SSD: ALJ Marchioro failed to properly evaluate Clinical Social Worker’s medical opinions under new regulations, remanded to determine whether Claimant is disabled… Johnston.

Patricia Keele is 53. She earned a GED in 1990. She has experience as a ballistic tech, assistant to disabled individuals, cashier, and hotel front desk clerk. She alleges that she became disabled 11/1/17 due to COPD, PTSD, depression, and anxiety. ALJ Stephen Marchioro determined following a hearing 4/16/20 that she had the severe impairments of COPD, PTSD, depression and anxiety but that she was not disabled because she had the RFC to perform her past work as a hand packager with Remmington Arms as well as jobs that existed in significant numbers in the national economy such as dining room attendant, store laborer, sandwich maker, mail clerk, collator operator, and routing clerk. The Appeals Council denied her request for review. She appeals, arguing that Marchioro failed to properly evaluate and credit Clinical Social Worker Christine Nicklay’s opinions in accordance with SSA’s new regulations.

Nicklay works at Western Montana Mental Health Center. She provided mental treatment to Keele for 17 months through 1/26/20. She assessed Keele’s basic mental functioning 10/16/19, filing out a Medical Source Statement in which she checked boxes indicating that Keele had “marked” limitations in her ability to understand and remember, “marked to extreme” limitations in her ability to concentrate, “moderate to extreme” limitations in her ability to tolerate social interaction, and “extreme limitations” in her ability to tolerate stress and adapt to changes in the work setting. She also assessed Keele’s ability to complete an 8-hour work day and 40-hour work week. She checked boxes indicating that her mental impairments would cause her to be off-task 60% of the work day and be unable to complete a regular 40-hour work week on a regular basis without missing more than 2 days per month because “loud noises, specific smells, and unfamiliar people” cause her to “experience dissociative symptoms.” Marchioro discounted her opinions.

Keele applied for SS after 3/27/17 and Marchioro was therefore required to apply the new SS regulations when he evaluated Nicklay’s opinions. They require an ALJ to consider and evaluate the persuasiveness of all medical opinions based on some or all of these factors:

1. Supportability of the opinion.

2. Consistency of the opinion.

3. The medical source’s relationship with the claimant (including length of the treatment, frequency of examinations, purpose of the treatment, extent of the treatment, and existence of examinations.

4. The medical source’s specialization.

5. The medical source’s familiarity with other evidence in the record.

6. The medical source’s familiarity with SSD requirements.

Supportability and consistency are the most important factors. 20 CFR 404.1520c(b)(2). An ALJ must consider & discuss the supportability and consistency factors in every case. Id. He is required to consider the other factors only if he is presented with contradictory but equally persuasive medical opinions on the same issue. Id.

The supportability factor looks inward at the medical evidence presented by the medical source in support of his or her opinions. A medical opinion that is supported by significant relevant medical evidence is more persuasive and a medical opinion that is not supported by relevant medical evidence. 404.1520c(c)(1).

The consistency factor looks outward. It compares the medical source’s opinion to other medical and non-medical evidence in the record. A medical opinion that is consistent with the other medical and non-medical evidence is more persuasive than a medical opinion that is not consistent with the other medical and non-medical evidence. 404.1520c(c)(2). The ALJ must explain how he considered the supportability and consistency factors and must support his analysis with substantial evidence. Machelle H. (D.Idaho 2021).

Marchioro failed to properly address the supportability factor. He concluded that Nicklay’s opinions were unsupported because they were “rendered on a pre-printed check box form.” Opinions by a health care provider on a pre-printed form may be entitled to substantial weight if they are supported by the provider’s treatment notes. Belinda K. (D.Mont. 2022); Talbott (D.Ariz. 2020) (citing Garrison (9th Cir. 2014). The record contains a significant number of treatment notes from Nicklay during that period 8/9/18 through 1/26/20. Marchioro failed to explain why her opinions were inconsistent with her own treatment notes. His failure to support his reasoning with substantial evidence was legal error. Belinda K. (citing Embrey (9th Cir. 1988).

Marchioro also failed to apply the consistency factor to all of Nicklay’s opinions. She opined that Keele’s impairments would cause her to be off-task 60% of an average work day and be absent from work more than 2 days per month. Marchioro made no attempt to explain why these opinions were inconsistent with the other medical and non-medical evidence and rejected them without citing any inconsistent evidence. His failure to support his reasoning with substantial evidence was legal error. Belinda K.

Marchioro’s error was not harmless. The vocational expert testified that Keele would be unable to sustain employment if she was “off-task more than about 10% of the work day in addition to normal work breaks” or absent from work more than “one to two days per month on a regular basis.”

“Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke (9th Cir. 2004). Remand for an award of benefits is appropriate only where there are no outstanding issues that must be resolved before a determination of disability can be made, and it is clear from the record that the ALJ would be required to find the claimant disabled if the ALJ had properly considered all of the evidence in the record. Dominguez (9th Cir. 2015).

There are outstanding issues to be resolved. It is not clear whether Keele is disabled. Remand for further proceedings is appropriate. On remand, the ALJ should consider and discuss whether Nicklay’s opinions are supported by her treatment notes and whether they are consistent with the other medical and non-medical evidence in the record.

Keele v. SSA, 44 MFR 273, 2/28/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, and Olinsky Law Group for Keele; Special AUSA Heidi Triesch.

WILDFIRE LIABILITY: Negligence/intentional tort claims by landowners relating to FS’ communication decisions (or lack thereof) as to firing operations precluded by FTCA discretionary function exception… FS also had the legal right to conduct firing operations on out-of-state owner’s non-residential property, it did not intend for fire to travel or remain (trespass) on the properties, any emotional distress Plaintiffs suffered not “serious or severe”… Molloy.

This action involves 8 consolidated cases arising out of the 2017 Lolo Fire. Plaintiffs are Michelle & Daniel Schurg, Beccie & Chad Miller, Jackie Lowe, Maureen & Larry Ernst, Joleen & Ronnie Harvie, Mark Stermitz, Michelle Stermitz, and Brian O’Grady. All except O’Grady had a house on their property. Plaintiffs make claims sounding in intentional tort and negligence against the US. The law on which they relied when the case was filed was clarified in Esquivel (9th Cir. 2021) in a way that undermines their cases. Both sides request summary judgment. Argument was heard 1/26/22, following which the US’ motions were granted.

On 7/15/17 lightning struck 10 miles SW of Lolo and 6 miles up the South Fork Lolo Creek drainage and ignited the Lolo Fire. Because of the terrain, the Lolo National Forest Supervisor determined that the safest way to manage it was through an “indirect strategy, meaning that firefighters wait and prepare for it to reach safer terrain before actively fighting it. The Supervisor placed an order for a Type 1 Incident Management Team indicating that the fire represented the most complex type of incident. Such teams “excel at long-term planning and public communication. Plaintiffs do not dispute that such teams generally excel at these activities but dispute that the Team lived up to this expectation.

On 7/21 the Northern Rockies Coordination Center assigned Incident Commander Greg Poncin’s Team to the Fire and on 7/29 the Team internally circulated a “Structure Protection Plan for Macintosh Manor” that was prepared with the help of the Forest Service. The Plan included assessments for 900 properties and labeled each as Defensible, Standalone; Defensible, Prep & Leave; Defensible, Prep & Hold; or Non-Defensible, Prep & Leave.

By 8/1 the Fire grew north so that it encompassed over 5,000 acres. The Team described the growth on its daily posts on “InciWeb.” On 8/3 Noel Livingston took over as Incident Commander due to federal work/rest guidelines. On 8/4 FS staff provided a decision document that considered fire conditions and updates to the Management Action Points. Between 8/4 and 8/10 the Fire continued to grow north in the general direction of Plaintiffs’ properties.

Between 8/13 and 8/17 the Fire damaged Plaintiffs’ properties. At 10 p.m. on 8/16 the Missoula Co. Sheriff’s Office issued an evacuation order that included Plaintiffs. During this general period the Team utilized “firing operations” or backburns. The US disputes the severity & extent of Plaintiffs’ damages and denied any liability.

O’Grady is a Colorado resident residing in Colorado. He purchased his property in 2013 and visited it 2-3 times a year. On the evening of 8/13 the Fire had spread onto the easternmost section of his land. The parties dispute the depth of his knowledge but not that he had knowledge of the Fire from its inception. In fact, he was driving to Montana when he found out about it and checked the InciWeb “most days” for updates. The US identified him as likely to be impacted and had his phone number on the Incident Management Team’s contact list. But he contends that FS “began aerial and ground firing operations on my property without notifying me at any time.” The US admits that on 8/14 it decided to conduct firing operations but asserts that they did not occur on O’Grady’s land until 8/17. While it disputes whether it had a duty to contact him, it does not dispute that it did not contact him before the firing operations and, unlike the other Plaintiffs, it acknowledges that it conducted firing directly on his property. O’Grady argues that these operations “destroyed my forested lands, roads, culverts, and real property.”

Schurgs resided at 16252 Folsom Road. Unbeknownst to them, their home had been designated “Defensible, Stand Alone.” On 8/17 they disregarded the evacuation order and remained on their property and defended their home. They both have wildland firefighting experience. They allege that FS firefighters observed their efforts but did nothing to help. They saved their home, but parts of their property burned and they “discovered burn holes in their deck.”

Millers resided at 16485 Folsom. Unbeknownst to them, their home was designated “Defensible, Stand Alone.” On the night of 8/16 Mrs. Miller received notice that they had to evacuate from her daughter who was informed by their neighbors. Mr. Miller was away so Mrs. Miller called him to tell him about the order. She and her daughter evacuated and allegedly experienced significant difficulty evacuating their pigs, chickens, dogs, horses, and goats. Their home sustained smoke & heat damage and parts of the property and fencing were destroyed.

Jackie Lowe, Mark Stermitz, and Michelle Stermitz are tied to this case by 16595 Folsom Road. Lowe and Mark Stermitz were married but separated and Michelle is their daughter. Unbeknownst to any of them, the property was designated “Non-Defensible, Prep & Leave.” Lowe received notice of the evacuation order the evening of 8/16, apparently from Mrs. Miller. Michelle drove to the residence and helped her mother evacuate as the fire approached. Mark Stermitz learned of the threat when Michelle called him. The fire destroyed the home, shop, and real & personal property.

Ernsts resided at 16575 Folsom Road. Unbeknownst to them, their home was designated “Non-Defensible, Prep & Leave.” They attended 3-4 in-person public meetings in the weeks before 8/17 and regularly visited the fire information station. Mrs. Ernst monitored the InciWeb daily. Late on 8/16 she received a call notifying her of the evacuation order. They packed some possessions and loaded their pets into vehicles and around 11:30 p.m. a sheriff arrived and advised Mr. Ernst that the road would close around 3 a.m. They evacuated in the early hours of 8/17 but Mr. Ernst returned in defiance of the evacuation order to photograph the property. The Fire destroyed their home, metalworking shop, woodworking shop, and personal & real property.

Harvies resided at 16490 Folsom. Unbeknownst to them, FS designed their home as “Defensible, Stand Alone.” They received the evacuation order late 8/16 and left around 2 a.m. The home survived but their real property was significantly damaged and they lost personal property.

Plaintiffs’ claims nestle into 1 of 2 categories: intentional torts or negligence. From a bird’s eye view, the intentional tort claims are grounded in the allegation that FS intended fire to be on or travel onto their properties as a result of the 8/17 firing operations, while the negligence claims are largely based on the allegation that it failed to provide notice or warnings informing them that their properties and/or homes were at risk despite possessing knowledge of the risk and the ability to communicate it.

Summary judgment is granted for the US across the board, primarily because its communication methods are immunized by the discretionary function exception. Moreover, the undisputed facts show that it had the legal right to conduct firing operations on O’Grady’s property, it did not intend for fire to travel or remain on the other Plaintiffs’ properties, and any emotional distress that Plaintiffs suffered does not rise to the “serious or severe” threshold.

Plaintiffs believe the discretionary function of the FTCA does not apply and that because there are no material disputes of fact on their negligence claims they are entitled to judgment as a matter of law. Instead of basing their claims in the US’ methods for conducting firing operations or fire suppression, their negligence claims focus on its failure to provide notice or otherwise communicate with them about fire management. The US agrees that there are no material disputes of fact but argues that the discretionary function applies and thus this Court lacks jurisdiction.

While applicability of the discretionary function exception was a more open question at the time this case was filed — and even when summary judgment briefing was underway — Esquivel (9th Cir. 2021), together with Green (9th Cir. 2011), establish parameters within which Plaintiffs’ claims fail. A 2-step process determines whether the discretionary function exception applies; “First, courts must determine whether the challenged actions involve an element of judgment or choice.” Esquivel. If the element of judgment or choice is present, “the court moves to the second step and must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. Namely, the exception protects only governmental actions and decisions based on social, economic, and political policy.” If the action involves either judgment or choice, and it sounds in policy, the “action is immune from suit — and federal courts lack subject matter jurisdiction — even if the court thinks the government abused its discretion or made the wrong choice.” Id. “The plaintiff has the burden of showing there are genuine issues of fact as to whether the exception should apply, but the government bears the ultimate burden of establishing the exception applies.”

“Claims involving how the government conducts fire suppression operations are generally barred by the discretionary function.” Id. (collecting cases). But until Esquivel it was unclear to what extent communications surrounding fire suppression were also immunized. Esquivel clarified that “a communication between fire crews and property owners is covered by the discretionary function exception under 28 USC 2680(a) if such communication was based upon the performance of fire suppression operations.” Thus, determining whether the discretionary function applies to Plaintiffs’ claims that FS was negligent in failing to issue an evacuation warning before the evacuation order involves the familiar 2-step inquiry, as informed by Esquivel: (1) did the decision not to notify Plaintiffs of the possibility of evacuation involve an element of judgment or choice and (2) if so, whether that decision was based on performance of fire suppression operations.

A. Element of judgment or choice.

“An agency must exercise judgment or choice where no statute or agency policy dictates the precise manner in which the agency is to complete the challenged task.” Green. Plaintiffs point to FS’ “Deliberate Risk Management Analysis Worksheets” which state that it is to “use established [Management Action Points] to anticipate and order evacuations proactively, continue good relationships with public, and use modeling and broadcast forecasts insuring positive communication,” and argue that its decision to issue an evacuation order — but not an evacuation notice that provided more time to prepare — directly contradicted binding, thus nondiscretionary, instructions. The US responds that the type of information Plaintiffs insist they should have received — that their properties might be threatened by the Fire — was readily available to them, and their claim really takes issue with the method of communication. It also points to evidence related to FS’ communication initiatives including that in the earliest stages of the Team’s involvement it issued the “Lolo Peak Incident Decision” which articulated objectives in attacking the Fire including “communication of appropriate information with the appropriate landowners.” The record memorializes how the Team’s firefighting strategy and communication about that strategy evolved. The Worksheets state that FS should “anticipate and order evacuations proactively.” This direction says nothing about “warning” of evacuations nor does it set a timeline for what it means to be “proactive.” Thus adhering to this directive necessarily involves judgment in deciding when to “order evacuations” in a “proactive way.” Similarly, the Incident Decisions state that FS will maintain & enhance communications with landowners and emphasize “accurate, timely and positive” information. There are no parameters on what form this communication is to take. Thus the US’ communication, or lack thereof, with Plaintiffs was discretionary.

B. Policy decision.

Because the decision not to contact Plaintiffs in advance of an evacuation warning involved an element of choice, the next question is whether that conduct “reflects the exercise of judgment grounded in social, economic, or political policy.” Esquivel.

In Green, the plaintiffs owned land adjacent to an area in which a backburn was conducted but FS did not inform them of it or warn of the risk to their properties. The lower court dismissed their claims based on the discretionary function but the 9th Circuit reversed, concluding that there was no evidence that policy analysis was needed when deciding whether to notify landowners of a nearby backburn and the associated risk. It nonetheless left open the possibility that a communication decision could involve firefighting operations such as deciding how to allocate personnel, creating the perfect springboard for Esquivel.

In Esquivel, FS communicated with a plaintiff and obtained his consent before igniting a burnout on his property and implementing other defensive measures. (A burnout is designed to burn only the most flammable vegetation near the fire line.) The crew left and returned the next day to discover that the burnout had damaged 15 acres of the plaintiff’s property. The plaintiff sued, challenging the crew chief’s “statements regarding the precautionary measures that the fire crew would take while conducting the burnout.” Esquivel clarified that because “decisions regarding whether and how to perform fire suppression operations are discretionary functions rooted in policy, the discretionary function exception extends to all other conduct ‘based upon the exercise or performance’ of these operations.” Thus under Esquivel, “a communication between fire crews and property owners is covered by the discretionary function exception … if such communication was based on the performance of fire suppression operations.” The relevant inquiry is whether the communication is “part of the decision to set, and the subsequent conduct of, the [backburn] — which is undisputedly a policy-based decision covered by the discretionary function exception.” In Esquivel, unlike Green, there was a fleshed out record.

The record shows that the decision to issue an evacuation warning to the Residential Plaintiffs was tied to fire suppression operations — so closely that the order was issued seemingly as promptly as it could have been. On 8/16 at 9 p.m. the Team “held a meeting to discuss the day’s observed fire behavior and what could be expected with the coming cold front. Given information that, in the absence of firing operations the Fire would continue to expand toward residential areas, “operations staff recommended conducting firing operations along the established containment line” around O’Grady’s property. The Team discussed the pros and cons which included “the need for immediate evacuations of citizens in the area.” An hour later the Sheriff’s Office issued an evacuation order that included Plaintiffs’ residences, and InciWeb was updated to reflect the warning.

These events demonstrate that the evacuation warning was issued within 1 hour of the decision to conduct firing operations along the containment line, which means issuance of the warning was based on the firing operations. Therefore the decision not to issue an evacuation warning was also based in the exercise of these operations because such an insignificant time elapsed between the Team meeting deciding on a course of action and issuance of the evacuation order that, as a practical matter, there was no time for both a warning and an order.

Further, Plaintiffs received some form of communication (the evacuation order), which distinguishes them from Green and moves them closer to Esquivel. Like in Esquivel, issuance of the evacuation order “was not an action separate and apart from the burnout itself.” Rather, while Plaintiffs desired communication that would have provided more time to evacuate, FS did communicate the need for an evacuation based on the Team’s 8/16 discussion of what suppression operations would be implemented. The 8/16 meeting illustrates that it considered “how to allocate its communications resources between community-wide distribution and direct contact with private citizens,” Green, and discussions concerning evacuations flowed directly from conversations about conducting firing operations. The record demonstrates that both prongs of the discretionary function inquiry are met for the decision not to notify Residential Plaintiffs significantly in advance of the evacuation order.

O’Grady presents a slightly different inquiry but the discretionary function applies to his claims as well. He argues that FS failed to inform or notify him of the firing operations on his property. The US admits that it did not contact him personally, but “communicated the plan to private landowners near the proposed firing operation and continued to communicate with the public through the established communications strategy, including via InciWeb.” It offers no explanation for why he was not contacted aside from stating that he is a resident of Colorado and was residing there. Nonetheless, its decision not to notify him before conducting firing operations on his land was also rooted in policy because, unlike in Green, its conduct was tied directly to broader suppression efforts. Moreover, it is not clear what notice would have achieved as he did not have any structures or improvements and MCA 76-13-104(1)(a) authorizes firefighting on private land to suppress wildfires. This statute is also silent as to whether any notice or warning is required to the private landowners. In any event, because such notice or warning would be “based upon” suppression efforts, that communication falls within the discretionary function. Esquivel.

The discretionary function applies to FS’s communication (or lack thereof) because the communication decisions were based on policy-rooted fire suppression activities, and therefore summary judgment is granted for the US as to all of Plaintiffs’ negligence and intentional tort claims.

Plaintiffs’ intentional tort claims — trespass, conversion, and emotional distress — further suffer from other problems that warrant summary judgment for the US. They failed to show that an intentional trespass occurred because they do not establish any intent or that FS lacked the legal right to enter the properties. They also cannot show that FS caused the fire to enter onto their land. The record indicates that it progressed onto their properties due to spotting.

In support of intent as to their conversion claims, Plaintiffs argue that FS knew “the fire was on and damaging Plaintiffs’ land as firefighters were present and able to see it with their own eyes” and it “had a duty to remove the fire it had lit.” However, there is no evidence that FS lit the fire on their properties or allowed it to travel onto those properties; it was actively trying to prevent the spread onto their properties. While the allegation that firefighters did nothing to help certain Plaintiffs is troubling, they fail to establish how the alleged ambivalence gives rise to liability under conversion.

Mrs. Schurg, Mrs. Miller, Jackie Lowe, and Michelle Stermitz allege IIED as standalone causes. Since Sacco (Mont. 1995), the Montana Supreme Court has stated that an independent action for IIED “arises when a plaintiff suffers serious and severe emotional distress as a reasonably foreseeable consequence of a defendant’s intentional act or omission.” Czajkowski (Mont. 2007). It also clarified that the “extreme and outrageous” nature of a tortfeasor’s conduct is a measure by which the severity of the emotional distress may be proved.

Mrs. Miller, Jackie Lowe, and Michelle Stermitz do not allege extreme or outrageous conduct. Miller’s administrative claim statement describes her anxiety, frustration, and devastation of having to evacuate herself and her animals in the middle of the night, return to a radically altered landscape, and rehome her animals. At her deposition she stated that the cause of her distress was “specifically the evacuation process itself and just the emotions that were involved in going through that, being woken in the way that we were in a state of panic and dealing with evacuating the animals.” Similarly, Lowe’s and Michele Stermitz’s allegedly serious or severe emotional distress is based on the loss of their homes as a result of FS’ actions. Assuming arguendo that the evacuation and rehoming of animals stemmed from FS’ conduct related to the Fire, such conduct prompting the evacuation and rehoming is not “extreme or outrageous.” While these Plaintiffs claim to have been deeply upset by FS’ failure to notify them of their homes’ designations, they admit that such assessments are created for assisting firefighters in residential areas and such assessments are not public documents. Because these designations are not required to be made public, they cannot claim that their non-receipt of such designations is “utterly intolerable in a civilized community.” Czajkowski. Nor is there anything in the record suggesting that the timing of FS’s notice was “beyond all possible bounds of decency” given Plaintiffs’ own description of the threat to their properties as emerging the same day the evacuation order was issued.

Mrs. Schurg’s claim for IIED is slightly different She points to different conduct: that she fought the fire on her property, apparently while firefighters looked on and did nothing to help. The US does not argue that such inaction could or could not constitute extreme & outrageous conduct, but states that the record shows the “firefighters simply doing their level best to control and contain a wildly variable and volatile forest fire.” But there are facts that contradict its narrative, at least to Schurgs’ property.

In her administrative claim Schurg described that while they fought the fire, “three fire trucks full of fire personnel lined the road directly below their home. The personnel did not have the fire hoses out or pumps running, instead they looked on. At one point, Mr. Schurg ran down and pleaded for their assistance. The Forest Service did nothing.” In her deposition, Mrs. Schurg described “minimal firefighting efforts” and how some of her emotional distress was grounded in “the fact that the three of us saved our house, and then to look down below our house on the road and see all those firefighters standing next to their trucks watching, watching everything we did to save our house.” The US implicitly concedes some degree of truth to Schurg’s description of events by describing the events as “fire professionals [apparently Mr. and Mrs. Schurg] already using a commercial pump and firehose to eliminate fire wherever it approached the Schurg property.”

While there is no authority directly addressing whether firefighters’ failure to combat fire is “extreme and outrageous,” other authority suggests that it could meet that definition. The codification of a firefighting duty in §76-13-104(1)(a) suggests that the public could find it “utterly intolerable” that a firefighting unit would not aid civilians fighting a fire on their property,” and Stocking (Mont. 1963) recognized the important public policy of fighting fires, equating suppression with a furtherance of the public good. The alleged failure of a firefighting unit to fight a fire could be viewed as extreme & outrageous conduct. Given this factual discrepancy, the seriousness or severity of Schurg’s alleged emotional distress is considered.

“In cases where there is a physical manifestation of bodily harm resulting from emotional distress, such as PTSD, this bodily harm is sufficient evidence that the emotional distress suffered by the plaintiff is genuine and severe.” Henricksen (Mont. 2004). Schurg argues that her diagnosis of PTSD is independently sufficient to at the very least preclude summary judgment at this stage. However, the US distinguishes Henricksen on the basis that there is no expert testimony or other evidence that her PTSD involved “physical components” that would make it analogous to the PTSD in Henricksen. The note from Schurg’s therapist supports this distinction. She was seen 3 times in 9/17 and “at the conclusion of these sessions her symptoms appeared to be relieved, and she was discharged at that time.” Thus the medical evidence shows that her PTSD did not last for a significant duration. And the loss of relationships, lack of sleep, anxiety, and employment difficulties are not so severe or serious that no reasonable person could be expected to endure them. Renville (Mont. 2004). As a result, her claim of IIED fails as well.

FS does not address NIED but disputes the seriousness and severity of Plaintiffs’ alleged emotional distress. Summary judgment for the US is appropriate for 2 reasons. First, the record shows that the claimed distress of Mrs. Schurg, Mrs. Miller, Lowe, and Michelle Stermitz does not meet the requirements for “serious” or “severe.” Additionally, the evidence does not provide any support to the remaining Plaintiffs’ claims that their emotional distress is serious or severe. Even giving them the “benefit of all reasonable inferences,” the dearth of record evidence demonstrating the seriousness or severity of their claims indicates summary judgment for the US is appropriate. More broadly, their NIED claims fail to the extent that they are rooted in FS’s lack of notice of planned firing operations. The decision to provide or not provide notice is discretionary; consequently, that decision is immunized by the discretionary function. As a result, the NIED claims fail because they attempt to impose liability for conduct that the discretionary function has insulated from suit.

Summary judgment for the US.

Schurg et al v. US, 44 MFR 272, 2/8/22.

Kris McLean, Jordan Pallesi, and Tyson McLean (McLean Law Firm), Missoula, for Plaintiffs; AUSAs John Newman, Randy Tanner, and Mark Smith.

UNREASONABLE FORCE ARREST: Sanction designating that officers used unreasonable force to arrest Plaintiff imposed for failure to preserve security camera video of Probation & Parole Office parking lot where arrest occurred… issues of causation, injury, damages, and whether officers acted with malice reserved for jury… Morris.

Carrie Gregory moved for sanctions against the State due to its failure to preserve security camera video of the parking lot of its Probation & Parole office in Great Falls which would have captured the events of 5/15/20 when she brought her son Daniel to the office that led to his arrest and alleged injuries to her. The Court held a hearing 9/27/21 and announced that it would grant her motion and directed the parties to filed briefs as to the appropriate sanction. The briefs have been filed.

It appears that Gregory got out the driver door of her car when the officers arrested Daniel. She alleges that PO Tomeka Williams approached her and forced her onto the hood of another car. Williams alleges that Gregory failed to respond to her instructions to stay back and that Gregory pushed and hit her. Gregory alleges that she suffered a fractured elbow and a sprained wrist from the encounter and injuries to her knee when Great Falls Officer Scott Fisher forced her into a police car. The City filed misdemeanor obstruction charges against Gregory.

Security cameras captured the events from several angles. Gregory’s counsel in the obstruction case instructed Dep. P&P Chief Wayne Bye to preserve the video evidence. He failed to preserve the video before the 17-day auto-deletion and instead used his cell phone to record the altercation as it played on his computer monitor. The City dismissed the obstruction charges against Gregory after it discovered that the State failed to preserve the videos.

Gregory now alleges constitutional violations and tort claims against the State, City, Williams, Bye, and Fisher, and assault & battery against Williams and Fisher. The Court dismissed Counts II & III against the State on the grounds that it does not qualify as a “person” for §1983 purposes.

A similar issue was faced in Spotted Horse (Mont. 2015) where machinist Mark Spotted Horse sued BNSF for injuries suffered when the rope used to lower the engine compartment hatch allegedly slipped through a co-worker’s hand causing the hatch to strike Spotted Horse on the head. BN had video cameras throughout the shop stalls. The system overwrote footage every 15-30 days. Spotted Horse claimed that he requested a copy of the video during his post-accident interview and had renewed the request several times during discovery. BN provided several photos from the cameras but never any video footage. The foreman acknowledged that he “probably watched about 15 minutes” of video from a camera closest to the incident but not request a copy because “there was no evidence to preserve” as it failed to capture the alleged injury. Neither the foreman nor any investigator from BN ever requested the video before the system overwrote it. Judge Macek denied Spotted Horse’s motion for default judgment for failure to present sufficient evidence to warrant “the most drastic of all sanctions, default judgment,” and instead prohibited BN from introducing or referring to any testimony or evidence that any employee had watched the video footage. The Supreme Court deemed this sanction inadequate. It recognized that as “a sophisticated and recurrent party to litigation” BN knew of its obligation to preserve evidence. It rejected the notion that BN unilaterally was entitled to “determine which evidence is relevant or valuable when investigating an alleged work-related accident.” Its conduct, whether intentional or inadvertent, had “effectively undermined the ‘search for the truth’ of what actually transpired.” Id. (quoting Oliver (Mont. 1999)). It remanded for the trial court to fashion an appropriate remedy “commensurate with the significance” of BN’s actions in allowing the evidence to be destroyed and that would “satisfy the remedial and deterrent goals of sanctions for spoliation of evidence.”

The State is similarly a sophisticated and recurrent party to litigation. It should have known of its obligation to preserve evidence. It does not get to determine unilaterally “which evidence is relevant or valuable” when investigating the incident. and similar to Spotted Horse, the Court declines to impose an outright default judgment for spoliation of the security camera video recording. The Court instead designates for purposes of this case that Williams and Fisher used unreasonable force to effect Gregory’s arrest. The Court reserves to the jury the issues of causation, injury, and damages. It also reserves to the jury whether Williams and Fisher acted with malice. The Court deems this sanction “commensurate with the significance” of the State’s actions in allowing the evidence to be destroyed and also believes that it would “satisfy the remedial and deterrent goals of sanctions for spoliation of evidence.”

The Court recognizes that its sanction effectively grants summary judgment to Gregory on the issue of unreasonable force. The Court has carefully considered the analysis of Halaco Engineering (9th Cir. 1988) and Leon (9th Cir. 2006). Application of these factors by Magistrate Lynch in Peschel (D.Mont. 2009) supports this remedy. The City of Missoula failed to preserve video recordings of an arrest that resulted in a series of injuries to Peschel. Lynch concluded that it had a duty under Montana law to preserve the videos throughout an investigation when the prospect of a suit was “reasonably foreseeable.” The City had proposed as a sanction prohibiting “the officers from testifying as to what they saw on the video.” Lynch rejected this as not sufficiently punishing it for its spoliation and not serving “as a sufficient disincentive to destroy evidence” and instead determined that a conclusive finding regarding the arresting officers’ use of unreasonable force was the most appropriate sanction. A similar sanction would be appropriate here.

The Halaco and Leon factors:

Extraordinary Circumstances. The State’s spoliation of the videos severely disrupted the ordinary administration of justice. A simple case has grown complicated due to the spoliation. The fact-finder could have watched the videos as part of its determination of the level of force used to effectuate Gregory’s arrest. The spoliation has jeopardized accuracy of the fact-finding process to Gregory’s prejudice. A lesser sanction would cause the trial to become divorced from the merits and focused instead on the spoliation.

Willfulness, bad faith, or fault. While Gregory cannot establish gross negligence or willfulness by the State, the evidence supports a determination that the spoliation arose from its recklessness in failing to take appropriate steps to preserve the videos. The Court rejects out of hand the State’s claim that Bye’s efforts to record the videos on his cell phone what watching them on his monitor provides an adequate substitute for the real thing.

Efficacy of lesser sanctions. The rebuttable presumption created by an adverse inference instruction proposed by Defendants would not punish the State sufficiently for its spoliation or serve as a deterrent in future cases. The State would be permitted to proceed to trial where it would pit its witnesses against Gregory, “unphased by its spoliation of the video recording.” Peschel. It would also fail to cure prejudice to Gregory from loss of the best evidence of what happened during her arrest. It would be effective only if coupled with admission of the spoliation, forcing the jury to focus on computer forensics rather than the merits of the case and require evidence relating to Bye’s computer capabilities and purported motive to allow the recordings to be deleted. Introduction of these matters would degrade the truth-finding process.

Nexus between the misconduct and matters in controversy. Whether the misconduct relates “to matters in controversy in such a way as to interfere with the rightful decision of the case” is the most critical criterion. No dispute exists that the spoliation relates to the principal matter in controversy: whether the officers used unreasonable force to arrest Gregory. The videos would have provided the best evidence of what happened in the parking lot and arrest. Spoliation of the videos has interfered with the rightful outcome.

Prejudice to Gregory. The injuries allegedly suffered by Gregory suggest that the degree of force during the arrest may have been more than necessary. Absent the videos to establish this, she would be left with the difficult task of rebutting the officers’ testimony that the force was reasonable.

Public policy favoring disposition of cases on their merits. Public policy normally favors disposition of cases on their merits. This policy provides little weight here. The public also possesses a strong interest in the fair & accurate resolution of disputes arising from encounters between law enforcement officers and the public. The videos would have provided the best evidence of what happened. The spoliation removes this best evidence and hinders the most accurate determination of the case on its merits.

Sanctions more substantial than an adverse inference instruction are appropriate. They include the following actions:

1. Williams and Fisher used unreasonable force in Gregory’s arrest.

2. The Court will not permit testimony about the original video’s contents before spoliation.

3. The Court reserves to the jury issues of causation, injury, and damages.

4. The Court reserves to the jury issues of actual malice by Williams and Fisher.

5. The Court will not allow the parties to present Bye’s cell phone recording of the video to the jury.

Gregory v. Montana, Great Falls, Williams, Bye, and Fisher, 44 MFR 271, 2/3/22.

Daniel Flaherty & Paul Gallardo (Flaherty-Gallardo Lawyers), Great Falls, for Gregory; Courtney Cosgrove (Tort Defense), for the State, Williams, and Bye; Kevin Meek (Ugrin Alexander Zadick), Great Falls, for Great Falls; Todd Hammer & Marcel Quinn (Hammer, Quinn & Shaw), Kalispell, for Fisher.

INSURANCE: Insurer had no obligation under UTPA to advance-pay 3rd-party medical bills absent explicit request, demand, or claim, also had reasonable basis for not making advance payments… common law bad faith claim time-barred… DeSoto’s 56(a) ruling not precluded by Lynch’s prior 12(b)(6) ruling… DeSoto/Morris.

Brandon Moe was injured in 3/15/15 when a GEICO insured struck from behind a vehicle in which Moe was a passenger. He began receiving treatment and remained in limited contact with GEICO as to payment of his medical bills. He testified in his deposition that he understood that GEICO would be responsible for his medical bills but never explicitly requested that it pay in advance of final settlement. GEICO offered to settle for $1,000 plus outstanding medical bills 12/7/15. Moe rejected the offer.

Moe failed to respond to GEICO’s attempts to reach him after he rejected its offer. He hired Mark Luebeck in 10/16, a month after his outstanding medical bills had been sent to collection. Luebeck asked GEICO why it refused to pay his bills. GEICO responded 1/12/17 that it “did not refuse payment from Mr. Moe’s medical bills, Ridley was not requested,” citing Ridley (Mont. 1997).

Luebeck submitted a specific Ridley demand letter 6/29/17 requesting that GEICO pay Moe’s accident-related medical bills and lost wages. GEICO paid sums to Moe that he claims did not include the amounts of medical bills and lost wages for the time that he was not represented.

GEICO removed this case from Montana’s 18th Judicial District Court 5/17/19 and this Court has dismissed several of Moe’s claims. Magistrate DeSoto entered findings & recommendations for GEICO’s motion for summary judgment on Moe’s remaining claims and recommended that this Court dismiss the case. Moe raises 4 objections.

Moe asserts that earlier rulings by Magistrate Lynch, adopted by this Court, represent the law of the case that conflicts with DeSoto’s recommendation. Lynch recommended that the Court deny GEICO’s motion to dismiss Moe’s claims under the UTPA and for common law bad faith, reasoning that “no formal demand using the terms Ridley and Dubray” were needed to trigger GEICO statutory obligations to make advance payments. The Court adopted Lynch’s recommendations regarding his analysis of Ridley.

The 9th Circuit, along with other Circuits, has recognized that the prior law of a case does not apply when the prior ruling is based on a different legal standard. Peralta (9th Cir. 2014). Lynch based his earlier rulings on the Rule 12(b)(6) motion to dismiss pleading standard as opposed to the Rule 56(a) motion for summary judgment standard. As DeSoto emphasized, these standards are “fundamentally different” from each other, and the prior Rule 12(b)(6) ruling does not apply at this stage.

Moe does not attempt to distinguish the cases DeSoto cited that undermine his law of the case argument, but asserts that because the facts in issue have remained the same throughout the proceedings, the prior law should be applied. However, the factual record remaining substantially the same for the 12(b)(6) and 56(a) motions is not dispositive in applying the prior ruling.

Further, DeSoto’s findings do not conflict with the law of the case. Moe brings up issues that were already decided by DeSoto. He argues that her findings conflict with Lynch’s findings & recommendations that this Court adopted. However, as noted by DeSoto, Lynch stated that “the mere fact that a medical provider submits bills for payment would not, standing alone, necessarily trigger an insurer’s obligations under the UTPA.” He did not decide that Moe made a claim for advance payment, but that the facts taken as true at the time of his ruling would not be sufficient to show that a claim had been made for advance payments. DeSoto’s findings do not conflict with Lynch’s ruling and the Court rejects Moe’s law of the case argument.

Moe argues that DeSoto’s recommendations defeat the purpose of the UTPA, Ridley, and DuBray by transferring duties to claimants imposed by statute and case law on insurers. He asserts that GEICO failed to communicate, investigate, and advance pay his injury claim after a medical provider submitted his claims. He also cites the Ridley 2-part test and points out that an express demand for advance payment is not a requirement.

DeSoto used the plain language of the UTPA and Montana case law to determine that a 3rd-party claimant must explicitly request, demand, or make a claim to trigger an insurer’s duty to make advance payments. Each of the advance pay cases cited by Moe include an express demand by the claimant and a refusal by the insurer. He correctly notes that the UTPA imposes duties on insurers. DeSoto correctly countered that 3rd-party claimants nonetheless maintain the duty to assert a claim. Without a claim by Moe, no obligation exists for GEICO under the UTPA. Coleman Const. (36 MFR 164, 2008); McNeil (Mont. 1992).

Moe’s argument that GEICO violated the UTPA by failing to communicate and investigate also fails. It has demonstrated by undisputed facts that it communicated with him on multiple occasions, it offered to settle his claim but was rejected, and he was unresponsive to numerous attempts to contact him. DeSoto’s findings do not frustrate the purposes of the UTPA, Ridley, or DuBray because Moe failed to make a request for advance payments and GEICO had no obligation to solicit claims from him.

Moe contends that DeSoto wrongly concluded that GEICO had a reasonable basis in law to deny his claims for reimbursement for his medical payments. He reasons that GEICO already used this defense in response to his 2 prior 12(b)(6) motions and this Court decided in his favor both times. He also contends that GEICO failed to investigate and should be held liable under the UTPA’s legal landscape. However, he fails to point to any case law where an insurer was obligated to advance pay to a 3rd-party claimant when no request was made. Even if GEICO’s actions were “ultimately wrong,” there is no indication that they were objectively unreasonable. Freyer (Mont. 2013). Further, DeSoto declared GEICO’s decision to withhold advance payments and refuse payment of medical bills upon receipt from providers objectively reasonable based on the undisputed record. She highlights many facts that favor its position that it had a reasonable basis for not making advance payments.

Finally, Moe suggests that he timely filed his 3rd-party complaint under §33-18-242 12/21/18. He claims that the statute started accruing when GEICO denied coverage in the 1/12/17 letter stating that “Ridley was not requested.” The statute for Moe’s common law bad faith claims is 3 years. Nelson (40 MFR 57, 2012). When a cause “accrues,” meaning “the last fact essential to the cause of action occurs, regardless of whether the damages are complete,” the statute begins to run. Id.; MCA 27-2-102(2). Moe knew that GEICO refused to pay his bills as early as 4/21/15. He did not file this case until 12/21/18. At the time of filing — over 3-1/2 years after the “accrual” point when he received notice that GEICO refused to pay his medical bills — the statute had expired. Accordingly, DeSoto properly found that the statute had run on his common law bad faith claim.

Finding no clear error, the Court adopts DeSoto’s findings & recommendations. GEICO’s motion for summary judgment is granted and the case is dismissed.

Moe individually and on behalf of all individuals of the class similarly situated v. GEICO, 44 MFR 270,1/26/22.

Daniel Buckley (Buckley Law Office), Bozeman, and Mark Luebeck (Angel, Coil & Bartlett), Bozeman, for Moe; Ian McIntosh & William Morris (Crowley Fleck), Bozeman, Courtney Henson (Snell & Wilmer – Tucson), and Sheila Carmody (Snell & Wilmer – Phoenix), for GEICO.

HB 702 VACCINATION RESTRICTIONS challenges mostly survive motions to dismiss on standing and 12(b)(6) grounds… Molloy.

This case challenges MCA 49-2-312 & 313 which catalogue HB 702 (2021) which prohibits persons and entities — with limited exceptions — from withholding goods, services, or employment “based on the person’s vaccination status or whether the person has an immunity passport.” (Emphasis added.) (Although Defendants stated at the 1/21/22 hearing that HB 702 was part of the State’s efforts to respond to COVID-19, “vaccinations” and “vaccines” are not limited to COVID-19 by the text of the statute, but encompass vaccines related to “infectious diseases and pathogens, including, but not limited to, the COVID-19 virus, Hepatitis A, Hepatitis B, Pertussis, Measles, and Influenza.”)

“Vaccination status” refers to “an indication of whether a person has received one or more doses of a vaccine.” “Immunity passport” refers to a form of record “indicating that a person is immune to a disease, either through vaccination or infection and recovery.” School vaccination requirements remain, and “health care facilities” as defined under §50-5-101 are permitted to “ask an employee to volunteer the employee’s vaccination or immunization status” and may “implement reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune.” “Health care facilities” under §312(3) “does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under Title 37.” §313 then exempts licensed nursing homes, long-term care facilities, and assisted living facilities (“Exempted Facilities”) from §312. “during any period of time that compliance with [49-2-312] would result in a violation of regulations or guidance by the centers for medicare and medicaid services or the centers for disease control and prevention.”

Multiple parties sued AG Knudsen and Commissioner of Labor Esau. The “Institutional Plaintiffs” include Montana Medical Association, Five Valleys Urology, Providence Health & Services, and Western Montana Clinic. “Individual Plaintiffs” — immunocompromised patients — include Pat Appleby, Mark Carpenter, Lois Fitzpatrick, Joel Peden, Diana Page, Wallace Page, and Cheyenne Smith. The Montana Nurses Association was granted leave to intervene as Plaintiff-Intervenors. (The Institutional Plaintiffs, Individual Plaintiffs, and Nurses are referred to as “Plaintiffs.”) The issue at this stage concerns the viability of Plaintiffs’ claims, not their merits.

Plaintiffs set forth 8 claims:

I. §312 violates an employer’s obligation under the ADA to make reasonable accommodations.

II. §312 prohibits compliance with an obligation under the ADA for public accommodations to provide equitable access to individuals with disabilities.

III. §312 violates OSHA because it prohibits employers from providing a workplace free from recognized hazards.

IV. §312 prevents employers from developing plans to reduce the risk of COVID-19 transmission.

V. §312 violates the right to a clean & healthful environment under the Montana Constitution.

VI. §312 violates the obligation to maintain & improve a clean & healthful environment under the Montana Constitution.

VII & VIII: §312 violates equal protection rights under the State and Federal Constitutions.

Defendants seek to dismiss Plaintiffs’ claims. A hearing was held 1/21/22.

Defendants argue that Plaintiffs lack standing and fail to state a claim. But they:

misstate Plaintiffs’ asserted injuries. For example, Defendants state that “Plaintiffs’ only theory of injury is their inability to terminate those employees they cannot force to vaccinate.” The plain text of the Complaint refutes that statement. Such mischaracterizations border on misrepresentation and test the limits of RPC 3.3(a)(1).

overstate Plaintiffs’ requested relief. For example, they state that Plaintiffs “repeatedly express their wish to fire individuals based on vaccination status.” The Complaint is devoid of such an expression and Defendants could not identify this expression when asked at the hearing, but proffered that this “wish” could be inferred from the Complaint. Such an inference is not synonymous with Defendants’ “repeatedly express” language.

engage in argument via proof by assertion. For example, Defendants state that Plaintiffs “read only part of the rule,” “ignore the remainder of the rule,” and engage in “regulatory misreading,” seemingly because Plaintiffs do not cite every provision of the OSHA regulation, but then Defendants provide only a superficial statement that the “provisions harmonize” with §312(3)(a) without further explanation.

Ultimately, the briefing throws into sharp relief that the parties are divided over the efficacy of vaccines and the effect of such vaccines on healthcare employers, employees, and patients. But these disputes are grounded in the merits of this case and beyond the scope of the present motions. For the reasons explained below, Plaintiffs have standing and, for the most part, have stated plausible claims for relief. Accordingly, Defendants’ motions to dismiss are denied as to all claims except for Plaintiffs’ Claim VI and the Institutional Plaintiffs’ Claim V, both of which involve claims under the Montana Constitution’s clean & healthful environment provision.

Defendants contest standing across the board. (They state: “The social compact sometimes requires that citizens forebear [sic] laws they dislike. But neither the plaintiff nor this Court are the State, empowered to make or unmake the policy judgments set forth in the statute. And differing policy preferences don’t grant objectors standing.” But Plaintiffs do not assert standing based on “differing policy preferences,” but by the plain text of their Complaint they assert injuries rooted in federal statutes and regulations and the State and Federal Constitutions. These sorts of injures are the type of “case or controversy” this Court is empowered to adjudicate. Art. III, §2, cl.1. Moreover, contrary to the apparent assertion that a State may insulate itself from review when it enacts a statute, “if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Jacobsen (US 1905). Finally, as an aside, “forebear, always a noun, means ‘ancestor’ (usually used in the plural. Forbear is the verb meaning ‘to refrain from objecting to’; to tolerate.” Garner’s Dictionary of Legal Usage. The context of Defendants’ argument indicates they intended the latter.)

First, Defendants do not accept Plaintiffs’ allegations as true, indicating that they challenge the factual underpinnings of the alleged subject jurisdiction. However, as Plaintiffs note, “Defendants have not properly presented affidavits” in support of their arguments. Without supporting evidence, the challenge is not a factual one.

Second, Defendants suggest that the Court may judicially notice certain materials, perhaps in an attempt to “present other evidence” in lieu of affidavits. But the reference to judicial notice is imprecise and the material they apparently wish to judicially note is inappropriate. “A high degree of indisputability is the essential prerequisite” of an adjudicative fact that may be judicially noticed. Rule 201(a) (advisory committee’s notes). The very nature of this case demonstrates that the “facts” that Defendants wish to be judicially noticed — that there is no meaningful difference in transmission risk of COVID-19 between vaccinated and unvaccinated medical workers — are not “undisputed.” Accordingly, these materials do not constitute sufficient “other evidence” to transmute their motion to dismiss to a factual one. The standing challenge is therefore facial.

Next, the general rule recognized in Leonard (9th Cir. 1993) applies. The rule derives from Carey (US 1977) in which the diverse plaintiffs included a nonprofit, a reverend who served as director of an organization, 3 physicians, and an individual. The lower court outlined the differences among their asserted injuries but ultimately concluded that the standing of 1 — regardless of whether his asserted injury was the same as that of the others — sufficed for all. Carey affirmed the approach that so long as 1 plaintiff has the requisite standing courts have no occasion to decide the standing of the others. Leonard adhered to the general rule but progressed beyond it to decide the standing of individuals — despite the organization having standing because of the unique waiver issue in that case. Defendants identify no comparable “waiver issue” that would require the Court to move beyond the general rule from Leonard. Additionally, Plaintiffs are comparable to those in Carey which concluded that the standing of 1 plaintiff was sufficient to encompass all plaintiffs.

Finally, construing the allegations in Plaintiffs’ complaint as true, they have demonstrated associational standing for at least 1 Plaintiff. Five Valleys, Western Montana Clinic, and Providence argue that §312 prevents them from providing a medically safe environment for staff and patients because it bars them from requiring any vaccination for medical workers, which causes harm to others in the clinics by increasing the risk of transmission. Notably, some of the diseases Plaintiffs cite as likely to spread absent vaccination (hepatitis, measles, and influenza) are diseases for which Biden v. Missouri (US 2022) notes “healthcare workers around the country are ordinarily required to be vaccinated against.”

Thus these 3 Institutional Plaintiffs satisfy associational standing because the alleged injury of not being able to inquire about the vaccination status of or require vaccinations for healthcare workers to reduce transmission risk is directly traceable to the statutory prohibition on such action for healthcare workers, and that injury may be redressed by a favorable decision in this Court. Moreover, the members of these Institutional Plaintiffs would have standing to sue in their own right. They argue that §312 prohibits providers from complying with “generally accepted standards of practice” because they are prohibited from inquiring about employees’ vaccination status, which prevents them from exercising their medical judgment to make decisions about how care is distributed. Moreover, the interests they seek to protect — keeping staff and patients healthy — are germane to their purposes. And neither the claims asserted nor the requested injunctive relief requires participation of individual members.

Similarly the Nurses demonstrate associational standing. They allege that §312 disrupts the relationship between vaccine requirements and “the provision of reasonable accommodations to nurses who cannot be vaccinated.” And they allege that it disrupts this relationship because it denies healthcare facilities the power to implement vaccine requirements based on science to best balance health & safety with reasonable accommodations. It is inapposite whether the Nurses control or have the capacity to impose vaccination requirements. Finally, and related to redressability, they request injunctive relief, which traditionally satisfies the last prong of the associational standing inquiry. Accordingly, Plaintiffs have standing.

Defendants further argue that dismissal is appropriate under Rule 12(b)(6). Their motion succeeds only as to Plaintiffs’ Claim VI and Institutional Plaintiffs’ Claim V.

Plaintiffs make a plausible showing at this stage that §312 conflicts with ADA’s “clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” because they state facts to support their allegation that the statute prohibits certain health care providers, including Institutional Plaintiffs, from making reasonable accommodations. They similarly make a plausible showing that it conflicts with the public accommodations provision of the ADA because they state facts to support the allegation that it prevents health care providers, including Institutional Plaintiffs, from “taking such steps as may be necessary to ensure that no individual with a disability is excluded or otherwise treated differently,” 42 USC 12182(b)(2)(A)(iii), as it prohibits employers like Institutional Plaintiffs from inquiring into employees’ vaccination status, which prevents Institutional Plaintiffs from taking steps to limit immunocompromised patients’ contact with unvaccinated healthcare workers.

Plaintiffs allege that §312 conflicts with OSHA’s requirement that employers provide a workplace free from recognized hazards. Biden recognized that healthcare workers are generally required to be vaccinated against transmissible diseases, which indicates that such diseases are a workplace hazard that healthcare employers are obligated to address. Because §312 prevents healthcare employers such as Institutional Plaintiffs from requiring vaccinations against any disease, there is a plausible argument that it conflicts with OSHA. Relatedly, OSHA regulations require employers to implement a COVID-19 plan, which involves inquiring into healthcare employees’ vaccination status. Yet §312 specifically excludes healthcare providers such as Institutional Plaintiffs from making that inquiry. Thus Plaintiffs allege a plausible claim that it conflicts with OSHA regulations.

Plaintiffs fail to state a claim under Art. IX §1 (“each person shall maintain and improve a clean and healthful environment”) because the legislative history and text of the provision indicates that it applies exclusively to the natural environment. Similarly, Institutional Plaintiffs have failed to state a claim under Art. II §3 (guarantees a “clean and healthful environment”) on the same grounds. However, Individual Plaintiffs and Nurses have sufficiently alleged a claim under Art. II §3 which embodies the “fundamental right to seek health,” Cannabis Industry (Mont. 2012), because they have alleged facts that support their claim that unvaccinated medical workers prevent them from obtaining or providing safe healthcare in a safe workplace.

Institutional Plaintiffs’ claim is subject to rational basis equal protection review because no fundamental right is implicated. But it survives at this stage because Plaintiffs allege facts showing 2 groups that are “identical in all other respects.” Health care services such as Institutional Plaintiffs and Exempted Facilities are subject to different treatment simply because of the statutory exemption for the latter. (Defendants seemingly make an upside-down argument as to the interest of the State to exercise its police power in favor of prioritizing the individual choice over the collective good. Given the traditional description of a state’s police power as “embracing, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety,” Jacobsen, there is a question at this stage about the nature & weight of the State’s interest.) Individual Plaintiffs’ and Nurses’ claims are subject to strict scrutiny because a fundamental right is implicated. Individual Plaintiffs state the claim that 2 groups that are “identical in all respects,” immunocompromised patients who are treated by Exempted Facilities and those who are not, are treated differently as a result of §§ 312 & 313’s different treatment of healthcare providers. Their claims survive at this stage.

Defendants’ motions to dismiss are granted on Institutional Plaintiffs’ Claim V and Plaintiffs’ Claim VI and denied in all other respects. Given the parties’ representations about the trajectory of this case, an expedited trial schedule shall be set.

Montana Medical Association et al v. AG Knudsen et al, 44 MFR 269, 1/25/22.

Justin Cole & Kathryn Mahe (Garlington Lohn & Robinson), Missoula, for Plaintiffs; Alwyn Lansing, Brent Mead, and David Dewhirst (Montana AG’s Office).