Luckinbill v. MAJ Holdings, Inc.
Filing
73
ORDER denying 67 Motion to Quash. Signed by US Magistrate Judge Veronica L. Duffy on 3/2/2018. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KATHERINE LUCKINBILL,
4:16-CV-04012-LLP
Plaintiff,
ORDER DENYING UNITY POINT
SAINT LUKE’S MOTION TO QUASH
vs.
MAJ HOLDINGS, INC., A SOUTH
DAKOTA CORPORATION;
Docket No. 67
Defendant.
INTRODUCTION
This is a personal injury lawsuit brought by plaintiff Katherine
Luckinbill, a resident of Nebraska, against defendant MAJ Holdings, Inc.
(“MAJ”), a South Dakota corporation which owns and operates the Armour
Quick Stop gas station and convenience store in Armour, South Dakota.
Jurisdiction is founded upon the diverse citizenship of the parties and an
amount in controversy in excess of $75,000. Ms. Luckinbill’s attorneys served
a subpoena duces tecum on third party Unity Point Health—St. Luke’s of Sioux
City, Iowa (“Unity Point”). See Docket No. 67-1. Unity Point has moved to
quash the subpoena. See Docket No. 67. The Honorable Lawrence L. Piersol,
United States District Judge, referred Unity Point’s motion to this magistrate
judge for resolution. See Docket No. 68; 28 U.S.C. § 636(b)(1)(A).
FACTS
The following facts are taken from the plaintiff’s complaint for the
purpose of providing some context for evaluating Unity Point’s motion. Citation
of these facts is not an endorsement of their verity by the court.
On May 21, 2014, Ms. Luckinbill entered the Armour Quick Stop. Upon
leaving that business, she stepped into a hole in the sidewalk in front of the
store, injuring her ankle. Employees of the store told Ms. Luckinbill after she
had been injured that they were aware of the existence of the hole in the
sidewalk and that other persons had previously also fallen into the hole and
been injured. Ms. Luckinbill suffered a broken ankle and asserts permanent
injury and work limitations which reduce her post-accident earning capacity.
She asserts a single count of negligence against MAJ in her complaint.
This case has been pending for two years. It was scheduled to go to trial
June 27, 2017, and in anticipation of that date, the parties filed motions in
limine, proposed jury instructions and verdict forms. On June 13, 2017,
Ms. Luckinbill moved to continue the trial. Docket 51. She had seen her
treating physician on June 5, 2017, and he had revised his opinions as to the
need for greater work restrictions for Ms. Luckinbill and as to the need for
future care. Id. This, in turn, required Ms. Luckinbill’s vocational expert and
economist to revise their opinions as well. Id.
The district court granted the continuance and later set the trial date in
this matter for July 24, 2018. Docket No. 65. In addition, the district court
ruled that the new medical opinions from Ms. Luckinbill’s doctor would be
2
admissible at trial as would any responsive expert opinions from defendant.
Docket No. 64. Following these events, Ms. Luckinbill apparently submitted to
an independent medical examination (IME) with defendant’s (also apparently)
designated expert, Dr. Douglas Martin. Dr. Martin’s deposition has since been
taken by plaintiff’s lawyers. Dr. Martin is an employee of nonparty Unity Point.
On November 15, 2017, plaintiff’s counsel served Unity Point with a
subpoena duces tecum, which is the subject of the pending motion. That
subpoena demanded Unity Point produce the following categories of
information:
1.
Any information indicating the complete caption or
other identifying information of all litigation and/or lawsuits in the
past three years in which your employee, Dr. Douglas W. Martin,
has prepared a report, provided a deposition, or offered any
testimony;
2.
Any information indicating the gross annual billings
Dr. Martin or Unity Point Health has charged in the last three
years for Dr. Martin to prepare independent, impartial, or adverse
expert reports, give deposition testimony, and/or give testimony at
trial in the context of a litigation matter and/or lawsuit;
3.
Any information relating to the percentage of
Dr. Martin’s annual income from Unity Point Health that is derived
from preparing independent, impartial, or adverse expert reports,
giving deposition testimony, and/or giving testimony at trial at the
request of any person or entity (including but not limited to, a
defendant, defendant’s insurer, defendant’s employee, or defense
attorney or law firm).
4.
A list, spreadsheet, or data file containing the names
and contact information of all individuals or entities requesting or
retaining Dr. Martin to prepare independent, impartial, or adverse
expert reports in the last three years including in such list the
amounts paid for said report by each individual entity or the
representative or insurer for each individual or entity. If no such
list, spreadsheet, or data file exists, provide information sufficient
3
to identify all such individuals or entities and their contact
information.
5.
A list, spreadsheet, or data file containing the names
and contact information of all individuals who were the subject of
independent, impartial, or adverse expert reports prepared by
Dr. Martin in the past three years. If no such list, spreadsheet, or
data file exists, provide information sufficient to identify all such
individuals and their contact information.
See Docket No. 67-1.
In its motion to quash, Unity Point identifies itself as a hospital in Sioux
City, Iowa, which employs Dr. Douglas W. Martin. See Docket No. 67 at p. 1.
Dr. Martin is an occupational health physician. Id.
Unity Point objects to the subpoena on the basis that the information
sought would violate the confidentiality of the persons examined by Dr. Martin.
Although acknowledging that IMEs do not give rise to a patient-physician
privilege, Unity Point argues the clear understanding of the parties involved in
such proceedings is that the IME contains confidential information and will be
used for purposes only of the proceeding in which the IME was rendered.
Aside from confidentiality, Unity Point also objects to the subpoena as
unduly burdensome. It explains Dr. Martin is an employee who is paid a
salary and that Dr. Martin is not compensated based on the number of expert
reports he produces. Furthermore, Dr. Martin does a variety of medical work,
not just IMEs. For example, he does Social Security exams, he treats patients,
and he provides reports for nurse care managers, employers, insurance
companies, attorneys and the Nebraska worker’s compensation system. Unity
Point does not keep separate records of these various categories of work done
4
by Dr. Martin. It estimates for the three-year period from 2014 – 2016,
Dr. Martin has handled a total of 750 cases. The only way to determine which
of these 750 cases constitutes an “independent, impartial, or adverse expert
report” is to go through all 750 cases by hand and sort them out that way.
This, Unity Point argues, would be unduly burdensome and extremely
expensive.1
Unity Point filed its motion to quash on December 15, 2017, and
requested additional time to provide briefing to the court and to supplement
with additional affidavits. Although the court granted that request, no further
filings have been made by Unity Point.
Ms. Luckinbill resists the motion to quash. Docket Nos. 70, 71 & 72.
She argues the information requested in the subpoena is the same information
Dr. Martin is required to produce under FED. R. CIV. P. 26 and has failed to
produce. Furthermore, she argues the IMEs Dr. Martin has done in the past
are not privileged because the subjects of those IMEs were not his patients.
DISCUSSION
It is important to note that the pending discovery request at issue in this
case is not a motion directed at a party under the rules of discovery pertaining
to parties. It is a subpoena directed to a nonparty. As such, the pending
The court notes Unity Point never specifies the estimated time, manpower, or
expense it thinks will be entailed. Conclusory allegations do not suffice to
establish undue burden. Cincinnati Ins. Co. v. Fine Home Managers, Inc.,
2010 WL 2990118, *1 (E.D. Mo. 2010); Burns v. Imagine Films Entertainment,
Inc., 164 F.R.D. 589, 593 (W.D.N.Y. 1996).
1
5
motion is governed by FED. R. CIV. P. 45, not by Rule 26. This is a significant
difference, especially when the nonparty being served with the subpoena lives
in a different state than where the litigation is pending.
As to out-of-state nonparties, Rule 45 provides they may be required to
produce documents within 100 miles of where the nonparty resides, is
employed or regularly conducts business. See FED. R. CIV. P. 45(c)(2)(A). Here,
Ms. Luckinbill’s subpoena requires Unity Point to produce the requested
documents at its place of business in Sioux City, Iowa, so that complies with
the above requirement.
A party or attorney issuing a subpoena pursuant to Rule 45 “must take
reasonable steps to avoid imposing undue burden or expense on a person
subject to a subpoena.” See FED. R. CIV. P. 45(d)(1). “The court for the district
where compliance is required must enforce this duty and impose an appropriate
sanction—which may include lost earnings and reasonable attorney’s fees—on
a party or attorney who fails to comply.” Id. (emphasis added).
Here, plaintiff’s attorneys could have required Unity Point to produce the
documents requested in the subpoena at their offices in Yankton, South
Dakota, because the distance from Sioux City, Iowa, to Yankton is less than
100 miles. FED. R. CIV. P. 45(c)(2)(A). However, plaintiff’s attorneys chose to
designate Sioux City, Iowa, as the place for production of the requested
documents. See Docket No. 67-1. That designated place for the compliance
with plaintiff’s subpoena is in another state—Iowa. Accordingly, a motion to
quash in this district is not appropriate. FED. R. CIV. P. 45(d)(1). Unity Point
6
should have filed its motion to quash in the United States District Court for the
Southern District of Iowa. See also FED. R. CIV. P. 45(d)(3) (stating “[o]n timely
motion, the court for the district where compliance is required must quash or
modify a subpoena . . .”). For this reason, the court denies Unity Point’s
motion.
Subpart (f) of Rule 45 allows a court where compliance is required (Sioux
City, Iowa) to transfer a motion to quash to the court where the litigation is
pending (South Dakota) if the nonparty consents or if there are exceptional
circumstances. See FED. R. CIV. P. 45(f). However, there is no mirror provision
allowing this court to entertain a motion to quash in the first instance where
compliance is required in a different district.
The court notes that Ms. Luckinbill urges this court to deny the motion
to quash because the information requested therein is largely the same
information Dr. Martin should have produced pursuant to Rule 26(a)(2)(B)(v)
but has not. Even if true, that does not compel Unity Point, an entity separate
from Dr. Martin, to disgorge the information pursuant to subpoena. Rather,
Ms. Luckinbill’s remedy as to Dr. Martin and MAJ is to file a motion to compel
against MAJ, with the possibility that Dr. Martin might not be allowed to offer
his opinions at trial should MAJ fail to comply with Rule 26(a)(2)(B)(v). Rule 26
is applicable to parties and their experts. Ms. Luckinbill never asserts that
Unity Point is MAJ’s expert, so Rule 26 is not applicable to Unity Point.
7
CONCLUSION
Based on the foregoing law, facts and analysis, it is hereby
ORDERED that the motion to quash filed by nonparty Unity Point
[Docket No. 67] is hereby denied.
DATED this 2nd day of March, 2018.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?