Atcherley v. Clark et al
Filing
156
ORDER GRANTING IN PART AND DENYING IN PART 115 Plaintiff's Motion to Compel Defendant Alade to Provide Further Responses to Interrogatories 5, 6, 8, 9 and 11, signed by Magistrate Judge Dennis L. Beck on 11/11/2014. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WILBUR ATCHERLEY,
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Plaintiff,
v.
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CLARK, et al.,
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Defendants.
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Case No.: 1:12cv00225 LJO DLB (PC)
ORDER REGARDING PLAINTIFF’S MOTION TO
COMPEL DEFENDANT ALADE TO PROVIDE
FURTHER RESPONSES TO INTERROGATORIES
5, 6, 8, 9 AND 11
(Document 115)
Plaintiff William Atcherley (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis
in this civil rights action pursuant to 28 U.S.C. § 1983. This action is proceeding on Plaintiff’s First
Amended Complaint, filed on March 14, 2013, for violation of the Eighth Amendment and negligence
against numerous Defendants.1 Pursuant to Court order, discovery was to be completed by September
29, 2014.
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On September 17, 2014, Plaintiff filed numerous motions to compel, including the instant
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motion. Plaintiff seeks to compel Defendant Alade to provide further responses to his First Set of
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Interrogatories, Numbers 5, 6, 8, 9 and 11.
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On September 10, 2014, the Court granted Plaintiff leave to file a Second Amended Complaint naming Doe Defendants.
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Defendant Alade opposed the motion on October 6, 2014, and Plaintiff filed his reply on
October 20, 2014. The motion is submitted for decision pursuant to Local Rule 230(l).
RELEVANT ALLEGATIONS IN FIRST AMENDED COMPLAINT
According to Plaintiff’s First Amended Complaint, Defendant Alade treated Plaintiff for a
period of time in 2010 and 2011. He performed arthroscopic surgery on Plaintiff’s left knee on
January 18, 2011, and ordered that Plaintiff use a wheelchair for two weeks and that his bandages be
kept clean and dry until his next appointment. Plaintiff alleges that just prior to the surgery, he told
Defendant Alade of a prior infection, and Defendant Alade said that he would order antibiotics for
Plaintiff after surgery. However, Defendant Alade forgot to do so.
Defendant Alade performed a second surgery on Plaintiff’s left knee on February 11, 2011, to
clean out an infection caused by poor wound care.
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The Court found that Plaintiff stated a claim for medical negligence against Defendant Alade
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based on his alleged failure to prescribe antibiotics after the first surgery.
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LEGAL STANDARD
Generally, if the responding party objects to a discovery request, the party moving to compel
bears the burden of demonstrating why the objections are not justified. E.g., Grabek v. Dickinson, No.
CIV S-10-2892 GGH P, 2012 WL 113799, at *1 (E.D. Cal. Jan. 13, 2012); Womack, 2011 WL
6703958, at *3; Mitchell v. Felker, No. CV 08-119RAJ, 2010 WL 3835765, at *2 (E.D. Cal. Sep. 29,
2010); Ellis v. Cambra, No. 1:02-cv-05646-AWI-SMS PC, 2008 WL 860523, at *4 (E.D. Cal. Mar.
27, 2008). This requires the moving party to inform the Court which discovery requests are the
subject of the motion to compel, and, for each disputed response, why the information sought is
relevant and why the responding party=s objections are not meritorious. Grabek, 2012 WL 113799, at
*1; Womack, 2011 WL 6703958, at *3; Mitchell, 2010 WL 3835765, at *2; Ellis, 2008 WL 860523, at
*4. However, the Court is vested with broad discretion to manage discovery and notwithstanding
these procedures, Plaintiff is entitled to leniency as a pro se litigation; therefore, to the extent possible,
the Court endeavors to resolve his motion to compel on its merits. Hunt v. County of Orange, 672
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F.3d 606, 616 (9th Cir. 2012); Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 635 (9th
Cir. 2005); Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002).
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An interrogatory may relate to any matter that may be inquired into under Rule 26(b), and an
interrogatory is not objectionable merely because it asks for an opinion or contention that relates to
fact or the application of law to fact. Fed. R. Civ. P. 33(a)(2) (quotation marks omitted). Parties are
obligated to respond to interrogatories to the fullest extent possible under oath, Fed. R. Civ. P.
33(b)(3), and any objections must be stated with specificity, Fed. R. Civ. P. 33(b)(4); Davis v. Fendler,
650 F.2d 1154, 1160 (9th Cir. 1981). The responding party shall use common sense and reason. E.g.,
Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008 WL 1924935, *8 (D. Kan. Apr. 30,
2008).
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DISCUSSION
Interrogatory Number 5
Interrogatory
Plaintiff had arthroscopic surgery of his left knee on January 18, 2011. Based on your
experience and training, approximately how long after the surgery would you expect a patient,
including Plaintiff, to have leakage or drainage from the wound, any part of the wound?
Response
Responding party objects on the grounds that this interrogatory calls for speculation, is compound,
and seeks expert witness testimony in violation of the timing requirements found within the Federal Rules
of Civil Procedure 26.
Analysis
For all of the interrogatories at issue, Plaintiff contends that he requests information from
Defendant Alade as a Defendant in this action who provided treatment, rather than as an expert witness.
Plaintiff believes that the interrogatories seek Defendant Alade’s “first-hand knowledge of that treatment,
the reasons for that treatment, and the plaintiff’s condition both before and after the two surgeries.” ECF
No. 115, at 3. Plaintiff argues that during his treatment, Defendant Alade “formed opinions” about
Plaintiff’s condition, and that he should be able to explore those opinions.” ECF No. 115, at 5.
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In his opposition, Defendant argues that Plaintiff is asking him to speculate “as to not only
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plaintiff’s wound leakage, but also upon every patient, regardless of background, or other factors, who
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might have the same or similar surgery.” ECF No. 133, at 5. Defendant also argues that the question calls
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for expert testimony because it does not ask for a response based on Defendant’s percipient knowledge of
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the facts of this case, but instead seeks a generalized medical inquiry.
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Defendant’s objections are without merit. While Plaintiff may use the words “expertise and
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training,” his question is aimed at his own treatment, and Defendant has the requisite knowledge to respond
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to the question. Indeed, in his motion, Plaintiff rephrases the question as, “how long after the surgery
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[would he] expect the plaintiff’s wound to leak or drain?” ECF No. 115, at 4.
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Moreover, the interrogatory does not call for speculation. It simply calls for a “what is typical”
response. As noted above, an interrogatory is not objectionable merely because it asks for an opinion or
contention that relates to fact or the application of law to fact. Fed. R. Civ. P. 33(a)(2).
Plaintiff’s motion to compel a further response to Interrogatory Number 5 is GRANTED.
Defendant must provide a further response as the question relates to Plaintiff and his treatment.
Interrogatory Number 6
Interrogatory
Based on your training and experience, what would be the appropriate treatment for a patient,
including plaintiff, who in less than 48 hours of surgery had a stitch pulled out or that fell out of one of the
incision ports alleged in plaintiff’s First Amended Compliant (FAC) (i.e., should the stitch have been
replaced, should a doctor have been consulted, should a paper stitch have been used instead)?
Response
Objection. Responding party objects on the grounds that this interrogatory calls for speculation, is
compound, and seeks expert witness testimony in violation of the timing requirements found within the
Federal Rules of Civil Procedure 26.
Analysis
The parties set forth the same arguments as above, and for the same reasons, the Court finds that
Defendant’s objections are not proper. In his opposition, Plaintiff rephrases the question as requesting “the
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appropriate treatment for the plaintiff who had a stitch pulled out within 48 hours of” Defendant Alade
placing the stitch. ECF No. 115, at 4.
Plaintiff’s motion to compel a further response to Interrogatory Number 6 is GRANTED, and
Defendant must provide a further response as the question relates to Plaintiff and his treatment.
Interrogatory Number 8
Interrogatory
Based on your training and experience, if the claims made by plaintiff in his FAC are true, would
you say that plaintiff received appropriate medical care for his condition and medical complaints or not.
Please esplain [sic] your answer either way.
Response
Objection. Responding party objects on the grounds that this interrogatory calls for speculation, is
compound, is an incomplete hypothetical, and seeks expert witness testimony in violation of the timing
requirements found within the Federal Rules of Civil Procedure 26.
Analysis
Unlike Numbers 5 and 6, Number 8 calls for an expert opinion. The interrogatory would require
Defendant Alade to offer his expert opinion as to the appropriateness of care rendered by all Defendants.
It would require Defendant Alade to go beyond his knowledge of his treatment of Plaintiff.
Accordingly, Plaintiff’s motion to compel a response to Interrogatory Number 8 is DENIED.
Interrogatory Number 9
Interrogatory
If a patient had arthroscopic surgery on his knee on January 18, 2011 and was complaining nine
days later on January 27, 2011 of increased leakage and drainage with chills and vomiting, in your
professional judgment, what would that indicate to you? Please describe your answer in as much detail as
possible.
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Response
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Responding party objects on the grounds that this interrogatory calls for speculation, is compound,
is an incomplete hypothetical, and seeks expert witness testimony in violation of the timing requirements
found within the Federal Rule of Civil Procedure 26.
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Analysis
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Defendant’s objections are without merit. Again, the question is related to Defendant Alade’s
treatment of Plaintiff and his understanding of the standard of care.
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Plaintiff’s motion to compel a further response to Interrogatory Number 9 is GRANTED and
Defendant Alade shall provide a further response as the question relates to Plaintiff and his treatment.
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Interrogatory Number 11
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Interrogatory
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Based on your training and experience and after reviewing your records of the patient and after the
surgery you performed on plaintiff on February 11, 2011 and after your examination of plaintiff after he
was admitted to San Joaquin Community Hospital and after considering the allegations made in the
complaint are you able to say with any degree of certainty how or when plaintiff became infected with
staph?
Response
Objection. Responding party objects on the grounds that this interrogatory calls for speculation, is
compound, is an incomplete hypothetical and seeks expert witness testimony in violation of the timing
requirements found within Federal Rules of Civil Procedure 26. This interrogatory further assumes facts
not in evidence (i.e., that responding part has made review of records in connection with this case.)
Analysis
Defendant’s objections are again without merit. Again, the question is related to Defendant
Alade’s treatment of Plaintiff and requests an opinion based on his treatment. The question simply
requires a “yes” or “no” answer.
Plaintiff’s motion to compel a further response to Interrogatory Number 11 is GRANTED and
Defendant Alade shall provide a further response as the question relates to Plaintiff and his treatment.
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ORDER
Plaintiff’s motion to compel is GRANTED IN PART and DENIED IN PART. Defendant Alade
SHALL provide further responses to Interrogatories 5, 6, 9 and 11 within thirty (30) days of the date of
service of this order.
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IT IS SO ORDERED.
Dated:
/s/ Dennis
November 11, 2014
L. Beck
UNITED STATES MAGISTRATE JUDGE
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