D'Souza v. Washington Metropolitan Area Transit Authority et al
MEMORANDUM OPINION AND ORDER denying 62 MOTION for Reconsideration of Letter Order dated January 9, 2017 (ECF Document No. 60) filed by Washington Metropolitan Area Transit Authority. Signed by Judge Paula Xinis on 2/8/2017. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AREA TRANSIT AUTHORITY
Civil Action No. PX-15-1979
Pending is Defendant Washington Metropolitan Area Transit Authority’s (“WMATA”)
Motion to Reconsider this Court’s Letter Order dated January 9, 2017 (ECF No. 60) denying
Defendant’s eleventh hour request to designate life-care expert, Trudy Koslow, well beyond the
expert designation deadline that this Court has set – and reset – on several occasions. ECF No.
62. Defendant further moves for the Court to reconsider its Order denying Defendant’s request
for a protective order limiting the deposition of Defendant’s witnesses designated pursuant to
Rule 30(b)(6) of the Federal Rules of Civil Procedure.
Plaintiff opposes the Motion to
Reconsider. ECF No. 68. For the reasons that follow, Defendant’s Motion is DENIED.
A. Procedural History Related to Expert Designations
This case suffers from a long and convoluted pretrial history centered on expert
discovery. Because Defendant takes umbrage at this Court’s January 9, 2017 Order denying
designation of its life care planner well beyond the deadline for Defendant’s expert designations,
this history bears comprehensive review.
On November 23, 2013, Plaintiff, a now 76 year-old woman, was involved in a car
accident while a passenger on one of WMATA’s MetroAccess motor vehicles. As a result, she
allegedly suffered serious traumatic brain damage, loss of consciousness, broken bones,
respiratory failure and hearing loss. ECF No. 62-1. Plaintiff originally filed her negligence action
against Defendant in the Circuit Court for Prince George’s County on April 22, 2015. ECF No.
2. Defendant removed the case to this Court on July 6, 2016. ECF No. 1.
On August 18, 2015, the Court issued the first scheduling order in this case, originally
setting Plaintiff’s expert disclosures under Rule 26(a)(2) of the Federal Rules of Civil Procedure
at January 29, 2016 and Defendant’s at February 18, 2016. ECF No. 16. That same day,
Defendant moved to extend time regarding expert disclosures, representing to the Court that
during an earlier Rule 16 teleconference, Defendant noted that “the damages aspects of
[Plaintiff’s] case are comprehensive and complicated.” ECF No. 17. In light of Plaintiff’s
damages profile – which was already known to Defendant – Defendant requested that its expert
disclosures be due on April 29, 2016. ECF No. 17-1 at 2–3. Defendant also emphasized in its
request that while the Court at the status conference “seemed amenable to the deadlines
requested,” the Court nonetheless would schedule a status conference in January of 2016 “in
order to maintain control.” ECF No. 17-1 at 2. The Court then granted Defendant’s motion to
allow Defendant sufficient time to designate experts responsive to Plaintiff’s “comprehensive
and complicated” damages profile. ECF No. 18.
On January 28, 2016, Plaintiff then requested that all expert designations be extended one
month to accommodate voluminous medical records that Plaintiff had yet to receive. ECF No.
20. Defendant did not object to that motion and did not ask for additional time beyond the
proposed defense expert disclosure deadline of May 31, 2016, even in light of Plaintiff’s
representations regarding outstanding medical records. The Court granted this second request.
ECF No. 21.
Plaintiff then requested, and Defendant did not oppose, an additional month extension on
expert disclosures to accommodate Plaintiff’s expert neurologist who had suddenly lost his
brother, sister-in-law and nephew in a car accident. ECF No. 23. This request put Plaintiff’s
expert disclosures due on March 30, 2016 and Defendant’s on June 30, 2016. Once again,
Defendant did not raise any objection or seek additional time beyond a June 30, 2016 deadline.
ECF Nos. 23 and 24.
Notably, this was Plaintiff’s final request for any extensions of expert deadlines. By all
accounts, Plaintiff then complied with her discovery obligations. She disclosed all medical
records by early 2016 and met her expert disclosure deadlines, designating all experts and
disclosing all reports by March 30, 2016. ECF No. 25 (“On March 30, 2016, Plaintiff specifically
(psychology/neuropsychologist); Lynne Trautwein, R.N. (nurse life care plan); Thomas
Borzilleri, Ph.D. (economist)”).
Accordingly, by March 30, 2016, almost one year ago,
Defendant had Plaintiff’s life care expert report – a comprehensive fourteen page analysis of
Plaintiff’s future medical needs – and all underlying support and documentation.1
Thereafter, Defendant has filed several requests to amplify and amend expert discovery,
much of which has been granted despite significant delay to the orderly progression of this case.
In particular, this Court granted Defendant’s request for Plaintiff to submit to a medical
examination pursuant to Rule 35 of the Federal Rules of Civil Procedure and the continuance of
Defendant’s expert disclosures by ninety days, until August 29, 2016. ECF Nos. 25, 28. 2 This
Plaintiff has provided to the Court the February 2016 expert life care plan that was prepared by Lynne Trautwein,
R.N. and disclosed to Defendant on March 30, 2016.
Rule 35 permits the Court to order that the Plaintiff “submit to a physical or mental examination by a suitably
licensed or certified examiner.” Fed. R. Civ. P. 35. It does not supplant Defendant’s ability to designate experts
Court then fielded further disputes between the parties regarding the conditions set for the Rule
35 examination, most notably whether Plaintiff would be permitted either to videotape the
examination or have an independent observer present. ECF Nos. 29, 30. This Court held a status
conference on this matter, after which the parties submitted an “Agreed Order” setting the
conditions of the Rule 35 examination. ECF Nos. 33, 34. This Order not only resolved the
outstanding disputed issues regarding the Rule 35 examination, but extended discovery deadlines
(of which Defendant’s expert disclosures were next in the queue) by an additional 30 days. ECF
No. 35, 36. Now Defendant’s expert disclosures became due September 28, 2016.
Of special import is that the Court ordered the Rule 35 examiner, Dr. Richard M. Restak,
to disclose his Rule 35 report “within 15 days of the examination.” ECF No. 35. This the doctor
did not do. In fact, even though Dr. Restak met with Plaintiff on September 8, 2016, no report
was authored because Dr. Restak claimed – and Defendant endorsed – that he could not complete
the report without Plaintiff submitting to an evaluation by an otolaryngologist, Dr. Ashkan
Monfared, M.D. at the George Washington University-Medical Faculty Associates. Dr. Restak
also claimed to need a records review by a neuroradiologist and the deposition of Christine
D’Souza, Plaintiff’s daughter, before he could author a report. ECF No. 37. This Court ordered
once again that Dr. Restak comply with this Court’s original order and author a report based on
his medical examination of Plaintiff by no later than October 14, 2016. ECF No. 41.
Notably, once Dr. Restak complied, his report highlighted that his “inability” to write a
report was better characterized as a choice.
Despite not yet having the above stated
“requirements,” Dr. Restak opined in his report that “it’s certain from the review of the records
that Ms. D’Souza sustained multiple traumatic injuries in the November 26, 2013 accident,
which included a brain injury as well as multiple fractures in the cervical spine and left
necessary to mount a defense to liability or damages.
zygomatic arch, and the left clavicle.” ECF No. 62-4 at 5 (emphasis added). Indeed, what
became plain from Dr. Restak’s report is that he wished to understand more about Plaintiff’s
hearing loss, and so requested that Ms. D’Souza see Dr. Monfared. Id.
Accordingly, despite the fact that granting Defendant’s request for Ms. D’Souza to
submit to audiology testing would further delay discovery, delay the resolution of her case, and
compel that she submit to another examination, the Court ordered such testing be conducted by
no later than November 7, 2016 and within a ten mile radius of Plaintiff’s residence. The Court
issued this order only after yet another extensive status conference with the parties on October
24, 2016 and over Plaintiff’s vigorous objection. ECF Nos. 39–44.
Specifically, Plaintiff noted that Plaintiff’s post-accident hearing loss is undisputed. ECF
No. 39 at 1. Plaintiff also noted that Defendant claimed a need to rebut Plaintiff’s “alleged
cortical deafness,” even though Plaintiff had never claimed to suffer from “cortical deafness.” Id.
Finally, Plaintiff underscored that she had already undergone relevant testing related to hearing
loss during her treatment, the results of which the Defendant and Dr. Restak had for months. Id.
at 2. Nonetheless, the Court gave Defendant the benefit of the doubt, albeit with limitations
regarding the testing.
By this October 24 status conference, the Defendant’s September 28, 2016, expert
disclosure deadline had come and gone. The parties had already engaged in extensive discovery
regarding the nature, severity and permanence of Plaintiff’s injuries. The Court had conducted no
fewer than four status conferences related to the scope of expert discovery. Defendant had been
in possession of not only Plaintiff’s life care plan since March 30, 2016, but all of the underlying
expert reports and medical documentation. Yet not once had Defendant ever raised the potential
that it may need more time to allow for the designation of Defendant’s own expert life care
Then, on December 27, 2017, three months after Defendant’s expert disclosures were
due, Defendant for the first time sought leave to designate Ms. Koslow as its life care plan
expert. ECF No. 55. In its request, Defendant admits that it had waited until after November 28,
2016 to forward to Ms. Koslow “Plaintiff’s expert reports” as well as “Plaintiff’s video
deposition,” along with Dr. Restak’s reports. Id. at 3. Defendant also argued that the delay was
excusable because Ms. Koslow’s life care plan was “based on Dr. Restak’s assessment” and
advances “a treatment alternative for the Plaintiff that best addresses her needs.” Id. Specifically,
the “treatment alternative” is to place Plaintiff in a skilled nursing facility rather than provide for
her needs at home through 24-hour skilled nursing care.3
Accordingly, on January 25, 2017, after this Court’s fifth telephone conference
concerning expert discovery, Defendant’s request to designate Ms. Koslow well beyond the
expert discovery deadline was denied because Defendant failed to show requisite good cause.
ECF No. 60. Defendant now moves for this Court to reconsider its order. ECF No. 62. Plaintiff
once again vigorously and rightfully objects. ECF No. 68. Once again, the Court denies
B. Analysis on Motion to Reconsider Defendant’s Expert Designation Out of Time
The party moving to reconsider a court’s prior order must demonstrate either change in
controlling law or additional evidence not previously available, or that the Court has “patently
misunderstood a party or has made a decision outside the adversarial issues presented to the
Court by the parties, or has made an error not of reasoning but of apprehension.” Potter v. Potter,
199 F.R.D. 550, 552 (D. Md. 2001) (internal citations and quotations omitted). See also Innes v.
Bd. of Regents of the Univ. Sys. of Md., 121 F. Supp. 3d 504, 506–07 (D. Md. 2015). Defendant
The Court has reviewed all expert reports that Plaintiff provided to Defendant in March 2016.
has not met its burden here.
First, Defendant advances the same arguments that it did at the January 9, 2017
telephonic hearing. Defendant argues that essentially Ms. Koslow was unable to opine on
Plaintiff’s needs until Dr. Restak issued his final report in November of 2016. Not only is this
argument a rehash of the January 9th hearing, it is not credible. Since March 30, 2016, Defendant
knew (because Plaintiff complied with her expert disclosure deadlines), that Plaintiff’s supported
accident-related damages include:
*sustained traumatic brain injury as demonstrated by MRI imaging and an array of postaccident deficits. See March 28, 2016 Report of Expert Neurologist Pedro Macedo, MD.
*poor hearing, significant balance problems, tremor in the left hand, weakness in the left
hand and both legs, and is in need of total, round-the-clock care by her daughter. Id.
*an array of cognitive, academic, motor functioning, memory, visual-spatial, executive,
attentional and emotional deficits. See December 2015 Neuropsychological Evaluation of
Lucy D’Souza conducted by Peter B. Sorman, Ph.D.
Additionally, as early as March 30, 2016, Defendant knew that Plaintiff’s experts viewed
the above-described injuries as permanent and causally related to the November 23, 2013
accident. Most critically, Defendant also had the Plaintiff’s comprehensive life care plan which
itemized in great detail the future needs of Plaintiff.
For Defendant now to say that its own life care expert was unable to generate a
responsive life care plan within the expert discovery deadline simply blinks at reality. Indeed
Ms. Koslow in her report admits to reviewing the Plaintiff’s expert reports, life care plan and
medical records that were in the Defendant’s possession since early 2016. Defendant provides no
explanation for Ms. Koslow did not receive this information sooner and offer a responsive
opinion within the Court’s discovery deadlines.
Nor can Defendant use Dr. Restak as a plausible reason for delay. First, Defendant chose
to wait until June of 2016 before contemplating a request for a Rule 35 examination. Then,
despite knowing that Plaintiff suffered from some post-injury hearing loss since receiving the
medical records in late 2015, Defendant chose to wait until after Dr. Restak’s report to request
further audiology testing in October 2016, after the defendant’s deadline for expert designations
had since passed. This audiology testing never took place, and yet ultimately posed no barrier to
Dr. Restak rendering final opinions to include his views on Plaintiff’s hearing loss.4
More to the point, Koslow’s report emphasizes the undisputed bottom line: “that Ms.
D’Souza sustained a traumatic brain injury and has hearing impairment and lateralized weakness
as indicated in the reports.” All of this is evidence that Defendant had since early 2016 which
should have prompted Defendant to designate defense experts who could assess, and if
necessary, rebut Plaintiff’s experts within the discovery deadlines.
At base, Defendant offers no new evidence or makes no new legal arguments in its
motion to reconsider. Nor has Defendant demonstrated that the Court “patently misunderstood”
its arguments or made an error “not of reasoning but of apprehension.” Potter, 199 F.R.D. at 552
(internal citations and quotations omitted). Rather, Defendant expresses dissatisfaction with the
Defendant blames the failure to accomplish this testing on the Court’s geographic limitations regarding the test
site. ECF No. 62-1, n.6. Interestingly, Defendant had never brought to the Court’s attention that this geographic
limitation “virtually assured [the testing’s] nonperformance” at the time the testing should have been completed,
although Defendant is quick to assert that claim now. Id. The Court further notes that Dr. Restak ultimately was
able to complete his report and render a final opinion as to Plaintiff’s hearing loss through consultation with Dr.
Monfared only, thus begging the question as to how “essential” the audiology testing was in the first instance.
Court’s ruling but never once addresses why Defendant did not timely designate a life care
planner, and the attendant underlying experts, within the discovery deadlines set by the Court.
Deadlines set by this Court are not mere suggestions. Nor are they loose guideposts that
should be moved down the line to accommodate Defendant’s seriatim approach to discovery.
The Court repeatedly warned both parties that discovery will come to an end according to the
scheduling order in place at the time and that both sides should plan accordingly. Defendant did
not so plan, and had supplied no good cause for this Court to extend its expert discovery deadline
yet a seventh time. Defendant’s Motion to Reconsider its ruling on the late designation of Ms.
Koslow is therefore denied.
C. Facts Surrounding Defendant’s Objection to Plaintiff’s 30(b)(6) Depositions
At the outset it bears noting that a 30(b)(6)5 deposition has taken place on all of
Plaintiff’s designated topics save for one. ECF No. 68. Specifically, the outstanding topic
concerns “all facts and documents upon which [Defendant] base[s] [its] contention set forth in
[its] Eighth Defense that “Plaintiff’s injuries and damages as alleged in the Complaint are not
causally related to the occurrence; and her healthcare provider treatment, resulting expenses and
other economic losses and damages as alleged in the Complaint were neither reasonable not
necessary.” Id. Nonetheless, Defendant moves to reconsider the Court’s previous Order that the
30(b)(6) deposition on all of Plaintiff’s designated topics be completed on or before January 27,
2017. In so doing, Defendant objects to the overbreadth of the topics and to related document
production requests. ECF No. 62-1 at 12–13. Ultimately, Defendant’s requested relief – that the
A deposition noted pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure permits a Defendant
corporation or organization to designate one or more persons as deponents to testify on its behalf regarding preidentified topics described with “reasonable particularity.” The testimony is offered “on behalf of,” and thus is
binding on, the corporation. Id. See also United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996) (“[T]he
corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the
Court “[w]hen and where appropriate issue a protective Order in favor of Defendant WMATA”
regarding the 30(b)(6) depositions – is vastly overbroad to the point that it is non-enforceable
and is denied on this basis. Id. at 14.
That said, the history on this issue once again bears repeating. On January 6, 2017, one
week before the close of fact discovery, Defendant filed a scathing letter accusing Plaintiff of last
minute gamesmanship in the noting of her intent to take a 30(b)(6) deposition. ECF No. 57.
Specifically, Defendant argued that “Plaintiff violated almost every discovery rule and discovery
guideline regarding noticing and scheduling the deposition of a corporate defendant.” Id. at 3.
Defendant further accused Plaintiff of never discussing with Defendant “the broad spectrum of
topics,” in the 30(b)(6) notice that Defendant would have the Court believe Defendant had just
received. Indeed, Defendant complained that “Plaintiff’s counsel has not given undersigned
counsel for WMATA time to even contact and clear dates with appropriate WMATA
employees,” and has “at the last minute, deluged this case with limitless discovery inquiries that
are overwhelming and in some cases irrelevant.” Id.
What Defendant did not disclose to the Court in its January 6, 2017 letter is that:
1. Plaintiff first provided the 30(b)(6) deposition topics via email to Defendant on
November 10, 2016, two months before the January 6 letter. ECF No. 59-1.
2. Defendant received and reviewed the topics and responded on November 10 by email,
lodging overbreadth and privilege objections only as to topics 6–8, 10–12, and 13 (a) and
(b). ECF No. 59-2.
3. Plaintiff on more than one occasion offered an array of deposition dates, none of which
Defendant could accommodate. Plaintiff also addressed Defendant’s objections to the
selected topics. ECF Nos. 59-2, 59-3.
Furthermore, this Court had already granted a joint motion to modify the scheduling
order to accommodate Plaintiff’s 30(b)(6) depositions (ECF No. 48), underscoring that
Defendant had ample advance notice of Plaintiff’s proposed 30(b)(6) deposition. Defendant then
complained to this Court in its January 6, 2017 letter in manner only fairly viewed as lacking in
candor to the tribunal. The Court denied Defendant’s request for protective order as to the
designated 30(b)(6) areas, and ordered that the 30(b)(6) depositions be completed by January 27,
D. Analysis on Motion to Reconsider the Court’s 30(b)(6) Ruling
In its motion to reconsider, Defendant presents no grounds warranting reconsideration.
Further, with regard to the only remaining 30(b)(6) topic, Defendant’s “objection” is not an
objection at all. Defendant simply states that “this defense will be addressed by Dr. Restak and
Ms. Koslow with permission.” ECF No. 62-1. In so doing, Defendant implicitly agrees that the
topic is set forth “with reasonable particularity” and is answerable by persons in the Defendant’s
control. Defendant is thus obligated to designate one or more “persons who consent to testify on
its behalf,” about “information known or reasonable available to the organization,” and such
testimony will be binding on Defendant. See Fed. R. Civ. P. 30(b)(6). Defendant must coordinate
this deposition to take place by close of business on February 13, 2017. Failure to comply may
put Defendant at risk of limiting its right to present evidence and lodge defenses related to this
last remaining topic.
For the foregoing reasons, Defendants Motion to Reconsider (ECF No. 62) is DENIED.
United States District Judge
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