Marten v. State of Montana

Opinion

FILED 9/30/2019 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA Olek: □□ Dea □□ HELENA DIVISION Helena Division

ELLEN MARTEN, as Guardian and CV 17-31-H-CCL Conservator of Glen Marten, Plaintiff, OPINION & ve. ORDER STATE OF MONTANA, Defendant.

Before the Court are six fully briefed motions in limine, two filed by Plaintiff Ellen Marten and four filed by Defendant State of Montana. 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 in limine pending before the Court will assist in continued settlement

discussions. The Court considered the briefing on many of the pending motions in

limine in the course of denying the parties’ cross-motions for summary judgment and is therefore prepared to rule on those motions.

LEGAL STANDARD — MOTIONS IN LIMINE

“A motion in limine is a procedural mechanism to limit in advance

testimony or evidence in a particular area.” United States v. Heller, 551 F.3d

1108, 1111 (9th Cir. 2009). This Court “is vested with broad discretion to make

discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial.” Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9" Cir. 1980). Some

rulings on evidentiary issues should be deferred until trial, particularly issues involving the balancing of probative value and prejudice, as required by Fed. R.

Evid. 403, which is incorporated in Fed. R. Evid. 609. See United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034 (1980), overruled on other grounds in Luce v. United States, 469 U.S. 38 (1984). As explained by the United States Supreme Court in Luce, any pretrial ruling ona

motion in limine “is subject to change” because new evidence may come in during trial necessitating a change in the ruling. Luce, 469 U.S. at 41. DISCUSSION 1. Plaintiff's Motion in Limine Regarding Expert Opinions (Doc. 65). Plaintiff seeks to prevent Defendant State of Montana from presenting testimony from Dr. Edward J. Mikkelsen and Dr. Michael Adelberg regarding the following subjects: (1) the standard of care applicable to Dr. Jean Justad, an

internist; (2) nursing and physical therapy standards of care; (3) causation; and (4)

issues relating to lifecare planning and economic issues.

The Court addressed these issues in deciding Plaintiff's motion for summary judgment. (Doc. 109 at 10). To the extent further clarification is needed, Dr.

Adelberg will be allowed to testify as to Dr. Justad’s standard of care, should such

testimony be necessary. Dr. Mikkelson will not be permitted to testify as to Dr.

Justad’s standard of care. Both Dr. Mikkelson and Dr. Adelberg will be allowed

to testify as to the standard of care for the other individuals in Marten’s treatment

team at the Montana Developmental Center and to issues relating to causation and

Marten’s prognosis, future care, and treatment.

2. Defendant’s Motion in Limine re: DOJ Report (Doc. 73). Defendant seeks to prevent Plaintiff from introducing “the investigative

report and associated materials prepared by the Montana Department of Justice

(‘DOJ’) concerning Glen Marten’s care during the fall of 2014”o0n the grounds that

“the materials are inadmissible hearsay, contain hearsay within hearsay, and the

opinions expressed therein lack foundation and are inadmissible lay and legal opinions that would unfairly prejudice the State.” (Doc. 73 at 2).

Plaintiff argues that the report and its contents (DOJ Report) should not be

excluded as hearsay because it qualifies as the admission of an opposing party

under Fed. R. Evid. 801(d)(2)(C) or qualifies as factual findings from a legally authorized investigation under Fed, R. Evid. 803(8)(A)(iii). Plaintiff also argues that, to the extent that the report contains opinions, those opinions constitute

admissible lay opinions based on a culmination of the findings made during the

investigation. Finally, Plaintiff argues that the probative value of the report is not

substantially outweighed by the danger of unfair prejudice. The Court is familiar with the DOJ Report, having previously granted Plaintiffs motion to compel its production. (Doc. 61). The Court has already considered and rejected Plaintiff's argument that the DOJ Report qualifies as a

party admission. (Doc. 109 at 5 - 6). Plaintiff?s argument that the DOJ Report qualifies as factual findings from a

legally authorized investigation presents a closer question. The public investigatory report exception to the hearsay rule is found in Fed. R. Evid. 803(8)(A\{iii) and

excludes “factual findings from a legally authorized investigation” made by a public office from the hearsay rule, even when the person who made those factual findings is not available. In applying this rule, the Court must first determine whether the

statements to be admitted are based on factual investigation and “whether the report,

or any portion thereof, is sufficiently trustworthy to be admitted.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988).

When Fed. R. Evid. 803(8) was first enacted the “Advisory Committee

proposed a nonexclusive list of four factors it thought would be helpful in passing

on [the trustworthiness] question: the timeliness of the invetigation; (2) the

investigator’s skill or experience; (3) whether a hearing was held; and (4) possible bias when reports are prepared with a view to possible litigation.” /d. at 167, n.

11. Fed. R. Evid. 803(8) was amended in 2014 “to clarify that if the proponent has

established that the record meets the stated requirements of the exception —

prepared by a public office and setting out information as specified in the Rule —

then the burden is on the opponent to show that the source of the information or

other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8) advisory committee’s note to 2014 amendment. Defendant concedes that the investigation that led to the DOJ Report was

timely, but argues that it does not meet the trustworthiness requirement because

the person who compiled the report acknowledged that the DOJ staff conducting the investigation lacked medical expertise, there was no hearing, and the DOJ

investigators were motivated to find neglect because certain legislators and the

public wanted to shut down the Montana Developmental Center (MDC).

The Court rejects Defendant’s argument concerning the motivations of the

DOJ staff who conducted the investigation. Although the investigators may have

suspected that their report would be used in litigation by Disability Rights

Montana (DRM), the entity that initially submitted the complaint about Marten’s

care, or by certain legislators in support of their efforts to close MDC, there is

nothing in the report to indicate that the investigators were trying to support DRM’s position in anticipated litigation or any legislator’s attempt to close MDC.

There is no question that the Montana Department of Justice was

conducting a legally authorized investigation and that the first 61 pages of the

“DOJ Report” summarize the documents reviewed and the interviews taken during

that investigation. (Doc. 4-29 at 1 - 61), Although the DOS investigators lack

medical expertise, they are presumably trained in both conducting interviews and

summarizing records. The Court therefore finds that the first 61 pages of the DOJ

report qualify under the public records exception to the hearsay rule.

The next two pages of the report are titled “Analysis and Finding for Report #F1141208 Re: Medical care provided to Glen Marten,” signed by Dana Toole, the Children’s Justice Bureau Chief for the Montana Department of Justice, and

dated June 26, 2015. (Doc. 4-29 at 62 - 63). Ms. Toole concludes that “Mr.

Marten’s care at MDC during the period prior to his admission to the hospital on

November 25, 2014, constituted ‘neglect’ because there was a general ‘failure to

provide services necessary to avoid physical or psychological harm.” and further

concludes that her staff lacked the medical expertise to make a finding regarding

any individual potential wrong-doer. (Doc. 4-29 at 63). After deciding that the “exception to the hearsay rule for public investigatory reports containing ‘factual findings,’extends to conclusions and

opinions contained in such reports,” the Supreme Court noted that it was not

addressing the admissibility of a legal conclusion contained in an otherwise

admissible report. Beech Aircraft, 488 U.S, at 170, n. 13. The Ninth Circuit has

addressed this issue in considering the admissibility of a report prepared by the

United States Department of Labor, holding that “[p]ure legal conclusions are not

admissible as factual findings.” Sullivan v. Dollar Tree Stores, Inc., 623 F.3d.

770, 777 (9" Cir. 2010). The “Analysis and Finding” section of the DOJ Report is

a legal conclusion and must therefore be excluded.

The Court’s analysis of the admissibility of the DOJ Report does not end

with Fed. R. Evid. 803(8). The Court must also consider whether its probative value is outweighed by the danger of unfair prejudice. The introduction of the

“Analysis and Finding” section of the DOJ Report would be unduly prejudicial to

Defendant and would be excluded on that basis, if the Court had not already

determined that it should be excluded. The probative value of the remaining portions of the DOJ Report outweighs the potential prejudice. 3. Plaintiff's Motion in Limine Regarding Glen Marten’s Criminal History (Doc, 87). Plaintiff seeks to exclude all evidence of Glen Marten’s criminal history under Fed. R. Evid. 403 and 404(b), arguing that Defendant’s only reason for

introducing evidence of Marten’s prior assaultive behavior is to demonstrate he is

a bad person and prejudice his case. Defendant opposes Plaintiffs motion,

arguing that evidence of Marten’s prior conduct is not offered to demonstrate his

bad character but to explain what MDC staff knew about his history and how that

knowledge affected their treatment decisions. Defendant also seeks to introduce

evidence of Marten’s post-injury violence and aggression to explain the reasons

for his current placement and why it is preferable to the alternative placement proposed by Plaintiffs experts. The Court sees no reason why Defendant should

need to introduce evidence concerning Marten’s criminal convictions and grants Plaintiff's motion as to prior convictions. Defendant, however, must be permitted to present evidence concerning Marten’s developmental, cognitive, physical, and psychological conditions, which

may require evidence concerning the behavior that led to his placement at MDC

and during his stays there. The Court has determined that a ruling on this issue,

which involves the balancing of probative value and prejudice, should be deferred until trial.

4. Defendant’s Motion in Limine Re: Plaintiff's Experts (Doc. 89). Defendant seeks to prevent testimony from Plaintiff's experts that MDC employees violated standards of care. The Court addressed this issue as to Dr. Lemmons and Dr. Urbach in deciding its order denying Defendant’s motion for

summary judgment. Dr. Lemons will be permitted to testify regarding the standard of care for MDC staff. Dr. Urbach will not be permitted to testify regarding the standard of care for MDC staff. Defendant asks the Court to exclude the liability opinion expressed by Dr. Rosen in his “rebuttal” expert disclosure because Dr. Rosen was initially disclosed solely as a damages expert. The Court has reviewed Dr. Rosen’s rebuttal disclosure report, in which he offers two “liability” opinions. The first states that in October of 2014, Marten “was observed to be suffering from an acute physical decline, unique and distinct from his previous problems. This decline was never recognized or evaluated by his primary physician, nor was he referred to any others for adequate assessment.” (Doc. 90-4 at 14). Later in the report, Dr. Rosen writes that Marten’s “life-long care needs . . . could have been prevented, if a timely, appropriate evaluation had taken place.” (Doc. 90-4 at 18). Plaintiff's

theory from the beginning of this case has been that the delay in diagnosis and

treatment caused Plaintiff's injuries. These are not proper rebuttal opinions and should be excluded. Defendant seeks to exclude testimony from Steven Yuhas, a life care planner, based on Marten’s placement in one of four out-of-state facilities without

any evidence that such placement is medically necessary or that Marten would be accepted in such a facility. Defendant also argues that Mr. Yuhas’s testimony should be excluded based on his belated submission of a supplemental expert report. Given the time that the parties have spent working on settlement negotiations, it does not seem to the Court that Defendant was unduly prejudiced by the belated submission of the supplemental report. The Court is not convinced

at this juncture that Plaintiff will be able to show that placement in one of the four out-of-state facilities is medically necessary or that Marten would be accepted. Given that Mr. Yuhas lacks the necessary qualifications to testify to those issues, he will not be permitted to include the cost of those facilities in his testimony regarding Marten’s life-care plan. 5. Defendant’s Motion in limine re: Damages (Doc. 93). Defendant seeks to prevent Plaintiff from presenting any evidence of the

amount the State has already paid as a measure of damages for past medical

expenses and to prohibit Plaintiff from presenting any evidence regarding future

damages for medically necessary care. In the alternative, Defendant asks the

Court to permit the State to present evidence as to the amount it has already paid and will pay in the future for Marten’s medically necessary care through its

Medicaid and Medicaid Waiver programs. The issue before the Court is whether Plaintiff Ellen Marten, the Guardian

and Conservator for her son, Glen Marten, should be allowed to present evidence

in support of her compensatory damage claim about past medical expenses that the

State of Montana has already paid and about future medical expenses that will be

paid by the State, through its Medicaid and Medicaid Waiver programs. The

complexity in this case arises because the State of Montana is the Defendant charged with causing Marten’s injuries and is also the party responsible for paying his medical bills, not because it is has assumed liability for his injuries but because

the State made a voluntary decision to participate in the Medicaid program, Plaintiff's compensatory damages should not include either past medical expenses paid by Defendant or future medical expenses to be paid by Defendant.

1]

6. Defendant’s Motion in Limine (Doc. 91). A. Other Acts Evidence

Defendant asks the Court to categorically exclude evidence of other

_ incidents of alleged abuse and neglect at MDC without first applying the four-part

test set forth by the Ninth Circuit. Rather than identifying a specific incident or

incidents that she intends to bring up at trial, Plaintiff argues that the “other act”

evidence is necessary to show that the State and Haire had actual notice that staff

supervision was woefully inadequate. The issue in this case in not whether MDC

staff were adequately supervised — it is about whether MDC personnel should

have done something more than they did to ensure that Marten received necessary medical care. Plaintiff may be attempting to prove the State’s liability by proving that the State employee charged with supervising Dr. Justad should have known

not to trust her medical judgment based on a prior failure by Dr. Justad to properly diagnose a patient. If that is true, Plaintiff must provide the Court and Defendant

with notice of the specific incident or incidents upon which she intends to rely. Once such notice is provided, the Court will consider whether to allow the specific evidence. This portion of Defendant’s motion in limine is denied, with leave to

refile, once Plaintiff has identified the specific evidence of Dr. Justad’s prior negligence vis-a-vis a patient at MDC.

B. March 23, 2015, Notice of Violations and Order

Defendant seeks to prohibit Plaintiff from introducing the “Notice of

Violations and Order” issued by Roy Kemp, Administrator of the Division of

Quality Assurance for the Montana Department of Public Health and Human

Services” on March 23, 2015. The Court is familiar with this document, having reviewed it in deciding various motions for summary judgment filed by the current

parties and by Defendant Gene Haire. It is clear from the final page of the

“Notice of Violations and Order” that it was not a final order and that MDC had

not had the opportunity to defend itself from the charges before the order was

issued. (Doc. 53-27 at 6). While the Court agrees with Plaintiff that Defendant

has muddied the waters as to the issue whether this document is protected from

disclosure under Mont. Code Ann. § 50-16-205 by denying that MDC was a

hospital, the Court agrees with Defendant that its probative value is outweighed by the risk of unfair prejudice. This portion of Defendant’s motion in limine is

granted. C. Evidence of MDC’s Closure Although it is not clear to the Court that any potential juror will be unaware

of the events that led to the closure of MDC, the Court agrees that evidence that

the legislature chose to close MDC is not admissible in this case.

D. Evidence of Dr. Justad’s Settlement

Plaintiff argues that she should be allowed to present evidence of Dr.

Justad’s settlement if Defendant is permitted to seek to assign a percentage of fault

to her. Plaintiff cites no authority for this position. Defendant, also without citing authority, argues that the settlement issue is only relevant to legal issues to be

decided by the Court post-verdict and is not relevant to any issue to be decided by the jury. Based on its reading of the relevant Montana statute. Mont. Code. Ann. § 27-1-703 (2019), the Court agrees with Defendant’s position. Neither party will

be permitted to present evidence relating to Dr. Justad’s settlement.

E. Evidence that Dr. Justad was a State Agent The Court has determined as a matter of law that Dr. Justad was an

independent contractor and not an agent of the State of Montana. This portion of

Defendant’s motion in limine is therefore granted. F. □□□ Opinions from MDC staff members. MDC staff members will be permitted to provide lay opinions at trial on

behalf of either party, provided the party seeking to introduce such evidence lays the proper foundation, as required by Fed. R. Evid. 701. This portion of

Defendant’s motion in limine is denied. fff

G. Denise White’s Lay Opinions and Hearsay Concerning Gene Haire Defendant seeks to prevent a specific former MDC employee from

providing a lay opinion about Gene Haire’s competence on the grounds that her

opinion was based on information from other MDC employees and not on

personal knowledge. This portion of Defendant’s motion in limine is granted. H. Suggestion that DOJ found neglect as to any individual.

The Court resolved this issue by holding that pages 61 and 62 of the DOJ

report should not be admitted, effectively granting this portion of Defendant’s

motion in limine. I. Allegations of Failure to Train or Supervise Defendant seeks to prevent Plaintiff from introducing allegations of failure

to train or supervise MDC staff because Plaintiff's response to discovery was that

she would defer to an expert on that issue and she then failed to properly disclose

expert testimony on that issue. Defendant also argues that Plaintiff should not be

permitted to raise a separate claim for negligent hiring, training, retention and supervision when Defendant has admitted that it is vicariously liable for any negligence on the part of State employees charged with caring for Marten, citing Patrick v. FedEx Grounds Package Sys., Inc., 2010 U.S. Dist. LEXIS 47729 at

** 5. 7(D. Mont., Apr. 21, 2010). 15

The Court agrees with Magistrate Judge Lynch’s reasoning in Patrick that

in most cases it would be redundant to allow a plaintiff to proceed against an

employer on both a respondeat superior and a negligent hiring and supervision

case. Therefore the Court grants this portion of Defendant’s motion in limine as

to allegations of negligent training and supervision of State employees. Dr. Justad, however, was not a state employee. Plaintiff may therefore be

able to prove Defendant’s liability by proving that a State employee charged with

supervising Dr. Justad should have known not to rely on her medical judgment concerning Marten’s care. Such a theory clearly requires expert testimony. As

noted above, the Court has determined that Dr. Lemons should be able to testify,

even though his expert report as to this issue was arguably inadequate. J. Allegations of MDC Duty to Investigate The Court agrees with Defendant that DPHHS had no statutory obligation to

investigate DRM’s complaint about Marten’s care or the care received by any other patient at MDC after the Montana legislature assigned that duty to the DOJ.

Given that Plaintiff is being permitted to introduce all but two pages of the DOJ

report, there is no reason for Plaintiff to present evidence about the lack of an

internal investigation. Indeed, evidence of such an investigation would likely be

inadmissible. This portion of Defendant’s motion in limine is therefore granted.

K. □ Evidence of Marten’s Move to Different Room Marten’s parents visited him on November 24, 2014, the day before he was

sent to the emergency room. Their impressions of his condition and the condition of the room to which he had been transferred and what they did in response are relevant. This portion of Defendant’s motion ix limine is denied. L. Evidence of Christy Modrow’s Returning Marten’s Personal Belongings to Great Falls Plaintiff seeks to introduce her testimony about comments made by Christy Medrow when she brought Marten’s personal items, including a bowling ball and golf clubs, to Great Falls after Marten left the hospital. The Court agrees with Defendant that these comments are not relevant to the issue to be decided by the jury and therefore grants this portion of Defendant’s motion in limine. M. Testimony about “Loved Ones” Standard of Care While the so-called “loved one” standard of care in this case arguably applies to Plaintiff, who is Glen Marten’s mother, she cannot impose that standard

on Defendant. The Court agrees that Plaintiff's questions to state employees regarding what they would have done for their spouse, parent, or child are objectionable and will sustain any objection to such questions during depositions or posed at trial. fff 17

ORDER I. Plaintiff's Motion in Limine Regarding Expert Opinions (Doc. 65) is

DENIED. 2. Defendant’s Motion in Limine re: DOJ Report (Doc. 73) is DENIED

as to all but pages 61 and 62 of the report. 3, Plaintiffs Motion in Limine Regarding Glen Marten’s Criminal

History (Doc. 87) is GRANTED to the extent that Defendant seeks to introduce

evidence of Marten’s prior convictions and DENIED to the extent Defendant

seeks to introduce evidence concerning Marten past behavior necessary to shed

light on MDC staff's reaction to his requests for medical care. Plaintiff's

objections to the introduction of specific evidence will be decided at trial.

4. Defendant’s Motion in Limine Re: Plaintiff's Experts (Doc. 89) is

GRANTED in part and DENIED in part as follows: Dr. Lemons will be permitted

to testify regarding the standard of care for MDC staff; Dr. Urbach will not be

permitted to testify regarding the standard of care for MDC staff; Dr. Rosen will not be permitted to provide the liability opinions first disclosed in his rebuttal

report; and Steven Yuhas will not be permitted to include the cost of the four out-

of-state facilities in Marten’s life-care plan. 5, Defendant’s Motion in Limine Re: Damages (Doc. 93) is GRANTED.

6. Defendant’s Motion in Limine (Doc. 91) is GRANTED in part and

DENIED in part as follows. A. Defendant’s motion to categorically exclude all “other acts”

evidence is DENIED with leave to refile, to the extent Plaintiff can identify specific evidence of Dr. Justad’s prior negligence vis-a-vis a patient at MDC.

B. Defendant’s motion to exclude the March 23, 2015, Notice of

Violations and Order is GRANTED. C, Defendant’s motion to exclude evidence of MDC’s closure is

GRANTED. D. Defendant’s motion to exclude evidence of Dr. Justad’s

settlement is GRANTED. E. | Defendant’s motion to exclude evidence that Dr. Justad was an

agent of the State of Montana is GRANTED.

F. | Defendant’s motion to exclude lay opinions from MDC staff

members is DENIED to the extent Plaintiff lays the proper foundation for such

testimony. The Court will rule on specific objections at trial.

G. Defendant’s motion to exclude Denise White’s lay opinion concerning Gene Haire is GRANTED. fff

H. Defendant’s motion to exclude evidence that the DOJ found any individual state employee negligent in the DOJ Report is GRANTED. I. Defendant’s motion to exclude allegations of failure to train or supervise is GRANTED as to such evidence directed at failure to train or supervise state employees but DENIED as to failure to supervise Dr. Justad. J. Defendant’s motion to exclude allegations or evidence concerning the lack of an internal MDC investigation is GRANTED. K. Defendant’s motion to exclude testimony about Marten’s move

to a different room is DENIED. L. Defendant’s motion to exclude evidence of comments made by Christy Modrow when she returned Marten’s personal belongings is GRANTED. M. Defendant’s motion to exclude evidence of the “loved one” standard of care is GRANTED. Dated this. ook of September, 2019.

x _f Galop SENIOR UNITED STATES DISTRICT