Jamison v. Allen et al

Filing 48

ORDER granting in part and denying in part 41 MOTION for Protective Order by Michael Jamison.. Signed by Judge Holly B. Fitzsimmons on 3/27/13. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MICHAEL JAMISON
v.
GORDON T. ALLEN, JR. AND
GORDON SEVIG TRUCKING
COMPANY, INC.

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CIV. NO. 3:11CV1024(WWE)

RULING ON PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
The plaintiff, Michael Jamison, brings an action against
Gordon T. Allen and his employer, Gordon Sevig Trucking Company,
alleging negligence and vicarious liability.

He seeks damages

for injuries sustained during an automobile accident on
September 17, 2009, claiming he was rear-ended by a vehicle
operated by defendant Allen, within the scope of Allen’s
employment with Gordon Sevig Trucking Company.

[Doc. #1 at 1-

2].
Plaintiff claims various injuries as a result of the
accident, including cervicogenic headache, cervical strain, disc
herniations at C3-4 and C4-5 requiring cervical discectomy and
fusion, cervico brachial syndrome, thoracalgia, vertebral
subluxation of thoracic spine, and lumbar strain requiring
steroid injection therapy.

[Doc. #1 at 2].

As a result of the

accident, plaintiff underwent a cervical fusion procedure,
performed by Dr. Abraham Mintz, M.D., and Dr. Gerard Girasole,

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M.D.

Plaintiff disclosed Dr. Mintz and Dr. Girasole as expert

witnesses.
Plaintiff moves for a protective order, pursuant to Fed. R.
Civ. P. 26(c)(1)(A), preventing disclosure or discovery related
to item nine on the materials list in Dr. Mintz and Dr.
Girasole’s deposition notices; or in the alternative, to limit
the scope and inquiry of item nine to the previous calendar
year, pursuant to Fed. R. Civ. P. 26(c)(1)(D).

[Doc. #41 at 1].

Defendants noticed the depositions of Doctors Mintz and Girasole
with identical production requests.

Item 9 seeks,

Any and all records, correspondence, or other documentation
(to include computer records) evidencing the number of
persons referred to [Abraham Mintz, M.D] [Gerard Girasole,
M.D. and/or The Orthopedic & Sports Medicine Center] by the
law firm of Carter Mario Injury Lawyers from January 1,
2005 to the present, to include the date any such referral
was made. Please note – the deponent is not required to
produce any treatment records pertaining to any such
person. In addition, in order to conform to applicable
HIPPA [sic] regulations the names of any such person may be
redacted to reveal the first initial of the first name and
the first initial of the last name only. No other
personally identifiable information need be produced.

Plaintiff asserts a relevancy objection and argues that the
request is to “harass and intimidate the witness in an effort to
impose a chilling effect” on the doctors’ testimony.
at 2].

[Doc. #41

Plaintiff also argues the request is highly burdensome

and expensive and the scope of production too broad for “a minor
and tangential issue” related to the doctors’ testimony and
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thus, the burden associated with preparing the documents
outweighs any probative value.

[Doc. #41 at 3].

Defendants claim the production request at issue is
“reasonably calculated to lead to the discovery of evidence that
will be admissible at trial on the issue of whether Drs. Mintz
and Girasole possess a bias in favor of the [p]laintiff due to
an extensive, longstanding, and lucrative relationship they have
with the Carter Mario Firm.”

[Doc. #44 at 5].

Furthermore, the

defendants assert the information is admissible to help the jury
determine whether to accept the doctors’ expert testimony that
plaintiff’s surgery was “medically necessary and/or had to be
performed by two surgeons.”

[Doc. #44 at 5].

Rule 26(c) of the Federal Rules of Civil Procedure reads,
in pertinent part, that the “court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden” during the discovery
process.

Fed. R. Civ. P. 26(c)(1).

Further,

undue burden depends upon such factors as relevance, the
need of the party for the documents, the breadth of the
document request, the time period covered by it, the
particularity with which the documents are described and
the burden imposed. . . . The determination of issues of
burden and reasonableness is committed to the sound
discretion of the trial court.
Travelers Indem. Co. v. Metro. Life Ins. Co., 228 F.R.D. 111,
113 (D. Conn. 2005) (citations and quotation marks omitted).

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The burden of showing good cause for the issuance of a
protective order falls on the party seeking the order.

Brown v.

Astoria Fed. Sav. & Loan Ass’n, 444 F. App’x 504, 505 (2d Cir.
2011) (citations omitted).

To establish good cause under Rule

26(c) the party must set forth a “particular and specific
demonstration of fact, as distinguished from stereotyped and
conclusory statements.”

Jerolimo v. Physicians for Women, P.C.,

238 F.R.D. 354, 356 (D. Conn. 2006) (citations omitted).

In

other words, good cause exists when disclosure will result in a
“clearly defined and serious injury” to the party seeking the
protective order.”

Pansy v. Borough of Stroudsburg, 23 F.3d

772, 786 (3d Cir. 1994).

Moreover, “[b]road allegations of

harm, unsubstantiated by specific examples or articulated
reasoning,” are insufficient for a good cause showing.

Id. at

786 (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108,
1121 (3d Cir. 1986)).
In support of plaintiff’s contention that enforcing the
production request would cause concrete and serious injury,
plaintiff asserts the request “could include a multitude of
documents per patient over a period of eight years.”
at 3] (emphasis added).

[Doc. #41

Furthermore, plaintiff alleges the

request would be “extremely time-consuming and expensive” and
would require the doctors to “compile multiple documents per
patient and . . . redact each document to comply with HIPAA
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regulations.”

[Doc. #41 at 3].

Such generalized and

speculative suggestions of harm do not constitute good cause for
issuance of a protective order under Rule 26(c).
Plaintiff’s Motion for Protective Orders for Abraham Mintz,
M.D., and Gerard Girasole, M.D., [doc. #41] is GRANTED in part
and DENIED.

Dr. Mintz and Dr. Girasole will state the number of

individuals referred to them, respectively, by Carter Mario
Injury Lawyers from January 1, 2005 to the present date.

Dr.

Mintz and Dr. Girasole are not required to produce documentation
evidencing the number of individuals referred, or the dates of
those referrals.

If any questions arise during the course of

the depositions, parties may contact the Court for further
guidance.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the “clearly
erroneous” statutory standard of review.

28 U.S.C.

§636(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e), and 72(a); and Rule 2
of the Local Rules for United States Magistrate Judges.

As

such, it is an order of the Court unless reversed or modified by

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the district judge upon motion timely made.

ENTERED at Bridgeport, this 27th day of March 2013.

_____/s/____________________

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HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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