Mooring v. 18th Judicial District

Opinion

UK1G'NAL 10/27/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0446

OP 20-0446

STEPHANIE MOORING,Individually and as Personal Representative of Estate of Eryon Barnett, Deceased, to specifically include his Minor Son, FILED B.J . W., and Sarah Woolard, on behalf of B.J.W., a OCT 2 7 2020 Minor. Individually, Bowen Greenwood Clerk of Supreme Court State of Montana

Petitioner, ORDER v.

MONTANA EIGHTEENTH JUDICIAL DISTRICT COURT,HON. RIENNE McELYEA, Presiding,

Respondent.

Petitioners Stephanie Mooring,Individually,and as Personal Representative ofthe Estate of

Eryon Barnett, Deceased, to specifically include his minor son, B.J.W.; and Sarah Woolard, on

behalf of B.J.W., a minor, individually (collectively. the "Plaintiffs"), seek a writ of supervisory

control directing the Eighteenth Judicial District Court, Gallatin County, to reverse its oral ruling

from the bench on May 21, 2020; Order Denying Plaintiffs Motion to Cornpel and Order for

In Camera Review for Peer Review Materials dated June 30, 2020; and Order RE: In Camera

Inspection dated June 26, 2020 in its Cause No. DV-18-235B. Defendant Bozeman Deaconess

Health Services d/b/a Bozeman Deaconess Hospital a/k/a Bozeman Health Deaconess Hospital

(Bozeman Deaconess) and the District Court have filed responses to the petition.

In the district court action. the Plaintiffs served discovery requests for certain documents and

information related to a peer review conducted by Bozeman Deaconess regarding the medical care

and treatment oftwenty-four-year-old Eryon Barnett, who died after being admitted to the facility's and treatment oftwenty-four-year-old Eiyon Bamett,who died after being admitted to the facility's

emergency department. Bozeman Deaconess objected to the requests, and the Plaintiffs moved to

compel. After a hearing on the motion,the District Court denied the Plaintiffs' motion,but ordered

Bozeman Deaconess to submit all peer-reviewed records in camera and provide lists identifying

which ofthat information was privileged or non-privileged. The District Court further stated these

lists were intended to assist the court in conducting in camera review and were not discoverable by

the Plaintiffs. After conducting its in camera review, the District Court determined "all material

reviewed at the Peer Review are 'data' as defined by § 50-16-201, MCA[,]and are confidential and

not discoverable pursuant to § 50-16-205, MCA."

The Plaintiffs request this Court exercise supervisory control and reverse the District Court's

orders that prevent them from discovering peer-reviewed facts about Mr.Barnett's death at Bozeman

Deaconess. The Plaintiffs further assert that the District Court's orders infringe on their

fundamental right to know all information concerning Mr. Barnett's care and treatment, contain

mistakes of law that permit Bozeman Deaconess to withhold material facts under the guise of

privilege, and deprive the Plaintiffs ofthe privilege logs to determine whether privilege exists.

Supervisory control is an "extraordinary remedy"that functions as our means ofsupervision

of a district court "on a case-by-case basis M. R. App. 14(3). See also Mont. Const. art. VII,

§ 2(2)(providing that the Montana Supreme Court maintains "general supervisory control over all

other courts."). We generally exercise this'control "when the case involves purely legal questions

and urgent or emergency factors make the normal appeal process inadequate." Barrus v. Mont. First

Jud. Dist Ct., 2020 MT 14,¶ 17,398 Monti353,456 P.3d 577(citing M.R. App. 14(3)). The case

must also satisfy at least one of three additional criteria:(a)the other court is proceeding under a

mistake oflaw and is causing a gross injusticI e;(b)constitutional issues ofstatewide importance are

2 involved; or (c) the other court has grante or denied a motion for substitution of a judge in a

criminal case. M. R. App. 14(3).

We have previously accepted supervisory control over a district court's determination of

privilege under Montana's hospital peer review statutes, §§ 50-16-201-05, MCA,the purpose of

which is to promote continuous improvement in the quality of health care delivery and through

review ofstandardized health care operations and the performance ofdoctors and staff" Huether v.

District Court, 2000 MT 158, ¶ 9, 300 Mont. 212,4 P.3d 1193. See also Wirtz v. Mont. Fifteenth

Judicial Dist Ct., 365 Mont.557,286 P.3d 591 (2012). In Wirtz, we reviewed a copy of a hospital 1 report filed under seal, and reversed the District Court's ruling that the report was privileged upon

determining it qualified as an "incident repbre' that fell outside the protection of the peer review

statutes. See § 50-16-201(3)(a), MCA.

We similarly accepted supervisory control in Huether but did not reach a substantive

determination of whether the documents at issue were privileged under the peer review statutes.

Huether,¶ 22. Instead, we left that determiriation to the district court,holding that the court may be

required to "conduct an [in camera] review and redact material in the documents relating to

supervisory or disciplinary matters." Huether, ¶ 22.

In this case, the Plaintiffs ask us to'accept supervisory control to review the merits ofthe

District Court's ruling, but they fail to identify any purely legal questions or emergency factors that

would render the normal appeal process inadequate. Unlike in Huether, the District Court has

already conducted in camera review ofthe contents ofthe peer-reviewed material and engaged in a

necessarily factual inquiry when it deteninned the material was privileged and not subject to

disclosure. And,unlike in Wirtz, we are unable to observe the contents ofthe peer-reviewed material

to determine ifthe District Court's factual,essment resulted in a mistake oflaw that would cause a

3 adhere to the general rule in this case that discoveiy disputes are inappropriate for supervisory

control,as district courts "are in the best position to assess the nature and effect ofdiscovery abuses"

under the Montana Rules of Civil Procedure. Mont. State Univ.-Bozeman v. Mont. First Judicial

Dist. Court, 2018 MT 220,¶ 15, 392 Mont. 458,426 P.3d 541 (hereinafter, MSU). The Plaintiffs

may raise the issue on appeal ifthey ultimately deem it necessary to do so, which provides them with

means for review ofthe District Court's discovery ruling for an abuse ofdiscretion. See MSU,¶ 15.

THEREFORE,IT IS ORDERED that the petition for writ ofsupervisory control is DENIED.

The Clerk is directed to provide immediate notice ofthis Order to counsel for the Plaintiffs,

all counsel of record in the Eighteenth Judicial District Court, Gallatin County,

Cause No. DV-18-235B,and the Honorable Rienne McElyea, presiding.

DATED this day of October, 2020.

Chief Justice

Justices