July 21 2010
DA 09-0677
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 158N
RANDALL M. QUAM,
Plaintiff and Appellant,
v.
JAMES R. HALVERSON,
Defendant and Appellee.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DV 09-249B
Honorable Mike Salvagni, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Martin R. Studer, Studer Law Offices, Bozeman, Montana
For Appellee:
Allan H. Baris, Moore, O’Connell & Refling, P.C., Bozeman, Montana
Submitted on Briefs: June 29, 2010
Decided: July 20, 2010
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court and its case title, Supreme Court 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 Randall M. Quam filed suit against James R. Halverson for violating the Uniform
Health Care Information Act (in particular, § 50-16-536(1), MCA), Rule 45(b)(1) of the
Montana Rules of Civil Procedure, and his constitutional right of privacy. Halverson
filed a motion to dismiss under Rule 12(b)(6), and Quam filed a motion for summary
judgment. The Eighteenth Judicial District Court, Gallatin County, granted the motion to
dismiss and denied the motion for summary judgment.
¶3 The factual basis for Quam’s complaint involves a motor vehicle accident with
Nancy Sebena in July 2005. Quam alleges that his neck was injured in this accident, and
he filed suit against Sebena for damages. Halverson represents Sebena in the accident
suit. In January 2009, Halverson issued a subpoena duces tecum “commanding” Dr. John
Campbell and Bridger Orthopedic to produce “all of [their] records regarding . . . Quam,
including, but not limited to medical records, notes, charts, radiology reports, medical
bills, and correspondence.” Campbell and Bridger Orthopedic produced the records in
accordance with the subpoena.
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¶4 Quam contends in the present suit that Halverson violated § 50-16-536(1), MCA,
by failing to give him or his counsel ten days written notice of the subpoena prior to its
issuance. The District Court dismissed this claim, without prejudice, because Quam had
failed to plead in his original complaint or his amended complaint that Halverson sought
his healthcare information pursuant to subsections (1)(b), (1)(d), (1)(e), or (1)(j) of
§ 50-16-535, MCA, which are the provisions that trigger the notice requirement. See
§ 50-16-536(1), MCA.
¶5 Quam further contends that Halverson’s issuance of the subpoena violated
§ 50-16-536(2), MCA, because it lacked the requisite certification. However, because
Quam did not allege this violation in his original complaint or his amended complaint,
but rather asserted it in his response to Halverson’s motion to dismiss, the District Court
held that Halverson’s compliance or noncompliance with § 50-16-536(2), MCA, was
immaterial.
¶6 Next, Quam contends that Halverson violated Rule 45(b)(1) by failing to serve a
copy of the subpoena on his counsel prior to its issuance. The District Court dismissed
this claim, with prejudice, due to a lack of precedent supporting recognition of an
independent cause of action for an alleged violation of the Montana Rules of Civil
Procedure, and due to the adequate sanctions and protections available to Quam in the
underlying accident suit under M. R. Civ. P. 26(c), 45(c)(1), and 45(c)(3).
¶7 Finally, Quam contends that Halverson’s issuance of the subpoena violated his
constitutional right to privacy under Article II, Section 10 of the Montana Constitution.
Based on State v. Long, 216 Mont. 65, 71, 700 P.2d 153, 157 (1985), the District Court
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ruled that individuals do not have a cause of action against private citizens who have
allegedly violated their right to privacy. Accordingly, because Halverson is a private
citizen who was not acting under color of state law at the time he issued the allegedly
unlawful subpoena, the court dismissed this claim with prejudice.
¶8 On appeal, Quam challenges the District Court’s rulings on various grounds.
However, having reviewed the court’s Decision and Order and the parties’ briefs on
appeal, we have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. It is manifest on the record before us that Quam has failed to
demonstrate error in the District Court’s decision.
¶9 Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
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