Karpenski v. American General Life Companies, LLC et al

Filing 65

ORDER granting in part and denying in part pltf's 43 Motion for protective order; Dispositive motions due by 5/15/2013, by Judge Ricardo S Martinez.(RS)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 11 12 13 CHRISTYANNA KARPENSKI, 14 Plaintiff, 15 16 17 v. CASE NO. C12-1569RSM ORDER ON MOTION FOR A PROTECTIVE ORDER AMERICAN GENERAL LIFE COMPANIES, LLC, d/b/a AMERICAN GENERAL, et al., 18 Defendant. 19 20 This matter is before the Court for consideration of plaintiff’s motion for a protective order. Dkt. 21 # 43. The motion concerns plaintiff’s requests for certain restrictions, regarding her deposition, in time, 22 place and manner due to her health. Plaintiff asks that her deposition be conducted by telephone 23 because her weakened immune system has left her susceptible to infection. She further asks that the 24 telephonic deposition be limited by two hours at most, with breaks, and that it not start before 11:00 am. 25 As to manner, she asks that the deposition be conducted in a civil, calm, and courteous tone. Defendants 26 have opposed the motion, mainly as to the provision for telephonic deposition. For the reasons set forth 27 below, the motion shall be granted in part and denied in part. 28 ORDER - 1 1 BACKGROUND 2 Plaintiff Christyanna Karpenski filed this action for breach of contract, breach of the covenant of 3 good faith and fair dealing (bad faith) and violation of the Washington Insurance Fair Conduct Act 4 (“IFCA”) in King County Superior Court. Her claims arise from a policy of disability insurance issued 5 to plaintiff by defendant United States Life Insurance Company (“US Life”). She applied for the policy 6 on February 15, 2009. When she subsequently (on some unspecified date) became disabled, she 7 submitted a notice of claim to the administrator in early June, 2009. Complaint, ¶¶ 26-28. On May 11, 8 2010, claims administrator American General wrote and advised plaintiff that her claim would not be 9 approved. Id., ¶ 87. The letter noted several pre-existing conditions indicating a “history of joint and 10 muskoskeletal [sic] disorders.” Id., ¶ 89-80. As plaintiff had not disclosed these conditions on her 11 application, defendants declined to offer long-term disability benefits and rescinded the coverage. Id., ¶ 12 91 13 Plaintiff filed her complaint for breach of contract, bad faith, and violation of the IFCA in state 14 court on August 15, 2012. Defendants removed it to this Court and filed an answer with a counterclaim 15 for declaratory relief, asking that the Court find that as a result of material misrepresentations on her 16 application for disability insurance, the policy is void ab initio and should be rescinded. Answer and 17 Counterclaim, Dkt. # 6, ¶ 9. The case has been bifurcated such that discovery on plaintiff’s bad faith 18 and extra-contractual claims has been stayed until the breach of contract and rescission claims have been 19 resolved. The Court has set a deadline of April 3, 2013, for the filing of cross-motions for summary 20 judgment on these claims. 21 Defendants noted plaintiff’s deposition for February 12, 2013, and plaintiff responded with this 22 motion for a protective order. She suffers from ulcerative pancolitis, and she asserts that her health is 23 too fragile to attend a deposition in person, because of her weakened immune system and the effect of 24 stress on her condition. Defendants offered various accommodations but would not agree to the 25 telephonic deposition. This motion for a protective order followed. 26 Each side has moved to strike the testimony of the other’s medical witness. The Court shall rule 27 on the motions to strike before turning to the merits of the motion for a protective order. 28 ORDER - 2 1 DISCUSSION 2 I. Rule 26(c) Certification 3 As an initial matter, the Court finds counsel’s Rule 26(c) certification of a good faith effort to 4 resolve this dispute without Court intervention wholly inadequate. Counsel’s certification statement 5 simply states, “I certify that I have conferred in good faith with defense counsel in an effort to resolve 6 this issue without Court assistance.” Declaration of Sean Gamble, Dkt. # 44, ¶ 14. Plaintiff’s Motion, 7 Dkt. # 31, p. 7. The factual recitation prior to this certification references only various email exchanges, 8 which are attached to the declaration. Id., ¶¶ 11, 13, and Exhibits E and F. However, a good faith 9 effort to confer regarding a protective order requires a face-to-face meeting or telephone conference, 10 and the certification “must list the date, manner, and participants to the conference.” Local Rule LCR 11 26(c)(1). Plaintiffs’ statement does not meet these requirements. 12 The local rule further provides that “[i]f the movant fails to include such a certification, the court 13 may deny the motion without addressing the merits of the dispute.” Id. While this Court generally 14 enforces the rule on certification requirements, it will in this case address the merits of plaintiff’s motion 15 notwithstanding counsel’s failure to comply. Plaintiff’s motion raises serious issues which should not 16 be determined by default. Counsel is advised, however, that the Court will not in the future disregard 17 failures to follow the local rules. 18 II. Motions to Strike 19 Plaintiff has supported her motion with two declarations by her primary care physician, Steven 20 M. Hall, M.D. Dkt. ## 45, 46. In opposing the motion, defendants called the Court’s attention to the 21 fact that both declarations are unsworn, and argue that they should not be considered as they do not 22 satisfy the requirements of 28 U.S.C. § 1746. Plaintiff then filed with her reply a replacement 23 declaration by Dr. Hall, this time with the required language, “under penalty of perjury,” that the 24 declaration is true and correct. Dkt. # 60. Defendants by surreply moved to strike this replacement 25 declaration as improper new evidence filed in reply, and as untimely. Dkt. # 64. 26 Defendants supported their opposition to plaintiff’s motion for a protective order with the 27 declaration of gastroenterologist Richard Weisiger, M.D., together with the medical records upon which 28 ORDER - 3 1 his opinions are based. Declaration of Richard Weisinger, Dkt. # 55, 56. Plaintiff has moved to exclude 2 Dr. Weisiger as a witness, arguing that he has not been properly disclosed as a fact or expert witness. 3 Plaintiff’s Reply, Dkt. # 58, citing Fed.R.Civ.P. 26(a). Defendants have opposed the motion to strike by 4 noting that Dr. Weisiger is a rebuttal witness not subject to the disclosure timelines of Fed.R.Civ.P. 5 26(a). Defendants’ Opposition, Dkt. # 63. 6 In furtherance of the goal of resolving this matter on the merits, the Court will DENY both 7 motions to strike. The Court notes, however, that the original unsworn declarations of Dr. Hall cannot 8 be considered, leaving the declaration filed at Docket No. 60 as the only admissible evidence in support 9 of plaintiff’s medical accommodation needs. 10 III. Motion for a Protective Order 11 Plaintiff’s motion asks that she be allowed to appear for her deposition by telephone, and that 12 several additional restrictions be placed on the time and manner of deposition. These restrictions are 13 necessary, according to Dr. Hall’s opinion, because plaintiff’s immune system has been compromised 14 by the medication she takes for her ulcerative pancolitis, and because her condition is exacerbated by 15 stress and fatigue. Declaration of Steven Hall, M.D., Dkt. # 60, ¶¶ 3-8. Dr. Hall also opines that 16 plaintiff is necessarily homebound to limit her exposure to infection, and that travel outside the home to 17 attend a deposition would be risky to her health. Id., ¶ 10. Further, he states that as of the date of his 18 declaration, January 25, 2013, plaintiff was suffering a flare-up of her illness, and any deposition must 19 be postponed by six weeks at least. Id., ¶ 11. Dr. Hall’s admissible declaration does not set forth his 20 credentials or any factual basis for his opinions; he does not state how long he has been treating plaintiff 21 or even that he has treated her. Dkt. # 60.1 22 Plaintiff’s proposed order accompanying her motion sets forth the restrictions as follows: 23 • Deposition tone: Civil, calm, and courteous. 24 25 1 27 Dr. Hall’s previous, unsworn and inadmissible declaration did state that he is “a physician licensed to practice in this state,” that he has “been practicing medicine for 30 years and currently practice[s] at Integral Medicine in Issaquah, Washington,” and that he is plaintiff’s primary care physician, having treated her for “severe ulcerative pancolitis and its complications since 2009.” Dkt. # 46, ¶¶ 2, 3. 28 ORDER - 4 26 1 2 • Format: Telephonic deposition. 3 • Time limit per deposition session: 30 to 60 minutes per session, or up to 2 hours so long as there is a significant rest break during the deposition. 4 5 6 • Medication: Plaintiff is prescribed an antianxiety medication, which reduced the damage that stress hormones have on her body, but which will not prevent a full-blown relapse. Plaintiff may take the medication. 8 • Number of sessions: If Plaintiff is made to be deposed more than one session telephonically, the number of sessions must be limited to ensure her safety. She must be allowed 1 to 3 days of recovery time between sessions to recover. 9 • Earliest starting time per session 11:00 A.M. (PT). 7 10 11 Proposed Order, Dkt. # 47, p. 2.2 Defendants have countered with a declaration by gastroenterologist Richard A Weisiger, M.D., 12 Ph.D. Dr. Weisiger’s curriculum vitae states that he is Emeritus Professor of Medicine at the University 13 of California, San Francisco, where he taught for over 30 years. Dkt. ## 55, ¶ 1; Dkt. # 56. He was 14 board-certified in gastroenterology in 1981, and Senior Editor of the Gastrointestinal Disease Textbook 15 in 1995 and 1997. Id. His list of publications, reviews, appointments, and other service to the 16 profession covers four pages, single-spaced. Dkt. # 56. He has treated many patients with inflammatory 17 bowel disease, including ulcerative pancolitis, over the years. Dkt. # 55, ¶ 2. Dr. Weisiger reviewed 18 plaintiff’s medical records, including her records from Northwest Gastroenterology Associates, which 19 he has attached to his declaration. These records cover the period from May 24, 2010, through May 15, 20 2012, in contradiction of Dr. Hall’s unsworn statement that he has been treating plaintiff’s ulcerative 21 colitis since 2009. 22 Dr. Weisiger points out numerous flaws in Dr. Hall’s opinions, not limited to the fact that he is 23 not a gastroenterologist. He notes that the studies cited by Dr. Hall (which have now been excluded 24 along with his unsworn declarations) do not support Dr. Hall’s conclusions. Declaration of Richard 25 26 2 27 Plaintiff has improperly filed this Proposed Order and other related documents under seal. The Court will address the sealing issues by separate Order, but notes for the purposes of this Order that plaintiff’s view of confidentiality is not binding on the Court in writing its Orders. 28 ORDER - 5 1 Weisinger, Dkt. # 55, ¶¶ 6-9. He notes that the medical records from Northwest Gastroenterology 2 Associates do not support the conclusion that plaintiff currently suffers from severe ulcerative 3 pancolitis; indeed the latest record, dated May 15, 2012, describes her as “in remission.” Nor do her lab 4 markers support the conclusion that she is suffering acute illness at this time. Id., ¶ 10. As to plaintiff’s 5 immune status, Dr. Weisiger notes that “[h]er medical records reveal that she is considerably less 6 immune-suppressed than many patients routinely encountered in medical practice”3 and that protocols 7 developed to protect such patients “should prove effective in protecting plaintiff during her deposition.” 8 Id., ¶ 12. He concludes, 9 10 11 12 13 In my professional opinion, requiring [plaintiff] to be deposed in person at a place of her choosing does not present any significant health risks. In deference to Dr. Hall’s health concerns, all deposition participants may wear appropriate face masks, gowns, gloves, and hair covers to protect [plaintiff] from infection. She should be allowed to take frequent breaks during the deposition. Id., ¶ 13. The Court finds Dr. Weisiger’s thorough and reasoned opinion, based on plaintiff’s medical 14 records and his own extensive experience with the disease, more convincing that Dr. Hall’s conclusory 15 statements such as “stress is known to weaken her immune system.” Declaration of Steven Hall, Dkt. # 16 60, ¶ 4. Nowhere in his admissible declaration does Dr. Hall state when he last saw plaintiff, or even 17 that he has ever seen her. He has attached no medical records which might form the factual basis for his 18 opinions. Nor has plaintiff offered a declaration on her own behalf as to her housebound status, an 19 omission which the Court finds significant. The Court will accordingly give greater weight to the 20 opinion of Dr. Weisiger and deny the request for a telephonic deposition. 21 22 23 24 CONCLUSION This is plaintiff’s case, in which she has put her medical condition and medical history at issue. Defendants are entitled to discovery to defend against her claims, and to develop evidence in support of 25 26 3 27 The only infection indicated in plaintiff’s medical records is sinusitis, which is mentioned in several visits and appears to be chronic. Declaration of Richard Weisiger, Dkt. # 55, pp. 2, 6, 11. 28 ORDER - 6 1 their own counterclaims. Plaintiff may not retreat behind the assertion that any discussion or questions 2 based on her health condition so exacerbates that condition that it should not be allowed. On the other 3 hand, defendants shall not be permitted to unreasonably exploit her sensitivity. Balancing these 4 consideration, the Court shall GRANT IN PART and DENY IN PART plaintiff’s motion for a 5 Protective Order. Plaintiff shall be deposed in person, at a time and place of her choosing, in two 6 sessions of up to three hours each, not including time set aside for breaks. Upon request, all attendees at 7 the deposition will wear protective clothing including face masks, gowns, gloves, and hair covers. The 8 deposition shall be concluded by March 15, 2013. The Court will extend the deadline for filing 9 dispositive motion s to May 15, 2013. 10 Dated this 21st day of February 2013. 11 A 12 13 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 7

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