Tholen v. Assist America, Inc.

Filing 267

ORDER ADOPTING REPORT AND RECOMMENDATION - Defendant Assist America, Inc.'s objections (Doc. No. 259 ) to Magistrate Judge Steven E. Raus April 19, 2019 Report and Recommendation are OVERRULED. Magistrate Judge Steven E. Rau's April 19, 2019 Report and Recommendation (Doc. No. [247) is ADOPTED. Assist America is sanctioned as follows. (Written Opinion). Signed by Judge Donovan W. Frank on 6/6/2019. (See Order for details) (las)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Richard H. Tholen, M.D.,

Civil No. 17-3919 (DWF/SER)

Plaintiff,
v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

Assist America, Inc.,
Defendant.

This matter is before the Court upon Defendant Assist America, Inc.’s
(“Defendant”) objections (Doc. No. 259) to Magistrate Judge Steven E. Rau’s April 18,
2019 Report and Recommendation (Doc. No. 247) insofar as it recommends that
Defendant be sanctioned as follows: (1) Assist America’s failure will give rise to the
adverse inference that Assist America’s operations manual in effect at the time of
Dr. Tholen’s incident provided insufficient information to properly decide whether to
evacuate an Assist America member; (2) Assist America’s failure will give rise to the
adverse inference that Assist America’s operations manual in effect at the time of
Dr. Tholen’s incident provided insufficient information to properly decide whether an
Assist America member was receiving appropriate medical care; (3) Assist America’s
failure will give rise to the adverse inference that Assist America’s operations manual in
effect at the time of Dr. Tholen’s incident was not sufficiently disseminated to its
employees, depriving the employees of guidance from Assist America to properly decide
whether to evacuate an Assist America member; (4) Assist America’s failure will give

rise to the adverse inference that Assist America’s operations manual in effect at the time
of Dr. Tholen’s incident was not sufficiently disseminated to its employees, depriving the
employees of guidance from Assist America to properly decide whether an Assist
America member was receiving appropriate medical care; and (5) Assist America’s
failure will give rise to the adverse inference that Assist America has now altered its
operations manual as a result of Dr. Tholen’s incident. Plaintiff filed a response in
opposition to Defendant’s objections on May 20, 2019, (Doc. Nos. 263, 264), and a
Declaration of Patrick M. Arenz in Support of Plaintiff’s Response in Opposition to
Defendant’s Objection to Report and Recommendation. (Doc. No. 264.)
The Court has conducted a de novo review of the record, including a review of the
arguments and submissions of counsel, pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 72.2(b). The factual background for the above-entitled matter is clearly and
precisely set forth in the Report and Recommendation and is incorporated by reference
for purposes of Defendant’s objections.
Based upon the de novo review of the record and all of the arguments and
submissions of the parties and the Court being otherwise duly advised in the premises,
the Court hereby enters the following:
ORDER
1.

Defendant Assist America, Inc.’s objections (Doc. No. [259]) to Magistrate

Judge Steven E. Rau’s April 19, 2019 Report and Recommendation are OVERRULED.
2.

Magistrate Judge Steven E. Rau’s April 19, 2019 Report and

Recommendation (Doc. No. [247) is ADOPTED.
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Accordingly, IT IS HEREBY ORDERED that Assist America is sanctioned as
follows:
3.

Assist America’s failure will give rise to the adverse inference that Assist

America’s operations manual in effect at the time of Dr. Tholen’s incident provided
insufficient information to properly decide whether to evacuate an Assist America
member.
4.

Assist America’s failure will give rise to the adverse inference that Assist

America’s operations manual in effect at the time of Dr. Tholen’s incident provided
insufficient information to properly decide whether an Assist America member was
receiving appropriate medical care.
5.

Assist America’s failure will give rise to the adverse inference that Assist

America’s operations manual in effect at the time of Dr. Tholen’s incident was not
sufficiently disseminated to its employees, depriving the employees of guidance from
Assist America to properly decide whether to evacuate an Assist America member.
6.

Assist America’s failure will give rise to the adverse inference that Assist

America’s operations manual in effect at the time of Dr. Tholen’s incident was not
sufficiently disseminated to its employees, depriving the employees of guidance from
Assist America to properly decide whether an Assist America member was receiving
appropriate medical care.

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7.

Assist America’s failure will give rise to the adverse inference that Assist

America has now altered its operations manual as a result of Dr. Tholen’s incident.
8.

The Court will address at the pretrial hearing the content of and timing for

when instructions relating to these adverse inferences should be given to the jury,
including the Court’s analysis pursuant to Article 4 of the Federal Rules of Evidence.
Dated: June 6, 2019

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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