Weber v. Conway Transportation Services, Inc. et al

Filing 21

ORDER granting in part and denying in part 15 Motion to Compel; finding as moot 17 Motion to Compel. Depositions shall be completed by 4/26/2019. Plaintiff's expert witness identification due by 5/17/2019. Defendants' expert witness identification due by 6/14/2019. Depositions of expert witnesses due by 8/23/2019. Dispositive motions due by 9/20/2019. Signed by Hon. H. Kenneth Schroeder Jr. on 1/14/2019. (KER)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WADE WEBER,
Plaintiff,
v.
17-CV-832S(Sr)
CONWAY TRANSPORTATION
SERVICES, INC., et al.,
Defendants.

DECISION AND ORDER
This case was referred to the undersigned by the Hon. William M.
Skretny, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters. Dkt. #3.

FACTS
Plaintiff commenced this personal injury action following a slip and fall at
defendants’ loading dock on December 12, 2014. Dkt. #15-1, ¶ 5.

Plaintiff’s Rule 26(a) Initial Disclosures indicate that plaintiff was employed
by Ryder Truck Rental on December 12, 2014, and submitted a Workers’
Compensation Claim for injuries sustained on defendants’ premises. Dkt. #15-1, ¶ 11.
Plaintiff continues to work at Ryder Truck Rental, but medical records indicate
complaints by plaintiff that his left shoulder rotator cuff tear was interfering with his
ability to perform his job. Dkt. #15-1, ¶¶ 15-18. Plaintiff declined to provide employment

records on the ground that he was not currently making a claim for lost wages, past or
future, but advised that an authorization for workers’ compensation records would be
provided. Dkt. #15-14, pp.3 & 6.

By letters dated October 4, 2017, November 6, 2017, December 19, 2017,
January 9, 2018, February 5, 2018, March 22, 2018, defendants requested
authorizations for release of the Workers’ Compensation Board and Workers’
Compensation Carrier files. Dkt. #15-5.

By letter dated March 22, 2018, defendants also requested an
authorization for plaintiff’s primary care physician(s) for the five years preceding the
date of the accident through the present, limited to the body parts allegedly injured in
this accident, and an authorization for plaintiff’s employment records at Ryder Truck
Rental since there were references in plaintiff’s medical records that his shoulder injury
affected his ability to perform his job. Dkt. #15-5.

On April 24, 2018, plaintiff served defendants with a first notice for
discovery and inspection. Dkt. #17. Plaintiff requested a response to his discovery
demands by letter dated June 8, 2018. Dkt. #17-2.

On June 13, 2018, defendants moved to: (1) compel authorizations for
release of records from the Workers’ Compensation Board and Workers’ Compensation
Carrier, employment records from Ryder Truck Rental and medical records from
-2-

plaintiff’s primary care physician for the five years preceding the incident at issue in this
lawsuit through the present; (2) extend the Case Management Order for an additional
180 days; and (3) award attorneys’ fees and costs. Dkt. #15. In support of their motion,
defendants argue that employment records and primary care records would indicate
whether plaintiff had any prior shoulder issues which interfered with his ability to
perform his job as a diesel mechanic and the extent to which the incident on December
12, 2014 was affecting his physical health. Dkt. #15-1, ¶ ¶ 19 & 23. Defendants seek an
extension of the Case Management Order because they have been unable to conduct
plaintiff’s deposition pending receipt of outstanding discovery. Dkt. #15-1, ¶ 26.

In response, plaintiff’s attorney affirmed that he had provided an
authorization for the medical providers whose records would be contained in the
Workers’ Compensation files and had also served a complete copy of all the medical
records currently contained in the Workers’ Compensation Board file. Dkt. #17-1, ¶ ¶ 56. Plaintiff argues that defendants are not entitled to authorizations to obtain records
from the Workers’ Compensation Board, Workers’ Compensation Carrier or Ryder
Truck Rental. Dkt. #17-1, ¶¶ 13-14. With respect to the request for authorization to
obtain records from plaintiff’s primary physician, plaintiff’s attorney argues that
defendants have failed to make a good-faith showing that such records contain any
reports of injuries or treatment to plaintiff’s left shoulder prior to December 12, 2014.
Dkt. #17-1, ¶ 15. Plaintiff’s attorney states that plaintiff did not treat with a primary care
doctor for an injury to his left shoulder prior to December 12, 2014. Dkt. #17-1, ¶ 8.

-3-

Plaintiff’s attorney cross-moves to compel defendants’ responses to
plaintiff’s first notice for discovery and inspection, which were served on April 24, 2018,
despite a letter dated June 8, 2018 requesting a response . Dkt. #17, ¶¶ 10-11.

Defendants provided responses to plaintiff’s first notice for discovery and
inspection on July 26, 2018. Dkt. #20-1.

DISCUSSION AND ANALYSIS
Fed. R. Civ. P. 26(b)(1) provides, in relevant part:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and
proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties’ relative access to relevant
information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely
benefit. Information within the scope of discovery need not
be admissible in evidence to be discoverable.
Motions to compel are “entrusted to the sound discretion of the district court.” In re
Fitch, Inc., 330 F.3d 104, 108 (2d Cir. 2003), quoting United States v. Sanders, 211
F.3d 711, 720 (2d Cir.), cert. denied, 531 U.S. 1015 (2000).

Defendants are not required to rely upon plaintiff’s counsel to provide
plaintiff’s medical records and is entitled to determine whether plaintiff had previously
experienced any injury similar to that for which he currently seeks compensation. As a
result, plaintiff shall provide the defendants with an authorization for release of all

-4-

workers’ compensation records from the Workers’ Compensation Board and Workers’
Compensation Carrier and an authorization for release of medical records from
plaintiff’s primary care provider for the five years preceding the injury at issue in this
lawsuit through the present. See Robinson v. United States, 205 F.R.D. 104, 107
(W.D.N.Y. 2001) (requiring plaintiff to sign authorization for release of all workers’
compensation and employment records to determine whether plaintiff had a prior
injury).

To the extent that plaintiff claims that his injury has affected his ability to
perform his job duties, defendants are entitled to obtain employment records
documenting the extent and duration of plaintiff’s limitations. Accordingly, absent an
affirmation from plaintiff that his injury has not affected his ability to perform his job
duties at Ryder Truck Rental, plaintiff shall provide defendants with an authorization
requesting that his employer disclose any documentation of plaintiff’s injury or inability
to perform his job duties due to injury that is contained in his employment record.

Rule 37(a)(5)(A) of the Federal Rules of Civil Procedure provides, in
relevant part, as follows:
If the motion [to compel disclosure or discovery] is granted –
or if the disclosure or requested discovery is provided after
the motion was filed – the court must, after giving an
opportunity to be heard, require the party or deponent whose
conduct necessitated the motion, the party or attorney
advising that conduct, or both of them to pay the movant’s
reasonable expenses incurred in making the motion,
including attorney’s fees. But, the court must not order this
payment if:
-5-

(I)

the movant filed the motion before attempting
in good faith to obtain the disclosure or
discovery without court action;

(ii)

the opposing party’s nondisclosure, response,
or objection was substantially justified; or

(iii)

other circumstances make an award of
expenses unjust.

Although the Court has substantially granted defendants’ motion to compel, the Court
finds that an award of attorney’s fees is not warranted given defendants’ own delay in
responding to plaintiff’s first notice for discovery and inspection.

Plaintiff shall comply with this Decision and Order by January 25, 2019.

Depositions, and related discovery, shall be completed by April 26, 2019.

Plaintiff’s expert witness identification shall be disclosed by May 17, 2019.
Defendants’ expert witness identification shall be disclosed by June 14, 2019.
Depositions of expert witnesses shall be completed by August 23, 2019.

Dispositive motions shall be filed by September 20, 2019.

SO ORDERED.
DATED:

Buffalo, New York
January 14, 2019
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
-6-