ORDER DENYING PETITIONER'S MOTION IN
M. SANDLER JUDGE
Petitioner moves for an order excluding her employer's
former store manager's written statements - which recount
that Petitioner stated she injured her shoulder when she
tripped over her dogs - from evidence as inadmissible
hearsay. Petitioner also asserts that the written statements
are inadmissible because Respondent did not make the
employer's former store manager available for a
deposition or subpoena her after she told Respondent's
attorney that she would not appear without a subpoena.
Petitioner's Motion in Limine is denied. This Court
reserves ruling on whether the written statements are
admissible under the hearsay exception for present sense
impressions, M.R.Evid. 803(1), until trial, at which time
Respondent will have the opportunity to lay the required
foundation. Moreover, because the store manager no longer
worked for Petitioner's employer, Respondent had no duty
to produce the former store manager for a deposition and no
duty to subpoena the store manager to a deposition Petitioner
1 This matter is before this Court on Petitioner Carmen
Heichel's Motion in Limine, in which Heichel seeks an
order excluding from evidence two written statements from her
employer's former store manager recounting that Heichel
said she hurt her shoulder when she tripped over her dogs.
Heichel contends that the written statements are inadmissible
hearsay. Respondent Liberty Mutual Insurance (Liberty)
opposes Heichel's motion.
2 Heichel worked at Manito Super 1 Foods (Super 1) in
Kalispell. In the fall of 2015, Deanna Guertin, f/k/a Deanna
Hegdahl (Guertin) was the store manager at Super 1.
3 Guertin wrote a statement, dated October 13, 2015, and put
it in Heichel's personnel file, stating:
Carmen Heichel came into my office to drop by her
doctor's note about being off of work. I asked her what
had happened and she said that [she] tripped over her dog and
hurt her shoulder, after wards [sic], by the other dogs being
on top of her. Mary Dahlke was also in the office at the time
of this statement.
wrote another statement, dated November 16, 2015, and put it
in Heichel's personnel file, stating:
Carmen Heichel came to see me today with her FMLA paperwork
in hand. She wanted to talk to me about her insurance and how
cobra got started. She shared her concerns about how she was
going to pay for the possible upcoming surgery. She said, at
that point, that she didn't understand why work
wasn't covering it because it was due to the donut
frying. I reminded Carmen at that point, that she had told me
and others at the time of the original accident, (at the
beginning of October) that she had hurt her shoulder by
tripping over her dogs. She said she knew that but maybe it
was from donut frying. I just said again that she had told us
it was from tripping over her dogs. She didn't say
anything back to me.
4 On November 23, 2015, Heichel filed a First Report of
Injury or Occupational Disease. She alleges she injured her
shoulder and neck while lifting a bucket on September 21,
2015, in the course of her employment with Super 1.
5 Liberty denied liability for Heichel's claim, asserting
that Heichel did not suffer a compensable injury at work. In
the alternative, Liberty asserts that Heichel did not timely
notify Super 1 of her alleged injury, pursuant to §
6 On August 1, 2017, Liberty took Heichel's deposition.
Liberty marked Guertin's written statement dated October
13, 2015, as Exhibit 8. Heichel did not object. When
questioned about the contents of this written statement,
Heichel testified that she gave Guertin her doctor's
note, that Mary Dahlke was in Guertin's office, but that
she did not remember telling Guertin that she hurt her
shoulder when she fell over her dog. Liberty marked
Guertin's written statement dated November 16, 2015, as
Exhibit 9. Heichel did not object. When questioned about the
contents of this written statement, Heichel testified that
she and Guertin spoke about whether Heichel needed another
MRI and surgery, but that she did not remember telling
Guertin that she hurt her shoulder when she was frying or
cranking donuts, and that she did not remember talking about
falling over her dog.
7 On August 11, 2017, Heichel's attorney emailed
Liberty's attorney regarding additional depositions.
Heichel's attorney asked Liberty's attorney to
produce the witnesses that still worked for Super 1. He
further stated he intended to notice the deposition of
Guertin, whom he knew no longer worked for Super 1, and said
he would subpoena her if necessary.
8 On December 21, 2017, Liberty's attorney responded to a
letter from Heichel's attorney and let him know she was
available for Guertin's deposition on January 8, 2018.
She also asked him to let her know if he was going to
subpoena Guertin, or if she had agreed to appear.
9 On December 29, 2017, Heichel served a Notice of
Perpetuation Deposition upon Liberty, giving notice that she
was taking Guertin's deposition on January 8, ...