United States of America et al v. St. Mark's Hospital et al

Filing 430

MEMORANDUM DECISION AND ORDER granting 332 Motion to Deny or Defer Consideration of Sorensen Defendants' Motion for Summary Judgment ; denying 300 Motion for Summary Judgment. Signed by Judge Ted Stewart on 3/9/2020. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA, ex rel.
GERALD POLUKOFF, M.D.,
Plaintiff/Relator,
v.
ST. MARK’S HOSPITAL;
INTERMOUNTAIN HEALTHCARE,
INC.; INTERMOUNTAIN MEDICAL
CENTER; SHERMAN SORENSEN, M.D.,
and SORENSEN CARDIOVASCULAR
GROUP,

MEMORANDUM DECISION AND
ORDER GRANTING RULE 56(d)
MOTION TO DENY OR DEFER
CONSIDERATION OF MOTION FOR
SUMMARY JUDGMENT

Case No. 2:16-CV-304-TS-EJF
District Judge Ted Stewart

Defendants.

This matter is before the Court on Plaintiff/Relator Gerald Polukoff, M.D.’s (“Relator”)
Rule 56(d) Motion to Deny or Defer Consideration (“Motion”) of the Motion for Summary
Judgment filed by Sherman Sorensen, M.D. (“Dr. Sorensen”) and Sorensen Cardiovascular
Group. For the reasons discussed below, the Court will grant the Motion.
I. STANDARD
Federal Rule of Civil Procedure 56(d) 1 provides a relief mechanism for a non-moving
party in a summary judgment motion, if that party shows by affidavit or declaration that “it
cannot present facts essential to justify its opposition” to the motion. 2 Rule 56(d) is “designed to

1

“Subdivision (d) carries forward without substantial change the provisions of former
subdivision (f).” FED. R. CIV. P. 56(d) advisory committee’s note to 2010 amendment.
2

See FED. R. CIV. P. 56(d).

safeguard against a premature or improvident grant of summary judgment.” 3 In the Tenth
Circuit, however, it “does not operate automatically.” 4 Rather, “a party seeking to defer a ruling
on summary judgment under Rule [56(d)] must provide an affidavit ‘explain[ing] why facts
precluding summary judgment cannot be presented.’” 5 Specifically, the party must identify “(1)
the probable facts not available, (2) why those facts cannot be presented currently, (3) what steps
have been taken to obtain these facts, and (4) how additional time will enable [the party] to
obtain those facts and rebut the motion for summary judgment.” 6 While “[s]peculation cannot
support a Rule 56(d) motion,” 7 “[u]nless dilatory or lacking in merit, the motion should be
liberally treated.” 8
II. DISCUSSION
The Court finds that Relator has met his burden under Rule 56(d). He supports the
Motion with an affidavit of his attorney, David. L. Hobbs. 9 Through the affidavit, Relator
requests additional time to conduct discovery on issues including: medical records for
government-paid PFO/ASD closures that Dr. Sorensen performed, Dr. Sorensen’s knowledge
concerning how these closures squared with medical community standards, his knowledge of

3

Pasternak v. Lear Petroleum Expl., Inc., 790 F.2d 828, 833 (10th Cir. 1986).

4

Price ex rel. Price v. W. Res., Inc., 232 F.3d 779, 783 (10th Cir. 2000).

5

Valley Forge Ins. Co., v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th
Cir. 2010) (quoting Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th
Cir.1992)) (second alteration in original).
6

Id. (alterations in original) (quotation marks omitted).

7

FDIC v. Arciero, 741 F.3d 1111, 1116 (10th Cir. 2013).

8

Comm. for First Amendment, 962 F.2d at 1522.

9

See Docket No. 332-1.

private insurers denying payment for closures he performed on the basis that they were medically
unnecessary, and other probable facts. 10 In the affidavit, Relator also describes when he will
likely obtain parts of this information in accordance with the phased discovery schedule, names
and/or titles of witnesses he believes will have relevant information, steps he has taken to pursue
depositions and other discovery, reasons he has been unable to complete necessary discovery,
and how additional time will enable him to rebut arguments for summary judgment. 11 In
addition, it does not appear Relator has been dilatory in his discovery efforts.
III. CONCLUSION
It is therefore,
ORDERED that Relator’s Rule 56(d) Motion (Docket No. 332) is GRANTED.
It is Further ORDERED that Defendants’ Motion for Summary Judgment (Docket No.
300) is DENIED WITHOUT PREJUDICE.
DATED this 9th day of March, 2020.
BY THE COURT:

Ted Stewart
United States District Judge

10

See id. at 3.

11

See id. at 3–6.