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

July 21 2010
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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