United States District Court, D. Montana, Helena Division
Charles C. Lovell Senior United States District Judge
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.
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.
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.
Plaintiffs Motion in Limine Regarding Prior
Defendant State of Montana has withdrawn its opposition to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.
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.
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).
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
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.
Defendant State of Montana's Motions in Limine.
Testimony of Plaintiff s treating doctors outside care,
treatment and prognosis.
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).
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).
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.")
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.
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).
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).
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).
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.
P. Yang. M.D.
1. Defendant's objection to 19:24 through 22:22 is
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
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
12. Defendant's objection to 96:7 through 97:4 is
13. Defendant's objection to 99:7 through 100:5 is
14. Defendant's objection to 101:17 through 102:6 is
Jason Mclsaac. M.D.
1. Defendant's objection to 23:18 - 23 is ...