Talley v. Chautauqua Hills Ministry, Inc.

Filing 34

DECISION AND ORDER granting in part and denying in part 28 Motion to Compel. Signed by Hon. Hugh B. Scott on 10/5/2015. (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

KATLYN TALLEY,
Plaintiff,
DECISION AND ORDER
14-CV-309S
v.

CHAUTAUQUA HILLS MINISTRY, INC.,
Defendant.

I.

INTRODUCTION
The Hon. William M. Skretny referred this case to this Court under 28

U.S.C. § 636(b). (Dkt. No. 9.) Pending before the Court is a motion by defendant
Chautauqua Hills Ministry, Inc. either to preclude vocational evidence and a
vocational expert from plaintiff Katlyn Talley or to require her to complete a
defense vocational examination. (Dkt. No. 28.) Plaintiff showed up for a defense
vocational examination on August 21, 2015, at defendant’s expense, and refused
to answer questions on the advice of counsel. Defendant protests that plaintiff
voiced no substantive objection in advance and left it unable to furnish expert
discovery as required under the Court’s most recent scheduling order. Plaintiff
counters that she cooperated fully with the vocational expert and declined to
answer only a few questions about medical records, referring to the records

themselves. To the extent that defendant’s vocational expert did not prepare a
report, plaintiff blames the expert for giving up on the examination.
The Court heard oral argument on September 29, 2015. For the reasons
below, the Court grants1 defendant’s motion in part as explained below.
II.

BACKGROUND
This diversity2 case concerns allegations that a group activity involving a

zip line went badly wrong. According to the complaint, defendant runs a summer
camp called Chautauqua Hills Camp. Among other features, the camp facilities
include a zip line strung between two trees. People using the zip line could grab
a basketball attached to a rope hanging from the zip line, and then let gravity
carry them from one end of the zip line to the other. On July 21, 2012, plaintiff
used this zip line during a group activity that her church had organized at the
camp. As plaintiff slid down the zip line, the line slackened in such a way that her
motion stopped abruptly, throwing her to the ground. The fall to the ground
allegedly fractured both of plaintiff’s wrists and caused her other injuries. The
complaint contains a single claim for common-law negligence.

1

Discovery-related motions, including motions to preclude, generally are
considered non-dispositive. See, e.g., Fuller v. Summit Treestands, LLC, No.
07-CV-330, 2009 WL 483188, at *1 n.1 (W.D.N.Y. Feb. 25, 2009) (Arcara, C.J.).
2

The parties do not dispute that plaintiff is a citizen of Indiana and that
defendant is a New York corporation.
2

Up to this point, the case appears to have proceeded without incident. The
Court issued a scheduling order on August 27, 2014. (Dkt. No. 15.) The Court
amended the scheduling order at defendant’s request and with plaintiff’s consent.
(Dkt. Nos. 23, 24.) The parties have met at least once for mediation sessions
and, as late as August 24, 2015, had at least one more session scheduled. (Dkt.
No. 25.) When plaintiff requested an extension of the deadline to complete
expert discovery, the Court granted the request promptly. (Dkt. Nos. 26, 27.)
The Court had no reason to think more deeply about plaintiff’s assertion that “[a]s
of this filing, counsel for the plaintiff has not received expert reports for medical
examinations done at the defendants request by Dr. Luzi and Alan Winship.”
(Dkt. No. 26 at 1.) Neither did the Court invest too much significance in the
assertion that “plaintiff has contacted the office of both Dr. Luzi and Alan Winship
to coordinate dates for depositions for them, but has been unable to secure a
date before the expiration of the discovery deadline, September 30, 2015.” (Id.)
Plaintiff’s counsel3 further represented, as officers of the Court, that they “ha[ve]
advised counsel for the defendant, Jody E. Briandi, of this conflict. Plaintiff has
not received a response from the defendant concerning this brief extension.” (Id.
at 2.) Given that the docket appeared fairly tranquil and that the requested

3

Plaintiff has more than one attorney from the same law firm listed in the
docket as counsel of record. The Court will refer to all of the attorneys
collectively, in the plural, as plaintiff’s counsel.
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extension looked modest, the Court concluded that the parties were working
diligently on trial preparation.
Looking back, plaintiff’s motion for an extension masked events that were
not tranquil and that led to the pending motion. The background for the pending
motion began on May 22, 2015, when plaintiff and her mother visited their
counsel’s vocational expert for a vocational economic assessment. (See
generally Dkt. No. 28-5.) Plaintiff’s expert conducted a “standard vocational
interview.” (Id. at 5.) As part of the interview, “Katlyn reports difficulty performing
all aspects of respective jobs and further indicates that she intends to pursue a
career helping people and perhaps the elderly.” (Id. at 6.) Plaintiff told the expert
that she “previously attempted college coursework on two occasions. She
reported difficulty with note taking, typing reports, and test taking.” (Id.) The
expert consequently built a worklife probability table that listed plaintiff’s
education level as “Some College, No Degree.” (Id. at 45.) The report that the
expert eventually produced has a section titled “Reported Problems” on its first
page, “reported” presumably meaning that at least some of the medical and
physical problems listed there came from plaintiff during the interview. (Id. at 4.)
As will become apparent below, the Court highlights these parts of the report to
demonstrate that, at least once, plaintiff went through a full vocational interview
without restrictions on subject matter, without refusing to answer questions, and
without relying on the advice of counsel.
4

Next came defendant’s turn to conduct a vocational examination. The
examination almost did not happen, or at least almost required Court intervention,
because plaintiff’s counsel insisted that having plaintiff travel to Western New
York from her hometown in Indiana would pose an economic hardship. (See Dkt.
No. 28-7 at 3.) With reservations, and for the sake of moving forward, defense
counsel agreed to pay to have plaintiff travel to Western New York for the
vocational examination. (Id. at 6.) While the parties worked out the logistics of
the defense vocational examination, plaintiff’s counsel did not request limitations
on the scope of questioning. Plaintiff’s counsel made no objection about the
examination other than the cost of travel. Plaintiff’s counsel said nothing about
requiring defendant to rely on written records instead of questioning. Plaintiff’s
counsel did not seek a protective order from the Court with respect to any topics
or questions that might come up at the examination. The parties scheduled the
defense vocational examination for August 21, 2015 with defense expert Alan
Winship (“Winship”).
Although plaintiff spoke to her own vocational expert without restriction and
set no limitations for the defense examination, she took a different approach to
Winship than to her own expert. When plaintiff arrived on August 21, 2015,
according to Winship,
Ms. Talley reported that she was instructed by her attorney not to
answer questions pertaining to her treatment history and other
matters. She refused to answer questions regarding her present
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symptoms, physical ability/limits, activities of daily living, pain, ability
to sleep and medications. Ms. Talley would not answer questions
relating to who she is treating with, frequency and nature of
treatment and physician return to work recommendations. Ms.
Talley would not elaborate on her education and training beyond
confirming that she graduated from high school. She would not
discuss her high school courses or grades. She denied attending
college, which is in conflict with the record. She would not elaborate
on her preinjury educational/vocational aspirations. She would not
respond to questions pertaining to post injury educational/vocational
plans. She would not discuss whether she has been referred to or
has any plans to engage in vocational rehabilitation services through
Indiana. She would not discuss her occupational interests. She
would not discuss her employment history, beyond stating she is
currently employed part-time by Advanced Auto Parts as a “hub”.
She would not discuss her essential job functions or how she is
doing physical[ly] in this position.
(Dkt. No. 28-9 at 3.) Defense counsel notified plaintiff’s counsel immediately that
plaintiff was refusing to answer questions and that she would seek to preclude
vocational evidence from plaintiff’s expert. (Dkt. No. 28-8 at 3.) A surreal,
passive-aggressive correspondence ensued. Plaintiff’s counsel did not deny
directing plaintiff to refuse questions. Plaintiff’s counsel also did not deny that
Winship asked questions that plaintiff did not answer. Instead, plaintiff’s counsel
responded with a technical inventory of every fact other than plaintiff’s refusal to
answer questions. “Our client is there participating in tests. I verified this with a
phone conversation with her mother. Your expert has access to her medical
records and academic records.” (Id.) Plaintiff’s counsel then skipped ahead to a
desire to schedule a deposition of Winship. (Id.) Defense counsel also wrote
that she considered plaintiff’s refusals to be non-compliance with the
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arrangement for the vocational examination. In response, plaintiff’s counsel
dissembled by writing, “Katlyn is at the doctor’s office and is participating in tests
that he is propounding to her.” (Id. at 4.) Acknowledging obliquely that Winship
asked plaintiff questions about her education that she refused to answer,
plaintiff’s counsel made the non-responsive point that “questions about her
academics are better answered by her transcripts that you have. The questions
about her medical history are answered in her medical records . . . . Katlyn is not
refusing his questions. She is referring him to records that he already has.” (Id.
(emphasis added).) Ultimately, Winship did not complete his vocational
examination. A few days later, on September 4, 2015, plaintiff’s counsel filed the
motion for an extension that the Court described above. In retrospect, the motion
reads almost as if plaintiff’s counsel had no idea why they had not yet received an
expert report from Winship.
Defendant filed the pending motion on September 15, 2015. In support of
the motion, defendant highlights that plaintiff’s counsel made no objection to the
defense vocational examination apart from the cost of traveling. Defendant notes
that the events of August 21, 2015 did not happen accidentally; plaintiff’s counsel
stuck with their course of action even after defense counsel objected. Defendant
also emphasizes the severity of the prejudice that it faces without a defense
vocational examination, given that plaintiff’s expert has asserted a loss of earning
capacity as high as $362,365 in terms of present value.
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Plaintiff’s counsel filed opposition papers on September 24, 2015.
Counsel’s first argument takes three pages to discuss information available from
plaintiff’s deposition, medical records, and other documents. (Dkt. No. 32 at 2–4.)
What this has to do with refusing questions on August 21, 2015 is unclear.
Counsel then attached plaintiff’s medical records to their opposition papers (Dkt.
No. 32-2); the Court cannot discern what purpose the attachment served, except
to disseminate plaintiff’s date of birth in a public docket in violation of Rule 5.2(a).4
Plaintiff’s counsel then refer to an affidavit submitted by plaintiff’s mother, who
accompanied plaintiff to the defense vocational examination. (Dkt. No. 32-6.)
This carefully tailored affidavit avoids addressing whether plaintiff refused to
answer questions about treatment history; present symptoms; physical
ability/limits; activities of daily living; ability to sleep; current treating physicians
and their work recommendations; education and training; high school courses or
grades; preinjury educational/vocational aspirations; post-injury
educational/vocational plans; vocational rehabilitation services; occupational
interests; employment history beyond current employment; and essential job
functions. The affidavit states only that plaintiff answered unspecified questions
about her “background”; the alleged accident; pain and current medications; and
her current employment. By attaching an affidavit from plaintiff’s mother, counsel

4

In fairness, defense counsel committed the same violation when she did
not redact plaintiff’s date of birth from Exhibit D of her motion papers.
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bring attention to the absence of an affidavit from plaintiff herself. Counsel then
assert that plaintiff answered all questions as best she could; that Winship had
access to documents that would have answered all of his questions; and that in
any event, the Court cannot impose sanctions because it did not first issue a
discovery order that plaintiff would have violated. At oral argument, plaintiff’s
counsel also tried to defend the absence of an affidavit from plaintiff by
contending that it would have been unnecessarily cumulative of her mother’s
affidavit.
III.

DISCUSSION
“A lawsuit is supposed to be a search for the truth, and the tools employed

in that search are the rules of discovery. Our adversary system relies in large
part on the good faith and diligence of counsel and the parties in abiding by these
rules and conducting themselves and their judicial business honestly.” Metro.
Opera Ass’n, Inc. v. Local 100, Hotel Employees & Rest. Emps. Int’l Union, 212
F.R.D. 178, 181 (S.D.N.Y. 2003) (internal quotation marks and citations omitted).
Rule 37 helps enforce proper conduct. “On notice to other parties and all affected
persons, a party may move for an order compelling disclosure or discovery. 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.” FRCP 37(a)(1); cf. U.S.
Bancorp Equip. Fin., Inc. v. Babylon Transit, Inc., 270 F.R.D. 136, 140–41
9

(E.D.N.Y. 2010) (finding that email exchanges and other communications can
fulfill the “meet and confer” requirement of Rule 37). Rule 35 also applies in the
specific instance of vocational examinations. See Malone v. Med Inn Ctrs. of
Am., LLC, No. 00-CV-0720E(SR), 2004 WL 1080155, at *2 (W.D.N.Y. Apr. 20,
2004) (Elfvin, J.) (ordering a vocational examination under Rule 35). When
assessing motions to preclude or to compel for possible abuse of discovery rules,
courts ultimately seek to deter “general obstinacy unconnected with the merits of
the case.” Wright v. Jackson, 522 F.2d 955, 958 (4th Cir. 1975); cf. Lipsig v. Nat’l
Student Mktg. Corp., 663 F.2d 178, 180–81 (D.C. Cir. 1980) (“A party is not to be
penalized for maintaining an aggressive litigation posture, nor are good faith
assertions of colorable claims or defenses to be discouraged. But advocacy
simply for the sake of burdening an opponent with unnecessary expenditures of
time and effort clearly warrants recompense for the extra outlays attributable
thereto.”).
Here, the circumstances easily weigh in favor of granting defendant some
kind of relief. Plaintiff underwent a full vocational examination with her own
expert. Defendant is seeking only an equal opportunity to evaluate the vocational
issues that plaintiff has placed in controversy. Cf. Olcott v. LaFiandra, 793 F.
Supp. 487, 492 (D. Vt. 1992) (“Plaintiff has maintained that she cannot effectively
enter the work force due to her injuries that are the subject of this lawsuit, and
has thus retained her own rehabilitation expert who will testify to that effect and to
10

plaintiff's future needs. Defendants would be prejudiced if denied the opportunity
to have their own expert perform a similar vocational rehabilitation evaluation of
plaintiff.”). Plaintiff’s counsel never sought a protective order and agreed to a
defense vocational examination without substantive conditions. Plaintiff’s counsel
did not advise defense counsel that any topics were off-limits or that defendant
would have to use documents to address any issues. Only after defense counsel
fronted the money to bring plaintiff to the examination, and only after the
examination began, did plaintiff’s counsel spring restrictions and refusals to
answer on defense counsel and on Winship. When confronted directly and
immediately with the surprise restrictions and refusals, plaintiff’s counsel skirted
the issue by referring to documents, plaintiff’s lack of knowledge, and questions
that plaintiff did answer. Plaintiff’s counsel continued this embarrassing passive
aggression even through oral argument, where they insisted that plaintiff
answered all but a few questions about medical treatments. Plaintiff’s counsel
even went as far as to dissemble about the absence of an affidavit from plaintiff,
claiming that a sworn affidavit from a 20-year-old adult woman who is the sole
named plaintiff was cumulative and unnecessary given a carefully structured
affidavit from her mother. Plaintiff’s counsel may have considered this behavior a
clever way to shield their client from expert scrutiny, but the Court will not allow
uneven treatment of vocational experts across parties.

11

The only question that remains is what remedy the Court should fashion in
response to plaintiff’s counsel’s conduct. Plaintiff’s counsel have argued that they
cannot be sanctioned—yet—because they have not yet violated a court order
compelling discovery. They are right. See Daval Steel Prods. v. M/V Fakredine,
951 F.2d 1357, 1363 (2d Cir. 1991) (“The language of Rule 37(b)(2) requires a
prior order, but does not by its terms specifically require an order issued pursuant
to Rule 37(a). Consequently, a Rule 37(a) order is merely one of the orders that
can trigger sanctions under Rule 37(b)(2). Provided that there is a clearly
articulated order of the court requiring specified discovery, the district court has
the authority to impose Rule 37(b) sanctions for noncompliance with that order.”)
(citations omitted). Plaintiff’s counsel also should receive some sort of notice
before facing sanctions under 28 U.S.C. § 1927. See Oliveri v. Thompson, 803
F.2d 1265, 1280 (2d Cir. 1986) (“Courts should be sensitive to the impact of
sanctions on attorneys. They can be economically punishing, as well as
professionally harmful; due process must be afforded. This does not mean,
necessarily, that an evidentiary hearing must be held. At a minimum, however,
notice and an opportunity to be heard is required.”); accord Brignoli v. Balch,
Hardy & Scheinman, Inc., No. 86 CIV. 4103 (RWS), 1989 WL 146767, at *8
(S.D.N.Y. Dec. 1, 1989). Given these principles, the Court will focus on moving
the case forward and on giving plaintiff’s counsel appropriate notice. Within 14
days of the date of this Decision and Order—or as soon thereafter as Winship is
12

available, if he cannot be available within 14 days—plaintiff will undergo an
unrestricted vocational examination by Winship at Winship’s office. At a
minimum, Winship’s examination and eventual report will cover the same
questions and topics addressed in plaintiff’s expert report. To avoid any more
nonsense about what was or was not asked and answered, any interview that
Winship conducts as part of the overall examination will be stenographically
recorded. The stenographer will prepare a certified copy of the transcript for both
defense counsel and the Court within one week of the examination. Plaintiff’s
counsel will not have access to the transcript. Plaintiff’s law firm will bear all
expenses necessary to comply with all of the conditions set forth above. There
will be no extensions or exceptions under any circumstances. Failure to comply
with any of the above conditions to the Court’s satisfaction will result in sanctions
under Rule 37(b)(2) and 28 U.S.C. § 1927.
The remaining deadlines in the current scheduling order are hereby
suspended. A status conference will occur on November 3, 2015 at 2:00 PM to
determine what new scheduling will be necessary. Any attorney participating in
the status conference must appear in person.

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IV.

CONCLUSION
For all of the above reasons, the Court grants defendant’s motion (Dkt. No.

28) in part to compel a defense vocational examination as explained above. The
Court denies defendant’s motion, without prejudice, to the extent that it seeks any
other relief.
SO ORDERED.
__/s Hugh B. Scott________
HONORABLE HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE
DATED: October 5, 2015

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