HONE v. WAL-MART, INC. et al
MEMORANDUM OPINION AND ORDER granting in part and denying in part 31 Motion to Disqualify; Defendant may not use as evidence or otherwise the testimony and documents obtained from Dr. Kaufman on March 28, 2017; Denying 32 Motion to Compel; Plaintiff's letter application to bar two defense expert reports is DENIED; Plaintiff's letter application to quash the subpoena to ACB&GC is GRANTED. Signed by Magistrate Judge Douglas E. Arpert on 8/8/2017. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil No. 14-cv-1006 (FLW) (DEA)
ARPERT, Magistrate Judge.
This matter comes before the Court on the following motions: (1) a motion by Plaintiff to
disqualify counsel for Defendant; and (2) a motion by Defendant to compel the production of
documents and for sanctions. Also before the Court are the following informal letter
applications: (1) an application by Plaintiff to bar two supplemental defense expert reports; and
(2) an application by Plaintiff seeking to quash Defendant’s subpoena to a former employer of
I. Motion to Disqualify
This is a personal injury action. In 1998, Plaintiff underwent a total mastectomy
followed by bilateral breast reconstruction with implants. Plaintiff alleges that in 2012, an
incident at a Walmart store caused one of the implants to migrate, resulting in an asymmetry
with the other breast. As a result of her alleged injuries, Plaintiff underwent two surgical
procedures in 2013 that were performed by Dr. Matthew Kaufman.
In late 2016, after fact discovery in this case had closed, Plaintiff underwent additional
breast surgeries by a different physician, Dr. Steven Copit. In light of these additional
procedures, on January 27, 2017, the Court entered a Scheduling Order providing for the
production of supplemental medical records, expert reports, and expert depositions.
On March 9, 2017, Defendant served a subpoena for the deposition of Dr. Matthew
Kauffman, who performed Plaintiff’s 2013 surgeries, as well as for the production of documents
from Dr. Kauffman. The subpoena was returnable March 28, 2017. Plaintiff objected to the
subpoena, arguing it was outside the scope of the supplemental discovery contemplated by the
Scheduling Order, which Plaintiff argues was limited to issues related to her 2016 surgeries. In a
letter dated March 21, 2017, Plaintiff requested that the Court quash the subpoena. ECF No. 318. Defendant opposed this request by letter dated March 22, 2017. ECF No. 31-9.
On the return date of the subpoena (March 28th), the Court had not yet decided Plaintiff’s
application to quash. Nevertheless, at 4:08 p.m. on March 28, 2017, Plaintiff’s counsel received
an email from Defendant’s counsel stating “I am at Dr. Kauffman’s office and called your office.
Are you coming?” ECF No. 31-10; see also ECF No. 33 (Attorney Certification) at ¶ 10 (“When
it became apparent Plaintiff’s counsel chose not to appear, defense counsel called and emailed
him inquiring as to when and if he would appear.”) When reached by telephone a few minutes
later, defense counsel advised Plaintiff’s counsel that he intended to proceed with the deposition
and document examination in Plaintiff’s counsel’s absence. ECF No. 31-2 at ¶ 16. Defense
counsel indicated he would proceed because no Order had been entered staying or quashing the
deposition. ECF No. 33 (Attorney Certification) at ¶ 11. Despite Plaintiff’s counsel’s
“vociferous objections,” defense counsel went ahead with the deposition and the review of Dr.
Kaufman’s file. ECF No. 31-2 at ¶ 16.
Plaintiff now moves to disqualify Defendant’s counsel and asks the Court to strike the
deposition transcript and “any other fruits of the improper questioning.” ECF No. 31-1 at 16.
Plaintiff contends that it was improper for defense counsel to proceed with the deposition while
an unresolved objection was pending. Plaintiff further argues that defense counsel’s ex parte
questioning of her physician violated both New Jersey state law as well as the federal Health
Insurance Portability and Accountability Act (“HIPAA”). Last, Plaintiff argues that the
deposition should not have proceeded because the subpoena was invalid.
In response, Defendant argues that the operative Scheduling Order permitted Defendant
to take the discovery, that Defendant did not require leave of Court to depose Dr. Kaufman, that
Plaintiff waived any privilege objection to the subpoena, and that the deposition resulted in no
prejudice to Plaintiff because no privileged information was disclosed.
Although much of Defendant’s brief is directed to the propriety and validity of the
subpoena and the relevance of the discovery sought, those issues were raised prior to the
deposition by way of the Plaintiff’s application to quash the subpoena, and those issues, quite
frankly, have been rendered moot because Dr. Kaufman has now been deposed. Regardless of
whether the subpoena was valid or the discovery was appropriate, the threshold issue raised by
the present motion is whether defense counsel should have proceeded with the deposition in the
absence Plaintiff’s counsel. The answer to that question is no.
Once defense counsel learned that that Plaintiff’s counsel would not be participating,
Dr. Kaufman’s “deposition” effectively became an ex parte interview. However, this was not an
interview of an ordinary fact witness; Dr. Kaufman was one of Plaintiff’s treating physicians.
Nationwide, courts are split on whether ex parte questioning of a treating physician by an
adverse party is permitted and, if permitted, how such interviews are to be conducted. See
generally Joseph Regalia, V. Andrew Cass, Navigating the Law of Defense Counsel Ex Parte
Interviews of Treating Physicians, 31 J. Contemp. Health L. & Pol'y 35, 39 (2015). Under New
Jersey law, ex parte interviews of treating physicians are generally allowed, but because this ex
parte contact implicates issues of privilege, confidentiality, and the “physician’s loyalty” to his
patient, certain conditions must be met:
Since it is unrealistic to anticipate that physicians will participate in such
interviews without plaintiff's consent, plaintiff's counsel should provide written
authorization to facilitate the conduct of interviews. If such authorizations are
withheld unreasonably, their production can be compelled … by motion.
However, conditions should be imposed in the authorizations, or in orders
compelling their issuance, that require defendant's counsel to provide plaintiff's
counsel with reasonable notice of the time and place of the proposed interviews.
Additionally, the authorizations or orders should require that defendant's counsel
provide the physician with a description of the anticipated scope of the interview,
and communicate with unmistakable clarity the fact that the physician's
participation in an ex parte interview is voluntary.
Stempler v. Speidell, 100 N.J. 368, 382, 495 A.2d 857, 864 (1985). The purpose of this
procedure is to “afford plaintiff's counsel the opportunity to communicate with the physician, if
necessary, in order to express any appropriate concerns as to the proper scope of the interview,
and the extent to which plaintiff continues to assert the patient-physician privilege with respect to
that physician.” Id.
In the present case, all of the conditions necessary for defense counsel to proceed with ex
parte questioning of a treating physician were not present. At the threshold, Dr. Kaufman’s
appearance was not voluntary; it was compelled by subpoena. Once it was apparent that
Plaintiff’s counsel would not be present, there is no indication that Dr. Kaufman was told, “with
unmistakable clarity”, that his participation in the absence of Plaintiff’s counsel was completely
voluntary. And even if he had been so advised, because Plaintiff’s counsel expected to attend the
deposition, Plaintiff’s counsel did not have a proper opportunity “to communicate with the
physician, if necessary, in order to express any appropriate concerns as to the proper scope of the
interview, and the extent to which plaintiff continues to assert the patient-physician privilege
with respect to that physician.” Id.
Given the interests at stake and the circumstances present, it is troubling that defense
counsel chose to proceed in Plaintiff’s counsel’s absence. Even if Defendant is correct in its
assertion that Plaintiff’s counsel should have appeared on the date set by the subpoena because
there was no Order staying/quashing the subpoena, 1 Defendant’s remedy under the
circumstances was not to proceed with an ex parte deposition of Plaintiff’s treating physician.
Rather, counsel should have adjourned the deposition to a later date and sought sanctions,
including reimbursement of the costs incurred for the canceled deposition. Unfortunately,
defense counsel chose to proceed unilaterally.
“When deciding a motion to disqualify counsel, the movant bears the burden of proof
that disqualification is appropriate.” Dantinne v. Brown, 2017 WL 2766167, at *2 (D.N.J. June
23, 2017). “Disqualification is a harsh remedy which must be used sparingly.” Alvarez v. Am.
Lafrance, LLC, 2017 WL 2709562, at *2 (D.N.J. June 23, 2017) (internal quotation marks
omitted). Here, the Court finds that Plaintiff has not established that disqualification is
appropriate. Indeed, Plaintiff cites no authority that supports disqualification under the present
circumstances. Furthermore, Plaintiff’s counsel is not completely without fault in this situation.
Although it has been the Court’s experience (and, in the Court’s opinion, a better practice) that
counsel in this District wait for a ruling on a pending motion to quash rather than proceeding or
forcing a party to make a separate application for a stay, there is no express rule automatically
staying a subpoena when a motion to quash is filed. Therefore, when it became apparent to
Plaintiff’s counsel that defense counsel expected compliance with the subpoena despite the
That issue is not before the Court and, therefore, the Court does not decide the question.
pending application to quash, Plaintiff’s counsel should have immediately contacted the Court
and applied for an emergency stay. Surprisingly, neither attorney reached out to the Court for a
ruling of any sort.
While a “district court has inherent authority to impose sanctions upon those who would
abuse the judicial process,” such “inherent powers must be exercised with restraint and
discretion.” Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 73-74 (3d Cir.
1994) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43–44 (1991)). When imposing any
sanction, a court must ensure that “the sanction is tailored to the harm identified.” Westinghouse,
43 F.3d at 74. Disqualification is an extreme sanction and the Court finds such a measure is not
necessary to redress the harm here. However, as identified by the Stempler Court, there are
substantial interests implicated by defense counsel’s conduct here and it is necessary for the
Court to ensure that those interests are protected. Therefore, the Court finds it appropriate to
grant Plaintiff’s motion to the extent it seeks to strike and bar Defendant’s use of the deposition
transcript and documents obtained as a result of the March 28th “deposition” of Dr. Kaufman.
Regardless of the importance or relevance of the information Defendant was able to obtain from
Dr. Kaufman that day, the search for the truth in the litigation process must be conducted in
accordance with governing rules and law. Defense counsel engaged in an ex parte interview of a
treating physician without ensuring the required conditions were met. Consequently, Defendant
may not use as evidence or otherwise the testimony and documents obtained from Dr. Kaufman
on March 28, 2017.
II. Motion to Compel and for Sanctions
In the course of discovery, Defendant propounded a number of document request to
Plaintiff. Included were the following:
Document Request No. 1 seeking all records for any injury or illness “which allegedly
resulted from the underlying incident.”
Document Request No. 6 seeking all records for any injury or illness “which occurred
prior to the date of the underlying incident.”
Document Request No. 8 seeking all records for any injury or illness “which occurred
after the date of the underlying incident.”
Defendant contends that in light of “recent amendments to discovery”, it is “clear” that
Plaintiff’s responses to these requests have been incomplete. ECF No. 32. For example,
Defendant argues that since it has received pre-surgical photographs and consent forms related to
Plaintiff’ most recent surgeries, both of these things “had to also exist” with respect to her 2013
surgeries but were not produced. Brief, ECF No. 32 at 4. Consequently, Defendant has moved
to compel production of Dr. Kaufman’s pre-surgical breast photographs and consent forms
(Attorney Certification, ECF 32 at ¶15, 21), supplemental billing information related to a recent
surgery performed by Dr. Copit (Id. at ¶ 22); and supplement records concerning changes in
Plaintiff’s Social Security disability status (Id.). Defendant’s motion also refers to records
regarding “certain mammograms, prior neck injury treatment notes, updated Medicare billing
information, and treatment for congestive heart failure.” ECF No. 32. According to Defendant,
Plaintiff has not produced these records or authorizations that would permit Defendant to obtain
the records directly from the medical providers.
Plaintiff opposes Defendant’s motion, which Plaintiff characterizes as a motion “to
require Plaintiff’s counsel to produce surgical photographs” taken by Dr. Kaufman. ECF No. 34.
Plaintiff initially responded to Defendant’s motion by stating that Plaintiff has requested presurgical photographs from Dr. Kaufman but had not yet received anything. Id. Thereafter,
Plaintiff advised that she had received photographs from Dr. Kaufman and produced them to
Defendant. See May 25, 2017 Letter from Robert Gallop. As such, Plaintiff contends
Defendant’s motion is moot.
In reply, Defendant argues that its motion is not moot because the motion sought more
than Dr. Kaufman’s photographs. However, to the extent it does so, Defendant’s motion fails.
First, at the in-person conference on April 6, 2017, defense counsel asked for and was granted
leave to file a motion to compel only Dr. Kaufman’s photographs. None of the other issues
raised in Defendant’s motion were mentioned by Defendant to the Court at that conference.
Second, while Defendant complains generally of various discovery deficiencies, Defendant does
not detail any previous attempts to resolve those issues. In fact, there is no assertion that
Defendant made a good faith attempt to resolve any dispute related to these other records before
seeking the Court’s intervention. See Fed. R. Civ. P. 37(a)(1) (“The motion must include a
certification that the movant has in good faith conferred or attempted to confer with the person or
party failing to make disclosure or discovery in an effort to obtain it without court action.”).
Third, according to Defendant, it realized there were alleged deficiencies in Plaintiff’s discovery
responses when it received Dr. Copit’s records on March 8, 2017. ECF No. 32 (Attorney
Certification) at ¶ 14. Yet it did not advise the Court of any dispute in that regard until this
motion. See Order at ECF No. 29 (“Counsel must confer in a good faith attempt to resolve any
discovery or case management disputes. Any unresolved disputes must be brought to the Court’s
attention immediately by letter to the undersigned.”) (emphasis in original).
Having not complied with the applicable Federal Rules and the Scheduling Order, and
having failed to show good cause for this failure to comply, that part of Defendant’s motion
seeking discovery other than Dr. Kaufman’s photographs is without merit. As to that part of
Defendant’s motion seeking production of Dr. Kaufman’s photographs, that request is moot. To
the extent that Defendant also seeks sanctions against Plaintiff, no grounds have been shown to
support the imposition of sanctions. As such, Defendant’s motion is denied in its entirety.
III. Application to Bar Expert Reports
On May 16, 2017, Defendant served the supplemental report of its expert Dr. Esformes,
an orthopedic expert who opined regarding the condition of Plaintiff’s left shoulder. Plaintiff
objects to this supplemental report as (1) not being contemplated by the January 27, 2017
Scheduling Order, which Plaintiff contends permitted additional discovery only with respect to
Plaintiff’s 2016 breast surgery; and (2) being out of time. The deadline in the Scheduling Order
for service of supplemental expert reports was April 17, 2017, but, according to Plaintiff, counsel
had agreed between themselves to an extension to May 1, 2017. Further, Plaintiff argues that the
supplemental report of Dr. Esformes, as well as a supplemental report by Dr. Singer, rely on a
police report of an automobile accident in which Plaintiff was involved on September 7, 2012.
Plaintiff states that Defendant never amended its discovery responses to disclose the existence of
the police report, and objects to Defendant’s alleged “litigation by ambush.” ECF No. 38 at 2.
In response, Defendant contends the supplemental reports were necessary because
Defendant only learned of Plaintiff’s involvement in the September 2012 motor vehicle accident
on April 17, 2017. Defendant argues that it could not have anticipated the need for the
supplemental reports any earlier, particularly because Plaintiff expressly denied being involved
in any motor vehicle accidents after June 22, 2012, the date of the incident at Walmart. 2 Further,
In support of this assertion, Walmart quotes Plaintiff’s 2015 deposition testimony and cites the transcript at Exhibit
A of counsel’s certification (See ECF No. 40). However, Exhibit A is Plaintiff’s 2017 deposition transcript, not the
2015 transcript. The Court presumes, however, that if Defendant had misrepresented Plaintiff’s deposition
testimony that Plaintiff would have promptly advised the Court of the error.
Defendant argues that it produced to Plaintiff the documents from which it learned of Plaintiff’s
motor accident to Plaintiff on April 24, 2017.
The Court has considered the parties’ submissions and will deny the application. Had the
information about Plaintiff’s automobile accident been provided to Defendant in 2015 when
Plaintiff was questioned about it at her deposition, the supplemental reports would have been
unnecessary. Given how late in the case Defendant learned of Plaintiff’s motor vehicle accident,
the Court excuses the untimely service of Dr. Esformes’ report. Finally, to the extent that
Plaintiff claims to have been ambushed by information that she herself knew and should have
disclosed to Defendant much earlier in this litigation, her assertion is without merit. The Court,
therefore, denies Plaintiff’s application to strike the supplemental reports of Drs. Esformes and
IV. Application to Quash Subpoena
On or about June 22, 2017, Defendant provided notice to Plaintiff of its intent to
subpoena Plaintiff’s former employer, Atlantic City Boys & Girls Club (“ACB&GC”). Plaintiff
objects to this discovery as outside the scope of the latest Scheduling Order and asks the Court to
quash the subpoena. Defendant responds that the discovery sought is necessitated by Plaintiff’s
alleged failure to supplement certain discovery responses and is relevant to Plaintiff’s lost wage
The Court will grant Plaintiff’s application. First, the Scheduling Order of January 27,
2017 reopened fact discovery only to the extent necessary to address issues regarding Plaintiff’s
2016 surgeries. This discovery falls outside of that scope.
Second, the Court held a telephone conference on June 19, 2017, just three days before
Defendant provided Plaintiff with notice of its intent to serve the subpoena. Defense counsel
gave no indication during the telephone conference it would be seeking the additional discovery,
did not seek leave to serve discovery outside the scope of the Scheduling Order, and did not
advise the Court of the potential discovery dispute. Given the ongoing discovery disputes that
existed at the time of this call, it was clear that Plaintiff had taken the position in this case that
the January 27th Scheduling Order did not contemplate any discovery beyond Plaintiff’s 2016
surgeries. The information sought by the subpoena to ACB&GC clearly falls outside that scope.
As such, defense counsel’s assertion that it could not have known on June 19th that there would
potentially be a discovery dispute on June 22nd strains credibility.
Finally, Defendant asserts that discovery from ACB&GC is necessary and relevant to
Plaintiff’s lost wage claim. However, Plaintiff states that she is not and never has asserted a lost
wage claim in this case. Consequently, the discovery sought will not be permitted, and
Plaintiff’s application will be granted. See Fed. R. Civ. P. 26(b)(1) (scope of discovery is “any
nonprivileged matter that is relevant to any party’s claim or defense …”).
V. Conclusion and Order
The Court has carefully considered the materials submitted by the parties and decides this
matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons stated above,
IT IS on this 8th day of August 2017,
ORDERED that Plaintiff’s motion to disqualify [ECF No. 31] is GRANTED in part and
DENIED in part; and it is
ORDERED that Defendant may not use as evidence or otherwise the testimony and
documents obtained from Dr. Kaufman on March 28, 2017; and it is further
ORDERED that Defendant’s motion to compel [ECF No. 32] is DENIED; and it is
ORDERED that Plaintiff’s letter application to bar two defense expert reports is
DENIED; and it is further
ORDERED that Plaintiff’s letter application to quash the subpoena to ACB&GC is
s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge
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