Howarth v. Boundary County et al

Filing 125

MEMORANDUM DECISION AND ORDER It is hereby ORDERED that Howarth's Motion for Ruling on Allocation of Fault (Dkt. 91 ) is DENIED to the extent that it seeks an order from this Court prohibiting Dr. Luther from presenting evidence and argument a t trial that fault and damages for Howarth's claim should be apportioned to the Jail Defendants. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
KATHLEEN HOWARTH, as personal
representative of the Estate of Brian Howarth;
and KATHLEEN HOWARTH, individually,

Case No. 2:14-CV-00312-REB
MEMORANDUM DECISION AND
ORDER RE: MOTION FOR RULING ON
ALLOCATION OF FAULT (Dkt. 91)

Plaintiffs,
vs.
GORDON LUTHER, M.D., an Individual,
Defendant.

Pending is Plaintiff’s Motion for Ruling on Allocation of Fault (Dkt. 91). Having
carefully considered the record and the parties’ briefing, heard oral argument, and otherwise
being fully advised, the Court enters the following Memorandum Decision and Order:
BACKGROUND
Plaintiff Kathleen Howarth brings this action both in her individual capacity and as
personal representative of the estate of her deceased husband Brian Howarth. Compl. 1 (Dkt. 1).
On January 14, 2014, Brian reported to the Boundary County Detention Facility (the “Jail”) to be
held for sentencing related to a DUI. Id. ¶ 3.3. On January 20, Brian requested medical care,
listing his symptoms as sore throat, breathing aches, muscle aches, ear aches, and cough. Id. ¶
3.4. On January 23, after Brian had not improved under the care of the Jail’s contract doctor,
Brian was transported to the Emergency Department at Boundary Community Hospital (the
“Hospital”). Id. ¶¶ 3.5, 3.6. Dr. Gordon Luther, M.D., examined Brian, diagnosed him with
bronchitis with bronchospasm, treated him with a DuoNebulizer inhalation, and prescribed
azithromycin and albuterol. Id. ¶¶ 3.8, 3.9. Dr. Luther instructed Brian to “contact the doctor

MEMORANDUM DECISION AND ORDER – 1

immediately” if he developed a fever, increased wheezing, chest pain, or severe shortness of
breath. Id. ¶ 3.9. Thereafter, Brian was transported back to the Jail at approximately 7:30 a.m. on
January 23. Id. ¶ 3.10. Brian’s condition deteriorated throughout the day. Id. ¶¶ 3.10–3.13. By
approximately 5:30 a.m. on January 24, a Jail detention officer decided that Brian needed to
return to the hospital but that officer could not immediately transport Brian because he was the
only detention officer on duty. Id. ¶ 3.14. At about 7:08 a.m., the same detention officer entered
Brian’s cell after observing that Brian had not changed position since the last observation some
18 minutes earlier. Id. ¶ 3.15. The detention officer could not rouse Brian, so he radioed for
assistance. Id. Detention officers performed CPR on Brian until an ambulance arrived around
7:24 a.m. Id. ¶¶ 3.17, 3.18. Brian was pronounced dead at 7:37 a.m. on January 24, 2014. Id. ¶
3.18. The Spokane County Medical Examiner concluded that Brian died from bilateral
pneumonia. Id. ¶ 3.19.
In her Complaint, Howarth alleges that the Hospital, Western Medical Associates, and
Dr. Luther are liable for negligence, gross negligence, recklessness, and negligent infliction of
emotional distress. Id. ¶¶ 4.1–4.6. She alleges that the detention officers who had personal
contact with Brian are liable for Idaho Tort Claims Act violations, negligence, gross negligence,
recklessness, negligent infliction of emotional distress, constitutional violations under 42 U.S.C.
§ 1983, and for Brian’s premature death. Id. ¶¶ 4.7–4.11, 4.18. She alleges that Boundary County
Sheriff Greg Sprungl, the Boundary County Sheriff’s Office (“BCSO”), the Jail, and Boundary
County itself are liable for negligence, gross negligence, negligent infliction of emotional
distress, and constitutional violations under 42 U.S.C. § 1983. Id. ¶¶ 4.12–4.18, 4.25.

MEMORANDUM DECISION AND ORDER – 2

Defendant Western Medical Associates was dismissed by stipulation on August 4, 2015.
(Dkts. 27, 28.) Defendant Boundary Community Hospital was dismissed by stipulation on April
16, 2018 (Dkts. 100, 116), after one claim against it had previously been dismissed on February
8, 2016 (Dkts. 45, 50).
In November 2015, the Jail Defendants – Boundary County, BCSO, the Jail, Sheriff
Sprungl, and the detention officers – moved for summary judgment. (Dkt. 29.) After briefing and
argument, this Court ruled against the Jail Defendants on their claim of immunity from suit.1
(Dkt. 60.) The Jail Defendants appealed (Dkt. 62), and while the appeal was pending the Jail
Defendants and Howarth settled. (Dkt. 79) By stipulation, the Jail Defendants were then
dismissed from the case. (Dkts. 79, 81, 85, 86.)
Howarth’s pending claims against the remaining defendant, Dr. Luther, are set for trial
June 4, 2018. (Dkt. 89.) Howarth now moves for a ruling on allocation of fault, seeking certainty
on whether the jury will be instructed (and thereby permitted if the jury is persuaded to do so) to
allocate fault between Dr. Luther and any dismissed defendant. (Dkt. 91.) Oral argument was
heard on the motion on March 8, 2018. (Dkt. 99.)
DISCUSSION
Howarth frames the question as whether Dr. Luther, the only remaining defendant,2 is
entitled to contend at trial that the dismissed defendants are at-fault parties subject to an

1

The Jail Defendants’ Motion for Summary Judgment was granted in part and denied in part, but
the full contours of that decision are not relevant here.
2
Dismissed Defendant Boundary Community Hospital was still a party to the case when the
instant motion was briefed and oral argument was heard. Howarth’s arguments thus refer to the
defendants, plural. In light of the Hospital’s dismissal, Dr. Luther is the only remaining
defendant. Thus, this memorandum decision treats the arguments as applying only to Dr. Luther.

MEMORANDUM DECISION AND ORDER – 3

allocation of fault. Mem. ISO Mot. for Ruling on Allocation of Fault 2 (Dkt. 91-1). She argues
that the defendants should not be able to use such an “empty chair” defense for several reasons.
First, she argues that liability for constitutional violations under 42 U.S.C. § 1983 is joint and
several, so no offset or apportionment is appropriate. Id. at 2–4. Second, she argues that conduct
amounting to deliberate indifference cannot be compared to negligent conduct. Id. at 4–7. Third,
she argues that the public policy behind 42 U.S.C. § 1983 affords protections greater than statelaw wrongful death claims. Id. at 7–11. Finally, she argues that Dr. Luther should be precluded
from raising the affirmative defense of others’ fault. Id. at 11–13.
1. Idaho Law Allows a Defendant to Seek to Apportion Damages with Respect to
Settled Parties.
As an initial matter, the Court will consider Dr. Luther’s contention that he is entitled to
seek to apportion fault or damages. If he is so entitled, any arguments Howarth raises must be
examined in the context of such an entitlement. If he is not so entitled, then no further analysis or
discussion is necessary.
Dr. Luther argues that Idaho Code section 6-802 allows a party to seek an apportionment
instruction. That statute provides:
The court may, and when requested by any party shall, direct the jury to
find separate special verdicts determining the amount of damages and the
percentage of negligence or comparative responsibility attributable to each party;
and the court shall then reduce the amount of such damages in proportion to the
amount of negligence or comparative responsibility attributable to the person
recovering. Nothing contained herein shall create any new legal theory, cause of
action, or legal defense.
I.C. § 6-802. The Idaho Supreme Court has clarified that this statute applies to all parties to the
transaction rather than merely to all parties to the lawsuit:

MEMORANDUM DECISION AND ORDER – 4

It is established without doubt that, when apportioning negligence, a jury
must have the opportunity to consider the negligence of all parties to the
transaction, whether or not they be parties to the lawsuit and whether or not they
can be liable to the plaintiff or to the other tortfeasors either by operation of law or
because of a prior release. The reason for such (a rule) is that true apportionment
cannot be achieved unless that apportionment includes all tortfeasors guilty of
causal negligence either causing or contributing to the occurrence in question,
whether or not they are parties to the case.
Pocatello Indus. Park Co. v. Steel West, Inc., 621 P.2d 399, 403 (Idaho 1980) (citations and
quotation marks omitted).
Howarth contends the statutory scheme contained in section 6-802, in combination with
the limitation on noneconomic damages imposed by Idaho Code section 6-1603, inequitably
diminishes her potential recovery by diluting her claim. Reply Mem. ISO Mot. for Ruling on
Allocation of Fault 2 (Dkt. 95.) She suggests that the fact she sustained damages beyond those
recognized in tort law is lost to her. Id. Such arguments would, perhaps, more properly be
directed at the Idaho Legislature than this Court, which is bound to follow applicable law.
Idaho’s approach to comparative negligence plainly allows a defendant to assert that an absent
party is liable for some or all of the alleged fault or damages. The Court agrees at the outset with
Dr. Luther that he is entitled to seek apportionment, unless Howarth can show why
apportionment should not apply in the instant circumstances.
2. The Law Surrounding 42 U.S.C. § 1983 Does Not Apply to This Issue.
Howarth’s first and third arguments both rely on the law related to so-called “1983
claims” which refer to claims for violation of constitutional rights pursued under 42 U.S.C.
§ 1983. That statute affords a remedy for constitutional deprivations committed by a defendant
acting under color of law. Howarth sued the Jail Defendants under § 1983. She did not sue Dr.
Luther under § 1983.

MEMORANDUM DECISION AND ORDER – 5

Howarth argues that Brian’s death, which is the basis for several of her claims, is an
indivisible injury. Mem. ISO Mot. for Ruling on Allocation of Fault 2 (Dkt. 91-1). Accordingly,
she argues, the Jail Defendants would have been jointly and severally liable on her § 1983 claim
and no apportionment or offset would have been proper. Id. at 2–3. She cites Hazle v. Crofoot,
727 F.3d 983 (9th Cir. 2013) and Hoa v. Riley, 78 F.Supp.3d 1138 (N.D. Cal. 2015) in support of
this argument.
In Hazle, an atheist had his parole revoked and he was imprisoned for an additional 100
days when he refused to participate in a residential drug treatment program with mandatory
religious components. 727 F.3d at 986. He sued under § 1983, seeking damages and injunctive
relief for the deprivation of his First Amendment rights.3 Id. The district judge held as a matter of
law that the state defendants were liable for the violation Hazle alleged. Id. But the jury,
addressing only the issue of damages, awarded Hazle zero damages. Id. The Ninth Circuit panel
held that the district court erred in instructing the jury to determine whether liability should have
been apportioned because “the question of whether an injury is capable of apportionment is a
legal one to be decided by the judge, not the jury.” Id. at 995. It also held that “the district judge
should have concluded, as a matter of law, that Hazle was entitled to compensatory damages and
that defendants were jointly and severally liable for his injuries.” Id. at 994. The court further
held that “Hazle’s injury from his term of unlawful imprisonment—as well as any resultant
emotional distress—was clearly indivisible, in that the concurrent actions of all defendants were
necessary in order to return Hazle to prison.” Id. at 995.

3

Hazle also filed a taxpayer injunction claim under state law, which was dismissed on summary
judgment. Id. at 989. Thus, the case’s treatment of joint and several § 1983 liability was not in
the context of how other claims in the same case should or must be treated.

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The plaintiff in Hoa was a prisoner who, as part of a prison work program, assisted
commercial vehicles arriving at the prison. 78 F.Supp. 3d at 1143. Hoa was injured when a
commercial truck trapped and crushed him as it backed up a loading ramp. Id. Hoa sued, among
others, various prison officials under § 1983 and the truck’s driver and owner under state law
negligence theories. Id. at 1143–1144. Relevant here, the prison defendants cross-claimed for
equitable indemnification, contribution, and declaratory relief against the truck defendants.4 Id.
The truck defendants moved to dismiss the cross-complaint, arguing that § 1983 does not permit
claims for indemnification or contribution and that the prison defendants’ state-law claims for
indemnification or contribution were precluded by the California Workers Compensation Act. Id.
The federal district court in Hoa extensively cited Ninth Circuit precedent that there is no
right of indemnification under § 1983. Id. at 1145–1147. The court further concluded that § 1983
likewise provides no right of contribution. Id. at 1147. Next, the court rejected the prison
defendants’ argument that 42 U.S.C. § 1988 allowed it to apply state law on contribution or
indemnification. Id. at 1147–1148. Finally, even though California state law provided for a right
of contribution or indemnification, the court nonetheless refused to apply such state law because
doing so would conflict with the goal of deterrence that is imbued into § 1983. Id. at 1148, 1154.
“Allowing a right of contribution or indemnification in a case like this would allow a deliberately
indifferent defendant to offset his liability by shifting it onto a merely negligent tortfeasor.” Id. at

4

Thus, Hoa presents facts that more closely mirror the instant case than those in Hazle – but its
posture is nonetheless distinguishable. In Hoa, the state actor defendants sought to apportion
some of their § 1983 liability to the non-state actor defendants. By contrast, here the non-state
actor defendants seek to apportion some of their state law liability to the state actor defendants
whose alleged liability was premised both on § 1983 and on state-law claims.

MEMORANDUM DECISION AND ORDER – 7

1154. Thus, a defendant with a greater degree of intentionality would be able to shift liability
onto a co-defendant with a lesser degree of intentionality.
Howarth relies upon both Hoa and Hazle, but the Court finds both cases inapposite to the
present circumstances. At issue here is whether a non-state actor defendant can present evidence
that absent defendants – who happen to have been state actor defendants on a § 1983 claim at an
earlier point in the case – are, or may be, liable for part of the plaintiff’s injuries. Neither Hazle
nor Hoa dealt with such a circumstance. Hazle addressed only § 1983 claims, and this Court does
not read Hazle’s treatment of joint and several liability so broadly as to apply in a context where
a § 1983 claim is joined with state-law claims. Hoa did present a case joining § 1983 and statelaw claims, but the posture was exactly backward from the present case. That is, the § 1983
defendants in Hoa sought to shift liability to the non-§ 1983 defendants; here, the opposite is
true, as the non-§ 1983 defendant seeks to shift liability to the § 1983 defendants. In other words,
Dr. Luther, the remaining defendant, does not seek to shift liability to a co-defendant with a
lesser degree of intentionality; rather, he seeks to shift liability to a co-defendant with an equal,
or greater, degree of intentionality. Thus, neither the case law addressing apportionment of
culpability in § 1983 claims, nor the public policy informing it, speak to the issue here. The
Court is not persuaded by Howarth’s arguments to the contrary.
3. There Is No Barrier to Comparing the Jail Defendants’ Actions with Dr.
Luther’s Actions.
Howarth argues that “conduct amounting to deliberate indifference cannot be compared
to negligent conduct,” citing various decisions in other jurisdictions holding that intentional and
negligent conduct are fundamentally different and should not be apportioned together. Mem. ISO
Mot. for Ruling on Allocation of Fault 4–7 (Dkt. 91-1). The Court is not persuaded, however,

MEMORANDUM DECISION AND ORDER – 8

that Dr. Luther – who was sued for negligence claims – should be prevented from seeking to
apportion liability. Significantly, Howarth sued the Jail Defendants on the deliberate indifference
standard (alleging the Jail Defendants acted “with deliberate and callous indifference”), but also
in negligence (alleging they acted with “negligence and gross negligence under the law of the
State of Idaho”). Compl. ¶¶ 4.18, 4.21 (Dkt. 1). Moreover, her claim for negligent infliction of
emotional distress alleges that the Jail Defendants engaged in “negligent conduct.” Id. ¶ 4.25.
To support her position, Howarth submitted a copy of a “Mediated Settlement Agreement
Between Plaintiff and Jail Defendants Only.” McCrea Decl. Ex. A (Dkt. 91-2 pp. 3–5) (the
“Agreement”). The Agreement recites details of the settlement between those parties, pertaining
to “Plaintiff’s claim of constitutional deprivation/deliberate indifference under 42 U.S.C. § 1983
against the Jail Defendants.” Id. ¶ 4. Under the Agreement, Howarth received “payment for the
alleged constitutional deprivation, decedent’s pre-death pain and suffering,” as well as for
Plaintiff’s attorney fees through a specified date. Id. ¶ A. As partial consideration, Howarth
signed a stipulation to dismiss “Plaintiff’s claims against the Jail Defendants,” which was done.
Id. ¶ B; Dkts. 79, 85. The Agreement does not contain an admission by the Jail Defendants of
liability for deliberate indifference, negligence, or any other culpable conduct. Rather, consistent
with the usual nature of such agreements, there is no admission by the Jail Defendants of any
culpability, much less any differentiation of what that culpability might be. Whatever claims
were made by Howarth against the Jail Defendants, to include claims of negligence, were settled.
The nature of the Agreement is not a legal bar to the right of a defendant who did not
settle – here, Dr. Luther – from presenting evidence of other defendants’ conduct as a means of

MEMORANDUM DECISION AND ORDER – 9

defending himself against Howarth’s claim that his conduct was negligent and a proximate cause
of Mr. Howarth’s death, consistent with the express language of Idaho Code section 6-802.
4. Dr. Luther Has Not Waived and is not Estopped from Asserting the Affirmative
Defense of Others’ Fault.
Dr. Luther’s Answer raised the defense of comparative fault:
That percentage of causative fault of Dr. Luther, if any, should be compared
with that percentage of causative fault of any other person or entity named as a
defendant in this action, so that Dr. Luther is liable, if at all, only for that several
share of causative fault attributed to him.
Ans. of Gordon Luther, M.D. 6 (Dkt. 5). In her written discovery, Howarth asked this question:
If it is your contention that the Plaintiff’s injuries were caused in whole or in part
by some person or persons other than any agent or employee of yours, please identify
each such person fully, giving such person’s name, address, occupation, title, and
describe the facts giving rise to such contention.
McCrea Decl. Ex. B (Dkt. 91-2 pp. 8–9). The answer was: “Dr. Luther has not raised the
affirmative defense of the fault of others.” Id. at 9.
Howarth argues that Dr. Luther should not be permitted to apportion liability because his
interrogatory answer disclaimed such an intention. Mem. ISO Mot. for Ruling on Allocation of
Fault 11–13 (Dkt. 91-1). Howarth contends she relied on this representation while negotiating
the above-referenced Agreement with the Jail Defendants, and waiver, abandonment, or estoppel
should apply to preclude Dr. Luther from asserting this defense at trial. Id.
Dr. Luther says the statements are entirely consistent: “Dr. Luther did not raise an
additional affirmative defense seeking to compare fault of other non-party individuals and his
answer to the Interrogatory reflects that intent.” Dr. Luther’s Mem. in Resp. to Plf.’s Mot. for
Ruling on Allocation of Fault 8 (Dkt. 92) (emphases added). That is, he asks the Court to read
his interrogatory answer as indicating that “others” means persons or entities besides the other

MEMORANDUM DECISION AND ORDER – 10

defendants who were already a party to this lawsuit. He also says that ten months after answering
the interrogatory, he disclosed an expert report by Dr. Andrew Sullivan opining that if Brian
Howarth had been returned to the hospital by the jail staff, as Dr. Luther had instructed to do if
his condition worsened, Brian’s death could have been avoided. Id. at 8–9. Given the disclosure
of that expert opinion, Dr. Luther argues, Howarth could not have reasonably relied on the
alleged waiver of the defense evidenced by Dr. Luther’s interrogatory response. Id. at 9. Finally,
Dr. Luther contends that presenting evidence at trial “regarding the events that transpired at the
jail will not impose any unfair detriment to Plaintiff. Dr. Luther is entitled to present evidence
regarding the proximate cause of Howarth’s injuries, and a chief component of that evidence
involves Howarth’s time in the jail and his interactions with the Jail Defendants.” Id. at 10. Dr.
Luther points out that “[t]his evidence logically lends itself to a special verdict apportioning fault
and damages and Plaintiff cannot reasonably claim that Dr. Luther’s intent to apportion damages
comes as a surprise under the circumstances.”5 Id.
There is a problematic landscape under the liability issues of this case created by this
dispute over whether Dr. Luther should be precluded, because of his interrogatory answer, from
presenting evidence at trial about who did what, and what happened as a result, in the timeline
leading up to Brian Howarth’s death. Some of that is attributable to an arguable lack of precision
about the subject matter in the discovery and discovery responses. On one hand, Dr. Luther’s
Answer invokes the right to ask the jury to compare the relative negligence of all defendants, i.e.,

5

Further, by Howarth’s own account, Brian passed away almost exactly 24 hours after Dr.
Luther discharged him with instructions to “contact the doctor immediately” if his condition
worsened. Brian spent all the intervening time in the custody of the Jail. Compl. ¶¶ 3.9, 3.10,
3.18 (Dkt. 1).

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a defense of comparative negligence.6 Both federal and state rules of procedure require a party to
affirmatively state any “avoidance or affirmative” defense when responding to a Complaint. See
FED. R. CIV. P. 8(c), IDAHO R. CIV. P. 8(c)(1)(D). But, his interrogatory answer seems to
contradict his intention to rely upon comparative negligence. However, the interrogatory is not
directed specifically at the affirmative defense (in the form of a contention interrogatory
specifically focused upon the affirmative defense), and the answer therefore does leave room for
the ambiguous response that Dr. Luther had “not raised the affirmative defense of the fault of
others.” Clearly, he raised such a defense in his Answer. The question is whether or not he
abandoned that defense as a product of his interrogatory answer.
It is apparent that Dr. Luther’s interrogatory answer left room for ambiguity and it could
have been more precisely phrased. But it came in the frame of the affirmative defense previously
having been raised in the Answer and the interrogatory not having been specifically directed at
that defense. In addition, Dr. Luther made an expert witness disclosure which contained an
opinion directly blaming the Jail for what transpired with Mr. Howarth. Such an opinion is not
surprising in the context of the facts of this case – meaning, it is not surprising that the treating
physician would contend that the discharge instructions were not followed, and as described
supra Howarth’s Complaint contains allegations of negligence against the Jail Defendants. Yet,
the record here shows no attempt by Howarth to seek clarification of the interrogatory answer,
nor any attempt by Dr. Luther to be more precise. If there was any equipoise in the matter along

6

Obviously, this is consistent with the language of Idaho Code § 6-802: “The court may, and
when requested by any party shall, direct the jury to find separate special verdicts determining
the amount of damages and the percentage of negligence or comparative responsibility
attributable to each party...”

MEMORANDUM DECISION AND ORDER – 12

the way, it was that each party was at some risk for not having clarified the issue more precisely.
In other words, Howarth was at risk if she were to make decisions on the assumption that Dr.
Luther would not be permitted to put forward proof or argument of comparative fault,
notwithstanding the affirmative defense in the Answer and the expert disclosure. And,
correspondingly, Dr. Luther was at risk of not being permitted to put forward proof or argument
of comparative fault, given the nature of his interrogatory answer.
There is fodder for both sides of this dispute, as described, but the Court is persuaded on
balance that Dr. Luther’s arguments on this issue should prevail. The record viewed on balance
does not convince the Court that Dr. Luther abandoned, waived, or is estopped from continuing
to rely upon the affirmative defense at issue. Further, the Court is not persuaded that Howarth is
prejudiced on the particular facts of this case, and permitting the defense to remain is consistent
with the general tilt of the rules of procedure which are to be “construed, administered, and
employed … to secure the just, speedy, and inexpensive determination of every action and
proceeding.” FED. R. CIV. P. 1. That decision is, of course, limited to the facts of this case and the
exercise of the Court’s discretion upon the factors involved.
Further, such a ruling is consistent with Idaho state law upon the subject, to wit, “[t]he
court may, and when requested by any party shall, direct the jury to find separate special
verdicts” apportioning fault and damages. I.C. § 6-802. The statute does not frame the right to
seek apportionment as an affirmative defense. Nor does it impose any time-based or other
limitations on how or when a party may make such a request. Moreover, the statute expressly
permits an apportionment instruction even when no party makes such a request.

MEMORANDUM DECISION AND ORDER – 13

Finally, Howarth closes her reply brief on the instant motion by saying that “the jury
should be instructed on proximate cause and their obligation to assess damages against Dr.
Luther based on the extent to which his conduct brought about the decedent’s death.” The Court
agrees with this statement; however, an apportionment instruction and corresponding special
verdict are entirely consistent with that end. An apportionment instruction does not interfere with
the jury’s duty to properly “assess damages against Dr. Luther based on the extent to which his
conduct brought about the decedent’s death.” (Emphasis added.)
CONCLUSION
Dr. Luther is entitled to present evidence and argument at trial that fault and damages for
Howarth’s claims should be apportioned to the Jail Defendants.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Howarth’s Motion for Ruling
on Allocation of Fault (Dkt. 91) is DENIED to the extent that it seeks an order from this Court
prohibiting Dr. Luther from presenting evidence and argument at trial that fault and damages for
Howarth’s claim should be apportioned to the Jail Defendants.

DATED: April 26, 2018
_________________________
Honorable Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER – 14