Milazzo v. KG Enterprises CV-97-649-SD 02/16/99
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Bryan K. & Terry B. Milazzo
v. Civil No. 97-649-SD
KG Enterprises, Inc., et al.
O R D E R
Plaintiffs move to exclude one of defendant's hired medical
experts, Albert Drukteinis, M.D. Defendant objects to the
motion.
Background
Plaintiff, Bryan Milazzo, received a traumatic brain injury
from electrocution at premises owned and operated by the
defendants. Defense counsel requested that plaintiff submit to a
Rule 35 examination by Dr. Drukteinis, a psychiatrist, and by
Richard L. Levy, M.D., who is board certified in both psychiatry
and neurology. Counsel for the plaintiff objected to the
Drukteinis examination. Counsel expressed his concern that
Drukteinis had a reputation as a hired expert for defendants in
civil cases and, further, that he was requesting a full day
examination, including a three-hour interview. The latter
concern was particularly acute because Drukteinis, in addition to
being a psychiatrist, has a law degree. After numerous
discussions, counsel for plaintiff and the defendant, resolved the dispute without resort to the court by entering into a
stipulation permitting the examination under specified
conditions. The parties agreed that the stipulation carried with
it "the force and authority of a court order entered in this
regard pursuant to Fed. R. Civ. P. 35."
Among other conditions in the stipulation, defense counsel
agreed to provide plaintiffs' counsel with all written or
recorded notes by each examining physician within ten days of the
respective examination and to further provide copies of all draft
and final reports by that physician within three days of their
receipt by defense counsel.
The examination by Dr. Drukteinis took place on September
25, 1998. Defendants did not supply plaintiffs' counsel with Dr.
Drukteinis' notes within ten days of his examination as reguired
by the stipulation. These notes were supplied over two months
after the examination and only after plaintiff had filed the
motion to exclude Dr. Drukteinis' testimony. Dr. Drukteinis'
report is dated October 2, 1998. It was not supplied to the
plaintiff until December 3, 1998. The report from Dr. Levy was
received by defense counsel on October 3, 1998 and was delivered
to the plaintiff under cover letter of October 15, 1998. Defense
counsel has offered no facts to explain his failure to comply
with the stipulation. Defense counsel speculates that the breach
2 occurred "through inadvertence which may have been due in part to
the transfer of the file from Larry Getman, Esq. to Dana Feeney,
Esq." Plaintiff claims that, even this speculation makes no
sense since the Drukteinis report, dated October 2, 1998, was
either held by Dr. Drukteinis unjustifiably or it was delivered
to defense counsel prior to October 15, the date on which Mr.
Getman forwarded the Levy report. It was Mr. Getman who
negotiated the stipulation and he was still in control of the
file at the time the Drukteinis notes and report had to be
produced under the stipulation.
Discussion
It is undisputed that the parties entered into a written
stipulation to govern the Drukteinis' Rule 35 examination.
Defendants admit that they breached two covenants in that
stipulation. Plaintiff asserts that defendants' breach should
preclude them from using Dr. Drukteinis at trial. Defendants'
position is that plaintiff has not been prejudiced and that
defendants, despite their acknowledged breaches and with no
showing of just cause by them, should not be penalized.
1. The Stipulation
Our current court system encourages stipulations by parties.
In fact, parties in this court are not even permitted to seek
discovery orders by motion until and unless they have made a good
3 faith effort to resolve discovery matters by consent. LR 7.1(c).
If parties did not resolve most discovery matters by consent and
stipulation the court would be inundated with discovery motions.
The court, however, cannot expect counsel to make, and rely upon
stipulations if it is unwilling to generally enforce discovery
stipulations. In this court we have committed to bind parties to
their written stipulations. LR 7.3.
In this case the stipulation is in writing, is signed by
counsel, and has been filed with the court. It is binding.
Furthermore, defendants admit that after plaintiff fully performs
all of his promises under the stipulation, they breached the
agreement in two respects and they have not explained how or why
the breaches occurred.
The parties agreed that the stipulation was to have the
effect of an order under Fed. R. Civ. P. 35. However, the
parties did not submit it to the court for its approval as a
court order. The parties have not cited, and I have not found,
any authority for a court to address the conseguences of the
admitted breaches of a stipulation, as opposed to an order, under
Fed. R. Civ. P. 3 7 (b)(2). To effectuate the intention of the
parties, I therefore approve and adopt the stipulation as a Rule
35 order. As an order it may be addressed in Rule 37(b) (2) .
4 2. Consequences of the Breach
The breach having been admitted, the question is what, if
any, consequences should result. First, it is clear that the
breaches were entirely due to the indifference of counsel. The
acts which were not performed were the responsibility of counsel.
Since it is clear that Mr. Getman was in charge of the file ten
business days after the Drukteinis examination and three business
days after the presumed October 2nd mailing of Drukteinis'
report, the buck stops with him, not with Ms. Feeney.
Plaintiff, in reliance on defendants' promises, waived his
opportunity to object to Dr. Drukteinis on the basis of his
alleged bias and waived his right to seek special controls over
the interview portion of the examination. Without in any way
factually addressing Dr. Drukteinis' suitability as an examiner,
it is nevertheless clear that plaintiff's pre-stipulation
concerns were on sound legal footing. Under Rule 35 a ". . .
moving party has no absolute right to the choice of the
physician." 8A Wright, Miller & Marcus, Federal Practice and
Procedure Civil 2d § 2234.2. If defendant suggests a physician
who is found to be biased and prejudiced the court can reject the
physician and appoint its own. Jd. Furthermore, plaintiff's
concerns about the psychiatric examination are real since "a Rule
35 examination, particularly a psychiatric examination, 'could
5 easily be transformed into a de facto deposition.'" I_d. at § 2236
(citing Zabkowicz v. West Bend Co., 585 F. Supp. 635, 636 (D.C.
Wis. 1984). A psychiatrist with a law degree may well be
perceived to be even a greater threat to turn the examination
into a deposition.
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Milazzo v. KG Enterprises CV-97-649-SD 02/16/99
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Bryan K. & Terry B. Milazzo
v. Civil No. 97-649-SD
KG Enterprises, Inc., et al.
O R D E R
Plaintiffs move to exclude one of defendant's hired medical
experts, Albert Drukteinis, M.D. Defendant objects to the
motion.
Background
Plaintiff, Bryan Milazzo, received a traumatic brain injury
from electrocution at premises owned and operated by the
defendants. Defense counsel requested that plaintiff submit to a
Rule 35 examination by Dr. Drukteinis, a psychiatrist, and by
Richard L. Levy, M.D., who is board certified in both psychiatry
and neurology. Counsel for the plaintiff objected to the
Drukteinis examination. Counsel expressed his concern that
Drukteinis had a reputation as a hired expert for defendants in
civil cases and, further, that he was requesting a full day
examination, including a three-hour interview. The latter
concern was particularly acute because Drukteinis, in addition to
being a psychiatrist, has a law degree. After numerous
discussions, counsel for plaintiff and the defendant, resolved the dispute without resort to the court by entering into a
stipulation permitting the examination under specified
conditions. The parties agreed that the stipulation carried with
it "the force and authority of a court order entered in this
regard pursuant to Fed. R. Civ. P. 35."
Among other conditions in the stipulation, defense counsel
agreed to provide plaintiffs' counsel with all written or
recorded notes by each examining physician within ten days of the
respective examination and to further provide copies of all draft
and final reports by that physician within three days of their
receipt by defense counsel.
The examination by Dr. Drukteinis took place on September
25, 1998. Defendants did not supply plaintiffs' counsel with Dr.
Drukteinis' notes within ten days of his examination as reguired
by the stipulation. These notes were supplied over two months
after the examination and only after plaintiff had filed the
motion to exclude Dr. Drukteinis' testimony. Dr. Drukteinis'
report is dated October 2, 1998. It was not supplied to the
plaintiff until December 3, 1998. The report from Dr. Levy was
received by defense counsel on October 3, 1998 and was delivered
to the plaintiff under cover letter of October 15, 1998. Defense
counsel has offered no facts to explain his failure to comply
with the stipulation. Defense counsel speculates that the breach
2 occurred "through inadvertence which may have been due in part to
the transfer of the file from Larry Getman, Esq. to Dana Feeney,
Esq." Plaintiff claims that, even this speculation makes no
sense since the Drukteinis report, dated October 2, 1998, was
either held by Dr. Drukteinis unjustifiably or it was delivered
to defense counsel prior to October 15, the date on which Mr.
Getman forwarded the Levy report. It was Mr. Getman who
negotiated the stipulation and he was still in control of the
file at the time the Drukteinis notes and report had to be
produced under the stipulation.
Discussion
It is undisputed that the parties entered into a written
stipulation to govern the Drukteinis' Rule 35 examination.
Defendants admit that they breached two covenants in that
stipulation. Plaintiff asserts that defendants' breach should
preclude them from using Dr. Drukteinis at trial. Defendants'
position is that plaintiff has not been prejudiced and that
defendants, despite their acknowledged breaches and with no
showing of just cause by them, should not be penalized.
1. The Stipulation
Our current court system encourages stipulations by parties.
In fact, parties in this court are not even permitted to seek
discovery orders by motion until and unless they have made a good
3 faith effort to resolve discovery matters by consent. LR 7.1(c).
If parties did not resolve most discovery matters by consent and
stipulation the court would be inundated with discovery motions.
The court, however, cannot expect counsel to make, and rely upon
stipulations if it is unwilling to generally enforce discovery
stipulations. In this court we have committed to bind parties to
their written stipulations. LR 7.3.
In this case the stipulation is in writing, is signed by
counsel, and has been filed with the court. It is binding.
Furthermore, defendants admit that after plaintiff fully performs
all of his promises under the stipulation, they breached the
agreement in two respects and they have not explained how or why
the breaches occurred.
The parties agreed that the stipulation was to have the
effect of an order under Fed. R. Civ. P. 35. However, the
parties did not submit it to the court for its approval as a
court order. The parties have not cited, and I have not found,
any authority for a court to address the conseguences of the
admitted breaches of a stipulation, as opposed to an order, under
Fed. R. Civ. P. 3 7 (b)(2). To effectuate the intention of the
parties, I therefore approve and adopt the stipulation as a Rule
35 order. As an order it may be addressed in Rule 37(b) (2) .
4 2. Consequences of the Breach
The breach having been admitted, the question is what, if
any, consequences should result. First, it is clear that the
breaches were entirely due to the indifference of counsel. The
acts which were not performed were the responsibility of counsel.
Since it is clear that Mr. Getman was in charge of the file ten
business days after the Drukteinis examination and three business
days after the presumed October 2nd mailing of Drukteinis'
report, the buck stops with him, not with Ms. Feeney.
Plaintiff, in reliance on defendants' promises, waived his
opportunity to object to Dr. Drukteinis on the basis of his
alleged bias and waived his right to seek special controls over
the interview portion of the examination. Without in any way
factually addressing Dr. Drukteinis' suitability as an examiner,
it is nevertheless clear that plaintiff's pre-stipulation
concerns were on sound legal footing. Under Rule 35 a ". . .
moving party has no absolute right to the choice of the
physician." 8A Wright, Miller & Marcus, Federal Practice and
Procedure Civil 2d § 2234.2. If defendant suggests a physician
who is found to be biased and prejudiced the court can reject the
physician and appoint its own. Jd. Furthermore, plaintiff's
concerns about the psychiatric examination are real since "a Rule
35 examination, particularly a psychiatric examination, 'could
5 easily be transformed into a de facto deposition.'" I_d. at § 2236
(citing Zabkowicz v. West Bend Co., 585 F. Supp. 635, 636 (D.C.
Wis. 1984). A psychiatrist with a law degree may well be
perceived to be even a greater threat to turn the examination
into a deposition.
Plaintiff negotiated a compromise of these concerns and
fulfilled his promises. Defendants, through their counsel,
failed to abide by their promises and, in essence, have said, "so
what?" Defense counsel may pay a price among members of the
trial bar by a diminishment of his reputation for keeping his
word. However, that is insufficient to assure this court that
its expectation that counsel "keep their word" on discovery
agreements will be met. This court must demonstrate a resolve to
enforce discovery stipulations and to sanction those who would
indifferently breach them.
It is too late to enforce the precise agreements. Excluding
the testimony of Dr. Drukteinis because of defense counsel's
neglect sanctions defendants, not the culpable party. The
challenge to Dr. Drukteinis' impartiality was negotiated away in
the Rule 35 stipulation, but may still be explored in a
deposition to determine his impeachability at trial. That
exploration, to be paid for personally by Mr. Getman, at least
permits counsel to attempt to demonstrate the bias of the
6 witness.
Mr. Getman is ordered to pay to plaintiff's counsel his
standard hourly rate for the time expended in connection with the
motion and memorandum of law. Further, Mr. Getman, at his cost,
is to obtain and provide plaintiff's counsel with a copy of every
expert's opinion in the last four years provided by Dr.
Drukteinis to any counsel in connection with any case involving
alleged emotional damages, a statement of whether the doctor was
retained by plaintiff or defendant in each case, and the doctor's
full charges in each case. The production of these documents is
to be completed within twenty calendar days. After production of
the Drukteinis documents. Dr. Drukteinis is to be produced for
deposition. The first two hours of that deposition are to be
paid for by Mr. Getman personally, including court reporter and
expert's fees.
The motion to exclude (document no. 19) is granted as set
forth above and is otherwise denied.
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: February 16, 1999
7 cc: Peter E. Hutchins, Esq. Laurence W. Getman, Esq Jeffrey B. Osburn, Esq. David W. Rayment, Esq.