Opinion
No. CV-18-3595-PHX-GMS (DMF)
08-10-2020
Alexis Gabrielle Dinsbach, Plaintiff, v. Candice Harris, et al., Defendants.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
This matter is before the Court on Motion for Sanctions and Notice of Good Faith Conferral filed by Defendants Maricopa County and Penzone (Doc. 81). A response has been filed (Doc. 83). Defendants Maricopa County and Penzone filed a reply several days late due to a calendaring error (Docs. 84, 86), Plaintiff moved to strike the reply on the basis of the late filing (Doc. 85), and the Court allowed the late filing of the reply (Doc. 87). The Motion for Sanctions (Doc. 81) is ripe for a decision.
This case was referred to undersigned for pretrial proceedings (Doc. 8). Because the motion before the Court involves sanctions under Rule 37, Federal Rules of Civil Procedure, undersigned may only issue a report and recommendation if the Court finds sanctions are appropriate. See LRCiv 72.2(a)(1). After a review of the parties' briefing and the record in this matter, undersigned recommends that Defendants' Motion for Sanctions (Doc. 81) be granted for the reasons set forth below.
I. BACKGROUND
This is an excessive force and civil rights action filed by experienced and multiple counsel on Plaintiff's behalf (Doc. 1). The Complaint summarizes the alleged events as follows:
This is an action arising from a brutal and unprovoked assault on Alexis Gabrielle Dinsbach ("the Assault"), a 26-year-old mentally incompetent pre-trial detainee in Estrella Women's Jail. After being harassed by her bunkmate after lights-out, Ms. Dinsbach was severely beaten by Candice Harris, the MCSO deputy on duty who noticed the disturbance. Defendant Harris repeatedly punched a defenseless and much smaller Dinsbach in the face and head as Dinsbach crawled back in her bunk and attempted to cover her face from the onslaught. Harris then walked around to the other side of Dinsbach's bunk, where she dragged Dinsbach to the ground and repeatedly punched and stomped Dinsbach's face and head, breaking her jaw.(Doc. 1 at 1). The Complaint alleges claims against Candice Harris, Maricopa County, and Sheriff Paul Penzone.
At the outset, the Court notes that Plaintiff "has a well-documented history of severe mental illness, with diagnoses that include PTSD, severe major depressive disorder with psychosis, anxiety disorder, and Schizophrenia, among other things" (Doc. 83 at 2). In addition to physical injuries, the Complaint alleges that Plaintiff "who was already incompetent and mentally and emotionally fragile, also suffered severe mental and emotional trauma, distress, suffering, and fear" from the assault and "continues to suffer from these injuries today" (Doc. 1 at 9). Moreover, Plaintiff's competency, or lack thereof, to make a timely notice of claim regarding the incident has been an issue in this case from its start (Id. at 2-3).
On March 27, 2020, before the deadline for defense expert disclosure, Defendants Maricopa County and Penzone filed a Motion to Compel Rule 35 Independent Psychological Examination or in the Alternative Limit the Opinions of Plaintiff's Psychology Expert, whose report opined that Plaintiff had suffered psychologic damages caused by the Defendants (Doc. 65; see Doc. 38 at 2 for deadline). Defendants Maricopa County and Penzone explained that around "March 6, 2020 Plaintiff produced an expert report by Gwen A. Levitt, D.O. . . . . While it was expected that [Dr.] Levitt would opine on whether Plaintiff was or was not competent for the purpose of serving a timely notice of claim, her report also suggests that Plaintiff suffered psychological damages as a result of the incident" (Doc. 65 at 3).
March 6, 2020, was the deadline for Plaintiff's expert disclosure (Doc. 38 at 2).
In their motion to compel a Rule 35 Independent Psychological Examination ("IPE"), Defendants Maricopa County and Penzone excerpted portions of Dr. Levitt's report supporting their position that it appeared to defense counsel for the first time that Dr. Levitt would testify as to Plaintiff's compensable psychological damages from the alleged events, not just her lack of competency to file a timely notice of claim. For example, Dr. Levitt's report disclosed in March 2020 stated:
Records indicate that [Dinsbach] began having significant psychotic symptoms after the assault. The assault may have triggered a decompensation of her mental health issues, that have been established by treatment records and reports both of experts and her own.(Id. at 3).
Defendants described the scope of the requested Rule 35 IPE as "[o]bjective psychological testing, which generally takes 2 hours", and a "semi-structured interview, which generally takes 3-4 hours and consists of questions that include Plaintiff's psychological and psychosocial history" (Id. at 4). Defendants also assured that the testing and the interview would be audio and video recorded, which would be disclosed along with the report (Id.). Defendants asked for alternative relief that "Dr. Levitt not be permitted to render any opinions which would convey to a jury that Plaintiff suffered new psychological damages or an exacerbation of pre-existing psychologic conditions because of the July 26, 2017 incident with Officer Harris" (Id. at 5).
Plaintiff opposed the motion to compel Plaintiff to submit to the Rule 35 IPE, asserting among other things, that Dr. Levitt "will not and does not offer an opinion as to whether Defendants in fact caused [Plaintiff] to suffer psychological harm" (Doc. 68 at 3). Plaintiff asserted that Dr. Levitt March 2020 report "focuses primarily on the competency issue [and] also discusses, in general terms, the unique vulnerabilities of this population and the potential consequences of placing someone like [Plaintiff] in segregation." (Id. at 1). Yet, Plaintiff also conceded that Dr. Levitt would testify regarding psychological damage from the alleged use of force forming the basis of Plaintiff's claims. Plaintiff stated that "Dr. Levitt will merely explain the potential vulnerabilities that someone with Plaintiff's mental conditions (which include chronic PTSD) can have, how an incident like this could impact them" (Id. at 3). Plaintiff urged that the Rule 35 "exam would provide little if any added value, as Defendants can obtain the information they seek elsewhere" (Id. at 2). Plaintiff also argued that the Defendants had waited too long to request an IPE, even though Defendants had filed their motion just weeks after the Plaintiff's disclosure which prompted the Rule 35 IPE request (Id. at 2, 4).
In Defendants' reply in support of their motion for a Rule 35 IPE, Defendants explained that "[f]rom June 28, 2019 until March 6, 2020, Plaintiff never disclosed that Dr. Levitt had opinions beyond the issue of competence" and that "[w]hen Plaintiff disclosed Dr. Levitt's opinions on March 6, 2020, County Defendants were surprised that her opinions included emotional and/or psychological damages allegedly associated with the incident" (Doc. 69 at 4). Defendants also informed that if the Court ordered the IPE, "the parties have arranged for the evaluation to be done on May 11th (even if it has to be done remotely) with a report by May 26th" (Id. at 5).
On April 23, 2020, the Court granted Defendants Maricopa County and Penzone's motion to compel, ordered Plaintiff to appear for a Rule 35 IPE on May 11, 2020, at a time and location coordinated by counsel, and extended necessary case management deadlines to allow for the Rule 35 IPE (Doc. 70). Defendants then properly noticed the Court ordered Rule 35 IPE (Doc. 72).
The Court was notified that Plaintiff had not appeared for the Court ordered and properly noticed May 11, 2020, Rule 35 IPE when Defendants Maricopa County and Penzone filed an unopposed motion to reschedule the Rule 35 IPE and continue case management deadlines (Doc. 75). Defendants explained that rescheduling of the Rule 35 IPE and continuance of the case management deadlines was sought in lieu of filing a motion for sanctions for Plaintiff failing to appear for the Court ordered IPE:
Plaintiff agreed to pay for the missed evaluation and requested a new date for the IPE. These Defendants agreed to a new date, contingent on their expert's schedule, and on getting approval of the Court since the Court ordered the IPE to take place on May 11, 2020. After discussion with Defendants' expert (Dr. Nelson), her next available date to conduct the IPE is June 1st or 2nd. Plaintiff agreed to those dates and June 2nd was selected in case the Monday prior to the IPE was needed to resolve any last-minute issues.(Id. at 2). The Court granted the motion to reset the Rule 35 IPE and continued the case management deadlines (Doc. 76). Defendants then noticed the second setting for the Court ordered Rule 35 IPE (Doc. 77).
Plaintiff failed to appear for the reset Rule 35 IPE on June 2, 2020, leading to Defendants' motion for sanctions presently before the Court (Doc. 81). The parties agree that Plaintiff paid Defendants' expert's fee of $3740 incurred for the first missed Court ordered Rule 35 IPE on May 11, 2020 (Doc. 81 at 2).
II. DEFENDANTS' MOTION FOR SANCTIONS (Doc. 81)
Defendants Maricopa County and Penzone move for sanctions against Plaintiff for twice failing to comply with this Court's Order to attend an IPE (Doc. 81). Defendants report, and Plaintiff does not dispute, that communications between counsel to resolve the dispute, including a lengthy phone discussion, failed (Id. at 3; Doc. 83).
In their motion for sanctions, Defendants assert regarding the first Rule 35 IPE set for May 11, 2020, that Plaintiff refused to go with the driver when her arranged ride arrived to pick her up to take her to the Court ordered IPE appointment (Doc. 81 at 2). Defendants further assert that on June 2, 2020, Plaintiff again refused to go with the driver who had been sent to take her to the Court ordered IPE appointment (Id. at 3). Plaintiff's counsel had arranged the rides for Plaintiff to the Court ordered IPE appointments (Id. at 2-3). Plaintiff does not dispute this description of events (Doc. 83 at 3-4).
Regarding appropriate sanctions, Defendants state that they are "requesting sanctions sufficient to compensate Defendants' for the cost of the second IPE invoice [of $3740] and to remediate the prejudice that the IPE was scheduled to avoid, namely the anticipated psychological damages opinions outlined in Dr. Levitt's March 6, 2020 report" (Doc. 81 at 4). Defendants argue that such sanctions are reasonable and appropriate. Defendants specifically request that the Court:
Defendants have submitted the invoice in support (Doc. 81-1 at 2).
1. Order Plaintiff to pay $3740 for Dr. Nelson's invoice for the second missed IPE within fourteen (14) days;(Doc. 81 at 6-8). Although Maricopa County attorneys in the civil division keep track of their time, Defendants are not requesting attorney fees as part of requested sanctions (Id. at 4).
2. Order that Dr. Levitt is prohibited from testifying, either specifically or via general psychological principals, that in any way opines, suggests, or attempts to lay the foundation to argue that Plaintiff suffered psychological damages or an exacerbation of preexisting psychologic conditions following the July 26, 2017 incident with Officer Harris as outlined in Dr. Levitt's March 6, 2020 report;
3. Order that Plaintiff is prohibited from attempting to "back door" alleged psychological damages by eliciting general psychological testimony from Dr. Levitt, which, when combined with testimony from Plaintiff or other witnesses, would suggest to a jury that Plaintiff may have suffered psychological damages or an exacerbation of pre-existing psychologic conditions because of the July 26, 2017 incident with Officer Harris or because of Ms. Dinsbach's incarceration following the incident, as outlined in Dr. Levitt's March 6, 2020 report;
4. Order that to the extent Dr. Levitt is permitted to render psychological testimony of a "general" nature, no such testimony shall be permitted if it would violate paragraphs 2 or 3 above and no such general testimony shall be utilized as a basis to request an award of psychological damages as outlined in Dr. Levitt's March 6, 2020 report;
5. Order that Dr. Levitt is prohibited from utilizing the two missed IPEs as evidence against Defendants in any way.
In Plaintiff's response to the motion for sanctions, Plaintiff does not dispute that she failed to appear for two Court ordered Rule 35 IPE settings nor does she dispute that she should pay the costs of the missed IPE appointments (Doc. 83 at 1). As recounted in the background section, supra, Plaintiff already paid for Defendants' out of pocket cost of the first missed Court ordered IPE, $3740. Plaintiff also accepts responsibility for the cost of the second exam. Despite that Plaintiff "refused" to get into the vehicle to go to the Court ordered Rule 35 IPE settings, Plaintiff's counsel assures that he "would personally ensure [Plaintiff's] presence at the [third] exam by traveling to Phoenix" from his San Diego residence (Id. at 4).
Plaintiff further asserts that:
precluding Plaintiff's expert, Dr. Gwen Levitt, from testifying about the psychological impact of Defendants' conduct, as Defendants request, would be a disproportionately severe sanction. Limiting Plaintiff's expert in this way would not only eliminate a major item of damages, but would also impede her ability to meet her burden of proof on her claims against the County. Neither Plaintiff's conduct nor the potential prejudice it may cause Defendants justify such a severe sanction.(Id. at 1) (emphasis added). The reply also states that "Dr. Levitt will also explain the potential vulnerabilities and differences in harm, both in kind and severity, that a mentally ill person with diagnoses relevant to this case (including PTSD and anxiety disorder) could suffer as a result of an assault" (Id. at 3). Plaintiff's reply unequivocally confirms what Defendants learned from Plaintiff's March 2020, disclosures -- that in addition to opinions about lack of competency to make a timely notice of claim, Plaintiff's expert Dr. Levitt intends to testify regarding compensable psychological damages Plaintiff suffered from the alleged assault because of Plaintiff's mental health vulnerabilities.
Plaintiff argues that her failure to attend the Court ordered Rule 35 IPE was not willful, citing her mental illness and implying that Plaintiff's refusal to go to the IPE was the fault of Plaintiff's counsel's failure to fully appreciate the severity of Plaintiff's mental illness (Id.). Plaintiff asserts that any "prejudice Defendants may suffer from the missed examination can either be cured by ordering Plaintiff to pay the costs incurred and to attend the examination" (Id. at 4). Plaintiff also argues that "because Dr. Levitt's opinions are almost entirely founded upon the records, not her interview of Plaintiff (whom she never examined, and certainly never conducted the lengthy and in-depth examination Defendants seek), Defendants can obtain the same information without an examination and will be minimally, if at all, disadvantaged" (Id.). These latter arguments echo arguments Plaintiff made in opposition to the Rule 35 IPE in the first place.
In their reply in support of sanctions, Defendants expound on their arguments and oppose a third IPE setting (Doc. 84 at 6-7). Defendants further acknowledge that Dr. Levitt's opinion about whether Plaintiff was competent enough to have filed a notice of claim and lawsuit within the statutory deadlines is a "separate topic" from the Court ordered Rule 35 IPE purpose (Id. at 8, fn.1).
III. DISCUSSION
Rule 35(a) of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.") provides that the "court where the action is pending may order a party whose mental or physical condition--including blood group--is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner."
"Federal Courts have the authority to sanction litigants for discovery abuses both under the Federal Rules of Civil Procedure and pursuant to the court's inherent power to prevent abuse of the judicial process." Finley v. Hartford Life and Accident Ins. Co., 249 F.R.D. 329, 331 (N.D. Cal. 2008) (citations omitted). Rule 37(b), Fed.R.Civ.P., empowers the courts to impose sanctions for failures to obey discovery orders, which can be "either for remedial and compensatory purposes or punitive and deterrent purposes." Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d 770, 784 (9th Cir. 1983).
Rule 37(b)(2)(A), Fed.R.Civ.P., provides that if a party "fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35 or 37(a), the court where the action is pending may issue further just orders." The rule provides for a variety of sanctions, including under subsection (ii) which expressly provides that the court may prohibit "the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence." The rule further provides that "[i]nstead of or in addition [to the other permitted sanctions] the court must order the disobedient party ... to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust." Fed.R.Civ.P. 37(b)(2)(C).
Pursuant to either the court's inherent powers or Rule 37(b), district and circuit courts have imposed case terminating sanctions in some instances when parties failed to appear for or participate meaningfully in IPE's or IME's. See, e.g., Enwere v. Terman Apartments, L.P., 2009 WL 1814423 (N.D. Cal.) (dismissing action where plaintiff "stormed out of" IME and "defiantly refused to cooperate in any meaningful way in the [e]xamination, rendering it completely useless"); Koelling v. Livesay, 239 F.R.D. 517 (S.D.Ill. 2006) (upholding dismissal where plaintiff refused to cooperate in examination despite agreement to request by defendant); Daggett v. Wollangsk, 189 Fed.Appx. 504 (7th Cir. 2006) (affirming dismissal after failure to submit to ordered IME and failure to provide medical records releases). Nevertheless, the Ninth Circuit requires less drastic sanctions when available. Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116 (9th Cir. 2004); see also Falstaff Brewing Corp. v. Miller Brewing Co., 702 F.2d at 782-783. Here, less drastic sanctions are readily available and remedial as well as compensatory sanctions are appropriate rather than punitive or deterrent sanctions.
In her Complaint initiating this action, Plaintiff put her mental condition at issue not only regarding the issue of competency for filing a timely notice of claim, but regarding damages. Plaintiff placed her mental state into controversy by asserting she was mentally and emotionally fragile before the assault, had suffered severe mental and emotional trauma from the alleged events, and was continuing to suffer those injuries (Doc. 1 at 9). These were not typical emotional distress damages, but were damages specific to Plaintiff's particular mental health condition(s) before the alleged events. Plaintiff's expert disclosure in March 2020, triggered Defendants' request for a Court ordered Rule 35 IPE because Defendants learned for the first time that Plaintiff intended to present expert testimony relating to Plaintiff's mental and emotional conditions before and after the alleged events to be used as a basis for compensable damages.
In opposition to any sanctions for Plaintiff's refusal to attend the Court ordered IPE, Plaintiff's focuses on the materials and information that her expert relied on in forming opinions. Plaintiff argues that Defendants need not have Plaintiff submit to an IPE for Defendants' expert to counter Dr. Levitt's opinions. The Court finds that Plaintiff's focus on what her own expert relied upon is misplaced. Rule 35, Fed.R.Civ.P., does not limit an IPE to the methods used by the opposing party's expert.
Here, the Court ordered IPE settings were made after Defendants' counsel made scheduling arrangements through Plaintiff's counsel. Twice, Plaintiff refused to get into the vehicle her counsel pre-arranged for her transport to the Court ordered IPE. On this record, the Court cannot conclude that Plaintiff's failure to attend the two IPE settings was excusable or substantially justified and the Court cannot conclude that award of expenses would be unjust. Further, it is not reasonable to believe that Plaintiff will show up for, let alone participate in, any Court ordered IPE, even if it is set for a third time. Plaintiff's counsel cannot force his client into a vehicle, and paying for the first missed IPE did not result in enough incentive for Plaintiff to show up for the second IPE. Even if Plaintiff is ordered to pay for the third setting, the Court is cognizant that the case management deadlines have already been extended twice for the two missed IPE's. If the Court were to order a third IPE setting, it would likely again require continuance of the case management deadlines for expert depositions and dispositive motions. On July 16, 2020, Defendants noticed the Zoom deposition of Plaintiff's expert for August 21, 2020 (Doc. 82). Thus, it appears to the Court that without the third IPE setting, the parties are on track to meet the current case management deadlines.
Under Rule 37(b)(2)(C), Fed.R.Civ.P., the Court is required to order that Plaintiff bear the $3740 cost of the second missed Court ordered IPE. Nevertheless, monetary sanctions alone are insufficient redress for Plaintiff's refusal to go to the second scheduled Court Ordered Rule 35 IPE. Plaintiff's refusal resulted in Defendants' expert not being able to conduct the evaluation that she finds reasonably necessary for her to opine on Plaintiff's condition and related claimed mental and emotional damages from the alleged events. The record before the Court requires an inference that had Plaintiff not sought to present expert testimony about Plaintiff's psychological damages from the alleged events, Defendants likewise would not have pursued an IPE with their own expert regarding such. Precluding Plaintiff from presenting expert testimony from Dr. Levitt relating to psychological damages is therefore a reasonable and proportional remedial sanction.
Importantly, under the recommendations below, Plaintiff is not precluded from presenting evidence of her psychological, mental, and emotional distress damages from the alleged events, but is only precluded from presenting expert evidence through Dr. Levitt supporting any psychological or mental harm warranting damages. Through any properly disclosed sources other than Dr. Levitt, Plaintiff may present evidence of her psychological, mental, and emotional conditions and the worsening of such for which Plaintiff seeks compensatory damages. Further, Dr. Levitt's opinions and testimony regarding competency are not the subject of Defendants' motion for sanctions, leaving Plaintiff able to present Dr. Levitt's testimony regarding Plaintiff's competency to file a timely notice of claim. The Court agrees with Defendants that Plaintiff's counsel should not be allowed to try to "back door" support for compensatory damages through Dr. Levitt's testimony on other issues and the recommendations below address Defendants' concerns in this regard. In addition, limiting instructions to the jury may be appropriate if Dr. Levitt testifies at trial regarding other issues pertaining to Plaintiff's mental, psychological, and emotional condition, such as Plaintiff's lack of competency to file a timely notice of claim. Such limiting instructions may even be appropriate in lieu of recommendation 3 below depending on proposed trial testimony of Dr. Levitt. Defendants also fear that Plaintiff will try to use the missed IPE's against Defendants at trial (Doc. 81 at 5), but it is difficult to discern how Plaintiff would do so. Thus, the Court has not recommended the sanction relief Defendants request relating to Plaintiff's use at trial of the missed IPE's. Further the recommendations below are narrowly tailored to remediate the harm to Defendants from Plaintiff refusing to attend the second setting of the Court ordered Rule 35 IPE.
Finally, as to Defendants' request first raised in their reply that the Court "also order that Dr. Levitt not be permitted to render standard of care opinions related to County policies and/or procedures since any such opinions were not timely disclosed" (Doc. 84 at 7), the Court declines to address the request because the request is outside the scope of the sanctions motion presently before the Court.
Accordingly,
IT IS RECOMMENDED that Defendants Maricopa County and Penzone's Motion for Sanctions (Doc. 81) be granted as set forth herein.
IT IS FURTHER RECOMMENDED that the Court Order as sanctions that:
1. Plaintiff shall pay $3740 for Dr. Nelson's invoice for the second missed IPE within fourteen (14) days of the District Judge's Order adopting this Report and Recommendation if District Judge chooses to adopt such;
2. Plaintiff is prohibited from presenting testimony of Dr. Levitt that Plaintiff or someone with her pre-existing condition(s) may or would have suffered compensable psychological damages, including an exacerbation of preexisting psychological conditions, from the July 26, 2017, incident with Officer Harris or Plaintiff's incarceration following the incident; in addition, the jury may be given limiting instructions if Dr. Levitt testifies at trial regarding issues other than compensatory damages, such as Plaintiff's lack of competency to file a timely notice of claim;
3. Plaintiff is prohibited from eliciting general psychological testimony from Dr. Levitt, which, when combined with testimony from Plaintiff or other witnesses, would suggest to a jury that Plaintiff has suffered compensable psychological damages, including an exacerbation of pre-existing psychological condition(s), because of the July 26, 2017, incident with Officer Harris or because of Plaintiff's incarceration following the incident; in addition to or in lieu of such prohibition, in the Court's discretion as the case proceeds, the jury may be given limiting instructions if Dr. Levitt testifies at trial regarding issues other than compensatory damages, such as Plaintiff's lack of competency to file a timely notice of claim; and
4. Dr. Levitt's testimony shall not be utilized by Plaintiff's counsel in argument supporting compensation for psychological, mental, or emotional distress damages.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72; see also LRCiv 72.2(a)(1). The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.
Dated this 10th day of August, 2020.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge