United States District Court, N.D. Indiana, Hammond Division
TODD HUDSON, as personal representative of the Estate of WILLIAM HUDSON, Deceased, Plaintiff,
ARCELORMITTAL BURNS HARBOR, LLC formerly known as ISG BURNS HARBOR, LLC, Defendant.
OPINION AND ORDER
P. RODOVICH, UNITED STATES MAGISTRATE JUDGE
matter is before the court on the Motion to Compel the
Limited Non-Expert Medical Discovery Depositions of Coroner
Charles “Chuck” Harris and Dr. Sammi M. Dali,
M.D. [DE 25] filed by the defendant, ArcelorMittal Burns
Harbor, LLC, formerly known as ISG Burns Harbor, LLC, on
December 2, 2016. For the following reasons, the motion is
Hudson died while snowplowing at the ArcelorMittal facility
as an employee of Tranco Industrial Services, Inc., on
January 9, 2014. The plaintiff has alleged that the
defendant, ArcelorMittal, failed to warn Hudson of a manhole
buried under seventeen inches of snow. Hudson hit the manhole
cover, triggering a cardiac event that lead to his death.
during fact discovery informed the plaintiff of its intention
to subpoena Charles Harris and Dr. Sammi M. Dali for
depositions in their capacity as non-expert witnesses. The
plaintiff indicated that Harris and Dr. Dali were retained
experts and their depositions were governed by the expert
discovery deadlines. The deadlines, as set in the case
management order, indicate that the plaintiff's expert
witness disclosures and reports are due by March 15, 2017.
was employed as the Porter County's Coroner, and Dr. Dali
treated Hudson for several years at the LaPorte Hospital.
ArcelorMittal is seeking their testimony regarding their
observations, diagnoses, treatment, and personal knowledge of
Hudson's physical condition and medical history up to and
immediately after his death. Therefore, ArcelorMittal has
requested to depose Dr. Dali and Harris in their non-expert
witness capacities and again as the plaintiff's retained
experts in the appropriate stages of this matter.
may “obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody,
condition and location of any books, documents, or other
tangible things.” Federal Rule of Civil Procedure
26(b)(1). For discovery purposes, relevancy is construed
broadly to encompass “any matter that bears on, or that
reasonably could lead to other matter[s] that could bear on,
any issue that is or may be in the case.” Chavez v.
DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind.
2002) (quoting Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253
(1978)). Even when information is not directly related to the
claims or defenses identified in the pleadings, the
information still may be relevant to the broader subject
matter at hand and meet the rule's good cause standard.
Borom v. Town of Merrillville, 2009 WL 1617085, at
*1 (N.D. Ind. June 8, 2009) (citing Sanyo Laser Prods.,
Inc. v. Arista Records, Inc., 214 F.R.D. 496, 502 (S.D.
Ind. 2003)); see Adams v. Target, 2001 WL 987853, at
*1 (S.D. Ind. July 30, 2001) (“For good cause, the
court may order discovery of any matter relevant to the
subject matter involved in the action.”); Shapo v.
Engle, 2001 WL 629303, at *2 (N.D. Ill. May 25, 2001)
(“Discovery is a search for the truth.”).
may seek an order to compel discovery when an opposing party
fails to respond to discovery requests or has provided
evasive or incomplete responses. Federal Rule of Civil
Procedure 37(a)(2)-(3). The burden “rests upon the
objecting party to show why a particular discovery request is
improper.” Gregg v. Local 305 Ibew, 2009 WL
1325103, at *8 (N.D. Ind. May 13, 2009) (citing Kodish v.
Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447,
449-50 (N.D. Ill. 2006)); McGrath v. Everest Nat. Ins.
Co., 2009 WL 1325405, at *3 (N.D. Ind. May 13, 2009)
(internal citations omitted); Carlson Rests. Worldwide,
Inc. v. Hammond Prof'l Cleaning Servs., 2009 WL
692224, at *5 (N.D. Ind. March 12, 2009) (internal citations
omitted). The objecting party must show with specificity that
the request is improper. Cunningham v. Smithkline
Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009) (citing
Graham v. Casey's Gen. Stores, 206 F.R.D. 253,
254 (S.D. Ind. 2002)). That burden cannot be met by “a
reflexive invocation of the same baseless, often abused
litany that the requested discovery is vague, ambiguous,
overly broad, unduly burdensome or that it is neither
relevant nor reasonably calculated to lead to the discovery
of admissible evidence.” Cunningham, 255
F.R.D. at 478 (citing Burkybile v. Mitsubishi Motors
Corp., 2006 WL 2325506, at *6 (N.D. Ill. Aug. 2, 2006))
(internal quotations and citations omitted). Rather, the
court, under its broad discretion, considers “the
totality of the circumstances, weighing the value of material
sought against the burden of providing it, and taking into
account society's interest in furthering the
truth-seeking function in the particular case before the
court.” Berning v. UAW Local 2209, 242 F.R.D.
510, 512 (N.D. Ind. 2007) (examining Patterson v. Avery
Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002))
(internal quotations and citations omitted); see Hunt v.
DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012)
(explaining that the district court has broad discretion in
has argued that Dr. Dali and Harris possess crucial facts and
opinions that were not formed in anticipation of litigation.
ArcelorMittal contends that it is entitled to take Dr.
Dali's deposition as a non-expert regarding the medical
care and treatment provided to Hudson and his personal
knowledge of Hudson's cardiac health. Also, ArcelorMittal
contends that it is entitled to question Harris about his
education and professional background, his experience as a
coroner, his observations relating to investigating the
decedent's cause of death, his basis for issuing his
initial verdict, and his personal knowledge of the decedent.
plaintiff has indicated that the information and facts that
ArcelorMittal is seeking from Dr. Dali and Harris in their
non-expert capacity is foundational to their expert opinions.
The plaintiff indicated that Dr. Dali's and Harris'
observations of Hudson alone do not establish the basis of an
expert opinion, but combined with the information later
obtained and all of their training, knowledge, and experience
form an expert opinion. Dr. Dali's and Harris'
opinions are based on first-hand knowledge and information
supplied by plaintiff's counsel.
has argued that it would be prejudiced by depriving it the
ability to develop a factual record outside the expert
discovery period if it cannot take the depositions of these
witnesses prior to the close of fact discovery on February
15, 2017. ArcelorMittal contends that it would be limited in
its ability to provide its consultants facts that were
testified to by Dr. Dali and Harris in a timely manner. Also,
ArcelorMittal contends judicial economy is served by taking
two depositions to prevent forfeiture of critical fact
discovery or having to re-open discovery.
plaintiff indicated that ArcelorMittal would only wait an
additional month until March 15, 2017, to depose Dr. Dali and
Harris as retained experts. Also, the plaintiff contends that
ArcelorMittal will be able to ask the same questions under
the same conditions in one deposition. Therefore, considering
time and expense judicial economy requires that Dr. Dali and
Harris be deposed once.
court sees no reason for ArcelorMittal to take the
depositions of Dr. Dali and Harris twice. According to the
case management schedule set by the court, the parties are to
complete fact discovery and non-expert medical discovery by
February 15, 2017, the plaintiff's expert witness
disclosures and written reports are due by March 15, 2017,
and the ArcelorMittal's expert witness disclosures and
written reports are due by May 18, 2017. ArcelorMittal will
have adequate time after receiving the ...