Henze v. Ferriter et al

Filing 94

ORDERED: Plaintiffs Motion in Limine Regarding Prior Convictions (Doc. 78) is GRANTED and Plaintiffs Affirmative Motion in Limine Re: Presentence Investigation and Report (Doc. 40) is DENIED. IT IS FURTHER ORDERED that Defendant State of Mon tana's Unopposed Motion to Withdraw Certain Arguments Related to Pending Motions in Limine (Doc. 78) is GRANTED and Defendant State of Montana's Motion for Leave to File a Motion for Reconsideration (Doc. 91) is DENIED. IT IS FURTHER OR DERED that Defendant State of Montana's Motion in Limine (Doc. 36) is GRANTED in part and DENIED in part as set forth above in Section 3, starting on page 6. It appears likely that this case will go to the jury. If there are to be further settlement negotiations, please do this sooner rather than later. I intend to empanel a jury of six members plus one alternate. If the parties so stipulate when the case is submitted, the seventh juror may be allowed to deliberate, otherwise to be released. Signed by Judge Charles C. Lovell on 3/27/2019. (HEG)

3/27/2019

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
MARK.HENZE,

CV 16-107-H--CCL
Plaintiff,
ORDER

vs.
STATE OF MONTANA,
Defendant.

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.

LEGAL STANDARD
"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 Jd
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 (9 th 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,
Page 2 of 22

608 F.2d 1175, 1186 (9th Cir.1979) (en bane), 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.
DISCUSSION

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)(l)(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.
Page 3 of 22

Given the nature of the underlying offense and the State's withdrawal of its
opposition to Plaintiff's motion, the Court agrees that the State should not be
allowed to affirmatively refer to Plaintiff's prior conviction. Plaintiff's 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.

Plaintiff's 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.

Page 4 of 22

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. Plaintiff's 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
Page 5 of 22

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).

Page 6 of 22

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 (9 th 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.
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26(a)(2)(B) ifa "treating physician's testimony goes beyond care, treatment and
prognosis"); see also Mears v. Safeco Ins. Co. ofIllinois, 888 F .Supp.2d I 048,
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, ,r 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
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facts and opinions were contained in medical records provided to Defendants.
Plaintiff disclosed three additional treatment providers (Dr. Thomas, Dr. Mcisaac,
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 Plaintiffs 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 Plaintiffs 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).
Page 9 of 22

Defendant's motion in limine to exclude testimony of Plaintiffs 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 Plaintiffs injury to the extent that his medical
records support those opinions and those records were disclosed to the State
during discovery. Although Plaintiff's treatment providers "are not constrained to
the literal words of [Plaintiffs] medical records," they cannot render opinions on
causation, the need for future treatment, and the severity of Plaintiffs 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 Plaintiffs 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, counterdesignations 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.
Page 10 of 22

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 sustained.

2.

Plaintiffs objections to 44:23 through 45:16 and 46:18 through 47:10
are overruled.

3.

Plaintiffs objection to 51:1- 20 is sustained.
Page 11 of 22

4.

Defendant's objection to 52:3 through 53:7 is sustained.

5.

Defendant's objection to 53:18 through 58:24 is sustained.

Janet A. Thomas, M.D.
1.

Defendant's objection to 14:4 - 20 is overruled.

2.

Defendant's objection to 14:21 through 15:25 is overruled.

3.

Defendant's objection to 23:10 through 25:22 is sustained.

4.

Plaintiff's objection to 41:8-16 is sustained.

5.

Plaintiffs objection to 46:11 through 47:17 is sustained.

6.

Defendant's objection to 47:10- 24 is sustained.

7.

Defendant's objection to 55:2 through 60:1 is overruled.
(2)

Evidence, argument or reference to a "permanent" or "incurable
brain injury.

Plaintiff plans to produce evidence at trial from various medical providers
who treated him during 2012 and 2013 and formed the opinion that he had more
probably than not suffered a permanent brain injury due to the negligence of
various individuals employed by the Department of Corrections of the State of
Montana. (Doc. 53 at 9). Defendant seeks to exclude these opinions because
Plaintiff"neither quotes nor cites any testimony or opinion where one of his
physicians offered that opinion." (Doc. 59 at 5).

Page 12 of 22

As explained above, Plaintiff disclosed six treatment providers as damages
experts whose facts and opinions were contained in medical records previously
provided to Defendants. (Doc. 33-34). Five of those providers are listed on
Plaintiffs witness list and, as of September 7, 2018, Plaintiff intended to call two
of those providers (Dr. Schimpff and Dr. Smelko) live at trial. It would be
premature for the Court to rule on this issue before hearing the evidence and this
portion of the State's motion in limine is therefore denied.
(3)

Evidence, argument or reference to allegedly negligent acts or
omissions occurring outside the limitations period.

The State has withdrawn this argument. (Doc. 78). This portion of the
State's motion in limine is therefore denied as moot.
(4)

Evidence, argument or reference to allegedly negligent acts or
omissions after December 19, 2012.

In its order granting partial summary judgment in favor of Defendant State
of Montana, the Court held that Mr. Henze had established genuine issues of
material fact as to whether unidentified State employees, other than health care
professionals and nutritionists, breached a duty owed to him by failing to respond
appropriately when he complained that he was ill and that Mr. Henze could
proceed to trial solely on that issue. (Doc. 64 at 27). The Court specifically left
the issue of whether Mr. Henze would be allowed to present testimony regarding
Page 13 of 22

events that occurred after December 19, 2012 undecided, noting that the issue
would be addressed with the parties' motions in limine. (Doc. 64 at 27 and n. 4).
Defendant argues in its Final Pretrial Conference Memorandum that
Plaintiffs "sole remaining claim is to be found in the first Count IV ofHenze's
First Amended Complaint and is properly characterized as containing Henze's
allegations that 'the State is liable for the reckless and grossly negligent conduct
of the boot camp employees who subjected him to extreme physical demands and
served him with a high protein diet despite his well-documented and serious
medical condition."' (Doc. 80 at 2 quoting Doc. 64 at 22). Based on conversations
with Plaintiffs counsel, Defendant has concluded that Plaintiff intends to "focus
on actions of guards at MSP who saw what Henze claims to be 'seizures' and did
not regard them as real, thus allegedly causing him harm." (Doc. 80 at 3).
Defendant argues that this evidence should not be admitted because there are no
allegations in Count IV against anyone other than boot camp employees and
Plaintiff has not disclosed an expert prepared to opine on the standard of care for
correctional officers. On February 19, 2019, Defendant filed a Motion for Leave
to File a Motion for Reconsideration on the grounds that Plaintiff"has attempted
to change his claims against the State in the wake of' the Court's September 6,
2018 Opinion and Order. (Doc. 91 ).
Page 14 of 22

Plaintiff filed his Pretrial Conference Memorandum on September 18, 2018,
the day after Defendant filed its Memorandum. In his Memorandum, Plaintiff
points out that Count IV expressly incorporated the preceding allegations of his
First Amended Complaint, which include references to MSP staff. (Doc. 87 at 5 6, citing to First Amended Complaint (Doc. 19) at ,r,r 6, 75 and 153). Plaintiff also
points to contentions in the Proposed Final Pretrial Order, which was submitted on
September 7, 2018, that he claims support his position that "Count IV
unequivocally alleges negligent conduct against MSP staff' for which Defendant
State of Montana is vicariously liable. (Doc. 87 at 6, citing Doc. 68).
It is not clear to the Court why Defendant waited five months after getting

Plaintiff's Pretrial Conference Memorandum to file its Motion for Leave to File a
Motion for Reconsideration. Regardless of the timing of the filing, this issue has
been adequately covered, and there is no need for further briefing. Defendant's
Motion for Leave to File a Motion for Reconsideration is denied.
The Court agrees with Plaintiff that its First Amended Complaint contains
allegations regarding events at MSP after December 19, 2012, that are relevant to
Count IV of Plaintiff's Amended Complaint. The Court rejected Defendant's
argument that Plaintiff needed expert testimony to establish that State employees,
other than health care professionals and nutritionists, failed to respond
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appropriately when Plaintiff complained that he was ill. (Doc. 64 at 27). To the
extent that this issue requires further clarification, the Court was referring to
individuals employed by the State at both boot camp and MSP who actually
observed Plaintiff. This portion of the State's motion in limine is therefore
denied.
It appears to the Court that this issue could have been avoided had Plaintiff

named all of the staff members who allegedly wronged him in his First Amended
Complaint, rather than generally referring to boot camp and MSP staff and naming
John Doe defendants. John Doe should only be used to identify a defendant to the
extent necessary to allow a plaintiff to conduct the discovery necessary to identify
the defendants whose identity is unknown. Gillespie v. Civiletti, 629 F.2d 637 642
(9 th Cir. 1980). Discovery in this case closed on April 30, 2018. (Doc. 24).
Given Plaintiff's failure to move to amend his complaint, the Court
determined that the John Doe defendants should be dismissed and entered an order
to that effect on March 5, 2019. (Doc. 93). To the extent that Plaintiff seeks to
hold Defendant State of Montana vicariously liable for the conduct of current and
former State employees, Plaintiff shall identify those employees by name in
Section I (a) of the revised Final Pretrial Order, rather than referring generally to
State employees. Plaintiff shall also indicate the position that those employees
Page 16 of 22

held when the alleged acts or omissions occurred, and is reminded that the Court
has dismissed any claim based on acts or omissions by health care professionals or
nutritionists.
(5)

Evidence, argument or reference to "other acts" including prior
incidents or complaints at TSCTC or MSP. Dr. Tristan Kohut's
termination or other inmate complaints against Dr. Kohut.

Plaintiff initially sought to introduce evidence that Dr. Kohut, formerly a
physician employed by the State at MSP, has been sued multiple times on the
grounds that this evidence indicates that "Ferriter, Speer and the State itself had
notice and actual knowledge that there was a wholesale failure at MSP and the
Boot Camp on the part of supervisors to ensure that inmates were receiving
constitutionally mandated medical care." (Doc. 53 at 14). The Court has
dismissed Plaintiffs constitutional claims against Ferriter and Speer and has
dismissed the claims based on failure to provide adequate medical care. This
evidence is no longer relevant and this portion of the State's motion in limine is
therefore granted.
Plaintiff identified Dr. Kohut as a "will call" witness and designated
portions of his deposition to be read to the jury. Defendant identified Dr. Kohut as
a "may call" witness and provided objections and cross-designations. The Court
has reviewed those designations and rules as follows on the parties' objections.
Page 17 of 22

1.

Defendant's objection to l 0:24 through 11: 13 is sustained.

2.

Plaintiffs objection to 60:21 through 61 :2 is overruled.

3.

Defendant's objection to 73:19 through 74:12 is sustained.

4.

Defendant's objection to 76: 16 - 19 is sustained.

5.

Defendant's objection to 77: 10 through 78: 11 is sustained.

6.

Defendant's objection to 79:6 - 12 is sustained.

7.

Defendant's objection to 79:18 - 22 is sustained.

8.

Defendant's objection to 80:2 - 6 is sustained.

9.

Plaintiffs objection to 86:24 through 88:7 is sustained.

10.

Plaintiffs objection to 88:14- 19 is sustained.

11.

Plaintiffs objection to 90:5 through 91 :20 is sustained.

12.

Plaintiffs objection to 96:5 - 15 is sustained.

13.

Defendant's objection to 99:19 through 100:8 is overruled.

14.

Defendant's objection to 104:6 through 105:22 is overruled.

15.

Defendant's objection to 106:7 -16 is overruled.

16.

Defendant's objection to l 07 :20 through l 08 :2 is overruled.

17.

Defendant's objection to 110: l - 9 is overruled.

18.

Plaintiffs objection to 119:4 through 120:13 is sustained.

19.

Plaintiffs objection to 128:14- 16 is sustained.
Page 18 of 22

20.

Defendant's objection to 131: 13 through 132:20 is sustained.

21.

Defendant's objection to 132:21 through 133:23 is sustained.

22.

Plaintiffs objection to 133:24 through 134:11 is sustained.

23.

Plaintiffs objection to 135:5 - 13 is sustained.

24.

Plaintiffs objection to 136:1 through 137:13 is sustained.

25.

Plaintiffs objection to 137:22 through 138:2 is sustained.

26.

Defendant's objection to 138:9 - 22 is sustained.

27.

Plaintiffs objection to 146:1 -19 is sustained.

28.

Plaintiffs objection to 150:24 through 151:15 is sustained.

29.

Defendant's objection to 167:5-17 is sustained.

30.

Plaintiffs objection to 194:24 through 195:7 is sustained.

31.

Defendant's objection to 206:22 through 207:25 is overruled.

32.

Plaintiffs objection to 213:2 - 25 is sustained as to lines 7 through 25
and overruled as to lines 2 through 6.

33.

Plaintiffs objection to 215:19 through 216:23 is overruled.

34.

Defendant's objection to 227:18 through 228:15 is sustained.

35.

Plaintiffs objection to 236:20 through 239:10 is sustained.

36.

Defendant's objection to 242:15 through 244:21 is overruled.

37.

Defendant's objection to 245:22 through 246:22 is overruled.

Page 19 of 22

38.

Defendant's objection to 259:20 through 261 :23 is sustained.

39.

Defendant's objection to 267:20 - 25 is overruled.

40.

Defendant's objection to 268: 19 through 269:20 is overruled.

41.

Defendant's objection to 272:20 through 273:2 is overruled.

42.

Defendant's objection to 275: 1 - 11 is overruled.

43.

Defendant's objection to 277:7 through 278: 11 is overruled.

44.

Defendant's objection to 280:5 - 18 is overruled.

45.

Plaintiffs objection to 280: 19 through 282:20 is overruled.

46.

Defendant's objection to 284:5 - 14 is overruled.

47.

Defendant's objection to 285:19- 25 is overruled.

48.

Plaintiffs objection to 286: I - 3 is overruled.

49.

Defendant's objection to 286:23 through 289: IO is sustained.

50.

Defendant's objection to 289:14 through 290:7 is overruled.

51.

Defendant's objection to 295:8 - 11 is overruled.

52.

Defendant's objection to 295:21 through 296:2 is overruled.

53.

Plaintiffs objection to 300:5 - 16 is overruled.

54.

Plaintiffs objection to 302:20 is overruled.

55.

Defendant's objection to 303:18 through 304:1 is overruled.

56.

Plaintiffs objection to 304:2 - 11 is sustained.
Page 20 of 22

57.

Defendant's objection to 306: 11 - 24 is overruled.

58.

Plaintiff's objection to 307:7 through 308: 19 is overruled.

59.

Plaintiff's objection to 350:13 - 16 is overruled.

60.

Defendant's objection to 363:15 - 24 is sustained.

61.

Defendant's objection to 364: 12 - 17 is sustained.

62.

Defendant's objection to 365:3 - 22 is sustained.

For the reasons set forth above,
IT IS HEREBY ORDERED that Plaintiff's Motion in Limine Regarding

Prior Convictions (Doc. 38) is GRANTED and Plaintiff's Affirmative Motion in
Limine Re: Presentence Investigation and Report (Doc. 40) is DENIED.
IT IS FURTHER ORDERED that Defendant State of Montana's

Unopposed Motion to Withdraw Certain Arguments Related to Pending Motions
in Limine (Doc. 78) is GRANTED and Defendant State of Montana's Motion for
Leave to File a Motion for Reconsideration (Doc. 91) is DENIED.
IT IS FURTHER ORDERED that Defendant State of Montana's Motion
in Limine (Doc. 36) is GRANTED in part and DENIED in part as set forth above

in Section 3, starting on page 6.
It appears likely that this case will go to the jury. If there are to be further

settlement negotiations, please do this sooner rather than later. I intend to empanel
Page 21 of 22

a jury of six members plus one alternate. If the parties so stipulate when the case
is submitted, the seventh juror may be allowed to deliberate, otherwise to be
released.

fA
Dated this~ day of March, 2019.

ES DISTRICT JUDGE

Page 22 of 22