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                                                                     No. 98-453

                                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                  1999 MT 287N



ROBERT FERGUSON,

                  Plaintiff and Appellant

                  v.

RONALD H. ULLMAN, M.D.,

a.k.a./d.b.a ULLMAN EYE CLINIC, P.C.,

                                                                                                                  Defendant
                                                                                                                  and
                                                                                                                  Respondent




                                                          APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Thomas M. McKittrick, Judge presiding.




COUNSEL OF RECORD:

For Appellant:

Carl A. Hatch, John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, Montana



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For Respondent:

James E. Aiken, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana




Submitted on Briefs: April 22, 1999

Decided: November 23, 1999

Filed:




__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.



      1. ¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
         Rules, the following decision shall not be cited as precedent but shall be filed as a public
         document with the Clerk of the Supreme Court and shall be reported by case title,
         Supreme Court cause number, and result to the State Reporter Publishing Company and
         to West Group in the quarterly table of non-citable cases issued by this Court.
      2. ¶ Appellant Robert Ferguson (Ferguson) appeals a judgment entered on June 19, 1998, in
         favor of Ronald H. Ullman (Ullman) following a jury trial in the Eighth Judicial District
         Court, Cascade County. Specifically, Ferguson contends that the District Court erred
         when it denied his motion at trial to exclude or limit the testimony of Ullman’s expert
         witness.
      3. ¶ We affirm.

                                                      Factual and Procedural History

      4. ¶ This was a medical malpractice case filed against Ullman, an ophthalmologist, who


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        provided medical care to Ferguson for glaucoma-related afflictions, from July 1991
        through spring of 1992. A complaint was filed by Ferguson on February 14, 1995.
        Ferguson alleged that he suffered permanent injuries resulting from a surgical procedure
        known as a trabeculectomy, performed by Ullman on Ferguson’s left eye, which was
        intended to relieve the inherent pressure associated with glaucoma.
     5. ¶ Pursuant to a District Court scheduling order, Ullman disclosed the name of his expert
        witness, a Dr. Jonathan Herschler (Herschler), along with Herschler’s curriculum vitae,
        on February 13, 1997. Subsequently, Ullman timely answered Ferguson’s interrogatories
        on April 3, 1997. Of particular relevance here, Interrogatory No. 7 requested the
        following information:

       Please identify each person you expect to call as an expert witness at the trial of this
       matter, including the name, address and occupation or profession of each such expert.

       (a) For each expert, state the subject matter on which that person is expected to testify;

       (b) For each expert, state the substance of the facts as to which that person is expected to
       testify; and

       (c) For each expert, state the substance of the opinion to which that person is expected to
       testify.

     6. ¶ In response, Ullman stated that Herschler would testify "specifically . . . regarding the
        medical care, the laser trabeculoplasty, the trabeculectomy, and the operation to remove
        the clot, all as performed by Dr. Ullman."
     7. ¶ Ullman further stated that it was Herschler’s observation that Ferguson’s condition
        presented "what is thought to be a congenital abnormality," and that such patients
        "experience lower success rates than do older glaucoma patients." Additionally, it was
        Herschler’s opinion that "the care and treatment provided by [Ullman] fell within
        accepted standard of ophthalmologic care," and that it was not beneath the standard of
        care for Ullman to "attempt to control the pressure by the laser procedures and to perform
        half the procedure at one time."
     8. ¶ Ullman further addressed Herschler’s opinions by stating that Herschler would testify
        that the post-operation complications suffered by Ferguson were "recognized
        complications of the surgical procedure," identified these complications as the "blood
        clot, the leak, and the ptosis," and stated that "following surgery the aqueous humor is
        abnormal and may result in blocking the filtering process."
     9. ¶ Ullman stated that Herschler’s opinions were based on his review of the records
        collected and provided by the Montana Medical-Legal Panel, as well as his training,
        teaching, research, and practice experience. Furthermore, in response to Interrogatory No.

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     9, Ullman stated that the data or other information considered by Herschler included a
     "Copy of the claim before the Medical-Legal Panel, copy of the Medical-Legal Panel
     records, and copy of the Complaint."
 10. ¶ Between April 3, 1997, and the date of trial, June 8, Ferguson did not file further
     interrogatories, or move the court for further discovery, with respect to Herschler.
 11. ¶ Prior to Herschler taking the witness stand at trial on June 11, 1998, Ferguson orally
     moved the court to preclude Herschler from "testifying and giving any medical opinions
     regarding the medical care rendered by Dr. Ullman including all preoperative, operative,
     and postoperative activities" on the ground that the expert witness interrogatory
     disclosures were deficient in providing the substance of facts related to such testimony.
     The court denied the motion, and permitted Herschler to testify. During Herschler’s
     testimony, counsel for Ferguson did not raise any objections.
 12. ¶ The jury found for Ullman, and the District Court issued a judgment on June 19, 1998.
     From this judgment Ferguson now appeals.

                                                               Standard of Review

 13. ¶ Normally, the determination regarding the ability of a witness to testify is in the sound
     discretion of the trial court. Montana Power Co. v. Wax (1990), 244 Mont. 108, 112, 796
     P.2d 565, 567 (citation omitted). The trail court’s determination will not be disturbed on
     appeal unless the appellant shows an abuse of discretion. Montana Power Co., 244 Mont.
     at 112, 796 P.2d at 567 (citation omitted).
 14. ¶ The test for abuse of discretion is whether the trial court acted arbitrarily without
     employment of conscientious judgment or exceeded the bounds of reason resulting in
     substantial injustice. See C. Haydon Ltd. v. Montana Mining Properties, Inc. (1997), 286
     Mont. 138, 146, 951 P.2d 46, 51 (citation omitted). We will not substitute our judgment
     for the district court's unless it clearly abused its discretion. See C. Haydon Ltd., 286
     Mont. at 146, 951 P.2d at 51 (citation omitted).

                                                                       Discussion

 15. ¶ The one issue presented by Ferguson on appeal is whether the District Court abused its
     discretion, thereby committing reversible error, when it denied Ferguson’s motion to
     exclude or limit the testimony of Ullman’s expert witness due to Ullman’s failure to
     adequately respond to interrogatory requests. Specifically, Ferguson argues that Montana
     Rules of Civil Procedure 26(b)(4)(A)(i), as well as 26(e)(1)-(2), require full and complete
     answers to interrogatories and timely supplementation, and Ullman failed to comply with
     these rules with regards to his responses to Ferguson’s expert witness inquiry.
 16. ¶ Prior to trial, pursuant to Rule 26(b)(4)(A)(i), M.R.Civ.P., a party may require opposing
     counsel to provide four types of general information pertaining to an expert witness who
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       will be called to testify at trial: 1) identity of the expert witness, 2) subject matter of
       expected testimony, 3) substance of the facts and opinions of expected testimony, and 4)
       a summary of the grounds or basis for each opinion.
 17.   ¶ If a party specifically requests information in one of these four categories, a failure to
       adequately respond may justify a court’s decision to exclude part or all of an expert’s
       testimony. See Rocky Mountain Enter., Inc. v. Pierce Flooring (1997), 286 Mont. 282,
       299, 951 P.2d 1326, 1336-37 (excluding expert testimony for failure to timely identify
       witnesses); Billings Clinic v. Peat Marwick Main & Co, 244 Mont. 324, 343, 797 P.2d
       899, 911 (excluding expert testimony on subject that was not revealed in pretrial
       discovery); Scott v. E.I. Dupont De Nemours & Co. (1989), 240 Mont. 282, 286-87, 783
       P.2d 938, 941 (suggesting expert testimony may be excluded for failure to provide
       substance of opinion); Montana Power Co., 244 Mont. at 112, 796 P.2d at 567 (excluding
       expert testimony for failure to set forth basis of opinions).
 18.   ¶ Additionally, if a party’s counsel finds the interrogatory responses insufficient, he has at
       his disposal a number of tactical remedies, including filing supplemental interrogatories
       and moving the court for further discovery pursuant to subsection (ii) of Rule 26(b)(4)
       (A), which may lead to compelling further answers or deposing the expert witness.
       Should opposing counsel frustrate this process, a party may again turn to the court for
       assistance in compelling compliance and issuing sanctions. See generally Rule 37, M.R.
       Civ.P. As a final measure, counsel at trial may hem in an expert’s testimony by motion or
       objection that the testimony unfairly exceeds the scope of interrogatory responses, which,
       if denied or overruled, preserves that party’s right to appeal such rulings. See Kizer v.
       Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234 (stating that in "order to
       preserve an objection to the admission of evidence for purposes of appeal, the objecting
       party must make a timely objection or motion to strike and state its specific grounds").
 19.   ¶ The underlying policy of the particular discovery rules at issue here is to permit parties
       to formulate their positions on as much evidence as possible prior to trial and then
       prevent unfair surprises at trial. See Workman v. McIntyre Const. Co. (1980), 190 Mont.
       5, 12, 617 P.2d 1281, 1285. In particular, we agree with other courts that malpractice
       actions involving a highly-skilled profession often place plaintiffs’ attorneys in a position
       of vulnerability to surprise and "ambush." See generally Nichols v. Tubb (Miss. 1992),
       609 So.2d 377, 384 (discussing the policies of Rule 26 in medical malpractice cases).
       Thus, if Ullman’s medical expert was permitted to testify, over Ferguson’s objection, as
       to areas entirely beyond the scope established by interrogatory responses, an abuse of
       discretion may have occurred. See Billings Clinic, 244 Mont. at 343, 797 P.2d at 911
       (affirming district court’s refusal to permit testimony of expert to exceed scope of pretrial
       discovery).
 20.   ¶ In a procedurally similar case identified in Ferguson’s brief, we addressed whether the
       district court erred in allowing the opinion testimony of an expert for the defendant. See

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     Scott, 240 Mont. at 286-87, 783 P.2d at 941. The plaintiff, Scott, argued that the expert
     should not have been allowed to testify because the defendant failed to adequately answer
     Scott’s discovery request for the substance of the expert’s opinion. Scott, 240 Mont. at
     286, 783 P.2d at 941.
 21. ¶ Similar to Ferguson here, Scott "propounded interrogatories to the defendant asking the
     names of experts who would testify at trial, the opinions of the experts, and the factual
     bases for the opinions." Scott, 240 Mont. at 286, 783 P.2d at 941. In answer to Scott's
     interrogatories, Dupont merely provided the expert’s name, and a rather brief summary of
     the substance of the expert’s anticipated trial testimony, namely that the expert would
     testify regarding "Respirator testing and precautionary labeling" and the "Effectiveness of
     the vapor_particulate respirator . . . and requirements of proper respirator program
     required of employer." Scott, 240 Mont. at 286, 783 P.2d at 941. In affirming the district
     court’s decision to permit the expert to testify, we concluded that:

       [T]estimony at trial was within the subject matter indicated in the answers to
       interrogatories. While the answers were not as complete as they should have been, Held
       [the expert] was not a surprise witness. The above answers to interrogatories were made
       over three years prior to trial. Scott did not move to compel further answers. The time
       elapsed lessens the importance of these inadequate answers. We do not condone
       defendant's failure to provide full and complete answers to interrogatories. However,
       refusing to allow Held to testify would have been an extreme sanction, given that
       defendant's offense was incompleteness in its answers to interrogatories, not failure to
       answer.

       Scott, 240 Mont. at 286-87, 783 P.2d at 941.

 22. ¶ The foregoing stands in stark contrast to the case relied upon by Ferguson here. In
     Montana Power Co. v Wax, we concluded that the district court did not abuse its
     discretion in precluding expert witness testimony. In that case, Montana Power’s pretrial
     interrogatories requested "the subject matter on which the expert is expected to testify,
     and . . . the substance of the facts and opinions to which the expert is expected to testify
     and a summary of the grounds for each opinion." Montana Power Co., 244 Mont. at 111,
     796 P.2d at 567. In response, counsel for Wax did not provide any indication of how the
     expert witnesses arrived at their opinions. We concluded that this failure would have
     severely limited opposing counsel’s ability to cross_examine the witnesses, and it was not
     an abuse of the district court’s discretion to preclude the expert’s testimony. Montana
     Power Co., 244 Mont. at 112, 796 P.2d at 567.
 23. ¶ As a preliminary matter, before applying the foregoing to the case sub judice, we are
     inclined to agree with Ferguson that exhausting the pretrial discovery process, including
     taking the deposition of expert witnesses, is not required under these rules. Nevertheless,

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     such tactical decisions must be factored into our consideration of whether Ferguson was
     unfairly taken by surprise or disadvantaged at trial due to Ullman’s allegedly deficient
     interrogatory responses, and consequently whether the District Court abused its discretion
     in denying Ferguson’s motion. See, e.g., Birnbaum v. Alliance of American Insurers (Tex.
     App. 1999), 994 S.W.2d 766, 781-82 (concluding that the trail court did not abuse its
     discretion in allowing testimony of expert witness where interrogatory answers, although
     "unresponsive," provided notice of anticipated testimony and party was afforded
     opportunity to depose witness prior to trial). Likewise, we must also factor in the extent
     of time afforded to Ferguson between receiving the interrogatory responses and going to
     trial. See Scott, 240 Mont. at 286-87, 783 P.2d at 941 (stating that the elapse of time
     "lessens the importance of inadequate answers," where interrogatories were answered
     three years prior to trial). Here, counsel for Ferguson had well over one year--due to
     several postponements--and a number of pretrial tools with which to flush out the
     anticipated testimony of Ullman’s expert witness based on Ullman’s fairly broad
     responses to the interrogatories.
 24. ¶ With these factors in mind, we now turn to the substance of Ferguson’s allegations.
     Ferguson claims that Ullman’s response to Interrogatory No. 7 did not "provide one
     single, solitary fact relating to the preoperative, operative, and postoperative care of
     Respondent, all of which was at issue in this case." Ferguson argues that such facts
     should have been provided in response to Interrogatory No. 7(b): "For each expert, state
     the substance of the facts as to which that person is expected to testify" (emphasis added).
     Our review of Ullman’s interrogatory responses, however, leads us to conclude that he
     provided far more factual details concerning Herschler’s anticipated testimony than those
     found in Scott, and in no sense was he unresponsive to a particular query as was the case
     in Montana Power.
 25. ¶ For example, Ullman stated that Herschler would testify "specifically . . . regarding the
     medical care, the laser trabeculoplasty, the trabeculectomy, and the operation to remove
     the clot, all as performed by Dr. Ullman." Such testimony would be based on Herschler’s
     review of the medical records collected and provided by the Montana Medical-Legal
     Panel. The interrogatory responses also provided Herschler’s general factual observations
     as to the nature of Ferguson’s glaucoma condition and the post-operative complications
     that Ullman faced.
 26. ¶ To illustrate the prejudice that resulted from the District Court’s denial of his motion,
     Ferguson contends that Herschler’s lengthy testimony under direct examination regarding
     "visual field tests" was permitted although "there is not one single, solitary reference to a
     visual field in Respondent’s answer to Interrogatory No. 7, under (a), (b), or (c)." The
     trial transcript reveals, however, that such tests, which had already been discussed at
     some length during prior testimony by Ullman himself, are in fact part of the routine eye
     examination process for glaucoma patients. As such, the tests were included in the


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     medical records that Ullman expressly stated Herschler would review in arriving at his
     opinions, and obviously were part of the "medical care" that Ullman represented would
     be included in Herschler’s testimony. Furthermore, Herschler’s testimony regarding these
     tests did not result in any startling revelations. To the contrary, most of this testimony
     merely explained for the jury the purpose of the tests, and to what extent Ullman’s use of
     the tests aligned with the standard of care within the profession.
 27. ¶ The same holds true for other specific portions of Herschler’s testimony addressed in
     Ferguson’s brief. All such testimony was directly related to Herschler’s disclosed
     opinions regarding the standard of care as applied to Ullman’s treatment before, during,
     and after the surgery. We therefore conclude that such specific "undisclosed facts" as the
     "examination of the optic nerve," "the significance of a specific pressure reading," a "cup
     to disc ratio figure," and discussion of various medications used prior to surgery were
     clearly derived from the medical records at both parties’ disposal, and fall within the
     scope of Ullman’s interrogatory responses. Consequently, Ferguson’s argument that he
     was unfairly surprised or placed at a disadvantage by Herschler’s testimony is without
     merit.
 28. ¶ Upon further review of the trial transcripts, we note that had counsel for Ferguson
     believed Herschler’s testimony truly exceeded the scope of the medical records, he failed
     to object at any time during Herschler’s direct testimony. Likewise, his motion at trial
     failed to raise the issue of Ullman’s duty to supplement the interrogatory responses
     pursuant to Rule 26(e), M.R.Civ.P. In sum, we conclude that Herschler’s testimony did
     not introduce any unrelated issues or new lines of defense that necessarily would have
     diminished Ferguson’s ability to cross-examine Herschler or prepare rebuttal evidence.
     We therefore conclude that Ullman’s responses to Interrogatory No. 7 substantially
     complied with Rule 26 of the Montana Rules of Civil Procedure and the District Court
     did not abuse its discretion in denying Ferguson’s motion to exclude the testimony of
     Ullman’s expert witness.
 29. ¶ Finally, we also conclude that the related, minor issue of whether Ullman’s
     interrogatory responses failed to disclose prior cases on which Herschler served as an
     expert is without merit as well. At trial, counsel for Ferguson specifically asked Herschler
     when was the "last time you testified in court," to which Herschler responded "It was in
     Oregon. It was a number of years ago." Counsel for Ferguson then proceeded to ask
     Herschler about other states Herschler had testified in during the "last ten years." In
     Interrogatory request No. 9, Ferguson requested a list of other lawsuits in which
     Herschler had been involved as an expert within the "preceding four years." The three
     cases listed by Ullman, none of which were in Oregon, show that Herschler served only
     as a consultant, and in one case a "prospective witness." Based on the foregoing, we
     conclude that there is absolutely no indication that Ullman did not precisely and
     completely answer the requests for Herschler’s prior experience as an expert witness.


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  30. ¶ Accordingly, the judgment of the district court is affirmed.




/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER




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