IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Thomas/St. John

Kishna Brooks, Case Number: ST-2019-CV-00210
Plaintiff Action: Damages
Vv.

Cassandra D. Whitaker et al,
Defendant.

NOTICE of ENTRY
of
Memorandum Opinion & Order

To: Lee J. Rohn, Esquire Royette V. Russell, Esquire
Superior Court Judges & Magistrates Clerk of the Court, Tamara Charles
General Counsel

Please take notice that on March 10, 2022
a(n) Memorandum Opinion & Order
dated March 9, 2022 was entered
by the Clerk in the above-titled matter.

Dated: March 10, 2022 Tamara Charles
Clerk of the Court

ae

Audrey C. Brin
Court Clerk II

By:

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

fe oe oe oe a

KISHNA BROOKS on her own and as )
next friend of KG, ) CASE NO. ST-19-CV-210
)
Plaintiff, )
) ACTION FOR DAMAGES
v. )
)
DR. CASSANDRA WHITAKER, DR. )
RONALD NIMMO, MID-WIFE ANNE )
MARIE STUART, NURSE BENNET, ) Cite as 

MID-WIVES XYZ, NURSE XYZ, and )
VIRGINS ISLANDS GOVERNMENT )
HOSPITALS and HEALTH FACILITIES }
CORPORATION as Representative of }
the ROY LESTER SCHNEIDER J
HOSPITAL, )
)
Defendants. ) JURY TRIAL DEMANDED
wi )
LEE J. ROHN, ESQ. ROYETTE V. RUSSELL, ESQ.
Lee J. Rohn and Associates, LLC Assistant Attorney General
1108 King Street V.I. Department of Justice
56 King Street, Third Floor 213 Estate LaReine
St. Croix, V.I. 00820 Kingshill, V.I. 00850
Attorney for Plaintiff Attorney for the Defendant
CARTY, RENEE GUMBS, Judge
MEMORANDUM OPINION

ql BEFORE THIS COURT is Plaintiff's, Kishna Brooks (“Brooks”), “Motion to Compel Anne
Marie Stuart to Supplement Written Discovery Reponses,” filed on October 23, 2020. Defendant,
Anne Marie Stuart (“Stuart”), filed her opposition on October 27, 2020, and Plaintiff filed her reply
on October 30, 2020. Brooks also moved to compel supplemental responses from Virgin Islands

Government Hospitals and Health Facilities Corporation (““VIGHHFC”), and Dr. Ronald Nimmo
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Case No. ST-19-CV-210
Memorandum Opinion

(“Dr. Nimmo”), on December 2, 2020, and March 3, 2021, respectively. To date, VIGHHFC has not
filed a response.!
1. STANDARD OF REVIEW
a. Discoverable Information

q2 Virgin Islands Rules of Civil Procedure Rule 26 and Rule 33 govern the scope of a party’s
duty to disclose information during discovery and answer interrogatories. Cruz v. VI. Water & Power
Auth., No. ST-15-CV-491, 

, at *1 (Super. Ct. Jan. 14, 2020) (citing Gourmet
Gallery Crown Bay, Inc. v. Crown Bay Marina, L.P., 

, *2, (V.1. Super. Ct. June
2, 2017). Under V.I.R. Civ. P. 26(b)(1), “[pjarties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense. Information within this scope of discovery need
not be admissible in evidence to be discoverable.” Cruz, 

, at *1; Donastorg v.
Walker, No. ST-17-CV-393, 

, *5 (V.I. Super. Ct. July 11, 2019). “(T]he singular
factor for determining whether information is discoverable is its relevance.” Cruz, 

, at *1 (quoting Finn v. Adams, No. ST-16-CV-752, 2017 V.L LEXIS 162 at *6, [WL] at *3 (V.I.
Super. Ct. Nov. 28, 2017)).

43 Under the standard provided by Rule 401 of the Virgin Islands Rules of Evidence, the court
determines what information is relevant. See Donastorg, 

 at *5-6. Relevant
information is that which has the “tendency to make the existence of any fact that is of consequence
to the determination of the action more or less probable than it would be without [it].” Donastorg,

 at *6; see also Thomas v. People of the V.L, 

 (V.I. 2013).

' An Order granting Plaintiff Brooks’ motion regarding VIGHHFC has been issued under separate cover. As it
pertains to Defendant Dr. Nimmo, the Court record reflects that Dr. Nimmo filed a “Notice of Service of Defendant Dr.
Nimmo. M.D.’s Responses to Plaintiff's First Set of Interrogatories and Request for Production of Documents” on March
19, 2021, advising that supplemental responses were served in response to Brooks’ motion to compel.

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Determining relevancy is a low threshold that is easy to satisfy. Donastorg, 

, at
*6; see also Ostalaza v. People of the V.1., 58 V.1. 531, 564 (V.L. 2013).
b. Interrogatories

94 Under V.I. R. Civ. P. 33(a)(1)-(2), “a party may serve on any other party no more than 25
written interrogatories,” which “may relate to any matter that may be inquired into under Rule 26(b).”
A party served with interrogatories must provide an answer or objection to each interrogatory within
thirty (30) days after being served, V.I. R. Civ. P. 33(b)(1)-(4), unless that party “represents in good
faith in its response that it cannot—in the exercise of reasonable efforts—prepare an answer from
information in its possession or reasonably available to the party.” V.I. R. Civ. P. 33(d). “The grounds
for objecting to an interrogatory must be stated with specificity.” V.I. R. Civ. P. 33(b)(4). An
objection that is untimely or without grounds “is waived, unless the court, for good cause, excuses
this failure.” Jn re Adoption of VI. Rules of Civil Procedure, No. 2017-001, 2017 V.1. Supreme LEXIS
22 at *183, 2017 WL1293844, at *50 (V.I. Apr. 3, 2017) (quoting V.I. R. Civ. P. 33(b)(4)). All
interrogatories without an objection “must be answered separately and fully in writing under
oath.” V.I.R. Civ. P. 33(b)(3).

q5 A party may move to compel discovery under V.I. R. Civ. P. 37(a)(1) if the party served fails
to make all necessary disclosures as required by V.I. R. Civ. P. 33. Virgin Islands Rules of Civil
Procedure Rule 37-1(a) requires parties to “confer in a good faith effort to eliminate the necessity for
the motion—or to eliminate as many of the disputes as possible.” V.I R. Civ. P. 37-1(a).
Demonstrating good faith, the movant must include a certification that they have conferred, or
attempted to confer, with the opposing party failing to disclose material in an effort to obtain said
information without court action. V.I. R. Civ. P. 37(a)(1). Additionally, the moving party must submit

a letter to opposing counsel which “ identif[ies] each issue and/or discovery request in dispute, stating
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Case No. ST-19-CV-210
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briefly the moving party's position with respect to each (and providing any legal authority), and
specifying the terms of the discovery order to be sought.” V.I. R. Crv. P. 37-1(b). The moving party
is then responsible for “makfing] any necessary arrangements for a conference.” V.I. R. Civ. P. 37-1
(c)(1). Counsel are encouraged to meet, whether in person, telephonically, or by video conferencing
within fifteen (15) days of serving the letter requesting such conference. V.I. R. Civ. P. 37-1 (c)(2);
V.L R. Civ. P. 37-1 (c)(3).

Ii. FACTUAL AND PROCEDURAL HISTORY

%6 During the months of September, October, and December of 2014, and January and February
of 2015, Brooks, while pregnant, visited the Roy Lester Schneider Hospital suspicious of fetal
complications. Doctors and hospital staff examined Brooks where they allegedly missed early signs
and symptoms of a “true knot” which impacted the health and well-being of Brooks’ fetus, “KG.” As
a result of the alleged misconduct, KG suffered permanent brain damage which requires constant
medical attention for the foreseeable future. Brooks asserts all Defendants are liable for the
misdiagnosis of KG.

47 Brooks filed her complaint on April 29, 2019. On July 16, 2020, Brooks sent a letter to
counsel for Defendants requesting all outstanding discovery responses. In this letter, Brooks stated
Dr. Nimmo, Dr. Cassandra Whitaker (“Dr. Whitaker”), Stuart, and VIGHHFC had not responded to
Brooks’ interrogatories or demands for production of documents and requested all such information
be provided within the next ten (10) days. Stuart eventually provided her responses. However, on
September 16, 2020, Brooks sent another letter to Stuart requesting she supplement her responses to
discovery within ten (10) days. Specifically, Brooks argues Stuart did not answer questions fully or
incorrectly rejects answering the questions. The parties met and conferred on September 29, 2020, to

discuss the discovery sought by Brooks.
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Case No. ST-19-CV-210
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98 On October 15, 2020, Brooks sent another letter to Stuart summarizing what the parties agreed
upon while meeting on September 29, 2020. In this letter, Brooks states Stuart agreed to supplement
Interrogatories Nos. 7, 8, 11 and Demands for Production Nos. 29 and 30, but declined to suppiement
Interrogatories Nos. 13, 14, 15, 20, and 23, and Demands for Production Nos. 2, 13, 15, 25, 26, 27,
28, 31, 34, 36, and 37-47. Brooks withdrew her Demands for Production nos. 7, 11, 12, 16, 18, and
33. Stuart provided no reason for declining to supplement such interrogatories and demands for
production.

49 On October 23, 2020, Brooks moved to compel Stuart to supplement discovery responses for
Interrogatory Nos: 13, 14, 15, 20, 23, 24, and 25, and demanded Stuart produce information regarding
Demands for Production Nos: 13, 15, 24-28, 31, 34, and 36-47. Stuart filed her opposition on October
27, 2020, arguing Brooks’ motion to compel is “harassing, cumulative and redundant.” Brooks filed
her reply on October 30, 2020.

Ill. ANALYSIS
a. Brooks Satisfied the Meet and Confer Requirement

410 The parties met and conferred on September 29, 2020, to discuss the supplemental information
that would be provided. Brooks made a good faith effort to obtain discovery without court action, and
the motion certifies that such efforts were made in accordance with V.I.R. Civ. P. 37(a)(1). Given the
communicattons between Brooks and Stuart and for the reasons stated, the Court finds that Brooks
satisfied the meet and confer requirement.
b. Brooks’ Motion to Compel Defendant Stuart Will be Granted

11 “For discovery to progress effectively, each party must provide truthful, complete, candid,
and explicit responses to each individual discovery request.” Cruz, 

, at *7;

Donastorg, 

, at *10. Regarding interrogatories, the responding party must answer
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Case No. ST-19-CV-210
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each interrogatory “‘separately and fully in writing,” unless the responding party demonstrates that he
cannot do so “with the exercise of reasonable efforts.” V.I. R. Ctv. P. 33 advisory committee's note to
subpart (b). Only when the responding party has made this representation can they state the answer
to an interrogatory may be determined by examining other documents. See V.I.R. Civ. P. 33 advisory
committee's note to subpart (d). Otherwise, answering an interrogatory by merely “referring to
pleadings or other discovery is insufficient.” 

 (1964).? When an attorney or party
signs a discovery response, he “certifies that to the best of [his] knowledge, information, and belief
formed after a reasonable inquiry, each disclosure is complete and correct, and that each discovery
response is warranted by law, not interposed for any improper purpose, and neither is unreasonable
nor unduly burdensome.” Cruz, 

, at *8; Donastorg, 

, at *10,
(internal quotations omitted) (citing V.I. R. Civ. P. 26(g)(1)). “Gamesmanship to evade answering as
required is not allowed.” Donastorg, 

 at *10, (quoting Wagner v. St. Paul Fire &
Marine Ins. Co., 

 (N.D.W. Va. 2006)).

412 Brooks moves to compel Stuart to supplement her responses to Interrogatory Nos. 13, 14, 15,
20, 23, 24, and 25, and Demands to Production Nos, 13, 15, 24-28, 31, 34, and 36-47. The Court will
evaluate each request to supplement responses and the sufficiency of Stuart’s responses against the
standard expressed in the Virgin Islands Rules of Evidence Rule 401.

INTERROGATORY NO. 13

Interrogatory No. 13 states:

Please identify and describe the applicable standard of care that you contend applied to
your treatment of Kishna Brooks and KG, all medical literature that supports this
standard that was known to you and/or considered by you during the time that you

? “An answer to an interrogatory must be responsive to the question; it should be complete in itself and should not
refer to the pleadings, or to depositions or other documents, or to other interrogatories, at least where such references
make it impossible to determine whether an adequate answer has been given without an elaborate comparison of answers.”

 (1964).

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treated Krishna Brooks and KG, and if you are contending that your care of Kishna
Brooks and KG met the applicable standard, identify each and every fact in support of
this contention, all witnesses who will testify to this, and all medical literature regarding
the same.

Response to Interrogatory No. 13 states:

Standard of care is established by experts. The time for disclosure of experts has not
expired,

413 Brooks argues the standard of care is what medical professionals learn while in medical school
and medical staff shalt not treat a patient without knowing the correct standard of care to provide.
Conversely, Stuart argues the standard of care is established by experts and the question calls for a
legal opinion which Stuart is not qualified to answer. The Court finds Stuart’s response wholly
insufficient. See Kralik v. Osage STX Holdings, LLC, 

 (Super. Ct. 2020). As a
medical professional, Stuart understands the standard of care is necessary for her to comply with
hospital rules and regulations. There are several standards of care that apply to Stuart’s midwifery
profession, and Stuart is in the best position to provide such a response. Schrader v. Juan F. Luis
Hosp. & Med. Cir., No. SX-12-CV-066, 

, at *7 (Super. Ct. June 7, 2016)
(footnote 3 listing the most common standards of care in medical malpractice cases: the national
standard of care, the locality rule, and the respectable minority rule). Courts have held that medical
facilities and professionals side-stepping questions regarding standard of care is unacceptable.
O'Garro v. Bryan, No. SX-19-CV-112, 

, at *11 (Super. Ct. May 26, 2021). As
such, Stuart is qualified to provide the standard of care for her profession as a mid-wife.

414 The Court holds the information requested in Interrogatory No. 13 relevant to Brooks’ claim
and is therefore discoverable. The Court finds that Stuart’s response is incomplete and will ORDER
response to Interrogatory No. 13 to be supplemented. Stuart shall provide any applicable medical

literature related to the standard of care proffered; the medical standard of care she is aware of and
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applied at the time of treatment, specific facts, or actions to support her claim, and the names of others
present who can attest to her care.

INTERROGATORY NO. 14

Interrogatory No. 14 states:

Identify any and all persons known to you who were involved in any manner in the
testing, diagnosis and/or treatment of Kishna Brooks or KG, at any time and describe
the specific involvement that each person had and/or the specific actions taken by each,

describe Kishna Brooks’ response to same, and identify any and all communications
between you and each person, concerning Kishna Brooks and KG.

Response to Interrogatory No. 14 states:

That information is in the medical records.
415 Brooks demands narrative responses to Interrogatory No. 14. and argues Stuart’s reference to
the medical records for Interrogatory No. 14 is insufficient; merely citing to documents does not serve
the same purpose as interrogatories. Brooks seeks facts in the form of a narrative answer instead of
documents or tangible objects. Stuart argues the information Brooks seeks exists in the medical
records already produced by Stuart and to review and recite all the medical records that are in Brooks’
possession is “harassing, cumulative and redundant.”
916 The information requested in Interrogatory No. 14 is relevant to Brooks’ claim and is therefore
discoverable. Additionally, Brooks is entitled to a narrative response “fully in writing.” V.I. R. Civ.
P. 33(b)(3); Great Lakes Ins. S.E. & HDI Glob. Specialty S_E. v. Sunshine Shopping Ctr., No. 1:19-
cv-00039, 

, at *6 (D.V.I. June 22, 2020) (“courts have interpreted the
requirement of answering each interrogatory ‘separate and fully in writing’ . . . as requiring a narrative
response.”’). Stuart puts forth no effort in responding to the interrogatory posed. Thus, the Court shall
ORDER Stuart to provide a full, narrative response to Interrogatory No. 14 and provide the names

of all individuals known to her regarding the testing, diagnosis, and/or treatment of Brooks and
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include the specific involvement each person had and include any communications between Stuart
and the aforementioned persons.

INTERROGATORY NO. 15

Interrogatory No. 15 states:

Please describe in detail all medical experience that you had as of 2014, in the

treatment of, testing for, diagnosis and/or care of patients with the child in-utero having

a true knot in the umbilical cord, including all training in the same, all certifications in

the same, the number of years that you have routinely tested for, diagnosed and/or

treated patients for these conditions, and please state the approximate number of

persons on which you have performed such services from 2010 to the present.

Response to Interrogatory No. 15 states:

Not applicable.
{!7 Brooks argues Stuart’s response is inappropriate because the information sought is relevant
to this case at hand. Stuart argues her answer is sufficient as the question is not relevant because at
the time of Brooks’ encounter with Stuart, Brooks was not diagnosed with a true knot. Stuart opines
Brooks’ symptoms of “contractions and a headache” is not conclusive of a true knot. The reality is
Stuart made no effort to answer any part of this interrogatory. This information is certainly relevant
and therefore discoverable. Further, the answer of “not applicable” is inconsistent with the
interrogatory. Stuart may not have any relevant experience or training and if so, Stuart is required to
provide a narrative response explaining such. See V.I.R. Civ. P. 33{b)(3). Likewise, Stuart should be
able to describe her medical experience. Thus, the Court holds the information requested in
Interrogatory No. 15 is relevant and finds Stuart’s response unacceptable. The Court will ORDER

Stuart to supplement her response to Interrogatory No. 15 and provide all medical experience,

trainings, certifications, etc. relevant to patients bearing a child in-utero suffering from a true knot.
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INTERROGATORY NO. 20

Interrogatory No. 20 states:

Please describe in detail any and all hospital procedures, practices, rules and/or criteria

that you were to follow concerning your evaluation, treatment and care of Krishna

Brooks and KG at any and all times from September 2014 to March 2015 at the

Hospital.

Response to Interrogatory No. 20 states:

See response to No. 9.

Response to Interrogatory No. 9 states:

I have very little recollection of the patient encounter. I recall triaging said patient

during my night shift on January 26, 2015. She came in complaining of decreased fetal

movement. We did a 30 mins non stress test that revealed she had fetal movement

during that time and a reassuring fetal heart rate that did not warrant further

management; therefore patient was sent home after discussing it with the Doctor on

call. That was my only encounter with her.
418 Similar to the Court’s analysis for Interrogatory No. 14, the information requested in
Interrogatory No. 20 is relevant to Brooks’ claim and is therefore discoverable. Brooks is entitled to
a narrative response “fully in writing,” and Stuart puts forth little effort in responding to the
interrogatory posed. V.I. R. Civ. P. 33(b)(3); Great Lakes Ins. SE. & HDI Glob. Specialty SE. v.
Sunshine Shopping Ctr., No. 1:19-cv-00039, 

, at *6 (D.V.I. June 22,
2020). Stuart directs Brooks to a previously answered interrogatory in her response for Interrogatory
No. 20. As such, Stuart’s response fails to include necessary information that Brooks seeks.
Specifically, in her response Stuart states, “we did a 30 mins non stress test,” yet fails to clarify who
she was with at the time. Stuart should be able to identify all persons to her knowledge involved in
the testing, diagnosis, and treatment of Brooks and KG and all relevant communication between

persons. Even if this requires Stuart to review her personal records. The Court holds Stuart’s response

to Interrogatory No. 20 as incomplete and will ORDER Stuart to supplement her response and

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provide all hospital procedures, practices, rules, and criteria followed concerning her evaluation,
treatment and care of Brooks from September 2014 to March 2015.

INTERROGATORY NO. 23
Interrogatory No. 23 states:

Please identify any and all other health care practitioners with whom you have had
any type of communications regarding the diagnosis, care, or treatment of Krishna
Brooks and KG, the dates and time of each such communication, the substance of each
such communication, the reason for each communication, and identify all documents
referencing and/or concerning such communication.

Response to Interrogatory No. 23 states:

See response to No. 9.

Response to Interrogatory No. 9 states:

I have very little recollection of the patient encounter. I recall triaging said patient

during my night shift on January 26, 2015. She came in complaining of decreased fetal

movement. We did a 30 mins non stress test that revealed she had fetal movement

during that time and a reassuring fetal heart rate that did not warrant further

management; therefore patient was sent home after discussing it with the Doctor on

call. That was my only encounter with her.
419 Similar to the Court’s analysis for Interrogatory No. 20, Stuart provides an insufficient
response. The interrogatory asks Stuart to “identify any and ail other health care practitioners”
involved in the treatment of Brooks and to include dates and documents of such treatment. Again,
Stuart does not identify the “we” or the “doctor on call” in her response. Stuart uses a blanket response
for several interrogatories, each of which poses a different question that requires an appropriate
response. See V.I. R. Civ. P. 33(b)(3). As such, the Court will ORDER Stuart to supplement her

response to Interrogatory No. 23 and provide all communications and with whom regarding

diagnosis, care, or treatment of Brooks.

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INTERROGATORY NOS. 24, 25

Interrogatory No. 24 states:

In Defendants’ Affirmative Defense No. 16, Defendants allege that, “Plaintiff is barred
from recovery for Plaintiff's failure to comply with instructions, orders, and/or
directions of treating health care providers.” Please state and describe all instructions,
orders and/or directions you contend Plaintiff failed to comply with, identify all
documents regarding same and identify all persons with knowledge of same, and state
your reasons for your contentions of Plaintiff's failure to comply with the instructions,
orders and/or directions of treating healthcare providers.

Response to Interrogatory No. 24 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Interrogatory No. 25 states:

In Defendants’ Affirmative Defense No. 17, Defendants allege that, “Plaintiff is barred
from recovery herein by reason of the fact that the Defendants committed no act of
medical malpractice.” Please describe all reasons of your contentions that Defendants
committed no act of medical malpractice, identify all documents which evidence same
and identify all persons with knowledge of same.

Response to Interrogatory No. 25 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

{20 Brooks submits she is entitled to “facts known to date and persons with knowledge,” whereas
Stuart argues the Virgin Islands Rules of Civil Procedure requires a party to include any affirmative
defenses in their answer and may posit as many affirmative defenses as they desire. Stuart asserts she
will amend her answer if the ongoing discovery process reveals contradicting evidence. Although the
Virgin Islands of Civil Procedure permits pleading in the alternative, a party must respond to
interrogatories with “all facts currently known” regarding their affirmative defense. See Sabin v. St.

Croix Basic Servs., No. 2002/80, 

, at *5-6 (D.V.I. Oct. 6, 2003). A

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defendant is not required to respond to “any interrogatory concerning an affirmative defense based
solely upon a legal proposition.” Sabin, 

, at *6.

921 Brooks is entitled to any current and future information which supports these defenses, if it
exists. See Sabin, 

 at *9-10. Thus, the Court will ORDER Stuart to
supplement her Response to Interrogatories Nos. 24 and 25, and Stuart shall provide Brooks any and
all information which supports the affirmative defenses asserted by Stuart. If no information exists at
this time, Stuart shall affirmatively say so.

DEMAND FOR PRODUCTION NO. 13

Demand for Production No. 13 states:
Produce copies of any and ail photographs, videos, radiological tests, x-ray films,
digital x-rays, charts, graphs, scans, computer generated images or other such visual

depictions relating in any way to your treatment of Kishna Brooks and/or KG.

Response to Demand for Production No. 13 states:

See medical records previously produced.
922 Brooks requests Stuart to identify the appropriate medical records and documents during the
course of Brooks’ treatment. Again, Stuart does not directly explain how her response to Demand for
Production No. 13 is sufficient. Stuart responds to Demand for Production No. 13 by directing Brooks
to previously produced medical records. However, a responding party may not simply refer to a “mass
of records” when responding to a discovery request. Nobles v. Jacobs IMC (JIMC), No. 2002/26,

, at *5 (D.V.L July 7, 2003). The responding party must “specifically
identify which documents contain the requested information” when responding. Jd. Thus, the Court
will ORDER Stuart to supplement her Response to Demand for Production No. 13 and provide bates-

stamped numbers or by use of any other appropriate identifying marks.

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DEMAND FOR PRODUCTION NO. 15

Demand for Production No. 15 states:

Produce copies of all standards, policies, procedures, medical literature, practices,
rules, protocols, regulations, medical treatises, criteria, and/or documentation of any
kind whatsoever, that you read, reviewed, consulted and/or relied upon, followed by
you, with regard to your treatment, testing, examinations and diagnosis of Kishna
Brooks and/or KG in from September 2014 to March 2015.

Response to Demand for Production No. 15 states:

I do not have such documents in my possession.
{23 Brooks argues the government must make a “reasonable effort” to assure Stuart provides all
the information and documents available and pertinent to the request. Stuart does not explain how her
responses to Demand for Production No. 15 is sufficient. Brooks cites Legault v. Zambarano, 

 (ist Cir. 1997), which examines the notes of Federal Rules of Civil Procedure Rule 26(g)’.
Same and similar language discussing an attorney’s responsibility is also found in the third circuit.
See Winner v. Etkin & Co., No. 2:07-cv-903, 

, at *11 (W.D. Pa. Dec.
31, 2008) (attorney must make “a reasonable effort to assure that the client has provided all the
information and documents available to him that are responsive to the discovery demand.”); see also
Claude Worthington Benedum Found. v. Harley, Civil Action No. 12-1386, 

, at *11 (W.D. Pa. July 22, 2014) (counsel's signature "certifies that the lawyer has made a
reasonable effort to assure that the client has provided all the information and documents available to

him{.]”). Although the same comment is not in the Virgin Islands Rules of Civil Procedure, Rule 26

3 “Rule 26(g) does not require the signing attorney to certify the truthfulness of the client’s factual responses to a
discovery request. Rather, the signature certifies that the lawyer has made a reasonable effort to assure that the client has
provided all the information and documents available to him that are responsive to the discovery demand. Thus, the
lawyer’s certification under Rule 26(g) should be distinguished from other signature requirements in the rules, such as
those in Rules 30(e) and 33.” FED. R. Civ. P. 26(g).

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of the Federal Rules of Civil Procedure and the Virgin Islands Rules of Civil Procedure are identical.*
Therefore, the same or a similar standard should be applied.

924 ~+As such, the Court is not convinced Stuart is unable to produce any literature, manuals, rules,
or documents related to her profession or her treatment of Brooks. Thus, the Court finds Stuart’s
responses inadequate and will ORDER Stuart to supplement her response to Demand for Production
No. 15 and counsel for Stuart must make reasonable efforts to provide the information sought by
Brooks.

DEMANDS FOR PRODUCTION NOS. 24-28

Demand for Production No. 24 states:

Produce manual, guideline or other item describing policies, protocols, or procedures
in effect at the Hospital from 2014 to 2015 relative to the care, testing and treatment of
a true knot of the umbilical cord.

Response to Demand for Production No, 24 states:
I do not have any of these documents.

Demand for Production No. 25 states:

Produce manual, guideline or other item describing policies, protocols, or procedures
in effect at the Hospital from 2014 to 2015 relative to the care, testing and treatment of
decreased fetal movement.

Response to Demand for Production No. 25 states:

I do not have any of these documents.

Demand for Production No. 26 states:

Produce manual, guideline or other item describing policies, protocols, or procedures
in effect at the Hospital from 2014 to 2015 relative to the care, testing and treatment of

the fetus having several bradycardic episodes.

Response to Demand for Production No. 26 states:

‘ In re Adoption of the V.1. Rules of Civil Procedure, No. 2017-001 V.1. Supreme Lexis 22 (Apr. 3, 2017).
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Case No. ST-19-CV-210
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See previous response.

Demand for Production No. 27 states:
Produce manual, guideline or other item describing policies, protocols, or procedures
in effect at the Hospital from 2014 to 2015 relative to the care, testing and treatment of
persistent fetal heart rate deceleration.

Response to Demand for Production No. 27 states:
See previous response.

Demand for Production No. 28 states:

Produce manual, guideline or other item describing policies, protocols, or procedures
in effect at the Hospital from 2014 to 2015 relative to the care, testing and treatment of
the inability to hear a fetal heartbeat.

Response to Demand for Production No. 28 states:

See previous response.
925 The Court’s analysis for Demands for Productions Nos. 24-28 is similar to the Court’s
analysis for Demand for Production No. 15. Counsel for Stuart must make a reasonable effort to
assure that Stuart provided all the documents to Brooks available to her. Given the circumstances, the
Court is not convinced Stuart is unable to produce any literature, manuals, rules, or documents related
to her profession or her treatment of decreased fetal movement, bradycardic episodes, persistent fetal
heart rate deceleration, or the inability to hear a fetal heartbeat. Thus, the Court finds Stuart’s
responses inadequate and will ORDER Stuart to supplement her responses to Demands for
Production Nos. 24-28 and counsel for Stuart must make reasonable efforts to provide the information

sought by Brooks.

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DEMAND FOR PRODUCTION NO. 31

Demand for Production No. 31 states:
Please produce a complete copy of your personnel file at the Hospital and/or from any
other place of employment where you have been employed within the last ten (10)

years.

Response to Demand for Production No. 31 states:
Objection. Personnel records are protected from discovery.

{26 Stuart insists her personnel files are confidential and protected from discovery. However,
Brooks correctly points out nonprivileged materials are discoverable so long as the information is
relevant and not privileged. See Cruz, 

, at *! (quoting Donastorg, 

, *5). In the case sub judice, the personnel file sought is relevant and Brooks is entitled to
ask for this information. Further, V.I. R. Civ. P. 26(b) establishes the scope of discovery and states
that it encompasses “any nonprivileged matter that is relevant to any party's claim or defense.”
Arvidson v. Buchar, No. ST-16-CV-410, 2018 V.L LEXIS 149, at *23 (Super. Ct. June 6, 2018).
Citizens have the right to examine and copy public records. 3 V.LC. § 881(a). Personal information
in confidential personnel records is kept confidential unless ordered by a court to release such
information. 3 V.I.C. § 881(g)(10). There may be confidential information in Stuart’s personnel
records, but the Court does not find her employment history confidential and worthy of withholding.
Thus, the Court finds Stuart’s response to Demand for Production No. 31 inadequate and will
ORDER Stuart to provide Brooks with a properly redacted copy of her personnel file from the

hospital and any other place of employment within the last ten (10) years.

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DEMAND FOR PRODUCTION NO. 34

Demand for Production No. 34 states:
Produce copies of any and all documents and communications between you and Kishna
Brooks and/or anyone on her behalf, concerning the care plan/recommendation that

you contend/affirm/believe that she did not follow.

Response to Demand for Production No. 34 states:

Objection. This inquiry assumes disputed facts.
927 Stuart objects to Brooks’ request because the Demand for Production assumes facts that are
in dispute. Brooks argues this information is relevant and discoverable and is therefore entitled to
request it. The Court does not read Brooks’ Demand for Production No. 34 to include an assumption
of facts that are in dispute. Brooks requests existing documents or information which Stuart is relying
on to support her affirmative defense. As mentioned in Interrogatory Nos. 24 and 25, Stuart must
respond with “all facts currently known” regarding her affirmative defense. See Sabin v. St. Croix
Basic Servs., No. 2002/80, 

, at *5-6 (D.V.I. Oct. 6, 2003). Therefore,
the Court will ORDER Stuart to provide any and all documents and communications between Stuart
and Brooks or anyone on Brooks’ behalf concerning the care plan, or recommendation, Stuart alleges
Brooks did not follow.

DEMAND FOR PRODUCTION NO. 36

Demand for Production No. 36 states:

Produce and identify all patient records and nurse notes, including, but not limited to,
the records of February 26, 2015, that were hidden.

Response to Demand for Production No. 36 states:
Objection. This inquiry assumes disputed facts.
{28 Stuart objects to Brooks’ request because the Demand for Production assumes that Brooks

did not follow orders while in the hospital or records that were “hidden” from Brooks on February

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Case No. ST-19-CV-210
Memorandum Opinion

26, 2015. Brooks argues this information is relevant and discoverable and is therefore entitled to
request it. While the Court recognizes the verbiage of Brooks’ Request for Production is worded in a
manner which suggests intentional wrongdoing by Stuart, the objection is overruled because the
information sought is relevant and discoverable. If Stuart believes an assumed fact by Brooks is false,
the proper response is to respond to the request for demand and in her answer deny any assumed
facts. Stinson v. Sirleff, 92 Civ. 6059 (SWK), 

, at *3 (S.D.N.Y. Aug. 1,
1994). Stuart’s response is inadequate, and the Court will ORDER Stuart to supplement her responses
to Demand for Production No. 36. Stuart shall provide all patient records and nurse notes including
the records of February 26, 2015. Any denial of assumed facts shall be articulated in Stuart’s
response.

DEMAND FOR PRODUCTION NOS. 37-47

Demand for Production No. 37 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 12 that, “Plaintiff is barred from recovery against Defendants
by Plaintiffs’ own negligence, which constituted more than fifty-one (51%) of the
proximate cause of her damages.”

Response to Demand for Production No. 37 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 38 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 13 that, “Plaintiff is barred from recovery in whole or in part
because the damages of which she complains are due to the acts and omissions of other
parties, over which the Defendant have no control.”

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Case No. ST-19-CV-210
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Response to Demand for Production No. 38 states:

Discovery is stil! ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 39 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 14 that, “Plaintiff is barred from recovery against Defendants
because Kishna Brooks knowingly and intelligently consented to the medical treatment
performed by the Defendants after she was reasonably and adequately warned of all
alleged risks and had actual, constructive or imputed knowledge of same, with full
knowledge of the risks which could occur from such treatment, and for which the
Plaintiff claims damages in this cause of action.”

Response to Demand for Production No. 39 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 40 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 15 that, “Plaintiff is barred from recovery against Defendants
for failure to join necessary and indispensable parties.”

Response to Demand for Production No. 40 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 41 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 16 that, “Plaintiff is barred from recovery for Plaintiff's
failure to comply with instructions, orders, and/or directions of treating health care
providers.”

Response to Demand for Production No. 41 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

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Case No. ST-19-CV-210
Memorandum Opinion

Demand for Production No. 42 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 17 that, “Plaintiff is barred from recovery herein by reason of
the fact that the Defendants committed no act of medical malpractice.”

Response to Demand for Production No. 42 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 43 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 18 that, “Plaintiff is barred from recovery against Defendants
because the allegations against Defendants, even if proven true, are not the proximate
cause of any alleged damages.”

Response to Demand for Production No. 43 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 44 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 19 that, “Plaintiff is barred from recovery against Defendants
because each and every obligation and duty owed to Plaintiff was fully performed and
discharged.”

Response to Demand for Production No. 44 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 45 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 20 that, “Plaintiff is barred from recovery against Defendants
because Plaintiff's own negligence exceeded that of the Defendant, if any, which is
specifically denied.”

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Response to Demand for Production No. 45 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 46 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 21 that, “Plaintiff is barred from recovery herein against the
Defendants to the extend payments have been received from collateral sources. To the
extent collateral source payments have been received, the Defendant claims said
payments as a set-off against any judgment which might be recovered against them.”

Response to Demand for Production No. 46 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

Demand for Production No. 47 states:

Please produce complete copies of all writings, correspondence, reports, records, notes,
memoranda, electronic data, documents and any other items to support your
Affirmative Defense No. 22 that, “Plaintiff is barred from the recovery of damages
against Defendants for multiple occurrences of loss, because of her losses, if any, were
from a single occurrence and as such, multiples for damages are barred by statute and
the basis for recovery is unsupported by the facts.”

Response to Demand for Production No. 47 states:

Discovery is still ongoing. If there is no evidence to support this defense it will be
withdrawn.

429 Similar to the Court’s analysis for Interrogatory Nos. 24 and 25, merely claiming “discovery
is still ongoing” is an insufficient response. In her Demand for Production Nos. 37-47, Brooks
requests any documented information with respect to affirmative defenses 12-22. Stuart, like before,
maintains she is only required to provide known information and wil! withdraw any affirmative
defenses unless evidence supports such a defense. Each party is entitled to know the factual basis of

each claim or defenses. Sabin, 

, at *5. Stuart need not provide

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Case No, ST-19-CV-210
Memorandum Opinion

information regarding the “ultimate determination” of the case but must include “all facts currently
known to defendant as requested by plaintiff.” /d. at *6.

430 As it stands, Stuart’s responses lack any of the necessary depth to support her defenses. Stuart
may retain her affirmative defenses while discovery continues to proceed, but Brooks is entitled to
any and all information available which supports these affirmative defenses. As such, the Court will
ORDER Stuart to supplement her responses to Demands for Production Nos. 37-47. Stuart shall
provide Brooks any and all information which supports the affirmative defenses asserted by Stuart.
Brooks is entitled to any current and future information which supports these defenses, if such
information exists and if it does not exist at this time, Stuart must affirmatively say so.

IV. CONCLUSION

931 Inconclusion, Brooks has demonstrated her good faith efforts to obtain discovery information
without court interference and Stuart provided incomplete answers to Brooks’ interrogatories and
demands for production. The Court holds Stuart must supplement her interrogatory and demand for

production responses. The motion to compel is granted. An Order consistent herewith immediately

follows. a
Dated: March , 2022 % ft / )

Ren
ATTEST: Judge of th¢/ Superior Court
Tamara Charles of the Viygin Islands
Clerk of the lhe rt

Ll

Vie
Court Clérk Supervisor _ 3, HP O; HOP 441 CH

23
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

2K A ok ak

KISHNA BROOKS on her own and as
next friend of KG, CASE NO. ST-19-CV-210
Plaintiff,
ACTION FOR DAMAGES
V.

DR. CASSANDRA WHITAKER, DR.
RONALD NIMMO, MID-WIFE ANNE
MARIE STUART, NURSE BENNET,
MID-WIFES XYZ, NURSE XYZ, and
VIRGINS ISLANDS GOVERNMENT
HOSPITALS and HEALTH FACILITIES
CORPORATION as Representative of
the ROY LESTER SCHNEIDER
HOSPITAL,

Cite as 

Defendants. JURY TRIAL DEMANDED

See” Nee Senet nee “epee See None me” ee “ine ng Seer Spee “nee” “ee eee me” See” pee”

ORDER

THIS MATTER is before the Court on Plaintiff's, Kishna Brooks (“Brooks”), “Motion to
Compel Anne Marie Stuart to Supplement Written Discovery Reponses,” filed on October 23,
2020. Defendant, Anne Marie Stuart (“Stuart”), filed her opposition on October 27, 2020, and
Brooks filed her reply on October 30, 2020. The Court having been advised in its premises, it is
hereby

ORDERED that Brooks’ request to compel supplemental! responses to Interrogatory Nos.
13, 14, 15, 20, 23, 24, and 25, and Demand for Productions Nos. 13, 15, 24, 25, 26, 27, 28, 31, 34,
36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, and 47 are GRANTED; and it is further

ORDERED that Stuart shall supplement Interrogatory No. 13 by describing any applicable

standard of care which applied to the treatment of Brooks and KG, providing any medical literature
Kishna Brooks et al v. Dr. Cé.ndra Whitaker, et al. Cite as 

Case No. ST-19-CV-210
Order

which supports this standard of care, and identify any witnesses who will testify to the applicable
standard of care. Stuart will also provide facts relating to the standard of care proffered and include
the names of witnesses who will testify to the standard of care administered; and it is further

ORDERED that Stuart shall supplement Interrogatory No. 14 by identifying any persons
known to Stuart that were involved in the testing, diagnosis, or treatment of Brooks and KG,
describing the involvement and actions taken by each person, and the communication between
Stuart, Brooks, and any other person; and it is further

ORDERED that Stuart shall supplement Interrogatory No. 15 by describing any and all
medical experience Stuart had as of 2014 relating to the treatment, testing, diagnosis, and care for
patients with a child in-utero experiencing a true knot in the umbilical cord including training,
certifications, and previous encounters with a true knot; and it is further

ORDERED that Stuart shall supplement Interrogatory No. 20 by describing in detail the
hospital’s procedures, practices, rules, and criteria hospital personnel are to follow concerning the
evaluation, treatment, and care of Brooks and KG from September 2014, to March 2015; and it is
further

ORDERED that Stuart shall supplement Interrogatory No. 23 by identifying any other
health care practitioners with whom Stuart had any type of communication with regarding the
diagnosis, care, or treatment of Brooks and KG, including the dates, substance, and reason for each
communication and referencing any documents included in said communications; and it is further

ORDERED that Stuart shall supplement Interrogatory No. 24 by describing any
instructions, orders, or directions Stuart believes Brooks failed to comply with and identify
documents or persons regarding the same. Stuart will also provide reasons or evidence of Brooks’
failure to comply with the orders and direction of health care providers; and it is further

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Kishna Brooks et alv. Dr. Cd ndra Whitaker, et al. Cite as 

Case No, ST-19-CV-210
Order

ORDERED that Stuart shall supplement Interrogatory No. 25 by describing any reasons,
document, persons, or evidence, to Stuart’s knowledge, which supports Stuart’s opinion that there
was no medical malpractice; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 13 by describing in
particularity copies of any and ali photographs, videos, radiological tests, x-ray films, digital x-
rays, charts, graphs, scans, computer generated images or other such visual depictions relating in
Stuart’s treatment of Brooks and KG; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 15 by producing
copies of all standards, policies, procedures, medical literature, practices, rules, protocols,
regulations, medical treatises, criteria, or documentation Stuart read, reviewed, consulted, or relied
upon regarding the treatment, testing, examinations, and diagnosis of Brooks or KG from
September 2014, to March 2015. Counsel must make reasonable efforts to certify Stuart attempted
to ascertain such information. If such information is unavailable, Stuart can elaborate as to the
reasonable efforts made and why such information is unascertainable; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 24 by producing
manuals, guidelines or other documents describing policies, protocols, and procedures in effect at
the hospital of your employment from 2014 to 2015 relating to the care, testing, and treatment of
a true knot; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 25 by producing
manuals, guidelines or other documents describing policies, protocols, and procedures in effect at
the hospital of your employment from 2014 to 2015 relating to the care, testing, and treatment of

decreased fetal movement; and it is further
Kishna Brooks et al vy. Dr. C¢—-‘ndra Whitaker, et al. Cite as 

Case No. ST-19-CV-210
Order

ORDERED that Stuart shall supplement Demand for Production No. 26 by producing
manuals, guidelines or other documents describing policies, protocols, and procedures in effect at
the hospital of your employment from 2014 to 2015 relating to the care, testing, and treatment of
a fetus suffering from several bradycardic episodes; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 27 by producing
manuals, guidelines or other documents describing policies, protocels, and procedures in effect at
the hospital of your employment from 2014 to 2015 relating to the care, testing, and treatment of
persistent fetal heart rate deceleration; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 28 by producing
manuals, guidelines or other documents describing policies, protocols, and procedures in effect at
the hospital of your employment from 2014 to 2015 relating to the care, testing, and treatment of
the inability to hear a fetal heartbeat; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 31 by producing a
copy of Stuart’s personnel file at the hospital where she is employed and any other place of
employment where Stuart was employed within the last ten years. Stuart may redact any
confidential information; and it is further

ORDERED that Stuart shall supplement Demand for Production No. 34 by producing
copies of any documents and communications between Stuart and Brooks, or anyone on her behalf,
concerning the care plan and recommendation that Stuart believes Brooks did not follow; and it is
further

ORDERED that Stuart shall supplement Demand for Production No. 36 by producing and
identifying Brooks’ patient records and nurse notes, including documents on record for February

26, 2015; and it is further
Kishna Brooks et al v. Dr. Cé-ndra Whitaker, et al. Cite as 

Case No. ST-19-CV-210
Order

ORDERED that Stuart shall supplement Demands for Production Nos. 37-47 by
producing any supporting information pertaining to Stuart’s respective affirmative defenses. If no
such information exists, Stuart must affirmatively say so; and it is further

ORDERED that Stuart shall supplement their responses to written discovery within thirty
(30) days after the date of entry of this Order; and it is further

ORDERED that copies of this Order shall be directed to Lee J. Rohn, Esquire, and

Royette V. Russell, Esquire.

Dated: March , 2022

ATTEST:
Tamara Charles
Clerk of thé Court

bh 2 lle
Latoya @dmacho,-

Court Glerk Supervisor F / fl) FEY”

of the Virgyi Islands