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
September 9, 2019, the parties filed a joint status report
indicating that they have been unable to resolve this case,
despite good faith settlement discussions. The parties
indicate that a decision by the Court as to some or all of
the fully briefed motions pending before the Court will
assist in continued settlement discussions. The Court agrees
that a decision on Defendant State of Montana's pending
motion for summary judgment will assist the parties to
resolve their remaining issue and to prepare for trial. As
neither party has requested a hearing on that motion, the
Court is prepared to rule.
parties are familiar with the legal standard applied by this
Court in deciding summary judgment motions, and it need not
be repeated here. STATEMENT OF FACTS
following factual statement is drawn in part from the
Court's order granting Defendant Gene Haire's motion
for summary judgment. (Doc. 107). Glen Marten (Marten) suffers
from developmental, cognitive, physical and psychological
conditions. He lived at the Montana Developmental Center
("MDC") for approximately fifteen years, starting
in 1990 and most recently from February 2009 to November 25,
2014. Marten was involuntarily committed to MDC, a facility
for people with serious intellectual disabilities run by the
State of Montana Department of Public Health and Human
Services ("DPHHS") due to his violent outbursts.
Haire (Haire) began working as the MDC Superintendent in May
of 2011 and served in that position until May of 2015, when
he retired. MDC housed approximately 68 residents while Haire
was its superintendent and provided around the clock nursing
care to its residents. Haire was responsible for providing
guidance and support to staff, including contract staff,
regarding treatment standards. Haire had no medical training
and was not qualified to intervene in medical decisions.
directly supervised MDC's Clinical Services Director,
Polly Peterson (Peterson), who supervised MDC's medical
personnel. Peterson was the on-site supervisor for medical
staff at MDC, including Dr. Justad, who contracted with the
State to provide medical services. Peterson is a
psychologist, not a medical doctor, and therefore could not
determine whether the treatment decisions relating to
Marten's medical care were appropriate, whether those
decisions were made by Dr. Justad or by the nursing staff.
During the relevant time period (the fall of 2014), Dr.
Justad was the only physician serving the medical needs of
MDC residents. Dr. Justad visited MDC once a week.
suffered a spinal cord injury on September 11, 2014, and
showed progressive signs and symptoms of his cervical disc
herniation and spinal cord dysfunction from September 11,
2014 to December 3, 2014. During this time, Dr. Justad was
Marten's primary treating physician. MDC staff members
working with Marten became increasingly concerned about his
deteriorating condition through the fall of 2014. In late
October of 2014 there was an email exchange between Dr.
Justad's office and MDC medical staff in which MDC
medical staff recommended that Marten should have an MRI of
his entire spine. Peterson and Haire were both aware of that
exchange, but did not intervene when Dr. Justad chose not to
order the MRI.
medical staff could authorize having a resident taken to the
hospital without seeking approval from Peterson or Dr.
Justad. Although various members of Marten's medical
staff were increasingly concerned about Marten's
condition during the fall, the decision to have Marten taken
to St. Peter's Hospital was not made until November 25,
his stay at St. Peter's, Marten had an MRI, which
revealed the need for surgery on his cervical spine. Dr.
Lemons, one of Plaintiff s retained experts, opines that MDC
medical staff should have properly diagnosed Marten and
referred him for surgical intervention soon after his
September 11, 2014, fall and no later than the first work
week of October. In Dr. Lemons' opinion, Marten suffered
severe injury as the result of the delay in diagnosis and
filed her complaint in state court and served Haire in
January of 2017; the State and Haire filed their notice of
removal in February of 2017. At the preliminary pretrial
conference held on May 25, 2017, the Court set trial for May
13, 2019, based on the parties' representation that they
could meet the other deadlines set by the Court, including
the expert disclosure deadlines. On February 1, 2018, the
Court granted the parties' first Joint Motion to Extend
Scheduling Order and entered its First Amended Scheduling
Order, extending numerous deadlines set in the Preliminary
Scheduling Order, including the expert disclosure deadlines.
On April 18, 2018, the Court granted the parties' motion
to extend the expert witness disclosures and the joint status
report and discovery deadlines. The Court set the deadline
for Plaintiffs expert disclosure for June 11, 2018, for
Defendants' disclosures for July 9, 2018, and for
rebuttal disclosures for August 6, 2018. On August 22, 2018,
after the expert disclosure deadlines had passed the Court
issued a Second Amended Scheduling Order, extending the
discovery deadline until October 31, 2018. In that Order, the
Court warned the parties that if they could not comply with
the deadlines, the Court might need to consider resetting the
trial date. On October 1, 2018, the parties jointly moved for
an extension of the October 31, 2018, discovery deadline so
that the State could depose three of Plaintiffs' timely
disclosed expert witnesses (Dr. Rosen, Dr. Lemons and Dr.
Urbach) in November. The Court granted the motion on October
State filed its reply brief on its motion for summary
judgment on January 14, 2019 and filed a motion in
limine seeking to exclude certain testimony from
Plaintiffs experts on February 8, 2019. The State's reply
brief was filed on March 8, 2019. The Court has considered
the arguments made in connection with the State's motion
in limine regarding Plaintiffs experts in
considering the State's motion for summary judgment.
Court granted Haire's motion for summary judgment on
April 25, 2019, and denied Plaintiffs motion for summary
judgment on April 26, 2019. On April 29, 2019, Plaintiff and
Defendant filed a "Joint Motion to Vacate Trial
Date"so that counsel ...