McColl v. American Naturopathic Council et al

Filing 145

ORDER granting in part and denying in part 120 McColl's Motions in Limine. Signed by Magistrate Judge Timothy J. Cavan on 10/24/2018. (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
TINA MCCOLL,

CV 17-40-H-SEH-TJC
Plaintiff,
ORDER ON PLAINTIFF’S
MOTIONS IN LIMINE

vs.
AMERICAN NATUROPATHIC
COUNCIL and ALLIED
PROFESSIONALS INSURANCE
COMPANY,
Defendants.

Plaintiff Tina McColl (“McColl”) brings this action against Defendants
American Naturopathic Counsel and Allied Professional Insurance Company
(“Allied”) for alleged bad faith insurance practices under Montana’s Unfair Trade
Practices Act (the “UTPA”). (Doc. 6.)
United States District Judge Sam E. Haddon has referred the case to the
undersigned under 28 U.S.C. § 636(b)(1)(B). (Doc. 76, 82.) Presently before the
Court are McColl’s Motions in Limine. (Doc. 120.) Having considered the
parties’ submissions, the Court finds McColl’s motions should be GRANTED in
part and DENIED in part.
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I.

LEGAL STANDARD
Motions in limine are procedural devices that may be used to exclude

anticipated inadmissible or prejudicial evidence before it is actually offered at trial.
Luce v. United States, 469 U.S. 38, 40 n.2 (1984). Motions in limine, however, do
“not lie to exclude broad categories of evidence.” Acad. of Motion Picture Arts &
Scis. v. Godaddy.com, Inc., 2015 WL 12697750, *2 (C.D. Cal. Apr. 10, 2015).
Rather, motions in limine must specifically “identify the evidence at issue and state
with specificity why such evidence is inadmissible.” Colton Crane Co., LLC v.
Terex Cranes Wilmington, Inc., 2010 WL 2035800, *1 (C.D. Cal. May 19, 2010).
See also Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir.
1975) (“Orders in limine which exclude broad categories of evidence should rarely
be employed. A better practice is to deal with questions of admissibility of
evidence as they arise.”).
“A party cannot use a motion in limine to sterilize the other party’s
presentation of the case.” Johnson v. Gen. Mills Inc., 2012 WL 13015023, *1 (C.D.
Cal. May 7, 2012). Motions in limine also should not be used to resolve factual
disputes or weigh evidence. C & E Services, Inc., v. Ashland Inc., 539 F.Supp.2d
316, 323 (D. D.C. 2008). To exclude evidence on a motion in limine, the evidence
must be “clearly inadmissible on all potential grounds.” Ind. Ins. Co. v. Gen. Elec.
Co., 326 F. Supp. 2d 844, 846 (N.D. Ohio 2004). “Unless evidence meets this high

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standard, evidentiary rulings should be deferred until trial so that questions of
foundation, relevancy and potential prejudice may be resolved in proper context.”
Hawthorne Partners v. AT & T Tech, Inc., 831 F. Supp. 1398, 1400 (N.D. Ill.
1993). Although rulings on motions in limine may save “time, costs, effort and
preparation, a court is almost always better situated during the actual trial to assess
the value and utility of evidence.” Wilkins v. K-Mart Corp., 487 F. Supp. 2d 1216,
1219 (D. Kan. 2007).
II.

DISCUSSION
McColl moves to exclude any evidence, testimony or argument regarding:

(1) comparative bad faith/attacks on McColl or her counsel; (2) after-acquired
evidence; (3) the existence of other insurance; (4) the date or amount for which the
case should have settled/argument that McColl was unhappy with the verdict; (5)
the State District Court’s denial of summary judgment; (6) proceedings before the
Alternative Healthcare Board; and (7) the deposition of Alan F. Blakley. (Doc.
121.) Allied opposes the motion. (Doc. 125.)
A.

Comparative Bad Faith/Attacks on Plaintiff or her Counsel

McColl argues the Court should broadly exclude any evidence, testimony or
argument that would “disparage or vilify her or her counsel or blame them for the
scope of the investigation or adjustment of the claim.” (Doc. 121 at 3.) McColl
also asserts “comparative bad faith” is not a defense, and thus contends any

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evidence of “claimed bad faith or misconduct by Mrs. McColl or her counsel”
should be excluded. (Id. at 4.) Allied responds that it does not intend to disparage
counsel or McColl, and has not asserted a defense of “comparative bad faith.”
Nevertheless, Allied asserts that evidence as to what occurred between the parties
leading up to the trial in the underlying case is relevant to both McColl’s claims
and Allied’s defenses.
McColl’s motion falls short of the specificity required for a motion in
limine. McColl does not specifically identify what evidence she seeks to exclude.
The Court finds this type of broad request would require the Court to “‘rule in a
vacuum’ on the admissibility of evidence.” Acad. of Motion Picture Arts & Scis.,
2015 WL 12697750 at *2. The Court declines to do so because granting “such
amorphous motions would ‘leav[e] the court and the parties to guess what
[evidence] during trial may be included within the scope of the ruling.’” Id.
Further, categorically excluding all evidence of McColl’s conduct after the
claim would not be appropriate. Apparently, McColl seeks to exclude all evidence
of her conduct and that of her attorney. But the jury cannot evaluate the insurer’s
conduct in isolation. Evidence of the course of dealing between the parties is
relevant to claims and defenses in this case. At trial, Judge Haddon can rule on
any evidentiary issues concerning McColl’s conduct as they arise, and in light of
the factual context in which they are presented.

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Moreover, it is a misuse of motions in limine to base them “on matters of
day-to-day logistics and common professional courtesy.” Johnson, 2012 WL
13015023 at *1. As such, the Court finds it is unnecessary to grant a motion in
limine preventing Allied from “attacking” McColl or her counsel.
B.

After-Acquired Evidence

McColl moves to exclude any “new information unknown to the insurer” at
the time it adjusted the claim. (Doc. 121 at 5.) Allied states it is unaware of any
information that would fall within the scope of this motion in limine.
Again, McColl fails to set forth with any specificity, what “unknown
information” she seeks to exclude. Without a specific objection to specific
evidence, the Court is unable to fairly evaluate and rule on McColl’s motion.
Accordingly, the Court declines McColl’s request to broadly exclude all afteracquired evidence.
C.

Existence of Other Insurance

McColl argues Allied should not be permitted to introduce evidence that she
was insured by BlueCross BlueShield of Montana. Allied asserts the evidence is
potentially relevant to McColl’s claim for damages.
Although evidence of other insurance would generally not be relevant,
Allied has articulated at least a potential basis for its admissibility here. McColl
alleges Allied refused to advance pay her medical expenses. (Doc. 134 at ¶¶ 2, 4.)

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Thus, Allied asserts that, to the extent McColl claims damages as a result of not
having her medical expenses advance paid, evidence regarding other available
health insurance may be relevant to determining her damages claim, as well as her
duty to mitigate damages. As such, the Court declines to preclude all evidence
regarding McColl’s health insurance at this stage. The Court finds the better
course is for Judge Haddon to assess the admissibility of this evidence at trial and
in light of the factual context in which it is offered.
D.

Questions Concerning the Date or Amount the Claim Should
Have Settled For/Whether McColl was Unhappy with Verdict

McColl moves to preclude questions concerning the date or the amount her
claim should have been settled for. She also moves to exclude evidence about
whether McColl was “happy” with the verdict in the underlying case. Allied
opposes, arguing such evidence is directly relevant to whether it breached its duty
to attempt to settle in good faith, and whether the underlying case could have been
settled prior to trial.
The Court finds questions regarding McColl’s settlement demands, the jury
verdict, and testimony concerning when the settlement could or should have been
reached and for what amount of money, are potentially relevant depending on the
testimony at trial. Allied points out, for example, that questions about McColl’s
“unhappiness” with the jury verdict may impeach McColl or her expert’s testimony
that she would have accepted the amount the jury awarded prior to trial. In
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addition, if McColl or her expert testify that the matter could or should have been
settled prior to trial, Allied may be allowed to inquire when the case should have
been settled and under what terms. Therefore, the Court will defer to Judge
Haddon to determine the admissibility of such evidence depending on the evidence
McColl introduces to support her claims.
E.

State District Court’s Denial of Motion for Partial Summary
Judgment

McColl next moves to exclude evidence of the state District Court’s Order
denying McColl’s motion for partial summary judgment. Allied counters, arguing
the issue of reasonably clear liability was in dispute, and the District Court’s Order
is probative of that issue.
Typically, prior motions and a court’s rulings thereon would be inadmissible
at trial. Here, however, Allied asserts it reviewed and relied upon the District
Court’s Order in determining whether liability was reasonably clear in regard to its
insured’s conduct, as well as in regard to McColl’s damages. As such, the Court
finds the State District Court’s Order may at least be potentially relevant to
whether Allied breached its duty to McColl in handling her claim by failing to
negotiate and pay McColl’s damages when liability was reasonably clear.
However, the Court finds Judge Haddon will be better suited to determine the
admissibility of the State District Court’s prior orders in light of the evidence
Allied relies on at trial.
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F.

Proceedings before the Alternative Healthcare Board

McColl moves to exclude evidence of proceedings before the Alternative
Healthcare Board. McColl asserts those proceedings were collateral to the
underlying suit, and have no bearing on the issues in this case. But Allied asserts it
received two letters related to Dr. Lang and the Alternative Healthcare Board
during the handling of McColl’s claim. Allied asserts the documents were part of
its file and were relied on to “some extent.”
At this point, the Court is without sufficient information to determine the
potential relevance of this evidence. The Court is without information regarding
how and when Allied obtained the evidence, how it considered the evidence, or for
what purpose Allied would seek to introduce the evidence at trial. Accordingly,
the Court will defer to Judge Haddon to address the admissibility of this evidence
in light of its factual context, if and when it is offered at trial.
G.

Deposition of Alan F. Blakley

Finally, McColl moves to preclude Allied from using the deposition
testimony of her expert witness, Alan F. Blakley. McColl asserts that at the time
of Mr. Blakley’s deposition, Allied had not disclosed a consultative medical report
it had received from Dr. Glenn J. Messina during its investigation of the underlying
claim. McColl contends that Dr. Messina’s report supports her position that
liability was reasonably clear at the outset of the underlying litigation, and

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therefore Mr. Blakley’s deposition testimony was based upon incomplete
information. McColl argues that permitting Allied to impeach Mr. Blakley with
his deposition testimony would be unfair and prejudicial because it would make
him “look a fool for not knowing the facts.” (Doc. 121 at 12.)
In response, Allied notes that Mr. Blakley reviewed Dr. Messina’s report
following his deposition and submitted an Amended Report. Allied states that it
will not seek to cross-examine Mr. Blakley with his deposition testimony
concerning Dr. Messina’s Report. Nevertheless, Allied asserts it should be
permitted to examine Mr. Blakley based on his Amended Report. Allied also
points out that Mr. Blakley’s deposition dealt with many different issues, aside
from the Messina Report.
Allied does not dispute that it should have provided the Messina Report
prior to the deposition of Mr. Blakley. Fed. R. Civ. P. 37(c)(1)(C) provides that
when “a party fails to provide information or identify a witness as required by Rule
26(a) or (e),” the court may impose “appropriate sanctions, including any of the
orders listed in Rule 37(b)(2)(A)(i)-(vi). Those sanctions include prohibiting a
party “from introducing designated matters in evidence.” Fed. R. Civ. P.
37(b)(2)(A)(ii).
The Court finds it is appropriate to prohibit Allied from utilizing any portion
of Mr. Blakley’s deposition where his testimony may have been impacted by

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Allied’s failure to timely produce the Messina Report. McColl identifies three
issues where “Mr. Blakley’s responses were based upon an incomplete set of facts
unaware what [Allied] had been told by Dr. Messina and when that happened”: (1)
whether liability was reasonably clear; (2) when Allied should have known liability
was reasonably clear; and (3) whether Allied failed to conduct a reasonable
investigation. (Doc. 121 at 11.) 1 The Court agrees that all three areas of inquiry
could have been influenced by the Messina Report. Therefore, Allied should be
prohibited from using Mr. Blakely’s deposition for impeachment, or for any other
reason, relative to those issues.
The Court finds no reason to preclude Allied from relying on other portions
of Mr. Blakely’s deposition that are unrelated to the Messina Report. Further, the
Court finds no basis to preclude Allied from using Mr. Blakely’s Amended Report.
At trial, Judge Haddon can rule on any further objections to the use of Mr.
Blakely’s deposition testimony as they arise, and in light of the factual context in
which they are presented.
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McColl further states that Dr. Messina also opined that McColl’s counsel was
underestimating the extent of her damages, citing “Exhibit B.” The statement
relied upon by McColl’s counsel is not contained within Exhibit B filed with the
Court. (Doc. 121-2.) Nevertheless, even if the statement is included in the
Messina Report, the Court does not agree that Dr. Messina was stating an opinion
that McColl’s damages were being underestimated.
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III.

CONCLUSION
Rulings on motions in limine are provisional and “are not binding on the

trial judge [who] may always change his mind during the course of a trial.” Ohler
v. United States, 529 U.S. 753, 758 n.3 (2000); accord Luce v. United States, 469
U.S. 38, 41 (1984). Accordingly, Judge Haddon may readdress any of McColl’s
motions in limine as necessary at trial. Further, the parties are reminded that
“[d]enial of a motion in limine does not necessarily mean that all evidence
contemplated by the motion will be admitted to trial. Denial merely means that
without the context of trial, the court is unable to determine whether the evidence
in question should be excluded.”’ Ind. Ins. Co., 326 F. Supp. 2d at 846.
Based on the foregoing, IT IS HEREBY ORDERED that McColl’s
Motions in Limine (Doc. 121) are GRANTED in part, and DENIED in part.
SO ORDERED.
DATED this 24th day of October, 2018.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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