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Gabriel v. Hamlin

October 8, 2008

AMILCAR GABRIEL, PLAINTIFF,
v.
JIM HAMLIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Before the Court is defendants' objection to the deposition testimony of the plaintiff, Amilcar Gabriel (Doc. 115), to which plaintiff has filed a response (Doc. 117). Also before the Court is plaintiff's response to the objections to the deposition testimony of plaintiff's expert, Dr. Richard Lewan (Doc. 126), to which the defendants have filed a reply (Doc. 127). Finally, plaintiff has filed a motion to bar the testimony of defendants' opinion witness (Doc. 125), to which defendants have filed a response (Doc 127). The Court has reviewed the depositions and motions and rules on the objections as set forth below.

A. Deposition of Plaintiff, Amilcar Gabriel

Initially, the plaintiff objects to the defendants' objections on the grounds that they were not raised at the time of the deposition. In general, objections not preserved during a deposition are deemed waived. Oberlin v. The Marlin Am. Corp., 596 F.2d 1322 (7th Cir. 1979) (if a party does not voice an objection to the form of a question during a deposition, the party waives its ability to raise the objection at trial, id. at 1328.). "Then, as now, the rule makes sense-if a party could strategically withhold an objection during a deposition and later exclude testimony that could have been elicited if the objection were raised promptly, depositions as trial evidence would quickly lose their value." Id. cited in Roy v. Austin Co., 199 F.3d. 840, 844 (7th Cir. 1999). Given this standard, the Court could overrule all objections not preserved at the deposition, simply as waived. The Court will, however, make a brief review of the testimony to which the defendants raise an objection, given the fact that the plaintiff is not available to testify at trial because he has been deported.

1. P. 37, ll. 8-10. Defendants' object to this testimony on the grounds that it is hearsay. Plaintiff states that the nurse told him to "put your legs inside." Plaintiff asserts that this testimony is not offered for the truth of the matter asserted, but rather for the instructions plaintiff was given and how he had to comply. Upon review of the record, the objection is OVERRULED. Plaintiff may testify as to what instructions he was given after his injury with respect to his treatment.

2. P. 37 ll. 17-21. Defendants raise the same objection, that is, that plaintiff made references to a conversation he had with a nurse. The same ruling applies, the objection is OVERRULED, and the plaintiff can testify as to the medical treatment he received, including his recollection of the instructions he was given during his medical care.

3. P. 38, l-3. The defendants object on the grounds that the question posed by the plaintiff's attorney was leading when she offered the term "scrub" to plaintiff. Although the question is leading, the Court OVERRULES the defendants' objection. The plaintiff's command of the English language is limited, therefore, minimal leading by counsel will be allowed in this case.

4. P. 38, ll. 19-25, p.39, ll.1-3 & 12-14. The defendants object to this testimony and seek to strike it on the grounds that they are hearsay. In this testimony plaintiff is testifying as to what a nurse told him about why the doctors were denying him pain medication. The Court GRANTS defendants' motion to strike the remainder of the testimony relating to the plaintiff's conversation with the nurse as to what the doctors said with respect to his treatment. This testimony shall be stricken.

5. P. 41, ll. 17-19. In this section, plaintiff is testifying as to what he observed Dr. Ruiz doing (looking away) while the nurse was explaining his medical progress. The Court OVERRULES the objection, the plaintiff may testify as to his observations.

6. P. 43, ll. 24-25 - p. 44. In this section, plaintiff states that he "heard from the lieutenants" that Dr. Ruiz was not going to send plaintiff to an outside hospital. This testimony is clearly hearsay upon hearsay and the Court GRANTS the objection, and this portion of plaintiff's testimony shall be stricken.

7. P. 57, ll 19-21. The defendants object to plaintiff's testimony with respect to what Dr. Garcia told him to do (go lay down for a long time). The Court OVERRULES this objection. Plaintiff's testimony goes to his understanding of the medical treatment he received and is admissible on that ground.

8. P. 84, ll. 11-25. In this section of the deposition, plaintiff, during cross-examination, was asked by defense counsel what plaintiff told his attorney (that a nurse told plaintiff that if he did not cry Dr. Ruiz would not give him stronger pain medicine). In light of the fact that the Court struck the earlier statements of plaintiff on this issue, the Court SUSTAINS the objection and this portion of the testimony shall be stricken.

9. P. 91, ll. 11-13. This testimony concerns whether plaintiff was told that his hernia was a result of his burn. No specific speaker is identified. Upon review of the record, the Court OVERRULES the objection. This testimony is admissible as to ...


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