United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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).
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.
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.
April 12, 2017 hearing, Plaintiff agreed that he would find a
neutral, court-qualified 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 the
Court's email correspondence to Plaintiff on April 14,
2017, providing him with contact information for the
Court's Supervisory Interpreter.
Daubert Motion Challenging Expert Testimony of Karen
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
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.
Daubert hearing on April 12, 2017, Ms. Weinberg
provided defense counsel with a revised expert report that
she identified as her “Final
Affidavit.” 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 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
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).
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 ...