Maldonado et al v. Union Pacific Railroad Company et al
Filing
146
MEMORANDUM AND ORDER granting in part and denying in part 126 Plaintiff's Motion to set deposition conditions; finding as moot 127 Plaintiff's Motion to proceed with corporate designee depositions. Plaintiff shall appear in the United States for a Rule 35 neurological examination on or before 7/8/2011. See order for details. Signed by Magistrate Judge Karen M. Humphreys on 5/4/2011. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CESAR OBDULIO PAZ MALDONADO,
et al.,
Plaintiffs,
v.
UNION PACIFIC RAILROAD CO., et al.,
Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 09-1187-EFM
MEMORANDUM AND ORDER
This matter is before the court on (1) plaintiff’s motion to “set deposition conditions”
(Doc. 126); (2) plaintiff’s motion to proceed with corporate designee depositions (Doc. 127);
and (3) remand from Judge Melgren concerning the location of defendants’ Rule 35
examination of plaintiff. The rulings are set forth below.
Background
Highly summarized, Cesar Paz was a passenger in a car that was struck by a train at
a railroad crossing in Wichita, Kansas on April 29, 2008.1 His alleged injuries include
1
The driver of the car was Gerson Benegas. His surviving wife, Zuyapa Jimenez,
and Jesus H. Guerrero, administrator for his estate, accepted defendants’ offers of
judgment and Mr. Paz is the only plaintiff whose claims have not been resolved.
“numerous fractures, internal injuries, loss of all teeth, loss of memory, [and] traumatic brain
injury.” Mr. Paz seeks monetary damages for “extensive pain, suffering, mental anguish,
emotional distress, permanent disabilities, loss of earning capacity, loss of ability to do
household chores, medical and surgical expenses, [and] economic and non-economic losses.”
He is a citizen of Honduras who lived and worked in the United States for an unknown
period of time. He left the United States in March 2010 and currently resides in Honduras.
Plaintiff’s Motion to Set Deposition Conditions (Doc. 126)
Plaintiff’s counsel plans to travel to Honduras to depose plaintiff’s relatives and
friends and also take plaintiff’s deposition for a third time. Defendants object to the
Honduran depositions. In an effort to resolve the deposition controversies before incurring
fees and expenses related to airfare and other logistics, plaintiff moves for an order “setting
the deposition conditions.” Although the motion is procedurally awkward, early resolution
of the parties’ discovery disagreements will save both time and money.2
The individuals proposed for depositions fall into three categories. The first group is
composed of eight friends and relatives who will apparently provide “before-and-after”
deposition testimony concerning plaintiff’s injuries. Defendants object to their deposition,
arguing that these witnesses were not disclosed in plaintiff’s Rule 26(a) initial disclosures
2
Normally, plaintiff would issue subpoenas to the non-party witnesses and
defendants would counter with a motion to quash/protective order. However, because the
non-party witnesses live in Honduras, the logistical requirements to set up the depositions
involve significantly greater expenditures and are not as easily rescheduled.
-2-
nor were they listed in any of plaintiff’s discovery responses. Defendants also argue that the
eight depositions are (1) unnecessarily cumulative and burdensome, given the needs of the
case and (2) a subterfuge to support a request to conduct a third deposition of plaintiff .
Finally, defendants argue that plaintiff makes no mention of any efforts to satisfy the legal
formalities for taking a deposition in a foreign country and there is no guarantee that the
witnesses will appear and provide answers to deposition questions should defense counsel
travel to Honduras. Defendants contend that, at a minimum, plaintiff should be required to
post a bond for defendants’ costs to attend the depositions. The objections are addressed in
reverse order below.
Plaintiff provides no explanation concerning the manner in which these eight
witnesses will be compelled to appear and answer deposition questions in Honduras.
Presumably, the friends and relatives have voluntarily agreed to appear and testify as a
courtesy to plaintiff. However, because there is no indication that the witnesses would be
legally compelled to provide deposition testimony, no depositions of these witnesses will be
taken unless plaintiff posts a bond sufficient to cover defendants’ time and travel expenses
to Honduras. The bond will be forfeited to defendants if the “voluntary” witnesses described
in this opinion fail to appear and properly answer deposition questions.
The court also agrees that the request to take eight depositions of friends and relatives
-3-
for “before-and-after” testimony is unnecessarily cumulative, given the needs of this case.3
The court will allow three depositions of this group to be taken and plaintiff shall provide the
names of the three witnesses 30 days prior to any scheduled deposition.
Finally, plaintiff’s failure to list these eight witnesses in his initial disclosures or
discovery responses is troubling but not fatal. The schedule in this case was disrupted by
efforts to expedite mediation of plaintiff’s claims and numerous other discovery disputes.
The belated disclosure of these “before-and-after” witnesses is not prejudicial.
The second deposition category involves Maria Angela Jimenez, plaintiff’s wife, a
citizen and resident of Honduras.4 Defendants argue that because plaintiff is seeking
damages for loss of consortium his wife should be required to appear for deposition in the
United States. The difficulty with this argument is that Ms. Jimenez is not a party in the case
and defendants provide no legal authority to compel a non-party’s attendance for a deposition
in the United States.5 Because this court has no authority to order a non-party witness
3
The list of eight includes a grandfather, cousin, aunt, uncle, two brothers-in-law,
and two friends. Plaintiff provides no argument or suggestion that the testimony of one
witness will be materially different from testimony by other witnesses.
4
Plaintiff’s wife was listed as a witness in his discovery disclosures; thus, there is
no argument that she was not timely disclosed.
5
On the surface, defendants’ argument has some logic. However, Kansas law is
clear that a spouse does not have the right to pursue a claim for loss of consortium. See,
e.g., Annis v. Butler Manufacturing Co., 715 F. Supp. 328, 330 (D. Kan. 1989)(wife had
no separate cause of action for loss of consortium due to personal injury suffered by
spouse). A loss of consortium claim is vested in the injured plaintiff. Id.
-4-
residing in Honduras to appear for deposition in the United States, defendants’ argument is
rejected. Plaintiff may take the deposition of Ms. Jiminez in Honduras, assuming she agrees.
However, because the deposition is apparently voluntary and there is no guarantee she will
appear and answer deposition questions, plaintiff will be required to post a bond sufficient
to cover defendants’ time and travel expenses to Honduras. Similar to plaintiff’s other
“voluntary” witnesses, the bond will be forfeited to defendants if Ms. Jiminez fails to appear
and properly answer deposition questions.
The third deposition dispute concerns plaintiff counsel’s plan to take plaintiff’s
deposition in Honduras for use at trial because “plaintiff will be unavailable for trial.”
Plaintiff argues that because of his immigration “situation,” he is not permitted to reenter the
United States for ten years. Defendants oppose the Honduran deposition, arguing that
plaintiff (1) has been deposed twice already and (2) has not established his “unavailability”
for trial. As explained in greater detail below, plaintiff’s request to take a third deposition
is denied.
A party must obtain leave of court to take a deposition if “the deponent has already
been deposed in the case.” Fed. R. Civ. P. 30(a)(2)(ii). Mr. Paz’s first deposition was taken
by defendants on December 1, 2009 in Wichita, Kansas. The deposition was taken on an
expedited basis because Mr. Paz desired early mediation and was eager to return to
Honduras. In response to questions about his immigration status and ability to work and
remain in the United States, plaintiff invoked his Fifth Amendment right against selfincrimination and refused to answer the questions. Plaintiff’s counsel had the opportunity
-5-
to elicit testimony from Mr. Paz but asked only a limited number of questions.
On February 9, 2010, the court held a status conference and plaintiff’s counsel
indicated that Mr. Paz’s departure from the United States was imminent. Because of Mr.
Paz’s (1) anticipated departure and (2) medical treatment after the first deposition, the court
granted defendants permission to take a supplemental deposition of Mr. Paz. That second
deposition took place in Wichita on March 11, 2010. Once again, plaintiff’s attorney asked
him no questions during the deposition. Following the deposition, Mr. Paz left the United
States and returned to Honduras.
Plaintiff does not directly address Rule 32(a)(2) but argues that the deposition should
proceed in Honduras because immigration issues make him unavailable for trial. The
argument is not persuasive. First, plaintiff offers no explanation why the testimony he now
seeks to “preserve” was not taken at the two earlier depositions. During the first deposition,
all counsel were aware of plaintiff’s desire to leave the country. More importantly, the
second deposition was taken in March 2010 because Mr. Paz had made clear that his
departure from the United States to Honduras was “imminent.” Under the circumstances,
plaintiff “had ample opportunity to obtain the information by discovery.” Fed. R. Civ. P.
26(b)(2)(C)(ii).
In addition, plaintiff’s argument that he is “unavailable for trial” is not persuasive.
First, plaintiff’s explanation of his “immigration” status and ability to enter the United States
is exceedingly vague. No helpful argument is presented concerning the applicable statutes
and regulations and it is unclear whether plaintiff has exhausted all available alternatives for
-6-
appearing in the United States for trial. Equally important, plaintiff asserted his Fifth
Amendment privilege and refused to answer deposition questions, interrogatories and
production requests concerning his immigration status. Memorandum and Order, Doc. 120,
filed November 11, 2010 (denying defendants’ motion to compel based on plaintiff’s
assertion of Fifth Amendment privilege). Plaintiff now seeks to justify a deposition in
Honduras based on immigration information which he refused to provide earlier to
defendants. The court rejects this approach and plaintiff’s request to conduct a third
deposition of Mr. Paz in Honduras is denied.
IT IS THEREFORE ORDERED that plaintiff’s motion to set deposition conditions
(Doc. 126) is GRANTED IN PART, consistent with the rulings herein.
Plaintiff’s Motion to Proceed with Corporate
Designee Depositions (Doc. 127)
Plaintiff moves the court for an “order that allows corporate designee depositions to
proceed” and asks for a “protective order.” (Doc. 127). Defendants oppose the motion,
arguing that plaintiff’s motion asks for a protective order without citing justifications and
otherwise violates the precepts of Fed. R. Civ. P. 30(b)(6) and 26(g).
A status conference was conducted on February 1, 2011 and, after considering the
briefs and oral arguments, the court directed plaintiff to revise its deposition notices and
“start over.” Accordingly, plaintiff’s motion in its current form is MOOT.
-7-
IT IS THEREFORE ORDERED that plaintiff’s motion to proceed with corporate
designee depositions (Doc. 127) is MOOT.
Location of Rule 35 Examination
The undersigned judge granted defendants’ motion for a Rule 35 neurological
examination of plaintiff with certain conditions (Doc. Nos. 74 and 88) and defendants sought
review of those conditions pursuant to Fed. R. Civ. P. 72 and D. Kan. Rule 72.1.4. Judge
Melgren affirmed the majority of those conditions but remanded the matter for a
determination concerning the location of the examination (Honduras or the United States).
Memorandum and Order, Doc. 136, filed March 8, 2011. Consistent with the court’s
directive, the parties filed supplemental briefs and the matter is ripe.
Plaintiff contends that the examination should be conducted in Honduras because he
is prohibited for unspecified reasons from entering the United States for ten years and
defendants argue that the examination should be conducted in the United States. As noted
by Judge Melgren,
The general rule is that the plaintiff must appear for examination in the
state in which he filed his action and pay the expenses associated with
his travel to the forum state. However, as is true of most general rules,
there are exceptions. The Court may deviate from the general rule when
plaintiff makes a good cause showing for so doing.
Doc. 136, p. 10 (citations omitted). Judge Melgren also ruled that plaintiff “must first put
forth evidence establishing that he cannot legally appear in this country, as opposed to having
his attorneys make assertions that merely raise the issue and leaves the court guessing as to
-8-
whether that is really the case.” Id. at p. 11.
In an attempt to provide “evidence” to the court concerning plaintiff’s prohibition
from reentering the United States, plaintiff submits the affidavit of David K. Link, a local
attorney who practices immigration law. Mr. Link’s affidavit is highly abbreviated and states
(1) that he was contacted in February 2010 and asked for legal advice for Mr. Paz, and (2)
that “after hearing the facts, it was and is my professional opinion that Cesar Paz is
inadmissible to the United States for 10 years after he left the country. I am aware of no
exceptions or waivers that would apply in his case.” (Doc. 144-2). Nowhere does plaintiff
explain why he cannot reenter the United States.
Mr. Link’s affidavit is not persuasive evidence concerning plaintiff’s ability to reenter
the United States. No facts are provided nor are any statutes or regulations cited. At best,
the affidavit merely parrots the conclusory assertions by plaintiff’s counsel that plaintiff is
unable to reenter the United States for ten years. Moreover, as noted above, plaintiff asserted
his Fifth Amendment privilege in refusing to answer discovery questions related to his
immigration status while in the United States but now relies on those “circumstances” to
argue that his Rule 35 neurological examination should be conducted in Honduras. Such an
approach is unacceptable.
Plaintiff also submits an affidavit from Daniel Velazquez, a friend living in the United
States, which asserts that wages for agricultural workers in Honduras are approximately
$7.00 to $8.00 per day and that travel to the United States would create a significant financial
hardship for plaintiff. The difficulty with this argument is that counsel has submitted a
-9-
breakdown of expenses that exceeds $25,000 for time and travel to Honduras for depositions.
The expense of plaintiff traveling to the United States pales in comparison to the amounts
plaintiff’s counsel is willing to spend for depositions in Honduras. Under the circumstances,
plaintiff has not shown good cause that the Rule 35 neurological examination be conducted
in Honduras.
IT IS THEREFORE ORDERED that plaintiff shall appear in the United States for
a Rule 35 neurological examination. The parties shall confer concerning a mutually
agreeable date and submit a proposed order setting forth the conditions, date, and time,
consistent with the rulings in this case. The examination shall be completed on or before
July 8, 2011.6
IT IS SO ORDERED.
Dated at Wichita, Kansas this 4th day of May 2011.
S/ Karen M. Humphreys
_______________________
KAREN M. HUMPHREYS
United States Magistrate Judge
6
The possibility exists that the United States may refuse to issue a visa for plaintiff
to enter this country. The court will address that situation when and if it occurs.
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?