Jewell v. United States

Filing 24

ORDER granting 20 Motion to Compel. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Wayne J. Jewell
v.

Civil No. 11-cv-324-SM

United States of America
O R D E R
Currently before the court is defendant United States of
America’s motion to compel discovery (doc. no. 20).

For the

reasons that follow, the motion is granted.
Background
Plaintiff, Wayne J. Jewell (“Jewell”) brings this medical
malpractice action against the United States Department of
Veterans Affairs (“United States”).

Jewell alleges that in

“about October 2009,” he underwent a colonoscopy at the United
States Department of Veterans’ Affairs Medical Center in
Manchester (“VAMC”) which caused him harm (“hereinafter referred
to as the “subject colonoscopy”).

The VAMC has no record that

Jewell underwent a colonoscopy in 2009.

According to VAMC

records, the last colonoscopy performed on Jewell occurred on
November 20, 2008.
On January 10, 2012, the United States served
interrogatories on Jewell, seeking to discover factual

information related to his claims.

See Doc. No. 20-3.

February 13, 2012, Jewell served his answers.
4.

On

See Doc. No. 20-

He raised no objections regarding any of the

interrogatories.

The United States argues that those answers

are incomplete, and moves to compel Jewell to provide complete
responses to interrogatories 2, 3, 5, 13, and 16.

The United

States also seeks an order compelling Jewell to sign his
interrogatory answers.

I first address the signature question

and then deal with the completeness of Jewell’s answers.
Discussion
I.

Lack of Signature
Jewell has not placed his signature on his answers to

interrogatories.

He has used an electronic (“/s/”) signature.

Rule 33(b)(5) of the Federal Rules of Civil Procedure requires
that the person making answers to interrogatories “must sign
them. . . . ”

As this rule is strictly enforced, see Stanley v.

Star Transp., Inc., No. 10-cv-00010, 2010 WL 3417855, at *3
(W.D. Va. Aug. 30, 2010), an electronic signature is not
sufficient.

Additionally, Rule 26(g)(1) requires an

unrepresented party to sign every discovery response.

The court

grants the United States’ request that the court compel Jewell
to sign his February 13, 2012, interrogatory answers.

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II.

Interrogatories
Rule 26(b)(1) allows discovery of any non-privileged matter

that is relevant to any party’s claim or defense.
Civ. P. 26(b)(1).

See Fed. R.

Parties seeking broader discovery of matters

“‘relevant to the subject matter’” in the action are required to
show good cause to support the request.

In re Subpoena to

Witzel, 531 F.3d 113, 118 (1st Cir. 2008) (quoting Fed. R. Civ.
P. 26(b)(1)).
The court must limit the scope or frequency of discovery if
the information “can be obtained from some other source that is
more convenient, less burdensome, or less expensive,” or if the
“burden or expense of the proposed discovery outweighs its
likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the
issues at stake in the action, and the importance of the
discovery in resolving the issues.”

Fed. R. Civ. P.

26(b)(2)(C)(i) and (iii).
Rule 37(a) allows for motions to compel discovery.
Fed. R. Civ. P. 37(a).

See

The party moving to compel discovery

over an adversary’s objection bears the burden of showing that
the information it seeks is relevant, see Caouette v. OfficeMax,
Inc., 352 F. Supp. 2d 134, 136 (D.N.H. 2005), and that an
opposing party’s answers are incomplete or evasive, see Vaughn

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v. Bernice A. Roy Elem. Sch., No. 05-cv-223-JD, 2007 WL 1792506,
at *1 (D.N.H. June 19, 2007).

The party resisting the motion

bears the burden of establishing an applicable privilege and
showing that it has not been waived.

See Lluberes v. Uncommon

Prods., LLC, 663 F.3d 6, 24 (1st Cir. 2011); FDIC v. Ogden
Corp., 202 F.3d 454, 460 (1st Cir. 2000).
The United States requests an order directing Jewell to
provide complete responses to interrogatories 2, 3, 5, 13, and
16, which it served Jewell on January 10, 2012.

Each

interrogatory is separately discussed below.
A.

Interrogatory No. 2

Interrogatory no. 2 asks:
What was the date of the colonoscopy that you
allege was not scheduled and occurred without proper
preparation, and at what location did it occur within
the Manchester VA Medical Center?
Doc. No. 20-4, at 2.
Jewell’s response states:
The date of the colonoscopy that I allege was not
scheduled and occurred without proper preparation
should be available from the VA Medical Records. I
understand that in responding to an interrogatory
under Rule 33 I may refer you to those records. The
records that I have are the same as those of the VA.
. . . The unauthorized colonoscopy was performed at
the

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Manchester VA Medical Center, and the specific
location should be available from VA records.
Id. at 2-3.
Jewell points the United States to his VAMC medical
records.

Those records do not, however, document a colonoscopy

in October 2009.

In his objection to the motion to compel,

(doc. no. 21), Jewell indicates that he is aware of certain
chronological details in his medical history that might help in
pinpointing the exact date of the subject colonoscopy.1

It is

not clear, however, whether Jewell is aware of the location
within VAMC where the subject colonoscopy occurred.

The United

States indicates that if it knew the location within VAMC where
the subject colonoscopy occurred, it might be able to locate
records from that location.
Either way, Jewell needs to provide a complete answer to
interrogatory no. 2.

That interrogatory is relevant both to

Jewell’s claim and the United States’ defense.

Jewell shall

include in his answer any details of which he is aware regarding
the exact date of the subject colonoscopy.

If Jewell does not

know the location within VAMC where the subject colonoscopy
1

Rather than provide the United States with a supplement to
his February 13, 2012, answers, Jewell includes in his objection
to the motion to compel a “further response” to each
interrogatory. This is insufficient. As explained infra, the
court directs Jewell to provide the United States with a formal
supplement to his February 13, 2012, answers. See Fed. R. Civ.
P. 26(e)(1)(B).
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occurred, he shall so state in his answer.

The government’s

motion to compel a more complete response to interrogatory no. 2
is granted.
B.

Interrogatory No. 3

Interrogatory no. 3 asks:
With whom did you have an appointment,
immediately prior to the colonoscopy that you allege
was not scheduled and occurred without proper
preparation, including what time and what location?
Doc. No. 20-4, at 3.
Jewell’s response states:
This information should be available from the VA
records.
Id.
Jewell’s objection (doc. no. 21) indicates that he is aware
of certain details surrounding the subject colonoscopy that he
did not include in his February 13, 2012, answer to
interrogatory no. 3.

This interrogatory is relevant to both

Jewell’s claim and the United States’ statute of limitations
defense.

Jewell must answer it completely.

The government’s

motion to compel a more complete response to interrogatory no. 3
is granted.

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C.

Interrogatory No. 5

Interrogatory no. 5 asks:
Identify, including name, address, and purpose
for which they were seen, each and every non-VA
medical care provider whom you have seen for any
reason, including mental health, since January 1,
2007.
Doc. No. 20-4, at 3.
Jewell’s response states:
Did not see any non-VA medical care providers prior to
the improper colonoscopy.
Id.
The United States asks this question to obtain evidence on
the question of damages.

Jewell has alleged that he suffered

damages from the subject colonoscopy in the form of “painful
hemorrhoids, rectal bleeding, and a urine infection.”
No. 1.

See Doc.

Jewell seeks $1 million in damages.

Jewell maintains his original answer is complete.
is incorrect.

Jewell

Jewell needs to answer the question completely,

by including the names of care providers, if any, Jewell has
seen since the colonoscopy.

This interrogatory is reasonably

likely to lead to the discovery of evidence relevant to the
question of damages in this case.

The government’s motion to

compel a more complete response to interrogatory no. 5 is
granted.

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D. Interrogatory No. 13
Interrogatory no. 13 asks:
Please identify each and every colonoscopy you
have had, setting forth the date, the facility, the
medical practitioner ordering the procedure, the
medical practitioner performing the procedure, the
preparatory instructions you received and whether you
followed those instructions, and any deviations you
may have made from those instructions.
Doc. No. 20-4, at 4.
Jewell’s response states:
See answer to Interrogatory 3; there were two or
three before the improper colonoscopy.
Id.
Jewell’s answer is insufficient.

The United States has

asserted a comparative negligence defense based on Jewell’s
alleged failure to follow medical instructions after undergoing
colonoscopies at the VAMC.

This interrogatory seeks to obtain

evidence related to Jewell’s medical history, specifically his
compliance with instructions he received after undergoing
colonoscopies.

Jewell’s answer neglects to address the specific

questions posed in the interrogatory and provides no information
with respect to any colonoscopy Jewell may have undergone since
the subject colonoscopy.

A complete answer to this

interrogatory is reasonably likely to lead to the discovery of
evidence relevant to the United States’ defense of comparative

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negligence.

The government’s motion to compel a more complete

response to interrogatory no. 13 is granted.
E. Interrogatory No. 16
Interrogatory no. 16 asks:
If the colonoscopy that you allege was not
scheduled and occurred without proper preparation
occurred on a date for which your VA medical records
do not reflect that a colonoscopy was performed on
you, please set forth and describe any and all
evidence you have that such a colonoscopy actually
occurred.
Doc. No. 20-4, at 5.
Jewell’s response states:
See answer to Interrogatory 3; after the improper
colonoscopy.
Id.
As written, interrogatory no. 16 is somewhat garbled.

The

United States appears to be asking Jewell to provide “any and
all evidence” that the subject colonoscopy “actually occurred”
in light of the lack of any evidence of the subject colonoscopy
in his VAMC records.

This interrogatory, even though poorly

worded, is perfectly reasonable and Jewell must answer it.
government’s motion to compel a more complete response to
interrogatory no. 16 is granted.

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The

Conclusion
For the foregoing reasons, the United States’ motion to
compel (doc. no. 20) is granted.

Accordingly, the court orders

Jewell, on or before July 3, 2012, to: (a) sign his February 13,
2012, answers to interrogatories and provide the signed version
to the United States; and (b) provide the United States complete
answers to interrogatories 2, 3, 5, 13, and 16 in a signed
supplement to his February 13, 2012, answers.
SO ORDERED.
_____________________________
Landya B. McCafferty
United States Magistrate Judge
June 19, 2012
cc:

Wayne J. Jewell, pro se
Gretchen Leah Witt, Esq.

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