Zuelsdorf et al v. Oiler et al

Filing 2

OPINION AND ORDER denying 1 Verified Petition of Amy Zuelsdorf and Bobbie JoCook, Co-Administrators of the Estate of Adam L. Cook, Deceased, for an Order Granting Them Permission to Perpetuate Testimony of Wanda Oiler and Tod Hagins, M.D. Signed by Magistrate Judge Norah McCann King on 5/12/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

AMY ZUELSDORF, on behalf of
Adam Cook, et al.,
Petitioners,
vs.

Civil Action 2:14-mc-0015
Judge Frost
Magistrate Judge King

WANDA OILER,
et al.,
Respondents.
OPINION AND ORDER
This matter is before the Court on the Verified Petition of Amy
Zuelsdorf and Bobbie Jo Cook, Co-Administrators of the Estate of Adam
L. Cook, Deceased, for an Order Granting Them Permission to Perpetuate
Testimony of Wanda Oiler and Tod Hagins, M.D., Doc. No. 1
(“Petition”).

For the reasons that follow, the Petition is DENIED.

Petitioners Amy Zuelsdorf and Bobbi Jo Cook (“petitioners”), CoAdministrators of the Estate of Adam L. Cook, Deceased (“the Estate”)
allege that Adam Cook was arrested and transported to the Jefferson
County, Ohio Jail (“jail”) on June 23, 2013.

Petition, p. 1.

According to petitioners, Mr. Cook died of diabetic ketoacidosis
(“DKA”) because he did not receive the medical care he needed to treat
his Type 1 diabetes and alcohol withdrawal.

Id.1

Petitioners allege

that the jail’s staff’s deliberate indifference to Mr. Cook’s serious

1

Petitioners represent that DKA is a “well-known complication of Type 1
diabetes[.]” Id. at 3.

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medical conditions as well as the jail’s policies and procedures and
jail staff training resulted in Mr. Cook’s death.

Id.

Petitioners represent that they intend to file a lawsuit pursuant
to 42 U.S.C. § 1983 against Jefferson County (“the County”), Fred
Abdalla, the County’s Sheriff, and Tod Hagins, M.D., the jail’s
medical director, in their official capacities, as well as “several
members of the Jail’s staff in their individual capacities because
each of them caused and/or contributed to Mr. Cook’s death.”
1-3.

Id. at

Petitioners seek to depose Wanda Oiler, the jail’s nurse, and

Dr. Hagins before instituting this anticipated litigation.2
Rule 27 of the Federal Rules of Civil Procedure permits a person
to take the deposition of another person under certain circumstances
before a lawsuit is filed.

More specifically, Rule 27 provides the

following:
A person who wants to perpetuate testimony about any matter
cognizable in a United States court may file a verified
petition in the district court for the district where any
expected adverse party resides. The petition must ask for
an order authorizing the petitioner to depose the named
persons in order to perpetuate their testimony. The
petition must be titled in the petitioner’s name and must
show:
(A) that the petitioner expects to be a party to an
action cognizable in a United States court but cannot
presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the
petitioner’s interest;
(C) the facts that the petitioner wants to establish
by the proposed testimony and the reasons to perpetuate it;
(D) the names or a description of the persons whom

2

Petitioners represent that counsel for Dr. Hagins, Craig G. Pelini, Esq.,
does not oppose the requested deposition. Petition, p. 8.

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the petitioner expects to be adverse parties and their
addresses, so far as known; and
(E) the name, address, and expected substance of the
testimony of each deponent.
Fed. R. Civ. P. 27(a)(1).

A court must issue an order for examination

if the petitioner satisfies the court “that perpetuating the testimony
may prevent a failure or delay of justice[.]”

Fed. R. Civ. P.

27(a)(3).
Rule 27 applies “to situations where, for one reason or another,
testimony might be lost to a prospective litigant unless taken
immediately, without waiting until after a suit or other legal
proceeding is commenced.”

8A Wright, Miller & Marcus, Fed. Prac. and

Proc., § 2071 (3d Ed. West Group 2014) (citations omitted).

See also

Ash v. Cort, 512 F.2d 909, 911 (3rd Cir. 1975) (“Rule 27 properly
applies only in that special category of cases where it is necessary
to prevent testimony from being lost.”). For instance, courts have
granted petitions to perpetuate testimony “when a witness is aged or
gravely injured and in danger of dying or there are geographical
constraints;” courts commonly deny petitions to perpetuate testimony
in cases that do not present these special circumstances.

In re

Somerville, No. 08-CV-206-JBC, 2008 U.S. Dist. LEXIS 49877, at *9-10
(E.D. Ky. June 20, 2008) (collecting cases); In re Boland, 79 F.R.D.
665, 667 (D. D.C. 1978) (denying petition to perpetuate testimony
where “[t]here is no evidence that the testimony of persons with
knowledge of the material facts relevant to petitioner’s proposed
lawsuit will be unavailable after a complaint is filed”).
Accordingly, permitting discovery to “enable a person to fish for some
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ground for bringing suit” is an abuse of Rule 27.

8A Wright, Miller &

Marcus, Fed. Prac. and Proc., § 2071 (3d Ed. West Group 2014).

See

also In re Boland, 79 F.R.D. at 668 (denying petition to perpetuate
testimony because the petitioner’s claim rested “only on the basis
that the relief is needed to permit her to draw a proper complaint”
and Rule 27 “‘is not a method of discovery to determine whether a
cause of action exists; and, if so, against whom action should be
instituted’”) (quoting Petition of Gurnsey, 223 F. Supp. 359, 360
(D.D.C. 1963)); Petition of Ferkauf, 3 F.R.D. 89, 91 (S.D.N.Y. 1943)
(“[R] ule 27 was not intended to be used as a discovery statute; its
purpose was not to enable a prospective litigant to discover facts
upon which to frame a complaint.”).
In the case presently before the Court, petitioners purport to
comply with the requirements of Rule 27(a)(1)(A) – (E).
pp. 3-7.

See Petition,

However, nowhere in the Petition do petitioners identify the

“special circumstances” that might serve to justify this prelitigation discovery.

See, e.g., Ash, 512 F.2d at 912 “[Rule 27] is

available in special circumstances to preserve testimony which could
otherwise be lost.”).

In other words, petitioners do not describe

what testimony may be lost if the depositions of Nurse Oiler and Dr.
Hagins do not proceed at this juncture.

See Biddulph v. United

States, 239 F.R.D. 291, 293 (D.D.C. 2007) (“To satisfy the court that
the testimony is needed to protect against a failure or delay of
justice, the great weight of authority requires the petitioner to show
that there is a risk of loss of the desired testimony.”).

Instead,

petitioners explain that they need these depositions in order “to
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correctly evaluate all of the causes of action” petitioners may have
against Nurse Oiler and Dr. Haggins in his individual capacity,
Petition, pp. 2, 8, and, specifically, “to determine whether, in
addition to claims of deliberate indifference, a claim of a cover-up
and concealment should be brought against Nurse Oiler[,]” id. at 6.
However, as discussed supra, Rule 27 is not appropriately utilized
simply to gather facts in order to determine what causes of actionto
pursue.

See, e.g., In re Boland, 79 F.R.D. at 668; Petition of

Ferkauf, 3 F.R.D. at 91.

Moreover, petitioners concede that they are

presently aware of at least some of their proposed claims against
different individuals or entities.

Petition, pp. 1-3 (identifying

possible defendants in connection with a forthcoming federal action
pursuant to Section 1983 asserting a claim for deliberate indifference
to a serious medical need).

Based on the present record, petitioners

have sufficient information to initiate a lawsuit; presumably, they
could move to amend their complaint should discovery disclose a basis
for additional claims.
Petitioners further argue that the grant of the Petition to take
the depositions would serve judicial economy because Nurse Oiler
and/or Dr. Hagins would be less likely to defend against a claim that
is supported by their deposition testimony.
Court disagrees.

Petition, pp. 2, 8.

This

Far from serving judicial economy, permitting

petitioners to depose Nurse Oiler and Dr. Hagins at this juncture runs
the risk of duplicative discovery, i.e., multiple depositions of the
same two deponents.

Moreover, the Court finds that the grant of the

Petition risks prejudice to Nurse Oiler who does not appear to be
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represented by counsel at this time.

See Petition, p. 7 (“Further

with the exception of Dr. Hagins, in his individual capacity and Nurse
Oiler, all of the above [individuals] are represented by attorney
Monica Waller of Lane, Alton & Horst.

Dr. Hagins is represented in

his individual capacity by attorney Craig G. Pelini.”).

But see

Petition, p. 11 (certificate of service advising that Attorney Waller
represents, inter alios, Nurse Oiler).

For all of these reasons, the

Court is not satisfied that the requested testimony “may prevent a
failure or delay of justice[.]”

Fed. R. Civ. P. 4(a)(3).

WHEREUPON, the Verified Petition of Amy Zuelsdorf and Bobbie Jo
Cook, Co-Administrators of the Estate of Adam L. Cook, Deceased, for
an Order Granting Them Permission to Perpetuate Testimony of Wanda
Oiler and Tod Hagins, M.D., Doc. No. 1, is DENIED.

May 12, 2014

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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