Marten v. Haire

          OPINION & ORDER

          CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant Gene Haire's motion for summary judgment, which is opposed by Plaintiff. Having reviewed the briefs and the record and no party having requested oral argument, the Court is prepared to rule.

         LEGAL STANDARD

         Fed.R.Civ.P. 56(a) permits a party to seek summary judgment "identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought." Summary judgment or adjudication is appropriate when the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R•Civ.P. 56(a); Matsushita Elec. Indus, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T. W. Elec. Serv., Inc. v. Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment is to "pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial." Matsushita, 475 U.S. at 586, n. 11.

         On summary judgment, a court must decide whether there is a "genuine issue as to any material fact," not weigh the evidence or determine the truth of contested matters. Fed, R.Civ.P. 56(a), (c); see also, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict," Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 255 (1986). The evidence of the party opposing summary judgment is to be believed and all reasonable inferences from the facts must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255.

         The moving party, in supporting its burden of production, "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1102 (9th Cir.2000). A "complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial" to entitle the moving party to summary judgment. Celotex Corp. v, Catrett, 477 U.S. 317, 323 (1986). "[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Nissan Fire, 210 F.3d at 1102. "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 411 U.S. at 248.

         Once the moving party has met its initial burden, the burden shifts to the non-moving party to establish the existence of a general issue of material fact. Matsushita, 475 U, S. at 586 - 87. The non-moving party may not rely on the allegations or denials of its pleadings but must cite to facts in the record. Fed.R.Civ.P. 56(c)(1); Matsushita, 475 U.S. at 586, n. 11. Moreover, the Court is "not required to comb through the record to find some reason to deny a motion for summary judgment." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir.2001) (quoting Forsberg v. Pac. Northwest Bell Tel Co., 840 F.2d 1409, 1418 (9th Cir.1988)). Instead, the "party opposing summary judgment must direct [the Court's] attention to specific triable facts." Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir.2003).

         STATEMENT OF FACTS ^[1]

         Glen Marten (Marten) "is an incapacitated adult who suffers from developmental, cognitive, physical and psychological conditions." (Doc. 53 at ¶ 1). MDC is a State-run facility for people with serious intellectual disabilities who have been determined to pose an imminent risk of serious harm to themselves or others." (Doc. 53 at ¶ 2). Marten was evaluated at MDC in 1990 and was "involuntarily committed at MDC due to his violent outbursts" for "a significant amount of time - approximately 15 years total" - on three separate occasions since 1990, most recently from February 2009 to November 25, 2014. (Doc. 53 at ¶¶ 3 and 5).

         Defendant Gene Haire (Haire) began working as the MDC Superintendent in May of 2011. (Doc. 44-4, Depo. Haire 20:22 - 24 (May 18, 2018)). At that time, the maximum number of clients who could be served at MDC was 68. (Doc. 44-4 at 25:16 - 21). Haire served in that position until May of 2015, when he retired. (Doc. 44-4 at 32:6 - 11). Haire directly supervised MDC's Clinical Services Director, Polly Peterson, who supervised MDC's medical personnel. (Doc. 44-4 at 22:5 - 10). Defendant State of Montana and Haire admit that "with respect to the conduct of Haire of which Plaintiff complains, Haire acted within the course and scope of his employment with the State." (Doc. 41 at ¶ 11).

         According to Dr. Lemons, one of Plaintiff s retained experts, Marten required help getting up and was weak after falling at MDC on September 11, 2014 - the "first sign of spinal cord injury," (Doc. 69-3 at 4). Marten "suffered progressive signs and symptoms of his cervical disc herniation and spinal cord dysfunction" from September 11, 2014 to December 3, 2014. (Doc. 69-3 at 5).

         During this time, Dr. Justad, who contracted with the State to provide services at MDC, was Marten's primary treating physician. (Doc. 53 at ¶ 9). Dr, Justad ordered an MRI of Marten's brain in October, but did not follow the recommendation of MDC staff to order an MRI of his entire spine. (Doc. 53 at ¶¶ 34, 35 and 37).

         Haire met weekly with MDC medical staff, including Dr. Justad, (Doc. 53 at ¶ 17). He was generally aware of Marten's medical issues during the fall of 2014 and was concerned about Marten. (Doc. 53 at ¶ 19). By the end of October, 2014, Haire was aware that Marten's entire treatment team was recommending that Marten have an MRI of his entire spine done in one visit and that Dr. Justad did not want to order an MRI of the entire spine. (Doc. 44-4 at 255: 1 - 256:18).

         Haire "relied on the expertise and skills of people who were licensed to provide medical care to Marten." (Doc. 53 at ¶ 19). Haire "continued to communicate with Dr. Justad and the nursing director in the Monday meetings and in other conversations, and felt that they were taking the actions that they felt needed to be taken." (Doc. 44-4 at 232:24 - 233:3).

         On November 25, 2014, "MDC staff made the call to take Marten to the ER at St. Peter's Hospital." (Doc. 53 at ¶ 44). At St. Peter's, Marten "was admitted to the intensive care unit with severe pulmonary emboli." (Doc. 44-33 at 2). When that condition improved, "the biggest concern became his lower extremity weakness and concern of spinal cord lesion." (Doc. 44-33 at 2). After Marten's pulmonary embolus stabilized, an "MRI was obtained documenting the very severe and impinging C4-5 disk." (Doc. 44-33 at 2 - 3). Marten had decompressive surgery on December 3, 2014. (Doc. 44-33 at 3).

         According to Dr. Lemons, MDC medical staff should have properly diagnosed Marten and referred him for surgical intervention "[a]t the latest... in the first week of October." (Doc. 69-3 at 13). Dr. Lemons opines that the "delay in diagnosis and referral significantly injured Mr. Marten's cervical spinal cord" and that "Mr. Marten would have had a significantly better outcome" had MDC medical staff "recognized the potential for cervical spinal ...