SALVADORI v. JONES

Filing 23

MEMORANDUM OPINION & ORDER re 21 MOTION to Compel Discovery Responses and Authorizations filed by Defendant TODD JONES indicating that said Motion is DENIED. Court will permit Defendant to serve an Interrogatory limited to whether Pla intiff has undertaken any travel since the accident at issue in this case occurred, as well as any questions related to any actual travel, on Plaintiff no later than 1/19/16; Plaintiff's response to Interrogatory due no later than 1/27/16. Signed by Judge Maurice B. Cohill on 1/12/16. (rtw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK D. SALVADORI,
Plaintiff
v.
TODD JONES, individually and
trading and doing business as
T.J.'S TRUCKING,
Defendant.

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Civil No. 14-1352

MEMORANDUM OPINION and ORDER on DEFENDANT'S MOTION TO COMPEL

Presently before the Court is Defendant's Motion to Compel (ECF No. 21), and
Plaintiffs Response in Opposition thereto (ECF No. 22). For the reasons that follow we will
deny Defendant's motion.
Background
In Interrogatories served on December 30, 2014, Defendant sought information related to
Plaintiffs claims for loss of earnings. Plaintiff responded to Defendant's Interrogatories on
March 12,2015, indicating that Plaintiff seeks annual lost earnings of approximately $92,281.80.
In support of Plaintiffs claim, he produced his Federal Income Tax Returns for the years 2009
through 2013. Plaintiff also produced earning statements from the employer he worked for when
the accident at issue occurred, Farmers Propane, which indicate that he was making between
$19.00 and $21.00 per hour for regular time, and $31.50 for overtime.
Plaintiffs tax returns indicate earnings as follows: $44,000 in 2009; $61,000 in 2010;
$2,000 in 2011; $19,000 in 2012; and $5,000 in 2013. Plaintiff explains the discrepancy
between his claim for lost earnings being so much higher than what he has historically earned as

follows. First, he indicates that he suffered a work-related accident in August 2010, which
negatively impacted his income in 2010, 2011, and 2012. In addition, he states that he did not
work at all from January to August 2012, and that he suffered the accident at issue in this case in
February 2013. He further explains that his claim for lost earnings is based on his regular and
overtime hourly wage he earned at Farmers Propane, considering a work week of 65 to 70 hours
(presumably the number ofhours he would work when healthy).
In addition, during his deposition Plaintiff testified about how the accident has affected
his mobility and travel. He testified that he has difficulty walking more than ten feet or a block,
although sometimes he says he could walk a block from his home, tum around and walk the
block back home. Salvadori Dep., 10116/2015, at 118-119. He testified that the longest distance
he has walked since the accident is one-half to three-quarters of a mile. Salvadori Dep.119. He
further testified that he used to go on weekend trips but he no longer takes those trips anymore
because, "whenever I get to my destination, I just want to try and lay in bed[,] so what's the
sense in doing it?'' Salvadori Dep.139.

Motion to Compel
In a Second Set of Interrogatories and Requests for Production of Documents served on
July 24,2015, Defendant sought Plaintiffs bank records and credit card accounts along with
authorizations to retrieve related documents. Plaintiff has objected to this request and refused to
produce the information and provide the requested authorizations. Accordingly, Defendant seeks
an Order compelling Plaintiff to provide complete responses to the interrogatories and to sign
and produce the requested authorizations.
Defendant argues that because Plaintiffs tax returns and work history do not support
Plaintiff's claim for lost earnings, the bank and credit card records are relevant and admissible to

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the extent they can confirm or deny the claim. Similarly, with regard to Plaintiff's claims of
diminished mobility and travel, Defendant argues that the bank and credit card records are
relevant and admissible to the extent they can confirm or deny the claims.
Discussion
As stated, Plaintiff submits that Defendant already has the necessary information
regarding Plaintiff's claim for lost earnings. Namely, Defendant has Plaintiff's tax returns from
2009 through 2013, as well as Plaintiff's earnings statements from the job he had when the
accident occurred.
We agree that Plaintiff's claim for lost earnings and the documentation to support the
claim are clear and that Plaintiff's bank records and credit card statements are not relevant.
Plaintiff sets forth an argument to support his claim, and his argument does not rely on any
information that might be found in his bank or credit card records, nor does it appear to rely on
wages he earned but did not report to the Internal Revenue Service. Plaintiff implicitly admits
that his claim for lost earnings seems implausibly high when compared solely to the raw
numbers on his tax returns, but he has offered an explanation as to why his wages in the past are
lower than his present claim, and he justifies the claim for lost earnings based on documentation
of his earnings. It will be up to both sides to argue what weight a factfinder should give to
Plaintiff's claim for lost wages. However, we fail to see what additional information would be
found from Plaintiff's bank or credit card statements to "confirm" or "deny" his claim of
$92,281.80 in lost earnings. Accordingly, we will deny Defendant's motion to compel as to
Plaintiff's claim of lost earnings.

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With regard to Plaintiffs claim that he suffers from diminished mobility and has travel
limitations, Defendant fails to allege a single specific relevant piece of information that would be
found in bank or credit records that would "confirm" or "deny" Plaintiffs allegations that his
mobility is diminished. We can speculate that perhaps a credit card expenditure (for example,
for a treadmill or a mountain climbing expedition) might be circumstantial evidence that
Plaintiff is not as limited as he testified. However, Defendant does not suggest anything like that
is occurring and thus to allow discovery of these records would amount to nothing more than a
fishing expedition. We note in passing that Plaintiffs medical records would offer more relevant
information as to his mobility than financial records.
As to Plaintiffs travel, Defendant is seeking the records in search of evidence that
Plaintiff has actually travelled. We agree with Plaintiff that Defendant had the opportunity to
question Plaintiff about any post-accident travel he may have taken. Defendant did ask Plaintiff
if he had traveled after a prior, unrelated accident, but that question was the last line of the
deposition page submitted as Exhibit B, and we do not see Plaintiffs answer. Salvadori Dep.
139. Nonetheless, it demonstrates that counsel for Defendant was following a line of questioning
regarding Plaintiffs travels.
Furthermore, Defendant's characterization of Plaintiffs testimony is not entirely
accurate. Defendant claims that Plaintiff testified "that he can no longer travel." D. Mot Compel
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11. In fact, he testified that he used to take weekend trips and go on picnics but he "can't" do it

anymore because he cannot enjoy it. Salvadori Dep.139. His testimony indicates that he is
capable of traveling ("whenever I get to my destination") but once he gets there he is essentially
confined to his bed so he no longer sees a point in making the trip. Salvadori Dep. 139. This
leaves open the possibility that he has traveled since his accident. Again, the opportunity to ask

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a follow-up question was available to counsel at the deposition. Therefore, we will deny
Defendant's motion to compel bank and credit card records with respect to Plaintiffs claim of
diminished mobility and travel.
Discovery in this matter is set to end on February 1, 2016. Because Defendant will
invariably ask Plaintiff at trial whether he has undertaken any travel after his accident, we will
permit Defendant, in its discretion, to submit an Interrogatory to Plaintiff limited to whether he
has undertaken any travel since the accident at issue in this case occurred, as well as any
questions related to any actual travel. Defendant's Interrogatory, if any, is to be served on
Plaintiff no later than January 19,2016. Plaintiffs response to the Interrogatory shall be due to
Defendant no later than January 27,2016. We emphasize that our purpose in allowing this
additional interrogatory is to promote the "just, speedy, and inexpensive" determination of this
action with the hope that it would reduce surprise at trial or eliminate a possible avenue of
questioning at trial. Fed. R. Civ. P. 1.

Conclusion
Because Defendants do not offer any convincing or sufficient argument in support of
their motion and because Plaintiffs arguments objecting to same are well-founded, Defendant's
motion to compel is DENIED. However, we will permit Defendant an opportunity to serve an
Interrogatory as described above.

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Maurice B. Cohill, Jr.
Senior United States District Court Judge

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