Henricks v. Pickaway Correctional Institution et al

Filing 197

ORDER granting 191 Motion for Order to; granting 192 Motion to Vacate; Counsel directed to file a joint proposed scheduling order to the Court or schedule a telephone conf w/ the Magistrate Judge Abel w/in 14 days of the date of this Order. Signed by Magistrate Judge Mark R. Abel on 9/21/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

:

John Henricks,

v.
Pickaway Corr. Inst., et al.,
Defendants.

:

Civil Action 2:08-cv-580

:

Plaintiff

Judge Smith

:

Magistrate Judge Abel

:
ORDER

On May 18, 2012, Plaintiff took the deposition of Dr. Iva Gonzales-Lockhart
(“Gonzales”). Gonzales is one of two remaining defendants in this action. Plaintiff
alleges that, while he was incarcerated and recovering from major abdominal surgery,
Gonzales, the medical director of his institution, was deliberately indifferent to his
severe pain. Specifically, he alleges that she discontinued the Neurontin he had been
prescribed and substituted ineffective Motrin instead. This matter is before the
Magistrate Judge on plaintiff’s June 1, 2012 motions for a protective order, to conduct a
status conference, and to vacate the case schedule (docs. 191, 192 and 193).
Plaintiff’s motion for a protective order asserts that Defendant’s counsel
interfered with the deposition to the extent that he was forced to terminate it early.
Specifically, he alleges:

1

•

When Plaintiff’s counsel attempted to question Gonzales
concerning a “Kardex” prisoner medication distribution record,
specifically to ask whether the Kardex demonstrated that she had
eventually discontinued Plaintiff’s Motrin as well, Defendant’s
counsel repeatedly objected on grounds that the document spoke
for itself (May 18, 2012, Deposition of Iva Gonzales Lockhart, M.D.,
pp. 73-75, Doc. 189-1, PAGEID #1141), or that the witness had
already answered the question (id. at 51, 70-71, 73), or that counsel
was unfairly taking the witness’ answers out of context (id. at 72),
or that the witness had already provided a different explanation of
events (id. at 73), or that counsel was “trying to get her to say
something that’s not reflected by the documents” (id. at 74).

•

When Plaintiff’s counsel attempted to question Gonzales concerning the
prison facilities and medical procedures, Defendant’s counsel repeatedly
objected and deliberately coached the witness to answer that she did not
know the answer or understand the question (id. at 21, 26 ), or complained
generally that the questions were vague or overbroad (id. at 17).

•

When Plaintiff’s counsel attempted to question Gonzales generally as to
the nature of medical pain management, Defendant’s counsel repeatedly
objected on grounds that the questions related to “medical malpractice”
instead of “deliberate indifference” (id. at 31, 35-37).

•

Defendant’s counsel generally interrupted questioning and wasted
deposition time with repeated objections on grounds of relevancy or that
the question was too vague (id. at 15, 17, 20, 21, 24, 26, 27, 30, 31, 50).

In response, Defendant’s counsel denies none of these assertions. She claims
instead:
•

The conduct of Plaintiff’s counsel was intended to intimidate
Gonzales, by insinuating that she deliberately provided
substandard medical care to Plaintiff because he had been rude to
her, by “interrogating her on potential medical malpractice
violations”, by “slamming documents down in front of her”, and
by standing over her in an intimidating manner.

2

•

Defendant’s counsel legitimately objected to questioning that
seemed based upon a theory of “medical malpractice” instead of
“deliberate indifference”.

•

Plaintiff failed to exhaust extrajudicial means for resolving the
party’s differences before filing a motion for a protective order.

Plaintiff originally filed this action on June 17, 2008, well over four years ago. For
the majority of this period he proceeded pro se, and made numerous attempts to obtain
discovery from Defendants. See Docs. 39-50, 53, 72, 76, 79, 81, 87, 91, 113, 127, 128, 132,
141, 142, 148, 163. See also Doc. 98 at 1-5 (recounting history of Plaintiff’s attempts to
obtain discovery to date). These attempts were generally met either with no response at
all or with repeated requests for extensions of time to respond. The Court granted one
motion to compel (Doc. 139), and at one point ordered Defendants to file a status report
explaining how they planned to satisfy their obligations to participate in the discovery
process (Doc. 98).
The Court has reviewed the deposition of Dr. Iva Gonzales-Lockhart. (Doc. 1891.) Plaintiff’s characterization of the conduct of Defendant’s counsel is substantially
correct. Fed. R. Civ. P. 30(c)(2) provides that counsel may make objections at
deposition, but that said objections “must be stated concisely in a nonargumentative
and nonsuggestive manner”, and that counsel may instruct a witness not to answer
only “when necessary to preserve a privilege, to enforce a limitation ordered by the
court, or to present a motion” to terminate a deposition.

3

Here defendants’ counsel persistently attempted to get plaintiff’s counsel to stop
asking questions she characterized as relevant to a medical malpractice claim but not to
a deliberate indifference claim:

Mr. Mordarski: How do these pain medications work?
Ms. Wehrle: I’m going to object to this line of questioning First of all, this
isn’t a medical deliberate indifference case, and I’m making my record
now, this is a deliberate indifference case, but if you can answer that
question, go ahead.
...
Mr. Mordarski: So, I don’t understand, why didn’t you increase the
medication instead of discontinuing it?
Ms. Wehrle: Again, I’m going to object to this line of questioning. We’re
now talking about a difference of opinion between the doctor and other
sources. This is not a deliberate indifference issue. You’re discussing
medical malpractice issues. This is deliberate indifference where she just
described to you in detail why she prescribed this medication, but if you
can answer this question again, go ahead.
Mr. Mordarski: Wait. This has got to stop.
Ms. Wehrle: This has got to stop, your continual asking her to justify why
she potentially committed malpractice.
Mr. Mordarski: Why is that not relevant in this case?
Ms. Wehrle: Malpractice is not at issue.
Mr. Mordarski: I didn’t say malpractice.
Ms. Wehrle: But those are the questions you’re asking, malpractice
questions, nothing to do with deliberate indifference.

4

She treated him; she saw him. This is reflected entirely throughout
the records and it’s reflected in her testimony, but you keep trying to
harass her that she did something wrong by prescribing a different
medication. Now you’re going to into why she didn’t up the dose because
the client or the inmate asked for it. This is not a medical malpractice case.
This is deliberate indifference.
Mr. Mordarski: You’ve got to be kidding me.
Ms. Wehrle: No, I am not kidding you. It is a deliberate indifference case,
not medical malpractice. The case law is completely abundantly clear. A
difference of opinion between the doctor and inmate has no relevance in a
deliberate indifference case, 1983 action. No relevance, Estelle versus
Gamble, all the head cases.
Mr. Mordarski: Do you want to tell me what I’m allowed to ask? What
am I allowed to ask?
Ms. Wehrle: Deliberate indifference questions. Did she delay treatment?
Did she deny treatment?
Mr. Mordarski: I’m going to ask my questions. If this continues we’ll stop
and we’ll rescedhule it and get the magistrate –
Ms. Wehrle: Continuing objections now for questions that are really
pertaining to medical malpractice cases.
Mr. Mordarski: Fair enough.
(Id. at 31-32, 35-37.)
There is a substantial difference between an objection to a question based on
relevancy and a protest that plaintiff’s counsel is pursuing the wrong theory of a case.
It is also axiomatic that an attorney taking the deposition of the opposing party may ask
leading questions, or even attempt to get the opposing party to make unfavorable

5

admissions or inconsistent testimony. A deposition is likewise not the forum for
counsel to argue that testimony should be interpreted in a certain way.
The explanations of Defendant’s counsel for this course of dealing are
unsatisfactory. The transcript does not demonstrate that Plaintiff’s counsel was
attempting to harass Dr. Gonzales. The court reporter filed an affidavit stating that she
does not recall any document-slamming incident or any attempts to intimidate the
witness by standing over her. See doc. 195-1. Defendant’s argument that testimony
would demonstrate only prospective medical malpractice, not deliberate indifference, is
a matter for summary judgment, and plaintiff’s questioning was not irrelevant to the
process of obtaining the facts about what medication Plaintiff received, when, and why.
Plaintiff’s counsel terminated the deposition after a further skirmish with
defendants’ counsel about whether a line of questions was objectionable because the
questions had previously been asked and answered:
Mr. Mordarski: Okay. But my question was, the Kardex, the page where
the Neurontin was discontinued shows that the Motrin stopped well
before the Neurontin stopped; is that correct?
Ms. Wehrle: I’m going to object. The document speaks for itself and she’s
provided an explanation, but if you can, go ahead, answer it again.
Mr. Mordarski: I’m going to ask you stop doing speaking objections.
Ms. Wehrle: I’m going to ask you to stop harassing the witness.
Mr. Mordarski: Doctor, can you answer my question?

6

The Witness: I’m trying to figure out because it’s very - - doesn’t make
sense. There is no order her to stop the medication at this time. I don’t
have any order to stop Motrin at this time.
Mr. Mordarski: Okay. But the Kardex shows he’s not getting Motrin; is
that correct?
Ms. Wehrle: Objection. Asked and answered. Go ahead.
Mr. Mordarski: Doctor?
The Witness: He is receiving the Neurontin - - he is receiving the
Neurontin, the tapering of the Neurontin, at the same time that he was
prescribed the Motrin.
Mr. Mordarski: But that’s not what my question was. My question was,
the Kardex shows he’s not getting the Motrin; is that correct?
Ms. Wehrle: Objection. She’s asked and answered.
Mr. Mordarski: She’s not answered my question. That’s an improper
objection. Please stop the speaking objections.
Ms. Wehrle: Well, quit asking her the same questions she’s already
answered.
Mr. Mordarski: Doctor, can you answer my question? The Kardex shows
that he was not getting the Motrin when the Neurontin was being
discontinued?
Ms. Wehrle: Objection. She already explained he was.
The Witness: Can I speak to you?
Ms. Wehrle: You have to answer his question.
The Witness: it shows that he was receiving Neurontin at the time that he - that he was taking the Motrin.
Mr. Mordarski: Correct. And then after the 2nd of that month, the Motrin
was stopped and the Neurontin continued until the 14th, and then the
Neurontin stopped, correct?

7

Ms. Wehrle: Objection. That’s a mischaracterization of her testimony.
Mr. Mordarski: I’m talking about the document, and your continued
speaking objections are inappropriate.
Ms. Wehrle: Well, you’re inappropriate questioning when you’re trying
take things out of context that she’s telling you.
Id. at 69-72, PAGEID# 1136-1139. Defense counsel’s interjections continued, and
plaintiff’s counsel terminated the deposition:
Mr. Mordarski: Doctor, I’m talking about the document in front of you,
Exhibit F. Exhibit F shows that the Motrin was stopped on the 2nd; is that
correct.
Ms. Wehrle: Objection. She already said it doesn’t show that.
Mr. Mordarski: Stop the speaking objections.
Ms. Wehrle: Stop asking her the same question.
Mr. Mordarski: She hasn’t answered my question.
Ms. Wehrle: She told you why it’s reflected that way, and we said the
document speaks for itself.
Mr. Mordarski: Doctor, do you understand my question? You can anser it.
The Witness: Yes.
Mr. Mordarski: You understand my question, right?
The Witness: Yes.
Mr. Mordarski: And we agreed on Exhibit K, which is a Kardex, that there
was an Imodium, which was a carry medication, correct?
The Witness: What was the date of this?
Mr. Mordarski: I don’t know. Those are the records that I got.
8

The Witness: I cannot tell you - - I cannot tell you because - Mr. Mordarski: Doctor - The Witness: I need the orders that say carry or not carry. If carry, maybe
he was not taking it. So, I need to see that it says carry.
Mr. Mordarski: If you look at the Kardex, and I’m asking you to look at
the Kardex, okay, the Kardex indicates that it was stopped; is that correct?
The Witness: Yes.
Mr. Mordarski: And that’s because there’s a vertical line, correct?
The Witness: Yes.
Mr. Mordarski: The Kardex - Ms. Wehrle: No. Do the whole document and the word stop.
Mr. Mordarski: Please stop speaking objections.
Ms. Wehrle: You stop trying to get her to say something that’s not
reflected by the documents.
Mr. Mordarski: Please stop.
Ms. Wehrle: You please stop - Mr. Mordarski: All right. We’re done. We’re going to suspend the
deposition. We’re going to have to talk to the magistrate about the
objections.
Id. at 73-75.
Plaintiff’s June 1, 2012 motion for a protective order (doc. 191) is GRANTED in
part. Plaintiff may redepose Dr. Gonzales at the federal courthouse in Columbus.

9

Defendant is ORDERED to pay the $429.60 court reporter and transcript fee. Plaintiff’s
request for attorney fees is DENIED.
Plaintiff’s motion is DENIED with respect to medical records. The Court is
satisfied with Defendant’s explanation that the records were produced as they are now
kept in archive by the state government upon an inmate’s release from prison, which,
though it may now produce an inconvenience for Plaintiff, satisfies the “ordinary
course of business” standard.
Plaintiff’s motions to conduct a status conference and to vacate the case schedule
(docs. 192 and 193) are GRANTED. Counsel are DIRECTED to file a joint proposed
scheduling order to the Court or schedule a telephone conference with me within
fourteen (14) days of the date of this Order.
Under the provisions of 28 U.S.C. §636(b)(1)(A), Rule 72(a), Fed. R. Civ. P. and
Eastern Division Order No. 91-3, pt. F, 5, either party may, within fourteen (14) days
after this Order is filed, file and serve on the opposing party a motion for
reconsideration by the District Judge. The motion must specifically designate the order,
or part thereof, in question and the basis for any objection thereto. The District Judge,
upon consideration of the motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.

s/Mark R. Abel
United States Magistrate Judge

10