Medical Assurance Company Inc The v. Weinberger MD et al

Filing 289

OPINION AND ORDER granting 216 Motion to Amend Answer to Amended Complaint; denying 232 Motion to Strike Untimely Answer ; denying 234 Motion for Leave to Serve in Excess of Twenty-Five Interrogatories; denying 238 Motion to Compel Answers to Discovery; granting 240 Motion to Reopen Written Discovery. Signed by Magistrate Judge Andrew P Rodovich on 5/26/11. (mlc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LAFAYETTE DIVISION
THE MEDICAL ASSURANCE COMPANY,
INC.,
Plaintiff
v.
MARK S. WEINBERGER, M.D.,
et al.,
Defendants

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Case No. 4:06 cv 117

OPINION AND ORDER
This matter is before the court on the Motion to Amend
Answer to Amended Complaint and to Assert Counterclaim [DE 216]
filed by the Verhoeve defendants on February 25, 2011; the Motion
to Strike Untimely Answer [DE 232] filed by the plaintiff,
Medical Assurance Company, Inc., on March 10, 2011; the Motion
for Leave to Serve in Excess of Twenty-Five Interrogatories [DE
234] filed by the Indiana Patient’s Compensation Fund on March
15, 2011; the Motion to Compel Answers to Discovery [DE 238]
filed by PCF on March 23, 2011; and the Alternative Motion to
Reopen Written Discovery [DE 240] filed by PCF on March 23, 2011.
For the following reasons, the Motion to Amend Answer to
Amended Complaint and to Assert Counterclaim [DE 216] is GRANTED,
the Motion to Strike Untimely Answer [DE 232] is DENIED, the
Motion for Leave to Serve in Excess of Twenty-Five Interrogatories [DE 234] is DENIED, the Motion to Compel Answers to Discov-

ery [DE 238] is DENIED, and the Alternative Motion to Reopen
Written Discovery [DE 240] is GRANTED.
Background
This matter arises from a contract dispute concerning
liability for approximately 350 pending medical malpractice
claims against Dr. Mark S. Weinberger and the business entities
he owned (the Weinberger defendants).

This case originally was

filed in 2007 and was subject to a stay until July 13, 2010.

At

the time the case was filed, Weinberger could not be located and
recently was arrested on federal criminal charges.

On appeal,

the Seventh Circuit lifted the stay, and the case now is moving
toward final disposition.
Medical Assurance filed an amended complaint on December 21,
2006. The Verhoeve defendants filed a motion for leave to amend
their answer on February 25, 2011, because of the recent developments in the case, including Weinberger’s arrest and the lifting
of the order to stay the proceedings.
The Weinberger defendants also were served with Medical
Assurance’s amended complaint on January 18, 2011, rendering
their responsive pleading due on February 10, 2011.

The Wein-

berger defendants’ attorney withdrew days before the responsive
pleading was due without filing a response.

The Weinberger

defendants retained a new attorney, John J. Morse, on February

2

18, 2011.

Upon learning that an answer had not been filed, the

Weinberger defendants moved for an extension of time to April 30,
2011, to file an answer.

In an effort to expedite the case, the

court denied the extension.

The Weinberger defendants filed

their answer on March 7, 2011, and Medical Assurance now moves to
strike it as untimely.
Although discovery closed on December 31, 2010, the parties
have continued to conduct discovery.

At the January 7, 2011

status conference, the court noted that new discovery deadlines
would be set at the May 5, 2011, status conference.

Stephen W.

Robertson, Commissioner of the Indiana Department of Insurance
and Administrator of the Indiana Patient’s Compensation Fund
("PCF"), proceeded to serve Medical Assurance with its second set
of interrogatories, which totaled 33. PCF now moves to re-open
discovery and for leave to serve in excess of 25 interrogatories.
Medical Assurance opposes PCF’s motions and has not responded to
PCF’s second set of interrogatories, so PCF filed a motion to
compel responses to its second set of interrogatories.
Discussion
The Verhoeve defendants first request leave to file an
amended answer.

Federal Rule of Civil Procedure 15(a) provides

that "a party may amend the party's pleading only by leave of
court or by written consent of the adverse party; and leave shall

3

be freely given when justice so requires."

Foman v. Davis, 371

U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d. 222 (1962).

The

Supreme Court held that permission to amend shall be granted
absent any evidence of bad faith, dilatory motive, undue delay,
or unfair prejudice to the opposing party.
182, 83 S.Ct. at 230.

Foman, 371 U.S. at

See also Jackson v. Rockford Housing

Authority, 213 F.3d 389, 393 (7th Cir. 2000) ("The general rule
that amendment is allowed absent undue surprise or prejudice to
the plaintiff is widely adhered to by our sister courts of
appeal.").

The court also may deny leave because the amendment

is futile. Bethany Pharmacal Company, Inc. v. QVC, Inc., 241 F.3d
854, 861 (7th Cir. 2001) (citing Foman, 371 U.S. at 182, 83 S.Ct
at 230). Rule 15(a) is highly discretionary. The decision of the
court to deny leave to amend only violates this abuse of discretion standard "if 'no reasonable person could agree with the
decision.'"

Aldridge v. Forest River, Inc., 635 F.3d 870, 875

(7th Cir. 2011); Winters v. Fru-Con, Inc., 498 F.3d 734, 741 (7th
Cir. 2007) (quoting Butts v. Aurora Health Care, Inc., 387 F.3d
921, 925 (7th Cir. 2004)); Ajayi v. Aramark Business Services,
336 F.3d 520, 530 (7th Cir. 2003).
PCF opposes the Verhoeve defendants’ motion to amend on
three grounds.

First, he argues that allowing the amendment

would unfairly prejudice PCF because the Verhoeve defendants'

4

proposed counterclaim is premised upon confidential statements
made during settlement negotiations.

PCF is correct that state-

ments made during settlement negotiations are confidential.
Federal Rules of Evidence 408(a)(1) & (2); Estate of Sims ex rel.
Sims v. County of Bureau, 506 F.3d 509, 517 (7th Cir. 2007) (citing In re Young, 253 F.3d 926 (7th Cir. 2001)).

There is a

strong public policy in favor of promoting settlement.

Berg-

strom, Inc. v. Glacier Bay, Inc., 2010 WL 257253, *2 (N.D. Ill.
Jan. 22, 2010).

"Without confidentiality, the discussions and

exchange of information necessary to the settlement process may
not occur."

Bergstrom, 2010 WL 257253, at *2.

However, Rule 408 is not an absolute ban on the admissibility of statements made during settlement negotiations.

Rule 408;

23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice
and Procedure §5308 (1st 2010); Broadcort Capital Corp. v. Summa
Medical Corp., 972 F.2d 1183, 1194 (10th Cir. 1992).

Confidenti-

ality does not extend to information attained from sources independent of the settlement negotiations or to statements offered
for a purpose other than to "prove liability for or invalidity of
the claim or its amount".

See Rule 408; Grove Fresh Distribu-

tors, Inc. v. John Labatt Ltd., 888 F.Supp. 1427, 1441-42 (N.D.
Ill. 1995) (explaining that court cannot prevent disclosure of
information gained through means independent of the settlement

5

conference); Trans Union Credit Information Co. v. Associated
Credit Services, 805 F.2d 188, 192 (6th Cir. 1986)("Rule 408
excludes only evidence of conduct and statements made solely as
part of the settlement negotiations, and not statements and
conduct made at the meeting which are unrelated to such compromise negotiations."); 23 Charles A. Wright & Kenneth W. Graham,
Jr., Federal Practice and Procedure §5308 (1st 2010).

Nor does

Rule 408 prevent disclosure of evidence discussed in settlement
negotiations during discovery.

White v. Kenneth Warren & Son,

Ltd., 203 F.R.D. 364, 368 (N.D. Ill. 2004)(explaining that Rule
408 only applies to the admissibility of evidence at trial and
does not protect evidence from discovery).

Rule 408 is limited

to prohibiting disclosure at trial of statements made during
settlement negotiations introduced for the purpose of proving
liability.

White, 203 F.R.D. at 368.

As an initial matter, the Verhoeve defendants are requesting
to amend their responsive pleading, not to introduce such statements at trial, rendering Rule 408 inapplicable.

Moreover, the

Verhoeve defendants’ amended answer does not seek to introduce
statements made during settlement negotiations, nor is this the
appropriate time to determine the evidentiary basis supporting
the Verhoeve defendants' claim.

If the Verhoeve defendants do

6

not have admissible evidence to support their claim, this is more
appropriately contested on a motion for summary judgment.
Furthermore, PCF must do more than make unsupported conclusory statements alleging it will suffer prejudice.

See J.P

Morgan Chase Bank, N.A. v. Drywall Service & Supply Co., Inc.,
265 F.R.D. 341, 352 (N.D. Ind. 2010)(explaining that a finding of
unfair prejudice cannot be supported by conclusory statements).
PCF has failed to show that the basis of the Verhoeve defendants'
claim is predicated upon inadmissible information or that the
Verhoeve defendants could not have obtained the information from
a source independent from the settlement negotiations.

Absent a

more specific argument, PCF has failed to show that the proposed
amendment is improper and that permitting it will cause PCF to
suffer prejudice.
Second, PCF alleges that the Verhoeve defendants’ proposed
claim is not ripe.

PCF argues that because the court has not

determined the plaintiff’s duty to indemnify, the controversy
regarding the policy limits is not ripe for determination.

PCF

cites to several cases explaining that declaratory judgments
concerning indemnification are not ripe for determination.

The

Verhoeve defendants counter that they do seek a declaratory judgment directing Medical Assurance to indemnify the Weinberger
defendants in the underlying malpractice actions.

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Rather, they

argue that they are requesting a declaratory judgment explaining
the limits of the policy.
The distinction between a declaration of indemnity and a
declaration of a policy's limits, though fine, is determinable.
A declaration regarding an insurer's duty to indemnify before a
liability determination generally is considered not ripe, depriving the court of subject matter jurisdiction.

Lear Corporation

v. Johnson Electric Holdings Limited, 353 F.3d 580, 583 (7th Cir.
2003) (quoting Nationwide Insurance Company v. Zavalis, 52 F.3d
689, 693 (7th Cir. 1995)("The duty to indemnify is not ripe for
adjudication until the insured is in fact held liable in the
underlying suit.").

In contrast, courts generally have found

jurisdiction over declaratory judgments regarding "the validity
of a policy," and "the coverage of a liability policy." 10B
Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal
Practice and Procedure §2760 (3d 1998); City of Chicago v. Arvinmeritor, Inc., 2006 WL 3431910, *2 (N.D. Ill. Nov. 28, 2006)
("Furthermore, in the insurance context, claims over defense
obligations are generally always regarded as ripe for adjudication during pending primary lawsuits, even when it is unclear
whether the particular insurance policy contains a duty to
defend.").

8

The ripeness necessary for jurisdictional purposes requires
a "substantial controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgement." Nucor Corporation v. Aceros
Y Maquilas De Occidente, S.A. DE C.V., 28 F.3d 572, 577 (7th Cir.
1994) (quoting Maryland Casualty Company v. Pacific Coal & Oil
Company, 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826
(1941)).

See generally, Freedom From Religion Foundation, Inc.

v. Obama, ___ F.3d ___, 2011 WL 1405156, *1-2 (7th Cir. 2011)
(explaining that a party must suffer an injury to his own rights
to have standing).
The issue raised by the Verhoeve defendants’ proposed declaratory count is not so narrowly focused upon the question of
indemnity as to remove it from the court's jurisdiction.

Speci-

fically, the Verhoeve defendants seek a declaratory judgment
requiring the court to interpret the insurance policies which the
Weinberger defendants held to determine whether the aggregate
limits of the policies should be "stacked".1

See e.g., McGrath

v. Godshalk, 2007 WL 2746865, *4-5 (N.D. Ind. Sept. 18, 2007)
(finding that a complaint seeking declaratory judgment on the
issue of whether separate acts of negligence constitute a sepa-

1

Stacking is "[t]he process of obtaining benefits from a second policy
on the same claim when recovery from the first policy alone would be inadequate." Black’s Law Dictionary (9 th ed. 2009).

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rate occurrence under the terms of the insurance policy was ripe
for determination); Nucor, 28 F.3d at 577-579 (explaining whether
claims are separate occurrences under the policy).

See also

Grinenell Select Ins. Co. v. Baker, 362 F.3d 1005, 1006-1008 (7th
Cir. 2004)(interpreting anti-stacking clause in contract).
PCF essentially argues that because a decision on this
question could lead to a requirement of indemnification, it is
purely a question of indemnification and not ripe.

However, the

Verhoeve defendants’ allegations reach beyond the basic question
of indemnity.

The proposed counterclaim requests an interpreta-

tion of the contract regarding the aggregate limits and stacking
of the policies and does not require the court to determine if
Medical Asssurance will have to indemnify the Weinberger defendants.

See Employers Insurance of Wausau v. Burlington Northern

and Santa Fe Railway Company, 336 F.Supp.2d 637, 641 (E.D. Tex.
2003)(holding that declaratory judgment claim requiring the court
to determine if policy limits could be stacked was ripe even
though the underlying action was ongoing).

Therefore, the

Verhoeve defendants’ proposed counterclaim states a justiciable
claim.
PCF also opposes the Verhoeve defendants’ motion to amend,
arguing that their proposed claim amounts to a request for an
advisory opinion because there is no controversy of sufficient

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immediacy to warrant issuance of a declaratory judgment.
courts are prohibited from issuing advisory opinions.

Federal

Sierra

Club v. Morton, 405 U.S. 727, 732 n.3, 92 S.Ct. 1362, 31 L.Ed.2d
636 (1972).

"The term 'advisory opinion' is often just a conclu-

sion; it is what you call a decision that does not resolve an
actual case or controversy."

People of State of Illinois ex rel.

Barra v. Archer Daniels Midland Co., 704 F.2d 935, 941 (7th Cir.
1983).

Under Article III, the parties must present an actual

"case or controversy".

Environmental Barrier Co., LLC v. Slurry

Systems, Inc., 540 F.3d 598, 605 (7th Cir. 2008).

"The contro-

versy must be definite and concrete, touching the legal relations
of parties having adverse legal interests. . . .

It must be a

real and substantial controversy admitting of specific relief
through a decree of a conclusive character, as distinguished from
an opinion advising what the law would be upon a hypothetical
state of facts."

Public Service Commission of Utah v. Wycoff

Co., Inc., 344 U.S. 237, 242, 73 S.Ct. 236, 240, 97 L.Ed. 291
(1952).
The Seventh Circuit has recognized that a controversy,
sufficient to give rise to subject matter jurisdiction, may be
present in an indemnification action despite the contingency of
the underlying claims.

Bankers Trust Co. v. Old Republicans Ins.

Co., 959 F.2d 677, 680 (7th Cir. 1992).

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In reaching this conclu-

sion, the Seventh Circuit considered the "likelihood of liability
in the underlying litigation, the amount of possible damages, and
the ability to pay those damages if the party was found liable."
Casual Dining Development, Inc. v. QFA Royalties, LLC, 2008 WL
4186692, *3 (E.D. Wis. Sept. 5, 2008)(citing Bankers, 959 F.2d at
679-683).

The court explained that "Article III requires only a

probabilistic injury", and the extent of a suitable injury is a
matter of degree.

Bankers, 959 F.2d at 681.

When there is a

sufficient likelihood that the insurer will be liable for damages
and no suggestion that the recovery sought is grossly inflated,
it is within the district court’s discretion to accelerate consideration of a suit for indemnification.

Bankers, 959 F.2d at

681; Wooten v. Loshbough, 951 F.2d 768, 769 (7th Cir. 1991).
Although the Verhoeve defendants do not propose to add a
counterclaim for indemnification, the same reasoning is applicable because the extent of coverage is relevant to determining the
parties’ liability for the underlying claims that remain pending
in state court.

The counterclaim proposed by the Verhoeve defen-

dants presents more than an academic argument and a request for
an advisory opinion.

PCF will be liable for any settlement or

judgment not paid by the Weinberger defendants or their insurer
within 90 days from when it is entered.

See Ind. Code §34-18-15-

4 ("If a health care provider or the health care provider's

12

surety or liability insurance carrier fails to pay any agreed
settlement or final judgment within ninety (90) days, the agreed
settlement or final judgment shall be paid from the patient's
compensation fund").
It is the plaintiff’s position that the aggregate limits of
the policy are $5 million, while PCF argues that the policies
should be stacked to provide $15 million of coverage.

There are

currently 350 malpractice claims pending against the Weinberger
defendants in state court.

One already has been resolved for

$300,000, others are set for trial in the coming months, and
others are on appeal from the medical review board who found
against the Weinberger defendants.

In light of the myriad of

suits pending in state court, many of which already have been
resolved against the Weinberger defendants by the medical review
board, there is a probability that the total liability will
exceed $5 million and that the court will be required to interpret the policy to determine the aggregate limits.

PCF does not

suggest that the likelihood of recovery exceeding $5 million is
grossly inflated, nor do the facts suggest the same.
The imminence of the final determination of the nearly 350
underlying malpractice claims, many of which will be decided in
the coming months, renders the counterclaim necessary to prevent
long delays and future claims to determine the limits of the

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applicable policies.

The court’s determination on this matter

does not rest on hypothetical facts.

Rather, the court is being

asked to interpret the insurance policies so that the parties can
understand their rights thereunder.

Given the immediacy of the

resolution of the underlying malpractice claims and the nature of
the request, the court finds that the Verhoeve defendants are not
seeking an advisory opinion.

Rather, they request a determina-

tion explaining the rights and liabilities under the policy so
that, upon resolution, the succeeding malpractice litigants can
collect their judgments from the appropriate source.
For the foregoing reasons, the court finds that the proposed
amended counterclaim is appropriate and ripe for determination.
The court GRANTS the Verhoeve defendants’ Motion to Amend Answer
to Amended Complaint and to Assert Counterclaim [DE 216].
The court next turns to the plaintiff’s Motion to Strike
Untimely Answer [DE 232].

Federal Rule of Civil Procedure 12(f)

states that "the court may strike from a pleading any . . . redundant, immaterial, impertinent, or scandalous matter." Motions
to strike generally are disfavored, although they may be granted
if they remove unnecessary clutter from a case and expedite
matters, rather than delay them.

Heller Financial, Inc. v.

Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989);
Shirley v. Jed Capital, LLC., 2010 WL 2721855, *5 (N.D. Ill. July

14

8, 2010); Doe v. Brimfield Grade School, 552 F.Supp.2d 816, 825
(C.D. Ill. 2008).

The decision whether to strike material is

within the discretion of the court. Talbot v. Robert Matthews
Distrib. Co., 961 F.2d 654, 665 (7th Cir. 1992). "Motions to
strike under Federal Rule 12(f) are not favored [ ] and are
usually denied unless the language in the pleading has no possible relation to the controversy and is clearly prejudicial."
Tektel, Inc. v. Maier, 813 F.Supp. 1331, 1334 (N.D. Ill. 1992).
Rule 12(f) does not vest the court with the power to strike
an answer in its entirety.

Agstar Financial Services, PCA v.

Union Go-Dairy, LLC, 2011 WL 772754, *1 (S.D. Ind. Feb. 25,
2011).

"The Court's authority to strike an Answer rests not on a

statute or rule, but on 'the control necessarily vested in courts
to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.'" Agstar, 2011 WL 772754 at *1
(quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct.
1386, 8 L.Ed.2d 734 (1962)).

Although the expeditious disposi-

tion of the case is an important consideration, the Seventh Circuit favors a policy of allowing cases to proceed on the merits.
Tektel, 813 F.Supp. at 1334.

It is within the trial court’s

discretion to consider untimely pleadings when good cause is
shown and excusable neglect found to be the cause for the delay.
Federal Rule of Civil Procedure 6(b).

15

The factors the court must

consider are "the danger of prejudice to the [opposing party],
the length of the delay, including whether it was within the
reasonable control of the movant, and whether the movant acted in
good faith."

Pioneer Inv. Servs. v. Brunswick Assocs. Ltd.

P’Ship., 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74
(1993).
In an effort to expedite resolution of this matter, the
court denied the Weinberger defendants an extension of time to
April 30, 2011 to file a response.

However, the Weinberger

defendants immediately filed an answer on March 7, 2011, and
assert that the delay in filing an answer was excusable neglect.
The Weinberger defendants’ attorney represents that he filed the
answer within 14 days of learning of the previous attorney’s
failure to do so.

Given the prolonged stay, complexity of this

matter, extended duration of this suit, extensive docket report,
and change of attorneys, it is understandable that the failure
was an oversight.
The Weinberger defendants were served with Medical Assurance’s Second Amended Complaint on January 18, 2011, rendering
their responsive pleading due on or before February 10, 2011.
Around this time, but before the answer was due, the Weinberger
defendants’ attorney withdrew.

Their new attorney entered an

appearance on February 18, 2011, and represents that he devoted a

16

great deal of time familiarizing himself with the posture of this
case.

He was quick to remedy the oversight and filed Weinberger

defendants’ answer on March 7, 2011.

Medical Assurance has not

shown how it would suffer prejudice from the delay, particularly
in light of the recent advancements in the case, including the
arrest of Weinberger and lifting of the stay, which may have
spurred the Weinberger defendants to amend any responsive pleading that had been timely filed.

Therefore, the court finds that

the delay was due to excusable neglect and will consider the
answer timely filed.

Medical Assurance’s Motion to Strike

Untimely Answer [DE 232] is accordingly DENIED.
Because PCF filed its motion for leave to serve in excess of
25 interrogatories after the discovery deadline, it is necessary
for the court first to address PCF’s motion to re-open discovery.
Federal Rule of Civil Procedure 16(b) provides that a schedule
shall not be modified except upon a showing of good cause and by
leave of the court. Campania Management Co., Inc. v. Rooks, Pitts
& Poust, 290 F.3d 843, 851 (7th Cir. 2002); Briesacher v. AMG
Resources, Inc., 2005 WL 2105908, *2 (N.D. Ind. Aug. 31, 2005).
Good cause sufficient for altering discovery deadlines is demonstrated when a party shows that, "despite their diligence, the
established timetable could not be met." Tschantz v. McCann, 160
F.R.D. 568, 571 (N.D. Ind. 1995). Generally, the discovery

17

deadline specifies the date on which all discovery must be
completed, therefore, any document requests must be served at
least 30 days prior to the discovery deadline. See Shadle v.
First Financial Bank, N.A, 2009 WL 3787006, *1 (N.D. Ind. Nov.
10, 2009) (discussing Rules 16, 33, and 34, and Local Rule
16.1(d)(5)).

However, courts have allowed discovery requests

that would require responses after the close of discovery in
certain circumstances. See International Truck and Engine Corp.
v. Caterpillar, Inc., 2004 WL 3217760, *1-2 (N.D. Ind. May 26,
2004) (allowing supplemental responses to interrogatories served
two days before the fact discovery deadline because the late
supplementation was harmless, trial was several months away, and
any prejudice suffered by the defendant could be easily remedied
by a motion to reopen fact discovery); Kedzior v. Talman Home
Federal Savings & Loan Association of Illinois, 1990 WL 70855, *5
(N.D. Ill. May 10, 1990) (granting plaintiff's motion to compel
documents "for all job openings since 1986" when the defendant
revealed a company policy five days before the discovery deadline
that had excluded certain jobs from its previous discovery
responses).
In light of Weinberger’s recent return to the United States
and the Seventh Circuit’s recent opinion reversing the court’s
order on the motion to stay, the court finds that there is good

18

cause to re-open discovery.

The parties contemplated setting new

discovery deadlines at the January 7, 2011 status conference, and
as a result, the court set a status conference for May 5, 2011,
indicating that discovery deadlines would be determined at that
time.

The parties have continued to conduct discovery and have

depositions scheduled for future dates.

Due to the recent

developments in this case, the court finds good cause to re-open
written discovery and GRANTS PCF’s Motion to Reopen Written
Discovery [DE 240].

Discovery deadlines have been set at the May

5, 2011 status conference per the January 7, 2011 docket entry.
Because the court has re-opened written discovery, the court
will address PCF’s motion for leave to serve in excess of 25
interrogatories on Medical Assurance.

The use of interrogatories

is governed by Federal Rule of Civil Procedure 33(a)(1) which
states that "[u]nless otherwise stipulated or ordered by the
court, a party may serve on any other party no more than 25
written interrogatories, including all discrete subparts. Leave
to serve additional interrogatories may be granted to the extent
consistent with Rule 26(b)(2)."

Thus, a party may petition the

court for an order allowing it to serve additional interrogatories.
Federal Rule of Civil Procedure 26(b)(2)(C) provides:
On motion or on its own, the court must limit
the frequency or extent of discovery other19

wise allowed by these rules or by local rules
if it determines that: (i) the discovery
sought is unreasonably cumulative or duplicative, or can be obtained from some other
source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the
action; or (iii) the burden or expense of the
proposed discovery outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties' resources, the importance of the issues at
stake in the action, and the importance of
the discovery in resolving the issues.
This limitation is not meant "to prevent needed discovery, but to
provide some judicial scrutiny before parties make potentially
excessive use of this discovery device."

8A Wright & Miller,

Federal Practice and Procedure §2168.1, at 262 (2d ed. 1994)
(quoting Advisory Committee Notes, 146 F.R.D. 401, 676).
The court approaches the issue of whether a party may serve
more than 25 interrogatories on a case-by-case basis.

Duncan v.

Paragon Publishing, Inc., 204 F.R.D. 127, 128 (S.D. Ind. 2001)
(citation omitted).

Some courts require a party to exhaust

available discovery prior to seeking leave to serve additional
discovery.

See Duncan, 204 F.R.D. at 128 (denying a motion for

supplemental discovery where party sought to serve additional
interrogatories without first exhausting the 25 granted under
Rule 33).

Additionally, courts require a party seeking to serve

more than 25 interrogatories to make a "particularized showing"

20

of necessity.

Duncan, 204 F.R.D. at 128 (citing Archer Daniels

Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D.
578, 586 (D. Minn. 1999)).
In Duncan, the plaintiffs sought leave to serve 99 interrogatories on the defendants, claiming the information sought could
not be obtained from a more convenient source, the interrogatories were not unreasonably cumulative or duplicative, and the
interrogatories would not serve as an annoyance or cause significant expense to the defendants. Duncan, 204 F.R.D. at 128. The
defendants objected to the request, arguing that the plaintiffs
sought to serve more than 178 interrogatories in total, the
interrogatories were burdensome and oppressive, and the plaintiffs failed to make a particularized showing of need for the
information. The district court for the Southern District of
Indiana, agreeing with the defendants, denied plaintiffs' motion,
finding that the plaintiffs failed to make a particularized
showing of necessity under the circumstances.

The court ex-

plained that the information was available from other sources and
was cumulative because the plaintiff intended to depose the party
to whom the interrogatories were addressed.

Duncan, 204 F.R.D.

at 129.
PCF must do more than state that the proffered interrogatories are more convenient, less burdensome, and not duplicative.

21

PCF must demonstrate a particularized need.
at 128.

Duncan, 204 F.R.D.

In its motion, PCF explained that the second set of

interrogatories is not cumulative because it directly pertains to
statements Walton made in his affidavit filed in support of
Medical Assurance’s motion for summary judgment and issues raised
in Medical Assurance’s motion for summary judgment, which was not
pending at the time it served its first set of interrogatories.
PCF represents that it was unaware of the theories Medical
Assurance was proceeding under, and now requires more information
to form a response.
However, Medical Assurance has referred to specific interrogatories to show redundancy between the first and second set of
interrogatories.

For example, Interrogatories 7 and 8 of the

first set of interrogatories asked about the prejudice Medical
Assurance suffered from Weinberger and the Weinberger entities'
failure to cooperate.

Similarly, Interrogatories 1 and 2 of the

second set inquired into each instance where Weinberger expressly
deceived or misled Medical Assurance with regard to the medical
malpractice claims.

Interrogatories 18 and 19 of the second set

asked Medical Assurance to identify every action it took to
notify Weinberger and his business entities of their duty to
cooperate.

Similarly, in its first set of interrogatories, PCF

asked Medical Assurance of any efforts it took to communicate

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with Weinberger regarding claims filed by the medical malpractice
plaintiffs, efforts it took to locate Weinberger, and how Weinberger and his business entities received notice of the malpractice claims.

Although the interrogatories are not phrased the

same, the second set of interrogatories essentially seeks the
same information as requested in the first set.

Despite Medical

Assurance pointing out the duplicity between the two sets of
interrogatories, PCF failed to submit more than a boilerplate
reply arguing that the information sought was not redundant.
PCF did not go through the specific interrogatories to explain
how the information sought was different from the first set of
interrogatories.

Furthermore, PCF intends to take the deposition

of a representative for Medical Assurance further rendering the
interrogatories unnecessary and cumulative.

Absent more specific

reasons, PCF falls short of establishing a particularized need to
submit in excess of 25 interrogatories and its motion for leave
to submit in excess of 25 interrogatories is DENIED.
PCF also requests the court to compel Medical Assurance to
provide responses to its Second Set of Interrogatories.

How-

ever, "[t]he Court will not compel a party to answer any interrogatories served in violation of [Rule 33(a)]."

Rule 33(a);

Kaprelian v. Bowers, 2010 WL 2197778, * 3 (E.D. Wis. 2010) (denying motion to compel because the plaintiff’s interrogatories

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exceeded the limit set forth in Rule 33(a)).

Because the court

denied PCF leave to serve in excess of 25 interrogatories on
Medical Assurance, the court will not compel Medical Assurance to
respond.

PCF’s motion to compel [DE 238] is accordingly DENIED.
_______________

For the foregoing, the Motion to Amend Answer to Amended
Complaint and to Assert Counterclaim [DE 216] filed by the
Verhoeve defendants on February 25, 2011, is GRANTED; the Motion
to Strike Untimely Answer [DE 232] filed by the plaintiff,
Medical Assurance Company, Inc., on March 10, 2011, is DENIED;
the Motion for Leave to Serve in Excess of Twenty-Five Interrogatories [DE 234] filed by the Indiana Patient’s Compensation Fund
on March 15, 2011, is DENIED; the Motion to Compel Answers to
Discovery [DE 238] filed by PCF on March 23, 2011, is DENIED; and
the Alternative Motion to Reopen Written Discovery [DE 240] filed
by PCF on March 23, 2011, is GRANTED.
ENTERED this 26th day of May, 2011

s/ ANDREW P. RODOVICH
United States Magistrate Judge

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