United States District Court, D. Idaho
KATHLEEN HOWARTH, as personal representative of the Estate of Brian Howarth; and KATHLEEN HOWARTH, individually, Plaintiffs,
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.
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:
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.
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.
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).
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.(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.)
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.)
frames the question as whether Dr. Luther, the only remaining
defendant,  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.
Idaho Law Allows a Defendant to Seek to Apportion Damages
with Respect to Settled Parties.
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
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 ...