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Otis v. Demarasse

United States District Court, E.D. Wisconsin

April 22, 2019

JILL OTIS, Plaintiff,


          William C. Griesbach, Chief Judge United States District Court

         This case is before the court on Plaintiff's motion to sanction the attorney for a witness whom Plaintiff's attorney sought to depose as part of the discovery in her case. The underlying action seeks damages under 42 U.S.C. § 1983 from Kayla J. Demarasse, a Village of Waterford police officer, who Plaintiff claims “made an unreasonable search and seizure of her person, falsely imprisoned her, imposed cruel and unusual punishment upon her, made a warrantless detention of her, and violated her rights to personal freedom and due process by refusing to allow her to obtain medical treatment after suffering from significant blood loss and anemia.” Am. Compl. ¶ 2, Dkt. No. 33. The claims arise out of Officer Demarasse's arrest of Plaintiff on suspicion of operating while intoxicated (OWI) with a child in the vehicle in the early morning hours of September 16, 2014. Federal jurisdiction exists under 28 U.S.C. §§ 1331 and 1343.

         I. BACKGROUND

         A. The Allegations of the Amended Complaint

         Before turning to the motion itself, it will be helpful to set forth the allegations of the amended complaint. Although Officer Demarasse's report tells a substantially different story, Plaintiff's allegations are sufficient to show the context in which the deposition occurred and out of which Plaintiff's motion for sanctions arises. According to the amended complaint, Plaintiff was stopped by Officer Demarrase while driving southbound on State Highway 164 in Waterford, Wisconsin, with her son riding as a passenger. Officer Demarasse questioned Plaintiff about her whereabouts and where she was going for about three-to-seven minutes, and Plaintiff appeared confused and gave conflicting answers. Even though she did not detect any odor of alcohol emanating from Plaintiff or her vehicle, Officer Demarasse ordered Plaintiff out of the car to perform field sobriety tests. Plaintiff alleges she told Officer Demarasse that she had a hard time doing things due to back issues and that she was “very sick and bleeding heavily, ” and requested to be taken to the hospital. Although she was walking slowly and swaying from side to side due to the intense pain she was experiencing, Officer Demarasse refused Plaintiff's request to seek medical attention. Id. at ¶¶ 10-13. Plaintiff alleges that Officer Demarasse could observe that there were large blood stains on the back of her shirt and pants near her buttocks, and that she had a black plastic bag stuck to her buttocks. Despite her appearance, however, and her repeated requests to be taken to the hospital, Plaintiff alleges that Officer Demarasse took her directly to the Waterford Police Department, where a blood sample was drawn and she was eventually provided clean clothing. Id. at ¶¶ 14, 19. She was then transported to the Racine County Jail where she was held until the following day.

         Upon her release, Plaintiff alleges that she immediately sought medical attention at the local hospital for symptoms of lethargy and severe uterine bleeding. She was diagnosed with acute blood loss anemia secondary to dysfunctional uterine bleeding, severe iron deficiency anemia, uterine fibroids, and hypertension. The blood sample taken from her at the time of her arrest was eventually subjected to testing which detected no traces of alcohol or controlled substances, and the state charge against Plaintiff for Operating Under the Influence with a minor in the vehicle was dismissed. Id. at ¶¶ 27-31. Based on these allegations, Plaintiff claims Officer Demarasse violated her constitutional rights.

         B. The Deposition

         It was at the deposition of Racine County Sheriff Deputy Kevin Burke that the events giving rise to the motion before the court occurred. Deputy Burke was a certified Drug Recognition Expert (DRE) for the County. Because Officer Demarasse did not detect any odor of alcohol on Plaintiff or her vehicle and Plaintiff claimed she was physically unable to complete the sobriety field tests, Officer Demarasse asked for Deputy Burke's assistance in determining whether Plaintiff was under the influence at the time she was stopped. Plaintiff's counsel undertook to take Deputy Burke's deposition as part of his discovery in the case on January 14, 2019. In the hope of providing some guidance to the parties, as well as other attorneys confronted with similar issues, I will describe the objections made at the deposition and the discussion surrounding them in some detail.

         Counsel for Deputy Burke's first objection, which appears on page 5 of the transcript, is to the form of the question “What is your background prior to 20 years with Racine County?” Counsel for Burke stated: “Object to form, vague. You can answer if you understood it.” Transcript (Tr.) 5:7-10, Dkt. No. 43-1. Deputy Burke then asked for clarification, and Plaintiff's attorney instructed the witness to “tell me about your educational background.” Id. at 5:14. Deputy Burke thereupon described his educational background.

         The next objection appears on page 12 of the transcript when Plaintiff's counsel asks Deputy Burke, “You had done this [responded to a summons for a DRE] many times in the past. Is that fair?” Deputy Burke's counsel again objects, stating “Form. Object to form. Go ahead. You can answer if you understood it.” Deputy Burke then asked Plaintiff's counsel to clarify the word “many.” Id. at 12:21-13:1. Plaintiff's counsel then asked Deputy Burke how many times he had been dispatched to a scene because of his DRE qualifications. Similar objections are made to questions as to form on pages 14, 16, and 17 of the transcript, adding as grounds on some, “vague as to time, ” “multiple, vague, ” and “it's vague, ” but always with the instruction to Deputy Burke that he should answer or answer if he understands.

         It's not until the sixth objection on page 19 that Plaintiff's counsel asks for clarification. Plaintiff's counsel asked, “So a big part of your job, I'm assuming, is responding to emergencies such as motor vehicle accidents and other events in which people are injured or hurt. True?” Counsel for Deputy Burke objected, stating “Object to the form of the question. You can answer.” At that point, Plaintiff's counsel asked, “What's wrong with the form of the question, Jake?” Counsel for Deputy Burke responded: “It's multiple.” Plaintiff's counsel replied: “I don't care if it's multiple. There isn't an objection based on the state of Wisconsin [sic] on multiple.” Counsel for Deputy Burke tried to explain, “It's the form of the question. You asked two questions.” Plaintiff's counsel then begins arguing with Deputy Burke's attorney over whether his question was multiple, threatened to call the judge, and despite having asked for clarification, insisted he limit his objections to “form and foundation.” Id. at 19:13-20:12.

         Shortly thereafter, counsel for Deputy Burke objects to the form of a question, adding “It's leading.” There follows a discussion of whether Deputy Burke, who was not a party and works for a different law enforcement agency, was an adverse witness of whom Plaintiff's attorney could ask leading questions, see Fed. R. Evid. 611(c)(2), at the conclusion of which Plaintiff's counsel insists that counsel for Deputy Burke has “no right to interfere in the process like this” and accuses him of acting unprofessionally and trying “to trip me up and interfere with the process.” Tr. 22:2-23:14. When Plaintiff's counsel resumes asking Deputy Burke questions, Deputy Burke's attorney objects to the form of a question six times over the next sixteen pages of the transcript, all except once stating only “object to the form” and instructing his client to answer. On one occasion, he added the question, “Where?”

         The already evident irritation of Plaintiff's counsel with the attorney for Deputy Burke increased even more as he began asking Deputy Burke about the amount of blood he observed on Plaintiff's shirt and pants when he arrived at the scene to evaluate whether she appeared under the influence of an intoxicant or other drug. It is not hard to see why. Plaintiff's theory of the case is that Officer Demarasse ignored the apparent cause of Plaintiff's disorientation at the time she was pulled over-namely, extreme blood loss-and instead of immediately taking her to the hospital for medical treatment, arrested her for operating while intoxicated and hauled her off to jail. A crucial underpinning of Plaintiff's claim, then, is that it was readily apparent that she was bleeding profusely at the time of the stop.

         At this point, it should be noted that according to Officer Demarasse's report, Plaintiff never said she was in need of medical treatment. When asked about the “large fresh blood stain on the back of her shirt near her buttocks” at the scene, she replied, “I have my period.” When Officer Demarasse asked her why she was not wearing a pad or tampon, she simply replied, “Because.” Dkt. No. 9-2 at 13. Deputy Burke recounted essentially the same conversation in his testimony. Tr. 55:21-56:19. Officer Demarasse also states in her report that she did in fact transport Plaintiff from the scene to the hospital, not the jail, but not for medical treatment. Instead, according to the report, Plaintiff was transported to the hospital for a blood draw as part of the OWI processing. A ...

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