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J.M. v. County of Stanislaus

United States District Court, E.D. California

December 17, 2019

J.M., et al., Plaintiffs,




         Currently before the Court are Defendants' motion for leave to reopen discovery for the limited purpose of conducting a mental examination, Defendants' motion for an order requiring Plaintiff Jedidiah Morelos[1] (“Mr. Morelos”) to appear for a mental examination pursuant to Federal Rule of Civil Procedure 35, and Plaintiffs' motion to strike. (ECF Nos. 46, 47, 52.) The Court, having reviewed the record, finds the motions to be suitable for decision without oral argument. See Local Rule 230(g). Accordingly, the previously scheduled hearing set on December 18, 2019, will be vacated and the parties will not be required to appear at that time.


         A. Complaint Allegations

         This action was filed on August 1, 2018, and is proceeding on Plaintiffs' second amended complaint filed on December 10, 2019. (ECF Nos. 1, 50.) Plaintiffs bring claims stemming from an incident on March 4, 2018, when Plaintiff Nora Morelos dialed 9-1-1 and requested an ambulance to take her son Jedidiah Morelos, a minor at the time, to the hospital after she learned he had ingested the drug LSD. (ECF Nos. 48, 50.) The fire department and EMTs requested deputies to intervene after Mr. Morelos had slammed the bedroom door on them. (Id.) Mr. Morelos then threatened to harm himself with a pencil, and the deputies pepper sprayed him. (Id.) When Mr. Morelos then started to stab himself with the pencil, a deputy shot him with a bean bag gun. (Id.) Mr. Morelos also allegedly made suicidal comments, culminating in advancing towards the deputies and asking them to shoot him. (Id.) Mr. Morelos was then apparently subdued and struck with a baton by the deputies. (Id.) The deputies allegedly left the premises without telling family members what occurred, and the family members found Mr. Morelos crying on the ground and then took him to the hospital to treat injuries where he was hospitalized for several days. (Id.) Mr. Morelos apparently suffered serious emotional distress, began attending therapy, and was diagnosed with post-traumatic stress disorder (“PTSD”). (ECF No. 48 at 8.) Defendants state that Mr. Morelos only suffered minor injuries, the most significant being bruises on the leg, and has fully recovered from the injuries. (ECF No. 46 at 5.) Plaintiffs have brought a civil rights complaint pursuant to 42 U.S.C. § 1983, in addition to various causes of action relating to what Plaintiffs allege to be excessive force employed by the Defendants.

         B. Procedural History

         On December 21, 2018, the Court issued a scheduling order setting the following deadlines: (1) a non-expert discovery cutoff of November 4, 2019; (2) a dispositive motion filing deadline of December 18, 2019; and (3) a trial date set for May 5, 2020. (ECF No. 21.) On October 31, 2019, pursuant to the stipulation of the parties, the Court modified the scheduling order by: (1) extending the deadline for disclosure of expert witnesses and reports to November 13, 2019; (2) extending the deadline for disclosure of supplemental expert witnesses and reports to December 11, 2019; and (3) extending the deadline for completion of all expert discovery to January 17, 2020. (ECF No. 36.)

         On November 25, 2019, Defendants filed an ex parte application to shorten the time for the Court to hear a motion to reopen discovery and a motion requiring Plaintiff Jedidiah Morelos to appear for a mental examination. (ECF No. 44.) On November 26, 2019, the Court granted the ex parte application and ordered Defendants to file the motions, set a hearing on the motions to occur on December 18, 2019, and ordered that any opposition be filed on or before December 6, 2019, and any reply brief to be filed on or before December 11, 2019. (ECF No. 45.) On November 26, 2019, Defendants filed the motion for leave to reopen discovery for the limited purpose of conducting a mental examination, and the motion for order requiring Plaintiff Jedidiah Morelos to appear for a mental examination pursuant to Federal Rule of Civil Procedure 35. (Defs.' Mot. Reopen Discovery (“Mot. Reopen”), ECF No. 46; Defs.' Mot. Order Requiring Plaintiff Appear Mental Examination (“Mot. Exam”), ECF No. 47.) On December 6, 2019, Plaintiffs filed an opposition to both motions. (Pls.' Opp'n Defs.' Mots. (“Opp'n”), ECF No. 48.) On December 11, 2019, Defendants filed a reply brief. (Defs.' Reply to Pls.' Opp'n (“Reply”), ECF No. 51.) On December 12, 2019, Plaintiffs filed objections and a counter-motion to strike Defendants' motions for violation of Local Rule 251 and the Court's scheduling order. (Pls.' Objs. & Mot. Strike (“Mot. Strike”), ECF No. 52.) On December 16, 2019, Defendants filed a reply to Plaintiffs' objections and counter-motion to strike. (Defs.' Reply Objs. & Mot. Strike (“Reply Mot. Strike”), ECF No. 53.)

         C. The Parties' Factual Contentions

         The Court now turns to the factual contentions of the parties as laid out in their briefing. The Court shall attempt to coordinate the parties' factual contentions as best it can into a timeline of events.

         On August 1, 2018, Plaintiffs filed the complaint in this action, which Plaintiffs emphasize includes facts describing Plaintiff Mr. Morelos' suicidal conduct, hospitalization, and an emotional distress cause of action. (Opp'n 1; ECF No. 1.) The scheduling order issued on December 21, 2018. (ECF No. 21.) On April 29, 2019, Plaintiff Mr. Morelos served responses to Defendants' interrogatories that identified a Mr. Douglas Bruce (“Bruce” or “Mr. Bruce”), as his therapist. (Opp'n 3; Decl. Patrick Buelna Supp. Pls.' Opp'n (“Buelna Decl.”) ¶ 4, ECF No. 48-1; Buelna Decl. ¶ 4, Ex. 2, ECF No. 48-3.) Defendants emphasize that Plaintiffs' complaint, initial disclosures, and discovery responses are devoid of any specific allegation of PTSD, and the PTSD claim was mentioned for the first time during Mr. Morelos' deposition on July 1, 2019. (Mot. Reopen 3.) Plaintiffs state Defendants never served Plaintiff Mr. Morelos with any interrogatories to identify his injuries, diagnoses, or treatment as a result of the incident. (Opp'n 3.)

         Defendants contend they have been attempting to obtain Mr. Morelos' therapy records since May 20, 2019, to ensure defense counsel could review the records before Mr. Morelos' deposition and question him about the contents, however, Plaintiffs thwarted such efforts resulting in not having the records available by the time of the deposition. (Mot. Reopen 3.) Specifically, on May 20, 2019, Defendants state they requested that Mr. Morelos provide the requisite signed authorization release to obtain the records from Mr. Bruce. (Mot. Reopen 6; Decl. Curtis E. Jimerson Supp. Mot. Reopen (“Jimerson Decl.”) ¶ 2, ECF No. 46 at 16; Jimerson Decl. Ex. A, ECF No. 46 at 21.) The Court notes the email states counsel will be forwarding the form, and counsel also stated “I will need these records prior to taking [Mr. Morelos'] deposition.” (Jimerson Decl., Ex. A.) On May 22, 2019, Defendants forwarded to Plaintiffs a completed “Authorization for Release of Medical Records for Daniel Bruce, ” for Mr. Morelos to sign. (Mot. Reopen 6; Jimerson Decl., Ex. B, ECF No. 46 at 23.) Defendants emphasize that Plaintiffs did not ultimately provide the signed authorization to Defendants until August 5, 2019, seventy-seven (77) days after Defendants initially requested the authorization.[2] (Mot. Reopen 6.) Defendants did not receive the complete file from Mr. Bruce's office until October 10, 2019. (Id.)

         During the period between May 20, 2019, and October 10, 2019, Defendants contend they made numerous attempts to follow up on the request for the records. (Mot. Reopen 6.) On May 24, 2019, Defendants contacted Plaintiffs and requested a stay in discovery for both Defendants' depositions and Plaintiffs written discovery in order to attend mediation. (Opp'n 3; Buelna Decl. ¶ 5, Ex. 3, ECF No. 48-4.) However, Defendants wanted to take Plaintiff Mr. Morelos and Nora Morelos' depositions prior to the mediation, and requested to have Mr. Morelos authorize the release of his mental health records. (Id.) Defendants emphasize that the stay did not extend to subpoenas directed at obtaining Mr. Morelos' medical records, and excluded the requests for the records from Daniel Bruce's office. (Mot. Reopen 6, Jimerson Decl. ¶ 4, Ex. C, ECF No. 46 at 25.) The Court notes that the May 24, 2019 email specifically states that “[t]he stay will not include pending subpoenaed records (including but not limited to the records of Daniel Bruce L.C.S.W.)[.]” (Jimerson Decl., Ex. C.) On the same day, May 24, 2019, Plaintiffs' counsel assured Defendants that they would provide the requested authorization the following week, sometime between Monday, May 27, and Friday, May 31, 2019. (Mot. Reopen 7; Jimerson Decl. ¶ 5, Ex. D, ECF No. 46 at 28.) Despite this written assurance, Defendants state that Plaintiffs' counsel failed to provide the authorization when he promised to provide it. (Mot. Reopen 7.)

         On June 19, 2019, Defendants again inquired regarding the status, and Plaintiffs' counsel assured Defendants that the authorization was forthcoming, and on June 20, 2019, stated that he would have the authorization “over to [defense counsel] Wednesday [June 26, 2019].” (Mot. Reopen 7; Jimerson Decl. ¶ 6, Ex. E, ECF No. 46 at 29.)

         By July 1, 2019, the date of Mr. Morelos' deposition, Plaintiffs' counsel still had not provided the authorization to release Mr. Morelos' medical records from Mr. Bruce, and thus, neither Defendants nor their psychiatric expert had been able to review the records before the deposition. (Mot. Reopen 7.) Defendants contend this adversely impacted the ability to question Mr. Morelos regarding the claimed damages. (Id.) During the deposition of Mr. Morelos on July 1, 2019, Defendants argue Mr. Morelos “made a vague reference to receiving a PTSD diagnosis and treatment from the therapist” Mr. Bruce, however, Defendants contend that Mr. Morelos was unable to articulate any further meaningful details regarding this alleged diagnosis and treatment. (Id.) Because of this, Defendants' counsel reminded Plaintiffs' counsel that Defendants had made repeated attempts to obtain the authorization to release the records from Bruce's office with the express intent of reviewing the records prior to Mr. Morelos' deposition, and noted they still had not received the signed authorization. (Id.)

         Plaintiffs contend that at the deposition on July 1, 2019, Mr. Morelos was examined extensively on the PTSD claim for approximately twenty (20) pages of deposition transcript. (Opp'n 4; Buelna Decl. ¶ 7, Ex. 4, Dep. Jedidiah Morelos (“Morelos Dep.”), ECF No. 48-5.) Specifically, Plaintiffs highlight that Defendants' counsel asked Plaintiff if he was suffering any illnesses at the start of the deposition and Mr. Morelos responded he suffered from PTSD as a result of Defendants' conduct and that he was receiving treatment for it. (Morelos Dep. 10:25-12:24.) Plaintiffs concede that Defendants' reserved the right to re-depose Plaintiff on the PTSD claim, and Plaintiffs' counsel agreed but limited any reopening of the deposition only to the PTSD claim, and acknowledges that Defendants' counsel noted he had not received the records from Mr. Bruce, “but proceed with his deposition anyhow.” (Id.; Opp'n 3.)

         The Court has reviewed this portion of the deposition transcript. As part of the standard introduction of the deposition, Defendants' counsel inquired whether Mr. Morelos was suffering from any mental problem that would impact the ability to give accurate testimony, and Plaintiff responded no. (Morelos Dep. 10:25-11:3.) Counsel responded: “[y]ou hesitated there. Is there something that I need to know? (Id. at 11:4-5.) Plaintiff responded, “I mean I got PTSD but I don't think it will affect.” (Id. at 11:6-7.) When asked from what, Plaintiff responded it was from the police, and that he was getting treatment. (Id. at 11:8-13.) Defendants' counsel then addressed Plaintiffs' counsel and stated: “[w]e were supposed to get the records from his therapist . . . I didn't receive any authorization or the records, ” and Plaintiffs' counsel responded: “I only got the authorization from him on Wednesday so even if you subpoenaed them it will probably take a couple weeks, ” and Defendants' counsel responded: “I'm going to reserve my right to redepose this Witness on the issue of PTSD, since we didn't receive those records.” (Id. at 11:15-25.) Plaintiffs' counsel responded: “I mean if you want to, ” and Defendants' counsel stated: “It's unfair. This is the first time I've heard about any PTSD. It's not listed in any of your discovery responses.” (Id. at 12:1-4.) Counsel came to an agreement at that point to limit a future deposition of Mr. Morelos to questions relating to the treatment records, and Defendants' counsel stated he didn't want to re-ask questions already asked. (Id. at 12:5-24.)

         Next Plaintiffs argue that in the middle of the deposition, Defendants' counsel decided to examine Plaintiff on the PTSD claim, and Plaintiffs' counsel objected that if Defendants wanted to preserve the right to re-depose him on the PTSD claim, that he should hold all questions on the issue until he received the records, because Plaintiff would not be re-produced to answer the same questions again. (Opp'n 4.) Defendants' counsel responded that he would ask to the extent he recalls but will not recover what was asked already. (Id.) Plaintiffs contend Defendants' counsel proceeded to substantively examine Plaintiff on his PTSD claim and diagnosis at length, for about twenty pages of transcript. (Id.) Defendants counter that while counsel did question Mr. Morelos about the PTSD claim, “no coherent, meaningful testimony was provided.” (Mot. Reopen 3.)

         The Court has reviewed this portion of the deposition transcript. Defendants' counsel asked about the PTSD after Mr. Morelos responded “[n]ot that I know of, ” when asked if there were any other symptoms from injuries that he claimed from the incident. (Morelos Dep. 149:18-150:4.) Counsel then reserved the right to re-question Plaintiff on the PTSD claim and agreed to ask only what he recalls and not re-ask the same questions again. (Id. at 150:13-23.) Defendants' counsel proceeded to ask about the name and location of the counselor and if he treated with anyone else, the duration of treatment, and if anyone else diagnosed him. (Id. at 151:6-152:13.) Defendants' counsel then quickly turned to the question of whether there were any other injuries aside from the PTSD and others discussed previously, physically or emotionally. (Id. at 152:14-25.) Plaintiff described depression and other mental issues, and Plaintiff referred to PTSD when describing mental problems. (Id. at 153: 7-154:23.) Plaintiffs' counsel then interjected about confidentiality and sealing the record if the mental problems were going to be extensively discussed, and Defendants' counsel emphasized he was simply trying to get to claimed damages and mental injuries, and counsel appeared to reach an agreement to seal anything related to the psychiatric records. (Id. at 154:24-156:3.)

         Defendants then focused on Plaintiffs' testimony concerning slipping in and out of reality, apparently in relation to the ability to give valid answers during the deposition. (Id. at 156:4-22.) Defendants inquired into whether this was due to the LSD ingestion or because of the incident with police officers. (Id. at 157:4-158:11.) Counsel then inquired into Plaintiff's actions after the police left, and why his family didn't take him to the hospital for four or five hours after. (Id. at 158:12-161:10.) Counsel further inquired about the effects of the LSD at that time of the incident. (Id. at 161:11-162:20.)

         Then Defendants counsel returned to the more general line of question regarding the full extent of all injuries, mental and physical, and inquired generally about things such as depression and confusion, and whether he reported such symptoms to a medical provider (Id. at 162:21-170:14.) The majority of this portion of the transcript entails a back and forth regarding what Plaintiff felt at times, and objections discussed between counsel. There is no substantive discussion specifically regarding PTSD or his treatment with Dr. Bruce in this portion, and Defendants' counsel only confirms that his counselor is named Daniel Bruce in Modesto . (Id.) Based on the Court's review, Defendants' statement that while Mr. Morelos was questioned about the PTSD claim, “no coherent, meaningful testimony was provided, ” (Mot. Reopen 3), is largely more accurate than Plaintiffs' characterization of the exchange.

         Defendants emphasize that Plaintiffs' counsel stated on the record that he “only got the authorization from him on Wednesday (June 26, 2019].” (Mot. Reopen 7; Jimerson Decl. ¶ 7; Morelos Dep. 11:18-21.) On the day after the deposition, July 2, 2019, Defendants again requested the authorization to release the records, and Defendants emphasize that while Plaintiffs' counsel had already claimed to have received the authorization on Wednesday, June 26, 2019, Plaintiffs' counsel did not furnish the authorization. (Mot. Reopen 8; Jimerson Decl. ¶ 8, Ex. G, ECF No. 46 at 35.)

         On July 23, 2019, the parties attended mediation however the case did not settle. (Opp'n 4; Buelna Decl. ¶ 8.) On July 24, 2019, Defendants state they once again requested the authorization (Mot. Reopen 8), however it is unclear whether this was by email or otherwise as there is no exhibit or detail regarding this communication. Nonetheless, Plaintiffs' counsel wrote in an email on July 24, 2019, that “discovery will resume August 1, ” and “[i]n regards to the Authorization, I will send August 1.” (Mot. Reopen 8; Jimerson Decl. ¶ 9, Ex. H, ECF No. 46 at 38.) Defendants state they “rejected this” and on July 25, 2019, Defendants made another request for the authorization. (Mot. Reopen 8; Jimerson Decl. ¶ 10, Ex. I.) The Court notes the July 25, 2019, does not expressly reject the August 1 date, however, does state “[t]hanks for the reminder on the discovery, ” and “[p]lease forward the authorization so we can get the records ordered, I assume you need them as well.” (Jimerson Decl., Ex. I.) On July 26, 2019, Plaintiffs' counsel replied “[t]he authorization I'll send on the first.” (Jimerson Decl., Ex. J, ECF No. 46 at 41.)

         Plaintiffs failed to provide the authorization by August 1, 2019, and Defendants state they again inquired about the status, [3] and on August 5, 2019, Plaintiffs' counsel “finally” gave the authorization to release the records, roughly eleven (11) weeks after Defendants first requested it. (Mot. Reopen 8.) Defendants emphasize that the authorization indicates that Mr. Morelos signed the form on July 1, 2019, the same day as Mr. Morelos' deposition, and the same day Defendants made the renewed request for the signed authorization. (Mot. Reopen 8; Jimerson Decl. ¶ 12, Ex. K, ECF No. 46 at 43.)[4] Defendants argue that it “is undisputable that Plaintiffs' counsel withheld the signed authorization for more than a month, knowing that Defendants would be unable to obtain the relevant medical records without it.” (Mot. Reopen 8.) Plaintiffs concede that the Plaintiff did not provide the authorization until August 5, 2019, but emphasize that this was three months prior to the fact discovery deadline. (Opp'n 5.)

         On August 5, 2019, the day Defendants received the authorization form, Defendants state they forwarded the signed authorization form to a subpoena service for processing. (Mot. Reopen 9.) Plaintiffs respond that records reflect the subpoena was signed on August 13, 2019. (Opp'n 5; Buelna Decl. ¶ 9, Ex. 5, ECF No. 48-6.) The Court notes that the subpoena appears in fact to have been signed by Defendants' attorney Michael Mordaunt on August 13, 2019. (Id.) The Court notes that this does not appear to be in direct contradiction to Defendants' statement as they only state they forwarded the signed authorization form to the subpoena service for processing. (Mot. Reopen 9.)

         In response to the records request, Defendants stated they only received “partial and incomplete records” from Mr. Bruce, on October 3, 2019, and the complete file was not provided until October 10, 2019. (Mot. Reopen 9.) Defendants state the complete file only consisted of six (6) pages of “largely illegible handwritten notes memorializing incomplete statements completely devoid of any context or background, ” and thus, Defendants argue a deposition of Mr. Bruce “was essential in order to decipher his ambiguous notes.” (Id.) Again, Plaintiffs contend Defendants have misstated the record here. (Opp'n 5.) While Defendants assert they received the subpoenaed documents on October 3, 2019, Plaintiffs highlight that in an email dated October 2, 2019, Defendants' counsel said they had received the subpoenaed documents and mentioned they wished to re-depose Plaintiff on the PTSD claim. (Opp'n 5; Buelna Decl. ¶ 10, Ex. 6.) The Court has reviewed this email and it in fact does show that on October 2, 2019, Defendants' counsel wrote “[p]er our agreement we received the records form Daniel Bruce LCSW and are now in a position to complete Jedidiah's deposition.” (Id.)

         Defendants also contend that they re-noticed Mr. Morelos' deposition after the records were “finally” received and reviewed, however, “consistent with their pattern of conduct, Plaintiffs' counsel refused to produce Mr. Morelos knowing that fact discovery was set to close in a matter of days.” (Mot. Reopen 8.) Plaintiffs respond that there was some discussion about re-deposing Mr. Morelos, however meet and confer efforts stopped, and Plaintiffs state that “Defendants refused to meet and confer and appeared to no longer wish to take the deposition.” (Opp'n 5; Buelna Decl. ¶ 10, Ex. 6, ECF No. 48-7.)

         The therapist Mr. Bruce was deposed on October 25, 2019, which Defendants state was the first and earliest date he was available prior to the non-expert discovery cut-off date. (Mot. Reopen 9.) At the deposition, Plaintiffs note Defendants requested an extension of the expert discovery deadline “but made absolutely no mention” of a mental examination. (Opp'n 5; Buelna Decl. ¶ 11.) Thereafter, Defendants emailed Plaintiffs to request an extension of other expert deadlines, to which Plaintiffs agreed, but Defendants again made no mention of a mental exam. (Id.) The Court accepted a stipulation on the expert deadlines on October 31, 2019. (ECF Nos 35, 36.)

         After the deposition, Defendants requested an expedited transcript which was received on October 31, 2019. (Mot. Reopen 9.) The transcript was forwarded to Defendants' psychiatric expert for review, and thereafter non-expert discovery closed on November 4, 2019, pursuant to the scheduling order. (Id.) On or about November 7, 2019, Defendants' expert Dr. Strassberg advised that Mr. Bruce's records were “incomplete, lacked specificity and clinical reasoning (and the lack of any explanation for same during Mr. Bruce's deposition), ” and the expert could not provide any opinions regarding Mr. Morelos' alleged PTSD in absence of an in-person examination. (Id.)[5] Pursuant to the stipulation of the parties, expert disclosures and reports were due on or before November 13, 2019. (ECF NO. 36.) Defendants contend that the Dr. Strassberg's expert report further advises of the need for an in-person examination to provide his opinions. (Id.)

         After receiving the information from Defendants' expert, Defendants attempted to meet and confer with Plaintiffs and requested that Plaintiffs stipulate to reopen discovery for the limited purpose of conducting a mental examination of Mr. Morelos, including an in-person conference on November 8, 2019, correspondence dated November 14, 2019, and further discussions on November 18, 2019, and despite these efforts, Plaintiffs declined to stipulate. (Mot. Reopen 9; Jimerson Decl. ¶¶ 16-18, Exs. L, M, ECF No. 46 at 45, 51.) Plaintiffs emphasize that the first date the Defendants requested the mental examination was November 8, 2019, after the close of fact discovery. (Opp'n 6; Buelna Decl. ¶ 12.) Plaintiffs' counsel advised Defendants that the mental examination should have been completed during the time period for fact discovery, and Defendants responded that there was good cause for completing the examination because Plaintiff Mr. Morelos was not produced for re-deposition, and argue Defendants have now changed their alleged reason for not taking the mental examination during the discovery period. (Opp'n 6.)

         On November 13, 2019, Defendants disclosed their expert witnesses, including Dr. Strassberg, whose Rule 26 report failed to issue any opinion without performing an independent mental examination. (Mot. Exam, ECF No. 47 at 16.) Specifically, Dr. Strassberg's report states

I have been asked to evaluate plaintiff, Jedidiah Morelos' claim of PTSD, emotional distress as well as the care he was provided by Mr. Bruce. In order to render opinions, I need to examine and evaluate Mr. Morelos in person. It is my understanding that the defendants intend to petition the court for leave to allow me to perform an Independent Medical Examination (“IME”) of plaintiff Jedidiah Morelos. As such, I cannot offer my ...

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