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Hone v. Wal-Mart, Inc.

United States District Court, D. New Jersey

August 8, 2017

PATRICIA HONE Plaintiff,
v.
WAL-MART, INC.. Defendant.

          MEMORANDUM OPINON & ORDER

          DOUGLAS E. ARPERT, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on the following motions: (1) a motion by Plaintiff to disqualify counsel for Defendant; and (2) a motion by Defendant to compel the production of documents and for sanctions. Also before the Court are the following informal letter applications: (1) an application by Plaintiff to bar two supplemental defense expert reports; and (2) an application by Plaintiff seeking to quash Defendant's subpoena to a former employer of Plaintiff.

         I. Motion to Disqualify

         This is a personal injury action. In 1998, Plaintiff underwent a total mastectomy followed by bilateral breast reconstruction with implants. Plaintiff alleges that in 2012, an incident at a Walmart store caused one of the implants to migrate, resulting in an asymmetry with the other breast. As a result of her alleged injuries, Plaintiff underwent two surgical procedures in 2013 that were performed by Dr. Matthew Kaufman.

         In late 2016, after fact discovery in this case had closed, Plaintiff underwent additional breast surgeries by a different physician, Dr. Steven Copit. In light of these additional procedures, on January 27, 2017, the Court entered a Scheduling Order providing for the production of supplemental medical records, expert reports, and expert depositions.

         On March 9, 2017, Defendant served a subpoena for the deposition of Dr. Matthew Kauffman, who performed Plaintiff's 2013 surgeries, as well as for the production of documents from Dr. Kauffman. The subpoena was returnable March 28, 2017. Plaintiff objected to the subpoena, arguing it was outside the scope of the supplemental discovery contemplated by the Scheduling Order, which Plaintiff argues was limited to issues related to her 2016 surgeries. In a letter dated March 21, 2017, Plaintiff requested that the Court quash the subpoena. ECF No. 31-8. Defendant opposed this request by letter dated March 22, 2017. ECF No. 31-9.

         On the return date of the subpoena (March 28th), the Court had not yet decided Plaintiff's application to quash. Nevertheless, at 4:08 p.m. on March 28, 2017, Plaintiff's counsel received an email from Defendant's counsel stating “I am at Dr. Kauffman's office and called your office. Are you coming?” ECF No. 31-10; see also ECF No. 33 (Attorney Certification) at ¶ 10 (“When it became apparent Plaintiff's counsel chose not to appear, defense counsel called and emailed him inquiring as to when and if he would appear.”) When reached by telephone a few minutes later, defense counsel advised Plaintiff's counsel that he intended to proceed with the deposition and document examination in Plaintiff's counsel's absence. ECF No. 31-2 at ¶ 16. Defense counsel indicated he would proceed because no Order had been entered staying or quashing the deposition. ECF No. 33 (Attorney Certification) at ¶ 11. Despite Plaintiff's counsel's “vociferous objections, ” defense counsel went ahead with the deposition and the review of Dr. Kaufman's file. ECF No. 31-2 at ¶ 16.

         Plaintiff now moves to disqualify Defendant's counsel and asks the Court to strike the deposition transcript and “any other fruits of the improper questioning.” ECF No. 31-1 at 16. Plaintiff contends that it was improper for defense counsel to proceed with the deposition while an unresolved objection was pending. Plaintiff further argues that defense counsel's ex parte questioning of her physician violated both New Jersey state law as well as the federal Health Insurance Portability and Accountability Act (“HIPAA”). Last, Plaintiff argues that the deposition should not have proceeded because the subpoena was invalid.

         In response, Defendant argues that the operative Scheduling Order permitted Defendant to take the discovery, that Defendant did not require leave of Court to depose Dr. Kaufman, that Plaintiff waived any privilege objection to the subpoena, and that the deposition resulted in no prejudice to Plaintiff because no privileged information was disclosed.

         Although much of Defendant's brief is directed to the propriety and validity of the subpoena and the relevance of the discovery sought, those issues were raised prior to the deposition by way of the Plaintiff's application to quash the subpoena, and those issues, quite frankly, have been rendered moot because Dr. Kaufman has now been deposed. Regardless of whether the subpoena was valid or the discovery was appropriate, the threshold issue raised by the present motion is whether defense counsel should have proceeded with the deposition in the absence Plaintiff's counsel. The answer to that question is no.

         Once defense counsel learned that that Plaintiff's counsel would not be participating, Dr. Kaufman's “deposition” effectively became an ex parte interview. However, this was not an interview of an ordinary fact witness; Dr. Kaufman was one of Plaintiff's treating physicians. Nationwide, courts are split on whether ex parte questioning of a treating physician by an adverse party is permitted and, if permitted, how such interviews are to be conducted. See generally Joseph Regalia, V. Andrew Cass, Navigating the Law of Defense Counsel Ex Parte Interviews of Treating Physicians, 31 J. Contemp. Health L. & Pol'y 35, 39 (2015). Under New Jersey law, ex parte interviews of treating physicians are generally allowed, but because this ex parte contact implicates issues of privilege, confidentiality, and the “physician's loyalty” to his patient, certain conditions must be met:

Since it is unrealistic to anticipate that physicians will participate in such interviews without plaintiff's consent, plaintiff's counsel should provide written authorization to facilitate the conduct of interviews. If such authorizations are withheld unreasonably, their production can be compelled … by motion. However, conditions should be imposed in the authorizations, or in orders compelling their issuance, that require defendant's counsel to provide plaintiff's counsel with reasonable notice of the time and place of the proposed interviews. Additionally, the authorizations or orders should require that defendant's counsel provide the physician with a description of the anticipated scope of the interview, and communicate with unmistakable clarity the fact that the physician's participation in an ex parte interview is voluntary.

Stempler v. Speidell, 100 N.J. 368, 382, 495 A.2d 857, 864 (1985). The purpose of this procedure is to “afford plaintiff's counsel the opportunity to communicate with the physician, if necessary, in order to express any appropriate concerns as to the proper scope of the interview, and the extent to which plaintiff continues to assert the patient-physician privilege with respect to that physician.” Id.

         In the present case, all of the conditions necessary for defense counsel to proceed with exparte questioning of a treating physician were not present. At the threshold, Dr. Kaufman's appearance was not voluntary; it was compelled by subpoena. Once it was apparent that Plaintiff's counsel would not be present, there is no indication that Dr. Kaufman was told, “with unmistakable clarity”, that his participation in the absence of Plaintiff's counsel was completely voluntary. And even if he had been so advised, because Plaintiff's counsel expected to attend the deposition, Plaintiff's counsel did not have a proper opportunity “to communicate with the physician, if necessary, in order to ...


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