United States District Court, W.D. Virginia, Harrisonburg Division
Terry A. Riggleman, Plaintiff,
Harold Clarke, ET AL., Defendants.
K. MOON, SENIOR UNITED STATES DISTRICT 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.
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.
Motions to Quash Non-Party Witness Subpoenas
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).
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.
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).
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.
Defendants' Motion in Limine to Exclude Testimony of
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.
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 ...