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Duverge v. United States

United States District Court, D. Connecticut

January 30, 2018



          Joan Glazer Margolis United States Magistrate Judge

         Familiarity with the extensive litigation history of this case is presumed. On December 11, 2017, the Court and defense counsel received a six-page letter from plaintiff, dated December 5, 2017 [“December 5th Letter”], in which plaintiff reiterates her claims, asserts additional allegations, lists her demand for damages, and “request[s] . . . the Court['s] assistance to subpoena . . . individuals to come testify under oath on the upcoming schedule[d] bench trial . . . .” (Dkt. # 145, at 3). Specifically, in the December 5th Letter plaintiff listed six proposed witnesses for whom she sought subpoenas, as follows: (1) Mr. Perkins, counselor Perkins' husband who was present during the May 4, 2008 incident at issue; (2) Lieutenant Reid, who witnessed the May 4, 2008 incident;[1] (3) PA Parella, who plaintiff claims examined and diagnosed her with a heart attack and asthma attack; (4) “[t]he orthopedic doctor[, ]” who ordered surgical repair of plaintiff's right foot, right shoulder, right knee, and two ankle braces, and who administered “pain shots” to plaintiff and placed plaintiff on “leave of absence for [six] months after the incident[]”; (5) Officer Ray, who took plaintiff to Danbury Hospital; and, (6) Dr. Collins, the primary care doctor at FCI Waseca. (Id. at 3-5). Defendant objects to the issuance of subpoenas on several grounds, which will be addressed below.[2] (Dkt. #147, Exh. 3, at 1-3).

         Additionally, in her December 5th Letter, and again in her Memorandum filed on January 16, 2018 (Dkt. #148; see also Dkt. #147, Exh. 1) in accordance with this Court's Pretrial Order, plaintiff claims that she was improperly administered medication; that she was not prescribed proper medical care and treatment; and that proper medical care and treatments were delayed, thereby causing her injuries to become permanently disabling. (Dkt. #148, at 2-3). Additionally, plaintiff requests information relating to the distance from the prisoner living quarters, and the number of stairs plaintiff had to climb despite plaintiff's counselor's “[]knowledge[] that [p]laintiff suffer[ed from] asthma[.]” (Id. at 3).

         In response, defendant has filed a Motion in Limine (Dkt. #147, Exh. 2) seeking the following orders: (1) barring the production of and testimony from PA Parella, consistent with this Court's Order, filed January 11, 2018 (Dkt. #144)[“January 11th Order”](id. at 1); (2) ordering plaintiff to produce the name of the specific physician to whom she refers to as the “orthopedic doctor” (id. at 1-2), as there are “seven different doctors referenced in plaintiff's medical records for the time period 2008-2009[]” (Dkt. #147, Exh. 3, at 1-2); (3) precluding plaintiff from asserting that the 8th Amendment applies to this Federal Tort Claims Act case (Dkt. #147, Exh. 2 at 3); (4) precluding plaintiff from requesting additional discovery as discovery has closed in this case (id.); (5) restricting the breadth of testimony offered on behalf of plaintiff (id. at 2-3); and, (6) prohibiting plaintiff from testifying in narrative form, but rather, requiring plaintiff to “submit a list of questions in advance to the Court and to the United States so that her answers will follow the questions allowed by the Court.” (Id. at 3-5). Under the Pretrial Order, filed November 20, 2017 (Dkt. #135), plaintiff was to respond to any Motions in Limine by January 26, 2018 (¶ 1(e)), but has failed to do so.

         I. DISCUSSION

         A. CLAIM AT ISSUE

         As stated in this Court's Ruling on Defendant's Motion for Summary Judgment, October 31, 2017, 2017 WL 4927658 [“October 2017 Ruling”], and repeated in this Court's January 11th Order,

this case is limited to [plaintiff's] claim of negligence arising out of the injury she claims she suffered to her right shoulder, right knee and right foot only. See 2017 WL 4927658, at *9-14, 18. This is the only claim that survived summary judgment. Accordingly, plaintiff cannot offer any evidence relating to her medical malpractice claim, which is her claim that as a result of a delay in care and a failure to provide proper medical treatment, her condition worsened and is now disabling. See 2017 WL 46927658, at *15-18. That claim is no longer part of this case.

(January 11th Order, at 3-4). Contrary to plaintiff's understanding as reflected in her Pretrial Memorandum, this is not an 8th Amendment case, nor a case brought under the 14th Amendment. (Dkt. #148, at 2-3). It is a claim brought under the Federal Tort Claims Act, and the only issue remaining for the Court's consideration is plaintiff's claim of negligence. To be clear, plaintiff's claim relating to a heart attack, plaintiff's claims regarding her asthma, and the number of stairs and distances she had to walk, or allegations regarding the sexual preferences of BOP officers, are irrelevant to this case and plaintiff is precluded from offering any evidence related to or in support of these allegations.

         B. TESTIMONY

         Federal Rule of Evidence 103(d) provides that “[t]o the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.” This is particularly important in a case involving self-represented party. Moreover, pursuant to Federal Rule of Evidence 611, the court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.

Fed. R. Evid. 611(a). “This duty is no different for pro se litigants. Rather, like all other litigants, they must comply with substantive and procedural courtroom rules.” United States v. Beckton, 740 F.3d 303, 306 (4th Cir.), citing Faretta v. California, 422 U.S. 806, 834 n. 46 (1975)(explaining that self-representation is not a license to ignore “relevant rules of procedural and substantive law[]”), cert. denied, 134 S.Ct. 2323 (2014).

         “District courts enjoy broad latitude in this realm, because ‘[q]uestions of trial management are quintessentially the[ir] province.'” Beckton, 740 F.3d at 306, quoting United States v. Smith, 452 F.3d 323, 332 (4th Cir.)(additional citation omitted), cert. denied sub nom. Smallwood v. U.S., 549 U.S. 1066 (2006). Trial management includes “such concerns as whether testimony shall be in the form of a free narrative or responses to specific questions[, ]” Fed.R.Evid. 611 advisory committee's note to 1972 proposed rules, and it is within the district court's discretion to determine the form of testimony. See Beckton, 740 F.3d at 306 (citations & internal quotations omitted); see also Geders v. United States, 425 U.S. 80, 86-87 (1976)(“The trial judge must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process. . . . Within limits, the judge . . . may refuse to allow cumulative, repetitive, or irrelevant testimony; and may control the scope of examination of witnesses. If truth and fairness are not to be sacrificed, the judge must exert substantial control over the proceedings.” (citations omitted)); see United States v. Young, 745 F.2d 733, 761 (2d Cir. 1984)(The Second Circuit has made clear, it is well within the “broad discretion” of the trial court to “decid[e] whether or not to allow narrative testimony.”)(citations omitted), cert. denied sub nom. Myers v. U.S., 470 U.S. 1084 (1985)).

         Plaintiff shall testify like all other witnesses in this trial, in a manner that “assure[s] opposing counsel the opportunity to lodge any objection prior to [plaintiff stating her] answer.” See Beckton, 740 F.3d at 306. Plaintiff shall pose a question, give defendant an opportunity to object before answering, and then answer. Defendant, however, is not granted the opportunity to review the questions in ...

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