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Gorton v. Todd

January 14, 2010

CHARLES ROBERT GORTON, PLAINTIFF,
v.
TODD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion to compel filed December 15, 2009. For the following reasons, plaintiff's motion to compel is granted in part and denied in part.

Defendant Chin

Interrogatory no. 8 asks, Suppose a person begins to exhibit the following symptoms: (3 pitting edema bilaterally in the feet and legs; 3 pitting edema up to the abdomen; 2 pitting edema in the left arm and hand; shortness of breath, orthopnea and weakness; [lab results]--albumin (serum)--.2.0 UA [urinalysis] --3 proteiunuria; microalbumin--2,311; microalbumin to creatinine ration--3,040.79). Considering these symptoms and in your professional opinion, how soon (days/weeks) should that person be referred to a Nephrologist for consult?

In essence, plaintiff is attempting to use defendant Chin as his own expert witness.

The Federal Rules of Civil Procedure distinguish between those persons who are designated, testifying experts and those persons with expertise, not designated as testifying experts, who have performed some act in the normal course of their job duties, or who have some training in the issue at bar, pertinent to the facts of the litigation based on their expertise. The former persons must be designated as Rule 26 experts and must prepare a report setting forth their opinions and the bases therefore. See Torres v. City of Los Angeles, 548 F.3d 1197, 1212-1213 (9th Cir. 2008). Other non-designated persons with expertise who performed an act based on that expertise that has significance to the litigation may be asked what they did and why they did it, and what they based the action upon, but the inquiry is limited to those past acts. Moran v.Pittsburgh-Des Moines Steel Co., 6 F.R.D. 594 (W.D. Pa. 1947). Finally, even retained experts, much less employees of the entity defendant, are immune from Rule 26 expert inquiry if they have not been designated by a party to testify as an expert. Mantolete v. Bolger, 96 F.R.D. 179, 181-182 (D. Ariz. 1982).

Take for example, the non-retained treating physician. This person may be asked about diagnoses of record and treatment performed; he may even be asked about a predictive opinion recorded in the records; but he may not be asked to opine on expert matters in an abstract or hypothetical sense. If this were not the rule, any party to a litigation could hijack in-house or third party experts for free, and compel them to give the retained Rule 26 experts' testimony they would otherwise have to pay for. In the situation of a party's employee, a deposing counsel's roaming about the entity seeking opinions for use in the litigation makes a bad situation even worse. There may well be attorney-client or work product problems that are encountered in addition to the unfairness. And, the fact that a witness has been improperly designated pursuant to Rule 30(b)(6) to answer expert type questions does not make the questions any more appropriate.

In the instant case, defendant Chin has not been designated as an expert. Pursuant to the discussion above, plaintiff is not permitted to ask defendant Chin hypothetical expert questions. Plaintiff is permitted to ask defendant Chin questions regarding his treatment of plaintiff. Because interrogatory no. 8 does not concern defendant Chin's treatment of plaintiff, the motion to compel as to this interrogatory is denied.

Interrogatory no. 14 asks, "In your professional opinion, when examining a patient, what key factors (including blood and urinalysis tests) are used to determine the diagnosis of nephrotic syndrome?" This interrogatory is an improper hypothetical. Because it does not seek information regarding defendant Chin's treatment of plaintiff, the motion to compel as to interrogatory no. 14 is denied.

Interrogatory no. 19 asks, "In reference to the labs you ordered for your patient Charles R. Gorton, M/R # 1882127 and were drawn by U.C. Davis on 7/27/07: when those lab-results were completed, what date did U.C. Davis deliver the lab-test results to your office?" Defendant Chin responded, "I do not believe that the lab results were ever 'delivered' to my office." In response, plaintiff stated that even if the lab results were not "delivered" to defendant Chin, he wanted to know when they were made available for his review. Defendant responded that the interrogatory specifically asked when the results were "delivered," not "made available."

Defendant's objection that the lab results were not "delivered," but were apparently "made available," is semantic game playing. Within fourteen days of the date of this order, defendant shall inform plaintiff when these lab results were made available to him.

Interrogatory no. 24 asks,

During your employment at U.C. Davis Medical Center, what is the average waiting time [in days] that a first time patient, who is suffering from nephrotic range symptoms must wait before receiving a follow up appointment, to review newly drawn lab-results with their nephrologist."

Defendant objected that this interrogatory was overbroad and an incomplete hypothetical. Defendant further stated that rapidity of appointment is a function, among other things, of acuity. In rebuttal to plaintiff's objection, defendant argued that responding to this interrogatory would require him to review all of the applicable previous patients that he and all other nephrologists cared for during his employment at UC Davis Medical Center, which would be unduly burdensome. Plaintiff ...


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