Reber v. Laboratory Corporation of America et al

Filing 49

Opinion and Order issued regarding Defendants' 5/19/16 letter. Signed by Magistrate Judge Norah McCann King on 5/27/16. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRYAN D. REBER,
Plaintiff,
vs.

Civil Action 2:14-cv-2694
Judge Marbley
Magistrate Judge King

LABORATORY CORPOATION OF
AMERICA, et al.,
Defendant.
OPINION AND ORDER
This is a medical negligence and wrongful death action in which
plaintiff, proceeding on behalf of himself and as the Administrator of
the Estate of Lisa Kay Reber, alleges that defendants, medical
laboratories and a cytotechnologist, failed to properly examine,
interpret and report the results of a medical specimen, resulting in
delay in the diagnosis and treatment of the Decedent’s cancer and her
consequent death. This matter is now before the Court on defendants’
letter request (“Defendants’ May 19, 2016 Letter”) that the Court
order Licking Memorial Hospital and the Ohio State University Medical
Center to release into defense counsel’s custody the original
pathology slides of the Decedent. Plaintiff opposes the request
(“Plaintiff’s May 23, 2016 Letter”), and defendants have replied in
support of the request (“Defendants’ May 24, 2016 Letter”). Having
reviewed the submissions of the parties, the Court concludes that the
matter may be resolved on the parties’ submissions alone; neither a
conference nor a hearing is necessary.
By prior order of this Court, all non-expert discovery was to

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have been completed by April 1, 2016. Order, ECF No. 36, PageID# 472.
Primary expert reports are to be produced by June 1, 2016, and
rebuttal expert reports are to be produced by August 1, 2016. Id.
Expert discovery must be completed by October 1, 2016. Id.
Plaintiff objects to defendants’ current request on the ground
that the proposed discovery constitutes fact discovery, and that the
time for conducting such discovery is now closed. Plaintiff’s May 23,
2016 Letter. Plaintiff also notes that, prior to the close of fact
discovery, the Court – with the agreement of all parties – ordered
that two other medical facilities release the Decedent’s original
pathology slides into the parties’ custody for a period of 60 days.
Order Requiring Fairfield Medical Center to Release Original Pathology
Slides into the Parties’ Custody for 60 Days, ECF No. 47; Order
Requiring Mount Carmel Regional Medical Center to Release Original
Pathology Slides into the Parties’ Custody for 60 Days, ECF No. 48.
Defendants characterize the requested discovery as timely expert
discovery because their request does “not seek to uncover additional
facts.” Defendants’ May 24, 2016 Letter, p. 1. Defendants represent
that they collected and provided to plaintiff the medical records
related to the slides now sought by them, and explain that they did
not collect the slides themselves “because hospitals do not permit the
parties to maintain custody of pathology slides during the pendency of
litigation.” Defendants’ May 19, 2016 Letter, p. 2; Defendants’ May
24, 2016 Letter, p. 1. Defendants seek access to the slides because,
they represent, their “experts have now asked to see the original
pathology slides in order to inform any opinions they may reach in
this case.” Defendants’ May 19, 2016 Letter, p. 2.

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This Court agrees that the requested discovery is properly
characterized as fact discovery because it seeks the discovery of
information upon which defendants’ experts may base their opinions.
See Sparton Corp. v. United States, 77 Fed. Ct. 10 (2007). See also
Ruiz-Bueno v. Scott, 2014 WL 576400, *4 (S.D. Ohio Feb. 12,
2014)(Expert discovery “is devoted to the exchange of expert reports
and information about those reports, including the required Rule
26(a)(2) disclosures and depositions of the experts. . . . [S]ite
visits are fact discovery just as much as are documents productions
and depositions of fact witnesses, and must be requested during the
fact discovery period.”). Because the time for conducting fact
discovery has now closed, defendants’ requested discovery may proceed
only if the period for conducting fact discovery is reopened for that
purpose. See Fed. R. Civ. P. 16(b)(4).
Defendants have not asked to reopen fact discovery. See
Defendants’ May 24, 2016 Letter, p. 2 (“. . . Defendants do not seek
to –re-open fact discovery . . . “). Should they ask to do so, the
Court would expect that, at a minimum, they be receptive to any
request by plaintiff for equivalent access to the slides.

s/

Norah McCann King
Norah McCann King
United States Magistrate Judge

Date: May 27, 2016

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