Szeinbach v. The Ohio State University

Filing 247

ORDER denying 241 Motion for Discovery Conference, but ruling on the discovery issues based on the submissions of counsel. Signed by Magistrate Judge Mark R. Abel on 3/27/2014. (Abel, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Sheryl L. Szeinbach,

:
Plaintiff

v.

:

Civil Action 2:08-cv-00822

:

The Ohio State University,
Defendant

:

Magistrate Judge Abel

:

Order
Plaintiff Szeinbach’s March 12, 2014 motion for a status conference to address
discovery issues (doc. 241) is DENIED, but based on the submissions by counsel the
following discovery rulings are made.
Defendant’s deposition of plaintiff Szeinbach on damages. I agree with defendant that Dr. Szeinbach’s deposition is incomplete because her tax returns were not
available. But so long as defendant’s counsel had plaintiff’s discovery responses in their
possession at the time they deposed Dr. Szeinbach, the lack of verification did not
prevent them from questioning her. She was under oath and could have been asked to
verify her discovery answers and been cross-examined about them.
Defendant’s demand for an expert report from Dr. Kendra McCaney, M.D.
Generally, treating physicians and psychologists are not specially retained within the
meaning of Rule 26(a)(2)(B). Fielden v. CSX Transportation, Inc., 482 F.3d 866, 869-71 (6th
Cir. 2007). Unlike specially retained experts, treators make available office notes and

other treatment records created for the purpose of providing medical care over a period
of time to their patient. Their business is providing medical care to patients, not
providing expert opinions for litigation. They should not be burdened with preparing a
Rule 26(a)(2) report. Plaintiff as a party is required to respond to interrogatories about
what medical opinions plaintiff intends to elicit from treators. Defendant has failed to
demonstrate that Dr. McCaney should be considered a specially retained expert who is
required to prepare Rule 26(a)(2) disclosures.
Depositions to authenticate documents. Plaintiff has failed to demonstrate why
the documents Dr. Roig used to make his Rule 26(a)(2) disclosures were not authenticated before discovery was closed. The hearsay issues existed when he made the report.
The fact that his report was stricken is not a ground to reopen that discovery.

s/Mark R. Abel
United States Magistrate