Gianzero et al v. Wal Mart Stores, Inc. et al

Filing 419

ORDER: denying #394 Motion for Protective Order.The deposition of Dr. Orgel shall be reset to a date and time as the parties and the witness may agree, but shall occur no later than August 1, 2011 Discovery due by 8/1/2011, by Magistrate Judge Boyd N. Boland on 7/13/11.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 09-cv-00656-REB-BNB
JOSEPHINE GIANZERO, and
JENNIFER JENSEN, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
WAL-MART STORES, INC., a Delaware corporation,
CLAIMS MANAGEMENT, INC., an Arkansas corporation,
AMERICAN HOME ASSURANCE CO., a New York corporation,
CONCENTRA HEALTH SERVICES, INC., a Nevada corporation, and
JOHN DOES 1-10, whose true names are unknown,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Plaintiffs’ Emergency Motion for Protective Order Regarding
the Deposition of Dr. David Orgel and Request for Expedited Briefing and Hearing [Doc. #
394, filed 6/20/2011] (the “Motion for Protective Order”), which is DENIED.
The Motion for Protective Order seeks to postpone the deposition of Dr. David L. Orgel
based on a dispute concerning the release of medical records of two Wal-Mart employees whom
Dr. Orgel treated while he was affiliated with Concentra--John Thatcher and Carol Horsley. The
plaintiffs summarize their position as follows:
Concentra has taken the position that it will produce relevant
documents at some point during the deposition [of Dr. Orgel].
Apparently, Plaintiffs’ counsel is expected to review the
documents as Dr. Orgel testifies, while simultaneously
participating in the deposition. This is fundamentally unfair.
Moreover, the subject documents are responsive to a document
request Plaintiffs served more than 15 months ago and for which

the underlying individuals, who were employed by Wal-Mart and
treated by Concentra, provided HIPAA [sic] compliant medical
releases that were produced to all parties as a part of a filing on
November 12, 2009. Dkt. No. 98-3. After Concentra informed
Plaintiffs on June 15, 2011 of its intent to examine Dr. Orgel
regarding select medical records at the June 22, 2011 deposition,
Plaintiffs requested the complete files be produced at least two (2)
business days prior to the deposition so that counsel has a
reasonable time to review them. Concentra refused, and informed
Plaintiffs that it will not make any records available until sometime
during the deposition itself.
Motion for Protective Order [Doc. # 394] at p. 2 (original emphasis; footnote omitted). The
plaintiffs’ contentions are not entirely accurate.
I am informed that Thatcher and Horsley executed HIPPA compliant releases of their
medical records in October 2009. Concentra Response [Doc. # 414] at p. 2. Copies of those
releases, with the patients’ names and signatures redacted, were filed by plaintiffs’ counsel on
November 12, 2009, as exhibits to a motion. Thus, it is apparent that the plaintiffs had access to
the Thatcher and Horsley releases at that time and, through the use of those releases could have
obtained copies of Thatcher and Horsley’s medical records. Apparently, they did not.
The plaintiffs’ Production Request 25 sought all documents “for every claim by an
Injured Worker,” including their claim files and treatment records. The production request was
not limited to the medical records of Thatcher and Horsley. To the contrary, I am informed that
a response to Production Request 25 would have required the review of 8,379 patient charts. See
Order [Doc. # 411] at p. 3. And although the discovery request was served on March 19, 2010,
and Concentra’s response was made on July 16, 2010, the plaintiffs waited ten months, until

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May 6, 2011, to file a motion to compel production of the documents.1
Dr. Orgel’s deposition was set for June 22, 2011. On June 15, 2011, Concentra’s counsel
wrote to plaintiffs’ counsel stating:
I am writing in advance of the deposition of David Orgel, M.D.,
set for June 22, 2011. As you know, Plaintiffs procured
communications and information from Dr. Orgel with regards to
several patients. Those patients included John Thatcher and Carol
Horsley. Mr. Thatcher and Ms. Horsley both provided releases for
release of their medical charts to you and Mr. Mullens [plaintiffs’
co-counsel]. Considering these releases were eventually disclosed
with regards to these patients, we will be releasing the medical
records of these two patients, pursuant to the protective order. If
you oppose this disclosure, please articulate the basis for your
position and notify us by end of business tomorrow, Thursday,
June 16, 2011.

Cook-Olson Letter [Doc. # 394-2] at p. 1. Thus, absent an objection by plaintiffs’, Concentra
would have released the Thatcher and Horsley medical records on or about June 16, 2011,
approximately six days before Dr. Orgel’s deposition. Plaintiffs’ counsel would have had
adequate time prior to the deposition to examine the records. Instead, however, plaintiffs’
counsel objected to the release of the records, writing:
As we understand your request, Concentra now believes
documents or information contained in the medical files of two
Wal-mart injured workers are somehow favorable to Concentra
and intend to challenge Dr. Orgel with these materials at his
deposition, which is less than a week away. If the complete
medical and billing files, including the Outcome Assurance Case
Summary, for these workers are not provided in a manner that
ensures receipt to all Plaintiffs’ counsel of record by 5:00 p.m.
MDT on June 17, 2011, we will seek relief from the court.

1

The motion to compel the medical records was denied in part based on the evidence of
the undue burden required to produce the requested documents and in part on the plaintiffs’
unreasonable delay in bringing their motion to compel.
3

Markert Letter [Doc. # 394-2] at p. 2 (original emphasis).
The plaintiffs could have obtained the Thatcher and Horsley medical records, through the
use of the medical releases in their control, at anytime after November 12, 2009. They did not.
They could have received copies of those materials on or about June 16, 2011, but instead they
objected to their release. Their complaint to Dr. Orgel’s deposition going forward as scheduled
and ordered by the court--that they had not obtained the Thatcher and Horsley medical records in
advance of Dr. Orgel’s deposition--is a circumstance of their own making.
By filing the Motion for Protective Order, the plaintiffs precluded Dr. Orgel’s deposition
from proceedings. See D.C.COLO.LCivR 30.2A (providing that “[p]ending resolution of any
motion under Fed. R. Civ. P. 26(c) or 30(d), no party, attorney, or witness is required to appear
at the deposition to which the motion is directed until the motion has been resolved”). The
discovery cut-off is July 15, 2011. Consequently, Dr. Orgel’s deposition must be rescheduled to
a date after the close of discovery.
IT IS ORDERED:
(1)

The Motion for Protective Order [Doc. # 394] is DENIED;

(2)

The deposition of Dr. Orgel shall be reset to a date and time as the parties and the

witness may agree, but shall occur no later than August 1, 2011; and
(3)

The discovery cut-off is extended through the close of Dr. Orgel’s deposition,

solely to allow that deposition to be taken and completed.

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Dated July 13, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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