Medical Assurance Company Inc The v. Weinberger MD et al

Filing 669

OPINION AND ORDER denying 623 Motion to Compel; granting 637 Motion to Strike or for Protective Order. Signed by Magistrate Judge Andrew P Rodovich on 8/18/14. (mlc)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THE MEDICAL ASSURANCE COMPANY, INC., )
)
Plaintiff,
)
)
v.
) CAUSE NO. 4:06-CV-00117-JD-APR
)
MARK S. WEINBERGER, M.D., et al.
)
)
Defendants.
)
OPINION AND ORDER
This matter is before the court on the Motion to Compel [DE 623] filed by the defendant,
Indiana Patient’s Compensation Fund, on May 7, 2014, and the Motion to Strike Or For a
Protective Order [DE 637] filed by the plaintiff, The Medical Assurance Co., Inc., on June 3,
2014. For the following reasons, the Motion to Compel [DE 623] is DENIED, and the Motion
to Strike Or For a Protective Order [DE 637] is GRANTED.

Background
The plaintiff, The Medical Assurance Company, Inc., seeks a declaration from the court
that it does not owe coverage to the Weinberger defendants with regard to medical malpractice
claims asserted against the Weinberger defendants. Medical Assurance claims that the
Weinberger defendants did not cooperate in their defense as required by the terms of the
insurance policy. Because the Indiana Patient’s Compensation Fund (PCF) would become liable
for any medical malpractice judgments that an insurer fails to pay, Medical Assurance named
PCF as a defendant, and PCF filed a counterclaim seeking a declaration that Medical Assurance
was liable under the policy limits.
On November 8, 2010, PCF served Interrogatories and Requests for Production on
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Medical Assurance, asking in part that Medical Assurance produce documents reflecting
communications between Medical Assurance and the Weinberger defendants. In response,
Medical Assurance raised the attorney-client and work product privileges to withhold certain
documents from production. Medical Assurance produced its objection log on February 28,
2011, and supplemented it on June 8, 2011. Medical Assurance has not supplemented its
response since, and PCF now asks the court to compel Medical Assurance to do so, so that its
responses and objection log reflects communications since February 21, 2011, including those
related to the global settlements.
Medical Assurance responded and filed a motion to strike on June 3, 2014. Medical
Assurance explains that PCF has reached a global settlement agreement with all of the
malpractice defendants and therefore lacks standing because although Medical Assurance’s
liability is not fixed, the malpractice defendants cannot demand additional compensation from
PCF. The court previously denied Medical Assurance’s motion to dismiss PCF because some of
the settlements were not yet completed and were pending approval by some of the claimants’
bankruptcy and probate estates.
Following its motion, Medical Assurance filed a stipulation to dismiss all of the Thomas
defendants and a motion for a pre-trial conference to address the one pending Verhoeve
defendant’s claim. Medical Assurance again moved to dismiss PCF. These motions remain
pending.

Discussion
PCF moves to compel Medical Assurance to supplement its discovery responses.
Federal Rule of Civil Procedure 26(e) states:

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(1) In General. A party who has made a disclosure under Rule 26(a)—or who has
responded to an interrogatory, request for production, or request for admission—must
supplement or correct its disclosure or response:
(A) in a timely manner if the party learns that in some material respect the disclosure or
response is incomplete or incorrect, and if the additional or corrective information has not
otherwise been made known to the other parties during the discovery process or in writing;
or
(B) as ordered by the court.
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, *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 also Adams v. Target, 2001 WL 987853, *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, *2 (N.D. Ill. May 25,
2001)(“Discovery is a search for the truth.”). 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
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Ibew, 2009 WL 1325103, *8 (N.D. Ind. May 13, 2009)(citing Kodish v. Oakbrook Terrace Fire
Protection Dist., 235 F.R.D. 447, 449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins. Co.,
2009 WL 1325405, *3 (N.D. Ind. May 13, 2009)(internal citations omitted); Carlson
Restaurants Worldwide, Inc. v. Hammond Professional Cleaning Services, 2009 WL 692224,
*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 General 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, *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 also,
Hunt v. DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012)(explaining that the district court has
broad discretion in supervising discovery).
Medical Assurance objects to supplementing its discovery responses on several grounds.
First, Medical Assurance argues that PCF lacks standing. Medical Assurance previously filed a
motion to dismiss PCF because it lacked standing. In its motion, Medical Assurance explained
that PCF reached a global settlement agreement with the malpractice claimants that would settle

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any claims the claimants may have had against it. Although the extent of Medical Assurance’s
liability remained in question, no party would be able to seek additional payments from PCF
once the settlements were complete. On June 10, 2014, the district court denied Medical
Assurance’s motion to dismiss PCF, explaining that some of the settlements had not been
completed and that many had bankruptcy or probate estates open that required court approval of
the settlement agreement. Following the district court’s order denying Medical Assurance’s
motion to dismiss, Medical Assurance filed a stipulation to dismiss all Thomas defendants and a
motion to set a status conference to address the only outstanding Verhoeve defendant’s claim.
Because of these changes, Medical Assurance once more moved to dismiss PCF.
In light of the resolution of many of the claims and the possibility that PCF may be
imminently dismissed or later dismissed upon approval of the one pending Verhoeve claim, the
court finds that it would be overly burdensome to require Medical Assurance to supplement its
discovery responses at this time. Medical Assurance informed the court that it would have to sift
through thousands of documents at an estimated cost of $50,000. The court does not find it
necessary to subject Medical Assurance to such an expense given the current status of the case.
If PCF is not ultimately dismissed, it may later renew its motion.
ENTERED this 18th day of August, 2014

/s/ Andrew P. Rodovich
United States Magistrate Judge

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