Canterbury v. Boston Scientific Corporation PTO #78 IN MDL 2326 CONSOLIDATED ELEVEN CASES FOR TRIAL AND DESIGNATED THIS CASE AS THE LEAD CASE; FILINGS IN THE CONSOLIDATED CASES ARE TO BE DOCKETED HEREIN., No. 2:2012cv08633 - Document 153 (S.D.W. Va. 2014)
Court Description: 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)
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Canterbury v. Boston Scientific Corporation PT... THE CONSOLIDATED CASES ARE TO BE DOCKETED HEREIN. Doc. 153 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON D IVISION IN RE: BOSTON SCIEN TIFIC CORP. PELVIC REPAIR SYSTEMS PROD U CT LIABILITY LITIGATION TO BE FILED IN LEAD CASE -------------------------------------------------------------- MD L N o . 2 3 2 6 2 :12 -cv-0 8 6 3 3 THIS DOCUMENT RELATES TO THE FOLLOWING CASES: Case Nos. Canterbury v. Boston Scientific Corporation, 2:12-cv-0 8633 (Lead Case); Hendricks, et al. v. Boston Scientific Corporation, 2:13-cv-0 3633 (Mem ber Case); Moore v. Boston Scientific Corporation, 2:13-cv-0 880 2 (Mem ber Case); Ty ree, et al. v. Boston Scientific Corporation, 2:13-cv-14397 (Mem ber Case); Cam pbell v. Boston Scientific Corporation, 2:13-cv-18786 (Mem ber Case); Blankenship v. Boston Scientific Corporation, 2:13-cv-2290 6 (Mem ber Case); Pugh, et al. v. Boston Scientific Corporation, 2:14-cv-0 1565 (Mem ber Case); W ilson v. Boston Scientific Corporation, 2:14-cv-0 5475 (Mem ber Case). MEMORAN D U M OPIN ION AN D ORD ER Pending before the court is Boston Scientific’s Motion to Com pel Consolidated Obtryx Plaintiffs to Appear for Physical Exam ination. (ECF No. 121). Plaintiffs have responded in opposition to the m otion, (ECF No. 140 ), and Boston Scientific has filed a reply m em orandum . (ECF No. 151). For the reasons that follow, the court GRAN TS the m otion to com pel and ORD ERS Plaintiffs to m ake them selves available for exam inations on dates and tim es to be arranged on or before Ju ly 2 1, 2 0 14 , and at 1 Dockets.Justia.com locations agreed upon by the parties. In addition, the court ORD ERS Boston Scientific to provide, in writing, to Plaintiffs’ counsel on or before Ju ly 3 , 2 0 14 the proposed scope of the exam ination to be perform ed upon each Plaintiff, including any testing that the exam ining physician intends to order. Plaintiffs shall have until n o o n on Tu e s d ay, Ju ly 8 , 2 0 14 to notify the court of any objections to the proposed exam ination/ testing. Counsel shall be available for a telephone conference on the afternoon of J uly 8 to resolve any outstanding issues regarding the scope of the exam inations. If there are not objections to the proposed scope of the exam inations, the parties shall so notify the court by noon on J uly 8, 20 14 and shall provide the court with the param eters of the exam inations, so that an order can issue setting forth the “the scope of the exam ination” and “the person who will perform it” on each Plaintiff. Once the parties have agreed to a tim e, place, m anner, 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 m ental or physical condition ... is in controversy to subm it to a physical or m ental exam ination by a suitably licensed or certified exam iner.” The order m ay only issue on good cause and adequate notice and “m ust specify the tim e, place, m anner, condition, and scope of the exam ination, 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” requirem ents of the Rule are not m ere form alities; rather, they m ust be m et with “an affirm ative showing by the m ovant that each condition as to which the exam ination is sought is really and genuinely in controversy and that good cause exists for ordering each particular exam ination.” Schlagenhauf v. Holder, 379 U.S. 10 4, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). Nonetheless, “there are situations where the pleadings alone are 2 sufficient to m eet these requirem ents.” Id. at 119. One such situation is a tort action in which a plaintiff asserts m ental or physical injury, placing “that m ental or physical injury clearly in controversy and [providing] the defendant with good cause for an exam ination to determ ine the existence and extent of such asserted injury.” Id. In the present case, Plaintiffs claim a num ber of physical injuries related to their use of pelvic m esh designed, developed, m anufactured, and m arketed by Boston Scientific, including pelvic pain, vaginal pain, urinary incontinence, infection and scarring, m esh erosion, and sexual dysfunction. All of the Plaintiffs have received som e m edical treatm ent for these conditions, and som e of the Plaintiffs have been exam ined 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 m edical exam inations. Moreover, the plaintiffs that underwent exam ination by their own trial experts supplied additional grounds for Boston Scientific to obtain the opinions of its experts based upon their personal exam inations of those plaintiffs. See U.S. ex rel. Johnson v. Universal Health Services, Inc., No. 1:0 7-cv-0 0 54, 20 11 WL 2784616, at *1 (W.D.Va. J uly 13, 20 11); Sim on v. Bellsouth Advertising and Pub. Corp., No. 3:0 9– CV– 177– RJ C– DCK, 20 10 WL 1418322, at *4 (W.D.N.C. Apr. 1, 20 10 ) (The need to counter plaintiff’s expert constitutes good cause for an independent m edical exam ination); see also Tom lin v. Holecek, 150 F.R.D. 628, 632 (D.Minn. 1993) (One purpose in allowing an exam ination 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 m edical exam inations, Boston Scientific will be forced to offer a defense “lim ited to the m ere cross-exam ining of evaluations offered by Plaintiff's experts.” W om ack v. Stevens 3 Transport, Inc., 20 5 F.R.D. 445, 447 (E.D.Pa. 20 0 1). Clearly, the drafters of Rule 35 sought to rem edy such an inequity. Therefore, the undersigned finds that Defendant has established the “in controversy” requirem ent of Rule 35 and “good cause” for ordering Plaintiffs to subm it to independent m edical exam inations. Although the fundam ental requirem ents for an order under Rule 35 are m et, Plaintiffs object to the exam inations on the ground that the physicians identified by Boston Scientific are not qualified to perform them . Rule 35 requires that a courtordered exam ination be perform ed by a “suitably licensed or certified exam iner.” According to Plaintiffs, Boston Scientific’s expert witnesses, Dr. Lonny Green of Virginia and Dr. Kelley Dopson of Georgia, do not m eet this criteria because they are not licensed to practice m edicine by the State of West Virginia,1 where Boston Scientific initially proposed that the physicians would conduct the exam inations. The parties disagree as to whether the physicians are perm itted to perform independent m edical exam inations 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 subm it to exam inations. Frankly, the court finds it disappointing that Plaintiffs’ counsel would m ake this argum ent given that Plaintiffs have traveled from West Virginia to San Francisco, Florida, and New York for m edical exam inations at their counsel’s behest. If Boston Scientific’s exam inations cannot legally be perform ed in West Virginia, then they can be perform ed at the physicians’ offices, and the Plaintiffs can be ordered to attend the exam inations in Virginia and Georgia at the Defendant’s expense. Defendant has the 1 Both physicians are otherwise licensed to practice m edicine in their respective States, and no other challenges to their credentials have been raised by Plaintiffs. 4 right to have the exam inations perform ed by expert witnesses of its choosing, as long as the circum stances surrounding the exam inations 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 m aking the trip for an exam ination. Certainly, if specific reasons exist to accom m odate a particular Plaintiff, those reasons should be m ade clear to the court. Otherwise, the undersigned finds no m erit to this argum ent. Finally, Plaintiffs contend that Boston Scientific failed to tim ely seek independent m edical exam inations, and its motion is likewise untim ely. The court disagrees. Boston Scientific learned between April 22 and May 12, 20 14 that various plaintiffs had undergone m edical exam inations by their expert witnesses. During this tim e fram e and beyond, Boston Scientific deposed the plaintiffs, and the depositions of the im planting physicians were also in progress. On May 23, 20 14, ten days before the deadline for subm itting expert reports, Boston Scientific requested independent m edical exam inations of the plaintiffs. The exam inations were arranged so that they could be com pleted on or before the report deadline. The parties could not agree to the taking of the exam inations. Therefore, Boston Scientific filed the m otion herein. In support of their position, Plaintiffs rely upon Shum aker v. W est, 196 F.R.D. 454 (S.D.W.Va. 20 0 0 ), a case in which the court found that the defendant’s m otion requesting a Rule 35 independent m edical exam ination filed six days before the deadline for expert reports was untim ely. However, Shum aker is distinguishable from the instant m atter largely because Dr. Manges, the expert identified to perform the exam ination in Shum aker, had not even been contacted by the defendant when he 5 decided that an independent m edical exam ination was necessary. Although the defendant knew expert reports were due on Septem ber 5, 20 0 0 , and he considered an independent m edical exam ination as early as J uly 17, 20 0 0 , defendant did not request an exam ination until August 22, 20 0 0 , or m ove for an exam ination on August 31, 20 0 0 . On Septem ber 6, 20 0 0 , the defendant served his expert disclosures, nam ing Dr. Manges as an expert, but did not attach any report prepared by Dr. Manges. Plaintiff argued that the defendant’s m otion under Rule 35 was nothing m ore than an end run around the expert disclosure deadline. In these cases, Boston Scientific offered dates for the exam inations within the tim e fram e allotted for expert disclosures and conceivably could have subm itted reports of the exam inations on tim e. Moreover, Boston Scientific served Plaintiffs with the rem ainder of the expert reports prepared by Drs. Green and Dopson on the date that disclosures were due. Therefore, m any of the core expert opinions are already in Plaintiffs’ possession. Finally, Plaintiffs can show no prejudice from the delay as they still have sufficient tim e to depose the expert witnesses regarding their reports and exam inations before the close of expert discovery. Thus, in the particular circum stances present here, Defendant’s m otion is not untim ely. The Clerk is directed to provide a copy of this Order to counsel of record. EN TERED : J uly 1, 20 14 6
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