Casanova v. Ulibarri

Filing 317

MEMORANDUM OPINION AND ORDER denying 281 Opposed MOTION to Exclude Expert Opinion of Michael Hollifield, denying 316 MOTION for Order, denying 312 MOTION to Dismiss, denying 308 MOTION to Appoint Counsel, denying 313 MOTION for Order, granting 310 Opposed MOTION to Exclude by District Judge James A. Parker. (vv)

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

JORGE CASANOVA,
Plaintiff,

v.

No. CIV 08-288 JAP/CG

ROBERT ULIBARRI, Warden,
Defendant.

MEMORANDUM OPINION AND ORDER
At a Daubert motion hearing and pretrial conference on April 12, 2017, Plaintiff pro se
Jorge Casanova and Deborah Wells, defense counsel for Warden Robert Ulibarri, were present.
The Court heard argument from both parties on pending motions and set additional pretrial
deadlines.
Preliminary Matters
The Court will deny as moot DEFENDANT’S DAUBERT MOTION WITH REGARD
TO MICHAEL HOLLIFIELD (Doc. No. 281) based on notification by Plaintiff that he no longer
will have Dr. Hollifield testify at trial. See PLAINTIFF’S MOTION TO INFORM THE COURT
HE DISMISSED EXPERT WITNESS HOLLIFIELD FROM THIS LAWSUIT (Doc. No. 312).1

1

The Court will deny as moot PLAINTIFF’S MOTION TO INFORM THE COURT (Doc. No. 312), which does
not request any relief but, instead, merely informs the Court that Dr. Hollifield will not testify at trial.

1

PLAINTIFF’S MOTION – OPPOSITION TO DEFENDANT’S DAUBERT MOTION
CHALLENGING KAREN WEINBERG (Doc. No. 313), while docketed as a Motion requiring
Court action, is Plaintiff’s Response to Defendant’s Daubert Motion. Thus, while the Court
considered Plaintiff’s Response and the attached exhibits (Doc. No. 313) in deciding Defendant’s
Daubert Motion, see discussion below, the Court will deny Plaintiff’s “Motion” as moot.
PLAINTIFF’S MOTION RESQUEST (sic) FOR APPOINTMENT OF COUNSEL
DURING APRIL 12/2017 TO MAY 8-10-2017 (Doc. No. 308) requests that the Court appoint
counsel for Plaintiff during pretrial proceedings and the trial that will begin on May 8, 2017.
Plaintiff states that because he is hard of hearing it would be helpful to have an attorney assist
him with trial-related matters, including voir dire, jury selection and examination of witnesses.
At the April 12, 2017 hearing, the Court observed that in April 2016, experienced trial attorney
George Bach began serving as pro bono counsel for Plaintiff, but that in February 2017, Mr.
Bach was allowed to withdraw as Plaintiff’s attorney due to irreconcilable differences in the
attorney-client relationship. Doc. Nos. 265, 267. Mr. Bach could have assisted Plaintiff at a trial,
but Plaintiff did not oppose withdrawal of his attorney. Moreover, Plaintiff then notified the
Court that he wished to proceed pro se. Doc. Nos. 265, 268. The Court does not find any grounds
to support the appointment of counsel at this late date although Plaintiff is free to employ his
own attorney. The Court will, therefore, deny Plaintiff’s Motion for Appointment of Counsel.
At the April 12, 2017 hearing, Plaintiff agreed that he would find a neutral, courtqualified interpreter for trial proceedings. On April 13, 2017, Plaintiff filed PLAINTIFF[’S]
EMERGENCY MOTION WITH THE COURT (Doc. No. 316), asking the Court for assistance
in locating an interpreter. The Court will deny the EMERGENCY MOTION as moot based on

2

the Court’s email correspondence to Plaintiff on April 14, 2017, providing him with contact
information for the Court’s Supervisory Interpreter.
Defendant’s Daubert Motion Challenging Expert Testimony of Karen Weinberg
On April 7, 2017, Warden Ulibarri filed DEFENDANT’S DAUBERT MOTION WITH
REGARD TO KAREN WEINBERG (Daubert Motion) (Doc. No. 310). On April 11, 2017,
Plaintiff filed PLAINTIFF’S MOTION—OPPOSITION TO DEFENDANT’S DAUBERT
MOTION CHALLENGING KAREN WEINBERG (Response) (Doc. No. 313). At the April 12,
2017 Daubert hearing, the Court heard argument from Plaintiff and defense counsel and also
heard the testimony of Ms. Weinberg.
Background
On March 27, 2017, Plaintiff identified Ms. Weinberg as his proposed expert witness on
handwriting analysis. Doc. No. 283. The Court set a deadline of April 3, 2017, for Plaintiff to
produce to Defendant the required Rule 26 expert report by Ms. Weinberg. Order at 3 (Doc. No.
276). On April 3, 2017, Plaintiff produced Ms. Weinberg’s “Affidavit” setting out her opinions.2
At the Daubert hearing on April 12, 2017, Ms. Weinberg provided defense counsel with
a revised expert report that she identified as her “Final Affidavit.”3 Ms. Weinberg testified she
would opine at a trial that two signatures on a prison Medication Administration Record, with
dates of 11/15/06, were not the signatures of Plaintiff. In order to better understand Ms.
Weinberg’s opinions, the Court had Ms. Weinberg highlight in yellow the two signatures that she
contends were not those of Plaintiff. Based on Ms. Weinberg’s proposed testimony, it appears
Plaintiff would argue that an unidentified prison official or employee forged his signature on the

2

Plaintiff supplied the Court with a copy of Ms. Weinberg’s expert report (“Affidavit”) although the report was not
filed with the Court.
3
On the morning of the April 12, 2017 hearing, Plaintiff gave copies of the revised expert report to the Court and to
defense counsel.

3

Medication Administration Records to show Plaintiff received certain medications thereby
contradicting Plaintiff contention that he did not receive any of his medications during the 35
days he was segregation, from about November 6, 2006 to December 11, 2006.
Legal Standard
It is well established under Federal Rule of Evidence 702 that a district court must act as
a gatekeeper “to ensure that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Adamscheck v. Am. Family Mut. Ins. Co., 818 F.3d 576, 586 (10th Cir.
2016) (citations omitted). The objective of the gatekeeping function is to ensure the reliability
and relevancy of expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).
See also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Rule 702 governs the admissibility of expert testimony. It states:
A witness who is qualified as an expert ty knowledge, skill,
experience, training, or education, may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to
the facts of the case.
Fed. R. Evid. 702.
Discussion
Defendant contends, in part, that Ms. Weinberg should not be allowed to give expert
testimony because Ms. Weinberg’s expert report was due April 3, 2017, and Ms. Weinberg did

4

not produce her Final Affidavit and opinions until April 12, 2017. Although Ms. Weinberg’s
expert report is late, the Court will not preclude her from testifying on that ground.
However, the Court finds persuasive Defendant’s argument that Ms. Weinberg’s
proposed opinions are not relevant and will not aid the jury in determining a fact at issue, i.e.,
whether or not Plaintiff received his medications when he was in segregation. Daubert Motion at
5, 7. According to Defendant, Plaintiff cannot establish that the only remaining Defendant,
Warden Ulibarri, had any involvement in the dispensation of medications to inmates, including
Plaintiff, or in the creation and maintenance of medical records documenting administration of
medications at the prison. Id. at 7. Instead, according to Defendant, a private company is tasked
with providing medical care to inmates and with keeping the corresponding medical records.
That company is not a Defendant in this proceeding, the company’s medical personnel are not
employees with the New Mexico Department of Corrections, and Defendant Ulibarri does not
supervise the medical personnel. Ulibarri Affidavit ¶¶ 4–8 (Doc. No. 310–3).
At the Daubert hearing, the Court asked Plaintiff what evidence he had to show that
Defendant Ulibarri knew Plaintiff was not receiving his medications during the 35 days he was
in segregation. Plaintiff summarily argued that Warden Ulibarri was aware of everything that
occurred in the prison. While Plaintiff contends that Defendant Ulibarri was an experienced
prison warden whose very position gave him knowledge of every detail of the prison’s
operations, including the medical condition and needs of every inmate, this type of speculation is
not evidence. Plaintiff has not shown how Ms. Weinberg’s proposed opinions would tend to
show liability on the part of this Defendant, Warden Robert Ulibarri.
After carefully considering the Defendant’s Daubert Motion, Plaintiff’s Response, and
Ms. Weinberg’s testimony at the April 12, 2017 hearing, along with the pertinent law, the Court

5

concludes that Ms. Weinberg’s proposed expert handwriting testimony has little, if any,
relevance to Plaintiff’s sole remaining Eighth Amendment medical-treatment claim against
Defendant Ulibarri. Ms. Weinberg’s proposed expert opinions will not help the trier of fact to
determine a fact in issue. See Fed. R. Evid. 702(a). In addition, the proposed expert testimony
does not have “any tendency to make a fact more or less probable than it would be without the
evidence.” Fed. R. Evid. 401(a). In other words, Ms. Weinberg’s proposed opinion about two
signatures dated 11/15/16 on the Medication Administration Record does not tend to show that
Defendant Ulibarri knew that medications were not being dispensed to Plaintiff and that he
disregarded an excessive risk to Plaintiff’s health. Thus, the Court will preclude Ms. Weinberg
from giving expert testimony on the ground of lack of relevance. See Fed. R. Evid. 401(a) and
702(a).
In addition, the Court finds that any minimal relevance of Ms. Weinberg’s proposed
expert testimony is substantially outweighed by the dangers of confusing the issues and
misleading the jury. Fed. R. Evid. 403. While Ms. Weinberg would testify about the two
allegedly forged signatures, she would also testify that various other signatures on the
Medication Administration Records in the same or similar time frame were the authentic
signatures of Plaintiff. Thus, because the proposed expert testimony could easily confuse the
issues and mislead the jury, it will also be excluded under Rule 403. Accordingly, the Court will
grant Defendant’s Daubert Motion challenging the testimony of Ms. Weinberg.
Additional Matters and Pretrial Deadlines
Plaintiff’s Witness, Narendra Chand
At the April 12, 2017 hearing, Plaintiff informed the Court that his witness, Mr. Chand, is
currently incarcerated. Although Plaintiff may present the testimony of Mr. Chand at trial, the

6

Court advised Plaintiff that he is responsible for arranging the transportation of Mr. Chand from
the prison to the federal courthouse, which likely will involve an application for a writ of habeas
corpus ad testificandum. See, e.g., Smith Bey v. Gibson, No. CIV.A. 04-CV-01050MS, 2007 WL
622289, at *1 (D. Colo. Feb. 23, 2007) (discussing application for a writ of habeas corpus ad
testificandum).
Jury selection for this proceeding will begin on May 8, 2017, at 1:30 p.m.. Most likely,
Plaintiff will begin presenting his evidence on May 9, 2017. Thus, Plaintiff should make Mr.
Chand available to testify on May 9, 2017.
Pretrial Order
Defense counsel will draft the Pretrial Order (PTO), which will include a proposed
statement of Plaintiff’s claim along with the parties’ witness lists. By noon, April 17, 2017,
defense counsel will make the draft PTO available for Plaintiff to pick up that afternoon at
defense counsel’s office.
Plaintiff understands that he is responsible for editing Plaintiff’s portions of the PTO and
that he must return the edited version of the PTO to defense counsel’s office by noon on April
19, 2017.
Defense counsel should submit the final PTO to the Court by April 26, 2017.
Copies of Exhibits
Plaintiff must number his trial exhibits; Defendant must letter alphabetically his trial
exhibits. The parties have until noon on April 19, 2017 to exchange copies of their marked trial
exhibits. Plaintiff must leave duplicate copies of all of his marked trial exhibits at defense
counsel’s office by noon on April 19, 2017, at which time, Plaintiff will also pick up duplicate

7

copies of Defendant’s marked trial exhibits. Objections to proposed trial exhibits must be filed
by April 21, 2017.
Jury Instructions
Defense counsel will draft a set of jury instructions and provide them to the Court and to
Plaintiff by April 24, 2017. The proposed jury instructions will be made available in electronic
format and in hard copy. The Court’s stock jury instructions need not be included. Defense
counsel should not file the proposed jury instructions with the Court.
Voir Dire
If the parties want the Court to ask specific questions of the prospective jurors, they must
file their proposed written questions by April 24, 2017.
Pretrial Conference
The Court will address additional pretrial matters at the Call of the Calendar on April 27,
2107, at 11 a.m.
IT IS THEREFORE ORDERED that:
1) DEFENDANT’S DAUBERT MOTION WITH REGARD TO MICHAEL HOLLIFIELD
(Doc. No. 281) is DENIED as moot;
2) PLAINTIFF’S MOTION TO INFORM THE COURT HE DISMISSED EXPERT
WITNESS HOLLIFIELD FROM THIS LAWSUIT (Doc. No. 312) is DENIED as moot;
3) PLAINTIFF’S MOTION – OPPOSITION TO DEFENDANT’S DAUBERT MOTION
CHALLENGING KAREN WEINBERG (Doc. No. 313) is DENIED as moot but is
considered as Plaintiff’s Response to Defendant’s Daubert Motion;
4) PLAINTIFF’S MOTION RESQUEST (sic) FOR APPOINTMENT OF COUNSEL
DURING APRIL 12/2017 TO MAY 8-10-2017 (Doc. No. 308) is DENIED;

8

5) PLAINTIFF[’S] EMERGENCY MOTION WITH THE COURT (Doc. No. 316) is
DENIED as moot;
6) DEFENDANT’S DAUBERT MOTION WITH REGARD TO KAREN WEINBERG (Doc.
No. 310) is GRANTED for the reasons stated herein, and Ms. Weinberg will not be
allowed to testify at trial; and
7) the parties must comply with all deadlines set forth in this Order.

________________________________________
SENIOR UNTIED STATES DISTRICT JUDGE

9