Niles v. Rodman, M.D. et al

Filing 94

ORDER : Deadline for parties to provide information as to Special Master candidates, as set forth in the order, is 1/25/2016. (1) Held in abeyance 58 Defendant William Rodman, M.D.'s Motion for Sanctions due to Plaintiff's Failure t o Comply with this Court's Order Regarding Discovery. (2) Held in abeyance 59 Defendant William Rodman, M.D.'s Motion to Compel Un-Redacted Medical Bills and Medical Records. (3) denying 66 Plaintiff's Motion to Strike Def endants' Designation of Non-Party Tortfeasor. (4) granting 68 Plaintiff's Motion to Strike the "Deposition Correction Sheet" of William Rodman, M.D. (5) granting 70 Plaintiff's Motion for Protective Order Dire cting Defendants' Counsel to Follow Local Rule 30.3 and Cease Making Excessive Speaking Objections and Coaching Witnesses During Oral Depositions. (6) granting 92 Defendant William Rodman, M.D.'s Supplement to Motion to Compel Unredacted Bills. By Magistrate Judge Michael J. Watanabe on 1/13/2016. (emill)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00296-RM-MJW
LAURENCE NILES,
Plaintiff,
v.
WILLIAM RODMAN,
Defendant.

ORDER REGARDING:
[1] DEFENDANT WILLIAM RODMAN, M.D.’S MOTION FOR SANCTIONS DUE TO
PLAINTIFF’S FAILURE TO COMPLY WITH THIS COURT’S ORDER REGARDING
DISCOVERY (DOCKET NO. 58);
[2] DEFENDANT WILLIAM RODMAN, M.D.’S MOTION TO COMPEL UN-REDACTED
MEDICAL BILLS AND MEDICAL RECORDS (DOCKET NO. 59);
[3] PLAINTIFF’S MOTION TO STRIKE DEFENDANTS’ DESIGNATION OF NONPARTY TORTFEASOR (DOCKET NO. 66);
[4] PLAINTIFF’S MOTION TO STRIKE THE “DEPOSITION CORRECTION SHEET”
OF WILLIAM RODMAN, M.D. (DOCKET NO. 68);
[5] PLAINTIFF’S MOTION FOR PROTECTIVE ORDER DIRECTING DEFENDANTS’
COUNSEL TO FOLLOW LOCAL RULE 30.3 AND CEASE MAKING EXCESSIVE
SPEAKING OBJECTIONS AND COACHING WITNESSES DURING ORAL
DEPOSITIONS (DOCKET NO. 70);
AND
[6] DEFENDANT WILLIAM RODMAN, M.D.’S SUPPLEMENT TO MOTION TO
COMPEL UNREDACTED BILLS (DOCKET NO. 92)
.
Entered by United States Magistrate Judge Michael J. Watanabe
This matter was before the court on January 5, 2016, for hearing on: [1]

2
Defendant William Rodman, M.D.’s Motion for Sanctions due to Plaintiff’s Failure to
Comply with this Court’s Order Regarding Discovery (docket no. 58); [2] Defendant
William Rodman, M.D.’s Motion to Compel Un-Redacted Medical Bills and Medical
Records (docket no. 59); [3] Plaintiff’s Motion to Strike Defendants’ Designation of NonParty Tortfeasor (docket no. 66); [4] Plaintiff’s Motion to Strike the “Deposition
Correction Sheet” of William Rodman, M.D. (docket no. 68) ; [5] Plaintiff’s Motion for
Protective Order Directing Defendants’ Counsel to Follow Local Rule 30.3 and Cease
Making Excessive Speaking Objections and Coaching Witnesses During Oral
Depositions (docket no. 70); and [6] Defendant William Rodman, M.D.’s Supplement to
Motion to Compel Unredacted Bills (docket no. 92). The court has reviewed the subject
motions (docket nos. 58, 59, 66, 68, 70, & 92), the responses (docket nos. 63, 64, 78,
79, 83, & 84), the replies (docket nos. 76, 72, 80, 82, & 86), and Plaintiff’s Second
Supplemental Status Report Regarding Records and Films of Certain California Based
Providers of Plaintiff Laurence Niles (docket no. 91). In addition, the court has
considered oral argument on the subject motions and has taken judicial notice of the
court’s file. The court has also 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, and order.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The court finds:
1.

That I have diversity jurisdiction over the subject matter and over
the parties to this lawsuit pursuant to 28 U.S.C. § 1332 since
Plaintiff is a citizen of California and the Defendant is a citizen of

3
Colorado;
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 in the subject motion (docket no. 58), Defendant Rodman
seeks sanctions against Plaintiff for not responding fully and
completely to Defendant Rodman’s Request for Production No. 6
and Interrogatory No. 5. In support of this motion, Defendant
Rodman argues that Plaintiff has failed to comply with this Court’s
Order dated September 10, 2015 (docket no. 54). This Order
(docket no. 54) directed Plaintiff to respond fully to Defendant
Rodman’s Request for Production No. 6 and Interrogatory No. 5 by
October 2, 2015. Accordingly, Defendant Rodman requests that
attorney fees and costs be awarded to him pursuant to Fed. R. Civ.
P. 37 and that this court Order Plaintiff to produce un-redacted
medical records and medical bills, or sign authorizations for
Defendant Rodman to obtain a complete medical history from
Plaintiff, dating back to February 17, 2005;

5.

That Plaintiff has objected to Defendant Rodman’s Request for
Production No. 6 and Interrogatory 5. Plaintiff argues that he has
complied with this Court’s Order (docket no. 54) by providing
supplemental responses to both Defendant Rodman’s Request for
Production No. 6 and Interrogatory 5, and Plaintiff has further now

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served subpoenas upon Plaintiff’s California health care providers
as outlined in Plaintiff’s Response (docket no. 63). Moreover,
Plaintiff argues that Defendant Rodman has not been specific as to
what Defendant Rodman claims are missing from Plaintiff’s medical
records;
6.

That during this hearing, Defendant Rodman’s counsel did
articulate on the record with more specificity what portions of
Plaintiff’s medical records were deficient. Further, Defendant
Rodman filed on January 4, 2016, a motion captioned “William
Rodman, M.D.’s Supplement to Motion to Compel Unredacted Bills
(docket no. 92) which included an affidavit from Defendant
Rodman’s retained rebuttal expert Robert S. Schwartz, M.D., who is
a physician retained to give an expert opinion on behalf of
Defendant Rodman on Plaintiff’s estimated life expectancy to rebut
Plaintiff’s experts Helen Woodard and James McNulty, Ph.D. In a
nutshell, Dr. Schwartz stated, in his affidavit, that he cannot
adequately evaluate Plaintiff’s medical status and history to
complete his analysis of estimated life expectancy as a result of the
massive redactions in Plaintiff’s medical records that were produced
to Defendant Rodman by Plaintiff. In essence, these massive
redactions have hampered the ability for Dr. Schwartz to do his
analysis and provide an expert opinion on the life expectancy of
Plaintiff. In response to Dr. Schwartz’s affidavit, Plaintiff argues that

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he offered to give Defendant Rodman written medical releases for
his medical records and to allow Defendant Rodman himself to try
and obtain such medical records directly from the California medical
providers as outlined above with the understanding that if
Defendant Rodman was able to secure such medical records, that
Plaintiff would first be allowed to review such medical records in
order to determine if any portion of such medical records should be
redacted relying upon the Alcon case cited below;
7.

That in order for this Court to determine whether or not any portions
of the already received redacted medical records of Plaintiff by
Defendant Rodman and any future redacted supplemental medical
records of Plaintiff should be turned over to Defendant Rodman in
discovery, this Court or a Special Master will need to conduct an in
camera review of both the unredacted and redacted medical
records for Plaintiff, noting there is a complete disagreement
between the parties as to whether such portions of Plaintiff’s
medical records are discoverable;

That Plaintiff has impliedly waived his physician- patient privilege
only with respect to that portion of his medical history which pertains
to “the cause and extent of the injuries and damages sustained as a
result of the Defendant’s claimed negligence.” Weil v. Dillon Cos.,
Inc., 109 P.3rd 127, 131 (Colo. 2005);

6
That the purposes of pretrial discovery include the elimination of
surprise at trial, the discovery of relevant evidence, the
simplification of the issues, and the promotion of expeditious
settlement of cases. Hawkins v. District Court, 638 P.2d 1372,
1375 (Colo. 1982). In order to accomplish these purposes, the
discovery rules are construed liberally. Bond v. District Court, 682
P.2d 33, 40 (Colo. 1984);

That under the so-called Alcon test [Alcon v. Spicer, 113 P.3d 735
(Colo. 2005)], and further stated in Stone v. State Farm Mut. Auto.
Ins., 185 P.3d 150, 155 (Colo. 2008), the Colorado Supreme Court
stated that courts are required to balance the concepts of
“compelling need and least intrusive alternative” and mandates that
this inquiry be considered in light of the particular circumstances of
each case. In applying the Alcon test, the Stone court noted that
“[t]he burden lies with the party seeking discovery to show
relevancy and to demonstrate a compelling need for the specific
information contained within the requested documents. In
responding to the discovery requests, the party opposing discovery
can point to other available sources from which the information can
be readily obtained.” Id. at 159;

That the Colorado Supreme Court has now created a new test

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which incorporates both the Martinelli v. District Court, 612 P.2d
1083 (Colo. 1980), and Stone tests, when discovery requests
implicate the right to privacy. Under this new test: [t]he party
requesting the information must always first prove that the
information requested is relevant to the subject of the action. Next,
the party opposing the discovery request must show that it has a
legitimate expectation that the requested materials or information is
confidential and will not be disclosed. If the trial court determines
that there is a legitimate expectation of privacy in the materials or
information, the requesting party must prove either that disclosure is
required to serve a compelling state interest or that there is a
compelling need for the information. If the requesting party is
successful in providing one of these two elements, it must then also
show that the information is not available from other sources.
Lastly, if the information is available from other sources, the
requesting party must prove that it is using the least intrusive
means to obtain the information.” In re District Court, City and
County of Denver, 256 P.3d 687, 691-92 (Colo. 2011);

That in considering the case law cited above; Rule 1;
D.C.COLO.LCivR 16.6(a); 28 U.S.C. § 652; the Civil Justice Reform
Act; and Rule 26, collectively, I find that it is necessary, in the
interest of justice, for this court to appoint a Special Master under

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Fed. R.Civ. P. 53 and D.C.COLO.LCivR 72.1(b)(10) to review such
disputed redacted and future supplemental redacted medical
records of the Plaintiff, in camera, and determine which portions of
any of these redacted medical records provided in the past or will
be provided in the future should be turned over to Defendant
Rodman in discovery;
8.

That in the subject motion (docket no. 59), Defendant Rodman
seeks an Order from this court compelling Plaintiff to provide UnRedacted Medical Bills and Medical Records from Plaintiff from
February 17, 2005, to the present in response to Defendant
Rodman’s Request for Production No. 2. For essentially the same
reasons stated above in paragraph 7, a Special Master should be
appointed;

9.

That subject motion (docket no. 66) should be DENIED for the
following reasons. Defendant Rodman has properly designated a
non-party under §13-21-111.5(3)(b), C.R.S. The non–party is
described and designated as an “unidentified male skier wearing a
blue jacket and blue hat.” Non-parties need not have been
engaged in the same kind of tortious conduct as the defendant in
order to be properly designated. Moody v. A.G. Edwards & Sons,
Inc., 847 P.2d 215, 217 (Colo. App. 1992). Generally, a person or
entity designated under § 13-21-111.5, C.R.S., must have owed a
duty recognized by law to the injured party. Miller v. Byrne, 916

9
P.2d 566, 578 (Colo. App. 1995). Here, the designated non-party
[“unidentified male skier wearing a blue jacket and blue hat”] had a
statutory duty he owed to Plaintiff under the Colorado Ski Act;

Furthermore, I find that the case of Everson v. City of Colorado
Springs, 2006 WL 5347917 (2006), is more on point to the factual
situation presented in this case. I further find that Plaintiff’s reliance
on the Spence v. Aspen Skiing Company, 820 F. Supp. 542 (D.
Colo. 1993), is misplaced under the facts of the case at bar. The
Spence case dealt with the Plaintiff’s own comparative/contributory
negligence rather than the negligence of a designated non-party
tortfeasor. Under the factual situation presented in this case, the
jury should decide the portion of Plaintiff’s injuries and damages
that were caused by the designated non-party tortfeasor
[“unidentified male skier wearing a blue jacket and blue hat”] and
the portion of the damages that were caused by the alleged
negligence of Defendant Rodman;
10.

That subject motion (docket no. 68) should be GRANTED for the
following reasons. Fed. R. Civ. P. 30(e) provides:
(e)

Review by the Witness; Changes.
(1)

Review; Statement of Changes. On request by the
deponent or a party before the deposition is
completed, the deponent must be allowed 30 days

10
after being notified by the officer that the transcript or
recording is available in which:
(A)

to review the transcript or recording; and

(B)

if there are changes in form or substance, to
sign a statement listing the changes and the
reasons for making them.

(2)

Changes Indicated in the Officer’s Certificate. The
officer must note in the certificate prescribed by Rule
30(f)(1) whether a review was requested and, if so,
must attach any changes the deponent makes during
the 30-day period;

11.

That Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th
Cir. 2002), is the controlling law as to subject motion (docket no.
68). After careful review of Defendant Rodman’s correction sheet to
his deposition, I find that Defendant Rodman has, in essence,
attempted to rewrite and materially change his deposition
testimony. These changes as outlined in Defendant Rodman’s
correction sheet are the types of changes that the Burns court said
should not be permitted. See Burns v. Board of Cty. Comm’rs, 330
F.3d 1375, 1282 (10th Cir. 2003). In Burns, the Tenth Circuit upheld
the district court’s discretion to disregard a deposition errata sheet
as an attempt to rewrite portions of his deposition. Here, Defendant
Rodman is a licensed medical doctor, and there is no indication of

11
confusion when Defendant Rodman answered questions during his
deposition. In fact, Defendant Rodman’s answers to questions
asked during his deposition were clear, concise, and responsive to
the questions by counsel. In addition, there is no evidence to
suggest that Defendant Rodman’s corrections, as outlined on his
correction sheet, were based upon newly discovered evidence.
Lastly, Defendant Rodman was cross examined at his deposition.
Based upon these findings and the case law, Defendant Rodman’s
correction sheet to his deposition should be stricken except for the
typos as stated in the correction sheet;
12.

That subject motion (docket no. 70) should be GRANTED for the
following reasons;

13.

That Fed. R. Civ. P. 30(c)(2) provides:
(c)

Examination and Cross-Examination; Record of the
Examination; Objections; Written Questions.
...
(2)

Objections. An objection at the time of the
examination--whether to evidence, to a party’s
conduct, to the officer’s qualification, to the manner of
taking the deposition, or to any other aspect of the
deposition--must be noted on the record, but the
examination still proceeds; the testimony is taken
subject to any objection. An objection must be stated

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concisely in a nonargumentative and nonsuggesstive
manner. A person may instruct a deponent not to
answer only when necessary to preserve a privilege,
to enforce a limitation ordered by the court, or to
present a motion under Rule 30(d)(3);
14.

That D.C.COLO.LCivR 30.3 provides:
(a)

Prohibited Conduct. In addition to the conduct prohibited
by Fed. R. Civ. P. 30(d)(3)(A), the following abusive
deposition conduct is prohibited.
(1)

making an objection or a statement that has the effect
of coaching the deponent, or suggesting an answer;

(2)

interrupting examination by counsel except to
determine whether to assert a privilege.

(b)

Appointment of Master. A judicial officer may appoint a
master under Fed. R. Civ. P. 53 to regulate deposition
proceedings.

(c)

Location of Deposition. If deposition abuse is anticipated,
a judicial officer may order that a deposition be taken at the
courthouse or master’s office so that, at the request of any
party, deponent, or counsel, a dispute may be heard and
decided immediately by a judicial officer or master.

(d)

Expenses, Costs, and Fees. When a judicial officer
determines that a party or counsel unreasonably has

13
interrupted, delayed, or prolonged a deposition, whether by
excessive questioning, objecting, or other conduct, that party
or its counsel, or both, may be ordered to pay each other
party’s expenses, including without limitation, reasonably
necessary travel, lodging, reporter’s fees, attorney fees, and
videotaping expenses, for that portion of the deposition
determined to be excessive. In addition, that party or its
counsel, or both, may be required to pay all such costs and
expenses for any additional depositions or hearings made
necessary by its misconduct;
15.

That the decision to issue a protective order rests within the sound
discretion of the trial court. Wang v. Hsu, 919 F.2d 130, 130 (10th
Cir. 1990). In addition, Fed R. Civ. P. 26(c) confers broad discretion
on the trial court to decide when a protective order is appropriate
and what degree of protection is required. Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (U.S. 1984) (“The trial court is in the
best position to weigh fairly the competing needs and interests of
parties affected by discovery. The unique character of the
discovery process requires that the trial court have substantial
latitude to fashion protective orders.”). Furthermore,
D.C.COLO.LCivR 7.2 works in harmony with Rule 26(c) since the
court, under Rule 7.2, has discretion to order Restricted Access at
either Level 1, 2, or 3 as necessary in a given case to protect the

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competing interests of the parties; and
16.

That after careful review of portions of the depositions cited in the
moving papers (docket nos. 70, 83, 84, and 86), I find that
Defendant Rodman’s counsel Mr. Childs and Defendant AVH’s
counsel Mr. Bradford have both violated Fed. R. Civ. P. 30(c)(2)
and D.C.COLO.LCivR 30.3(a)(1) & (2). I further find that a
protective order to prevent defense counsel from engaging in
excessive speaking objections and witness coaching in future
depositions in this case is warranted. Further, that a Special Master
should be appointed pursuant to Fed. R. Civ. P. 53, D.C.COLO.
LCivR 30.3(b), and D.C.COLO.LCivR 72.1(b)(10) to preside over
the future depositions in this case. The Special Master should be
authorized to make rulings on all objections that may be made
during future depositions. The appointment for a Special Master to
preside over and rule on objections made during such depositions
and to conduct an in camera review of the disputed medical records
cited above is justified, noting the number of discovery motions and
hearings this court has had to conduct concerning this case. See
record of proceedings (i.e., CM/ECF docket) for all motions filed as
of the date of this Order concerning discovery.
ORDER

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

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1.

That Defendant William Rodman, M.D.’s Motion for Sanctions due
to Plaintiff’s Failure to Comply with this Court’s Order Regarding
Discovery (docket no. 58) WILL BE HELD IN ABEYANCE until
after the Special Master’s review of the Plaintiff’s redacted medical
records and underacted medical records, in camera, and upon
receipt of a written report and recommendation by the Special
Master as to the disclosure, if any, of Plaintiff’s redacted medical
records;

2.

That Defendant William Rodman, M.D.’s Motion to Compel UnRedacted Medical Bills and Medical Records (docket no. 59) WILL
BE HELD IN ABEYANCE until after the Special Master’s review of
the Plaintiff’s redacted medical records and unredacted medical
records, in camera, and upon receipt of a written report and
recommendation by the Special Master as to the disclosure, if any,
of Plaintiff’s redacted medical records;

3.

That a Special Master is appointed pursuant to Fed. R. Civ. P. 53;
D.C.COLO.LCivR 30(b); and D.C.COLO.LCivR 72.1(b)(10) in this
case.

The Special Master shall conduct an in camera review of the
Plaintiff’s redacted and unredacted medical records, past and
future, and provide this court with a written report(s) and
recommendation(s) as to which portions, if any, of the redacted

16
medical records by the Plaintiff, past and future, should be turned
over to Defendant Rodman. Plaintiff and Defendant Rodman shall
each pay fifty (50%) percent of the Special Master’s fees and costs
for such work.

In addition, the Special Master will preside over all future
depositions and rule on all objections raised during such
depositions. Defendant Rodman shall pay all of the Special
Master’s fees and costs for such work.

Once a Special Master is selected by this court, a separate written
detailed order will be issued by this court as to such appointment,
and such order will include a date certain when the Plaintiff’s
redacted and underacted medical records shall be turned over to
the Special Master and also filed with the court under Restrict
Access Level 2 [i.e., the Special Master is an extension of the court
and therefore will have access to the Plaintiff’s redacted and
unredacted medical records]. Plaintiff shall forthwith begin making
copies of the Plaintiff’s redacted and unredacted medical records so
that once the Special Master is selected by this court, such records
can be delivered immediately to the Special Master and filed with
the court;
4.

That the parties shall forthwith meet, confer, and select a

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candidate who is qualified, willing, and not conflicted pursuant to 28
U.S.C. § 455 to serve as a Special Master and provide the name of
such candidate to the court along with that candidate’s address(es),
telephone number(s), e-mail address(es), and hourly rate on or
before January 25, 2016. If the parties cannot agree upon a
candidate to serve as a Special Master, then the court will select a
candidate to serve in such capacity;
5.

That Plaintiff’s Motion to Strike Defendants’ Designation of NonParty Tortfeasor (docket no. 66) is DENIED;

6.

That Plaintiff’s Motion to Strike the “Deposition Correction Sheet” of
William Rodman, M.D. (docket no 68) is GRANTED except for the
“typos” errors;

7.

That Plaintiff’s Motion for Protective Order Directing Defendants’
Counsel to Follow Local Rule 30.3 and Cease Making Excessive
Speaking Objections and Coaching Witnesses During Oral
Depositions (docket no. 70) is GRANTED, and a Special Master will
preside over all future depositions and rule on all objections during
such depositions;

8.

That Defendant William Rodman, M.D.’s Supplement to Motion to
Compel Unredacted Bills (docket no. 92) is GRANTED. The court
has considered docket no. 92 in my findings of fact and conclusions
of law listed above; and

9.

That each party shall pay their own attorney fees and costs for all of

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these motions listed above since this court finds under the facts of
circumstances of this case an award of expenses would be unjust.
Done this 13th day of January 2016.
BY THE COURT
s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE