United States District Court, D. Connecticut
DINORYS BRACHO, as Parent and Next Friend of Danilo Bracho, and Individually
RULING ON DEFENDANT'S MOTION TO COMPEL DEPOSITION
OF PLAINTIFF'S EXPERT (DOC. NO. 55), PLAINTIFF'S
MOTION TO COMPEL PRODUCTION (DOC. NO. 60), AND
DEFENDANT'S MOTION FOR PROTECTIVE ORDER (DOC. NO.
M. SPECTOR UNITED STATES MAGISTRATE JUDGE
litigation arises out a bicycling accident that occurred on
April 21, 2016. Danilo Bracho (“Danilo”), then a
student at Kent School, was bicycling with the school's
Road Biking activity when he crashed, sustaining serious
injuries. Plaintiff Dinorys Bracho, Danilo's mother, has
filed the present action against Kent School, asserting that
it failed to warn Danilo about the risks of the Road Biking
activity, failed to provide Danilo with necessary and
adequate supervision and training, and provided Danilo-and
allowed him to ride-an unsafe bicycle. (Doc. No. 1, at 10).
Presently before the Court are three motions: (1) the
defendant's Motion to Compel Deposition of
Plaintiff's Expert (Doc. No. 55); (2) the plaintiff's
Motion to Compel Production (Doc. No. 60); and (3) the
defendant's Motion for Protective Order (Doc No. 71). The
Court heard oral argument on these motions on October 8,
2019. In accordance with the rulings made on the record, and
for the following reasons, the defendant's Motion to
Compel Deposition of Plaintiff's Expert is DENIED without
prejudice to a renewal, the plaintiff's Motion to Compel
Production is GRANTED in part and DENIED in part, and the
defendant's Motion for Protective Order is DENIED.
DEFENDANT'S MOTION TO COMPEL DEPOSITION OF
defendant filed this motion on July 3, 2019, seeking
resolution of objections that the plaintiff's counsel
made during the deposition of Dr. Young, one of Danilo's
treating physicians. (Doc. No. 55). The defendant moved the
Court for an order permitting a continued deposition of Dr.
Young, at which the defendant would be allowed to question
Dr. Young about other providers' medical records and to
elicit Dr. Young's opinions generally about Danilo's
subsequent treatment. The plaintiff opposed the motion on
August 7, 2019, (Doc. No. 63), and the defendant replied on
August 21, 2019. (Doc. No. 65).
oral argument on October 8, 2019, the parties represented
that the facts related to this motion had changed. The
defendant had initially noticed Dr. Young's deposition,
which took place on February 15, 2019, because the plaintiff
had disclosed Dr. Young as a treating physician in her expert
disclosures. At that deposition, the plaintiff's counsel
objected to Dr. Young reviewing and offering opinion
testimony about two other providers' medical records
relating to treatment of Danilo. The plaintiff argued that it
was improper for Dr. Young to review those medical records
without a Health Insurance Portability and Accountability Act
(“HIPAA”) authorization, and that, if Dr. Young
were to do so and testify as proposed by the defendant, he
would be giving expert testimony outside his role as a
treating physician. Dr. Young did not answer these questions,
and the defendant thereafter filed the instant motion asking
the Court to overrule the plaintiff's objections and
require Dr. Young to attend a continued deposition at which
he would have access to those providers' medical records
and be asked to testify about them and opine about
Danilo's subsequent treatment.
argument, the plaintiff stated that she has taken Dr. Young
off her list of experts she expects to call at trial and that
his testimony will be limited to that of a treating
physician. The defendant, however, represented at the oral
argument that it intends to disclose Dr. Young as an expert,
though it has not done so yet. The defendant argued that, by
refusing to give Dr. Young access to the two providers'
medical records and by not allowing Dr. Young to testify as
to Danilo's subsequent treatment, the plaintiff has
“foreclosed” the defendant from learning its own
expert's opinions. The defendant, however, has not
disclosed Dr. Young as an expert. To compel Dr. Young to
testify as proposed by the defendant before any disclosure of
Dr. Young as an expert would be to compel expert testimony
from a treating physician not retained as an expert. See
McAfee v. Naqvi, No. 3:14-CV-410, 2017 WL 3184171, at *4
(D. Conn. July 26, 2017) (“A treating physician who has
not complied with the reporting requirement of Rule 26(a)(2)
should therefore ‘not be permitted to render opinions
outside the course of treatment and beyond the reasonable
reading of the medical records'”) (citing
Barack v. Am. Honda Motor Co., 293 F.R.D. 106, 109
(D. Conn. 2013); see id. (“[I]f a treating
physician is called upon to review . . . [any] materials
outside the four corners of [his] medical records and to
opine greater than what is reflected in those medical
records, we then would be of the view that such treating
physician now falls with[in] the parameters” of Rule
26(a)(2)(B) and a written expert report would be
required.”) (citing Lamere v. N.Y. State Office for
the Aging, 223 F.R.D. 85, 89 (N.D.N.Y. 2004)).
the Court finds this motion to be premature. The
defendant's Motion to Compel Deposition of
Plaintiff's Expert is DENIED without prejudice to a
PLAINTIFF'S MOTION TO COMPEL PRODUCTION
the request of the defendant, and with the consent of the
plaintiff, Dr. Richard T. Katz completed a Rule 35
Independent Mental and Physical Examination of Danilo on
January 30, 2019. The plaintiff filed this motion on August
5, 2019, after the plaintiff had requested Dr. Katz's
report and “entire file” pursuant to Rule 35(b),
and the defendant had indicated it would not produce anything
until the expert disclosure deadline, and even at that time,
would only produce Dr. Katz's final report. (Doc. No.
60). The defendant opposed the motion on August 26, 2019,
(Doc. No. 69), and the plaintiff replied on August 27, 2019.
(Doc. No. 70).
Rule of Civil Procedure 35(b)(1) provides, in relevant part,
that a party who moves for an independent medical examination
“must, on request, deliver to the requester a copy of
the examiner's report, together with like reports of all
earlier examinations of the same condition.”
Id. “The examiner's report . . . must set
out in detail the examiner's findings, including
diagnoses, conclusions, and the results of any tests.”
plaintiff initially sought in its motion to compel disclosure
of the “the report and all drafts of the report, like
reports of all earlier examinations of the same condition,
Dr. Katz's notes, data, and recordings of all earlier
examinations of the same condition, correspondence with
defense counsel, time records, and any other documents
generated in connection with the examination . . . within 5
days of the Court's Order on this Motion.” (Doc.
No. 60, at 6). At the oral argument, the parties agreed that
the plaintiff is entitled to Dr. Katz's full report. The
parties also agreed that the plaintiff is entitled to Dr.
Katz's notes, data, and recordings of the examination,
time records, and any other documents generated in connection
with the examination. Indeed, defense counsel represented
that Dr. Katz's report fairly includes all those
requested items, including photos and data. The parties
continue to disagree, however, as to whether the defendant
must disclose to the plaintiff any correspondence between Dr.
Katz and defense counsel.
Court finds that the defendant is not required to produce to
the plaintiff any attorney correspondence. The Court is not
persuaded by the plaintiff's argument that Rules 26 and
35, when read together, compel production of attorney
correspondence. Nor has the plaintiff cited-or the Court
found-any case law in support of the plaintiff's
assertion that she is entitled to attorney correspondence.
Contrary to the plaintiff's contention, the decision in
Castillo v. Western Beef, Inc., No. 04-CV-4967, 2005
WL 3113422 (E.D.N.Y. Nov. 21, 2005) cannot be read so broadly as
to suggest that “any other documents generated in
connection with the examination” encompasses attorney
the timing of the defendant's disclosure, Rule 35(b) does
not prescribe a time limit, noting only that the report must
be provided “on request.” See Fed. R.
Civ. P. 35(b). The defendant argues that it is not obligated
to disclose the report until the expert disclosure deadline,
which is November 1, 2019, whereas the plaintiff requests an
order compelling disclosure within five days of the
Court's Order on the motion.
is varying treatment among the district courts on the
relationship between the expert disclosure deadline in Rule
26 and the timing for a Rule 35 report. The case law on this
interplay, however, typically involve decisions on whether
the defendant may conduct a Rule 35 examination or disclose a
Rule 35(b) report after the expert disclosure
deadline has passed. Compare Bush v. Pioneer Human
Services, No. 09-CV-518, 2010 WL 324432, at *5 (W.D.
Wash. Jan. 21, 2010) and Waggoner v. Ohio Centr.
R.R., 242 F.R.D. 413, 414 (S.D. Ohio 2007) with Diaz
v. Con-Way Truckload, Inc., 279 F.R.D. 412, 418 (S.D.
Tex. 2012) and Roberson v. Church, No. 09-CV-372,
2009 WL 4348692, at *1 (M.D. Fla. Nov. 24, 2009). At least
one district court has considered the situation at issue
here, where the plaintiff seeks to compel the defendant to
disclose the Rule 35(b) report before the expert disclosure
deadline. See Garayoa v. Miami-Dade County, No.
16-CV- 20213, 2017 WL ...