United States District Court, M.D. Pennsylvania
LINDA PETRANCOSTA, et al., Plaintiffs.
JAVID I. MALIK, et al., Defendants.
MEMORANDUM AND ORDER ON MALIK DEPOSITION DISPUTE
(Docs. 41, 42, 52, 58, 66, & 71)
WILLIAM I. ARBUCKLE, Magistrate Judge.
On April 19, 2010, Plaintiff, Linda Petrancosta, was involved in a rollover auto crash. She was transported by ambulance to the Pocono Medical Center. The emergency room physician ordered numerous diagnostic studies, including X-rays and a CT Scan of the cervical spine. Defendant, Javed Malik, M.D. ("Dr. Malik"), reviewed and interpreted the films from these studies. Dr. Malik then issued reports describing his findings.
Dr. Malik concluded that the CT Scans showed degenerative changes of the spine with narrowing of the disc spaces at C5-6, C6-7 and C7-T11 with moderate endplate osteophyte formation and a mucous retention cyst in the left maxillary sinus. He further concluded that the films did not reveal any fracture or subluxation (Doc. 66, p.2). Plaintiff was later treated with physical therapy and suffered a spinal cord injury requiring surgery.
Plaintiff contends that Dr. Malik misread the films. She claims the films revealed a fracture of the C6 vertebrae and a fracture of the C6 facet joint, fractures Dr. Malik should have observed. Plaintiff further argues that when Dr. Malik read the films the fractures were visible, but aligned and stable. If properly diagnosed, Plaintiff claims she would have been placed in a hard collar and the fractures would have healed without the need for surgery and without the complication of spinal cord injury.
B. Procedural History
The malpractice complaint was filed on April 11, 2012 (Doc. 1) against a number of entities and physicians, including Radiologist Javed Malik. Dr. Malik's video deposition was held on April 4, 2013. A letter advising the court of a discovery dispute during the deposition was filed by the Plaintiff on April 13, 2013 (Doc. 41). A responsive letter was filed by Dr. Malik on April 15, 2013 (Doc. 42). The dispute was referred to the undersigned on April 22, 2013 (Doc. 44). A telephonic discovery conference was held on May 9, 2013 (Minute sheet, Doc. 49; Transcript of conference, Doc. 50). A follow up letter brief was filed by Dr. Malik on May 22, 2013 (Doc. 52).
The undersigned filed a Memorandum and Order ostensibly resolving the dispute on September 5, 2013 (Doc 54). A second telephone discovery conference was held on September 9, 2013 (Minute sheet, Doc. 56; Transcript of conference, Doc. 59) resulting in the withdrawal of the September 5, 2013 Memorandum and Order (Doc. 57) and establishment of a new briefing schedule. A document entitled: "Plaintiffs' Supplemental Brief In Support Of Motion to Compel Defendant, Javed Malik, M.D. To Answer Deposition Questions and For Sanctions" was filed by the Plaintiff on September 16, 2013 (Doc. 58). Document 58 was incorrectly docketed as a "Supplemental Motion to Compel Discovery with attached Brief" rather than being docketed as the Supplemental Brief that is was. No formal motion regarding this discovery dispute has been filed. The docket is further complicated by the filing, on September 24, 2013 (Doc. 66), of the same document by the Plaintiff - this time with a copy of the transcript of Dr. Malik's deposition attached as an exhibit (Doc. 66-1). A Reply Brief was filed by Dr. Malik on October 11, 2013 (Doc. 71).
From September 24, 2013 to January 24, 2014 a series of filings (Docs. 67-69 & 73-79) involving requests for extension of time resulted in the establishment of a new set of case management deadlines (Doc. 80).
The discovery dispute arising during the deposition of Dr. Malik remains unresolved (Docs. 41, 42, 52, 58, 66, & 71).
C. The Discovery Dispute
Plaintiff contends that Dr. Malik should be required to answer deposition questions about the procedures he used and the opinions he reached. Plaintiff contends that he should answer those questions while being shown the X-rays and CAT scans of Mrs. Petrancosta from the day of the crash. During the deposition Dr. Malik's lawyer objected to the questions (Doc. 66-1) and instructed his client not to answer multiple times.
In order to better understand the dispute a review of the deposition transcript is needed. The disputed portion of the deposition begins on page 54 of the transcript. Plaintiff's counsel, Ms. Blanco, initially asked Dr. Malik to count the number of vertebrae he could see on the CT scan. (Doc. 66-1, p. 54:3-11). As Dr. Malik proceeded to identify vertebrae, his counsel, Mr. Doherty, stated:
Mr. Doherty: "You know I'm not going to let you go too far in this film. The counting's okay." ( Id., p. 54:24-55:7). Plaintiff's counsel then inquired whether Dr. Malik considered the spaces between vertebrae to be normal, at which point Dr. Malik's counsel objected. ( Id., p. 55:9-12).
MR. DOHERTY: Objection. Instruct him not to answer.
MS. BLANCO: Why?
MR. DOHERTY: Because he's not going to be an expert for himself.... So he's not going to give any opinion on what he sees today based on what it may have been back in April 2010. So -
MS. BLANCO: You're not going to let him read this film?
MR. DOHERTY: That's correct.
MS. BLANCO: All right. Well, then you're going to have to object to every question I ask.
MR. DOHERTY: Okay.... I'll give you a standing - you know -
MS. BLANCO: No. Object every time.
( Id., p. 55:12-56:11).
MS. BLANCO: Okay. On the other side of the spine on the right-hand side, what are those bony things?
MR. DOHERTY: Objection. Instruct him not to answer.
MS. BLANCO: You're not going to let him tell me what they are?
MR. DOHERTY: Nope.
( Id., p. 56:17-24)
Dr. Malik's counsel then instructed his client not to answer the following three questions subsequently asked by Plaintiff's counsel: whether he could see any facet joints on the film; whether he could see the spinal cord on the film; and whether he sees any problems with the C6 vertebra on the film. ( Id., p. 57:4-17). Plaintiff's counsel next asked several questions without objection when the following exchange took place:
MR. DOHERTY: Doctor, I don't want you to make any reference to the film.
MS. BLANCO: No, I'm making - I'm making -
MR. DOHERTY: Please ask a ...