What we see a lot is that defense lawyer like to let the vocational rehabilitation expert ask the plaintiff a lot of questions hoping to get a contradiction at trial. So they want to get an interview with the plaintiff to find impeachment for trial.
The successful opposition to this motion is below:
IN THE CIRCUIT COURT FOR BALTIMORE CITY
STEVE G. SEVERN, M.D., et al.,
CASE NO.: 22-C-07-001488
Plaintiff’s Opposition to Defendants’ Motion for Examination of Plaintiff
Plaintiff, Ginger Holtzman, by and through her attorneys, Ronald V. Miller, Jr., Rodney M. Gaston and Miller & Zois, LLC, hereby responds to Defendants’ Motion for Examination of Plaintiff. Defendants’ Motion should be denied because the examination they seek is not a mental or physical examination permitted by the Maryland Rule 2-423, and because it is otherwise outside the scope of discovery under the Maryland Rules.
This case is a claim of medical malpractice where the Plaintiff suffered severe and permanent physical injures when Defendant Severn severed her left iliac vein and artery during an attempted total abdominal hysterectomy on January 13, 2012.
Immediately prior to the date of her surgery the Plaintiff was employed full time as a delicatessen worker with the Sycso Corporation. (See Plaintiff’s deposition at pages 15 -18 attached hereto and incorporated by reference herein as Exhibit 1.) As a result of her injuries the Plaintiff is now disabled from employment and is receiving Social Security Disability Benefits. (See Exhibit 1 at pages 56-57.) Despite being aware of the United States Government’s decision that the Plaintiff is disabled from gainful employment the Defendants have hired Joseph Rose to ostensibly render an opinion that the Plaintiff is not disabled from employment. In that vein the Defendants have asked this Court to order the Plaintiff to meet with Mr. Rose for a 90 minute “examination.” Exactly what is to occur during this 90 minute “examination” has yet to be divulged by the Defendants and for this reason and reasons proffered below the request is without good cause and otherwise unauthorized under Maryland Law.
What is the issue here?
The issue is whether a plaintiff can be compelled to submit to an interview with the defense’s vocational rehabilitation expert. We argue is is tantamount to allowing for a second deposition. You know it is going to lead to he said/she said arguments that could easily be avoided by making all post litigation questioning under oath. Of course, defense lawyer disagreed, arguing the their medical experts cannot comment on the nuances of what work the plaintiff can or cannot do with talking to her. (Apparently, the expert could not read a deposition transcript.)
- Md. Rule 2-423 does not permit the interview requested.There are many reasons Defendants’ request does not fall within Md. Rule 2-423. First, what Defendant seeks is not contemplated by the rule. Maryland Rule 2-423 only grants the Court the authority to order a “mental or physical examination” of a party. The rule specifically sets forth the procedure for one party to requests that the Court order another party to submit to a physical or mental examination. Although the Defendants’ Motion is entitled a “Motion for Examination of Plaintiff,” the Defendants have requested neither a physical examination nor a mental examination.
The motion should be more properly titled a Motion to Require Plaintiff to Submit to an Interview. Defendants are calling the requested interview an “examination” in an attempt to bring it within Md. Rule 2-423. What is it exactly that the Defendants wish to “examine”? What opinion is Mr. Rose to offer regarding Plaintiff’s physical or mental condition? The interview the Defendants request is not directed at Plaintiff’s physical or mental condition, but rather her fitness for employment. Md. Rule 2-423 does not allow the Court to order an interview for this purpose. Second, Md. Rule 2-423 requires that the examination be conducted by a “suitably licensed or certified examiner.”
The Defendants have requested that the Plaintiff be examined by a person who is not a medical doctor, not a psychiatrist, and not a licensed psychologist. (See Pages 6, 7, 14, and 15 of Joseph Rose’s deposition attached hereto and incorporated by reference herein as Exhibit 2.) Mr. Rose is not licensed or certified to perform any type of physical or mental examination in the state of Maryland. He possesses no medical, scientific, psychiatric, or psychological clinical training or certifications. Accordingly, he is not “suitably licensed or certified” to conduct a “mental or physical examination” under Md. Rule 2-423.
Third, even if Md. Rule 2-423 permitted the Court to order an interview such as the one the Defendants request, they have failed to provide the Court with a sufficient factual basis to comply with the rule. The Defendants have failed to proffer “the manner, conditions, and scope of the examination.” This deprives the Court of any ability to comply with the portion of Md. Rule 2-423 that requires that: “[t]he court must state in the order the time, place, manner, conditions, and scope of the examination, and the identity of the examiner.” See Wilson v. N.B.S., 130 Md. App. 430, 456, (2000). Because the Defendants have failed to state the “manner, conditions, and scope” of any “examination,” this Court cannot comply with the requirements of the rule even if the rule allowed the Court to order this type of interview in the first place. The Court must deny Defendants’ motion because the relief they seek is not permitted by Md. Rule 2-423, because Mr. Rose is not qualified to conduct a “mental or physical examination”, and because Defendants have failed to offer a sufficient factual basis to allow the Court to enter an order in compliance with Md. Rule 2-423.
- The interview requested by Defendants is not a permitted method of discovery under the Maryland Rules.The only discovery authorized under the Maryland Rules is that which is spelled out in Md. Rule 2-401 (a). The only discovery permitted in a civil action is “ …(1) depositions upon oral examination or written questions, (2) written interrogatories, (3) production or inspection of documents or other tangible things or permission to enter upon land or other property, (4) mental or physical examinations, and (5) requests for admission of facts and genuineness of documents.” Md. Rule 2-401 (a). The defendants’ “interview” is not one of the permitted forms of discovery.
Mr. Rose has already testified under oath as to the nature of the questions that he would be asking Plaintiff during his proposed “interview.” He swore under oath that “ …the vocational interview is designed to simply solicit as well as confirm demographic information, employment history, education, family background, those elements of a persons past.” (See page 2
1 of Exhibit 2.)
The solicitation of information from any party (and witnesses) occurs during the deposition phase of discovery. The defendants are already in possession of the information that Mr. Rose intends to elicit from the Plaintiff. The Plaintiff has already been deposed. Her deposition was taken on April 10, 2018, by defense counsel and consisted of 63 pages of sworn testimony. During her deposition the Plaintiff was asked questions regarding her age, marital status, home life, education, and work history. (See Pages 5-17 of Exhibit 1.)
The Defendants had a full and complete opportunity during the Plaintiff’s deposition to obtain all of the information needed for their vocational counselor to conduct his evaluation and render a report. There has been no claim that the Plaintiff refused to provide answers during her deposition that were indispensable for Defendants’ expert to conduct his vocational assessment.
In fact, the Defendants do not claim in their Motion that Mr. Rose needs the Plaintiff to supply additional indispensable factual information for him to conduct his own assessment. The Defendants have not listed one single question they need answered by the Plaintiff that could not have been asked in the course of the discovery permitted under the Maryland Rules. Defendants’ failure to obtain the needed information rests solely at their own feet.
The Defendants have also claimed that they are somehow hampered by the fact that they do not have the materials from two tests administered by the Plaintiff’s own vocational counselor- a Pictorial Test and Wide Range Achievement Test. These test materials are attached hereto as Exhibit 3. To the extent Defendants’ Motion relies upon the lack of these materials, any such argument is now moot.
This is not the first time that a Defendant has come before this Court after retaining Joseph Rose as their expert and has attempted to convince this Court that he is entitled to a two hour unrestricted interview for the purposes of a vocational rehabilitation/life care planning assessment. Mr. Rose has made this request before through the same defense attorneys as in this case in the case of Dale v. Davis, Case Number: 22-C-03-001575. Exhibit 4. This Court denied the request in that case and it should be denied in this case.
Defendants’ Motion should be denied. Md. Rule 2-423 does not permit the type of examination sought, Mr. Rose is unqualified to conduct a mental or physical examination, and the Court does not have the information needed to enter an order in compliance with the rule. Additionally, the Court does not have the power to order the interview requested because it is not a permitted method of discovery under Md. Rule 2-401. For these reasons, Defendants’ Motion for Examination of Plaintiff should be denied.
Miller & Zois, LLC
Ronald V. Miller, Jr.
1 South St, #2450
Baltimore, MD 21202
Attorney for the Plaintiff
Note: Defendant’s attorneys never took the deposition of Plaintiff’s vocational expert, at which time they could have easily obtained this material via subpoena