author: JUSTICE HARRISON JUSTICE NELSON JUSTICE TRIEWEILER

text:
    IN THE MATTER OF THE ADOPTION OF J.M.H. and S.B.H., Minors.
    No. 93-477.
    Submitted on Briefs January 20, 1994.
    Rehearing Denied April 14, 1994.
    Decided March 24, 1994.
    51 St.Rep. 290.
    264 Mont. 381.
    871 P.2d 1326.

      For Appellant: Bryan L. Asay, Kelley & Asay Law Firm, Helena.
    For Respondent: Peter S. Lineberger, Lineberger, Walsh & McKenna, Bozeman.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District Court, Gallatin County. The District Court granted the adoptive father’s petition to allow the adoption of J.M.H. and S.B.H. (the children) to proceed without the natural father’s consent. The court further concluded that the natural father was able to pay child support, but failed to do so. The natural father appeals the District Court’s ruling on the consent issue and the court’s denial of a continuance of the May 11, 1993, “best interest” hearing. We affirm.

The issues are:

1. Did the District Court err by finding that the natural father, though able, failed to pay child support?

2. Did the natural father waive his right to be present at the May 11,1993, “best interest” hearing?

Natural father, John Heikkila (John), and natural mother, Karen Beth Sorensen (Karen), were married in 1983 while attending Montana State University in Bozeman, Montana. After the birth of their first daughter, the couple moved to Colorado so that John could attend veterinary school. The couple’s second daughter was bom in 1986. In July 1987, before John graduatedfrom veterinary school, the couple separated. The marriage was dissolved in Colorado on December 28,1988.

The final decree of dissolution addressed, among other things, matters of child custody, visitation, child support and marital debts. John and Karen were awarded joint custody of the children. Karen was named the primary physical custodian. The parties agreed that Karen and the children would return to Montana. John was granted “liberal and generous visitation” in Montana. He was also granted up to ten days of visitation per summer in Colorado, so long as John’s sister escorted the children.

The Colorado court also ordered John to pay child support of $200 per month, less than the amount required by Colorado’s Child Support Guidelines, due to his student status. Visitation and the monthly child support payments were to be renegotiated after John’s graduation from veterinary school or upon securing full-time employment.

Karen returned to Bozeman after the dissolution. While there, she met Timothy Lee Barth (Tim). They were married on December 22, 1990. In May 1990, John graduated, became licensed, and secured a position as a veterinarian in Colorado. Despite the Colorado court’s order, John and Karen never renegotiated visitation and child support.

While John paid $2,050 in child support over the years, he still owes $10,600 in back payments. John’s total debts, including sizable student loans, are about $70,000. John’s tax returns indicated that in 1990, the year he graduated and worked for six months, he earned approximately $15,000. In 1991, he earned $31,367, and in 1992, $32,400.

Two years after Tim and Karen were married, Tim sought to adopt the children. John made numerous attempts to delay and prevent Tim’s adoption of his children. Tim’s petition to the Eighteenth Judicial District Court stated in part:

Since the marriage between KAREN BARTH and the Petitioner, TIMOTHY LEE BARTH, both minor children have resided with the above parents as their natural child[ren].
The Petitioner desires to adopt [J.M.H.] and [S.B.H.] as his own children, to be treated in all respects as if they were the natural children of the Petitioner, to take the family name of BARTH, ... and be entitled to the support, affection and inheritance of the Petitioner in all respects establishing the relationship of parent and child between the Petitioner and [the children].

The court set an adoption hearing for May 11, 1993. In an effort to prevent this hearing, John filed a petition for writ of mandamus with this Court. John’s petition was denied on May 11, 1993 — the same day that the District Court made its findings of fact, conclusions of law and final decree of adoption, granting Tim’s request. John appeals. We affirm.

I

Did the District Court err by finding that the natural father, though able, failed to pay child support?

During the period in which he accrued child support arrearages, John chose to repay his general creditors rather than fulfill his child support obligation. Karen, on the other hand, returned to Montana, where she attended and graduated from Montana State University. At the time she graduated, Karen owed her parents more than $10,000. Her financial situation was compounded because, during most of that period, she was not receiving her $200 monthly child support payments.

John testified that prior to the dissolution, Karen received money from a trust fund established for Karen’s use by her parents. John believes the fund is valued at $60,000 to $70,000, and it largely supported the couple in Colorado. After Tim and Karen were married, with the exception of a two-month period in which John sent $250 in child support, Tim financially supported Karen and the children.

John contends that before and since his graduation in May 1990, he was too poor to make any payments other than those he made. He asserts that he only earned $23,444 after taxes, and had expenses of $24,220, in 1990. John argues that he has: juggled student loans and debts of $72,000; enjoyed no luxuries; no health insurance; no savings; no television; no boat; no snowmobile; one credit card through a gas company; and at one point, he even lost electrical service to his home due to a delinquent bill.

John claims to have a fundamental right — specifically, a liberty interest — in his children, which prevents anyone from “taking” his children without his consent. See § 48-8-111(1), MCA. John asserts that Tim, who wishes to adopt his children, must establish by clear and convincing evidence that John was able to contribute to the support of the children the year before Tim filed the adoption petition.

He argues that Montana law requires strict compliance with the statute that the burden of proof rests with Tim. John contends that he presented overwhelming evidence of his inability to pay during the period in question; that Tim presented no evidence of John’s failure to pay; and that Tim failed to meet his burden of proof. Because no clear and convincing evidence exists that he was able to pay support, John argues that the District Court’s decision must be reversed.

In support of his contention, John refers this Court to § 40-8-111(1), MCA, which provides in pertinent part:

Consent required for adoption. (1) An adoption of a child may be decreed when there have been filed written consents to adoption executed by:
(a) both parents, if living, or the surviving parent of a child, provided that consent is not required from a father or mother:
(v) if it is proven to the satisfaction of the court that the father or mother, if able, has not contributed to the support of the child during a period of 1 year before the filing of a petition for adoption;

The issue in dispute at the November 20,1992, hearing was John’s ability to pay. John argues that the burden of proving his ability to pay during the year prior to the filing of the petition lies with Tim. Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886, 889. Tim met this burden by showing that John earned about $24,000 after taxes, paid $8,376 in student loans, and made payments to other general creditors, including his divorce lawyer. The District Court concluded that, although he was able to pay, he did not contribute to the support of his children in the year before Tim filed the adoption petition. In so finding, the court determined that John’s consent to the adoption was not required.

We will not overturn a district court’s findings unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Adoption of B.L.P. (1986), 224 Mont. 182, 728 P.2d 803. This Court has “long adhered to the standard of review which provides that we will consider only whether substantial credible evidence supports the findings and conclusions of the trial court.” B.L.P., 728 P.2d at 805 (citation omitted).

In B.L.P., this Court enunciated this standard of review in discussing whether the appellant was able to make support payments during the year immediately prior to the date the adoption petition was filed. John refers to the “clear and convincing” standard, which is applicable to the evidence presented at the district court level. However, it is unnecessary that this Court retry the facts under the “clear and convincing” standard. Rather, we review the district court’s findings under the clearly erroneous and substantial credible evidence standards.

At the November 22nd hearing, when asked if he chose to repay creditors rather than pay child support, John stated:

It hasn’t been in preference. They are not more important than my daughters, but it has been paid more out of necessity. I am aware that Karen and Tim are not in need of the money. My girls do not suffer because of a lack of that money and these other bills, they’re — at the present time they had the capacity to hurt me more than what I figured Karen would at that time.

This is not a case of equitable estoppel. Tim and Karen did not refuse any child support offers by John “in order to later assert at the adoption proceeding that [John’s] consent was not necessary.” See Adoption of D.J.V. (1990), 224 Mont. 209, 214, 796 P.2d 1076, 1079. Rather, John “has not performed his legal responsibility as a parent.” See D.J.V., 796 P.2d at 1079.

In a memorandum supporting its December 21, 1992, findings of fact and conclusions of law, the District Court stated:

There is no question that Dr. Heikkila’s borrowings for school have left him in financial trouble. This court cannot accept, however, that the payment of the minimal amount of child support would have led to the father’s downfall. Dr. Heikkila has shown that he can juggle his creditors, especially the student loans, and the court concludes that he could have done so while supporting his children. Indeed, he had a better payment record when he had little earnings as a student.

We agree with the District Court. Parents are obligated to support their children. Sections 40-6-211 and 40-6-214, MCA. The District Court’s determination that John was able to support his children, yet failed to do so, is supported by substantial credible evidence. We hold that the District Court’s findings were not clearly erroneous.

II

Did the natural father waive his right to be present at the May 11, 1993, “best interest” hearing?

The District Court notified all parties by its Order of March 11, 1993, that a “best interest” hearing would be held on May 11, 1993. On May 4, 1993, John requested a continuance of the May 11th hearing. The reason for John’s request was that he had secured counsel, who would need a “reasonable amount of time to familiarize himself with the case.” The District Court denied John’s request on May 8th. Neither John nor his attorney appeared at the May 11th adoption hearing. John argues that the District Court abused its discretion by refusing to grant the continuance he requested.

Ruling on a motion for a continuance is in the sound discretion of the trial court. See Fields v. Wells (1989), 239 Mont. 392, 780 P.2d 1141; In re Marriage of Robbins (1985), 219 Mont. 130, 711 P.2d 1247. In the case before us, John had notice of the hearing, and ample time to secure counsel and arrange transportation from Colorado. Instead, he chose not to attend the hearing or to have counsel represent him. John was afforded the opportunity to attend the hearing, which satisfied all due process requirements as set out in Montana law. See, e.g., Adoption of R.M. (1990), 241 Mont. 111, 785 P.2d 709. Though adequately notified, John effectively waived his right to claim due process violations by failing to attend or dispatch an attorney to the hearing. We hold that the District Court acted well within its discretion when denying John’s motion for a continuance.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICE WEBER concur.

JUSTICE NELSON

specially concurs:

I concur with the Court’s opinion. Something more, however, needs to be said about Dr. Heikkila’s “ability” to pay.

While the dissent has correctly set forth the law with regard to the issue of a parent’s ability to pay, I disagree that, on the facts of this case, the natural father was unable to support his children. True, despite his employment as a doctor of veterinary medicine, his expenses exceed his income. True, also, he is deeply in debt — largely because of student loans which he used to finance his higher education. Agreed, some of his debt is delinquent. Conceded, he lives a spartan life without luxuries and amenities — no television, savings, investments, credit cards, health insurance, boat or snowmobile.

No doubt about it, Dr. Heikkila’s financial situation is bleak. Notwithstanding, he is no worse off than millions of Americans, who, despite the inconvenience of bills which exceed income, dunning creditors, unemployment, sickness, debt, divorce and the fact that whatever can go wrong usually does, somehow find the money each month to support their children. Those families and single parents take on second and third jobs; they put off paying bills; they borrow and scrimp and sacrifice and go on welfare, but, nevertheless, from their inadequate incomes their kids get fed, clothed and sheltered first. It is, frankly, of small concern to a hungry child that his parent’s student loan is delinquent.

I agree with the dissent. The parent-child relationship is likely the most important human relationship that exists. But with the right to be a parent go some responsibilities, not the least of which is the obligation to financially support one’s children, whether they live in one’s own home or with the ex-spouse.

Unfortunately, Dr. Heikkila’s perception of his parental obligation of support mirrors that of “deadbeat” parents nationwide who, on the one hand, sanctimoniously demand their constitutional right to parent, but who, on the other hand, are more than willing to let the custodial ex-spouse, some other family member or third party and/or the taxpayer shoulder the entire burden of feeding, clothing and sheltering the children.

Dr. Heikkila is not unable to support his children; he just chooses to spend what income he has on obligations other than child support. His voluntary spending priorities, sadly, include himself and his general creditors first, and his children not at all. That his spending priorities are misplaced does not equate to an inability to support his children.

The District Court’s decision was correct, and so is this Court’s.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

A natural parent has a “fundamental liberty interest” in his continuing parental relationship with his children. Santosky v. Kramer (1982), 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606; see Matter of R.B., Jr. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. While allowing for the fact that there is great variation in the quality of parent-child relationships, it still may be the most important human relationship that exists. It is for that reason that our courts and legislatures have allowed termination of that relationship without a parent’s consent under only the most extreme circumstances. Those circumstances require not just lack of support, but a degree of culpability that is strikingly absent in this case.

Section 40-8-111, MCA, requires consent of both living natural parents prior to adoption except for limited circumstances. According to subsection (l)(a)(v) of that statute, failure to contribute to the child’s support during the year preceding the petition for adoption is only a basis for waiving consent when it can be proven that the noncontributing parent was “able” to contribute to the child’s support.

We have been insistent in the past that someone petitioning to adopt over the objection of a natural parent must prove not only the absence of support, but that the nonsupporting parent had the ability to contribute to the child’s support. In Matter of Adoption of J.B.T. (1991), 250 Mont. 205, 207-08, 819 P.2d 178, 179, we stated:

For the court to find that a parent’s consent is not necessary to terminate its parental rights, the burden of proof requires that there must be clear and convincing evidence that the parent has not contributed to the support of the child for one year and was able to do so. In re Adoption of S.E. (1988), 232 Mont. 31, 35, 755 P.2d 27, 29. Hence, the statute requires a two-tier analysis before parental rights can be terminated. Matter of Adoption of R.A.S. (1984), 208 Mont. 438, 442, 679 P.2d 220, 223. First, the court must decide if the nonconsenting parent failed to contribute to the support of the child during a period of one year prior to the filing of the petition. The court must then determine if the nonconsenting parent had the ability to pay child support. Matter of Adoption of S.L.R. (1982), 196 Mont. 411, 413-14, 640 P.2d 886, 887. The burden of proof falls upon the petitioner to show that the two-prong test is met. Adoption of R.A.S., 679 P.2d at 223; Adoption of S.L.R., 640 P.2d at 886-87. Because the natural parent can forever lose parental rights, this Court requires strict compliance with the statute. In re Adoption of Biery (1974), 164 Mont. 353, 359, 522 P.2d 1377, 1380. [Emphasis added].

Based upon the standard articulated in the preceding case, the natural father in this case was entitled to a directed verdict following petitioner’s proof.

Petitioner called three witnesses, none of whom had anything relevant to say about the father’s ability to support his two daughters during the previous year. The first witness was Robert Blair, a veterinarian from California, who had graduated from veterinary school with the natural father. Basically he testified to what he had earned in California since graduation. So what?

The next witness was Timothy Barth, the petitioner. He testified that during the previous year the two children who were the subject of the petition had not received support from their natural father, and that to his knowledge the natural father was employed. He also testified that the natural father drove a 1990 blue Chevy pickup. No testimony was given about the father’s ability to pay.

The final witness called by petitioner was Karen Barth, the natural mother of the children. She testified that she had received no child support payments during the previous year, and that pursuant to the decree of dissolution, her former husband was obligated to pay $200 a month. She offered no testimony about his ability to pay child support during the previous year.

The aforementioned witnesses were the sum total of evidence presented by petitioner. As a matter of law, based on our previous decisions, petitioner did not satisfy his burden of proof, and his petition should have been dismissed by the District Court at the conclusion of his evidence.

The only witness to testify about the natural father’s ability to pay was the father himself. He acknowledged that at the time of the hearing he was a practicing veterinarian and that his gross income during the preceding year had been $30,000 to $32,000. However, it was also uncontroverted that his net income for the 12 months preceding the date on which the petition was filed in this case was $23,444, and that his basic living expenses, for bare necessities, during the same period of time were $24,220. In fact, in its Finding of Fact No. 12 the District Court listed those expenses from which the $24,000 figure was arrived at as follows:

12. In the year preceding the filing of the adoption petition, John Heikkila’s living expenses were as follows:

Category Annual Monthly
Rent $3180 $265
Utilities 840 70
Food 3650 300
Clothing 300 25
Entertainment 180 15
Personal care 416 35
Pickup 2513 359
Insurance 1395 115
Fuel 1200 100
Maintenance 280 24
License and Dues 566 47
Attorney Fees 600 50
Life Insurance 564 47
Student Loans 8376 698
Gifts 160 14
Totals $24,220 $2,164

The above figures only take into account those bills that the father actually paid. He had many other bills which he was juggling and periodically was unable to pay. He was in default on three different college loans, and he was also in default on loans which he owed to his mother, his uncle, the Hamilton Cattle Company, and his former wife’s parents. At one time his electricity was shut off for late payment.

He had no television, no savings account, no investments, no major credit cards, and no health insurance.

His total debt at the time of trial was $72,000, including $52,000 for student loans, over $10,000 in back due child support, and the various other debts that have been mentioned. He has not filed for bankruptcy because he testified that the student loans and the child support could not be discharged and all that would be accomplished would be the loss of his pickup, which is necessary for his employment.

At no time since his graduation from veterinary school has the natural father’s income equalled his basic living expenses, and there have been times during that period when he went without a telephone and shared expenses with another in order to survive.

Under these circumstances, what did the District Court, and what does the majority, expect? The question in this case is not whether the natural father’s obligation for child support should be discharged. His debt to his children continues to accrue and will never be discharged, and can be collected when his financial situation improves to the point where he is able to pay it. The question in this case is whether his right to parenthood should be terminated because he willfully refused to pay child support when he was able to do so. We have in the past articulated standards by which “ability’ to pay child support is to be determined. Those standards have been ignored in the majority opinion.

In our recent decision in In re Adoption of V.R.O. and V.N.O. (1991), 250 Mont. 517, 822 P.2d 83, we reiterated the following criteria to be considered when determining whether a nonpaying natural parent had the ability to make child support payments:

Because parental rights involve a fundamental liberty interest, a judicial decree terminating such rights must be supported by clear and convincing evidence. Matter of Adoption of R.M. (1990), 241 Mont. 111, 115, 785 P.2d 709, 711. In order to determine whether a parent is “able” to contribute to child support, the trial court must examine several factors. These factors include:
1) The parent’s ability to earn an income;
2) The parent’s willingness to earn an income and support his child;
3) The availability of jobs;
4) The parent’s use of his funds to provide himself only with the bare necessities of life prior to providing support for his child.
Matter of Adoption of K.L.J.L. (1986), 224 Mont. 418, 423, 730 P.2d 1135, 1139.

Adoption of V.R.O., 822 P.2d at 85.

The first three factors are not in dispute. The fourth factor is the factor which was never mentioned by the District Court, nor the majority in this case. After reviewing the transcript of the hearing in this case, and the District Court’s findings of fact, I conclude that the natural father in this case had no money left after providing himself with the bare necessities of life, and therefore, was, as a matter of law, unable to contribute to the support of his children during the period of time preceding the petition for adoption.

Notwithstanding the high-minded tone of the concurring opinion, the result in this case ignores existing law regarding what constitutes the “ability” to pay and ignores the best interests of the children. Notwithstanding the heroic examples of self-sacrifice immortalized in the concurring opinion, termination of a parent-child relationship is a draconian remedy for parents who do not measure up to the concurring author’s ideals for parenthood. The sermonizing in the concurring opinion, which captures the real essence of the majority’s thinking, may have some place in a church service, but is highly irrelevant to the legal issues in this case.

Apparently it is the majority’s conclusion that debts which result in collection letters and threatened suits, along with whatever subsequent execution would result, are not “necessities of life.” I disagree, and so would the natural father’s creditors. If the debts can be reduced to judgment, and a subsequent order entered enforcing the judgment, then it is certainly “necessary” that they be paid.

While the enforcement of child support obligations, to the extent possible, is certainly a commendable concern, punishing a natural parent by terminating his parental rights when support is not possible does not serve the best interests of his children, or anyone else. His children are no better off financially as a result of this decision, and may certainly be harmed by their father’s future inability to maintain or establish any relationship with them. While the majority may now feel “tougher” on nonsupporting parents, the interests of the children seem to have been forgotten.

In this case, petitioner failed to satisfy his burden of proof by establishing that the natural father was “able” to make child support payments during the year preceding the date on which the petition for adoption was filed, therefore, the natural father’s consent to adoption was required. For these reasons, I dissent from the majority opinion and would reverse the judgment of the District Court.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE JUSTICE NELSON

license: Public Domain

text:
    HELEN KIRWIN EISENMENGER, an incapacitated person, by Veronica Eisenmenger, her Guardian and Conservator, Plaintiff, Respondent and Cross-Appellant, v. ETHICON, INC., a New Jersey corporation, Defendant and Appellant, and JAMES E. MUNGAS and MONTANA DEACONESS MEDICAL CENTER, Defendants and Cross-Respondents.
    No. 93-034.
    Submitted February 1, 1994.
    Rehearing Denied April 14, 1994.
    Decided March 24, 1994.
    51 St.Rep. 296.
    264 Mont. 393.
    871 P.2d 1313.

      For Defendant and Appellant: Maxon Davis, Cure, Borer & Davis, P.C., Great Falls; Charles F. Preuss, Preuss, Walker & Shanagher, San Francisco, California.
    For Respondents: Norman L. Newhall, Alexander, Baucus & Linnell, P.C., Great Falls; Susan J. Reheck, Susan J. Rebeck, PC., Great Falls (Eisenmenger); James E, Aiken and Tracy Axelberg, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls (Mungas); Neil E. Ugrin, Ugrin, Alexander, Zadick & Slovak, Great Falls, (Montana Deaconess Medical).
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Helen Eisenmenger suffered serious injury after undergoing surgery in which suture material manufactured by defendant Ethicon, Inc., was used. She filed this product liability claim against Ethicon in the District Court for the Eighth Judicial District, Cascade County. Ethicon appeals a $2.3 million judgment entered against it. We affirm.

We restate the dispositive issues as:

1. Whether the District Court erred in holding that the statute of limitations for Eisenmenger’s product liability claim against Ethicon was tolled by § 27-6-702, MCA.

2. Whether the court erred in denying Ethicon’s motion for summary judgment.

3. Whether the court erred in imposing a default sanction against Ethicon on the issue of liability.

On October 30,1985, Helen Eisenmenger underwent a left carotid endarterectomy at the Montana Deaconess Medical Center (the hospital) in Great Falls, Montana. James E. Mungas, M.D., performed the surgery. The incision in Eisenmenger’s left carotid artery was closed using 6-0 Prolene suture material manufactured and sold by Ethicon.

Two days later, while she was resting in her hospital room, Eisenmenger suddenly experienced bleeding in and from the surgical site. She was returned to the operating room, where Dr. Mungas performed a second, emergency surgery to repair a broken suture in the carotid artery incision. After the second operation, Eisenmenger suffered a stroke and resulting serious complications. There was little doubt that the broken suture caused Eisenmenger’s stroke and subsequent complications; the question was what caused the suture to break.

In January 1988, Eisenmenger, through her guardian and conservator, filed a product liability suit against Ethicon in the District Court for Montana’s Eighth Judicial District. Ethicon removed the case to federal court based on diversity jurisdiction. That case was eventually voluntarily dismissed, after this action was filed.

On October 27,1988, again through her guardian and conservator, Eisenmenger filed a malpractice claim with the Montana Medical Legal Panel against Dr. Mungas and the hospital. She named Ethicon as an “other necessary and proper part[y]” to that claim. After the panel rendered its decision, Eisenmenger filed this action on March 30, 1989.

Ethicon promptly moved for summary judgment, arguing that the general three-year tort statute of limitations on the claim against it had run. The court denied Ethicon’s motion, holding that § 27-6-702, MCA, tolled the statute of limitations during the Medical Legal Panel’s decision-making process and for thirty days thereafter.

Almost three years later, in February 1992, the court entered summary judgment in favor of Dr. Mungas and the hospital, holding that the theory of res ipsa loquitur was not applicable to the claims against those defendants and that Eisenmenger had produced no evidence of negligence by those defendants. At the same time, the court denied Ethicon’s motion for summary judgment on grounds that it would be premature to rule out the admissibility of circumstantial evidence offered by Eisenmenger to show that there had been a manufacturing defect in the suture.

At the end of March 1992, Eisenmenger deposed Ethicon’s witness Dr. Olcott, a professor of surgery at Stanford University. Dr. Olcott’s opinions, as stated in his deposition, clearly supported a theory that conduct of Dr. Mungas or the hospital could have been the cause of the suture breakage leading to Eisenmenger’s injuries. Ten days later, Eisenmenger filed a motion asking the court to assess sanctions against Ethicon for failure to disclose Dr. Olcott’s opinions in response to discovery requests dating back to 1988.

In its order granting Eisenmenger’s motion, the court stated that Ethicon had made a “knowing concealment” of Dr. Olcott’s testimony, and that, had the court known of Dr. Olcott’s testimony it was “very doubtful” that Dr. Mungas’s motion for summary judgment would have been granted. The court concluded Eisenmenger had suffered extreme prejudice due to Ethicon’s discovery abuses and that she was entitled to sanctions. It entered a default judgment against Ethicon on the issue of liability.

The case was tried to a jury for purposes of determining the amount of damages. Following the jury’s verdict that Eisenmenger’s damages totaled $2,308,155, Ethicon appeals. Eisenmenger and Dr. Mungas have each raised issues on cross-appeal but, as a result of our resolution of the issues raised by Ethicon, we do not reach those issues.

ISSUE 1

Whether the District Court erred in holding that the statute of limitations for Eisenmenger’s product liability claim against Ethicon was tolled by § 27-6-702, MCA.

Section 27-6-702, MCA, which is part of the Montana Medical Legal Panel Act (Act), provides:

The running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application.

Ethicon contends § 27-6-702, MCA, tolls the statute of limitations in malpractice claims only, and not in product liability claims such as this one.

Ethicon’s position reflects the reference, at the beginning of the statute, to “a malpractice claim.” “Malpractice claim” is defined at § 27-6-103(5), MCA, as a claim or potential claim “against a health care provider.” “Health care provider” is defined under § 27-6-103(3), MCA, to mean a physician, a dentist, or a health care facility.

Because “malpractice claim” is defined as a claim against a “health care provider,” the statement in § 27-6-702, MCA, that the statute of limitations is tolled as to “all health care providers named in the application” addresses most “malpractice claims” as defined in the Act. The only exception initially appears to be malpractice claims against health care providers not named in the application. However, § 27-6-702, MCA, further provides that the tolling applies also “as to all other persons or entities named ... as necessary or proper parties for any court action ... out of the same factual circumstances.” We conclude that § 27-6-702, MCA, is ambiguous about the types of claims for which it tolls the statute of limitations.

If the plain words of a statute are ambiguous, the next step in judicial interpretation of the statute is to determine the intent of the legislature. Montana Contractors’ Ass’n. v. Dept. of Hwys. (1986), 220 Mont. 392, 394, 715 P.2d 1056, 1058. This is accomplished by examining the legislative history of the statute, including the title of the original bill. Montana Contractors’ Ass’n., 715 P.2d at 1058; Gaub v. Milbank Ins. Co. (1986), 220 Mont. 424, 428, 715 P.2d 443, 445.

Section 27-6-702, MCA (1983), read:

The running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review and does not begin again until 30 days after the panel’s final decision is entered in the permanent files of the panel and a copy is served upon the complainant and his attorney by certified mail.

(Enacted 17-1314 by Sec. 14, Ch. 449, L. 1977.) The 1985 amendment to § 27-6-702, MCA, added the following language to the first sentence of the statute:

as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application. [Emphasis added.]

The 1985 amendment to § 27-6-702, MCA, unquestionably created the ambiguity with which we are faced.

The title to the 1985 amending act and the explanation offered with the proposed amendment to § 27-6-702, MCA, are instructive. The title to the amending act stated:

AN ACT REVISING THE MONTANA MEDICAL LEGAL PANEL ACT BY CLARIFYING THE DEFINITIONS OF “HEALTH CARE FACILITY,” “MALPRACTICE CLAIM,” AND “PHYSICIAN;” CLARIFYING THE ALLOCATION OF ASSESSMENTS AND DETERMINATION OF ASSESSMENTS; PROVIDING FOR ALATE FEE FOR DELINQUENT ASSESSMENTS; CLARIFYING THE COMPOSITION OF THE PANEL; CLARIFYING THE TOLLING OF THE STATUTE OF LIMITATIONS AGAINST PARTIES NOT PARTIES TO THE CLAIM AND PROVIDING FOR DISMISSAL OF CLAIMS AND THE RUNNING OF THE STATUTE OF LIMITATIONS; AMENDING SECTIONS 27-6-103,27-6-206,27-6-301, 27-6-303, 27-6-401, AND 27-6-702, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE. [Emphasis supplied.]

Ch. 332, L. 1985. The explanation offered by the Montana Medical Legal Panel for the proposed amendment was:

The current statute is unclear as to whether the statute does or does not toll as to those not parties to the panel, such as nurses, under circumstances where physicians in the same matter are brought before the panel. The proposed legislation clarifies this, providing for the tolling of the statute as to all those parties named in the application, whether proper health care providers before the panel or not.

Exhibit D to minutes of House Judiciary Committee, February 19, 1985.

The legislative history of § 27-6-702, MCA, supports the conclusion that the tolling provision applies not only to malpractice claims, as argued by Ethicon, but also to actions against all other persons or entities named in the application as necessary or proper parties for any court action arising out of the same facts. This conclusion is further supported by the rule that an ambiguous statute of limitations should be interpreted, in the interest of justice, to allow the longer period in which to prosecute the action. See James v. Buck (1986), 111 Idaho 708, 727 P.2d 1136, 1138 (citing cases from Alaska, Hawaii, Arizona, and Utah). We note that Ethicon has long had notice of its alleged liability in this action, minimizing any surprise or prejudice to it from the interpretation we now give to § 27-6-702, MCA.

In this case, the application for review of claim which Eisenmenger filed with the Montana Medical Legal Panel listed Ethicon as an “other necessary and proper partly].” We hold that the District Court did not err in ruling that the statute of limitations was tolled as against Ethicon.

ISSUE 2

Whether the court erred in denying Ethicon’s motion for summary judgment.

This Court’s standard of review of a ruling on a motion for summary judgment is the same as a district court’s standard in ruling on such a motion: whether the record discloses genuine issues of material fact, and, if not, whether the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Knight v. City of Missoula (1992), 252 Mont. 232, 243, 827 P.2d 1270, 1276.

Ethicon contends that Eisenmenger and the District Court improperly relied on the doctrine of res ipsa loquitur in opposing and denying its motion for summary judgment. Ethicon correctly states that the theory of res ipsa loquitur is not applicable in products liability cases under a strict liability theory. Rix v. General Motors Corp. (1986), 222 Mont. 318, 332, 723 P.2d 195, 204. But neither the District Court nor Eisenmenger relied solely on that theory. They also relied upon a theory of strict liability.

Eisenmenger admits that, at the time Ethicon moved for summary judgment, she had no direct evidence that the suture which broke was defective. However, she maintains she had sufficient circumstantial evidence that the suture was defective to preclude summary judgment. A claim of product defect may be proven by circumstantial evidence. Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 517, 513 P.2d 268, 274.

The broken suture was thrown away during Eisenmenger’s second surgery. As pointed out in Eisenmenger’s brief opposing Ethicon’s motion for summary judgment, the only direct evidence concerning the break in this suture was Dr. Mungas’s deposition testimony that the suture broke at its midpoint, or between the knots. Eisenmenger cites evidence it produced that, if stress is applied to a nondefective suture, the suture will break at the knot, rather than between the knots. Thus, Eisenmenger argues, the testimony of Dr. Mungas was evidence that the suture was either defective or mishandled. All of the persons assisting with the surgery denied having observed or done anything that damaged or otherwise compromised the suture. No direct evidence was produced to contradict their testimony, and their credibility on this issue is a question of fact.

Eisenmenger also points to circumstantial evidence she marshalled concerning other incidents of failure of Ethicon’s Prolene 6-0 suture material. Ethicon argues that this evidence is inadmissible. However, in denying Ethicon’s motion for summary judgment, the District Court stated that it had not yet determined whether all of the evidence of other incidents of suture failure would be admissible. All reasonable inferences from the offered proof are to be drawn in favor of the party opposing summary judgment. Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898.

We hold that the court did not err in ruling that Eisenmenger demonstrated issues of material fact precluding the entry of summary judgment in favor of Ethicon.

ISSUE 3

Whether the court erred in imposing a default sanction against Ethicon on the issue of liability.

Eisenmenger’s motion for sanctions was made under Rule 37(d), M.R.Civ.P, which authorizes a district court to award sanctions:

if a party ... fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request^]

Ethicon urges that subsection (d) would apply only if it had failed completely to answer interrogatories. In support of its position, it cites several cases decided under Rule 37(b), Fed.R.Civ.P. The value of those cases as precedent is distinctly limited because they were decided under a different subsection of the federal, not the state, rule.

In Vehrs v. Piquette (1984), 210 Mont. 386, 684 P.2d 476, this Court affirmed Rule 37(d) sanctions for unsigned, late, not-fully-responsive answers to interrogatories. Therefore, a complete failure to answer interrogatories or otherwise respond to discovery requests is not required before sanctions are allowed under Rule 37(d), M.R.Civ.P. We conclude the District Court had the power to award sanctions in this case. We next examine whether the sanction of default judgment was justified.

In Audit Services v. Kraus Construction, Inc. (1980), 189 Mont. 94, 615 P.2d 183, this Court quoted with approval and applied the following standard for entering a default judgment as a sanction under Rule 37, M.R.Civ.P.:

[T]he default judgment must normally be viewed as available only when the adversary process has been halted because of an essentially unresponsive party. In that instance, the diligent party must be protected lest he be faced with interminable delay and continued uncertainty as to his rights. The default judgment remedy serves as such a protection. Furthermore, the possibility of a default is a deterrent to those parties who choose delay as part of their litigative strategy[.][Citation omitted.]

Audit Services, 615 P.2d at 187-88. Ethicon cites Audit Services as authority that default judgment is proper only when there has been a complete failure to respond to discovery requests. But the last sentence quoted above supports a broader interpretation allowing default judgment as a sanction for other severe and deliberate discovery abuse.

Our standard of review of sanctions imposed for discovery abuses is whether the district court abused its discretion. First Bank (N.A.) — Billings v. Heidema (1986), 219 Mont. 373, 711 P.2d 1384. In discussing the district courts’ ability to decide when sanctions are appropriate and how severe those sanctions should be, this Court has said:

This Court has addressed the imposition of Rule 37, M.R.Civ.P, sanctions several times in the recent past. The primary thread binding each of those decisions is the deference this Court gives to the decision of the trial judges. ... The trial judge is in the best position to know ... which parties callously disregard the rights of their opponents and other litigants seeking their day in court. The trial judge is also in the best position to determine which sanction is the most appropriate.

Dassori v. Ray Stanley Chevrolet Co. (1986), 224 Mont. 178, 179-80, 728 P.2d 430, 431.

In his March 1992 deposition, Dr. Olcott testified concerning eight problems he saw with the Eisenmenger case: (1) that Dr. Mungas used a “substandard technique” of tying the suture; (2 and 3) that there was no indication for the first surgery performed, either by symptoms or the results of the arteriogram; (4) the arteriogram and the operation should not have both been done on the same day; (5) in the second operation, Heparin was wrongly given after, not before, clamps were applied; (6) in the second operation, the arteriotomy was not completely reopened; (7) a patch was not used in redoing the arteriotomy; and (8) there was inappropriate monitoring during and following the second surgery. Dr. Olcott testified he was given the Eisenmenger case for review sometime in 1988 and that he advised Ethicon’s counsel, “in general,” of his opinions on these eight problems “in 1988.”

In June 1990, by which date Dr. Olcott clearly had informed Ethicon’s counsel of his opinion, Ethicon answered detailed discovery requests by Eisenmenger. Ethicon’s answers were described by the District Court in its sanction order as “incomplete and evasive.” Ethicon objected to an interrogatory about whether it took the position that Dr. Mungas failed to take the necessary precautions in using the suture, on grounds that the term “necessary precautions” was undefined. Ethicon stated that it was “unable to respond” to interrogatories about whether it contended that Dr. Mungas improperly tied the suture or that any act or omission of Dr. Mungas or an employee of the hospital caused or contributed to Eisenmenger’s stroke. Ethicon further stated that it was “unable to comment on the specifics of Dr. Mungas’ handling of the suture and the role of that handling in explaining the suture failure.”

In answer to an interrogatory asking it to set forth “each factor which you contend substantially contributed” to Eisenmenger’s postoperative stroke, Ethicon responded:

Many factors may contribute including age, history, smoking, general physical condition, wound dehiscence, and post-operative complications among many other possible factors. Ethicon intends to examine these as well as all other possibilities and may, depending on the outcome, offer expert medical opinion on this subject.

Dr. Olcott’s name was first disclosed as a potential expert witness who might be called at trial on August 30,1991. On December 9,1991, Ethicon and its attorney made the following discovery responses:

Interrogatory No. 1: Is it your contention that Defendant James E. Mungas caused or contributed to the injuries or damages allegedly suffered or sustained by the Plaintiff, as more fully described in her Complaint? If so, please set forth with particularity and in detail:
(a) each and every fact supporting this contention;
(b) the identity of any and all persons who could or would testify as to the truthfulness of this contention; and
(c) the identity of all writings, notes, letter, records, or any other document which could or would support the truthfulness of this contention.
RESPONSE TO INTERROGATORY NO. 1: (a) Based on its investigation of the postoperative dehiscence experienced by plaintiff following her surgery in October 1985, Ethicon contends that such dehiscence was not due to any inherent property of PROLENE* suture material or to Ethicon’s manufacturing procedures or labeling information, but rather to inadvertent suture damage or mishandling during its use, the precise nature of which is unavoidably unknown to Ethicon, by one of the individuals present in the operating room at the time of surgery, or to the surgical technique employed by one of those same individuals. Ethicon exercised no control over the suture after it left Ethicon’s facility. Ethicon was not present during the time the suture was received, stored and handled by personnel from MDMC prior to its use during the surgery in question. Ethicon was not present in the operating room either during the initial operative procedure or the arteriotomy repair, when the suture was handled by operating room personnel, including Dr. Mungas, on multiple occasions and came into contact with a variety of surgical instruments. Because the suture utilized in the initial closure of the arteriotomy was thrown away by Mr. [sic] Mungas, MDMC employees or other operating room personnel, Ethicon was deprived of the opportunity to examine this crucial piece of evidence, from which the cause of the dehiscence could be obtained. Moreover, because Dr. Mungas, MDMC employees or other operating room personnel did not keep track of the lot number from which the suture in question came, Ethicon was further deprived of the opportunity to demonstrate that such lot in particular met with Ethicon’s manufacturing and quality control/quality assurance specifications in every respect. Thus, although Dr. Mungas was among those present in the operating room whose suture handling or surgical technique may have inadvertently caused or contributed to plaintiff’s damages, or who, directly or indirectly, may have inadvertently mishandled, misused, altered or otherwise changed the suture material in question, Ethicon cannot say that Dr. Mungas was the sole individual responsible for the dehiscence. Nevertheless, no PROLENE* 6/0 suture material returned to Ethicon following an alleged postoperative dehiscence has failed to meet USP or Ethicon specifications, and Ethicon is of the opinion that the suture in this case was within USP and Ethicon specifications and has no present information or evidence to the contrary.
(b) All the individuals disclosed in the medical records or known to plaintiff and to Ethicon’s co-defendants as well as those individuals disclosed in Ethicon’s responses to the parties’ discovery requests and/or the depositions of Ethicon’s employees in this case.
(c) All written information produced or discovered in this case by all parties or available to the parties in the medical and scientific literature.

On the same date, Ethicon answered an interrogatory requesting information concerning the substance of and supporting facts for any expert opinions concerning mishandling, misuse, or alteration of the suture material by Dr. Mungas. In its response, Ethicon merely referred to the above answer and to its expert witness disclosure, which set forth only the names of the experts. It provided no further information.

Summary judgment was entered in favor of Dr. Mungas and the hospital some six months after Ethicon disclosed Dr. Olcott as an expert witness. During those months, Ethicon did not update its discovery responses to disclose Dr. Olcott’s opinions, despite its clear duty to do so under Rule 26(e), M.R.Civ.P. Dr. Olcott was not made available to be deposed until a month after Dr. Mungas and the hospital had been dismissed from this lawsuit. By that time, severe prejudice had already occurred to Eisenmenger, and the court had few options for appropriate and meaningful sanctions against Ethicon. As the court stated, it was “very doubtful” that Dr. Mungas’s motion for summary judgment would have been made or granted if Dr. Olcott’s opinion had been disclosed. Ethicon’s discovery abuses therefore directly interfered with a correct decision in the case.

Ethicon also argues that the evidence it withheld only inculpated Dr. Mungas, and that withholding the evidence did not prejudice Eisenmenger’s case against Ethicon. However, as the District Court recognized and Ethicon admits, Ethicon would, if allowed, seek to use the concealed evidence at trial as relevant to causation. The concealed evidence clearly went to the heart of Ethicon’s defense to Eisenmenger’s claim.

This is not a situation where the “wrong” questions were asked in discovery and the critical answers were thereafter artfully avoided. There was nothing more which could have been asked in order to elicit from Ethicon the substance of Dr. Olcott’s opinion. We conclude that the above answers to interrogatories and the failure to supplement the same demonstrate intolerable gamesmanship and obstructiveness on the part of Ethicon. Playing loose and fast with the rules of discovery, in the guise of advocacy, is equivalent to playing Russian roulette with only one chamber empty — it cannot be relied upon to lead to a favorable result.

The record supports the District Court’s finding that Ethicon’s failure to respond to discovery requests was willful and in bad faith. This failure caused severe prejudice to Eisenmenger on an issue central to the case. We hold that the District Court did not abuse its discretion in imposing the sanction of default judgment on the issue of liability.

Finally, Ethicon contends it was deprived of its right to due process through entry of the default judgment as a sanction. It argues that Securities and Exchange Commission v. Seaboard Corp. (9th Cir. 1982), 666 F.2d 414, establishes that due process allows a sanction of default judgment only in response to a complete failure to produce requested evidence. We disagree. The basis for the holding in Seaboard was that the sanction in that case was imposed for failure to obey a court order to pay a fine arising out of discovery violations. The discovery requests had been complied with by the time sanctions were imposed. Seaboard, 666 F.2d at 417. In contrast, Ethicon never fairly answered the discovery requests at issue here.

Ethicon also claims due process requires that default judgment as a sanction for discovery abuse is only proper if the refusal to respond to discovery requests gives rise to a presumption that the party had no evidence on the point in question, citing Hammond Packing Co. v. Arkansas (1909), 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530. Hammond does not establish such a blanket rule. The holding therein that the creation of such a presumption meets the requirements of due process is not equivalent to a holding that the creation of such a presumption is required for purposes of due process.

Due process requires that default may not be imposed absent willfulness, bad faith, or fault. Societe Internationale v. Rogers (1958), 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255, 1267. Here, as stated above, the court found that Ethicon’s actions in giving evasive and incomplete answers to discovery requests and in failing to supplement those answers “have been willful and in bad faith.” In this case, the sanction of default judgment enforces due process by preventing Ethicon from profiting by its discovery abuse and by assuring due process to the opposing parties whose rights have been prejudiced. We hold that Ethicon’s due process rights were not violated when the court ordered a sanction of default judgment on the issue of liability.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.

JUSTICE NELSON

respectfully dissents from the Court’s opinion on Issue 1 and, consistent with that position, does not reach Issues 2 or 3.

While I acknowledge that the legislature’s amendments to § 27-6-702, MCA, in 1985, created an ambiguity, I submit that we have erroneously resolved that ambiguity on the basis of what we perceive to be the intention of the legislature as derived from a legislative history that is, at best, inconclusive. In so doing, I suggest that we have impermissibly inserted into the tolling provisions of the statute by implication, a class of claims that the legislature did not include by specific language or, in default of that, by a clearly expressed intention. Section 1-2-101, MCA.

In order to fully appreciate what the 1985 amendment did and did not accomplish, it is necessary to examine the amended § 27-6-702, MCA(1987), in the context of the entire Montana Medical Legal Panel Act (Act), rather than focusing, as does the Court’s opinion, on simply the statute itself.

Section 27-6-102, MCA, defines the purpose of the Act as follows: The purpose of this chapter is to prevent where possible the filing in court of actions against health care providers and their employees for professional liability in situations where the facts do not permit at least a reasonable inference of malpractice and to make possible the fair and equitable disposition of such claims against health care providers as are or reasonably may be well founded.

Section 27-6-103, MCA, defines various terms used in the Act. Of importance here are the following:

(2) “Health care facility” means a facility... licensed as a health care facility under Title 50, chapter 5.
(3) “Health care provider” means a physician, a dentist, or a health care facility.
(4) “Hospital” means a hospital as defined in 50-5-101.
(5) “Malpractice claim” means any claim or potential claim of a claimant against a health care provider for medical or dental treatment, lack of medical or dental treatment, or other alleged departure from accepted standards of health care which proximately results in damage to the claimant, whether the claimant’s claim or potential claim sounds in tort or contract, and includes but is not limited to allegations of battery or wrongful death.
(7) “Physician” means: [in pertinent part] (a) ... an individual licensed to practice medicine under the provisions of Title 37, chapter 3,...

Section 27-6-105, MCA, provides, in pertinent part, that:

The [Montana Medical legal] panel shall review all malpractice claims or potential claims against health care providers.... Section 27-6-302, MCA, provides, in pertinent part, that:
The application [to the panel] shall contain the following: (1) a statement in reasonable detail of the elements of the health care provider’s conduct which are believed to constitute a malpractice claim, the dates the conduct occurred, and the names and addresses of all physicians, dentists, and hospitals having contact with the claimant and all witnesses;...

Section 27-6-304, MCA, provides, in pertinent part, that:

In instances where applications are received employing a theory of respondeat superior or some other derivative theory of recovery, the director shall forward the application to the state professional societies, associations, or licensing boards of both the individual health care provider whose alleged malpractice caused the application to be filed and the health care provider named a respondent as employer, master, or principal.

Section 27-6-502, MCA, provides, in pertinent part, that:

(1) At the time set for hearing, the claimant submitting the case for review shall be present and shall make a brief introduction of his case, including a resume of the facts constituting the alleged professional malpractice which he is prepared to prove. The health care provider against whom the claim is brought and his attorney may be present and may make an introductory statement of his case.

Section 27-6-602, MCA, provides, in pertinent part, that:

Upon consideration of all the relevant material, the panel shall decide whether there is: (1) substantial evidence that the acts complained of occurred and that they constitute malpractice;

Section 27-6-701, MCA, provides that:

No malpractice claim may be filed in any court against a health care provider before an application is made to the panel and its decision is rendered.

Section 27-6-702, MCA, provides in pertinent part:

The running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review as to all health care providers named in the application as parties to the panel proceeding and as to all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application. The running of the applicable limitation period in a malpractice claim does not begin again until 30 days after either an order of dismissal, with or without prejudice against refiling, is issued from the panel chairman, or from the director upon the consent of the parties to the claim, or the panel’s final decision, whichever occurs first, is entered in the permanent files of the panel and a copy is served upon the complainant or his attorney if he is represented by counsel, by certified mail.

Reading the plain language in the Act, without referring to any past or recent legislative history, and using the terms of art as those are defined in the Act, several conclusions follow:

First, the purpose of the Act is to screen and prevent the filing in court of ill-founded claims for professional acts or omissions against health care providers, which are defined to include only (i) physicians, (ii) dentists and (iii) licensed facilities. Sections 27-6-102,27-6-103(2), (3) and (7), MCA. Ethicon, being none of those, is not an entity subject to the protection of the Act.

Second, the professional act or omission (regardless of whether the theory is tort or contract) which is to be screened is “malpractice” — a term of art, defined in the Act as a claim or potential claim for medical treatment or other alleged departure from accepted standards of health care. Section 27-6-103(5), MCA.

The act or omission alleged to have been committed by Ethicon does not involve providing medical treatment or health care. Ethicon is alleged to have improperly manufactured a product — specifically, a surgical suture.

Third, the panel can only consider, hear and rule upon malpractice claims filed against health care providers. Sections 27-6-105, 27-6-302, 27-6-304, 27-6-502, 27-6-602, MCA. Ethicon is neither an entity subject to the jurisdiction of the panel, nor are its alleged acts or omissions subject to panel review, as defined in the Act.

Fourth, claimants are required to submit their claim or potential claim for “malpractice” against a “health care provider” to the panel before filing the claim in court. Sections 27-6-301, 27-6-302 and 27-6-701, MCA. There is nothing in the Act, however, to preclude a claimant from filing a related products liability suit in court at any time within the applicable statute of limitations, since the panel has no jurisdiction or review authority over any sorts of claims, except malpractice claims.

Fifth, the tolling of the statute of limitations under § 27-6-702, MCA, obviously applies to a "... malpractice claim... as to all [named] health care providers...”. Moreover, under the 1985 amendment, the statute of limitations is also tolled as to “... all other persons or entities named in the application as necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application.” Section 27-6-702, MCA. The critical question is, however, “for what claim is the statute of limitations tolled?”

To answer that question, it is necessary to read the phrase added by the 1985 amendment in the context of the existing qualifying language of the statute both before and after the added phrase. First, the only “claim” that is referred to in § 27-6-702, MCA, (and, in fact, the only “claim” referred to in the entire Act) is the claim for “malpractice,” a defined term of art — which Ethicon, by that definition, cannot commit.

Second, according to § 27-6-702, MCA, the malpractice claim is tolled:

(i) as to “health care providers,” which, again, is a defined term of art which does not include Ethicon; and

(ii) “as to all other persons or entities named in the application as necessary or proper parties” — which Ethicon could be, if it could commit “malpractice” as defined by the Act.

Third, while the “court action which might subsequently arise out of the same factual circumstances” might, arguably, include a products liability claim, again, the only claim for which the statute of limitations is tolled is the malpractice claim. That conclusion is buttressed by the sentence which immediately follows the phrase added in 1985 which states that “[t]he running of the applicable limitation period in a malpractice claim does not begin again until 30 days after...”. Section 27-6-702, MCA. Since the statute is very specific about when the statute of limitations on the malpractice claim begins to run again, it begs the question, assuming arguendo that claims besides the malpractice claim are tolled, when the statute of limitations on those latter claims begins to run after the panel’s decision. The statute is silent on that point.

Therein lies the ambiguity. Section 27-6-702, MCA, does not specify any other claim, besides the malpractice claim, for which the statute of limitations is tolled, nor does it refer to any other claim, besides the malpractice claim, on which the applicable limitation period begins to run again after the 30 days specified in the statute has elapsed.

From a plain reading of the entire Act, in context and without resort to legislative history, one necessarily concludes that the Act, including its tolling provisions, only applies to malpractice claims involving health care providers.

What, then, did the 1985 amendment accomplish? It is an established rule of statutory construction that we presume that the legislature would not pass meaningless legislation, and that we must harmonize statutes relating to the same subject, giving effect to each. Montana Contractors’ Ass’n, Inc. v. Department of Highways (1986), 220 Mont. 392, 395, 715 P.2d 1056, 1058. Furthermore, § 1-2-101, MCA, mandates that “[w]here there are several provisions or particulars, [in a statute] such a construction is, if possible, to be adopted as will give effect to all.” Hence, the need to resort to legislative history. Under the Court’s rationale, there is no other way to give effect to the added language, absent giving it the construction which this Court has on the basis of what we perceive to be the intent of the legislature as gathered from the legislative history.

Were the legislature’s intent clear, I would agree with the Court’s interpretation of the statute. I do not concede, however, that the legislative history is as clearly indicative of the legislature’s intent in enacting the 1985 amendments as our opinion seems to suggest.

Literally, the only group of persons actually referred to in the legislative history to HB 738 (enacted as Ch. 332, L. 1985) as being included within the added tolling language, are nurses — who, according to the legislative history, did not want to be covered by the panel. See minutes of the House Judiciary Committee hearing on HB 738, February 19, 1985. There is no discussion in the history as to what sorts of claims the legislature intended would be covered under the added tolling language. The Act itself is silent as to who or what are “necessary or proper parties for any court action which might subsequently arise out of the same factual circumstances set forth in the application.” Section 27-6-702, MCA. It can hardly be denied that the “factual circumstances” before the panel deal with malpractice. At most, it appears that the legislature arguably intended to toll the statute of limitations as to employees of the health care provider, e.g. nurses.

If it was the legislature’s intention, by enacting the additional phraseology in § 27-6-702, MCA, to bring persons or entities other than health care providers within the tolling provisions of the statute, then the legislature merely needed to broaden the scope of the statute to include claims other than malpractice claims. Unfortunately, it failed to do that.

What the legislature did was change only one part of the statute — it expanded the tolling provisions of the statute to include “... other persons or entities named in the application as necessary or proper parties ...”, but it left the only claims tolled as being those in “malpractice” which, by definition, cannot be committed for purposes of the Act by persons or entities who are not physicians, dentists and health care facilities.

On balance, given the existing qualifying language preceding and following the language which was added by the legislature in 1985 to § 27-6-702, MCA; reading that section in the context of the entire Act; and given that the 1985 legislature made a number of other changes in the Act, it seems more appropriate to conclude that if the legislature intended to include all parties and all claims within the tolling provisions of the statute, that it would have made the necessary changes in other provisions of the Act to clearly effect that intention which we now find implicit in the legislative history. I have difficulty in reading into the statute language which broadens the types of claims tolled on the basis of divining legislative intent from a legislative history that is, at best, inconclusive.

It should be apparent that the statutory amendment suffers from some major drafting flaws which provide a trap for the unwary. Plaintiff understandably relied on what the statute, at quick perusal, seems to say. Similarly, Ethicon can hardly be faulted for reading the statute with a great deal more care than that with which the amendment was drafted. But for the District Court’s and this Court’s generous interpretation of the amended language to give effect to what is the perceived legislative intent behind the 1985 amendment, plaintiff would be out of court. The Court’s interpretation of the statute saves plaintiff’s case, but the language added to § 27-6-702, MCA, still remains ambiguous, confusing and out of context with other provisions of the Act.

Hopefully, § 27-6-702, MCA, will be further amended and the legislature’s intent, whatever that actually is, will be made clearly evident in the language of the statute itself.

JUSTICE GRAY joins in the foregoing dissent.

       Unless otherwise specifically mentioned, all statutory references to the Act are to the 1987 version, since that is the version that was in effect when Eisenmenger filed her malpractice claim with the panel and when she filed her second complaint against Ethicon. Also, all emphasis in the cited statutes has been supplied by the author.


author: JUSTICE NELSON

text:
    In the Matter of the Suspension of the Driver’s License of CHARLES A. BLOMEYER, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Respondent.
    No. 93-179.
    Submitted on Briefs February 24, 1994.
    Rehearing Denied May 6, 1994.
    Decided March 29, 1994.
    51 St.Rep. 324.
    264 Mont. 414.
    871 P.2d 1338.

      For Petitioner and Appellant: Randy S. Laedeke, Laedeke Law Office, Billings.
    For Respondent and Respondent: Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Brent Brooks, Deputy County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Thirteenth Judicial District Court ruling on a petition for judicial review of the suspension of Charles Blomeyer’s (Charles) driver’s license for refusal to submit to a breath test under the implied consent law. The District Court determined that the suspension of Charles’ driver’s license and driving privileges would remain in effect until the appropriate suspension period expired pursuant to § 61-8-402(5), MCA. We affirm.

There are two issues on appeal which we state as follows:

1. Does a police officer have an affirmative duty to advise a driver that he does not have the right to counsel before he decides whether to submit to a test of his blood alcohol content?

2. Does the “confusion doctrine” apply in the instant case?

Background

Charles was stopped for suspicion of driving under the influence on December 20, 1992, in Billings, Montana. He was taken to the Yellowstone County Detention Facility and was asked to perform the standard field sobriety tests while being filmed on videotape.

Charles had considerable difficulty performing the field sobriety tests. Following these tests, the officer read and explained the implied consent law advisory form to him. During the reading of the implied consent form, Charles repeatedly asked to speak to an attorney. The police officer informed him that when he (the officer) finished reading the implied consent form and Charles’ Miranda rights, the appellant could call for an attorney.

At the conclusion of the reading of the informed consent form, the officer asked Charles if he wanted to submit to a test of his blood alcohol content (BAC test). Charles replied, “Not at this moment.” The officer then read Charles his Miranda rights. Following the reading, he gave Charles a telephone and a telephone book and allowed him to call an attorney. The officer noted Charles’ request for an attorney as a refusal to submit to a breath test with the result that his driver’s license and driving privileges were suspended for 90 days, pursuant to § 61-8-402(5), MCA.

Charles petitioned the Thirteenth Judicial District Corut, pursuant to § 61-8-403, MCA, for a review of the decision to suspend his driver’s license and driving privileges for 90 days. The court heard Charles’ testimony, viewed the videotape of the field sobriety tests, the reading and explanation of the implied consent form and the reading of the Miranda rights. Counsel were also allowed to file briefs.

The District Court found that Charles had refused to submit to a BAC test even though he knew that his license would be seized upon a refusal to submit to the test. The District Court concluded that Charles’ driver’s license had been properly suspended.

Pertinent Statute

Section 61-8-402, MCA, the statute under which Charles’ driver’s license was suspended, provides in pertinent part:

Blood, breath, or urine tests. (1) Any person who operates or is in actual physical control of a vehicle upon ways of this state open to the public shall be deemed to have given consent, subject to the provisions of 61-8-401, to a test of his blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol in his body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two. The test shall be administered at the direction of a peace officer having reasonable grounds to believe the person to have been driving or in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two. The arresting officer may designate which test or tests shall be administered.
(3) If a driver under arrest refuses upon the request of a peace officer to submit to a test designated by the arresting officer as provided in subsection (1), none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, drugs, or a combination of the two, and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).
(5) The following suspension and revocation periods are applicable upon refusal to submit to a test:
(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license.

Right to Counsel

Does a police officer have an affirmative duty to advise a driver that he does not have the right to counsel before deciding whether to submit to a BAC test?

Initially, we reiterate that a driver has no right to counsel before he must decide whether to submit to a BAC test. State v. Armfield (1984), 214 Mont. 229, 693 P.2d 1226. Secondly, we reaffirm that a continual request to speak to an attorney before submitting to a BAC test is deemed a refusal to take the test. Johnson v. Division of Motor Vehicles (1985), 219 Mont. 310, 711 P.2d 815.

The difference between the driver in Johnson and the driver in the instant case is that in Johnson, the police officer informed the driver that he had no right to counsel during the breath test. Here, Charles was not so informed, and hence, there is raised the question of whether a police officer has an affirmative duty to inform the driver that he has no right to counsel before deciding whether to submit to a BAC test.

We turn to a prior Montana case for guidance in resolving this issue. In Meyer v. State (1987), 229 Mont. 199, 745 P.2d 694, the appellant was stopped for suspicion of driving under the influence. After being taken to the Great Falls police station and after being read the implied consent law advisory form, the driver requested that he be able to call a friend prior to taking the breath test. The police officer informed him that he could make as many telephone calls as he wanted, but first, he would have to tell the officer whether he would submit to the breath test. The appellant stated that he would not submit to the test and his license was subsequently suspended.

In affirming the District Court in Meyer, we concluded that the appellant had to decide without assistance from anyone whether to take a breath test. We stated:

Patrolman Wylie informed Meyer that he could not call his friend prior to taking a breath test. In doing so, Wylie effectively told Meyer that he could not speak to his friend, attorney or any other person. If arguendo, Wylie had told appellant Meyer that he had no right to speak to an attorney, the results would have been the same. Appellant Meyer would have been forced to decide without assistance whether he wished to take a breath test. That result is exactly what happened.
Appellant has not challenged our holding in Armfield or § 61-8-402, MCA. Nor has appellant presented this Court with evidence of prejudice. The District Court did not err when it held that appellant was not prejudiced by Patrolman Wylie’s failure to instruct Meyer that he had no right to counsel. Accordingly, we hold that appellant’s driver’s license was properly suspended.

Meyer, 745 P.2d at 696. (Emphasis added.)

In the same manner, Charles was not prejudiced by the police officer’s failure to inform him that there is no right to counsel before a driver decides whether to submit to a BAC test. The same result would have obtained if the police officer had instructed Charles that he had no right to counsel. Charles still would have had to decide without assistance, whether to submit to a BAC test. Meyer, 745 P.2d at 696. Since a failure to inform a driver that he does not have a right to counsel prior to deciding whether to take a BAC test does not prejudice the driver’s rights, we hold that there is no affirmative duty on the part of a police officer to inform a driver that he has no right to counsel before deciding whether to submit to a BAC test.

Confusion Doctrine

Does the “confusion doctrine” apply in the instant case?

Charles argues that the police officer should have informed him that his constitutional right to counsel did not apply to the implied consent request. Charles also maintains that he thought he had a right to counsel before deciding whether to submit to a BAC test, and that because of his confusion, his refusal to submit to a BAC test should be excused. The State counters that the “confusion doctrine” which Charles attempts to implicate here, does not apply to the present case. We agree.

The ‘confusion doctrine’ provides that when an arresting officer introduces the question of a drunken-driving suspect’s right to counsel by giving a Miranda warning prior to requesting a chemical test, the suspect’s subsequent refusal to take a test until an attorney is consulted may not constitute a ‘refusal to submit’ to a chemical test.

Ehrlich v. Backes (N.D. 1991), 477 N.W.2d 211, 213. Anumber of states have adopted the “confusion doctrine,” and Charles urges this Court to, likewise, adopt that rule. See Rust v. Department of Motor Vehicles Div. of Driver’s Lic. (Cal. Ct. App. 1968), 267 Cal. App. 2d 545, 73 Cal. Rep. 366; State Department of Highways v. Beckey (Minn. 1971), 192 N.W.2d 441; and State v. Severino (Haw. 1975), 537 P.2d 1187.

Whether we determine to adopt the rule in some future case, the facts here do not warrant the application of the doctrine. The confusion doctrine applies only when Miranda rights are given prior to or contemporaneously with a driver being advised of his rights and obligations under the implied consent law. The “confusion” is caused by informing the driver via his Miranda rights that he has a right to counsel and then asking him to take a BAC test under the implied consent law. It is recognized that this situation could easily confuse a driver and mislead him to believe he has the right to an attorney before he decides whether to submit to a BAC test. Beckey, 192 N.W.2d at 445; Severino, 537 P.2d at 1190.

In the instant case, the police officer first informed Charles of his rights and obligations under the implied consent law. Charles then refused to take the breathalyzer test before his Miranda rights were even read. Because his Miranda rights were read after the implied consent form was read and after Charles refused to submit to a BAC test, there is no likelihood that he confused his right to counsel under Miranda, with his rights and obligations under the implied consent law. In short, having already refused the BAC test, Charles could not have been mislead by the subsequent reading of his Miranda rights into thinking that he had a right to counsel before deciding whether to take the BAC test.

Charles refused to submit to the BAC test and has not brought his case within the application of the “confusion doctrine.” Accordingly, we hold that the District Court correctly denied Charles’ petition for reinstatement of his driver’s license.

AFFIRMED.

JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER concur.