Scholl et al v. Pateder

Filing 89

ORDER. Plaintiffs' oral Motion to compel the production of certain documents from Defendant's expert witness, Jeffrey C. Wang, M.D is denied. By Magistrate Judge Kristen L. Mix on 8/23/11. (mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 09-cv-02959-PAB-KLM
TODD E. SCHOLL, AND
CARLA SCHOLL,
Plaintiffs,
v.
DHRUV B. PATEDER, M.D.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiffs’ oral Motion to compel the production of
certain documents from Defendant’s expert witness, Jeffrey C. Wang, M.D. In compliance
with the Court’s procedures for resolving discovery disputes, the parties contacted the
Court to set a hearing to address the issue. The Court conducted a hearing on June 21,
2011 [Docket No. 70]. The Court directed the parties to submit briefing regarding the
dispute. The parties have now done so [Docket Nos. 79 & 81]. Having considered the
parties’ arguments and supporting documents,
IT IS HEREBY ORDERED that Plaintiffs’ oral Motion is DENIED. The Court’s ruling
is explained below.
This is a medical malpractice action arising from a surgical procedure performed by
Defendant on Plaintiff Todd E. Scholl (hereinafter, “Mr. Scholl”) in December of 2009.
Scheduling Order [Docket No. 15] at 2. Plaintiffs served a deposition notice on Defendant’s
expert witness, Dr. Wang. Dr. Wang is a spine surgeon who teaches at UCLA. According

to publicly available information provided by Plaintiffs’ attorney, Dr. Wang failed to disclose
payments he received from medical companies while he was researching their products’
use in patients [Docket Nos. 79-2, 79-3 & 79-4]. One of these products was a bone-growth
drug used during Mr. Scholl’s surgery. Dr. Wang has opined that use of the product by
Defendant was within the standard of care. See Plaintiffs’ Brief [#79] at 3. Plaintiffs
contend that Dr. Wang has been implicated in a federal kickback investigation involving
allegedly illegal payments from drug manufacturers to doctors and that his credibility is in
doubt. Id.
Plaintiffs’ deposition notice included a request that Dr. Wang produce copies of his
disclosure forms to UCLA from 2005 forward, copies of UCLA’s documents regarding an
investigation into Dr. Wang, and copies of documents regarding Dr. Wang’s removal as codirector of UCLA’s Comprehensive Spine Center [Docket No. 79-1]. Plaintiffs seek an
order compelling Dr. Wang to produce the documents.
Defendant first argues that the Motion is premature because Dr. Wang is not a party
to the litigation and no subpoena duces tecum has been served. Defendant’s Brief [#81]
at 2. Defendant is correct. Fed. R. Civ. P. 30(b)(2) allows a request for production of
documents to be served with a deposition notice only regarding depositions of party
opponents. Otherwise, service of a subpoena duces tecum is required pursuant to Fed.
R. Civ. P. 45. The Motion is subject to denial on this basis alone. Nevertheless, because
this is a technical defect that can be remedied and giving credit to Plaintiffs’ contention that
the parties agreed to exchange documents related to their experts without a subpoena, see
Plaintiffs’ Brief [#79] at 1, the Court addresses Defendant’s substantive objections as well.
Defendant claims that the requested information is not relevant. Defendant’s Brief
2

[#81] at 2-3. The Court disagrees. Generally, the test for allowing discovery of information
or documents is whether the information “is relevant to any party’s claim or defense.” Fed.
R. Civ. P. 26(b)(1). This is a deliberately broad standard which is meant to allow the parties
to discover the information necessary to prove or disprove their cases. Gomez v. Martin
Marietta Corp., 50 F.3d 1511, 1520 (10th Cir. 1995); Simpson v. Univ. of Colo., 220 F.R.D.
354, 356 (D. Colo. 2004); Cardenas, 232 F.R.D. at 382 (“Relevancy is broadly construed,
and a request for discovery should be considered relevant if there is ‘any possibility’ that
the information sought may be relevant to the claim or defense of any party.” (citations
omitted)). Here, Dr. Wang’s credibility and objectivity as an expert witness are relevant.
See, e.g., Hawkins v. S. Plains Int’l Trucks, Inc., 139 F.R.D. 679, 682 (D. Colo. 1991). I
agree with Plaintiffs that the documents they seek from Dr. Wang tend to make it more
probable that his objectivity may be compromised.

See Fed. R. Evid. 401, 702.

Accordingly, the documents are relevant.
Defendant also claims that the requested information is cumulative, in light of other
information (e.g., the articles) already in Plaintiffs’ possession that essentially contain the
same information. See Defendant’s Brief [#81] at 4. Although Defendant is correct, the
cumulative effect is weighed against the burden of producing the documents. See Fed. R.
Civ. P. 26(b)(2)(C)(i), (iii). Here that burden is not so heavy as to justify relieving Defendant
from producing them. See, e.g., 8A Charles Alan Wright et al., Federal Practice &
Procedure § 2174, at 306-09 (2d ed. 1994).
Finally, Defendant contends that the documents are confidential and invokes Dr.
Wang’s right to privacy to “personal financial information” and his employment files.
Defendant’s Brief [#81] at 3. Defendant cites to the four-factor test recently set forth by the
3

Colorado Supreme Court in In re Dist. Ct., City & County of Denver, ___ P.3d ___, 2011
WL 2529464, at *3 (Colo. June 27, 2011) (publication forthcoming). Ordinarily, discovery
in federal court is governed by the Federal Rules of Civil Procedure, regardless of whether
federal jurisdiction is based on federal question or diversity of citizenship. See Everitt v.
Brezzel, 750 F. Supp. 1063, 1065-66 (D. Colo. 1990). Applicable federal precedent directs
the Court to weigh the need to protect privileged material against the need for disclosure.
See, e.g., Fed. Open Market Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340 (1979);
Fed. R. Civ. P. 26(b), (c). While ordinary privacy interests do not necessarily fall within the
definition of privileged material, if a state doctrine promoting confidentiality does not conflict
with federal interests, it may be taken into account as a matter of comity. Gottlieb v. Wiles,
143 F.R.D. 235, 237 (D. Colo. 1992).
Here, Defendant contends that in order to be compelled to produce confidential
information, Colorado law requires that the following four-factor test be considered: (1)
whether the information is relevant; (2) whether there is a reasonable expectation of
privacy; (3) if so, whether there is a compelling need for the information; and (4) if so,
whether the information can be derived from other less-intrusive sources. See In re Dist.
Ct., 2011 WL 2529464, at *3; see also Corbetta v. Albertson’s Inc., 975 P.2d 718, 720-21
(Colo. 1999) (citing Martinelli v. Denver Dist. Ct., 612 P.2d 1083 (Colo. 1980) (discussing
a substantially similar three-part test related to discovery of confidential materials).
Applying the test set forth above, although Plaintiffs have shown that the information
is relevant, Dr. Wang has shown that he has a legitimate expectation of privacy in the
documents. Moreover, Plaintiffs have failed to show that there is a compelling need for the
documents. Virtually all of the credibility issues that Plaintiffs intend to pursue regarding
4

Dr. Wang (e.g., that he took money from drug manufacturers, that he failed to disclose this
to UCLA, and that he was disciplined by UCLA for it) are addressed in the articles already
in Plaintiffs’ possession and about which Dr. Wang has been deposed. In fact, Dr. Wang
has admitted all of the above facts. See Defendant’s Brief [#81] at 4. But see id. at 2
(objecting to Plaintiffs’ unsubstantiated allegation that Dr. Wang is the subject of an illegal
kickback investigation).

Hence, there is no compelling need for production of the

documents, and Dr. Wang’s privacy interest prevails.1 Accordingly, Plaintiffs’ oral Motion
to compel the production of Dr. Wang’s confidential documents is denied.

Dated: August 23, 2011
BY THE COURT:
s/ Kristen L. Mix
Kristen L. Mix
United States Magistrate Judge

1

Because there is no compelling need for the discovery, the Court need not consider the
fourth factor, namely whether the information may be obtained from less-intrusive sources.

5