Summary
holding that plaintiffs could compel defendants to disclose the number of medical exams conducted by the defendant's doctor, the number of medical exams the doctor conducted for defendant's firm and the doctor's compensation
Summary of this case from Powell v. AmGUARD Ins. Co.Opinion
C.A. No. 01C-02-089 PLA.
Submitted: August 10, 2004.
Decided: September 14, 2004.
Upon Plaintiff's Motion to Compel Discovery Denied.
Upon Defendants' Motion for Protective Order Granted
Frederick S. Freibott, The Freibott Law Firm, P.A., Wilmington, DE, Attorney for Plaintiff.
David L. Baumberger, Chrissinger Baumberger, Wilmington, DE, Attorney for Defendants.
ORDER
On this 14th day of September, upon consideration of Plaintiff's Motion To Compel Discovery and Defendants' Motion For Protective Order, it appears to the Court that:
1. This is a personal injury case in which the Defendants intend to offer the expert medical testimony of Dr. David C. Stephens, the former Chief of Orthopedic Surgery at Christiana Care. Plaintiff constructed interrogatories that explore ways to impeach Dr. Stephens, specifically searching for any evidence of bias. Oddly, Plaintiff directed these interrogatories to Dr. Stephens, a non-party. The interrogatories demanded voluminous information about, inter alia, all the cases in which Dr. Stephens testified from 1999 to present, all fees he received for expert witness testimony in those cases (including how those payments were divided between parties, insurers, and third parties), and all of his correspondence with the Defendants' law firm.
Defendants objected to the interrogatories on two counts. First, Defendants noted that Superior Court Civil Rule 33 allows litigants to submit general interrogatories only to parties. Permissible discovery of probable expert witness testimony, governed by Rule 26(b)(4), is far narrower. Rule 26(b)(4) allows a party to discover only the expert witness' opinion and the factual basis for it, i.e. the expert report. Plaintiff's interrogatories went well beyond the contours of, and thus violated, Rule 26.
Defendants also complained that the interrogatories were over-burdensome and harassing. The interrogatories requested not only percentages of Dr. Stephens' income, but also dollar amounts, and thus ask the witness to submit his personal financial records for Plaintiff's review. Worse, the Plaintiff demanded highly detailed information on what is apparently a large number of unrelated cases dating back to 1999, and apparently expected the doctor to spend time constructing a spreadsheet to summarize that information for the Plaintiff's convenience. The demand was prompted by Plaintiff's failure to get the answers that she wanted during Dr. Stephens' extensive deposition. Defendants argue that it would be grossly unfair to force them to pay the doctor's $500 hourly fee to retrieve information that is customarily explored during deposition, especially when the record shows no hint of bias that might make the data relevant.
2. On August 30, 2004, this Court denied Plaintiff's Motion to Compel Discovery, without prejudice. The Court noted that the Plaintiff had violated Superior Court rules by submitting interrogatories to a non-party. The denial was without prejudice only because the Plaintiff offered the highly dubious explanation that the heading on the interrogatories, directing them to Dr. Stephens, was a typographical error and that they were meant to go to the Defendants.
I characterize this justification as questionable for two reasons. First, the Defendants would obviously not have any knowledge of Dr. Stephens' personal income and fees in unrelated cases, meaning that the questions could only be answered by the doctor, to whom the supposedly erroneous heading had directed them. Second, the Plaintiff later re-noticed her Motion To Compel without submitting an edited version of the interrogatories, which at the time led me to believe that she intended to use those that I had already rejected. It seemed that, even after an oral argument on the issue, the Plaintiff still did not understand the problems inherent in subjecting a non-party witness to her own personal Inquisition.
3. Having failed to obtain the information she wanted with interrogatories, the Plaintiff switched to a new tactic: Request for Admissions ("RFAs") pursuant to Rule 36. Defendants' Motion For Protective Order points out that Plaintiff again seeks to bend the Superior Court discovery rules by demanding that the Defendants admit facts not within their knowledge, namely the dollar amounts of Dr. Stephens' expert-testimony income. Plaintiff's RFAs are even worse than her interrogatories, however, in that they also ask the Defendants to admit core-contested facts of the case about which the Defendants could have no personal knowledge. For example, RFA #s 15, 16, and 18-29 ask the Defendants to admit that the Plaintiff complained of back pain to various people, who she will presumably have testify or submit documentation in lieu of testimony. The Defendants, not being present for these complaints, could not possibly have the personal knowledge necessary to admit or deny these allegations.
As stated, the Defendants moved for a protective order to obviate their duty to answer Plaintiff's Request For Admissions. The next day, the Plaintiff renoticed her Motion To Compel Discovery, attempting to force the Defendants to answer her interrogatories. The Court heard both motions on September 13, 2004.
At oral argument, the Plaintiff again switched tactics to try yet another discovery procedure: moving to subpoena Dr. Stephens for a second deposition ("Subpoena Motion"). Plaintiff seems to have perceived this Court's none-too-veiled skepticism regarding her Motion To Compel the Defendants to answer her interrogatories, and intends this new Subpoena Motion to replace it. Frustratingly, Plaintiff provided no notice of the change, but instead sprung the motion upon a Court anticipating argument on the interrogatories.
Though I am loath to endorse this conduct, I have decided to consider the Plaintiff's Subpoena Motion. I do so partly because I am relieved that she has finally lighted upon the correct procedure for asking her questions, and also in the hope of making the scope of permissible discovery regarding this expert witness unequivocally clear. For the following reasons, Plaintiff's Motion To Compel is DENIED and Defendants' Motion is GRANTED. The Subpoena Motion is GRANTED to the limited extent expressed in this opinion.
4. To be blunt, Plaintiff misunderstands the discovery process. This Court has already warned the Plaintiff once that she cannot, under Rule 33 or Rule 26(b)(4), submit generalized interrogatories to a non-party. Plaintiff has sought to avoid this simple rule by putting Defendants' names on an envelope containing personal questions that only Dr. Stephens can answer. That is not acceptable. Plaintiff had ample opportunity to get the answers she wanted by deposing Dr. Stephens. If she felt that the doctor was obstreperous or evasive, her remedy was to ask the Court to intervene, not to seek a backdoor around Superior Court rules.
Looking past the rule violations, the interrogatories are also unduly burdensome and harassing. Plaintiff offers no good reason why Dr. Stephens should be forced to put his personal financial information into the public records of this Court. Nor has she provided any explanation of how the fee payment structure of some unrelated 1999 case, in which the doctor may have been involved, is calculated to lead to relevant information, the sine qua non of permissible discovery. The most cursory glance at the interrogatories indicates that they are not the type of questions that can be answered quickly or efficiently; they instead will require a detailed analysis and arranging of six years of the doctor's records. The request is therefore "unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation" within the meaning of Rule 26(b)(1)(a)(iii). This is especially true because it is also cumulative to many of the answers that Dr. Stephens already provided at deposition, and the issue at stake, potential bias, of which there is no evidence, is tangential.
Superior Court Civil Rule 26(b)(1).
5. Plaintiff's Request For Admissions are also improper. The purpose of Rule 36 "is to facilitate proof at trial by eliminating facts and issues where there is little dispute, but which are often difficult and expensive to prove." The Plaintiff here wants the Defendant to admit that statements in certain medical reports are true, i.e. that the Plaintiff really is injured and that Defendants caused the injury. The Defendants would have settled if they thought that was the case; these facts are obviously in dispute. "Requests for admissions should not be used to establish the ultimate facts in issue." Moreover, the fact that Plaintiff is injured and Defendants caused it, if true, would not be remarkably difficult or expensive to prove, but instead is exactly what is proven in every successful personal injury case.
Calbert v. Volkswagen of America, Inc., 1989 WL 147394 (Del.Super. 1989) at *1.
Id.
The problem becomes even more vexing when the Court notes that Defendants would have no way authoritatively to admit the allegations. "A party should not be compelled to admit the truth of facts not within his personal knowledge because he would be bound to rely on an admission based on facts obtained from a person who might have no interest in the case." The Request For Admissions relies upon many such disinterested persons, including paramedics, ER nurses, and several doctors hired by the Plaintiff. The weight of such evidence, compared to Dr. Stephens' testimony and the rest of the Defendants' case, is for the jury to decide. The Defendants are not obligated to, and indeed could not, make that determination by answering Plaintiff's request, because they lack the personal knowledge necessary to do so.
Id. at *2.
PLAINTIFF'S REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANTS ("RFA") ¶ 15.
RFA ¶ 16.
RFA ¶¶ 15-29.
I note that at oral argument the Plaintiff stipulated that she would withdraw RFAs ¶¶ 15-29. Since these requests are symptomatic of the problem with other RFAs that remain in contention, I have included them in my analysis.
Another problem is that many of the RFAs are duplicative to Dr. Stephens' deposition, and indeed are plucked directly from that testimony. Plaintiff, in essence, has asked Defendants to admit that various excerpts of Dr. Stephens' medical opinion are correct. Defendants obviously are not medically qualified to do so; that is the whole purpose of calling Dr. Stephens to testify. Once again, Defendants cannot admit facts that are not within their personal knowledge.
RFA ¶¶ 30-50.
Calbert, 1989 WL 147394 at *2.
Plaintiff justified her request by claiming, without a scintilla of support in the record, that she is concerned that Dr. Stephens will change his opinion on the eve of trial, disrupting her cross-examination. This reasoning is far from persuasive. Plaintiff has already "pinned" Dr. Stephens to his medical opinion by exploring that topic in detail during deposition. The massive blow to the doctor's credibility that an in-court flip-flop, contrasted to admissible deposition testimony, would cause should surely be worth some minor rearranging of cross-examination questions. Assuming that this highly unlikely circumstance were to occur, there is simply no reason to allow Plaintiff to "gild the lily" through RFAs that violate Superior Court procedural rules.
Finally, the Request For Admissions again asks Defendants to detail Dr. Stephens' litigation-related income. This request is improper and unduly burdensome for the same reasons as in Plaintiff's interrogatories.
RFA ¶¶ 1-9.
7. Plaintiff's Subpoena Motion demands that Dr. Stephens appear for a second deposition with five items:
(1) [Dr. Stephens' complete file on the Plaintiff], (2) "All documents relating to the number of times that [Defendants'] law firm has used Dr. Stephens for medical examinations from January 1, 2001 to present," (3) "All documents relating to the number of defense medical exams performed by Dr. Stephens for the year 2003 and to date for the year 2004," (4) "All documents relating to the number of Court appearances, either by deposition or live appearance, where Dr. Stephens has testified from January 1, 2001 to the present," and finally (5) "a copy of [Dr. Stephens'] 2004 Fee schedule and cancellation policy."
Defendants have already provided the Plaintiff with all Dr. Stephen's records regarding this case, satisfying item #1.
Apparently, Defendants withheld one page of the file on which Dr. Stephens had taken notes as Defense Counsel outlined the case. Defendants believe that this information is privileged attorney mental impressions. If the issue becomes important, the Court will view the material in camera.
Once again, the Plaintiff has phrased her request in a manner that makes it overly burdensome and harassing. This time, however, the Plaintiff has narrowed her search sufficiently to allow this Court to construct an appropriate order. It emerged at oral argument that Plaintiff really wants the doctor to update a spreadsheet that he had made for a previous case that detailed his Court appearances. Plaintiff already has this information up to 2002, and desires the latest data. The requests for "all documents related to" such and such, though unduly burdensome, are actually extraneous to the issue at hand
The problem remains that granting Plaintiff's request will force Dr. Stephens to sift through at least two years of records at $500 an hour. Plaintiff seems to believe that having the doctor say, "I testified X number of times for defendants" is much more convincing than him saying "I've testified in dozens of cases, 99% of them for defendants." While I cannot say that I understand this logic, that is the Plaintiff's decision to make. I do find, however, that the information is not important enough, in a Rule 26(b)(1)(a)(iii) context, to the Plaintiff's case to justify forcing the Defendants to pay to collect it.
Paraphrasing Deposition of David C. Stephens, M.D. at 24.
The Plaintiff may therefore compel Dr. Stephens to provide the following: (1) the number medical exams he performed for defendants from 2003 to present, (2) the number of medical exams he performed for Defendants' law firm from 2001 to present, (3) the total number of cases in which he has testified from 2001 to present, and (4) what he charged Defendants for this case. To the extent that Dr. Stephens does not have this information readily available, Plaintiff shall compensate him for the time spent compiling it.
8. Because the Plaintiff failed to conform to Superior Court Civil Rules, her Motion To Compel Discovery is DENIED. Defendants' Motion For Protective Order is GRANTED. Plaintiff's Subpoena Motion is GRANTED to the limited extent provided by this opinion, provided that she pays all costs associated with it.