S.W. v. State

1

2024 MT 55

S.W., a minor, by and through her Guardian Jeffrey Ferguson, Plaintiff and Appellee, v. STATE OF MONTANA, by and through the Montana Department of Public Health and Human Services, Defendant and Appellant.

No. DA 22-0018

Supreme Court of Montana

March 19, 2024

Submitted on Briefs: January 4, 2023

APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDV-13-813(b) Honorable Elizabeth A. Best, Presiding Judge

For Appellant: Maxon R. Davis, Davis, Hatley, Haffeman &amp Tighe, P.C., Great Falls, Montana Mikel L. Moore, Moore Resolutions, PLLC, Kalispell, Montana Eric Brooks, Moore Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana

For Appellee: Benjamin R. Graybill, Raph Graybill, Graybill Law Firm, P.C., Great Falls, Montana, Lawrence A. Anderson Attorney at Law, P.C., Great Falls, Montana, Deepak Gupta, Gregory A. Beck, Robert Friedman, Gupta Wessler PLLC, Washington, District of Columbia, Jessica Garland, Gupta Wessler PLLC, San Francisco, California

OPINION

JAMES JEREMIAH SHEA JUSTICE

¶1 S.W. was a six-month-old infant in February of 2009 when her father's girlfriend inflicted serious injuries on her, causing lifelong impairment. Through her guardian, S.W. sued the Montana Department of Public Health and Human Services ("the Department") for its failure to remove her from her father's home prior to the injuries. The District Court determined as a matter of law that the State's child abuse investigation was negligent and caused S.W.'s injuries. After a two-day damages trial, a Cascade County jury awarded S.W. over $16 million.

¶2 We address the following issues:

Issue One: Whether the District Court erred by holding that the immunity provision of § 41-3-203(1), MCA, applied only to "persons" and not to the State.

Issue Two: Whether the District Court erred by holding that the State was negligent as a matter of law.

Issue Three: Whether the District Court erred by holding as a matter of law that the assault on S.W. was foreseeable.

Issue Four: Whether the District Court abused its discretion when it (1) excluded the State's liability expert; (2) imposed a sanction related to evidence spoliation; and (3) permitted S.W. to introduce evidence and argument about her medical expenses and related services.

Issue Five: Whether the District Court erred by concluding that the statutory cap on damages against the State did not apply to this case.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On February 18, 2009, Alicia Hocter severely injured her boyfriend's six-month old daughter, S.W. Hocter picked up the crying infant and slammed her head against the side of her crib multiple times before throwing her back into the crib. S.W.'s injuries resulted in blindness and other permanent disabilities. Hocter was convicted of aggravated assault and criminal endangerment in 2010 and is currently serving a thirty-year sentence at the Montana Women's Prison.

¶4 Before Hocter's assault on S.W., the State received several reports concerning S.W.'s welfare. On December 28, 2008, a doctor reported that S.W. had been brought to the Great Falls Benefis Emergency Department by her father, Jacob Arnott, and Hocter. S.W. had multiple bruises on her belly. Arnott and Hocter could not explain how the bruising occurred but told the doctor that S.W. had been with her mother-Kendra Bernardi-for a supervised visit at the couple's home the day before. The doctor reported that S.W.'s bruises were 24 to 48 hours old and were consistent with being pinched. The doctor diagnosed the injury as "Child abuse, superficial abrasion to the abdomen and bruising [of the] abdominal wall." The doctor was unable to determine the cause of the bruising but described Arnott as "cooperative and protective."

¶5 The Department's intake system marked the doctor's report as "Priority 2," which required an investigation within fourteen days. The Department assigned employee Cari Davids to the case. Davids's supervisor informed her in a handwritten note that she needed to address the report "ASAP." Davids conducted an unannounced visit at Arnott and Hocter's home on December 29, 2009, the day after the report. Davids looked at S.W. and took pictures of her bruising. Davids described S.W. as "a happy alert baby." Davids described the couple's home as just at "minimal standards" and encouraged them to clean.

¶6 In response to Davids's questioning, Arnott and Hocter explained that they had brought S.W. to the hospital after they had noticed her bruises. But Arnott and Hocter told conflicting stories about when they first noticed S.W.'s bruises. The couple stated that at one point during Bernardi's visit at their home, the visit supervisor left Bernardi alone with S.W. Arnott and Hocter claimed to have heard S.W. crying at that time.

¶7 Davids arranged for S.W. to have a follow-up appointment with her pediatrician that day. Arnott brought S.W. to the appointment, which Davids also attended. The pediatrician diagnosed the bruising as "non-accidental trauma," but could not determine the cause or the estimated time when the bruising occurred. The pediatrician ordered a full-body bone scan for the following day. The pediatrician advised Davids that the scan revealed no additional trauma.

¶8 On December 30, 2009, Davids interviewed Bernardi, who stated that she did not recall seeing bruising on S.W.'s stomach during her visit. Davids also interviewed the visit supervisor, who largely confirmed Arnott and Hocter's version of events. That same day, Davids made a referral to the Great Falls Police Department, who sent a detective immediately to meet Hocter, Arnott, and S.W. at Davids's office. The detective interviewed Hocter and Arnott and took pictures of S.W.'s bruises. The detective told Davids that he did not have sufficient probable cause to charge anyone at that time.

¶9 On January 6, 2009, the State received an anonymous report about a strong odor of marijuana coming from Arnott and Hocter's apartment on two occasions and a child crying inside. Another Department employee closed the report, as Davids was already investigating the case.

¶10 Davids conducted another home visit on January 15, 2009. Davids reported that Arnott and Hocter's home was "above minimal standards" and that S.W. "looked healthy and happy." S.W.'s bruising was gone by this time. Davids stressed to Arnott his responsibility to keep S.W. safe. Davids closed the case and summarized the facts and her actions in an Investigative Safety Assessment. Davids determined that S.W. had not received serious, inflicted, physical harm, was not at risk of imminent harm, was safe in Arnott and Hocter's home,^[1] and that no more follow-up was required.

¶11 Three days later, on January 18, 2009, a labor and delivery nurse at Benefis Hospital reported to the State concerns that Arnott had left S.W. unattended in her car seat in Hocter's hospital room while Hocter was in labor and giving birth. The Department designated the report as a "Priority 0" because no conduct that met the definition of child abuse or neglect was alleged. The Department sent an employee to discuss the report with Arnott; the employee reported no concerns. S.W. remained in Arnott and Hocter's care until Hocter's assault on her one month later.

¶12 In 2013, S.W., through her guardian, brought a civil action against the State, alleging that the State, through the acts and omissions of its investigator Davids, breached its duty of reasonable care to protect S.W. from abuse. Following a years-long discovery process, the District Court issued a series of summary judgment orders and rulings on the parties' motions in limine. Relevant to this appeal, the District Court ruled:

(1) The State could not claim immunity pursuant to § 41-3-203(1), MCA, because the statute granted limited immunity to individual caseworkers but not to the State itself. The District Court held that even if the immunity provision applied, the State acted with gross negligence as a matter of law and thus was not protected by the provision.

(2) The State was negligent per se because it breached its duties under a Montana statute outlining actions the State must take on receipt of a child abuse report.

(3) The State was sanctioned for its inability to locate Davids's photos of S.W.'s initial bruises. The sanction allowed S.W. to inform the jury that the State had destroyed the evidence shortly after Hocter's assault on S.W.

(4) The statutory cap on government tort liability did not apply to this case; therefore, the District Court did not address S.W.'s constitutional challenge to the cap.

(5) An expert witness for the Department was precluded from testifying at trial.

(6) The State was precluded from arguing causation as a defense because the District Court concluded that Hocter's assault was foreseeable as a matter of law.

¶13 The District Court held a two-day jury trial on the sole remaining issue of damages. The court instructed the jury that the court had "found as a matter of law that the State of Montana was negligent and caused the injuries [S.W.] suffered on February 18, 2009." The jury awarded S.W. $16,652,538 for the loss of her future earning capacity, past personal care assistance, future life care costs, impairment of the capacity to pursue her established course of life, and mental and emotional suffering.

STANDARDS OF REVIEW

¶14 "The interpretation of a statute is a question of law that we review for correctness." Weber v. State, 2015 MT 161, ¶ 12, 379 Mont. 388, 352 P.3d 8 (citation omitted). We describe the standards of review for the remaining issues below.

DISCUSSION

¶15 Issue One: Whether the District Court erred by holding that the immunity provision of § 41 3-203(1), MCA,...