United States District Court for the District of Columbia
June 2, 2005.
LAWRENCE CALDWELL, Plaintiff,
CENTER FOR CORRECTIONAL HEALTH AND POLICY STUDIES, INC. et al., Defendants.
The opinion of the court was delivered by: JOHN FACCIOLA, Magistrate Judge
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.
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 documents. As a result, defendant seeks
sanctions, including dismissal of plaintiff's case.
As just explained, plaintiff responded to interrogatory 11 and
request number 9 by defining what he would produce as opposed to
only objecting to the interrogatory and request to produce and
awaiting a motion to compel or seeking a protective order. As to
the interrogatory, he said he would produce documents that were
"potentially relevant" and as to the request to produce, he said
he would produce the records in his possession that relate to the
injuries and conditions alleged in the complaint.
The problem is that plaintiff's counsel substituted his
definition of what is discoverable, "potentially relevant," and "relating to the injuries and
conditions alleged in the complaint," for the discovery standard
as stated by the Federal Rules of Civil Procedure, i.e.,
information is discoverable if it is "reasonably calculated to
lead to the discovery of admissible evidence." Fed.R.Civ.P.
The sea change created by the amendment to Rule 26(b)(1) was to
expand discovery from information that is in fact relevant to a
claim or defense to information that may not, in itself, be
relevant but is readily calculated to lead to the discovery of
information that is. The question then is not whether, in
hindsight, the information that was not produced is, in fact,
relevant to a claim or defense or even "potentially relevant" but
whether, at the time it was sought, there was a reasonable
likelihood the information might yield such relevant evidence.
Thus, while reasonable people may differ as to whether Dr.
Berne's examination of plaintiff and the resulting record is or
is not relevant to a claim or defense, reasonable people may not
differ as to whether such information was reasonably likely to
lead to relevant evidence.
To that end, it must be recalled that Dr. Berne premised his
opinion that plaintiff had not received appropriate care as to
tooth number 19 entirely (and understandably) on the records
generated during plaintiff's incarceration. Plaintiff's visit to
Dr. Berne's office on March 6, 2004 was the first and only time
that Dr. Berne actually examined plaintiff. Surely, it is more
likely than not that the one and only examination of plaintiff's
mouth by an expert might yield evidence bearing on the validity
of Dr. Berne's opinion. The opposing contention that it is
impossible for that examination to yield any potentially relevant
evidence is simply indefensible.
Since I have concluded that the record of the visit should have
been produced sooner than it was, the question becomes what to do
about it. Defendant characterizes the delay as cataclysmic, seeking the ultimate sanction of dismissal.
Plaintiff insists "no harm, no foul" and points out that: (1) in
his report, Dr. Berne refers to the evaluation of x-rays done on
May 6, 2004, the day of plaintiff's office visit, and (2) Dr.
Berne spoke of that evaluation during his deposition. Defendant
counters that, had he known of the visit and the record it
generated, he would have made further inquiry about tooth number
19 during plaintiff's deposition. Additionally, defendant
contends that he would have reviewed that record with his
clients, including those dentists who treated the plaintiff while
he was in the hospital, and that he would have made the record
available to his expert witness before he completed his report.
Sanctions Motion at 5.
During the examination of May 6, 2004, plaintiff indicated that
tooth number 19 was still very sensitive and "sore" to pressure
or irritants. Defendant does not tell us what specific additional
questions he would have propounded during plaintiff's deposition
and it is hard to imagine what they would be. During his
deposition, defendant asked plaintiff about the pain he endured
"during the year or so that [he] waited for a filling for tooth
number 19." Plaintiff's Memorandum of Points and Authorities in
Opposition to Motion for Sanctions under Fed.R.Civ.P. 37 of
Defendant The Center for Correctional Health and Policy Studies
(hereafter "Opp.") Exhibit 3 at 76. Plaintiff indicated that he
felt pain when he chewed on food but that there was not much pain
when he was not chewing. There would be pain when, as he put it,
there was "[h]ot or cold" or if the tooth hit something that was
hard. Id. The only additional fact that defendant claims not to
know is that on the day the deposition was taken, plaintiff told
Dr. Berne (or someone on his staff) that tooth number 19 was very
sensitive. Plaintiff has now made it clear that he is seeking
damages only for the pain in tooth number 19 that he endured when
he was in prison in 2003 and that "he makes no claim regarding
injuries with respect to tooth number 19 "after April 3, 2003."
Id. at 12. Given that admission, to which plaintiff will be
bound at trial, additional questions about the May 2004 visit are
hard to divine. Perhaps it may be significant that plaintiff was
still complaining of tooth number #19 in May of 2004, but
whatever significance that fact has for this case can be
established at trial without any additional questioning of
plaintiff. Plaintiff's statement in May of 2004 speaks for itself
and is an unquestionably admissible document.
As to the use of the record by defendant's client and expert
witness, there is nothing stopping defendant from making the
record of the May 6, 2004 visit available to his clients and
expert witness. Certainly, the latter will be allowed to
supplement his or her report if necessary to allow for
information in the record that he or she was unaware of. Thus,
while there may have been delay in the production of this record,
its evidentiary significance at trial remains to be seen.
I fully appreciate that defendant is arguing that plaintiff's
counsel behavior in itself justifies the imposition of a
sanction. However, under Bonds v. District of Columbia,
93 F.3d 801, 809 (D.C. Cir. 1996), the draconian remedy of dismissal can
be imposed solely in the interests of deterrence and only upon a
"finding of flagrant or egregious misconduct by the defendant."
In this case, plaintiff's counsel definition of his client's
discovery obligation, while incorrect, simply does not rise to
As to any lesser sanction, its severity must be calibrated
against considerations such as the effect on the court's docket,
the nature of the misconduct claimed, the harm done to the
party's opponent and whether sanctions will deter similar
behavior in the future. Id. Since there has been no discernible
effect on the court's docket and defendant has not established
any harm, the sanction could be only justified by an interest in
deterrence. Again, while plaintiff's view of his discovery
obligation was incorrect, on this record I can neither conclude
that plaintiff's counsel was motivated by a malicious desire to
keep hidden from defendant the record of the May, 2004 visit, nor
can I conclude that plaintiff's counsel used legal arguments as a
"smoke screen" to deviously satisfy an improper end. Moreover,
unlike a successful motion to compel that results in the
disgorgement of a document that was being improperly withheld,
here the document was produced and its production cannot be
attributed to the success of the motion. In such a situation, I
would consider the award of attorney fees punitive and, on this
record, do not find such punishment justified. I will therefore
not impose any sanctions.
An Order accompanies this Memorandum Opinion.