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State v. Davis

Superior Court of Maine, Aroostook

August 29, 2016

STATE OF MAINE
v.
MATTHEW DAVIS Defendant

          ORDER ON DR. FLOMENBAUM MOTIONS IN LIMINE

          E. 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[1]. The State seeks a pretrial Order from the court addressing three aspects of Dr. Flomenbaum's possible testimony.

         In its 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."[2] 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"[3] and a "failure to communicate fully and frankly"[4] 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.

         The 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.
Q Two?
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, Doctor?
A The governor did. Yes, he did.

         Ordinarily 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.

         That 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.[5] 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 ...


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