United States District Court, N.D. Indiana, Hammond Division
DOROTHY HOBSON, as personal representative and administrator for the Estate of Kenneth Hobson, Plaintiff,
ROY DOMINGUEZ, individually and in his official capacity as Sheriff of Lake County, Indiana, et al., Defendants.
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on a Renewed Motion to Compel Disclosure of Second Autopsy and Motion to Compel Expert Response to Subpoena Duces Tecum [DE 215], filed by Defendants Manual Barragan, Denise Gross, Daryl Frey, Med-Staff, Inc., and Unknown Employees and Supervisors of Med-Staff, Inc. ("Med-Staff Defendants") on March 21, 2013. This matter was then stayed to allow the parties to pursue mediation. The stay was lifted on October 28, 2013, and following an extension of time, Plaintiff filed a response on December 31, 2013. The Med-Staff Defendants filed a reply on February 14, 2014.
A. Motion to Compel Disclosure of Second Autopsy
Sixteen days after being taken to the Lake County Jail on misdemeanor charges, 43-year old Kenneth Hobson was found dead in his cell on November 2, 2009. Dr. Young M. Kim of the Lake County Coroner's Office performed an official autopsy on Kenneth Hobson's body less than twentyfour hours after his death on November 3, 2009, and recorded the findings in a comprehensive, detailed eight-page report (the "Coroner's Report"). The Lake County Coroner's Office also documented the postmortem examination of Kenneth Hobson's body in a series of forty-eight photographs and conducted a battery of toxicology tests on fluids extracted from Kenneth Hobson's body at the time of the autopsy. All counsel of record in this case possess the Coroner's Report, the forty-eight photographs, and the toxicology report.
Due to the circumstances surrounding Kenneth Hobson's death, his mother-Plaintiff Dorothy Hobson-retained counsel to explore possible legal claims against the Jail and its staff, employed a pathologist, Dr. James Bryant, to conduct a "second-look" autopsy on November 4, 2009, and arranged for additional toxicology tests to be performed on blood samples collected on that date.
In Plaintiff's Rule 26(a)(1) initial disclosures, served in April 2011, counsel for Plaintiff inadvertently produced to Defendants a four-page report of the "second-look" autopsy and an accompanying 2-page toxicology screen. After becoming aware of the "second-look" autopsy in Defendants' possession, counsel for Defendants requested that Plaintiff produce all documents related to that second autopsy. In response, Plaintiff's counsel objected, advising that the second autopsy was performed by a non-testifying consulting expert and that the production of those pages in the initial disclosures was inadvertent. Plaintiff's counsel requested that the materials be returned. Defendants then filed a motion with the Court seeking to compel Plaintiff to disclose this "second-look" autopsy.
On September 5, 2012, the Court denied that motion, finding that Plaintiff hired Dr. Bryant in anticipation of litigation, that Plaintiff did not intend to use Dr. Bryant as a witness at trial, that Plaintiff's disclosure of the four pages of the second-look autopsy as well as two pages of a second comprehensive drug panel performed on the body was inadvertent, and that Plaintiff promptly requested the return of the documents upon realizing the error. The Court found that as a nontestifying expert retained by Plaintiff in anticipation of litigation, Dr. Bryant's report and opinions were protected from disclosure under Federal Rule of Civil Procedure 26(b)(4)(D). The Court also found that Defendants had not made a showing, as required by Federal Rule of Civil Procedure 26(b)(b)(D)(ii), of "exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means."
Defendants later learned, during the depositions of Plaintiff's retained testifying medical experts, Allon Friedman, M.D. and James Filkins, M.D., that these experts were provided with the second autopsy and second toxicology reports in the packet of materials provided to them by counsel for Plaintiff. Defendants contend that Plaintiff provided the "second-look" autopsy to Dr. Friedman and Dr. Filkins "to consider in evaluating the cause of Mr. Hobson's death and rendering their expert opinions." (Def. Br., p. 2). Neither expert listed the second autopsy or the toxicology report in his report under the section listing evidence reviewed. However, both experts testified at their depositions as having received and reviewed the second autopsy and second toxicology reports when asked by defense counsel.
In response to Defendants' deposition question, "Did you rely, in coming to any of your opinions in this case, on anything contained in the second autopsy?" Dr. Friedman responded, "No. My opinions were already formulated based on the medical records that - I saw nothing, no. The bottom line is no, it did not." (Pl. Resp., Exh. 9, p. 189). During his deposition, Dr. Filkins was asked whether he received the results of a second autopsy, to which he responded, "Yes. I do recall that there was a second-look autopsy that was done." (Docket entry 218, Exh. C, p. 82). When asked if he "reviewed" the results of the second autopsy, Dr. Filkins responded, "I looked it over. I didn't really rely on it in making any conclusions." Id.
Plaintiff's counsel contests Defendants' characterization of the purpose for which Dr. Friedman and Dr. Filkins were given the second autopsy and second toxicology reports and denies that her medical experts considered the second autopsy or toxicology reports in formulating their opinions. In Plaintiff's response brief, counsel explains:
Regrettably, undersigned counsel made precisely the same mistake when sending materials to Plaintiff's experts Friedman and Filkins. The packets of materials that she sent to the doctors included the same original bates document that she originally provided to counsel for Defendants. Therefore, those materials included Dr. Bryant's privileged 4-page report of his "second-look" autopsy and the toxicology screen. When Plaintiffs' counsel realized her inadvertent and accidental transmission of the Bryant materials, she explained to Drs. Friedman and Filkins that those materials are not part of this case - pursuant to the Court's privilege ruling - and that they must play no part in their opinions in this matter. Indeed, the materials played no part in their expert opinions.
(Pl. Br. 4-5) (citations omitted). Counsel further explains that she "produced hundreds of pages of documents to the doctors, and while doing so regrettably made the same inadvertent tender of the second-look autopsy materials to her experts that she initially did to Defendants. Plaintiff simply produced the same bates ranges to Dr. Friedman and Dr. Filkins without remembering to remove the second-look autopsy." Id. at 6.
In support of her response brief, Plaintiff offers the Affidavits of Dr. Friedman and Dr. Filkins. Dr. Friedman states, "Plaintiff's counsel sent me hundreds of pages of documents in this case, and included in those documents was a report of a "second-look" autopsy performed of Kenneth Hobson's body by Dr. James Bryant, including a two-page toxicology report. These pages of materials did not include conclusions by Dr. Bryant as to the cause of death of Kenneth Hobson or any electrolyte screen ordered by him." (Docket entry 254). He goes on to explain that Plaintiff's counsel informed him that she had mistakenly provided Dr. Bryant's materials, that the Court had held that those materials are privileged, and that he was not to consider those materials in this case, stating, "As a result, I did not consider, use, or rely on the Dr. Bryant materials in any way in forming my opinions in this matter, nor will I use or rely on those materials for any further work or testimony in this case." Id. Dr. Filkins Affidavit provides the same explanation for the production of the Dr. Bryant materials and Plaintiff's counsel's subsequent direction not to consider them, and he states, "As a result, I did not consider, use, or rely on the Dr. Bryant materials in any way in forming my opinions in this matter, nor will I use or rely on those materials for any further work or testimony in this case. This is why I did not include the Dr. Bryant materials in my Rule 26 report, as part of my list of materials that Ms. Liskow asked me to review for this matter." (Pl. Resp., Exh. 1, docket entry 245-1).
Federal Rule of Civil Procedure 26(a)(2)(B)(ii), addressing the disclosure of expert testimony, provides for the automatic disclosure in a written report, prepared and signed by the witness, of "the facts or data considered by the witness in forming" the expert witness's opinions. Federal Rule of Civil Procedure 26(b)(4)(C) protects communications between a party's attorney and an expert witness except to the extent the communications
(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the ...