention, investigates and treats nosocomial

infections, has investigated post-myelogram meningitis infections, and has developed

infection control procedures that require radiologists to wear masks during myelograms.

Recognizing that the wearing of a mask during the myelogram is the “act or omission that

is the subject matter of the malpractice claim,” it is clear that Dr. Joseph satisfied

Subsection 1(b). Similarly, as Dr. Joseph is a physician testifying about a physician, he

satisfied Subsection 2.

¶26    Subsection 3 forbids one medical specialty testifying against another without a

showing that the standards of care in the relevant specialties are “substantially similar” or

that the claim’s subject matter is unrelated to radiology. Here, Plaintiffs contest an

infection prevention procedure that, according to Dr. Joseph, does not involve technical

details particular to either radiology or myelograms. As Dr. Joseph testified, wearing a

mask during a myelogram is among those infection control procedures, such as room

                                             11
cleaning, hand washing, wearing appropriate surgical attire, and draping, that are “similar

for other invasive procedures.” Dr. Joseph further testified that wearing a mask applies

“anytime something was injected into the spinal cord.” Based on this testimony, it is

evident that the infection control procedure at issue is not unique to radiology, and

logically applies to other medical specialties.

¶27    Since the Plaintiffs allege that Katherine’s injuries were caused by Dr. Giuliano’s

failure to adhere to proper infection control procedures during injection of fluid into

Katherine’s spinal cord, there is an intersection between the specialties of infection

prevention and radiology that arises in this case. Dr. Joseph has sufficient expertise

concerning the subject matter of Plaintiff’s claim and the medical procedure before the

court to qualify as an expert witness under § 26-2-601, MCA. Dr. Joseph demonstrated

that infection prevention is not unique to any medical specialty and that he had

experience in promulgating infection control standards that applied to radiologists and

myelograms. From our review of Dr. Joseph’s deposition, it is clear that the applicable

standards of care in infection prevention and radiology, at least with regards to

myelograms, are substantially similar, satisfying § 26-2-601(3), MCA. Thus, § 26-2-601,

MCA, does not prevent Dr. Joseph’s testimony on Dr. Giuliano’s standard of care. The

court’s holding to the contrary was an incorrect application of the statute and an abuse of

discretion.

¶28    B.     Is Dr. Joseph qualified to testify as an expert on SVH’s standard of care




                                             12
under § 26-2-601, MCA?5

¶29     The court excluded Dr. Joseph’s testimony on SVH’s standard of care, focusing on

Plaintiffs’ use of both CDC recommendations and the testimony of Dr. William Rutala,

MD, an infectious disease expert retained by Defendants. The court took Dr. Rutala’s

testimony to indicate that because the CDC recommendations did not set the standard for

SVH, “SVH had no duty to require Dr. Giuliano to wear a mask during a myelogram.”

The court also found that radiology standards of care were not “usurped or controlled” by

SVH’s own policies on infection control, but that “the standards of care for a given

specialty still control.”       On appeal, SVH primarily argues that Dr. Joseph was not

qualified to testify on the hospital’s standard of care because he is not a radiologist.

¶30     Again, both the court and SVH misconstrue the subject matter of Plaintiffs’ claim

against SVH. Plaintiffs’ complaint alleges that “Defendants failed to adhere to proper

infection control measures” in violation of the required standards of care. SVH correctly

points out that it is not vicariously liable for any negligence by Dr. Giuliano. See Section

28-10-103, MCA; Estates of Milliron v. Francke, 243 Mont. 200, 204, 793 P.2d 824, 827

(1990). SVH argues that, given the theory of Plaintiffs’ case, “without an underlying

breach by the radiologist, there can be no breach by the hospital[.]” Even under SVH’s

theory, however, it does not necessarily follow that only a radiologist may opine on

hospital-wide infection control policies. Dr. Joseph testified that “it’s the role of the

hospital to be sure that physicians practice appropriate infection control” and that the
5
  Section 26-2-601, MCA, applies to Dr. Joseph’s testimony concerning SVH’s standard of care by way
of its application to “a health care provider, as defined in 27-6-103.” Section 26-2-601(1), MCA. Section
27-6-103(3) defines “health care provider” to include “health care facility,” which in turn is defined by
§ 27-6-103(2)(a) to include hospitals as defined by § 50-5-101(28)(a), MCA.

                                                   13
hospital’s infection preventionist “has the obligation to investigate something that is

being done which is against the recommendations of the CDC.”

¶31   Plaintiffs argue that Dr. Joseph is qualified to testify on the hospital’s standard of

care by virtue of his training and experience as the Chair of various hospital Infection

Control Committees. We agree. Dr. Joseph has a degree in medical management, is

board certified in infectious diseases, and has developed hospital infection control

policies for invasive procedures in radiology, meeting the requirements of § 26-2-601(1)-

(2), MCA. Dr. Joseph satisfies § 26-2-601(3), MCA, due to his qualification in hospital

infection prevention, the focus of Plaintiffs’ claim.    Indeed, Dr. Joseph opined that

according to his experience and training, “every hospital should have an infection-control

procedure that discusses room cleaning, hospitals should have an infection-control

procedure that discusses wearing a mask, appropriate patient draping and how conduct

should be done in a myelogram room.” He further stated that such policies must be

written and that the hospital must engage in some form of education. Dr. Joseph testified

that these policies required wearing masks during myelograms in 2009 and that he had

not seen a policy at SVH that applied in 2009 and met these standards. It is unclear who,

if not Dr. Joseph, could qualify to testify on SVH’s standard of care. He has training in

infection prevention and has worked for over two decades in the specialty that forms the

basis of Plaintiffs’ claim against SVH. His experience and testimony directly apply to

Plaintiffs’ claim against SVH.

¶32   Dr. Joseph was trained and works in infection control. Plaintiffs claim SVH was

negligent in promulgating insufficient infection control policies.     By its own terms,

                                            14
SVH’s infection control program from 2009, which Dr. Joseph reviewed, applies to

“consulting staff from all disciplines of the hospital” and patients “seeking services

provided in all SVH facilities.” According to the SVH infection plan for 2009, the

hospital’s Infection Preventionists had “the authority to initiate any appropriate Infection

Prevention & Control Program or studies when it is identified there may be a danger to

patients or personnel.” Dr. Joseph’s testimony directly contests the adequacy of this

program. The court’s exclusion of this testimony was an abuse of discretion and an

incorrect application of § 26-2-601, MCA. An infection preventionist is surely qualified

to testify on the adequacy of infection prevention policies.

¶33     2. Did the District Court err by excluding Dr. Joseph’s expert medical opinion

regarding causation?

¶34     Plaintiffs sought to qualify Dr. Joseph as an expert under M. R. Evid. 702 to

establish causation. Dr. Joseph testified that Dr. Giuliano’s failure to wear a mask and

SVH’s failure to establish policies requiring masks during myelograms caused

Katherine’s death. The court determined that Dr. Joseph’s causation opinion was “based

upon conjecture,” was “speculative in nature,” and “[did] not meet the ‘more likely than

not’ standard.” The court specifically faulted the lack of literature on post-myelogram

meningitis caused by GBS, the lack of cases involving oral transmission of GBS, and the

“90-95 percent chance that Dr. Giuliano was not colonized with GBS in her pharynx.”6

Defendants largely echo these claims on appeal.


6
   We note that both the court and Defendants were incorrect to conflate the rarity of meningitis or GBS
in general with the specific probability of causation at issue in this case.

                                                   15
¶35    M. R. Evid. 702 permits expert testimony “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or to

determine a fact in issue . . . .” M. R. Evid. 702. The witness must be “qualified as an

expert by knowledge, skill, experience, training, or education . . . .” M. R. Evid. 702.

Once so qualified, the expert “may testify thereto in the form of an opinion or otherwise,”

M. R. Evid. 702, and medical opinions must be based on the probability that it is “more

likely than not” the alleged breach caused the injury. Addison, ¶ 19. Additionally, “[i]n

Montana, an expert's reliability is tested in three ways under Rule 702, M. R. Evid.: (1)

whether the expert field is reliable, (2) whether the expert is qualified, and (3) whether

the qualified expert reliably applied the reliable field to the facts.” Harris v. Hanson,

2009 MT 13, ¶ 36, 349 Mont. 29, 201 P.3d 151. The last question is for the finder of

fact. Harris, ¶ 36.

¶36    Here, Dr. Joseph is board certified in infectious diseases and epidemiology. These

are recognized fields of scientific study and Dr. Joseph’s board certifications qualify him

as an expert. Dr. Joseph expressed the opinion that Dr. Giuliano’s failure to wear a mask

was the “most likely” cause of Katherine’s meningitis. Specifically, Dr. Joseph testified

that Dr. Giuliano’s throat was the most likely source of the GBS bacteria, and that the

failure to wear a mask allowed the GBS to travel from Dr. Giuliano’s throat to

Katherine’s CSF when the needle was inserted into her spinal column. Dr. Joseph based

this opinion on his decades of experience in infection prevention and epidemiology, his

analysis of cases involving post-myelogram meningitis, and the specific circumstances of

Katherine’s infection. However, the court seemed to take issue with Dr. Joseph’s use of

                                            16
what it regarded as suspect terminology.      In particular, the court cited Dr. Joseph’s

statements that GBS meningitis following a myelogram is “rare times rare,” that science

can only “speculate” as to how, exactly, a bacterium travels from the oral pharynx into

the CSF, and his use of “suspicion” while discussing how the GBS bacteria entered

Katherine’s CSF. Based on these statements, the court concluded that Dr. Joseph’s

testimony on causation failed to meet the requirements of M. R. Evid. 702 and was not

based on a “reasonable medical certainty.”

¶37   Regarding Dr. Joseph’s word choice, we must not let scrutiny of an expert’s

phrasing cloud the substantive appraisal of their testimony. Ford v. Sentry Cas. Co.,

2012 MT 156, ¶ 42, 365 Mont. 405, 282 P.3d 687. It is well-noted that doctors are not

lawyers and imposing strict legal terminology requirements improperly places form over

substance. We have previously found that “the probative force of the opinion ‘is not to

be defeated by semantics if it is reasonably apparent that the doctor intends to signify a

probability supported by some rational basis.’ ” Ford, ¶ 42 (quoting Miller v. Natl.

Cabinet Co., 8 N.Y.2d 277, 168 N.E.2d 811, 813, 204 N.Y.S.2d 129 (1960)). Dr.

Joseph’s use of “speculate” or “suspicion” does not defeat the probative value of his

opinion.

¶38   Recognizing this focus on substantive reliability, it is apparent that Dr. Joseph’s

opinion on causation, while not phrased in precise legal terms, met the more likely than

not standard. Dr. Joseph clearly stated that he believed it was “most likely,” a statement

of probability, that Dr. Giuliano was the source of the GBS and that the failure to wear a

mask was the cause of Katherine’s meningitis. Indeed, when asked whether the GBS

                                             17
“had to have come from another person,” Dr. Joseph stated, “[m]ore likely than not it

came from another person.” When commenting specifically, Dr. Joseph identified oral

flora exiting Dr. Giuliano’s uncovered mouth as “the most likely” source of the infection.

To form these opinions, Dr. Joseph compared the probable sources of GBS infection in

the SVH radiological suite on June 17, 2009, including Katherine’s skin and Dr.

Giuliano’s mouth. He applied case studies linking post-myelogram meningitis to the

treating radiologists’ oral flora, identified radiologists’ uncovered mouths as the most

likely source of post-myelogram infections, and testified that “numerous publications”

had shown that masks generally reduced “respiratory shedding” of bacteria from the oral

cavity. Dr. Joseph also testified that Katherine’s skin was an unlikely source of GBS

considering the rapid onset of the meningitis and the course of antibiotics that Katherine

had taken prior to the procedure. Applying his training and experience to these facts, Dr.

Joseph gave an expert opinion that Dr. Giuliano’s failure to wear a mask “most likely”

caused Katherine’s meningitis. Whether Dr. Joseph “gathered and examined sufficient

facts, and correctly applied the facts to reach his opinions, was a question for the jury to

decide after cross-examination, presentation of contrary evidence, and application of the

law.” Harris, ¶ 37.

¶39    From the foregoing, we conclude that it was an abuse of discretion for the court to

find that Dr. Joseph’s opinion was inadmissible under M. R. Evid. 702 and our Dallas

progeny.   Moreover, despite Defendants’ claims to the contrary, Plaintiffs are not

required to trace the precise path of the infecting GBS bacterium from Dr. Giuliano’s

mouth into Katherine’s CSF to satisfy the more likely than not standard. We require

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experts to opine on probability, and this standard does not require the level of exactitude

that Defendants claim.

¶40    This analysis comports with our holding in Butler. In Butler, we upheld the

District Court’s exclusion of a medical expert’s testimony that one doctor’s epidural

injection, when weighed against a second injection, “could have” caused the plaintiff’s

infection. Butler, ¶ 15. There, the expert indicated that it was a possibility that the other

injection could have caused the infection. Butler, ¶ 15. When presented with the only

two viable options, the expert equivocated, and we held that this did not meet the

required “more likely than not” standard. Butler, ¶ 15; see also Hinkle ex rel. Hinkle v.

Shepherd Sch. Dist. # 37, 2004 MT 175, ¶ 38, 322 Mont. 80, 93 P.3d 1239. Here, in

contrast, when Dr. Joseph was presented with the two possible sources of infection,

Katherine’s skin and Dr. Giuliano’s oral pharynx, Dr. Joseph stated it was “most likely,”

based on the available scientific literature, that the infection came from Dr. Giuliano and

that “in my opinion I don’t see a more likely source for this bacteria.” If, in Dr. Joseph’s

opinion, no other possible source is more likely and Dr. Giuliano is the most likely, this

surely meets our “more likely than not” standard.

¶41    3. Did the District Court err in granting summary judgment?

¶42    Because we conclude that the court abused its discretion by excluding Dr.

Joseph’s testimony on the applicable standards of care and causation, we therefore must

vacate the orders of summary judgment in favor of both Dr. Giuliano and Saint Vincent’s

Hospital. Butler, ¶ 21.

¶43    4. Did the District Court err by granting deposition costs to Defendants?

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¶44   Because we are reversing and remanding the court’s grant of summary judgment,

Plaintiffs’ claim concerning the recovery of deposition costs is moot. Havre Daily News,

LLC v. City of Havre, 2006 MT 215, ¶ 31, 333 Mont. 331, 142 P.3d 864.

                                    CONCLUSION

¶45   The District Court’s October 11, 2011, judgment is reversed and remanded for

further proceedings consistent with this Opinion.



                                                /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE
/S/ BRIAN MORRIS




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