Colas et al v. Ronan et al

Filing 42

RULING FOLLOWING IN CAMERA REVIEW. For the reasons stated in the Ruling, as of the present time, plaintiffs need not disclose the May 4, 2013 and June 5, 2013 Memoranda, without prejudice to defendant Griffin Hospital seeking a reconsideration of this conclusion upon the conclusion of fact witness depositions and/or the designation of expert witnesses by plaintiffs. Signed by Judge Joan G. Margolis on 8/25/2014.(Watson, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
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:
MAUD F. COLAS & HAROLD JUSTIMA
:
:
V.
:
:
CYNTHIA M. RONAN, M.D. & GRIFFIN
:
HOSPITAL
:
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3:13 CV 855 (CSH)

DATE: AUGUST 25, 2014

RULING FOLLOWING IN CAMERA REVIEW
On June 14, 2013, plaintiffs Maud F. Colas and Harold Justima commenced this
medical malpractice lawsuit against defendants Dr. Cynthia M. Ronan and Griffin Hospital,
regarding serious injuries that occurred during the birth of their daughter, Laila Rose Justima
(Dkt. #1); on September 30, 2013 and November 1, 2013, defendant Dr. Ronan and
defendant Griffin Hospital, respectively, filed their answers (Dkts. #20, 28). Under the
electronic scheduling order filed on August 4, 2014 by Senior U.S. District Judge Charles S.
Haight, Jr., all depositions of fact witnesses are to be completed by September 18, 2014,
plaintiffs are to designate their trial experts and provide expert reports by October 17, 2014
and such experts are to be deposed by November 17, 2014, and defendants are to designate
their trial experts and provide their expert reports by December 15, 2014 and such experts
are to be deposed by January 19, 2015. (Dkt. #38).
On July 7, 2014, defendant Griffin Hospital filed its Motion to Compel (Dkt. #34),
which Judge Haight referred to this Magistrate Judge four days later. (Dkt. #35). In its
motion, defendant Griffin Hospital sought production of “a memorandum [filed pursuant to
CONN. GEN. STAT. § 52-190a] detailing witness interviews that was heavily relied on by the
doctor and nurse whose opinions are appended to the complaint[,]” arguing that there is
substantial need for the document, the document is not protected by any privilege regarding

communications with an expert, and the work-product privilege was waived.

(Dkt. #34,

Brief at 1, 4-6; see also Dkt. #39, at 1-6). In the alternative, defendant Griffin Hospital
requested an in camera review. (Dkt. #34, Brief at 7). In opposition, plaintiffs argued that
the memorandum is not discoverable in that defense counsel specifically excluded this
memorandum from disclosure, it constitutes work-product privilege, it is not discoverable
since it is material provided to a non-testifying expert, it is specifically exempted from
discovery under CONN. GEN. STAT. § 52-190a, plaintiffs timely invoked the work-product and
attorney-client privilege, defendant Griffin Hospital has not identified “substantial need” for
disclosure, and plaintiffs have not waived any privilege because disclosure is mandated by
CONN. GEN. STAT. § 52-190a. (Dkt. #36, at 1-15).
On August 11, 2014, this Magistrate Judge filed her Ruling on Defendant's Motion to
Compel (Dkt. #40)["First August 2014 Ruling"], 2014 WL 3907974, at *1, which ordered an
in camera review of this memorandum, citing Messier v. Southbury Training School, No. 94
CV 1706, 1998 WL 422858, at *8-9 (D. Conn. June 29, 1998); Quiros v. Elderhouse, Inc., No.
FSTC CV 136017788S, 2014 WL 2255314, at *2, 4-5 (Conn. Super. Ct. Apr. 25, 2014) . In
accordance with the First August 2014 Ruling, on August 19, 2014, plaintiff submitted two
versions of this memorandum – one dated May 4, 2013 and another dated June 5, 2013
["June 2013 Memorandum"].1 Two certifications under CONN. GEN. STAT. § 52-190a were
attached to the complaint here – one from a doctor, dated June 4, 2013 ["June 2013 Doctor's

1

Contrary to plaintiffs' representations in their letter, dated August 18, 2014, the two
versions are not "identical in wording, text and format" except for "line spacing." The May 4, 2013
version contained several additional paragraphs, which focus upon pre-litigation investigation and
plaintiff Colas' pre-natal and post-discharge care. The June 5, 2013 version contained several
additional paragraphs about expert opinions.

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Certification"] and another from a nurse, dated June 10, 2013.2 A comparison of the June
5, 2013 Memorandum to the June 2013 Doctor's Certification reveals that the two are nearly
identical, except for several additional paragraphs in the June 2013 Memorandum that are
summaries of witness statements and observations about witnesses or medical records, and
then several paragraphs addressing potential expert testimony.
From a careful review of the two memoranda, it is clear that the two memoranda are,
at this juncture, materials provided to "an expert who has been retained or specially
employed by [a] party in anticipation of litigation or to prepare for trial and who is not
expected to be called as a witness at trial[,]" so that discovery from him or her is not
permitted except upon "showing exceptional circumstances under which it is impracticable
for the party to obtain facts or opinions on the same subject by other means." FED. R. CIV.
P. 26(b)(4)(D)(ii). See, e.g., Higher One, Inc. v. Touchnet Info. Sys., Inc., 298 F.R.D. 82,
86-87 (W.D.N.Y. 2014); In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 293 F.R.D. 568,
575 (S.D.N.Y. 2013); see also QBE Ins. Corp. v. Interstate Fire & Safety Equip. Co., Inc., No.
3:07 CV 1883 (SRU), 2011 WL 692982, at *5-6 (D. Conn. Feb. 18, 2011). As previously
indicated, depositions of fact witnesses are to be completed by September 18, 2014, and
the witnesses whose statements have been summarized are individuals who can be expected
to be deposed. Thereafter, plaintiffs are to designate their trial experts and provide expert
reports by October 17, 2014. As of the present time, the certifying doctor remains a
consulting expert only, and defendants have no basis for showing "exceptional
circumstances" unless and until these logical fact witnesses have significant memory lapses
at their depositions.

2

Insofar as the Doctor's Certification is far more comprehensive than the Nurse's
Certification, the Court will concentrate on the former as opposed to the latter.

3

In addition, if the doctor who provided the June 2013 Certification later is designated
as an expert witness, so that he or she is now proceeding in a dual capacity as both
consulting expert and testifying expert, then the analyses of Judge Burns in Messier and
Judge Truglia in Quiros come into play. In such event, defendant Griffin Hospital is free to
seek reconsideration of this discovery issue.
Accordingly, as of the present time, plaintiffs need not disclose the May 4, 2013 and
June 5, 2013 Memoranda, without prejudice to defendant Griffin Hospital seeking a
reconsideration of this conclusion upon the conclusion of fact witness depositions and/or the
designation of expert witnesses by plaintiffs.
Because this discovery ruling is subject to review, the two memoranda shall remain
in this Magistrate Judge's Chambers; if any party files an objection to this discovery ruling,
then the two memoranda will be forwarded to Judge Arterton's Chambers for her in camera
review.
This is not a Recommended Ruling, but a ruling on a non-dispositive motion, the
standard of review of which is specified in 28 U.S.C. § 636; FED. R. CIV. P. 6(a), 6(e) & 72;
and Rule 72.2 of the Local Rules for United States Magistrate Judges. As such, it is an order
of the Court unless reversed or modified by the District Judge upon timely made objection.
See 28 U.S.C. § 636(b)(written objections to ruling must be filed within
fourteen calendar days after service of same); FED. R. CIV. P. 6(a), 6(e) & 72; Rule
72.2 of the Local Rules for United States Magistrate Judges, United States District Court for
the District of Connecticut; Small v. Secretary, H&HS, 892 F.2d. 15, 16 (2d Cir. 1989)(failure
to file timely objection to Magistrate Judge’s recommended ruling may preclude further

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appeal to Second Circuit).3
Dated at New Haven, Connecticut, this 25th day of August, 2014.

/s/ Joan G. Margolis, USMJ
Joan Glazer Margolis
United States Magistrate Judge

3

If either counsel believes that a settlement conference before this Magistrate Judge could
be productive, he or she should contact Chambers accordingly.

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