Skean v. Hopkins et al
Filing
42
ORDER AND OPINION granting 24 MOTION for Partial Summary Judgment, granting in part 23 MOTION to Compel, granting 20 MOTION to Compel Signed by Honorable Margaret B Seymour on 7/31/2013. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Andrea Skean,
)
)
Plaintiff,
)
v.
)
)
Truman A. Hopkins, DDS and
)
Northwood Family Dentistry,
)
)
Defendants.
)
____________________________________)
Civil Action No. 3:12-01837-MBS
ORDER AND OPINION
Plaintiff Andrea Skean (“Plaintiff”) filed this professional malpractice action seeking to
recover damages from Defendants Truman A. Hopkins, DDS (“Hopkins”), and Northwood
Family Dentistry (“NFD”) (collectively “Defendants”).
(ECF No. 1.)
Defendants deny
committing the acts of malpractice alleged by Plaintiff. (ECF No. 7.) This matter is before the
court on Plaintiff’s motion for partial summary judgment, Plaintiff’s motion to compel, and
Plaintiff’s motion to determine the sufficiency of Defendants’ responses to Plaintiff’s “Second
Discovery Requests” (the “sufficiency motion”). (ECF Nos. 20, 23, 24.) For the reasons set
forth below, the court GRANTS Plaintiff’s motion for partial summary judgment; GRANTS
Plaintiff’s motion to compel; and GRANTS in part and DENIES in part Plaintiff’s sufficiency
motion.
I.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is the natural mother and guardian of a minor daughter, “A.S.,” who is now 12
years old. (ECF No. 1 at p. 2 ¶ 7.) Plaintiff alleges that A.S. was provided professionally
negligent dental treatment by Defendants from 2008 through 2009. (Id. at 2-3.) Specifically,
1
Plaintiff alleges that she took A.S. to see Hopkins on May 6, 2008, and he took a panorex x-ray
of A.S.’s teeth and jaws. (Id. at 2 ¶ 10.) Plaintiff further alleges that the panorex x-ray showed
deviations from normal anatomy in A.S.’s lower jaw. (Id.) According to Hopkins, he saw a dark
spot on the film, noted it and concluded it was a radiolucency. (ECF No. 24-1 at 2-3.) However,
Hopkins neither informed Plaintiff about the alleged deviations or radiolucency nor referred A.S.
to another dental provider for further evaluation. (ECF No. 1 at 2-3.)
On July 13, 2009, Hopkins examined A.S. and noticed abnormal swelling around her
lower jaw. (Id. at 3 ¶ 13.) After allegedly reviewing again the May 6, 2008 panorex x-ray,
Hopkins referred A.S. to an oral surgeon who diagnosed A.S. with a lesion. (Id. at ¶ 14.)
Plaintiff alleges that as a result of Hopkins’ failure to appropriately review the May 6, 2008
panorex x-ray and failure to timely diagnose and/or treat the lesion in A.S’s lower jaw, the lesion
grew in size and affected a larger portion of A.S.’s teeth and jaw, making treatment of the lesion
more invasive and expensive. (Id. at ¶¶ 15-17.)
In accordance with the requirements of statutory law in South Carolina regarding claims
of medical malpractice, Plaintiff filed a “Notice of Intent to File Suit” in the Lexington County
(South Carolina) Court of Common Pleas on April 25, 2011.1 (ECF No. 20 at 2.) Thereafter, the
1A
party alleging medical malpractice in South Carolina must undertake the following:
Prior to filing or initiating a civil action alleging injury or death as a result of medical
malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit
and an affidavit of an expert witness, subject to the affidavit requirements established
in Section 15-36-100, in a county in which venue would be proper for filing or
initiating the civil action. The notice must name all adverse parties as defendants,
must contain a short and plain statement of the facts showing that the party filing the
notice is entitled to relief, must be signed by the plaintiff or by his attorney, and must
include any standard interrogatories or similar disclosures required by the South
Carolina Rules of Civil Procedure. Filing the Notice of Intent to File Suit tolls all
2
parties took part in pre-suit mediation on March 27, 2012.2 (Id. at 3.) However, the parties were
unable to reach an agreement disposing of the matter at mediation. (Id.)
On July 3, 2012, Plaintiff filed a complaint in this court against Defendants, alleging
dental malpractice.3 (ECF No. 1.) On August 8, 2012, Defendants filed their answer, denying
Plaintiff’s claims. (ECF No. 7.) In conjunction with the parties joint Fed. R. Civ. P. 26(f)
report, the current amended scheduling order was entered on September 17, 2012, which order
requires Defendants to disclose their experts by May 24, 2013, and discovery to be completed no
later than July 19, 2013. (ECF No. 17.)
Plaintiff served “First Discovery Requests” on Defendants on September 5, 2012. (ECF
No. 20 at 4.) Defendants responded to the First Discovery Requests on or about October 29,
2012. (ECF No. 20-1 at 7.) On November 30, 2012, Plaintiff filed a motion to compel, seeking
complete responses to the First Discovery Requests. (ECF No. 20.) Defendants filed opposition
to Plaintiff’s motion to compel on December 17, 2012. (ECF No. 21.)
Plaintiff served Second Discovery Requests on Defendants on December 17, 2012. (ECF
applicable statutes of limitations. The Notice of Intent to File Suit must be served
upon all named defendants in accordance with the service rules for a summons and
complaint outlined in the South Carolina Rules of Civil Procedure.
S.C. Code Ann. § 15-79-125(A).
2 In medical malpractice actions in South Carolina, parties are required to participate in a mediation
conference within 90 days and no later than 120 days from the service of the Notice of Intent to File
Suit. S.C. Code Ann. § 15-79-125©.
“Dental malpractice refers to medical malpractice for an injury resulting from negligent dental
work, failure to diagnose or treat a hazardous condition, delayed diagnosis or treatment of oral
disease, or any intentional misconduct on the part of the dentist.” Av vo, http://www.avvo.com
/legal-guides/ugc/have-you-suffered-from-dental-malpractice (last visited July 31, 2013); e.g.,
Dental Malpractice Group, http://dentalmalpracticegroup.com /what-is-dental-malpractice/ (last
visited July 31, 2013) (“Dental malpractice is a form of medical malpractice dealing with injuries
that occur during dental visit.”). For purposes of this order and opinion, the court will refer to
Plaintiff’s dental malpractice claims as medical malpractice claims.
3
3
No. 28 at 1.) Defendants responded to the Second Discovery Requests on or about January 16,
2013. (ECF No. 23-1 at 16.) On January 30, 2013, Plaintiff filed her sufficiency motion seeking
review by the court of Defendants’ responses to the Second Discovery Requests. (ECF No. 23.)
Defendants filed opposition to Plaintiff’s sufficiency motion on February 18, 2013, to which
Plaintiff filed a reply in support of her motion on February 28, 2013. (ECF Nos. 25, 28.)
On January 30, 2013, Plaintiff filed a motion for partial summary judgment on the issue
of malpractice, asserting that there is not a “genuine issue of material fact as to the Defendants’
actions and conduct and the same amount to clear malpractice . . . .” (ECF No. 24.) Defendants
filed opposition to Plaintiff’s motion for partial summary judgment on February 18, 2013, to
which Plaintiff filed a reply in support of its motion on February 28, 2013. (ECF Nos. 26, 27.)
On June 27, 2013, Plaintiff filed a supplemental memorandum in support of her motion for
partial summary judgment. (ECF No. 38.)
On July 10, 2013, the court held a hearing on Plaintiff’s pending motions. (ECF No. 39.)
II.
A.
LEGAL STANDARD
Summary Judgment Generally
Summary judgment should be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect the
disposition of the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242,
248–49 (1986). A genuine question of material fact exists where, after reviewing the record as a
whole, the court finds that a reasonable jury could return a verdict for the nonmoving party.
Newport News Holdings Corp. v. Virtual City Vision, 650 F.3d 423, 434 (4th Cir. 2011).
In ruling on a motion for summary judgment, a court must view the evidence in the light
4
most favorable to the non-moving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
123-24 (4th Cir. 1990). The non-moving party may not oppose a motion for summary judgment
with mere allegations or denials of the movant’s pleading, but instead must “set forth specific
facts” demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 252; Shealy v. Winston, 929 F.2d 1009, 1012
(4th Cir. 1991). All that is required is that “sufficient evidence supporting the claimed factual
dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth
at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat
a summary judgment motion.” Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62
(4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in
his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The
Cmty. Coll. of Baltimore, No. 08-2023, 2009 WL 4643890, at *2 (4th Cir. Dec. 9, 2009).
B.
Medical Malpractice Claims in South Carolina
Under South Carolina law, a plaintiff in a medical negligence case bears the burden of
establishing by expert testimony both the standard of care and the defendant doctor’s failure to
conform to the standard of care. Gooding v. St. Francis Xavier Hosp., 487 S.E.2d 596, 599 (S.C.
1997). The South Carolina Supreme Court described a medical malpractice plaintiff’s burden as
follows:
To prevail in a medical malpractice suit, the plaintiff must present evidence
sufficient to satisfy the two prong test set forth in Cox v. Lund, 286 S.C. 410, 334
S.E.2d 116 (1985). The plaintiff must “(1) Present evidence of the generally
recognized practices and procedures which would be exercised by competent
practitioners in a defendant doctor's field of medicine under the same or similar
circumstances; AND (2) Present evidence that the defendant doctor departed from
the recognized and generally accepted standards, practices and procedures in the
manner alleged by the Plaintiff.” Cox, 286 S.C. at ---, 334 S.E.2d at 118.
5
In medical malpractice actions, the plaintiff must use expert testimony to
establish both the required standard of care and the defendant's failure to conform
to that standard, unless the subject matter lies within the ambit of common
knowledge and experience, so that no special learning is needed to evaluate the
conduct of the defendant. Botehlo v. Bycura, 282 S.C. 578, 320 S.E.2d 59 (Ct.
App. 1984).
Pederson v. Gould, 341 S.E.2d 633, 634 (S.C. 1986).
In addition to proving the defendant doctor’s negligence, a medical malpractice plaintiff
must also prove that the defendant’s negligence was a proximate cause of the plaintiff’s injury:
In a medical malpractice action, it is incumbent on the plaintiff to establish
proximate cause as well as the negligence of the physician. Armstrong v.
Weiland, 267 S.C. 12, 225 S.E.2d 851 (1976). Negligence is not actionable
unless it is a proximate cause of the injury complained of, and negligence may be
deemed a proximate cause only when without such negligence the injury would
not have occurred or could have been avoided. Hughes v. Children’s Clinic, P.A.,
269 S.C. 389, 237 S.E.2d 753 (1977). When one relies solely upon the opinion of
medical experts to establish a causal connection between the alleged negligence
and the injury, the experts must, with reasonable certainty, state that in their
professional opinion, the injuries complained of most probably resulted from the
defendant's negligence. Armstrong v. Weiland, supra. The reason for this rule is
the highly technical nature of malpractice litigation. Since many malpractice
suits involve ailments and treatments outside the realm of ordinary lay
knowledge, expert testimony is generally necessary. When it is the only evidence
of proximate cause relied upon, it must provide a significant causal link between
the alleged negligence and the plaintiff's injuries, rather than a tenuous and
hypothetical connection. Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910
(1978).
Ellis v. Oliver, 473 S.E.2d 793, 795 (S.C. 1996).
C.
Motions to Compel
Parties in civil litigation generally enjoy broad discovery. See Nat’l Union Fire Ins. Co.
of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 983 (4th Cir. 1992) (“[T]he
discovery rules are given ‘a broad and liberal treatment.’”) (quoting Hickman v. Taylor, 329
U.S. 495, 507 (1947)). In defining the breadth of discovery, Fed. R. Civ. P. 26(b)(1) provides
the following guidance:
6
Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense—including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the
identity and location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the subject matter
involved in the action.
Fed. R. Civ. P. 26(b)(1).
In addition to the foregoing, the rules regarding discovery allow a party to “move for an
order compelling disclosure or discovery” or “an answer, designation, production, or
inspection.” See Fed. R. Civ. P. 37(a). In this regard, Fed. R. Civ. P. 37(a)(4) provides that “an
evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose,
answer, or respond.” Id. Moreover, “[i]f the motion [to compel] is granted—or if the disclosure
or requested discovery is provided after the motion was filed—the court must, after giving an
opportunity to be heard, require the party or deponent whose conduct necessitated the motion,
the party or attorney advising that conduct, or both to pay the movant's reasonable expenses
incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5)(A). “But the
court must not order this payment if: (i) the movant filed the motion before attempting in good
faith to obtain the disclosure or discovery without court action; ii) the opposing party's
nondisclosure, response, or objection was substantially justified; or (iii) other circumstances
make an award of expenses unjust.” Id.
As part of the discovery contemplated by Fed. R. Civ. 26, a party is permitted to serve
on their opponent written requests for admission. Fed. R. Civ. P. 36(a)(1). The party requesting
admissions is further permitted to move the court to determine the sufficiency of any answer or
objection to a request for admission. Fed. R. Civ. P. 36(a)(6). The court must order that an
answer be served unless it finds that the objection was justified. Id. In addition, the court has
7
the authority to award attorney’s fees and expenses incurred by a party in “making the proof” of
a fact that an opposing party failed to admit when requested to do so. Fed. R. Civ. P. 37(c)(2).
III.
A.
ANALYSIS
The Parties’ Arguments
1.
Plaintiff’s Motion for Partial Summary Judgment
Plaintiff moves the court for partial summary judgment on the issue of Defendants’
malpractice in failing to properly investigate the radiolucency noted to be present on the May 6,
2008 panorex x-ray. In support of her motion, Plaintiff asserts that Hopkins’ own testimony
establishes that “(1) [he] looked at the panorex on May 6, 2008; (2) he saw the dark spot in
question; (3) he determined the dark spot was a radiolucency; (4) he understood the radiolucency
could either be an imaging artifact or a pathological lesion; (5) he recognized that an oral
surgeon would be the person to differentiate between the two possibilities; (6) the standard of
care is to tell the patient about the content of the panorex; (7) the standard of care is for the
dentist who takes and reviews the panorex to arrange whatever treatment is appropriate based
upon what he sees; [8] he did not tell the Plaintiff about the radiolucency; [and (9)] he did not
refer the minor child to an oral surgeon.” (ECF No. 24 at 2-3 (citing ECF No. 24-1 at 2-10).)
Plaintiff further asserts that she has submitted sufficient expert testimony that establishes the
standard of care, Defendants’ failure to conform to the standard of care, and the proximate
causation between Defendants’ failure and Plaintiff’s injury. (Id. at 3-4 (citing to ECF Nos. 242, 24-3, 24-4.).) In support of her assertion, Plaintiff first references Doctor of Dental Medicine
(“DMD”) Gregory W. Bottone (“Dr. Bottone”), who opined that:
The standard of care is for the dentist to review the panorex when it is taken, note
this sort of lesion, and refer the patient to an oral surgeon. (ECF No. 1-1, p. 2 at ¶
5.) Failure to review the film, note the lesion and make the referral is a breach of
8
the standard of care. (Id.)
In my professional judgment, [Defendants] breached the standard of care
applicable to its patient, A.S., resulting in harm to her. (Id. at 3 ¶ 9.)
As I understand his testimony, Dr. Hopkins assumed this radiolucency was some
sort of artifact from the imaging process and that it had no significance to A.S.’s
condition. (ECF No. 24-3, p. 3 at ¶ 5.) However, the quite obvious divergence of
roots and displacement of teeth cannot be explained by an imaging artifact or
poor imaging quality due to malpositioning or movement of the patient. (Id.)
The standard of care is for the dentist who takes the panorex to follow up on this
sort of radiolucency. (Id. at ¶ 6.) It is not safe and it is not prudent for a dentist to
simply assume such a radiolucency is due to some technical issue in the imaging
process rather than an indication of an anatomical or pathological abnormality.
(Id.)
In my professional judgment, Dr. Hopkins breached the standard of care
applicable to his patient, A.S., by assuming the panorex showed benign features
despite the noted divergence and displacement and by failing to take any further
steps to investigate the radiolucency which he admits he saw. (Id. at ¶ 9.)
Doctor of Dental Surgery (“DDS”) Michael J. Bannister (“Dr. Bannister”) provides
further support for Plaintiff by opining that:
I have reviewed a panorex x-ray of A.S. taken by Truman Hopkins, DDS on May
6, 2008. (ECF No. 24-4 at 2, ¶ 3.) I note an approximately 2 cm x 1 cm oval
radiolucency at the apices of the lower anterior teeth. (Id.) The standard of care
with a film like this would be to take a more detailed periapical film showing
greater detail of the borders of the radiolucency. (Id.) This would eliminate any
potential distortions from the panorex imaging process and allow the dentist to
rule out the presence of any pathology in the patient’s mandible. (Id.)
In my professional judgment, Dr. Hopkins’ conduct fell below the acceptable
standard of care for a general dentist reading a panorex x-ray. (Id. at p. 3, ¶ 5.)
Based on the foregoing opinions, Plaintiff argues that she made a “prima facie showing – based
upon undisputed facts – that the Defendants’ conduct fell below the acceptable standard of care
thereby constituting malpractice” and “[t]he only issue remaining for trial will be the extent to
which this malpractice has caused harm to the minor child.” (Id. at 5.)
9
Defendants oppose Plaintiff’s motion for partial summary judgment, arguing first that the
motion is premature because discovery is ongoing and expert discovery has yet to begin. (ECF
No. 26 at 4 (citing, e.g., Woodard v. Lane, 2012 U.S. Dist. LEXIS 166801 (D.S.C. Nov. 21,
2012) (finding summary judgment premature where Defendants had not had the opportunity to
discover information essential to their opposition and where the deadline for discovery had not
yet passed).) Defendants secondly argue that Hopkins’ testimony actually disputes many of the
facts relating to liability and the standard of care that Plaintiff asserts are undisputed. (Id. at 47.) Specifically, Hopkins disagrees with Plaintiff that the May 6, 2008 panorex demonstrated
deviations in A.S.’s jaw from a normal jaw, contained an abnormal radiolucency, or indicated a
lesion in A.S.’s lower jaw. (Id.) Hopkins further disagrees with Plaintiff that the standard of
care requires that all radiolucencies are of automatic concern and should be discussed with the
patient and referred for further treatment. (Id. at 8.) Based on the foregoing, Defendants ask the
court to deny Plaintiff’s motion for partial summary judgment.
In reply, Plaintiff argues that she is entitled to partial summary judgment because
Defendants have failed to identify any facts in genuine dispute and have failed to explain how
her “experts’ formulation of the standard of care is mistaken.” (ECF No. 27 at 1.) Plaintiff
further argues that Defendants’ claim that the motion for partial summary judgment is premature
does not absolve them of Fed. R. Civ. P. 56(d)’s requirement that “when facts are unavailable . .
. ‘a nonmovant [must] show by affidavit or declaration that, for specific reasons, if cannot
present facts essential to justify its opposition, . . . .’” (Id. at 1-2.) In support of her arguments,
Plaintiff asserts that (a) Hopkins own testimony establishes the “undisputed material facts . . .
that (1) Dr. Hopkins’ saw a radiolucency on the May 6, 2008 panorex; and (2) he did nothing
about it; and (b) her competent affidavits from two qualified dental experts establish that the
10
“undisputed standard of care is that when confronted with a radiolucency on the anterior
mandible of a panorex, the dentist taking the panorex needs to do something about it.” (Id. at 68.) Moreover, “[w]hen there exists undisputed evidence that a defendant’s conduct violated a
specifically articulated and directly applicable standard of care, a defendant does not create a
genuine issue for trial by denying he did anything wrong, by expressing a lack of concern or by
arguing over a standard of care which he has previously asserted a lack of qualifications to even
state.” (Id. at 8.) Therefore, Plaintiff asserts that she is entitled to partial summary judgment
because Defendants “failed to demonstrate any genuine issue of material fact which counters the
Plaintiff’s competent, admissible prima facie proof of dental malpractice” and “failed to identify
any specific, ‘unavailable’ document or witness ‘essential’ to their ability to respond to the
Plaintiff’s motion.” (Id. at 8-9.)
In a supplemental memorandum filed in support of her motion for partial summary
judgment, Plaintiff submitted opinions from her expert oral surgeon, Kenneth A. Storum (“Dr.
Storum”), DDS, and Defendants’ expert oral surgeon, Raymond J. Fonseca (“Dr. Fonseca”),
DMD, in addition to testimony from Hopkins’ dental hygienist, Mary Alice Leaphart
(“Leaphart”). (See ECF No. 38.) In his expert’s report, Storum concluded that:
Dr. Hopkins failed to diagnose the lesion by omission which falls below the
standard of care and is responsible for its continued growth and subsequent
hospitalizations, surgeries, treatment with toxic medications, and future
disabilities. (ECF No. 38-1 at 2.) He also fell below the standard of care when he
saw radiographic evidence of an abnormality on a 7 year old, and failed to inform
the parent. (Id.) Dr. Hopkins was specifically examining the anterior mandible,
where the lesion was located, according to his records, due to the crowding of the
mandibular anterior teeth. (Id.) His records document that the panorex
radiograph of the anterior mandible demonstrated deviations from normal
anatomy (citation omitted), but he did and said nothing which falls below the
standard of care. (Id.)
11
[I]f A.S.’s lesion was diagnosed and treated in 2008 it would have been a simple
office surgery performed with local anesthesia or light sedation and
hospitalization, general anesthesia and associated risks, an aggressive surgery to
enucleate a lesion over six times larger than its presentation in May 2008, and
treatment with dangerous chemotherapeutic drugs could have been avoided. (Id.
at 3.)
It should be understood that if A.S.’s mandibular lesion was properly diagnosed
and her parents informed in May of 2008 by Dr. Hopkins then she would not have
been placed at risk for her present treatment and/or alternative treatments. (Id. at
4.)
Dr. Fonseca neither contradicted Storum nor defined the appropriate standard of care, but
did opine that Hopkins “was remiss in recognizing the stated ‘radiolucency’ as a lesion . . . .”
(ECF No. 38-2 at 4.) Finally, Leaphart, a dental hygienist for 36 years, testified that after seeing
the “anomaly” on the panorex, Hopkins should have informed Plaintiff and referred A.S. to an
oral surgeon. (ECF No. 38-3 at 14.)
2.
Plaintiff’s Motion to Compel
Pursuant to Fed. R. Civ. P. 26, 33, 34, and 37, Plaintiff moves the court for an order
compelling Defendants to fully respond to First Discovery Requests Nos. 3, 5, 14, 15, 17 and
18.”
(ECF No. 20.)
Plaintiff complains that Defendants’ response to Request No. 3 is
insufficient because they failed to provide an answer as to whether any of A.S.’s treating
physicians have ever been hired as expert consultants for defense counsel’s firm. (Id. at 4 (citing
ECF No. 20-1, p. 3).)
As to Request Nos. 5 and 18, Plaintiff asserts that Defendants
inappropriately objected and failed to provide the names of the third parties whose conduct
allegedly caused A.S.’s injuries. (Id. at 6-7 (citing ECF No. 20-1, pp. 3, 7).) Plaintiff complains
that Defendants’ failed to provide any responses to Request Nos. 14 and 15 even though they
have had A.S.’s medical records for almost a year. (Id. at 7 (citing ECF No. 20-1, pp. 5-6).)
Finally, Plaintiff asserts that she is entitled to a response to Request No. 17 seeking the standard
12
of care for A.S.’s treatment because Defendants have alleged that their conduct was at all times
within the applicable standard of care. (Id. at 8 (citing ECF No. 20-1, p. 6).)
Defendants oppose Plaintiff’s motion to compel, arguing that the motion is an attempt to
attack the defenses in the answer and improperly shift the burden of proof to Defendants. (ECF
No. 21 at 2.) Defendants assert that their responses to Request Nos. 5 and 18 are appropriate
because “[a]t the time Defendants answered, and given the voluminous information to be
discovered, it was absolutely prudent for Defendants to assert that a third-party could be
responsible for the minor’s alleged injuries.” (Id. at 4.) Defendants further assert that their
objections to Request Nos. 14, 15, and 17 are proper because the Requests seek “to impose upon
Defendants the duty of establishing the standard of care and because it seeks premature
disclosure of expert opinions and testimony.” (Id. at 6-8.)
3.
Plaintiff’s Sufficiency Motion
Pursuant to Fed. R. Civ. P. 36(a)(6), 37(a)(4), 37(a)(5), and 37(c)(2), Plaintiff moves the
court for an order determining the sufficiency of Defendants’ responses to her Second Discovery
Requests. (ECF No. 23.) In her sufficiency motion, Plaintiff argues that Defendants failed to
properly answer Request Nos. 5, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, and
24.4 (ECF No. 23 at 2.) Plaintiff asserts that Defendants’ “Responses to Plaintiff’s Second
Discovery Requests can only be seen as evasive, non-responsive and designed to vexatiously
magnify the time and expense of resolving the parties’ dispute.” (ECF No. 23 at 5.) Therefore,
Plaintiff “asks the Court to order the Defendants to provide a clear and unequivocal answer to all
those discovery requests . . . .” (Id. at 6.)
4 In the Second Discovery Requests, Request Nos. 1, 2, and 25 were interrogatories, while Request
Nos. 3 through 24 were requests for admission. (See ECF No. 23-1.)
13
Defendants oppose Plaintiff’s sufficiency motion, arguing that the information sought in
Plaintiff’s Second Discovery Requests “prematurely requires Defendants to present expert
testimony” and improperly shifts to them “Plaintiff’s burden to prove her case through expert
testimony.” (ECF No. 25 at 3.) In this regard, Defendants assert that they adequately responded
to Request Nos. 1, 2, and 25 as best they could prior to the completion of expert discovery. (Id.
at 3-5.) Moreover, Defendants assert that they did admit Request Nos. 3, 4, 6, 7, 9, and parts of
19, 20, and 21 by craving reference to the applicable medical records. (Id. at 6.) However, they
were unable to admit or deny Request Nos. 5, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, and parts
of 19, 20, and 21, because these Requests address ultimate diagnoses by other physicians. (Id. at
7.) As a result, Defendant posed objections to these Requests because they improperly sought
“admissions and legal conclusions that go to the heart of the allegations of medical malpractice
in this case.” (Id.) Based on the foregoing, Defendants believe they have acted within the
confines of the Federal Rules of Civil Procedure and, therefore, contend that Plaintiff’s
sufficiency motion should be denied.
In reply, Plaintiff asserts that the reason for her Second Discovery Requests was “to learn
whether the Defendants would agree that giant cell granuloma is the correct diagnosis, . . . .”
(ECF No. 28 at 1.) Moreover, until the filing of their opposition to Plaintiff’s sufficiency
motion, Defendants did dispute the diagnosis of a giant cell granuloma in their responses to prior
written discovery. (Id. at 2.) As a result, Plaintiff “asks the Court to declare that the instant
motion should never have been required in the first place by ruling that the Plaintiff’s requests
for admission be deemed admitted pursuant to Rules 36(a)(6) and 37(a)(4); and by [sanctioning
Defendants] pursuant to Fed. R. Civ. P. 37(a)(5) and 37(c)(2) in order to fairly compensate
Plaintiff’s counsel for time and effort spent in bringing about the Defendants’ belated stipulation
14
of a fact which they previously denied.” (Id. at 5.)
B.
The Court’s Review
1.
Plaintiff’s Motion for Partial Summary Judgment
Upon the court’s review, Plaintiff presented uncontroverted expert testimony from Dr.
Bottone, Dr. Bannister, and Dr. Storum regarding the applicable standard of care, Defendants’
failure to conform to the standard of care, and the proximate causation between Defendants’
failure and Plaintiff’s injury. In this regard, Defendants are unable to create a genuine issue of
material fact regarding their liability for medical malpractice by (1) asserting that Plaintiff's
motion is premature, (2) offering statements from Hopkins’ denying “that any of my actions in
treating the minor A.S. fell below the standard of care” and (3) providing Dr. Fonseca’s expert
opinion that Hopkins’ failure to diagnose the lesion “did not alter [A.S.’s] ultimate treatment
regimen nor the success of the outcome that was achieved.” (ECF Nos. 17 at 2; 26-2 at 3; 38-2
at 4, 5.) Based on the foregoing, Plaintiff has satisfied her burden of establishing by expert
testimony the standard of care, Defendants’ failure to conform to the standard of care, and that
Defendants’ failure proximately caused her damages. Therefore, Plaintiff is entitled to partial
summary judgment on the issue of Defendants’ liability for medical malpractice.
2.
Plaintiff’s Motion to Compel
In the responses to the First Discovery Requests disputed by Plaintiff, Defendants stated
that responsive information would be developed through use of expert testimony or discovery.
(See, e.g., ECF No. 21-1 at 7, 8, 10.) Because Defendants have had a full opportunity to engage
in discovery, the court grants Plaintiff’s motion to compel and hereby orders Defendants to fully
supplement their responses to First Discovery Request Nos. 3, 5, 14, 15, 17, and 18, no later than
14 days after entry of this order. See Fed. R. Civ. P. 26(e) (“A party who has made a disclosure
15
under Rule 26(a)--or who has responded to an interrogatory, request for production, or request
for admission--must supplement or correct its disclosure or response: . . . (B) as ordered by the
court.”).
3.
Plaintiff Sufficiency Motion
Upon review of Defendants’ responses to the Second Discovery Requests disputed by
Plaintiff, the court will not require Defendants to supplement their answers to Requests Nos. 5,
8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 23, 24, and parts of 19, 20, and 21, because these
Requests sought to have Defendants admit or deny specific diagnoses made by other physicians.
See Tuvalu v. Woodford, Case No. 04–1724, 2006 WL 3201096, at*7 (E.D. Cal. Nov. 2, 2006)
(“[R]equests for admission should not be used . . . to ask the party to admit facts of which he or
she has no special knowledge.”) (citing Disability Rights Council v. Wash. Metro. Area, 234
F.R.D. 1, 3 (D.C. Cir. 2006)). The court will further not require Defendants to supplement their
answers to Requests Nos. 7 and the parts of 19, 20, and 21 that were admitted by Defendants.
The court does order Defendants to supplement their responses to Second Discovery Requests
Nos. 1, 2, and 25, because Defendants’ stated reservation to answering these Requests is no
longer valid.5 However, the court does not find it appropriate to grant Plaintiff sanctions
pursuant to Fed. R. Civ. P. 37, resulting from the filing of the sufficiency motion.
In
determining that a Fed. R. Civ. P. 37 sanctions are not appropriate, the court considered the
following factors set out by the Fourth Circuit Court of Appeals: “(1) whether the noncomplying
5 In addition to their specified objections to answering Second Discovery Requests Nos. 1, 2, and
25, Defendants specifically reserved “the right to engage in further discovery, including expert
discovery, and to supplement this response when and if appropriate.” (See ECF No. 23-1 at pp. 3-4,
15-16.) Because the expert and discovery deadlines have passed, the discovery rules require
Defendants to supplement their responses to Second Discovery Requests Nos. 1, 2, and 25. See Fed.
R. Civ. P. 26(e).
16
party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary,
(3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic
sanctions would have been effective.” Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d
305, 348 (4th Cir. 2001).
IV. CONCLUSION
For the foregoing reasons, the court hereby GRANTS Plaintiff’s motion for partial
summary judgment on the issue of Defendants’ liability for medical malpractice. (ECF No. 24.)
The court further GRANTS Plaintiff’s motion to compel and orders Defendants to provide
Plaintiff supplemental answers to First Discovery Requests Nos. 3, 5, 14, 15, 17, and 18 no later
than 14 days after entry of this order. (ECF No. 20.) The court GRANTS in part Plaintiff’s
motion to determine the sufficiency of Defendants’ responses to Plaintiff’s Second Discovery
Requests and orders Defendants to provide supplemental answers to Second Discovery Requests
Nos. 1, 2, and 25 no later than 14 days after entry of this order. (ECF No. 23.) The court
DENIES the sufficiency motion as to Second Requests Nos. 5, 7, 8, 10, 11, 12, 13, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, and 24. (Id.) Plaintiff’s motion for sanctions in conjunction with the
sufficiency motion is also denied without prejudice.
IT IS SO ORDERED.
s/Margaret B. Seymour____________________
MARGARET B. SEYMOUR
SENIOR UNITED STATES DISTRICT JUDGE
July 31, 2013
Columbia, South Carolina
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?