Picco et al v. Glenn et al

Filing 117

ORDER regarding plaintiff's motion to compel production of documents pursuant to 96 Motion to Compel, by Magistrate Judge Michael J. Watanabe on 8/20/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02858-RM-MJW
GLENN PICCO and
FRANCINE PICCO,
Plaintiff(s),
v.
KELLY R. GLENN, D.O.,
VALLEY VIEW HOSPITAL ASSOCIATION,
BRUCE D. LIPPMAN, II, M.D., and
GLENWOOD MEDICAL ASSOCIATES,
Defendant(s).

ORDER REGARDING
PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS PURSUANT
TO SUBPOENA DUCES TECUM (DOCKET NO. 96)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on Plaintiffs’ Motion to Compel Production of
Documents Pursuant to Subpoena Duces Tecum (docket no. 96). The court has
reviewed the subject motion (docket no. 96), the responses (docket nos. 107 and 108),
the reply (docket no. 113), and Bruce D. Lippman, II, M.D. and Glenwood Medical
Associates’ Joinder in Defendant Kelly R. Glenn, D.O.’s Response to Plaintiffs’ Motion
to Compel Production of Documents Pursuant to Subpoena Duces Tecum [docket no.
107] (docket no. 109). In addition, the court has taken judicial notice of the court’s file
and has considered applicable Federal Rules of Civil Procedure and case law. The
court now being fully informed makes the following findings of fact, conclusions of law,

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and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have jurisdiction over the subject matter and over the parties
to this lawsuit;

2.

That venue is proper in the state and District of Colorado;

3.

That each party has been given a fair and adequate opportunity to
be heard;

4.

That Plaintiffs seek an Order from the court compelling Non Party
University of Colorado Hospital [“University Hospital”] to provide
information requested in their subpoena duces tecum that was
served upon University Hospital on May 29, 2014, as outlined
below:
Any and all clinical care pathways value streams,
algorithms, policies, and/or protocols for the University
of Colorado Hospital emergency department related to
headache, syncope, and hypertension, whether in effect
or presently in development.
See subpoena duces tecum (docket no. 96-1);

5.

That Plaintiffs seek the information outlined in the subpoena duces
tecum above from the Non Party University Hospital to “support
their theory of the proper standard of care and to impeach Dr.

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Zane’s proposed expert testimony.” See subject motion (docket no.
96) at p. 4, ¶ 9. Plaintiffs wish to discover whether the policies and
procedures of Dr. Zane’s own hospital, University Hospital, where
he is the Chair of the Department of Emergency Medicine, require
the tests to be conducted when someone presents with symptoms
and signs similar to those presented by Plaintiff Mr. Picco. Plaintiffs
intend to present evidence that the procedures and protocols in this
regard are no different today than they were back in December of
2010. See docket no. 113 at page 4;
6.

That Defendants collectively and the Non Party University Hospital
argue that the subject motion (docket no. 96) should be denied or in
the alternative this court should quash the subpoena duces tecum
because: (1) the information Plaintiffs request in the subpoena
duces tecum is entirely irrelevant to any experts’ opinions in this
case and is not likely to lead to the discovery of admissible
evidence, and (2) Plaintiffs failed to serve all parties with a copy of
the subpoena duces tecum before serving it on the Non Party
University Hospital in violation of Fed. R. Civ. P. 45(a)(1)(D)(4). In
addition, Non Party University Hospital further argues that the
subpoena duces tecum is not limited in time, is inclusive of
documents currently in development, and is overly broad and
unduly burdensome;

7.

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines

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the scope of discovery as follows:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence,
description, nature, custody, condition, and location of
any documents or other tangible things and the
identity and location of persons who know of any
discoverable matter. For good cause, the court may
order discovery of any matter relevant to the subject
matter involved in the action. Relevant information
need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the
discovery of admissible evidence. All discovery is
subject to the limitations imposed by Rule 26(b)(2)(C).
Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain
discovery of ‘any matter, not privileged, that is relevant to the claim
or defense of a party’ . . . may be constrained where the court
determines that the desired discovery is unreasonable or unduly
burdensome given the needs of the case, the importance of the
issues at stake in the litigation, and the importance of the proposed
discovery in resolving the issues.” Simpson v. University of Colo.,
220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil

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Procedure permit a court to restrict or preclude discovery when
justice requires in order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);
8.

That in a medical malpractice case like the one before this court,
the burden is on Plaintiff to establish a prima facie case of
negligence by showing that defendant failed to conform to the
standard of care ordinarily possessed and exercised by members
of the same school of medicine practiced by defendant. The
standard of care in a medical malpractice action is measured by
whether a reasonably careful physician of the same school of
medicine as defendant would have acted in the same manner as
did the defendant in treating and caring for plaintiff. Melville v.
Southward, 791 P.2d 383 (Colo. 1990);

9.

That Non Party University Hospital has failed to present any
convincing facts that suggest that the subject subpoena duces
tecum is overly broad and that responding to the subpoena duces
tecum will be unduly burdensome to the Non Party University
Hospital. Moreover, the Non Party University Hospital has failed to
demonstrate that the volume of documents that would be
responsive to the subpoena duces tecum is numerous. In addition,
this court can issue a protective order for such information
consistent with Fed. R. Civ. P. 26(c) and D.C.COLO.LCivR 7.2;

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10.

That “District courts have regularly denied motions to quash
[subpoenas] based on failure to provide notice in the absence of a
demonstration of prejudice to the moving party.” Hammer v. Vital
Pharmaceuticals, Case No. 11-4124 (MAS)(DEA) (D.N.J. May 24,
2014) (copy filed by plaintiffs - Docket No. 113-1). Here, the Non
Party University Hospital and the Defendants have failed to
demonstrate any real prejudice from a lack of notice concerning the
subject subpoena duces tecum. However, in the future, Plaintiff
and all other parties to this lawsuit should comply with Fed. R. Civ.
P. 45(a)(4); and

11.

That the information requested in the subject subpoena duces
tecum may lead to admissible evidence at trial with respect to Dr.
Zane’s proffered expert testimony and Plaintiff’s theory of the case
and may also be admissible for impeachment of Dr. Zane and is
discoverable. The admissibility of such information at trial shall be
determined by Judge Moore.
ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this
court ORDERS:
1.

That Plaintiffs’ Motion to Compel Production of Documents
Pursuant to Subpoena Duces Tecum (docket no. 96) is GRANTED;

2.

That on or before September 15, 2014, Non Party University of

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Colorado Hospital shall respond to Plaintiff’s subpoena duces
tecum that was served upon University Hospital on May 29, 2014,
within the following scope: Hospital documents that require a
physician to order a non-contrast CT or a lumbar puncture
(LP) when someone presents to the emergency room with
symptoms and signs similar to those presented by Plaintiff
(presumably suffering from syncope, hypertension and
headache) for the years 2010 through the present;
3.

That the information from the subpoena duces tecum that was
served upon University Hospital on May 29, 2014, may be used by
the parties to this lawsuit in this case only and for no other purpose;
and

4.

That each party shall pay their own attorney fees and costs for this
motion.

Done this 20th day of August 2014.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE