Motoyama v. Transportation, Department of, State of Hawaii et al
Filing
93
MEMORANDUM AND OPINION AND ORDER REGARDING DISCOVERY LETTER BRIEFS. Signed by JUDGE RICHARD L. PUGLISI on 1/10/12. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ELIZABETH-ANN K. MOTOYAMA,
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Plaintiff,
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vs.
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STATE OF HAWAII, DEPARTMENT
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OF TRANSPORTATION; GLENN
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OKIMOTO, in his official
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capacity; JOHN DOES 1-10;
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JANE DOES 1-10; DOE
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GOVERNMENT AGENCIES 1-10; DOE )
CORPORATIONS 1-10; DOE
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PARTNERSHIPS 1-10; DOE
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INDIVIDUALS 1-10,
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Defendants.
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)
CIVIL NO. 10-00464 ACK-RLP
MEMORANDUM OPINION AND ORDER
REGARDING DISCOVERY LETTER
BRIEFS
MEMORANDUM OPINION AND ORDER REGARDING DISCOVERY LETTER BRIEFS
Defendant State of Hawaii, Department of Transportation
and Glenn Okimoto, in his official capacity as Director of
Department of Transportation (“Defendants”) and Plaintiff
Elizabeth-Ann K. Motoyama submitted letter briefs requesting
expedited discovery assistance pursuant to Local Rule 37.1 of the
Local Rules of Practice for the United States District Court for
the District of Hawaii.1
After carefully reviewing the
submissions and relevant legal authority, the Court orders as
follows:
1
Although the Court permitted letter briefs that were not
in compliance with Local Rule 37.1 in this instance, the parties
are directed to adhere to the requirements of the rule for all
future submissions.
1.
Release to Obtain Medical Records
Plaintiff claims that she suffers from depression,
anxiety, diabetes, and dental disease as a result of the claims
See Pl.’s Depo. Tr. at 225-26, 241-42.
alleged in this lawsuit.
Plaintiff has also named as expert witnesses in this case her
primary care physician, treating psychiatrist, behavioral
therapists, orthopedic surgeons, occupational health specialist,
and physical therapist.
See Docket No. 69 at 2-5.
The Court
finds that Plaintiff has put at issue in this case her mental and
physical health.
Pursuant to Rule 26(a)(1)(A)(iii), Plaintiff is
required to make available documents which evidence her injuries.
Therefore, Defendants are entitled to obtain the medical records
regarding those injuries.
Although it appears that Plaintiff has
made multiple productions of various medical records, Defendants
are entitled to subpoena the relevant records directly from
Plaintiff’s health care providers so that the documents obtained
can be verified for purposes of admissibility.
The Court agrees, however, that the scope of the
medical records requested should be reasonably limited in time
and to protect Plaintiff’s privacy rights.
Although Plaintiff
began her employment with Defendants in 2007, there is evidence
that Plaintiff was seeking care prior to that time for issues
that may be related to depression and anxiety.
Tr. at 228-30.
See Pl.’s Depo.
Defendants are entitled to obtain medical records
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directly from Plaintiffs’ providers for the time period from
January 2002 to the present.
The Court finds that this ten-year
limitation is a reasonable compromise between Plaintiffs’ privacy
rights and Defendants’ rights to obtain information related to
Plaintiffs’ potential pre-existing conditions.
Additionally, the
medical records obtained shall be used by the parties solely for
the purpose of this case.
Defendants are ORDERED to prepare a
written release form limiting the request to documents from
January 2002 to the present and submit it to Plaintiff within
seven days following issuance of this Order.
Plaintiff is
ORDERED to sign the release and return it to Defendants within
five days of receiving it.
2.
Independent Medical Examination
Pursuant to Federal Rule of Civil Procedure 35(a)(1), a
court may order “a party whose mental or physical condition . . .
is in controversy to submit to a physical or mental examination.”
To justify an examination under Rule 35, Defendants must
demonstrate that Plaintiff has placed her mental condition “in
controversy,” and “good cause” for the examination.
v. Holder, 379 U.S. 104, 118 (1964).
Schlagenhauf
The Court finds that
Defendants are entitled to require Plaintiff to submit to an
independent medical examination (“IME”).
First, as noted above,
Plaintiff has put her mental condition at issue in this case.
Second, in determining good cause, courts generally consider
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various factors including, the possibility of obtaining desired
information by other means, whether plaintiff plans to prove her
claim through testimony of expert witnesses, whether the desired
materials are relevant, and whether plaintiff is claiming ongoing
conditions.
Here, Plaintiff has identified several expert
witnesses that she plans to call related to her medical
conditions, her current mental and physical condition is relevant
to damages in this case, and Plaintiff claims that her conditions
are ongoing.
Accordingly, Defendants have adequately
demonstrated that Plaintiff should be ordered to submit to an
IME.
The Court ORDERS that Plaintiff’s IME take place before
March 1, 2012, and last no longer than three hours.
Plaintiff’s
request that the IME be spread out over several days if it lasts
longer than one hour is not reasonable.
Although the Court
understands that Plaintiff has certain limitations on her time in
the coming months, it is reasonable that she make herself
available for a three-hour time period for the IME before March
1, 2012, given the upcoming expert disclosure deadlines.
The
Court ORDERS the parties to confer in writing and agree upon a
date and time for the IME within the next seven days.
3.
Expert Reports
According to the Amended Rule 16 Scheduling Order dated
December 14, 2011, Plaintiff’s expert disclosures are not due
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until February 22, 2012; Defendant’s are due March 22, 2012.
Docket No. 88.
See
Although both parties’ arguments regarding the
necessary disclosures are premature, the Court will address those
concerns in an effort to prevent future disputes on this issue.
Before the Rule 16 Schedule Order was amended in mid-December,
Plaintiff submitted expert disclosures under the prior scheduling
order naming the following expert witnesses to testify regarding
her medical conditions:
Bryan T. Tanabe, M.D.; Michael V.
McCanless, M.D.; Renee Nama Bells, Ph.D.; Miki Kurakaya,
L.C.S.W.; David G. Mathews, M.D.; Mark D. Santi; Joseph D.
Costanzo; Kacy M. Nekoba; and an unnamed expert in dental
disease.
See Docket No. 69 at 2-5.
The Court disagrees with Defendants’ assertion that
Plaintiff is required to provide reports from all of these
experts.
Under Federal Rules of Civil Procedure Rule
26(a)(2)(A), “a party must disclose to the other parties the
identity of any witness it may use at trial to present [expert
testimony].”
Fed. R. Civ. P. 26(a)(2)(A).
Rule 26(a)(2)(A)’s
disclosure requirement applies to all witnesses providing expert
testimony, including percipient witnesses with direct knowledge
of the facts of the case.
See Durham v. Cnty. of Maui, Civil No.
08-00342 JMS/RLP, 2011 WL 2532690, at *3-*4 (D. Haw. June 23,
2011) (citing Musser v. Gentiva Health Servs., 356 F.3d 751, 758
(7th Cir. 2004) (“even treating physicians and treating nurses
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must be designated as experts if they are to provide expert
testimony”)).
Rule 26(a)(2)(B) provides that the expert disclosure
must also include a written report if the witness is specifically
employed or retained to give expert testimony in the case.
R. Civ. P. 26(a)(2)(B) (emphasis added).
Fed.
Generally, treating
physicians are not “specifically employed or retained” for
purposes of providing expert testimony.
Goodman v. Staples The
Office Superstore, LLC, 644 F.3d 817, 824 (9th Cir. 2011).
However, “a treating physician is only exempt from Rule
26(a)(2)(B)’s written report requirement to the extent that his
opinions were formed during the course of treatment.”
Id. at
826.
Here, the following experts appear to be treating
health care providers:
Bryan T. Tanabe, M.D.; Michael V.
McCanless, M.D.; Renee Nama Bells, PhD.; Miki Kurakaya, L.C.S.W.;
David G. Mathews, M.D.; Mark D. Santi; Kacy M. Nekoba.
Accordingly, to the extent these witnesses’ testimony is limited
to opinions formed during the course of their treatment of
Plaintiff, Plaintiff is not required to provide expert reports
for those witnesses.
To the extent these witnesses are to
provide testimony regarding opinions they formed outside of the
course of treating Plaintiff, those witnesses would be required
to provide an written expert report.
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Based on Plaintiff’s initial expert witness disclosure,
it appears that two medical experts are being asked to provide
opinion testimony that was not formed during the course of
treating Plaintiff.
First, it appears that Joseph D. Costanzo is
going to be asked to provide expert testimony regarding his
general experience related to requests for reasonable
accommodation.
See Pl.’s Depo. Tr. at 238; Docket No. 69 at 4.
Second, it appears that the “unnamed expert in dental disease” is
to provide testimony unrelated to any treatment of Plaintiff.
Pl.’s Depo. Tr. at 241-42; Docket No. 69 at 5.
Plaintiff would
be required to provide written expert reports for these witnesses
pursuant to Rule 26(a)(2)(B).
These same requirements apply to
any experts identified by Defendants, including rebuttal expert
witnesses.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, JANUARY 10, 2012
_____________________________
Richard L. Puglisi
United States Magistrate Judge
MOTOYAMA V. STATE OF HAWAII, ET AL., CIVIL NO. 10-00464 ACK-RLP;
MEMORANDUM OPINION AND ORDER REGARDING DISCOVERY LETTERS
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