IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 4, 2009
PETER DALE GRAVES, PLAINTIFF,
B. WILLIAMS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pursuant to an order of this court (Doc. 148), plaintiff was allowed an opportunity to submit additional deposition questions for Dr. Allen. Defendants were provided an opportunity to file objections to plaintiff's additional questions, which have been received (Docs. 149, 150).
The defendants object to several of plaintiff's questions on various grounds. As previously discussed by the court, plaintiff will be given some leeway in his questioning. Therefore, to the extent defendants object to plaintiff's question on the grounds that they are vague, ambiguous, and overbroad; are speculative and lack foundation; are incomplete hypotheticals; assumes facts not in evidence; or seeks information not within the personal knowledge of the witness, those objections are overruled. However, to the extent defendants object on the grounds that the questions improperly seeks an expert opinion, those objections will be sustained, as outlined below.
As the defendants note, Dr. Allen is being deposed as a percipient witness, not an expert witness. While the doctor would likely qualify as an expert, he has not been designated as such and plaintiff is clearly asking his question in the doctor's capacity as a percipient witness, not an expert. Therefore, the objections to questions 2, 3, 5, 10, 11, and 18 are sustained. These questions only call for an expert opinion as opposed to the witness' own observations and perceptions. Dr. Allen will not be required to answer these questions. However, the objections to questions 1, 12, and 20, are overruled. These questions call upon Dr. Allen's expertise, but they are specifically related to the treatment he provided plaintiff. Therefore, Dr. Allen will be requested to answer these questions.
Dr. Allen will be requested to answer all of plaintiff's questions, for which objections have not been sustained, to the best of his ability. If the doctor does not understand the questions being asked, he can state as much in his response. Similarly, if the doctor does not have the knowledge or information plaintiff seeks, he can so state in his answer.
The court directs the Clerk of the Court to forward a copy of the questions (Doc. 142) to Dr. Allen, via United States Certified Mail, at the following address, as provided by plaintiff:
Dr. Robert Allen
University of California Davis
School of Medicine 4860 Y Street, Ste. 3800 Sacramento, CA 95817 The Clerk of the Court shall also send Dr. Allen a subpoena issued by the court and a copy of this order. Dr. Allen shall write out the answers to the questions, with the exception of questions 2, 3, 5, 10, 11, and 18 for which objections have been sustained, swear to their truthfulness, and return them to the court within 30 days of the date of this order. The clerk shall then forward copies of the answers to the parties.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's requests to submit additional deposition questions to Dr. Allen is granted;
2. The Clerk of the Court is directed to forward a subpoena, a copy of this order, and a copy of the written deposition questions (Doc. 142) to Dr. Allen via U.S. Certified Mail, as outlined above;
3 Dr. Allen shall return his answers to the questions, pursuant to subpoena, with the attached Notice of Submission to the court no later than thirty days after the date of this order; and
4. Upon receipt of the deposition answers, the Clerk of the Court shall forward copies to the parties.
NOTICE OF SUBMISSION
Deponent hereby submits answers to plaintiff's deposition question in compliance with the court's order and subpoena.
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