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Hadley v. Pfizer

June 4, 2009

DAVID B. HADLEY
v.
PFIZER INC.



The opinion of the court was delivered by: Kauffman, J.

MEMORANDUM AND ORDER

Plaintiff David B. Hadley ("Plaintiff") brings this action against his former employer, Defendant Pfizer, Inc. ("Defendant"), alleging that it failed to accommodate him pursuant to the Americans with Disabilities Act. Now before the Court is Defendant's motion to compel discovery, or, in the alternative, to extend the fact discovery period, and for sanctions (the "Motion"). For the reasons discussed below, the Motion will be granted in part and denied in part.

I. BACKGROUND

At issue is a discovery dispute regarding the disclosure of the names of certain witnesses. In its December 4, 2008 Scheduling Order, the Court provided that fact discovery shall be completed by March 13, 2009, and that the case will be placed in the Court's trial pool on June 17, 2009. During discovery, both parties served initial disclosures and responded to multiple discovery requests, including requests by Defendant for the identity of medical providers, individuals with relevant information, and individuals who will be called as witnesses. Def. Mot. 2. Plaintiff's initial disclosures listed twelve individuals with discoverable information, and identified an insurance policy held by Plaintiff with CIGNA Insurance Company ("CIGNA"). See Plaintiff's Initial Disclosures, attached to Def. Mem. at Ex. A. In his responses to interrogatories, Plaintiff further disclosed the identities of five doctors or other medical providers that had treated him or had been consulted since January 2004. See Plaintiff's Answers to Pfizer Inc.'s First Set of Interrogatories to Plaintiff ("Plaintiff's Interrogatories Responses"), attached to Def. Mem. at Ex. B. Plaintiff objected to Defendant's interrogatory request for a trial witness list, but reserved the right to supplement his response at a later date. See id. Plaintiff also refused to identify any potential expert witness that might testify at trial. See id.

During the discovery period, Defendant received various documents from Plaintiff, as well as documents from various subpoenaed third parties, including CIGNA; Dr. Colleen Matjicka, MD ("Matjicka"); Orthopedic Consultants, LTD; and the Social Security Administration. See Pl. Resp. Ex. A-C. Among the documents Defendant received from CIGNA was a two-page record of a medical exam of Plaintiff by Dr. Eswar Krishnan ("Krishnan"). See Krishnan Medical Record, attached to Pl. Resp. at Ex. C. Defendant subsequently deposed Plaintiff on February 10, 2009, and referenced the two-page Krishnan Medical Record See Pl. Dep., attached to Def. Reply at Ex. A, at 237-238. Plaintiff explained that Dr. Krishnan was his doctor for "a short period," and that he did not know whether he expressed any opinion other than his initial assessment: "I do not think he will be able to work a 40-hour job as he was doing with Pfizer as a sales representative." Id.

On March 13, the last day of discovery, at 3:30 p.m., Plaintiff forwarded an e-mail to Defendant, asserting that he has "not retained a medical expert specifically for trial, but rather reserve[s] the right to call his treating physicians to offer evidence of his medical condition and limitations at trial. Those physicians include Dr. Eswar Krishnan, Dr. Paul Simonelli, and Dr. Colleen Matjicka. You already have the complete records of these physicians which shall serve in lieu of formal reports." See Letter from Ethan R. O'Shea to Darcy Walker Krause, March 13, 2009 ["Treating Physician Testimony Letter"], attached to Krause Decl. at Ex. A. On March 16, Defendant contacted Plaintiff seeking to depose the three potential trial witnesses. See Krause Decl. ¶ 8. On March 19, Plaintiff informed Defendant that he regarded the three doctors as fact witnesses, and objected to their proposed depositions as untimely. Id. ¶ 16.

Defendant now moves to compel limited discovery, pursuant to Fed. R. Civ. P. 37(a), or, in the alternative, to extend the fact discovery period, pursuant to Fed. R. Civ. P. 6(b). Specifically, Defendant requests that the Court (1) order an additional thirty-day fact discovery period for the limited purpose of allowing Defendant to seek Krishnan's complete medical records and to subpoena and conduct the depositions of the three doctors; and (2) order Plaintiff to provide a HIPAA release for the subpoena of Krishnan's medical records or to provide a complete set of Krishnan's medical records. Defendant also seeks attorneys' fees incurred in filing its motion pursuant to Fed. R. Civ. P. 37(a)(3)(A) and (a)(5)(A).

II. LEGAL STANDARD

"It is well established that the scope and conduct of discovery are within the sound discretion of the trial court." Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir. 1969). Federal Rule of Civil Procedure 26(a)(1) provides, in part, that a "party must, without awaiting a discovery request, provide to the other parties . . . the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses." Fed. R. Civ. P. 37(a)(3)(A) provides: "If a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions." Fed. R. Civ. P. 37(a)(3)(B) provides, in pertinent part: "A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if . . .

(iii) a party fails to answer an interrogatory submitted under Rule 33; or (iv) a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34." Rule 37 motions to compel disclosure and discovery are controlled by Rule 26(b)(1), which sets forth the standard against which the inquiries are to be measured: Discovery is generally allowed if the information sought is "relevant to the subject matter involved in the action." Fed. R. Civ. P. 26(b)(1).

III. ANALYSIS

A. Motion to Compel

1. Supplemental Disclosure Timeliness

Defendant first argues that it is entitled to depose and receive documents from Plaintiff's three potential medical trial witnesses because his supplemental disclosure of their names on the last day of discovery was untimely. Plaintiff responds that his failure to disclose earlier was harmless because Defendant was aware of his treatment by the three doctors months before the discovery deadline*fn1 Defendant had learned the witnesses' identities and had obtained their documents upon serving subpoenas on various third ...


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