ORDER ON DR. FLOMENBAUM MOTIONS IN LIMINE
Allen Hunter Active Retired Justice of the Superior Court
Pending before the court are two motions in limine that the
State has filed pertaining to the Chief Medical Examiner for
the State of Maine, Dr. Mark Flomenbaum. The State seeks
a pretrial Order from the court addressing three aspects of
Dr. Flomenbaum's possible testimony.
first Motion in Limine pertaining to Dr. Flomenbaum, the
State seeks an Order from the court prohibiting the Defendant
from cross- examining Dr. Flomenbaum regarding the
circumstances of his separation from employment for the
Commonwealth of Massachusetts. It appears that Dr. Flomenbaum
was employed as the Chief Medical Examiner for Massachusetts
for two years and was responsible for managing the Office of
the Chief Medical Examiner (OCME) in that state. It also
appears that he was discharged before the expiration of his
term "for cause." The State contends that such
evidence is neither material nor relevant to this case and
that its introduction ought to be excluded by M.R.Evid. 403
because its probative value is outweighed by the danger of
confusing the issues, or misleading the jury. The Defendant
objects to the motion and relying upon M.R.Evid. 608 (b)
points to references to a "lack of candor" and a
"failure to communicate fully and frankly" with his
superiors for support of his contention that there were
specific instances of conduct during Dr. Flomenbaum's
employment in Massachusetts about which he should be
permitted to make inquiry.
Defendant also points to the following exchange between Dr.
Flomenbaum and the defense attorney in State of Connecticut
v. Carroll Bumgarner-Ramos (See transcript of proceedings
submitted as Defendant's Exhibit 3, page 133):
Q [How long were you at the OCME]
A Two years.
A Two years.
Q Two years before they fired you?
A No. Two years before I left.
Q Well, didn't the state of Massachusetts terminate you,
A The governor did. Yes, he did.
in addressing motions in limine, particularly motions based
upon M.R.Evid. 403 considerations, the better practice is to
await the development of an evidentiary context before ruling
on such motions. (See State v. Brackett, 2000 ME 54,
¶ 7, 754 A.2d 337, 339) It is often possible for the
evidence at trial to develop in ways that may not have been
anticipated and consequently new or different issues may
arise and as a result certain evidence may become more or
less relevant. In such cases, the calculus of M.R.Evid. 403
rulings made in advance of trial can change. However, in
other cases changes to the evidentiary mix are unlikely,
particularly where the essential facts are likely to be
established without dispute. In these cases, motions in
limine can safely be addressed in advance of trial, thereby
promoting greater efficiency in conducting the trial
proceedings. This is such a case.
Dr. Flomenbaum was discharged from his position as Chief
Medical Examiner for the Commonwealth of Massachusetts is
undisputed. From the materials provided the court in
connection with this motion it is clear to this court that
Dr. Flomenbaum's duties in Massachusetts were entirely
administrative and not clinical. It is also clear that Dr.
Flomenbaum and his employer had significant disagreements
regarding the terms of Dr. Flomenbaum's initial
engagement. The parties had signed a letter that embodied the
terms on which Dr. Flomenbaum accepted his position in
Massachusetts. It appears that the OCME was not functioning
in an optimum manner, in particular, there were substantial
backlogs in conducting autopsies. There were also other
issues regarding the performance of other related duties for
which that office was responsible. The letter suggested that
the Commonwealth of Massachusetts had committed to supporting
Dr. Flomenbaum's requested changes in the OCME in that
state. These changes included increasing the number of
medical examiners, developing a comprehensive medicolegal
investigation system, seeking accreditation under national
standards, improving or ...