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Marten v. State

United States District Court, D. Montana, Helena Division

September 27, 2019

ELLEN MARTEN, as Guardian and Conservator of Glen Marten, Plaintiff,
v.
STATE OF MONTANA, Defendant.

          OPINION & ORDER

          CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE

         On 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.

         LEGAL STANDARD

         The 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 [1]

         The 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[2] (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.

         Gene 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.

         Haire 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[3], 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.

         Marten 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.

         MDC 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, 2014.

         During 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 referral.

         PROCEDURAL HISTORY

         Plaintiff 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 2, 2018.

         The 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.

         The 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 ...


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