Besing v. Taylor et al

Filing 56

ORDER Granting In Part and Denying In Part 46 Plaintiff's Ex Parte Discovery Motion. Plaintiff's motion for a protective order staying the January 2015 depositions is Denied as moot. Defendants shall provide Dr. Robert Beatty with a check in the amount of $3,400, post-dated to January 22, 2015 by 1/9/2015. Plaintiff's motion to compel further responses to Interrogatory Nos. 1-6 and Request for Production of Documents Nos. 2 and 4 is Denied as moot. Defendants shal l serve supplemental responses to Interrogatory Nos. 7-11 by 1/16/2015. Plaintiff's motion to compel further responses to Interrogatory No. 12 and Request for Production of Documents Nos. 1, 3, 5, and 6 is Denied. Plaintiff's motion for sanctions is Denied. Signed by Magistrate Judge David H. Bartick on 12/31/2014. (All non-registered users served via U.S. Mail Service)(srm)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

RAY G. BESING,

Civil No.

11
12
13
14

Plaintiff,
v.
WILLIAM R. TAYLOR, M.D., et al.,
Defendants.

13-cv-3159-CAB (DHB)

ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S EX PARTE
DISCOVERY MOTION
[ECF No. 46]

15
16

On December 1, 2014, Plaintiff Ray G. Besing filed a document entitled “Joint

17

Motion on Discovery Dispute: (1) Motion to Waive Local Rule 7.1(d) and (e); (2) Motion

18

to Compel Defendants’ Discovery Responses; (3) Motion For Protective Order; (4)

19

Motion for Sanctions.” (ECF No. 46.) The Court previously resolved some of the

20

disputed issues in its December 2, 2014 Order. (ECF No. 48.) Following a December

21

29, 2014 telephonic Discovery Conference, the Court now issues this Order to resolve the

22

remaining issues raised in Plaintiff’s motion. For the reasons set forth herein, Plaintiff’s

23

motion is GRANTED IN PART and DENIED IN PART.

24

I. BACKGROUND

25

Plaintiff commenced this action on December 24, 2013 when he filed his initial

26

Complaint. (ECF No. 1.) Plaintiff filed a First Amended Complaint (“FAC”) on June

27

23, 2014. (ECF No. 36.) Plaintiff alleges in the FAC that Defendant William R. Taylor,

28

M.D., a neurosurgeon employed by Defendant The Regents of the University of
-1-

13cv3159-CAB (DHB)

1

California, negligently performed a lower back surgery on October 2, 2012. (Id. at ¶¶ 5-

2

8.)

3

On or about September 10, 2014, Plaintiff served Defendants with Interrogatories

4

and Requests for Production of Documents. (ECF No. 46 at 15-21.) Defendants served

5

their responses to Plaintiff’s Interrogatories on October 1, 2014. (ECF No. 52-2 at 11.)

6

Defendants also contend they served their responses to Plaintiff’s Requests for

7

Production of Documents on October 1, 2014 (id. at 11:26-12:2), although, as discussed

8

below, the record is not clear as to the date of service.

9

In any event, Plaintiff sent a letter dated October 24, 2014 to defense counsel.

10

(ECF No. 46 at 49-53.) Plaintiff’s letter (1) raised numerous issues regarding the

11

adequacy of Defendants’ discovery responses, and (2) discussed the scheduling of

12

various depositions. (Id.) Defense counsel responded to Plaintiff with a letter dated

13

November 4, 2014. (Id. at 54-60.)

14

Plaintiff filed the instant ex parte discovery motion on December 1, 2014. On

15

December 2, 2014, the Court issued an Order (1) denying part of Plaintiff’s motion,

16

namely, Plaintiff’s request that various depositions scheduled in December 2014 be

17

stayed, and (2) setting a deadline for Defendants to file a response to the remainder of

18

Plaintiff’s motion. (ECF No. 48.) Defendants filed their opposition to Plaintiff’s motion

19

on December 12, 2014. (ECF No. 52.) The Court held a telephonic Discovery

20

Conference on December 29, 2014.
II. DISCUSSION

21
22

A.

Deposition Schedule

23

Plaintiff originally moved for a protective order staying various depositions

24

scheduled in December 2014 and January 2015. (ECF No. 46 at 13:9-13.) The Court

25

denied Plaintiff’s motion as to the December 2014 depositions in its December 2, 2014

26

Order. (ECF No. 48.) In their opposition to Plaintiff’s ex parte discovery motion,

27

Defendants proposed an alternative schedule for the expert depositions scheduled to

28

occur in January 2015. (ECF No. 52 at 7:9-15.) Following discussion with Plaintiff and
-2-

13cv3159-CAB (DHB)

1

defense counsel during the December 29, 2014 Discovery Conference, the Court finds

2

that Plaintiff’s motion for a protective order staying the January 2015 depositions is moot

3

in that the parties have agreed to the following schedule of depositions:

4
5
6
7
8
9
10

Witness
William Taylor, M.D.
Jerome Stenejhem, M.D.
Paul Zimmer
Brian Bergmark
Robert Beatty, M.D.1
Stephen Ryu, M.D.

11
12

Date
January 5, 2015
January 6, 2015
January 7, 2015
January 8, 2015
January 20, 2015
January 22, 20152

Location
San Diego, CA
San Diego, CA
San Diego, CA
San Diego, CA
Chicago, IL
Palo Alto, CA

Accordingly, Plaintiff’s motion to stay the January 2015 depositions is DENIED
AS MOOT.

13

The parties have also agreed to a second day of the deposition of Dr. Adam

14

Burdick. Dr. Burdick’s initial deposition occurred on December 3, 2014. The second

15

session is tentatively scheduled for January 21, 2015 in San Diego and the parties are

16

agreeable to this date. However, Plaintiff is currently coordinating with Dr. Burdick’s

17

attorney to finalize the date. The parties shall meet and confer in good faith if Dr.

18

Burdick is not able to appear for the second session of his deposition on January 21,

19

2015.

20

///

21
1

22
23
24
25
26

The parties raised an additional issue during the December 29, 2014 Discovery
Conference pertaining to the deposition of Plaintiff’s medical expert, Dr. Beatty.
Specifically, Plaintiff indicated Dr. Beatty requires payment of his expert fees for his
deposition in advance to ensure that the parties are serious about taking his deposition.
Defendants oppose payment in advance due to the uncertain length of Dr. Beatty’s
deposition. After discussion with counsel, IT IS HEREBY ORDERED that Defendants
shall send Dr. Beatty a check for $3,400, the equivalent of two hours of deposition time,
post-dated to January 22, 2015, as a good faith demonstration that Defendants intend to
take Dr. Beatty’s deposition.
2

Defense counsel advised during the December 29, 2014 Discovery Conference
that he is awaiting final confirmation from Dr. Ryu’s office that the January 20, 2015 date
28 is still available. In the event Dr. Ryu is no longer available on this date, the parties are
instructed to meet and confer in good faith in an effort to schedule an alternative date that
is mutually agreeable to both the parties and Dr. Ryu.
27

-3-

13cv3159-CAB (DHB)

1

B.

Motion to Compel

2

1.

3

As an initial matter, Defendants argue Plaintiff’s motion to compel further

4

responses to Interrogatories and Requests for Production of Documents is untimely. (See

5

ECF No. 52 at 11:16-12:13.) Section IV of the undersigned’s Civil Chambers Rules

6

requires that discovery disputes be brought to the Court’s attention by way of a joint

7

statement entitled “Joint Motion for Determination of Discovery Dispute” within 45 days

8

of the date upon which the event giving rise to the dispute occurred. For written

9

discovery, the event giving rise to the discovery dispute is the service of the response, or

10

Timeliness

the time for such service if no response is given.

11

Here, Defendants served their responses to Plaintiff’s Interrogatories on October

12

1, 2014. (ECF No. 52-2 at 11.) As a result, Plaintiff was required to file the joint

13

discovery motion no later than November 17, 2104. However, without seeking from the

14

Court an extension of this deadline Plaintiff filed his ex parte discovery motion on

15

December 1, 2014.

16

Interrogatories fails to satisfy the time requirement set forth in the Court’s Civil

17

Chambers Rules and could be denied on that basis alone, the Court will consider

18

Plaintiff’s motion to compel further responses to Interrogatories in the interest of

19

resolving the parties’ dispute on the merits.

Although Plaintiff’s motion to compel further responses to

20

Defendants contend that they also served their responses to Plaintiff’s Requests for

21

Production of Documents on October 1, 2014. (ECF No. 52 at 11:26-12:2.) However,

22

Defendants failed to provide a copy of the proof of service of these responses or

23

otherwise establish by admissible evidence the date upon which they served their

24

responses to Plaintiff’s Requests for Production of Documents. Accordingly, the Court

25

cannot conclude that Plaintiff’s ex parte discovery motion was untimely with respect to

26

Defendants’ responses to Plaintiff’s Requests for Production of Documents.3

27
3

28

The Court notes that defense counsel dated Defendants’ responses to Plaintiff’s
Requests for Production of Documents on October 1, 2014. (ECF No. 46 at 47.)
However, this fact is insufficient to establish that the responses were also served that day.
-4-

13cv3159-CAB (DHB)

1

2.

2

Plaintiff originally moved in his ex parte discovery motion for an order compelling

3

Defendants to provide supplemental responses to Interrogatory Nos. 1-12. (ECF No. 46

4

at 4:27-10:7.) However, during the December 29, 2014 Discovery Conference, Plaintiff

5

agreed that his motion to compel is now moot with respect to Interrogatory Nos. 1-6 in

6

light of subsequent discovery in this case including Defendants’ production of their

7

expert witnesses’ reports. Thus, the Court addresses the remaining six Interrogatories.

8

As an initial matter, however, the Court finds that Defendants did not properly

9

object to Plaintiff’s Interrogatories on the basis that Plaintiff has exceeded the maximum

10

number of Interrogatories permitted by Federal Rule of Civil Procedure 33. Rule 33

11

provides that, “unless otherwise stipulated or ordered by the court, a party may serve on

12

any other party no more than 25 written interrogatories, including all discrete subparts.”

13

FED. R. CIV. P. 33(a)(1). Here, Plaintiff has served two sets of Interrogatories that include

14

a total of 23 numbered Interrogatories. (ECF No. 46 at 17:8-20:11; ECF No. 52 at 13-

15

15.) However, two of Plaintiff’s numbered Interrogatories (i.e., Interrogatory No. 8 of

16

Set One and Interrogatory No. 1 of Set Two) actually contain multiple discreet subparts,

17

thus bringing the total number of Interrogatories, including discrete subparts, to 31, in

18

excess of the 25 permitted under Rule 35. Defendant commenced their response to

19

several of the Interrogatories (i.e., Nos. 1, 3, 5, 6, 10, and 11) with the phrase

20

“Defendants object to this interrogatory and each non-discreet subpart on the grounds that

21

. . . .” (ECF No. 46 at 24-38.) However, although Defendants used the phrase “discreet

22

subparts” in characterizing these Interrogatories, Defendants did not actually assert an

23

objection to any of the Interrogatories on the basis that they exceeded the presumptive

24

limit of 25. Thus, Defendants waived this objection by failing to clearly articulate the

25

objection.

26

Interrogatories

I.

Interrogatory No. 7

27

Plaintiff’s Interrogatory No. 7 states: “Please state every fact concerning any

28

contractual, partnership, corporate or agency relationship between two or more of the
-5-

13cv3159-CAB (DHB)

1

defendants themselves, or themselves of their employees and between any defendant and

2

any treating physician or expert witness.” (Id. at 19:9-11.)

3

Defendants responded to Interrogatory No. 7 as follows:

4

Defendants object to this interrogatory and each non-discreet subpart
on the grounds that it is vague, ambiguous and unintelligible, forcing
Defendants to speculate as to the meaning of the interrogatory. Defendants
further object to the interrogatory on the grounds that it seeks premature
disclosure of expert witnesses, in contravention of the Amended Scheduling
Order by the Court as well as the attorney work-product doctrine. The
interrogatory is further objected to on the grounds that it is vague,
ambiguous and unintelligible, forcing Defendants to speculate as to the [sic]
whether the term “treating physicians” refers to UCSD physicians as
opposed to physicians outside of the UCSD system who have provided care
and treatment to the Plaintiff in New Mexico and Texas. Without waiving
said objections, Defendants respond as follows: at all times relevant to
Plaintiff’s Complaint, the treating physicians at UCSD were employees of
The Regents of the University of California. To the best of these responding
parties’ knowledge, there was no contractual, partnership, corporate or
agency relationship between any of these physicians and any of the
Plaintiff’s out-of-state treating physicians.

5
6
7
8
9
10
11
12
13

(Id. at 34:12-26.)

14

Contrary to Defendants’ position, Interrogatory No. 7 is not “vague, ambiguous

15

and unintelligible” as to the meaning of the term “treating physicians.” Indeed, Plaintiff

16

expressly defined the term in his Interrogatories to mean “any physician or physician’s

17

assistant employed by the Regents of the University of California, Thornton Hospital or

18

the University of California at San Diego who treated the Plaintiff at any time.” (Id. 46

19

at 16:18-20.) Thus, Defendants’ response regarding the lack of relationship between the

20

treating physicians affiliated with UCSD and Plaintiff’s out-of-state physicians is non-

21

responsive. However, Defendants’ response is at least partially responsive in that they

22

indicate that the treating physicians at UCSD were employed by the Regents.

23

Interrogatory No. 7 does not invade the attorney-client privilege or the attorney

24

work product doctrine. Importantly, Plaintiff is not asking Defendants to state the

25

relationship between any treating physician and an expert witness that Defendants intend

26

to call at trial. Such a request would appear to violate the attorney-client privilege

27

because defense counsel may not have decided at the time of their responses which

28

experts to call at trial. Instead, the Interrogatory is not limited to only experts Defendants
-6-

13cv3159-CAB (DHB)

1

intend to call at trial, but, as worded, encompasses any experts Defendants may utilize at

2

trial.4 The identity of these experts was already disclosed in Defendants’ expert witness

3

designations (see ECF No. 52-2 at 17-18) and it is not improper for Plaintiff to inquire

4

whether any of these experts have any relationship with Plaintiff’s treating physicians,

5

as that term is defined in the Interrogatories. Although Interrogatory No. 7 may not be

6

a model of clarity, it is not so vague as to permit Defendants to avoid providing a full

7

response.

8

Accordingly, Defendants shall provide a supplemental response to Interrogatory

9

No. 7 to indicate whether any of the three expert witnesses they have designated in this

10

case have any contractual, partnership, corporate, or agency relationship with the

11

Defendants in this case (i.e., Dr. Taylor and the Regents) or with any of the treating

12

physicians, as that phrase is defined in Plaintiff’s Interrogatories.
ii.

13

Interrogatory No. 8

14

Plaintiff’s Interrogatory No. 8 states: “Please state every fact concerning any

15

communication related to any aspect of this case between the defendants and any treating

16

physician including the date and time of such communication, the means of such

17

communication and the substance of such communication.” (ECF No. 46 at 19:13-15.)

18

Defendants responded to Interrogatory No. 8 as follows:

19

Defendants object to this interrogatory on the grounds that it is vague
and ambiguous as to the term “treating physicians” and whether that term
is meant to refer to treating physicians at UCSD or treating physicians
outside of UCSD. Defendants further object to the interrogatory on the
grounds that it is overly broad and remote, without reasonable limitation in
its scope thereby calling for information which is both burdensome,
oppressive and harassing to these Defendants as well as calling for
information which is irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence. The interrogatory as phrased is not
limited to any particular time frame but would presumably refer to the
Plaintiff’s entire life span of approximately 80 years. Defendants further
object to the interrogatory on the grounds that it seeks information which
would be privileged from disclosure pursuant to the attorney-client privilege
in that the physicians who cared for the Plaintiff at UCSD are employees of
The Regents of the University of California and are represented by these

20
21
22
23
24
25
26
27

4

28

Additionally, Plaintiff defined the term “expert witness” in his Interrogatories to
include “any expert witness the Defendants intend to use, or may use, as a testifying
witness at deposition or trial.” (ECF No. 46 at 16:21-12 (emphasis added).)
-7-

13cv3159-CAB (DHB)

1
2
3
4
5
6
7
8

parties’ attorney of record. If the term “treating physician” refers to
physicians outside of UCSD Medical Center, Defendants respond as
follows: these Defendants have not had any contact with any non-UCSD
treating physician pertaining to the Plaintiff. If the interrogatory were to
refer these responding party’s attorneys for [sic] record, then the only such
treating physician would be Dr. Joshua Brown as his deposition was taken
at the Plaintiff’s home, and there were communications between Dr. Brown
and those who attended the deposition, including the Plaintiff. This
information is equally known to the Plaintiff in that he was present during
the course of the deposition and has been provided with a copy of the
deposition testimony of Dr. Brown. As a consequence, Defendants object
to the interrogatory on the grounds that it calls for information which is
equally available to the propounding party.
(Id. at 35:8-36:3.)

9

As noted above, the term “treating physician” encompasses those physicians at

10

UCSD/Thornton Hospital who treated Plaintiff, and expressly does not include Plaintiff’s

11

out-of-state physicians. Thus, Defendants’ discussion of Dr. Brown is non-responsive.

12

Additionally, Defendants’ objection that the Interrogatory encompasses the entirety of

13

Plaintiff’s entire life and seeks irrelevant information is unpersuasive. Interrogatory No.

14

8 expressly seeks “communications related to any aspect of this case.” It is highly

15

unlikely that any communications that occurred between Defendants and treating

16

physicians at UCSD or Thornton Hospital about the underlying facts of this case delved

17

into aspects of Plaintiff’s life that are entirely irrelevant to their treatment of Plaintiff and

18

Plaintiff’s claims in this case. Rather, to the extent such communications occurred, they

19

almost certainly addressed facts pertinent to this case. Thus, communications between

20

Defendants and treating physicians, as that term is defined by the Interrogatories, are

21

“reasonably calculated to lead to the discovery of admissible evidence.” FED. R. CIV. P.

22

26(b)(1).

23

Finally, Interrogatory No. 8 is not barred by the attorney-client privilege or the

24

attorney work product doctrine. The parties focus their discussion on whether the

25

attorney-client privilege applies to communications between defense counsel and non-

26

party employees of UCSD who treated Plaintiff. (See id. at 9:12-16; ECF No. 52 at

27

19:22-27; ECF No. 52-1 at 2:10-17.) However, Interrogatory No. 8 does not seek

28

disclosure of such communications. Rather, Interrogatory No. 8 is clearly aimed at
-8-

13cv3159-CAB (DHB)

1

discovering communications between any Defendant in this case and any treating

2

physician, as that term is defined.5

3

communications between Dr. Taylor and any other treating physician at UCSD/Thornton

4

Hospital who treated Plaintiff, as well as any communications between non-party treating

5

physicians at UCSD/Thornton Hospital who treated Plaintiff. The Court need not resolve

6

the parties’ dispute as to whether the attorney-client privilege protects against disclosure

7

of defense counsel’s communications with UCSD treating physicians, because such

8

communications are not encompassed by Interrogatory No. 8, nor will the Court re-write

9

Interrogatory No. 8 to expand its scope to include these communications. However, the

10

privilege does not extend to communications between, for example, Dr. Taylor and other

11

treating physicians at UCSD or Thornton Hospital made during the course of Plaintiff’s

12

treatment. These are the types of communications sought by Interrogatory No. 8, but

13

Defendants did not include in their response whether any such communications exist.

In other words, Interrogatory No. 8 seeks

14

Accordingly, Defendants must provide a supplemental response identifying

15

whether such communications exist. If they exist, Defendants must provide Plaintiff with

16

the information concerning each communication that Plaintiff seeks in Interrogatory No.

17

8.
iii.

18

Interrogatory No. 9

19

Plaintiff’s Interrogatory No. 9 states: “Please state every fact concerning any

20

communication related to this case between defendants and any expert witness including

21

the date and time of such communication, the means of such communication and the

22

substance of such communication.” (ECF No. 46 at 19:17-19.)

23

Defendants responded to Interrogatory No. 9 as follows:

24

Defendants object to this interrogatory on the grounds that it seeks
premature disclosure of expert witness information in contravention to the
Amended Scheduling Order of the Court and the attorney work-product
doctrine. At this point, these Defendants have not decided what expert
consultant, if any, they will utilize at the time of trial and will provide the
information pursuant to the Order of the Court. As such, Defendants

25
26
27
28

5

Plaintiff’s definition of “Defendants” as set forth in his Interrogatories excludes
defense counsel. (See ECF No. 46 at 17:1-6.)
-9-

13cv3159-CAB (DHB)

respectfully submit the interrogatory and each subpart is premature.

1
2

(Id. at 36:12-17.)

3

Similar to Interrogatory No. 8, the parties focus their argument regarding

4

Interrogatory No. 9 around whether communications between defense counsel and

5

Defendants’ retained experts are privileged. However, Interrogatory No. 9 does not seek

6

such information.6 Rather, the Interrogatory seeks communications between Defendants

7

and the expert witnesses. Such communications are not protected. See FED. R. CIV. P.

8

26(b)(4)(C) advisory committee notes (2010 amendments) (“[I]nquiry about

9

communications the expert had with anyone other than the party’s counsel about the

10

opinions expressed is unaffected by [Rule 26(b)(4)(C).”). Thus, to the extent Defendants

11

communicated with their retained experts, a further response to Interrogatory No. 9 is

12

required.
iv.

13

Interrogatory Nos. 10 and 11

14

Plaintiff’s Interrogatory No. 10 states: “Please state every fact concerning the

15

percentage of lumbar surgeries you performed in which a thecal sac tear or cut occurred

16

and the resulting actual or claimed physical injury or injuries to such patients suffering

17

a thecal sac tear.” (Id. at 19:21-23.) Similarly, Plaintiff’s Interrogatory No. 11 states:

18

“Please state the percentage of cases in a year, for the past ten years, which you

19

performed a re-operation or other procedure after a thecal sac tear and repair, in which

20

you attempted to relieve nerve or nerve root compression caused by your thecal sac

21

repair.” (Id. at 20:1-3.)

22

///

23
6

24
25
26
27
28

Had Plaintiff sought communications between defense counsel and Defendants’
expert witnesses, the privilege would be governed by Federal Rule of Civil Procedure
26(b)(4)(C), which “protect[s] communications between [a] party’s attorney and any
witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the
communications, except to the extent that the communications” fall within three specific
exceptions: (I) communications relating to the expert’s compensation; (ii)
communications identifying facts or data provided by the attorney to the expert to be used
in formulating the expert’s opinions; and (iii) communications identifying assumptions
provided by the attorney to the expert to rely on in forming the expert’s opinions. FED.
R. CIV. P. 26(b)(4)(C)(I)-(iii). As stated above, however, Interrogatory No. 9 does not
seek such information.
- 10 -

13cv3159-CAB (DHB)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Defendants responded to Interrogatory No. 10 as follows:
Defendants object to this interrogatory and each non-discreet subpart
on the grounds that it is overly broad and remote, without reasonable
limitation in its scope, thereby calling for information which is both
burdensome, oppressive and harassing to these Defendants, as well as
calling for information which is irrelevant and not reasonably calculated to
lead to the discovery of admissible evidence. It should be noted that the
interrogatory is not specifically limited to Dr. Taylor, but presumably would
include The Regents of the University of California and all of its orthopedic
and neurosurgical lumbar surgeries. Without waiving these objections and
limiting their response to Dr. Taylor, Defendants respond as follows:
Unknown. It should be noted that no such information is compiled and
there would be no readily available way to go back and make this
determination. The interrogatory is not limited as to time and as such,
would be burdensome and oppressive. Furthermore, since there is no
readily available way of compiling this information, the only option for The
Regents would be to review every patient’s medical record from the time
Dr. Taylor began rendering medical care to the present to determine if such
a complication occurred. This would involve two separate hospitals and
thousands of outpatient visits over a span of many years and would involve
thousands of patients. Not only would this be burdensome, oppressive and
harassing to these Defendants, but it would violate each patient’s right of
privacy as it would require someone to review each of their medical records.
Defendants respectfully submit that the burden and expense of such an
undertaking would substantially outweigh any probative value particularly
in this case, when it is anticipated that there will be no dispute that this type
of injury can occur without a breach in the standard of care. The issue in
this case will be was it a breach in the standard of care in this particular
case.
(Id. at 36:25-37:20.)

18

Defendants’ response to Interrogatory No. 11 is identical with the sole exception

19

that Defendants’ “burdensome and oppressive” objection to Interrogatory No. 11 is based

20

on Interrogatory No. 11 involving a 10-year time period whereas Interrogatory No. 10 is

21

not limited as to time. (Id. at 38:2-25.)

22

Upon review of Interrogatory Nos. 10 and 11 and Defendants’ responses thereto,

23

the Court finds it appropriate to require a supplemental response from Dr. Taylor. The

24

information sought is relevant to Plaintiff’s claims in this case. While cognizant of the

25

burden that Defendants would incur if forced to review each patient file, the Court is not

26

convinced that Dr. Taylor has no other way to respond to these Interrogatories. Rather,

27

Dr. Taylor is expected to provide a good faith estimate of the percentages requested.

28

Such estimates by doctors are not uncommon in medical malpractice cases, and the Court
- 11 -

13cv3159-CAB (DHB)

1

believes Dr. Taylor could, with some thought on the matter, arrive at estimated figures

2

based on his knowledge of his practice. However, the Court will not require Dr. Taylor

3

or The Regents to review patient records to obtain this information. Additionally, the

4

Court will not require Dr. Taylor to identify each and every injury sustained by a patient

5

under his care who suffered a thecal sac tear, but he is required to provide a summary of

6

the type, nature, and extent of injuries his patients have experienced. Dr. Taylor’s

7

responses to these Interrogatories shall be limited to the last 10 years, and the responses

8

need only address patients seen by Dr. Taylor. The Court believes this compromise will

9

afford Plaintiff some relevant information while avoiding the imposition of significant

10
11

burden on Defendants and potential violation of patients’ privacy rights.
v.

Interrogatory No. 12

12

Plaintiff’s Interrogatory No. 12 states: “Please state every fact related to or

13

concerning your decision not to re-operate on Plaintiff after the October 2, 2012 surgery

14

to relieve the pressure on Plaintiff’s nerve roots caused by the thecal sac repair as

15

indicated by the Lumbar CT scan conducted at Thornton Hospital after the October 2,

16

2012 surgery on Plaintiff. This interrogatory is to be answered in detail regardless of the

17

defense that the decision not to re-operate was plaintiff’s - due to plaintiff’s denial of

18

such defense.” (Id. at 20:5-11.)

19
20
21
22
23
24
25
26

Defendants responded to Interrogatory No. 12 as follows:
Ultimately, the decision to re-operate was made by the Plaintiff, as he
elected not to proceed with the surgery. The Plaintiff was advised that his
post-operative lower extremity weakness could be due to either a
neurapraxia or thecal sac compression from the fibrin glue deposit. The
patient was advised regarding the possible causes for the post-operative
weakness in the lower extremity and options for treatment which included
surgical decompression or waiting to see if the condition got better, along
with the risks and benefits to either option. The decision to undergo surgery
was the Plaintiff’s and he ultimately elected not to undergo surgery during
the time of his care and treatment at UCSD.
(Id. at 39:10-18.)

27

Plaintiff contends that although Defendants admit that Plaintiff suffered “post-

28

operative weakness in the lower extremity,” “[t]he remainder of the response is a false
- 12 -

13cv3159-CAB (DHB)

1

statement in the form of a denial of Defendants that they cancelled a second, reparative

2

operation on Plaintiff, which the Defendants recommended to Plaintiff and which

3

Plaintiff accepted.” (Id. at 10:3-7.)

4

As an initial matter, Plaintiff failed to make a good faith effort to meet and confer

5

with defense counsel as to the adequacy of Defendants’ response to Interrogatory No. 12.

6

Indeed, Plaintiff’s October 24, 2014 meet and confer letter makes no mention of

7

Interrogatory No. 12. (See id. at 49-53.) A party moving to compel discovery “must

8

include a certification that the movant has in good faith conferred or attempted to confer

9

with the person or party failing to make disclosure or discovery in an effort to obtain it

10

without court action.” FED. R. CIV. P. 37(a)(1) (emphasis added); see also Civ. L.R.

11

26.1(a) (“The court will entertain no motion pursuant to Rules 26 through 37, Fed. R.

12

Civ. P., unless counsel will have previously met and conferred concerning all disputed

13

issues.”). Plaintiff’s failure to meet and confer concerning Interrogatory No. 12 is

14

grounds for denial of his motion to compel a further response.

15

Additionally, even had Plaintiff attempted to meet and confer, the Court would

16

nevertheless deny the motion to compel a further response because Plaintiff’s argument

17

is essentially that he disagrees with Defendants’ version of the facts regarding who made

18

the decision not to perform a second surgery. This factual dispute is not properly

19

resolved by way of a motion to compel.

20

In sum, Plaintiff’s motion to compel a further response to Interrogatory No. 12 is

21

DENIED due to (1) Plaintiff’s failure to meet and confer on this issue and (2) the fact

22

that Defendants’s response is adequate even if Plaintiff disagrees with Defendants’

23

response.

24

3.

Requests for Production of Documents

25

Plaintiff originally moved in his ex parte discovery motion for an order compelling

26

Defendants to provide supplemental responses to Requests for Production of Documents

27

///

28

///
- 13 -

13cv3159-CAB (DHB)

1

Nos. 1-5.7 (ECF No. 46 at 10:11-11:10.) However, during the December 29, 2014

2

Discovery Conference Plaintiff agreed that his motion to compel is now moot with

3

respect to Request Nos. 2 and 4. Thus, the Court addresses the remaining four Requests.

4

As an initial matter, however, the Court finds that Plaintiff has failed to

5

demonstrate that he adequately met and conferred regarding Defendants’ responses to any

6

of the Requests. Indeed, Plaintiff’s October 24, 2014 meet and confer letter to defense

7

counsel merely alleges that Defendants “completely failed to respond to Plaintiff’s

8

Request for Production of Documents Set NO. 2. Plaintiff again requests full responses.”

9

(Id. at 52.) This claim is not supported by the record, nor does it constitute a proper meet

10

and confer. Defendants did respond to the Requests. (See id. at 42-47.) Although

11

Plaintiff is not satisfied with Defendants’ responses, and although Defendants did not

12

produce any documents in connection with their responses, it is disingenuous to claim

13

that Defendants did not respond. Moreover, it is insufficient for Plaintiff to ignore in his

14

meet and confer effort the fact that Defendants served responses. Plaintiff should have

15

addressed Defendants’ responses.8

16

///

17

///

18
19
20
21
22
23
24
25
26
27
28

7

Plaintiff’s ex parte discovery motion is actually not entirely clear as to which
Requests he seeks to compel a further response. Plaintiff claims in a conclusory fashion
“that Defendants have not produced one page of any documents in response to the
September 34 Request for Production of Documents, except to deliver to Plaintiff, on
November 25, the Cvs of Defendants’ expert witnesses.” (ECF No. 46 at 10:13-16.)
Plaintiff then goes on to specifically address only Request Nos. 5 and 6. (Id. at 10:2311:10.) Although the Court could reasonably interpret Plaintiff’s discovery motion to
only encompass Request Nos. 5-6, in an abundance of caution, the Court will interpret
Plaintiff’s argument as an effort to compel production in response to all six Requests.
8

The Court is generously allowing Plaintiff’s November 24, 2014 letter to
constitute a proper meet and confer. Pursuant to Section IV(A) of the undersigned’s Civil
Chambers Rules, the parties were required to meet and confer by telephone. “Under no
circumstances may counsel satisfy the ‘meet and confer’ obligation by written
correspondence.” Although Plaintiff alleges in his discovery motion that the parties
“engaged in telephone calls and emails conferring about ways to resolve the failure of
Defendants to comply with this discovery” (ECF No. 46 at 3:14-17), there is no
indication in the record that Plaintiff attempted to meet and confer by telephone
concerning any matters that were not raised in his October 24, 2014 meet and confer
letter.
- 14 -

13cv3159-CAB (DHB)

I.

1

Request No. 1

2

Plaintiff’s Request No. 1 seeks production of “[d]ocuments which any defendant,

3

treating physician or expert witness has/have received from any medical malpractice

4

insurance company or agent, or the University of California regarding dealing with

5

medical malpractice cases, testifying at depositions or testifying in court.” (Id. at 20:18-

6

20.)

7
8
9
10
11
12
13
14
15

Defendants responded to Request No. 1 as follows:
Defendants object to this request on the ground that it is overly broad
and remote, without reasonable limitation in its scope thereby calling for
information which would be privileged from disclosure pursuant to the
attorney-client privilege as well as being violative of the attorney workproduct privilege. It should be noted that the request as phrased is not
limited to this case, but rather, includes both prior and subsequent lawsuits
over an extended period of time. Excluding other lawsuits, these
Defendants respond as follows: Defendants are not aware of any documents
responsive to this request. Defendants further object to the Request for
Production on the grounds that it seeks premature disclosure of expert
witness information in contravention to the Amended Scheduling Order of
the Court as well as the attorney work-product doctrine.
(Id. at 44:2-11.)

16

Plaintiff concedes in his ex parte discovery motion that “the Requests are clearly

17

limited to this lawsuit.” (Id. at 10:16-17.) By limiting Request No. 1 in this fashion,

18

Defendants’ response (i.e., “Defendants are not aware of any documents responsive to

19

this request.”) is complete and no further response or document production is warranted.

20

ii.

Request No. 3

21

Plaintiff’s Request No. 3 seeks production of “[d]ocuments supporting, or contrary

22

to, each and every expert witness’ and/or treating physicians’ testimony regarding

23

Defendants’ response provided to Plaintiff Ray G. Besing’s Special Interrogatory Set No.

24

Two (2) Interrogatory No. 6 above).” (Id. at 21:1-3.)

25
26
27
28

Defendants responded to Request No. 3 as follows:
Defendants object to this request on the grounds that it seeks
premature disclosure of expert witness information in violation of the
Court’s Amended Scheduling Order and the attorney work-product doctrine.
Defendants did however respond to portions of Interrogatory No. 6 of the
Second Set of Special Interrogatories and the documents in support of that
- 15 -

13cv3159-CAB (DHB)

1
2
3
4

response consist of the Plaintiff’s medical records from UCSD Medical
Center. As noted within Paragraph 2 of the instructions to this Discovery,
the requested documents “do not include any medical record previously
provided to the Plaintiff by Defendants”. As such, no further production of
documents is provided at this time.
(Id. at 45:7-15.)

5

The Court agrees with Defendants in that Request No. 3 prematurely seeks

6

disclosure of expert witness information. Indeed, at the time of Defendants’ response to

7

this Request, Defendants’ expert witnesses had neither been deposed nor provided their

8

expert witness reports which were not due until December 1, 2014. As phrased, the

9

Request required Defendants to speculate as to what their experts might say in their

10

respective depositions and reports, and for this reason the Request is improper. As to the

11

portion of the Request seeking documents supporting or contrary to treating physicians’

12

testimony, Defendants indicate that documents supporting or contrary to their response

13

to Interrogatory No. 6 are limited to Plaintiff’s medical records which Plaintiff already

14

possesses. Thus, no further response or production is warranted.
iii.

15

Request No. 5

16

Plaintiff’s Request No. 5 seeks production of “[d]ocuments related to Plaintiff’s

17

Consent to a re-operation on his lumbar region on or about October 6, 2012.” (Id. at

18

21:8-9.)

19

Defendants responded to Request No. 5 as follows:

20

Defendants object to this request on the grounds that it is vague,
ambiguous and unintelligible, forcing Defendants to speculate as to the
meaning of the term “Plaintiff’s Consent”. The ambiguity arises out of the
fact that the Plaintiff did not consent to performance of a second surgery.
In an effort however to respond to the request, Defendant identified
documents related to whether the Plaintiff would consent to a re-operation
as set forth within the request. The only documents responsive to this
request consist of the physician’s progress notes contained within the
Plaintiff’s medical records from UCSD Medical Center. As noted
previously, Item 2 of the introductory statement to Plaintiff’s discovery
specifically indicates that the requested documents “do not include any
medical record previously provided to the Plaintiff by Defendants”. In this
case, the Plaintiff has been provided on two separate occasions with copies
of his medical records from UCSD Medical Center. As such, no production
of documents is provided at this time, as these Defendants are unaware of
any documents responsive to this request that are not contained within the
Plaintiff’s medical records.

21
22
23
24
25
26
27
28

- 16 -

13cv3159-CAB (DHB)

1

(Id. at 46:6-20.)

2

While the Court will not at this time decide the parties’ dispute regarding whether

3

Plaintiff consented to undergoing a re-operation, the Court finds that Defendants’

4

response to this Request is proper. Plaintiff claims that Dr. Taylor made an entry in a

5

medical record indicating that informed consent was obtained but that Defendants have

6

not produced the informed consent document. (Id. at 10:26-29.) However, Defendants

7

plainly state in their response, as well as in their opposition to Plaintiff’s discovery

8

motion, that the only documents responsive to this Request consist of progress notes. In

9

other words, Defendants do not possess any further documentation, such as a completed

10

informed consent form, that is responsive to this Request. Accordingly, the Court finds

11

Defendants’ response is complete and no further response or production is warranted.

12

iv.

Request No. 6

13

Plaintiff’s Request No. 6 seeks production of “[d]ocuments related to the decision

14

to cancel the re-operation on or about October 7, 2012 including notes of any meetings

15

between defendants or any other treating physician on that subject or written evidence of

16

the decision to terminate the re-operation on or about October 7, 2012.” (Id. at 21:11-14.)

17

Defendants responded to Request No. 6 as follows:

18

Defendants object to this request on the grounds that it is vague,
ambiguous and unintelligible, forcing Defendants to speculate as to the
meaning of the term “related to the decision to cancel the re-operation[.]”
As noted previously, the Plaintiff never consented to the performance of the
procedure. Without waiving said objection however, Defendants refer to the
Plaintiff’s medical records from UCSD as consisting of documents which
pertain the Plaintiff’s decision to not go forward with the surgery. As noted
previously, Item 2 of the Introductory Statements to the Plaintiff’s
Discovery, requested documents “do not include any medical record
previously provided to the Plaintiff by Defendants”. As a consequence, no
documents are provided in response to this request. Defendants do however
indicate that the only documents they are aware of responsive to the request
as noted herein are the physician’s progress notes contained within the
Plaintiff’s medical records from UCSD Medical Center. Copies of these
records have been provided on two separate occasions to the Plaintiff.

19
20
21
22
23
24
25
26

(Id. at 47:2-15.)

27

Again, the Court does not at this time resolve the parties’ factual dispute as to

28

whether Plaintiff consented to the performance of a second surgery. That being said, the
- 17 -

13cv3159-CAB (DHB)

1

Court recognizes that Defendants do not believe Plaintiff ever consented to a re-

2

operation. Given that position, Defendants’ response to Request No. 6 is sufficient.

3

Moreover, Defendants referred Plaintiff to his medical records, which he already

4

possesses, as being the only documents Defendants are aware of that pertain to the re-

5

operation. Again, in the context of a discovery motion, the Court cannot resolve the

6

parties’ factual dispute about whether Plaintiff consented, whether Plaintiff decided not

7

to go forward with the surgery, and whether the decision not to re-operate was made by

8

Dr. Taylor or others at Thornton Hospital. The Court cannot compel Defendants to

9

produce documents that they do not possess.

10

C.

Sanctions

11

Finally, Plaintiff seeks an award of “reasonable and necessary travel expenses,

12

which Plaintiff estimates to be above $9,000.00,” due to “the large expenses involved in

13

traveling from New Mexico to California, lodging, commercial meals, cab fares, the fees

14

charged by court reporters and the enormous fees charged by expert witnesses.” (Id. at

15

13:1-4.) Defendants oppose Plaintiff’s request for sanctions. (ECF No. 52 at 16-10:6.)

16

Although Plaintiff’s motion does not expressly identify any legal authority

17

permitting such an award of sanctions, the Court notes that Plaintiff brought his motion

18

under Federal Rules of Civil Procedure 26 and 37. (ECF No. 46 at 1:30-31.) Although

19

Rule 37 permits the Court to award sanctions where a motion to compel discovery is

20

granted, the sanctions are limited to “the movant’s reasonable expenses incurred in

21

making the motion, including attorney’s fees.” FED. R. CIV. P. 37(a)(5)(A). Here,

22

Plaintiff does not seek to recover any expenses incurred in bringing his ex parte

23

discovery motion. Moreover, in light of Plaintiff’s status as a pro se litigant, it is likely

24

that any expenses incurred in bringing this motion are negligible. Instead, Plaintiff seeks

25

to force Defendants to pay for the cost of Plaintiff’s expenses incurred, or to be incurred,

26

in taking depositions in this case. Specifically, Plaintiff seeks an award of sanctions to

27

cover “travel expenses,” including airfare, lodging, meals, and cab fares, as well as the

28

fees charged by court reports and expert witnesses. Plaintiff has cited no authority, and
- 18 -

13cv3159-CAB (DHB)

1

the Court is aware of none, that would permit such an award. Therefore, Plaintiff’s

2

motion for sanctions is DENIED.
III. CONCLUSION

3
4

For the foregoing reasons, IT IS HEREBY ORDERED:

5

1.

depositions is DENIED AS MOOT.

6
7

2.
3.

Plaintiff’s motion to compel further responses to Interrogatory Nos. 1-6 and
Request for Production of Documents Nos. 2 and 4 is DENIED AS MOOT.

10
11

On or before January 9, 2015, Defendants shall provide Dr. Robert Beatty
with a check in the amount of $3,400, post-dated to January 22, 2015.

8
9

Plaintiff’s motion for a protective order staying the January 2015

4.

On or before January 16, 2015, Defendants shall serve supplemental

12

responses to Interrogatory Nos. 7-11 in accordance with the discussion

13

herein.

14

5.

Plaintiff’s motion to compel further responses to Interrogatory No. 12 and
Request for Production of Documents Nos. 1, 3, 5, and 6 is DENIED.

15
16

6.

Plaintiff’s motion for sanction is DENIED.

17

IT IS SO ORDERED.

18

DATED: December 31, 2014

19
20

DAVID H. BARTICK
United States Magistrate Judge

21
22
23
24
25
26
27
28
- 19 -

13cv3159-CAB (DHB)