Robinson v. Mitchell International, Inc. et al

Filing 60

ORDER denying 55 Motion to Strike. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 06/22/2015. (BCL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
EMATHIOUS ROBINSON

CIVIL ACTION

VERSUS

NO. 14-24-JJB-RLB

MITCHELL INTERNATIONAL, INC.
AND ALLEN KROHN, M.D.
ORDER
Before the Court is Defendant’s Motion to Strike. (R. Doc. 55). The motion is opposed. (R.
Doc. 56). Defendant has filed a Reply. (R. Doc. 59). Based on the record and the applicable law
set forth below, Defendant’s Motion to Strike is DENIED.
I.

Background
Plaintiff, a registered nurse, is suing Dr. Allen Krohn and Mitchell International, Inc.,

(“Mitchell”) (collectively “Defendants”) for defamation. (R. Doc. 1-2). Plaintiff alleges that
Mitchell hired Dr. Krohn to review and provide a report of Plaintiff’s medical records in connection
with an ongoing worker’s compensation claim. (R. Doc. 1-2 at 1). Plaintiff claims that in his report,
Dr. Krohn falsely “communicated” to “third persons” that she exhibited “[opioid] drug seeking
behavior.” (R. Doc. 1-2 at 2). On September 16, 2013, Plaintiff filed suit against Defendants for
defamation claiming, among other things, that the allegedly false statement “damages her in her
profession.” (R. Doc. 1-2 at 2).
On March 20, 2014, the parties submitted a Joint Status Report. (R. Doc. 23). Plaintiff
provided a list of potential expert witnesses to testify in this action, stating that “The Louisiana State
Board of Nursing may testify as to the affects the defamatory publication will have on the
[plaintiff’s] career.” (R. Doc. 23 at 6).
Based on the parties’ proposed deadlines in the Joint Status Report, the Court issued its
initial Scheduling Order on March 31, 2014. (R. Doc. 24). The Scheduling Order required that all

fact and expert discovery be completed by February 17, 2015, and required dispositive motions to
be filed by April 15, 2015. (R. Doc. 24 at 1-2).
On December 30, 2014, in response to an interrogatory, Plaintiff identified Miranda
Christopher as a witness who could testify “as to the affects the defamatory publication will have on
the plaintiff’s career.” (R. Doc. 55-2 at 2). There is no indication in the record that Plaintiff has
submitted an expert report by Ms. Christopher in accordance with Rule 26(a)(2)(B) of the Federal
Rules of Civil Procedure.
On February 6, 2015, a subpoena was issued from this Court on Dr. Krohn’s behalf, noticing
the deposition of Ms. Miranda Christopher for February 25, 2015. (R. Doc. 55-3 at 3). The
subpoena, however, was actually directed to and served on the Louisiana State Board of Nursing,
Ms. Christopher’s employer, 1 through a certified letter dated February 10, 2015. 2 (R. Doc. 55-3 at
3) (“[T]his subpoena is directed . . . to: Louisiana State Board of Nursing through its Executive
Director for the Deposition of its employee, Miranda Christopher.”). At the time Dr. Krohn issued
the subpoena the deadline for all fact and expert discovery was set for February 17, 2015. (R. Doc.
24). On February 24, 2015, LSBN responded to the subpoena by objecting to the deposition of Ms.
Christopher, claiming that it would “elicit testimony . . . that is confidential” under several
Louisiana statutes. (R. Doc. 55-4).

1

The Court takes no position as to whether service of the subpoena was proper under Rule 45(b)(1), as this issue is not
before the Court. See Fed. R. Civ. P. 45(b)(1) (“Serving a subpoena requires delivering a copy to the named person.”);
Seals v. Shell Oil Supply, No. 12-1983, 2013 WL 3070844, at *3 (E.D. La. June 17, 2013) (“Under the plain language of
the rule, as well as Fifth Circuit precedent, service is improper if the person himself is not served with a copy of the
subpoena.”); Harrison v. Prather, 404 F.2d 267, 273 (5th Cir. 1968) (finding service of a Rule 45 subpoena on a party's
attorney, instead of the party, “renders such service a nullity”). Moreover, standing to challenge a Rule 45 subpoena
based on improper service lies with the person subject to the subpoena. See Brown v. Braddick, 595 F.2d 961, 967 (5th
Cir. 1979) (a party’s standing to challenge a Rule 45 subpoena issued to a non-party is limited to an alleged “personal
right or privilege with respect to the subpoenaed materials”); Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo.
1997) (defendant “lack[ed] standing to object to improper service” of a Rule 45 subpoena served on a non-party).
2

Dr. Krohn has not filed proof of service in the record or otherwise indicated when the subpoena was actually served on
the Louisiana State Board of Nursing.

2

On February 12, 2015, Plaintiff moved for an extension of the discovery deadlines based
upon a separate letter received from the LSBN. (R. Doc. 53). On March 11, 2015, the court granted
Plaintiff’s request in part, extending the fact discovery deadline to May 18, 2015, the expert report
and disclosure deadline to June 1, 2015, the expert discovery deadline to June 15, 2015, and the
dispositive motion deadline to July 1, 2015. (R. Doc. 54 at 3-4).
Despite these extensions, at no time did Dr. Krohn move to compel compliance with the
subpoena or otherwise seek to take the deposition of Ms. Christopher. Instead, on May 5, 2015, Dr.
Krohn filed the instant motion to strike Ms. Christopher as a witness. (R. Doc. 55).
II.

Law and Analysis
Although Plaintiff has identified Ms. Christopher as a potential “expert” witness, it is not

clear from the record whether Plaintiff actually identified Ms. Christopher as a reporting expert
under Rule 26(a)(2)(B). Dr. Krohn does not allege that Plaintiff violated Rule 26(a)(2)(A) by
failing to disclose Ms. Christopher’s identity as an expert witness. Dr. Krohn does not discuss
whether Ms. Chrisopher has submitted an expert report, as required by the Scheduling Order; or is
qualified to provide expert testimony on the effect of the allegedly defamatory statement on her
career as a nurse. Dr. Krohn can move, at a more appropriate time in this action, to exclude Ms.
Christopher as an expert witness, due to Plaintiff’s failure to comply with his disclosure obligations,
if appropriate. 3 The sole issue before the court at this time is whether Ms. Christopher should be

3

“[A] party must disclose to the other parties the identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). A party who fails
to identify a witness pursuant to Rule 26(a) may not use that witness “to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
“The admission or exclusion of expert testimony is a matter left to the discretion of the trial court, and that
decision will not be disturbed on appeal unless it is manifestly erroneous.” Primrose Operating Co. v. Nat'l
Am. Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004) (citing First Nat'l Bank v. Trans Terra Corp. Int'l, 142 F.3d
802, 811 (5th Cir. 1998).

3

precluded from providing any testimony — lay or expert — based upon the objections to the Rule
45 subpoena provided by the LSBN.
Plaintiff identified Ms. Christopher as a potential witness on December 30, 2014 in response
to an interrogatory. (R. Doc. 55-2 at 2). Dr. Krohn now seeks to strike Ms. Christopher as a witness
on the basis that he “is in a position of being unable to depose” Ms. Christopher in light of LSBN’s
objection to the subpoena seeking her deposition. (R. Doc. 55-1 at 3). Dr. Krohn argues that he
“will be materially prejudiced through the inability to take her deposition to discover any relevant
information she may have regarding Plaintiff’s claim and will be unable to adequately prepare his
defense based on same.” (R. Doc. 55-1 at 3).
The court disagrees with Dr. Krohn that the LSBN’s objection to his subpoena of Ms.
Christopher rendered him “unable” to take her deposition or, at the very least, to seek an order from
the court compelling her deposition. There is no indication in the record that Dr. Krohn sought to
take the deposition of Ms. Christopher over LSBN’s objections. Despite the court’s extension of
the fact and expert discovery deadlines, Dr. Krohn has not moved this court to compel compliance
with the subpoena pursuant to Rule 45(d)(2)(B)(i). Conversely, LSBN has never sought to quash
the subpoena pursuant to Rule 45(d)(3). In short, LSBN provided an objection to the subpoena that
was never filed into the record prior to the instant motion, and Dr. Krohn failed to pursue the
avenues available to him to enforce the subpoena and take the deposition.
That LSBN objected to the subpoena is an insufficient reason for Dr. Krohn’s failure to take
steps to depose Ms. Christopher, including, if necessary, filing an appropriate motion to compel. In
its letter objecting to Christopher’s deposition, LSBN relies on various Louisiana statutes in support
of its position that the testimony sought from Ms. Christopher could not be provided. (R. Doc. 55-4
(citing La. R.S. 44:4(9); La. R.S. 49:956(8)(a); and La. R.S. 49:956(8)(c))). The court need not
decide to what extent these statutes may have provided Ms. Christopher or the LSBN a basis for
4

objecting to certain questions at the subpoenaed deposition. 4 Regardless of whether the scope of the
deposition testimony sought would be subject to objection pursuant to these statutes, Dr. Krohn
took no appropriate steps to obtain such testimony after receiving LSBN’s objection letter.
The court finds no basis for striking Ms. Christopher as a witness based upon the motion and
record before it. Any prejudice resulting from Dr. Krohn’s failure to depose Ms. Christopher is of
Dr. Krohn’s own doing. To the extent Plaintiff designates Ms. Christopher as an expert witness in
the pre-trial order, Dr. Krohn will have an opportunity to challenge this designation and seek an
appropriate remedy based upon whether timely expert disclosures and reports were provided.
III.

Conclusion
For the foregoing reasons, the court finds no basis for striking Ms. Christopher as a witness

at this time. To the extent Dr. Krohn seeks an extension of the discovery deadlines to file a motion
to compel the deposition of Ms. Christopher through his Reply (R. Doc. 59 at 4), the court finds no
good cause for modifying its current scheduling order pursuant to Rule 16(b)(4) of the Federal
Rules of Civil Procedure. Fact and expert discovery is closed.
IT IS ORDERED that Defendant’s Motion to Strike is DENIED.
Signed in Baton Rouge, Louisiana, on June 22, 2015.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

4

Plaintiff argues that the Louisiana statutes relied upon by the LSBN in its objection letter relate to the
protection of records only, and not deposition testimony. (R. Doc. 56 at 4).

5