Atcherley v. Clark et al

Filing 158

ORDER GRANTING IN PART AND DENYING IN PART 123 Plaintiff's Motion to Compel Defendant Alade to Provide Further Responses to Interrogatories 15-18 and 20-24, 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
15-18 AND 20-24
(Document 123)

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 Third Set of
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Interrogatories, Numbers 15-18 and 20-24.

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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.
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
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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

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Interrogatory Number 15

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Interrogatory

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As the plaintiff’s treating physician and/or surgeon for the plaintiff’s Left Knee arthroscopic
knee surgery on January 18, 2011, please state the approximate amount of time that you would expect
his wounds to leak or drain, if any.

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Response

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Objection: Responding party objects on this basis that this interrogatory calls for expert
testimony.

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Analysis

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In the Court’s order regarding Plaintiff’s First Set of Interrogatories, it explained the parties
positions as to whether the interrogatory calls for expert testimony, and it will not repeat those arguments
here.
Defendant’s objection is overruled. As Defendant Alade has in other discovery responses, he again
contends that this interrogatory asks a “generalized medical inquiry to Dr. Alade and asking that he
respond as to what he would ‘expect’ to see in this patient.” ECF No. 134, at 4. Contrary to Defendant’s

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characterization, the interrogatory asks a direct question about his treatment of Plaintiff, and Defendant has
the requisite knowledge to respond to the question.
Plaintiff’s motion to compel a further response to Interrogatory Number 15 is GRANTED.
Defendant must provide a further response as the question relates to Plaintiff and his treatment.
Interrogatory Number 16
Interrogatory
As the treating physician and/or surgeon for plaintiff’s left knee arthroscopic surgery on January
18, 2011, would you have been concerned if the plaintiff reported that his wound was draining increasingly
heavier each day from January 23, 2011 through February 4, 2011 when plaintiff was admitted to San
Joaquin Community Hospital (i.e., 5, 7, 10 days following surgery)?
Response
Objection. Responding party objects on this basis, that this interrogatory calls for expert witness
testimony and calls for speculation.
Analysis
Again, this question does not call for expert testimony because it is directly related to Defendant
Alade’s treatment of Plaintiff. Insofar as Defendant argues that the interrogatory is speculative, the
objection is overruled. While Defendant may not agree with the facts set forth, the interrogatory does not
require Defendant to speculate as to any facts.
Plaintiff’s motion to compel a further response to Interrogatory Number 16 is GRANTED and
Defendant must provide a further response.
Interrogatory Number 17
Interrogatory
As the treating physician and/or surgeon for plaintiff’s left knee arthroscopic surgery on January
18, 2011, would you have wanted to be notified by a patient, including the plaintiff, if the wound was
draining 7 and 10 days after the surgery?

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Response
Objection. Responding party objects on the grounds that this interrogatory calls for expert witness
testimony, calls for speculation, is compound, and is an incomplete hypothetical.
Analysis
This request does not call for expert witness testimony for the same reasons discussed above.
Defendant’s remaining objections are overruled. Again, while Defendant Alade may not like the facts set
out, it does not mean that the interrogatory is speculative, or based on an incomplete hypothetical.
In opposing Plaintiff’s motion to compel, Defendant often makes the requests far more complicated
than they actually are. For example, Defendant Alade argues that this interrogatory is “impossibly

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compound” because “it seeks answers to whether Dr. Alade would want to be notified seven days after

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surgery, ten days after surgery, and from where and what type of drainage was occurring.” ECF No. 134,

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at 7. The request, however, simply states, “drainage,” and requires little more than a “yes” or “no” answer.

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Plaintiff’s motion to compel a further response to Interrogatory Number 17 is GRANTED and
Defendant must provide a further response.
Interrogatory Number 18
Interrogatory
Please state the minimum amount of time that a patient’s knee arthroscopic surgery (including the
plaintiff) might normally be expected to drain following surgery before the wound closes up. (I want to
know what you would have told me if I asked you this question in your office as your patient and I asked,
“what should I do if I am draining 7 or 10 days after surgery, heavier each day”).
Response
Objection: Responding party objects on this basis that this interrogatory calls for expert witness
testimony, is compound, calls for speculation, and is an incomplete hypothetical.
Analysis
This request does not call for expert testimony because it deals directly with Defendant’s treatment
of Plaintiff during and after the January 18, 2011, surgery. However, the Court agrees that the part of the

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question in parenthesis would require Defendant Alade to speculate as to how he would have treated
Plaintiff.
Accordingly, Plaintiff’s motion to compel a further response to Interrogatory Number 18 is
GRANTED IN PART. Defendant shall provide a response only to the first sentence, insofar the question
relates to his treatment of Plaintiff after the January 18, 2011, surgery.
Interrogatory Number 20
Interrogatory
Is it possible or even likely that a patient, including the plaintiff, could have developed a staph
(MRSA) infection from having dirty or constantly wet bandage that was changed only once every three or

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so days? (You are not being asked as a expert witness, but as plaintiff’s surgeon for the January 18, 2011

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surgery in which you wrote Physicians order to “maintain dressing clean and dry.)

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Response
Objection. Responding party objects on this basis that this interrogatory calls for expert witness
testimony, is compound, calls for speculation, and is an incomplete hypothetical.
Analysis
Defendant’s objections are well taken. Plaintiff’s motion is denied.
Interrogatory Number 21
Interrogatory
When you did plaintiff’s January 18, 2011 left knee arthroscopic surgery and write the postoperative order to keep the plaintiff’s dressing clean and dry, was it your intention that plaintiff’s bandage
be changed whenever it was dirty or wet, as to conform with your post-operative order? (I want to know
what you meant when you wrote the order and if it constitutes a bandage change order per se)
Response
Objection: Responding party objects on this basis that this interrogatory calls for expert witness
testimony, is compound, calls for speculation, and is an incomplete hypothetical.

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Analysis
The question is directly related to an order written by Defendant Alade, and Plaintiff is entitled to
explore his rationale. However, although Plaintiff may have been trying to explain his request, the portion
of the request in parenthesis confuses the issue. Defendant need only provide a response to the first

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sentence of the interrogatory. As Plaintiff states in his motion, the interrogatory requires only a “yes” or

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“no” response.

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Plaintiff’s motion to compel a further response to Interrogatory Number 21 is GRANTED IN
PART and Defendant Alade shall provide a further response as the question relates to Plaintiff and his
treatment.
Interrogatory Number 22
Interrogatory
In response to plaintiff’s request for admission no. 47, you stated that in the calendar year 2011 you
did not normally order post-operative antibiotics on a prophylactic basis. Is it possible that you would
have considered ordering antibiotics for an inmate patient who informed you that he had recently has an
infection that he was not quite over (I want to know if it is possible that you told the plaintiff you would
order antibiotics because of his recent infection.)
Response
Objection: Responding party objects on this basis that this interrogatory calls for expert witness
testimony, is compound, calls for speculation, and is an incomplete hypothetical.
Analysis
This request does not call for expert testimony because it deals directly with Defendant’s treatment
of Plaintiff during and after the January 18, 2011, surgery. However, the Court agrees that, as written, the
would require Defendant Alade to speculate as to how he would have treated Plaintiff.
Nonetheless, asking whether it was possible that Defendant Alade told Plaintiff that he would order
antibiotics is a proper interrogatory. Indeed, in his motion, Plaintiff states that he only wanted to know “if
it was possible that [Defendant] told the plaintiff that he would order antibiotics. . .” ECF No. 123, at 4.
Plaintiff also state that it requires a “yes” or “no” response.

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Plaintiff’s motion to compel a further response to Interrogatory Number 22 is GRANTED IN
PART. Defendant Alade shall provide a further response as whether it was possible that he told Plaintiff
that he would order antibiotics.
Interrogatory Number 23
Interrogatory
Please state whether or not a your physician’s order to maintain “dressing clean and dry”
encompasses the need to change a bandage that becomes wet and/or dirty.
Response
Objection: Responding party objects on this basis that this interrogatory calls for expert witness
testimony and is compound. Without waiving and subject to said objections, responding party responds:
responding party’s order is straightforward—maintain the patient’s dressing in a clean and dry state.
Analysis
Defendant argues that he has responded to this interrogatory, and that the order speaks for itself.
However, Plaintiff is entitled to ask Defendant Alade to further explain his order. The interrogatory is
proper and requires only a “yes” or “no” response.
Plaintiff’s motion to compel a further response to Interrogatory Number 23 is GRANTED and
Defendant Alade shall provide a further response.
Interrogatory Number 24
Interrogatory
Please state in detail exactly what order to maintain dressing clean and dry meant in medical terms
as to the doctor who performed surgery on the plaintiff and wrote said order. (I want to know what your
expectations were, of who, and who your instructions were to since the inmate patient isn’t given a copy of
the “Physician’s Order.”).
Response
Objection: Responding party objects on this basis that this interrogatory calls for expert witness
testimony and is compound. Further objection on the grounds that this interrogatory is vague and
ambiguous, unintelligible as phrased, and calls for expert testimony as to “expectations.” Without waiving

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and subject to said objections, responding party responds: The order in question is meant to maintain the
patient’s dressing in a clean and dry state.
Analysis
Defendant again argues that he has sufficiently responded to this interrogatory. In this case, the
Court agrees. While it can be confusing to a pro se plaintiff when a responding party provides an answer

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after listing boilerplate objections, Defendant Alade’s response answers “what the order. . . meant.”

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Moreover, although Plaintiff states he wants an explanation in “medical terms,” such an explanation would

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not include what his expectations were of other health care providers.
Plaintiff’s motion to compel a further response to Interrogatory Number 24 is DENIED.

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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 15, 16, 17, 18, 20, 21, 22 and 23 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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