CERTAIN UNDERWRITERS AT LLOYD'S AND THOSE COMPANIES SEVERALLY SUBSCRIBING TO BOEING POLICY NUMBER MARCW150053 v. SOUTHERN PRIDE TRUCKING, INC., 8:16CV116. (2016)
Court: District Court, D. Nebraska
Number: infdco20161110d93
Visitors: 17
Filed: Nov. 09, 2016
Latest Update: Nov. 09, 2016
Summary: ORDER CHERYL R. ZWART , Magistrate Judge . IT IS ORDERED: The court's rulings on Bauer Built's discovery disputes against Thunder Rolls are set forth in the attached. Certain Underwriters at Lloyd's, et al. v. Southern Pride Trucking, Inc., et al. Case No.: 16-cv-00116 (USDC Nebraska) To assist the Court in more efficiently addressing the parties' discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly
Summary: ORDER CHERYL R. ZWART , Magistrate Judge . IT IS ORDERED: The court's rulings on Bauer Built's discovery disputes against Thunder Rolls are set forth in the attached. Certain Underwriters at Lloyd's, et al. v. Southern Pride Trucking, Inc., et al. Case No.: 16-cv-00116 (USDC Nebraska) To assist the Court in more efficiently addressing the parties' discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly ..
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ORDER
CHERYL R. ZWART, Magistrate Judge.
IT IS ORDERED:
The court's rulings on Bauer Built's discovery disputes against Thunder Rolls are set forth in the attached.
Certain Underwriters at Lloyd's, et al. v. Southern Pride Trucking, Inc., et al. Case No.: 16-cv-00116 (USDC Nebraska)
To assist the Court in more efficiently addressing the parties' discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly state each party's position and the last compromise offered when the parties met and conferred. The fully completed chart shall be e-mailed to chambers at zwart@ned.uscourts.gov.
The moving party is: Defendants, Bauer Built, Inc.
The responding party is: Defendant, Thunder Rolls Express, Inc
Moving Party: Defendants, Bauer Built
Court's ruling
#1 Thunder Rolls objects to the production of a HIPAA authorization for the medical records of Joseph Womack
(second set of requests to produce, request "q"). Thunder Rolls shall
promptly produce any
Relevant The medical records of Joseph Womack are relevant and discoverable, inasmuch as Mr. Womack's medical records of any
To physical health is at issue as a cause of the accident in this matter. Bauer Built seeks Mr. Womack's medical care provided
Prove medical records from 2005 to the present. on the date of the
accident, along with
Bauer Federal Rule 34(a) provides that, "A party may serve on any other party a request within the scope of records of any
Built's Rule 26(b) ... to produce and permit the requesting party or its representative to inspect, copy, test, or associated follow up
argument sample the following items in the responding party's possession, custody, or control: care.
(A) any designated documents or electronically stored information." Bauer Built is not
foreclosed from
Mr. Womack is the sole owner and operator of Thunder Rolls, and therefore he is authorized to requesting medical
execute a HIPAA authorization for his own medical records. Defendant's objections based on information if the
relevancy and privacy do not support the refusal to provide the requested authorization. records from the date
of the accident
Thunder Rolls Responding party is under no duty to execute and provide a HIPPA authorization. The medical indicate additional
Argument records of Joseph Womack are not relevant and violate his privacy rights. background medical
There is no evidence that the accident was caused due to Mr. Womack suffering a medical information may be
condition. He has clearly testified as to what he was experiencing, seeing and comprehending in relevant.
the moments leading up the accident and during the accident. He testified about his health during
his day long deposition.
Bauer Built's Mr. Womack's health is directly at issue given that he must provide federal and/or state
compromise certification of his health and medical conditions each time he drives. Thus, each time he
drives he puts his medical condition at issue.
Furthermore, Bauer Built recently learned that Mr. Womack may have had a cardiac event on
the day of the accident. It remains unknown whether this event occurred before or after the
accident, and whether any associated physical symptoms may have contributed to the
occurrence of the accident. Therefore, Mr. Womack's physical health is at issue as a potential
direct cause of, or contributing factor to, the accident in this matter.
Thunder Rolls Mr. Womack's driver qualification including medical documents provided to the DOT
compromise have already been produced.
Mr. Womack did not have a cardiac event on the day of the incident. Counsel has been
advised Mr. Womack was feeling ill many hours after the incident for which physicians
told him he was sick due to stress from the accident and failing to eat all day.
Mr. Womack has testified that he was alert, awake and that no physical condition of any
kind contributed to the incident.
#2 Thunder Rolls objects to the production of "any and all documents provided to or by the U.S Department of
Transportation that refer or relate to Joseph Womack's medical status from 2005 to the present." Thunder Rolls shall
(second set of requests to produce, request "p") confirm that it has
Relevant Documents reflecting the medical status of Joseph Womack are relevant and discoverable, inasmuch produced the DOT
To Prove as Mr. Womack's physical health is at issue as a cause of the accident in this matter. documents, including
Bauer Defendant's relevancy and other objections do not support withholding production of these CDL medical
Built's documents given the relevancy of the request and Thunder Rolls' possession, custody, or control of examination results,
argument such documents. reflecting Womack's
Thunder Rolls The medical records of Joseph Womack are not relevant and violate his privacy rights. qualifications,
Argument There is no evidence that the accident was caused due to Mr. Womack suffering a medical certification,
condition. He has clearly testified as to what he was experiencing, seeing and comprehending in licensing, and/or
the moments leading up the accident and during the accident. His medical records going back to government approval
2005 have no relevance to this action. He testified about his health during his day long deposition. to drive a truck on the
date of the accident.
Furthermore, if the accident had been caused due to a medical condition, Thunder Rolls would
have asserted this as a defense.
Bauer Built's Mr. Womack's health is directly at issue given that he must provide federal and/or state
compromise certification of his health and medical conditions each time he drives. Thus, each time he
drives he puts his medical condition at issue.
Furthermore, Bauer Built recently learned that Mr. Womack may have had a cardiac event on
the day of the accident. It remains unknown whether this event occurred before or after the
accident, and whether any associated physical symptoms may have contributed to the
occurrence of the accident. Therefore, Mr. Womack's physical health is at issue as a potential
direct cause of, or contributing factor to, the accident in this matter.
Records pertaining to a CDL medical examination are discoverable and not within the scope of
the physician-patient privilege. See Jackson v. Wiersema Charter Serv., 2009 U.S. Dist. LEXIS
45597, at *3 (E.D. Mo. June 1, 2009).
Thunder Rolls Mr. Womack's driver qualification including medical documents provided to the DOT
compromise have already been produced.
Mr. Womack did not have a cardiac event on the day of the incident. Counsel has been
advised Mr. Womack was feeling ill many hours after the incident for which physicians
told him he was sick due to stress from the accident and failing to eat all day.
Mr. Womack has testified that he was alert, awake and that no physical condition of any
kind contributed to the incident.
#3 Thunder Rolls should produce Joseph Womack, the owner and sole operator of Thunder Rolls Express, for his
deposition pursuant to Federal Rule 30(b)(6), and to continue his deposition as a fact witness for the purpose of Bauer Built withdraws
examining his medical condition before and after the accident. its request to perform
Relevant Mr. Womack has relevant information related to the location, condition, and transportation of the subject a Rule 30(b)(6)
To engine after the accident occurred, as well as relevant information concerning the packaging and deposition of Joseph
Prove securing of the load on Mr. Womack's trailer prior to shipment from Peebles, Ohio. Womack.
In addition, Bauer Built only recently learned, after Mr. Womack's deposition was completed, that Mr. This request is
Womack may have had a heart attack on the evening of the accident. Therefore, Mr. Womack's physical denied as moot.
health is at issue as a cause of the accident in this matter.
Bauer Federal Rule 30(b)(6) permits a party to direct a deposition notice to a party organization, including a
Built's private corporation like Thunder Rolls Express, Inc. Joseph Womack is the sole owner and operator
argument of Thunder Rolls, and the driver of the load that was involved in the accident at issue. Mr. Womack
has information on behalf of Thunder Rolls that is subject to examination under Rule 30(b)(6). Mr.
Womack's prior deposition as a fact witness does not preclude his subsequent deposition as a Rule
30(b)(6) representative for Thunder Rolls.
Bauer Built also reserves the right to continue Mr. Womack's deposition as a fact witness regarding
his medical condition before and after the accident at issue.
Thunder Rolls There has been no deposition notice for a 30(b)(6) witness for Thunder Rolls at this time so this
Argument request is premature. In addition, Mr. Womack was already deposed for an entire day regarding
the incident, his employment, his company, his training and his background.
Mr. Womack will not be produced for a second deposition as he is the sole owner of Thunder
Rolls and there would be no new topics or information that was not already covered in his
deposition as an individual.
Requiring Mr. Womack to take another day off from work would burden him and all of the parties
with unnecessary costs and would only further delay this case from proceeding. Mr. Womack
provided a full day's worth of testimony.
Finally, Mr. Womack did not suffer a heart attack on the evening. Mr. Womack also testified
extensively regarding the accident sequence and that the accident was not caused by any medical
condition. There is no basis to re-open Mr. Womack's deposition as a fact witness. All counsel
were present at his deposition and could have asked him at that time about any medical
conditions before and after the accident.
Any medical conditions he may have suffered after the accident have no relevance and would only
invade his privacy.
Bauer Built's Bauer Built notes that plaintiffs' already noticed the 30(b)(6) deposition of Thunder Rolls.
compromise However, if that notice is withdrawn, Bauer Built will provide its own notice to Thunder Rolls.
Bauer Built anticipates that the 30(b)(6) deposition of Thunder Rolls would cover, among other
topics, the contracts between Southern Price and Thunder Rolls, Thunder Rolls insurance and
insurance limits, and Thunder Rolls' approval as a transporter for Boeing engines.
Bauer Built withdraws its request concerning the continuation of Mr. Womack's fact witness
deposition at this time.
Thunder Rolls Requiring Mr. Womack to appear for a second deposition would be duplicative and
compromise burdensome on Mr. Womack and all parties.
Mr. Womack is the sole owner of Thunder Rolls. He already testified at his individual
deposition that he had no insurance at the time of the accident and all insurance was
provided by Southern Pride Trucking.
The insurance policies have been provided and this information has been provided in
discovery responses.
Counsel for Defendant, Bauer Built: Troy Lundquist & Collin Woodward
Counsel for Defendant, Thunder Jennifer Tricker, Richard Moreno &
Rolls Express: Steven McEvoy
Source: Leagle
