Bellew v. Ethicon, Inc. et al, No. 2:2013cv22473 - Document 236 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER granting in part and denying in part 180 EMERGENCY MOTION by Dianne M. Bellew for Protective Order and/or MOTION to Quash Notices of Deposition of Leo Stinnett, M.D. and Andrew Villa, M.D., granting Plaintiff's mo tion to quash the notice of deposition of Dr. Stinnett, but denying Plaintiff's motion to quash the notice of deposition of Dr. Villa. Defendants are granted leave to depose Dr. Villa beyond the discovery deadline. Signed by Magistrate Judge Cheryl A. Eifert on 11/3/2014. (cc: attys; any unrepresented party) (ts)
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Bellew v. Ethicon, Inc. et al Doc. 236 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON D IVISION D IAN N E M. BELLEW , Plain tiff, v. Cas e N o .: 2 :13 -cv-2 2 4 73 ETH ICON , IN C., e t al, D e fe n d an ts . MEMORAN D U M OPIN ION AN D ORD ER Pending before the court is Plaintiff’s Em ergency Motion for Protective Order and/ or Motion to Quash Notices of Deposition of Leo Stinnett, M.D. and Andrew Villa, M.D. (ECF No. 180 ). Defendants filed a response in opposition to the m otion, (ECF No. 215), and Plaintiff filed a reply. (ECF No. 216). The parties argued their positions at a telephonic hearing on Friday, October 31, 20 14. After fully considering the argum ents of counsel, the court GRAN TS, in part, and D EN IES, in part, Plaintiff’s m otion. First, Plaintiff asks the court to quash the deposition notice of Dr. Leo Stinnett, a treating physician that perform ed an appendectom y on Plaintiff in J anuary 20 14. According to Plaintiff, Defendants received a copy of Dr. Stinnett’s m edical chart on J une 23, 20 14. However, Defendants showed no interest in deposing Dr. Stinnett until August 28, 20 14, a m ere eight days before expiration of discovery. At that tim e, Defendants allegedly alerted Plaintiff to “a laundry list of potential witnesses” they m ight want to depose, including Dr. Stinnett. They then served a “placeholder” deposition notice of Dr. Stinnett as a way to preserve their right to depose him in the 1 Dockets.Justia.com future. The notice did not include a date, tim e, or location for the deposition, and ultim ately, Defendants did not schedule Dr. Stinnett’s deposition until Novem ber 6, 20 14, m ore than two m onths after the close of discovery and less than one m onth before the start of trial. Plaintiff argues that Defendants are unilaterally attem pting to m odify this court’s Scheduling Order, although such orders m ay only be m odified “for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4). She com plains that allowing Defendants to continue discovery well past the deadline places an undue and unfair burden upon her; particularly, as her counsel are currently consum ed with m otions in lim ine, m aking deposition designations, identifying exhibits, and completing other trial preparations. Taking Dr. Stinnett’s deposition would require counsel to shift their focus, and divert tim e and resources to travel to Arizona to participate in a deposition that should have been done m onths ago. Defendants assert that they should be perm itted to take the deposition of Dr. Stinnett outside of the discovery deadline because they were diligent in pursuing his testim ony, and “[t]he touchstone of ‘good cause’ under Rule 16(b) [for m odifying a scheduling order] is diligence.” Marcum v. Zim m er, 163 F.R.D. 250 , 255 (S.D.W.Va. 1995). Defendants claim that they tim ely noticed Dr. Stinnett’s deposition by serving Plaintiff with a placeholder notice of deposition prior to expiration of the discovery deadline, and thereafter, they expended significant effort attem pting to schedule Dr. Stinnett’s testim ony as soon as possible. Un fortunately, Dr. Stinnett was unavailable the entire m onth of October, which m eant the earliest date Defendants could obtain for his deposition was Novem ber 6, 20 14. Accordingly, despite their best efforts, they sim ply could not m eet the discovery deadline. Defendants contend that Dr. Stinnett’s testim ony 2 is highly relevant on the issue of Plaintiff’s dam ages, as later-acquired hospital records reflect that his surgery in J anuary 20 14 involved the treatm ent of severe adhesions at the site of a prior appendectom y, and these adhesion could be the source of Plaintiff’s current com plaints of pain. The exhibits supplied by both parties demonstrate that starting at the end of August, Defendants were diligent in pursuing Dr. Stinnett’s deposition. Moreover, the undersigned accepts that through no fault of Defendants, Dr. Stinnett was unavailable the entire m onth of October, thus pushing the deposition to Novem ber 6, 20 14. Nonetheless, when evaluating whether good cause exists to extend the discovery deadline for the deposition of Dr. Stinnett, the court m ust also exam ine what Defendants did or did not do earlier in the process. If critical records of Dr. Stinnett’s treatm ent of Plaintiff were unavailable before late August, then Defendants could not reasonably have m et the deadline despite their best efforts. See Dent v. Montgom ery Cty . Police Dept., 745 F.Supp.2d 648 (D.Md.20 10 ) (citing Potom ac Elec. Pow er Co. v. Elec. Motor Supply , Inc., 190 F.R.D. 372, 375 (D.Md.1999)). On the other hand, if Defendants had adequate inform ation about Dr. Stinnett’s treatm ent and sim ply delayed noticing the deposition, good cause does not exist. Defendants received Dr. Stinnett’s office records on J une 23, 20 14. Based on those records, Defendants m ade the decision to schedule Dr. Stinnett’s deposition. Defendants offer no explanation in their written m aterial or in oral argum ent for the two-m onth delay between their receipt of the m edical records and service of the placeholder notice of deposition. Certainly, Defendants could have m et the discovery deadline if they had requested Dr. Stinnett’s deposition shortly after receiving his m edical records. Moreover, they arguably could have provided reasonable notice under 3 Fed. R. Civ. P. 30 (b)(1) and com plied with the Scheduling Order if they had served Plaintiffs with a notice of deposition on August 28, 20 14 that included a date, tim e, and place for Dr. Stinnett’s deposition to occur on or before Septem ber 5, 20 14. However, considering that Rule 30 does not recognize a “placeholder” notice of deposition, Defendants failed to provide reasonable notice of his deposition prior to expiration of the deadline, and failed to dem onstrate good cause for their delay. Therefore, Plaintiff’s m otion to quash the notice of deposition of Dr. Stinnett and for an order prohibiting the deposition as being beyond the discovery deadline is GRAN TED . Second, Plaintiff requests that Dr. Andrew Villa’s deposition likewise be prohibited. Plaintiff indicates that Dr. Villa is an obstetrician/ gynecologist that evaluated her on one occasion in late August 20 14. Plaintiff concedes that Defendants did not learn about Dr. Villa until after the close of discovery, and they im m ediately requested his deposition; however, she argues that Defendants should be precluded from deposing him because (1) he has very lim ited and tangential inform ation regarding the issues in dispute; and (2) his deposition is not yet scheduled and m ay not be accom plished until the eve of trial. To the contrary, Defendants claim that Dr. Villa has highly relevant inform ation given that he perform ed a pelvic exam ination of Plaintiff and docum ented findings that contradict som e of her com plaints. Defendants point out that they could not possibly have deposed Dr. Villa prior to the deadline for discovery, since they only recently learned of his exam ination of Plaintiff. In the case of Dr. Villa, the undersigned finds good cause to extend the discovery deadline for his deposition. Defendants first received Dr. Villa’s records after the close of discovery and prom ptly requested his deposition. Therefore, they were diligent in 4 pursing his testim ony. In light of the allegations in this case, Dr. Villa’s exam ination is clearly relevant. In fact, Dr. Villa’s findings m ay potentially be afforded significant evidentiary weight by a jury because the findings are recent, and Dr. Villa is not a retained expert witness, or (apparently) closely affiliated with either party. Consequently, Defendants should not be precluded from obtaining this discovery. For these reasons, Plaintiff’s m otion to quash the notice of deposition of Dr. Villa and to preclude his deposition is D EN IED . Defendants are granted leave to depose Dr. Villa beyond the discovery deadline. The Clerk is directed to provide a copy of this Order to counsel of record and any unrepresented party. EN TERED : Novem ber 3, 20 14 5
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