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Riggleman v. Clarke

United States District Court, W.D. Virginia, Harrisonburg Division

May 9, 2019

Terry A. Riggleman, Plaintiff,
v.
Harold Clarke, ET AL., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         Judge Norman K. Moon Before the Court are the following matters: (1) Non-parties VCU Health System (“VCUHS”) and Richard K. Sterling, M.D.'s Motion to Quash Witness Subpoenas and to Permit Previous Deposition Testimony to be Used at Trial (dkt. 153); (2) Non-parties VCUHS and Reena Cherian, N.P.'s Motion to Quash Witness Subpoenas and to Permit Previous Deposition Testimony to be Used at Trial (dkt. 155); (3) Defendants Harold Clarke's and Mark Amonette's Motion in Limine to Exclude Opinions and Testimony of Plaintiff's Expert Paul Gaglio, M.D. (dkt. 116); (4) Plaintiff's Unopposed Motion to Permit Plaintiff's Expert, Paul Gaglio, M.D. to Testify at Trial Via Video Conference (dkt. 162); and (5) Plaintiff's Motion for Temporary Stay of Proceedings (dkt. 160). Also before the Court are the parties' objections to each other's Rule 26(a)(3) Pretrial Disclosures (dkts. 148, 149). A hearing was held on these matters.

         I. INTRODUCTION

         Plaintiff brings this action pursuant to 42 U.S.C. § 1983, requesting declaratory and injunctive relief (Count III) and attorneys' fees (Count IV) against Defendants in their official capacities. (Dkt. 1 (Complaint)). Plaintiff's claims for monetary damages against Defendants in their individual capacities have been dismissed. (Dkt. 142). Plaintiff's claims under the Virginia Constitution (Count II) have also been dismissed. (Dkt. 57). Plaintiff's Second Motion to Certify Class has been denied and a bench trail on Plaintiff's claims for injunctive and declaratory relief is scheduled for May 13-17, 2019. (Dkts. 146, 147).

         II. ANALYSIS

         A. Motions to Quash Non-Party Witness Subpoenas

          Both parties subpoenaed non-parties Richard K. Sterling, M.D., and Reena Cherian, N.P., to testify at trial. Both Dr. Sterling and Ms. Cherian moved to quash the subpoenas and to permit their respective previously taken deposition testimony to be used at trial, and for reasonable attorneys' fees associated with their motions to quash. (Dkts. 153, 155). Both Dr. Sterling and Ms. Cherian cited previously-scheduled patient bookings and the impact on patients and staff of cancelling appointments as grounds to quash the subpoenas. (Dkts. 154, 156).

         At the hearing, Plaintiff's counsel initially stated that he was not entirely opposed to reading the deposition transcripts and that the day before he offered to read in those excerpts of Sterling and Cherian if the Defendants would agree to read in Dr. Gaglio's deposition transcript but noted that “They didn't want to do that.” Plaintiff's counsel stated that he had not addressed that with counsel for Dr. Sterling and Ms. Cherian because the Defendants would not agree with what he was offering. Plaintiff's counsel then stated, however, that he agreed to read Dr. Sterling's testimony in at trial if that was the best way to go about it. Plaintiff's counsel expressed a concern that a particular exhibit used in Ms. Cherian's deposition was important to Plaintiff and that while Defendants had objected to its authenticity and foundation, Ms. Cherian authenticated it and laid the foundation in her deposition and that her deposition transcript could be used in the court. Defendants stated that they had no objection to using the depositions of Dr. Sterling and Ms. Cherian at trial.

         At the hearing, counsel for VCUHS, Dr. Sterling, and Ms. Cherian, stated that she tried to resolve issues related to the subpoenas prior to filing the motions to quash. She stated that Defendants' counsel told her before she filed the motions to quash that they would agree to the use of deposition testimony. She stated, however, that the hearing was the first time she had heard from the Plaintiff's side that there might be an agreement to not have the witnesses appear live. She renewed the request in the motions to quash for the costs of bringing the motions before the Court. It appears that while Defendants communicated they were willing to use deposition testimony at trial in lieu of live testimony before the motions to quash were filed, Plaintiff did not. As recently as the day before the hearing, Plaintiff was trying to leverage the situation to get Defendants to agree to read Dr. Gaglio's deposition transcript. See Fed. R. Civ. P. 45(d)(1) (attorney responsible for issuing and serving subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena).

         At the hearing, the Court stated that the non-parties' request for their reasonable attorneys' fees associated with the respective motions to quash will be taken under advisement. The Court, therefore, will grant the motions to quash and permit previous deposition testimony to be used at trial but will take the attorneys' fee request under advisement.

         B. Defendants' Motion in Limine to Exclude Testimony of Plaintiff's Expert

          Defendants move to exclude the testimony of Plaintiff's expert, Paul Gaglio, M.D. (Dkt. 116). The Court has considered the parties' arguments and concludes that Dr. Gaglio should be allowed to testify at the bench trial. The Court concludes that most of the issues raised go to the weight of his testimony more than to the admissibility of it. The Court will deny Defendants' motion in limine to exclude the opinions and testimony of Dr. Gaglio but without prejudice to Defendants raising any specific objections when Dr. Gaglio testifies at trial.

         C. Plaintiff's Motion for Plaintiff's Expert to Testify Via Video Conference

          Plaintiff moves to permit his expert, Paul Gaglio, M.D., to testify at trial via video conference. (Dkt. 162) At the hearing, Plaintiff's counsel explained that due to a miscommunication, Plaintiff's expert believed he was to testify the second week of what was originally scheduled to be a two-week trial. Plaintiff's counsel explained that Dr. Gaglio was covering for ten other specialists who are to attend a conference the week trial in this case is scheduled but Dr. Gaglio would be available to testify by video conference on the ...


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