Clark v. Lombardi

Filing 71

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion to Modify the Existing Case Management Order (Doc. No. 62) is GRANTED. IT IS FURTHER ORDERED that the parties shall submit an amended joint scheduling plan no later than May 21, 2012. IT IS FINALLY ORDERED that the Joint Motion to Stay Deadlines under the Case Management Order (Doc. No. 69) is DENIED as moot. (Joint Scheduling Plan due by 5/21/2012.) Signed by Honorable Audrey G. Fleissig on 5/10/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

AARON CLARK,

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Plaintiff,
v.
GEORGE LOMBARDI, et al.,
Defendants.

No. 2:10CV00066 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Modify the Existing Case
Management Order (Doc. No. 62). Defendants have opposed the motion as untimely and
futile. Also pending is a Joint Motion to Stay Deadlines Under the Case Management
Order (Doc. No. 69).
Background
On October 20, 2010, Plaintiff filed a pro se complaint in federal court under 42
U.S.C.§ 1983. He alleges that he is a severely disabled, paralyzed Missouri inmate
presently residing at the Northeast Correctional Center. He further alleges that, while
housed at the Western Missouri Correctional Center in April 2009, he was attacked and
rendered unconscious, resulting in a spinal cord injury. Plaintiff claims that the named
Defendants were deliberately indifferent to his medical needs in the diagnosis and
treatment of his injury. (Compl., Doc. No. 1)

On November 19, 2010, the Court appointed Amy Ohnemus as counsel for the
Plaintiff. (Doc. No. 7) The Court issued its Case Management Order (“CMO”) on July
26, 2011. (Doc. No. 46) On March 13, 2012, John H. Norton also entered his
appearance on behalf of Plaintiff, and he filed a Motion to Modify the Existing Case
Management Order on March 29, 2012. (Doc. Nos. 60, 62) In that motion, Plaintiff
asserts that appointed counsel had limited funds to pursue Plaintiff’s claims and to retain
experts. After review of Plaintiff’s complaint, Mr. Norton desires to consult with experts
regarding a possible medical negligence claim. Given the expired deadlines in the CMO
and Mr. Norton’s recent entry into the case, Plaintiff requests that the Court amend the
CMO to extend discovery deadlines, the ADR referral, and the amendment of pleadings.
Defendants oppose Plaintiff’s motion on the basis that the motion is untimely and would
be futile under the Missouri statute pertaining to medical malpractice claims, Mo. Rev.
Stat. § 538.225.6. (Doc. Nos. 64, 65, 66)
Discussion
Plaintiff contends that this Court should grant his motion to modify the CMO
because the request is made in good faith with good cause. Plaintiff also asserts that his
medical negligence claim relates back to his original complaint under Fed. R. Civ. P.
15(c) because it arises out of the same conduct, transaction, or occurrence set out in the
original Complaint. Defendants, on the other hand, argue that Plaintiff has failed to
demonstrate good cause for the delay, given the fact that counsel was appointed over a
year ago and had possession of medical and mental health records related to the treatment
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of Plaintiff’s injuries that are the subject of this litigation. Further, Defendants maintain
that adding a medical malpractice claim would be futile because, assuming the new claim
does relate back to the original complaint, Plaintiff failed to file a timely affidavit in
support under Mo. Rev. Stat. § 538.225.
In response, Plaintiff contends that good cause exists because appointed counsel
did not have funds to retain experts to evaluate a possible medical malpractice claim, nor
is appointed counsel experienced in medical malpractice actions. Further, Plaintiff’s
incarceration causes difficulties in the investigation of his claims. In addition, Plaintiff
maintains that a potential medical malpractice claim does relate back to the complaint
because it arose out of the occurrence set out in the original pleading.
A. Good Cause
After review of the motion and the responses thereto, the Court will grant
Plaintiff’s motion to modify the CMO. Under Fed. R. Civ. P. 16(b)(4), “[a] schedule
may be modified only for good cause and with the judge’s consent.” Here, the Plaintiff
acknowledges that the deadlines set forth in the CMO have expired but contends that
good cause exists to amend the CMO. Specifically, Plaintiff notes that only when
retained counsel became involved did the possibility of a medical malpractice claim arise,
after which he promptly filed the present motion. Plaintiff’s counsel seeks additional
time to investigate Plaintiff’s claims and file an amended complaint, should the
investigation warrant such amendment.
The undersigned finds that Plaintiff has demonstrated good cause for amending the
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CMO. “The primary measure of good cause is the movant’s diligence in attempting to
meet the order’s requirements.” Rahn v. Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)
(citation omitted). Here, the Defendants do not appear to question appointed counsel’s
diligence, noting that Plaintiff had procured nearly 3,000 pages of medical and mental
health records through the discovery process. Defendants claim, however, that
continuing written discovery has failed to produce any additional information that would
give rise to facts previously unknown to Plaintiff’s counsel which support a claim of
medical malpractice.
The Court notes that appointed counsel has been diligent in her efforts to represent
the Plaintiff in his § 1983 action. Upon the retention of new counsel with expertise in the
area of medical malpractice, counsel promptly filed a motion to modify the CMO.
Further, the fact that Plaintiff is indigent, continues to be incarcerated, and is confined to
a wheelchair has limited counsel’s ability to fully investigate a possible medical
malpractice claim. Therefore, the undersigned finds that good cause exists to modify the
CMO.
B. Relation Back
Defendants argue that any medical malpractice claim would not relate back and
would be futile, such that the Court should deny Plaintiff’s motion. Plaintiff, on the other
hand, asserts that relation back merely determines whether a claim falls within the statute
of limitations period and is not determinative for other filing requirements.

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Under Fed. R. Civ. P. 15(c), “[a]n amendment to a pleading relates back to the
date of the original pleading when . . . the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out – or attempted to be set out –
in the original pleading.” Here, the parties do not dispute that, if Plaintiff files an
amended complaint adding a medical malpractice claim, the claim is based on the same
transaction or occurrence set forth in Plaintiff’s original complaint. Instead, Defendants
contend that any amendment adding a claim for medical malpractice would be futile
because Plaintiff did not timely file the required statutory health care affidavit within 180
days of filing his complaint. The Court declines to address the futility argument at this
time. The parties can more fully brief the issue in a motion to dismiss, should the
Plaintiff amend the complaint to add a medical malpractice claim. The undersigned is
aware of the potential inconvenience an amended complaint may cause the Defendants.
Therefore, the Court will afford Defendants ample opportunity to adequately address any
additional claims.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Modify the Existing Case
Management Order (Doc. No. 62) is GRANTED.
IT IS FURTHER ORDERED that the parties shall submit an amended joint
scheduling plan no later than May 21, 2012.

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IT IS FINALLY ORDERED that the Joint Motion to Stay Deadlines under the
Case Management Order (Doc. No. 69) is DENIED as moot.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 10th day of May, 2012.

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