Shenoy v. Charlotte-Mecklenburg Hospital Authority et al

Filing 135

ORDER granting 108 Motion for Protective Order; denying 109 Motion to Compel; granting in part and denying in part 123 Motion for Protective Order. Signed by Magistrate Judge David Keesler on 8/12/11. (gpb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:08-CV-125-GCM
B. VITTAL SHENOY, M.D.,
Plaintiff,
v.
CHARLOTTE-MECKLENBURG HOSPITAL
AUTHORITY, d/b/a CAROLINAS
HEALTHCARE SYSTEM, MERCY HEALTH
SERVICES, INC., MERCY HOSPITAL, INC.,
MICHAEL C. TARWATER, PAUL S. FRANZ,
C. CURTIS COPENHAVER, WILLIAM K.
BROWN, DENNIS J. PHILLIPS, JAMES E. S.
HYNES, CAROLINAS PATHOLOGY
GROUP, P.A., EDWARD H. LIPFORD, M.D.,
MARIE-CLAIRE C. MARROUM, M.D.,
FILMON M. SEXTON, M.D., and SANFORD
P. BENJAMIN, M.D.,
Defendants.
_______________________________________

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER

THIS MATTER IS BEFORE THE COURT on Defendant Carolinas Pathology Group,
P.A.’s “Motion For Protective Order Concerning Rule 30(b)(6) Deposition...” (Document No. 108);
“Plaintiff’s Motion To Compel And For Sanctions” (Document No. 109); and “Defendant The
Charlotte-Mecklenburg Hospital Authority’s Motion For Protective Order Limiting Rule 30(b)(6)
Deposition” (Document No. 123). These motions were referred to the undersigned Magistrate Judge
on July 6, 2011, pursuant to 28 U.S.C. § 636(b), and are now ripe for disposition. Having carefully
considered the motions, the record, and applicable authority, the undersigned will grant the motions
in part, and deny the motions in part.
BACKGROUND
Plaintiff B. Vittal Shenoy, M.D. (“Plaintiff”) filed a “Complaint” (Document No. 1)

initiating this action on March 21, 2008. Plaintiff then filed an “Amended Complaint” (Document
No. 22) on April 24, 2008, and a “Second Amended Complaint” (Document No. 72) on June 4,
2009. Following a motion hearing on August 26, 2009, the Honorable Graham C. Mullen issued
an “Order” (Document No. 76) dismissing several claims from the Second Amended Complaint and
thus significantly pruning the case from a “jungle” to a “garden variety contract dispute.”
(Document No. 90, p.4). Purportedly, Judge Mullen informed the parties at the conclusion of the
hearing that it was his hope that the parties could now proceed to discovery on the real issues in this
case.
The “Pretrial Order And Case Management Plan” (Document No. 84) was entered on
February 19, 2010, allowing each party to “propound no more than 25 single part interrogatories;
and . . . depose no more than 6 fact witnesses without prior approval of the court” and to “submit
a maximum of 25 requests for admission by each party to any other party.” (Document No. 84, p.1).
The “Pretrial Order And Case Management Plan” set deadlines for discovery completion – October
25, 2010; motions – November 29, 2010; and trial – March 7, 2011. (Document No. 84, p.2). Case
deadlines have been subsequently revised pursuant to the Court’s Order on June 21, 2011; the
current deadline for summary judgment motions is October 17, 2011, and the case is set for trial
March 5, 2012.
“Plaintiff’s Motion For Leave To Take Additional Depositions And Limited Additional
Discovery” was referred to the undersigned on March 30, 2011. On April 8, 2011, the undersigned
granted “Plaintiff’s Motion For . . . Additional Discovery” with modification. (Document No. 106).
The Court “according broad and liberal construction to the rules of discovery,” allowed Plaintiff to
conduct additional discovery “provided it is properly ‘limited and focused’ and relevant to the
remaining claims in this action.” (Document No. 106, p.4) (emphasis added). The Order
2

specifically allowed Plaintiff to take up to four (4) additional depositions, not to exceed sixteen (16)
hours, and allowed Plaintiff to serve interrogatories and requests for admission within the numerical
limitation of the original “Pretrial Order....” Id.
Defendant Carolinas Pathology Group, P.A.’s (“Defendant CPG”) “Motion For Protective
Order Concerning Rule 30(b)(6) Deposition...” (Document No. 108) was filed May 16, 2011;
“Plaintiff’s Motion To Compel And For Sanctions” (Document No. 109) was filed May 31, 2011;
and “Defendant The Charlotte-Mecklenburg Hospital Authority’s Motion For Protective Order
Limiting Rule 30(b)(6) Deposition” (Document No. 123) was filed July 7, 2011. Following various
extensions of time to respond and reply, all of the pending motions were ripe for review by August
5, 2011.
DISCUSSION
A. Defendant CPG’s “Motion For Protective Order Concerning Rule 30(b)(6) Deposition...”
(Document No. 108).
Defendant CPG seeks a protective order regarding a notice of a deposition served on May
11, 2011. (Document No. 108, p.4). Defendant CPG contends that the notice “was not timely
served and that many of the proposed ‘Topics for Deposition’ defined in the notice are, in whole or
in part, overly broad, unduly burdensome, unduly cumulative, and seek information neither relevant
to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible
evidence.” (Document No. 108, p.1). The undersigned finds Defendant CPG’s arguments
persuasive.
As an initial matter, the undersigned observes that the Court in its discretion allowed Plaintiff
the opportunity to conduct additional discovery, beyond that which is typically allowed; however,
the Court explicitly instructed Plaintiff that such discovery be limited, focused, and relevant to the
3

remaining claims in this action. (Document No. 106). Plaintiff’s remaining claims against
Defendant CPG are: (1) breach of employment contract; (2) section 1983 claim based on due
process rights; (3) section 1983 claims based on free speech rights; and (4) a claim of retaliatory
termination under the False Claims Act. (Document No. 108, p.4). It appears that Plaintiff has
failed to adequately heed the guidance of both Judge Mullen and the undersigned, to narrow any
additional discovery to issues relevant to these remaining claims.
The undersigned finds that Defendant CPG makes a sound argument regarding the timeliness
of the underlying deposition notice; moreover, the Court finds that Defendant CPG’s “proposed
compromise topics” are imminently reasonable and provided a fair resolution to this discovery
dispute on May 13, 2011. (Document No. 108, pp.3-4; Document No. 108-4, pp.1-3).
Based on the foregoing, the undersigned will grant Defendant CPG’s “Motion For Protective
Order...” (Document No. 108) and require that the Rule 30(b)(6) deposition of Defendant CPG be
limited to the topics as proposed in Document No. 108-4, or to the extent the parties can otherwise
agree. Defendant CPG’s 30(b)(6) deposition shall be held as soon as practicable, but not later than
September 12, 2011.
B. “Plaintiff’s Motion To Compel And For Sanctions” (Document No. 109).
Plaintiff seeks to compel Defendant CPG and The Charlotte-Mecklenburg Hospital Authority
d/b/a Carolinas Healthcare System (“Defendant CHS”) (together “Defendants”) to produce
documents responsive to seventy-nine (79) requests which Plaintiff contends are highly relevant to
Plaintiff’s claims. (Document No. 110, p.5). Defendants first argue that Plaintiff’s motion to
compel is untimely. (Document Nos. 117 and 119). The undersigned agrees.
It appears that the extensions of time sought by the parties, and allowed by the Court, since
the expiration of the original discovery deadline on October 25, 2010, and the motions deadline of
4

November 29, 2010, were intended by all concerned to be for the purposes of completing
depositions, limited additional discovery, and filing summary judgment motions. See (Document
Nos. 84, 96, 104, 106). In fact, the most recent motion seeking to extend case deadlines, the parties’
“Joint Motion To Alter Summary Judgment Motion Deadline And To Continue Trial Date” provided
in pertinent part as follows:
1. The original motions deadline in this matter expired
November 29, 2010.
2. By order of December 2, 2010, the Court extended the
motions deadline, for summary judgment motions, to March 3,
2011. This deadline has since been extended to July 1, 2011.
3. The original discovery deadline in this matter expired
October 25, 2010. A limited extension of the discovery deadline
expired June 1, 2011.
(Document No. 116) (emphasis added).
Plaintiff now asserts in its reply brief in support of the motion to compel that its motion is
timely since it was filed prior to the June 1, 2011, close of discovery and the July 1, 2011, motions
deadline. Plaintiff’s instant motion, however, addresses discovery requested and responded to prior
to the October 25, 2010, discovery deadline. As the parties acknowledged in their recent joint
motion, the extended motions deadline was for summary judgment, and discovery was extended for
the limited purpose of completing depositions and possibly other limited and focused additional
discovery, as allowed by the Court on April 8, 2011. (Document No. 106, 116). The instant motion
runs counter to the clear purpose of the deadlines, as recognized by Plaintiff himself. The Court did
not explicitly, or implicitly, extend any deadlines for the purpose of allowing a party to file a motion
to compel six months or more after the applicable deadlines, nor did Plaintiff ever request an
extension of time to file its motion to compel. In contrast, the two other motions addressed by this

5

Order relate to additional limited discovery allowed by the Court on April 8, 2011, and are timely
filed.
Despite the delays, this case is entering its final phase, as it should. As Defendants suggest,
the time for Plaintiff to complain about Defendants’ responses to his production requests that were
provided in October 2010, has passed. Based on the foregoing, the undersigned will deny
“Plaintiff’s Motion To Compel And For Sanctions” (Document No. 109).
C. Defendant The Charlotte-Mecklenburg Hospital Authority’s Motion For Protective Order
Limiting Rule 30(b)(6) Deposition” (Document No. 123).
Like Defendant CPG, Defendant CHS also seeks limitations on its 30(b)(6) deposition.
Defendant CHS received a notice of deposition from Plaintiff on or about May 12, 2011, listing 17
topic areas. Defendant CHS contends that much of the information sought is over a decade old, and
that all but two (2) of the proposed deposition topics are irrelevant to the actual claims or defenses,
unreasonably duplicative, and/or unduly burdensome. (Document No. 123, p.2).
As explained above, the Court allowed Plaintiff the opportunity to conduct some additional
discovery; however, the Court instructed that such discovery be limited and relevant to the
remaining claims. Plaintiff’s remaining claims against Defendant CHS are: (1) section 1983 based
on free speech; (2) section 1983 based on due process; (3) retaliation under False Claims Act; (4)
breach of contract; and (5) tortious interference with contract. (Document No. 126, p.2). Defendant
CHS contends that
The only action by any of the CHS Defendants related to
Plaintiff was the March 18, 2005 request by Curtis Copenhaver,
formerly president of CMC-Mercy and responsible for
CMC-Pineville, that CPG remove Plaintiff as medical director of the
pathology laboratory and as a pathologist assigned to CMC-Pineville.
. . . The uncontroverted evidence shows that Mr. Copenhaver made
the decision to request Plaintiff’s removal due to Plaintiff’s hostile,
6

unprofessional outbursts and verbal attacks in March 2005 during
medical staff meetings. . . . . In deposition, Plaintiff conceded his
outbursts were inappropriate, and described one outburst as “a ten
minute – you know, it was a bully pulpit. I … used the opportunity
to … reprimand individuals. … My voice, of course, definitely I
raised a little bit.” Mr. Copenhaver testified that after witnessing
these outbursts he made the decision to request that CPG remove
Plaintiff from his assignment at CMC-Pineville.
(Document No. 126, p.3) (internal citations omitted). Defendant CHS argues that in light of the
actual claims remaining, “the relevant issues are quite narrow – the circumstances surrounding Mr.
Copenhaver’s decision to request Plaintiff’s removal as medical director, the motivation behind Mr.
Copenhaver’s decision, and any consequences of Mr. Copenhaver’s decision.” (Document No. 126,
p.6).
“Plaintiff’s Consolidated Memorandum Of Law Regarding Discovery Motions” (Document
No. 129) includes Plaintiff’s response to Defendant CHS’s pending motion.1 In short, Plaintiff
argues that Defendant CHS takes an erroneously narrow view of relevance to the remaining claims
and defenses in this lawsuit. See (Document No. 129, pp.4–6, 31-40).
The undersigned will briefly address the disputed deposition topics. The Court notes that
of the 17 deposition topics in the deposition notice, topics 10 and 11 are not objected to, and Plaintiff
has withdrawn topic 13. (Document No. 133, p.3).
1. Topic 1
This topic refers to a Corporate Compliance Complaint purportedly made by Plaintiff in
1998. The undersigned agrees with Defendant CHS that it would be unduly burdensome to prepare

1

“Plaintiff’s Consolidated Memorandum Of Law...” is forty-one (41) pages long. The Local
Rules provide that “the page limit for any brief is 25 pages.” Local Rule 7.1 (D). The Court assumes
Plaintiff’s consolidation was well-intentioned; however, the undersigned finds that Plaintiff’s brief
consolidating a response to one motion, and a reply to another motion, violated the Local Rules and
unnecessarily complicated the Court’s review of the issues.

7

a witness to discuss the specifics of the related investigation. Plaintiff may seek testimony more
generally related to Plaintiff’s alleged “lack of cooperation in many ways during the last ten years”
referenced in (Document No. 192-2).
2. Topic 2
This topic relates to a qui tam action apparently filed by Plaintiff and a related OIG
investigation. The undersigned is persuaded that testimony on this subject would be duplicative
and/or irrelevant to the remaining claims. See (Document No. 129, p.33; Document No. 133, p.6).
3. Topic 3
This topic relates to the “Sunquest Co-Path System” and Plaintiff contends that it seeks
information “calculated to lead to the discovery of admissible evidence of CPG’s entertwinement
with a public entity.” (Document No. 129, p.14). For the reasons stated by Defendant CHS, the
undersigned agrees that testimony on this topic should not be required. See (Document No. 126,
p.9; Document No. 133, p.7).
4. Topic 4
This topic seeks testimony related to a “Bar Code Tracking System.” Based on the
arguments before the Court, the undersigned is persuaded by Defendant CHS’ position that its
decision to use or not use this system is irrelevant to the claims and defenses in this action. See
(Document No. 133, p.7).
5. Topic 5
This topic relates to a payment of $170,000 from Defendant CPG to Defendant CHS. The
undersigned is not persuaded that this issue is sufficiently related to any claims or defenses to be an
appropriate topic at deposition. See (Document No. 133 p.8).
6. Topic 6
8

For the reasons stated by Defendant CHS, the undersigned finds the testimony requested here
regarding information communicated to the CHS Board to be overly burdensome, and most likely
irrelevant. See (Document No. 126, p.11; Document No. 133 pp.8-9).
7. Topics 7 and 8
For the reasons stated by Defendant CHS, the undersigned is not convinced that the
procedure for investigating incident reports, or for handling corporate compliance complaints, are
sufficiently related to the claims in this lawsuit to be topics of the proposed deposition. See
(Document No. 133, pp.9-10).
8. Topic 9
By this topic, Plaintiff seeks “a person responsible for the oversight and management of
financial matters for CMC-Pineville and the CLN during the relevant time period, who can answer
questions about cost sharing between CHS and CPG and its affiliates.” (Document No. 129, p.37).
Again, the undersigned is not persuaded that this topic has any relevance to the remaining claims
or defenses.
9. Topic 12
In this proposed topic, Plaintiff seeks information about complaints against other physicians
who practiced in CHS Mecklenburg County hospitals. The topic is without any limitation as to the
time period. The undersigned also notes that in support of this topic, Plaintiff states that he “is
entitled to know what CHS considers disruptive or inappropriate speech or behavior.” (Document
No. 129, p.38). The undersigned finds that the topic as defined in the notice of deposition is overly
broad and not sufficiently related to the remaining issues in this lawsuit. To the extent Plaintiff
seeks testimony related to Defendant CHS’ response or reaction to his speech and conduct
specifically, or acceptable speech and conduct by employees in general, such testimony will be
9

allowed.
10. Topic 14
The undersigned is unconvinced that the individual CHS Defendants’ performance,
compensation, evaluations, bonuses or goals have any relevance to this lawsuit. Moreover,
Plaintiff’s response fails to articulate any argument for why he seeks this information. As such, this
proposed topic is one of the clearest examples of Plaintiff’s failure to heed the Court’s instruction
that the additional discovery allowed be properly limited and focused and relevant to the remaining
claims.
11. Topic 15
Under this topic, Plaintiff seeks information regarding the identity of the source and
custodian for all documents and files produced. Defendant CHS contends that it has provided a
chart to Plaintiff’s counsel that identifies the source of all documents produced by CHS Defendants
in this case. (Document No. 133, p.11). The undersigned finds Defendant CHS’ response sufficient
and will not require that a witness be made available to testify as to this topic.
12. Topic 16
This topic seeks testimony related to Plaintiff’s requests, or the requests of others for
Plaintiff, for reinstatement, due process, or peer review of his removal. Defendant CHS contends
this information is duplicative of other testimony, and that it is not relevant. (Document No. 126,
p.15; Document No. 133, p.12). In this instance, the undersigned finds that testimony related to
Plaintiff’s removal and requests for reinstatement, due process, and/or peer review is appropriate.
13. Topic 17
The last topic identified by Plaintiff’s notice of deposition seeks testimony regarding “CHS
Corporate defendants as public or government versus private entities.” Defendant CHS argues that
10

further testimony on this topic would be duplicative and unduly burdensome. The undersigned
agrees.
Based on the foregoing, the undersigned will grant in part and deny in part Defendant CHS’
“...Motion For Protective Order Limiting Rule 30(b)(6) Deposition” (Document No. 123) as fully
described above. Defendant CHS’ 30(b)(6) deposition shall be held as soon as practicable, but not
later than September 12, 2011.
CONCLUSION
IT IS, THEREFORE, ORDERED that Defendant Carolinas Pathology Group, P.A.’s
“Motion For Protective Order Concerning Rule 30(b)(6) Deposition...” (Document No. 108) is
GRANTED, as described herein.
IT IS FURTHER ORDERED that “Plaintiff’s Motion To Compel And For Sanctions”
(Document No. 109) is DENIED, as described herein.
IT IS FURTHER ORDERED that “Defendant The Charlotte-Mecklenburg Hospital
Authority’s Motion For Protective Order Limiting Rule 30(b)(6) Deposition” (Document No. 123)
is GRANTED in part and DENIED in part, as described herein.
SO ORDERED.

Signed: August 12, 2011

11