VanBrocklen v. Gupta
DECISION AND ORDER denying 116 Motion for Protective Order; denying 125 Motion to be Recognized As An Expert. Signed by Hon. Jeremiah J. McCarthy on 7/13/11. (Court has mailed a copy of this D&O to plaintiff). (DAZ)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
DR. DHAM GUPTA,
This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial
proceedings .1 Before me are defendant’s motion for a protective order  and plaintiff’s
motion to be recognized as an expert . For the following reasons, I order that these motions
be denied, without prejudice to renewal.
Plaintiff’s pro se complaint seeks recovery against defendant Dham Gupta, M.D.
in connection with the medical care and treatment he provided to plaintiff in the psychiatric
emergency department at the Erie County Medical Center on June 14, 2009. Complaint . He
asserts a variety of causes of action arising from this incident, including violations of the Fourth
and Fourteenth Amendments and state tort claims. Id.
Bracketed references are to the CM/ECF docket entries.
Defendant’s Motion for a Protective Order2
Plaintiff filed a motion to produce “requesting that the Court order [defendant’s
counsel] to review each of Dr. Gupta’s medical files, since he started working at ECMC CPEP
until in 1994, and provide the plaintiff with a summarized, sanitized, report for each time Dr.
Gupta order [sic] an injection, over the patient’s wishes, before Dr. Gupta filled out the
‘Comprehensive Psychiatric Emergency Program Interdisciplinary Assessment Form.’ To
protect the patient’s privacy, all names should be changed to John or Jan Doe, and all medical
terms should be converted into laymen’s terms” , p. 4.
Defendant opposed this motion  and cross-moved for a protective order “to
prevent plaintiff for continuing to improperly seek discovery from the defendant without having a
basis therefore, without having made an effort to first obtain the discovery through a demand or
request, or without properly evaluating whether the documents he desires even exist.” Affronti
Affidavit , ¶36. According to defendant, “if there are no consequences to [plaintiff’s]
clearly inappropriate behavior, plaintiff will continue to waste judicial time and resources, along
with that of the defendant, in continuance of his seemingly innumerable, and clearly improper,
court filings.” Id., ¶40. Therefore, defendant also seeks the reasonable costs and expenses
incurred in filing its cross-motion for a protective order. Notice of Motion . Id., ¶¶37-41.
Shortly after defendant’s response and cross-motion for a protective order were
filed, plaintiff moved to withdraw his motion to produce . Despite the withdrawal of
Although plaintiff requests oral argument on this motion , I find that the motion can
be resolved on the papers.
plaintiff’s motion, defendant advised my chambers of his intent to proceed with his cross-motion
for a protective order.
Pursuant to Fed. R. Civ. P. (“Rule”) 26(c)(1) “[t]he court may, for good cause,
issue an order to protect a party . . . from annoyance, embarrassment, oppression or undue burden
or expense”. Defendant’s motion seeks a “protective order . . . to prevent plaintiff from
continuing to improperly seek discovery from the defendant without having a basis therefore,
without having made an effort to first obtain discovery through a demand or request, or without
properly evaluating whether the documents he desires even exist.” Affronti Affidavit , ¶36.
Although defendant generally argues that he has “expended considerable time and resources in
responding to plaintiff’s countless inappropriate and untimely submissions for more than one
year” (Affronti affidavit , ¶37), he fails to specifically identify any other motion in which
plaintiff has repeated the conduct sought to be addressed by the protective order. Therefore,
defendant has not established good cause to grant defendant’s motion for a protective order at
this time. Nevertheless, plaintiff is reminded of his obligation to only move for relief that he has
a good faith basis for seeking. His future failure to do so may subject him to sanctions.
I also note that aside from his motion to produce , plaintiff has withdrawn at
least one other discovery motion  after defendant has been put to the task of responding on
the merits to the motion. This conduct will not be condoned in the future, and may subject
plaintiff to reimbursing defendant for the expense of responding to such motions.3
Having denied defendants’ motion for a protective order, I need not address his request
for costs pursuant to Rule 26(c)(3). See Kryszak v. Chase Bank USA, N.A., 2008 WL 822015, *4
(W.D.N.Y. 2008) (Scott, M.J.) (“Under Rules 26(c)(3) and 37(a)(5) . . . , the Court has the discretion to
impose the costs of the motion for a protective Order to the prevailing party” (citing 8 Charles A. Wright,
Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure §2035, at 487 (Civil 2d ed.1994)).
Plaintiff’s Motion to be Recognized as an Expert
Relying on Washington v. Harper, 494 U.S. 210 (1990),4 plaintiff argues that he is
“required to show the Court that the Plaintiff is an expert in ‘ORGANIZING’ the ‘THOUGHT
PROCESSES ‘ of persons like the Plaintiff, in the hope of ‘REGAINING a RATIONAL STATE
OF MIND’. Once the Plaintiff does this, the Plaintiff is requesting that the Court recognize the
Plaintiff as an expert witness in this case.” Plaintiff’s Reply , pp. 2-3 (emphasis in
original). He also devotes a large portion of his motion to discussing his dyslexia and the
program he has created to assist dyslexics. Id., pp. 4-30. In response, defendant argues that
plaintiff is not qualified to render an expert opinion concerning psychiatric medicine and that his
learning disability is not relevant to this case. Affronti Affidavit , ¶¶11-28.
Generally, permitting plaintiff to act in the role of “both Plaintiff and advocate”
would be “unfairly prejudicial, misleading and confusing to the jury.” Kranis v. Scott, 178
F.Supp.2d 330, 333-34 (E.D.N.Y. 2002). See Ordon v. Karpie, 273 Fed.Appx. 27, 30 (2d Cir.
2008) (summary order) (“plaintiff is ‘too intertwined with the facts of this case as . . . the
plaintiff in this action’ to ‘assist the trier of fact to understand the evidence or to determine a fact
in issue’”); Zhang v. Honeywell International, Inc., 2008 WL 2699398, *1 (D.Ariz. 2008).
In Harper, the Supreme Court noted that “[a]ntipsychotic drugs [such as Haldol] are
medications commonly used in treating mental disorders such as schizophrenia. . . . [T]he effect of these
and similar drugs is to alter the chemical balance in the brain, the desired result being that the medication
will assist the patient in organizing his or her thought processes and regaining a rational state of mind.”
494 U.S. at 214.
However, without reaching the issue of what type of expert testimony, if any, plaintiff requires to
support his claim and whether he is qualified to act as such an expert, I am unable to make any
determination as to whether plaintiff should be permitted to act as his own expert because it is
unclear from his motion whether he proposes to offer an expert opinion concerning his dyslexia,
psychiatric medicines or the medical care and treatment he received. Therefore, plaintiff’s
motion is denied, without prejudice to renewal, attaching a proposed written expert report for my
in camera review clearly delineating the scope of his testimony and its relevance to the claims at
For these reasons, defendant’s motion for a protective order  and plaintiff’s
motion to act as his own expert  are denied, without prejudice to renewal.
Dated: July 13, 2011
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
Plaintiff’s motion also requests permission to serve his expert report on an audio file
because he is unable to write due to a concussion he sustained , p. 2. Given the number of written
submissions by plaintiff since his concussion, I conclude that there is no basis to grant plaintiff leave to
submit his expert report on an audio file for my in camera review.
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