Comstock et al v. Blue Star Services LLC et al

Filing 43

RULING: Granting in part and denying in part 36 Motion to Compel Discovery Responses. Plaintiff shall produce the materials outlined in this ruling on or before 3/3/2017. Signed by District Judge J. Garvan Murtha on 2/1/2017. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ALLEN COMSTOCK and
CHERYL COMSTOCK,
Plaintiffs,
v.
BLUE STAR SERVICES LLC and
ZUHDIJA HUSIC,
Defendants.
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Case No. 1:16-cv-8-jgm

RULING ON DEFENDANTS’ MOTION TO COMPEL
(Doc. 36)
I.

Introduction
Defendants Blue Star Services LLC and Zuhdija Husic (collectively, “Defendants”) move to

compel Plaintiff Allen Comstock (“Plaintiff”) to respond to their first and second sets of discovery
requests, seeking principally medical records. (Doc. 36.) Plaintiff alleges a claim of negligence and
Cheryl Comstock, his wife, alleges a claim for loss of consortium. (Doc. 1 (Compl.). ¶¶ 8-22.)
Plaintiff and his wife seek compensatory damages. Id. at 4. Plaintiff opposes the motion (Doc. 38)
and Defendants filed a reply (Doc. 41).
II.

Background
This action was filed January 13, 2016, based on diversity jurisdiction under 28 U.S.C.

§ 1332, and arises out of a motor vehicle accident on January 28, 2013. (Compl.) Plaintiff asserts
Defendant Husic, an employee of Defendant Blue Star Services LLC, negligently operated a tractor
trailer resulting in an accident involving the bucket truck in which Plaintiff was a passenger. In his
complaint, Plaintiff alleges damages for serious and permanent injuries. Id. ¶ 20. Specifically, he
alleges his “permanent injuries have resulted in loss of mobility [and] loss of enjoyment of life.” Id.

Defendants seek an order requiring Plaintiff to respond to their February 22, 2016 and
August 3, 2016 discovery requests. (Doc. 36.) Principally, Defendants seek Plaintiff’s medical
records from ten years before the accident until the present (Doc. 36-1) and his social security
disability and worker’s compensation files and income tax returns for ten years before the accident
until the present (Doc. 36-5). They assert they cannot properly prepare an adequate defense of
Plaintiff’s claim without the benefit of the requested information and will be “greatly prejudiced” if
it is not provided. (Doc. 36 at 3.) Plaintiff responds he “recognize[s] delays in response to defense
counsel’s discovery demands,” (Doc. 38 at 1) and concludes he has “no objection to providing
requested discovery . . . some medical records have not been produced by the medical providers [but
he] recognize[s his] obligation to provide additional records as they become available,” id. at 4.
III.

Discussion
The Vermont and federal rules regarding the scope and limits of discovery are similar:

parties may obtain discovery of non-privileged matters relevant to the pending action. Compare
Vt. R. Civ. P. 26(b)(1) with Fed. R. Civ. P. 26(b). In this diversity action, Plaintiff alleges a state law
claim of negligence.
Given Plaintiff’s recognition of his obligation to provide the requested discovery,
Defendants’ motion to compel is granted in part. Plaintiff shall produce the following within thirty
days:
1.

Medical records dated January 18, 2006 to April 7, 2009, including treatment for a
2006 right knee meniscus injury;

2.

Pre-accident physical therapy notes;

3.

The first four pages of a medical record dated January 15, 2014 by Laurence
Thompson of Central Vermont Medical Center;

4.

Central Vermont Medical Center physical therapy record dated March 25, 2014;

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5.

Central Vermont Medical Center medical records dated march 5, 2014, March 19,
2014, May 14, 2014, August 19, 2014, and August 26, 2014;

6.

Medical records from March 8, 2016 to the present;

7.

Films for any and all x-rays, MRIs, and/or CT scans from January 2003 to the
present for any condition, including alleged injuries for which this suit has been
brought;

8.

A complete copy of social security disability file, if any; and

9.

Income tax returns (federal and state) including W-2 forms from January 2003 to the
present and copies of all books of account or similar records showing income form
any source from January 2003 to the present.

The Court notes Defendants request medical records for left and right hand surgeries in
1997 which are more than ten years prior to the accident, which the Court does not require Plaintiff
to produce. See Doc. 36 at 3.
IV.

Conclusion
Defendants’ motion to compel (Doc. 36) is GRANTED in part and DENIED in part.

Plaintiff shall produce the materials outlined above on or before March 3, 2017.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 1st day of February, 2017.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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