INSURANCE: Insurer has duty to defend off-duty police officer against claims stemming from bar parking lot altercation in which Plaintiff alleges he was “brutally assaulted” as he was attempting to drive through the lot and the officer claims he acted in self-defense because of Plaintiff showing a firearm in his vehicle… underlying Complaint allegations read in conjunction with other facts known to insurer including self-defense claim asserted as affirmative defense in officer’s Answer… DeSoto.

Louis Delgado alleges that Billings police officer Matthew Frank, Steve Swanson, and Yellowstone Co. Dep. Brandon Smart spent more than a hour inside the Grandstand Bar drinking and then congregated in the parking lot, and as he was attempting to drive through the lot, Frank “did a flying knee into the driver’s side door,” damaging his vehicle. He alleges that the three aggressively approached the driver’s side door,” at which time he “advised and showed” them that he had a firearm in the vehicle in an attempt to de-escalate and get them away from the vehicle so he could continue to leave. He asserts that Frank, in his capacity as a law enforcement officer, “attempted to gain physical control over him in an attempt to apprehend him.” According to Delgado, Frank reached in through the window and “viciously” and “brutally assaulted” him and opened the door and attempted to drag him out “to continue the physical assault” and apprehend him. He alleges that he was able to maneuver his vehicle away from Frank and exited the lot. On 4/26/22 Delgado sued Frank in 13th Judicial Court naming him individually and in his official capacity and asserting negligence and negligence per se. (He also named Swanson, Smart, the Sheriff’s Dept., and the Billings PD; they are not relevant to the pending motions.)

Frank disputes Delgado’s version of events. He raised “self-defense” as an affirmative defense in his Amended Answer. He was insured under an Allstate homeowners policy and a personal umbrella policy. On 4/28/22 he notified Allstate of the suit. Allstate advised that the claims against him are not covered under the policies. It filed this declaratory action 7/7/22 and moves for summary judgment that it has no duty to defend & indemnify Frank. Frank moves for partial summary judgment on the duty to defend.

Allstate argues that there is no possibility that the homeowners policy will cover any of the claims asserted against Frank. It takes the threshold position that the duty to defend inquiry is limited to the facts alleged in the underlying complaint and because Delgado’s claims are based entirely on allegations of intentional conduct by Frank they do not constitute an “occurrence” under the homeowners policy’s general coverage provisions and are excluded by the intentional acts exclusion. To the extent that the underlying complaint alleges that he engaged in official misconduct and was acting in an official capacity, it argues that Delgado’s claims fall squarely within the business activities exclusion.

Frank disagrees that the Court’s inquiry is necessarily confined to the 4 corners of the underlying complaint. He contends that if the allegations in Delgado’s complaint are read in conjunction with other facts known to Allstate — including particularly that Frank has raised self-defense as an affirmative defense and the City has determined that he was not acting within the scope of his duties at the time — Delgado’s claims potentially fall within the homeowners policy’s general coverage and outside the intentional acts and business activities exclusions.

Whether the conduct alleged in the underlying complaint constitutes an “occurrence.”

The policy defines “occurrence” as “an accident, including continuous repeated exposure to substantially the same general harmful conditions during the policy period, resulting in bodily injury or property damage.” Under Montana law, an “accident” is an “unexpected happening that occurs without intention or design on the part of the insured.” Liss (Mont. 2000). Fisher Builders (Mont. 2016) established a test for whether conduct is an “accident” such that it constitutes an “occurrence”: “1) whether the act itself was intentional, and 2) if so, whether the consequence or resulting harm stemming from the act was intended or expected from the actor’s standpoint.”

The 2nd part of the test requires an objective inquiry to determine “what injuries could reasonably be expected to result from an intentional act.” Id. If the answer to either question is “no,” then the act is an “occurrence.”

Applying Fisher, Allstate contends that the conduct alleged in the complaint does not constitute an accident or occurrence. It maintains that although Delgado’s claims are titled “negligence” and “negligence per se,” the factual allegations plainly set forth only intentional conduct. As it correctly points out, what matters in determining the potential for coverage is the nature of the facts alleged, not how the claims are labeled or titled. This principle is well-established and Frank does not argue otherwise.

However, he does disagree with Allstate’s argument that the duty to defend inquiry is necessarily limited to the 4 corners of Delgado’s complaint. As a general rule, whether an insurer has a duty to defend is determined “by comparing the factual allegations in the underlying complaint to the coverage afforded under the policy.” Graber (Mont. 1990). Wessel (Mont. 2020) reaffirmed this principle: “Whether a duty [to defend] exists is determined by looking to the allegations within the complaint; ‘the complaint and the policy constitute the universe with regard to the insurers’ duty to defend.’ If there is no coverage under the terms of the policy based on the facts contained in the complaint, there is no duty to defend.” (quoting Weitzel (Mont. 2016)).

Citing Wessel, Allstate argues that it was not required to look beyond the allegations in Delgado’s complaint to determine whether it had a duty to defend Frank, and argues that the complaint allegations that Frank did a flying knee kick to Delgado’s car, used excessive force, brutally & viciously assaulted him, and acted with malice do not constitute an occurrence under the Fisher test because (1) the conduct was clearly intentional and (2) the consequences and resulting harm stemming from the conduct were reasonably expected from Frank’s standpoint.

Frank does not seem to dispute that on its face the Delgado complaint alleges intentional conduct that would not constitute a covered occurrence. But unlike Allstate, he takes the position that it is proper under the circumstances to consider extrinsic factual information in determining Allstate’s duty to defend. He invokes Revelation Industries (Mont. 2009) which held that even when the “complaint does not present a claim which on its face is covered by the policy,” an insurer may have a duty to defend if it is aware of factual information that would otherwise trigger such a duty. (italics in original). Revelation made clear that “an insurer cannot ignore knowledge of facts that may give rise to coverage under the policy simply because the complaint — which is, after all, drafted by a claimant over whose draftsmanship the insured has no control — does not allege those facts of which the insurer has knowledge.” While insurers are not required “to seek out such information,” they are not at liberty “to simply ignore factual information supplied to them by their insured but not alleged in the complaint or petition where those facts would trigger a duty to defend.” Id.

National Indemnity (Mont. 2021) reiterated that “an insurer’s duty to defend may arise from an insurer’s knowledge of ‘facts obtained from outside the complaint,‘ and thus, the duty is not exclusively dependent upon notice of facts from the insured.” (italics in original) (quoting Huckins (Mont. 2017) (citing Revelation).

Applying these principles, Frank argues that Allstate was not entitled to ignore his affirmative defense of self-defense when evaluating its duty to defend. The Court agrees. It is undisputed that he asserted self-defense in the amended answer he filed 8/24/22 — just 3 months after he was served with Delgado’s complaint and 6 weeks after Allstate filed this declaratory action. Allstate explained at oral argument that it is defending Frank subject to reservation and acknowledged that it was put on notice that he is claiming self-defense when defense counsel filed the amended answer 8/24/22. Because Allstate knew that Frank was asserting self-defense as an affirmative defense against Delgado’s claims, it was not at liberty to ignore that information when evaluating its duty to defend.

Allstate cites Abbey (D.Mont. 2006) for the proposition that an insurer is not required to consider later developed facts outside the original complaint when evaluating coverage. But the fact that it was put on notice of Frank’s affirmative defense at the pleading stage distinguishes Abbey in which the later-developed facts came from an affidavit filed in support of a summary judgment motion, 2 depositions, and a letter written nearly a year after the complaint was filed. Judge Molloy confined the coverage inquiry to the facts alleged in the complaint, reasoning that if an insurer was “required to consider facts introduced much later by the party seeking coverage that were not in the original complaint, an insurer could never deny a duty to defend.” Unlike the extrinsic evidence in Abbey, Frank’s affirmative defense was introduced at the pleading stage. Under Revelation, which post-dates Abbey, Allstate could not ignore that Frank was claiming self-defense — a fact that it has been aware of since the early stages.

Allstate additionally asserts that the Revelation rule applies only if the facts of which the insurer has knowledge are undisputed and that Frank disputes Delgado’s version of events. While whether Frank acted in self-defense is certainly disputed, the fact that he has asserted it is not in dispute. Allstate has been aware since he filed his amended answer in 8/22 that he is asserting self-defense. As explained below, it is the assertion of this affirmative defense that raises the possibility of coverage and triggers the duty to defend.

Allstate further contends that Frank’s reliance on Revelation is foreclosed by Wessel. The plaintiffs in Wessel were in an ongoing dispute with the insureds over use of a road traversing the insureds’ property. The plaintiffs alleged that the insureds threatened to harm them, installed obstacles, and discharged firearms at them. They sued for assault, trespass, civil conspiracy, and IIED and further alleged that the insureds acted intentionally, purposefully, and with malice. Wessel held that the conduct did not constitute an “occurrence” or “accident” under the homeowners policy because “the conduct alleged was both intentional and done purposefully by the Insured to cause injury and damages” to the plaintiffs. In finding no duty to defend, the Supreme Court reasoned that “although an insurer cannot ignore knowledge of facts that may give rise to coverage under the policy simply because the complaint does not allege these facts of which the insurer has knowledge, this exception does not apply due to the very nature of the claims.” Although the insureds “suggest that their denials to the allegations create factual disputes, the threshold question is whether the claim against the insured alleges facts that would trigger coverage” and the insureds could not “create coverage where it does not exist simply by denying the claims when the claims themselves do not trigger coverage.” Id.

Analogizing to Wessel, Allstate argues that because the conduct alleged in the complaint was intentional and purposeful, the duty to defend inquiry ends there and Frank cannot create the possibility of coverage by claiming he acted in self-defense. But unlike the insureds in Wessel who simply denied the factual allegations in the complaint, Frank asserted self-defense in his responsive pleading to Delgado’s complaint. While the mere denial of liability in the underlying action may not fall with the Revelation exception, the fact that Frank has asserted a colorable claim of self-defense distinguishes Wessel.

This distinction is material as evidenced by the primary case out of this District that Frank relies on to support his argument that the claims asserted in the underlying complaint are a covered occurrence. In Tunkle (D.Mont. 1998) the defendant was insured under a Safeco homeowners policy that defined “occurrence” as “an accident which results in bodily injury.” It also contained an intentional acts exclusion for bodily injury “which is expected or intended by any ‘insured’ or which is the foreseeable result of an act or omission intended by any ‘insured.’” The insured was prosecuted after shooting a home intruder but was acquitted based on self-defense. The intruder sued the insured for damages suffered in the shooting and Safeco sought a declaration that it did not have a duty to defend & indemnify its insured because the shooting was not an “occurrence” and the policy’s intentional act exclusion applied. Judge Molloy rejected both arguments, holding that “the duty to defend arises where an insured has a colorable claim of self-defense.” First, he found that the definition of “occurrence” was ambiguous because the policy did not define “accident.” Construing the ambiguity against Safeco, he concluded that the shooting “was an ‘accident’ as the term is reflected in the generally understood dictionary definitions” and thus was an “occurrence” under the policy. Second, he concluded that the intentional acts exclusion did not apply, reasoning that “self-defense is the very opposite of willful wrongdoing. By definition, the intent of a person acting in self-defense is to protect himself, not to cause harm to another” and thus “self-defense is volitional but not intentional within the policy exclusions.”

As in Tunkle, Frank has asserted a colorable claim of self-defense. Allstate has been on notice since 8/24/22 when he filed his amended answer to the complaint that he is claiming self-defense. That his affirmative defense is colorable is evident from the face of the complaint. Under Delgado’s version, he demonstrated to Frank during their encounter that he had a firearm in his vehicle, which is sufficient to raise a colorable claim of self-defense.

Also, contrary to the complaint allegations, Frank has provided an affidavit stating that he did not provoke Delgado to yell obscenities or to stop and point a gun at him. He explains that when Delgado pointed a gun he became fearful for his and his friends’ lives, at which point he attempted to disarm Delgado. This affidavit certainly bolsters Frank’s claim that he was acting in self-defense. But even without the affidavit, and considering only the complaint allegations, he has raised a colorable claim of self-defense.

Applying the reasoning in Tunkle, reading the complaint allegations in conjunction with Frank’s claim of self-defense, and using the Fisher test, the conduct alleged in the underlying action may qualify as an “accident” and thereby constitute an “occurrence” under the homeowners policy. Notwithstanding the way the claims are titled, the supporting factual allegations in the complaint describe intentional conduct by Frank. But when the factual allegations are considered in conjunction with Frank’s claim of self-defense it is not clear that the alleged conduct was intentional. As recognized in Tunkle, self-defense is the opposite of willful wrongdoing and while it is volitional conduct it is not intentional.

Although not necessary to do so, the Court also considers the 2nd part of the Fisher test which asks whether the consequences and harm stemming from the conduct were reasonably expected from the standpoint of the insured. Consistent with the reasoning in Tunkle, a number of other jurisdictions have concluded that an injury resulting from conduct by an insured acting in self-defense is not as a matter of law expected or intended from the standpoint of the insured. [Citing examples.] Applying similar reasoning, it is reasonable to conclude that if Frank was acting in self-defense as he claims, one in his position would not have reasonably intended or expected the consequences and harm resulting from his conduct. Thus if he succeeds in establishing in the State Court action that he acted in self-defense, the answer to both Fisher questions would be “no” and the conduct alleged in the complaint would constitute an occurrence under the homeowners policy.

Whether the Intentional Acts Exclusion applies.

Even if the conduct alleged in the complaint could potentially constitute an occurrence under the family liability coverage provisions, Allstate argues that coverage is barred under the intentional acts exclusion.

Montana courts apply the same Fisher test to determine whether coverage is precluded under an intentional acts exclusion like the one here. Lockard (D.Mont. 2018) (under Fisher, “the ‘Expected or Intended Injury’ exclusion is not triggered if there is a possibility that the conduct had unintended and unexpected consequence to the victim”). Although the intentional acts exclusion precludes coverage for harm intended by or which may reasonably be expected to result from the intentional acts of an insured, the Court has determined that if Frank prevails on his self-defense claim his conduct would not have been intentional and a reasonable person in his position would not have objectively intended or expected his conduct to cause the harm alleged in the complaint. Thus Allstate has not demonstrated that the underlying claims are unequivocally excluded under this exception to coverage.

Whether the Business Activities Exclusion applies.

Allstate asserts that to the extent that Frank was acting in his official capacity as a law enforcement officer, coverage is precluded under the business activities exclusion. Frank counters that this exclusion does not preclude coverage because the complaint alleges that he acted in both his individual and professional capacities.

As Allstate points out, the complaint contains allegations that Frank was acting in his capacity as a law enforcement officer during the altercation with Delgado. In addition, Delgado alleges negligence per se based on violations of MCA 45-7-402 (“A public servant commits the offense of official misconduct when in an official capacity the public servant commits any” of several listed acts.) To the extent that the complaint alleges negligence per se based on violations of this statute, the Court agrees with Allstate that the business activities exclusion precludes coverage. Likewise, to the extent that Delgado seeks to hold Frank liable in his official capacity for negligence and for negligence per se based on violations of statutes prohibiting unlawful restraint and criminal trespass, the business activities exclusion also precludes coverage. But, unlike in Chun (D.Haw. 2007), which Allstate cites, the factual allegations in support of Delgado’s common law negligence claim can easily be read as alleging conduct outside the course & scope of Frank’s employment as an officer. Thus to the extent that the complaint asserts an individual capacity negligence claim against Frank, Allstate has not demonstrated that the business activities exclusion applies. The Court need not address Frank’s argument that the Court should look beyond those allegations and consider a letter from the City stating that he was not in the course & scope of his employment at the time of the underlying events.

Whether there is potential coverage for punitive, exemplary, or statutory penalties.

Allstate contends that the homeowners policy does not provide coverage for certain remedies sought by Delgado including punitive or exemplary damages and statutory penalties. “Insurance coverage does not extend to punitive or exemplary damages unless expressly included by the contract of insurance.” MCA 33-15-317(1). Because the homeowners policy does not include insuring language covering punitive or exemplary damages, the statutory exclusion applies. Frank does not argue otherwise.

The complaint accuses Frank of negligence per se based on violations of Montana’s criminal trespass to property and unlawful restraint statutes. Both are offenses for which statutory penalties or fines may be imposed. Allstate thus argues — and Frank does not dispute — that any fines or penalties awarded for violations of these statutes are excluded from coverage.

Allstate has a duty to defend Frank under the homeowners policy.

Resolving all doubt about the meaning of the allegations in the complaint in favor of finding a duty to defend and reading those allegations in conjunction with Frank’s self-defense claim, the conduct alleged in the complaint constitutes an “occurrence” under the homeowners policy and Allstate has not unequivocally demonstrated that the intentional acts exclusion precludes coverage. Nor has it shown that the business activities exclusion precludes coverage to the extent that the complaint seeks to hold Frank liable in his individual capacity. Because there is a potential for coverage if Frank prevails on his affirmative defense of self-defense, Allstate has a duty to defend him. Pinski Bros. (Mont. 1972) (If an insurer has a duty to defend one claim, it must defend against all claims even if there is no possibility that those remaining claims would be covered.)

Umbrella policy.

The umbrella provides excess liability insurance for bodily injury and property damage and personal injury. It is undisputed that the homeowners policy served as the “Required Underlying Insurance Policy” for the umbrella. The claims alleged in the complaint are potentially covered by the homeowners policy. Thus for the same reasons that Allstate has a duty to defend Frank under the homeowners policy, it has a duty to defend him under the umbrella.

Conclusion.

Allstate has a duty to defend Frank under the policies. Its duty arose in 8/22 when it was notified that Frank had asserted self-defense as an affirmative defense in the underlying action. The duty to indemnify cannot be determined until the underlying action is resolved. Allstate’s motion for summary judgment is denied. Frank’s motion for partial summary judgment on the duty to defend is granted.

Allstate Vehicle & Property Ins. and Allstate Indemnity v. Frank, 44 MFR 299, 8/17/23.

Stephanie Oblander (Smith Oblander Meade & Mitcham), Great Falls, for Allstate; Fred Simpson & Lauren LaRance (Hall & Evans), Missoula, for Frank; Lyndon Scheveck (Scheveck & Salminen), Billings, for Delgado in the underlying State Court suit.

DOUBLE JEOPARDY: Habeas properly granted securities fraud Defendant because Cuffe abused discretion in declaring a mistrial, Defendant may not be retried… Christensen affirmed, Cuffe and Montana Supreme Court “reversed” (memorandum).

Judge Christensen’s Order.

Montana charged Kip Hartman with 9 fraud counts stemming from his tax-advice business. Judge Cuffe scheduled 9 days for trial beginning 1/26/21 and ending Friday 2/5. To accommodate social distancing, trial was held in the Libby Memorial Events Center.

At a pretrial conference 12/22/20 Cuffe asked if trial could be completed in 9 days. Defense Counsel Shandor Badaruddin said, “Looking at the State’s witness lists and our respective exhibit lists I don’t see how we do it in 9 days but maybe we could, I don’t know.” Cuffe said, “I am setting 9 days and I am not going over 9 days.”

At the final pretrial conference Cuffe said he would “try to stay out of it” and let the attorneys “work the case the way you’re going to work the case, but obviously we’re not going to waste time.” Discussing his reluctance to “bring the hammer down,” he said:

I think it’s only fair that if I think that we’re spinning our wheels, if I think we are stuck on an issue, if I think we are wasting the jury’s time, I’m going to let everybody know. And I’ll try to do it gently. If that doesn’t work it will be more forceful. You guys are all experienced trial lawyers. You know what’s going on. You know how to get there. I don’t have any concerns about this but things happen. We get stuck, we start spinning our wheels, we think we hear something when we heard something else or any of that. In those instances I’m going to remind you. Because these people [jurors] are taking 9 days out of their lives to get this right.

(Cuffe meant what he said — there would be only 9 days for trial. He maintained meticulous timekeeping and advised the parties regularly of the time they had remaining, to the minute. The Court is sympathetic to his desire to get the case tried as expeditiously as possible, to avoid unnecessary inconvenience to the jurors, and to manage his busy docket. This case was also being tried during the peak of COVID in rental space large enough to accommodate social distancing in a small county with a single judge and limited financial resources. Putting the parties “on a clock” is one way to accomplish these goals, but slavish adherence to an arbitrary time limitation set before a single bit of evidence has been introduced, particularly in a criminal trial where the last witness is frequently the defendant, often leads to the result which arose here — the court’s clock has run out and 1 witness remains, the defendant, who has a right to testify and present a defense.)

The parties knew they would have equal time. However, several times Badaruddin expressed concern that he would not have enough time to conclude his case by Friday, 1/5.

On the morning of the 5th day Cuffe advised that the State had 10 hours to conclude its case-in-chief, cross-examine defense witnesses, and present rebuttal, and Badaruddin had 14 hours. Badaruddin said he was “not sure there’s 24 hours in this week.” Cuffe assured him that 6 hours of testimony would be heard every day and testimony would conclude Thursday, leaving Friday “to do everything else” — settling and reading instructions and closing arguments.

The State rested its case-in-chief at the end of Tuesday, 2/2. Badaruddin had a witness waiting who could testify “briefly” and asked to begin his case-in-chief while reserving his motion under MCA 46-16-403 (comparable to FRCP 29). Cuffe released the jury for the day to hear the motion first. After hearing the motion he said he would have “a time amount” for the parties in the morning: “We got 6 hours in yesterday. I’m certain we got 6 in today.” He reiterated that the State would have “very little time” and would be limited to 3 questions on cross if it ran out of time, with no recross. He also said he had “built in some leeway time.” Badaruddin remained concerned:

Badaruddin: Nevertheless, Your Honor, I’d like to object on the grounds that my client’s being denied his state and federal due process rights to present a defense. I can’t do it in 2 days. I thought I had 2 and a half, by the way. I thought I had a portion of Friday. I was counting on that. Am I wrong?

Cuffe: You have — I told you Monday morning you had 14 hours to use however you want.

Badaruddin: Yes, sir.

Cuffe: That’s what you got. I’ll tell you exactly tomorrow morning how many hours you have left. If we have to add on because the State has gone over its times, and I allow them 3 questions only, I will allow that to yours. And if we have to go into Friday to adjust for that, we can, ok?

Badaruddin: Yes, sir.

Cuffe: That’s what I’m telling you. Whatever the 14 hours were the State had, I think somewhere in the neighborhood of 10, you had somewhere in the neighborhood of 14. And I’ve just been doing — I did subtraction yesterday. I’ll do subtraction tonight.

Badaruddin: Yes, sir. I don’t challenge the Court’s calculations —

Cuffe: I know.

Badaruddin — only that I still don’t have enough time. And I’d ask for more, like maybe til Monday, maybe 5 minutes. But whatever the Court can consider giving me, I don’t have enough time left in the week. and I’m of course going to use it as efficiently as possible. But in the end, I don’t see how I can do it consistent with Mr. Hartman’s right to the effective assistance of counsel and due process and a fair trial. Maybe he needs more time. That’s what I’m suggesting to the Court.

. . .

Cuffe: This is my initial reaction to it, Mr. Badaruddin. I have the breakdowns of directs and crosses. And I have been, I think, quite clear from the beginning of this. How much time anyone had to utilize. And I think it was the first day you told me you were keeping track too.

Badaruddin: Yes, sir.

Cuffe: So this doesn’t come as a surprise. It shouldn’t come as a surprise. You, on multiple of these witnesses, you crossed longer than there was direct. And I make no comment on that. I think that’s entirely appropriate in certain circumstances. You chose how to defend this case.

. . .

Badaruddin: While I know how much time I’ve used, I don’t think I wasted it. Sometimes things happen while the witness is on the stand and I can choose to sit down or keep going. And that’s a difficult decision when it’s the Defendant’s due process rights that weigh in the balance.

Cuffe: And I’m not suggesting that you wasted any.

Badaruddin. Thank you, Your Honor. I’m constantly mindful of the clock ticking.

Cuffe: I appreciate that.

Badaruddin: So I just ask that my client’s due process rights to present his defense not suffer for the sake of the constraints we’re under. It’s his only chance.

On Wednesday morning just before Hartman began his case-in-chief Cuffe advised that the State had 215 minutes (about 3-1/2 hours) for its cross and rebuttal and the Defense had 491 minutes (about 8 hours). He advised the parties of their remaining time at various points Wednesday and Thursday. At the afternoon break Thursday he told Badaruddin that he had 37 minutes remaining in his case-in-chief.

Badaruddin completed his 11th witness Thursday at 4:45. Cuffe asked if he wished to call another witness. He said another witness was ready but he could not finish his direct in 15 minutes: “We could start or we could — whatever the Court’s pleasure.” Cuffe said, “It doesn’t seem to make much sense” to start a new witness. The jury was excused for the evening.

Cuffe then informed Badaruddin that 15 minutes were all that remained in his case-in-chief. Badaruddin objected that his last witness — Hartman — could not testify in 15 minutes. Citing McCoy (US 2018), he argued that Hartman was entitled to choose whether to testify and that preventing him from doing so because of counsel’s time mismanagement would be “structural error” — reversible regardless of whether he could show that he was prejudiced by not testifying. He said he had provided ineffective assistance by failing to complete his case, and urged Cuffe to give him extra time so Hartman could testify, and:

I made a decision as to what witnesses to call, how long, what questions to ask on cross. I tried to be efficient. I have failed. But I cannot mismanage Mr. Hartman’s right to testify away. And if I have, I submit the Court must intervene to protect his right to testify. In other words, you’re going to have to order him off the stand. And I submit you cannot do that consistent with the 6th Amendment and consistent with Article 2 of the State Constitution. I have provided ineffective assistance. I have failed to provide or safeguard his State Constitutional right to the assistance of counsel because I have failed to leave enough time for him to testify. So I submit that the Court must allow him to testify consistent with the Rules of Evidence, 401, 402, 403, all the other rules. He can’t be redundant. He can’t waste time. But he gets to tell his story. Otherwise the error of forcing him to stop talking is such that the conviction, if one results, could not stand. And the Court should not inquire as to whether my choices were reasonable. It’s simply a question of whether his right to testify was observed. And if he doesn’t get to testify it will not have been observed.

When Cuffe, as he said, “pressed” Badaruddin to say how much time Hartman needed, Badaruddin requested 3 hours: “9 counts. I forget how many applications. All these tax issues. Yeah, I think he needs 3 hours.” Cuffe asked how long Badaruddin had known his client wanted to testify. Badaruddin said it was his custom to have specific conversations with all his clients about testifying, generally recommended against, and deferred the ultimate decision as long as possible, and he and Hartman “ultimately determined yesterday that it’s probably going to be best” for him to testify. Cuffe took Badaruddin’s request for more time under advisement over the evening recess.

The next morning Cuffe asked Badaruddin to restate whether “this is a situation where effective assistance of counsel doesn’t apply” and that the issue was “structural error.” Badaruddin agreed. Cuffe asked if he had any “additional legal argument.” Badaruddin said he did not. The State suggested that Hartman’s time to testify could be limited and requested equal time to cross-examine Hartman should Cuffe allow more than 15 minutes for his testimony, plus its remaining rebuttal time.

Cuffe found that “Mr. Hartman cannot testify as needed in the 15 minutes” remaining in his case-in-chief. He noted Badaruddin’s representation that Hartman had expressed interest in testifying from the outset of their relationship. He concluded that, in view of the need to settle instructions and conduct closings, allowing Hartman to testify for 3 hours would significantly extend the trial:

Cuffe: It’s clearly going to take at least 2 more days, which is probably not coincidental that after the trial started Mr. Badaruddin asked for those 2 days.

. . .

Mr. Badaruddin, throughout the entirely of this case, has been in constant communication with his client. They have talked back and forth. They have known what was going on. Mr. Badaruddin, for his own witnesses, did not have paper exhibits available. He had to pack a computer around this place to show them. I don’t know why that is. I think that it was a deliberate attempt to stall the proceedings. I think from the beginning there has been a deliberate attempt to stall this proceeding. So, having made that finding and knowing that Mr. Hartman has that right, he gets to testify, and he should testify for as long as he feels is appropriate and necessary. We don’t have the time to get this done within the allotted period of time. I have no choice but to declare a mistrial. I have to. Because he has those rights. And I can’t put it any place else. But having done that, here’s what I’ll tell you. Mr. Badaruddin will be responsible for the costs associated with these 9 days. That means the facility, that means the jury, that means the State’s witnesses, that means the State’s added costs of room, board, and lodging. Because as has been pointed out to me repeatedly, I have the sua sponte obligation to protect this Defendant’s rights from the deliberate, tactical, strategic, consistent, and calculated maneuvers of his attorney. I will have a written opinion done by the end of the day, all right? It will identify how I want the State to submit those costs. It will give Mr. Badaruddin a period of time to object to those costs and if necessary a hearing on those costs. Any questions from the State?

Marcia Boris: No, Your Honor.

Cuffe: Any questions, Mr. Badaruddin?

Badaruddin: Your Honor —

Cuffe: Now let’s be clear, I asked do you have any questions?

Badaruddin: We object to the mistrial. But I just want to point out to the Court, I think we can get him done in 90 minutes. Mr. Hartman would like to —

Cuffe: That is different than what you told me last night.

Badaruddin: We tightened it up last night. I’ve talked to Mr. Hartman. I said, “Look, we’ve got to have a plan for tomorrow. We’ve got to use as little time as possible.”

Cuffe: So then what we have is, so now I rely on what you tell me, I come in here and I make a ruling, and you say, “Oh, wait, Judge, no, I’ll do it shorter.” And then you file an appeal saying “The judge made me shorten it because he threatened me with a mistrial.” Sit down, Mr. Badaruddin. I have no more questions for you, sir. All right, we are in recess. When the jury gets here I’ll call everybody in and I will advise the jury of what we are doing.

After the recess, counsel for both parties asked to go back on the record before the jury was brought in. Badaruddin asked Cuffe to reconsider his mistrial declaration and that he be allowed to proceed or that Cuffe take the decision under advisement “and allow us to make what use we can of this day.” The State took “no position on Mr. Badaruddin’s motion to reconsider” but was “ready to go” and would “attempt to streamline everything to get this matter before the jury.” Cuffe said:

What I struggle with is being told, and agreeing, that I have a level of obligation to protect Mr. Hartman. I absolutely do, right? And that’s a blurry line. But when it is thrown in my face, I don’t know what else to do with it when I am told it is structural error for me not to do that. And when I make a ruling, then I don’t know how I can reconsider it.

The State suggested that Badaruddin might “meaningfully confer with his client and, together with his client, choose a path forward here that would include waiver of structural error on this point.” Cuffe asked:

How do we do that, if perhaps the advice that he’s getting to waive it is from the individual who created it? How do we do that? We’ve come to a point where we’re — the games have gotten in the way of justice. That’s what’s happened here. … And I don’t think Mr. Hartman can make an informed consent, having had a conversation with Mr. Badaruddin about this matter, based on what was argued last night and based on what was my previous order. … My order stands.

Badaruddin said, “Your Honor, all I can say is, conflict free or otherwise, Mr. Hartman wants this verdict from this jury.” Cuffe said he understood but that he had “a duty above you telling me what Mr. Hartman wants.”

I don’t believe it’s appropriate for me to take your statements to me as to what Mr. Hartman wants as the determining factor at this point in time. Mr. Hartman needs to talk to a different lawyer before he makes that decision and I’m finding that it cannot happen.

Badaruddin asked to “address certain basic assumptions” including Cuffe’s assertion that he had “been doing this all along.”

Badaruddin: The way the case played out was not as predictable as you may think. There were many surprises. And I know the hours were even but the days were not. We started [the defense case] on Wednesday. I thought we were going to start on Monday. The State thought I was going to start on Monday. They did have more days and I don’t know what the record says, I’m sure it’s exactly as the Court has indicated. But days, hours, they had more days than we did. It affected my ability to schedule the case. I was not stalling. I was trying to move as quickly as possible. Yes, there were occasions when I could have moved faster but I was always mindful of the time and I wasn’t trying to stall. Mr. Hartman is trying to get a verdict. … There’s no manifest necessity for a mistrial. Especially since we still have 6 hours to work with. I don’t see why we couldn’t try and make the best use of them or make a use of them.

Cuffe: This order [for a mistrial] is agreeing with what you said to me yesterday. It is taking what you told me yesterday as the true and accurate facts and it is applying those true and accurate facts to the law as I was given, as I read, and as I understand it to be. And I read it and understand it to be consistent with what you’ve said. And the facts as was given to me when I was asked to make this decision, I made it. And after making it, I am presented with alternative facts. I don’t think it is appropriate for me to reconsider and I’m not going to.

Cuffe informed the jury that he had declared a mistrial and excused the jurors, concluding the proceedings at 9:25 a.m. At 4:47 p.m. he issued a written order adding or elaborating on some factual findings in support of his finding that Badaruddin deliberately caused delay and concluded: “Defense counsel’s mismanagement of the time allotted cannot affect Defendant’s right to testify for as long as needed or necessary.” In a subsequent order denying Hartman’s motion to dismiss for double jeopardy he reiterated: “Defendant could not waive or limit or in any way compromise his right to testify on his own behalf without first being given meaningful opportunity to seek independent advice from different counsel.”

After Cuffe set a new trial, Hartman petitioned the Montana Supreme Court for supervisory control, arguing that a mistrial was not necessary and a 2nd trial would violate the Double Jeopardy Clause. The Montana Supreme Court denied supervisory control:

If Hartman was convicted as a result of the District Court limiting Hartman’s testimony to the time remaining, Hartman’s counsel had already made it clear that he would pursue a claim of ineffective assistance of counsel. If Hartman’s ineffective assistance claim was successful, Hartman’s conviction would be vacated and the matter remanded for a new trial. Hartman’s remedy would not be reversal without retrial. A remedy must neutralize the taint of a constitutional violation, while at the same time not grant a windfall to the defendant. It would be ironic, to say the least, if the District Court’s alleged abrogation of Hartman’s constitutional right to testify could result in his retrial, but the District Court’s protection of the same right could not. Hartman is not entitled to such a windfall. … The record here reflects that the District Court was placed in an untenable situation, conscientiously considered the options available to it, and correctly determined that circumstances necessitated terminating the trial to protect Hartman’s constitutional rights.

Analysis.

Declaring a mistrial over a defendant’s objection may be appropriate if “a verdict of conviction could be reached but would have to be reversed on appeal.” Somerville (US 1973). At the same time, declaring a mistrial always deprives the defendant of the first jury’s verdict. These competing interests must be carefully balanced. A mistrial must be supported by “manifest necessity” — not absolute, no-other-option necessity, but a “high degree” of necessity. Washington (US 1978).

In one respect the guarantee against double jeopardy is almost unique among federal constitutional rights. Nearly all other federal rights can be fully vindicated through appeal or collateral attack after conviction and sentencing, while a claim of double jeopardy “is necessarily forfeited by delaying review until after a second trial.” Carden (9th Cir. 1980). It therefore presents “extraordinary circumstances where irreparable injury can be shown.” Brown (9th Cir. 2012). A federal court need not abstain under Younger (US 1971) to await the possible entry of judgment and subsequent ordinary course of direct and collateral review. The petitioner may proceed under 28 USC 2241(c)(3). Stow (9th Cir. 2004).

Comity demands that state courts be given the first opportunity to review asserted violations of federal constitutional rights, but 28 USC 2241 does not impose the high standards of review that appear in §2254(d). The Court need not decide if the Montana Supreme Court’s decision was “contrary to, or an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 USC 2254(d)(1), (2).

Still, a trial judge’s assessment of the situation and necessity of a mistrial is entitled to considerable deference — greatest in the “classic” situation of a jury unable to agree on a verdict when the judge must decide whether it should take more time or whether it will prove unable to arrive at a verdict fairly and in a reasonable time. Washington. Little deference is due when “the trial judge acts for reasons completely unrelated to the trial problem which purports to be the basis for the mistrial ruling.” Id. This case, like most, falls somewhere between the poles.

Judge Cuffe found that “from the beginning there has been a deliberate attempt to stall this proceeding.” The Montana Supreme Court did not mention his finding of a deliberate strategy. Emphasizing Badaruddin’s admission of ineffective assistance, Cuffe held that a mistrial was necessary to protect Hartman from his counsel’s poor time management. He noted, but did not specifically address, Badaruddin’s suggestion to carry on with trial to the end of the day. He did not mention the possibility that the jury might have acquitted Hartman.

The “3-hour” ruling. On Thursday evening Cuffe gave no notice that he was considering declaring a mistrial first thing Friday. “Mistrial” appears in the transcript for the first time when he declared one. Further, in 8 days of trial he expressed no concern that the defense team was wasting time. Based on Cuffe’s arbitrary time limitations, if Hartman was going to testify for 3 hours there likely were not enough hours Friday for the State to cross-examine and then present its rebuttal, for the parties and Cuffe to settle instructions, and for each side’s closings. Another judge might have decided to press ahead, extended the work day beyond 5 p.m., perhaps considered using the weekend, or set aside a few hours Monday or Tuesday for closings. But the Court need not decide whether failing to pursue these options was an abuse of discretion. Cuffe set time limitations and determined that there was not sufficient time remaining to complete the trial if Hartman needed 3 hours to testify.

(Neither party cited a single case where a mistrial was declared solely because the judge set a limit on trial days and time ran out and the Court has not found one. Cf. Abbott (Cal. 1999) (civil trial “should not become a race against the clock.”) The decisions all seem to include factors in addition to time running short. See, e.g., Koster (Ark. 2008) (defense counsel brought live explosive devices into the courtroom, necessitating police activity and causing delay, then filed a belated motion regarding preservation of evidence). If running out of time alone were a proper reason to declare a mistrial, it seems likely many cases would say so. On the other hand, the usual palliative for shortness of time is judicial control of the trial day — longer jury hours, shorter breaks, dealing with legal issues outside of jury time. Or simply allowing Hartman a reasonable time to testify. If running out of time is not a sound reason for a mistrial, Cuffe’s declaration of one was clearly erroneous, whether it was due to Badaruddin’s deliberate delay or poor time management. Hartman would still be entitled to dismissal of the charges.)

The “90-minute ruling. Immediately after hearing Cuffe’s precipitous declaration of a mistrial Badaruddin explained that he and Hartman had pared his testimony to an hour and a half. Cuffe refused to consider his statement because he had already decided — without notice or opportunity to respond — that Badaruddin deliberately stalled the proceeding. This was an abuse of discretion. He did not explain the objective that Badaruddin hoped to realize by stalling. The Court does not perceive a strategic objective in delay that could be consistent with Badaruddin’s decision to reduce the time his client’s testimony would take to complete trial Friday. His effort negated Cuffe’s finding that he was deliberately protracting the trial.

Had Cuffe taken Badaruddin’s suggestion and proceeded with trial, 3 outcomes were possible. First, Hartman might be convicted. Second, he might be acquitted. There might be a mixed verdict but that would not change the analysis so it need not be separately considered. Third, the trial still might not have been completed. By stubbornly adhering to an arbitrary limitation on time allotted for trial, Cuffe rendered all 3 possible outcomes impossible.

What if Hartman was convicted? If he had an opportunity to testify and was convicted the verdict could not have been “upset at will.” Somerville. The Court has found no authority that a defendant has a right to testify “for as long as he feels is appropriate or necessary,” as Cuffe said. With few qualifications not relevant here, a defendant who testifies is treated “just like any other witness.” Portuondo (US 2000). He is subject to the “ordinary power of a trial judge,” Brooks (US 1972), to control the trial including by preventing “excessive consumption of time,” Menendez (9th Cir. 2005) (citing Sheffer (US 1998), Rock (US 1987), and Chambers (US 1973); MRE 403.

Like the testimony of any other witness, the length of Hartman’s testimony had to be balanced against the time available and the facts to be established or refuted. Striking this balance was counsel’s job in consultation with the client. As Cuffe noted, the client’s right to testify does have a different status than other trial rights that might support ineffective assistance claims. For example, counsel decides whether to call other witnesses and what to ask them, how to cross-examine an expert, and how to parry prosecution witnesses’ testimony in closing argument. If he performs unreasonably, a severely prejudiced defendant will have a new trial. Strickland (US 1984).

Badaruddin knew that Hartman wanted to testify but he ran out of time to call him. During the recess Thursday evening to Friday morning Cuffe considered whether he should give Badaruddin the chance to correct his mistake and decided he could not allow enough time for Badaruddin to correct his mistake because Hartman needed 3 hours to testify. But while he was deliberating, Badaruddin and Hartman were not idle. They focused on Hartman’s testimony in the hope of completing trial Friday. Lawyers and clients have conversations of this nature all the time. By allowing trial to proceed and Hartman to take the stand, Cuffe would have eliminated a “structural error” McCoy/Garza type of claim, and kept any appellate issues within the customary bounds of a Strickland analysis. This maintains counsel’s control over strategic decisions and the client’s right to effective assistance of counsel of his choice. A lawyer might keep a short leash on a client’s testimony even though he knows the client wants to talk about all manner of things, to protect him from further troubles, limit damage to his defense, focus on other testimony or evidence, or get the case wrapped up and delivered to the jury. The client might decide at the last minute not to testify for any number of reasons. Even in courts where defendants are advised that they have a right to testify and are asked if they intend to waive or assert it, the Court is not aware of any practice allowing judicial inquiry into this decision. Judges protect confidentiality of attorneys’ and clients’ midtrial decisions with unquestioned regularity based on attorney-client privilege and the 6th-Amendment right to counsel.

The questions counsel asks the client, as well as the time counsel allots, represent “strategic choices about how best to achieve a client’s objectives.” McCoy (US 2018). Strickland applies to such choices. Just as any Garza-type error is nixed as soon as an attorney files a notice of appeal, any error in not allowing a client to testify is avoided as soon as, knowing her client has chosen to testify, an attorney calls him to the stand.

Had Hartman testified and was convicted he might well have raised a claim of ineffective assistance. He would have to show that counsel unreasonably failed to leave enough time for his testimony and a reasonable probability that he would have been acquitted on at least 1 count or his sentence would be less harsh if only he had had more time to testify. Strickland.

Far from indicating incompetence, alternative facts, or a strategy of delay, Badaruddin’s overnight consultation with his client to reduce the time for his testimony was a hallmark of competence. He did not violate his client’s right to testify; he provided the means to realize it. By reaching a point where trial might be completed Friday with his client’s testimony, Badaruddin did precisely what Cuffe, Hartman’s constitutional rights, and the standards of the legal profession required of him.

What if Hartman was acquitted? “It is a chancy business indeed for a judge, or anyone for that matter, to predict a verdict that a jury may return in a case, even when the judge determines that counsel’s performance is ineffective.” Phetsaya (Mass. 1996). For this reason alone a sua sponte declaration of a mistrial “because of perceived inadequacy of defense counsel is — and certainly should be — an extremely rare event.” Harrison (Iowa 1998). (Misconduct by counsel that is prejudicial to the State is different and is discussed below.) The Harrison rule has a strong conceptual foundation. Objectively unreasonable performance is only 1 prong of a 6th-Amendment violation. Had the trial been completed and the jury returned a verdict of acquittal, Hartman would have suffered no prejudice from Badaruddin’s self-alleged unreasonable performance.

What if the trial was not completed Friday? Perhaps the case would not have been completed even had Cuffe agreed to allow Hartman 90 minutes to testify. He would nonetheless have had the benefit of the only opportunity that Cuffe could give him to obtain the verdict of the first jury to try him. While attempting and failing to complete the trial might have given the State an opportunity to hear at least part of Hartman’s testimony, prepare to meet it at the next trial, and hold him to it in the next trial, whether to take that risk for the sake of potentially concluding the case Friday was a strategic decision to be made by Badaruddin in consultation with his client.

Was mistrial a means of balancing Hartman’s rights? Recognizing that Cuffe was in a difficult position, the Montana Supreme Court held that he appropriately balanced Hartman’s right to effective counsel against his constitutional protection against double jeopardy. However, declaring a mistrial ineluctably deprived Hartman of his chance to hear the verdict from the first jury empaneled to try him. It prejudiced him by “subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.” Green (US 1957). It also “enhanced the possibility that even though innocent he may be found guilty” because the State would have an opportunity to take almost his entire defense into account — except for his testimony — to sharpen its presentation, refute or undermine his defense, and improve its chances of convicting him at a 2nd trial. Id. He would not necessarily be able to call all the same witnesses at a 2nd trial. Declaring a mistrial Friday morning did not achieve anything that could not be equally or better achieved by continuing with trial to the end of the day.

A competent attorney might have decided that it was not possible for Hartman to testify adequately in 90 minutes, but the record does not indicate any reason to question Badaruddin’s efforts to allow him to testify. He knew what Hartman wanted to say and needed to say, whether those things overlapped, and what testimony he wanted to elicit to support his closing argument. Cuffe did not know and was unable to inquire whether Badaruddin had tried to dissuade Hartman from testifying or whether only the time crunch finally showed that he could not say everything he wanted to say and still get the case to the jury Friday. A judge may limit the time for a defendant’s testimony but is simply not able to decide how much time the defendant needs or whether he should or should not testify in the time available. Troka (Wis. 2014).

Regardless of whether defense counsel’s performance is flawless or abysmal, the defendant has a federal constitutional interest in the verdict of the first jury empaneled to try him. Kennedy (US 1982). Declaring a mistrial due to counsel’s trial errors and over the defendant’s objection can compound counsel’s errors by also depriving the defendant of whatever chance he had at the first jury’s acquittal. In some situations it may be necessary to declare a mistrial due to counsel’s choices; it was not necessary here.

Was mistrial necessary to protect the State? Without running afoul of the Double Jeopardy Clause a judge may grant a mistrial to protect the State’s right to a fair trial. In Washington, defense counsel’s opening told the jury that his client had already been tried once but he was awarded a new trial “because of the misconduct of the County Attorney” who “withheld evidence” at the first trial. The State moved for a mistrial, arguing that the jury would be unfairly biased against it. The judge declared a mistrial. The defendant claimed double jeopardy prohibited another trial because a mistrial was not necessary. The Supreme Court acknowledged that “some trial judges might have proceeded with the trial after giving appropriate cautionary instructions,” but also said that “unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial” when in his assessment a fair trial is unlikely.

No one has claimed that Cuffe acted to protect the State, but the Montana Supreme Court’s analysis suggests that Cuffe’s declaration of a mistrial was necessary to ensure that Hartman did not obtain a “windfall” from his attorney’s time mismanagement. The Court is unable to find a cognizable prejudice to the State. First, it caused at least some unavoidable delay and did so very late in the trial. It knew at least by the time of the final pretrial conference that Badaruddin intended to call Hartman’s wife Ginny. He asked that she be allowed to attend trial with Hartman despite the exclusion of witnesses under MRE 615. Over the State’s objection, Cuffe allowed her to attend. Through cross and the Defense’s case-in-chief it became clear (if it was not clear before) that she was an important witness. She worked in the business alongside Hartman and signed many of the documents introduced and contested at trial. The State had pursued an administrative action against her and knew who her lawyer was in that proceeding. Badaruddin presented 6 witnesses before calling Ginny. Not until he called her did the State ask for a chambers conference and assert a “near 100% possibility that the State will be asking questions on cross-examination of Ms. Hartman that could tend to incriminate her.” It was 4:15 Wednesday 2/3, right in the middle of the Defense’s attempt to get its entire case in within 2 trial days. Rather than simply agreeing to allow Cuffe to immunize her testimony, MCA 46-15-331, the State asked for time to decide whether it should offer her immunity. It raised the issue on the only day when Cuffe intended to hold the jury past 5 p.m. to hear testimony (although Badaruddin apparently was not made aware of the plan). The jury went home early. In other respects, the State and Badaruddin evidently worked well together. But on Wednesday and Thursday, the State’s belated action on Ginny’s 5th Amendment rights occupied well over an hour of jury time. If the State believed it was suffering prejudice from Badaruddin’s delay, it likely would have broached the issue with him and/or Cuffe well before Ginny was called.

(Probably unintentionally, the State unnecessarily elevated the temperature of the discussion by asking that Ginny be given a Miranda warning. Her situation called for advice of her 5th-Amended right not to incriminate herself and the Court’s grant of immunity so that her testimony could not be used against her. That is not the same as advising her that she does not have to talk, she may have a lawyer present if she chooses to talk, and if she does talk what she says can be used against her. Use of the term may also have prompted Cuffe to suggest that Prosecutor Boris — who was going to cross-examine Ginny — should be the one to advise her of her rights. Since the prospect of prosecution is why people receive Miranda warnings, a reasonable person could take the State’s reference to Miranda to indicate that it was preparing to prosecute Ginny. The next day the State elicited testimony from Ginny that she believed she had been threatened with prosecution because that is what Badaruddin told her counsel. But it was the State that misspoke.)

The 2nd reason the Court cannot find that the State was prejudiced is found in its response to Cuffe’s declaration of a mistrial. It initially requested “equal time” to cross-examine Hartman plus its remaining rebuttal time. But after Badaruddin asked Cuffe to reconsider the State offered to “streamline everything to get this matter before the jury” and do “anything possible to make sure that these victim witnesses and these jurors, or another panel, don’t have to go through this again.”

Finally, even in this proceeding the State has not suggested that Badaruddin’s alleged delay or ineffective time management unfairly enhanced the prospect of Hartman’s acquittal. The Court cannot perceive how it did.

Conclusion. Without giving notice that he was contemplating a mistrial, Cuffe declared one the morning of the last day of a 9-day trial. This ruling, when he believed that Hartman needed 3 hours to testify, was precipitous. Whether it was an abuse of discretion or not, he then stood by his mistrial ruling because Badaruddin had reduced the time Hartman would need for his testimony so the case might be ready for the jury the same day. Badaruddin asserted Hartman’s right to “this verdict from this jury” and selected the means to achieve it. The State agreed to “streamline everything to get this matter before the jury,” but Cuffe refused to try it.

The Court is not saying that a judge can never have adequate grounds to declare a mistrial if she is convinced that defense counsel’s performance is unreasonable or unprofessional. But a judge must always be mindful of how much he or she does not know. The questions that counsel asks of the defendant and how long a witness examination should take fall entirely within the heartland of the confidential attorney-client relationship and the 6th Amendment. The client had a right to testify and Badaruddin did what he thought was appropriate to realize it. Cuffe unnecessary substituted his own judgment for Badaruddin’s and thereby deprived Hartman of both his 6th-Amendment right to counsel and his federal constitutional protection against double jeopardy. Hartman is entitled to the writ he seeks.

Hartman’s petition is unconditionally granted. The State may not retry him on the charges filed in State v. Hartman, 19th Jud. Dist. Court DC-19-75.

 

 

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The 9th Circuit’s order on appeal.

Judge Christensen did not err in granting Kip Hartman’s habeas petition under 28 USC 2241 on double jeopardy grounds because Judge Cuffe abused his discretion in declaring a mistrial out of manifest necessity. The Double Jeopardy Clause protects “a defendant’s valued right to have his trial completed by a particular tribunal.” Wade (US 1949). While this right “must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments,” id., there must be a “high degree” of necessity, referred to as “manifest necessity,” before a court may conclude that a mistrial is appropriate over the objection of the defendant, Washington (US 1978). Courts may find manifest necessity “to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.” Somerville (US 1973).

Cuffe did not identify any events giving rise to the high degree of necessity for a mistrial that courts have recognized. There was no obvious procedural error that would require reversal on appeal. The record does not establish that Hartman’s counsel provided ineffective assistance or had a conflict of interest with his client “that affected counsel’s performance.” Mickens (US 2002). Nor was the declaration of a mistrial necessary to protect the State’s right to a fair trial since the Prosecutor agreed to cooperate to streamline the remainder of the trial. Instead, Cuffe determined that a mistrial was necessary because he had set a limited amount of time for trial and declined, based on docket management concerns, to extend this time frame sufficiently to allow Hartman to exercise his 6th Amendment right to testify. Such time-management concerns do not rise to the high degree of necessity required before depriving Hartman of his “valued right to have his trial completed by a particular tribunal.” Wade. Because Cuffe did not “consider plausible alternatives” to declaring a mistrial, he deserves little deference for his decision. Chapman (9th Cir. 2008).

Cuffe abused his discretion in declaring a mistrial and the Double Jeopardy Clause bars retrial of Hartman.

 

 

– – – 

 

(Cuffe imposed $51,923.61 sanctions against Badaruddin personally. (MLW 2/19/22). That order is pending on appeal to the Montana Supreme Court.)

Hawkins, W. Fletcher, Ikuta.

Hartman v. Knudsen and Boris, Christensen’s Order, 44 MFR 296, 8/12/22, 9th Circuit Order, 22-35694, 5/17/23.

Shandor Badaruddin, Missoula, for Hartman; Hartman was prosecuted by Lincoln Co. Atty. Boris and special deputies from the AG’s Office; Asst. AGs Tammy Plubell and Kirsten Madsen for the State on appeal.

STUDENT TRAVEL breach of contract claims related to COVID disruptions rejected on summary judgment… class certification denied… Cavan/Watters.

Global Travel Alliance sells educational travel packages to students. The named-Plaintiffs are Montana parents and students who booked trips in 2020 which were hindered by the COVID pandemic.

Global trips are generally booked a year in advance pursuant to its General Booking Conditions and Release Agreement and are paid in installments. Global has the right to “cancel any trip or portion of a trip, make an alteration in itinerary, or accommodation,” if a trip is rendered unsafe. A Standard Cancellation Policy provides for a refund based on the number of days prior to departure if a trip is canceled. The Cancellation Policy “strongly recommends” that travelers consider purchasing trip protection under which a traveler may cancel for personal reasons and receive a full refund less certain fees if a trip is canceled at last 24 hours prior to departure.

The travelers in this case were from Ben Steele Middle School, Laurel Middle School, and Castle Rock Middle School in Billings, and Sacajawea Middle School in Bozeman. Their trips were scheduled for spring 2020. On 3/13/20 the US declared a national emergency in response to the COVID pandemic. On the same date Global wrote its travelers detailing the Cancellation Policy, outlining Trip Protection Plan coverage, and reiterating its right to cancel for safety reasons. Days later it began postponing and rescheduling trips. It notified travelers that if they declined to participate in their rescheduled trip, it offered an option for a transferable trip voucher to be used later. Travelers from Ben Steele, Laurel, and Castle Rock were also offered an option for a “flexible independent trip (“Billings FIT trip”) to DC, Gettysburg, and Philadelphia in 6/21. If all those options were declined, Global would treat their refusal as a traveler cancelation and refunds would be offered pursuant to the Cancellation Policy.

KS’s and KC’s trip with Ben Steele was scheduled to depart 5/6/20. When the pandemic required it to be postponed Global offered to reschedule with a 75% travel voucher or 50% refund. Ben Steele travelers were also later offered the option of participating in the Billings FIT trip. Lisa Sides on behalf of KS and Erin & Jackie Clauch on behalf of KC rejected all options and demanded a full refund. Global issued them a 50% refund.

KW’s trip with Laurel was scheduled to depart 5/7/20. When postponed, Global offered the same 3 options. Laurel travelers were also later offered the Billings FIT trip. Jennifer Wersland on behalf of KW demanded a full refund. Global issued a 50% refund.

KS’s trip with Castle Rock was scheduled to depart 4/9/20. Global presented the same options. Julie Swanson on behalf of KS accepted and was issued a 75% travel voucher.

EW’s trip to Europe with Sacajawea was scheduled to depart 6/16/20. When it was postponed the trip leader declined to reschedule and requested a 70% cash refund or 75% travel voucher. EW accepted the refund.

Trips for schools other than Sacajawea were rescheduled in May and June 2021 and successfully completed. The remaining trips also were rescheduled and went forward. Some travelers from each school participated in the rescheduled trips while others opted to take the Billings FIT trip, accept the travel voucher, or cancel their trips.

Plaintiffs sued Global asserting a class action. Magistrate Cavan recommended that the Court grant Global’s motion for summary judgment and motion to strike or deny class certification.

The Magistrate found that summary judgment for Global was appropriate because the contract unambiguously permitted it to cancel travel or make alterations for safety reasons. He determined that the pandemic was an event that rendered the original trips unsafe. He found that Global acted in accordance with the contract when it rescheduled trips in light of the pandemic. Because the trips were only postponed, he determined that Plaintiffs’ argument that Global rescinded the contract failed. He found that rescheduling the trip was “plainly consistent with the parties’ intent at the time of contracting to provide a safe educational experience.” He determined that while the voucher program was not accounted for in the contract, Global’s offering vouchers or alternative trips was not a breach of any contract provision.

The Magistrate also recommended granting Global’s motion to strike or deny class certification because Plaintiffs have not provided evidence that the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation have been met. He noted that in the year since the initial motion to deny certification they have failed to produce any new evidence or conduct any additional discovery to address the deficiencies. Plaintiffs filed objections.

Plaintiffs argue that the Magistrate incorrectly applied a reasonableness test when analyzing whether the contract was breached. The Magistrate stated that the Booking Agreement

permits Global Travel to cancel travel or make alterations to a travel plan for safety reasons. There is no dispute that Plaintiffs’ scheduled trips were “rendered unsafe” by the COVID-19 pandemic. Therefore, the parties’ contract permitted Global Travel to make changes to the travel plan to provide for traveler safety. This is precisely what Global Travel did in rescheduling Plaintiffs’ trips for a later date when the travel could be safely completed.

The Court acknowledges that postponing a trip for a year may, in some circumstances, be a broad interpretation of “make an alteration in itinerary.” If, for example, a trip needed to be altered because of a temporary storm, postponing travel for a year may not be a reasonable application of the contract’s safety provision. But under the circumstances presented here, there is no dispute that a global pandemic rendered the action necessary, and it was plainly consistent with the parties’ intent at the time of contracting to provide a safe educational experience.

The Court, therefore, finds Plaintiffs’ argument that Global Travel rescinded the contract unavailing. Global Travel did not cancel any scheduled trips or rescind the Booking Agreement.

Plaintiffs argue that this analysis injects negligence standards into breach of contract analysis. This argument is founded on what seems to be a willful misreading of his analysis. Plaintiffs chop up the language of his order in support of their argument, stating that he analyzed whether the alteration was “‘necessary,’ ‘reasonable,’ and consistent with the parties’ intent at the time of contracting.” Reading the recommendation in its full context makes clear that he did not apply negligence standards. The only time he uses words like “necessary” and “reasonable” is in an aside, discussing whether a change in itinerary for a day versus a year or more may change the analysis. He clearly stated that under the plain language of the contract — the appropriate standard and the standard Plaintiffs claim he did not employ — Global was permitted to change the itinerary in response to a trip being rendered unsafe. This was not error, and Plaintiffs’ objection is founded on a misrepresentation and is not well-taken.

Plaintiffs also argue that the Magistrate incorrectly determined that an alteration in itinerary included rescheduling a trip. They state: “Rescheduling a trip for the following year is not an alteration in the itinerary. Reference to any standard dictionary definition of ‘itinerary’ makes that clear.” But their own supplied definition states that an itinerary can be “the proposed outline [of a journey or tour].” Plainly, a change in the route or outline of a journey can include a change in the dates including rescheduling the route or outline for the following year.

Plaintiffs object that the Magistrate interpreted the booking agreement based on the deposition testimony of lay witnesses, did not consider “Global Travel’s improper use of the Standard Cancellation Policy,” and erred by referring to the Trip Protection Program. They do not ever explain what legal authority supports a contrary result.

The Magistrate found that the plain language of the contract allowed Global to reschedule trips when a trip was rendered unsafe, and that the pandemic rendered the original itinerary unsafe. Accordingly, it did not breach the contract by rescheduling trips and applying the cancelation policy to any student who wanted a refund. There was no interpretation of deposition testimony or improper use of the cancelation policy. Reference to the Trip Protection Program has nothing to do with this legal analysis; it is not a proper objection that “it is unclear why [reference to the Trip Protection Program] is included in the recommendations” because it does not present legal argument and authority such that the District Court is able to identify the issues and reasons supporting a contrary result. Plaintiffs do not even identify a contrary result.

Plaintiffs argue that the Magistrate rejected their rescission claim without due analysis. They state that the proposed 8th grade trip a year later is materially different such that the object of the contract cannot be performed because the students are now not in the same school or with the same student body and their high school careers are well underway. Their briefing makes no mention of rescission based on the students being older or in different schools, only that “Global Travel rescinded the Contract when it canceled the Contract’s sole object, e.g. the scheduled class trip.” This demonstrates that the analysis regarding cancelation necessarily includes analysis regarding rescission. It cannot be error for the Magistrate to fail to analyze facets of an issue that are never presented to him and are now only being raised on objection. Further, the contract says nothing about the purpose of the trip being exclusively an “Eighth Grade Class Trip.” It does not limit participants to 8th grade students, nor does it promise that the trip will only occur when all students are in the 8th grade. The Magistrate correctly determined that summary judgment for Global is appropriate on Plaintiffs’ rescission claim.

Plaintiffs argue that the Magistrate applied the wrong standard when considering the motion to strike class certification, stating that he applied the standard applicable to an affirmative motion for certification. They argue that Rule 23(d)(1)(D) requires Global to shoulder the burden of proof and that the Magistrate did not properly apply the burden. Confusingly, they do not provide any legal analysis or caselaw regarding what the outcome should be; they merely note that they believe the wrong standard was applied. Nevertheless, the Court, in applying the 23(d)(1)(D) standard, determines that striking the class claims is appropriate.

Class certification has been previously denied and Plaintiffs have produced no new evidence in more than a year. Global argues that the proposed class cannot ever be certified because of the previously identified issues of commonality, typicality, and capability of common resolution. Plaintiffs have provided no new evidence, new argument, or any authority stating that these defects could be cured at some point in the future. Basic issues regarding commonality and typicality — such as whether all parties have suffered the same injury and whether it is capable of classwide resolution — persist. Striking the class claims is appropriate.

Plaintiffs object that they have not actually had a year to conduct discovery as they and Global agreed to stay the class discovery pending a ruling on the summary judgment motions. This argument minimizes that it was their tactical choice to stay their discovery requests and “streamline the case.” They state that “there is no factual basis to conclude that Plaintiffs should have completed or presented discovery on class certification.” Neither this Court nor the Magistrate has held that discovery needed to be completed at this point to survive a motion to strike; however, Plaintiffs present no new argument beyond a request for more time. They have not stated what further evidence in support of class certification they hope to find, nor have they provided any sort of schedule or timeline for the Court.

Finally, Plaintiffs state that the Magistrate conflated damage differences as a lack of commonality or typicality. This objection is unavailing. He relied on his previous findings on certification. Plaintiffs did not object to those findings when they were adopted by this Court. They cannot now complain of errors in that analysis.

Magistrate Cavan’s proposed findings & recommendations are adopted in full. Global’s motion for partial summary judgment is granted. Its motion to strike or deny class certification is granted.

Sides et al v. Global Travel Alliance, 44 MFR 295a/b, Cavan’s proposed findings & recommendations 1/18/23, Watters’s order 3/24/23.

John Morrison (Morrison, Sherwood, Wilson & Deola), Helena, and John Heenan (Heenan & Cook), Billings, for Plaintiffs; Ian McIntosh (Crowley Fleck), Bozeman, and Kristen Meredith (Crowley Fleck), Helena, for Global.

STUDENT TRAVEL breach of contract claims related to COVID disruptions rejected on summary judgment… class certification denied… Cavan/Watters.

Global Travel Alliance sells educational travel packages to students. The named-Plaintiffs are Montana parents and students who booked trips in 2020 which were hindered by the COVID pandemic.

Global trips are generally booked a year in advance pursuant to its General Booking Conditions and Release Agreement and are paid in installments. Global has the right to “cancel any trip or portion of a trip, make an alteration in itinerary, or accommodation,” if a trip is rendered unsafe. A Standard Cancellation Policy provides for a refund based on the number of days prior to departure if a trip is canceled. The Cancellation Policy “strongly recommends” that travelers consider purchasing trip protection under which a traveler may cancel for personal reasons and receive a full refund less certain fees if a trip is canceled at last 24 hours prior to departure.

The travelers in this case were from Ben Steele Middle School, Laurel Middle School, and Castle Rock Middle School in Billings, and Sacajawea Middle School in Bozeman. Their trips were scheduled for spring 2020. On 3/13/20 the US declared a national emergency in response to the COVID pandemic. On the same date Global wrote its travelers detailing the Cancellation Policy, outlining Trip Protection Plan coverage, and reiterating its right to cancel for safety reasons. Days later it began postponing and rescheduling trips. It notified travelers that if they declined to participate in their rescheduled trip, it offered an option for a transferable trip voucher to be used later. Travelers from Ben Steele, Laurel, and Castle Rock were also offered an option for a “flexible independent trip (“Billings FIT trip”) to DC, Gettysburg, and Philadelphia in 6/21. If all those options were declined, Global would treat their refusal as a traveler cancelation and refunds would be offered pursuant to the Cancellation Policy.

KS’s and KC’s trip with Ben Steele was scheduled to depart 5/6/20. When the pandemic required it to be postponed Global offered to reschedule with a 75% travel voucher or 50% refund. Ben Steele travelers were also later offered the option of participating in the Billings FIT trip. Lisa Sides on behalf of KS and Erin & Jackie Clauch on behalf of KC rejected all options and demanded a full refund. Global issued them a 50% refund.

KW’s trip with Laurel was scheduled to depart 5/7/20. When postponed, Global offered the same 3 options. Laurel travelers were also later offered the Billings FIT trip. Jennifer Wersland on behalf of KW demanded a full refund. Global issued a 50% refund.

KS’s trip with Castle Rock was scheduled to depart 4/9/20. Global presented the same options. Julie Swanson on behalf of KS accepted and was issued a 75% travel voucher.

EW’s trip to Europe with Sacajawea was scheduled to depart 6/16/20. When it was postponed the trip leader declined to reschedule and requested a 70% cash refund or 75% travel voucher. EW accepted the refund.

Trips for schools other than Sacajawea were rescheduled in May and June 2021 and successfully completed. The remaining trips also were rescheduled and went forward. Some travelers from each school participated in the rescheduled trips while others opted to take the Billings FIT trip, accept the travel voucher, or cancel their trips.

Plaintiffs sued Global asserting a class action. Magistrate Cavan recommended that the Court grant Global’s motion for summary judgment and motion to strike or deny class certification.

The Magistrate found that summary judgment for Global was appropriate because the contract unambiguously permitted it to cancel travel or make alterations for safety reasons. He determined that the pandemic was an event that rendered the original trips unsafe. He found that Global acted in accordance with the contract when it rescheduled trips in light of the pandemic. Because the trips were only postponed, he determined that Plaintiffs’ argument that Global rescinded the contract failed. He found that rescheduling the trip was “plainly consistent with the parties’ intent at the time of contracting to provide a safe educational experience.” He determined that while the voucher program was not accounted for in the contract, Global’s offering vouchers or alternative trips was not a breach of any contract provision.

The Magistrate also recommended granting Global’s motion to strike or deny class certification because Plaintiffs have not provided evidence that the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation have been met. He noted that in the year since the initial motion to deny certification they have failed to produce any new evidence or conduct any additional discovery to address the deficiencies. Plaintiffs filed objections.

Plaintiffs argue that the Magistrate incorrectly applied a reasonableness test when analyzing whether the contract was breached. The Magistrate stated that the Booking Agreement

permits Global Travel to cancel travel or make alterations to a travel plan for safety reasons. There is no dispute that Plaintiffs’ scheduled trips were “rendered unsafe” by the COVID-19 pandemic. Therefore, the parties’ contract permitted Global Travel to make changes to the travel plan to provide for traveler safety. This is precisely what Global Travel did in rescheduling Plaintiffs’ trips for a later date when the travel could be safely completed.

The Court acknowledges that postponing a trip for a year may, in some circumstances, be a broad interpretation of “make an alteration in itinerary.” If, for example, a trip needed to be altered because of a temporary storm, postponing travel for a year may not be a reasonable application of the contract’s safety provision. But under the circumstances presented here, there is no dispute that a global pandemic rendered the action necessary, and it was plainly consistent with the parties’ intent at the time of contracting to provide a safe educational experience.

The Court, therefore, finds Plaintiffs’ argument that Global Travel rescinded the contract unavailing. Global Travel did not cancel any scheduled trips or rescind the Booking Agreement.

Plaintiffs argue that this analysis injects negligence standards into breach of contract analysis. This argument is founded on what seems to be a willful misreading of his analysis. Plaintiffs chop up the language of his order in support of their argument, stating that he analyzed whether the alteration was “‘necessary,’ ‘reasonable,’ and consistent with the parties’ intent at the time of contracting.” Reading the recommendation in its full context makes clear that he did not apply negligence standards. The only time he uses words like “necessary” and “reasonable” is in an aside, discussing whether a change in itinerary for a day versus a year or more may change the analysis. He clearly stated that under the plain language of the contract — the appropriate standard and the standard Plaintiffs claim he did not employ — Global was permitted to change the itinerary in response to a trip being rendered unsafe. This was not error, and Plaintiffs’ objection is founded on a misrepresentation and is not well-taken.

Plaintiffs also argue that the Magistrate incorrectly determined that an alteration in itinerary included rescheduling a trip. They state: “Rescheduling a trip for the following year is not an alteration in the itinerary. Reference to any standard dictionary definition of ‘itinerary’ makes that clear.” But their own supplied definition states that an itinerary can be “the proposed outline [of a journey or tour].” Plainly, a change in the route or outline of a journey can include a change in the dates including rescheduling the route or outline for the following year.

Plaintiffs object that the Magistrate interpreted the booking agreement based on the deposition testimony of lay witnesses, did not consider “Global Travel’s improper use of the Standard Cancellation Policy,” and erred by referring to the Trip Protection Program. They do not ever explain what legal authority supports a contrary result.

The Magistrate found that the plain language of the contract allowed Global to reschedule trips when a trip was rendered unsafe, and that the pandemic rendered the original itinerary unsafe. Accordingly, it did not breach the contract by rescheduling trips and applying the cancelation policy to any student who wanted a refund. There was no interpretation of deposition testimony or improper use of the cancelation policy. Reference to the Trip Protection Program has nothing to do with this legal analysis; it is not a proper objection that “it is unclear why [reference to the Trip Protection Program] is included in the recommendations” because it does not present legal argument and authority such that the District Court is able to identify the issues and reasons supporting a contrary result. Plaintiffs do not even identify a contrary result.

Plaintiffs argue that the Magistrate rejected their rescission claim without due analysis. They state that the proposed 8th grade trip a year later is materially different such that the object of the contract cannot be performed because the students are now not in the same school or with the same student body and their high school careers are well underway. Their briefing makes no mention of rescission based on the students being older or in different schools, only that “Global Travel rescinded the Contract when it canceled the Contract’s sole object, e.g. the scheduled class trip.” This demonstrates that the analysis regarding cancelation necessarily includes analysis regarding rescission. It cannot be error for the Magistrate to fail to analyze facets of an issue that are never presented to him and are now only being raised on objection. Further, the contract says nothing about the purpose of the trip being exclusively an “Eighth Grade Class Trip.” It does not limit participants to 8th grade students, nor does it promise that the trip will only occur when all students are in the 8th grade. The Magistrate correctly determined that summary judgment for Global is appropriate on Plaintiffs’ rescission claim.

Plaintiffs argue that the Magistrate applied the wrong standard when considering the motion to strike class certification, stating that he applied the standard applicable to an affirmative motion for certification. They argue that Rule 23(d)(1)(D) requires Global to shoulder the burden of proof and that the Magistrate did not properly apply the burden. Confusingly, they do not provide any legal analysis or caselaw regarding what the outcome should be; they merely note that they believe the wrong standard was applied. Nevertheless, the Court, in applying the 23(d)(1)(D) standard, determines that striking the class claims is appropriate.

Class certification has been previously denied and Plaintiffs have produced no new evidence in more than a year. Global argues that the proposed class cannot ever be certified because of the previously identified issues of commonality, typicality, and capability of common resolution. Plaintiffs have provided no new evidence, new argument, or any authority stating that these defects could be cured at some point in the future. Basic issues regarding commonality and typicality — such as whether all parties have suffered the same injury and whether it is capable of classwide resolution — persist. Striking the class claims is appropriate.

Plaintiffs object that they have not actually had a year to conduct discovery as they and Global agreed to stay the class discovery pending a ruling on the summary judgment motions. This argument minimizes that it was their tactical choice to stay their discovery requests and “streamline the case.” They state that “there is no factual basis to conclude that Plaintiffs should have completed or presented discovery on class certification.” Neither this Court nor the Magistrate has held that discovery needed to be completed at this point to survive a motion to strike; however, Plaintiffs present no new argument beyond a request for more time. They have not stated what further evidence in support of class certification they hope to find, nor have they provided any sort of schedule or timeline for the Court.

Finally, Plaintiffs state that the Magistrate conflated damage differences as a lack of commonality or typicality. This objection is unavailing. He relied on his previous findings on certification. Plaintiffs did not object to those findings when they were adopted by this Court. They cannot now complain of errors in that analysis.

Magistrate Cavan’s proposed findings & recommendations are adopted in full. Global’s motion for partial summary judgment is granted. Its motion to strike or deny class certification is granted.

Sides et al v. Global Travel Alliance, 44 MFR 295a/b, Cavan’s proposed findings & recommendations 1/18/23, Watters’s order 3/24/23.

John Morrison (Morrison, Sherwood, Wilson & Deola), Helena, and John Heenan (Heenan & Cook), Billings, for Plaintiffs; Ian McIntosh (Crowley Fleck), Bozeman, and Kristen Meredith (Crowley Fleck), Helena, for Global.

DISCOVERY: Rule 35(b)(1) “like reports” does not require insurers or their medical examiners to deliver reports for all earlier exams of the condition from all persons examined, but only earlier exams of the Plaintiff regarding the same condition to which the insurers and their Rule 35 examiners may have access… DeSoto.

Levi & Michele Cheff seek UIM from American States Preferred and General Ins. for injuries Levi sustained in an MVA 1/29/19 which he claims resulted in vision convergence insufficiency, dizziness, other vestibular issues, and shoulder problems requiring surgeries.

On 9/25/20 Defendants’ counsel emailed Cheff’s counsel requesting Levi to attend a neuropsychological evaluation pursuant to a condition of his policies that they have “no duty to provide coverage under the policy unless” the insureds “submit to examination, at [Defendants’] expense, by physicians of [Defendants’] choice, as often as [Defendants] reasonably require.” Neuropsychologist Craig McFarland evaluated Levi, issuing a report 11/17/20 and an addendum 11/30. Defendants emailed both reports to Plaintiffs’ counsel 12/1/20.

Plaintiffs filed this suit 1/20/22. In 6/22 the parties stipulated to 2 additional exams under the policies and Rule 35 at Defendants’ request: Levi agreed to submit to an ophthalmological exam by Randy Kardon and a neurological exam by Mark Bromberg.

In 12/22 the parties requested a status conference to discuss the scope of production required under Rule 35(b)’s mandate that “the party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition.” (Emphasis added by the parties). Relying on Bryant (D.Colo. 2019), Plaintiffs contend that “all Rule 35 examiners hired by the Defendants must produce ‘like’ reports of any examinations of any person, including non-parties, performed on a similar condition, with all personal identifying information redacted to protect patient privacy.” Defendants counter that “Rule 35 examiners are not required to produce ‘like’ reports for non-parties that were not conducted pursuant to Rule 35” and “Rule 35 does not require the production of doctor-patient privileged medical records for individuals who are not a party to a lawsuit and who are not under the custody or legal control of a party to the lawsuit.” After discussion with the parties, the Court ordered briefing.

Plaintiffs submitted their opening brief 12/22/22, subpoenaed McFarland, and moved to compel subpoena compliance under Rule 45(d)(2)(B)(i) seeking “like reports” under their interpretation of Rule 35(b):

1. The last 20 “like reports” that Bohyer, Erickson, Beaudette & Tranel has received from McFarland with “like reports” to be neuropsychological reports of exams of individuals with claims of TBI with personal information redacted.

2. The last 20 reports of neuropsychological reports of exams performed by McFarland for any defendant excluding Bohyer, Erickson, Beaudette & Tranel with personal information redacted.

3. The last 20 neuropsychological reports of exams of individuals with claims of TBI furnished to anyone exclusive of any reports furnished in categories 1 and 2 with personal information redacted.

Defendants objected that because McFarland conducted his exam under terms of an insurance policy, Rule 35 does not apply to him and even if it applies it should not be interpreted to require production of health information of non-parties without their knowledge or consent.

Plaintiffs seek similar “like reports” from Kardon and Bromberg. Defendants maintain that such broad disclosure should be denied.

Rule 35 does not apply to the 10/26/20 pre-litigation exam by McFarland because it was not ordered by the Court, but was a function of Levi’s policy.

Plaintiffs cite Chastain (D.Utah 1964) and Cooper (S.D.Fla 2007) in support of their contention that McFarland’s exam conducted pursuant to the insurance contract should fall under Rule 35(b)(6) which applies to exams made by agreement. Those cases are distinguishable because they do not involve pre-litigation contractual obligations but simply informal agreements to conduct IMEs. Chastain noted the custom of agreeing to IMEs without a court order and commended counsel’s cooperation. This Court likewise acknowledges the often-observed custom of agreeing to IMEs and further observes that had Levi’s exam by McFarland resulted from a simple agreement between the parties, Plaintiffs’ argument that falls

under Rule 35 would be well-taken. However, it was a contractual obligation, not a voluntary agreement, and Rule 35 does not apply.

Accordingly, McFarland cannot be compelled to produce “like reports of all earlier examinations of the same condition” as required by the Rule and Plaintiffs’ motion to compel subpoena compliance is denied.

As to the scope of production required under Rule 35(b) by Kardon and Bromberg, Plaintiffs contend that Bryant provided “a definitive decision.” However, Bryant is both distinguishable and an anomaly; at best, federal courts are split as to whether disclosure of “like reports” is limited solely to exams of the plaintiff or extends to reports by the examiner from exams of other parties with the same condition.

Bryant determined that disclosure under 35(b)(1) extends to an examiner’s “like reports” from exams of other patients with the same condition(s) as the plaintiff. But the context of the plaintiffs’ argument in Bryant was crucial to the decision and that same context is not at issue here.

The plaintiffs in Bryant opposed the defendants’ motion for a Rule 35 exam because defendants’ doctor had “a reputation as a biased physician that routinely provides retained medical examination reports to help Defendants and insurers attempt to reduce the value of claims asserted against them.” Thus the issue was whether the plaintiffs had demonstrated good cause for the conditions they sought to place on the exam in light of the doctor’s reputation for bias. Specifically, the plaintiffs sought “production of all reports, notes, drafts, and other materials from [the doctor’s] file in conjunction with his Rule 35 examination of [the plaintiff]” and “copies of previous reports of his examinations of the same condition [as the plaintiff] in other individuals.” The court engaged in a plain language analysis of Rule 35 and the advisory committee’s notes from the 1970 amendment and concluded that, while the plaintiffs were only entitled to the doctor’s final reports, not drafts or notes, “an examined party is entitled to production by the examiner of ‘all’ reports to which the examiner has access, regarding examinations of the same condition(s) suffered by the examined party.” To address the defendants’ concerns with disclosing confidential 3rd-party medical information, the court ordered patients’ names and other identifying information redacted.

On the other end of the spectrum, Howard (N.D. Ga. 2014) rejected the plaintiff’s similar argument that additional conditions should be included in its Rule 35 order. The plaintiffs proposed a condition that required the defendant to provide to the plaintiff’s counsel:

Any and all reports, including a copy of [the examining doctor’s] report and findings of the Plaintiff, memorandum, notes, photographs, and all other materials prepared by [the examining doctor] must be delivered to the Plaintiff’s counsel, “together with like reports of all earlier examinations of the same condition” from all persons [the examining doctor] has examined for Complex Regional Pain Syndrome within 5 days of [the examining doctor] issuing any said report(s). See Rule 35(b)(1).

Characterizing the plaintiff’s interpretation of Rule 35 as “incorrect,” the court held that this provision “requires the defendant to deliver to the plaintiff only like reports of all earlier examinations of the plaintiff regarding the same condition to which the defendant may have access.” (Emphasis added).

Bryant is distinguishable as the Rule 35 objections were premised on allegations of a biased examiner while Plaintiffs here have made no such allegations and in fact stipulated to Defendants’ doctors examining Levi. Additionally, as Defendants point out, Plaintiffs’ interpretation of Rule 35(d) presents a multitude of privacy concerns as well as conflicts with doctors’ obligations to protect their patients’ confidential healthcare information. Putting aside those significant concerns, the Court’s own plain language analysis, including a complete reading of Rule 35 and the advisory committee’s notes to the 1970 amendment, places (b) in a vastly different light than Plaintiffs and the Bryant court contend.

First, the Court agrees with Defendants that (a)(1) limits Rule 35’s application to “a party whose mental or physical condition … is in controversy.” Unrelated non-parties plainly do not fall within the scope of the Rule because they have not placed their condition at controversy in this litigation.

Next, Bryant relies on a selective reading of the 1970 advisory committee notes which state that the amendment “embodies changes required by the broadening of Rule 35(a) to take in persons who are not parties.” Contrary to Plaintiffs’ argument that this supports their position that reports of persons who are not parties should be disclosed, the committee intended “to extend the rule to provide for an order against the party for examination of a person in his custody or under his legal control.” Thus (a) defines “persons who are not parties” as persons in the custody or under the legal control of a party; for example, “a parent or guardian suing to recover for injuries to a minor.” There is nothing in the notes to imply that the Rule should be extended to unrelated non-parties who have been treated by the same physician for the same condition.

Discovery rules, while “intended to foster broad and comprehensive discovery disclosures,” McDonald (D.Mont. 2014), “should not be expanded by disregarding plainly expressed limitations,” Schlagenhauf (US 1964). Additionally, Because Rule 35 is “in derogation of the statutory privilege” it should be strictly construed. Sher (DC Cir. 1952).

A reasonable interpretation of the plain language of Rule 35(b) in context with its other provisions and the advisory committee notes does not justify plaintiffs receiving exam reports of others, completely unrelated to the pending litigation, examined by defendants’ chosen physicians. Rule 35(b)(1) does not require Defendants or their medical examiners to deliver like reports for all earlier exams of the same condition from all persons examined; it only requires production of like reports of all earlier exams of the Plaintiff regarding the same condition to which Defendants and their Rule 35 examiners — Kardon and Bromberg — may have access. Plaintiffs’ motion to compel subpoena compliance by McFarland is denied.

Cheff v. American States Preferred Ins. and General Ins. of America, 44 MFR 294, 3/2/23.

Lon Dale, Hannah Stone, Alyssa Probst, and Michael Sherwood (Milodragovich, Dale & Steinbrenner), Missoula, for Plaintiffs; Paul Tranel, Jesse Beaudette, and Brandon Shannon (Bohyer, Erickson, Beaudette & Tranel), Missoula, for Defendants.