Mendoza v. Peoria, City of et al

Filing 63

ORDER granting 61 Plaintiff's Motion to Conduct Medical Examination by Treating Physician. Plaintiff shall pay all costs associated Dr. Champagne's evaluation. Signed by Magistrate Judge Lawrence O Anderson on 9/23/13.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 David Dominguez Mendoza, individually,) ) Plaintiff, ) ) vs. ) ) ) City of Peoria, a municipality, by and) through its Police Department, an Agency) of the City of Peoria; et al., ) ) Defendants. ) ) ) No. CV-13-258-PHX-NVW MEDICAL EVALUATION ORDER 16 On September 17, 2013, the assigned District Judge granted Plaintiff’s Motion to 17 Refer Discovery Matter to Magistrate Judge and referred all discovery issues related to the 18 medical exam of Plaintiff by his treating physician to the undersigned Magistrate Judge for 19 resolution prior to the scheduled close of discovery. (Docs. 53, 55) That same day, Plaintiff 20 filed a Motion to Conduct Medical Examination by Treating Physician, an issue within the 21 scope of the District Judge’s referral.1 (Docs. 56, 61) Plaintiff seeks an order that Plaintiff, 22 an inmate imprisoned in the Arizona Department of Corrections (“ADOC”), be transported 23 to the United States courthouse in Phoenix, so his former treating physician may “properly 24 evaluate the current status of [Plaintiff’s] injury, and opine as to any permanent impairment 25 26 27 28 1 This Magistrate Judge struck Plaintiff’s initial Motion without prejudice with leave to re-file the Motion for a violation of the Local Rules as explained in the September 19, 2013 Order. (Doc. 60) Plaintiff having timely re-filed a Local Rules-compliant Amended Motion, doc. 61, the Magistrate Judge will consider the merits of Plaintiff’s request. 1 rating.” (Doc. 61 at 2) Defendants oppose the request. (Doc. 58) 2 In light of Plaintiff’s incarceration until after the anticipated trial of this action, 3 detainee evaluations are frequently performed at the federal courthouse for security reasons, 4 all costs associated with the evaluation will be paid by Plaintiff, and it being in the best 5 interests of the pursuit of truth and justice that the jury in the trial of this action have current 6 information regarding Plaintiff’s injury and future limitations, if any, the Motion will be 7 granted. 8 I. Background 9 This Section 1983 action arises out of a severe and disfiguring avulsive injury to 10 Plaintiff’s left forearm sustained during Plaintiff’s arrest on February 23, 2011, when a City 11 of Peoria police canine, Havoc, was deployed by his police handler and bit and held onto 12 Plaintiff’s arm when, according to Plaintiff, he was peacefully surrendering to the police. 13 (Docs. 7, at 9; 17 at 2-3) Plaintiff claims that, inter alia, Defendants’ use of force under the 14 attendant circumstances was unreasonable and constituted excessive force in violation of 15 Plaintiff’s rights under the Fourth Amendment of the United States Constitution. (Doc. 17 16 at 2-3) In addition to “incurr[ing] more than $88,332.79 in medical bills” and requiring 17 “significant future medical care,” Plaintiff contends he “suffered extensive and permanent 18 injuries to his dominant hand, catastrophically affecting his ability to make a living and 19 adversely affecting the relationship with his young son, . . . [he] can no longer use his hands 20 to earn a living in the field of construction, a position he held prior to this incident. . . [and 21 his] injuries prohibit his ability to lift up and hold his minor son, . . . much less participate 22 in physical activities such as throwing a ball[.]” (Id. at 3-4) 23 Defendants deny any liability, contending Defendant Officer Brewer’s use of Havoc 24 was objectively reasonable based upon the totality of the circumstances. (Id. at 4-5) In the 25 parties’ joint case management plan, Defendants allege that, upon information and belief, 26 Plaintiff’s earning capacity and his ability to have a relationship with his son are hampered 27 by his current prison status, not the injury to his left arm. (Id.) While the issues of liability 28 are hotly contested, Defendants also dispute the nature and extent of Plaintiff’s injuries and -2- 1 the impact, if any, Plaintiff’s injury has had and will have on his future earnings. 2 Initially filed in the Maricopa County Superior Court, Defendants removed this action 3 to this District Court on February 6, 2013. (Doc. 1) In the May 17, 2009 Scheduling Order, 4 the District Judge fashioned deadlines for the fair and reasonably expeditious resolution of 5 this case. (Doc. 20) A recent limited modification to the Scheduling Order mandates that, 6 among others, expert depositions shall be completed no later than Friday, November 8, 2013; 7 the completion of all fact discovery, including all disclosures required under Rule 26(a)(3), 8 by Monday, November 25, 2013; and all dispositive motions and motions challenging expert 9 opinion evidence must “[b]e filed no later than Thursday, December 12, 2013, at 5:00 p.m. 10 Arizona time.” (Doc. 59 at 1-2) There is no trial date scheduled at this time. The initial 11 Scheduling Order makes clear “[t]he Deadlines Are Real. The parties are advised that the 12 Court intends to enforce the deadlines set forth in this order, and they should plan their 13 litigation activities accordingly.” (Doc. 20, ¶ 11 at 5) (emphasis in original). 14 II. Motion for Medical Examination 15 Plaintiff’s Motion requests an order directing ADOC, Plaintiff’s current physical 16 custodian, to transport Plaintiff from its prison complex in Marana, Arizona, which is just 17 north of Tucson, to Phoenix so Plaintiff may be examined by his treating reconstructive 18 surgeon, Dr. Lloyd P. Champagne, and return him the same day. (Doc. 61 at 2) According 19 to his counsel, “Dr. Champagne’s examination of David is necessary to properly evaluate 20 the current status of David’s injury, and opine as to any permanent impairment rating.” (Id.) 21 For security purposes, the U.S. Marshals’ (“USMS”) lock-up on the second floor of the 22 Sandra Day O’Connor U.S. Courthouse in Phoenix is routinely used by psychologists, 23 psychiatrists, and other healthcare specialists to examine non-hospitalized detainees, 24 predominantly for mental competency issues. The problem for the parties is Plaintiff has not 25 been seen by his former treating physician since April 17, 20122 for Dr. Champagne to have 26 a current understanding of Plaintiff’s permanent arm, wrist, and hand functional and 27 28 2 See doc. 58-1, Exhibit (“Exh.) A at 1. -3- 1 sensational limitations, if any, to offer expert opinions either in a deposition or at trial due 2 to Plaintiff’s imprisonment.3 The public records from ADOC’s website reflect Plaintiff was 3 received by ADOC on January 7, 2013 to begin a prison sentence and, assuming he serves 4 the entire sentence day-for-day, he will not be released until August 12, 2014.4 5 Defendants oppose Plaintiff’s Motion. (Doc. 58) First, Defendants deny that Dr. 6 Champagne is a treating physician, which demonstrates a significant misunderstanding of 7 the meaning of “treating physician” in the context of Rule 26, Fed.R.Civ.P. In the same 8 paragraph, however, Defendants acknowledge that “Dr. Champagne released Mr. Mendoza 9 from his care in April 2012 and has not seen Mr. Mendoza in ‘many months[,]’” citing 10 Exhibits A & B, Expert Report, dated June 25, 2013. Defendants’ Exhibit A confirms 11 Plaintiff “had skin grafts and a transfer of ligaments performed by a physician, Dr. Lloyd P. 12 Champagne, with the Arizona Center for Hand Surgery in Phoenix, Arizona.” (Doc. 58-1, 13 Exh. B at 1) As an additional ground to deny the Motion, Defendants argue “there is no 14 medical need for Dr. Champagne to see Mr. Mendoza” as if a medical evaluation of a litigant 15 is only appropriate when a litigant is undergoing active care and treatment. This argument 16 is absurd in the context of personal injury litigation. 17 Defendants request that if the Court is inclined to grant Plaintiff’s motion, that 1) they 18 be allowed a reasonable amount of time to find and name an expert to rebut Dr. 19 Champagne’s additional opinions; 2) their expert be able to conduct their own evaluation, 20 preferably on the same date as Dr. Champagne, on a date that is mutually agreeable to the 21 parties and the Court; 3) their expert be provided a reasonable opportunity to review Dr. 22 23 24 25 26 27 3 Dr. Champagne’s June 25, 2013 narrative report confirms that “[s]ince I have not seen him in months, I am not exactly sure what [Plaintiff’s] extensors are doing and in a general stance, I am not exactly sure about the competency of his hand.” (Doc. 58-2, Exh. B at 2) “[I] am not sure of the strength of his arm, and, at this time, will not be able to comment on his ability to use that arm. It is possible that careful examination and documentation in the future can assist with that information.” (Id.) 4 28 See (last viewed on September 18, 2013) -4- 1 Champagne’s supplemental report before providing a rebuttal opinion; and 4) the costs of 2 transport and supervision for the evaluation, if any, be paid by Plaintiff. 3 III. Expert Witnesses and Treating Physicians 4 Federal Rule of Civil Procedure 26 requires parties to “disclose to the other parties 5 the identity of any witness it may use at trial to present evidence under Federal Rule of 6 Evidence 702, 703, or 705.” Fed.R.Civ.P. 26(a)(2)(A). “The Federal Rules contemplate two 7 different classes of experts: those retained or specially employed to give expert testimony 8 in a case, and witnesses who are not retained or specially employed but, nevertheless, may 9 provide expert testimony.” DeGuzman v. U.S., 2013 WL 3149323, at *2 (E.D. Cal. June 19, 10 2013) (citations omitted). In December 2010, the Federal Rules of Civil Procedure were 11 modified with the addition Rule 26(a)(2)(C), which requires certain disclosures regarding 12 an expert witness who is not required to provide a written report, such as, a treating 13 physician. 14 As amended, Rule 26(a)(2)(C), Fed.R.Civ.P., provides that “if the witness is not 15 required to provide a written report, this disclosure must state: (i) the subject matter on which 16 the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; 17 and (ii) a summary of the facts and opinions to which the witness is expected testify.” Rule 18 26(a)(2)(C), Fed.R.Civ.P. “These disclosure requirements were added ‘to mandate summary 19 disclosures of the opinions to be offered by expert witnesses who are not required to provide 20 reports under Rule 26(a)(2)(B) and of the facts supporting those opinions.’” DeGuzman, 21 2013 WL 3149323, at *2 (quoting Adv. Comm. Notes to 2010 Amendments). “Treating 22 physicians or other health care professionals are primary examples of those who must be 23 identified under Rule 26(a)(2)(A) and provide disclosures pursuant to Rule 26(a)(2)(C) as 24 they may testify as both a fact and expert witness.” Id.; see also Carrillo v. B & J Andrews 25 Enterprises, LLC, 2013 WL 394207, at *4 (D. Nev., Jan. 29, 2013). 26 Under the current Federal Rules of Civil Procedure, which govern this case, if a 27 witness is “one retained or specially employed to provide expert testimony in the case,” the 28 disclosure of his identity must be accompanied by a written report prepared and signed by -5- 1 him. Fed.R.Civ.P. 26(a)(2)(B). These witnesses are referred to as “expert witnesses.” If an 2 expert witness is not retained or specially employed, the disclosure of his or her identity must 3 also state (i) the subject matter on which he is expected to present evidence, and (ii) a 4 summary of the facts and opinions to which he is expected to testify. See Fed.R.Civ.P. 5 26(a)(2)(C). The Federal Rules of Civil Procedure do not define the terms “treating 6 physician.” Generally speaking and in the context of the Federal Rules of Civil Procedure, 7 a treating physician is a physician who is either treating or has treated a party for injuries and 8 was not “retained or specially employed” within the meaning of Rule 26(a)(2)(B). See 9 DeGuzman, 2013 WL 3149323, at *3; Silver v. Shapiro, 2011 WL 1321798, at *2 (D. Colo. 10 April 5, 2011). 11 In Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 819 (9th Cir. 12 2011), decided under the procedural rules before the addition of Rule 26(a)(2)(C), the Ninth 13 Circuit confirmed that “[g]enerally speaking, treating physicians are” not required to provide 14 a Rule 26(a)(2)(B) report to the extent a treating physician’s opinions are formed during the 15 course of treatment. To date, however, the Ninth Circuit has not addressed the sufficiency 16 of the disclosure requirements under Rule 26(a)(2)(C) when a treating physician’s opinions 17 “go beyond the usual scope of a treating doctor’s testimony” and offers expert opinion 18 evidence regarding the permanency and limitations of a plaintiff’s injuries. 644 F.3d at 819- 19 20. This is an issue this Magistrate Judge need not address at this time. 20 IV. Discussion 21 While Plaintiff describes the issue as a “discovery dispute,” doc. 53 at 2, it is more 22 accurate to label the issue as a request for judicial assistance in facilitating discovery on a 23 material, important, and disputed issue (damages) with an imprisoned party. Similar requests 24 are routinely done in federal district courts, predominantly in criminal cases in which the 25 defendant’s mental competency is at issue. See, e.g., local competency examinations in 26 criminal cases are conducted under 18 U.S.C. § 4241(a). Judicial involvement is not only 27 necessary, but required, in civil cases where the deponent is imprisoned. See Rule 28 30(a)(2)(B), Fed.R.Civ.P. (requiring district court approval before taking the deposition on -6- 1 an incarcerated deponent). A prompt evaluation of Plaintiff by Dr. Champagne at the 2 Phoenix federal courthouse benefits both sides, aides in the quest for the truth, and is 3 consistent with Rule 1, Fed.R.Civ.P., (“These rules . . . shall be construed and administered 4 to secure the just, speedy, and inexpensive determination of every action.”) (emphasis added). 5 Granting the request also facilitates Plaintiff’s ability to disclose or supplement prior answers 6 to interrogatories and disclosures regarding Dr. Champagne’s anticipated trial testimony 7 required by the Federal Rules of Civil Procedure, and offers Defendants the options to timely 8 depose Dr. Champagne and/or promptly schedule an independent medical examination 9 (“IME”) before the November 2013 deadlines. 10 It is premature to consider now most of Defendants’ multiple conditional requests if 11 Plaintiff’s Motion is granted. Much depends on when Defendants’ request an IME under 12 Rule 35, Fed.R.Civ.P., to rebut Dr. Champagne’s newly-formed opinions and when a 13 supplemental disclosure or report is provided to Defendants in the context of the new 14 deadlines to regarding expert witnesses. Of course, any timely future request that 15 Defendants’ IME be at the Phoenix courthouse will be given equal consideration. 16 Nevertheless, these issues are beyond the scope of this Magistrate Judge’s limited referral. 17 Defendants’ request that their IME expert, presently undisclosed, conduct an evaluation on 18 the same date as Dr. Champagne’s is both unworkable and impractical with Tuesday’s 19 scheduled evaluation by Dr. Champagne. This Magistrate Judge will grant Defendants’ 20 request, however, that Plaintiff pay for the costs of Dr. Champagne’s evaluation.5 21 Based on the foregoing, 22 IT IS ORDERED that Plaintiff’s Motion to Conduct Medical Examination by 23 Treating Physician, doc. 61, is GRANTED. An separate Order Securing Attendance of 24 Prisoner for Medical Exam has been entered. 25 26 27 28 5 ADOC’s Offender Information Unit has advised this Magistrate Judge’s chambers that there will be no charge to transport Plaintiff to and from Phoenix for Dr. Champagne’s evaluation. -7- 1 2 3 IT IS FURTHER ORDERED that Plaintiff shall pay all costs associated Dr. Champagne’s evaluation. Dated this 23rd day of September, 2013. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-

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