United States District Court, D. Montana, Great Falls Division
CONNIE R. MELASHENKO and ROBERT A. MELASHENKO, Plaintiffs,
UNIGARD INSURANCE COMPANY, and SAFECO INSURANCE COMPANY OF ILLINOIS Defendant.
JOHNSTON UNITED STATES MAGISTRATE JUDGE
Unigard Insurance Company (“Unigard”) filed a
Motion in Limine to “exclude any and all testimony and
evidence that Plaintiff's April 3, 2014 fall was causally
connected tot he injuries she allegedly suffered from her
November 2, 2013, pedestrian-auto accident” by several
of Ms. Melashenko's treating physicians. (Doc. 22). The
motion is fully briefed. (Docs. 23, 26-27). Unigard's
motion is denied.
November 2, 2013, Ms. Connie Melashenko was struck by a
vehicle while crossing the street in Camden, Maine. Ms.
Melashenko reported pain in her right elbow, right wrist, and
right ankle area, which required surgery. After she returned
home to Great Falls, she was under the care of several
providers. On April 4, 2013, Ms. Melashenko suffered a fall
in her kitchen, resulting in her fracturing her right arm,
injuring her right knee and right ankle, breaking her nose
and lacerating her lip. (Docs. 23 at 3-4, 26 at 6-8).
Melashenko's expert disclosure, she identified fourteen
medical providers (one retained expert, thirteen non-retained
experts) to testify as to their care and treatment of Ms.
Melashenko for her injures. (Doc. 23-1 at 2-9). Unigard seeks
to exclude testimony from six of the potential non-retained
witnesses: (1) Alexander Chung, MD; (2) Ronald G. Ray, DPM;
(3) Melanie Raffensperger, OTR/L; (4) Traci L. Martin, PT;
(5) Gregg D. Pike, MD; and (6) David W. Shenton, Jr., MD
(hereinafter collectively the “treating
providers”). (Doc. 23 at 2). Ms. Melashenko's
disclosure stated that the treating providers “may
testify that the injuries for which [they] treated her were
caused by the November 2, 2013, auto accident and her
subsequent fall which occurred on April 3, 2014, and that the
subsequent fall on April 3, 2014, was caused by the injuries
sustained in the November 2, 2013, accident.” (Doc.
23-1 at 3). Ms. Melashenko did not provide written reports
for the treating providers, listing them instead as
“non-retained experts.” (Id. at 2).
Unigard filed the instant motion on September 6, 2017. (Doc.
argues that none of the treating providers' records of
Ms. Melashenko's treatment identify or establish a causal
connection between the November 2, 2013 pedestrian-auto
accident and the April 3, 2014 fall. (Doc. 23 at 4). Because
Ms. Melashenko did not provide an expert report pursuant to
Rule 26(a)(2)(B), Unigard argues that the treating providers
should be prevented from offering conclusions regarding such
causation which were not formulated during their course of
treating Ms. Melashenko. (Id. at 6).
Melashenko argues that Rule 26(a)(2)(B) did not require her
to provide a written report for the treating providers
because the treating providers were not retained as experts.
(See Doc. 23-1 at 2). Furthermore, Ms. Melashenko
argues that the treating providers' opinions on whether
the injuries sustained in the November 2, 2013 collision
caused the April 3, 2014 fall are admissible because the
medical records indicate that each treating provider
considered the November 2, 2013 collision in their treatment
of Ms. Melashenko's right knee and ankle, as well as this
fall's in causing all of the falls Ms. Melashenko
suffered, specifically the April 3, 2014 fall. (Doc. 26 at
have “wide discretion” when considering and
ruling on a motion in limine. Ficek v. Kolberg-Pioneer,
Inc., 2011 WL 1316801 at *1 (D. Mont. Apr. 5, 2011)
(citing Trichtler v. Co. of Lake, 358 F.3d 1150,
1155 (9th Cir. 2004)). A court will grant a motion in limine
and exclude evidence only if the evidence is
“inadmissible on all potential grounds.”
Educ. Logistics Inc. v. Laidlaw Transit Inc., 2012
WL 1142513, at * 1 (D. Mont. April 4, 2012) (citations and
internal quotation marks omitted). “Unless evidence
meets this high standard, evidentiary rulings should be
deferred until trial so that questions of foundation,
relevancy and potential prejudice may be resolved in proper
context.” Id. (citations and internal
quotation marks omitted). “This is because although
rulings on motions in limine may save time, costs, effort and
preparation, a court is almost always better situated during
the actual trial to assess the value and utility of
evidence.” Id. (citations and internal
quotation marks omitted).
issues of this motion are whether the treating providers were
exempt from the required disclosure of a written report under
Federal Rule of Civil Procedure 26(a)(2)(B), and if so, what
of their opinions were formed within ...