NURSING HOME MALPRACTICE: Nursing home not immune from COVID-based claims of estates of deceased patients under Public Readiness & Emergency Preparedness Act, motion to dismiss denied… Cavan/Watters.

Magistrate Cavan’s Findings & Recommendations.

This action was originally brought by the Estate of Robert Petersen in Yellowstone Co. State Court 1/18/22 against Canyon Creek Memory Care in Billings. Defendants removed to this Court invoking diversity and federal question jurisdiction and federal officer removal. Plaintiff then joined as Plaintiffs the Estates of Mary Ann Simons and Charlotte Guilford. Before the Court is Canyon Creek’s motion to dismiss.

In mid-20 Petersen, Simons, and Guilford were residents of Canyon Creek. Petersen and Guilford had dementia and Simons had complications following a stroke. The Estates allege that Canyon Creek failed to provide essential care, services, and duties owed to them which ultimately resulted in their deaths.

Plaintiffs allege that Canyon Creek failed to fulfill their duties to Petersen and Simons before and during a COVID outbreak: prior to the outbreak staff neglected him, did not regularly help him use the bathroom, groom him, bathe him, or consult with his healthcare power of attorney before changing his medications. Nonetheless, he was allegedly well-nourished, hydrated, and able to assist in daily activities. On 7/8/20 he tested positive for COVID but was asymptomatic. Plaintiffs allege that Canyon Creek was short-staffed and did not check on him regularly. He lost significant weight and eventually was unable to talk, swallow, or stand and was transported to the hospital due to fever, high heart rate, low blood pressure, and severe dehydration. Staff advised that he also suffered from confusion, deconditioning, and acute kidney injury caused by severe hydration. He also had pressure injuries to his sacrum and left hip. He died 9/18/20.

Simons tested positive for COVID 7/6 and was asymptomatic. At the request of her husband she was transported to the hospital where she was diagnosed with acute metabolic encephalopathy secondary to hypernatremia and acute kidney injury caused by severe dehydration. She also had pressure injuries to her sacrum and buttocks. She died 8/10/20.

Guilford became a Canyon Creek resident 6/30/20. On the day of her admission her representatives asked if there were COVID cases at Canyon Creek after observing a staff member in protective equipment. Staff responded that there were no COVID infections. Plaintiffs allege that had her representatives been informed that a resident had tested positive for COVID they would have removed her. Later in July they were told that she tested positive for COVID. She died from COVID complications 8/22/20.

The Estates allege (1) negligence as to Petersen and Simons, (2) negligence/negligence per se as to Petersen and Simons, (3) negligence as to Guilford, (4) negligent management, (5) negligent misrepresentation, (6) violation of the MCPA, (7) violation of the right to dignity under the Montana Constitution as to Petersen and Simons, and (8) punitives.

Canyon Creek moves to dismiss for lack of subject jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6). It argues that it has immunity under the Public Readiness & Emergency Preparedness Act and thus the Court lacks jurisdiction. The Estates respond that PREPA does not provide complete immunity and argue that they have alleged sufficient facts to maintain the causes.

PREPA authorizes the Secretary of DHHS to issue a declaration that “a disease or other health condition or other threat to health constitutes a public health emergency.” 42 USC 247d-6d(b)(1) (2005). If such a declaration is issued, PREPA provides “a covered person” immunity from liability for “all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” Immunity “applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” If immunity applies, an injured person may be compensated “for covered injuries directly caused by the administration or use of a covered countermeasure” from the “Covered Countermeasure Process Fund.”

In 3/20 the Secretary declared “the spread of SARS-CoV-2 or a virus mutating therefrom and the resulting disease, COVID-19” a public health emergency. The Declaration defines “covered countermeasures” to include:

(a) Any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured:

I. To diagnose, mitigate, prevent, treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom;

“Administration” of covered countermeasures “extends only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security & queuing, but only insofar as those activities directly relate to the countermeasure activities.” The Declaration further provides that “whether immunity is applicable will depend on the particular facts and circumstances” and makes clear that “a liability claim alleging an injury not directly related to the countermeasure activities is not covered.”

The Estates have stated plausible claims which do not fall under PREPA. None of the claims alleges any injury as a result of administration of a covered countermeasure. While Petersen, Simons, and Guilford did contract COVID while at Canyon Creek, their claims related to Canyon Creek’s failure to care for them. As to Petersen and Simons, the Estates allege negligence for failing to provide sufficient nutrition and hydration, breaching duties owed under the Federal Nursing Home Reform Act, failing to provide adequately trained staff, and violating their right to dignity under the Montana Constitution. As to Guilford, the Estates allege negligence for failing to establish a system to prevent, identify, and control infections, failing to provide adequately trained staff, and misrepresenting that Canyon Creek was free of COVID infection. In short, the Complaint does not allege injury resulting from Canyon Creek’s administration or use of covered countermeasures; it alleges injury as a result of its inaction in providing essential care.

Canyon Creek argues that there is a “causal nexus” between the Estates’ injuries and its management of “their COVID-19 countermeasure program” including testing and use of personal protective equipment. It repeatedly points to a handful of paragraphs in the Complaint which reference countermeasures. But the paragraphs merely mention covered countermeasures, not that any injury resulted from administration of covered countermeasures. As several courts have recognized, “the mere mention of countermeasures in the complaint does not confer immunity.” Harris (ND Cal. 2022).

Canyon Creek points out, for example, that when Guilford’s representatives brought her to Canyon Creek “they observed a staff member wearing head-to-toe personal protective equipment.” But this goes to the Estates’ allegation that it misrepresented that there were no COVID cases at the facility, not to a failure to administer or use PPE. Nowhere in the Complaint do the Estates allege that its administration of PPE caused Guilford’s infection and ultimate death.

Canyon Creek also argues that the Estates “take issue with Canyon Creek’s decision to use their own COVID-19 testing and decline testing that was provided by the government.” It is true that the Complaint mentions that Canyon Creek declined the State’s free testing and that the National Guard was deployed to Canyon Creek to help provide care. However, they do not allege that Canyon Creek’s failure to test Petersen, Simons, or Guilford caused their injuries.

At most, the Complaint allegations can be construed to allege that Canyon Creek failed to employ testing. But “courts across the country” have “distinguished between malfeasance and nonfeasance and maintain that the Act is designed to protect those who employ countermeasures, not those who decline to employ them.” Walsh (ND Ill. 2022); Dupervil (ED NY 2021) (alleged failures by a nursing home to separate residents, enforce social distancing, restrict visitors, cancel group activities, ensure adequate staffing, enforce masking, and screen for COVID symptoms could not be found to be “administering or even prioritizing or purposefully allocating” a covered countermeasure under PREPA.

Nevertheless, it is possible for inaction claims to fall within PREPA. The Declaration provides: “Where there are limited Covered Countermeasures, not administering a Covered Countermeasure to one individual in order to administer it to another individual can” fall under PREPA. The example relates to a scenario where a limited countermeasure is administered to one who is more vulnerable to COVID rather than to one who is less vulnerable.

Accordingly, the great majority of courts have concluded that “there is only immunity for ‘inaction claims’ when the failure to administer a covered countermeasure to one individual has ‘a close causal relationship’ to the administration of that covered countermeasure to another individual.” Lyons (CD Calif. 2021).

Canyon Creek makes no argument to suggest that any covered countermeasure was not administered to Petersen, Simons, or Guilford because it was administered to others. In sum, none of the Estates’ claims allege that their injuries were caused by or related to Canyon Creek’s use or failure to use a covered countermeasure. Nor is it clear from the Complaint that the claims alleged are directly related to any countermeasure activity. Dismissal is thus inappropriate.

There is an exception to PREPA immunity where the injury occurs through willful misconduct, defined as “an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.” The claimant must meet certain procedural and exhaustion requirements and the action must be filed in the DC District Court. Canyon Creek argues that the Estates’ punitives claim is a willful misconduct claim under PREPA and that it must be dismissed because they did not exhaust administrative remedies and did not file in the DC District Court. It points to a paragraph in the Complaint alleging that Canyon Creek was “intentionally understaffed” and staff were not appropriately trained. The Estates also allege that it acted “in conscious or intentional disregard” or “with indifference to the high probability of injury to Petersen, Simons, and Guilford.” However, they do not claim that it acted “intentionally to achieve a wrongful purpose” as required by §247d-6d(c)(1)(A). Maglioli (3rd Cir. 2021) (allegations of “conduct that was grossly reckless, willful, and wanton” constituted “standard language for a punitive-damages request,” not sufficient to allege intent to achieve a wrongful purpose). Accordingly, dismissal of the Estates’ punitives claim should be denied.

 

 

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Judge Watters’s Order.

Canyon Creek objected to Judge Cavan’s findings & recommendations, arguing that Plaintiffs’ injuries resulted from administration of covered countermeasures under PREPA so that it is entitled to immunity and that the Court must give deference to an advisory opinion from DHHS Office of General Counsel which explains that the choice not to administer a covered countermeasure falls under PREPA and its immunity.

After a careful review of Canyon Creek’s objections and Plaintiffs’ response, the Court adopts Judge Cavan’s findings & recommendations in full. Canyon Creek is not entitled to immunity under PREPA. Its motion to dismiss is denied.

Estates of Peterson, Simons, and Guilford v. Canyon Creek, 44 MFR 293a/b, Cavan’s findings & recommendations 12/19/22, Watters’s adoption order 3/1/23.

John Heenan (Heenan & Cook), Billings, and Philip McGrady (McGrady Law), Whitefish, for the Estates; Oliver Goe & Daniel Hoven (Browning, Kaleczyc, Berry & Hoven), Helena, for Canyon Creek.

NURSING HOME MALPRACTICE: Nursing home not immune from COVID-based claims of estates of deceased patients under Public Readiness & Emergency Preparedness Act, motion to dismiss denied… Cavan/Watters.

Magistrate Cavan’s Findings & Recommendations.

This action was originally brought by the Estate of Robert Petersen in Yellowstone Co. State Court 1/18/22 against Canyon Creek Memory Care in Billings. Defendants removed to this Court invoking diversity and federal question jurisdiction and federal officer removal. Plaintiff then joined as Plaintiffs the Estates of Mary Ann Simons and Charlotte Guilford. Before the Court is Canyon Creek’s motion to dismiss.

In mid-20 Petersen, Simons, and Guilford were residents of Canyon Creek. Petersen and Guilford had dementia and Simons had complications following a stroke. The Estates allege that Canyon Creek failed to provide essential care, services, and duties owed to them which ultimately resulted in their deaths.

Plaintiffs allege that Canyon Creek failed to fulfill their duties to Petersen and Simons before and during a COVID outbreak: prior to the outbreak staff neglected him, did not regularly help him use the bathroom, groom him, bathe him, or consult with his healthcare power of attorney before changing his medications. Nonetheless, he was allegedly well-nourished, hydrated, and able to assist in daily activities. On 7/8/20 he tested positive for COVID but was asymptomatic. Plaintiffs allege that Canyon Creek was short-staffed and did not check on him regularly. He lost significant weight and eventually was unable to talk, swallow, or stand and was transported to the hospital due to fever, high heart rate, low blood pressure, and severe dehydration. Staff advised that he also suffered from confusion, deconditioning, and acute kidney injury caused by severe hydration. He also had pressure injuries to his sacrum and left hip. He died 9/18/20.

Simons tested positive for COVID 7/6 and was asymptomatic. At the request of her husband she was transported to the hospital where she was diagnosed with acute metabolic encephalopathy secondary to hypernatremia and acute kidney injury caused by severe dehydration. She also had pressure injuries to her sacrum and buttocks. She died 8/10/20.

Guilford became a Canyon Creek resident 6/30/20. On the day of her admission her representatives asked if there were COVID cases at Canyon Creek after observing a staff member in protective equipment. Staff responded that there were no COVID infections. Plaintiffs allege that had her representatives been informed that a resident had tested positive for COVID they would have removed her. Later in July they were told that she tested positive for COVID. She died from COVID complications 8/22/20.

The Estates allege (1) negligence as to Petersen and Simons, (2) negligence/negligence per se as to Petersen and Simons, (3) negligence as to Guilford, (4) negligent management, (5) negligent misrepresentation, (6) violation of the MCPA, (7) violation of the right to dignity under the Montana Constitution as to Petersen and Simons, and (8) punitives.

Canyon Creek moves to dismiss for lack of subject jurisdiction and failure to state a claim pursuant to Rules 12(b)(1) and 12(b)(6). It argues that it has immunity under the Public Readiness & Emergency Preparedness Act and thus the Court lacks jurisdiction. The Estates respond that PREPA does not provide complete immunity and argue that they have alleged sufficient facts to maintain the causes.

PREPA authorizes the Secretary of DHHS to issue a declaration that “a disease or other health condition or other threat to health constitutes a public health emergency.” 42 USC 247d-6d(b)(1) (2005). If such a declaration is issued, PREPA provides “a covered person” immunity from liability for “all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” Immunity “applies to any claim for loss that has a causal relationship with the administration to or use by an individual of a covered countermeasure.” If immunity applies, an injured person may be compensated “for covered injuries directly caused by the administration or use of a covered countermeasure” from the “Covered Countermeasure Process Fund.”

In 3/20 the Secretary declared “the spread of SARS-CoV-2 or a virus mutating therefrom and the resulting disease, COVID-19” a public health emergency. The Declaration defines “covered countermeasures” to include:

(a) Any antiviral, any drug, any biologic, any diagnostic, any other device, any respiratory protective device, or any vaccine manufactured, used, designed, developed, modified, licensed, or procured:

I. To diagnose, mitigate, prevent, treat, or cure COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom;

“Administration” of covered countermeasures “extends only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security & queuing, but only insofar as those activities directly relate to the countermeasure activities.” The Declaration further provides that “whether immunity is applicable will depend on the particular facts and circumstances” and makes clear that “a liability claim alleging an injury not directly related to the countermeasure activities is not covered.”

The Estates have stated plausible claims which do not fall under PREPA. None of the claims alleges any injury as a result of administration of a covered countermeasure. While Petersen, Simons, and Guilford did contract COVID while at Canyon Creek, their claims related to Canyon Creek’s failure to care for them. As to Petersen and Simons, the Estates allege negligence for failing to provide sufficient nutrition and hydration, breaching duties owed under the Federal Nursing Home Reform Act, failing to provide adequately trained staff, and violating their right to dignity under the Montana Constitution. As to Guilford, the Estates allege negligence for failing to establish a system to prevent, identify, and control infections, failing to provide adequately trained staff, and misrepresenting that Canyon Creek was free of COVID infection. In short, the Complaint does not allege injury resulting from Canyon Creek’s administration or use of covered countermeasures; it alleges injury as a result of its inaction in providing essential care.

Canyon Creek argues that there is a “causal nexus” between the Estates’ injuries and its management of “their COVID-19 countermeasure program” including testing and use of personal protective equipment. It repeatedly points to a handful of paragraphs in the Complaint which reference countermeasures. But the paragraphs merely mention covered countermeasures, not that any injury resulted from administration of covered countermeasures. As several courts have recognized, “the mere mention of countermeasures in the complaint does not confer immunity.” Harris (ND Cal. 2022).

Canyon Creek points out, for example, that when Guilford’s representatives brought her to Canyon Creek “they observed a staff member wearing head-to-toe personal protective equipment.” But this goes to the Estates’ allegation that it misrepresented that there were no COVID cases at the facility, not to a failure to administer or use PPE. Nowhere in the Complaint do the Estates allege that its administration of PPE caused Guilford’s infection and ultimate death.

Canyon Creek also argues that the Estates “take issue with Canyon Creek’s decision to use their own COVID-19 testing and decline testing that was provided by the government.” It is true that the Complaint mentions that Canyon Creek declined the State’s free testing and that the National Guard was deployed to Canyon Creek to help provide care. However, they do not allege that Canyon Creek’s failure to test Petersen, Simons, or Guilford caused their injuries.

At most, the Complaint allegations can be construed to allege that Canyon Creek failed to employ testing. But “courts across the country” have “distinguished between malfeasance and nonfeasance and maintain that the Act is designed to protect those who employ countermeasures, not those who decline to employ them.” Walsh (ND Ill. 2022); Dupervil (ED NY 2021) (alleged failures by a nursing home to separate residents, enforce social distancing, restrict visitors, cancel group activities, ensure adequate staffing, enforce masking, and screen for COVID symptoms could not be found to be “administering or even prioritizing or purposefully allocating” a covered countermeasure under PREPA.

Nevertheless, it is possible for inaction claims to fall within PREPA. The Declaration provides: “Where there are limited Covered Countermeasures, not administering a Covered Countermeasure to one individual in order to administer it to another individual can” fall under PREPA. The example relates to a scenario where a limited countermeasure is administered to one who is more vulnerable to COVID rather than to one who is less vulnerable.

Accordingly, the great majority of courts have concluded that “there is only immunity for ‘inaction claims’ when the failure to administer a covered countermeasure to one individual has ‘a close causal relationship’ to the administration of that covered countermeasure to another individual.” Lyons (CD Calif. 2021).

Canyon Creek makes no argument to suggest that any covered countermeasure was not administered to Petersen, Simons, or Guilford because it was administered to others. In sum, none of the Estates’ claims allege that their injuries were caused by or related to Canyon Creek’s use or failure to use a covered countermeasure. Nor is it clear from the Complaint that the claims alleged are directly related to any countermeasure activity. Dismissal is thus inappropriate.

There is an exception to PREPA immunity where the injury occurs through willful misconduct, defined as “an act or omission that is taken (i) intentionally to achieve a wrongful purpose; (ii) knowingly without legal or factual justification; and (iii) in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.” The claimant must meet certain procedural and exhaustion requirements and the action must be filed in the DC District Court. Canyon Creek argues that the Estates’ punitives claim is a willful misconduct claim under PREPA and that it must be dismissed because they did not exhaust administrative remedies and did not file in the DC District Court. It points to a paragraph in the Complaint alleging that Canyon Creek was “intentionally understaffed” and staff were not appropriately trained. The Estates also allege that it acted “in conscious or intentional disregard” or “with indifference to the high probability of injury to Petersen, Simons, and Guilford.” However, they do not claim that it acted “intentionally to achieve a wrongful purpose” as required by §247d-6d(c)(1)(A). Maglioli (3rd Cir. 2021) (allegations of “conduct that was grossly reckless, willful, and wanton” constituted “standard language for a punitive-damages request,” not sufficient to allege intent to achieve a wrongful purpose). Accordingly, dismissal of the Estates’ punitives claim should be denied.

 

 

– – – 

 

Judge Watters’s Order.

Canyon Creek objected to Judge Cavan’s findings & recommendations, arguing that Plaintiffs’ injuries resulted from administration of covered countermeasures under PREPA so that it is entitled to immunity and that the Court must give deference to an advisory opinion from DHHS Office of General Counsel which explains that the choice not to administer a covered countermeasure falls under PREPA and its immunity.

After a careful review of Canyon Creek’s objections and Plaintiffs’ response, the Court adopts Judge Cavan’s findings & recommendations in full. Canyon Creek is not entitled to immunity under PREPA. Its motion to dismiss is denied.

Estates of Peterson, Simons, and Guilford v. Canyon Creek, 44 MFR 293a/b, Cavan’s findings & recommendations 12/19/22, Watters’s adoption order 3/1/23.

John Heenan (Heenan & Cook), Billings, and Philip McGrady (McGrady Law), Whitefish, for the Estates; Oliver Goe & Daniel Hoven (Browning, Kaleczyc, Berry & Hoven), Helena, for Canyon Creek.

DEPOSITION rulings in tax lien case involving pro se Defendants, email notices, telephonic and in-person depositions, improper service by US, objections to questions… Defendants order to attend in-person depositions at Federal Courthouse, pay travel expenses of one US attorney and costs of stenographer… mitigating facts preclude US’ request for default… Molloy.

The US filed this action 4/20/21 pursuant to 26 USC 7401 & 7403 seeking a tax lien against property owned by Thomas Millett and Michelle McLaughlin in Flathead Co. On 7/21/22 the US sent Millett interrogatories, RFAs, and RFPs. Millett responded 8/22 with nonresponsive answers to many inquiries and objecting on various grounds including 1st and 5th Amendment. On 11/30/22 Defendants produced their untimely initial disclosures.

On 9/1/22 the US emailed Defendants at simplytom65@yahoo.com — the registered email address for both — to schedule depositions, suggesting October 11 & 12 in Missoula. Millett responded that they were unavailable on those dates and Missoula was unacceptable. He proposed a single day at a hotel in Kalispell 10/13, 10/14, 11/9, or “around Christmas.” The US responded that 2 depositions on separate days were required and suggesting the December date. Millett responded that they would be available by telephone 12/22 and 12/23. The US insisted on in-person depositions at least in part because of the voluminous exhibits. Millett replied accusing the US of bad faith and reiterating that Defendants would only be available for 1 day of depositions. The US responded that as noticing party it got to choose the manner, time, and location of depositions and they would proceed 12/22. It sent a deposition notice reflecting those days to simplytom65@yahoo.com. Millett acknowledged receipt and requested reimbursement details.

On 12/18 counsel for the US tested positive for COVID. She emailed Defendants informing them and stating that the deposition would need to be rescheduled. Millett replied indicating that he and McLaughlin would be available 1/4 and 1/5 in Missoula. The US re-noticed the depositions for 1/4 for Millett and 1/5 for McLaughlin.

On 1/2/23 co-counsel for the US De Palma arrived in Missoula after having traveled to Bozeman prior to the holidays. On 1/3 US counsel Bissell flew out of DC to Missoula but her flight was delayed and she was stuck in Minneapolis. At 8:06 a.m. 1/4 the US received an email from Millett:

I regret to inform you that I cannot attend today’s deposition in-person due to experiencing some minor flu-like symptoms. However, I am ready, willing and looking forward to being deposed today (Wed Jan 4) beginning at 9am over the telephone. Due to the obvious inconvenience to you this will cause I will waive the 7 hour time limit per deposition day in order for you to ask all of your questions and if needed, will make myself available to finish up my deposition on Thurs Jan 5 before or after Ms. McLaughlin is deposed. Unfortunately, I will not be available to be deposed on Friday Jan 6 due to having to travel out of the state of Montana on that day and will not return until approximately March 1. A copy of the airline ticket can be provided upon request.

Beneath Millett’s note McLaughlin wrote:

This is Michelle McLaughlin. I also regret to inform you that I will not be attending my deposition tomorrow (Jan 5) in-person due to having a minor heart condition that is flaring up due to the stress that this deposition is causing. I will make myself available to be deposed tomorrow, Jan 5, my scheduled day, beginning at 9am by telephone. I will not be available to be deposed after Jan 5 due to previously scheduled appointments on Jan 6 and Jan 9 as well as travelling out of the state beginning Jan 10 and not returning to Montana for 6 weeks. If you would like a copy of my airline ticket I will provide it if asked.

The US responded that because it had been “given no other choice at this last minute” the depositions would be conducted electronically but would need to be completed in person later. Defendants thanked the US’ counsel for her understanding and clarified how the electronic exhibits would be shared, and also forwarded their heavily redacted airline receipts.

Millett’s telephonic deposition commenced at 9 a.m. 1/4/23. While De Palma was present in person in Missoula and prepared to complete the deposition, Bissell — stuck in Minnesota due to weather — ultimately deposed Millett over the phone. Although that deposition lasted over 2 hours the US indicates that a number of Millett’s answers were unresponsive or evasive. During the first half he refused to answer many inquiries on relevancy grounds including his travel plans, where he was born, where he grew up, where a previous job was located, and who he currently works with. He also invoked attorney-client privilege — despite proceeding pro se — when asked if he spoke to anyone in preparing for the deposition. He further objected to whether he filed federal tax returns in 2004 “as the question violates my 5th Amendment right including but not limited to being compelled to be a witness against myself as an answer may be used to criminally prosecute me.” He raised that same objection when asked about filing tax returns in 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2012. The US informed him that an adverse inference could be drawn from his invocation of the 5th. Nevertheless he invoked it at least once more.

2 hours into the deposition the US determined that it was necessary to contact the Judge because deponents “typically have to answer questions when they’re asked.” Bissell was told to file a Rule 37 motion if necessary. When the deposition resumed Millett stated:

So the reason I am objecting to some of these questions is I truly believe that some of them are irrelevant, however, from my understanding of depositions, I can object, but for the most part, I have to answer the questions; would you agree with that? [US generally agrees.] So what I will do is — see, I do not want to relinquish my right to object, even at a later date, that’s why I’m objecting. What I will do is, if I feel that it is — that I can object, I will object, but I will answer the question for you; is that satisfactory to you? Because that way I feel that I retain my right to object at a later date. Is that OK?

The US responded that “that is the standard and the law” but it “will still be filing a motion under Rule 37.” To Millett’s credit, thereafter when he objected to a question he answered it and did not invoke the 5th. The deposition was left open to allow for a future in-person deposition with exhibits.

At 10:21 p.m. the night before her 1/5 deposition McLaughlin emailed the US:

First. I want it to be known that Mr. Millett can not speak for me and does not speak for me. When he accepted the change in deposition date from December 22 to January 5 due to you getting sick with covid I did not authorize him to do that for me. In fact, I believe he is prohibited from doing that for me, making decisions for me and speaking for me.

Second. Since I never agreed to any change in deposition date and was not properly served the notice I consider the January 5 deposition date to be invalid and will not be attending. Also since there is a motion on the table for dismissal of this suit I don’t want to waste my time or yours on a deposition when I believe the motion will be granted and my deposition will not be needed.

Third. From now on please send all notices, requests and other communication that is for me to this e-mail address . . . ellehcim111@gmail.com. You may consider this my ‘in writing’ consent to be served by e-mail.

This was the first email the US received from ellehcim111@gmail.com. It responded the next morning that the deposition would proceed as scheduled. It opened at 9 a.m. and adjourned at 9:25 after unsuccessful efforts to contact McLaughlin by phone.

On 1/6 the US moved to extend the discovery deadline because the in-person depositions needed to be completed and Defendants were traveling for the next month. The deadline was continued to 3/6.

On 1/13 the Court granted Defendants’ motion for judgment on the pleadings insofar as McLaughlin retains a half-interest in the real property in light of her joint tenancy when it was acquired. That ruling did not prevent the US from proceeding on its claims related to Millett’s alleged half-interest.

On 2/9 the US moved to continue the remaining trial deadlines commensurate with the extended discovery deadline. That request was granted and trial is now set for 5/17/23 with discovery to close 3/10 and motions due 4/6. Also on 2/9 the US moved for sanctions under Rules 30 & 37 on the grounds that Millett refused to be deposed in person and provided nonresponsive and evasive responses during his telephonic deposition and McLaughlin refused to be deposed at all. A hearing was held 3/3/23 in Missoula. Millett and McLaughlin were present and Bissell appeared for the US.

The US argues that since discovery opened Defendants have attempted to evade and obscure the process, warranting default judgment or an order compelling them to attend in-person depositions and for fees & costs for not attending their in-person deposition in January. Defendants respond that they were not properly served with a deposition notice, the partial granting of their motion for judgment on the pleadings has narrowed the scope of discovery making the US’ discovery requests no longer proportional, and a deponent is not subject to the identified sanctions for failing to respond to questions during a deposition. As with most discovery disputes, the answer is provided by the Rules of Civil Procedure which must be read collectively and with the goal of “securing the just, speedy, and inexpensive determination of every action and proceeding.” Rule 1.

Defendants insist that they were not properly served with the deposition notice because they did not consent to electronic service “in writing” as required by Rule 5(b)(2)(E). They are correct as it relates to McLaughlin. Rule 5 allows service “by other electronic means that the person consented to in writing.” An advisory committee note states that the written consent “must be express, and cannot be implied from conduct.”

There are 3 potential sources of written consent. The 1st is Defendants’ “Pro Se Requests for Leave to File by E-mail” and the “Agreements to Allow Pro Se Party to File by E-Mail.” However, these forms only address their ability to file documents electronically, not their receipt of such documents. The 2nd source is the “Pro Se Registration Form For The Electronic Case Filing System (CM/ECF)” forms executed 6/5/22. They state that “by registering for electronic service, you waive your right to receive notice of documents by first class mail. See Federal Rule of Civil Procedure 5(b)(2)(E).” However, that disclosure further states: “Instead, you will be sent a Notice of Electronic Filing via email.” This consent is therefore limited to service related to documents filed in the docket as the form states that the individual is registered “to file documents electronically and receive service of documents and notice of electronic filings sent to my email via the Court’s electronic filing system (CM/ECF).” Neither consent form conveys generalized consent to electronic service.

However, the US provides with its reply brief an email dated 7/21/22 wherein it asked Millett if he would accept service of discovery requests by email and he responded, “Service by e-mail is fine.” His contention that he agreed to only receive a single discovery request via email is unpersuasive. While consent cannot be implied from the mere prior use of email to communicate during discovery, this express written statement is sufficient for Millett to have agreed to electronic service consistent with 5(b)(2)(E). This does not extend to McLaughlin, as one pro se party cannot represent another.

Even so, both Millett’s and McLaughlin’s failure to timely object constitutes waiver of the US’ defective service. While McLaughlin ultimately did challenge proper notice in her 11th-hour email, she did so after already agreeing to appear via phone and after US counsel made arrangements for the deposition and traveled to Missoula. Thus Defendants’ challenges to their deposition notices lack merit. Nevertheless, that McLaughlin was not properly served bears on what sanctions are appropriate.

Defendants argue that discovery must be proportional to the needs of a case and the US’ motion ignores that the Court has since ruled that McLaughlin owns an independent half-interest in the real property. However, the US has the right to engage in discovery, which covers “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Rule 26(b)(1). Obtaining the deposition testimony of the 2 Defendants is undeniably within the scope of appropriate discovery. Even though McLaughlin maintains a separate interest, the allegation of Millett’s fraudulent conveyance of his interest and McLaughlin’s nominee status remain at issue. Notably, however, the US stated at the 3/3 motion hearing that it is seeking foreclosure. Such relief has not been pled and the deadline for amended pleadings has long since passed.

Millett argues that Rule 37 does not allow for sanctions for failing to respond to questions during a deposition until after a judge has ordered a deponent to answer. He is both right and wrong. While the broad sanctions available under 37(b) & (d) are not available prior to an order if a party attends his deposition, 37(a) permits the deposing party to seek an order compelling a deponent to respond and requires that if such an order is issued a court must award expenses to the movant unless “the opposing party’s nondisclosure, response, or objection was substantially justified” or “other circumstances make an award of expenses unjust.” Rule 37(a)(5)(A)(ii), (iii); see 37(a)(5)(C) (the court may award such expenses if the motion is granted in part and denied in part). Thus while the more severe sanctions under 37(b) & (d) are not available, 37(a) sanctions are. Estrada (9th Cir. 1995) (when a pro se attended his deposition but refused to testify “the proper remedy is a court order to testify under Rule 37(a), and not dismissal under Rule 37(b)(2)(C)”).

The US insists that “a party’s refusal to engage in discovery and answer questions during a deposition is sanctionable.” While correct, it ignores the nuance discussed above. Millett attended his deposition — albeit telephonically — and consistently refused to answer questions based on his assessment that they were not relevant. Thus his conduct falls under Rule 37(a). The next question is whether it violated the Rules. It did. “An objection at the time of the examination — whether to the evidence, to the party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition — must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection.” Rule 30(c)(2). Millett undisputedly violated this rule. Thus a sanction is warranted. He is compelled to attend an in-person deposition and respond to the US’ inquiries as provided in the Rules. Moreover, because his violation was not “substantially unjustified” nor do “other circumstances make an award of expenses unjust,” he is also required to pay the US’ expenses — exclusive of attorney fees — associated with the 1/4 deposition. These expenses include travel costs of one attorney as the other was delayed prior to arriving in person and the cost of the stenographer. He is warned that if he fails to comply with the Rules following this order he will be subject to the more severe sanctions available under 37(b) or (d).

McLaughlin’s 11-hour reasons for failing to appear for her deposition were consistent with Defendants’ repeated attempts to impede this suit. Such defiance represents more than a marginal failure to comply with the discovery rules and thus sanctions are warranted under Rule 37(d)(3). Nonetheless, default judgment — as requested by the US — is an extreme remedy and there are mitigating facts. For example, her statements at the 3/3 hearing indicate that certain representations may have been made by Millett on her behalf and without her knowledge. Moreover, while there are facts that support waiver, the impropriety of the notice cannot simply be set aside, especially when a lesser sanction is available. That is the proper remedy. She is cautioned that failure to comply with the Rules following this Order will subject her to the more severe sanctions under Rule 37(b) or (d).

Defendants are compelled to attend in-person depositions 3/6 and 3/7 at the Federal Courthouse in Missoula. Millett is ordered to pay the US’ expenses exclusive of attorney fees associated with his 1/4 deposition including travel of one attorney and costs of the stenographer. The discovery deadline is extended to 3/10/23.

US v. Millett and McLaughlin, 44 MFR 292, 3/3/23.

Thomas Millett and Michelle McLaughlin, Marion, pro se; Chelsea Bissell & Lolita De Palma (DOJ Tax Division), DC.

OFFICERS’ SHOOTING: Summary judgment for County & Deputies rejected over claim of sham affidavit testimony that Plaintiff was pointing gun at ground when he opened door to unknown persons on porch in dark who shot him and claims of qualified immunity… case settled following ruling for $525,000… DeSoto/Watters.

Yellowstone Co. Deputies Tyler Sennett and Brandon Trujillo responded to a call from a third party seeking a welfare check at Travis Tolan’s home. They arrived in the predawn darkness with no lights or sirens and went onto his porch and shined a flashlight through the window. Tolan heard the noise and saw the lights and because he had been the victim of a burglary, feared that his home was being broken into. He retrieved his pistol and walked toward the door and called out “Hello.” The Deputies did not respond. He then turned on the porch light and still the Deputies said nothing. He then opened the door and when they saw him holding a gun, shot him through the chest. He incurred $235,000 medical expenses and was hospitalized for 16 days. According to his attorney, by all accounts he is lucky to be alive.

Tolan sued the County and Deputies. Magistrate DeSoto recommended denying the parties’ summary judgment motions. Defendants objected. Judge Watters, following de novo review, adopted DeSoto’s findings & recommendations in full:

Defendants first object to Judge DeSoto’s rejection of their argument that Tolan’s affidavit — in which he stated that his gun was pointed at the ground — is a sham affidavit and should be disregarded. The sham affidavit rule prohibits a party from creating an issue of fact by submitting an affidavit that contradicts his deposition testimony. It is intended to preserve the value of summary judgment by preventing parties from fabricating issues of material fact. However, the 9th Circuit advises that it “‘should be applied with caution’ because it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment.” Yeager (9th Cir. 2012); ACandS (9th Cir. 1993).

The “inconsistency between a party’s deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit.” Van Asdale (9th Cir. 2009). An affidavit cannot “flatly contradict” prior testimony. Id. For instance, Cole (ED Cal 2022) found a contradiction when a slip & fall plaintiff repeatedly said in her deposition that she did not recall seeing anything wet on the floor but later said in her affidavit that she felt herself slip on a wet substance on the floor. The Court emphasized that she was explicitly asked in her deposition about the condition on the floor and whether she thought it was wet.

However, an affidavit can elaborate upon, explain, or clarify testimony without creating a contradiction. Van Asdale. In Walden (D.Mont. 2017), a plaintiff alleging sexual harassment described in her deposition and affidavit different ways her emotional distress manifested. In her deposition she described that she “couldn’t handle” the stress but did not have difficulty sleeping or eating or stomach problems and did not know if she experienced nausea, tension, or anxiety. In her affidavit she said she experienced panic attacks, shaking in her hands and arms, and perfuse perspiration. Judge Christensen found that her affidavit merely elaborated on her testimony, particularly counsel did not specifically ask during her deposition how her stress physically manifested and the vagueness of the question justified her failure to explain her physical symptoms in the first instance.

A court can disregard a contradictory affidavit when it contains facts that the affiant testified he could not remember. Yeager. Yeager did not recall answers to 185 questions in his deposition — including ones about difficult-to-forget events like his involvement in a plane crash — despite being shown numerous exhibits to refresh his recollection. 3 months later he filed a declaration that contained answers to the questions he could not recall. His only explanation was that he reviewed certain documents that triggered his memory. The 9th Circuit affirmed the District Court’s finding that “the disparity between the affidavit and deposition is so extreme” that Yeager’s testimony was contradictory and his explanation for remembering the facts was weak. It found the affidavit to be a sham and disregarded the declaration.

Defendants argue that Tolan’s deposition and affidavit contradict each other because he did not recall his gun’s position during his deposition yet described its position in his affidavit and provided no explanation for his recollection. Tolan responds that he was never asked about the position of his gun during his deposition and thus his description of its position in his affidavit was merely supplemental information.

Tolan’s deposition and affidavit do not clearly & unambiguously contradict because he did not say anything in his deposition about the position of his gun. His comments in his affidavit about the position of his gun merely elaborated on his deposition testimony, as in Walden. Had he stated in his deposition that he pointed his gun in a direction other than at the ground or was asked specifically about his gun upon opening the door and omitted the information, then a clear & ambiguous contradiction as in Cole would exist.

Further, Tolan never stated that he could not remember the position of his gun. In his deposition:

Q. What do you remember about answering the door?

A. I remember answering it, I remember saying “hello,” and then I remember 4 shots fired, I remember grabbing my stomach, closing the door, walking into my house, grabbing my stomach and then laying on the ground.

He was then asked if the police entered the house. The only questions about the gun were whether he had it when he opened the door, what hand it was in, and whether that was his dominant or non-dominant hand. He was asked an open-ended, vague question about what happened after he encountered Sennett and Trujillo. Failing to respond to that question with the position of the gun is an honest discrepancy given the framing of the question, which justifies his elaboration in his affidavit. His affidavit is not a sham and the Court will consider it in determining the remaining issues.

Defendants next object to Judge DeSoto’s denial of qualified immunity. They primarily argue that there is no genuine dispute of material fact as to the position of Tolan’s gun — that he was raising it at the Deputies — and that his action created an immediate threat that justified deadly force. This objection is improper because it merely rehashes arguments presented to Judge DeSoto. Additionally, it is contingent on the Court’s finding that Tolan’s affidavit should be disregarded as a sham. Since it is not a sham and creates a material issue of fact, Defendants’ objection based on the dispute over the position of his pistol fails.

Judge Desoto correctly noted that where one points a gun in the officers’ direction, the officers are “undoubtedly entitled to respond with deadly force.” George (9th Cir. 2013). Additionally, one’s furtive movement, harrowing gesture, or serious verbal threat may give rise to an immediate threat. Id. However, merely possessing a deadly weapon does not render an officer’s response per se reasonable and entitle him to qualified immunity. Id.

As in Lopez (9th Cir. 2017) and George, a genuine dispute exists as to the position of Tolan’s gun and whether the position created an immediate threat to the Deputies. Reading the facts in a light most favorable to him, his gun was pointed at the ground. Assuming this is true, the Deputies’ conduct would be unjustified because he presented no immediate threat.

Even if the Court considered the Deputies’ statements as the undisputed version it still could not find summary judgment for them based on Lopez. Both statements lack the specificity with respect to the position of Tolan’s gun that is necessary to find that he undisputedly posed an immediate threat. As in Lopez, the Deputies never allege that he pointed his gun at them and instead “use carefully-phrased language,” Lopez, that he began to raise or began to swing his gun at them.

The Court is left with the Deputies’ statements that they feared for their safety before they shot Tolan, since they did not describe another furtive movement, harrowing gesture, or serious verbal threat to justify use of force. George. Such statements on their own are not enough to justify such a concern. Deorle (9th Cir. 2001). This is particularly so given that the Deputies were responding to a welfare check, not a report of a crime or domestic disturbance, George, and that they did not warn Tolan to drop his weapon, let alone of their identity as law enforcement, Hughes (9th Cir. 2016). Accordingly, the Court finds no clear error with Judge DeSoto’s findings & recommendations on this issue.

Defendants assert that Judge DeSoto erroneously ignored the mistake doctrine in her qualified immunity analysis. They contend that even if the Deputies mistakenly believed that Tolan raised the pistol, their belief was reasonable. She did not address the mistake doctrine even though Defendants raised it in their briefing, so the Court will review this argument de novo.

The mistake must be reasonable. Pearson (US 2009). Lopez rejected an officer’s invocation of the mistake doctrine relating to the position of the plaintiff’s gun and his perception of a threat because, viewing the facts in a light most favorable to the plaintiff, the gun never rose to a position that posed a threat. The Court concludes the same here based on its holding that a genuine dispute exists as to the position of Tolan’s gun and the reasonableness of the Deputies’ use of force. The mistake doctrine does not save their argument that the use of force was reasonable. The Court finds no clear error with Judge DeSoto’s findings that a genuine dispute of fact exists as to whether the Deputies are entitled to qualified immunity.

Judge Desoto’s findings & recommendations are adopted in full. Defendants’ motions for summary judgment are denied.

(Following this ruling the parties mediated with CJ Johnson who made a double-blind recommendation of $525,000 which was accepted by both sides.)

Tolan v. Yellowstone Co. et al, 44 MFR 291, 11/22/22.

Nathan Wagner (Siefert & Wagner), Missoula, for Tolan; Dep. Yellowstone Co. Attys. Melissa Williams & Mark English.

VACCINATION ANTI-DISCRIMINATION: HB 702 permanently enjoined as unconstitutional and preempted by federal law as applied in healthcare settings… Molloy.

No party questions the authority of the Montana Legislature and Governor to exercise their authority to enact or modify public health and anti-discrimination laws. The challenge in this case stems from an ostensibly purposed anti-discrimination statute — HB 702 (2021) — and its incongruent impact on healthcare providers and patients, hospitals, nursing homes, doctors’ offices, immunocompromised individuals, and health care workers. The legislation was enacted when political and individual concerns came to light around 12/20 during a worldwide health crisis that caused millions of deaths, inundation of hospital beds, exhausted and depleted equipment, and the need to deal with a remarkably lethal pathogen identified as COVID-19. Federal, state, and local governments took steps to try to minimize and thwart the consequences of the pandemic. Individuals of different persuasions or views objected to COVID-19 vaccinations because they had been developed on seemingly short timelines or for religious or other reasons including being against any vaccination. Some objected to COVID-19 vaccination mandates and other recommended steps to minimize the terror of the pandemic including business restrictions and imposed precautions affecting individuals.

It was in this environment that HB 702 was enacted. Whether by intent or by oversight it did not deal specifically with COVID-19 but encompassed all vaccines. Its scope & breadth caused critical concerns for healthcare providers by limiting their ability to know the vaccination status of patients and employees. It preemptively precludes providers and other employers from knowing the vaccination status of employees or patients if the employee or patient refuses to answer any inquiry about vaccination or immunity passports. The statutes allow a question but no one must answer. That situation creates untoward problems for providers of any description in trying to protect the environment where services to patients are rendered and to prevent the spread of diseases.

The striking irony for the Court stems from an acknowledgment of the role of Dr. Maurice Hilleman in the history of the development and efficacy of vaccines. He is known as the “Father of Modern Vaccines.” The irony is that he was born in Miles City, graduated from Montana State College in 1975, and was the most prolific vaccine scientist of the 20th Century. He is estimated to have saved more lives through vaccines he invented than any other medical scientist. Among the many he developed are hepatitis A and B, Hemophilus influenza type B pneumococcus, meningococcus, and Varicella (chicken pox) and he was the first to combine viral vaccines when he created the MMR vaccine for measles, mumps, and rubella. The importance and efficacy of vaccines is clear if only from his accomplishments; his measles vaccine alone is credited with preventing almost a million deaths.

Following a hearing 3/18/11 a preliminary injunction was granted against enforcement of §312. Plaintiffs seek a permanent injunction against Defendants from enforcing §312 in healthcare settings on the grounds that it is preempted by ADA, OSHA, and CMMS regulations, unconstitutional under the equal protection clauses of the Montana and US constitutions, and unconstitutional under the inalienable rights section of the Montana Constitution.

A 3-day bench trial was held to determine whether MCA 49-2-312 & 313 offend the Supremacy Clause or federal and state constitutional principles of equal protection or protection of inalienable rights. (Because §313’s sole purpose is to except certain health care settings from the protections of §312, a reference to §312 assumes discussion of both sections.) Having heard or read all the evidence, I find that §49-2-312 is unconstitutional and is preempted by federal law.

§49-2-312 was not enacted exactly as drafted. Gov. Gianforte’s lawfully exercised amendatory veto creates the constitutional problem. The Legislature passed HB 702 and transmitted it to the Governor 4/28/21. He returned an amendatory veto the same day stating that “no person should be compelled to involuntarily divulge their personal health information as a condition of participating in everyday life” and that his amendments would ensure that the bill would not put licensed nursing homes, long-term care facilities, or assisted living facilities in violation of Centers for Medicare and Medicaid Services regulations and healthcare facilities would not violate the bill by asking employees about their vaccination status for the purpose of providing an accommodation to protect the safety of unvaccinated or nonimmune individuals. The Legislature incorporated his amendments and returned HB 702 for his signature.

Defendants argue that the Legislature, exercising its “police power,” can authoritatively classify §49-2-312 as an anti-discrimination law. It is codified within “Prohibited Discriminatory Practices” of the Human Rights Title, Title 49. Despite this stated purpose, it restricts management in healthcare settings from establishing vaccination status to assist with setting workplace policies or vaccination requirements regarding any vaccine-preventable disease. It also severely limits healthcare settings’ ability to prevent or minimize the risk of spreading preventable infection during current or a future mass-infection or pandemic health crisis.

Plaintiffs proved that vaccinations have been and continue to be a critical tool in the public health “toolbox” when creating a safe and effective healthcare environment. Vaccines approved by the FDA under emergency authorization or traditional approval processes are deemed scientifically safe & effective. Even so, resolution of this case does not turn on whether vaccines are safe and effective, but whether §312 is preempted by federal law or is unconstitutional. It is in both instances.

Defendants argued one specific issue or defense at trial — that Plaintiffs lack standing to bring these claims. Because Plaintiffs have standing and §312 is both preempted by federal law and violates the Montana and US Constitutions, they are entitled to permanent injunctive relief against enforcement of §312 in healthcare settings. Defendants are further enjoined from enforcing the law as it relates to the COVID-19 vaccine against all healthcare facilities and individual practitioners and clinics subject to the CMMS Interim final rule so long as that rule remains in effect.

MMA et al v. AG Knudsen and Labor & Industry Commissioner Esau, 44 MFR 290, 12/9/22.

Justin Cole & Kathryn Mahe (Garlington, Lohn & Robinson), Missoula, for Plaintiffs; Raphael Graybill (Graybill Law Firm), Great Falls, for Plaintiff Intervenor Montana Nurses Association; Brent Mead, Christian Corrigan, and Michael Russell (Montana DOJ), and Emily Jones (Jones Law Firm), Billings, for Defendants.