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

Filing 100

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
WESTERN DIVISION
________________________________________________________________
K.B., by and through her
natural parent, JENNIFER
QASSIS; and LILLIAN KNOXBENDER, on behalf of
themselves and all others
similarly situated,

)
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
No. 17-cv-2391-JMP-tmp
)
METHODIST HEALTHCARE–MEMPHIS
)
HOSPITALS d/b/a Methodist
)
Hospital and Le Bonheur
)
Children’s Hospital,
)
)
Defendant.
)
________________________________________________________________
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
Hospital

and

Le

Bonheur

Children’s

Hospital’s

(“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.
(ECF

No.

39.)

For

the

following

reasons,

Methodist’s motion.
I.

BACKGROUND

the

court

denies

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
federal court,

and

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
case.

(ECF No. 1.)
In the present iteration of the suit, K.B. and Knox-Bender

claim

that

Methodist

overbilled

companies.

(ECF No. 44-2 at 2–3.)

breach

contract,

of

unjust

them

and

their

insurance

They are suing Methodist for

enrichment,

Tennessee Consumer Protection Act.

and

violating

(Id. at 4–9.)

the

K.B. and

Knox-Bender argue that any applicable statutes of limitations
should

be

concealment

tolled
of

due

its

to

Methodist’s

practices.

(Id.

allegedly
at

13.)

fraudulent
They

seek

compensation for the alleged overpayments, punitive damages, and
an injunction.

(Id. at 14–15.)

Over the course of the lawsuit, Blount, despite serving as
lead

trial

counsel,

has

elected

to

affidavits to aid his clients’ case.

submit

four

personal

He submitted the first

affidavit on September 29, 2010, to support a motion for partial
summary judgment.

(ECF No. 19 at 7–8,

No 19-1.)

In this

affidavit, he stated that Jennifer Qassis hired him to represent

-2-

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
those

funds

to

Methodist.

(ECF

No.

19-1

at

3.)

Blount

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.)

(ECF

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.)

Blount

submitted the third affidavit on January 7, 2016, to support a
now withdrawn motion for sanctions.
19.)

(ECF No. 19 at 7–8, No. 19-

In this affidavit, he stated that

supposed

to

deposition.

depose
(ECF

the
No.

defendant

19-19

at

no

2–3.)

one

on the

day he was

appeared

Blount

for

the

submitted

his

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.)

(ECF

In this affidavit, he listed examples

of the poor treatment that he and his clients had received from
Methodist.
The

(ECF No. 19-3 at 3.)

examples

in

Blount’s

fourth

affidavit

include

the

following: Blount stated that he received bills from Methodist
failing to reflect payments that Methodist received from health
insurers.

(Id.)

He stated that he received copies of General

-3-

Condition

of

Admissions

(“GCOA”)

forms

and

that

Methodist

required patients to sign the forms before receiving medical
treatment.

(Id.)

He stated that he received “letters, faxes,

telephone calls and bills” from Methodist demanding more money
from his clients than his clients owed.

(Id.)

He stated that

Methodist’s “misrepresentations” about the amount of money that
patients owed “needlessly prolong the process” and might deprive
his

clients

of

“money

that

they

justly

deserve.”

(Id.)

Finally, he stated that to his knowledge Methodist has never
reimbursed overpayments.

(Id.)

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
oral deposition.

(ECF No. 19 at 1.)

Methodist seeks to depose

Blount on the following subjects: (1) Blount’s and his clients’
understanding

of

Methodist’s

billing

practices;

(2)

various

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.
On

July

24,

(Id. at 11–14.)

2017,

K.B.

and

Knox-Bender

opposition to Methodist’s motion to compel.
In

this

motion,

they

argue

that

-4-

Methodist

responded

in

(ECF No. 29 at 1.)
has

not

met

the

heightened standard necessary for deposing an opposing party’s
legal counsel.

(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.)
II.

ANALYSIS

According to the Federal Rules of Civil Procedure, “a party
may

.

.

.

depose

(emphasis added).

any

person.”

Fed. R. Civ. P. 30(a)

(1)

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
counsel.

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
counsel.

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

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to be deposed is either trial/litigation counsel or the subject
matter

of

the

deposition

may

elicit

litigation

strategy.”

Ellipsis, Inc. v. Color Works, Inc., 227 F.R.D. 496, 497 (W.D.
Tenn. 2005).
counsel.

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.
A.

Methodist’s Billing Practices
If

Methodist

were

allowed

to

depose

Blount

about

its

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
2016.

(ECF No. 19 at 14.)

statement
until

they

that

the

signed

Second, it would explore Blount’s

hospital
certain

withheld

documents.

treatment
(ECF

No.

from
19

patients
at

8–9.)

Third, it would question Blount about whether K.B. and Knox-

-6-

Bender

know

enough

about

Methodist’s

qualify as class representatives.

billing

practices

to

(ECF No. 19 at 9, 11, 17.)

The court finds that Methodist could learn most of this
information

by

deposing

the

plaintiffs

and

other

witnesses.

Indeed, according to Methodist’s motion, it has already done
just

that.

Methodist

noted

in

its

motion

that

Qassis

has

“admitted that her knowledge of Methodist’s billing practices
comes

entirely

statement

that

Attachment

from

her

Methodist

before

it

attorneys”
had

and

required

treated

K.B.

retracted
her

(ECF

her

to

sign

No.

19

prior

a

Lien

at

11.)

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

at 16.)

As to the statute of limitations issue, the court does

not

how

see

Blount’s

knowledge

regarding

Methodist’s

billing

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
accrues

when

the

plaintiff

knows

or

in

the

exercise

of

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)
(same).

-7-

As

the

information

that

Methodist

seeks

about

Blount’s,

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.
B.

Communications Between Methodist and Blount
Should

Methodist

the

court

would

cover

permit

Methodist

three

topics

to

depose

relating

communications between Blount and the hospital.

to

Blount,
various

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
whom Blount

has

spoken.

Blount’s

comment

process.

that

(Id.)
Methodist

Third,
has

it would

prolonged

ask about

the

billing

(Id.)

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.)

Moreover, part

of this information, such as whether Methodist has “cause[d]
confusion

and

difficulty

in

resolving

-8-

[Blount’s]

clients’

personal

injury

claims,”

preparation of the case.

is

not

crucial

to

Methodist’s

(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
the

case,

the

court

denies

Methodist’s

motion

to

compel

deposition on this subject.
C.

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.
argues that

this is relevant

because

one of

the

plaintiffs’

attorneys “injected these issues into the litigation.”
19 at 14.)

It

(ECF No.

Methodist reports that this attorney defended the

recent addition of the GCOA contract claim on the grounds that
“the

attorneys

did

not

‘legible’ until [2016].”

have

a

copy

of

the

GCOA

that

was

(Id.)

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.
No.

19-24.)

In

this

transcript,

the

court

could

(ECF

find

no

indication that the attorney claimed recent acquisition of a
legible copy of the GCOA form.
event,

Methodist

has

not

(Id. at 8–10, 25, 30.)
adequately

explained

In any

how

the

information would be crucial to its preparation of the case.
Because

this

information

is

not

-9-

relevant

or

crucial

to

Methodist’s case, the court denies Methodist’s motion to compel
deposition on this subject.
D.

K.B.’s Settlement
Methodist

seeks

to

depose

involving K.B.’s settlement.

Blount

about

topics

First, it would ask whether Blount

settled case in accordance with Tennessee law.
10.)

three

(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
from

K.B.’s

settlement

ended

Methodist, not K.B.’s account.

up

in

(Id.)

Qassis’s

account

at

All of this information

is either available from sources other than Blount.
The

court

understands

that

Methodist

has

asserted

an

affirmative defense of “laches, waiver, estoppel, unclean hands,
failure to mitigate damages, assumption of risk, acquiescence,
and

unjust

court

enrichment”

approval

defense.

for

and

K.B.’s

cited

Blount’s

settlement

(ECF No. 33 at 19.)

as

purported

lack

pertinent

to

of
the

However, it is unclear why

deposing Blount would provide any additional evidence on this
point.

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.)

-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.

While

Methodist

these

may

take

issue

with

the

reliability

of

witnesses, (ECF No. 19 at 11–12), that fact does not expose
Blount

to

deposition.

Finally,

with

respect

to

the

misapplication of funds for K.B.’s settlement, K.B. and KnoxBender have provided a factual basis to explain their version of
what

happened

with

the

funds,

which

Methodist

can

challenge

through discovery obtained from the plaintiffs themselves and
the documents upon which they rely.
at 2.)
means

(ECF No. 37 at 2; No 37-1

Thus, as this information is available to Methodist by
other

than

a

deposition

of

Blount,

the

court

denies

Defendants’ motion to compel deposition on this topic.
III. CONCLUSION
For

the

reasons

set

forth

above,

Methodist’s

motion

compel is denied.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
October 31, 2017
Date

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to