K.B., by and through her natural parent, Jennifer Qassis et al v. Methodist Healthcare - Memphis Hospitals d/b/a Methodist Hospital and Le Bonheur Children's Hospital
ORDER denying 19 Motion to Compel. Signed by Magistrate Judge Tu M. Pham on 10/31/2017. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
K.B., by and through her
natural parent, JENNIFER
QASSIS; and LILLIAN KNOXBENDER, on behalf of
themselves and all others
HOSPITALS d/b/a Methodist
Hospital and Le Bonheur
ORDER DENYING DEFENDANT’S MOTION TO COMPEL
Before the court by order of reference (ECF No. 25) is
defendant Methodist Healthcare–Memphis Hospitals d/b/a Methodist
Motion to Compel James E. Blount IV to Respond to Discovery,
filed July 10, 2017.
(ECF No. 19.)
Plaintiffs K.B. and Lillian
Knox-Bender filed a response on July 24, 2017.
(ECF No. 29.)
The court held a hearing on the motion on August 23, 2017.
In 2007, James E. Blount IV represented a plaintiff in a
class action against Methodist in state court, alleging that
Methodist used improper billing practices.
(ECF No. 19-15.)
Since the original suit, Methodist has twice removed the case to
on both occasions
(ECF No. 24 at 1–2.)
the case was remanded.
On June 9, 2017, Methodist removed the
case to federal court for the third time, creating the instant
(ECF No. 1.)
In the present iteration of the suit, K.B. and Knox-Bender
(ECF No. 44-2 at 2–3.)
They are suing Methodist for
Tennessee Consumer Protection Act.
(Id. at 4–9.)
Knox-Bender argue that any applicable statutes of limitations
compensation for the alleged overpayments, punitive damages, and
(Id. at 14–15.)
Over the course of the lawsuit, Blount, despite serving as
affidavits to aid his clients’ case.
He submitted the first
affidavit on September 29, 2010, to support a motion for partial
(ECF No. 19 at 7–8,
affidavit, he stated that Jennifer Qassis hired him to represent
her child, K.B., in a personal injury claim resulting from a car
accident, that the tortfeasor’s liability insurance carrier paid
him settlement funds, and that he then provided a portion of
submitted the second affidavit on June 21, 2013, to support a
response opposing Methodist’s motion to dismiss the suit.
No. 19 at 7–8, No. 19-10.)
In this affidavit, he stated that
during the settlement negotiations Methodist contacted him about
the balance owed on K.B.’s account and demanded payment from the
proceeds of the settlement.
(ECF No. 19-10 at 2.)
submitted the third affidavit on January 7, 2016, to support a
now withdrawn motion for sanctions.
(ECF No. 19 at 7–8, No. 19-
In this affidavit, he stated that
day he was
fourth affidavit on August 29, 2016, to support a now withdrawn
motion for partial summary judgment and injunctive relief.
No. 19 at 7–8, No. 19-3.)
In this affidavit, he listed examples
of the poor treatment that he and his clients had received from
(ECF No. 19-3 at 3.)
following: Blount stated that he received bills from Methodist
failing to reflect payments that Methodist received from health
He stated that he received copies of General
required patients to sign the forms before receiving medical
He stated that he received “letters, faxes,
telephone calls and bills” from Methodist demanding more money
from his clients than his clients owed.
He stated that
Methodist’s “misrepresentations” about the amount of money that
patients owed “needlessly prolong the process” and might deprive
Finally, he stated that to his knowledge Methodist has never
In light of the contents of Blount’s affidavits as well as
Methodist’s belief that Blount “orchestrat[ed] the circumstances
giving rise” to the suit, on July 10, 2017, Methodist filed a
motion to compel Blount to respond to discovery and sit for an
(ECF No. 19 at 1.)
Methodist seeks to depose
Blount on the following subjects: (1) Blount’s and his clients’
communications that Blount has had with Methodist; (3) Blount
and his co-counsel’s access to legible copies of GCOA contracts
prior to 2016; and (4) Blount’s handling of K.B.’s prior tort
claims and settlement.
(Id. at 11–14.)
opposition to Methodist’s motion to compel.
(ECF No. 29 at 1.)
heightened standard necessary for deposing an opposing party’s
(Id. at 1–3.)
They ask that, if this court does
order Blount to submit to a deposition, the court also allow
plaintiffs’ counsel to depose defense attorney Buckner Wellford
concerning his involvement in a minor settlement in state court.
(Id. at 3.)
According to the Federal Rules of Civil Procedure, “a party
Fed. R. Civ. P. 30(a)
However, because of the need to protect trial
counsel from gratuitous burdens and costs, as well as the need
to preserve the efficient function of the adversarial system,
courts are wary of the discovery tactic of deposing opposing
See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327
(8th Cir. 1986); see also Graves v. Shelby Cty. Bd. of Educ.,
No. 2:14-CV-02992-DKV, 2015 WL 13116991, at *5 (W.D. Tenn. Sept.
11, 2015) (“[D]eposing the counsel of an opposing party . . .
has been discouraged by many courts as a means of discovery.”).
With due regard for these concerns, the Sixth Circuit has
adopted the Shelton test, which sets a heightened standard that
a party must overcome in order to obtain discovery from opposing
Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d
621, 628–29 (6th Cir. 2002) (citing Shelton, 805 F.2d at 1327).
The Shelton test applies in “those instances when the attorney
to be deposed is either trial/litigation counsel or the subject
Ellipsis, Inc. v. Color Works, Inc., 227 F.R.D. 496, 497 (W.D.
James Blount IV is K.B. and Knox-Bender’s trial
Therefore, the Shelton test applies.
According to the Shelton test, in order to depose Blount,
Methodist must demonstrate that (1) deposing Blount is the only
way to obtain the information it seeks, (2) this information is
relevant and not privileged, and (3) the information is crucial
to Methodist’s preparation of the case.
See Alomari v. Ohio
Dep't of Pub. Safety, 626 F. App'x 558, 573 (6th Cir. 2015)
(quoting Nationwide, 278 F.3d at 628).
For each of the subjects
about which Methodist seeks to depose Blount, Methodist fails to
meet one or more of these three requirements.
Methodist’s Billing Practices
billing practices, Methodist would seek to discover information
on three topics.
First, it would determine how long Blount knew
about the alleged breach of contract before raising the issue in
(ECF No. 19 at 14.)
Second, it would explore Blount’s
Third, it would question Blount about whether K.B. and Knox-
qualify as class representatives.
(ECF No. 19 at 9, 11, 17.)
The court finds that Methodist could learn most of this
Indeed, according to Methodist’s motion, it has already done
“admitted that her knowledge of Methodist’s billing practices
Methodist also observed that “[t]he depositions of the former
and current plaintiffs has [sic] so far confirmed their lack of
knowledge and material participation in this case.”
(ECF No. 19
As to the statute of limitations issue, the court does
practices would be relevant to whether the plaintiffs knew or
reasonably should have known about the accrual of their breach
of contract claim.
See generally Kohl & Co. v. Dearborn &
Ewing, 977 S.W.2d 528, 532 (Tenn. 1998) (“[A] cause of action
reasonable care and diligence should know that an injury has
been sustained . . . .” (citations omitted)); Meyers v. First
Tennessee Bank, N.A., 503 S.W.3d 365, 375 (Tenn. Ct. App. 2016)
knowledge of its billing habits is either available from other
sources or irrelevant, the court denies Methodist’s motion to
compel deposition on this subject.
Communications Between Methodist and Blount
communications between Blount and the hospital.
First, it would
learn the details of the communications that Blount claimed to
receive from Methodist in which Methodist allegedly sought more
money than patients owed.
(ECF No. 19 at 10.)
Second, it would
inquire about the identities of the Methodist employees with
Methodist could learn all of this information by submitting
document requests to Blount, consulting hospital records, and
questioning its own employees.
For instance, during the motion
hearing on this matter, the parties made the court aware that —
at least with respect to employee identification — Methodist
already has all of the information that it needs in its own
records of billing phone calls.
(ECF No. 39.)
of this information, such as whether Methodist has “cause[d]
preparation of the case.
(Id. (quoting ECF No. 19-3 at 3.))
Since the information about communications between Blount and
Methodist is either available by other means or not crucial to
deposition on this subject.
Accessibility of Legible Copies of GCOA
Methodist wants to depose Blount about when he and his co-
counsel first gained access to a legible copy of the GCOA.
this is relevant
attorneys “injected these issues into the litigation.”
19 at 14.)
Methodist reports that this attorney defended the
recent addition of the GCOA contract claim on the grounds that
‘legible’ until .”
This issue appears to be unsupported by the record and,
thus, irrelevant. The court has reviewed the transcript from the
hearing when the attorney purportedly made the statement.
indication that the attorney claimed recent acquisition of a
legible copy of the GCOA form.
(Id. at 8–10, 25, 30.)
information would be crucial to its preparation of the case.
Methodist’s case, the court denies Methodist’s motion to compel
deposition on this subject.
involving K.B.’s settlement.
First, it would ask whether Blount
settled case in accordance with Tennessee law.
(ECF No. 19 at
Second, it would substantiate its defense that K.B. is not
entitled to equitable relief by ascertaining whether her mother,
Qassis, “knowingly allowed her daughter’s settlement recovery to
be deducted for medical charges.”
(Id. at 15.)
Third, it would
have Blount explain why the money that Blount sent to Methodist
Methodist, not K.B.’s account.
All of this information
is either available from sources other than Blount.
affirmative defense of “laches, waiver, estoppel, unclean hands,
failure to mitigate damages, assumption of risk, acquiescence,
(ECF No. 33 at 19.)
However, it is unclear why
deposing Blount would provide any additional evidence on this
Methodist has already demonstrated that the docket sheet
and the file that Blount provided for this settlement contain no
evidence of court approval.
(ECF No. 19 at 10.)
As for the
cleanliness of K.B.’s and Qassis’s hands, that is a question
that Methodist can resolve by deposing K.B. and Qassis.
witnesses, (ECF No. 19 at 11–12), that fact does not expose
misapplication of funds for K.B.’s settlement, K.B. and KnoxBender have provided a factual basis to explain their version of
through discovery obtained from the plaintiffs themselves and
the documents upon which they rely.
(ECF No. 37 at 2; No 37-1
Thus, as this information is available to Methodist by
Defendants’ motion to compel deposition on this topic.
compel is denied.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
October 31, 2017
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