l U FILED
=;up§Ri<8i2 courrrI -~-:;:JFERlOR COUR
UF C\F r.;um»A
GUAM
1 1 202~ SEP 2081, SEP-6-ePM
PH2:2: 20
29
2 gLueR;-g CLERK QFU?COURT
c=3unT
3
4 BY: BY=-~--
IN THE SUPERIOR COURT
COURT OF
OF GUAM
GUAM
5
6 VERONICA VERONICA L.G.
L.G. PATAO
PATAOand
and JOHNNIE CWIL CIVILCASE
CASEno.
NO.CV0379-23
CV0379-23
L. PATAO, PATAO, 7 Plaintiffs,
8 vs. DECISION AND ORDER 9 Re: Defendant's'sMotion/or Motion for Physical
Examination
10 10 SOUTH PACIFIC PETROLEUM CORPORATION, 11 11 Defendant.
12 12
13 13 On May
May 29,
29, 2024,
2024, die
the Court
Court heard
heard Defendant South Pacific Petroleum Petroleum Corporation's
Corporation's
14 14 ("SPPC") ("SPPC")Motion Motionfor
forPhysical
PhysicalExamination
Examination ("Motion").
("Motion").Attorney
AttorneyDeborah
DeborahFisher
Fisherrepresented
represented
15 15 Plaintiffs Veronica L.G.
L.G. Patao
Patio and JohnnieL.L.Patao and Johnnie Patio(collectively, (collectively, "Plaintiffs"), "Plaintiffs"), while Attorney 16 Mitchell Thompson Thompson represented
represented SPPC. After
After reviewing
reviewingthe
thearguments,
arguments, briefs,
briefs, and
and applicable
applicable
17 17 law, the Court GRANTS SPPC's SPPC's Motion.
18 18 BACKGROUND
19 19 Plaintiffs filed their
their Complaint
Complaint on
on June
June 23,
23, 2023,
2023, alleging
alleging that
that Plaintiff
Plaintiff Veronica
Veronica
20 suffered severe bums suffered severe burnson on her
her inner
inner thighs
thighs and
and genitalia
genitaliadue
duetoto the
the negligence
negligence of
of SPPC
21 employees, who allegedly allegedly improperly
improperlypackaged
packaged two
two cups
cups of
ofdangerously
dangerously hot arrozcaldo.
DECISION AND ORDER Civil Civil Case Case No. CV0379-23,Patio
Pataov.v. South
South Pay.
Pac. Petroleum Corp.
C01p.
1 1 13, 2024, On March 13, 2024, SPPC the Motion SPPC filed the Motion under under Guam
Guam Rules
Rules of Civil
Civil Procedure
Procedure
2 ("GRCP")
("GRCP")Rule Rule35,
35,requesting
requesting the
the Court
Court to
to order
order Plaintiff
PlaintiffVeronica
Veronica to
to undergo
undergo aa physical
physical
3 examination by by Dr.
Dr. Friedrich
Friedrich Bieling
Bieling at Dr.
Dr. Shieh's Clinic
Clinic to
to assess theseverity
assess the severity of
other
her bums.
4 Plaintiffs filed an an Opposition to the Motion on April 10, Opposition to 10, 2024.
2024. They did
did not
not oppose
oppose
5 5 SPPC's SPPC's procedural procedural right to request medical examination under request a medical underGRCP GRCP 35
35 or
or the
the relevance
relevance of
of
6 6 Plaintiff Plaintiff Veronica's Veronica's medical
medical condition
condition to
to the
the case.
case. However,
However, they
they requested
requested aa female
female medical
medical
7 7 professional conduct the examination conduct the examination due dueto
to trauma
traumaPlaintiff
Plaintiff Veronica
Veronica alleges she experienced
8 in her childhood.
childhood.
9 9 SPPC filed filed its
its Reply
Replyon
onApril
April23,
23,2024,
2024,arguing
arguing that
that Plaintiffs
Plaintiffs did
did not
not present
present a valid
10 10 objection to Dr.
objection to Dr. Bieling Bieling performing
performing the
the examination. SPPC asserted examination. SPPC thatDr.
asserted that Dr. Bieling Billing is
is
11 qualified to to perform
perform the
the examination,
examination, that
that Plaintiffs
Plaintiffs had
had not
not sufficiently
sufficientlydemonstrated
demonstrated that
that
12 12 PlaintiffVeronica's Plaintiff Veronica'strauma traumawas
was so
so severe
severethat
that she
she could
could not
not be examined
examined by aa male physician,
13 13 and thatPlaintiffs and that notprovided had not
Plaintiffs had provided the the name
nameof
of any
any female
female health
healthprovider
provider who
who could perform
14 14 the examination.
examination.
15 15 After the After the hearing,
hearing, the
the Court
Court gave
gavethe
theparties
partiesuntil
until.Tune
June 12, 2024, to
12, 2024, to find an alternative
16 16 Receivingno expert. Receiving response,the noresponse, theCourt
Courttook
tookthe
thematter
matterunder
under advisement
advisementon
onJune
June 13,
13, 2024.
2024.
17 17 DISCUSSION
18 18 1.
I. Motion for Physical Exam
19 19 Pursuant Pursuant totoGRCP
GRCP Rule 35:
35:
20 (a) Order Order for
for Examination.
Examination. WhenWhen the the mental
mental or
or physical
physical condition
(including the blood group) (including the blood group) of a party a party . . . is in
in controversy,
controversy, thethe
21 court in which the action action isis pending
pending maymay order
order the
the party
party to
to submit
submit
to aa physical
physical or
or mental
mental examination
examination by aa suitably suitably licensed
licensed or
22 certified certified examiner
examiner oror to
to produce
produce forfor examination examination thethe person in the party's custody or legal control.
custody or control. The order order may be made made only on 23 motion for for good
good cause
cause shown
shown andand upon notice
notice to the person to to be examined examined and and to
to all
all parties
parties and
and shall
shall specify
specify thethe time,
time, place,
place,
24
Page 22 of9
off
DECISION AND ORDER Civil Civil Case Case No. CV0379-23,Patio
Pataov,v.South
South Pac.
Pac. Petroleum Corp.
Corp.
I1 manner, conditions, manner, conditions, and
and scope of the
the examination
examination and
and the
the person
person
or persons by or by whom it is to be made.
2 Report of
(b) Report ofExaminer
Examiner
3 (1) (1) IfIfrequested
requested by bythe
the party
party against
against whom
whom an an order
order is made
4 under Rule 35(a) or under Rule or the the person
person examined,
examined, the the party party causing
causing thethe
examination to be made shall deliver to the requesting requesting partyparty a copy 5 of the of the detailed
detailed written
written report
report of
of the
the examiner
examiner setting
setting out
out the
the
findings, including
examiner's findings, including results results of all tests
of all tests made,
made, diagnoses
diagnoses
6 and conclusions, together together with with like reports reports of aall l l earlier examinations examinations of of the the same
same condition. After delivery condition. After delivery the the party party
7 causing causing thethe examination examination shall shall be entitled request to entitled upon request to receive the party against
from the against whom whom the order is made a like like report of any 8 examination, examination, previously or or thereafter made, of the thereafter made, the same condition, unless, in unless, in the case of the case report of examination of a report examination of aa personperson notnot aa 9 party, party, the party shows the party shows that the party that the party isis unable unable to to obtain
obtain it.
it. The
court court on motion may make an order against motion may make an order against a party requiring a party requiring 10 delivery ofofaa report report onon such
such terms
terms asas are
are just, and if if an
an examiner
examiner
fails or refuses fails refuses to to make make aa report
report the
the court
court may
may exclude
exclude thethe
11 testimony if examiner's testimony exalniner's offered at if offered at trial.
12 12 (2)
(2) By
Byrequesting
requesting and
and obtaining
obtaining aa report
report of
ofthe
the examination
examination
so ordered
ordered or byby taking
taking the
the deposition
deposition ofofthe
the examiner,
examiner, thethe party
party
13 13 examined waives waives any
any privilege
privilegethe
the party
party may
may have
have in
in that
that action or
any other involving
involving the
the same
same controversy,
controversy, regarding
regarding the
the testimony
testimony
14 14 of ofevery
everyother
other person
person who
who has
has examined or may thereafter examine the party in respect
respect of
of the same mental
mental or
or physical
physical condition.
15 15 Guam R.
R. Civ.
Civ. P. 35(a), (b).
16 16 While the While the Guam
Guam Supreme
Supreme Court
Court has
has not
not ruled
ruled on
on issues
issues surrounding GRCP 35 surrounding GRCP 35 at
at this
this
17 17 time, the Supreme Supreme Court
Courthas
hasheld
heldthat,
that,"because
"because the
the [GRCP]are
[GRCP] aregenerally
generallyderived
derivedfrom
from... the
18 18 Federal Rules of Federal Rules of Civil Civil Procedure
Procedure ("FRCP"),
("FRCP"),federal
federaldecisions
decisionsthat
that construe
construe the
the federal
federal
19 19 counterparts counterparts toto the the [GRCP]
[GRCP] are
are persuasive
persuasive authority." Government of Guam authority." Government Guam v.
v. O'Keefe
0 'Keefe on
on
20 behalf of behalf Heirs of ofl-Ieirs of Tories
Torres Estate,
Estate, 2018 Guam ,r 9. Accordingly, Guam 4 119. Accordingly, the the U.S.
U.S. Supreme
Supreme Court
Court has
has
21 held that FRCP 35 that FRCP 35 "requires
"requires discriminating
discriminating application application by
by the
the trial judge, who
who must
must decide,
decide, as
as
22 an initial initial matter in every case, case, whether
whether the
the party requesting
requesting a mental
mental or physical
physical examination
examination
23 has adequately demonstrated has adequately demonstratedthe theexistence
existenceof
of the
the Rule's
Rule's requirements" that:
that:
24
Page 33 of9
off
DECISION ANDAND ORDER Civil CivilCase Case No.
No. CV0379-23,
CV0379-23, Palo
Pataov.v.South
South Poe.
Pac. Petroleum
Petroleum Corp.
1 1.
1. The Thephysical
physicalcondition
conditiontotobe
beexamined
examinedhas
has been
been placed
placed in
in controversy,
controversy; and that
dirt
2 2. The Themovant
movanthas
hasshown
shown good
goodcause
cause for
for the
the examination.
examination.
3 Schlagenhaufv. Holder, Schlagenhaufv. Holder, 379 U.S. 104, 104, 117-120 (1964).
117-120 (1964).
4 The U.S.
U.S. Supreme
Supreme Court has
has further held that
further held thatwhen
when aa plaintiff
plaintiff in aa negligence negligence suit
suit
5 asserts injury, as asserts injury, ashere, here,the
theplaintiff
plaintiff "places
"places that
that ... injury
injury clearly in
in controversy
controversy and
and provides
6 the defendant defendant with with good cause
cause for
for an
an examination
examination to determine
determine the existence and of such and extent of such
7 asserted injury." Id., asserted injury." Id., at at 119.
119. The
The Plaintiffs expressly
expressly state that they state that they do
do not
not challenge
challenge SPPC's
8 procedural procedural right to request a medical medical examination under GRCP 35.
under GRCP 35. Thus,
Thus, the Court finds as
as an
9 initial initial matter that the matter that the injury
injury isis in controversy controversy and that SPPC and that SPPC has shown good cause has shown cause for an an
10 10 examination.
examination. The only only issue
issue in
in dispute, therefore,
therefore, is whether to
to grant
grant SPPC's
SPPC's request
request as-is or to
11 apply the parameters parametersrequested
requestedby
byPlaintiffs.
Plaintiffs.
12 12 II.
11. Whether the Court Court should order that
that Dr. Billing
Bielingconduct
conduct the
the examination.
examination.
13 13 SPPC SPPC specifically
specifically moves for the the examination to be
examination to be performed by Dr.
performed by Dr. Bieling.
Bieling. In
In
14 14 determining whetherto determining whether to order order Dr.
Dr. Bieling to
to conduct
conduct the
the examination,
examination, the
the Court
Court takes
takes into
15 consideration thefollowing:
consideration the following:(1)
(1) Dr.
Dr. Bieling
Bieling is
is aaboard-certified
board-certified OB/GYN
OB/GYN who
who has
has been
been
16 16 practicing on Guam practicing for more Guam for more than
thanseventeen
seventeen( (17) years,(2)
17) years; (2) the
the scope
scope of
of the examination
examination will
will
17 17 be a physical physical examination of
of Plaintiff
Plaintiff Veronica's
Veronica'sinner
innerthigh
thigh and
and genitalia,
genitalia, including
including functional
functional
18 18 testing testing and and inquiry
inquiry into related
related medical
medical matters
matters appurtenant
appurtenant toto the
the examination;
examination, and
and (3)
(3) the
19 19 examination examination is is expected
expected to
to take
take less
less than
than one
one hour.
hour.
20 Plaintiffs first argue argue that
that SPPC's right
right to
to compel
compel aaphysical
physical examination
examination does
does not
not
21 extend to an absolute right to absolute right to determine that the determine that theexamination examinationbe
beperformed
performedby
by aa physician
physician of
of
22 SPPC's SPPC's choice.
choice. Opp.,
Opp., at 2 (citing Stinchcomb Stinchcomb v. US.,
U.S., 132
132 F.R.D. 29,
29, 30 (1990) (finding
(finding that
that aa
23 movant has no no absolute
absolute right
right to
to an
an examination
examination by
by a physician oftheir
their choice,
choice, and
and that
that the trial
24 Page 4 of9
DECISION AND ORDER ORDER
Civil Civil Case Case No. CV0379-23,Patao v. South Pac.
Pac.Petroleum
Petroleum Corp.
1 court may require a showing of "medical acceptance and safety", and may weigh the need for a
2 procedure against the pain and safety risks associated with it)). Plaintiffs similarly cite Liechty
3 v. Terri!!
Terrill Trucking Co.
Co. for the proposition that, even when the trial court finds that selection of
4 the examining examining physician physician is initially a prerogative prerogative of the moving moving party,
party, the
the selection
selection may
5 become subject to to the court's intervention if if the parties cannot agree and if such intervention is
6 necessary to necessary to address the examinee's safety and address the and comfort comfort concerns.
concerns. 53 F.R.D 590, 591 (E.D.
(E.D.
7 Tenn. 1971).
Tenn. 1971).
8 Finally, Plaintiffs Plaintiffs cite to Gale v. Naf'I Transl.
v. Nat'/ Transp. Co, in which which that
that court
court denied
denied that
that
9 plaintiffs intiffs rrequest u e st forr aa fefemale
m a le pphysician
hysic ia bbecause
e c se sa
said pplaintiff
la intiff provided
vid e d no
no fa ts to
facts to
10 10 demonstrate demonstrate aa preference preference for
for female
female physicians
physicians and
and because
because the
the physician
physician who
who had been
been
11 treating treating her her in connection to
in connection to the
the injuries
injuries alleged
alleged in
in the
the plaintiffs complaint
complaint were male.
male. 7
12 12 F.R.D. 237,238 238 (S.D.N.Y.
(S.D.N.Y. 1946). Plaintiffs argue that, unlike the facts in Gale, 1946). Plaintiffs Gale, despite the fact
13 13 Plaintiff Veronica was seen by male medical staff that Plaintiff staff airer after her injury, her request for a female
14 14 physician is is substantiated
substantiated by her
her documented
documented and psychological psychological medical history. Plaintiffs'
Plaintiffs'
15 15 sole evidence for this is Plaintiff Plaintiff Veronica's
Veronica's deposition
deposition statements,
statements, found in Razzano Razzano Decl.,
Deel.,
16 16 Exs. A-D (April 10, 10, 2024).
2024). As part of
of the filing,
filing, Plaintiffs
Plaintiffs also
also submitted
submitted several pages from from
17 17 the website websites ofoffemale femaleOB/GYNs
OB/GYNstotodemonstrate
demonstrate that
that alternative
alternative female
female physicians
physicians were
were
18 18 available to conduct the examination. Razzano Razzano Decl.,
Deel., l11-16
1-16 (April 10, 2024).
19 19 In its its Reply,
Reply, SPPC
SPPC argues
argues that
that Plaintiffs
Plaintiffs have
have presented
presented no valid
valid objection
objection to Dr.
Dr.
20 Bieling performing the examination. SPPC asserts that Dr.
asserts that Dr. Bieling's Bieling's gender is not a valid basis
21 to object, object, and that other other courts
courts have rejected
rejected similar objections to having a male objections to male provider provider
22 perform the examination perform the examination of of aa female
female plaintiff.
plaintiff Specifically,
Specifically, SPPC cites
cites to Pierce v. L eanna Aveanna
23 Healthcare, LLC, Healthcare, LLC, 2023 2023 WL 2754660
2754660 (W,D.
(W.D. Tex. 2023),
2023), Spadix-Marasco v. Austin Regional Shadix-Marasco v.
24 Page 5 of9
DECISION DECISION ANDAND ORDER Civil CivilCase CaseNo.
No.CV0379~23, Pataov.v. South CV0379-23, Patio South Poe.
Pac. Petroleum Corp.
Corp.
11 Clinic, Clinic, P.A., 2011 WL 2011483 2011 WL (W.D. Tex. 2011), 2011483 (W.D. 2011), and and Gale,
Gale, 77 F.R.D. 237
237 (S.D.N.Y. 1946).
1946).
2 SPPC further further asserts that Plaintiff asserts that Plaintiff Veronica's deposition deposition testimony
testimony was
was improperly
improperly
3 attached to her counsel's attached to counsel's declaration, declaration, and
and that
that counsel cannot properly authenticate authenticate an excerpt
4 from aa deposition deposition transcript
transcript even if
ifcounsel
counsel was
was present
present at the deposition.
at the Orr v.
deposition. (citing Orr v. Bank Bank
5 of America of America NT NT &&SA,
SA, 285
285 F.3d
F.3d 764,
764, 774
774 (9th
(9th Cir.
Cir. 2002).
2002). SPPC
SPPC argues that, even
argues that, even if the
the
6 testimony were admissible, it does not establish establish a valid objection objection to
to aa male
male physician
physician because
because
7 Plaintiffs Plaintiffs offer offerno
no medical
medical or
or psychological
psychologicalrecords
records to
to demonstrate that Plaintiff demonstrate that Plaintiff Veronica Veronica was
8 so traumatized that thatshe
shecould
couldnot
notbe
beexamined
examinedby
byaamale
malephysician,
physician,because
becausePlaintiffs
Plaintiffsallegedly
allegedly
9 admit that she admit that she has has been
been previously
previously treated
treated by
by male providers without without apparent issue. (citing apparent issue.
10 10 Opp.
Opp. at at 3),
3), and
and because
because no
no psychiatrist,
psychiatrist, psychologist, psychologist, or
or other
other medical
medical professional
professional has
has
11 produced produced aa statement statementtotocorroborate
corroboratePlaintiffs'
Plaintiffs' claim
claim that
thather
herwell-being
well-being would
would suffer from aa
12 12 male physician conducting the the examination.
13 13 Finally, SPPC SPPC argues
argues that Plaintiffs have have provided
provided no
no alternative
alternative provider,
provider, but
but have
14 merely printed out the the websites
websites of clinics
clinics with
with female
female OB/GYNs.
OB/GYNs.SPPC
SPPCasserts
asserts that
that its
its counsel
counsel
15 15 contacted one of contacted one of the the clinics,
clinics, Sagua
SaguaMaiiagu,
Maiagu, to see if
if any
any of
oftheir
their female
female physicians
physicians would be
16 16 willing willing to to conduct
conduct the
the examination and that
examination and thatthe
theclinic
clinic did
did not
not reply.
reply. ((citing Thompson Deel., Decl.,
17 17 C (April Ex. C 23,2024)).
(April23, 2024)).SPPC
SPPCargues
arguesthat,
that, until
until Plaintiffs
Plaintiffsput
put forward
forward the
the name
name of
ofaa physician
physician
18 18 willing to willing to perform perform the examination,
examination,the
theCourt
Courtshould
shouldreject
rejectPlaintiffs'
Plaintiffs'objection
objectiontotoBieling.
Billing.
19 19 At the the hearing
hearing on
on May
May29,
29,2024,
2024, Plaintiffs
Plaintiffs additionally
additionally cited
cited Pettinato v. EQR-
Pettinato v. EQR-
20 Rivertower, Rivertower, LLC., 182 N.Y.S.3d 46, 182 N.Y.S.3d 46, to
to support
support their
their case,
case, stating
stating that
that while Gale
Gale was aa 1946
1946
21 New York York case,
case, Pertinato
Pettinato was
was aa 2023
2023 New York
York case
case relevant
relevant to
to this
this issue.
issue. Plaintiffs
Plaintiffs
22 specifically read from Petfinafo:'We Pettinato: 'We are indeed indeed mindful
mindful that the manner
that the mannerin
in which
which a pelvic
23 exam is performed may may be embarrassing andeven embarrassing and evenhumiliating.
humiliating.Indeed,
Indeed,totoalleviate
alleviateplaintiffs
plaintiffs
24 Page 6 of9
DECISION ANDAND ORDER Civil CivilCase Case No.
No. CV0379-23, Pataov.v.South CV0379-23, Palo South Pac.
Pac. Petroleum
Petroleum Corp.
Corp.
1 apprehensions we mandate that the procedure be conducted by a female doctor to be chosen by
2 defendants." 182 defendants." 182 N.Y.S.3d N.Y.S.3d at
at 53.
53. On
On the same day, Plaintiffs tiled filed aa Notice
Notice of
of Supplemental
Supplemental
3 Authority with Authority with a copy the case copy of the case in
in frill.
full. On May
May 31,
31, 2024,
2024, SPPC
SPPC filed
filed its
its Response
Response to
4 Plaintiffs'
Plaintiffs' Supplemental Authority, noting Supplemental Authority, noting that that the
the Pettinato court
u r t also
lso held
ld tha
that "[
"[a]
5 conjectural assertion that conjectural assertion that a medical medical exam might trigger an unsubstantiated unsubstantiated PTSD condition is
6 not sufficient to warrant limiting the the scope
scope of
of an
an otherwise
otherwise appropriate
appropriate [independent
[independent medical
7 examination m ina tio n comprised c o m p r ise d of
o f a c comprehensive gynecological o m p r e nsive gyne o lo gic a l examination]." Id . at e xa m ina tio n]. "Id. a t 552.
2
8 Ultimately, however, the Court does Ultimately, however, does not find Pettinato persuasive ro this persuasive to this case. First, as the case. First,
9 dissent in that that case
case notes,
notes, "[t]he gender of the examining doctor [was]
[was] not
not at issue but the
10 10 intrusive procedure itself." Id., at 60, n.2 (Singh, J., dissenting in part). Second, while Pettinato itself." Id.,
11 11 is indeed a 2023 2023 New York decision, it is, unlike Gale, Gale, issued from a New York state state court, not
12 12 a New York York federal
federal district court. Thus, the Court will not take Pettinato under consideration court. Thus,
13 13 for the purposes purposes of
of construing
construing GRCP Rule 35.
14 14 "The manner manner and
and conditions
conditions of
of aa court-ordered medical examination, court-ordered medical examination, as as well
well as the
15 15 designation of the person or persons to conduct such an examination, are vested in the sound
16 16 discretion discretion of the trial trial court." Sander v. Mayo court." Sanden Mayo Clinic, Clinic, 495 F.2d
F.2d 221,
221, 225
225 (Sth
(8th Cir.
Cir. 1974)
1974)
17 17 (construing the scope of the federal federal trial
trial court's authority under FRCP 35).
18 18 Ultimately, the Court, Ultimately, the rt, in in exercising
exercising its
its ddiscretion,
iscretio n, ddetermines
etermines the
the manner
manner and
and
19 19 conditions conditions of the examination.
examination. This exercise of of discretion
discretion requires
requires the Court to consider consider the
20 reasonableness and fairness of die unique facts of the case in relation to the needs of the parties of the
21 under under the presented presented circumstances.
circumstances. InIn this
this case,
case, the Court
Court weighs
weighs the
the difficulties
difficulties and
and
22 discomfort posed by discomfort posed by Plaintiff Veronica's asserted past traumatic traumatic history
history against
against SPPC's need
23 to defend against the defend against the claims claims at
at the
the core
core of this
this litigation.
litigation. IfIfother
other options
options were
were available
available to
24 Page 77 of9
off
DECISION AND ORDER Civil Civil Case Case No. CV0379-23,Patio
Pataov.v. South
South Pay. Cold.
Pac. Petroleum Corp.
11 mitigate mitigate this competing competing interest, the Court interest, the Court would certainly certainly consider
consider them,
them, and
and in fact
fact has
has
2 allowed allowed the the parties to attempt to develop other options.
attempt to
3 Plaintiffs stated stated at the hearing that the hearing that they
they would
would be
be willing to
to stipulate
stipulate to Dr.
Dr. Mariana
Mariana
4 Cook-I-luynh Cook-Huynh ofof Sagua Sagua Mafiagu conducting the examination conducting the examinationif if SPPC would
would agree
agree to it, but
but
5 there does not seem to have been any progress made made toward securing
securing her
her services or any other
6 female physician's physician's services,
services, and
and it was
was not
not established
established at the
the hearing
hearing that
that any
any other female
7 OB/GYN O8/GYN is is available
available to
to perform
perform the
the examination.
examination. Because Plaintiffs do Because Plaintiffs do not seem to have have
8 secured secured aa qualified qualified female physician to conduct the examination, conduct the examination,even even after
after having
having been
been given
given
9 the the opportunity to designate opportunity to designate and and confirm
confirm another
another physician, the Court physician, the Court has
has no
no current
current
10 10 alternative. Accordingly, the alternative. Accordingly, in its Courtin
the Court its exercise exercise of
of its discretion finds that discretion finds thatDr.
Dr. Bieling
Billing is
is
11 appropriate andin appropriate and infact factthe
theonly
only option
option for the examination.
12 12 III.
111. Plaintiff Veronica's Character
13 13 In its Reply, SPPC SPPC further
further challenges the truthfulness truthfulnessof
ofPlaintiff
Plaintiff Veronica's
Veronica's objections
14 14 to the examination and assailsPlaintiff and assails Plaintiff Veronica's Veronica'scharacter
characterfor
fortruthfulness
truthfulness based
based upon a prior
15 conviction conviction for for theft
theft and
and aa judicial
judicial determination
determination that
that she
she forged
forged documents
documents in relation to that that
16 16 theft, and uponother and upon otherlegal
legalproceedings
proceedingsinvolving
involving Plaintiff
Plaintiff Veronica. Generally, Generally, SPCC
SPCC attempts
attempts
17 17 to challenge the credibility credibility of
ofher
herobjections
objectionsbased
based upon
upon this narrow
narrow class of
of character evidence
evidence
18 18 governed governed by by Guam
Guam Rules of
ofEvidence
Evidence608
608 and
and 609.
19 19 However, this this argument
argument is not properly before the Court and involves evidence and involves evidence that that is
20 the subject of a motion motion scheduled to be heard. purposesof heard. For the purposes of this this motion,
motion, the
the evidence is
21 not not relevant relevant for the
the Court's
Court's consideration, since the consideration, since the Plaintiffs Plaintiffs do
do not challenge
challenge SPPC's
SPPC's
22 22 procedural procedural right to the the examination
examination and
and the Court
Court has
has herein determined that there are no other
23 options available available than
than the examination as arrangedby as arranged by SPPC.
SPPC.
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DECISION AND ORDER Civil Case No. CV0379-23, Case No. CV0379-23, Parao Patao v. South Poe. Petroleum Co,p.
South Pac. Cold.
11 CONCLUSION
2 There being no objection from Plaintiffs Plaintiffs to
to the
the right
right to
to an
an exam,
exam, and
and there
there being no
3 alternative alternative physician to conduct conduct said exam, the Court Court ORDERS the examination of Plaintiff examination of
4 Veronica L.G. Patao Patao by Dr. Billing,
Bieling,tototake
takeplace
place at
at Dr.
Dr. Shieh's
Shieh's clinic
clinicin
inTamuning,
Tamuning, Guam,
Guam, no
5 more than thirty (30) days &om than thirty from the issuance of this Order.
issuance of
SEP UP SEP O62[]24
2024
6 IT IS SO S0 ORDERED _ _ _ _ __
7 my
¢
1
8 HONORABLE HONORABLE ARTHUR R. BARCINAS 9 Judge, Judge, Superior Court of Guam Guam
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