SANCTIONS: $4,000 11(b)(2) sanctions against Plaintiff’s attorney, reduced from $14,498 requested by time not related to relevant motion and because of ease of resolution of res judicata issues… Molloy.

The Court previously found that Arlene Joseph’s attempt to amend to add wrongful termination under the FLSA for reporting unpaid wages was barred by the jury’s rejection of her FLSA wage claim (it awarded $68,456 under the WDA), and ordered her lawyer Stacey Weldele-Wade to pay LineHaul its fees “incurred in filing and pursuing its motion for partial summary judgment.” (MLW 5/18/13). LineHaul requests $14,498 fees & costs for 92.5 hours. Its counsel’s affidavit shows 47.1 hours researching & drafting the motion, 2.3 hours reviewing the response brief, and 20.1 hours drafting the reply brief, and includes 23 hours of attorney and paralegal time for opposing Joseph’s motion to stay and sever/remand her state law claims.

Weldele-Wade argues that the 23 hours of attorney and paralegal time are beyond the scope of the Court’s order, which awarded fees “incurred in filing and pursuing its motion for partial summary judgment.” That objection is well-taken. $3,738 is deducted from the proposed award.

She also argues that the hours are not reasonable on their face or based on the record established by LineHaul’s counsel, who claims 69.5 hours pursuing the motion for summary judgment at a cost of $10,760. She claims counsel spent only 48.1 hours on “an analogous motion for partial summary judgment” in the related wrongful discharge case, not the issue of res judicata. While the motions are distinguishable, the wrongful discharge motion undoubtedly raised more difficult questions than the motion in this case. Application of res judicata was self-evident and straightforward — Weldele-Wade could have raised her §215(a)(3) claim in the previous case but did not and offered no explanation for not doing so; as a result, that claim is now barred by res judicata. It’s as simple as that. That being said, LineHaul’s request of $10,760 might be reasonable, but the Court need not resolve that question. The requested amount is beyond what is necessary “for effective deterrence” and “to deter repetition of the conduct or comparable conduct by others similarly situated.” Rule 11(c)(4). Considering the nature of the issues raised by LineHaul’s motion for summary judgment and the ease with which they were resolved, $4,000 is a sufficient sanction.

Joseph v. LineHaul Logistics, 40 MFR 352, 5/28/13 important site.

Stacey Weldele-Wade (Antonioli & Wade), Missoula, for Joseph; Cory Laird & Fred Simpson (Reep, Bell & Laird), Missoula, for LineHaul.

RES JUDICATA/SANCTIONS: Attempt to amend to add wrongful termination under FLSA for reporting unpaid wages barred by jury rejection of FLSA wage claim (jury awarded $68,456 under WDA)… 11(b)(2) sanctions imposed against attorney… Molloy.

Linehaul Logistics fired Arlene Joseph 4/27/11 immediately after she complained about unpaid overtime. She sued in State Court alleging, inter alia, that she was fired in response to her reports of a hostile environment and wage/hour violations. She did not identify any specific statutes, but generically claimed she was discharged without good cause, on account of retaliation, and in violation of wage & hour laws. Linehaul removed to this Court. The 1st 2 counts were presumably brought under MCA 39-2-901-915 and the 3rd under FLSA §207. The pretrial order and instructions clarified that her wrongful discharge claims were based on violations of Montana’s WDA and her wage & hour claim was brought under the FLSA. The Missoula jury awarded Joseph $68,456 on her wrongful discharge claim but nothing on her wage & hour claim. Prior to judgment she moved to amend to add wrongful termination under FLSA §215(a)(3), which makes it unlawful to terminate an employee for reporting or complaining about unpaid wages. Stacey Weldele-Wade never explained why she could not have pled this in her complaint or otherwise raised it before trial, and expressly recognized that if she were to raise it in a separate suit (like this one) she would run into res judicata problems. Magistrate Lynch denied her motion to amend. Joseph appealed to the 9th Circuit, but then filed a new suit in State Court alleging the 215(a)(3) claim and a tortious interference claim. Linehaul again removed to this Court and requests summary judgment based on res judicata and Rule 11 sanctions.

Claim preclusion applies when there is an identity of claims, a final judgment on the merits, and identity or privity between the parties. Cell Therapeutics (9th Cir. 2009); Tahoe-Sierra (9th Cir. 2003). (Taylor (US 2008) suggests that “privity” may be outmoded and instead referred to 6 exceptions to the “rule against non-party preclusion,” but the 9th Circuit has continued to refer to privity in the context of claim preclusion.) There is no dispute that the parties in this case are the same as in the previous litigation. Joseph argues that there is no identity of claims because she did not specifically raise a claim under 215(a)(3) in the previous litigation, but made a claim under the WDA. That argument is a nonstarter. She argued in the previous litigation that Linehaul wrongfully discharged her because her termination was based on “retaliation” for reporting “a violation of employment conditions [hostile environment and wage/hour laws].” She claims in this case that she was wrongfully discharged under the FLSA because her termination was based on retaliation for her complaint about “non-payment of her overtime compensation.” The only difference is that this claim is under the FLSA and the previous was under the WDA; the factual basis of the claims and substance of the arguments are identical. Whether she attempted to vindicate her claim in the previous litigation under precisely the same statute or theory is not the relevant inquiry; the question is whether she could have brought the claims in this case in her previous litigation. Tahoe; see also Stratosphere (9th Cir. 2002) (identity of claims exists when 2 suits arise from the same transactional nucleus of facts). Joseph’s 215(a)(3) claim, by her own admission, arises out of the precise facts that were at issue in her previous litigation, and she has offered no explanation for why she was unable to timely bring it in the previous litigation. She knew res judicata would be a very serious issue if she brought this claim, and indeed it is. The undisputed facts show that she could have timely alleged the 215(a)(3) claim. As to the 2nd element, Lynch entered a final judgment in the previous litigation 9/28/12. As Defendants correctly argue, the fact that the previous case is being appealed does not alter finality for res judicata purposes. Tripati (9th Cir. 1988).

Issue preclusion “`can apply to preclude relitigation of both issues of law and issues of fact if those issues were conclusively determined in a prior action.”’Wolfson (9th Cir. 2010); Stauffer (US 1984). A party is precluded from relitigating issues of fact or law if there was a full & fair opportunity to litigate the issues in the previous action, the issue was actually litigated, there was a final judgment on the merits, and the person against whom issue preclusion is asserted was a party to or in privity with a party in the previous action. Id. Joseph claims the 215(a)(3) claim was not “actually litigated” in the previous action. Again, she is wrong. Whether she specifically articulated it is irrelevant; what matters is that she could have raised it. Her 215(a)(3) claim is merely a guise of the same claim she pursued previously.

Joseph’s untimely 215(a)(3) claim is frivolous. It is legally baseless from an objective perspective. No reasonable attorney could have concluded that it is not barred by res judicata. Had a reasonable attorney conducted a reasonable & competent inquiry before signing & filing her complaint, he or she would have learned that the claim is barred. The thrust of counsel’s argument as to why it is not barred is that she did not specifically plead a 215(a)(3) claim in the previous litigation. That misses the point and ignores well-established case law; what matters is whether she could have pled that claim. Paulo; Adam (9th Cir. 2010);Tahoe; Restatement of Judgments §27. (Her argument that the prior judgment is not final for purposes of res judicata fails on its face. Tripati.)

Even though Weldele-Wade did not run afoul of Rule 11(b)(1) (improper purpose), her violation of 11(b)(2) warrants sanctions. There was no good reason for filing the 215(a)(3) claim except perhaps the self-interest of potential attorney fees. A reasonable sanction is to have her — not Joseph — pay Linehaul’s attorney fees incurred in bringing its motion for partial summary judgment.

Joseph v. Linehaul Logistics, 40 MFR 337, 5/14/13.

Stacey Weldele-Wade (Antonioli & Wade), Missoula, for Joseph; Cory Laird & Fred Simpson (Reep, Bell & Laird), Missoula, for Linehaul.

BENCH JUDGMENT: $59,820 ($58,600 emotional distress, $200 for “last” birthday party, $1,020 for pre-need funeral agreement), VA doctor misdiagnosis of terminal brain cancer, prognosis of imminent death, when correct diagnosis was stroke… Molloy.

Mark Templin arrived at Fort Harrison ER complaining of acute chest pain 1/28/09. He underwent cardiac catheterization with stent placement. In the days until his discharge 2/4 he developed word recall difficulty, memory & speech deficiencies, unsteady gait, and headaches. On 2/4 he had acute right lateral visual field loss. His internist Patrick Morrow requested an ophthalmology consultation. Paul Berner found homonymous hemianopsia consistent with stroke and recommended a CT scan to identify sources of the possible embolus. Morrow acknowledges Templin’s symptoms including trouble with balance, finding words, and vision were consistent with a stroke, that stroke was a working diagnosis after the ophthalmologist consult, and the determination of homonymous hemianopsia further signified a CVA/stroke. A non-contrast CT scan was ordered. Morrow acknowledges that a non-contrast CT is adequate to show brain abnormalities but inadequate to differential the cause. Neuroradiologist Randy Sibbitt’s impression of the CT was: “Probable metastatic tumor to brain. The only other considerations would be cerebritis with abscesses.” He discussed with Morrow a variety of diagnoses including stroke. Morrow left with the clear understanding that the abnormalities could have been from one of many possible etiologies including stroke. Sibbitt’s interpretation of the CT was communicated to Morrow as his impressions and not a definitive diagnosis. Sibbitt discussed the possibility of further testing to narrow possible etiologies. While the Court finds it highly unlikely that Sibbitt and Morrow discussed multiple differential diagnoses, it does not foreclose the possibility that Sibbett’s interpretation of the scan and limited formal documentation of his impressions encouraged Morrow to prematurely reach a definitive diagnosis of metastatic brain cancer. Morrow presented Templin’s case to oncologist Karl Guter and the Tumor Board. Guter believed was based on a definitive study. Morrow presented it as a strong suspicion of metastases to the brain. Guter was under the impression that the scan was contrast-enhanced and therefore did not suggest an MRI. When dictating notes from the meeting he noted that an MRI would help solidify the diagnosis. Morrow did not present the stroke diagnosis at the meeting. After the meeting his working diagnosis was metastatic neoplasm. He testified that he told Templin that his “greatest fear” was metastatic tumors of the brain and that further diagnostics were needed and that he advised an MRI, but there is no indication in Templin’s medical records that Morrow suggested an MRI or further diagnostic workup. Morrow confirms that medical records are intended to memorialize and document care & treatment, including communications with a patient. Given the non-specific nature of his memories of communications with the Templin family, the Court finds his entries in medical records more reliable. Templin and his family understood his communication of the results of the non-contrast CT as a diagnosis of brain cancer. His daughter Donna Patterson asked Morrow how her father would die. He said one of the tumors would grow “like cauliflower” and he would die from a brain bleed. Morrow testified that Templin went home with the understanding that he had a grim prognosis that proceeded “from the point of view of cancer treatment.” Templin said he did not want cancer treatment involving chemo, biopsy, or surgery. Morrow stated in his notes that Templin “understands that his prognosis is grim and that any treatment would be palliative and not curative,” and that he did not want to sacrifice “quality of life for any potential increase in quantity.” His discharge summary states that Templin was not interested in any kind of treatment. He prescribed Decadron and Dilantin, both suggested for brain cancer patients. Decadron is contraindicated for stroke patients. Morrow ordered hospice care.

Templin terminated hospice services 6/26/09. On 7/1 he had another CT scan. Michael Strekall informed him that it showed old infarcts consistent with stroke, not metastatic brain tumor. On hearing this, Templin was amenable to further testing. Another CT showed old infarcts consistent with stroke. An MRI confirmed stroke activity and not metastatic brain cancer. Chief of Staff Faust Alvarez sent a letter to Templin 1/13/10 stating that the MRI and CTs “failed to demonstrate any abnormal enhancement suggestive of tumor process,” but instead “appear to represent previous stroke activity.” He indicates that these statements do not amount to admission of fault or that diagnosis was actually faulty as no investigation of the underlying complaint had taken place. His testimony is not credible. The letter was intended to communicate acceptance of fault for the misdiagnosis. Strekall noted the changed diagnosis in an adverse event disclosure: “No brain cancer existed and the previous diagnosis was discussed to be in error.”

Morrow advised Templin and his family to get his affairs in order since he did not want treatment for the purported cancer. Patterson notified her sister Karen Chilcoat that their father had been diagnosed with terminal brain cancer. Chilcoat joined the family at the family residence. Patterson and Templins were crying. She describes that time as “pretty devastating for my dad to hear that he had terminal brain cancer and had to go home to get his affairs in order.” Patterson and Chilcoat met with Morrow 2/6. He spoke in terms of weeks to months. He completed Chilcoat’s FMLA forms in which he specified that Templin had metastatic brain tumors for which he would need increasing care, up to total care, until his death, and that the illness would probably be less than 6 months. At the family residence after his discharge Mrs. Templin was sitting on the couch crying and Templin just sat in his recliner and cried. He lived in a state of depression for months. After his initial deep depression his outlook improved and he began to cope with the diagnosis. He and his family endured significant mental & emotional distress in preparation for his anticipated death. He testified that he tried not to let his family know, but he cried many times and even thought of shooting himself. He described emotional episodes interrupting his business while he was under the impression that he had metastatic brain cancer. Patterson saw him come to the home with all of his guns, rifles, and ammunition and put them on the bed. She called the family to retrieve them because he said he wanted to take his life to spare the family from the pain & distress associated with his diagnosed terminal illness. He often sat in his chair and did not move much when Chilcoat visited. She said he cried often and slept a lot. She saw that he did not get on with his life for months and remained depressed and suicidal through 4/09. Templins still cry sometimes about his misdiagnosis. He wondered each day whether it would be his last. His wife often greeted him in the morning with a question about whether the day would be his last. He signed a do not resuscitate order which was displayed on the fridge. He had to advise his extended family of his diagnosis and arranged for some of them to visit a final time. The family held a “last birthday” dinner which cost $200. The weekend after he was discharged the family arranged for his funeral and paid $1,020. Chilcoat’s husband made a wooden box for his ashes. Templin sold his truck and gave away many things. Morrow advised him that he could not drive, so he quit working as a driver. Had the abnormalities on the 2/4/09 CT been diagnosed as consistent with stroke, his driving would have been similarly restricted. He continued to worry that the doctors might be wrong again after his diagnosis was changed to stroke. Mrs. Templin was permanently injured in an MVA in 2007 and is disabled and very dependent on him. The family feared that she would wake up after he died during the night. They tried to make sure that Templins were not alone at the home.

It is uncontested that Morrow was within the scope of his employment and for his employer’s benefit as a physician at Ft. Harrison. Thus sovereign immunity for the tort claim is waived under the FTCA. Expert testimony in a medical malpractice case is required unless the conduct is readily ascertainable by a layperson. Willson (Mont. 2011). Even though expert testimony is present here, a layperson could readily ascertain that a doctor abiding by the standard of care should not jump to diagnostic conclusions and communicate imminent death based on incomplete information or leave a patient with a mistaken belief as to his health unsupported by a firm diagnosis or reasonable differential diagnosis. A physician has a duty to exercise ordinary care to assure that when he advises a patient about his condition it comports with the standard for his profession. Webb (Mont. 1997). This requires the doctor to make exam results available to the patient. Id. Morrow acknowledged that the entire clinical picture is integral to decisions about a patient and that it is important to clearly tell a patient to the best of the doctor’s ability the options and provide information for the patient to make an informed decision. He testified that it can be important to tell the patient the differential diagnoses, and the doctor must sometimes explain why further testing is warranted, especially where a diagnosis is uncertain and further testing is needed for a definitive diagnosis.

Plaintiff’s expert internist Thomas Bulger testified that Templin should have been informed of the preliminary nature of the non-contrast CT instead of the firm diagnosis of metastatic brain cancer.

Defendant’s expert ER physician Gregory Moore opined that Morrow provided good care to Templin in that he rapidly addressed his cardiac emergency to a favorable outcome, and that his investigation of his other symptoms was expedient and met the standard. His opinion as to Morrow’s communication to Templin does not support the conclusion that he met the standard. He opines that a doctor should tell a patient about the worst-case scenario and that limitations of diagnostic testing must be presented and all material facts must be disclosed so a patient can make an informed decision, and it is incumbent on a doctor with an unconfirmed diagnostic hypothesis to present its conditional nature along with the need for further diagnostic workup. He interpreted entries in Templin’s record to mean that he left the hospital with the impression that he had brain cancer and refused further treatment because of this.

Based on the testimony of Bulger and Moore, Morrow had a duty to adequately inform Templin of the preliminary nature of impressions based on the non-contrast CT so he could make informed decisions. Morrow breached the duty he owned to Templin by his communication of the diagnosis of terminal metastatic brain cancer to Templin and his family; failure to communicate the preliminary, nonspecific, non-diagnostic nature of the non-contrast CT; his progress notes and discharge summary indicating metastatic cancer with grim prognosis; his order for hospice care; his certification of Chilcoat’s FMLA forms indicating less than 6 months to live; his presentation of the diagnostic imaging produced from the non-contrast CT to Patterson and his statement that the tumors would grow until he died of brain bleed. Other evidence supporting Morrow’s breach includes Strekall’s “institutional disclosure of adverse events” entry in Templin’s records following the 12/09 MRI which indicates that a misdiagnosis was presented to him, and Alvarez’s letter which states that a misdiagnosis was made.

Templin did not act negligently. His refusal of further testing or treatment was based on the limited and erroneous information from Morrow.

It is difficult to put a price tag on the anguish of a man wrongly convinced of impending death. Templin lived 148 days under the mistaken impression that he was dying of metastatic brain cancer. The earlier months were particularly traumatic. He is due $500/day for the initial period of particularly traumatic & severe mental & emotional distress 2/4/09-4/15/09 when the hospice social worker noted the transition to coping — $35,500. He is due $300/day for the later period of severe mental & emotional distress 4/16/09-7/2/09 — $23,100. He is not entitled to compensation for his hospice care, which was paid in whole by Medicare. He is not entitled to lost wages; his driving restriction would have been similar had he been assigned the correct diagnosis of stroke. He is entitled to $200 for the family dinner celebrating his “last” birthday. He is entitled to $1,020 for the pre-need funeral agreement.

Templin v. US, 40 MFR 310, 5/6/13.

Daniel Buckley (Buckley Law Office), Bozeman, for Templin; AUSAs George Darragh & Michael Shin.

INJUNCTION PENDING APPEAL of Goose Bay mobile home eviction TRO/preliminary injunction denial denied by Lovell, emergency motion for injunctive relief denied by 9th Circuit… BOR not in violation of prior order by terminating water/septic.

The Court 4/22/13 denied Goose Bay Homeowners Association’s request for a TRO/preliminary injunction against removal of its 31 mobile homes on rented spaces in a trailer court on Canyon Ferry Lake near Goose Bay Marina, owned by the US and managed by BOR, which has decided to modernize including reconstructing the septic system. (MLW 4/27/13). HOA requests injunctive relief pending appeal.

HOA asserts that BOR violated the 4/22/13 order by terminating water & septic service. However, BOR informed HOA members in 9/12 that they could remain on-site after 12/31/12 “in a disconnected status” until 4/30, meaning no electricity, water, or septic after 12/31. This was a courtesy so they would not have to remove their homes in the middle of the winter. The “disconnected status” was and is the status quo.

The same standards that apply to a preliminary injunction apply to a preliminary injunction pending appeal. Lopez (9th Cir. 1983). HOA has not raised any issues that have not already been considered. It submits that the 2009 DEA prepared by BOR for its initial planning of the modernization project fails to consider any impact by removal of the homes. Indeed, it barely mentions the homes and certainly does not predict their future. As in its prior brief, HOA claims there is no NEPA documentation to support the eviction. However, they are being evicted because they lost their rental contracts, not because NEPA dictates that they be evicted. The concessionaire lost the right to manage the marina 12/31/12, and that written contract required it to remove its property within 90 days, including the mobile homes. (The trailer spaces were rented by the concessionaire by oral agreements.) The 2009 NEPA documentation relating to the planning process for the marina is simply not related to this eviction. As stated in the prior order, removal of HOA members’ homes is a private action, not a federal action. There has been no final agency action that would allow review of their eviction under APA. The NEPA planning for the future of the marina and the evictions are on separate tracks that do not intersect. Because there is no final agency action appropriate for judicial review, this Court lacks subject jurisdiction of HOA’s NEPA claim. The Court has considered whether HOA is likely to succeed on the merits of its NEPA claim and found it unlikely. The Court has also considered whether it is likely to suffer irreparable harm and finds no likelihood. These are not primary residences, but summer vacation properties. Because they are mobile homes they can be fairly easily transported away from BOR property. Should it be determined later that the owners have the right to rent spaces from BOR, they can be returned just as easily. While HOA members have developed a sentimental attachment to the facility, they have no legal right to use it. Meanwhile BOR’s policy has shifted from prohibiting this type of private exclusive use of public property. 43 CFR 429.31(b). Now that HOA has lost the right to its private exclusive use of the trailer court, it is highly unlikely that it can get it back. It is clinging to a privilege that it no longer possesses and which is no longer granted by BOR policy. An injunction would prevent BOR from continuing to plan for the facility because the entire marina septic system is connected to the trailer court’s failing system (which also unfortunately encroaches on Lefevers’ private land). There is no authorized concessionaire, and BOR cannot request proposals for a new one without planning for, at minimum, a modernized and code-compliant septic system. Thus an injunction would likely halt all planning, and the ability of the marina to function as a public recreation facility would be jeopardized.

The motion for injunction pending appeal is denied.

 

 

– – – 

 

9th Circuit Judges Trott and Nguyen subsequently denied HOA’s emergency motion for injunctive relief.

Goose Bay HOA v. BOR et al, 40 MFR 301, 4/29/13, 9th Cir. order 4/30/13.

Nathan Wagner (Datsopoulos, MacDonald & Lind), Missoula, for Plaintiffs; AUSA Leif Johnson; Kevin Feeback (Gough, Shanahan, Johnson & Waterman), Helena, for Lefevers.

 

INSURANCE BAD FAITH: Attorney precluded from testifying as to comp claims handling… Cebull.

Suzy Enberg seeks to exclude testimony of Geoffrey Keller, a civil defense attorney retained by Defendants to provide expert testimony as to whether they acted reasonably in handling her work comp claims. Although he is obviously qualified to opine on handling of insurance claims, this Court has consistently prohibited attorneys and legal experts from testifying as to the law and applying the facts of the case to the law. His expert report reads much like a legal memorandum, making legal conclusions, commenting on the applicable law, and applying the law to the facts. It therefore invades the province of the jury and is properly excluded. McDevitt (D. Hawaii 2007).

Moreover, many of Keller’s opinions rely on reasons for denying coverage that are precluded by the Court’s ruling on Enberg’s first motion in limine. For example, he opines that Defendants had a reasonable basis for denying coverage because she had previously fallen while skating and injured her back sledding with her kids. For reasons stated in the 2/12/13 order, Defendants cannot rely on such reasons in arguing that they acted reasonably in denying coverage.

Enberg’s motion to exclude Keller is granted.

Enberg v. American Home Assurance, Sedgwick Claims Management Services, 40 MFR 299, 2/13/13.

Geoffrey Angel (Angel Law Firm), Bozeman, for Enberg; Gerry Fagan & George Kimmet (Moulton Bellingham), Billings, for Defendants.