TULLIO EMANUELE v. MEDICOR ASSOCIATES, INC. et al

Filing 158

MEMORANDUM OPINION re 131 MOTION to Compel Answers to Interrogatories and Production of Documents filed by TULLIO EMANUELE, M.D., 144 SPECIAL MASTER REPORT AND RECOMMENDATION filed by DAVID G. OBERDICK. Signed by Chief Judge Joy Flowers Conti on 7/29/2014. (blr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
United States of America ex rel. Tullio
EMANUELE,
Plaintiff,
v.

Civil Action No. 10-245 (Erie)

MEDICOR ASSOCIATES, INC., et al.
Defendants.

MEMORANDUM OPINION

I.

Introduction
Before the court is a motion filed by relator Tullio Emanuele (“relator”) to

compel answers to interrogatories and production of documents from defendants
Hamot Medical Center (“Hamot”), the individual physician defendants, and Medicor
Associates, Inc. (collectively with the individual physician defendants “Medicor”).
(ECF No. 131.) Pursuant to the parties’ joint discovery plan (ECF No. 119) and an
order of the court (ECF No. 123), discovery disputes in this case are referred to a
discovery special master. The parties initially brought the motion to compel before
the special master. The special master was unable to broker a negotiated resolution
between the parties. The parties formally filed briefs, and the special master issued a
report and recommendation dated April 29, 2014. (ECF No. 144.) Hamot and
Medicor each filed objections to the special master’s report and recommendation
(ECF Nos. 145, 146), and the relator filed responses to the objections (ECF Nos. 147,
148). After reviewing the motion to compel, the report and recommendation, and the
briefing of the parties, the court will adopt the report and recommendation as the
opinion of the court, as supplemented by this order, and grant the motion to compel
in part.

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II.

Standard of Review
The court reviews the special master’s findings of fact and conclusions of law de

novo. FED. R. CIV. P. 53(f). The court may adopt, modify, or reject wholly or in part
the report and recommendation. Id.

III.

Discussion
Before relator filed the motion to compel presently before the court, Hamot filed

a motion for a protective order (ECF No. 110), which Medicor joined (ECF No. 113).
Hamot and Medicor objected to the temporal scope of the discovery requested by
relator. Relator sought discovery concerning the period from 2001 “to the present.”
(ECF No. 131.) Hamot and Medicor argued, on grounds of relevance, that discovery
should be limited to the period relator worked at Medicor, which ended on May 31,
2005. (ECF No. 111, at 1.) The court held a hearing on December 17, 2013, and
denied defendants’ motions for protective orders. (Hr’g Tr. 42:10–14, Dec. 17, 2013,
ECF No. 127; Text minute entry dated Dec. 17, 2013.) The denial was without
prejudice to defendants raising a proportionality objection or other reason to limit
discovery. (Id.)
Hamot and Medicor did not respond to relator’s discovery requests, and relator
filed its motion to compel. Hamot and Medicor objected to the motion to compel and
the report and recommendation by reasserting that the temporal scope of discovery
should be limited to the period of relator’s employment with Medicor and by arguing
that the requested discovery is unduly burdensome and not proportional. With
respect to temporal scope of discovery, defendants improperly attempt to seek
reconsideration of the motion for a protective order. Defendants make the same
arguments and cite many of the same decisions1 that they presented to the court at
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These decisions include United States ex rel. Duxbury v. Ortho Biotech Products,
L.P., 719 F.3d 31 (1st Cir. 2013); United States ex rel. King v. Solvay S.A., Civil No.
06-2662, 2013 WL 820498 (S.D. Tex. Mar. 5, 2013); and United States ex rel.
Stewart v. La. Clinic, Civil No. 99-1767, 2003 WL 21283944 (E.D. La. June 4, 2003).
Compare Hr’g Tr. 18:5–17, and ECF No. 111, at 5 n.1, with ECF No. 145, at 5–6.

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the December 2013 hearing. It is disingenuous to claim that the court’s ruling on the
temporal scope of discovery was merely “preliminary.” Although the court at the
beginning of the hearing gave the court’s preliminary assessment to help guide the
parties’ arguments at the hearing, the decision to deny the motions for protective
orders at the conclusion of the hearing was a final decision. (See Hr’g Tr. 42:11–14.)
Reconsideration is appropriate to address changes in the controlling law, new
evidence not previously available, or clear errors of law or fact. Max’s Seafood Cafe v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Defendants did not present any evidence
or argument that would warrant reconsideration of the court’s ruling. The court
adopts the special master’s findings about the temporal scope of discovery.
The court finds that the phased discovery process proposed by the special master
adequately addresses the burden and proportionality issues raised by defendants.
Defendants did not articulate a concrete assessment of costs that would make the
phased discovery process disproportionate. The bulk of the arguable costs identified
by defendants are for discovery that relator has not requested. A ruling by the court
on the proportionality of those costs at this time would be an advisory opinion and
thus inappropriate. In re Lazy Days’ RV Center Inc., 724 F.3d 418, 421 (3d Cir. 2013).
Defendants’ objections to the special master’s report and recommendation are
therefore overruled. The court will adopt the report and recommendation as the
opinion of the court as supplemented by this memorandum opinion. An appropriate
order will be entered.
Dated: July 29, 2014

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

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