Boerste v. Ellis, LLC et al
Filing
234
MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Colin H. Lindsay on 10/29/2020. Bryan Tyler Boerste's Motion for Leave of Court to Take the Deposition of Allie Fisher (DN 163 ) is DENIED. cc: Counsel (ALS)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:17-CV-298-CHB-CHL
BRYAN TYLER BOERSTE,
Plaintiff,
v.
ELLIS TOWING, LLC, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the Court is the Motion for Leave of Court to Take the Deposition of Allie Fisher
filed by Plaintiff Bryan Tyler Boerste (“Boerste”). (DN 163.) After a telephonic status conference
with the undersigned (DN 165), Defendants Ellis, LLC; Ellis Towing, LLC; Kevin Bewley; City
of Springfield; Springfield Police Department; Michael Cotton; Mattingly Security, Inc.; and
Joshua Baker (collectively, the “Defendants”) filed a joint response (DN 172), and Boerste filed a
reply (DN 189). Therefore, this matter is ripe for review.
For the reasons set forth below, Boerste’s motion (DN 163) is DENIED.
I.
BACKGROUND
A.
Factual and Procedural Background
On December 19, 2019, pursuant to this Court’s prior order (DN 117), Boerste underwent
a neuropsychological evaluation administered by defense expert Dr. Thomas Sullivan (“Dr.
Sullivan”). (DN 163, at PageID # 4147.) At that time, Boerste signed a Supervision Statement
(the “Supervision Statement”) supplied by Dr. Sullivan that provided as follows:
I am providing psychological services to you through the use of a supervisee. The
supervisee’s name is Allie Fisher. Ms. Fisher will be providing psychological
testing to you. Following the evaluation, Ms. Fisher will provide me with the data
generated. This will include behavioral observations, a summary of your statements
made during the testing, and the testing results themselves. . . . [I] would be happy
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to talk to you if you have concerns or comments about your interactions with Ms.
Fisher.
(DN 163-1, at PageID # 4153.)
Boerste’s counsel deposed Dr. Sullivan on May 14, 2020, one day before the close of expert
discovery in this action. (DN 163, at PageID # 4148-49.) At his deposition, Dr. Sullivan testified
as to Ms. Fisher’s role in his evaluation in relevant part as follows:
Mr. Hasken:
So describe this student that you brought with you. What was
this student’s name?
Dr. Sullivan:
My student’s name this year is Allie Fisher, A-L-L-I-E. Her
last name is, F-I-SH-E-R. So she’s a -- she’s a doctoral
student from the University of Cincinnati. She works with
me most Fridays. Her goal in coming here working with me
is to learn how to administer a neuropsychological
evaluation.
Mr. Hasken:
So you described her as a student. What are her
qualifications? Is it just a student?
Dr. Sullivan:
Oh, she’s -- she received a bachelor’s degree at the
University of Michigan, and she’s currently working on her
master’s degree at the University of Cincinnati.
Mr. Hasken:
Do you know what master’s degree she’s working on?
Dr. Sullivan:
Yeah. She’s working on her master’s degree in clinical
psychology.
...
Mr. Hasken:
. . . [I]f she gets a master’s in clinical psychology, would she
be able to ultimately perform – perform these
neuropsychological evaluations on her own or would she
need to perform those evaluations in conjunction with
someone with a Ph.D.?
Dr. Sullivan:
The latter. You can’t be independently licensed as a
psychologist in Ohio with just a master’s degree.
Mr. Hasken:
Why isn’t Allie Fisher identified in your report?
Dr. Sullivan:
I don’t think she did any of the work.
Mr. Hasken:
And when you say any of the work, you’re referring to the
evaluation itself, right?
Dr. Sullivan:
That’s right. That’s right.
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Mr. Hasken:
So was she nothing more than a casual observer?
Dr. Sullivan:
No. She was a student observer. She was – her job was to
watch me to see what to do with the patients.
Mr. Hasken:
And I’m sorry for using the word casual. I did not mean to
not take into account her education, experience. I just meant
– I think you answered this, was just wondering if she was
observing or if she was helping administer any of the tests,
and it sounds like she was just there to observe the
evaluation, right?
Dr. Sullivan:
Yeah. That was – her primary role was to observe the
evaluation. She may have scored some of the materials. I
don’t notice her handwriting on any of the Bates stamped
documents that you got. My handwriting is terrible, so it’s
pretty easy to discriminate who wrote what. But the way
Tyler did the MMPI is he had a booklet, and he had a score
sheet, and he filled in a bubble sheet about his answers. And
then somebody from my office, either me or Allie, put his
answers into a computer program, sent those answers to
Minnesota, they were scored and then they were sent back.
So it’s possible that Allie keyed in his answers to the MMPI.
Mr. Hasken:
And this scoring of the MMPI would have been done after
the evaluation was over and Tyler left, right?
Dr. Sullivan:
That’s true.
...
Mr. Hasken:
[D]r. Sullivan, before we took our last break, I was asking
about your clinical practice and your forensic practice. I
forgot to ask you about your – your teaching. Your CV
indicates that you were an adjunct professor at Xavier
University, Wright State University and the University of
Cincinnati. How does that fit into your schedule in terms of
you seeing patients? And we’ll talk about the pre-COVID19 world.
Dr. Sullivan:
My work with the University of Cincinnati is they place
students here with me. It’s usually one student a year usually
one day a week usually on Friday because students are
interested in legal – legal evaluations, and it works well with
their schedule. So my adjunct status with the University of
Cincinnati consists primarily of supervising one student a
week all day on Friday. This year coming up I have a student
on Friday, and then I have an advanced student who is going
to be here like Mondays and Tuesdays. And mostly what
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they do is they observe what I do. And then when they get
up to speed, what I do is usually after a student is here a
couple of months if they are competent, I have them do a test
with somebody while I supervise. And then as they get more
and more skills, they’re able to do more and more of the
assessment materials. Over the course of the years, I’m in
the room with the student at least 99.9 percent of the time,
so it’s – it’s exceedingly unusual for the student to be in a
room with a patient and me not in there. Usually it’s when I
have to go to the bathroom. . . .
...
Mr. Hasken:
So – so your trainee, Allie Fisher, she would have been an
example of one of these students from the University of
Cincinnati who was assigned to you to work with you on
Fridays, and she would go attend forensic examinations?
Dr. Sullivan:
Yeah. Anything I do on Friday, she comes with me. And then
usually the students they’re very interested in, you know,
professional athletes. So if I see somebody on Saturday, they
come with me. Or if I go down there at 6:00 in the morning,
they come with me, that type of thing.
...
Mr. Hasken:
[D]o you charge extra when a student attends with you?
Dr. Sullivan:
No.
Mr. Hasken:
So essentially that student like Allie Fisher it’s just a part of
her education she’s coming with you. She doesn’t get
compensated for being there for a forensic consult?
Dr. Sullivan:
Not usually. Allie was more toward the beginning of her
placement. I have paid students if they, you know, provide a
lot of benefit to a particular case. But usually it’s – usually it
costs me more to have a student than, you know, it’s worth.
(DN 172-1, at PageID # 4233-37, 4340-45).
Dr. Sullivan also testified about his conclusions regarding Boerste’s untruthfulness and
insufficient effort. Dr. Sullivan testified that he based those conclusions on the data from the
evaluation, not intuition from subjective perceptions. (Id. at 4254, 4259.) He highlighted that the
problem with relying on psychologist’s observations is they cannot be tested, making their
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reliability and validity unknown. (Id. at 4252.) He testified he did not even partially rely on
subjective perceptions from the evaluation but instead on malingering tests that have been
validated and shown to be reliable via scientific study. (Id. at 4252-254.) However, Dr. Sullivan
did also testify about his observations of Boerste during the examination, though he maintained
that his conclusions were based on testing. (Id. at 4330-4331.)
Dr. Sullivan also submitted a subsequent affidavit in which he stated that he relied upon
no subjective observations, either his own or Ms. Fisher’s, in forming the conclusions in his report.
(DN 172-2, at PageID # 4354.) Rather, he “relied upon the results of the objective tests [he]
performed or supervised.” (Id.) His affidavit further clarified Ms. Fisher’s role was one of a
student under supervision in a clinical placement. (Id. at 4353.) He stated, “She observed, did a
few tests under my direct supervision, double scored some of the tests, and proofread the report I
wrote.” (Id. at 4355.) Dr. Sullivan also identified, to the extent possible, the tests Ms. Fisher
administered to Boerste. (Id. at 4353.) But he explained that there is deliberately little to no room
for variance in testing administration. (Id. at 4354.)
B.
The Instant Motion
Boerste requested leave of Court to take the deposition of Ms. Fisher after the close of fact and
expert discovery. (DN 163, at PageID # 4149.) Boerste asserted Ms. Fisher’s identity was
disclosed for the first time during Dr. Sullivan’s deposition. (Id. at 4147.) He ultimately admitted
his counsel knew on December 17, 2019, “an assistant” would be present during the examination,
but argued knowledge of a person’s existence is different than knowledge she has discoverable
information pertaining to an issue in the case. (DN 189, at PageID # 6633.) Further, he argued, it
was not until Dr. Sullivan’s deposition testimony created a discrepancy in Ms. Fisher’s role that
the issue of her knowledge arose. (Id. at 6635.)
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Boerste cited two reasons that he needed to take Ms. Fisher’s deposition. The first stemmed
from Dr. Sullivan’s conclusions that he is a liar, is feigning any impairments, and did not put forth
sufficient effort on the testing Dr. Sullivan administered. (DN 163, at PageID # 4149.) According
to Boerste, Dr. Sullivan reached this conclusion by relying, at least in part, on observations during
the interview process of the evaluation. (Id.) Thus, because Ms. Fisher was present during the
evaluation, she possesses discoverable information regarding questions, responses, and effort put
forth during the evaluation. (Id.) Boerste’s second justification for deposing Ms. Fisher was
ambiguity of her role in the evaluation. (Id.) He claimed that Dr. Sullivan could not remember
what role Ms. Fisher played in the evaluation during his testimony, other than that she was an
observer, and that this was contradicted by the Supervision Statement that suggested a more active
role. (Id.) Boerste argued that “counsel need[ed] to ask Ms. Fisher what test(s) she might have
administered as part of the evaluation . . . [and] to question her on her involvement in the
neuropsychological evaluation process to ensure that she is in fact certified to participate in such
evaluations.” (Id.)
The Defendants deny the need for Ms. Fisher’s deposition as Dr. Sullivan did not rely on
any subjective observations in reaching his report conclusions. (DN 172, at PageID # 4186.) They
argued Dr. Sullivan’s testimony sufficiently described her role and that the supplemental affidavit
they attached to their response clarified any uncertainties. (Id. at 4182.) The Defendants also
emphasized that Boerste’s Motion is untimely because all discovery deadlines have passed and
Boerste has known Ms. Fisher was present during his examination since December 19, 2019. (Id.
at 4188.) Further, argued Defendants, under Fed. R. Civ. P. 26(b)(4) Ms. Fisher cannot be deposed
as she has not been identified as an expert whose opinions may be presented at trial and she is not
qualified to give expert opinions. (Id. at 4191.)
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Boerste denied Dr. Sullivan’s affidavit resolved the need for Ms. Fisher’s testimony
because Dr. Sullivan admitted to being biased in his deposition. (DN 189, at PageID # 6639.) Dr.
Sullivan did testify that his opinions in this case are biased because of and influenced by an
accusation from Boerste’s expert that he acted unethically. (DN 172-1, at PageID # 4330.)
According to Boerste, that bias calls into question how the evaluation was performed and what
really happened. (DN 189, at PageID # 6639.) He also argued that he does not seek Ms. Fisher’s
expert opinions but rather fact discovery. (Id. at 6637.)
II.
DISCUSSION
Defendants argued that the Court should consider five factors in determining whether to
re-open discovery:
(1) when the moving party learned of the issue that is the subject of discovery; (2)
how the discovery would affect the ruling; (3) the length of the discovery period;
(4) whether the moving party was dilatory; and (5) whether the adverse party was
responsive to prior discovery requests.
(DN 172, at Page ID # 4188.) (citing Estep v. City of Somerset, No. 10-286-ART, 2011 U.S. Dist.
LEXIS 95008, at *3 (E.D. Ky. Aug. 24, 2011) (citing Bentkowski v. Scene Magazine, 637 F.3d
689, 696 (6th Cir. 2011)). The Court is not persuaded that these factors apply in this context
because the factors are typically applied in the context of a party who argues additional discovery
is needed before the Court rules on a motion for summary judgment. Plott v. Gen. Motors Corp.,
71 F.3d 1190, 1195-97 (6th Cir. 1995). Boerste’s motion makes no such argument. Instead, the
Court finds the resolution of the instant motion rests in overall discovery threshold of relevancy.
Fed. R. Civ. Proc. 26(b) provides, “Parties 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). For discovery purposes, relevant material “will encompass
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any matter that may bear upon, or reasonably could lead to other matters that could bear upon, any
issue that is or likely may be raised in the case.” Invesco Institutional (N.A.), Inc. v. Paas, 244
F.R.D. 374, 380 (W.D. Ky. 2007). “When faced with questions over, or disputes about, what
information or documents may be obtained based on their relevancy, it is axiomatic that the trial
court is afforded broad discretion to determine the bounds of inquiry.” Janko Enters. v. Long John
Silver's, Inc., No. 3:12-cv-345-S, 2013 WL 5308802, at *2 (W.D. Ky. Aug. 19, 2013) (citing
Chrysler v. Fedders Corp., 643 F.2d 1229, 1240 (6th Cir.1981), cert. denied, 454 U.S. 893 (1981)).
Although the scope of discovery is broad, it is not unlimited. In examining the scope of discovery
the Court considers “the importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). On motion or on its own, the Court may
limit discovery that is unreasonably cumulative or duplicative; may be obtained from a less
burdensome or expensive source; is outside the scope of discovery; or that a party has already had
an opportunity to obtain in the action. Id. at 26(b)(1)(2)(C).
Boerste seeks the deposition testimony of Ms. Fisher in order to unravel unnecessary
questions. Dr. Sullivan has sufficiently described the role she played during the evaluation, what
tests she administered, and what certifications she held. Likewise, Dr. Sullivan has explained that
no subjective perceptions contributed to the conclusions in his report, not even his own. If Boerste
does not believe Dr. Sullivan’s testimony, he is entitled to cross-examine Dr. Sullivan about the
basis for his opinion at trial, but the Court is not convinced that additional testimony from Ms.
Fisher is necessary in order to enable Boerste to do so. The evidence submitted by the Parties
establishes that whatever may be the basis of Dr. Sullivan’s conclusions, Ms. Fisher did not
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independently contribute to them. No information that Ms. Fisher could offer would bear upon
any issue, or likely issue, in this case. Nor could her deposition testimony reasonably lead to other
matters that bear upon an issue or likely issue. Ms. Fisher could not offer any information that
was not or could not be offered by Dr. Sullivan and thus deposing her would be unreasonably
duplicative. Further, the testimony that Boerste seems to want to elicit from Ms. Fisher walks the
line between lay testimony and expert witness testimony that both Parties appear to agree Ms.
Fisher is not qualified to give. (DN 172, at Page ID # 4190; DN 189, at Page ID # 6637.) Boerste’s
reliance on Dr. Sullivan’s testimony about his bias does not change this conclusion as it is unclear
that any information Ms .Fisher could offer would shed any light on this issue.
The Court must also consider how allowing Ms. Fisher’s deposition might affect future
educational opportunities. Were this Court to allow the deposition of a student supervisee in this
context, it could have a chilling effect on the availability of those types of educational experiences.
Many professions promote and even require students in the field to observe practitioners as part of
their educational training. Restriction of these opportunities would disadvantage students in their
quality of education and professional readiness.
For all these reasons, the Court finds Ms. Fisher’s testimony is outside the scope of
discovery.
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III.
ORDER
For the reasons set forth above, IT IS HEREBY ORDERED that Bryan Tyler Boerste’s
Motion for Leave of Court to Take the Deposition of Allie Fisher (DN 163) is DENIED.
cc: Counsel of record
October 29, 2020
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