Clemons v. Williams

Opinion

Nevada Bar No. 13149 10845 Griffith Peak Drive, Suite 600 3 Las Vegas, Nevada 89135 Telephone: (702) 792-3773 4 Fax: (702) 792-9002 Email: hicksja@gtlaw.com 5 MICHAEL L. ROSENTHAL, ESQ. 6 Pro Hac Vice Forthcoming STEPHEN F. RAIOLA, ESQ. 7 Pro Hac Vice Forthcoming COVINGTON & BURLING LLP 8 One CityCenter, 850 Tenth St., NW Washington, D.C. 20001 9 Telephone: (202) 662-5786 Email: mrosenthal@cov.com 10 sraiola@cov.com 11 Counsel for Plaintiff

14 DE’MARIAN A. CLEMONS, Case No.: 2:13-cv-93-RFB-NJK 15 Plaintiff, PLAINTIFF’S UNOPPOSED MOTION 16 vs. FOR AN ORDER TO MAKE PLAINTIFF 17 AVAILABLE FOR A MEDICAL BRIAN WILLIAMS, et. al., EXAMINATION, X-RAYS, AND A MRI 18 Defendants. 19 20 21 Pursuant to Federal Rule of Civil Procedure 26, Plaintiff De’Marian A. Clemons hereby 22 moves for an order compelling Defendants to make Plaintiff available for a medical examination by 23 Plaintiff’s own medical expert, an x-ray, and an MRI. This motion is based on the papers and 24 pleadings on file, the attached memorandum of points and authorities, and the record in this case. 25 / / / 26 / / / 27 / / / 2 Litigants in federal court may pursue discovery of “any nonprivileged matter that is relevant 3 to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). 4 The Federal Rules also expressly permit expert testimony. See Fed. R. Civ. P. 26(a)(2). Indeed, “[i]t 5 is beyond cavil that a plaintiff may retain his own expert medical witness to examine himself and 6 render opinion testimony at trial.” Silverstein v. Fed. Bureau of Prisons, No. 07-02471, 2009 WL 7 1451684, at *4 (D. Colo. May 20, 2009). 8 Ordinarily a district court has no reason to intervene in a plaintiff’s pursuit of expert testimony 9 from his own expert. But here, because Mr. Clemons is incarcerated, he cannot leave Defendants’ 10 custody for appointments with a medical expert or medical testing. As a result, Mr. Clemons cannot 11 by his expert or obtain the x-ray or MRI imagining necessary to assess the extent of his medical 12 injuries without a Court order instructing the prison to take Mr. Clemons to get MRI and X-ray 13 imaging. 14 District courts often grant requests for orders compelling correctional defendants to make 15 inmate plaintiffs available for evaluations by the plaintiff’s medical experts. See, e.g., De’lonta v. 16 Clarke, No. 11-00257, 2013 WL 4584684, at *2 (W.D. Va. Aug. 28, 2013); Silverstein v. Fed. Bureau 17 of Prisons, No. 07-02471, 2009 WL 1451684, at *4 (D. Colo. May 20, 2009); see also, Phillips v. 18 Tangilag, No. 5:16-CV-00088-TBR, 2019 WL 2862803, at *7 (W.D. Ky. July 2, 2019) (permitting 19 the plaintiff to move to “compel transportation to an outside physician”). Defendants have sometimes 20 contended that a plaintiff must show good cause to obtain such an order, citing Rule 35, but that rule 21 is not applicable. See, e.g., Silverstein, 2009 WL 1451684 at *4. At most, courts have asked the 22 plaintiff to show that a doctor has agreed to serve as an expert witness and that an examination is 23 necessary for the doctor’s opinion. See Phillips, 2019 WL 2862803 at *7. 24 Consistent with that body of caselaw, this Court should order the Defendants to: (1) provide 25 Mr. Clemons with X-rays of the Foot (AP, Lateral, and Oblique views), Ankle (AP, Lateral, and 26 Mortise views), and Tibia (AP and Lateral); (2) provide Mr. Clemons with an MRI of the ankle; and 27 (3) make Mr. Clemons available for an in person medical examination at the prison. First, 1 Mr. Clemons alleges, among other things, that the Defendants denied appropriate medical care for 2 injuries to his leg while incarcerated in the Southern Desert Correctional Center. See, e.g., First 3 Amended Complaint (FAC) ¶¶ 1, 10, ECF No. 242. He further alleges that they housed him in 4 conditions that were not appropriate for his injuries. For example, they assigned him to an upper 5 bunk despite being in crutches and could not climb in and out of bed without jumping, which was 6 painful and exacerbated his injuries. See, e.g., id. ¶ 24–26. The Defendants have argued previously 7 that they provided adequate treatment and appropriate housing, demonstrating that the extent of 8 Mr. Clemons’ injuries, the appropriate treatment of those injuries, and the adequacy of his housing 9 are disputed and at the center of the case. And each of these topics is appropriately addressed by 10 expert medical testimony. 11 Second, Mr. Clemons’ request is justified. He intends to offer testimony by an orthopedic 12 specialist at trial, Dr. Ian S. Elliott. Dr. Elliott has determined that an examination, x-rays, and an 13 MRI are necessary to form opinions relating to Mr. Clemons’ injuries, appropriate care, and 14 reasonable housing conditions. See Ex. A, Elliott Decl. ¶¶ 5-6. 15 Mr. Clemons therefore requests an order compelling Defendants to: (1) provide Mr. Clemons 16 with X-rays of the Foot (AP, Lateral, and Oblique views), Ankle (AP, Lateral, and Mortise views), 17 and Tibia (AP and Lateral); (2) provide Mr. Clemons with an MRI of the ankle; and (3) make 18 Mr. Clemons available for an in person medical examination at the prison. The Defendants do not 19 oppose this motion. 20 DATED this 24th day of October 2019. 21 Respectfully submitted, 23 /s/ Jason Hicks JASON K. HICKS 24 Nevada Bar No. 13149 10845 Griffith Peak Drive, Suite 600 25 Las Vegas, Nevada 89135 STEPHEN F. RAIOLA, ESQ. ORDER THE COURT HEREBY ORDERS the Nevada Department of Corrections to (1) provide ° Mr. Clemons with X-rays of the Foot (AP, Lateral, and Oblique views), Ankle (AP, Lateral, and Mortise views), and Tibia (AP and Lateral); (2) provide Mr. Clemons with an MRI of the ankle; and ° (3) make Mr. Clemons available for an in-person medical examination by Dr. Jan S. Elliott, M.D. at ° the prison. THE COURT FURTHER ORDERS that the X-rays, and MRI must take place no later ’ than December 1, 2019. ° Dated this 25 _ day of October 2019.

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2 Pursuant to Fed. R. Civ. P. 5(b), I hereby certify that a copy of the foregoing UNOPPOSED 3 MOTION FOR AN ORDER TO MAKE PLAINTIFF AVAILABLE FOR A MEDICAL 4 EXAMINATION was filed electronically via the Court’s CM/ECF system and served to all parties 5 of record on this date. 6 DATED this 24th day of October 2019. 7 8 /s/ Evelyn Escobar-Gaddi An employee of GREENBERG TRAURIG, LLP 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27