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CARMEN HEICHEL vs. LIBERTY MUTUAL INSURANCE

Workers' Compensation Court of the State of Montana

Is employer’s written statement from evidence admissible?

IN THE WORKERS’ COMPENSATION COURT OF THE STATE OF MONTANA 2018 MTWCC 3
WCC No. 2017-3947. CARMEN HEICHEL vs. LIBERTY MUTUAL INSURANCE.

ORDER DENYING PETITIONER’S MOTION IN LIMINE

Summary: Petitioner moves for an order excluding her employer’s former store manager’s written statements — which recount that Petitioner stated she injured her shoulder when she tripped over her dogs — from evidence as inadmissible hearsay. Petitioner also asserts that the written statements are inadmissible because Respondent did not make the employer’s former store manager available for a deposition or subpoena her after she told Respondent’s attorney that she would not appear without a subpoena.

Held: Petitioner’s Motion in Limine is denied. This Court reserves ruling on whether the written statements are admissible under the hearsay exception for present sense impressions, M.R.Evid. 803(1), until trial, at which time Respondent will have the opportunity to lay the required foundation. Moreover, because the store manager no longer worked for Petitioner’s employer, Respondent had no duty to produce the former store manager for a deposition and no duty to subpoena the store manager to a deposition Petitioner had scheduled.

Judgment: Petitioner’s Motion in Limine is denied.

READ FULL DOCUMENT AT ORIGNAL SOURCE: http://wcc.dli.mt.gov/h/Heichel_2018MTWCC3.pdf