Canterbury v. Boston Scientific Corporation

Filing 153

ORDER granting 121 MOTION by Boston Scientific Corporation to Compel Consolidated Obtryx Plaintiffs to Appear for Physical Examination. Directing Plaintiffs to make themselves available for examinations on dates and times to be arranged on or befo re 7/21/2014, and at locations agreed upon by the parties. Directing Boston Scientific to provide, in writing, to Plaintiffs' counsel on or before 7/3/2014 the proposed scope of the examination to be performed upon each Plaintiff, including any testing that the examining physician intends to order. Plaintiffs shall have until noon on Tuesday, 7/8/2014 to notify the court of any objections to the proposed examination/testing, as more fully set forth herein. Signed by Magistrate Judge Cheryl A. Eifert on 7/1/2014. (cc: counsel of record) (skh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
IN RE: BOSTON SCIENTIFIC CORP.
PELVIC REPAIR SYSTEMS
PRODUCT LIABILITY LITIGATION
TO BE FILED IN LEAD CASE
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MDL No. 2326
2:12-cv-08633

THIS DOCUMENT RELATES TO THE FOLLOWING CASES:
Case Nos.

Canterbury v. Boston Scientific Corporation, 2:12-cv-08633
(Lead Case);
Hendricks, et al. v. Boston Scientific Corporation, 2:13-cv-03633
(Member Case);
Moore v. Boston Scientific Corporation, 2:13-cv-08802
(Member Case);
Tyree, et al. v. Boston Scientific Corporation, 2:13-cv-14397
(Member Case);
Campbell v. Boston Scientific Corporation, 2:13-cv-18786
(Member Case);
Blankenship v. Boston Scientific Corporation, 2:13-cv-22906
(Member Case);
Pugh, et al. v. Boston Scientific Corporation, 2:14-cv-01565
(Member Case);
Wilson v. Boston Scientific Corporation, 2:14-cv-05475
(Member Case).
MEMORANDUM OPINION AND ORDER

Pending before the court is Boston Scientific’s Motion to Compel Consolidated
Obtryx Plaintiffs to Appear for Physical Examination. (ECF No. 121). Plaintiffs have
responded in opposition to the motion, (ECF No. 140), and Boston Scientific has filed a
reply memorandum. (ECF No. 151). For the reasons that follow, the court GRANTS the
motion to compel and ORDERS Plaintiffs to make themselves available for
examinations on dates and times to be arranged on or before July 21, 2014, and at
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locations agreed upon by the parties. In addition, the court ORDERS Boston Scientific
to provide, in writing, to Plaintiffs’ counsel on or before July 3, 2014 the proposed
scope of the examination to be performed upon each Plaintiff, including any testing that
the examining physician intends to order. Plaintiffs shall have until noon on Tuesday,
July 8, 2014 to notify the court of any objections to the proposed examination/testing.
Counsel shall be available for a telephone conference on the afternoon of July 8 to
resolve any outstanding issues regarding the scope of the examinations. If there are not
objections to the proposed scope of the examinations, the parties shall so notify the
court by noon on July 8, 2014 and shall provide the court with the parameters of the
examinations, so that an order can issue setting forth the “the scope of the examination”
and “the person who will perform it” on each Plaintiff. Once the parties have agreed to a
time, place, manner, and condition, a notice shall be filed by Boston Scientific setting
forth those details.
Federal Rule of Civil Procedure 35 authorizes the court to order a party “whose
mental or physical condition ... is in controversy to submit to a physical or mental
examination by a suitably licensed or certified examiner.” The order may only issue on
good cause and adequate notice and “must specify the time, place, manner, condition,
and scope of the examination, as well as the person or persons who will perform it.”
Fed.R.Civ.P. 35(a)(2). The law is well-settled that the “in controversy” and “good cause”
requirements of the Rule are not mere formalities; rather, they must be met with “an
affirmative showing by the movant that each condition as to which the examination is
sought is really and genuinely in controversy and that good cause exists for ordering
each particular examination.” Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234,
13 L.Ed.2d 152 (1964). Nonetheless, “there are situations where the pleadings alone are
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sufficient to meet these requirements.” Id. at 119. One such situation is a tort action in
which a plaintiff asserts mental or physical injury, placing “that mental or physical
injury clearly in controversy and [providing] the defendant with good cause for an
examination to determine the existence and extent of such asserted injury.” Id.
In the present case, Plaintiffs claim a number of physical injuries related to their
use of pelvic mesh designed, developed, manufactured, and marketed by Boston
Scientific, including pelvic pain, vaginal pain, urinary incontinence, infection and
scarring, mesh erosion, and sexual dysfunction. All of the Plaintiffs have received some
medical treatment for these conditions, and some of the Plaintiffs have been examined
by expert witnesses specifically to provide opinions about the nature, extent, and cause
of the injuries. Accordingly, Plaintiffs have placed their urogynecologic conditions
squarely at issue, supplying good cause for Defendant to request independent medical
examinations. Moreover, the plaintiffs that underwent examination by their own trial
experts supplied additional grounds for Boston Scientific to obtain the opinions of its
experts based upon their personal examinations of those plaintiffs. See U.S. ex rel.
Johnson v. Universal Health Services, Inc., No. 1:07-cv-0054, 2011 WL 2784616, at *1
(W.D.Va. July 13, 2011); Simon v. Bellsouth Advertising and Pub. Corp., No. 3:09–CV–
177–RJC–DCK, 2010 WL 1418322, at *4 (W.D.N.C. Apr. 1, 2010) (The need to counter
plaintiff’s expert constitutes good cause for an independent medical examination); see
also Tomlin v. Holecek, 150 F.R.D. 628, 632 (D.Minn. 1993) (One purpose in allowing
an examination under Rule 35 is to provide a “level playing field” in the parties’ efforts
to evaluate the plaintiff’s condition). Without the opportunity to conduct independent
medical examinations, Boston Scientific will be forced to offer a defense “limited to the
mere cross-examining of evaluations offered by Plaintiff's experts.” Womack v. Stevens
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Transport, Inc., 205 F.R.D. 445, 447 (E.D.Pa. 2001). Clearly, the drafters of Rule 35
sought to remedy such an inequity. Therefore, the undersigned finds that Defendant
has established the “in controversy” requirement of Rule 35 and “good cause” for
ordering Plaintiffs to submit to independent medical examinations.
Although the fundamental requirements for an order under Rule 35 are met,
Plaintiffs object to the examinations on the ground that the physicians identified by
Boston Scientific are not qualified to perform them. Rule 35 requires that a courtordered examination be performed by a “suitably licensed or certified examiner.”
According to Plaintiffs, Boston Scientific’s expert witnesses, Dr. Lonny Green of
Virginia and Dr. Kelley Dopson of Georgia, do not meet this criteria because they are
not licensed to practice medicine by the State of West Virginia,1 where Boston Scientific
initially proposed that the physicians would conduct the examinations. The parties
disagree as to whether the physicians are permitted to perform independent medical
examinations in West Virginia without a license in this State, and Plaintiffs insist that
they cannot be ordered to travel to the physicians’ offices in Atlanta, Georgia and
Virginia to submit to examinations.
Frankly, the court finds it disappointing that Plaintiffs’ counsel would make this
argument given that Plaintiffs have traveled from West Virginia to San Francisco,
Florida, and New York for medical examinations at their counsel’s behest. If Boston
Scientific’s examinations cannot legally be performed in West Virginia, then they can
be performed at the physicians’ offices, and the Plaintiffs can be ordered to attend the
examinations in Virginia and Georgia at the Defendant’s expense. Defendant has the

Both physicians are otherwise licensed to practice medicine in their respective States, and no other
challenges to their credentials have been raised by Plaintiffs.

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right to have the examinations performed by expert witnesses of its choosing, as long as
the circumstances surrounding the examinations are not unreasonable. Neither
Atlanta, nor Virginia is any further away from West Virginia than the testing sites
selected by Plaintiffs’ counsel. In addition, nothing in the record before the court
suggests that any of the plaintiffs is physically unable, or otherwise incapable, of
making the trip for an examination. Certainly, if specific reasons exist to accommodate
a particular Plaintiff, those reasons should be made clear to the court. Otherwise, the
undersigned finds no merit to this argument.
Finally, Plaintiffs contend that Boston Scientific failed to timely seek independent
medical examinations, and its motion is likewise untimely. The court disagrees. Boston
Scientific learned between April 22 and May 12, 2014 that various plaintiffs had
undergone medical examinations by their expert witnesses. During this time frame and
beyond, Boston Scientific deposed the plaintiffs, and the depositions of the implanting
physicians were also in progress. On May 23, 2014, ten days before the deadline for
submitting expert reports, Boston Scientific requested independent medical
examinations of the plaintiffs. The examinations were arranged so that they could be
completed on or before the report deadline. The parties could not agree to the taking of
the examinations. Therefore, Boston Scientific filed the motion herein.
In support of their position, Plaintiffs rely upon Shumaker v. West, 196 F.R.D.
454 (S.D.W.Va. 2000), a case in which the court found that the defendant’s motion
requesting a Rule 35 independent medical examination filed six days before the
deadline for expert reports was untimely. However, Shumaker is distinguishable from
the instant matter largely because Dr. Manges, the expert identified to perform the
examination in Shumaker, had not even been contacted by the defendant when he
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decided that an independent medical examination was necessary. Although the
defendant knew expert reports were due on September 5, 2000, and he considered an
independent medical examination as early as July 17, 2000, defendant did not request
an examination until August 22, 2000, or move for an examination on August 31,
2000. On September 6, 2000, the defendant served his expert disclosures, naming Dr.
Manges as an expert, but did not attach any report prepared by Dr. Manges. Plaintiff
argued that the defendant’s motion under Rule 35 was nothing more than an end run
around the expert disclosure deadline.
In these cases, Boston Scientific offered dates for the examinations within the
time frame allotted for expert disclosures and conceivably could have submitted reports
of the examinations on time. Moreover, Boston Scientific served Plaintiffs with the
remainder of the expert reports prepared by Drs. Green and Dopson on the date that
disclosures were due. Therefore, many of the core expert opinions are already in
Plaintiffs’ possession. Finally, Plaintiffs can show no prejudice from the delay as they
still have sufficient time to depose the expert witnesses regarding their reports and
examinations before the close of expert discovery. Thus, in the particular circumstances
present here, Defendant’s motion is not untimely.
The Clerk is directed to provide a copy of this Order to counsel of record.
ENTERED: July 1, 2014

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