Walden v. Md. Cas. Co.

BREANNE WALDEN, DANIELLE DESCHENES AZURE,JESSICA BLACKWEASEL, SABRINA REMUS COYNE,BRITTANY DEAN, JENNIFER DEMENT, DANIELLE DUNCAN,JACKIE GREAVU, BETH HAYES, JANA HEILIG, KEALLIE LIETZ,JACKIE MULLENNAX, SARA ONSAGER, ANNA RADFORD,BARBARA SLOAN, MOLLY STILSON, and KYRA TILSON,Individually and as Assignees of DB&D, LLC(d/b/a DAHL'S COLLEGE OF BEAUTY), Plaintiffs, v. MARYLAND CASUALTY COMPANY,and DOES 1-5, inclusive, Defendants.

CV 13-222-M-DLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

December 4, 2017

ORDER

Before the Court are Defendant's Motions in Limine (Doc. 88). At the outset, it is important to note that the Court's overriding goal in this case is to facilitate efficient presentation of the relevant evidence and, to the extent possible, preclude irrelevant and extraneous matters at the time of trial. With this goal in mind, and for the reasons briefly explained below, the Court grants the motion in part, denies the motion in part, and reserves ruling in part.

PROCEDURAL AND FACTUAL BACKGROUND

Following a Mandate of the Ninth Circuit Court of Appeals in this case on July 7, 2017, this matter is now back before this Court. On October 7, 2015, this Court granted Defendant Maryland Casualty Company's ("Maryland") motion for summary judgment, and denied all other pending motions as moot. The Ninth Circuit reversed this Court's ruling. The parties submitted a joint status report on August 18, 2017, pursuant to the Court's request, outlining the motions that are now ripe and need to be resolved.

On August 28, 2015, Defendants filed their motions in limine including:

• Motion in Limine 1 - Excluding any reference to the consent judgment in the underlying case

• Motion in Limine 2 - Excluding evidence of or testimony regarding Maryland's alleged bad faith, duty to defend, duty to indemnify, or that insurer did not pay Plaintiffs' claims

• Motion in Limine 3 - Excluding or limiting the testimony of Plaintiffs' expert Katy Nicholls

• Motion in Limine 4 - Excluding or limiting the testimony of Plaintiffs' expert Dr. Barak Gaster

• Motion in Limine 5 - Excluding any unexpressed expert opinions by Dr. Gaster or Nicholls, including, but not limited to, any reference to or discussion of the article concerning the effect of stress on asthma identified by Dr. Gaster during his deposition

• Motion in Limine 6 - Excluding any argument that Dahl's was negligent

• Motion in Limine 7 - Excluding evidence or testimony regarding the amount of the Plaintiffs' tuition payments and/or student loans

• Motion in Limine 8 - Excluding any reference to or testimony about Dahl's alleged failure to keep proper records

• Motion in Limine 9 - Excluding any reference to or testimony about alleged inadequate instruction by Dahl's or Ms. Heikkila

The Court will address the merits of each motion below.

DISCUSSION

A motion in limine is used to preclude prejudicial or objectionable evidence before it is presented to the jury. The decision on a motion in limine is consigned to the district court's discretion—including the decision of whether to rule before trial at all. United States v. Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999). A motion in limine "should not be used to resolve factual disputes or weigh evidence." BNSF Ry. v. Quad City Testing Laboratory, Inc., 2010 WL 4337827, at *1 (D. Mont. Oct. 26, 2010). Evidence shall be excluded in limine only when it is shown that the evidence is "inadmissible on all potential grounds." See, e.g., Ind. Ins. Co. v. Gen. Elec. Co., 326 F. Supp. 2d 844, 846 (N. D. Ohio 2004). "Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context." BNSF, 2010 WL 4337827 at *1. "This is because 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." Id. Rulings on motions in limine are provisional and the trial judge may always change his mind during the course of trial. Luce v. United States, 469 U.S. 38, 41 (1984).

I. Motion in Limine 1 - Excluding any reference to the consent judgment in the underlying case

Maryland contends that the underlying stipulated judgment is no longer of any consequence and is irrelevant to the issues to be decided in this case at trial. (Doc. 91 at 7 (citing to Hardesty v. Barcus, 2012 WL 5906797, at *2 (D. Mont. Nov. 26, 2012)). Plaintiffs do not oppose this motion. (Doc. 93 at 7.) Thus, Maryland's Motion in Limine 1 is granted.

II. Motion in Limine 2 - Excluding evidence of or testimony regarding Maryland's alleged bad faith, duty to defend, duty to indemnify, or that insurer did not pay Plaintiffs' claims

Maryland also moves to preclude the admission of evidence related to Plaintiffs' foreclosed breach of contract and UTPA claims. (Doc. 91 at 7-8.) Plaintiffs do not oppose the motion as it relates to Mayland's alleged violation of the UPTA, breach of the duty to defend, and breach of the duty to indemnify. (Doc. 93 at 7.) However, Plaintiffs do assert that evidence related to the "non-payment of Plaintiffs' claims" is relevant, and claim that Maryland failed to present any argument or authority to support its proposition that this evidence should be excluded. In its reply brief, Maryland argues that such evidence is irrelevant in light of the Court's ruling that Maryland did not breach its duty to indemnify and did not commit bad faith. (Doc. 95 at 2.) The Court finds that any evidence of non-payment of Plaintiffs' claims by Dahl's' insurer is irrelevant and prejudicial. Therefore, Maryland's Motion in Limine 2 is granted.

III. Motion in Limine 3 and 4 - Excluding or limiting the testimony of Plaintiffs' experts Katy Nicholls and Barak Gaster

Federal Rule of Evidence 702 governs the introduction of expert opinion testimony. Plainly stated, "[t]estimony is admissible under Rule 702, if the subject matter at issue is beyond the common knowledge of the average layman, the witness has sufficient expertise, and the state of the pertinent art or scientific knowledge permits the assertion of a reasonable opinion." United States v. Winters, 729 F.2d 602, 605 (9th Cir. 1984). Under Rule 702, the district judge must perform a gatekeeping function to ensure that the evidence is "not only relevant, but reliable." Daubert v. Merrell Dow Pharm., 509 U.S. 579, 589 (1993). The test of reliability is a "flexible" one, and Daubert's list of specific factors neither necessarily nor solely apply to all experts or in every case. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). As a result, Rule 702 leaves a trial judge "considerable leeway in deciding . . . how to go about determining whether particular expert testimony is reliable,"and whether a Daubert hearing is even required. Id. at 152; see also United States v. Alatorre, 222 F.3d 1098, 1100-02 (9th Cir. 2000) (finding that trial courts are not compelled to conduct pretrial hearings in order to discharge the gatekeeping function under Daubert as to expert testimony). "Expert opinions that are fundamentally unsupported and speculative will not serve the purpose for which they are offered, namely to assist the jury in reaching a sound verdict." Eggar v. Burlington N. R. Co., No. CV 89-159-BLG-JFB, 1991 WL 315487, at *2 (D. Mont. Dec. 18, 1991), aff'd sub nom. Claar v. Burlington N. R. Co., 29 F.3d 499 (9th Cir. 1994).

Consequently, in the instant case, the Court must evaluate the expert testimony proffered by the Plaintiffs according to the guidelines provided by Federal Rule of Evidence 702 and related case law to determine whether it meets the requirements for admissible expert testimony.

a. Dr. Barak Gaster

Maryland seeks to exclude or limit the testimony of Plaintiffs' retained expert, Dr. Barak Gaster, because he failed to review or rely on any of Plaintiffs' medical records prior to forming his opinion on causation and, instead, offered an opinion on the general physical manifestations that may arise when one is subject to emotional distress. (Doc. 91 at 12-13, 15.) Plaintiffs contend that they retained Dr. Gaster to (1) explain the medical/physiological correlation between emotional distress and physical manifestations of the same, and (2) render a medical opinion about causation relative to Plaintiffs' physical manifestations of emotional distress and exposures at Dahl's. (Doc. 93 at 9-10.) Plaintiffs argue that Dr. Gaster is a qualified expert based on his background in medicine, teaching positions, and reputation. (Id. at 10.) Further, they claim that Dr. Gaster: (1) reviewed transcribed statements given by each of the Plaintiffs; (2) reviewed sworn affidavits signed by each of the Plaintiffs; (3) reviewed Plaintiffs' verified responses to Maryland's discovery requests, reviewed the report of Katy Nicholls, Licensed Clinical Social Worker ("LCSW") (including the catalogue of symptoms created by Nicholls); (4) talked to Nicholls about her findings and professional opinions; (5) skimmed Plaintiffs' voluminous medical records; and (6) reviewed authoritative medical literature relevant to the medical allegations in this case. (Id. at 11.)

Moreover, Plaintiffs assert that Dr. Gaster is not required to tediously comb through thousands of pages of medical records and rule out all other potential causes of similar symptoms. (Id. at 13.) Plaintiffs also argue that Maryland's reliance on Eggar v. Burlington N. R.R. Co. is misplaced, because Dr. Gaster never rejected the notion that Plaintiffs have underlying medical conditions, but rather concluded that the environment Plaintiffs endured at Dahl's independently caused physical manifestations of emotional distress. (Doc. 15-16.) Plaintiffs instead rely on Speaks v. Mazda Motor Corp., 118 F. Supp. 3d 1212, 1219 (D. Mont. 2015), for the proposition that the admissibility of expert testimony does not depend...