Martinez et al v. Continental Tire The Americas, LLC

Filing 687

ORDER OVERRULING IN PART DEFENDANT'S OBJECTIONS TO WITNESSES by District Judge Kea W. Riggs. Defendant's objections are OVERRULED as set forth in this opinion. (ve)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
______________________

IRMA MARTINEZ, FELIPE MARTINEZ,
LARRY MUNN, JOSE PRIETO, and
LEE HUNT, as personal representative
of the estate of Abel Portillo, deceased,
Plaintiffs,
vs.

No. 1:17-cv-00922-KWR-JFR

CONTINENTAL TIRE THE AMERICAS,
LLC, An Ohio Limited Liability Company
Defendant.
ORDER OVERULING IN PART DEFENDANT’S OBJECTIONS TO WITNESSES
THIS MATTER comes before the Court upon Defendant’s First Amended Objections to
Plaintiffs’ Trial Witness List (Doc 660). The Court heard argument on the objections at a pretrial
conference on July 14, 2022. The Court limits its analysis to the objections raised by the Defendant in
its written objections and will not entertain new and late objections raised at the pretrial conference.

Having reviewed the parties’ pleadings and argument, and the applicable law, the Court finds that
Defendant’s objections are NOT WELL-TAKEN IN PART and therefore are OVERRULED
IN PART. Defendant objected to five witnesses. At the pretrial conference, Plaintiffs represented
that they would not call Daniel Woodruff. The Court OVERRULES Defendant’s objections to
Mr. Beierwaltes, Dr. Singh, and Dr. Quiroz.
As to Dr. Jenkins, the Court orders further briefing as requested by Plaintiffs at the hearing.
Plaintiffs shall file a response to the objection. The response should address, but is not limited to,
whether Dr. Jenkins was adequately disclosed as a non-retained expert. To the extent Plaintiffs
argue that a witness may testify regarding diagnosis, causation, or treatment as a fact witness,

without being disclosed as a non-retained expert, Plaintiffs must present case law from within the
Tenth Circuit supporting their position. As the Court set out in its text-only order, this response is
due by Monday, July 18, 2022, at 5:00 p.m. local time. Defendant may file a reply by Tuesday,
July 19, 2022, at 5:00 p.m. local time.
As to Mr. Beierwaltes, Defendant asserts that his testimony is not relevant. The Court finds
his testimony to be relevant. Defendant’s objection is OVERRULED.
As to Dr. Singh, Defendant objects that Dr. Singh should not be allowed to give remote
testimony.1 Defendant asserts that Dr. Singh’s testimony should be presented through her
deposition. The Court notes that Plaintiffs previously requested that treating physicians be allowed
to testify remotely. The Court granted the motion. Doc. 635. Defendant argues that Dr. Singh is
not a treating physician, as she conducted the medical examination after Mr. Portillo died. “For
good cause in compelling circumstances and with appropriate safeguards, the court may permit
testimony in open court by contemporaneous transmission from a different location.” Fed. R. Civ.
P. 43(a). As the Court previously found, Doc. 635, the Court now finds that there is good cause
and compelling circumstances to allow Dr. Singh to testify remotely. She resides out of state and
out of the Court’s subpoena power. It is unclear whether she would be willing to travel to New
Mexico. Defendant has not specified anything about her testimony which would make remote
testimony undesirable. Defendant has not articulated specific prejudice or surprise. Therefore,
the Court OVERRULES Defendant’s objection.

1

At the hearing, Defendant made an additional oral objection that she was not identified as an expert. As the Court
noted above, the Court does not consider this objection as it was not raised in the written objection. See Doc. 660.
Alternatively, only to the extent the Court would be required to consider this objection, it accepts Plaintiffs’ proffer
at the hearing that it identified Dr. Singh as a non-retained expert with expertise and opinions regarding cause of
death. Defendant also appeared to identify Dr. Singh as an expert and obtained her deposition testimony.

2

As to Dr. Juan Quiroz, Defendant argues that his testimony will be irrelevant. The Court
disagrees, and concludes that his testimony appears to be relevant. The Court already found that
he was adequately disclosed as a non-retained expert. See Doc. 635 at 7, citing Doc. 622 at 3;
Doc. 622-3, Ex. 3. Therefore, Defendant’s objection is OVERRULED.

IT IS SO ORDERED.
_________________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE

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