Malady v. Corizon et al

Filing 64

MEMORANDUM AND ORDER re: 52 MOTION to Compel filed by Plaintiff John Timothy Malady, 51 MOTION to Appoint Counsel filed by Plaintiff John Timothy Malady, 50 PRO SE MOTION Independent Medical Expert filed by Plaintiff John Timothy Malady. IT IS HEREBY ORDERED that plaintiff's Motion to Compel Discovery (#52) is GRANTED in part and DENIED in part as provided herein. IT IS FURTHER ORDERED that defendants shall act in accordance with thismemorandum no later than May 20, 2014. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (#51) is DENIED without prejudice. IT IS FINALLY ORDERED that plaintiff's motion to appoint independent medical experts (#50) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 4/29/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JOHN TIMOTHY MALADY,
Plaintiff(s),
vs.
CORIZON, et al,
Defendant(s).

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Case No. 1:13-CV-80 SNLJ

MEMORANDUM and ORDER
This matter is before the Court on plaintiff’s motion to compel discovery (#52), his
motion for appointment of counsel (#51), and his motion to appoint independent medical
examiner (#50).
I.

Motion to Compel (#52)
Plaintiff complains that defendants responded inappropriately to certain of his

requests for admission, interrogatories, and document requests. Plaintiff has claimed in
this case that defendants were deliberately indifferent to his serious medical conditions by
failing to provide prescription medications, a medical boot, and an orthopedic consult for
his hip and spine concerns, and by failing to treat his hypertension. Plaintiff suggests that
defendants’ failures were motivated by “cost-cutting” measures at the prison.
Under Federal Rule of Civil Procedure Rule 26(b)(1), parties may obtain discovery
“regarding any matter, not privileged, that is relevant to the claim or defense of any
party.” Relevancy is broadly construed, and “a request for discovery should be considered

relevant if there is any possibility that the information sought may be relevant to the claim
or defense of any party.” Breon v. Coca-Cola Bottling Co. of New England, 232 F.R.D.
49, 52 (D. Conn. 2005) (original emphasis). Even if relevant, however, “discovery is not
permitted where there is no need shown or compliance would be unduly burdensome, or
where harm to the person from whom the discovery is sought outweighs the need of the
person seeking the information.” Miscellaneous Docket Matter No. 1 v. Miscellaneous
Docket Matter No. 2, 197 F.3d 922, 925 (8th Cir. 1999), quoting Micro Motion, Inc. v.
Kane Steel Co., 894 F.2d 1318, 1323 (Fed. Cir. 1990). Each category of discovery
requests is discussed below.
A.

Requests for Admission

Plaintiff contends defendants provided false and misleading answers to the
following Requests for Admissions: 4, 5, 11, 12, 14, 15, 16, 23, 24 and 27. Federal Rule
of Civil Procedure 36(a) provides in pertinent part:
a party may serve on any other party a written request to admit, for purposes
of the pending action only, the truth of any matter within the scope of Rule
26(b)(1) relating to: facts, the application of law to fact, or opinions about
either.
Fed. R. Civ. P. 36(a)(1)(A). Rule 36 further provides that “a party may assert lack of
knowledge or information as a reason for failing to admit or deny only if the party states
that it has made reasonable inquiry and that the information it knows or can readily obtain
is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4)

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With respect to Requests that plaintiff contends were denied falsely, that is not a
proper subject for a motion to compel. To the extent plaintiff can prove otherwise, his
remedy lies with Federal Rule of Civil Procedure 37(c)(2).
Defendants appear to have responded appropriately to Requests for which they did
not have enough information to respond.
B.

Interrogatories

Plaintiff contends that defendants’ responses to Interrogatory Nos. 7, 8, 9, 10, and
20 are false and requests that defendants be “required to provide truthful and accurate
answers to these requests.” Plaintiff further contends that defendants raised improper
objections to Interrogatory Nos. 11, 16, 17, 18, 19 and 20.
Many of defendants’ responses included an objection on the grounds that
plaintiff’s interrogatory called for a narrative response or are overly broad and not
reasonably calculated to lead to discovery of admissible evidence. But defendants also
answered by citing to specific documents within defendants’ document production. The
Court finds that such response was proper with respect to the subject interrogatories.
However, the Court must agree with plaintiff with respect to Interrogatory Nos.
16-19. Those interrogatories seek information regarding whether defendants have money
invested in Corizon stock or options (Interrogatory No. 16), whether defendant employees
receive bonuses for personal investments or cost cutting measures (Interrogatory No. 17),
whether there is a policy to cut costs by denying or deferring prescription requests and
outside consultation requests (Interrogatory Nos. 18, 19). Defendants do not answer these

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interrogatories because they state the questions are overly broad and seek information
neither relevant to the subject matter of the litigation nor reasonably calculated to lead to
discovery of admissible evidence. However, plaintiff’s claim explicitly states that
defendants have a financial interest in denying him expensive medical treatment; his
complaint even discusses personal investment and “cost-cutting measures.” (Doc. #1 at p.
7.) Such information goes to whether defendant Corizon (which is named in addition to
individual defendants) had a policy or practice of denying prisoners medical care despite
serious medical needs in order to cut costs. Such information is relevant to plaintiff’s
claims. Defendants’ objection is therefor without merit, and they must respond (or
provide valid objections) to the identified interrogatories.
C.

Requests for Production

Plaintiff contends that defendants’ responses to Production Request Nos. 1, 6, 8,
12, and 14 are false and misleading. The Court finds that defendants’ responses are
proper with some exceptions.
First, Request No. 6 seeks “documentary evidence including ...Dr. Hakala’s
personal notes in relation to any examination of plaintiff” which were “maintained in
preparation for Dr. Hakala’s computer entries,” but “sometimes these notes differed from
Dr. Hakala’s actual computer entries.” Defendants objected on the grounds that the
requests “contains his opinions and conclusions” and refer plaintiff to 924 pages of
produced documents. Defendants state in their memorandum that they produced “over
900 pages of medical records,” but they do not explain whether those records included

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only the computer-generated records or handwritten notes as well. Any handwritten notes
made concurrently during an examination of plaintiff (regarding a problem at issue in this
lawsuit) would likely be relevant to this lawsuit, and such notes are therefore
discoverable.
Request No. 12 seeks “Outline of any directives, policies, protocols referencing
prescription writing procedures for Corizon doctors.” The request goes on to state, as an
aside, that plaintiff believes there is a conflict between what Corizon has stated to courts
in the past and what prisoners experience. Defendants object on the ground that it is not a
proper request for documents and that it is overly broad and seeks information neither
relevant to the subject matter of the litigation nor reasonably calculated to lead to
discovery of admissible evidence. The Court disagrees. Corizon’s policies and/or
protocol for prescription writing is relevant to plaintiff’s claim, and defendants should
produce responsive documents. Plaintiff’s editorial comments do not render the request
invalid.
Finally, the Court notes that plaintiff’s Request No. 14 states “Provide the date that
Corizon discovered that Plaintiff suffered from chronic kidney disease.” Defendants do
not object, but they refer plaintiff to the 924 pages of produced documents. Because this
question would be more appropriately phrased as an interrogatory, the Court will not
require further response.

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D.

Other Discovery Concerns

Finally, plaintiff questions some perceived irregularities in defendants’ responses.
He accuses defendants’ counsel of having someone else sign her name and send the
responses to him — indeed, an attorney at counsel’s Chicago office participated in the
preparation of the responses and sent the responses to plaintiff. There is nothing
untoward about counsel’s coordination with other attorneys at her firm.
II.

Plaintiff’s Other Pending Motions
Plaintiff’s motion to appoint counsel will denied without prejudice for the same

reasons outlined in the Court’s earlier orders denying similar motions. Plaintiff’s motion
to appoint independent medical experts will also be denied. The Court recognizes that
some cases — and perhaps, someday, this case will — require the assistance of medical
experts. However, the motion will be denied.

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Accordingly,
IT IS HEREBY ORDERED that plaintiff’s Motion to Compel Discovery (#52) is
GRANTED in part and DENIED in part as provided herein.
IT IS FURTHER ORDERED that defendants shall act in accordance with this
memorandum no later than May 20, 2014.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel
(#51) is DENIED without prejudice.
IT IS FINALLY ORDERED that plaintiff’s motion to appoint independent
medical experts (#50) is DENIED.
Dated this 29th day of April, 2014.

___________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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