Manker, Jr. et al v. The Zurich Services Corporation
Filing
41
ORDER denying 33 Motion for leave to take depositions. Signed by Magistrate Judge G. R. Smith on 8/27/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
LAWRENCE MANKER, JR., et al.,
Plaintiffs,
I,.,
THE ZURICH SERVICES
CORPORATION,
Defendant.
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Case No. CV412-089
ORDER
Before the Court in this personal-injury, diversity action is the
plaintiffs' motion for leave to take 50 medical-provider depositions. Doc.
33. Some background explains the unusual amount. The Zurich Services
Corporation provided inspection services to a sugar processing plant that
in 2008 suffered an explosion and fire, killing 14 people.' Doc. 1 at 3-4.
Lawrence Manker, Jr. and Malcolm Carlton Frazier were burned in the
conflagration, and Frazier later died. Manker, Frazier's estate, and
Frazier's child brought this negligent-inspection case against Zurich. Id.
Plaintiffs say they delivered to Zurich verified copies of their medical
For the purposes of this Order, the Court is accepting the facts alleged in the
Complaint as true.
treatment and billing records. Doc. 33 at 1. They comply, they contend,
with "the Georgia statute which allows hospitals and doctors to provide
records without the necessity of submitting to the time consuming
demands of depositions and which make such verification sufficient to
prove authenticity without further proof or need for a deposition in
Georgia state courts." Id. Plaintiffs need to get the records admitted at
trial to prove their damages.
Zurich refuses to admit that the records are authentic. Id. at 1-2.
Plaintiffs insist that there is no reason to doubt authenticity. Id. at 2. But
since Zurich refuses, plaintiffs will do this the hard way. Because 50
medical providers were involved in the treatments, plaintiffs want to
depose all 50 of them, but in light of Zurichs' intransigence they should be
able to exclude that deposition count from the 10-deposition limit imposed
by Fed. R. Civ. P. 30 and 31. Id. at 2-3.
Zurich opposes the motion. Doc. 37. Plaintiffs, it points out, did not
just ask it to admit that the documents are authentic. Some of the records
include medical billing, and plaintiffs want Zurich to admit that the
amounts are reasonable. 2 Id. at 1. Even at that, says Zurich, the plaintiffs
There is, of course, a material difference between establishing a medical bill's
authenticity and the reasonableness its amount. For that matter, the burden is on the
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have failed "to provide the proper verification of certain records in various
Requests [to Admit, so Zurich] was unable to admit to the authenticity of
each of these documents." Id. And all Zurich asks, it points out, is
"proper verification through an affidavit or certification by the relevant
records custodians." Id.
Plus, it contends, it would be simpler "to defer this issue until a later
date to determine if there is a true authentication issue that cannot be
resolved. If it appears later that it will be necessary to take a few
depositions which would exceed the allowable limit, relief can be sought at
that time, or agreement made by counsel." Id. Plaintiffs, however, won't
agree. Id. Zurich shows that it attempted to resolve that uncertainty
informally but plaintiffs have failed to respond. Id. at 2.
The Court will deny plaintiffs' motion without prejudice to renew it.
For starters, they reference a "Georgia statute" governing authenticity,
but fail to cite to it. Plus, relevancy is the hallmark of all discovery
requests, so it is worth at least noting some relevancy-impacting
plaintiffs to provide competent evidence enabling the factfinder to arrive at the
reasonable value for awarding their medical expense damages. See, e.g. Bennett v.
Moore, 312 Ga. App. 445, 456-57 (2011); Allen v. Spiker, 301 Ga. App. 893, 896 (2009)
(the law requires proof that a plaintiffs medical expenses in a personal injury action
arose from the injury sustained, and that they are reasonable and necessary before
they are recoverable); 13 GA. JUR, PERSONAL INJURY AND TORTS § 11:29 (Jun. 2012).
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principles. The Court has located Georgia statutes on authentication and
admissibility. First, there is O.C.G.A. § 24-7-8:
(a) As used in this Code section, the term "medical records" means
all written clinical information which relates to the treatment of
individuals, when such information is kept in an institution.
(b) Medical records or reproductions thereof, when duly certified by
their custodians, need not be identified at the trial and may be used
in any manner in which records identified at the trial by the
custodian could be used.
O.C.G.A. § 24-7-8. That statute certainly lightens a party's litigation load.
But some medical records contain opinions and diagnoses, and if they
are not admissible at trial then that alters the inquiry into their relevancy
and thus their authenticity. And "opinion/diagnosis" medical records in
fact are generally inadmissible under Georgia's Business Records Act,
O.C.G.A. § 24-3-14, but O.C.G.A. § 24-3-18 enables their admissibility in
narrative form, upon proper notification to the opposing party.
Nevertheless, the parties here are in federal court. Yet, they seem
oblivious to the need to resolve whether state or federal law applies.
In that respect,
Federal Rule 803(6) provides for the admission of business records and is
broader than the Georgia equivalent in that Rule 803(6) specifically allows
statements of medical diagnoses and opinions. Medical records and reports are
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Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1159 (11th Cir.
2004) (although state law controls substantive issues in diversity action,
admissibility of evidence in federal courts is governed by federal law);
Costa v. Sam's East, Inc., 2012 WL 3206362 at * 6 (S.D. Ala. Aug. 6, 2012).
Indeed, their briefs do not even cite any authority at all, let alone
precedent demonstrating how admissibility standards impact the
relevance and thus discoverability of what they now contest. And federal
evidentiary rules cover this area. See, e.g., Johnson v. Kilgore, 2012 WL
3544916 at * 4 (W.D. Va. Aug. 16, 2012) (applying Fed. R. Evid. 901(a) to
note that authentication is a condition precedent to the admissibility of
medical records); Schober v. 5MG Pneumatics, Inc., 2000 WL 1911684 at
*2 (S.D. Ind. Dec. 4, 2000) (discussing procedure to admit and
authenticate medical records). Any renewed motion should cover this
ground.
Finally, "{c]ounsel are reminded that Fed. R. Civ. P. (26(c) and
37(a)(2) require a party seeking a protective order or moving to compel
thus admissible under the federal business records exception when they would
be excluded under Georgia's Business Records Act, O.C.G.A. § 24-3-14.
AGNOR'S GA. EVIDENCE §
11:41 (4th ed. Nov. 2011).
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discovery to certify that a good faith effort has been made to resolve the
dispute before coming to court." S.D. Ga. LR 26.4. It is not believable
that plaintiffs actually do, want to depose 50 individuals just to get their
medical records into evidence. What's more believable is that they are de
facto moving this Court to compel Zurich's to respond to its discovery
requests to admit. And if that this the case, then they need to certify
their good faith effort to resolve this dispute informally before consuming
this Court's resources. Part of that discussion must include the
federal-state law question noted above.
The Court therefore DENIES plaintiffs' motion for leave to take 50
depositions. Doc. 33. This denial is without prejudice to their right to
renew the motion -- as a motion to compel -- after the parties confer.
SO ORDERED this 27day of August, 2012.
UNITED"sliLATES
JUDGE
SOUTHERN DISTRICT OF GEORGIA
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