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Henze v. State

United States District Court, D. Montana, Helena Division

March 27, 2019

MARK HENZE, Plaintiff,


          Charles C. Lovell Senior United States District Judge

         Before the Court are Plaintiffs Motion in Limine Regarding Prior Convictions (Doc. 38), Plaintiffs Affirmative Motion in Limine Re: Presentence Investigation and Report (Doc. 40), Defendant State of Montana's Motion in Limine (Doc. 36), Defendant State of Montana's Unopposed Motion to Withdraw Certain Arguments Related to Pending Motions in Limine (Doc. 78), and Defendant State of Montana's Motion for Leave to File a Motion for Reconsideration. (Doc. 91). Each party has filed a Final Pretrial Conference Memorandum (Docs. 80 and 87), which touches on some of the issues raised in the pending motions. The Court has therefore reviewed those memoranda along with the proposed final pretrial order and the briefs supporting the pending motions.

         The Court indicated in its order granting in part the State's summary judgment motion that it would defer ruling on the motions in limine until the final pretrial conference. (Doc. 64 at 27, n. 4). The Court recently issued an order resetting the trial date for the second time, based on Plaintiffs inability to attend trial, and has determined that a ruling on the pending motions may assist the parties in preparing a revised final pretrial order.


         "A motion in limine is a procedural mechanism to limit in advance testimony or evidence in a particular area." United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009). This Court "is vested with broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial." Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir. 1980). Some rulings on evidentiary issues should be deferred until trial, particularly issues involving the balancing of probative value and prejudice, as required by Fed.R.Evid. 403, which is incorporated in Fed.R.Evid. 609. See United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (en banc), cert, denied, 444 U.S. 1034 (1980), overruled on other grounds in Luce v. United States, 469 U.S. 38 (1984). As explained by the United States Supreme Court in Luce, any pretrial ruling on a motion in limine "is subject to change" because new evidence may come in during trial necessitating a change in the ruling. Luce, 469 U.S. at 41.


         1. Plaintiffs Motion in Limine Regarding Prior Convictions.

         Although Defendant State of Montana has withdrawn its opposition to Plaintiffs Motion in Limine Regarding Prior Convictions (Doc. 78), the State argues in its Final Pretrial Conference Memorandum that "Defendant expects to offer evidence under Rule 608 that affects Henze's credibility, something clearly permissible." (Doc. 80 at 7). The State also references Rule 609, indicating that it may attempt to impeach Plaintiff by asking about his prior felony conviction. Although Plaintiffs prior felony conviction is admissible under Fed.R.Evid. 609(a)(1)(A) to impeach Plaintiff, its admission is subject to Rule 403, which requires the Court to balance the probative value of the evidence against its prejudicial effect.

         Given the nature of the underlying offense and the State's withdrawal of its opposition to Plaintiffs motion, the Court agrees that the State should not be allowed to affirmatively refer to Plaintiffs prior conviction. Plaintiffs motion in limine is granted as follows: while the State may cross-examine Plaintiff as to whether he has a prior felony conviction, the State may not ask Plaintiff for details about his crime and may not mention the nature of the crime.

         2. Plaintiffs Affirmative Motion in Limine Re: Presentence Investigation and Report, Prior to the Court's summary judgment ruling, Plaintiff moved for a pretrial Order "permitting him to present evidence, elicit testimony, and to otherwise argue to the jury about certain content in his Pre-Sentence Investigation Report dated January 19, 2011." (Doc. 41 at 1). The only information in the Pre-Sentence Investigation Report that Plaintiff wants to go to the jury is the following paragraph contained in the Comments portion of the document: "HEALTH: Defendant reports his health is good but was born with ornithine transcarbamylase deficiency or OTC. Defendant states his OTC is controlled with a low-protein diet and is not on any medication for this disease. He was treated for OTC by Janet A. Thomas, M.D., from Denver, Colorado. Defendant reports needing some dental work." (Doc. 71 -23, Plaintiffs' Proposed Exhibit 42, at 6).

         Plaintiff contends that this information is relevant to his common law negligence claim against the State because "[w]hether the State, via its employees, knew or should have known about Mr. Henze's serious medical condition is an important issue of fact that impacts foreseeability." (Doc. 56 at 4).

         Mr. Henze is correct that to prove his negligence case against the State, he likely needs to prove that at least one State employee (other than medical professionals or nutritionists) knew that he had a serious medical condition as part of proving that the State was negligent. Simply introducing evidence that the information was in Mr. Henze's Pre-Sentence Investigation Report will not satisfy that burden because it seems unlikely that every employee who encountered Mr. Henze while he was incarcerated was privy to his Pre-Sentence Investigation Report. Plaintiffs counsel is free to ask the various employees who dealt with Mr. Henze whether they had access to and reviewed the Pre-Sentence Investigation Report before the employee committed the alleged act or omission that forms the basis of Mr. Henze's claim. At this point, Mr. Henze has not presented a sufficient basis to overcome the State's objection to his presenting the highly redacted version of the Pre-Sentence Investigation Report, Plaintiffs Proposed Ex. 42, at trial.

         3. Defendant State of Montana's Motions in Limine.

         (1) Testimony of Plaintiff s treating doctors outside care, treatment and prognosis.

         The State contends that the testimony of Mr. Henze's former treating doctors should be limited to their care, treatment and prognosis, even though they were identified as expert witnesses, because they did not submit expert reports. (Doc. 37 at 2). Plaintiff responds that the expert report requirement of Fed.R.Civ.P. 26(b)(2)(B) does not apply to his treating physicians because they "were not 'retained or specially employed to provide expert testimony' in this case" and are "clearly entitled to testify consistent with their own records as well as the nature of the care and treatment rendered to the Plaintiff, their diagnosis and, notably, their prognoses regarding the Plaintiff, as Defendants acknowledge." (Doc. 53 at 7).

         The Court agrees with Mr. Henze that failure to submit an expert report does not automatically warrant exclusion of expert testimony by a non-retained expert witness. Although a party is required to make a disclosure about the testimony of witnesses who are not "retained or specially employed to provide expert testimony in the case" or "whose duties as the party's employee [do not] regularly involve giving expert testimony" (Fed. R. Civ. P. 26(a)(2)(B)), such witnesses are not normally required to provide a written report. (Fed. R. Civ. P. 26(a)(2)(C)). The State took advantage of Rule 26(a)(2)(C) by identifying six state employees as "hybrid witnesses" in its own expert disclosure. (Doc. 33-35).

         The United States District Court for the District of Montana recognizes that, as a general rule, treatment providers are retained to provide treatment, not to provide expert testimony, and are therefore exempt from the report requirement of Fed.R.Civ.P. 26(a)(2)(B). Munter v. Schmidt, 2018 WL 4855460, * 1 (D. Mont. Oct. 5, 2018)(citing Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 2011). The Court does, however, require a party to provide a written report when that party seeks to offer testimony from a treatment provider that goes beyond care, treatment and prognosis. See Cintron v. Title Financial Corp., 2018 WL 6605901 at * 6 (D. Mont Dec. 17, 2018)(quoting from a previous order requiring full compliance with the discovery requirements of Fed.R.Civ.P. 26(a)(2)(B) if a "treating physician's testimony goes beyond care, treatment and prognosis"); see also Mears v. Safeco Ins, Co. of Illinois, 888 F.Supp.2d 1048, 1055 (D. Mont. 2012), affd, 572 Fed.Appx. 503 (9th Cir. 2014) (unpublished) (stating "Where a party uses a treating physician to render expert testimony beyond the scope of the treatment rendered, and the physician considers information he did not review during the course of treatment, Rule 26(a)(2)(B) requires disclosure of written reports.")

         This Court clarified the issue as to when a treatment provider must comply with Fed.R.Civ.P. 26(a)(2)(B) in its preliminary scheduling order in this case: "In this regard, a treating physician is not considered an expert witness unless the testimony offered by the treating physician goes beyond care, treatment and prognosis. If the treating physician's testimony goes beyond care, treatment and prognosis then there must be full compliance with the discovery requirements of Rule 26(a)(2)(B)." (Doc. 13 at 4, ¶ 8). This language is consistent with controlling Ninth Circuit law, which provides: "a treating physician is only exempt from Rule 26(a)(2)(B)'s written report requirement to the extent that his opinions were formed during the course of treatment." Goodman 644 F.3d at 826.

         Plaintiff identified three of his treatment providers (Dr. Yang, Dr. Smelko, and Dr. Schimpff) as liability experts in his expert disclosure and stated that their facts and opinions were contained in medical records provided to Defendants. Plaintiff disclosed three additional treatment providers (Dr. Thomas, Dr. Mclsaac, and Dr. Catalanello) as damages experts whose facts and opinions were contained in medical records previously provided to Defendants. (Doc. 33-34).

         Based on its review of Plaintiff s expert disclosures and the medical records and deposition transcripts provided by both parties in support of and opposition to Defendants' motion for summary judgment, the Court concluded that Mr. Henze's treating physicians could not testify as to the standard of care for health care providers or nutritionists employed by the State of Montana because his disclosures regarding those "hybrid" experts did not include their opinions or anticipated testimony regarding the applicable standard of care or breach of that standard for state employees at Montana State Prison (MSP) or Treasure State Correctional Training Center (TSCTC or Boot Camp). (Doc. 64 at 14 and 26). Such evidence is no longer relevant, given that the Court granted summary judgment as to Count III of Plaintiffs First Amended Complaint (the failure to supervise and train claim) and the second Count IV of Plaintiff s First Amended Complaint (the negligence claim based on failure by health care providers and nutritionists to comply with the applicable standard of care). (Doc. 64 at 25 - 26 and 29).

         Defendant's motion in limine to exclude testimony of Plaintiff s treating doctors outside their care, treatment and prognosis of Plaintiff as revealed in their treatment records is granted. Plaintiffs treatment providers may testify as to the opinions they formed during Plaintiffs treatment regarding causation, the need for future treatment, and the severity of Plaintiff s injury to the extent that his medical records support those opinions and those records were disclosed to the State during discovery. Although Plaintiffs treatment providers "are not constrained to the literal words of [Plaintiff s] medical records," they cannot render opinions on causation, the need for future treatment, and the severity of Plaintiff s injury "if those opinions are not even implicitly supported by [Plaintiffs] medical records. Munter v. Schmidt, 2018 WL 4855460, * 1 (D. Mont. Oct. 5, 2018).

         Three of Plaintiff s treatment providers who were disclosed by Plaintiff as non-retained experts will be appearing via pre-existing video of their depositions and the parties have provided the Court with transcript designations, counter-designations and objections. To allow the parties time to edit those video depositions prior to trial, the Court has reviewed those designations and rules as follows on the parties' objections.

         Samuel P. Yang. M.D.

1. Defendant's objection to 19:24 through 22:22 is sustained.
2. Defendant's objection to 43:7 - 24 is sustained.
3. Defendant's objection to 54:9 - 17 is sustained.
4. Defendant's objection to 56:17 - 19 is overruled.
5. Defendant's objection to 56:20 through 59:25 is sustained.
6. Defendant's objections to 61:21 through 70:08 and to 70:15 through 72:3 are sustained. Lines 9 through 14 on page 70 should also be redacted from the video.
7. Defendant's objection to 76:15 - 25 is sustained.
8. Defendant's objection to 78:10 - 19 is overruled.
9. Plaintiffs objections to 88:13 - 21 is sustained.
10. Plaintiffs objection to 94: 15 - 19 is sustained.
11. Defendant's objection to 94:23 through 95:13 is overruled.
12. Defendant's objection to 96:7 through 97:4 is overruled.
13. Defendant's objection to 99:7 through 100:5 is overruled.
14. Defendant's objection to 101:17 through 102:6 is overruled.

Jason Mclsaac. M.D.

1. Defendant's objection to 23:18 - 23 is ...

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