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Casanova v. Ulibarri

United States District Court, D. New Mexico

April 14, 2017

ROBERT ULIBARRI, Warden, Defendant.


         At a 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.

         Preliminary Matters

         The 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).[1]

         PLAINTIFF'S 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.

         PLAINTIFF'S 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.

         At the 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.

         Defendant's Daubert Motion Challenging Expert Testimony of Karen Weinberg

         On 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 Ms. Weinberg.


         On 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.[2]

         At the Daubert hearing on April 12, 2017, Ms. Weinberg provided defense counsel with a revised expert report that she identified as her “Final Affidavit.”[3] 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 11, 2006.

         Legal Standard

         It is 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).

         Rule 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 ...

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