Large v. Blazer
Filing
54
MEMORANDUM OPINION AND ORDER OF THE COURT: Plaintiff's motion to compel 44 is denied. Further, Defendant's request for a protective order is granted and the requested documents need not be produced. Signed by Magistrate Judge Barbara D. Holmes on 1/10/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
TERESA LARGE, as surviving wife and
on behalf of the decedent, NICK LARGE
v.
DR. DAVID BLAZER
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Case No. 3:20-cv-1012
Chief Judge Crenshaw
Magistrate Judge Holmes
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s motion to compel discovery from a nonparty, State
Volunteer Mutual Insurance Company (“SVMIC”) (Docket No. 44) ) and SVMIC’s response in
opposition. (Docket No. 52.) The same issues are addressed in the parties’ joint discovery dispute
statement. (Docket Nos. 43 and 46.) For the reasons discussed below, Plaintiff’s motion (Docket
No. 44) is denied and Defendant’s request for a protective order is granted.
I.
Background
Familiarity with this case is presumed and the underlying facts and procedural history are
recited here only as necessary to explain or provide context to the Court’s ruling.1 This healthcare
liability action, over which the Court has diversity jurisdiction, arises out of the care and treatment
of Nick Large in March of 2020. Plaintiff alleges that Defendant negligently performed a cardiac
catheterization and provided negligent follow-up care for Mr. Large, which ultimately resulted in
his death.
By the instant motion to compel, Plaintiff seeks to enforce a subpoena issued to non-party,
SVMIC, which is Defendant’s professional liability insurance carrier. On November 5, 2021,
shortly after being served with Defendant’s disclosures of retained experts, Plaintiff served the
1
The facts and procedural history are taken from the record in this case and, unless
otherwise noted, are generally undisputed.
Case 3:20-cv-01012 Document 54 Filed 01/10/22 Page 1 of 8 PageID #: 336
subpoena requesting: (i) an authenticated copy of a document already produced by SVMIC and
(ii) documentation regarding whether Defendant, Defendant’s retained experts, and two additional
physicians who were treatment providers for Nick Large, and who were identified in Rule 26(a)
initial disclosures by Defendant, are “(a) insured with SVMIC and (b) whether they have received
a dividend from SVMIC and/or are so eligible.” (Docket No. 44 at 2.) SVMIC agreed to provide
an authenticated copy of the subject document and appears to have provided that copy on
December 10, 2021. (Docket No. 52 at 2.) SVMIC objects to the additional request based on the
lack of any temporal limitation and the vagueness and breadth of the request, and because the
request implicates private and privileged information. (Id. at 2-6.)
For the reasons discussed below, the Court finds the motion to compel is without merit and
is therefore denied. Further, the Court finds good cause for a protective order under Rule 26(c).
II.
Legal Standards
Rule 45 of the Federal Rules of Civil Procedure governs third-party subpoenas. It permits
parties to a lawsuit to command a non-party to, among other things, produce documents. Fed. R.
Civ. P. 45(a)(1). A court is required to quash or modify a subpoena that “requires disclosure of
privileged or other protected matter, if no exception or waiver applies” or “subjects a person to
undue burden.” Fed. R. Civ. P. 45(d)(3)(A).
The scope of discovery under a subpoena is the same as the scope of discovery under Rule
26. Fed. R. Civ. P. 45, Advisory Committee Notes (1970) (“The scope of discovery through a
subpoena is the same as that applicable to Rule 34 and the other discovery rules.”); see also
Hendricks v Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio May 6, 2011). The
party seeking to quash a subpoena bears the burden of proof. Id. The Federal Rules of Civil
2
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Procedure grant parties the right to “obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ.
P. 26(b)(1). A trial court has broad discretion to determine the proper scope of discovery. In re
Ohio Execution Protocol Litigation, 845 F.3d 231, 236 (6th Cir. 2016). Although a party should
not be denied access to information necessary to prove their contentions, neither should they be
“permitted to go fishing and a trial court retains discretion to determine that a discovery request is
too broad and oppressive.” Id. (internal citation omitted). “A court must balance the “right to
discovery with the need to prevent fishing expeditions.” Id. at 236-37 (internal quotation marks
and citation omitted).
The proponent of a motion to compel discovery bears the initial burden of proving that the
information sought is relevant. O'Malley v. NaphCare Inc., 311 F.R.D. 461, 463 (S.D. Ohio 2015)
(internal quotations and citations omitted). See also Grae v. Corr. Corp. of Am., 326 F.R.D. 482,
485 (M.D. Tenn. 2018) (“The court will only grant [a motion to compel], however, if the movant
actually has a right to the discovery requested.”) When the information sought appears to be
relevant, the party resisting production has the burden of establishing that the information either is
not relevant or is so marginally relevant that the presumption of broad disclosure is outweighed by
the potential for undue burden or harm. O'Malley v. NaphCare Inc., 311 F.R.D. at 463.
Rule 26(c) provides that “[t]he court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ.
P. 26(c). Courts within the Sixth Circuit have interpreted Rule 26(c) to permit a party to seek a
protective order to preclude discovery demanded by a third-party subpoena. Schweinfurth v.
Motorola, Inc., 2008 WL 4981380, at *2 (N.D. Ohio Nov. 19, 2008) (citations omitted). Some
courts have referred to the availability of Rule 26(c) as “standing to challenge third-party
3
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subpoenas via a motion for protective order.” Id. at *3.2 “The burden of establishing good cause
for a protective order rests with the movant.” Nix v. Sword, 11 F.App’x. 498, 500 (6th Cir. 2001)
(internal citations omitted). However, a showing of irrelevancy of proposed discovery can satisfy
the good cause requirement of Rule 26(c). Anwar v. Dow Chemical Company, 876 F.3d 841, 854
(citing Smith v. Dowson, 158 F.R.D. 138, 140 (D.Minn.1994)). Ultimately, whether to grant a
protective order is within the discretion of the trial court. Coleman v. American Red Cross, 979
F.2d 1135, 1138 (6th Cir. 1992).
III.
Analysis
Plaintiff seeks information from SVMIC about Defendant, four experts retained by
Defendant – Drs. Crenshaw, Stankewicz, Bresee, and Souther – and two physicians who were
treating providers of the decedent – Drs. Alsoub and Goodman. Plaintiff’s theory is essentially
that, if the six other physicians are also insured by SVMIC, as is Defendant, that information goes
to their potential bias because of their insured relationship, described by Plaintiff as one of coownership with Defendant, and the possibility of dividends based on SVMIC’s financial
performance, which may be impacted by the outcome of this lawsuit. See Docket No. 42 at 8-9.
However, rather than deposing any of the physicians to determine if they are, in fact,
insured by SVMIC and, if so, whether they have received dividends or even understand the
dividend structure, Plaintiff instead elected to subpoena the information from SVMIC, who is not
a party to this litigation. Plaintiff did so without knowledge of whether any of the other physicians
are insured by SVMIC and based solely on the supposition that if they are SVMIC insureds, they
2
Although no separate motion for a protective order was filed, Defendant requested that
relief in the joint discovery dispute statement. (Docket No. 42 at 5.) As provided for in the initial
case management order, the filing of a discovery motion is within the discretion of the Court.
Here, the Court finds that the parties’ positions are aptly described in the joint discovery dispute
statement and the filing of a separate motion for protective order is unnecessary.
4
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will receive some dividend that may be impacted in some unknown and undescribed way by the
outcome of the case against Defendant.
This is a classic fishing expedition. While it is correct that some discovery from experts to
evaluate their bias may be permitted, Plaintiff does not contend that she is lacking in the kind of
information about the retained experts from which bias is ordinarily evaluated, such as their hourly
rate in this case or their previous testimony as defense experts generally or on behalf of Defendant
specifically.3 See e.g. Campos v. MTD Products, Inc., No. 2:07-00029, 2009 WL 920337, at *4
(M.D. Tenn. Apr. 1, 2009) (routine disclosure of an expert’s gross compensation from all sources,
including those unrelated to the litigation is overkill and permitted only upon showing that other
information is insufficient to evaluate bias). Nor has Plaintiff presented any facts supporting her
theory of bias or lack of objectivity in this case. Rather, Plaintiff has simply thrown out a line in
hopes that she can reel in information to fill her bias creel. She does not assert, for instance, that
the other physicians are insured by SVMIC or that even if insured by SVMIC and potential
recipients of dividends, those experts have a direct financial connection to this case that would be
relevant to proving bias toward or against a particular party. Plaintiff merely supposes that the
SVMIC dividends are structured in such a way that an outcome favorable to Plaintiff would impact
dividends paid to other locally insured physicians, including the experts, if insured by SVMIC, in
Although the specific expert disclosures were not filed as part of the record, it is the
Court’s understanding from the informal discovery conference that detailed information about the
experts was produced in accordance with Rule 26(a)(2)(B). Further, and more importantly,
Plaintiff had knowledge of the two treating physicians, presumably based on her own information,
and, if not, through Defendant’s initial disclosures that were made in or around February of 2021.
If Plaintiff believed there was some direct relationship between the physicians and Defendant
through SVMIC or otherwise that demonstrates bias, she could have deposed those treating
physicians at any earlier time. She could also have deposed the physicians designated as experts
to elicit their testimony about the insured status with SVMIC and their knowledge of any dividend
structure before issuance of the subject subpoena.
3
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an amount that would influence them to testify favorably to Defendant. This is a purely speculative
and tenuous supposition based on general, public statements made by SVMIC.
The Court finds persuasive the careful analysis in Langbord v. U.S. Dept. of Treasury on
the question of discovery about an expert’s indirect relationship to the litigation. Civil Action
No. 06-CV-05315, 2008 WL 4748174 (E.D. Penn. Oct. 22, 2008). As noted in Langbord,
even if certain information is relevant to show potential bias, “the simple fact that
requested information is discoverable ... does not mean that discovery must be had.”
Nicholas v. Wyndham Intern., Inc., 373 F.3d 537, 543 (4th Cir.2004). Under Rule
26(b)(2)(C), a court must limit discovery 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.” In fact, in its
comments to the 2000 amendments to Rule 26, the Rules Advisory Committee
stated, “The Committee has been told repeatedly that courts have not implemented
[the Rule 26(b) (2)] limitations with the vigor that was contemplated ... [the new
language] has been added to emphasize the need for active judicial use of
subdivision (b)(2) to control excessive discovery.” Advisory Committee's Note to
the 2000 Amendments to the Federal Rules of Civil Procedure. The Supreme Court
has also highlighted the importance of Rule 26(b)(2), emphasizing that the rule
gives courts “broad discretion to tailor discovery narrowly.” Crawford-El v.
Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). In the
foregoing analysis, we exercise that discretion by applying the balancing test of
Rule 26(b)(2)(C)(iii) to the benefits and burdens presented by the proposed
discovery.
Id. at *5. Here, as in Langbord, Plaintiff’s theory that the experts may be biased because an
outcome in favor of Plaintiff in this litigation could potentially affect some dividend they might
receive from an insurance company with which they may not even be insured is nothing more than
unsubstantiated speculation. The fact that the information requested relates to individuals who are
not parties to this matter and the fact that the request is based on purely speculative grounds “points
against a finding that the discovery is highly necessary or important for uncovering bias in this
matter.” Id. at *6.4
Further, even if the physicians are insured with SVMIC and even if they do receive some
dividend, a finding of need for and importance of the proposed discovery to show bias, supposes
4
6
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In contrast, the burden to SVMIC is substantial. It would require disclosure of confidential
and proprietary information about SVMIC’s business and financial structure and, potentially (that
is, to the extent any of the expert physicians are insured with SVMIC), disclosure of customers’
confidential and personal financial information. Permitting Plaintiff to access SVMIC’s and its
customers’ confidential and sensitive proprietary and financial information unrelated to this action
based on solely unsupported speculation is unwarranted.
“Although a plaintiff should not be denied access to information necessary to support her
claim, neither may a plaintiff be permitted to ‘go fishing’ and a trial court retains discretion to
determine that a discovery request is too broad or oppressive.” Surles v. Greyhound Lines, Inc.,
474 F.3d 288, 305 (6th Cir. 2007) (citing Marshall v Westinghouse Elec. Corp., 574 F.2d 588, 592
(5th Cir. 1978)) (internal quotations omitted). The significant burden on SVMIC’s proprietary and
confidential business and customer information unrelated to this litigation or to the physicians’
role as expert witnesses weighs heavily against allowing the requested discovery under
Rule 26(b)(2)(C)(iii). Because the discovery request places a significant burden on SVMIC and
because the requested information is not sufficiently important or necessary to outweigh that
burden, Rule 26(b)(2)(C)(iii) bars Plaintiff’s request to compel the discovery and warrants a
protective order under Rule 26(c).
that the expert physicians possess an understanding of the intricacies of their insurance dividend
structure with enough detail to influence their opinions, which is yet another factual leap the Court
is unwilling make.
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IV.
Conclusion
For these reasons, Plaintiff’s motion to compel (Docket No. 44) is denied. Further,
Defendant’s request for a protective order is granted and the requested documents need not be
produced.
It is SO ORDERED.
______________________________________
BARBARA D. HOLMES
United States Magistrate Judge
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