Parker v. Crete Carrier Corporation
MEMORANDUM AND ORDER - The parties' discovery arguments and objections, (Filing No. 39 ), are sustained in part and overruled in part as set forth in this order. On or before September 10, 2015, Plaintiff shall further answer Request for Admission No. 6. Ordered by Magistrate Judge Cheryl R. Zwart. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ROBERT J. PARKER,
MEMORANDUM AND ORDER
CRETE CARRIER CORPORATION,
The parties have filed a joint report of their ongoing discovery disputes for
resolution by the court. (Filing No. 39).
The parties cannot reach an agreement
regarding the following discovery:
The scope of Parker’s subpoena duces tecum of multiple witnesses and
Crete Carrier’s objections to that discovery; and
The sufficiency of Parker’s initial and supplemental responses to Crete
Carrier’s Requests for Admissions.
(Filing No. 39). The parties’ arguments and objections will be sustained in part and
overruled in part as set forth below.
Subpoena Duces Tecum
The defendant disclosed the following non-retained experts as potential testifying
witnesses in this case;
As a Sleep Pointe, providers carrying out Crete Carrier’s sleep apnea program;
Duke Naipohn, CEO, Sleep Pointe, a certified respiratory therapist and sleep
Tony Dollinger, COO, Sleep Pointe, a licensed sleep technician.
(Filing No. 40-8, at CM/ECF p. 2).
As Sleep Pointe contract providers carrying out Crete Carrier’s sleep apnea
Mark S. Gosnell, M.D., Greater Baltimore Medical Center Sleep Center;
Brian Bohner, M.D., Medical Director, Greater Baltimore Medical Center
Steven A. Schonfeld, M.D., Pulmonary and Critical Care Associates of
(Filing No. 40-8, at CM/ECF pp. 3-4).
As to each of these witnesses, the plaintiff intended to serve a subpoena to obtain
all documents in the witness’ possession “related to Crete Carrier's sleep apnea program.”
(Filing No. 40-1). Crete Carrier objected to the subpoenas as not sufficiently limited in
time, overly broad, and not reasonably calculated to lead to the discovery of relevant and
admissible evidence. The parties’ have resolved a portion of these objections; that is,
Crete Carrier does not object to the subpoenas to the extent they seek information
relevant to only the plaintiff, individually.
The issue before the court is whether the plaintiff is entitled to production of all
documents evidencing the relationship between Crete Carrier and Sleep Pointe.
The plaintiff’s complaint alleges Defendant discriminated against him by requiring
Plaintiff to submit to a sleep study or evaluation performed as part of Crete Carrier’s
sleep apnea program conducted through Sleep Pointe. Thus, the critical question is
whether Crete Carrier’s sleep study policy is a valid job-related qualification standard
based on reasonable medical advice and consistent with business necessity. As identified
by the defendant, the Sleep Pointe employees and contract providers are not providing
testimony regarding the causal relationship between obesity and sleep apnea, or between
sleep apnea and the ability to perform the essential job functions of an over-the-road
truck driver. They are listed solely to explain, procedurally, how the sleep study testing
is performed and reviewed.
Under these circumstances, the plaintiff’s demand for all documents evidencing
the relationship between Crete Carrier and Sleep Pointe is overbroad: It encompasses
documents which are not relevant nor likely to lead to the discovery of relevant
information, and it is not limited to the program being administered in July of 2013 (the
time frame relevant under Plaintiff’s complaint), but rather all such documents for the
entire span of the Crete Carrier’s sleep apnea program. The defendant’s objection to
subpoenas demanding witnesses to produce every document evidencing the relationship
between Crete Carrier and Sleep Pointe will be sustained.
Requests for Admission
Crete Carrier argues Parker’s responses to requests for admissions nos. 2, 4, 5, 6,
7, 9 and 12, (Filing No. 40-4), are not in compliance with Rule 36 of the Federal Rules of
Civil Procedure. These requests will be addressed in turn.
Request For Admission No. 2
Request For Admission No. 2 asks the plaintiff to “[a]dmit that on or about June
11, 2012, Plaintiff Robert J. Parker had a Body Mass Index (“BMI”) of over 35
Response: Plaintiff denied this request, explaining he did not have his BMI
determined at the time. He further explains that the relevant time frame is July
2013, when the defendant demanded a sleep study, not June 11, 2012.
Ruling: Plaintiff has sufficiently responded to this request. Plaintiff’s BMI a year
prior to the relevant time frame is neither relevant nor likely to lead to the discovery of
Request For Admission Nos. 4 and 5
Request For Admission Nos. 4 and 5 ask the plaintiff to:
Admit that a BMI of 33 kg/m² or greater is strongly associated with sleep
Admit that sleep apnea is highly correlated with driver fatigue.
Response: Plaintiff denied these requests, stating he lacks personal experience or
knowledge on these topics, they are matters properly left to expert testimony, and
reasonable experts may disagree on these issues.
Ruling: Plaintiff has sufficiently responded to these requests. The requests ask
for opinions that are not within the realm of lay knowledge or testimony. The plaintiff
has a duty of reasonable inquiry, but he is not required to retain or confer with an expert
to respond to Defendant’s Requests for Admissions.
Request For Admission No. 6
Request For Admission No. 6 asks the plaintiff to “[a]dmit that driver fatigue is
strongly associated with increased risk of motor vehicle accidents.”
Response: Plaintiff denied this request, stating he lacks personal experience or
knowledge on this topic, it is a matter properly left to expert testimony, and
reasonable experts may disagree on this issue.
Ruling: Plaintiff has not sufficiently responded to this request. The response to
this question is within the realm of lay knowledge and opinion, particularly those who,
like the plaintiff, had a commercial driver’s license and are/were subject to federal “hours
of service” rules promulgated to prevent fatigue-related accidents.
Request For Admissions Nos. 7 and 9
Request For Admission Nos. 7 and 9 ask the plaintiff to:
Admit that Robert Parker requested a personal leave of absence beginning
August 11, 2013.
Admit that on or about August 26, 2013, Robert Parker obtained alternative
Response: Plaintiff admitted both requests, and then explained why the defendant
is responsible and culpable for both of these decisions.
Ruling: Plaintiff’s exculpatory statements are not properly added to his responses
to the requests for admissions. As such, as to both requests, the language after the word
“Admit” is stricken, but without prejudice to plaintiff later explaining the admission to
the trier of fact.
Request For Admission No. 12
Request For Admission No. 12 asks the plaintiff to “[a]dmit that Crete Carrier’s
sleep apnea program is consistent with business necessity.”
Response: Plaintiff denied this request, essentially stating business necessity
should be decided on a case-by-case basis; that is, Plaintiff provided Defendant
with a diagnosis stating he does not have sleep apnea, sleep studies are not always
necessary, and there must be a clinical correlation between a worker’s need for a
sleep study and that worker’s job performance.
Ruling: Plaintiff has sufficiently responded to this request. The question appears
to be whether, in the context of assessing the causal relationship and association between
obesity, sleep apnea, and driver fatigue, business necessity under the ADA should be
assessed based on company-wide screening or on a case-by-case basis—with the parties
advocating opposite positions on this issue of mixed law and fact.
response adequately explains his reason for denying the request.
IT IS ORDERED:
The parties’ discovery arguments and objections, (Filing No. 39), are
sustained in part and overruled in part as set forth in this order.
On or before September 10, 2015, Plaintiff shall further answer Request for
Admission No. 6.
Dated this 4th day of September, 2015
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge
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