Emerson et al v. Laboratory Corporation of America

Filing 75

ORDER denying Plaintiffs' 66 Motion to Compel Response to Requests for Admissions, for Sanctions and for Expedited Hearing. Signed by Judge Richard W. Story on 5/1/12. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MEREDITH EMERSON and
TODD EMERSON,
Plaintiffs,
v.
LABORATORY CORPORATION
OF AMERICA,

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CIVIL ACTION NO.
1:11-CV-01709-RWS

Defendant.
ORDER
This case comes before the Court on Plaintiffs’ Motion to Compel
Response to Requests for Admissions, for Sanctions and for Expedited Hearing
(“Pls.’ Mot. to Compel, for Sanctions and for Expedited Hr’g”) [66]. After
reviewing the record, the Court enters the following Order.
Background
This is a medical malpractice action brought on behalf of Plaintiffs
against Defendant Laboratory Corporation of America (“LabCorp” or
“Defendant”), a diagnostic laboratory that analyzes cytopathology slides,
including Pap smears. Plaintiffs allege that between October 9, 2006 and
December 12, 2008, Ms. Emerson’s physician obtained three Pap tests from

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Ms. Emerson and submitted them to LabCorp for interpretation. (Compl., Dkt.
[1-1] ¶ 4.) Plaintiff further alleges that on each occassion, cytotechnologists
employed by LabCorp negligently misinterpreted the tests and provided
inaccurate reports to Ms. Emerson’s physician. (Id. ¶¶ 4-5.) On April 24, 2009,
Plaintiff was diagnosed with “poorly differentiated focally keratinizing invasive
squamous cell carcinoma with metastasis into the periaortic lymph nodes.” (Id.
¶¶ 4, 6.) Plaintiffs allege that the cytotechnologists’ negligent failure to
recognize and report the extent and severity of cervical cancer precursor
conditions that presented in Ms. Emerson’s Pap tests proximately caused or
contributed to the delay in Ms. Emerson’s diagnosis and the metastasis of her
cancer. (Id. ¶¶ 5-6.)
On February 3, 2012, Plaintiffs served their First Request for Admissions
on LabCorp. (Dkt. [51].) LabCorp timely responded to the requests and made
objections. (Pls.’ Mot. to Compel, for Sanctions and for Expedited Hr’g, Dkt.
[66] at 1.) Despite the good faith efforts of the parties’ to resolve the
objections, LabCorp continues to object to six (6) of Plaintiffs’ requests for
admissions. Plaintiffs have filed the instant motion seeking to compel LabCorp
to respond to these six requests, which read as follows:
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Plaintiffs’ Request No. 1:
Meredith Emerson’s 2006 Pap slide, accession number 282-G150357-0, contains atypical and dysplastic squamous cells.
Plaintiffs’ Request No. 2:
Meredith Emerson’s 2007 Pap slide, accession number 285-G157300-0, contains high grade dysplastic squamous cells, consistent
with HSIL.
Plaintiffs’ Request No. 3:
Meredith Emerson’s 2008 Pap slide, accession number 337-G157395-0, contains high grade dysplastic squamous cells, bloody
diathesis and cells consistent with invasive squamous cell
carcinoma.
Plaintiffs’ Request No. 4:
A majority of the 22 fields of view presented to the cytotechnologist
who reviewed Meredith Emerson’s 2007 Pap slide, accession
number 285-G15-7300-0, contains either atypical squamous cells,
high grade dysplastic squamous cells or both.
Plaintiffs’ Request No. 5:
A majority of the 22 fields of view presented to the cytotechnologist
who reviewed Meredith Emerson’s 2008 Pap slide, accession
number 337-G15-7395-0, contains either high grade dysplastic
squamous cells, cells consistent with invasive squamous cell
carcinoma or both.

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Plaintiffs’ Request No. 6:
Neither Meredith Emerson’s 2006 Pap slide, accession number
282-G15-0357-0 nor her 2007 Pap slide, accession number 285G15-7300-0 contains cells or debris consistent with invasive
squamous cell carcinoma.
(Id. at 2-8.)
LabCorp initially objected to these requests on several grounds, including
that the requests improperly sought disclosure of expert opinion at a time and in
a manner not permitted under the Federal Rules of Civil Procedure. (Id. at 2-9.)
In opposition to Plaintiffs’ Motion to Compel, for Sanctions and for Expedited
Hearing, LabCorp renews its objection to these requests, arguing that the
requests “seek untimely and improper disclosure of expert opinions.”
(LabCorp’s Resp. to Pls.’ Mot. to Compel, for Sanctions and for Expedited
Hr’g (“LabCorp’s Response”), Dkt. [72] at 8.) The Court considers the
propriety of LabCorp’s objection and, in turn, whether sanctions or an
expedited hearing are warranted.
Discussion
I.

Legal Standard
Requests for admissions are governed by Federal Rule of Civil Procedure

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36, which states, in pertinent part, “A party may serve on another party a
written request to admit . . . the truth of any matters within the scope of Rule
26(b)(1) relating to . . . facts, the application of law to fact, or opinions about
either . . . .” Fed. R. Civ. P. 36. Rule 26(b)(1), in turn, permits the discovery of
“any nonprivileged matter that is relevant to any party’s claim or defense . . . .”
Fed. R. Civ. P. 26(b)(1). The purpose of requests for admissions is to “establish
admissions . . . about which there is no real dispute.” 7 Moore’s Fed. Practice §
36.02 (3d ed.).
Discovery of expert opinion is given particular treatment under Rule 26.
Rule 26(b)(4)(D) governs discovery from consulting experts, i.e., experts
“retained or specially employed by another party in anticipation of litigation or
to prepare for trial and who [are] not expected to be called as [ ] witness[es] at
trial.” Under this Rule, parties may not discover opinions held by consulting
experts unless they show “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). The opinions of testifying
experts, on the other hand, properly may be discovered through reports and
depositions. Fed. R. Civ. P. 26(a)(2) and 26(b)(4)(A). These disclosures must
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be made, however, at the times specified by the court. Fed. R. Civ. P.
26(a)(2)(D).
II.

Plaintiff’s Motion
As stated above, Plaintiffs move the Court to compel Defendant LabCorp

to respond to their requests for admissions regarding the content and
presentation of Ms. Emerson’s Pap slides. LabCorp objects on grounds that the
requests call for the disclosure of expert opinions in a manner and at a time not
permitted by the Federal Rules or the Scheduling Order in place in this case.
The Court agrees with LabCorp and finds that it is not required to respond to
the disputed requests for admissions.
As a threshold matter, the Court agrees with LabCorp that the requests
for admissions at issue call for the disclosure of expert opinions, as they seek
“scientific, technical, or otherwise specialized” information. See Fed. R. Evid.
702 (defining expert opinion as one involving “scientific, technical, or other
specialized knowledge”); U.S. v. Mejia, 545 F.3d 179, 188-89 (2d Cir. 2008)
(“[E]xpert testimony is called for when the untrained layman would be unable
intelligently to determine the particular issue in the absence of guidance from an
expert.”) (internal quotation marks omitted). Plaintiffs try to avoid this
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conclusion by arguing that the contested requests for admission do not seek
expert opinions but rather opinions of fact witnesses:
LabCorp is in the business of interpreting cells on Pap slides.
LabCorp is certified by the government to make such
determinations. LabCorp’s interpretation of Meredith Emerson’s
slides is the subject of this litigation. To assert that only
LabCorp’s retained litigation experts can offer opinions on the type
cells on the slides is patently false. Indeed, LabCorp has
represented to the Court that the cytotechnologists who interpreted
Meredith’s slides will be presented as fact witnesses.
(Pls.’ Reply Br. in Supp. of Mot. to Compel, for Sanctions and for Expedited
Hr’g (“Pls.’ Reply”), Dkt. [74] at 3 (emphasis in original).) The Court finds
this argument to be of no avail.
First, the fact that LabCorp “is in the business of interpreting cells on Pap
slides” does not affect the nature of a LabCorp representative’s opinion on the
content of Ms. Emerson’s Pap slides. Under the Federal Rules of Evidence, an
opinion that requires “scientific, technical, or other specialized knowledge” may
only be expressed by an “expert” qualified by “knowledge, skill, experience,
training, or education.” Fed. R. Evid. 702(a). Accordingly, any representative
of LabCorp who offers an opinion on the content of Ms. Emerson’s Pap slides
may do so only in the capacity of an “expert.” While it is true that LabCorp

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will present the cytotechnologists who read Ms. Emerson’s Pap slides as fact
witnesses, these cytotechnologists will not offer opinions as to the types of cells
that presented on Ms. Emerson’s slides. (Oct. 17, 2011 Hr’g Tr. at 14:8-13.)
On the contrary, they will testify only to the fact that they interpreted Ms.
Emerson’s slides in a particular way on a particular date. (Id. at 18:17-19:1.)
As counsel for LabCorp explained before the Court,
[The cytotechnologists who interpreted Ms. Emerson’s slides] will
testify to the historic fact that the records show I reviewed this
slide and this is my report and I have no reason to dispute it. But
we will not be putting these fact witnesses on to defend their read
or to show the jury why it was right. They are not going to be
offering that kind of testimony involving that expertise. It is an
undisputed fact what they interpreted the slide to be back in 2006,
for example; and they are not going to be putting forth testimony to
justify that. That’s simply not the role of a fact witness in this
case.
(Id.) Accordingly, LabCorp has not taken any position in this litigation
inconsistent with its objection that the requests for admissions demand an
interpretation of Ms. Emerson’s Pap slides, which can only be given through
expert opinion.
Second, Plaintiffs’ argument is inconsistent with Plaintiffs’ counsel’s
earlier representations to Defendant and the Court that it would not question

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fact witnesses about the content of Ms. Emerson’s slides. As the Court found in
its December 16, 2011 Order, Plaintiffs’ counsel agreed with Defendant’s
counsel that “fact witnesses cannot be questioned about any of Mrs. Emerson’s
slides or photomicrographs of Mrs. Emerson’s slides.” (Dkt. [40] at 2.) (See
also Dkt. [33-1] (correspondence between Plaintiffs’ counsel and Defendant’s
counsel confirming this to be the parties’ agreement).) In any event, as stated
above, the requests for admissions demand an interpretation of Ms. Emerson’s
Pap slides; thus, as LabCorp argues, “a proper response obviously requires
scientific, technical, or other specialized knowledge” (LabCorp’s Response,
Dkt. [72] at 8)–i.e., an expert opinion.
Having concluded that the requests for admissions require disclosure of
expert opinions, the Court finds the requests improper under the Federal Rules
and this Court’s Scheduling Order. To the extent the requested opinions are
held by non-testifying or consulting experts, whom LabCorp has retained only
in anticipation of the litigation and not to testify at trial, they can only be
discovered upon a showing of exceptional circumstances. Fed. R. Civ. P.
26(b)(4)(D). Plaintiffs have not even endeavored to make this showing, having
argued instead that the requests do not call for expert opinions. Accordingly,
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Plaintiffs at this time are not entitled to disclosure of any opinions held by
LabCorp’s consulting experts.
To the extent the requested opinions are held by testifying experts, these
opinions can only be discovered through expert reports, under Federal Rule
26(a)(2), or through depositions, under Federal Rule 26(b)(4)(A). Furthermore,
these disclosures must be made “at the time and in the sequence that the court
orders.” Fed. R. Civ. P. 26(a)(2)(D). Pursuant to the Scheduling Order in place
in this case, the expert witness reports that must be disclosed under Federal
Rule 26(a)(2) are not due until “30 days after the close of fact discovery, May
14, 2012.”1 (Consent Am. Scheduling Order, Dkt. [60] at 2.) Accordingly,
Plaintiffs at this time are not entitled to disclosure of any opinions held by
LabCorp’s testifying experts.
In sum, the Court finds LabCorp’s objections to Plaintiffs’ requests for
admissions to be well-founded. There are thus no grounds on which to compel
LabCorp to respond. Given that LabCorp’s objections are proper, sanctions

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Under Federal Rule 26(b)(4)(A), the deposition of a testifying expert “may be
conducted only after the report is provided.”
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against LabCorp are not warranted. Nor is an expedited hearing warranted.
Accordingly, Plaintiffs’ motion is DENIED in its entirety.
Conclusion
In accordance with the foregoing, Plaintiffs’ Motion to Compel Response
to Requests for Admissions, for Sanctions and for Expedited Hearing [66] is
hereby DENIED.
SO ORDERED, this 1st day of May, 2012.

_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE

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