IN THE STATE COURT OF FULTON COUNTY
STATE OF GEORGIA
DAVID A. DOE, )
Plaintiff, ) CIVIL ACTION
vs. ) NO. 99VS 159570 J
MT. SINAI TOWERS )
CONDOMINIUM ASSOCIATES, THE )
STANLEY WORKS, and BARBIE )
DOOR CONTROLS, INC., )
Defendants. ) <
MOTION FOR EXAMINATION OF THE PLAINTIFF
NOW COMES the defendant Mt. Sinai Towers’ Condominium Associates (“Mt. Sinai Towers”) and hereby files a Motion for Examination of the Plaintiff.
On January 11, 2001, the defendants took the discovery deposition of an individual identified by the plaintiff as his gerontologist expert. This was Robert Doe, M.D. A copy of his deposition is on file with the court. During that deposition, Dr. Doe testified that he had never examined the plaintiff, David DOE. All opinion testimony offered by Dr. Doe was rendered from only a cursory review of the medical records and, more largely, from discussions he had with the plaintiff’s lawyers. See deposition of Dr. Doe, at pp. 8, 83, 34-35, 23.
As defendants prepared for trial with their own medical expert, they were under the impression that David DOE had not been examined by anybody who was going to testify in this case as a medical professional since May, 2000.
On Tuesday, October 9, 2001, counsel for Mt. Sinai Towers asked plaintiff’s attorney for a second time if plaintiff’s attorneys would let the defense medical expert, Sheldon Margulies, M.D., examine David DOE. Defendants had initially asked the plaintiff’s attorney if Dr. Sheldon Margulies could examine the plaintiff on December 12, 2000, during the plaintiff’s discovery deposition of Dr. Margulies. See deposition of Sheldon Margulies, M.D., taken December 12, 2000, at pp. 42-43. Plaintiff’s attorney responded that he would take the matter under consideration. Plaintiff’s attorney never did respond to the defense’s request to examine plaintiff, David DOE.
On October 9, 2001, the attorneys for all parties met to go through exhibits each party intended to introduce during the trial per the court’s order. During that meeting, counsel for the plaintiff advised the defense for the first time that the plaintiff’s expert, Dr. Robert Doe, had, in fact, examined the plaintiff David DOE only the week before (the week of October 1, 2001). When the defense renewed its request to have Dr. Margulies examine the plaintiff, the plaintiff’s attorneys responded that they would not permit such an examination.
Argument and Citation of Authority
O.C.G.A.§ 9-11-35 permits an examination of a party, as most especially where that party has put into evidence his physical and/or mental condition. If ever there was a case where the plaintiff put his physical and mental condition into evidence, it would be this one. Plaintiff contends that as a result of a single fall back in June, 1999, despite many other falls, this particular fall caused him to sustain permanent and long-standing and worsening physical and cognitive deterioration. Case law makes clear that once the plaintiff has put such issues into evidence, a request for examination within the discretion of the court should be routinely granted. Crider v. Sneider, 243 Ga. 642 (1979). The only matter that courts might look to as a basis for denying such a request is where the requesting party is able to obtain identical or similar information by another means. Prevost v. Taylor, 196 Ga. App. 368 (1990). In this case, obtaining the information needed is impossible unless it is obtained through examination. The fact of the matter is that plaintiff’s expert has examined the plaintiff only one week ago, yet now the plaintiff’s attorneys tell us that it is too late for the defense to perform an examination of the plaintiff. The defense believes that either Dr. Doe’s testimony should be excluded insofar as it is based on any examination of the plaintiff David DOE, or the defense expert should be permitted to examine David DOE as well.
For all of the reasons cited above, Mt. Sinai Towers respectfully requests that this court permit its expert medical doctor, a neurologist, Sheldon Margulies, M.D. to examine the plaintiff at the place where the plaintiff now resides, Beverly Healthcare (a nursing home in Sandy Springs, Georgia).
Attorneys for Mt. Sinai Towers
CERTIFICATE OF SERVICE
This is to certify that I have this day served the foregoing MOTION FOR EXAMINATION OF THE PLAINTIFF on counsel for the parties of record by depositing a copy of same with the United States Postal Service in an envelope, with first-class postage prepaid, addressed to:
David M. Zacks, Esq.
Christopher B. Lyman, Esq.
Kilpatrick Stockton, LLP
1100 Peachtree St., Suite 2800
Atlanta, GA 30309-4530
William T. Casey, Jr., Esq.
Hicks Casey & Barber, P.C.
136 N. Fairground St., Suite 100
Marietta, GA 30060
James E. Singer, Esq.
Bovis, Kyle & Burch, LLC
53 Perimeter Ctr. E., Third Floor
Atlanta, GA 30346-2298<