Jacob, Christopher v. Hamblin, Gary et al

Filing 75

ORDER denying 61 Motion Petitioning for Disclosure of Jason Rhode's Statement or Disposition; denying 63 Motion for Issuance of Subpoenas; denying 64 Motion for Issuance of Subpoenas. Signed by District Judge William M. Conley on 7/27/2021. (lam),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CHRISTOPHER JACOB,
Plaintiff,

ORDER

v.
17-cv-196-wmc
DR. SULIENE,
Defendant.
This case is scheduled for trial on August 23, 2021, on plaintiff Christopher Jacob’s
claim that Dr. Dalia Suliene violated his rights under the Eighth Amendment by
prescribing Jacob a type of NSAID Salsalate in April and May 2012, knowing that Jacob
had reported having a serious past adverse reaction to that medication in the past.

Two

housekeeping matters are before the court: (1) plaintiff’s requests for the court to issue
trial subpoenas for two witnesses (dkts. ##63, 64); and (2) his request for an order
directing defendant to provide him with any written or recorded statement or notes from
defense counsel’s discussion with Officer Rhode, a witness whom the state has agreed will
testify voluntarily. (Dkt. #61.) For the reasons that follow, the court will deny both
requests.
The first witness that plaintiff wants to subpoena is former HSU Manager Karen
Anderson. Plaintiff wants to call Anderson to testify about her communications with and
treatment of plaintiff before his adverse reaction to Salsalate on June 15, 2012, as well as
authenticate certain HSU records at trial. However, as discussed in the summary judgment
order (dkt. #52, at 21), Anderson’s involvement in plaintiff’s medical treatment related to
his Salsalate intolerance was limited to forwarding a May 7, 2012, letter authored by

plaintiff to Dr. Suliene, who acknowledged receiving it. Thus, Anderson’s testimony at
trial is not necessary to authenticate the letter or to establish that Dr. Suliene received it.
Insofar as there may be other communications before June 15, 2012, between plaintiff and
Anderson of which the court is not aware, plaintiff has yet to provide enough information
to assess their relevance to the limited issues left to be tried in this case.
The second witness that plaintiff wants to subpoena is Lon Becher, who served as
the Reviewing Authority for plaintiff’s inmate grievance about his adverse reaction to
Salsalate on June 15, 2012. Plaintiff claims Becher can testify about “what information
was relied upon when [he] overturned the original Inmate Complaint Examiner’s decision”
and affirmed plaintiff’s inmate complaint. (Dkt. #64.) However, this information is also
not relevant to plaintiff’s claims against Dr. Suliene. In affirming plaintiff’s complaint,
Becher addressed only the nursing staff’s lack of responsiveness to reports that plaintiff
was having an adverse reaction to Salsalate on June 15, 2012; he did not reach any
conclusions about Dr. Suliene’s decision to prescribe the medication in the first place,
which is the only issue remaining to be tried. See SJ Ord. (dkt. #52) 8. Moreover, any
opinion that Becher might have on the propriety of Dr. Suliene’s decisions is irrelevant,
just as the fact of plaintiff’s grievance or its disposition. Accordingly, the court is denying
this request.
Finally, plaintiff is not entitled to recordings or notes taken by defense counsel of
their discussion with Officer Rhode. Not only is this information work product, but as
reported by defendant, Officer Rhode does not have any independent recollection of
plaintiff’s symptoms on June 15, 2012, but is only able to testify regarding a logbook entry

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from that date. (Dkt. #60.) Given this disclosure, defendant’s affirmative use of Rhode’s
testimony will also be so limited. Moreover, consistent with that disclosure, it is also
doubtful that any recorded statement from Officer Rhode exists or that it would be helpful
to plaintiff.

Certainly, plaintiff is free to question Rhode should he testify and ask

questions about what he recalls as to his interactions with plaintiff on that day, but he has
not shown any substantial need for defendant’s work product, if even it exists and were
discoverable, nor would it necessarily be wise to open a door that defendant has effectively
closed.

ORDER
IT IS ORDERED that:
1. Plaintiff’s Petitions for Witness Subpoenas for Karen Anderson (dkt. #63) and
Lon Becher (dkt. #64) are DENIED; and
2. Plaintiff’s motion for disclosure of Jason Rhode’s Statement (dkt. #61) is DENIED.

Entered this 27th day of July, 2021.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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