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Howarth v. Luther

United States District Court, D. Idaho

April 26, 2018

KATHLEEN HOWARTH, as personal representative of the Estate of Brian Howarth; and KATHLEEN HOWARTH, individually, Plaintiffs,
v.
GORDON LUTHER, M.D., an Individual, Defendant.

          MEMORANDUM DECISION AND ORDER RE: MOTION FOR RULING ON ALLOCATION OF FAULT (DKT. 91)

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Pending is Plaintiff's Motion for Ruling on Allocation of Fault (Dkt. 91). Having carefully considered the record and the parties' briefing, heard oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         BACKGROUND

         Plaintiff Kathleen Howarth brings this action both in her individual capacity and as personal representative of the estate of her deceased husband Brian Howarth. Compl. 1 (Dkt. 1). On January 14, 2014, Brian reported to the Boundary County Detention Facility (the “Jail”) to be held for sentencing related to a DUI. Id. ¶ 3.3. On January 20, Brian requested medical care, listing his symptoms as sore throat, breathing aches, muscle aches, ear aches, and cough. Id. ¶ 3.4. On January 23, after Brian had not improved under the care of the Jail's contract doctor, Brian was transported to the Emergency Department at Boundary Community Hospital (the “Hospital”). Id. ¶¶ 3.5, 3.6. Dr. Gordon Luther, M.D., examined Brian, diagnosed him with bronchitis with bronchospasm, treated him with a DuoNebulizer inhalation, and prescribed azithromycin and albuterol. Id. ¶¶ 3.8, 3.9. Dr. Luther instructed Brian to “contact the doctor immediately” if he developed a fever, increased wheezing, chest pain, or severe shortness of breath. Id. ¶ 3.9. Thereafter, Brian was transported back to the Jail at approximately 7:30 a.m. on January 23. Id. ¶ 3.10. Brian's condition deteriorated throughout the day. Id. ¶¶ 3.10-3.13. By approximately 5:30 a.m. on January 24, a Jail detention officer decided that Brian needed to return to the hospital but that officer could not immediately transport Brian because he was the only detention officer on duty. Id. ¶ 3.14. At about 7:08 a.m., the same detention officer entered Brian's cell after observing that Brian had not changed position since the last observation some 18 minutes earlier. Id. ¶ 3.15. The detention officer could not rouse Brian, so he radioed for assistance. Id. Detention officers performed CPR on Brian until an ambulance arrived around 7:24 a.m. Id. ¶¶ 3.17, 3.18. Brian was pronounced dead at 7:37 a.m. on January 24, 2014. Id. ¶ 3.18. The Spokane County Medical Examiner concluded that Brian died from bilateral pneumonia. Id. ¶ 3.19.

         In her Complaint, Howarth alleges that the Hospital, Western Medical Associates, and Dr. Luther are liable for negligence, gross negligence, recklessness, and negligent infliction of emotional distress. Id. ¶¶ 4.1-4.6. She alleges that the detention officers who had personal contact with Brian are liable for Idaho Tort Claims Act violations, negligence, gross negligence, recklessness, negligent infliction of emotional distress, constitutional violations under 42 U.S.C. § 1983, and for Brian's premature death. Id. ¶¶ 4.7-4.11, 4.18. She alleges that Boundary County Sheriff Greg Sprungl, the Boundary County Sheriff's Office (“BCSO”), the Jail, and Boundary County itself are liable for negligence, gross negligence, negligent infliction of emotional distress, and constitutional violations under 42 U.S.C. § 1983. Id. ¶¶ 4.12-4.18, 4.25.

         Defendant Western Medical Associates was dismissed by stipulation on August 4, 2015. (Dkts. 27, 28.) Defendant Boundary Community Hospital was dismissed by stipulation on April 16, 2018 (Dkts. 100, 116), after one claim against it had previously been dismissed on February 8, 2016 (Dkts. 45, 50).

         In November 2015, the Jail Defendants - Boundary County, BCSO, the Jail, Sheriff Sprungl, and the detention officers - moved for summary judgment. (Dkt. 29.) After briefing and argument, this Court ruled against the Jail Defendants on their claim of immunity from suit.[1](Dkt. 60.) The Jail Defendants appealed (Dkt. 62), and while the appeal was pending the Jail Defendants and Howarth settled. (Dkt. 79) By stipulation, the Jail Defendants were then dismissed from the case. (Dkts. 79, 81, 85, 86.)

         Howarth's pending claims against the remaining defendant, Dr. Luther, are set for trial June 4, 2018. (Dkt. 89.) Howarth now moves for a ruling on allocation of fault, seeking certainty on whether the jury will be instructed (and thereby permitted if the jury is persuaded to do so) to allocate fault between Dr. Luther and any dismissed defendant. (Dkt. 91.) Oral argument was heard on the motion on March 8, 2018. (Dkt. 99.)

         DISCUSSION

         Howarth frames the question as whether Dr. Luther, the only remaining defendant, [2] is entitled to contend at trial that the dismissed defendants are at-fault parties subject to an allocation of fault. Mem. ISO Mot. for Ruling on Allocation of Fault 2 (Dkt. 91-1). She argues that the defendants should not be able to use such an “empty chair” defense for several reasons. First, she argues that liability for constitutional violations under 42 U.S.C. § 1983 is joint and several, so no offset or apportionment is appropriate. Id. at 2-4. Second, she argues that conduct amounting to deliberate indifference cannot be compared to negligent conduct. Id. at 4-7. Third, she argues that the public policy behind 42 U.S.C. § 1983 affords protections greater than state-law wrongful death claims. Id. at 7-11. Finally, she argues that Dr. Luther should be precluded from raising the affirmative defense of others' fault. Id. at 11-13.

         1. Idaho Law Allows a Defendant to Seek to Apportion Damages with Respect to Settled Parties.

         As an initial matter, the Court will consider Dr. Luther's contention that he is entitled to seek to apportion fault or damages. If he is so entitled, any arguments Howarth raises must be examined in the context of such an entitlement. If he is not so entitled, then no further analysis or discussion is necessary.

         Dr. Luther argues that Idaho Code section 6-802 allows a party to seek an apportionment instruction. That statute provides:

The court may, and when requested by any party shall, direct the jury to find separate special verdicts determining the amount of damages and the percentage of negligence or comparative responsibility attributable to each party; and the court shall then reduce the amount of such damages in proportion to the amount of negligence or comparative responsibility attributable to the person recovering. Nothing contained herein shall create any new legal theory, cause of action, or legal defense.

I.C. § 6-802. The Idaho Supreme Court has clarified that this statute applies to all parties to the transaction rather than merely to all parties to the lawsuit:

It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors either by operation of law or because of a prior release. The reason for such (a rule) is that true apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of ...

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