Colligan v. Mary Hitchcock Memorial Hospital et al

Filing 54

ORDER denying 52 Motion to Compel. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

R. Lacey Colligan
v.

Civil No. 16-cv-513-JD
Opinion No. 2018 DNH 216

Mary Hitchcock Memorial Hospital and
Dartmouth Hitchcock Clinic
O R D E R
R. Lacey Colligan filed an employment discrimination
lawsuit against Mary Hitchcock Memorial Hospital and Dartmouth
Hitchcock Clinic (“Dartmouth-Hitchcock”), alleging disability
discrimination, infliction of emotional distress, and
defamation.

Colligan moved to exclude Dartmouth-Hitchcock’s

expert witness, Bonnie Michelman, a proposed expert in medical
center security, under Federal Rule of Civil Procedure
37(c)(1).

The court granted that motion in part and, among

other sanctions, ordered Michelman to sit for a second
deposition at the convenience of Colligan’s counsel.

Colligan

now moves to compel Michelman to answer questions at her second
deposition about her experience and qualifications.

Dartmouth-

Hitchcock objects.
Standard of Review
A court may compel a deponent to answer a question that is
relevant, proper, and not otherwise privileged if the deponent

has “fail[ed] to answer a question asked under” Federal Rule of
Civil Procedure 30 or 31.

Fed. R. Civ. P. 37(a)(3)(B)(i).

An

expert witness must disclose the bases and reasons for her
opinion.

See Fed. R. Civ. P. 26(a)(2)(B); Fed. R. Evid. 702.
Background

Colligan, a medical doctor, was an independent contractor
performing research with Dartmouth-Hitchcock.

Dartmouth-

Hitchcock asserts that, early in the morning on September 1,
2015, the wife of a Dartmouth-Hitchcock executive reported that
a person, later identified as Colligan, came to her house and
threatened her and her husband.

Dartmouth-Hitchcock terminated

its relationship with Colligan the same day and prohibited her
from accessing its public medical facility except for emergency
services and scheduled appointments.

Colligan, who has post-

traumatic stress disorder, asserts in this lawsuit that
Dartmouth-Hitchcock’s termination of her contract and
restriction of her access to the medical center constituted
discrimination against her based on her disability.
In her preliminary report, Michelman opines that “[t]he
decision that [Dartmouth-Hitchcock] made to terminate Dr.
Colligan and restrict her from the medical campus except for
medical care needed for her or her family was reasonable given
her behavior.”

Doc. 52-3 at 3.

She states that Dartmouth2

Hitchcock’s actions on September 1, 2015, were “appropriate and
consistent with the reasonable practices [i]n other medical
centers.”

Id. at 4.

Michelman adds that she formed her opinion using her
knowledge of “the escalation of risks, threats and violence in
healthcare” as well as her “30 plus years of experience as an
expert, consultant, practitioner, and industry leader.”
2-3.

Id. at

She states that the methodology she used in forming her

opinion “is consistent with good and accepted practices within
the security industry . . . .”

Id.

Michelman’s curriculum vitae and her testimony show that
she has worked at Massachusetts General Hospital (“MGH”) for at
least twenty-seven years.

Therefore, Michelman’s experience at

MGH forms the vast majority of the experience to which she
cites.
Discussion
Colligan moves to compel Michelman to answer questions in
three categories.

First, Colligan seeks to compel answers

“about MGH’s security policies and procedures, as well as the
differences where applicable between such policies for MGH and
Defendants, specifically regarding disruptive people, workplace
violence and conflict and safeguarding people who may be victims
of crime or threats or fear.”

Doc. 52-1 at 3-4.
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Second,

Colligan seeks answers to questions about Michelman’s
“operations” at MGH.

Third, Colligan seeks from Michelman “the

details of her experiences at MGH and other hospitals regarding
specific instances of escalating risks, threats, and violence
. . . .”

Id. at 5.

In response, Dartmouth-Hitchcock argues

that these questions seek irrelevant information because
Michelman developed her opinion using her general experience,
not her specific experiences at MGH.
A. Comparisons of Policies and Procedures
During her first deposition, Michelman refused to answer
questions about MGH’s security policies and procedures and
questions about the differences, if any, between MGH’s policies
and procedures and those used at Dartmouth-Hitchcock.

Michelman

cited the confidential and proprietary nature of the information
in refusing to answer the questions.

Colligan moves to compel

those answers at Michelman’s second deposition.

Dartmouth-

Hitchcock objects, claiming the information sought is irrelevant
and should not be compelled because it is proprietary
information.
Dartmouth-Hitchcock relies on Fitz, Inc. v. Ralph Wilson
Plastics Co., 184 F.R.D. 532, 538 (D.N.J. 1999), in support of
its objection.

In Fitz, however, an expert who testified in

support of the plaintiff’s claim that the defendant had designed
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a defective adhesive product offered specific factual data to
support his opinion that the defendant’s design was flawed.
id.

See

For example, the expert, while maintaining the

confidentiality of a proprietary adhesive formula, noted the
relevant differences between the proprietary formula and the
formula alleged to be defective.

Id. (“While he did not reveal

the exact composition of these adhesives, he testified that he
never developed an adhesive with the same antioxidants or resins
used by the defendants.”).

Because the expert had established a

factual basis for his opinion, the court declined to compel the
expert to disclose further specifics about the proprietary
formula.

Id. at 538-39.

Here, in contrast, Michelman refused to answer questions
about the similarities or differences between the policies and
procedures at MGH and other medical centers.

In her first

deposition, Michelman refused to answer even in general terms
questions about how she determined that Dartmouth-Hitchcock’s
practices were consistent with those of other medical centers.
Beyond noting that Massachusetts General Hospital has procedures
to attend to “disruptive people,” “workplace violence,” and
“conflict,” Michelman offered no information about the relevant
practices of medical centers other than Dartmouth-Hitchcock.
See doc. 52-2 at 43.

Michelman also refused to answer a

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question about the relevant differences, if any, between
Dartmouth-Hitchcock’s policy on addressing incidents like the
one alleged in this case and Massachusetts General Hospital’s
corresponding policy.

Id. at 13.

Without that information,

Colligan is unable to test the bases and methodology of
Michelman’s opinion.

See Fed. R. Evid. 702 (“A witness who is

qualified as an expert . . . may testify in the form of an
opinion . . . [if] the testimony is based on sufficient facts or
data . . . .”).

Therefore, for her opinions to be admissible,

Michelman will likely need to answer questions in her second
deposition about the similarities and differences between
Dartmouth-Hitchcock’s relevant security practices and those at
other medical centers.
The court, however, will not compel Michelman to answer
Colligan’s questions.

Michelman may decline to answer the

questions, but Dartmouth-Hitchcock will run the risk that the
court, if requested by a properly supported motion, might
exclude some or all of her opinions.
B. “Operations” and Specific Incidents
Colligan states that Michelman refused to answer questions
about her “operations” at MGH.

Other than the questions related

to Michelman’s comparative analysis of security policies
discussed above, Colligan does not identify any specific
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questions in this category that Michelman failed to answer.
Fed. R. Civ. P. 37(a)(3)(B)(i).

See

In her motion, Colligan cites

only to Michelman’s general statement that she will not discuss
MGH’s operations.

The issue, therefore, is not sufficiently

developed for the court to respond.
Colligan also asks the court to compel Michelman to answer
questions about her experiences with similar incidents at MGH
and other hospitals.

Colligan cites an exchange during

Michelman’s first deposition in which she refused to identify
the specific hospital associated with a security incident that
she had described.

However, during that exchange, Michelman did

not refuse to discuss her prior experience with similar security
incidents.

The specific hospital at which any similar incident

occurred does not appear to have much significance in the
context of this case because the opinion given by Michelman was
limited to the reasonableness of Dartmouth-Hitchcock’s decision
on September 1, 2015, to take steps to prevent Dr. Colligan from
accessing the Dartmouth-Hitchcock facility.1

Although Michelman wrote in her preliminary report that
Dartmouth-Hitchcock’s decision to “terminate Dr. Colligan and
restrict her from the medical campus . . . was reasonable given
her behavior,” Michelman clarified in her first deposition that
her opinion was limited to the appropriateness of taking measures
to mitigate the immediate security risk posed by Colligan given
the facts available to Dartmouth-Hitchcock on September 1, 2015.
Doc. 52-2 at 75-76, 122-23.
1

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Conclusion
For the foregoing reasons, the motion to compel deposition
answers from Bonnie Michelman (doc. 52) is denied.

The court,

however, places Dartmouth-Hitchcock on notice that Michelman’s
failure, absent an articulated compelling reason, to answer
relevant questions about her experience or the bases for her
opinions could lead to the exclusion of some or all of her
opinions.

When the follow-up deposition of Michelman is taken,

it behooves both counsel, in light of the guidance the court has
provided in this order, to be specific with their questions and
objections so that the court will have a sufficient basis to
review objections and any requests to exclude opinions or to
provide other relief to either party.
SO ORDERED.

__________________________
Joseph A. DiClerico, Jr.
United States District Judge

November 2, 2018
cc:

William E. Christie, Esq.
Natalie J. Laflamme, Esq.
Timothy John McLaughlin, Esq.
William D. Pandolph, Esq.
Christopher James Pyles, Esq.

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