United States District Court, D. Montana, Helena Division
ELLEN MARTEN, as Guardian and Conservator of Glen Marten, Plaintiff,
STATE OF MONTANA, Defendant.
OPINION & ORDER
Charles C. Lovell, Senior United States District Judge.
Final Pretrial Conference in this case is set for Wednesday,
May 8, 2019, and the parties are scheduled to lodge their
proposed final pretrial order, trial briefs, and proposed
jury instructions on Friday, April 26, 2019. Plaintiff Ellen
Marten, as Guardian and Conservator for Glen
Marten, has moved for summary judgment as to
Count IV of its Complaint. The motion having been fully
briefed and no party having requested oral argument, the
Court is prepared to rule.
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.
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). "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., 477 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.
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, Ml 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, Ml U.S. at 248.
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).
Court, as a general rule, considers only admissible evidence
when ruling on a motion for summary judgment, Fraser v.
Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
In determining admissibility at the summary judgment stage,
however, the Court looks to the content of the proffered
evidence and does not elevate form over substance.
contends that the State cannot dispute the negligence
allegations against it because the Montana Department of
Justice ("the State's top law enforcement and legal
agency") submitted a report (DOJ Report) which
constitutes an admission of neglect by the State. (Doc. 68 at
10). The Court is familiar with the report, having previously
determined that it does not constitute "data"
protected from discovery by Mont. Code Ann. 50-16-205. (Doc.
61 at 16). Although the Court did not directly address the
admissibility of the DOJ report in its November 9, 2018,
order, Plaintiff was warned that her argument that the
Montana Department of Justice does not qualify as a peer
review committee undercut her position that the DOJ report
qualifies as a party admission. (Doc. 61 at 16, n. 4).
caption of Plaintiffs complaint names the Montana Department
of Public Health and Human Services (DPHHS) and the State of
Montana as separate defendants. (Doc. 4 at 1). In June of
2017, the parties stipulated to dismiss DPHHS, acknowledging
that DPHHS was named as a component part of the State of
Montana and that future filings would reflect the only State
defendant as the State of Montana. (Doc. 16). The dismissal
of DPHHS was consistent with Montana law, which provides that
the State of Montana is the only proper defendant in tort
claims brought against the State of Montana. See
Mont. Code Ann. §2-9-313.
fact that the State is a single entity for purposes of the
statutes governing tort claims against governmental entities
does not mean that statements made by one executive branch
agency qualify as admissions by another executive branch
agency. This is particularly true in this case, in which the
Montana Department of Justice was investigating the Montana
Developmental Center, a DPHHS facility, in response to a
report of possible abuse of a Montana Developmental Center
resident. The investigator's goal was to determine
whether any of the individuals involved in Marten's care
should be referred for criminal prosecution. It is an
unfortunate reality that one branch of government may need to
investigate the conduct of other branches of the same
government entity. While such investigations may lead to the
filing of administrative, civil or criminal charges, the
investigator's report is not an admission by the
individual or the entity being investigated.
argues that she is entitled to summary judgment because the
undisputed facts demonstrate that Dr. Justad was negligent
and that Dr. Justad was an agent for the State of Montana.
Plaintiff claims that the State made a judicial admission as
to Dr. Justad's negligence in its twenty-ninth
affirmative defense, in which it states: "Pursuant to
Mont. Code Ann. § 27-l-703(6)(f), Defendants assert that
Plaintiff entered into a settlement agreement with former
Defendants Jean Justad, M.D. and South Hills Internal
Medicine Associates, PLLP ("South Hills), that Dr.
Justad and/or South Hills are at fault for Plaintiffs claimed
damages and should appear on the jury verdict form for
purposes of apportioning fault." (Doc. 41 at 40-41).
assertions in pleadings and pretrial orders, unless amended,
are considered judicial admissions conclusively binding on
the party who made them." American Title Ins. Co. v.
Lacelaw Corp., 861 F.2d 224, 226 (9lh Cir.
1988). Plaintiff characterizes the statement above as a
factual assertion made in a pleading. The State argues that
the affirmative defense raised in its amended answer
referenced above is an alternative legal theory, not a
factual statement, and that it is entitled under the federal
rules to plead alternative and inconsistent claims and
State's twenty-ninth affirmative defense as written is
clearly inconsistent with its denials of each allegation of
Plaintiff s complaint that alleges Dr. Justad violated her
standard of care or was negligent. (See e.g. Doc. 41
at ¶¶ 128 - 140). Although the State arguably
should have been more clear that its affirmative defense was
intended to preserve its right to argue to the jury that
should it find both Dr. Justad and the State negligent, it
should apportion the blame between them, Plaintiff has not
been prejudiced by the State's lack of clarity. Given
that leave to amend can be given up to trial, the ...