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CASTLE v. CROUSE

United States District Court, E.D. Pennsylvania


May 25, 2004.

JOSEPH L. CASTLE, II, et al.
v.
LINDA J. CROUSE, M.D.

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

Before the court is the motion of plaintiffs, the Trustees of the AHP Settlement Trust ("Trustees"), to quash subpoenas served on the auditing cardiologists of the AHP Settlement Trust ("Trust").

The subpoenas demand production of all documents and materials pertaining to: the auditor's review or audit of echocardiograms and/or Green Forms attested to by defendant Dr. Linda Crouse; communications relating to Dr. Crouse between the auditors and Wyeth, the Plaintiffs' Management Committee, the Trustees, representatives of the law firm of Montgomery, McCracken, Walker & Rhoads, LLP, and Dr. John Dent; financial arrangements between the auditors and the Trust; training received from the Trust, including materials and documents related thereto; Trust standards, guidelines, and protocols for audit; Green Forms and echocardiogram reports signed by Dr. Crouse provided to the auditors by the Trust; and digital images/files/videotapes provided to the auditors by the Trust. The Trustees argue that the subpoenas served on the Trust's auditors should be quashed because all the information Dr. Crouse seeks is in the possession of the Trust itself. The Trustees expect to provide complete claim files, including the audit reports, for each claim attested to by the defendant, pursuant to a document request. They maintain that pursuant to the audit procedures in the Diet Drugs litigation, documents in possession of the auditors are protected and that the auditors were engaged with the understanding that they would not be subjected to litigation. In any event, when the auditors complete an audit, they return the audit materials to the Trust. Finally, the Trustees deny that documents relating to the audit of claims attested to by Dr. Crouse, communications specifically relating to Dr. Crouse, or training materials or protocols specific to Dr. Crouse's claims exist. Moreover, according to the Trust, its auditors are not aware of the identity of the attesting physician when they perform a review of a claim.

  Dr. Crouse argues that the Trustees do not have standing to quash the third party subpoenas served on the auditors. She also refuses to concede that the auditing cardiologists do not know the identity of the attesting physician when a claim is being audited, arguing that the name of her medical practice appears on the screen when viewing any echocardiogram tape prepared in her office. She contends that the fact that the Trust can provide the information she seeks is not enough to prevent the defendant from subpoenaing it from the auditors.

  We first address the standing issue. "Generally speaking, a party does not have standing to quash a subpoena served on a third party." Thomas v. Marina Assocs., 202 F.R.D. 433, 434 (E.D. Pa. 2001) (quoting Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997). However, "an individual or entity claiming a property right or privilege in the subpoenaed documents" may have standing. In re Grand Jury Matter, 770 F.2d 36, 38 (3d Cir. 1985). We recently entered a protective order stating, in part: "[p]ersons who receive disclosure of auditing cardiologists are prohibited from contacting or subpoenaing or attempting to contact or subpoena any auditing cardiologist, except upon prior leave of court." See Memorandum and Order in Castle v. Crouse, Civ.A. No. 03-5252 (E.D. Pa. May 24, 2004). Although the subpoenas were served prior to the entry of the protective order, we will treat the inquiry as if Dr. Crouse were now seeking leave of court pursuant to that order. Therefore, regardless of the Trustees' standing in the usual sense to challenge Dr. Grouse's subpoenas of the auditors, we must determine whether the subpoenas can stand.

  As explained above, the Trustees first represent that they either have produced or will produce all the existing documents requested by Dr. Crouse and argue that demanding the same documents from the auditors will be unnecessarily duplicative and burdensome and will unduly harass them. Furthermore, the requested documents are not in the possession of the auditors, as they return audit materials to the Trust as the audits are completed. Obviously, the auditors cannot produce documents not in their possession. As to documents specific to Dr. Crouse, the Trustees insist that none exist.

  In their capacity as auditors, the auditing cardiologists are employed by the Trust. At this juncture, we will accept the representations of plaintiffs' counsel, as officers of the court, that the Trustees will provide to Dr. Crouse all existing discoverable documents and materials requested from the auditors. We see no reason to burden unduly the Trust's auditing cardiologists when the documents and materials that Dr. Crouse seeks are available from the Trust itself.

  Accordingly, the motion of the Trustees to quash subpoenas served on the auditing cardiologists will be granted.

  ORDER

  AND NOW, this day of May, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the motion of the Trustees of the AHP Settlement Trust to quash subpoenas served on the auditing cardiologists of the AHP Settlement Trust is GRANTED.

20040525

© 1992-2004 VersusLaw Inc.



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