Certain Underwriters at Lloyd's and those companies severally subscribing to Boeing Policy Number MARCW150053 and related policies governing the cargo et al v. Southern Pride Trucking, Inc. et al

Filing 86

ORDER that the court's rulings on Bauer Built's discovery disputes against Thunder Rolls are set forth in the attached. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CERTAIN UNDERWRITERS AT
LLOYD'S AND THOSE COMPANIES
SEVERALLY SUBSCRIBING TO
BOEING POLICY NUMBER
MARCW150053 AND RELATED
POLICIES GOVERNING THE CARGO,
AND THE BOEING COMPANY,

8:16CV116
ORDER

Plaintiffs,
vs.
SOUTHERN PRIDE TRUCKING, INC.,
THUNDER ROLLS EXPRESS, INC.,
BAUER BUILT, INC., AND ROAD
STAR CARRIER, INC.,
Defendants.
IT IS ORDERED:

The court’s rulings on Bauer Built’s discovery disputes against Thunder Rolls are
set forth in the attached.

November 9, 2016.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

Moving Party:

Defendants, Bauer Built

Certain Underwriters at Lloyd’s, et al. v. Southern Pride Trucking, Inc., et al.
Case No.: 16-cv-00116 (USDC Nebraska)

To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the
following chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and
conferred. The fully completed chart shall be e-mailed to chambers at [e-mail].

The moving party is:

Defendants, Bauer Built, Inc.

The responding party is:

Defendant, Thunder Rolls Express, Inc

Moving Party:

Defendants, Bauer Built
Court’s ruling

#1 Thunder Rolls objects to the production of a HIPAA authorization for the medical records of Joseph Womack
(second set of requests to produce, request “q”).
Relevant The medical records of Joseph Womack are relevant and discoverable, inasmuch as Mr. Womack’s
To
physical health is at issue as a cause of the accident in this matter. Bauer Built seeks Mr. Womack’s
Prove
medical records from 2005 to the present.
Bauer
Federal Rule 34(a) provides that, “A party may serve on any other party a request within the scope of
Built’s
Rule 26(b) … to produce and permit the requesting party or its representative to inspect, copy, test, or
argument
sample the following items in the responding party's possession, custody, or control:
(A) any designated documents or electronically stored information.”
Mr. Womack is the sole owner and operator of Thunder Rolls, and therefore he is authorized to
execute a HIPAA authorization for his own medical records. Defendant’s objections based on
relevancy and privacy do not support the refusal to provide the requested authorization.
Thunder Rolls
Responding party is under no duty to execute and provide a HIPPA authorization. The medical
Argument
records of Joseph Womack are not relevant and violate his privacy rights.
There is no evidence that the accident was caused due to Mr. Womack suffering a medical
condition. He has clearly testified as to what he was experiencing, seeing and comprehending in
the moments leading up the accident and during the accident. He testified about his health during
his day long deposition.
Bauer Built’s
Mr. Womack’s health is directly at issue given that he must provide federal and/or state
compromise
certification of his health and medical conditions each time he drives. Thus, each time he
drives he puts his medical condition at issue.

Thunder Rolls
compromise

Furthermore, Bauer Built recently learned that Mr. Womack may have had a cardiac event on
the day of the accident. It remains unknown whether this event occurred before or after the
accident, and whether any associated physical symptoms may have contributed to the
occurrence of the accident. Therefore, Mr. Womack’s physical health is at issue as a potential
direct cause of, or contributing factor to, the accident in this matter.
Mr. Womack's driver qualification including medical documents provided to the DOT
have already been produced.
Mr. Womack did not have a cardiac event on the day of the incident. Counsel has been
advised Mr. Womack was feeling ill many hours after the incident for which physicians
told him he was sick due to stress from the accident and failing to eat all day.
Mr. Womack has testified that he was alert, awake and that no physical condition of any
kind contributed to the incident.

Thunder Rolls shall
promptly produce any
medical records of any
medical care provided
on the date of the
accident, along with
records
of
any
associated follow up
care.
Bauer Built is not
foreclosed
from
requesting
medical
information
if
the
records from the date
of
the
accident
indicate
additional
background medical
information may be
relevant.

Moving Party:

Defendants, Bauer Built
Court’s ruling

#2 Thunder Rolls objects to the production of “any and all documents provided to or by the U.S Department of
Transportation that refer or relate to Joseph Womack’s medical status from 2005 to the present.”
(second set of requests to produce, request “p”)
Relevant Documents reflecting the medical status of Joseph Womack are relevant and discoverable, inasmuch
To Prove as Mr. Womack’s physical health is at issue as a cause of the accident in this matter.
Bauer
Defendant’s relevancy and other objections do not support withholding production of these
Built’s
documents given the relevancy of the request and Thunder Rolls’ possession, custody, or control of
argument
such documents.
Thunder Rolls
The medical records of Joseph Womack are not relevant and violate his privacy rights.
Argument
There is no evidence that the accident was caused due to Mr. Womack suffering a medical
condition. He has clearly testified as to what he was experiencing, seeing and comprehending in
the moments leading up the accident and during the accident. His medical records going back to
2005 have no relevance to this action. He testified about his health during his day long deposition.

Bauer Built’s
compromise

Furthermore, if the accident had been caused due to a medical condition, Thunder Rolls would
have asserted this as a defense.
Mr. Womack’s health is directly at issue given that he must provide federal and/or state
certification of his health and medical conditions each time he drives. Thus, each time he
drives he puts his medical condition at issue.
Furthermore, Bauer Built recently learned that Mr. Womack may have had a cardiac event on
the day of the accident. It remains unknown whether this event occurred before or after the
accident, and whether any associated physical symptoms may have contributed to the
occurrence of the accident. Therefore, Mr. Womack’s physical health is at issue as a potential
direct cause of, or contributing factor to, the accident in this matter.

Thunder Rolls
compromise

Records pertaining to a CDL medical examination are discoverable and not within the scope of
the physician-patient privilege. See Jackson v. Wiersema Charter Serv., 2009 U.S. Dist. LEXIS
45597, at *3 (E.D. Mo. June 1, 2009).
Mr. Womack's driver qualification including medical documents provided to the DOT
have already been produced.
Mr. Womack did not have a cardiac event on the day of the incident. Counsel has been
advised Mr. Womack was feeling ill many hours after the incident for which physicians
told him he was sick due to stress from the accident and failing to eat all day.
Mr. Womack has testified that he was alert, awake and that no physical condition of any
kind contributed to the incident.

Thunder Rolls shall
confirm that it has
produced the DOT
documents, including
CDL medical
examination results,
reflecting Womack’s
qualifications,
certification,
licensing, and/or
government approval
to drive a truck on the
date of the accident.

Moving Party:

Defendants, Bauer Built
Court’s ruling

#3 Thunder Rolls should produce Joseph Womack, the owner and sole operator of Thunder Rolls Express, for his
deposition pursuant to Federal Rule 30(b)(6), and to continue his deposition as a fact witness for the purpose of
examining his medical condition before and after the accident.
Relevant Mr. Womack has relevant information related to the location, condition, and transportation of the subject
To
engine after the accident occurred, as well as relevant information concerning the packaging and
Prove
securing of the load on Mr. Womack’s trailer prior to shipment from Peebles, Ohio.

Bauer Built withdraws
its request to perform
a
Rule
30(b)(6)
deposition of Joseph
Womack.

request
In addition, Bauer Built only recently learned, after Mr. Womack’s deposition was completed, that Mr. This
Womack may have had a heart attack on the evening of the accident. Therefore, Mr. Womack’s physical denied as moot.
health is at issue as a cause of the accident in this matter.
Bauer
Federal Rule 30(b)(6) permits a party to direct a deposition notice to a party organization, including a
Built’s
private corporation like Thunder Rolls Express, Inc. Joseph Womack is the sole owner and operator
argument
of Thunder Rolls, and the driver of the load that was involved in the accident at issue. Mr. Womack
has information on behalf of Thunder Rolls that is subject to examination under Rule 30(b)(6). Mr.
Womack’s prior deposition as a fact witness does not preclude his subsequent deposition as a Rule
30(b)(6) representative for Thunder Rolls.
Bauer Built also reserves the right to continue Mr. Womack’s deposition as a fact witness regarding
his medical condition before and after the accident at issue.
Thunder Rolls
There has been no deposition notice for a 30(b)(6) witness for Thunder Rolls at this time so this
Argument
request is premature. In addition, Mr. Womack was already deposed for an entire day regarding
the incident, his employment, his company, his training and his background.
Mr. Womack will not be produced for a second deposition as he is the sole owner of Thunder
Rolls and there would be no new topics or information that was not already covered in his
deposition as an individual.
Requiring Mr. Womack to take another day off from work would burden him and all of the parties
with unnecessary costs and would only further delay this case from proceeding. Mr. Womack
provided a full day's worth of testimony.
Finally, Mr. Womack did not suffer a heart attack on the evening. Mr. Womack also testified
extensively regarding the accident sequence and that the accident was not caused by any medical
condition. There is no basis to re-open Mr. Womack's deposition as a fact witness. All counsel
were present at his deposition and could have asked him at that time about any medical
conditions before and after the accident.
Any medical conditions he may have suffered after the accident have no relevance and would only
invade his privacy.

is

Moving Party:
Bauer Built’s
compromise

Thunder Rolls
compromise

Defendants, Bauer Built

Bauer Built notes that plaintiffs’ already noticed the 30(b)(6) deposition of Thunder Rolls.
However, if that notice is withdrawn, Bauer Built will provide its own notice to Thunder Rolls.
Bauer Built anticipates that the 30(b)(6) deposition of Thunder Rolls would cover, among other
topics, the contracts between Southern Price and Thunder Rolls, Thunder Rolls insurance and
insurance limits, and Thunder Rolls’ approval as a transporter for Boeing engines.
Bauer Built withdraws its request concerning the continuation of Mr. Womack’s fact witness
deposition at this time.
Requiring Mr. Womack to appear for a second deposition would be duplicative and
burdensome on Mr. Womack and all parties.
Mr. Womack is the sole owner of Thunder Rolls. He already testified at his individual
deposition that he had no insurance at the time of the accident and all insurance was
provided by Southern Pride Trucking.
The insurance policies have been provided and this information has been provided in
discovery responses.

Counsel for Defendant, Bauer Built:

Troy Lundquist & Collin Woodward

Counsel for Defendant, Thunder Jennifer Tricker, Richard Moreno &
Rolls Express:
Steven McEvoy