                                                                                           06/23/2020


                                           DA 19-0439
                                                                                       Case Number: DA 19-0439

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2020 MT 161N


THOMAS EMIL SLIWINSKI,

               Plaintiff and Appellant,

         v.

STATE OF MONTANA, JAMES SALMONSON,
PAUL REES, CINDY HINER, REGINALD MICHAEL,
and CONNIE WINNER,

               Defendants and Appellees.

APPEAL FROM:           District Court of the Third Judicial District,
                       In and For the County of Powell, Cause No. DV 18-83
                       Honorable Ray J. Dayton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Thomas Emil Sliwinski, Self-Represented, Deer Lodge, Montana

                For Appellees:

                       Timothy C. Fox, Montana Attorney General, Jeffrey M. Doud, Assistant
                       Attorney General, Helena, Montana


                                                   Submitted on Briefs: May 20, 2020

                                                              Decided: June 23, 2020


Filed:
                                 oe,,6tA- -if
                       __________________________________________
                                         Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion, shall not be cited and does not serve

as precedent. Its case title, 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     Thomas Emil Sliwinski appeals the order of the Third Judicial District Court,

Powell County, granting the State of Montana’s (State) Motion for Summary Judgment

and dismissing Sliwinski’s complaint. Sliwinski contends the District Court erred when it

granted summary judgment in favor of the State because he failed to timely disclose his

expert witness, and when it did not hold a hearing on the summary judgment motion.

¶3     On September 9, 2004, Sliwinski was charged with bail jumping after failing to

appear for probation revocation proceedings related to two previous felony convictions.

He fled to Mexico where he suffered significant injuries after being stabbed multiple times

in the abdomen. After he was apprehended in 2015, he underwent a number of surgeries

at the University of California San Diego. After his surgeries, Sliwinski was transported

back to Montana State Prison (MSP). He developed a fistula in his abdomen and was

treated at MSP.

¶4     On September 5, 2018, Sliwinski filed suit against the State alleging medical

negligence in the treatment of his fistula. On December 19, 2018, the District Court held

a scheduling conference and issued a scheduling order requiring the parties to disclose their




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expert witnesses by April 26, 2019. Sliwinski did not file his expert witness disclosure by

the deadline.

¶5     On May 6, 2019, Sliwinski moved to continue the expert witness disclosure deadline

by six months. The next day, the State moved for summary judgment. Sliwinski eventually

filed his expert witness disclosure on May 17, 2019. On July 8, 2019, the District Court

granted the State’s summary judgment motion upon finding that Sliwinski had not

sufficiently alleged a medical negligence claim because he did not disclose a medical

expert that would testify to the applicable standard of care, or that the State deviated from

that standard.

¶6     We review a district court’s ruling on summary judgment de novo, applying the

same M. R. Civ. P. 56 criteria as the district court. Vision Net Inc. v. State, 2019 MT 205,

¶ 6, 397 Mont. 118, 447 P.3d 1034 (citing Bailey v. State Farm Mut. Auto Ins. Co.,

2013 MT 119, ¶ 18, 370 Mont. 73, 300 P.3d 1149). Summary judgment may be granted if

the moving party can show there is no genuine issue of material fact, and that the moving

party is entitled to judgment as a matter of law. M. R. Civ. P. 56; Flathead Bank of Bigfork

v. Masonry by Mueller, Inc., 2016 MT 269, ¶ 5, 385 Mont. 214, 383 P.3d 215.

¶7     We review a district court’s decision to deny conducting a hearing on summary

judgment for an abuse of discretion. Richards v. Cty. of Missoula, 2009 MT 453, ¶ 16,

354 Mont. 334, 223 P.3d 878. “A court abuses its discretion if it acts arbitrarily, without

employment of conscientious judgment, or exceed[s] the bounds of reason resulting in




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substantial injustice.”   Pumphrey v. Empire Lath & Plaster, 2006 MT 99, ¶ 16,

332 Mont. 116, 135 P.3d 797 (citations omitted, alteration in original).

¶8     In order to establish a medical malpractice action, a plaintiff must

establish: “(1) the applicable standard of care, (2) the defendant departed from that standard

of care, and (3) the departure proximately caused the plaintiffs injury.” Estate of Wilson v.

Addison, 2011 MT 179, ¶ 17, 361 Mont. 269, 258 P.3d 410. “Without expert testimony to

establish these elements, no genuine issue of material fact exists and the defendant is

entitled to judgment as a matter of law.” Estate of Wilson, ¶ 17. See also Hinkle ex rel.

Hinkle v. Shepherd Sch. Dist. #37, 2004 MT 175, ¶ 23, 322 Mont. 80, 93 P.3d 1239 ( “[I]f

a plaintiff fails to offer proof of any one of the elements of negligence (duty, breach,

causation, and damages), then summary judgment in favor of the defendant is proper.”).

We have repeatedly held that:

       [E]xpert testimony is required as to the standard of care, and as to the
       professional’s violation of that standard of care, before a trier of fact may
       find such professional negligent . . . . The rationale for requiring expert
       testimony to establish a standard of care for professionals acting in their
       professional capacity is that such professionals are required to possess a
       minimum standard of special knowledge and ability, and as a result juries
       which are composed of laypersons are normally incompetent to pass
       judgment on such questions without assistance of expert testimony.

Dulaney v. State Farm Fire & Cas. Ins. Co., 2014 MT 127, ¶ 12, 375 Mont. 117,

324 P.3d 1211 (quoting Newville v. Dep’t. of Family Servs., 267 Mont. 237, 257,

883 P.2d 793, 805 (1994)).

¶9     Sliwinski did not disclose a medical expert until May 17, 2019, more than two weeks

after the deadline; nor did he seek an extension of the deadline until after the deadline had
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passed. Without a medical expert, he could not establish the required elements of his

medical malpractice claim. The District Court therefore correctly determined that no

genuine issue of material fact existed and that the State was entitled to summary judgment.

¶10    Sliwinksi also argues that his expert witnesses were qualified to testify, and that the

District Court erred when it did not address his motion to continue the expert witness

disclosure deadline, motion to modify the scheduling order, and motion to compel

discovery. But even these motions were untimely, having been filed after Sliwinski had

already missed the expert disclosure deadline.        Because Sliwinski’s expert witness

disclosure was untimely and dispositive of his medical malpractice claim, we need not

consider the merits of his arguments.

¶11    Sliwinski’s contention that the District Court erred by declining to conduct a hearing

on    the     summary       judgment      motion,      is    similarly     without     merit.

Mont. R. Civ. P. Rule 56(c)(2)(A) states that “[t]he right to a hearing is waived unless a

party requests a hearing within 14 days after the time for filing a reply brief has expired.”

We have previously held that the purpose of summary judgment hearings is for the district

court to consider whether genuine issues of material fact exist as opposed to considering

legal arguments. Cole v. Flathead Cty., 236 Mont. 412, 418, 771 P.2d 97, 101 (1989).

“[A] hearing may not be necessary in ‘extraordinary circumstances’ before an order

granting summary judgment.” Richards, ¶ 17 (citing Linn v. City Cty. Health Dep’t,

1999 MT 235 ¶ 8, 296 Mont. 145, 988 P.2d 302)). We have recognized that there are

circumstances when, under the law and facts presented, “the movant would be so clearly

                                              5
entitled as a matter of law to summary judgment that a district court might by order

dispense with the necessity of a hearing.” Cole, 263 Mont. at 419. 771 P.2d at 101.

See also RN & DB, LLC v. Stewart, 2015 MT 327, ¶ 44, 381 Mont. 429, 362 P.3d 61

(“[W]e will not put a district court in error for failing to hold a summary judgment hearing

if the hearing testimony would not raise any issue of material fact.”); Virginia City v. Olsen,

2002 MT 176, ¶ 16, 310 Mont. 527, 52 P.3d 383 (quoting Cole, 236 Mont. at 419,

771 P.2d at 101) (“[W]e have recognized that ‘there may be an occasion when under the

law and the facts adduced, the movant would be so clearly entitled as a matter of law to a

summary judgment that a district court might by order dispense with the necessity of a

hearing.’”).

¶12    Although Sliwinski requested a hearing on the State’s summary judgment motion,

it could not have helped establish a genuine issue of material fact. It is undisputed that

Sliwinski did not timely file his expert witness disclosure which, in turn, meant he could

not establish the elements of his medical malpractice claim. A hearing would not have

changed this fact. The State was clearly entitled as a matter of law to summary judgment.

The District Court did not err in granting the State’s motion for summary judgment without

holding a hearing.

¶13    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review. Affirmed.

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                           /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
/S/ LAURIE McKINNON




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