Brooks v. Shinn

• Court: District Court, D. Arizona
• Decided: February 4, 2022
• Docket: 4:21-cv-00265
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jesse Brooks, No. CV-21-00265-TUC-JCH

10 Plaintiff, ORDER

11 v.

12 Centurion of Arizona LLC,

13 Defendant. 14 15 Pending before the Court are two motions, filed by Defendant Centurion of Arizona, 16 LLC’s (“Defendant”), related to the Preliminary Injunction Hearing (“Hearing”) set for 17 February 16, 2022. (See Doc. 35.) Defendant’s first motion (Doc. 37) requests clarification 18 from the Court on whether it expects NP Elliott, NP Redwine, or both, to be available to 19 testify at the Hearing. Defendant’s second motion requests that witnesses Dr. Thomas 20 Fowlkes and NP Laura Elliot be permitted to appear at the Hearing via video. Plaintiff has 21 not responded to or otherwise objected to either motion. The Court considers each motion 22 in turn. 23 I. MOTION FOR CLARIFICATION 24 The Court provides the following clarification. By Order dated January 24, 2022, 25 the Court indicated that “[it] expects the parties to call F. Michael Ferrante, M.D., NP Laura 26 Elliott, and Thomas D. Fowlkes, M.D. The parties may call any additional witnesses they 27 believe would be relevant at this hearing.” (Doc. 35 at 2.) Defendant explains that NP Laura 28 Elliott has not provided care to Plaintiff since September 2021, whereas NP Mary Redwine 1 has provided care for Plaintiff in recent months. (Doc. 37 at 1.) 2 The Court requested NP Laura Elliott be available to testify at the hearing for the 3 following reasons: (1) she completed the case review of Plaintiff’s medical records and 4 reviewed his instant Motion for Preliminary Injunction (See Doc. 32-1); (2) she was 5 Plaintiff’s treating provider between February and May 2021 (Id. at 2); and (3) she is the 6 subject of many of the allegations asserted in Plaintiff’s Motion for Preliminary Injunction. 7 (See Doc. 26, Ex. 1 at ¶¶ 31, 33–36, 38-39, 42.) The Court wants to hear testimony from 8 NP Laura Elliott on these issues. To the extent Defendant expects that testimony from NP 9 Mary Redwine will be relevant at the Hearing, the Court has already provided leave to call 10 additional witnesses at the Defendant’s discretion. 11 II. MOTION FOR VIDEO APPEARANCES 12 Defendant’s second Motion requests leave for Dr. Thomas Fowlkes and NP Laura 13 Elliott to appear and testify via video. Defendant requests the witnesses be allowed to 14 testify remotely because (1) Dr. Fowlkes resides in Mississippi; and (2) NP Elliott “has 15 other patients to see each day and being able to testify remotely will allow her to continue 16 her important work of treating and caring for inmate patients.” (Doc. 39 at 1.) 17 Rule 43(a) provides that although witness testimony at trial ordinarily “must be 18 taken in open court,” a district court “may permit testimony in open court by 19 contemporaneous transmission from a different location” upon a showing of “good cause 20 in compelling circumstances and with appropriate safeguards.” Fed. R. Civ. P. 43(a). 21 Although Defendant does not reference the COVID-19 pandemic, Courts have considered 22 COVID-19 when allowing out-of-state witnesses to testify remotely in a civil trial, see 23 Guardant Health, Inc. v. Foundation Medicine, Inc., 2020 WL 6120186, *3 (D. Del. 2020); 24 In re RFC & ResCap Liquidating Trust Action, 444 F. Supp. 3d 967, 971-72 (D. Minn. 25 2020) (considering the potential impact on the health and safety of a witness). In 26 accordance with General Order 22-02, the Court finds good cause, through the limitation 27 of interstate travel and the minimization of potential exposure, to allow both witnesses to 28 testify remotely. Furthermore, the Court finds that “appropriate safeguards” are met 1 || through video testimony, such that the witnesses will be subject to cross examination. 2 Accordingly, 3 IT IS ORDERED: 4 (1) GRANTING Defendant’s Motion for Clarification (Doc. 37). The Court has 5 || provided the additional information above to clarify the January 24, 2022 Order. 6 (2) GRANTING Defendant’s Motion for Witnesses’ Appearance Via Video (Doc. 7\| 39). Witnesses Dr. Thomas Fowlkes and NP Laura Elliott may testify remotely at the 8 || Preliminary Injunction Hearing via video teleconference under Rule 43(a). The Court will || send an email to counsel with a link that the witnesses will use to join the hearing. After 10 || receiving the link, Counsel is instructed to conduct a pretest with their remote participants 11 || or schedule a pretest with AV Support, relevant instructions will be included in the email. 12 || Counsel is further instructed to provide their witnesses with the following guidelines: 13 e Witnesses must have a valid email address and access to an internet-enabled 14 device equipped with: (a) a camera capable of sending video; (b) a 15 microphone and speakers capable of sending and receiving audio; and (c) a 16 stable internet connection with bandwidth sufficient to support video 17 conferencing. 18 e A court reporter will be present. To ensure a clean record please: (a) wait 19 until called to speak; (b) speak slowly, clearly, and concisely; (c) avoid 20 speaking over or interrupting other parties and the Court; and (d) mute your 21 device when not addressing the Court 22 23 || Dated this 4th day of February, 2022. 24 25 □

26 9S MH herb onorable John C. Hinderaker 27 United States District Judge 28

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