United States District Court, D. Idaho
KATHLEEN HOWARTH, as personal representative of the Estate of Brian Howarth; and KATHLEEN HOWARTH, individually, Plaintiffs,
GORDON LUTHER, M.D., an Individual, Defendants.
MEMORANDUM DECISION AND ORDER RE: DEFENDANT GORDON
LUTHER M.D.'S MOTION IN LIMINE (DKT. 121) PLAINTIFFS'
MOTIONS IN LIMINE (DKT. 123)
HONORABLE RONALD E. BUSH, CHIEF U.S. MAGISTRATE JUDGE
are (1) Defendant Gordon Luther M.D.'s Motion in Limine
(Dkt. 121), and (2) Plaintiffs' Motions in Limine (Dkt.
123). Having carefully reviewed the record and otherwise
being fully advised, the Court enters the following
Memorandum Decision and Order resolving Defendant's
Motion in Limine and partially resolving Plaintiffs'
Motions in Limine. A subsequent decision will resolve the
balance of Plaintiffs' Motions in Limine.
Defendant Gordon Luther M.D.'s Motion in Limine (Dkt.
moves the Court for an order prohibiting Plaintiffs from
offering the following evidence: (1) Exhibit 6 (autopsy
photographs), (2) Exhibits 9a-9e (lung diagrams), and (3)
Exhibits 10a-10h (pre-death photographs).
Exhibit 6 (Autopsy Photographs)
contends that both the number and nature of the autopsy
photographs that have been proposed in Plaintiffs'
Exhibit 6 are irrelevant and prejudicial. Defendant further
contends that such photographs were not produced to Defendant
as part of the initial disclosures required under Rule 26(a)
and therefore Plaintiffs should be precluded from admitting
such photographs under Rule 37(c).
contend that the Defendant did not request production of
trial exhibits in written discovery. Plaintiffs also say that
they produced a complete copy of the autopsy report in
discovery, but then say that the copy they first received did
not contain the photographs which were then obtained in a
follow-up request to the Medical Examiner's office.
the information available to the Court, the Court concludes
that the photographs were not produced to the
Defendant during the discovery process, even though the
remainder of the report was produced. The Court also
concludes that many, if not most, of the photographs depict
something other than the lungs and dissected sections of the
Court agrees with Defendant that the autopsy photographs
which depict post-mortem images of something other than the
lungs and lung tissue have only a remote, if any, evidentiary
value to this case. Further, the Court finds that any
evidentiary value that might exist in such photographs is
outweighed by the gruesomeness of such images and the highly
prejudicial impact that such images would have on the mind of
the jurors as they consider how to decide the case.
Therefore, the Court grants the motion in limine as to the
photographs which do not depict the lung or dissected
sections of the lung tissue. But the relevance of those
photographs that do depict the lung or dissected
sections of the lung tissue is not remote, and the danger of
prejudice as to such photographs is much less
Defendant contends that none of the photographs was produced
under Rule 26(a), and therefore should be excluded under Rule
37(c). Rule 26(a), of course, imposes the fundamental initial
disclosure requirement upon every party, to include (in
subpart (ii)) “ a copy…of all
documents…that the disclosing party has in its
possession, custody, or control and may use to support its
claims or defenses, unless the use would be solely for
impeachment.” In turn, Rule 37(a) requires that a party
failing to provide information required by Rule 26(a)
“is not allowed to use that information…at a
trial, unless the failure was substantially justified or is
is no particular justification offered by Plaintiffs for the
failure to provide the photographs, other than the reference
to the fact that the photos were not provided to
Plaintiffs' counsel with the report, and a
“follow-up” request had to be made. Hence, the
circumstances are very similar to those presented by
Plaintiffs' motion to preclude evidence from Defendant
seeking to allow the jury to consider the possible fault of
others in causing Howarth's death. In other words,
similar to the Plaintiffs' circumstance of being aware
that the Defendant was contending others were to blame,
notwithstanding the content of a possibly ambiguous written
discovery response, the Defendant was aware from having
received the autopsy report sans photographs that
there were, in fact, photographs (as is always the case with
an autopsy) that would have accompanied the report, but made
no specific request for the same. Plaintiffs should have
supplemented their earlier disclosures with the photographs,
but on these facts the Court is persuaded that the Defendant
reasonably could have acted to fill that gap, much as
Plaintiffs reasonably could have acted to settle any
potential uncertainty about the Defendant's intentions
regarding the potential blame to be borne by other persons.
Further, the Court is persuaded that the failure to produce
the photographs of the lungs is harmless in this case, where
the medical examiner who performed the autopsy will testify,
will have first-hand knowledge of the condition of the lungs
and the appearance of the lung tissue, and where the
photographs will help the jury to understand his testimony,
including any cross-examination.
Court would rule the other way, however, as to the remainder
of the 60 photographs proposed by Plaintiffs in Exhibit 6 and
indicates so here for the benefit of counsel, even though it
appears that Plaintiffs have indicated they do not intend to
seek admission of any of the other 60 photographs.
Defendant's motion in limine is denied as to the ten
autopsy photographs depicting the lung or dissected sections
of the lung tissue.
Exhibits 9a-9e (Lung Diagrams)
proposed lung diagrams are appropriate illustrative exhibits,
for purposes of testimony only. The Court will permit their
use, provided a proper foundation as to what the diagrams
depict and as to the purpose of illustration, is made.
Exhibits 10a-10h (Pre-Death Photographs)
Court is satisfied that as to these photographs, the
requirements of Rule 26(2) and 37(c) combine to require the
granting of Defendant's motion in limine. The
photographs, described as photographs of the Howarths'
wedding, honeymoon, and a fishing photograph are described by
Plaintiffs as needed to allow the jury to understand what
Howarth was “capable of bestowing” ...