The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
FURTHER REVISED ORDER ON DEFENDANT'S MOTION TO ADD WITNESSES AND EVIDENCE, AND ON OTHER MATTERS
Hearing Date: March 31, 2011
On March 31, 2011, the motion of Defendant FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER for an order permitting it to add witnesses and evidence, and to consider other matters, came on for hearing before the undersigned upon proper notice. Carey H. Johnson appeared in court on behalf of the defendant and moving party, Fresno Community Hospital and Medical Center, and Andrew V. Stearns appeared by telephone on behalf of plaintiff Michael Tater-Alexander. The Court, having considered the motion, the points and authorities and declaration in support of the motion, the written opposition to the motion, and the comments of counsel, and good cause appearing therefor, finds as follows:
On February 28, 2011, Defendant FRESNO COMMUNITY HOSPITAL AND MEDICAL CENTER filed a motion to permit it to add, and use at trial, witnesses Mary Contreras and David Arguijo who were listed in the Supplemental Joint Pre-Trial Statement but not previously disclosed, witnesses Ramon Flores, R.N., and Security Officers Adam Perez, Brian Pond and Garrett Waterston who were not listed in the Supplemental Joint Pre-Trial Statement or previously disclosed, and to utilize an exemplar of the gown the plaintiff was asked to wear and an exemplar of a blanket which was kept warm and available to persons who were cold in the Emergency Department, which were not listed in the Supplemental Joint Pre-Trial Statement. Defendant's motion was filed prior to the filing of the Final Pre-Trial Order.
An oral request for the above was made by Mr. Johnson at the hearing on the Motions in Limine which took place on February 18, 2011. At that time the Court ordered that plaintiff's counsel could depose any of the potential witnesses. Andrew Stearns advised in his opposition to defendant's motion that he had taken the depositions of Mary Contreras and David Arguijo and that plaintiff did not oppose calling those witnesses at trial, or using exhibits produced at their depositions at trial. The testimony of those witnesses, and the use of the exhibits produced at those depositions, shall be permitted at trial if otherwise relevant and admissible.
Witnesses Ramon Flores, R.N., and Security Officers Adam Perez, Brian Pond and Garrett Waterston were involved with plaintiff at Fresno Community Hospital and Medical Center on September 6, 2009. There shall be no reference to plaintiff's visit to Fresno Community Hospital and Medical Center on September 6, 2009, or to other FCH&MC facilities on any dates after March 17-20, 2007, for the purpose of showing that the plaintiff has come to Fresno Community Hospital and Medical Center facilities on a number of occasions. Evidence for that purpose would be relevant to an injunction. The jury will not decide on an injunction; that is for the Court to decide. If necessary to the consideration of an injunction, such evidence can be introduced or stipulated to after the jurors answer the questions which will be submitted to them. Defendant's motion is granted, however, to the extent such witnesses may be used for impeachment of the plaintiff.
Defendant's motion to use as exemplars a gown of the type plaintiff declined to wear on March 17 and 18, 2007, and a blanket of the type which could have been provided, is granted subject to counsel laying the foundation through testimony that the gown and blanket are the same type as those in use at Clovis Community Medical Center in March, 2007. Plaintiff's counsel may inspect and photograph the gown and blanket. Mr. Johnson brought the gown and blanket to the hearing and they were described for the record.
HEARING ON MOTIONS IN LIMINE SET FOR APRIL 29, 2011, VACATED
The hearing on Motions in Limine set for April 29, 2011, at 12:00 noon, is vacated. Counsel advised the Court that there are only three Motions in Limine, of the many argued on February 18, 2011, for which the parties can not agree on the Court's Order, and that counsel had agreed to brief their positions. Defendant's brief was filed on March 4, 2011; plaintiff's brief was filed on April 14, 2011. The Court will issue a ruling, or will schedule a hearing to discuss the motions further.
QUESTIONS TO BE SUMITTED TO THE JURY
The Court ordered counsel to work together in an effort to agree upon the questions that will be submitted to the jury. Counsel have attempted to reach agreement without success, and request the Court to take the issue up on May 2, 2011, the day ...