Tavarez-Guerrero et al v. Toledo-Davila et al, No. 3:2007cv02250 - Document 140 (D.P.R. 2010)

Court Description: OPINION AND ORDER denying without prejudice re 107 MOTION to Strike Plaintiffs Witness and Medical Records filed by Jorge Santini-Padilla Signed by Chief Mag. Judge Justo Arenas on 12/3/2010.(nydi)

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Tavarez-Guerrero et al v. Toledo-Davila et al 1 Doc. 140 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO 2 3 4 5 6 LUCILO TAVà REZ-GUERRERO, SANTOS EVELYN BONILLA-Dà AZ, CONJUGAL PARTNERSHIP TAVà REZBONILLA, 7 8 9 10 11 12 13 14 Plaintiffs v. 07-2250 (JAG) (JA) PEDRO TOLEDO-Dà VILA, JORGE SANTINI-PADILLA, WALDO PABà N-GONZà LEZ, MARVIN COLà N, EUDALDO ROSA-GARCà A, UNKNOWN CO-DEFENDANTS 1-8, Defendants 15 16 OPINION AND ORDER 17 18 19 This is an action brought under the Civil Rights Act of 1971. Specifically, plaintiffs request money damages under the Civil Rights Act, 42 U.S.C. § 1983, 20 21 the Fourth, Fifth, Eighth, Ninth and Fourteenth Amendments of the Constitution 22 of the United States, the Constitution of the Commonwealth of Puerto Rico and 23 under Article 1802 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, § 5141. 24 Among the defendants are the former Superintendent of Police Pedro Toledo- 25 26 27 Dávila and the present mayor of the Municipality of San Juan, Jorge A. SantiniPadilla. 28 Dockets.Justia.com 1 CIVIL 07-2250 (JAG) (JA) 2 2 3 This matter is before the court on motion to strike plaintiffs witness and 4 5 medical records filed by co-defendant Santini-Padilla on May 13, 2010. (Docket 6 No. 107.) 7 interrogatories and request for production of documents upon plaintiffs. Within 8 He notes that on October 8, 2008, he served a first set of those requests were copies of all the medical records and any other documents 9 10 related to the treatment received for their alleged mental and moral anguishes. 11 Also, plaintiffs were required to list all the witnesses and expert witnesses that 12 they intend to present at trial, and to provide the curriculum vitae and reports of 13 all expert witnesses. The co-defendant received answers to written discovery on 14 15 January 14, 2009. As part of that discovery, the plaintiffs announced their own 16 testimony and that of Dr. Rubén Bravo Valverde. In relation to their medical 17 treatment, plaintiffs included letters and certifications from Dr. Bravo Valverde 18 and psychologist María E. Chávez indicating that plaintiffs were receiving attention 19 20 in their offices. Their attendance record as well as the date of their next 21 appointment were also included. No information regarding plaintiffs evaluation, 22 mental condition, treatment, recommendations or any other medical or health 23 related matters are included. 24 The co-defendant has attempted on several occasions to schedule the deposition of plaintiffs treating physician, Dr. Ruben 25 26 Bravo Valverde. All attempts have failed. Records related to psychiatric and 27 psychological treatment have also been requested. 28 Attempts to obtain such 1 CIVIL 07-2250 (JAG) (JA) 3 2 3 records have also failed. Subpoenas were then served on Dr. Bravo Valverde to 4 5 produce plaintiffs medical records and to appear to testify at a deposition. The 6 doctor refused to accept the subpoenas. Subsequent attempts to obtain those 7 medical record have proven fruitless. 8 In view of the plaintiffs failing to comply with discovery requests, the co- 9 10 defendant seeks that the court enter an order striking Dr. Bravo Valverde as a 11 witness for plaintiffs. He also requests that all medical records that have not been 12 produced be stricken, including the record prepared by Dr. Bravo Valverde. 13 (Docket No. 107, at 3.) 14 15 Plaintiffs opposed the motion to strike on June 2, 2010. (Docket No. 127.) 16 They note that they announced their expert witness as Dr. Rubén Bravo Valverde, 17 a forensic and geriatric psychiatrist, and also included with the answers to 18 interrogatories copies of certifications provided to plaintiffs by Dr. Bravo Valverde 19 20 at each office visit. Plaintiffs note that co-defendant s counsel had informed of his 21 interest in deposing Dr. Bravo Valverde but an agreement as to the witness fees 22 was never reached. The position of the co-defendant is that Dr. Bravo Valverde 23 is a treating physician and is therefore not entitled to expert fees for his 24 deposition. Dates were agreed upon and defense counsel was asked to serve 25 26 subpoena upon Dr. Bravo Valverde in order to assure his appearance at the 27 deposition. 28 The subpoena was issued but the doctor refused to accept the 1 CIVIL 07-2250 (JAG) (JA) 4 2 3 subpoena. The reason given for refusal to accept the subpoena was the failure 4 5 to agree on a witness fee. 6 deposed at his office after 3:00 P.M. due to the quantity of the patients that he 7 attends to. The doctor understood that plaintiffs record are confidential and not 8 The doctor also stated that he was willing to be reviewable by third parties. He has since been advised by plaintiffs counsel to 9 10 11 12 13 the contrary. Plaintiffs request that the deposition be rescheduled so that the medical records may be provided. A. Witness Fees Per 28 U.S.C. § 1821(b), a witness shall be paid an attendance fee of $40 14 15 per day. That statutory allowance does not include expert witness fees for 16 consultation, analysis, and intellectual effort. 17 Presbyterian Cmty. Hosp., 212 F.R.D. 50, 55 (D.P.R. 2002) (quoting Ramos v. 18 Shared Med. Sys. v. Ashford Davis & Geck, Inc., 968 F. Supp. 765, 782 (D.P.R. 1997)). The question remains 19 20 21 whether Dr. Bravo Valverde is to be treated as an expert witness or as a fact witness. 22 Federal Rule of Civil Procedure 26(b)(4)(E)(i) places a financial burden of 23 deposing a testifying expert on the party that conducts the deposition. Fed. R. 24 Civ. P. 26(b)(4)(E)(i). Courts have generally found that the party taking the 25 26 deposition is required by Rule 26(b)(4)(E)(i) to pay for preparation time. 27 Emmeneger v. Bull Moose Tube Co., 33 F. Supp. 2d 1127, 1136 (E.D. Mo. 1998); 28 1 CIVIL 07-2250 (JAG) (JA) 5 2 3 Lent v. Fashion Mall Partners, 223 F.R.D. 317, 318 (S.D.N.Y. 2004); Fleming v. 4 5 United States, 205 F.R.D. 188, 190 (W.D. Va. 2000); Collins v. Vill. of Woodridge, 6 197 F.R.D. 354, 357 (N.D. Ill. 1999). However, [t]he provisions about payment 7 in Rule 26(b)(4)(C) are subject to the condition unless manifest injustice would 8 result. Thus the court can decline to require payment in some deserving cases. 9 10 8A The Late Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal 11 Practice and Procedure Civ. § 2034. 12 announced Dr. Bravo Valverde as an expert but it clearly appears that he is a 13 In this particular case, plaintiffs have treating physician. The defendants filed a misnamed Joint Case Management 14 15 Memorandum on June 20, 2008. (Docket No. 42.) Although the memorandum 16 is designated as such, and docketed as such, only the defendants section of the 17 memorandum was filed. On October 16, 2009, a joint motion announces that the 18 deposition of plaintiffs expert, Dr. Bravo Valverde, remains to be taken. (Docket 19 20 No. 78.) Certainly, as a treating physician, Dr. Bravo Valverde can testify at trial 21 without the need to produce a report because he has not been specially employed 22 to provide expert testimony. See González v. Executive Airlines, Inc., 236 F.R.D. 23 73, 78 (D.P.R. 2006.); 8A The Late Charles Alan Wright, Arthur R. Miller & Richard 24 L. Marcus, Federal Practice and Procedure § 2031.1 n.6 (2ed. & Supp. 2004). 25 26 Furthermore, it does not appear anywhere in the record that he has prepared a 27 report as required prior to being deposed. See Fed. R. Civ. P. 26(b)(4)(A.); 28 1 CIVIL 07-2250 (JAG) (JA) 6 2 3 McDermott v. FedEx Ground Sys., Inc., 247 F.R.D. 58, 59-60 (D. Mass. 2007). 4 5 Therefore, Dr. Bravo Valverde will be treated as a treating physician and not as 6 an expert witness. See González v. Executive Airlines, Inc., 236 F.R.D. at 77-78. 7 8 B. Failure to Make Disclosures Rule 26(a)(2) of the Federal Rules of Civil Procedure requires parties to 9 10 disclose the identity of their expert witnesses as well as their experts reports in 11 accordance with scheduling orders issued by the trial court. Morel v. Daimler- 12 Chrysler Corp., 259 F.R.D. 17, 19-20 (D.P.R. 2009) (citing Fed. R. Civ. P. 13 26(a)(2)); see Laplace-Bayard v. Batlle, 295 F.3d 157, 161-62 (1st Cir. 2002). 14 15 An expert's complete report is due at a specific time during the discovery period 16 in order to allow opposing counsel to depose the expert, if desired, and to allow 17 the opposing party's expert witness time to respond to the opinions expressed in 18 the report, also within the discovery period, so that the plaintiff's counsel will also 19 20 have an opportunity to explore those opinions before the end of discovery and the 21 deadline for the filing of dispositive motions. Griffith v. E. Me. Med. Ctr., 599 F. 22 Supp. 2d 59, 63-64 (D. Me. 2009) (citing Thibeault v. Square D Co., 960 F.2d 23 239, 244 (1st Cir. 1992). An expert can always supplement his or her opinions 24 after submitting a report, should the need arise. What the expert cannot do is 25 26 dictate the timing and progress of the case; that is a matter solely within the 27 court's control. Griffith v. E. Me. Med. Ctr., 599 F. Supp. 2d at 64. 28 1 CIVIL 07-2250 (JAG) (JA) 7 2 3 When the automatic discovery provisions of Rule 26(a) and 26(e) are 4 5 violated . . . subsection (c) of Rule 37 comes into play. Ortiz-López v. Sociedad 6 Española de Auxilio Mutuo y Beneficiencia de P.R., 248 F.3d 29, 33 (1st Cir. 2001) 7 (citing Fed. R. Civ. P. 37(c)). Subsection (c) of Rule 37 provides, in relevant part, 8 that if a party that without substantial justification fails to disclose information 9 10 required by Rule 26(a) or 26(e)(1) [, that party] shall not, unless such failure is 11 harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion 12 any witness or information not so disclosed. Ortiz-López v. Sociedad Española 13 de Auxilio Mutuo y Beneficiencia, 248 F.3d at 33 (quoting Fed. R. Civ. P. 14 15 37(c)(1)). Thus, Rule 37(c)(1) clearly contemplates stricter adherence to 16 discovery requirements, and harsher sanctions for breaches of this rule, and the 17 required sanction in the ordinary case is mandatory preclusion. Griffith v. E. Me. 18 Med. Ctr., 599 F. Supp. 2d at 64 (quoting Lohnes v. Level 3 Commc ns, Inc., 272 19 20 F.3d 49, 60 (1st Cir. 2001)). 21 Plaintiffs have clearly failed to comply with the discovery requests related 22 to the medical records of plaintiffs. Those medical records must be produced. If 23 they are not produced, information related to such records will be excluded at 24 trial, as well as the testimony of the doctor who created such medical records. 25 26 In view of the above, the co-defendant s motion to strike plaintiffs witness 27 and medical records is DENIED without prejudice. Parties are reminded that the 28 1 CIVIL 07-2250 (JAG) (JA) 8 2 3 court has a broad range of authority to secure the efficient conduct of discovery. 4 5 See, e.g., Valentín v. Concentrated Chem. Co., 184 F.R.D. 228, 229-30 (D.P.R. 6 1999). Discovery is to be completed expeditiously. 7 In San Juan, Puerto Rico, this 3d day of December 2010. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S/ JUSTO ARENAS Chief United States Magistrate Judge

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