Choquette v. Warner et al

Filing 117

ORDER signed by Judge Benjamin H. Settle denying 109 Plaintiff's objections to Dkt. 107; denying 111 Defendants' objections to Dkt. 107.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ETIENNE L. CHOQUETTE,
Plaintiff,

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CASE NO. C15-5838 BHS-JRC
ORDER DENYING OBJECTIONS

v.
BERNARD E. WARNER, et al.,

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Defendants.

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This matter comes before the Court on the order of the Honorable J. Richard

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Creatura, United States Magistrate Judge (Dkt. 107), Plaintiff’s objections to the order

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(Dkt. 109), and Defendants’ objections to the order (Dkt. 111).

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On October 16, 2017, Defendants filed a motion for summary judgment. Dkt. 82.

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On November 6, 2017, Plaintiff responded, filed material in support of his response, and

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filed three separate motions to exclude some of Defendants’ evidence. Dkts. 90–96. On

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November 13, 2017, Defendants replied and moved to strike some of Plaintiff’s evidence.

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Dkt. 97. On December 12, 2017, Judge Creatura denied Plaintiff’s motions to exclude

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because they were procedurally improper and denied Defendants’ motion to strike

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because the challenged evidence could be submitted at trial in an admissible form even if

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the current form was inadmissible. Dkt. 107. On December 22, 2017, Plaintiff filed

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objections. Dkt. 109. On December 26, 2017, Defendants filed objections. Dkt. 111.

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When considering objections to a nondispositive matter, the district court may

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“modify or set aside any part of the order that is clearly erroneous or is contrary to law.”

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Fed. R. Civ. P. 72(a).

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In this case, both parties fail to show that Judge Creatura’s order is clearly

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erroneous or contrary to law. First, Defendants contend that Judge Creatura relied on

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pure speculation in concluding that Dr. Chung could provide admissible testimony at trial

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to overcome PA Phillips’s hearsay statement during her deposition. Dkt. 111 at 3–4. In

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other words, Defendants object to the probability of Dr. Chung testifying at trial and not

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the possibility that he could be called. To the extent that he may be called, Judge

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Creatura did not clearly err in concluding that Plaintiff may overcome the hearsay

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objection at trial by calling the declarant.

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Second, Defendants argue that Judge Creatura erred in concluding that Plaintiff

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may be able to cure the improper expert problem by calling a pharmacist at trial.

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Defendants have failed to show that this conclusion is clearly erroneous. More

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importantly, Defendants fail to show that the contested evidence is necessary to create

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material questions of fact for trial. Unless the contested evidence was relied upon to deny

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Defendants’ motion for summary judgment, then Defendants are requesting an advisory

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opinion on irrelevant matters. Therefore, the Court denies Defendants’ objections.

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Third, Plaintiff contends that Judge Creatura erred by considering his motions to
exclude as improper motions to strike. Dkt. 109. The Court disagrees based on the

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unique procedural posture of this case. If the matter proceeds to trial, then the Court will

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set a pretrial schedule that will include a deadline for motions to exclude. At that time,

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Plaintiff may refile or renote his motions. To the extent that the matter is referred for all

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pretrial matters up to and including summary judgment, Judge Creatura did not err in

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summarily denying the motions as procedurally improper for the purposes of summary

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judgment. Therefore, the Court denies Plaintiff’s objections.

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IT IS SO ORDERED.

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Dated this 24th day of January, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3