Casias v. State of New Mexico Department of Corrections et al

Filing 214

ORDER re 185 Objections filed by State of New Mexico Department of Corrections, Herman Gonzales, Taracina Morgan, 134 Fourth MOTION in Limine to Exclude Evidence of Crimes and Other Bad Acts filed by Isaha Casias, 186 Objection s filed by State of New Mexico Department of Corrections, Herman Gonzales, Taracina Morgan, 133 Third MOTION in Limine to Bar the Admission of Certain Deposition Testimony by Dr. Kimberly Birch filed by Isaha Casias, 183 Objections, filed by Isaha Casias, 182 Objections filed by Isaha Casias by Circuit Judge Joel M. Carson, III. (rmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ISAHA CASIAS,
Plaintiff,
v.

1:16-CV-00056-JMC-SCY

STATE OF NEW MEXICO DEPARTMENT
OF CORRECTIONS, TARACINA MORGAN
and HERMAN GONZALES,
Defendants.
ORDER OVERRULING IN PART DEFENDANTS’ OBJECTION TO PLAINTIFF’S
CONTESTED EXHIBIT LIST; GRANTING IN PART PLAINTIFF’S MOTION IN
LIMINE NO. IV; SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF’S
OBJECTIONS TO DEFENDANTS’ FINAL TRIAL EXHIBIT LIST; GRANTING IN
PART PLAINTIFF’S MOTION IN LIMINE NO. III; SUSTAINING PLAINTIFF’S
OBJECTIONS TO DEFENDANTS’ DEPOSITION DESIGNATIONS; AND
OVERRULING DEFENDANTS’ OBJECTION TO PLAINTIFF’S USE OF
DEPOSITIONS AT TRIAL
On March 5, 2019, the parties appeared before the Court for a pretrial conference. At the
pretrial conference, the parties orally argued the remaining pending motions and objections. For
the reasons set forth below, the Court OVERRULES IN PART Defendants’ Objection to
Plaintiff’s Exhibit List [Doc. No. 186]; GRANTS IN PART Plaintiff’s Motion in Limine No. IV
[Doc. No. 134]; SUSTAINS IN PART and OVERRULES IN PART Plaintiff’s Objections to
Defendants’ Final Trial Exhibit List [Doc. No. 182]; GRANTS IN PART Plaintiff’s Motion in
Limine No. III [Doc. No. 133]; SUSTAINS Plaintiff’s Objections to Defendants’ Deposition
Designations [Doc. No. 183]; and OVERRULES Defendants’ Objection to Plaintiff’s use of
Depositions at Trial [Doc. No. 185].
I.

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On July 11, 2013, Defendants Taracina Morgan and Herman Gonzales transported Plaintiff
Isaha Casias, along with other inmates, from one prison to another. During the transfer, Plaintiff
alleges that Defendants left the van unattended with the van’s engine turned off, and the windows
and doors closed. As a result of these conditions, Plaintiff alleges he lost consciousness and
convulsed with uncontrollable muscle spasms.

Plaintiff claims that during that transfer,

Defendants acted negligently and violated his constitutional rights. As a result of this event,
Plaintiff alleges he suffered medical and psychological damages.
II.
Plaintiff and Defendants have filed various pretrial motions and have lodged objections to
evidentiary issues. The Court now addresses each of these pending motions and objections in turn.
(i)

OPS Report of Investigation
Plaintiff seeks to admit at trial the Office of Professional Standards (“OPS”) report that

Derek Williams, Deputy Warden of the Penitentiary of New Mexico (“PNM”), prepared. Doc.
No. 193. The Court previously addressed this issue in its September 10, 2018, Memorandum
Opinion and Order [Doc. No. 174], but reserved ruling on the admission of the OPS report itself
until trial in order to determine if Plaintiff can lay the proper evidentiary foundation for admission
under a hearsay exception. Plaintiff contends that the issue is ripe for resolution. Plaintiff argues
the report is admissible under Feder Rule of Evidence (“Rule”) 801(d)(2) or Rule 803(6).
Defendants object to the OPS report in their Objection to Plaintiff’s Exhibit List [Doc. No. 186]
by incorporating the objections made in their Response to Plaintiff’s Motion in Limine No. II [Doc.
No. 155]. Defendants’ Response to Plaintiff’s Motion in Limine No. II, however, does not contain
specific objections regarding the admissibility of the OPS report.

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Rule 801(d)(2) provides an exclusion to the rule against hearsay for opposing party
statements. Fed. R. Evid. 801(d)(2). An opposing party’s statement is a “statement . . . offered
against an opposing party,” and among other things, “was made by a person whom the party
authorized to make a statement on the subject.” Id. Plaintiff offers the OPS report as evidence
against Defendants. Williams created the report after OPS requested Williams investigate the
incident. OPS is part of Defendant New Mexico Department of Corrections (“DOC”). A party to
this case thus authorized Williams to make a statement on the subject. The OPS Report satisfies
the requirements of Rule 801(d)(2). See Reid Brothers Logging Co. v. Ketchikan Pulp Co., 699
F.2d 1292, 1306 (9th Cir.1983) (explaining that a report prepared by third party at request of
defendant company was admissible under Rule 801(d)(2)(C)). The Court overrules Defendants’
objection to the OPS report.
(ii)

Defendants’ interviews with Derek Williams
Plaintiff seeks to admit transcripts or audio recordings of Williams’ interviews of Herman

Gonzales and Taracina Morgan. Doc. No. 193. At the pretrial conference, Defendants objected
to the admission of this evidence because the contents of the interviews are not sworn statements.
A statement by a party opponent, however, is not required to be sworn to be admissible. See SE
Techs., Inc. v. Summit Elec. Supply Co., 2002 WL 34705613, at *3 (D.N.M. Feb. 7, 2002)
(describing that unsworn statements are admissible under Fed. R. Evid. 801(d)(2)); Fed. R. Evid.
801(d)(2). Like the evidence discussed above, the statements in both interviews are admissible
under Rule 801(d)(2). The statements are statements by a party to the case in his or her individual
capacity offered by Plaintiff against the party-declarant.

See Fed. R. Evid. 801(d)(2)(A).

Accordingly, the statements are an exclusion from hearsay and may be offered as substantive
evidence. See United States v. Williamson, 53 F.3d 1500, 1517 (10th Cir. 1995) (explaining that

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because 801(d)(2) is an exclusion from hearsay, evidence admissible under that rule is admissible
as substantive evidence). The Court overrules Defendants’ objection to this evidence.
The Court, however, believes the introduction of both the transcript and audio recording
from each interview is unnecessarily cumulative. Fed. R. Evid. 403. Therefore, Plaintiff shall
only be allowed to admit the transcript from each interview for use at trial.
(iii)

Hand-drawn diagram of sallyport area

Plaintiff seeks to admit a hand-drawn diagram created by Edward Urtiaga of the sallyport
area at PNM. Doc. No. 193. Subject to a minimal foundation being laid at trial (i.e., a witness
who can identify the diagram), Defendants indicate they will not object to this evidence.
Therefore, the Court does not exclude the hand-drawn diagram from evidence at this time. In the
event no foundation testimony is provided, the Court will entertain a motion to strike the diagram
from the record.
(iv)

Assorted photographs and video
Plaintiff also seeks to admit at trial photographs of a DOC transport van, a photograph of

the paper jumpsuits used during DOC inmate transports, photographs of the PNM sallyport area,
and a video of PNM’s north sallyport. Doc. No. 193. Defendants object to admission of this
evidence in their Motion in Limine to Exclude Photographic and/or Video Trial Exhibits. Doc.
No. 125. The Court previously ruled that this evidence is admissible subject to foundation being
laid at trial. Doc. No. 174. Like the above evidence, at the pretrial conference, Defendants
indicated they would not object to admission of this evidence subject to a minimal foundation
being laid at trial. Accordingly, the Court does not exclude the admission of this photographic and
video evidence at this time but will entertain a motion to strike the evidence if no foundation is
laid.

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(v)

Plaintiff’s Judgment and Sentence
At the pretrial conference, the parties discussed the admission of Plaintiff’s Judgment and

Sentence. Plaintiff previously moved to exclude this evidence in his Motion in Limine No. IV.
Doc. No. 134. In its September 10, 2018 Memorandum Opinion and Order [Doc. No. 174], the
Court ruled that “absent a showing at trial of a stronger connection of the fact of a certain
conviction or length of incarceration to the nature of Plaintiff’s asserted emotional distress, the
Court will grant Plaintiff’s motion to exclude reference to his criminal history, with the exception
of the fact of the 2013 felony conviction, under Rule 403.” Doc. No. 174. The Court’s September
10, 2018, ruling shall stand.
(vi)

NMCD psychiatric assessment
Defendants seek to admit a New Mexico Corrections Department psychiatric assessment

of Plaintiff from several days before the incident. Doc. No. 212. Pursuant to Rule 403, Plaintiff
objects to specific sections of the psychiatric assessment which reference Plaintiff’s fighting,
multiple arrests, and multiple prison sentences. Doc. No. 193. At the pretrial conference,
Defendants agreed to redact the references to which Plaintiff objects. Because of Defendants’
concession, the Court overrules as moot Plaintiff’s objections to the psychiatric assessment.
(vii)

Refusal form

Defendants claim Plaintiff continued to refuse care following the incident, despite being in
a purportedly “bad position.” To evidence this, Defendants seek to admit a refusal form which
shows that Plaintiff refused certain labs on March 31, 2014. Doc. No. 212. At the pretrial
conference, Plaintiff argued the refusal form is not relevant because what labs Plaintiff refused is
unclear and no medical provider plans to attend trial who can testify as to the contents and
significance of the refusal form. Plaintiff also argues, and the Court agrees, that the probative

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value of this evidence is minimal and is substantially outweighed by the danger of confusion. Fed.
R. Evid. 403. Without testimony regarding the specific content of the refusal form, the jury will
be left to speculate about the relevance of the evidence. See Bankers Tr. Co. v. Lee Keeling &
Assocs., Inc., 20 F.3d 1092, 1101 (10th Cir. 1994) (“[T]he jury’s finding that [the defendant] was
negligent . . . could only have been based on speculation and conjecture, an impermissible ground
upon which to base its verdict.”). Because the Court concludes the probative value of the refusal
form is substantially outweighed by the danger of confusing the jury, the Court sustains Plaintiff’s
objection.
(viii) Medical records
Defendants seek to admit records from two health care facilities as evidence of Plaintiff’s
pre-existing Post-Traumatic Stress Disorder (“PTSD”) and emotional distress. 1 Doc. No. 212.
Plaintiff objects these records as inadmissible hearsay under Rule 801 and Rule 802. Doc. No.
208. Plaintiff also argues the records are inadmissible under Rule 803(6) and Rule 803(4). Id. At
the pretrial conference, Defendants argued that the records are admissible under Rule 803(4), Rule
803(3), or Rule 804(a)(3).
Defendants allege that Plaintiff’s medical records from Cottonwood Holistic Family Health
and Presbyterian Medical Services at Farmington Community Health Center indicate a self-report
from Plaintiff of a 2007 diagnosis of PTSD. Doc. No. 157. The Court previously determined that
if there is an evidentiary basis supporting that Plaintiff made a self-report of PTSD prior to the
incident, that he suffered severe emotional distress from a past incident of physical torture, or that
he had experienced major depression in 2013, that evidence may be relevant to the degree of

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Defendants seek to admit Cottonwood Holistic Family Health records from February 14, 2011,
March 4, 2011, and April 5, 2012. They also seek to admit Presbyterian Medical Services at
Farmington Community Health Center records from April 12, 2013. Doc. No. 212.

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Plaintiff’s emotional distress arising from this incident or whether his emotional damages preexisted this incident. Cf. York v. American Tel. & Tel. Co., 95 F.3d 948, 957-58 (10th Cir. 1996)
(holding that because plaintiff raised a claim of emotional distress, it was entirely appropriate for
court to allow defendants to introduce evidence of alternate or multiple causes of such distress,
including past hospitalization in a psychiatric facility and divorce proceedings); Hancock v. Hobbs,
967 F.2d 462, 467 (11th Cir. 1992) (“And because Hancock placed her mental condition in issue
with her claim for damages, we conclude that the district court did not abuse its discretion in
admitting her prior psychiatric treatment into evidence under Rule 403.”), partially abrogated on
other grounds by Jaffee v. Redmond, 518 U.S. 1 (1996)). The Court reserved ruling on this issue
for trial. Doc. No. 174.
Plaintiff argues that statements contained in the medical records create a double hearsay
problem. The first layer of hearsay are Plaintiff’s statements contained in the medical records.
Plaintiff’s statements are offered against him by Defendants and are thus statements by a party
opponent, an exclusion from the definition of hearsay. Back v. Nestle USA, Inc., 694 F.3d 571,
577 (6th Cir. 2012) (concluding Rule 801(d)(2) satisfies the admissibility requirements for the first
layer of hearsay); Fed. R. Evid. 801(d)(2)(A) (“A statement is not hearsay if . . . [t]he statement is
offered against a party and . . . was made by the party in an individual or representative capacity”).
Therefore, the statements contained in the medical records are admissible if the records themselves
fall within a hearsay exception.
Rule 803(4) makes admissible “[a] statement that: (A) is made for—and is reasonably
pertinent to—medical diagnosis or treatment; and (B) describes medical history; past or present
symptoms or sensations; their inception; or their general cause.”

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Fed. R. Evid. 803(4).

Accordingly, statements contained in the medical records made for the purpose of medical
diagnosis or treatment are admissible under Rule 803(4).
At the pretrial conference, Plaintiff argued that it is unclear from the Cottonwood Holistic
Family Health records that he intended to seek medical diagnosis or treatment. Although the Court
has not had the benefit of reviewing the records, Defendants claim the records include statements
of Plaintiff’s medical history. Courts have repeatedly acknowledged that “a statement made in the
course of procuring medical services, where the declarant knows that a false statement may cause
misdiagnosis or mistreatment, carries special guarantees of credibility.” United States v. Tome, 61
F.3d 1446, 1449–50 (10th Cir. 1995) (quoting White v. Illinois, 502 U.S. 346, 356 (1992)). That
principle applies to Plaintiff’s statements contained in the Cottonwood Holistic Family Health
records.

Given that Plaintiff was speaking to his physician about his medical history, his

statements carry a special guarantee of credibility, and fall within the hearsay exception in Rule
803(4).
Plaintiff also objects to the Farmington Community Health Center records on the grounds
that Plaintiff spoke with a social worker, not a physician, and, thus his statements were not made
for the purpose of medical diagnosis or treatment. But “[t]he ambit of Rule 803(4) is not limited
to statements made to a licensed physician, but instead may encompass those made to social
workers, provided that the declarant intended to procure medical treatment.” Davignon v.
Clemmey, 322 F.3d 1, 8 n.3 (1st Cir. 2003); see also United States v. Yellow, 18 F.3d 1438, 1442
(8th Cir. 1994); State ex rel. Children, Youth & Families Dep’t v. Frank G., 108 P.3d 543, 555
(N.M. Ct. App. 2005), aff’d sub nom. In the Matter of Pamela A.G., 134 P.3d 746 (N.M. 2006).
Here, Plaintiff does not allege that he was not seeking medical treatment from Farmington
Community Health Center. Therefore, the Farmington Community Health Center records are

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admissible as statements made for the purpose of medical diagnosis or treatment under Rule
803(4).
The Court overrules Plaintiff’s objections to the Cottonwood Holistic Family Health and
Farmington Community Health Center medical records.
(ix)

Sallyport Video
Defendants seek to admit a video allegedly depicting the sallyport area on the day of the

incident. The video appears to be a hand-held video camera recording a computer screen. In the
Court’s September 10, 2018, Memorandum Opinion and Order, the Court noted that the lack of
explanation for why the video evidence looks to be from a hand-held camera is concerning [Doc.
No. 174]; however, the Court did not rule on the admissibility of the video at that time.
At the pretrial conference, Plaintiff objected to the admission of this evidence on the
grounds that it is impossible to authenticate. Defendants, however, claim Williams can lay the
proper foundation for this evidence at trial. Accordingly, the Court reserves ruling on the
admission of this video evidence until trial.
(x)

Objections to Dr. Kimberly Birch’s deposition testimony
Defendants identified Dr. Kimberly Birch as a witness with knowledge of Plaintiff’s

medical claims. Doc. No. 13. Defendants deposed Dr. Birch and designated her deposition
testimony for use at trial. Doc. No. 177. Plaintiff objects to certain statements contained in Dr.
Birch’s deposition. Doc. Nos. 133, 183. Specifically, Plaintiff objects to Dr. Birch’s testimony
regarding the time of the incident and statements by unidentified inmates begging to return to the
transport van following the incident.
a. Testimony regarding the time of the incident

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Dr. Birch reported the time of the incident as 12:40 p.m. in her medical record. In her
deposition testimony, however, Dr. Birch states that she did not look at her watch to confirm the
time, but estimated the time based on conversations with others. Birch Dep. 35:5-24; Doc. No.
177.

Plaintiff objects to the admissibility of Dr. Birch’s statement regarding the time as

inadmissible hearsay under Rule 801 and Rule 802.
The Court previously addressed this issue in its September 10, 2018, Memorandum
Opinion and Order. Doc. No. 174. Acknowledging that the statement is hearsay, the Court
reserved ruling on this issue for trial so that Dr. Birch could verify the source and circumstances
of the recorded time. The Court determined at the time of the Memorandum Opinion and Order
that the record was insufficient to establish all the foundational elements required for the statement
to fall within the hearsay exception for a Record of a Regularly Conducted Activity under Rule
803(6).
Because Defendants have elected to submit a trial deposition, the Court no longer needs to
wait for trial to resolve this issue. Further, because Dr. Birch will not testify at trial, she is unable
to lay the proper foundation for this statement to fall within the hearsay exception. Therefore, Dr.
Birch’s deposition testimony regarding her reported time of the incident is inadmissible hearsay.
The Court grants Plaintiff’s Motion in Limine No. III with respect to Dr. Birch’s deposition
testimony about the time of the incident.
b. Testimony regarding the statements of unidentified inmates
Dr. Birch testified at her deposition that she recommended two unidentified inmates stay
for observation. These inmates evidenced stable vital signs and allegedly begged her to allow
them to continue to their final destinations. Birch Dep. 18:1-7, Doc. No. 177. Plaintiff objects to
this testimony under Rules 801, 802, and 403.

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Like the prior challenge to Dr. Birch’s deposition testimony, the Court previously reserved
ruling on this issue for trial. Doc. No. 174. The Court noted it was not convinced of the relevance
of this statement but that it would wait to see whether Defendants could establish the context of
the statement at trial. Because Dr. Birch will not testify at trial, the only context for the statement
comes from her trial deposition. A statement regarding two unidentified inmates’ desire to proceed
with the transport is not relevant. Without the identity of the inmates, Dr. Birch’s statement is
irrelevant to Plaintiff’s case or Defendants’ defense. See Fed. R. Evid. 401. Further, if these
statements were allowed into evidence, it could cause the jury to improperly speculate that Plaintiff
was one of the two inmates Dr. Birch described. See Bankers Tr. Co., 20 F.3d at 1101. Therefore,
even if this evidence were relevant, under Rule 403 the probative value is substantially outweighed
by the danger of unfair prejudice and confusing the jury. Accordingly, the Court grants Plaintiff’s
Motion in Limine No. III with respect to Dr. Birch’s deposition testimony about the pleas of two
unidentified inmates to proceed with the transport.
(xi)

Objections to Sharoski Jackson’s deposition testimony
Plaintiff designated the direct examination of Sharoski Jackson by video deposition for use

at trial. Doc. No. 181. Defendants did not designate any portion of the deposition of Jackson in
their deposition designations but object to Plaintiff’s limited designation. Doc. Nos. 177, 185.
Defendants claim they stipulated to a video deposition of Jackson with the understanding that
Defendants’ cross-examination of Jackson would be included in the designation. Plaintiff does
not dispute this; however, Plaintiff objects to a portion of Jackson’s deposition where defense
counsel asks Jackson about his criminal convictions. Plaintiff challenges the admissibility of
Jackson’s prior criminal convictions under Rules 402 and 403 and argues that the conviction is
inadmissible under Rule 609.

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The nature of Jackson’s convictions is highly prejudicial. A jury convicted Jackson of
accepting earnings of a prostitute, third degree human trafficking, fourth degree human trafficking,
and recruiting, soliciting, transporting, and contributing to the delinquency of a minor. The nature
of these convictions could lead to a decision on an improper, emotional basis. United States v.
Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999) (Evidence is unfairly prejudicial if “it provokes an
emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the
defendant wholly apart from its judgment.”). Further, Defendants have not argued that evidence
of Jackson’s conviction is probative of the circumstances of this case. Thus, under Rule 403 the
probative value of the nature of Jackson’s prior convictions is substantially outweighed by the
danger of unfair prejudice to Plaintiff. Fed. R. Evid. 403. The Court sustains Plaintiff’s objection
and directs Plaintiff to strike Jackson’s deposition testimony regarding his criminal convictions.
III.
For the reasons set forth above, the Court OVERRULES IN PART Defendants’ Objection
to Plaintiff’s Exhibit List [Doc. No. 186]; GRANTS IN PART Plaintiff’s Motion in Limine No.
IV [Doc. No. 134]; SUSTAINS IN PART and OVERRULES IN PART Plaintiff’s Objections to
Defendants’ Final Trial Exhibit List [Doc. No. 182]; GRANTS IN PART Plaintiff’s Motion in
Limine No. III [Doc. No. 133]; SUSTAINS Plaintiff’s Objections to Defendants’ Deposition
Designations [Doc. No. 183]; and OVERRULES Defendants’ Objection to Plaintiff’s use of
Depositions at Trial [Doc. No. 185].
Entered for the Court
this the 14th day of March, 2019
/s/ Joel M. Carson III
Joel M. Carson III
United States Circuit Judge
Sitting by Designation

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