06/30/2020
DA 18-0688
Case Number: DA 18-0688
IN THE SUPREME COURT OF THE STATE OF MONTANA
2020 MT 169N
IN THE MATTER OF:
R.B.,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDI 2018-32
Honorable Michael F. McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Christopher D. Abbott,
Assistant Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Katie Jerstad, Deputy
County Attorney, Helena, Montana
Submitted on Briefs: June 10, 2020
Decided: June 30, 2020
Filed:
cir-641.—if
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 R.B. appeals from the District Court’s order of involuntary commitment based upon
mental disorder. Section 53-21-102(7) through -127(2), MCA. After a two-day trial, a
jury determined that R.B. suffered from a mental disorder and required commitment,
finding specifically, as the verdict form was summarized by the District Court, that R.B.,
“due to his mental disorder, was substantially unable to provide for his own basic needs of
food, clothing, shelter, health or safety; was an imminent threat of injury to [himself] or to
others because of his acts or omissions; and will if untreated, predictably result in
deterioration of his mental condition to the point at which he will become a danger to self
or others or will be unable to provide for his own basic needs of food, clothing, shelter,
health or safety.”1 Immediately after entry of the verdict, the District Court conducted a
dispositional hearing and entered its findings of fact, conclusions of law and an order. The
District Court found that R.B.’s “treatment needs require psychiatric treatment in a long
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The jury expressly did not find that R.B. had “recently, because of a mental disorder and through
an act or an omission, caused self-injury or injury to others.”
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term, secure, structured in-patient facility,” and that the Montana State Hospital (MSH)
was the least restrictive alternative available to meet R.B.’s needs, because it was “the only
alternative available to provide the required level of security.” R.B. was committed to
MSH for a period not to exceed 90 days.
¶3 R.B. is 64 years old and has a history of serious medical conditions, including
cardiac problems that required implantation of an automatic defibrillator in his heart. The
defibrillator can produce blood clots, increasing his risk of stroke. R.B. suffered a stroke
in April 2018, after which he began experiencing memory loss, disorientation and
confusion. In the following months, friends and law enforcement located R.B. walking in
Helena on multiple occasions, appearing lost and without shoes. Dr. Ashley Basten, a
hospitalist at St. Peter’s Health, expressed concern during her testimony that, if such an
event would occur during the winter season, it would be fatal to R.B. R.B. was taken to
the emergency room many times for confusion and physical complaints. He had difficulty
thinking rationally and, even in a hospital setting, struggled to remember to eat, bathe, and
care for his hygiene. Attempts to place R.B. in an assisted living facility were unsuccessful,
as he repeatedly left the facilities against medical advice, including a skilled nursing facility
in Missoula. He slept in a car for two nights in September 2018, after which he got lost in
Helena, and upon being located was taken to the St. Peter’s Hospital emergency room.
When he tried to leave, he was placed in emergency detention, and an evaluation was
conducted by Karrie Bird, LCPC, a mental health professional person at Western Montana
Mental Health Services in Helena. Bird, noting an observation from Dr. Basten that R.B.
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“cannot follow instructions,” opined in her initial report that “[R.B.] presents imminent
danger to himself due to his altered mental status and inability to meet his own needs of
shelter and safety,” upon which the State filed a petition for involuntary commitment,
leading to R.B.’s trial.
¶4 In an involuntary commitment proceeding, the State must prove physical facts or
evidence beyond a reasonable doubt and “all other matters” by clear and convincing
evidence. Section 53-21-126(2), MCA. “The district court, as the fact finder, evaluates if
the [State] has met its burden of presenting clear and convincing evidence regarding all
required elements for [the commitment]. . . . Upon appeal, . . . this Court does not substitute
its judgment as to the strength of the evidence for that of the district court.” In re B.J.J.,
2019 MT 129, ¶ 10, 396 Mont. 108, 443 P.3d 488. We instead review a district court’s
commitment order to determine whether its findings of fact are clearly erroneous and its
conclusions of law are correct. In re S.H., 2016 MT 137, ¶ 8, 383 Mont. 497, 374 P.3d
693. An appeal from an order of involuntary commitment is not moot despite the
respondent’s release because the issues are capable of repetition and yet otherwise would
evade review. In re S.H., ¶ 9.
¶5 R.B.’s appeal focuses on a sole objection made by his counsel during the trial to the
basis of Bird’s testimony regarding a key issue in the proceeding, which R.B.’s appellate
briefing describes as “whether R.B.’s symptoms were ‘medical,’ requiring medical
treatment, or ‘mental,’ requiring psychiatric treatment.” R.B. contends that, rather than
offering her own professional opinion, Bird conveyed the opinions of medical doctors that
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R.B.’s condition was not primarily a medical one, which constituted impermissible hearsay
evidence going to the truth of the matter asserted—that R.B. suffered from a mental
disorder.
¶6 Dr. Basten was the first professional person to testify at trial. Basten had treated
R.B. on multiple admissions at the St. Peter’s Hospital emergency room, and had attempted
to secure a primary care physician relationship for R.B., but R.B. would not follow through
with the appointments made for him with local physicians. She likewise was involved in
attempting to secure a facility placement for R.B. Referencing her treatment of R.B. in
August 2018, Basten testified:
Q. Okay. And at that point in time, what were his diagnoses?
A. The biggest one was the stroke extension. So ischemic stroke with more
brain tissue involved, cognitive d[y]sfunction, which is a term for not being
able to think clearly, and vascular dementia, which is a form of dementia
caused by strokes.
. . .
Q. Okay. But suffice to say while you are treating him for stroke, you’re also
paying attention to some of these other conditions –
A. Yes, ma’am.
Q. -- that he’s been diagnosed with? Okay. And how confident are you in
your vascular dementia diagnoses and the other conditions, the cognitive
d[y]sfunction and the stroke extension that you testified to earlier? I guess
what I’m asking is, how confident are you that his current mental state is
attributable to those things and not, for instance, just a side effect of one of
his medications or the heart condition?
A. Very confident. And one reason I don’t think it’s a side effect of
medications is he’s often off of his medications when he comes in more
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confused. When we get him back onto the medications, he does do some
better but not -- not well enough to take care of himself.
¶7 Bird then testified regarding her evaluation of R.B. In explaining the efforts she
undertook to reach her opinions, Bird explained the medical records she reviewed and the
consultations she had with other medical providers, including physicians, which led up to
the formation of her opinion. During that explanation, R.B.’s objection was entered:
Q. What was the information that you obtained, and what did you rely --
what did you rely upon in reaching your opinion today?
A. So I relied on multiple medical records that we’ve obtained relating to
[R.B.’s] care over the past few months. Multiple doctors in speaking with
me who have helped him have informed me that they did not feel it was a
medical issue. The cardiologist did send -- we got a note by the cardiologist
who specified that that question had been presented and that she [] did not
feel that it was related to a heart problem at all.
MR. TROSPER: Objection. Hearsay.
THE COURT: Overruled.
Bird then proceeded to offer her own opinion:
Q. And what opinion ha[ve] you concluded?
A. So based on the records that I’ve reviewed and just the recommendations
of the professional people that I have spoken to about his care, also my
observations of his mental status at different times, I feel that he needs to be
committed. I don’t feel like he can take care of himself independently.
Q. Okay. And do you know what mental disorder he suffers from?
A. . . . I’ve diagnosed him with an unspecified neural cognitive disorder
which would support and cover as a broad diagnosis dementia processes.
(Emphasis added.).
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¶8 Later, outside the presence of the jury, the District Court brought up counsel’s
objection, noting that, “in the Matter of C.K. [2017 MT 69, 387 Mont. 127, 391 P.3d 735],
the Supreme Court says there is no requirement the facts upon which an expert relies in
forming an opinion to be themselves admissible evidence.” Counsel replied, “I realized
that I had made a stupid objection.”
¶9 Well, yes and no. The District Court correctly referenced the rule we articulated in
In re C.K., regarding commitment proceedings, specifically, that “subject to limitation or
exclusion under Rule 403, otherwise inadmissible hearsay may be admissible through an
expert under Rule 703 upon proper foundation and for the limited purpose of explaining
the basis of the expert’s opinion rather than proving the facts asserted in the statement.” In
re C.K., ¶ 29. However, counsel’s objection was made at a point in Bird’s testimony where
it appeared Bird was simply going to offer the opinion of other experts with regard to the
nature of R.B.’s mental difficulties, which, standing alone, would have been an improper
foundation for her testimony. In other words, the role of the professional person is not to
simply present a survey of the opinion of other professionals, but to offer her own opinion.
See In re C.K., ¶ 28 (“Waples [properly] based her opinion testimony on her professional
expertise, her own personal observations, and otherwise inadmissible hearsay of a type
reasonably relied upon by mental health experts.”). Had Bird offered no more, the
objection to the foundation of her testimony would have been appropriate. However,
considering her testimony as a whole, Bird offered, not merely the opinions of other
professionals, but her own opinion based upon her own investigation, including her own
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observations. Bird provided her own diagnosis of R.B.’s mental disorder and, although
this specific diagnosis was not also offered by Dr. Basten, the nature of R.B.’s condition
as a mental issue, rather than a physical condition, was confirmed by Dr. Basten. While
R.B. points to statements made during the course of Bird’s investigation about her concern
that R.B.’s problems were only medical in nature, she ultimately resolved the issue to the
contrary.
¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review, and the District Court committed no reversible error.
¶11 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ LAURIE McKINNON
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