Caruso v. Target Corporation

Filing 42

ORDER re 40 : see attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 11/12/2013. c/ecf (Johnston, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DONNA CARUSO,
Plaintiff,

ORDER
CV 12-2341 (JFB)(ARL)

-againstTARGET CORPORATION,
Defendant.
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LINDSAY, Magistrate Judge:
Before the court is the defendant’s letter motion dated October 15, 2013, seeking to
compel Ricky Madhok, M.D., a non-party witness, to comply with a subpoena to testify at a
deposition. Plaintiff’s counsel has not responded to this application on behalf of either plaintiff
or the non-party witness. Defendant’s motion is granted.
By way of background, Dr. Madhok is plaintiff’s treating physician and performed spinal
surgery on plaintiff allegedly as a result of the subject accident. On June 26, 2013, Dr. Madhok
was served with a subpoena to testify at a deposition on July 23, 2013. Defense counsel’s office
called Dr. Madhok on July 10, 2013 to confirm his appearance at the deposition, but was
informed that Dr. Madhok would be out of the country on the scheduled date and requested that
the deposition be rescheduled to August 7, 2013. Attempts by defense counsel’s office to contact
Dr. Madhok on August 6, 2013 and August 7, 2013 to confirm his appearance at the deposition
were unsuccessful. Thereafter, defense counsel sent a letter to Dr. Madhok on August 21, 2013
advising him that the deposition was rescheduled for August 29, 2013. Attempts by defense
counsel to confirm Dr. Madhok’s appearance at the deposition were again unsuccessful. Defense
counsel appeared to conduct Dr. Madhok’s deposition on August 29, 2013, but after 40 minutes
Dr. Madhok had failed to appear. Defense counsel continued to make further attempts to contact
Dr. Madhok to reschedule the deposition, but to no avail. Although on September 4, 2013, Dr.
Madhok called to reschedule the deposition, he failed to respond to defense counsel’s requests
for an available date to conduct the deposition. It appears that while Dr. Madhok indicated on
two occasions his willingness to reschedule the deposition, he has failed to return telephone calls
or cooperate with defense counsel despite defense counsel’s repeated attempts over three months
to schedule his deposition at his convenience. Accordingly, upon receipt of this order, defense
counsel, plaintiff’s counsel and Dr. Madhok are directed to meet and confer to determine a date
certain for the deposition of Dr. Madhok which is to be held on or before November 27, 2013.
The witness is warned that failure to comply with this order may result in the imposition of
sanctions. The plaintiff is further cautioned that Dr. Madhok’s failure to appear for a deposition
may result in a report and recommendation that plaintiff be precluded from calling Dr. Madhok at
trial or offering his testimony or medical records at trial. Plaintiff’s counsel is directed to
personally serve a copy of this order on Dr. Madhok forthwith.
Dated: Central Islip, New York
November 12, 2013

SO ORDERED:
________/s/________________
ARLENE ROSARIO LINDSAY
United States Magistrate Judge