UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Kevin Rogers

v. Civil No. 19-cv-118-JL Opinion No.

Town of New Hampton, et al.

MEMORANDUM ORDER

This order provides rulings on the defendant’s pretrial evidentiary motions in limine.

Following numerous dispositive motions, which eliminated several claims against several other

defendants, only pro se Plaintiff Kevin Rogers’ claim under

against Defendant

Sergeant Michael Grier for deliberately indifferent failure to provide medical care during police

custody will proceed to trial. Ahead of the jury trial, Sergeant Grier filed three motions in limine

to exclude a variety of evidence and areas of inquiry. The court addresses each motion in turn.

These rulings are made without prejudice to revisiting particular issues in response to

circumstances that might arise during trial. Furthermore, these rulings are limited to grounds

argued in the parties’ filings and raised at oral argument. The court reserves the right to assess

other factors at trial, such as hearsay, authenticity, and best evidence, see Fed. R. Evid. 800 et

seq., 900 et seq., and 1000 et seq., and where appropriate, arguments and grounds not raised by

each side. To the extent the court here rules that evidence may be admitted for a limited purpose,

see Fed. R. Evid. 105, it will give the jury a limiting instruction upon the request of counsel at

trial.

Background

In early 2016, Rogers was charged in New Hampshire state court with 12 counts of

violating N.H. Rev. Stat. Ann § 173-B:9 for sending emails to his wife in violation of a court

order limiting their contact during their divorce proceedings. Town of New Hampton officials prepared and approved an arrest warrant for Rogers, and Officer Christopher Heney of the New

Hampton Police Department informed Rogers about the warrant. Rogers denied committing any

crime but agreed to come to the police station. Rogers’ deliberate indifference claim against

Sergeant Grier arises from events that occurred after Rogers arrived at the station.1

When Rogers arrived at the station, he was taken to the booking room. Rogers claims

that he was handcuffed to a bench. Rogers then saw Sergeant Grier, who, according to Rogers,

taunted Rogers and informed him that he would not be released and would be going to jail.

Rogers claims that this caused immediate chest pains and difficulty breathing. He contends that

he gripped his chest, told the officers that he was having difficulty breathing, and fell off the

bench. Rogers then told the officers that no protective order was in effect against him and asked

for emergency medical services (EMS) or for access to the portable oxygen concentrator that was

in his vehicle. Rogers next alleges that Sergeant Grier “mirandized” and questioned him.

Rogers contends that, at this point, he could barely speak and was experiencing headaches,

vision loss, involuntary urination, and color change due to cyanosis. Rogers claims that Officer

Heney suggested calling EMS, but Sergeant Grier laughed and said he believed Rogers was

faking distress.

Sergeant Grier and Officer Heney offer a different account of these events. Officer

Heney denies handcuffing Rogers to the bench, and claims that he, and not Sergeant Grier,

informed Rogers after booking that Rogers would be held overnight for arraignment, at which

point Rogers began to argue. They assert that Rogers continued to complain about the charges

and stated that he was having difficulty breathing. Officer Heney and Sergeant Grier deny that

1 The parties recall the events in question differently. For context, the court will provide a summary of each party’s recollection in this order.

2 Rogers complained of chest pain or fell off the bench. Both refute that Sergeant Grier taunted or

laughed at Rogers, and they deny that Rogers showed any indications of actual medical distress.

They also deny that Rogers requested EMS or oxygen, and they deny discussing calling EMS.

Officer Heney handcuffed Rogers, escorted him to the rear seat of a police vehicle, and

transported him to the Belknap County House of Corrections. House of Corrections staff

completed a medical screening form for Rogers, which reported that Rogers displayed no

obvious pain or injury upon admission.

Rogers contends that there was a video recording of the booking area of the New

Hampton Police Department Headquarters that captured his booking and arrest in February 2016.

In May 2016, Rogers contacted the New Hampton Chief of Police by email, stating that he

intended to sue the department, would subpoena the video from the night of his arrest, and

requesting that the department preserve all videos and other evidence relating to his arrest. The

video recording of Rogers’ arrest, however, appears to have been deleted because the recording

system used by the New Hampton Police Department was set on a loop, such that recordings

were only preserved for 7-10 days. Because Rogers did not request a copy of the recording

within this 7-10 day window, the recording was likely recorded over in the normal course.

The defense moves to exclude three pieces of evidence: (1) a statement allegedly made

by Officer Heney in which he told Sergeant Grier that they should call for Emergency Medical

Services2; (2) Rogers’ medical records and bills3; and (3) references or arguments about the

2 See Defendant’s Motion in Limine (doc. no. 71). 3 See Defendant’s Motion in Limine (doc. no. 72).

3 videotape of his police booking, which was recorded over, as well as any adverse inference

instructions regarding the video at trial.4

Analysis

A. Hearsay statement attributed to Officer Heney

First, the defense seeks to exclude the introduction of a purported hearsay statement

attributed to Officer Heney. Rogers alleges that he overheard Officer Heney tell Sergeant Grier

that they should call an EMS.5 Officer Heney has denied making this statement.6 The defense

argues that Rogers should not be allowed to testify about Officer Heney’s alleged statement

because it is inadmissible hearsay under Fed. R. Evid. 801, 802. Rogers argues that the alleged

statement is admissible under the “excited utterance” hearsay exception. See Fed. R. Evid.

803(2) (defining a statement “relating to a startling event or condition, made while the declarant

was under the stress of excitement that it caused” to be an excited utterance and an exception to

the rule against hearsay). In Rogers’ surreply, he further argues that the statement was a present

sense impression and thus exempted from the rule against hearsay. See Fed. R. Evid. 803(1) (“A

statement describing or explaining an event or condition, made while or immediately after the

declarant perceived it” is a present sense impression and an exception to the rule against

hearsay).

Hearsay is an out-of-court statement by a declarant that is offered “to prove the truth of

the matter asserted in the statement.” Fed. R. Evid. 801. Hearsay is generally inadmissible. See

4 See Defendant’s Motion in Limine (doc. no. 73). 5 See Affidavit of Kevin Rogers (doc. no. 46-2) ¶ 17. 6 See Affidavit of Christopher Heney (doc. no. 47-2) ¶¶ 14-15.

4 Fed. R. Evid. 802. Rogers “recalls Officer Heney indicating to Defendant Grier that EMS should

be called, and Defendant Grier indicating ‘He’s faking – he was fine just a minute ago.’”7 This

statement is inadmissible hearsay to prove its truth – that the police should have called for

medical assistance. See Fed. R. Evid. 801(c)(2). It is not hearsay, however, for the purpose of

establishing that Sergeant Grier heard and was thus aware of Officer Heney’s alleged comment

that suggested they should call for EMS. In this respect, the statement is admissible because it

will not be offered for its truth to prove that EMS should have been called, but rather that

Sergeant Grier was aware of Officer Heney’s statement to that effect. See Fed. R. Evid.

801(c)(2). Where admissible nonhearsay is concerned, hearsay exceptions like the excited

utterance exception and the present sense impression exception do not apply.8

Furthermore, Officer Heney’s alleged statement is relevant under Fed. R. Evid. 401

because it could potentially assist the jury in determining whether Sergeant Grier was aware of

Rogers’ condition or distress. For Rogers to prevail at trial on his deliberate indifference claim,

he must establish that Sergeant Grier was “aware of facts from which the inference could be

drawn that a substantial risk of serious harm exist[ed], and he must also [have] draw[n] the

inference.” Farmer v. Brennan,

(1994). Officer Heney’s alleged statement is

relevant since it has a “tendency to make” the fact that Sergeant Grier was aware of a substantial

risk of serious harm to Rogers “more or less probable than it would be without the evidence” and

thus, “is of consequence in determining the action.” Fed. R. Evid. 401; see also Fed. R. Evid.

402 (general admissibility of relevant evidence).

7 Doc. no. 46-2, at ¶ 17. 8 It is possible, depending on how the evidence is elicited at trial, that the statement might be an excited utterance. See Fed. R. Evid. 803(2). If that occurs, the court may revisit whether the statement is admissible for its truth.

5 As a condition to admissibility, however, Rogers must first show that Sergeant Grier was

present in the booking room with Officer Heney because the alleged statement is only relevant to

establishing Sergeant Grier’s awareness if Sergeant Grier was present to hear the statement. See

Fed. R. Evid. 104(b) (“When the relevance of evidence depends on whether a fact exists, proof

must be introduced sufficient to support a finding that the fact does exist. The court may admit

the proposed evidence on the condition that the proof be introduced later.”). Sergeant Grier’s

alleged response to Officer Grier, that Rogers was faking it, suggests that this was the case.9 For

his part, Sergeant Grier denies any such conversation took place. Either way, the trial evidence

will bear this point out.

For these reasons, Sergeant Grier’s motion is granted in part and denied in part. If

requested, the court will issue a limiting instruction so that the statement may not be considered

for its truth in establishing that EMS should have been called, but confined to Sergeant Grier

hearing a statement by Officer Heney that they should call EMS. See Fed. R. Evid. 105.

B. Medical records and bills

The defense next moves to preclude the introduction of medical records and bills that

Rogers claims reflect medical care necessitated by Sergeant Grier’s conduct. Specifically,

Rogers seeks to introduce blood work records allegedly showing that “a serious change occurred

with the levels of various indictors of health” and claims that these records “clearly indicated that

the Plaintiff had a seriously detrimental change in his health, from the actions from the

Defendants.”10 Sergeant Grier argues that these records should be excluded from the trial

because such evidence would necessarily entail the jury making an impermissible inference of

9 See Doc. no. 46-2, at ¶ 17. 10 See Rogers’ Objection to Motion in Limine (doc. no. 78) ¶12.

6 causation, without the benefit of expert testimony, which is beyond the common experience of

jurors. As explained below, the court mostly agrees with the defense.

The medical records and bills cannot be used as Rogers intends since Rogers has not

timely disclosed an expert witness and will not present expert opinion testimony at trial to

causally connect his post-arrest medical condition and need for medical care to Sergeant Grier’s

alleged conduct. Due to the complexity of Rogers’ alleged medical condition and the

specialized knowledge required to understand laboratory results, blood work, and other medical

records, drawing a causal connection between Sergeant Grier’s conduct and these records is

beyond the ken of an average juror. See, e.g., Brown v. Englander, No. 10-CV-257-SM,

, at *3 (D.N.H. June 1, 2012) (McAuliffe, J.) (summary judgment was appropriate

on deliberate indifference claim because plaintiff could not show that the surgery he requested

was medically necessary since “[o]nly a medical expert can testify on such matters”); Pearson v.

Prison Health Service,

(3rd Cir. 2017) (“[M]edical expert testimony may be

necessary to establish deliberate indifference in an adequacy of care claim, where, as laymen, the

jury would not be in a position to determine that the particular treatment or diagnosis fell below a

professional standard of care.”); Alberson v. Norris,

, 765–66 (8th Cir. 2006)

(“Where the complaint involves treatment of a prisoner’s sophisticated medical condition, expert

testimony is required to show proof of causation.”).

Without an expert witness, the medical records and bills are not relevant to Rogers’

damages because the records and bills by themselves do not have “any tendency to make” the

“fact more or less probable” that Sergeant Grier’s conduct caused Rogers’ injuries. Fed. R. Evid.

401. Similarly, Rogers cannot testify as to the causal connection between his post-arrest medical

condition and Sergeant Grier’s conduct because a lay witness may not testify as to “scientific,

7 technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701; see

also Fed. R. Evid. 702 (testimony by expert witnesses). Because the medical records and bills

are irrelevant to the causation question without accompanying expert testimony, they are

inadmissible for that purpose. See Fed. R. Evid. 402 (“Irrelevant evidence is not admissible.”).

The court will permit Rogers to introduce a very limited number of appropriately

redacted, and properly authenticated, medical records to corroborate his (presumed) testimony

that he received medical care after the events giving rise to this litigation or for other issues not

requiring expert testimony. See Scinto v. Stansberry,

(4th Cir. 2016) (“There

is no requirement, however, that a plaintiff alleging deliberate indifference present expert

testimony to support his allegations of serious [medical need]”). If Rogers introduces medical

records and bills for these purposes, the court will issue a limiting instruction upon request by

defense counsel. See Fed. R. Evid. 105. Sergeant Grier’s motion to preclude the admission of

Rogers’ medical records and bills is therefore granted, subject to the exceptions discussed above.

C. Booking video

Finally, Sergeant Grier moves to exclude testimony and arguments regarding the video

recording of Rogers’ experience in the booking area and its absence at trial. He also

preemptively objects to any potential adverse inference instruction resulting from the purportedly

“lost” video. For the following reasons, defendant’s motion is granted in part and denied in part.

At the time that Rogers appeared at the New Hampton Police Department in February

2016, a video recording system recorded the booking area on a loop, however, recordings were

only preserved for 7-10 days.11 Rogers, via email, requested the video over three months later –

11 See Huckins Affidavit (doc. no. 73-2) ¶6.

8 well after the video had been recorded over in the normal course.12 The defense moves to

exclude all references to the booking video under Fed. R. Evid. 403, arguing that discussion

concerning the deleted video footage at trial would distract the jury from the main issues of the

case and “risk tainting the Defendant with alleged (and unproven) misconduct of others over

whom he has no control.”13 Rogers argues that he is entitled to an adverse inference instruction

as a spoliation sanction because his criminal defense attorney sent a broad discovery request to

the New Hampton Police Department eight days after the incident (within the timeframe when

the video may still have existed), which should have put the department on notice of his request

to preserve the booking video.14 Sergeant Grier responds that the discovery request did not

encompass the booking video, and even if it did, the video was not responsive to the request

because it was not related to the pending criminal charges.

No one disputes that the subject video would constitute relevant evidence as it

presumably depicted the events giving rise to Rogers’ deliberate indifference claim. See Fed. R.

Evid. 401, 402. Under Fed. R. Evid. 403, however, the court may exclude relevant evidence “if

its probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Sergeant Grier will be minimally prejudiced, if at

all, from the jury hearing that a recording once existed, that it was requested more than three

months after the incident, but that it was overwritten under a routine (at the time) process. And

the absence of the video and the clarity of Rogers’ request by his criminal defense attorney

12 See Doc. no. 73-2, at ¶7. 13 See Doc. no. 73, at 5. 14 See Doc. no. 79, at ¶1.

9 impact the weight of the evidence regarding its absence, rather than its admissibility. Moreover,

Sergeant Grier will not be unfairly prejudiced by discussions of the booking video (or its

absence) because his witnesses will be able to explain why the recordings no longer exist, which

has little to do with Sergeant Grier and does not obviously appear to be the result of any attempt

to conceal evidence.

The court will therefore not preclude evidence about the booking video or its absence at

this time. If requested, the court will issue a limiting instruction to the jury that the evidence

may be considered only on the issues of whether the video existed, whether and when it was

requested by Rogers, the circumstances surrounding its unavailability, and any rational

inferences the jury may draw from these facts. See Fed. R. Evid. 105. If either side argues any

irrational or impermissible inferences from these facts, the court will address the situation

accordingly.

The court also declines to provide an adverse inference instruction on this issue. Under

Fed. R. Civ. P. 37(e), the court may provide an adverse inference instruction for a party’s failure

to preserve electronically stored information when information “that should have been preserved

in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to

preserve it, and it cannot be restored or replaced through additional discovery.” Before issuing

an adverse inference instruction, the court must first find “that the party acted with the intent to

deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e). Because

neither Sergeant Grier nor the New Hampton Police Department intentionally deprived Rogers of

the booking video, such an instruction is not warranted here.

10 Conclusion

Consistent with the reasons in this order, Sergeant Grier’s motions in limine15 are granted

in part and denied in part.

SO ORDERED.

______________________ Joseph N. Laplante United States District Judge

Dated: August 12, 2021

cc: Kevin Rogers, pro se Brian J. S. Cullen, Esq. Jonathan M. Shirley, Esq.

15 See Doc. nos. 71, 72, 73.

11