Prouty v. Thippanna et al

Filing 90

Magistrate Judge David H. Hennessy: ORDER entered granting 65 Motion to Compel; granting in part and denying in part 67 Motion to Compel; granting in part and denying in part 77 Motion for Protective Order; granting in part and denying in part 80 Motion for Protective Order (Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KAREN PROUTY,
Plaintiff,
v.
RAMAKRISHNA THIPPANNA, M.D.,
BOGDON NEDELESCU, M.D. IDANIS
BERRIOS MORALES, M.D., JOHNNY S.
SALEMEH, JOHN/JANE DOE, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
CAROLYN PARKER, R.N., FAIRLAWN
MEDICAL INVESTORS, LLC, d/b/a LIFE
CARE CENTER OF AUBURN, AND
UMASS MEMORIAL MEDICAL GROUP,
INC.,

CIVIL ACTION
NO. 4:17-cv-40126-TSH

Defendants.

ORDER
January 18, 2019
Hennessy, M.J.

Before the Court are UMass Memorial Medical Group, Inc.’s (“UMMMG”) Motion to
Compel Plaintiff to Respond to Discovery Requests and Produce Documents (Dkt. no. 65),
Plaintiff’s Emergency Motion to Compel Non-Party UMass Memorial Medical Center
(“UMMMC”) to Comply with Subpoena (Dkt. no. 67), UMMMG’s Emergency Motion for
Protective Order as to Plaintiff’s 30(b)(6) Deposition Notice (Dkt. no. 71), Auburn Medical
Investors, LLC d/b/a Life Care Center of Auburn (“LCA”) Emergency Motion for Protective
Order (Dkt. no. 77), and Non-Party Worcester Internal Medicine, Inc.’s (“WIM”) Emergency
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Motion for Protective Order as to the Plaintiff’s 30(b)(6) Deposition Notice (Dkt. no. 80). These
discovery motions were referred to me by Judge Hillman. Dkt. nos. 69, 73, 79, 85. I heard
argument and ruled from the bench on these motions on Wednesday, January 16, 2019. This
order is meant to memorialize the rulings I made. I review each motion in turn.
I.

UMass Memorial Medical Group, Inc.’s Motion to Compel Plaintiff to Respond to
Discovery Requests and Produce Documents (Dkt. no. 65)
The Court reviewed the parties’ written submissions and heard argument on UMMMG’s

Motion to Compel Plaintiff to Respond to Discovery Requests and Produce Documents. Dkt. no.
65. The Court allows UMMMG’s motion and orders Plaintiff to respond to UMMMG’s requests
pursuant to Fed. R. Civ. P. 33 and 34 for the time period of October 2009 to the present, with the
exception of protected information. If non-protected or other responsive information is withheld,
then in accordance with Fed.R.Civ.P. 34(b)(2)(C), Plaintiff shall identified such withheld matter
and the basis for withholding it. Plaintiff is ordered to respond to UMMMG’s requests by
January 25, 2019.
II.

Plaintiff’s Emergency Motion to Compel Non-Party UMass Memorial Medical
Center to Comply with Subpoena (Dkt. no. 67)
The Court reviewed the parties’ written submissions and heard argument on Plaintiff’s

Emergency Motion to Compel Non-Party UMMMC to Comply with Subpoena. See Dkt. no.
67. The Court agrees with UMMMC that Plaintiff failed to provide UMMMC with a reasonable
time to comply with the subpoena. See Fed.R.Civ.P. 45((d)(3)(i). The Court reviewed each
request individually. The following memorializes the Court’s disposition of each demand in
Appendix A to the subpoena:
Demands 1 and 2 – UMMMC agrees to provide responsive information shortly.

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Demand 3 – The Court denies Plaintiff’s motion to compel. Based upon the representations
of counsel that materials responsive to Demand 2 will enable Plaintiff to interpret any codes,
the information sought by Demand 3 is duplicative.
Demand 4 – The Court denies Plaintiff’s motion to compel as to Demand 4 because it is
duplicative of information sought in Demand 1.
Demand 5 – The Court allows Plaintiff’s motion to compel as to Demand 5 with the
limitation that personal addresses are not to be provided. The Court orders production of
these responsive materials by January 30, 2019.
III.

UMass Memorial Medical Group, Inc.’s Emergency Motion for Protective Order as
to Plaintiff’s 30(b)(6) Deposition Notice (Dkt. no. 71)
The Court reviewed the parties’ written submissions and heard argument concerning

UMMMG’s Emergency Motion for Protective Order as to Plaintiff’s 30(b)(6) Deposition Notice.
Dkt. no. 71. UMMMG challenges both the noticing of the deposition and the scope of the
matters identified in Schedule A to the Notice of Deposition. Id. In particular, UMMMG
challenges a series of topics listed in Schedule A of Plaintiff’s notice of deposition which
propose examining the deponent on Dr. Salameh’s thought process both as a medical care
provider to Plaintiff and as a hypothetical litigant in this lawsuit.1 As Dr. Salameh’s former
employer, the Court orders UMMMG to contact Dr. Salameh and ask him questions to enable
the deponent to respond to the matters identified in Schedule A, subject to the modifications
noted. See Calzaturficio S.C.A.R.P.A. s.p.a. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 36-37 (D.
Mass. 2001). If UMMMG is unable to reach Dr. Salameh, or if Dr. Salameh has no memory of
his treatment of Plaintiff and no response to the matters identified in Schedule A, UMMMG shall
notify both the Court and Plaintiff. The Court reviewed the substance of the matters identified in

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Dr. Salameh is a former employee of UMMMG who treated Plaintiff. Dr. Salameh has since left his employment
at UMMMG and is believed to have relocated to Lebanon. He was originally named as a Defendant in this case, but
was not served and has therefore been dismissed. UMMMG reports no contact with Dr. Salameh since he left
employment.

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Schedule A individually. The following memorializes the Court’s disposition of each matter
identified in Schedule A to the Notice of Deposition:
Paragraphs 1(a) – (c) – The Court denies UMMMG’s motion for a protective order and
orders UMMMG to respond by providing all responsive personnel files and CVs.
Paragraphs 1(d) & (e) – The Court denies UMMMG’s motion for a protective order and
directs UMMMG to contact Dr. Salameh and convey at the deposition any responsive
information provided by Dr. Salameh.
Paragraph 1(f) – UMMMG does not object to paragraph 1(f).
Paragraph 1(g) - The Court allows UMMMG’s motion for a protective order. Any
responsive information involves speculation by Dr. Salameh.
Paragraph 1(h) - The Court allows UMMMG’s motion for a protective order. Any
responsive information involves speculation by Dr. Salameh.
Paragraph 1(i) – UMMMG agrees to inquire of Dr. Salameh and to produce or convey at
the deposition responsive records and information.
Paragraphs 1(j) – (o) – The Court denies UMMMG’s motion for a protective order and
directs UMMMG to contact Dr. Salameh and convey at the deposition any responsive
information provided by Dr. Salameh.
Paragraph 1(p) – The Court denies UMMMG’s motion for a protective order and directs
UMMMG to contact Dr. Salameh and to review the medical records and convey at the
deposition any responsive information provided by Dr. Salameh or reflected in the records.
Paragraphs 1(q) – (z) – The Court denies UMMMG’s motion for a protective order and
directs UMMMG to contact Dr. Salameh and convey at the deposition any responsive
information provided by Dr. Salameh.
Paragraph 2 – The Court grants UMMMG’s motion for a protective order.
Paragraph 3 – The Court grants UMMMG’s motion for a protective order for any privileged
materials. The Court directs UMMMG to contact Dr. Salameh and to review its own records
and convey at the deposition any responsive non-privileged information provided by Dr.
Salameh and its own records.
Insofar as the Court has allowed inquiry into matters contained in or pertaining to the records
of UMMMG, Counsel for UMMMG has agreed to communicate such relevant requests to
UMMMG by January 23, 2019. The Court orders the parties to file a joint memo on the status of
UMMMG’s efforts to contact Dr. Salameh and his recollection of events by February 1, 2019.
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IV.

Auburn Medical Investors, LLC d/b/a Life Care Center of Auburn Emergency Motion
for Protective Order (Dkt. no. 77)
The Court reviewed the parties’ written submissions and heard argument as to LCA’s

Emergency Motion for Protective Order. Dkt. no. 77. LCA objects to the noticing, the location,
and the scope of the matters identified in Schedule A to the Notice of Deposition. Id. The Court
finds that in light of LCA’s late production of documents – described as some 700 pages of
documents served electronically on January 4, 2019 – the 30(b)(6) notice was reasonable. By
agreement of the parties, the Court allows LCA’s motion to move the deposition to a location in
Worcester. The Court reviewed the substance of the matters identified in Schedule A
individually. The following memorializes the Court’s disposition of each matter identified in
Schedule A to the Notice of Deposition:
Paragraph 1 – The Court denies LCA’s motion for a protective order as to billing/invoicing
practices followed in calendar year 2014, and otherwise allows LCA’s motion.
Paragraph 2 – LCA denies the existence of any such contracts. The Court allows
questioning on this matter only as to contracts or agreements operative in calendar year 2014.
Paragraph 3 – The Court denies LCA’s motion for a protective order as to questions about
the protocol or process of assigning Worcester Internal Medicine employees to the care of
Plaintiff, and otherwise allows LCA’s motion.
Paragraph 4 – The Court denies LCA’s motion for a protective order as to questions about
the billing protocol to CMMS for services provided to Plaintiff, and otherwise allows LCA’s
motion.
Paragraph 5 – The Court denies LCA’s motion for a protective order as to questions
concerning statistical data LCA may maintain regarding the number, type, staging, and
location of pressure ulcers from six months before Plaintiff’s care at LCA began to six
months after Plaintiff’s care at LCA concluded. LCA is not required to examine individual
patient/resident files for responsive information.
Paragraph 6 – The Court allows LCA’s motion for a protective order. Paragraph 6 seeks to
inquire into information that is irrelevant to the complaint.
Paragraph 7 – The Court denies LCA’s motion for a protective order as to annual reports
prepared for calendar year 2014 and 2015, and any specific citations issued, complaints
made, or violations found during the time period from six months before Plaintiff’s care at
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LCA began to six months after Plaintiff’s care at LCA concluded. The inquiry is further
limited to matters of concern in this case which Plaintiff shall identify for LCA prior to the
scheduled 30(b)(6) deposition.
Paragraph 8 – The Court allows LCA’s motion for a protective order. Paragraph 8 seeks to
inquire into information that is duplicative of information sought in Paragraph 2.
Paragraph 9 – The Court denies LCA’s motion for a protective order as to the policies that
were in effect during Plaintiff’s stay at LCA and specific to the health care providers who
cared for Plaintiff.
Paragraph 10 – The Court denies LCA’s motion for a protective order as to questions
regarding complaints about the types of services that LCA provided to Plaintiff and only for
the time period from six months before Plaintiff’s care at LCA began to six months after
Plaintiff’s care at LCA concluded. Plaintiff shall identify for LCA prior to the deposition the
types of services or matters of concern about which it seeks to inquire.
The Court orders that the 30(b)(6) deposition be taken in Worcester on or before February 1,
2019.
V.

Non-Party Worcester Internal Medicine, Inc.’s Emergency Motion for Protective
Order as to the Plaintiff’s 30(b)(6) Deposition Notice (Dkt. no. 80)
The Court reviewed the parties’ written submissions and heard argument on WIM’s

Emergency Motion for Protective Order as to the Plaintiff’s 30(b)(6) Deposition Notice. (Dkt.
no. 80). The motion sought an extension of time to prepare for Plaintiff’s noticed 30(b)(6)
deposition. Id. The Court grant’s WIM’s motion for a postponement of the deposition. It shall
be taken on or before February 1, 2019. At the hearing, WIM moved the Court to review the
substance of the matters identified for deposition (Schedule A) and the documents to be
produced in connection with such deposition (Schedule B). The following memorializes the
Court’s disposition of each matter identified in Schedule A and Schedule B to the Notice of
Deposition:

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Schedule A
Paragraph 1 – The Court denies WIM’s motion for a protective order. However, the Court
allows questioning on this matter only as to contracts or agreements operative in calendar
year 2014 and otherwise allows WIM’s motion for protective order.
Paragraph 2 – The Court denies WIM’s motion for a protective order as to questions about
the protocol or process of assigning WIM employees to the care of Plaintiff, and otherwise
allows WIM’s motion.
Paragraph 3 – The Court denies WIM’s motion for a protective order as to questions about
the protocol or process of creating an on-call schedule and being on-call during the time
Plaintiff was at LCA, and otherwise allows WIM’s motion.
Paragraph 4 – The Court denies WIM’s motion for a protective order as to questions
regarding any authorization, contract, agreement, policy, or practice in effect at LCA during
the time period from six-months before Plaintiff’s care at LCA began to six-months after
Plaintiff’s care at LCA concluded, and otherwise allows WIM’s motion.
Paragraph 5 – The Court denies WIM’s motion for a protective order as to questions
regarding any authorization, contract, agreement, policy, or practice in effect at LCA during
the time period from six-months before Plaintiff’s care at LCA began to six-months after
Plaintiff’s care at LCA concluded, and otherwise allows WIM’s motion.
Paragraph 6 – The Court denies WIM’s motion for a protective order as to questions
concerning billing by WIM for services its employees provided to Plaintiff, and otherwise
allows WIM’s motion.
Paragraph 7 – The Court denies WIM’s motion for a protective order.
Paragraph 8 – The Court allows WIM’s motion for a protective order. The questions seek
information that is duplicative.
Paragraph 9 – The Court allows WIM’s motion for a protective order. The questions seek
information that is not relevant.
Schedule B
Paragraph 1 – The Court denies WIM’s motion for a protective order and orders WIM to
comply with Fed. R. Civ. P. 34.
Paragraph 2 – The Court denies WIM’s motion for a protective order but limits production
to those documents that form the basis of responses to the allowed inquiries in Schedule A.
Paragraph 3 – The Court denies WIM’s motion for protective order but limits the
production to only those schedules applicable to the dates during which Plaintiff was at LCA
and to only WIM-employed health care providers who were either at LCA or on-call for
LCA.
Paragraph 4 – The Court denies WIM’s motion for protective order.
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Paragraph 5 – The Court denies WIM’s motion for protective order as to contracts,
agreements, or understandings operative in calendar year 2014, and otherwise allows WIM’s
motion.
Paragraph 6 – The Court allows WIM’s motion for protective order. The responsive
documents are not relevant to the complaint in this case.

VI.

Conclusion
Pursuant to the motions discussed above, the Court is permitting limited, continued

discovery past the discovery deadline. However, the Court cautions that neither this permission
nor any information newly-found during this extension of discovery is to be used as the basis or
reason to seek an extension of any other deadline (e.g. the deadline for designation of expert
witnesses, the deadline for the filing of dispositive motions) set by Judge Hillman.
The Court GRANTS UMMMG’s Motion to Compel Plaintiff to Respond to Discovery
Requests and Produce Documents. Dkt. no. 65.
The Court GRANTS IN PART AND DENIES IN PART Plaintiff’s Emergency Motion
to Compel Non-Party UMMMC’s Motion to Comply with Subpoena; UMMMG’s Emergency
Motion for Protective Order as to Plaintiff’s 30(b)(6) Deposition Notice; and LCA’s Emergency
Motion for Protective Order. Dkt. nos. 67, 71, 77.
The Court GRANTS Non-Party WIM’s Emergency Motion for Protective Order as to
the Plaintiff’s 30(b)(6) Deposition Notice as it concerns WIM’s request for an extension of time.
Dkt. no. 80. The Court GRANTS IN PART AND DENIES IN PART WIM’s motion for
protective order pertaining to substantive matters as was raised at the hearing.
/s/ David H. Hennessy
David H. Hennessy
United States Magistrate Judge

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