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Howarth v. Luther

United States District Court, D. Idaho

May 28, 2018

KATHLEEN HOWARTH, as personal representative of the Estate of Brian Howarth; and KATHLEEN HOWARTH, individually, Plaintiffs,
GORDON LUTHER, M.D., an Individual, Defendants.



         Pending 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.

         A. Defendant Gordon Luther M.D.'s Motion in Limine (Dkt. 121)

         Defendant 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).

         1. Exhibit 6 (Autopsy Photographs)

         Defendant 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).

         Plaintiffs 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.

         From 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 lungs.

         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 pronounced.[1]

         However, 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 harmless.”

         There 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.

         The 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.

         2. Exhibits 9a-9e (Lung Diagrams)

         The 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.

         3. Exhibits 10a-10h (Pre-Death Photographs)

         The 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” ...

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