Jenks et al v. New Hampshire Motor Speedway, Inc. et al

Filing 201

ORDER re: 183 Motion in Limine to Preclude the Deposition Testimony of Roderick Jenks. Parties to inform the court during or prior to final pretrial conf. whether they expect to submit additional evidence pertaining to Mr. Jenk's competency to testify and if they request a competency hearing. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Melissa Jenks, Individually
and as Guardian and Next
Friend of Roderick Jenks
v.

Civil No. 09-cv-205-JD

New Hampshire Motor Speedway, et al.

Procedural Order
The plaintiff filed a motion in limine to preclude the
deposition testimony of Roderick Jenks on the ground that Mr.
Jenks is not mentally competent to testify.

In support of her

motion, the plaintiff filed excerpts from the deposition of her
expert, Dr. Peter Isquith, who testified that Mr. Jenks likely
knows the difference between truth and falsity, but may be unable
to fully understand the language of a question which could lead
him to answer questions based on visual cues or other factors
rather than his knowledge.
Textron objected to the motion, arguing that the plaintiff
did not rebut the presumption that Mr. Jenks was competent to
testify.

In support of its objection, Textron submitted a

videotaped copy of Mr. Jenks’s deposition and excerpts from the
depositions of Dr. Isquith and the plaintiff’s expert
neurologist, Dr. Donald Ayres.

Textron contends that both

doctors’ opinions support its argument that Mr. Jenks is
competent to testify.

Textron further contends that Mr. Jenks’s

deposition is relevant to the issue of damages and should be
admissible as evidence of Mr. Jenks’s functional capacity and to
rebut the plaintiff’s “day in the life” videotape.
“[I]n a civil case, state law governs [a] witness’s
competency regarding a claim or defense for which state law
supplies the rule of decision.”

Fed. R. Evid. 601.

Under New

Hampshire law, witnesses are presumed competent to testify.
State v. Hernandez, 162 N.H. 698, 707 (2011).

See

“This presumption

can be overcome by findings that the witness ‘lacks the
sufficient capacity to observe, remember and narrate as well as
understand the duty to tell the truth.’”

Id. at 707-08 (quoting

N.H. R. Ev. 601(b)); see also State v. Brooks, 162 N.H. 570, 580
(2011).
The court has reviewed the parties’ memoranda of law and
accompanying exhibits.

The parties shall inform the court during

or prior to the final pretrial conference, scheduled for Friday,
June 29, 2012, at 10:00 a.m., whether they expect to submit
additional evidence pertaining to Mr. Jenks’s competency to

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testify.

The parties shall also inform the court during or prior

to the final pretrial conference if they request a competency
hearing.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 27, 2012
cc:

R. Matthew Cairns, Esquire
James M. Campbell, Esquire
R. Peter Decato, Esquire
Mark V. Franco, Esquire
Neil A. Goldberg, Esquire
Kathleen M. Guilfoyle, Esquire
Daniel R. Mawhinney, Esquire
David S. Osterman, Esquire
Christopher B. Parkerson, Esquire
Elizabeth K. Peck, Esquire
Michael D. Shalhoub, Esquire
William A. Whitten, Esquire

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