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Melashenko v. Unigard Insurance Co.

United States District Court, D. Montana, Great Falls Division

October 23, 2017

CONNIE R. MELASHENKO and ROBERT A. MELASHENKO, Plaintiffs,
v.
UNIGARD INSURANCE COMPANY, and SAFECO INSURANCE COMPANY OF ILLINOIS Defendant.

          ORDER

          JOHN JOHNSTON UNITED STATES MAGISTRATE JUDGE

         I. SYNOPSIS

         Defendant 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.

         II. BACKGROUND

         On 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).

         In Ms. 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. 22).

         IV. PARTIES' ARGUMENTS

         Unigard 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).

         Ms. 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 5).

         V. DISCUSSION

         A. Legal Standard

         Courts 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).

         B. Analysis

         The 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 ...


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