                                         No. 96-479

               IN THE SUPREME COURT OF THE STATE OF MONTANA




KEITH WARREN SMITH,

              Plaintiff and Appellant,

         v.
                                                                           Vi\,'!   'i' (1 .!!y)j
ST. VINCENT HOSPITAL; GARY MUNDY, M.D.,
THOMAS P. THIGPEN, M.D., FREDERICK W.
                                                                                                    .?
KAHN, RONALD E. BURNAM, M.D., HOYLE E.
SETZER, M.D., JOHN DOE; JANE DOE,



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone,
                     The Honorable Russell C. Fagg, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Keith Warren Smith, Pro Se, Roundup, Montana

              For Respondents:

                      Robert C. Brown; Poore, Roth & Robinson, Butte, Montana

                      James E. Aiken, Sue Ann Love; Jardine, Stephenson, Blewett & Weaver,
                      Great Falls, Montana

                      Richard F. Cebull; Brown, Gerbase, Cebull, Fulton, Harman & Ross,
                      Billings, Montana


                                                             Submitted on Briefs: March 6, 1997

                                                                           Decided: May 29, 1 9 9 7
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.


       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing Company.

       Keith Warren Smith (Smith), appearing pro se, appeals from the judgments entered

by the Thirteenth Judicial District Court, Yellowstone County, on its underlying orders

granting summary judgment in favor of St. Vincent Hospital and the individual defendants

and from numerous pretrial orders relating to discovery, amendment of pleadings and

disqualification of the district court judge. We affirm.

       We address the following issues on appeal:

       1. Did the District Court abuse its discretion in imposing Rule 11 sanctions against

Smith?

       2. Did the District Court err in denying Smith's motion to disqualify the Honorable

Russell C. Fagg?

       3. Did the District Court err in granting summary judgment on behalf of each of the

defendants?

       Smith filed a medical negligence action against most of the doctors who treated him

from August 27, 1989, through October 31, 1989, as well as against St. Vincent Hospital

(collectively, Defendants). He subsequently moved to amend his complaint to join his wife

                                              2
as a co-plaintiff and the District Court granted Smith's motion, conditioned on Smith's wife

first meeting the requirements of 9 27-6-701, MCA, by presenting her potential claims to the

Montana Medical Legal Panel (MMLP). Smith's wife did not meet the court's condition for

joinder and, therefore, did not become a party to this action.

       Smith inundated the District Court with motions and pleadings. Defendants ultimately

filed motions for summary judgment and discovery was conducted by all parties. The

District Court granted Defendants' motions. Smith appeals.

       1. Did the District Court abuse its discretion in imposing Rule 11 sanctions
       against Smith?

       In September of 1995, the District Court imposed sanctions against Smith, pursuant

to Rule 11, M.R.Civ.P., based on its finding that Smith's motion entitled "Plaintiff [sic] First

Motion for Judicial Notice of Fact and Law, of Bad Faith, Annoyance, Embarrassment, and

Oppression . . ." (motion for judicial notice) and portions of his motion entitled "Co-

Plaintiffs Motion to Proceed In Forma Pauperis" (motion to proceed in forma pauperis) were

frivolous and without merit. Those sanctions included awarding Defendants their costs and

attorneys' fees incurred in pursuing Rule 11 sanctions in response to Smith's motion for

judicial notice; awarding Defendants their costs and attorneys' fees for responding to Smith's

motion to proceed in forma pauperis; striking Smith's motion for judicial notice from the

record; and requiring Smith to request leave of the court to file further documents. The

District Court stated that the purpose of the latter sanction was to eliminate the filing of

frivolous documents by Smith.

                                               3
       Smith argues on appeal that the sanctions imposed were excessive. In particular, he

contends that requiring him to obtain leave of court prior to filing additional documents

placed an "unfair and burdensome disadvantage" on him.

       The purposes of Rule 11, M.R.Civ.P., are to discourage dilatory tactics, help

streamline the litigation process by lessening frivolous claims or defenses, and deter the use

of wasteful and abusive tactics by punishing such tactics. D'Agostino v. Swanson (1990),

240 Mont. 435,444,784 P.2d 919,925. Sanctions are required where an attorney or party

files a document which is frivolous--that is, not well grounded in fact or warranted by

existing law or a good faith argument for the extension, modification or reversal of existing

law--or where a document is filed for an improper purpose such as harassment, delay or

increasing the cost of litigation. See Rule 11, M.R.Civ.P.; D'Aeostino, 784 P.2d at 925.

Here, as indicated above, the District Court's sanctions were based on its finding that Smith

had filed frivolous documents.

       District courts have wide latitude in determining whether the factual circumstances

of a particular case amount to frivolous or abusive litigation tactics requiring the imposition

of Rule 11 sanctions. D'Aeostino, 784 P.2d at 926. We will overturn a district court's

findings on such matters only where clearly erroneous; a district court's conclusion that the

facts constitute a Rule 11 violation will be reversed only if an abuse of discretion is

established. D'Aeostino, 784 P.2d at 926. The type of sanction imposed for a Rule 11

violation is within the district court's sound discretion. D'Agostino, 784 P.2d at 926.
       Smith's motion for judicial notice, which incorrectly included his wife as co-plaintiff,

purportedly was made pursuant to Rule 30(d), M.R.Civ.P. It was based on alleged events

surrounding Defendants' deposition of Smith and his wife and alleged, specifically, that

Defendants' counsel deliberately and deceptively failed to inform him of the building's access

ramps and that Smith suffered muscle cramps from having to bring documents through the

front entrance of the law office as a result.

       Rule 30(d), M.R.Civ.P., clearly does not provide for the type of motion filed by Smith

here. Rule 30(d) allows a party to make a motion during the taking of the deposition that the

deposition itself is being conducted in bad faith or in a manner that unreasonably annoys,

embarrasses, or oppresses the deponent or party; the relief available is an order either

limiting or terminating the examination and an award of expenses incurred in making the

motion.   See Rule 30(d), M.R.Civ.P. Here, Smith's motion was neither made during the
deposition nor premised on conduct by Defendants during the deposition. Nor did Smith

seek any relief beyond an order taking "judicial notice" of the allegations in his motion.

       Smith's motion to proceed in forma pauperis also named Smith's wife as co-plaintiff.

Smith requested the court to waive not only his court costs and fces, but also costs for

photocopying; costs for discovery, including but not limited to expert witness fees; court

reporter fees; costs for deposing experts; fees for any appeals in the action; and "[all1 other

costs and fees, associated with Co-Plaintiffs [sic] cause of action, whatsoever." It is clear
that   5   25-10-404, MCA, authorizes a waiver of court fees only and, therefore, that the

remainder of Smith's motion to proceed in forma pauperis was unauthorized by Montana law.

           The record in this case reflects that the District Court had been inordinately patient

with Smith, allowing him leeway as a pro se litigant, up to the time the Defendants

requested--and the court imposed--sanctions. The record also reflects a pattern by Smith of

filing documents failing to conform to the Montana Rules of Civil Procedure, filing

documents not well grounded in fact or law and ignoring the District Court's warnings

regarding Smith naming his wife as co-plaintiff in documents. A trial court need not

continue to tolerate abusive and frivolous litigation practiccs which waste the time and

resources of the opposing parties and the court.

           Based on our review of the record, we conclude that the District Court did not abuse

its discretion in determining that sanctions were appropriate or in crafting the specific

sanctions imposed.

           2. Did the District Court e n in denying Smith's motion to disqualify the
           Honorable Russell C. Fagg?

           On September 7, 1995, Smith moved to disqualify District Court Judge Russell C.

Fagg from this case pursuant to § 3-1-805, MCA, alleging that "numerous incidents" had

resulted in him losing "any hope in impartial judgment." Specifically, Smith was dissatisfied

with the order requiring his wife to present her claims to the MMLP prior to being joined as

a party and the imposition of sanctions.
        We appointed the Honorable Joe L. Hegel to preside over a hearing on Smith's motion

to disqualify. Judge Hegel scheduled a hearing and gave Smith time to supplemcnt his

motion with an affidavit alleging facts constituting evidence of prejudice or bias by Judge

Fagg. Following the hearing, Judge Hegel denied Smith's motion to disqualify Judge Fagg

on the basis that the record was devoid of any evidence indicating personal bias or prejudice

by Judge Fagg. Smith argues on appeal that Judge Hegel erred.

        Section 3-1-805, MCA, provides for the disqualification of district court judges for

cause. The statute requires the party seeking to disqualify a judge to file an affidavit alleging

facts which show personal bias or prejudice by the presiding judge; the affidavit cannot be

based solely on rulings in the case made by the challenged judge and from which an appeal

could be taken. &g $ 3-1-805, MCA.

        Here, the record reflects that Smith failed to allege any facts which indicate personal

bias or prejudice by Judge Fagg. His motion and arguments to Judge Hegel centered almost

entirely on rulings by Judge Fagg from which an appeal ultimately could be taken. As noted,

a   3 3-1-805, MCA, motion to disqualify cannot be based on a party's dissatisfaction with
rulings in the case.

        Judge Hegel noted that Smith believed Judge Fagg was prejudiced against him

because he was proceeding pro se. As noted above, the record is clear that Judge Fagg

exercised patience with Smith and attempted to explain the requirements of litigation. Judge

Hegel found, and we agree, that
       Judge Fagg has not ruled against Mr. Smith because of his pro se status, but
       because, even after numerous explanations and warnings, Mr. Smith either will
       not or cannot distinguish between what is allowed under the law and what is
       not allowed under applicable law.

       Smith failed to allege facts demonstrating personal bias or prejudice by Judge Fagg.

Accordingly, we conclude that Judge Hegel properly denied Smith's motion to disqualify

Judge Fagg pursuant to 5 3-1-805, MCA.

       3. Did the District Court err in granting summary judgment on behalf of
       Defendants?

       Summary judgment is proper when no genuine issues of material fact exist and the

moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review

a district court's grant of summary judgment de novo, applying the same Rule 56(c) criteria

initially used by that court. Brinkman & Lenon v. P & D Land Enters. (1994), 263 Mont.

238,241, 867 P.2d 1112, 1114 (citation omitted). Only where the moving party satisfies its

initial burden of establishing the absence of a genuine issue of material fact does the burden

shift to the party opposing summary judgment. Matter of Estate of Lien (1995), 270 Mont.

295,298, 892 P.2d 530, 532 (citation omitted).

       The plaintiff in a medical malpractice action ordinarily must produce expert medical

testimony regarding the standard of care and the defendant's deviation from that standard.

See Estate of Nielsen v. Pardis (1994), 265 Mont. 470,473, 878 P.2d 234,235-36 (citations

omitted). The plaintiff must also be able to show that the breach of duty--that is, the
deviation from the standard of care--caused the plaintiffs injuries. Montana Deaconess

Hospital v. Gratton (1976), 169 Mont. 185, 190, 545 P.2d 670, 672.

       Here, Defendants moved for summary judgment based on Smith's failure to identify

an expert witness who would testify as to the hospital's and individual doctors' standard of

care, deviation from that standard and causation. The District Court determined that Smith's

expert witness disclosure failed to indicate that he could establish a prima facie case of

medical malpractice and, as a result, it granted summary judgment in favor of Defendants.

Smith contends on appeal that genuine issues of material fact exist. We disagree.

       In response to Defendants' interrogatories, Smith identified two expert witnesses, Drs.

Gilbert A. Preston and Lawrence A. Cone, and provided written reports from each. Smith

subsequently advised the District Court that Dr. Preston was a "hostile" expert witness who

did not want to provide expert witness testimony on Smith's behalf. The court informed

Smith that Dr. Preston could not be forced to serve as an expert and properly refused to

consider Dr. Preston's written report in resolving this issue.

       Dr. Cone's report did not set forth the applicable standard of care or state that any of

the Defendants deviated from such a standard. With regard to causation, and even assuming

arguendo that a deviation from the standard of care existed, Dr. Cone noted that Smith

"required valve replacement, which he probably would have needed anyway. . . ." We

conclude that Defendants met their burden by establishing that no genuine issues of material

fact existed and that they were entitled to judgment as a matter of law because Smith did not
establish a prima facie case of medical malpractice through his medical expert; he did not

establish the applicable standard of care, Defendants' deviation from that standard or that any

such deviation caused Smith to require valve replacement.

       Smith argues that affidavits he prepared and Dr. Cone signed, which were submitted

approximately forty-eight days after the deadline for such disclosures, demonstrate that

genuine issues of material fact exist with regard to his medical malpractice claims against

Drs. Bumam and Thigpen. The District Court determined that the untimely affidavits were

not properly before it and that, even considering the affidavits, Smith still failed to raise a

genuine issue of material fact regarding causation. We agree and, because it is clear that the

affidavits were untimely and that no good cause was shown for Smith's failure to comply

with the deadline which had already been extended by more than seven months, decline to

address the affidavits further.

       Finally, Smith argues that genuine issues of material fact exist because Defendants

pleaded the affirmative defense of comparative negligence. This argument is without merit.

Comparative negligence would only become an issue in the event Smith established a prima

facie case of medical malpractice against Defendants. As already discussed, he failed to do

so. We hold that the District Court did not err in granting summary judgment in favor of

Defendants.
       Smith raises numerous other "issues" which either fail to assert specific error, are not

supported by relevant authority or, given our conclusion above, would not affect Smith's

substantial rights even if error were found. We decline to address such "issues."

       Affirmed.




We concur:
