PRESCOTT v. R&L CARRIERS, INC. et al
Filing
249
ORDER denying 226 Motion for Sanctions; granting 241 Motion to Compel Deposition of Dr. Joseph M. Kosakoski, Jr.. Signed by Judge Kim R. Gibson on 12/29/2015. (sks)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BARBARA A. BENNETT, Executrix of the
Estate of WILLIAM M. PRESCOTT,
)
)
)
Plaintiff,
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v.
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R&L TRANSFER, INC., GREENWOOD
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MOTOR LINES d/b/a R&L CARRIERS,
)
and R&L CARRIERS SHARED SERVICES, )
LLC,
)
)
Defendants.
)
Civil Action No. 3:11-203
Judge Kim R. Gibson
MEMORANDUM OPINION AND ORDER OF COURT
I.
Introduction
This matter comes before the Court upon two pretrial motions: (1) a motion to
compel the deposition of Dr. Joseph M. Kosakoski, Jr. (ECF No. 241) by Defendants R&L
Transfer, Inc., Greenwood Motor Lines d/b/a R&L Carriers, and R&L Carriers Shared
Services LLC (collectively, “Defendants” or “R&L”) and (2) Plaintiff’s motion for
sanctions (ECF No. 226). Plaintiff has filed a response and a supplemental response in
opposition to Defendants’ motion to compel the deposition of Dr. Kosakoski. (ECF Nos.
243; 244.) The parties have fully briefed Plaintiff’s motion for sanctions, (see ECF Nos. 226;
234; 235; 236), and both pretrial motions are now ripe for disposition. For the reasons that
follow, Defendants’ motion to compel the deposition of Dr. Kosakoski will be granted,
and Plaintiff’s motion for sanctions will be denied.
II.
Jurisdiction and Venue
The Court has jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. § 1332 and
28 U.S.C. § 1441. Venue is proper under 28 U.S.C. § 1391.
III.
Background
In July 2009, William M. Prescott was working as a self-employed independent
truck driver for FedEx Ground. (ECF No. 99-3 at 70.) Prescott’s daily route required him
to pull two twin-trailers (also known as “twin pups”) along a stretch of I-80 between the
FedEx terminal in Lewisbury, Pennsylvania, and a turn-around point in Emlenton,
Pennsylvania. (Id. at 70-71, 74-75.) Prescott would switch trailers with another driver in
Emlenton and return home along the same route. (Id. at 71.)
At approximately 12:35 a.m. on the night of July 14, 2009, Prescott was driving his
standard route west on I-80 towards Emlenton. (ECF No. 98-1 at 127, 133, 137.) Clark
Mead (“Mead”), a driver for R&L, was operating a green R&L truck in the immediate
vicinity of Prescott’s vehicle. (ECF No. 99-8; ECF No. 99-18.) Two other commercial
drivers, Stephen Page (“Page”) and David Desrosiers (“Desrosiers”), were traveling west
on I-80 some distance behind Mead and Prescott. (ECF No. 99-1 at 10-11; ECF No. 99-2 at
7-8.)
According to Prescott, he was driving at a speed of approximately sixty or sixtyfive miles per hour in the right-hand lane when he noticed a green tractor with white
trailers (subsequently identified as the vehicle driven by Mead) approaching on the left in
an attempt to pass. (ECF No. 98-1 at 135-36.) Prescott testified at his deposition that the
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green truck began to merge back into the right lane before it had completely cleared
Prescott’s vehicle, forcing Prescott off the highway. (Id. at 136.) Prescott hit his head and
lost consciousness as he left the road, and he has no other recollection of the events of that
night. (Id. at 136-37; ECF No. 99-3 at 17-20.)
Immediately prior to the accident, Page and Desrosiers were driving in tandem
approximately one half of a mile behind Mead and Prescott. (ECF No. 99-1 at 15-16, 19;
ECF No. 99-2 at 17.) Page, traveling in the lead, testified that he and Desrosiers had been
following the two vehicles for several miles and were slowly gaining ground. (ECF No.
99-1 at 16.) Page observed that the trucks belonging to Prescott and Mead were traveling
with one in front of the other, rather than side by side, although he could not tell which
lane they were in. (Id. at 18-19.) Neither Page nor Desrosiers ever saw Mead’s truck
change lanes or attempt a passing maneuver, although each acknowledged losing visual
contact with the vehicles on occasion due to the twists and turns of the road. (Id. at 24-28;
ECF No. 99-2 at 85, 88, 91.)
While approaching the site of the accident, Page had a clear view of Mead’s
vehicle. (ECF No. 99-1 at 27-29, 75-76, 84; ECF No. 99-16 at 51-53, 95-96.) Page saw Mead
suddenly engage the hazard lights on his truck and slowly pull off to the right side of I-80.
(ECF No. 99-1 at 27-29, 75-76, 84; ECF No. 99-16 at 101-02.) Page testified that he had a
direct line of sight to Mead’s vehicle both immediately before and after Mead engaged his
hazard lights. (ECF No. 99-1 at 27-29, 75-76, 84; ECF No. 99-16 at 51-53, 95-96.) Page
suspected that Mead’s truck had blown a tire and prepared to pull over to offer assistance.
(ECF No. 99-1 at 74.) As he pulled over, Page observed Prescott’s truck in flames at the
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bottom of the embankment. (Id. at 29-30, 89.) Page had not seen Prescott’s vehicle leave
the road and had assumed that the truck in front of Mead had simply continued on along
I-80. (Id. at 74.)
Page parked his truck several hundred yards in front of Mead’s R&L truck and
jumped down the embankment to render assistance to Prescott. (Id. at 34-36.) Page
opened the door of Prescott’s vehicle and removed Prescott from the cab. (Id. at 36-37.)
He then called to Desrosiers and Mead for assistance, and the three men pulled Prescott
away from his burning vehicle. (Id. at 38-40, 93-94.) Page observed that Prescott had
suffered severe burns and injuries all over his face and arms.
(Id. at 37-39.)
After
removing Prescott from his vehicle, Page did not leave Prescott’s side at any point until
medical personnel arrived. (Id. at 97.)
While waiting for medical help to arrive, Prescott slipped in and out of
consciousness. (Id. at 95, 98-100.) Page testified that it “took him a little bit, and then he
seemed to come out of it and asked: what’s happening? What’s going on? And – and he
cried about his truck, and – and we talked to him.” (Id. at 40-41.) Page asked Prescott
how the accident had occurred, and Prescott said he did not know what had happened.
(Id. at 100.) Emergency medical responders similarly indicated that Prescott expressed no
recollection as to what had happened before or after the accident. (ECF No. 99-6 at 36-37,
47; ECF No. 99-7 at 1; ECF No. 99-32 at 1.) However, Desrosiers testified that Prescott
blurted out the following statement shortly after being pulled from his truck: “I was cut
off, I was cut off. My tractor, my tractor was cut off.” (ECF No. 99-2 at 23-24.)
4
At some point after Prescott was removed from his vehicle, Desrosiers instructed
Mead to move his truck to make room for emergency responders. (Id. at 16.) Mead reentered his vehicle and left the scene, continuing his route along I-80. (Id. at 26-27; ECF
No. 99-18.) Neither Page nor Desrosiers saw Mead leave. (ECF No. 99-1 at 108-09; ECF
No. 99-2 at 78, 109.)
Two Pennsylvania State Troopers eventually arrived on the scene. (ECF No. 99-1
at 44-45; ECF No. 99-2 at 30.) Trooper Richard L. Magnuson conducted an investigation
and observed that there was no evidence that Prescott’s vehicle braked suddenly or took
any evasive action. (ECF No. 99-22 at 83.) Trooper Magnuson also noted that Prescott’s
vehicle had left the road near the crest of a hill where the road curved away to the left.
(Id. at 48.) Based on this evidence, Trooper Magnuson concluded that Prescott had been
involved in a single-vehicle accident and cited Prescott for driving too fast for conditions
in violation of 75 Pa.C.S. § 3361. (Id. at 76-77; 85-87; ECF No. 99-4.) Although Trooper
Magnuson took statements from Page and Desrosiers, neither of them mentioned
anything about Prescott having been cut off by Mead. 1 (ECF No. 99-1 at 44-45; ECF No.
99-2 at 28, 30, 33-35.) Trooper Magnuson could not obtain a statement from Mead because
he had already left the scene. 2
After the accident, Prescott was hospitalized until November 25, 2009. (ECF No.
99-35; ECF No. 99-36; ECF No. 99-40; ECF No. 99-41.) His daughter, Barbara Bennett
(“Bennett” or “Plaintiff”), testified that Prescott woke up one day from a “four month
Desrosiers also failed to mention Prescott’s purported dying declaration when interviewed by a
forensic investigator approximately one year later. (ECF No. 99-19.)
1
2
Mead passed away from an illness before his deposition could be taken.
5
coma” and spontaneously stated, “Barbara, don’t worry about your driving, worry about
that man in the green truck because he sucked me up and pushed me off the road.” (ECF
No. 103-22 at 4.) A friend of Bennett’s, Andrea Wise, testified that she overheard the same
statement from Prescott. (ECF No. 98-5 at 47.) Despite Bennett’s testimony that Prescott
was in a coma for four months, medical records and posts from a blog maintained by
Prescott’s family suggest that Prescott was frequently conscious and alert throughout his
hospitalization. (ECF No. 99-36; ECF No. 99-37.)
On August 19, 2011, Prescott initiated the instant action by filing a complaint in
the Court of Common Pleas of Clearfield County, Pennsylvania. (ECF No. 1-2.) The
complaint was removed to this Court on September 8, 2011. (ECF No. 1.) The discovery
deadline in this case ended on January 6, 2014, and the depositions of all expert witnesses
were to be completed by April 2, 2014. (ECF No. 77.) On September 24, 2015, Prescott’s
counsel filed a statement noting Prescott’s death. (ECF No. 227.) Prescott’s counsel filed a
motion to substitute Bennett, the Executrix of Prescott’s estate, as Plaintiff, (ECF No. 228),
which the Court granted, (ECF No. 231). Trial in this matter is currently scheduled to
commence on January 19, 2016. (ECF No. 238.)
IV.
Applicable Law
A.
Motion to Compel Discovery, Rule 26
Generally, materials that are relevant to an issue in a case are discoverable unless
they are privileged. Rule 26 explains the scope of discovery:
Unless otherwise limited by court order, the scope of discovery is as
follows: Parties may obtain discovery regarding any nonprivileged
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matter that is relevant to any party’s claim or defense — including the
existence, description, nature, custody, condition, and location of any
documents or other tangible things and the identity and location of
persons who know of any discoverable matter. For good cause, the court
may order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissible at the trial if
the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.
FED. R. CIV. P. 26(b)(1). While the scope of discovery under the Federal Rules is broad,
“this right is not unlimited and may be circumscribed.” Bayer AG v. Betachem, Inc., 173
F.3d 188, 191 (3d Cir. 1999). Indeed, Rule 26(b)(1) imposes “two content-based limitations
upon the scope of discovery: privilege and relevance.” Trask v. Olin Corp., No. 12-CV-340,
2014 U.S. Dist. LEXIS 28362, at *40 (W.D. Pa. 2014).
Even relevant discovery may be limited by a court “if the burden or expense of the
proposed discovery outweighs its likely benefit, considering the needs of the case, the
amount in controversy, the parties’ resources, the importance of the issues at stake in the
action and the importance of the discovery in resolving the issues.” Id. at *41 (citing FED.
R. CIV. P. 26(b)(2)(C)). “In evaluating whether a party is entitled to discovery, the trial
court should not simply rule on some categorical imperative, but should consider all the
circumstances of the pending action.” Id. at *44.
Pursuant to Rule 26, a party “must disclose” to the other parties the identity of any
expert witness it may use at trial to present evidence. FED. R. CIV. P. 26(a)(2)(A). “A party
may depose any person who has been identified as an expert whose opinions may be
presented at trial.” FED. R. CIV. P. 26(b)(4)(A). In instances where an expert report is
required, “the deposition may be conducted only after the report is provided.” Id.
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To modify a scheduling order, a party must demonstrate “good cause.” FED. R.
CIV. P. 16(b)(4). The “good cause” inquiry “focuses on the moving party’s burden to
show due diligence.” Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d
Cir. 2010). In the context of requests to extend deadlines, courts have defined “good
cause” to include “circumstances beyond the control” of a party. See Partners Coffee Co.,
LLC v. Oceana Servs. and Prods. Co., No. 09-CV-236, 2010 U.S. Dist. LEXIS 41695, at *10
(W.D. Pa. Apr. 28, 2010); see also Lord v. Consolidated Rail Corp., No. 13-784, 2015 U.S. Dist.
LEXIS 142119 (D.N.J. Oct. 19, 2015) (“A court may find good cause to amend the
scheduling order where the movant learns of the facts supporting [the motion] after
expiration of the relevant filing deadline[.]”) (internal quotations omitted). In the context
of requests to reopen discovery, “[t]he decision whether to reopen discovery is committed
to the sound discretion of the district court.” LeBoom v. Lancaster Jewish Cmty. Ass’n, 503
F.3d 217, 235 (3d Cir. 2007). 3
B.
Motion for Sanctions, Rule 11
Federal Rule of Civil Procedure 11 provides:
(b) Representations to the Court. By presenting to the court a pleading,
written motion, or other paper -- whether by signing, filing, submitting,
or later advocating it -- an attorney or unrepresented party certifies that
to the best of the person’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
*
*
*
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary
Although Defendants do not indicate that they seek to reopen discovery and extend the discovery
deadlines, the Court interprets their motion as such because the deadline for discovery ended on
January 6, 2014, and the depositions of all expert witnesses were to be completed by April 2, 2014.
(ECF No. 77.)
3
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support after a reasonable opportunity for further
investigation or discovery[.]
FED. R. CIV. P. 11(b)(3). Rule 11 further provides that a moving party must serve a motion
for sanctions under Federal Rule of Civil Procedure 5 and must allow for the opposing
party to take remedial action “within 21 days after service or within another time the
court sets.” FED. R. CIV. P. 11(c)(2)
“Rule 11 sanctions may be awarded in exceptional circumstances in order to
‘discourage plaintiffs from bringing baseless actions or making frivolous motions.’”
Bensalem Twp. v. Int’l Surplus Lines Ins. Co., 38 F.3d 1303, 1314 (3d Cir. 1994) (quoting
Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988)). “The
Rule imposes an affirmative duty on the parties to conduct a reasonable inquiry into the
applicable law and facts prior to filing.” Id. (citing Bus. Guides, Inc. v. Chromatic Commc’ns
Enters., Inc., 498 U.S. 533, 551 (1991)). “An inquiry is considered reasonable under the
circumstances if it provides the party with an objective knowledge or belief at the time of
the filing of a challenged paper that the claim was well-grounded in law and fact.” Id.
(internal quotations and citation omitted).
V.
Discussion
A.
Defendants’ Motion to Compel the Deposition of Dr. Kosakoski
In support of their motion to compel Dr. Kosakoski’s deposition, Defendants
assert that Plaintiff designated Dr. Kosakoski as an expert witness on April 6, 2015, and
stated that he would testify “‘in accordance with his expert report’” regarding “‘the
cognitive issues [Prescott] suffered secondary to his motor vehicle accident.’” (ECF No.
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241 ¶ 1 (quoting ECF No. 183 at 9-10).) Plaintiff produced Dr. Kosakoski’s expert report
on August 7, 2015, wherein Dr. Kosakoski opined that Prescott’s frontotemporal dementia
would render him “unable to effectively participate in his trial proceedings” and that
Prescott lacked “the cognitive capacity to accurately, intelligently, and reliably respond to
any questioning that may be directed to him.” (Id. ¶ 2; ECF No. 241-1 at 3-4.) Defendants
state that they “[i]mmediately . . . raised concerns and objections about these conclusions
and questioned when these competency issues developed,” (ECF No. 241 ¶ 3), and that
Plaintiff’s counsel represented to the Court that he was “‘making extensive efforts’” to
schedule Dr. Kosakoski’s deposition, (id. ¶ 6 (quoting ECF No. 226 ¶ 19)).
Defendants contend that Plaintiff, after representing that her witness list was
current on December 14, 2015, filed an amended witness list on December 18, 2015,
wherein all references to Dr. Kosakoski’s expert report have been removed, and Dr.
Kosakoski’s testimony is characterized as regarding the “‘sequelae’” of Prescott’s injuries,
rather than his cognitive issues. (Id. ¶¶ 9-10 (quoting ECF No. 240 at 7).) Defendants
argue that they should be permitted to question Dr. Kosakoski about Prescott’s mental
condition prior to, and at the time of, his March 19, 2013, deposition.
(Id. ¶ 13.)
Specifically, Defendants assert that Prescott suffered a “steady mental digression [sic]”
from as early as 2009 that “may have rendered him incompetent before his deposition.”
(Id. ¶ 14.) Defendants summarize Prescott’s medical history, (id. ¶¶ 15-41), and assert that
“[w]ell before [Prescott’s] deposition on March 19, 2013, Dr. Kosakoski had already
diagnosed [him] with frontal lobe syndrome, traumatic brain injury, cognitive
dysfunction, oppositional defiant disorder, disruptive behavior disorder, daily
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temperamental extremes, low frustration tolerance, and an increased risk of developing
dementia,” (id. ¶ 42). Defendants emphasize that Prescott fell four months before his
deposition, suffering “‘uncertain trauma to the head,’” and fell again just two days before
his deposition. (Id. ¶¶ 43-44 (quoting ECF No. 241-2 at 12).) Defendants therefore assert
that Prescott’s competency at the time of his deposition “is a legitimate and necessary line
of inquiry” because they will seek to renew their motion for summary judgment if Dr.
Kosakoski’s deposition suggests that Prescott was incompetent at the time of his
deposition. (Id. ¶¶ 46, 50.)
In response, Plaintiff argues that discovery should not be reopened because
Prescott was deposed twenty-nine months ago, but Defendants did not raise the issue of
his competency until August 2015. (ECF No. 243 at 2, 5-6, 12-13.) Plaintiff also asserts
that the deposition of Dr. Kosakoski is unnecessary because Defendants’ expert witness,
Dr. Richard Bennett, found Prescott to be competent in June 2013 after reviewing his
medical records and deposition testimony. (Id. at 2-4, 15.) In her supplemental response,
Plaintiff states that Defendants included Prescott on their witness list and filed
designations of Prescott’s deposition testimony in April 2015. (ECF No. 244 at 1-2.)
Because Defendants did not challenge Prescott’s competency in April 2015, Plaintiff
asserts that their motion to compel Dr. Kosakoski’s testimony must be denied. (Id.)
Pursuant to this Court’s Order, Plaintiff’s expert reports were required to be filed
by February 17, 2014, and the depositions of all experts were required to be completed by
April 2, 2014. (ECF No. 77.) The parties are unable to agree when Plaintiff disclosed Dr.
Kosakoski as an expert. Defendants assert that Plaintiff did not designate Dr. Kosakoski
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as an expert until April 6, 2015, (ECF No. 241 ¶ 1), and Plaintiff contends that she
disclosed Dr. Kosakoski as an expert on January 23, 2014, when she wrote a letter to
Defendants’ counsel enclosing Dr. Kosakoski’s “report and Curriculum Vitae,” (see ECF
No. 243 at 6, 18; see also ECF 226-2 at 74-76).
The Court need not address the parties’ arguments regarding when Defendants
learned that Dr. Kosakoski may serve as an expert witness.
The Court’s thorough
examination of the record reveals that Plaintiff included Dr. Kosakoski as an expert
witness on her witness list and that Dr. Kosakoski prepared expert reports. Pursuant to
Rule 26, “[a] party may depose any person who has been identified as an expert whose
opinions may be presented at trial.” FED. R. CIV. P. 26(b)(4)(A). Although Plaintiff may
not present Dr. Kosakoski as an expert at trial, given that she has removed all references
to Dr. Kosakoski’s expert report in her amended witness list, (ECF No. 240 at 7), she has
previously designated him as an expert, and he prepared expert reports. Under the
circumstances now existing in this case, Defendants are entitled to depose Dr. Kosakoski,
pursuant to Rule 26(b)(4)(A), and the Court finds that good cause exists to reopen
discovery and extend the discovery deadline.
Moreover, the Court further notes that Plaintiff’s motion in limine to permit
Prescott’s deposition testimony to be read during trial is pending. (See ECF Nos. 219;
239.) After Plaintiff filed her initial motion in limine, Defendants responded and asserted
that they are entitled to depose Dr. Kosakoski to assess whether Prescott was competent
when he testified at his deposition. (ECF No. 223 at 4.) Following Prescott’s death, the
Court directed Plaintiff to address these changed circumstances in relation to her motion
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in limine. (ECF No. 237 at 2.) Plaintiff renewed her motion in limine to permit Prescott’s
deposition testimony to be read during trial on December 18, 2015, (ECF No. 239), and
Defendants must file their response by December 31, 2015, (ECF No. 247). To fully
address the parties’ arguments regarding whether Prescott was incompetent at the time of
his deposition, the Court must review Dr. Kosakoski’s deposition testimony regarding
Prescott’s condition at that time. The Court therefore finds that good cause exists to
reopen discovery and extend the discovery deadline for the limited purpose of allowing
Defendants to depose Dr. Kosakoski.
The parties shall complete Dr. Kosakoski’s
deposition by January 8, 2016, and Defendants shall file a transcript of the deposition by
January 13, 2016, so that the Court may decide Plaintiff’s motion in limine before trial
commences on January 19, 2016.
B.
Plaintiff’s Motion for Sanctions
Plaintiff argues that her motion for sanctions must be granted because Defendants’
response in opposition to her motion in limine to read the deposition testimony of
Prescott was “riddled with known factual misrepresentations that are directly
contradicted by Defendants’ own expert and the factual record.” (ECF No. 226 at 1.)
Specifically, Plaintiff asserts that Defendants made three factual misrepresentations in
their response: (1) Defendants stated that Prescott was incompetent at his March 19, 2013,
deposition, (id. ¶ 5); (2) Defendants incorrectly stated that Plaintiff did not produce in
discovery two letters from Dr. Kosakoski, (id. ¶ 12); and (3) Defendants claimed that they
were attempting to schedule Dr. Kosakoski’s deposition, (id. ¶ 18). In support thereof,
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Plaintiff states that Defendants’ expert, Dr. Bennett, found Prescott to be competent as of
June 26, 2013, only three months after his deposition, and that Defendants questioned
Prescott regarding his competency at the deposition. (Id. ¶¶ 5-11.) Plaintiff contends that
she produced Dr. Kosakoski’s December 20, 2012, letter to Defendants’ counsel on
January 23, 2014, and that she produced Dr. Kosakoski’s August 4, 2015, letter to
Defendants’ counsel on August 7, 2015. (Id. ¶¶ 12-17; ECF 226-2 at 74-76.) Finally,
Plaintiff asserts that she “has been making extensive efforts to schedule Dr. Kosakoski’s
deposition and accommodate Defendants’ counsel’s schedule.” (ECF No. 226 ¶¶ 18-20.)
In response, Defendants state that they advanced the following good-faith
arguments in response to Plaintiff’s motion in limine to read Prescott’s deposition
testimony: (1) the Court must determine Prescott’s mental capacity as a question of fact;
(2) Defendants were entitled to discovery regarding Prescott’s competency and ability to
testify at trial; and (3) the Court must determine whether Prescott’s mental incompetency
developed before his March 19, 2013, deposition. (ECF No. 234 at 2.) Defendants explain
that they learned that Plaintiff did produce the December 20, 2012, letter from Dr.
Kosakoski and notified Plaintiff on September 22, 2015, that they were incorrect in making
the assertion that they had not received it. (Id.; ECF No. 234-2 at 19.) That same day,
Defendants also notified the Court to correct their response in opposition to Plaintiff’s
motion in limine. (ECF No. 234 at 3; ECF No. 234-2 at 22.) Defendants note that despite
their efforts to correct the record, Plaintiff filed her motion for sanctions the following
day, on September 23, 2015. (ECF No. 234 at 3; ECF No. 226.)
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Defendants argue that Plaintiff’s motion is moot and meritless.
Regarding
mootness, Defendants assert that, after Prescott’s death, they requested that Plaintiff
withdraw her motion in limine and motion for sanctions as moot. (ECF No. 234 at 3-4;
ECF No. 234-2 at 27.) Defendants argue that Plaintiff’s motion in limine is moot because
“[t]here is no longer any factual or legal issue regarding [Prescott’s] ability to attend the
trial.”
(ECF No. 234 at 4.)
Because Plaintiff’s motion for sanctions is based upon
Defendants’ response to a moot issue, Defendants assert that her motion for sanctions is
also moot. (Id. at 5.) As noted above, however, Defendants now challenge Prescott’s
competency during his deposition and intend to renew their motion for summary
judgment if Prescott was incompetent during his deposition. Plaintiff’s motion in limine
is therefore not moot, and the Court will issue a decision on that motion after receiving a
transcript of Dr. Kosakoski’s deposition.
The Court therefore need not address
Defendants’ mootness argument.
Regarding the merit of Plaintiff’s motion for sanctions, Defendants first argue that
they were entitled to raise the issue of whether and when Prescott became incompetent
after Plaintiff raised the issue of his competency in her motion in limine. (Id. at 6.)
Defendants also note that they attached medical records to their response to Plaintiff’s
motion in limine that suggested Prescott suffered cognitive impairment before and after
his deposition. (Id.) Second, Defendants reiterate that they corrected the record after
learning that Plaintiff had produced the December 20, 2012, letter from Dr. Kosakoski. (Id.
at 7.) Defendants dispute Plaintiff’s contention that she produced Dr. Kosakoski’s August
4, 2015, letter because discovery had closed by that date and because Plaintiff stated that
15
she produced the letter “when [she] put it in [her] motion.” (Id.) Finally, Defendants state
that they did not “rebuff[]” efforts to schedule Dr. Kosakoski’s deposition because “the
parties had agreed to the deposition . . . and were attempting to schedule [it].” (Id. at 7-8.)
Defendants request that Plaintiff be ordered to pay the costs and fees incurred in
defending Plaintiff’s motion for sanctions. (Id. at 8.)
In reply, Plaintiff states that she declined to withdraw her motion for sanctions
because Defendants refused to concede that Prescott was competent during his deposition
and declined Plaintiff’s request to abandon their plan to renew their motion for summary
judgment. (ECF No. 235 at 2, 4.)
In sur-reply, Defendants reiterate that they were
“entirely justified” in requesting the right to question Dr. Kosakoski regarding Prescott’s
competency. (ECF No. 236 at 1.)
The Court does not find that “exceptional circumstances” exist to warrant granting
Plaintiff’s motion for sanctions. Bensalem Twp., 38 F.3d at 1314 (3d Cir. 1994). First, with
regard to Plaintiff’s argument that Defendants made a factual misrepresentation to the
Court by stating that Prescott may have been incompetent at his March 19, 2013,
deposition, the Court intends to grant Defendants’ motion to compel the deposition of Dr.
Kosakoski.
Following the deposition, the Court will consider the issue of Prescott’s
competence in its decision of Plaintiff’s motion in limine to read Prescott’s deposition
testimony at trial. Second, Defendants notified the Court that it incorrectly represented
that Plaintiff did not produce Dr. Kosakoski’s December 20, 2012, letter.
Moreover,
Defendants did not make a factual misrepresentation warranting sanctions by stating that
Plaintiff did not produce Dr. Kosakoski’s August 4, 2015, letter in discovery, as the
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discovery deadline expired on January 6, 2014. (ECF No. 77.) Third, the Court will not
examine the issue of which party made more “extensive” efforts to schedule Dr.
Kosakoski’s deposition because that issue will not assist the Court in its decision of the
sanctions issue. The Court will therefore deny Plaintiff’s motion for sanctions and will
deny Defendants’ request that Plaintiff be ordered to pay the costs and fees incurred in
defending Plaintiff’s motion for sanctions.
V.
Conclusion
For the reasons set forth above, Defendants’ motion to compel the deposition of
Dr. Joseph M. Kosakoski, Jr. (ECF No. 241) is granted. The parties shall complete Dr.
Kosakoski’s deposition by January 8, 2016. Defendants shall file the transcript of Dr.
Kosakoski’s deposition with the Court by January 13, 2016.
Plaintiff’s motion for
sanctions (ECF No. 226) is denied. Defendants’ request that Plaintiff be ordered to pay
the costs and fees incurred in defending Plaintiff’s motion for sanctions is denied.
An appropriate order follows.
.
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