Hejduk et al v. Ethicon, Inc. et al

Filing 125

ORDER denying 119 the plaintiffs' motion to require the defendants' expert to appear for a deposition on a weekday during normal business hours. Signed by Magistrate Judge Patricia D. Barksdale on 11/16/2020. (KNR)

Case 3:20-cv-00061-MMH-PDB Document 125 Filed 11/16/20 Page 1 of 2 PageID 26837

United States District Court
Middle District of Florida
Jacksonville Division
BARBARA J. HEJDUK AND
CHARLES A. HEJDUK,
Plaintiffs,
NO. 3:20-cv-61-J-34PDB

v.
ETHICON, INC., AND
JOHNSON & JOHNSON,
Defendants.

Order
The plaintiffs move for an order requiring Dr. Barry Schlafstein—an expert for
the defendants—to appear for a deposition on a weekday during normal business
hours or precluding him from testifying. Doc. 119. They state they have contacted the
defendants “over the past few months” to determine a mutually convenient day and
time but have been unsuccessful because Dr. Schlafstein insists the deposition occur
on a Sunday. Doc. 119 at 2; Doc. 119-1 at 1–3. They observe Dr. Schlafstein has been
listed as a general expert in hundreds or thousands of similar actions and has had
months to configure his schedule. Doc. 119 at 3–4.
The defendants oppose the motion, emphasizing several facts the plaintiffs
omit: Dr. Schlafstein is a solo physician practitioner; he is the defendants’ only casespecific expert and has been for more than two years; the plaintiffs already deposed
him on his case-specific opinions two years ago on a Sunday; the plaintiffs received
his supplemental report in June of this year; the defendants initially proposed
Saturday, October 3, for his second deposition but received no reply from the plaintiffs
until that day was no longer available; and the plaintiffs first objected to taking a
Sunday deposition on September 17, sent date ranges on September 22 without

Case 3:20-cv-00061-MMH-PDB Document 125 Filed 11/16/20 Page 2 of 2 PageID 26838

responding to the defendants’ inquiry about whether they would be taking a second
deposition of him, and waited until October 28 to file the current motion, leaving the
Court only one business day before the deadline to depose him (today) to decide the
motion. Docs. 123; 123-1–123-6.
That the plaintiffs previously deposed Dr. Schlafstein on a Sunday is
dispositive and should have been disclosed in the motion (along with a reason why
they agreed to a Sunday deposition before but cannot agree to a Sunday deposition
now). They do not contest that Dr. Schlafstein has a busy patient practice (made
busier, the defendants suggest, by the pandemic), they offer no good cause (for
example, the need for a religious accommodation), and the authority they provide is
nonbinding, is inapplicable, or merely underscores the discretion a judge has in
setting discovery conditions considering the circumstances.
The Court denies the motion, Doc. 119. As the defendants observe, the
plaintiffs do not request an extension of today’s deadline to depose Dr. Schlafstein.
Ordered in Jacksonville, Florida, on November 16, 2020.

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