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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Michael Lee Beitman, et al.,

Plaintiffs,

v. 

Correct Care Solutions, et al.,

Defendants.

No. CV-17-08229-PCT-JAT

ORDER 

Pending before the Court is Plaintiff’s Motion to Serve Subpoena on David 

Robertson, DO. (Doc. 235). The Motion has been fully briefed. (Doc. 235, Doc. 259, 

Doc. 264). At the Final Pretrial Conference on March 2, 2022, the Court denied 

Plaintiff’s Motion based on the reasoning in this Order. (Doc. 268).

On January 28, 2022, Plaintiff filed this Motion, which the Court deemed timely in 

its February 2, 2022, Order. (See Doc. 240). On February 11, 2022, Defendant Herrick 

responded. Plaintiff’s Motion seeks a subpoena for Dr. David Robertson to testify 

regarding both Plaintiff’s medical records and the Arizona Department of Corrections 

(ADOC) “Health Service Tech Manual” and related health care provider performance 

measures. (Doc. 235 at 2). Defendant Herrick’s Response contests the relevance of Dr. 

Robertson’s testimony and objects to it as prejudicial and improper expert testimony. 

(Doc. 259 at 3–4). Defendant Herrick also argues that Dr. Robertson’s recital of 

Plaintiff’s medical records or the ADOC manual into the record would violate the best 

evidence rule. (Id. at 4). The Court agrees.

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A. Plaintiff’s Medical Records

Preliminarily, as noted in the Court’s February 2, 2022, Order, Plaintiff cannot 

designate Dr. Robertson as an expert witness because he did not disclose him as an expert 

witness within the deadlines in the Scheduling Order. (See Doc. 240). So, because Dr. 

Robertson is not a designated expert witness, he cannot testify as to (a) any medical 

opinions formed from his review of Plaintiff’s medical records; (b) established standards 

of medical care; or (c) whether Defendant Herrick provided Plaintiff with adequate and 

timely medical care. 

Instead, Plaintiff’s Reply clarifies that he seeks to have Dr. Robertson testify as a 

fact witness regarding his work at ADOC conducting medical record audits. (Doc. 264 at 

1–3). According to Plaintiff, Dr. Robertson, in his capacity has a Medical Program 

Administrator, “is obligated to review all [ADOC] inmate medical records when there is 

a problem with the medical treatment of an inmate.” (Id. at 1). Plaintiff asserts that Dr. 

Robertson is a necessary witness for trial “because the Plaintiff has had personal 

correspondence with Dr. Robertson concerning the Plaintiff’s inadequate and untimely 

medical treatment from the health care provider.” (Doc. 235 at 1). As support for this 

assertion, Plaintiff cites to a letter from Dr. Robertson that reads: 

I am in receipt of your letter dated 11-12-19 regarding your 

declining testosterone values and your concern that you are 

not receiving appropriate care. You are correct in saying that I 

may not direct care. However, I can advocate for patient 

needs when I feel it appropriate. I have scanned and 

forwarded your letters to the Medical Director of Centurion, 

and expect her to look into the matter and discuss with the 

practitioner on your yard. 

(Doc. 77 at 65).

Based on Dr. Robertson’s letter, Plaintiff has only shown that he consulted Dr. 

Robertson regarding his testosterone claims against Defendant Hahn, who has been 

dismissed from the case. (See Doc. 267). Plaintiff has not alleged that Dr. Robertson 

examined Plaintiff, or his medical records, related to his existing claims against 

Defendant Herrick. Plaintiff has also not shown that Dr. Robertson would have any 

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percipient knowledge of Plaintiff’s injuries or the related medical records to which he 

could testify as a fact witness. As such, Plaintiff has failed to establish that Dr. Robertson 

could provide any relevant, non-expert testimony based on Plaintiff’s medical records. 

Fed. R. Evid. 401 (“Evidence is relevant if: (a) it has any tendency to make a fact more or 

less probable than it would be without the evidence; and (b) the fact is of consequence in 

determining the action.”). 

Additionally, Plaintiff does not argue that Dr. Robertson is a custodian of records 

for ADOC or that Dr. Robertson has personal knowledge of Plaintiff’s medical records 

because he reviewed or drafted them while treating Plaintiff, such that he can lay 

foundation to admit Plaintiff’s medical records into evidence. Instead, Plaintiff contends 

that Dr. Robertson is a necessary witness for trial because Plaintiff “has informed him of 

all the medical treatment that he has received and all the grievances that Plaintiff has filed 

since his incarceration.” (Doc. 264 at 3). However, even assuming such testimony had 

proper foundation and relevance, which Plaintiff has not shown, Plaintiff fails to address 

whether Dr. Robertson’s testimony regarding what Plaintiff told him about Plaintiff’s 

medical treatments would be admissible under any hearsay exception. Kaufman v. 

Warner Bros. Entertainment Inc., No. CV-16-02248-PHX-JAT, 2018 WL 4351292, at *4 

(D. Ariz. Sept. 12, 2018) (“With some exceptions, hearsay is an out-of-court statement 

offered for the truth of the matter asserted, Fed. R. Evid. 801(c), and is generally 

inadmissible, Fed. R. Evid. 802.”).

Moreover, even assuming foundation and admissibility of such testimony, 

allowing Dr. Robertson to read the contents of Plaintiff’s medical records into the record 

would violate the best evidence rule. Generally, under the best evidence rule, “[a]n 

original writing ... is required in order to prove its content unless [the Federal Rules of 

Evidence] or a federal statute provides otherwise.” Fed. R. Evid. 1002. Here, neither 

party is disputing that the best evidence rule applies nor are they asserting an exception to 

Rule 1002.

Therefore, Plaintiff has not established that Dr. Robertson’s testimony regarding 

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Plaintiff’s medical records is necessary in this case. 

B. The ADOC Manual and Performance Measures

Plaintiff also seeks to have Dr. Robertson testify regarding his “personal 

knowledge of the [ADOC] Health Service Tech Manual and the performance measures 

required of all health care providers contracted to give adequate and timely medical 

treatment to inmates in the custody of [ADOC]” in his role as an ADOC Medical 

Program Administrator. (Doc. 235 at 2; Doc. 264 at 1). Plaintiff argues:

Plaintiff believes that David Robertson DO is a crucial 

witness to explain to the jury what performance measures are 

required from health care providers in treatment of inmates in 

the custody of ADC which is the foundation in this deliberate 

indifference case. Plaintiff believes that ‘no treatment’ is not 

an option for the performance measures required by the 

Defendant and the jury needs to know what performance 

measures that should have been performed by the Defendant. 

(Doc. 264 at 3). Plaintiff asserts that Dr. Robertson would be able to provide such 

testimony as a fact witness, because he testified as a fact witness “in reference to his 

work capacity” in Parsons v. Ryan, No. CV-12-00601-PHX-DKD. (Id. at 2). Plaintiff 

relies on an excerpt of Dr. Robertson’s testimony from that case, which appears to be the 

introductory and background information laying foundation for Dr. Robertson’s 

testimony in that case. (See Doc. 264 at 5–8). Plaintiff, however, does not identify any 

specific performance measures or sections of the manual that Dr. Robertson would testify 

to, nor does he attach any portion of that transcript showing that Dr. Robertson has 

information relevant to the remaining issues in this case. Indeed, on the next page of the 

transcript, which Plaintiff did not include with his reply, Dr. Robertson states: “I [am] not 

familiar with the specific performance measures,” in response to a question about what 

the performance measures require for patient recordkeeping. See No. CV 12-00601-ROS, 

Doc. 2671 at 90. 

Importantly, Plaintiff fails to discuss how the manual and performance measures

or Dr. Robertson’s testimony regarding the same will have any bearing on the issues in 

this case. Indeed, Plaintiff does not identify how the contents of the manual or the 

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performance measures relate to the outstanding issues in the case or Plaintiff’s anticipated 

testimony on those issues, namely: (a) whether Defendant Herrick was aware of 

Plaintiff’s serious medical need and failed to take any action in response to his continued 

severe pain during the last five weeks that he was housed at the Kingman facility, thereby 

exhibiting deliberate indifference, and (b) whether Plaintiff suffered harm as a result of 

Defendant Herrick’s alleged deliberate indifference. (See Doc. 198 at 31); (see also Doc. 

209 at 2 (“The motion must state why each non-inmate witness for whom Plaintiff 

submitted a trial subpoena is a necessary witness for trial.”)).

Finally, the manual and performance measures that Plaintiff seeks to have Dr. 

Robertson testify to are not listed as exhibits in the Proposed Final Pretrial Order. This 

Court’s Order Setting Final Pretrial Conference is clear:

IT IS FURTHER ORDERED that, pursuant to Federal Rule 

of Civil Procedure 37(c), the Court will not allow the parties 

to offer an exhibit, a witness, or other information that was 

not: (1) disclosed in accordance with the provisions of this 

Order; (2) disclosed in accordance with the provisions of the 

Federal Rules of Procedure; and (3) listed in the joint

Proposed Final Pretrial Order; unless the offering party can 

show good cause as to why such party failed to comply with 

these requirements.

(Doc. 209 at 2–3) (emphasis in original).

As such, it would be futile to allow Dr. Robertson to attempt to lay foundation 

regarding the relevance and admissibility of the manual and performance measures

because those exhibits were never disclosed pursuant to the Order Setting Final Pretrial 

Conference and Plaintiff has not established good cause for his failure to disclose these 

exhibits. Thus, even assuming proper foundation and relevance of Dr. Robertson’s 

testimony as a fact witness, which is sketchy at best for the reasons discussed above, any 

subpoena of Dr. Robertson would be futile because the exhibits were not listed in the 

Final Pretrial Order, as required by Doc. 209.

1 Any subsequent motion to admit the 

1 And allowing Dr. Robertson to read the manual or the performance measures into the 

record would violate the best evidence rule, for the same reasons discussed above 

regarding Plaintiff’s medical records. See Fed. R. Evid. 1002.

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manual and the performance measures would be denied because they were not listed as

exhibits.

For these reasons, the Court denies Plaintiff’s motion to subpoena Dr. Robertson.

Accordingly,

IT IS ORDERED that Plaintiff’s Motion to Subpoena Dr. Robertson (Doc. 235) 

is DENIED. The Clerk of the Court shall not forward the subpoena at Doc. 235-1 to the 

Marshals for service.

Dated this 14th day of March, 2022.

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