Walker et al v. Corizon Health, Inc. et al

Filing 205

MEMORANDUM AND ORDER granting 175 Motion for Leave to Depose. Signed by Magistrate Judge Kenneth G. Gale on 10/19/21. (tl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERMANE WALKER, et al.,

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) Case No. 2:17-cv-2601-DDC-KGG
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Plaintiffs,
v.
CORIZON HEALTH, INC. f/k/a
CORRECTIONAL MEDICAL
SERVICES, et al.,

Defendants.

MEMORANDUM AND ORDER ON MOTION FOR LEAVE TO DEPOSE
NEWLY DISCLOSED ‘K.U.’ MEDICAL WITNESS MARGARET SMITH, M.D.
THAT DEFENDANTS CLAIM ‘REVIEWED’ MARQUES DAVIS’ CARE
Now before the Court is Plaintiffs’ motion for leave to depose a newly disclosed
University of Kansas (“KU”) medical witness Margaret Smith, M.D., and any other
personnel that were involved in an outside review of the medical records of Marques
Davis or involved with Mr. Davis’ medical treatment provided by Corizon Health, Inc.
prior to his death in April 2017 (Doc. 175). The Defendants jointly oppose the motion
(Doc. 178) alleging that it has no factual or legal merit. Having reviewed the submissions
of the parties, the Court GRANTS the Plaintiffs’ motion.
I.

Background
The Plaintiffs’ second amended complaint alleges that Marques Davis was denied

meaningful medical treatment while incarcerated at Hutchinson Correctional Facility.
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(Doc. 148). The original complaint (Doc. 1) was filed on October 16, 2017 and the initial
disclosures were made on March 18, 2018, where Defendants disclosed 90 witnesses
(Doc. 175, at 2). During mediation, on June 24, 2018, the Plaintiffs allege that they
learned medical care provided to Mr. Davis was reviewed by KU medical providers.
They claim that this was new information, and no disclosure was made of such a review
or the individuals who conducted the review. On July 3, 2021, Defendants filed their
Supplemental Initial Disclosures. (Doc. 175-1; Doc. 175-2). They identified Margaret
Smith, M.D. with University of Kansas Physicians, Inc. and added that “Dr. Smith may
have information regarding a care review performed in February 2017.” (Doc. 175-1, at
12; see also Doc. 175-2, at 10). The supplemental disclosure was made six weeks before
the discovery deadline on August 13, 2021. (Doc. 155). In response to the supplemental
disclosures, the Plaintiffs requested to depose Dr. Smith and filed the present motion on
August 30, 2021. (Doc. 175).
II.

Analysis
The Defendants oppose the motion alleging that no good cause exists to modify

the scheduling order and the discovery sought is not proportional to the needs of the case.
A. Modification of the Scheduling Order
Since the motion requesting leave was filed after the close of discovery, the
Plaintiffs must show “excusable neglect” for the Court to consider the merits of the
motion. D. Kan. Rule 6.1(a)(4). A finding of excusable neglect is an equitable
determination that considers all of the relevant circumstances. Hale v. Emporia State
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Univ., No. 16-cv-4182-DDC, 2018 U.S. Dist. LEXIS 39409, at *2 (D. Kan. Mar. 9,
2018). Here, Plaintiffs contend that the neglect is excusable because the disclosure of Dr.
Smith was not listed separately or listed in a way to bring attention to it. (Doc. 190, at 4).
The Court does understand how it may be difficult to recognize the changes to the
disclosures when they are presented in a non-redline format or in a way that does not
highlight the supplements or changes being made to the original. Moreover, the
supplemental disclosures were made weeks before the close of discovery; so, the time to
spot such changes was limited. For those reasons, the Court finds the neglect to be
excusable and will consider the merits of the motion.
The Plaintiffs must establish “good cause” to revise the scheduling order. Fed. R.
Civ. P. 16(b)(4). Rule 16 provides that “[a] schedule may be modified only for good
cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4).
To establish ‘good cause’ the moving party must show that the scheduling
order's deadline could not have been met with diligence. Parker v. Cent.
Kansas Med. Ctr., 178 F.Supp.2d 1205, 1210 (D. Kan. 2001); Denmon v.
Runyon, 151 F.R.D. 404, 407 (D. Kan. 1993). ‘This rule gives trial courts
‘wide latitude in entering scheduling orders,’ and modifications to such
orders are reviewed for abuse of discretion.’ In re Daviscourt, 353 B.R.
674, (B.A.P. 10th Cir. 2006) (citing Burks v. Okla. Publ'g Co., 81 F.3d 975,
978-79 (10th Cir. 1996)).
Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL 3270102, at *3 (D. Kan. Aug.
12, 2010). Further, since discovery must be reopened, the Court considers the following
factors:
1) whether trial is imminent, 2) whether the request is opposed, 3) whether
the non-moving party would be prejudiced, 4) whether the moving party
was diligent in obtaining discovery within the guidelines established by the
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court, 5) the foreseeability of the need for additional discovery in light of
the time allowed for discovery by the district court, and 6) the likelihood
that the discovery will lead to relevant evidence.
Smith v. United States, 834 F.2d 166, 169 (10th Cir. 1987). It is well-established in this
District that motions to modify a scheduling order focus “on the diligence of the party
seeking to modify the scheduling order.” Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc.,
245 F.R.D. 524, 528 (D.N.M. 2007) (internal citations omitted)).
To show due diligence, Plaintiffs point to the several interrogatories and requests
for production (“RFP”) they served on Defendants. The interrogatories and RFPs were
aimed at obtaining information regarding the care of Mr. Davis. (Doc. 175, at 3–6). Dr.
Smith was identified by Defendants on July 3, 2021 through their supplemental
disclosures and Plaintiffs contacted Defendants about the inclusion of Dr. Smith on July
23, 2021 and requested a deposition on August 23, 2021. (Doc. 178, at 3). Defendants
argue that there was an undue delay in responding to the supplemental disclosures as well
as a delay in requesting the deposition of Dr. Smith.
As Plaintiffs have pointed out, the moving party must show that the deadline could
not have been met even with due diligence. Kincaid Coach Lines, Inc. v. Transarctic of
North Carolina, Inc., No. 17-2388-DDC-KGS, 2018 WL 3156801, at *3 (D. Kan. June
28, 2018). And they contend that scheduling and conducting a deposition when the close
of discovery is 40 days away is unreasonable. The further provide that they also had a
jury trial during that 40-day period which would have added more scheduling
complications, while Defendants argue that the inability to conduct a deposition is
without merit.
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The Court disagrees with Defendants. They provided new information in their
supplemental disclosures 40-days before the close of discovery. It foreseeably took time
to review the supplements, decide on a discovery plan going forward, and then schedule
and conduct depositions.
Defendants additionally object on the basis that Plaintiffs already knew about the
witnesses they are seeking to depose. (Doc. 178, at 4). They contend that it is public
knowledge that the Kansas Department of Corrections (“KDOC”) contracts with KU
Medical Center (“KUMC”) to conduct clinical reviews of care and audits. And
Defendants receive feedback from KUMC regarding adjustments to the care plan that
could be made. And they argue that Plaintiffs received notice of these reviews. Indeed,
there are several references to KUMC conducting outside reviews. For instance, in
Defendants’ expert report, they reference that the standard of care was followed, in part,
due to “outside review from the University of Kansas faculty.” It further notes details
regarding the outside care review. (Doc. 193, at 2–3). Plaintiffs claim they did not know
the KUMC review constituted an investigation into the quality of care rendered to Mr.
Davis.
Even if Plaintiffs could have been more observant, this does not deprive them of
the opportunity to explore new information. Dr. Smith’s name does not appear in the
expert’s report or anywhere in the interrogatories or RFPs. Dr. Smith’s name was not
attached to something that would make apparent her role in Mr. Davis’ case. Moreover,
the Defendants have not shown how they will be unduly prejudiced by conducting the
deposition. There does not appear to be a significant burden in allowing Defendants to
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conduct a deposition of the witness that was recently identified in supplemental
disclosures. However, the Court does recognize that the request to conduct the deposition
is open-ended and not limited to a single witness. The Court rejects the open-ended
nature of the request and limits Plaintiffs’ ability to depose to a single witness pertaining
to the care reviews conducted by KUMC.
Lastly, Defendants object that the opportunity to depose the witness would be
irrelevant and not proportional to the needs of the case. (Doc. 178, at 12). Indeed,
“[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b).
As such, for the information to be discoverable, the requested information must be
nonprivileged, relevant, and proportional to the needs of the case. Holick v. Burkhart, No.
16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).
Here, Defendants do not intend to use Dr. Smith at trial, but rather wish to use the
document she signed as evidence to establish Dr. Corbier’s state of mind. The Court does
not agree that the deposition is irrelevant or not proportional just because Defendants do
not plan to use her as a witness at trial. There appears to be a dispute regarding the extent
of the review that took place and the level of oversight provided by Dr. Smith. So, a
deposition could produce relevant information that may affect the value of the evidence
offered at trial. Therefore, the Defendant’s objection overruled.
The Plaintiffs are therefore GRANTED leave to depose a single witness regarding
the KUMC case review of Mr. Davis’ case.
IT IS SO ORDERED.
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Dated October 19, 2021
/S KENNETH G. GALE
Kenneth G. Gale
U.S. Magistrate Judge

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