Hudson v. ArcelorMittal LLC et al

Filing 28

OPINION and ORDER DENYING 25 Motion to Compel the Limited Non-Expert Medical Discovery Depositions of Corner Charles "Chuck" Harris and Dr. Sammi M. Dali, M.D. Signed by Magistrate Judge Andrew P Rodovich on 1/24/2017. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TODD HUDSON, as personal representative
of the Estate of WILLIAM HUDSON, Deceased,
Plaintiff,
v.
ARCELORMITTAL BURNS HARBOR,
LLC formerly known as ISG BURNS
HARBOR, LLC,
Defendant.

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Case No. 2:16-cv-41

OPINION AND ORDER
This matter is before the court on the Motion to Compel the Limited Non-Expert Medical
Discovery Depositions of Coroner Charles “Chuck” Harris and Dr. Sammi M. Dali, M.D. [DE
25] filed by the defendant, ArcelorMittal Burns Harbor, LLC, formerly known as ISG Burns
Harbor, LLC, on December 2, 2016. For the following reasons, the motion is DENIED.
Background
William Hudson died while snowplowing at the ArcelorMittal facility as an employee of
Tranco Industrial Services, Inc., on January 9, 2014. The plaintiff has alleged that the defendant,
ArcelorMittal, failed to warn Hudson of a manhole buried under seventeen inches of snow.
Hudson hit the manhole cover, triggering a cardiac event that lead to his death.
ArcelorMittal during fact discovery informed the plaintiff of its intention to subpoena
Charles Harris and Dr. Sammi M. Dali for depositions in their capacity as non-expert witnesses.
The plaintiff indicated that Harris and Dr. Dali were retained experts and their depositions were
governed by the expert discovery deadlines. The deadlines, as set in the case management order,
indicate that the plaintiff’s expert witness disclosures and reports are due by March 15, 2017.

Harris was employed as the Porter County’s Coroner, and Dr. Dali treated Hudson for
several years at the LaPorte Hospital. ArcelorMittal is seeking their testimony regarding their
observations, diagnoses, treatment, and personal knowledge of Hudson’s physical condition and
medical history up to and immediately after his death. Therefore, ArcelorMittal has requested to
depose Dr. Dali and Harris in their non-expert witness capacities and again as the plaintiff’s
retained experts in the appropriate stages of this matter.
Discussion
A party may “obtain discovery regarding any matter, not privileged, that is relevant to the
claim or defense of any party, including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things.” Federal Rule of Civil Procedure
26(b)(1). For discovery purposes, relevancy is construed broadly to encompass “any matter that
bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or
may be in the case.” Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002)
(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 2389, 57 L.
Ed. 2d 253 (1978)). Even when information is not directly related to the claims or defenses
identified in the pleadings, the information still may be relevant to the broader subject matter at
hand and meet the rule’s good cause standard. Borom v. Town of Merrillville, 2009 WL
1617085, at *1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods., Inc. v. Arista Records, Inc.,
214 F.R.D. 496, 502 (S.D. Ind. 2003)); see Adams v. Target, 2001 WL 987853, at *1 (S.D. Ind.
July 30, 2001) (“For good cause, the court may order discovery of any matter relevant to the
subject matter involved in the action.”); Shapo v. Engle, 2001 WL 629303, at *2 (N.D. Ill. May
25, 2001) (“Discovery is a search for the truth.”).

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A party may seek an order to compel discovery when an opposing party fails to respond
to discovery requests or has provided evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)–(3). The burden “rests upon the objecting party to show why a particular
discovery request is improper.” Gregg v. Local 305 Ibew, 2009 WL 1325103, at *8 (N.D. Ind.
May 13, 2009) (citing Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 449–50
(N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co., 2009 WL 1325405, at *3 (N.D. Ind. May
13, 2009) (internal citations omitted); Carlson Rests. Worldwide, Inc. v. Hammond Prof’l
Cleaning Servs., 2009 WL 692224, at *5 (N.D. Ind. March 12, 2009) (internal citations omitted).
The objecting party must show with specificity that the request is improper. Cunningham v.
Smithkline Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing Graham v. Casey’s Gen.
Stores, 206 F.R.D. 253, 254 (S.D. Ind. 2002)). That burden cannot be met by “a reflexive
invocation of the same baseless, often abused litany that the requested discovery is vague,
ambiguous, overly broad, unduly burdensome or that it is neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence.” Cunningham, 255 F.R.D. at 478
(citing Burkybile v. Mitsubishi Motors Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted). Rather, the court, under its broad discretion,
considers “the totality of the circumstances, weighing the value of material sought against the
burden of providing it, and taking into account society’s interest in furthering the truth-seeking
function in the particular case before the court.” Berning v. UAW Local 2209, 242 F.R.D. 510,
512 (N.D. Ind. 2007) (examining Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th
Cir. 2002)) (internal quotations and citations omitted); see Hunt v. DaVita, Inc., 680 F.3d 775,
780 (7th Cir. 2012) (explaining that the district court has broad discretion in supervising
discovery).

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ArcelorMittal has argued that Dr. Dali and Harris possess crucial facts and opinions that
were not formed in anticipation of litigation. ArcelorMittal contends that it is entitled to take Dr.
Dali’s deposition as a non-expert regarding the medical care and treatment provided to Hudson
and his personal knowledge of Hudson’s cardiac health. Also, ArcelorMittal contends that it is
entitled to question Harris about his education and professional background, his experience as a
coroner, his observations relating to investigating the decedent’s cause of death, his basis for
issuing his initial verdict, and his personal knowledge of the decedent.
The plaintiff has indicated that the information and facts that ArcelorMittal is seeking
from Dr. Dali and Harris in their non-expert capacity is foundational to their expert opinions.
The plaintiff indicated that Dr. Dali’s and Harris’ observations of Hudson alone do not establish
the basis of an expert opinion, but combined with the information later obtained and all of their
training, knowledge, and experience form an expert opinion. Dr. Dali’s and Harris’ opinions are
based on first-hand knowledge and information supplied by plaintiff’s counsel.
ArcelorMittal has argued that it would be prejudiced by depriving it the ability to develop
a factual record outside the expert discovery period if it cannot take the depositions of these
witnesses prior to the close of fact discovery on February 15, 2017. ArcelorMittal contends that
it would be limited in its ability to provide its consultants facts that were testified to by Dr. Dali
and Harris in a timely manner. Also, ArcelorMittal contends judicial economy is served by
taking two depositions to prevent forfeiture of critical fact discovery or having to re-open
discovery.
The plaintiff indicated that ArcelorMittal would only wait an additional month until
March 15, 2017, to depose Dr. Dali and Harris as retained experts. Also, the plaintiff contends
that ArcelorMittal will be able to ask the same questions under the same conditions in one

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deposition. Therefore, considering time and expense judicial economy requires that Dr. Dali and
Harris be deposed once.
The court sees no reason for ArcelorMittal to take the depositions of Dr. Dali and Harris
twice. According to the case management schedule set by the court, the parties are to complete
fact discovery and non-expert medical discovery by February 15, 2017, the plaintiff’s expert
witness disclosures and written reports are due by March 15, 2017, and the ArcelorMittal’s
expert witness disclosures and written reports are due by May 18, 2017. ArcelorMittal will have
adequate time after receiving the plaintiff’s reports to depose Dr. Dali and Harris, as well as
prepare its own consultants with the facts testified to by Dr. Dali and Harris.
Based on the foregoing reasons, the Motion to Compel the Limited Non-Expert Medical
Discovery Depositions of Coroner Charles “Chuck” Harris and Dr. Sammi M. Dali, M.D. [DE
25] is DENIED.
ENTERED this 24th day of January, 2017.
/s/ Andrew P. Rodovich
United States Magistrate Judge

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