Bramlett et al v. The Medical Protective Company of Fort Wayne, Indiana et al
Filing
118
MEMORANDUM OPINION AND ORDER granting 110 Plaintiffs' Motion to Defer Consideration of Defendants' Supplemental Motion for Summary Judgment; and Request for Modification of Discovery Orders filed by Dale Bramlett, Michael Fuller, Shane Fuller. (Ordered by Chief Judge Sidney A Fitzwater on 9/7/2012) (Chief Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
DALE BRAMLETT, INDIVIDUALLY,
AND AS INDEPENDENT
ADMINISTRATOR OF THE ESTATE
OF VICKI BRAMLETT, DECEASED,
et al.,
Plaintiffs,
VS.
THE MEDICAL PROTECTIVE
COMPANY OF FORT WAYNE,
INDIANA, et al.,
Defendants.
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§ Civil Action No. 3:10-CV-2048-D
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MEMORANDUM OPINION
AND ORDER
Plaintiffs move the court under Fed. R. Civ. P. 56(d) to defer consideration of
defendants’ motion and supplemental motion for summary judgment and to modify
discovery orders. For the reasons that follow, the court grants the Rule 56(d) motion and,
to the extent necessary to enable plaintiffs to obtain the discovery permitted under Rule
56(d), grants the request to modify discovery orders.
I
The court assumes the parties’ familiarity with the background facts and procedural
history of this case. See, e.g., Bramlett v. The Med. Protective Co., ___ F.Supp.2d ___, 2012
WL 692032, at *1-2 (N.D. Tex. Mar. 5, 2012) (Fitzwater, C.J.) (“Bramlett III”). The court
will therefore limit its discussion to the facts and procedure pertinent to this decision.
This is a removed state-court Stowers-type1 action lawsuit arising in connection with
a medical malpractice lawsuit (the “Underlying Suit”) that plaintiffs filed in Texas state court
against Benny P. Phillips, M.D. (“Dr. Phillips”). Dr. Phillips was insured by The Medical
Protective Company of Fort Wayne, Indiana (“MedPro”).2 In litigating the Underlying Suit,
MedPro rejected two policy limit settlement offers, and the case went to trial. A jury
“returned a verdict in plaintiffs’ favor, and the court entered judgment against Dr. Phillips
for $9,196,364.50 in actual damages and $2,972,000 in punitive damages.” Bramlett III,
2012 WL 692032, at *1 (citing Phillips v. Bramlett, 258 S.W.3d 158, 164 (Tex. App. 2007),
rev’d, 288 S.W.3d 876 (Tex. 2009)). On appeal, the Supreme Court of Texas held that Dr.
Phillips was entitled to limit his liability under the Medical Liability and Insurance
Improvement Act of 1977 (“MLIIA”), Tex. Rev. Civ. Stat. Ann. art. 4590i, § 11.02(a)
(repealed Sept. 1, 2003), and it remanded the case to the trial court to render judgment. The
court noted, however, that it “reserv[ed] for another case any suit against the insurer under
section 11.02(c)’s Stowers exception.” Phillips v. Bramlett, 288 S.W.3d 876, 882 (Tex.
2009). Plaintiffs then filed the instant suit in Texas state court against MedPro and others.3
1
G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. 1929).
2
Unless the context indicates otherwise, the court will refer to this defendant and to
Medical Protective Insurance Services, Inc. d/b/a The Medical Protective Company of Fort
Wayne, Indiana, collectively, as “MedPro.”
3
The suit also named Dr. Phillips as a defendant, but he was dismissed with prejudice
on his motion.
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Following removal to this court, MedPro filed a motion to dismiss. MedPro later
moved for summary judgment, asserting many of the grounds contained in the motion to
dismiss. The court decided the motion to dismiss in March 2012. In Bramlett III the court
held, inter alia, that § 11.02(c) of the MLIIA “provides injured third parties a direct cause
of action against insurers when facts exist that would allow a party to invoke the Stowers
doctrine, and plaintiffs have adequately pleaded that such Stowers facts exist.” Bramlett III,
2012 WL 692032, at *9. Thereafter, MedPro filed a supplemental motion for summary
judgment. Plaintiffs now move under Rule 56(d) to defer the court’s consideration of the
summary judgment motion and the supplemental summary judgment motion,4 and they
request that the court modify discovery orders so that they can obtain evidence to respond
to MedPro’s supplemental motion.
II
“[Rule 56(d)] is an essential ingredient of the federal summary judgment scheme and
provides a mechanism for dealing with the problem of premature summary judgment
motions.” Parakkavetty v. Indus. Int’l, Inc., 2004 WL 354317, at *1 (N.D. Tex. Feb. 12,
2004) (Fitzwater, J.) (citing Owens v. Estate of Erwin, 968 F. Supp. 320, 322 (N.D. Tex.
1997) (Fitzwater, J.) (referring to former Rule 56(f)). Under Rule 56(d), the court can “(1)
4
Although plaintiffs entitle their motion a motion “to defer consideration of
defendants’ supplemental motion for summary judgment” (emphasis added), they ask the
court to “defer[] consideration of MedPro’s motion for summary judgment and supplemental
motion for summary judgment until [they have] had fair opportunity to obtain . . . discovery.”
Ps. Mot. 11.
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defer considering the [summary judgment] motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other appropriate order,”
provided the “nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.” Rule 56(d). Rule 56(d) functions as
a “safe harbor” that has been “built into the rules so that summary judgment is not granted
prematurely.” Union City Barge Line, Inc. v. Union Carbide Corp., 823 F.2d 129, 136 (5th
Cir. 1987) (referring to Rule 56(f)). It is “usually invoked when a party claims that it has had
insufficient time for discovery or that the relevant facts are in the exclusive control of the
opposing party.” Id. Rule 56(d) offers relief where the nonmovant has not had a full
opportunity to conduct—not to complete—discovery. The two concepts are distinct. See
McCarty v. United States, 929 F.2d 1085, 1088 (5th Cir. 1991) (per curiam) (citing
Washington v. Allstate Ins. Co., 901 F.2d 1281, 1285 (5th Cir. 1985)) (rejecting nonmovant’s
contention that district court abused its discretion by failing to permit him to complete
discovery before granting summary judgment, and holding that “Rule 56 does not require
that discovery take place before granting summary judgment”).
“[Rule 56(d)] motions are broadly favored and should be liberally granted.” Culwell
v. City of Fort Worth, 468 F.3d 868, 871 (5th Cir. 2006). Nevertheless, to warrant a
continuance for purposes of obtaining discovery, “a party must indicate to the court by some
statement . . . why [it] needs additional discovery and how the additional discovery will
create a genuine issue of material fact.” Stults v. Conoco, Inc., 76 F.3d 651, 657-58 (5th Cir.
1996) (internal quotation marks omitted) (quoting Krim v. BancTexas Grp., Inc., 989 F.2d
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1435, 1442 (5th Cir. 1993)). It is not sufficient for a summary judgment nonmovant to allege
that discovery is incomplete or that discovery will produce needed but unspecified facts. See
Washington, 901 F.2d at 1284-85. The party must demonstrate “how the additional time will
enable [it] to rebut the movant’s allegations of no genuine issue of fact.” Id. at 1286 (internal
quotation marks omitted) (quoting Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir.
1985)). A nonmovant is not entitled to a continuance if it “fail[s] to explain what discovery
[it] did have, why it was inadequate, and what [it] expected to learn from further discovery”
and gives only “vague assertions of the need for additional discovery.” Bauer v. Albemarle
Corp., 169 F.3d 962, 968 (5th Cir. 1999) (in part quoting Reese v. Anderson, 926 F.2d 494,
499 n.5 (5th Cir. 1991) (internal quotation marks omitted)).
III
Plaintiffs contend that discovery is necessary for them to respond to two of MedPro’s
arguments, both of which MedPro raises in its supplemental motion for summary judgment.5
A
MedPro maintains that, as a matter of law, it reasonably rejected plaintiffs’ first
Stowers demand because they did not provide a statutorily-required expert report before the
settlement offer expired. Plaintiffs assert that they “construe[] MedPro’s motion to contend
that, absent [plaintiffs’] expert medical report, MedPro was unable, from information then
within its possession, to evaluate” elements of the medical malpractice claim. Ps. Mot. 8.
5
Plaintiffs also state that, to the extent MedPro is making a no-evidence summary
judgment argument, they request additional discovery.
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They seek discovery of documents that they contend would assist them in understanding
what MedPro knew at the time the first Stowers demand expired.
Plaintiffs are not entitled on this basis to defer consideration of MedPro’s motions.
MedPro’s position is that, regardless of what it knew from other sources when considering
plaintiffs’ first Stowers demand, it is entitled to summary judgment as a matter of law
because plaintiffs did not provide MedPro an expert report that met all the requirements of
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (repealed Sept. 1, 2003). No discovery
appears necessary for plaintiffs to respond to the legal argument that the report they provided
MedPro was statutorily deficient and that MedPro’s refusal of the offer was therefore
reasonable per se.
B
MedPro also contends that its failure to accept the second Stowers demand was
reasonable as a matter of law because plaintiffs held the demand open for only 17 days,
which did not give MedPro “a reasonable amount of time to respond.” State Farm Lloyds
Ins. Co. v. Maldonado, 963 S.W.2d 38, 41 (Tex. 1998). Reasonableness, however, inherently
depends on the facts and circumstances. Therefore, the determination whether an insurer was
given reasonable time to respond to a settlement offer depends on the surrounding facts. See
Allstate Ins. Co. v. Kelly, 680 S.W.2d 595, 608 (Tex. App. 1984, writ ref’d n.r.e.)
(concluding that settlement offer held open for 14 days was reasonable under the “facts and
circumstances” of the case). Plaintiffs have shown that they are unable to fully and
accurately respond to MedPro’s argument. Although they are able to set out which
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documents they provided to MedPro, and when, they lack other needed facts to address
whether the 17-day window was unreasonable. Plaintiffs have “provided more than
unspecified facts or vague assertions about the evidence [they] expect[] to find if the court
grants a continuance.” Byers v. Navarro Cnty., 2011 WL 2586756, at *2 (N.D. Tex. June 30,
2011) (Fitzwater, C.J.). Through a supporting affidavit from Spencer Markle, Esquire
(“Markle”), plaintiffs seek to discover, inter alia, the “specific actions MedPro undertook to
‘evaluate’ [plaintiffs’] second settlement demand,” the “specific information and documents
. . . available to MedPro during the 17-day period,” and “[w]hat time window is normally
required by MedPro to evaluate settlement offers in other cases, and what facts made the
[plaintiffs’] settlement demand require more or less time for evaluation than other cases.”
Markle Aff. 5. Among other things, the requested evidence could enable plaintiffs to dispute
that 17 days was unreasonable as a matter of law by showing that, in substantially similar
circumstances, MedPro had responded to settlement offers within approximately two weeks,
or that MedPro had sufficient available information to make a decision within the time frame
allowed. The court therefore concludes that plaintiffs are entitled to relief under Rule 56(d).6
6
Assuming that some of the discovery plaintiffs seek is privileged, this is not a basis
to deny a Rule 56(d) continuance. Instead, MedPro can raise privilege issues if the need
arises.
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C
The court now considers whether it should defer consideration of only the
supplemental motion or the motion and the supplemental motion.
MedPro contends that the court should decide the motion before any additional
discovery is conducted, in part because plaintiffs concede that no additional discovery is
needed to resolve the motion, and in part because the magistrate judge denied plaintiffs’
earlier motions to compel discovery, subject to plaintiffs’ reurging the motion to compel after
the court decides MedPro’s summary judgment motion. Considering the issues presented for
summary judgment and the anticipated discovery required, the court concludes that it is
appropriate to defer consideration of both motions.
IV
Plaintiffs request that the court modify the discovery orders to allow discovery
regarding whether 17 days was a reasonable time to accept a Stowers demand. The court
grants plaintiffs’ motion to the extent necessary to enable them to obtain the discovery that
the court is permitting today under Rule 56(d).
V
The deadline by which plaintiffs must obtain the discovery permitted by this
memorandum opinion and order is December 7, 2012. No later than January 7, 2013,
plaintiffs must file a supplemental response, supplemental brief, and supplemental appendix
to MedPro’s motion for summary judgment and a supplemental response, supplemental brief,
and supplemental appendix to MedPro’s supplemental motion for summary judgment.
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MedPro may file reply briefs to plaintiffs’ responses within 14 days after the responses are
filed.7
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For the reasons explained, the court grants plaintiffs’ June 26, 2012 motion to defer
consideration of defendants’ supplemental motion for summary judgment and request for
modification of discovery orders.
SO ORDERED.
September 7, 2012.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
7
Because these deadlines fall in or around holiday periods, the court will approve
reasonable extension requests presented for cause or by agreement.
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