Montana City Meats et al v. Hamel et al

Filing 122

ORDER granting in part 64 Motion in Limine; granting in part and reserved in part 66 Motion in Limine; denying 115 Motion; granting in part and denying in part 116 Motion ; granting in part and denying in part 117 Motion. Further Orde red Plaintiffs may file a brief on or before 11/17/17 directed to N. Abdrasilova may be called to testify at initial federal law claim trial; each party may file a brief by 11/17/17 directed to weather M. Honeycutt may be called to testify at initial federal law claim trial; file a revised prosposed pretrial order due by 12/1/17; each party shall file a proposed FF&CL by 12/8/17; trial briefs due by 12/8/17; and the Court will, by further order, schedule and conduct a conference with counsel to select a date for trial. Signed by Judge Sam E Haddon on 11/14/2017. (DED)

FILED
NOV 1i 2017
IN THE UNITED STATES DISTRICT COURT

Clerk, U.S. District Court
District Of Montana
Helena

FOR THE DISTRICT OF MONTANA
HELENA DIVISION
MONTANA CITY MEATS, INC., and
GARRY M. WHEELOCK,
No. CV 16-02-H-SEH
Plaintiff,
vs.

MEMORANDUM AND
ORDER

GARY HAMEL, Individually and as
Bureau Chief of the Meat Inspection
Bureau of the Montana Department of
Livestock, MICHAEL HONEYCUTT,
Individually and as the Executive
Officer of the Montana Department of
Livestock, MONTANA
DEPARTMENT OF LIVESTOCK, a
state agency of Montana,
Defendants.

On October 25, 2017, the Court conducted a hearing at which it addressed
with counsel issues related to the form and content of the proposed Final Pretrial

Order,1 including: (a) claims dismissed by previous orders of Court; (b) division
and bifurcation of issues for trial; (c) the time period as established with the
concurrence of the parties for completion of discovery; ( d) the scope of issues
appropriately pleaded and before the Court and to be tried; (e) the parties'
obligations to file disclosures of persons likely to have discoverable information,
together with the subjects of such information, that the disclosing party may use in
support of its claims or defenses under Fed. R. Civ. P. 26(a)(l )(a)(I) and by Orders
of Court dated February 12, 2016, 2 and March 21, 2016; 3 (f) deficiencies in the
disclosures as made and previously filed by the parties; (g) the parties' obligations
to provide timely supplemental disclosures as required by Rule 26 and as ordered
by the Court; (h) the sufficiency of non-retained expert disclosures as submitted by
the parties; and (I) other related trial issues.
This Memorandum further considers issues addressed at the October 25,
2017, hearing and November 13, 2017, hearing and, as stated, supplements and
replaces any conflicting determinations of issues appearing in the hearing record
of October 25, 2017 and November, 13, 2017.

1

Doc. 110.

2

Doc. 10.

3

Doc. 15.
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Rulings made by the Court, as restated, confirmed, or modified by this
Order include:
1.

Plaintiffs' requests for declaratory and injunctive relief barring

retaliation against Plaintiffs, first asserted by Plaintiffs in the proposed Final
Pretrial Order4 as issues before the Court and to be tried, are excluded as issues to
be decided in this case.
2.

Plaintiffs will be limited to calling witnesses at trial to those persons

who were timely disclosed in Plaintiffs' Preliminary Pretrial Statements,5 namely,
Garry M. Wheelock ("Wheelock"), Gary Hamel ("Hamel"), Christian Mackay
("Mackay"), and Dick Fitzpatrick ("Fitzpatrick").
3.

Defendants will be limited to calling as witnesses at trial to those

persons who were timely disclosed in Defendants' Preliminary Pretrial
Statements,6 namely, Mackay, Hamel, Marcia Lipke ("Lipke"), and William Bury
("Bury").
Reasons for the limitations on witnesses who may be called to testify at trial
as stated above include:

4

Doc. 110.

' Docs. 14 and 20.
6

Docs. 13 and 21.
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1.

Obligation of the parties to provide disclosures of persons likely to

have discoverable information together with the subjects of such information were
required by Fed. R. Civ. P. 26(a)(l)(A)(I) and L.R. 16.2(b)(l) and were to be filed
by specific dates by orders of Court dated February 12, 2016, 7 and March 21,
2016. 8
2.

On March 21, 2016, 9 Plaintiff filed a Preliminary Pretrial Statement

identifying four persons, Wheelock, Hamel, Mackay, Fitzpatrick, and unnamed
Representatives of the Jefferson Sheriffs Department and Livestock Officials, as
persons likely to have discoverable information.
3.

On March 18, 2016, 10 Defendants filed a Preliminary Pretrial

Statement naming two of the persons previously identified by Plaintiffs, Mackay
and Hamel, and two additional persons, Lipke and Bury, as persons likely to have
discoverable information.
4.

On April 29, 2016, 11 Plaintiffs filed an additional Preliminary Pretrial

Statement. No additional persons were identified in this filing.
7

Doc. 10.

8

Doc. 15.

9

Doc. 14.

10

Doc. 13.

11

Doc. 20.
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5.

On April 29, 2016, 12 Defendants filed an additional Preliminary

Pretrial Statement. No additional persons were identified in this filing.
6.

On May 10, 2016, the Court issued its scheduling Order setting dates

and deadlines, established with the concurrence of the parties, for conduct and
completion of relevant pretrial matters. 13
7.

A request to extend the time to complete discovery was filed on

November 23, 2016. 14 The request was granted in part by Order of November 28,
2016, 15 in which an extended discovery deadline of March 10, 2017, was adopted
by the Court and was ordered to be carried out.
8.

No further additional or supplemental disclosures of persons likely to

have discoverable information were filed by Plaintiff until March 10, 2017, when
Plaintiff filed an Amended Preliminary Pretrial Statement16 naming 17 persons,
not earlier identified, as previously had been required by Fed. R. Civ. P.
26(a)(l )(A)(I) and previous Orders of Court. 17
12

Doc. 21.

13

Doc. 24.

14

Doc. 43.

15

Doc. 47.

16

Doc. 52.

17

Docs. !Oand 15.

-5-

9.

No further additional or supplemental disclosures of persons likely to

have discoverable information were filed by Defendants until March 10, 2017,
when Defendants filed an Amended Preliminary Pretrial Statement 18 naming 52
persons, not earlier identified, as previously had been required by Fed. R. Civ. P.
26(a)(l)(A)(I) and previous Orders ofCourt. 19
10.

Discovery closed, as agreed by the parties and ordered by the Court,

on March 10, 2017, leaving absolutely no days beyond the close of discovery date
in which either party could conduct discovery relating to any of the nearly 70
persons not identified until the date upon which discovery closed, March 10, 2017.
11.

Non-retained expert witness disclosures as ordered by the Court were

provided by Plaintiffs on March 10, 2017. 20 Plaintiffs identified Hamel, Wheelock,
Susan Ostler ("Ostler"), and Murry Warhank ("Warhank") as potential nonretained experts. 21
12.

Non-retained expert witness disclosures as ordered by the Court were

provided by Defendants on March 10, 2017. 22 Defendants identified Hamel, Ray
18

Doc. 54.

19

Docs.10and 15.

'

0

Doc. 53.

21

Doc. 53-1.

22

Doc. 55.
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Figgins ("Figgins"), Lipke, Olen Hamilton ("Hamilton"), Bury, and Dani Jones
("Jones") as potential non-retained experts. 23
13.

Apart from the eight persons identified by the parties on March 18,

2016, 24 and March 21, 2016, 25 none of the persons first disclosed on March 10,
2017, were timely identified in filings as ordered by the Court26 or by a date
sufficiently in advance of the close of discovery to permit even minimal discovery
from any of them on matters, topics and issues of which they had knowledge. Such
failure or refusal to comply with the Rules of Civil Produce or Orders of the Court
cannot and will not be either ignored or excused.
14.

Each of the non-retained expert witness disclosures has been assessed

to determine whether it complied with the Court's disclosure Order of March 6,
2017, 27 which required that the disclosures "address and include[: I] all
information required by Fed. R. Civ. P. 26(a)(2)(A) and (C)[; 2] ... separate
statements of each opinion to be offered, specific identification of and source
citations to the record to facts or data considered, referenced, or relief upon by the
23

Doc. 55.

24

Doc. 13.

25

Doc. 14.

26

Docs. 10 and 15.

27

Doc. 50.
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witness in forming the opinions expressed[; 3] the bases and reasons for the
opinions[; and 5] ... complete, comprehensive, accurate, and tailored to the
issues on which the expert is expected to testify. 28
15.

Moreover, apart from the deficiencies and omissions in disclosures of

persons likely to have discoverable information outlined above, several of the nonretained expert disclosures filed by the parties did not comply with the Court's
Order of March 6, 201 7, for content of such disclosures. 29
16.

Two of the non-retained experts identified by Plaintiffs on March 10,

2017, had not, prior to that date, been disclosed as persons likely to have
discoverable information as ordered on February 12, 2016, and March 21, 2016, or
at all. In addition, ten of the persons identified by Defendants as may call
witnesses in the proposed Pretrial Order on September 29, 2017, 30 were not, prior
to March 10, 2017, disclosed in any filings with the Court as ordered. For this
reason and for failure or refusal to comply with the Court's disclosure Orders of
February 12, 2016, 31 and March 21, 2016, 32 exclusion of each and all, to wit:
28

Doc. 50 at 3.

29

Doc. 50.

30

Doc. 110.

31

Doc. 10.

32

Doc. 15.
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Warhank, Bonnie Marceau, Ostler, Hamilton, Rob Stutz, Bob Erickson, Alan
Erickson, Brent Sarchet, Ginny Dinson, Ashley Fisher, Matt Elvbakken, and Dawn
Wheelock as witnesses at trial is warranted and required.
17.

Responsibility for failure to carry out proposed and ordered pretrial

process rests with the parties and their counsel. The discovery and pretrial
schedule and sequence for its completion was proposed by the parties, was later
ordered to be carried out by the Court, and included a requested extension of the
close of discovery deadline to March 10, 2017. Any responsibility for failure to
carry out all components of the discovery and pretrial process as ordered rests
squarely on the shoulders of the parties and their counsel.
18.

An assessment of the several non-retained expert disclosures made by

Plaintiffs and filed on March 10, 2017, 33 reveal that the disclosures were deficient
in at least the following particulars.
A.

Wheelock (disclosed March 21, 2016, in Plaintiffs' Preliminary

Pretrial Statement). 34
1.

33

Docs. 53, 53-1.

34

Doc. 14.

35

The disclosure 35 did not provide, as required by the

Doc. 53-1.
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Court's Order of March 6, 2017, 36 "specific identification of
and source citations to the record to facts or data considered,
referenced, or relied upon" in forming opinions.
11

Part of the testimony that Plaintiffs represented that this

witness will address was identified to include: (1) topics that
would in substance call for statements of legal opinion about
which Wheelock would not be allowed to testify; (2) opinions
on matters relating to legal standards required for labeling of
meat for sale; (3) opinions on legal standards for meat
inspectors required by statute or state regulation; (4) opinions
on standards required by statute or regulation for labeling of
meat for sale; and (5) opinions on standards required by statute
or regulation for inspection of meat prior to sale.
B.

Warhank (first identified as a person likely to have

discoverable information and as an expert witness on March 10, 2017). 37
1.

36

Doc. 50.

37

Docs. 52 and 53.

38

The disclosure 38 does not provide "specific identification

Doc. 53-1.
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of and source citations to the record to facts or data considered,
referenced, or relied upon" in forming opinions and the
reference to incorporation by reference of opinions in
statements and depositions, likewise, does not comply with the
requirements of the Court's Order of March 6, 2017. 39
11.

Warhank would not be allowed to testify about or offer

opinions as to: (1) matters of law, legal opinion or conclusions;
(2) that redress sought by Plaintiff would or could have been
granted at hearing on appeal; (3) that applicable law had not
been followed; (4) that certain evidence could have been
presented at a hearing (a hearing never held); and (5) that
issues of noncompliance with law on regulation could have
been rectified. In summary, no testimony encompassing legal
onions would have been appropriate and would not be
admissible.
C.

Ostler (first disclosed March 10, 2017 in Plaintiffs' Amended

Preliminary Pretrial Statement). 40

39

Doc. 50.

40

Doc. 52.
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1.

Ostler was first identified as a person likely to have

discoverable information in Plaintiffs' Amended Preliminary
Pretrial Statement on March 10, 2017, 41 and was identified as a
may call witness in the proposed Final Pretrial Order. 42
Reasons for exclusion of her as a witness at trial have been
addressed elsewhere in this Order.
D.

Hamel (First disclosed as a person with knowledge on

March 21, 2016, and as a may call witness by Plaintiffs at trial.) 43
1.

Hamel's non-retained expert disclosure44 does not

comply with the requirements of the Court's disclosure Order
of March 6, 2017, 45 for content of such disclosures.
11.

Testimony that would include statements of or references

to legal standards set by state regulation and law and by federal
regulation and as proof of the standard of care for meat
inspectors would be excluded as improper legal opinion.
41

Doc. 52.

42

Doc. 11-.

43

Doc. 14.

44

Doc. 53-1.

45

Doc. 50.
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m.

The suggestion made in the disclosure that "more details

on the summary of facts and this opinion" 46 may be obtained
from "review [of] Mr. Hamel's deposition testimony" 47 is
facially non-compliant with the Court's disclosure Order of
March 6, 2017. 48
19.

An assessment was made of the several non-retained expert

disclosures filed by Defendants on March 10, 2017. 49 Some of the disclosures
were deficient.
A.

Jones (identified in Defendants' March 10, 2017, Amended

Preliminary Pretrial Statement). 50
1.

In addition to being late, this disclosure does not provide

"specific identification of and source citations to the record to
facts or data considered, referenced, or relied upon by the
witness in forming the opinions expressed, and the bases and
reasons for the opinions" as required by the Court's Order of
46

Doc. 53-1 at 2.

47

Doc. 53-1 at 2.

48

Doc. 50.

49

Docs. 55.

'

0

Doc. 54.
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March 6, 2017. 51 Moreover, the disclosure does not specifically
identify either source citations to the record to facts or data
considered, referenced, or relied upon. At most, Jones generally
references the Code of Federal Regulations as source material.
20.

It is unfortunate that all parties on all sides in this chose to conduct

and carry out the Court-ordered discovery process without regard to compliance
with either the Rules of Civil Procedure or the Orders of this Court. Such
noncompliance cannot, and will not, be rewarded. Identification of persons with
knowledge not timely made as required by the Rules of Civil Procedure and by
Orders of the Court will not be permitted to testify as witnesses. In addition,
persons identified as non-retained experts not timely disclosed or not providing
non-retained expert disclosures as ordered will not be permitted to testify at trial.
Upon the record made and before the Court on October 25, 2017 and
November 13, 2017,
ORDERED:
1.

Plaintiffs may call Wheelock, Hamel, Mackay, and Fitzpatrick as

witnesses at trial.
2.
51

Defendants may call Mackay, Hamel, Lipke, and Bury as witnesses at

Doc. 50.

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trial.
3.

Plaintiffs' Motion in Limine to Limit Defendants' Witnesses is

GRANTED in part52 as stated in this Order.
4.

Defendants' motion in limine to exclude expert testimony ofWarhank

and the proposed expert testimony of Wheelock is GRANTED in part and
RESERVED in part as follows: 53
a.

Warhank is excluded as a witness.

b.

A hearing to address the admissibility and scope of Wheelock's

testimony will be set by further order of the Court.
5.

Any motion asserted in Plaintiffs' Issue Briei5 4 is DENIED.

6.

Defendants' Issue Brief Regarding Trial Witnesses 55 and Plaintiffs'

Written Offer of Proof re: Exclusion ofWitnesses56 are GRANTED in part and
DENIED in part as stated in the record.
FURTHER ORDERED:
1.

Plaintiffs may file a brief on or before November 17, 20 l 7, directed

52

Doc. 64.

53

Doc. 66.

54

Doc. 115.

55

Doc. 116.

56

Doc. 117.
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to whether Natalya Abdrasilova, CPA ("Abdrasilova"), may be called to testify at
the initial federal law claim trial, limited to consideration of relevant issues of
federal law under 42 U.S.C. § 1983. Defendants may file a response brief on or
before November 27, 2017.
2.

Each party may file a brief on or before November 17, 2017, directed

to whether Michael Honeycutt ("Honeycutt") may be called to testify at the initial
federal law claim trial.
3.

Whether Abdrasilova or Honeycutt may be called to testify will be

addressed by further order of Court following submission of briefs as set out
above.
4.

A revised proposed Pretrial Order shall be filed on or before

December 1, 2017.
5.

Each party shall file a proposed Findings of Fact and Conclusions of

Law on or before December 8, 2017.
6.

Trial briefs shall be filed on or before December 8, 2017.

7.

Any additional matters warranting or requiring the Court's pretrial

consideration and resolution will be addressed and set as appropriate by further
order of the Court.
8.

The Court will, by further order of the Court, schedule and conduct a
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conference with counsel ~lect a date for trial.
DATED this

/

t/- day of November, 2017.

~fl/rµJJrlt??,

1'111RHADDON

United States District Judge

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