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Fleming v. Montana Eighth Judicial District Court

Supreme Court of Montana

September 11, 2013

DREW FLEMING, Personal Representative of the ESTATE OF SANDRA A FLEMING, deceased, Petitioner,
v.
MONTANA EIGHTH JUDICIAL DISTRICT COURT, AND THE HONORABLE DIRK M. SANDEFUR, PRESIDING JUDGE, Respondent.

ORDER

Petitioner Drew Fleming, Personal Representative of the Estate of Sandra A. Fleming, has asked this Court to exercise supervisory control over the Eighth Judicial District Court in Cascade County Cause No. DDV-12-043 5, a medical negligence action the Estate brought against the Great Falls Clinic, LLP. The Estate maintains the District Court is proceeding under a mistake of law and causing a gross injustice by allowing Dr. Nicholas Bonfilio, M.D., and Dr. Stephen Oriente, M.D., to intervene as defendants. At our invitation, Dr. Bonfilio, Dr. Oriente, and the Clinic have filed responses to the Petition for Writ of Supervisory Control.

Supervisory control is an extraordinary remedy that sometimes is justified when (1) urgency or emergency factors make the normal appeal process inadequate, (2) the case involves purely legal questions, and (3) as alleged in this case, the trial court is proceeding under a mistake of law causing a gross injustice. M. R. App. P. 14(3).

The District Court's decision to allow Drs. Bonfilio and Oriente to intervene was based on the court's determination, pursuant to M. R. Civ. P. 24(b)(1)(B), that the doctors have a defense that shares with the Clinic common questions of law or fact. In this regard, both doctors have pointed out that, in its complaint, the Estate has made direct allegations of negligence and breach of the standard of care against them personally. Without reaching the question of the merits of the court's decision to allow the doctors to intervene, we conclude that decision was based in part upon the factual allegations of the complaint; it did not involve purely legal questions. As a result, the extraordinary remedy of supervisory control is not justified. Therefore,

IT IS ORDERED that the Petition for Writ of Supervisory Control is DENIED and DISMISSED.

The Clerk is directed to provide copies of this Order to all counsel of record.

Justice Patricia Cotter would accept supervisory control and vacate the District Court's order granting the physicians' motions to intervene.


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