Gulley v. Lapaglia et al

Filing 100

MEMORANDUM AND ORDER granting 86 Motion to Quash the Motion to Quash Subpoena of Jericho Borja, M.D. and granting 93 Motion to Quash the Subpoena of Jericho Borja, M.D. Signed by Magistrate Judge H Bruce Guyton on 12/19/2013. (KAW)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
WESLEY ANTWAN GULLEY,
Plaintiff,
v.
MICHAEL A. LAPAGLIA, M.D., et al.,
Defendants.

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No. 3:12-CV-371
(BUNNING/GUYTON)

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
On December 17, 2013, the parties appeared before the undersigned to address various
pretrial motions including certain motions to quash. The Motions to Quash the Subpoena of
Jericho Borja, M.D., are ripe for adjudication, and for the reasons stated herein, they will be
GRANTED.
The procedural posture and facts of this case are familiar to the Court and the parties. On
June 3, 2011, the Plaintiff was arrested and brought to Methodist Medical Center by police
officers for the City of Oak Ridge. At Methodist Medical Center, Plaintiff was subjected to a
digital rectal exam.

The exam was performed by Dr. Michael LaPaglia, an employee of

TeamHealth. The Plaintiff alleges that the exam and his treatment during his arrest violated 42
U.S.C. § 1983 and certain provisions of the Tennessee Code Annotated. He also presents
various tort claims related to the incident. Plaintiff has settled with Dr. Lapaglia, TeamHealth,
the City of Oak Ridge, and other defendants. At this time, only Methodist Medical Center and
Tammy Jones, R.N., remain as defendants in this case.

Pursuant to Rule 45 of the Federal Rules of Civil Procedure, the Court must quash or
modify a subpoena that: (i) does not allow reasonable time to comply; (ii) requires a person to
comply beyond the geographical limits in Rule 45(c); (iii) requires disclosure of a privileged or
protected matter; or (iv) subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A). The
Court may also quash subpoenas where: (i) the subpoena would require disclosure of a trade
secret or confidential research; or (ii) the subpoena would require disclosure of an unretained
expert’s opinion. Fed. R. Civ. P. 45(c)(3)(B).
In the instant motion, the movant has indicated that the subpoena at issue should be
quashed pursuant to Rule 45(c)(3)(A), because it subjects the proposed deponent to an undue
burden. “Whether a subpoena imposes an ‘undue burden’ depends on the facts of the case
including the need for the documents or their relevance.” Waite, Schneider, Bayless & Chesley
Co. L.P.A. v. Davis, 2013 WL 146362, at *4 (S.D. Ohio Jan. 14, 2013). Whether a subpoena
imposes an ‘undue burden’ depends on the facts of the case including the need for the documents
or their relevance.” Waite, Schneider, Bayless & Chesley Co. L.P.A. v. Davis, 2013 WL
146362, at *4 (S.D. Ohio Jan. 14, 2013) (citing Kessler v. Palstar, Inc., 2011 WL 4036689, *1
(S.D. Ohio 2011)).
The Court must also consider Rule 26 of the Federal Rules of Civil Procedure, which
delineates the scope of discovery and requires a court to limit discovery if “the discovery sought
is unreasonably cumulative or duplicative, or can be obtained from some other source that is
more convenient, less burdensome, or less expensive” or if “the burden or expense of the
proposed discovery outweighs its likely benefit.” Rule 26(b)(2)(C)(i), (iii).
Dr. Borja moves the Court to quash the subpoena for deposition served upon him because
he has no relevant information. Dr. Borja states that he did not begin working at the Emergency
Department of Methodist Medical Center until June 2012. He submits that he is not aware of
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any facts surrounding the treatment of the Plaintiff in this matter and was not present during the
encounter that underlies this case. Dr. Borja has submitted an Affidavit [Doc. 93-1] stating the
same under oath. Methodist Medical Center1 has also filed a Motion to Quash [Doc. 86], on
behalf of Dr. Borja, moving the Court to quash the subpoena on the same grounds.
The Plaintiff did not file a written response to the Motions to Quash. However, at the
hearing on this issue, counsel for the Plaintiff argued that the Plaintiff was entitled to discovery
on Methodist Medical Center’s policies and asserted that Dr. Borja may have historical
knowledge of Methodist’s policies. Plaintiff conceded that Dr. Borja did not have first-hand
knowledge of the policies in place at the time of the incident involving the Plaintiff, but Plaintiff
asserted that Dr. Borja might know if Methodist changed its policies after the incident. Plaintiff
asserted that Dr. Borja’s Affidavit was conclusory and did not fulfill his burden as movant to
demonstrate undue burden.
Plaintiff’s counsel represented to the Court that Plaintiff had not attempted to take the
deposition of the person serving as the medical director at the time of the incident because
Plaintiff did not know that person’s identity. Counsel for the Defendant responded by stating
that a “Dr. Kaye” was the medical director at the time of the incident.
The Court finds that the deposition at issue would impose an undue burden and would
exceed the scope of discovery outlined in Rule 26. First, the Court finds that Dr. Borja has
demonstrated that he has no personal knowledge of the relevant facts. He was not present in the
room when the digital rectal exam of the Plaintiff took place; he was not present in the hospital

Methodist Medical Center’s standing to move to quash the subpoena on Dr. Borja’s behalf is
questionable. “Ordinarily, a party has no standing to seek to quash a subpoena issued to someone who is
not a party to the action unless the party claims some personal right or privilege with regard to the
documents [or testimony] sought.’” Mann v. Univ. of Cincinnati, Nos. 95–3195, 95–3292, 1997 WL
280188, at *4 (6th Cir. May 27, 1997). Notwithstanding, the Plaintiff did not argue that Methodist lacked
standing, and in the case of Dr. Borja, the issue was mooted by Dr. Borja’s counsel filing a separate
motion on Dr. Borja’s behalf.
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when it took place; he did not work at the hospital when it took place; and he did not work at the
hospital during the year that followed the incident. Therefore, the Court finds that Dr. Borja
does not possess factual information relevant to any party’s claim or defense.
Second, the Court finds that Dr. Borja has demonstrated that he has no relevant
knowledge of Methodist Medical Center’s policies at the time of the incident or any changes
thereto. Dr. Borja is not an employee of Methodist Medical Center, and there is no evidence that
he has ever been an employee of Methodist. Instead, he is a subcontractor employed through
TeamHealth. It is highly unlikely that, as a subcontractor, he can provide relevant testimony
about the policies of Methodist Medical Center. Moreover, Dr. Borja only began working at
Methodist Medical Center in the Emergency Department in June 2012, approximately one year
after the incident. To the extent he is acquainted with the policies of Methodist Medical Center,
his knowledge of these policies post-dates the incident by almost a year.
Based upon the foregoing, the Court finds that the requests to quash the subpoena served
upon Dr. Borja are well-taken because the depositions exceed the scope of discovery under Rule
26 and because the depositions would impose an undue burden on Dr. Borja. Alternatively, the
Court finds that any de minimis relevancy of Dr. Borja’s testimony is outweighed by the burden
imposed upon Dr. Borja in obtaining such testimony. Accordingly, the Motion to Quash the
Subpoena of Jericho Borja, M.D., [Doc. 93] is GRANTED, and to the extent it moves the Court
to quash the deposition of Dr. Borja, the Motion to Quash Subpoena of Lisa Chadwick and
Jericho Borja, M.D., [Doc. 86] filed by Methodist Medical Center, is GRANTED.
IT IS SO ORDERED.

ENTER:
/s H. Bruce Guyton
United States Magistrate Judge
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