United States District Court, S.D. California
ORDER OVERRULING PLAINTIFF'S OBJECTION TO MAGISTRATE JUDGE ORDER RE: SANCTIONS and SUSTAINING DEFENDANT'S OBJECTION TO DECLARATION OF RICHARD D. SAUL [doc. #42]
M. JAMES LORENZ, District Judge.
On September 19, 2013, plaintiff Richard Woulfe filed an objection [doc. #28] to the magistrate judge's Order filed on September 3, 2013 [doc. #21], which imposed sanctions on plaintiff for his failure to participate in an agreed upon independent psychiatric examination ("IPE"). The objection has been fully briefed and is decided without oral argument.
Plaintiff alleges that on March 22, 2010, plaintiff was driving his car when FBI Agent Laura O'Farrell, who was acting within the scope of her employment, collided with the midsection of plaintiff's car. The collision was significant. Plaintiff had a seizure and was unconscious for 30-60 minutes after the accident. He was taken by ambulance to Scripps Mercy Hospital. While there, Plaintiff was assessed as having a closed head injury/concussion and appeared to have short term memory dysfunction. He was kept overnight and when released, plaintiff was advised that he might experience post-concussion symptoms, including headaches, nausea, dizziness, memory loss, concentration difficulties and irritability.
Approximately a month later, plaintiff continued to have neurological symptoms and was examined by a neurologist, who determined plaintiff had suffered a traumatic brain injury and still had elements of post-concussion syndrome.
Plaintiff brought this action against the United States alleging negligence under the Federal Tort Claims Act: plaintiff's injuries resulted from the collision which include, inter alia, continuing cognitive difficulties including memory, attention and decreased cognitive efficiency.
B. Defendant's Motion for Sanctions
The government arranged for Alan A. Abrams, M.D. to conduct plaintiff's IPE. Plaintiff appeared at Dr. Abrams' office as scheduled and with the explicit understanding that the IPE would be tape recorded. Dr. Abrams provided a consent form to plaintiff but he would not sign the consent form because a sentence in the form allowed Dr. Abrams to interview other people about plaintiff. At that point, plaintiff called his attorney for consultation. At plaintiff's request, Dr. Abrams faxed the consent form to Plaintiff's counsel. Following the phone discussion with his attorney, plaintiff requested modifications of the consent form to which Dr. Abrams agreed.
During the time when plaintiff and Dr. Abrams were waiting for counsel to review the consent form, plaintiff asked if Dr. Abrams knew plaintiff's relative, a forensic psychologist. Plaintiff contends Dr. Abrams made negative comments about his relative which made plaintiff "uncomfortable." (Plf's Exh. 2)
Although not entirely clear when the recording device was turned on, it had been activated prior to Dr. Abrams telling plaintiff that it was recording. Plaintiff became upset that the audio recording had commenced before he was given notice that the device was recording. Again, plaintiff indicated he needed to speak with his counsel. When talking with his counsel, plaintiff was "extremely upset, anxious and agitated" about the entire process that had occurred. (Plf's Exhs. 2, 6.)
Plaintiff's counsel and counsel for the government went to Dr. Abrams' office to listen to the recording. Counsel, Dr. Abrams and plaintiff listened to the recording together. Plaintiff became even more distraught contending that Dr. Abrams had erased part of the conversation.
Plaintiff's counsel contends that the recorded conversation demonstrates that Dr. Abrams was condescending and patronizing to plaintiff which is an additional reason why plaintiff became so agitated and anxious that it would have been impossible to have a meaningful and accurate exam. (Exh. 6, ¶¶ 27-29.) Counsel for both plaintiff and defendant agreed that the exam could not go forward.
Defendant then moved for monetary sanctions against plaintiff for his failure to participate in the agreed upon IPE. After full briefing, Magistrate Judge Crawford granted defendant's motion and awarded defendant $2, 950.00, which is the amount Dr. Abrams billed for the time he spent in preparation for and his attempt to ...