Chudacoff v. University Medical Center Of Southern Nevada et al

Filing 374

ORDER Denying 312 Motion for Protective Order; and Denying 325 Motion for Protective Order. FURTHER ORDERED that Defendants' Motion to Strike Plaintiff's Improper Disclosures 324 is DENIED in part and GRANTED in part. The motion is G RANTED as to the request that Stan Smith's expert testimony be limited to Chudacoff's post-May 2009 damages, and DENIED in all other respects. Signed by Magistrate Judge Robert J. Johnston on 3/1/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD M. CHUDACOFF, M.D.,

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Plaintiff,

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2:08-cv-00863-ECR-RJJ
vs.

ORDER

UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA, et. al.
Defendants.

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This matter is before the Court on the following motions:

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a.

Defendants’ Joint Emergency Motion For Protective Order (#312);

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b.

Motion for Protective Order (#325); and,

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c.

Motion to Strike Plaintiff’s Improper Disclosures (#324).

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Additionally, the Court considered the Oppositions (#309 and #314) and Replies (# 317

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and #319).

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BACKGROUND

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On November 2, 2011, Defendants file a document (#306) titled “Joint Emergency

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Motions:

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(1)

Motion for Clarification of the Court’s Order (Document #302);

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(2)

Motion to Strike Plaintiff’s Third Amended Complaint;

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(3)

Motion to Strike Plaintiff’s Improper Disclosures; and,

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(4)

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Motion For Protective Order and Request for Periodic Mandatory Meetings with
the Magistrate Judge.

Subsequently, the Clerk of Court entered the compound motions as three additional

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entries on the court’s docket to create a separate entry for each motion. See, Notice of Docket

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Correction dated November 22, 2011. These motions were designated:

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(1)

Motion for Clarification of the Court’s Order (#306);

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(2)

Motion to Strike Plaintiff’s Third Amended Complaint; (#323);

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(3)

Motion to Strike Plaintiff’s Improper Disclosures (#324); and,

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(4)

Motion For Protective Order and Request for Periodic Mandatory Meetings with

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the Magistrate Judge (#325).

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Additionally, the Defendants filed another Emergency Motion for Protective Order (#312)

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on November 2, 2011. It appears to be identical to the previous Motion to Compel (#325), except

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for an additional argument that the Court’s Order (#302) reopening discovery did not allow for

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the taking of depositions.

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While these matters were being briefed by the parties, a settlement conference was set

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pursuant to the previous Order of the court (#301). The settlement conference was conducted in

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two sessions on November 17, 2011, and December 7, 2011. There was no settlement.

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Joint Emergency Motion For Protective Order (#312)
Motion for Protective Order and (#325)

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Defendants argue that certain deposition requests made by Chudacoff fall outside the
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intended scope of the re-opened discovery. Chudacoff states in his Response to Defendants’
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motion that he only requests depositions for Shana Tello, and the four individually named
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defendants, Drs. Carrison, Ellerton, Bernstein, and Roberts. Chudacoff asserts that he seeks to
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depose Ms. Tello for purposes of determining the content proceedings and decisions of the May
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27, 2008 MEC, meeting. That information had previously been withheld on the basis of a peer
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review privilege. Chudacoff seeks to depose the four named defendants for two reasons. First, he
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seeks to determine what went on at the May 27, 2008 MEC meeting, and, moreover, the scope of
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each defendant’s actions at the meeting, which had also been withheld on the basis of peer

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review privilege. Second, Chudacoff seeks to discuss with each defendant their net worth, which

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will inform his calculation of a punitive damages claim.

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Chudacoff’s requests are within the scope of the re-opened discovery. Discovery was re-

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opened in order to allow Chudacoff to present evidence of his damages, and to seek “materials”

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withheld under the guise of peer review privilege. The noticed depositions noticed to be targeted

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at authorized discovery. The Court’s Order (#302) contains no prohibition against the use of

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depositions during the re-opened discovery period. Thus, good cause is not shown and no

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protective order is necessary. The Court’s Orders (#302) and (#340) are sufficient to serve as

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guides so that Chudacoff may adhere to the scope of discovery outlined therein.

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Motion to Strike Plaintiff’s Improper Disclosures (#324)

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Following the entry of the Ninth Circuit Opinion (#255) in this case, Chudacoff served

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several supplements to his previous discovery disclosures upon counsel for the four individual

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doctor defendants. On November 2, 2011, Defendants’ Motion to Strike Plaintiff’s Improper

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Disclosures (#324) was filed.

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Defendants argue that Chudacoff’s supplemental disclosures should be stricken for three

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reasons. First, the Defendants argue that the supplements were improper because they were

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served at a time when discovery had not yet been reopened. Second, Defendants point out that

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the supplements were only served upon counsel for the four individual doctor defendants and not

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counsel for University Medical Center (UMC) and the Board of Trustees of UMC (the Board).

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Defendants argue that the Court should strike the disclosures and require Chudacoff to re-serve

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them on all the defendants. Third, Defendants assert that the disclosures contained the purported

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expert report of Stan Smith, who plans to testify regarding Chudacoff’s damages. Defendants

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argue that Judge Reed’s October 21, 2011 Order (#302) reopening discovery does not allow for

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new expert witnesses and that Stan Smith should not be allowed to testify. In the alternative,

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Defendants argue that, should the Court allow the disclosure of Stan Smith as an expert, his

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testimony should be limited to Chudacoff’s post-May 2009 damages.

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DISCUSSION
I.

Timeliness and Propriety of Chudacoff’s Supplemental Disclosures

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Federal Rule of Civil Procedure 26 requires parties to supplement or correct previous

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discovery disclosures under certain circumstances. The Rule, however, does not specifically

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mandate when such supplements must be made, only that they must be made “in a timely manner

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if the party learns that in some material respect the disclosure or response is incomplete or

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incorrect, and if the additional or corrective information has not otherwise been made known to

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the other parties during the discovery process or in writing; or as ordered by the court.” FED. R.

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CIV. P. 26(1).

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Aside from the expert report of Stan Smith, Defendants do not claim that the disclosures

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themselves are inappropriate, only that they were served outside of the discovery time frame.

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However, Rule 26(e) does not require that disclosure amendments must be served before the

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discovery deadline, only that they must be made “in a timely manner.” See Dayton Valley

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Investors, LLC v. Union Pacific R. Co., 2010 WL 3829219 (D. Nev. 2010) (“The rule does not

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limit the time for supplementation of prior disclosures to the discovery period.”). These

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disclosures are supplemental and are not untimely.

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The supplemental disclosures were only served on counsel for the four individual doctor

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defendants. Defendants request that the Court strike Chudacoff’s supplemental disclosures and

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require him to re-serve these disclosures on all Defendants. This would be needlessly duplicative.

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In his Response (#309) Chudacoff states that, at the time he made these amended disclosures,

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counsel for the four doctor defendants was the only counsel in the case. After additional counsel

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appeared representing UMC and the Board, counsel for Chudacoff began the process of serving

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the disclosures on them. Thus, Chudacoff’s supplemental disclosures appear to be entirely timely

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and proper.

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....

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II.

New Expert Witness Disclosure
Defendants assert that the disclosures contained the purported expert report of Stan

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Smith, who will testify regarding Chudacoff’s damages. Defendants originally argue that Judge

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Reed’s October 21, 2011 Order (#302) reopening discovery does not allow for new expert

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witnesses and that Stan Smith should not be allowed to testify. In the alternative, Defendants

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argue that Stan Smith’s testimony should be limited to Chudacoff’s post-May 2009 damages.

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The Court’s December 21, 201, Order (#340) clarified the previous Order (#302) stating:

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“While we did not disallow Plaintiff’s inclusion of new experts on the issue of his damages, we

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limited discovery on the issue of damages to post-May 2009 damages.” Therefore, any expert

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testimony from Stan Smith should be limited to Chudacoff’s damages since May 2009.

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CONCLUSION

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Based on the foregoing, and good cause appearing therefore,

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IT IS HEREBY ORDERED that Defendants’ Joint Emergency Motions for Protective

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Order (#325) and (#312) are DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiff’s Improper

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Disclosures (#324) is DENIED in part and GRANTED in part. The motion is GRANTED as to

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the request that Stan Smith’s expert testimony be limited to Chudacoff’s post-May 2009

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damages, and DENIED in all other respects.

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DATED thi 1st day of March, 2012.

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ROBERT J. JOHNSTON
United States Magistrate Judge

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