Potter v. Walker
Potter v. Walker
2006 WL 8462927 (V.I. Sup. Ct. 2006)
March 30, 2006

Hodge, Rhys S.,  Justice

Cooperation of counsel
Failure to Produce
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Summary
The court denied the defendant's motion for summary judgment and the plaintiff's motion to compel, and ordered the parties to participate in a LRCi 37.1 conference. The court found that the plaintiff had properly filed the Complaint in accordance with the applicable statute, and that there was an issue of fact as to the filing of the proposed Complaint ninety days before filing the action in court. The court warned that failure to comply with or cooperate with this Order may result in the imposition of sanctions.
EVERARD E. POTTER Plaintiff,
v.
OSWALDINE WALKER, D.D.S., M.S., d/b/a WATERGATE WELLNESS CENTER Defendant
CIVIL NO. 155/2002
Superior Court of the Virgin Islands, Division of St. Thomas and St. John
DATED: April 03, 2006
DATED: March 30, 2006
Hodge, Rhys S., Justice

MEMORANDUM AND ORDER

Before the Court is Defendant Oswaldine Walker, D.D.S., M.S., d/b/a Watergate Wellness Center's (“Walker”) motion for summary judgment, as well as Plaintiff Everad E. Potter's (“Potter”) motion to compel Defendant to provide complete responses to Plaintiff's discovery requests. The original Complaint was filed with this Court on March 26, 2002. Defendant's motion for summary judgment was filed with this Court on February 11, 2005. Also on that date, the parties appeared before this Court and represented that a resolution on the papers was probable, the matter was therefore scheduled for a status conference to be held on April 11, 2005. Upon the return date, neither party appeared nor provided any information to the Court regarding the posture of the case. Although the parties did not appear at the scheduled hearing, they have continued to engage in consistent motion practice, therefore, this Court has retained jurisdiction over the matter and will make a final decision on both motions. Plaintiff in this case, is proceeding pro se and the defendant is represented by Attorney James L. Hymes, III, of the Law Offices of Hymes & Zebedee.
 
This medical malpractice claim stems from a series of orthodontic and periodontal visits made beginning in August of 1998. After examining Plaintiff for braces, the orthodontist discovered that Plaintiff suffered from bone loss and gum disease and referred him to a periodontist. In September 1998, Plaintiff met with the defendant at her place of business, the Watergate Wellness Center, and advised Defendant that the orthodontist recommended Plaintiff visit her for periodontal treatment. Defendant performed the dental procedures and surgeries, which are the basis of this lawsuit, for the purpose of resolving Plaintiff's periodontal issues in order for Plaintiff to be fitted for braces. The procedures occurred on December 22, 1998, and May 10, 1999, respectively. As stated in his Complaint, Plaintiff alleges that at the conclusion of each procedure, Dr. Walker advised him that while the respective operations were successful, those results will not be fully realized or seen until twelve (12) to eighteen (18) months later. Until July 1999, when Plaintiff relocated to Seattle, Washington, Plaintiff visited Defendant regularly for follow-up care, where Defendant allegedly re-assured Plaintiff that he was healing nicely and that the work performed had again been successful.
 
Plaintiff alleges that when he returned to St. Thomas for vacation in June 2000, he consulted with Defendant and inquired as to whether there was now sufficient bone to permit him to be fitted for braces; and whether the treatment was now complete. Plaintiff claims Defendant examined Plaintiff and reported that Plaintiff's teeth were “strong as an ox” and assured him of his readiness for braces.
 
In September 2000, Plaintiff asserts that he sought to continue his dental work with a Seattle orthodontist, whom he visited for the purpose of being fitted for braces. It was at this point; Plaintiff alleges that he was notified that the previous work was done improperly, if at all, and that among other things, he had severe bone loss and needed tissue grafts and surgery, as well as other basic periodontal care. Upon hearing this information, Plaintiff became enraged, left the orthodontist's office and contacted Defendant regarding the condition of his mouth. Plaintiff asserts that it was then that Defendant, for the first time, informed him that the grafts and surgery had been unsuccessful and stated that she had previously notified Plaintiff of this fact as well as advised him of other precautionary measures regarding the condition of his mouth. Additionally, Plaintiff alleges that Defendant refused to issue his complete dental records until after the filing of this suit and subsequent request for production of documents.
 
Summary Judgment
[Superior] Court Rule 7, states that “[t]he practice and procedure in the [Superior] Court shall be governed by the Rules of the [Superior] Court and, to the extent not inconsistent therewith, by the ... Federal Rules of Civil Procedure (“F.R.C.P.”). See [Superior] Court Rule 7 (“[Sup.] Ct. R.”). F.R.C.P. 56(b) provides that “[a] party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof.” Under that provision, a grant of summary judgment may only be awarded in cases where a court determines that there are “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See F.R.C.P. 56 (c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Thus, issues of fact are not tried on a summary judgment motion.
 
The Court is “only empowered to determine whether genuine issues of material fact exist and therefore must be tried.” Fleming v. Frett, 33 V.I. 58, 60 (Terr. Ct. St. T& St. J. 1995). The burden of persuasion rests with the party who files the motion. Deary v. Evans, 19 V.I. 581, 592 (D.C.V.I. 1983); see also, Ascencio v. Ramirez, 20 V.I. 508, 512 (D.C.V.I. 1984); Battle v. Industrious, 26 V.I. 83, 85 (Terr Ct. St. T. and St. J. 1991). All evidence and factual inferences must be viewed in the light most favorable to the non-moving party. Battle, supra, 26 V.I. at 85; Fleming, supra, 33 V.I. at 60. The “mere existence of some alleged factual dispute between parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Aviation Assocs. v. Virgin Islands Port Authority, 26 V.I. 24, 32 (Terr. Ct. St. C. 1990), citing, Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48 (1986). “A fact is material if it ‘might affect the outcome of the suit under the governing law’, and a dispute is genuine ‘if the evidence is such that a jury could return a verdict for the nonmoving party.’ ” Ferris v. V.I. Industrial Gases, Inc. 23 V.I. 183, 188 (D.C.V.I. 1987).
 
Once the moving party has satisfied its burden, the burden is then placed on the non-moving party to prove there is a genuine material dispute. “The burden on a non-moving party ... is not a heavy one [however]; he is simply required to show specific facts, as opposed to general allegations, that present a genuine issue worthy of trial.” Hanley v. Jones, 21 V.I. 190, 193-94 (Terr. Ct. St. C. 1984).
 
In this case, Defendant moves for summary judgment on the grounds that Plaintiff filed his Complaint more than two (2) years after the accrual of the claim as required by 5 V.I.C. § 36, and after the expiration of the statute of limitations, as provided in 27 V.I.C. § 166d(a); or in the alternative that irrespective of the time when the statute expired, the Plaintiff has nevertheless improperly filed this Complaint in that it did not first file with the appropriate agencies as prescribed by statute. Defendant argues that:
[i]f those surgical procedures were not performed properly, and if the failure to perform proper dental services was the result of dental malpractice as the plaintiff alleges in his Complaint, the acts giving rise to a claim of dental malpractice occurred on May 10, 1999. The two year statute of limitations would therefore expire on May 10, 2001.
Def's. Memorandum in Support of Summary Judgment pg. 4. Plaintiff responds by arguing that based upon Defendant's representations at the conclusion of each surgery, that although the procedures were successful, the results would not be fully realized until twelve (12) to eighteen (18) months later; coupled with the June 2000 confirmation that his teeth were “strong as an ox”, he had no reason to question the success of the procedures. It was not until September 2000, when he was notified by the Seattle orthodontist that the previous work was sub-standard that he became aware that he had been the victim of medical malpractice.
 
Statute of Limitations
Title 5, Section 36, of the Virgin Islands Code, sets forth the statute of limitations periods for the various civil actions. However, pursuant to Philip v. Taylor, 18 V.I. 437 (D.C.V.I. 1987), the statute of limitations set forth in this section, does not apply to medical malpractice actions. Instead, Section 166d of Title 27, governing medicine, should be applied. While the statute of limitations for filing a claim under this section is also two (2) years from the date of the alleged act, omission or neglect; or after the last treatment in cases where continuous treatment for the same ailment is needed, there are delineated exceptions as to when the statute starts to run. Additionally, the Philip court states that “[t]he strong trend of decision has been to toll the running of the statutes of limitations in medical malpractice cases until plaintiff has or should have knowledge of the injury.” Id., citing, Restatement (Second) of Torts, § 899, comment (e) (1979). Likewise, in United States v. Kubrick, 445 U.S. 111 (1979), the Supreme Court held that once the plaintiff knew the existence and cause of his injury, the time for the statute began to run. See, Id. at 440.
 
In this case, Plaintiff asserts that it was not until after he was told by Defendant that the procedures were completed and he was ready to be fitted for braces in June 2000, that he sought the continuation of his oral care in Seattle. He states he visited the Seattle orthodontist in September 2000, ready to be fitted for braces when he was informed that the previous periodontal work was done poorly, if at all. In fact, Plaintiff states that he had no reason to inspect or have Defendant's work inspected at least until after the calculated recovery time of May 1999. Plaintiff does not provide any specific explanation as to why he did not visit with Defendant again until June 2000 or seek to complete his braces fitting prior to September 2000, however, he is not required to as he was told it would take twelve (12) to eighteen (18) months to heal. Pursuant to 27 V.I.C. § 166d(a):
a toll of the statute of limitations shall operate for any period during which the health care provider had actual knowledge of
any act, omission or neglect or knowledge of facts which would reasonably indicate such act, omission or neglect which is the basis for a malpractice claim and failed to disclose such fact to the patient.”
27 V.I.C. § 166d(a). Therefore, it is of importance to this Court that although Plaintiff claims he was not aware of the condition of his teeth and gums, that he asserts that Defendant at all relevant times in question knew that the surgeries were unsuccessful and only determined to inform Plaintiff once he essentially received a second-opinion on her work. Cf. Warner v. Ross, 2004 WL 3413799 (granting summary judgment to defendant doctor in finding that plaintiff patient did not exercise due diligence in discovering alleged medical injury or making inquiry to defendant by waiting nearly seven months to get a second-opinion on her condition, after she was told by defendant her approximate healing time was only six weeks after the surgery was completed). In this case in viewing the evidence and pleadings in the light most favorable to Plaintiff, the non-moving party, it is the view of the Court that the knowledge of actual harm could not be imputed to Plaintiff until September of 2000, and that the statute of limitations did not begin to run until September 2000. At least, that is an issue of fact to be decided by the fact finder. Plaintiff filed his Complaint in March 2002, and therefore filed before the expiration of the statute of limitations which would have been in September 2002. Therefore, summary judgment on this issue is denied.
 
Subject Matter Jurisdiction
The second issue for summary judgment consideration is Defendant's contention that Plaintiff's complaint must be dismissed because Plaintiff failed to comply with the statutory requirements of 27 V.I.C. § 166i. 27 V.I.C. § 166i(b) states in pertinent part: “[n]o action against a health care provider may be commenced in court before the claimant's proposed complaint has been filed with the Committee .... See 27 V.I.C. § 166i(b). See also, Ferrence v. V.I. Family Sports & Fitness Ctr, Inc. 45 V.I. 345 (Terr Ct. St. C. Feb. 23, 2004), (holding that a “[p]atient's negligence claim constituted malpractice for purposes of 27 V.I.C. § 166(f) of the Virgin Islands Health Care Provider Malpractice Act, therefore the patient was required to file her claim with a medical malpractice action review committee before filing with the trial court pursuant to 27 V.I.C. § 166i(b)”).
 
In support of its contention, Defendant has submitted an affidavit signed by Ms. Cherie Hendricks, Executive Assistant of the Office of Risk Management of the Department of Health of the Government of the Virgin Islands. In her affidavit, Ms. Hendricks asserts that in her employment capacity, she “maintain[s] the records of [that] office as they relate to medical and dental malpractice claims”, and that no proposed complaint was filed therewith. See Def's. Memorandum in Support of Summary, Ex. D.
 
In response to this assertion, Plaintiff claims that he did in fact file his claim at the Office of the Commissioner of Health, but was unsuccessful in his attempt to obtain a stamped Copy of his proposed Complaint. He also stated that after a lengthy delay in processing, he was informed that the organization was no longer functional and his claim should be filed with the Court. In this regard, this Court finds that a stamped copy is not necessary because pursuant to 27 V.I.C. § 166i(c), “[t]he proposed complaint shall be deemed filed when a copy is delivered or mailed by registered or certified mail to the Commissioner of Health .... See 27 V.I.C. § 166i(c) (emphasis added). Moreover, the Plaintiff is not required to wait for a response indefinitely, “[i]f the Committee has not received the expert opinion as required by this section within ninety days from the date the complaint was filed, the claimant may commence his action against the health care provider in court.” See 27 V.I.C. § 166i(b).
 
What is necessary, however, is that the pre-filing is made with the Commissioner of Health 90 days before filing in Court. See generally, Missar v. Bucher, 41 V.I. 15, 21 (Super Ct. 2004), 2004 WL 2203521 (2004). Plaintiff contends that he delivered the proposed complaint in person to the Risk Management Office, which is under the Commissioner of Health. He further contends that he spoke to the Director of Risk Management, Dr. Alla, who advised him to proceed to court as no expert opinion would be sought. There is therefore, an issue of fact as to the filing of the proposed Complaint ninety days before filing the action in court, which precludes summary judgment at this juncture.
 
As Plaintiff correctly stated, this issue is a material dispute of facts wherein the credibility of the evidence and testimony must be determined and weighed by a finder of fact. The issue is material in that the law requires a dismissal of this action for lack of subject matter jurisdiction, if this mandatory pre-filing condition precedent is not performed. See Missar v. Bucher, supra; Espinosa v. Govt. of V.I., 20 V.I. 78, 83 (Terr. Ct. St. C. 1993). See also, Moravian School Advisory Bd. v. Rawlins, 33 V.I. 280, 70 F.3d 270 (3d Cir. 1995)(holding that “[t]he plain language of F.R.C.P. 12(h)(3) makes it clear that, where it appears at the outset that the district court is without subject matter jurisdiction, it is powerless to do anything but dismiss the action). Since “[s]ubject matter jurisdiction is a fundamental and nonwaivable requirement which must be fully considered by a court whenever a possible lack of jurisdiction is brought to its attention,” Godfrey v. International Moving Consultants, Inc. 18 V.I. 60 (D.C.V.I. 1980), this Court will deny summary judgment on this issue and leave both parties to their respective proofs on the issue of the filing of the proposed Complaint prior to the filing of this action in court.
 
Motion to Compel
The plaintiff moves the court to compel the defendant to respond more fully to his Interrogatories. Defendant opposes the motion on the grounds that Plaintiff has not complied with LRCi 37.1. This rule mandates that before filing any discovery motion with the court, any party must attach a certification of counsel, indicating why the parties could not agree or had refused to meet and confer to discuss the issues regarding discovery. Plaintiff submits that he attempted to comply with the statutory “meet and confer” in a letter dated June 3, 2005. Defendant admits that she did not respond to the letter request, but argues that a non-response should not be interpreted as a refusal to meet and confer.
 
It has been held that a mere correspondence requesting to “meet and confer”, without more, is inadequate to comply with the statutory requirements. See Joseph v. Cigna Ins. Co., WL 2280360 (D.C.V.I. 2004); see also, Ference v. Unisen, Inc., WL 2280361 (D.C.V.I. 2004). Likewise, the courts have held counsel's non-response to such correspondence cannot be deemed as an outright refusal. Id. stipulation and motion, not to exceed three (3) pages in length, unless otherwise ordered by the Court.]
 
Based upon the pleadings, the Court finds that Defendant's responses are nonetheless inadequate. “The general rule is that answers to interrogatories should be complete in and of themselves, and should not refer to pleadings, depositions, or other documents ... [even if sworn]”. See Dipietro v. Jefferson Bank, et al. 144 F.R.D. 279, 282 (1992). “Answers to interrogatories should be in such form that they may be used upon a trial, as Rule 33 contemplates.” Id. citing, International Mining, 567 F.Supp. at 787; Moore's Federal Practice, supra at note 7. Therefore, Defendant's references to documents previously provided to Plaintiff prior to the initiation of this lawsuit are insufficient discovery responses. Many responses were in fact, incomplete or left blank. A brief delve into the Local Rules of Civil Procedure, informs us that “all parties shall conduct discovery expeditiously and diligently” LRCi 16.1(a).
[E]ach party shall, without awaiting a discovery request, disclose, produce or make available for inspection to all other parties: and are required to disclose a general description, including location, of all documents, data, compilations ... and tangible things in the possession, custody, or control of that party that are likely to bear significantly on the claims and defenses.
LRCi 26.2 (c)(1)(A)(ii). This Court finds that Defendant has failed to appropriately respond to Plaintiff's Interrogatories, and that Plaintiff has failed to provide reasonable notice in requesting a “meet and confer.”
 
LRCi. 37.1 and 37.2 (a) – (c). In accordance with the foregoing, the premises considered, it is hereby,
 
ORDERED, that Defendants’ Motions for Summary Judgment are DENIED, and it is further,
 
ORDERED, that Plaintiff's Motion to Compel is DENIED, and it is further,
 
ORDERED, that Plaintiff must submit a letter requesting a LRCi 37.1 conference and the parties must participate in such conference no later than twenty (20) calendar days after service of the letter upon Defendant, and it is further,
 
ORDERED, that failure to comply with or cooperate with this Order in its entirety may result in the imposition of sanctions, and it is further,
 
ORDERED, that copies of this Order shall be directed to all parties.
 
ATTEST:
 
DENISE D. ABRAMSEN Clerk of the Court