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Bracho v. Kent School

United States District Court, D. Connecticut

October 15, 2019

DINORYS BRACHO, as Parent and Next Friend of Danilo Bracho, and Individually
v.
KENT SCHOOL

          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. 71)

          ROBERT M. SPECTOR UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. DEFENDANT'S MOTION TO COMPEL DEPOSITION OF PLAINTIFF'S EXPERT

         The 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).

         At the 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.

         At oral 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)).

         Accordingly, 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 renewal.

         II. PLAINTIFF'S MOTION TO COMPEL PRODUCTION

         Upon 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).

         Federal 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.” Fed.R.Civ.P. 35(b)(2).

         The 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.

         The 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)[1] cannot be read so broadly as to suggest that “any other documents generated in connection with the examination” encompasses attorney correspondence.

         As to 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.

         There 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 ...


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