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CALDWELL v. CTR. FOR CORRECTIONAL HLT. & POLICY STUDIES

June 2, 2005.

LAWRENCE CALDWELL, Plaintiff,
v.
CENTER FOR CORRECTIONAL HEALTH AND POLICY STUDIES, INC. et al., Defendants.



The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge

ORDER

In accordance with the accompanying Memorandum Opinion, it is, hereby,

ORDERED that the Motion for Sanctions under Fed.R.Civ.P. 37(e) of Defendant The Center for Correctional Health and Policy Studies [#59] is DENIED.

  SO ORDERED. MEMORANDUM OPINION

  This is a suit by a former prisoner at the D.C. Jail who complains (inter alia) that the Jail's delay in treating two of his teeth, numbers 3 and 19, was unjustifiable. The present discovery dispute deals with tooth number 19.

  INTRODUCTION

  Plaintiff asked Dr. Alan Berne, a dentist, to review the medical records pertaining to his treatment and Dr. Berne has produced a report, which he supplemented, expressing the opinion that the delay in dental treatment plaintiff received for tooth number 19 was inconsistent with the community standard of care for the treatment of the dental conditions about which plaintiff complained. Report of Dr. Alan Berne, Exhibit 4, to Motion for Sanctions under Fed.R.Civ.P. 37(e) of Defendant The Center for Correctional Health and Policy Studies (hearafter "Sanctions Motion").

  On December 11, 2003, plaintiff served interrogatories and a request to produce documents. Interrogatory Number 11 demanded the identities of all those who had provided plaintiff with health care "during the past ten (10) up to the present day." Sanctions Motion, Exhibit 1 at 6. Request to produce Number 9 demanded copies of "all medical records for all doctors, dentists . . . for any medical treatment you underwent in the ten (10) years preceding the incident which is the subject of this lawsuit to the present." Id. at 20.

  On March 25, 2004, plaintiff objected to the over breadth of interrogatory, but indicated that he would "produce documents regarding the injuries alleged in the complaint that identify the health care providers from whom he has received treatment that is potentially relevant to the issues in the case." Id. at 11. As to the request to produce documents, plaintiff's counsel stated that plaintiff would produce "all medical records in his possession . . . that relate to the injuires or conditions alleged in the complaint." Id. at 20.*fn1

  On March 6, 2004, plaintiff visited Dr. Berne's office, had his teeth cleaned, and was examined by Dr. Berne. This visit generated a record. Id., Exhibit 6. In the section of the record entitled "Patient Medical-Dental History," plaintiff wrote that "[tooth] #19 [was] very sensitive." Id. In addition, in response to a written question asking whether any part of his mouth was "sore to pressures or irritants (cold, sweets, etc.)," plaintiff wrote "#19." Id.

  On March 10, 2004, Dr. Berne completed the expert report to which I referred earlier and noted that among the "Materials and Facts Considered" were "x-rays and an evaluation of Mr. Caldwell's teeth from May 6, 2004." Dr. Berne did not specifically indicate that those x-rays were taken during plaintiff's visit to him on May 6, 2004 and did not otherwise specifically mention that visit.

  On March 17, 2005, defendant's counsel took Dr. Berne's deposition and received from plaintiff's counsel the record generated during plaintiff's March 6, 2004 visit. Defendant's counsel then complained in a letter to plaintiff's counsel that he had been "sandbagged" by not getting the records of plaintiff's March 6, 2004 visit to Dr. Berne March 6, 2004 until the deposition. Id. Exhibit 10. According to defendant's counsel, because Dr. Berne was a "treating health care provider," the record of the visit should have been produced much earlier in response to his demand for the records of all persons who had treated plaintiff in the past ten years up to the present.

  This complaint has now become the motion pending before me. In the motion, defendant's counsel accuses opposing counsel of intentionally withholding the record of the March 6, 2004 visit when he should have produced the record in March of 2004, in supplementation of plaintiff's response to the interrogatories and request to produce ...


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