United States District Court, E.D. Louisiana
ORDER AND REASONS
Van Meerveld United States Magistrate Judge.
the Court are the Motion to Compel Discovery filed by
defendant GEICO Casualty Company
(“GEICO”) (Rec. Doc. 23) and the Motion to Limit the
Deposition of Plaintiff's Treating Physician and Medical
Expert filed by plaintiff Marlene Collett (Rec. Doc. 21).
These cross motions both address the question of whether
plaintiff's treating physician and medical expert, Dr.
David Petersen, will be required to testify regarding
accusations of fraud that may have been made against him. For
the following reasons, both motions are DENIED.
lawsuit arises out of a motor vehicle accident that occurred
on February 10, 2016. Ms. Collett alleges that she suffered
back, neck, arm, hand, and knee injuries when she was
rear-ended by a vehicle operated by defendant Jonathan Morgan
and owned by defendant Paul Morgan. GEICO provided liability
insurance on the vehicle. Ms. Collett underwent multiple
epidural steroid injections in her neck and eventually a
posterior cervical facet fusion.
Petersen treated Ms. Collett and performed the cervical
fusion surgery. He was deposed by telephone on June 15, 2017.
He was asked about his involvement with Orthopedic
Development Corporation, and he testified that he was one of
the company's founders but that he has had no involvement
with the company for seven years. He testified that the
company's CEO “got himself into a lot of hot water,
and I basically walked away.” Dr. Petersen also
testified that the company's name was changed to minSURG
and then to minSURG international. In its memorandum in
support, counsel for GEICO points out that Dr. Petersen's
CV lists “Medical Director/CEO/Chairman/Founder minSURG
International Corporation.” The CV does not specify
whether this is a former or current position.
the June 15, 2017, deposition, counsel for GEICO asked Dr.
Petersen whether anyone had accused him of fraud in
connection with Orthopedic Development Corporation or
minSURG. Counsel for the plaintiff stated that he believed
the question was harassing to Dr. Petersen. Dr. Petersen then
declined to answer the question. Counsel for GEICO reserved
GEICO's rights regarding Dr. Petersen's refusal.
Counsel for the plaintiff did not make a motion during the
deposition to limit the deposition due to harassment. Counsel
for GEICO did not seek the Court's assistance in
obtaining Dr. Petersen's testimony at the time of the
deposition. It appears from the transcript that the
deposition lasted little over an hour.
the deposition, GEICO moved to compel Dr. Petersen to answer
this question about accusations of fraud and all follow up
questions at plaintiff's cost, plus an award of
attorney's fees and costs associated with the filing of
the motion. The same day, Ms. Collett filed a motion to limit
the deposition of Dr. Petersen on the grounds that
GEICO's line of questioning is harassing to Dr. Petersen,
is irrelevant to his treatment of Ms. Collett, and is not
admissible at trial.
Federal Rules of Civil Procedure provide that “parties
may obtain discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case.” Fed. R. Civ.
Proc. 26(b)(1). In determining proportionality, the parties
(and the Court if called to weigh in) should consider:
the importance of the issues at stake in the action, the
amount in controversy, the parties' relative access to
relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.
Fed. R. Civ. Proc. 26(b)(1). “Information within this
scope of discovery need not be admissible in evidence to be