United States District Court, D. New Hampshire
John R. Griffin, Jr.
Hillsborough County Department of Corrections Superintendent David Dionne, Denise Ryan, Hillsborough County, Dr. Matthew Masewic, and Omni Health Care Co. Opinion No. 2015 DNH 068
STEVEN J. McAULIFFE, District Judge.
Before the court for consideration and ruling are:
Plaintiff John Griffin's "Motion to Intervene in the manner in which Court Order from 12/8/2014 is acted upon" (doc. no. 109) ("motion for direct telephone access"); and
Griffin's "Motion for constitutional challenge of the requirement for medical expert and provisions of NH RSA 507-E:2" (doc. no. 103) ("motion for constitutional challenge").
I. Motion for Direct Telephone Access (Doc. No. 109)
Griffin, an inmate currently housed at the Carroll County Department of Corrections ("CCDC"), moves to be allowed access to a "normal Direct land line phone" in order to contact potential medical expert witnesses. Mot. for Access (doc. no. 109) at 1. Griffin states that he has been allowed to use the CCDC "Securas" third party phone system to make phone calls. Id . He argues, however, that the Securas system is inadequate because every phone call plays the following recording at the beginning of each call: "This is a prepaid call from an inmate in (Carrol Co. jail)." Id . Griffin contends that because of this recording, no legal or medical office has accepted any of his telephone calls.
A pretrial detainee "does not have an unfettered right to use a prison phone on his own terms"; the institution may impose limitations that are reasonable in relation to its legitimate security interests. Collins v. Kennebec Cnty. Jail, No. 1:12-cv-69-GZS, 2012 WL 987328, at *3, 2012 U.S. Dist. LEXIS 38714, at *9 (D. Me. Mar. 21, 2012), report and recommendation approved, No. 1:12-cv-69-GZS, 2012 U.S. Dist. LEXIS 67680 (D. Me. May 15, 2012); see also Levesque v. New Hampshire, No. 09-cv-248-JD, 2010 WL 2367346, at *37, 2010 U.S. Dist. LEXIS 57249, at *108-*109 (D.N.H. May 12, 2010), report and recommendation approved, No. 09-cv-248-JD, 2010 U.S. Dist. LEXIS 57278, 2010 WL 2367231 (D.N.H. June 9, 2010). Cf. United States v. Amen, 831 F.2d 373, 380 (2d Cir. 1987) (monitoring inmate phone conversations is "reasonable... particularly where they are told that the conversations are being monitored, " and does not violate Fourth Amendment).
The outgoing, pre-recorded message, at issue, is rationally related to the CCDC's legitimate interest in avoiding an inmate's use of the phone system to engage in fraud. Griffin has not demonstrated that the CCDC's insertion of a notice regarding the source of the call is excessive relative to that interest. Nor does he contend that he was denied other means of contacting potential experts, such as contacting them by mail.
The restriction on Griffin's phone use is reasonably related to a legitimate institutional interest, is not excessive relative to that interest, and does not impose any undue or unfair burden on Griffin, with respect to his ability to meet the expert discovery deadlines in this case. Accordingly, the motion for direct telephone access (doc. no. 109) is denied.
II. Motion for Constitutional Challenge (Doc. No. 103)
Griffin makes three arguments in his motion for constitutional challenge (doc. no. 103): (i) the provision of RSA 507-E:2 requiring an expert in a state law medical negligence claim violates the separation of powers principle in the New Hampshire constitution; (ii) to the extent expert testimony is required for any of his claims, he should be allowed to offer expert testimony himself; and (iii) he does not need an expert to support any of his claims because existing medical records, discovery responses, and other evidence in the record are sufficient to make his case.
A. RSA 507-E:2
Under New Hampshire law, a negligence action based upon a claim of medical malpractice is governed by RSA 507-E. RSA 507-E:2 provides in pertinent part: "In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses" that a doctor's negligence proximately caused the plaintiff's injury. Thus, "[i]n medical malpractice cases, expert testimony is required to establish proximate cause." Beckles v. Madden, 160 N.H. 118, 125, 993 A.2d 209, 214 (2010); see also Smith v. HCA Health Servs. of N.H., 159 N.H. 158, 161, 977 A.2d 534, 538 (2009) ("RSA 507-E:2 explicitly states that plaintiffs must include expert testimony to meet their burden of proof." (internal quotation marks and citation omitted) (emphasis in original)). "This requirement serves to preclude the jury from engaging in idle speculation.'" Beckles, 160 N.H. at 125, 993 A.2d at 214 (citation omitted).
Griffin argues that courts are vested with discretion to determine whether an expert is essential to prosecute a claim. He contends that RSA 507-E:2 usurps that judicial authority and violates the separation of powers provision of Part ...