S. THOMAS ANDERSON, District Judge.
Before the Court is Plaintiff Stanley Williams's Motion for Partial Summary Judgment (D.E. # 31) filed on January 4, 2012. Defendants Goodyear Tire & Rubber Co. and Wingfoot Commercial Tire Systmes, Inc. have filed a response in opposition to Plaintiff's Motion and a request for discovery under Rule 56(d) of the Federal Rules of Civil Procedure. Plaintiff has filed a reply brief. For the reasons set forth below, Plaintiff's Motion is
This is a premises liability action, arising from Plaintiff's slip and fall while he was delivering mail to Defendants at their business premises on January 4, 2010 . Plaintiff has filed the instant Motion seeking summary judgment on three issues: (1) whether Plaintiff's slip and fall was the cause of his sacral fracture, disc protrusion, and coccydynia; (2) whether Plaintiff's medical expenses incurred as a result of the slip and fall were reasonable and necessary; and (3) whether Plaintiff's injuries are inoperable and more likely than not will cause Plaintiff to suffer from pain and discomfort for the rest of his life. Plaintiff's Motion is supported by his own deposition testimony as well as the affidavit of his treating physician Dr. Mohammed Assaf. In particular, Plaintiff argues that "the sworn testimony of Dr. Mohammed Assaf establishes there is no genuine issue of material fact" as to the three issues presented. Therefore, Plaintiff asserts that the Court should grant him judgment as a matter of law on the issues of causation, the reasonableness and necessity of the medical expenses, and future pain.
In their response to Plaintiff's Motion for Partial Summary Judgment, Defendants have sought leave to conduct the deposition of Dr. Assaf pursuant to Rule 56(d). According to Defendants, on December 6, 2011, Plaintiff noticed the deposition of Dr. Assaf for December 15, 2011, only to subsequently cancel the deposition on December 14. Defendants assert that they had intended to examine Dr. Assaf at trial and so did not re-schedule the deposition before the expiration of the discovery deadline in this case. Defendants ask the Court to defer consideration of the Motion for Partial Summary Judgment until Defendants can depose Dr. Assaf. Defendants argue in the alternative that the Court should deny Plaintiff's Motion on the merits. Defendants contend that the two-page affidavit of Dr. Assaf is insufficient to establish the issues raised as a matter of law. Dr. Assaf will still need to be called as a trial witness, and a ruling on the Motion will only complicate Dr. Assaf's trial testimony. Therefore, Defendants seek an opportunity to depose Dr. Assaf before they respond to Plaintiff's Motion, or in the alternative, the denial of the Motion on the merits.
In his reply brief, Plaintiff argues that Defendants have not shown why they should be granted additional time for discovery. Plaintiff identified Dr. Assaf as his treating physician in his initial disclosures on April 4, 2011, as well as in his Rule 26 expert disclosures on September 28, 2011. According to Plaintiff, Defendants have had copies of Plaintiff's medical records since March 15, 2011. With respect to the deposition, Plaintiff asserts that counsel proposed to counsel for Defendants that the video of Dr. Assaf's December 15, 2011 deposition be introduced at trial. After counsel for Plaintiff made three attempts to obtain Defendants' position on the matter, counsel for Defendants finally notified counsel for Plaintiff at 4:30 p.m. on December 14, the afternoon before the deposition, that Defendants did not consent to use the video of the deposition at trial. Rather than call Dr. Assaf twice, for the deposition and as a trial witness, Plaintiff elected to cancel the deposition. Plaintiff argues that until Defendants filed their request to depose Dr. Assaf pursuant to Rule 56(d), Defendants had never identified Dr. Assaf as a trial witness or stated their intention to call him at trial. Plaintiff asks the Court to deny Defendants' request to depose Dr. Assaf and grant the Motion for Partial Summary Judgment on its merits.
Federal Rule of Civil Procedure 56(a) provides that a party is entitled to summary judgment if the moving part "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."
A non-moving party must receive "a full opportunity to conduct discovery" in order to respond to a motion for summary judgment.
The Court holds that Defendants have met their burden to show that additional discovery is necessary to respond to Plaintiff's Motion for Partial Summary Judgment on issues related to Plaintiff's injuries and medical treatment. As a threshold matter, Defendants have complied with the technical requirements of Rule 56(d) by filing an affidavit and a motion setting forth the specific facts Defendants need to respond. Plaintiff's Motion for Partial Summary Judgment is based entirely on the eight-paragraph, two-page affidavit of Dr. Assaf, whose deposition did not occur before the expiration of the expert deposition deadline. Defendants have shown that they cannot present facts to justify their opposition to Plaintiff's Motion until they have deposed Dr. Assaf. In the Rule 56(d) affidavit, counsel for Defendants indicates that discovery is needed to test Dr. Assaf's claims, for example, that Plaintiff's medical expenses were reasonable and necessary and that Plaintiff's injuries were caused by his slip and fall. The Court notes that the affidavit of Dr. Assaf does not include a copy of the medical billing or expenses. As such, the Court finds that Defendants' request for additional discovery is targeted and narrow. Therefore, Defendants have satisfied the requirement that they demonstrate their need for further discovery with particularity and by affidavit or motion.
Having held that Defendants have met the requirements to invoke Rule 56(d), the Court now must determine whether their request should be granted based the following factors: (1) when the party seeking discovery learned of the issue that is the subject of the desired discovery; (2) whether the desired discovery would change the ruling; (3) how long the discovery period lasted; (4) whether the party seeking discovery was dilatory in its discovery efforts; and (5) whether the non-moving party was responsive to discovery requests.
Second, the Court finds that Defendants were not dilatory in their effort to depose Dr. Assaf. Rather, it is undisputed that Dr. Assaf's deposition was scheduled but did not occur largely because of a disagreement between the parties. Plaintiff was the party to notice the deposition of Dr. Assaf, as Dr. Assaf is Plaintiff's treating physician. The deposition was set to proceed on December 15, 2011, until the parties were unable to agree on whether the video-recording of the testimony could be used as an evidentiary deposition as well as a trial deposition. Plaintiff wanted to present the video as evidence at trial; Defendants preferred to call Dr. Assaf to testify live. Once the parties failed to reach an accord, Plaintiff cancelled the deposition on the day before the deposition was to occur, December 14, 2011. The deadline for expert depositions then expired on December 28, 2011, and Plaintiff filed his Motion for Partial Summary Judgment on January 4, 2012. It appears to the Court that but for the dispute about using the video-recording of the testimony at trial, the deposition would have taken place on December 15. Under these facts, should the Court deny Defendants the chance to depose Dr. Assaf now and grant Plaintiff's dispositive motion, the Court would effectively penalize Defendants for not agreeing to use the video of the deposition at trial. Such a default is not only prejudicial but needlessly punitive. The Court finds that under these circumstances, it cannot be said that Defendants were dilatory in their effort to question Dr. Assaf. Third, the deposition of Dr. Assaf could change the Court's ruling on the issues raised in the Dr. Assaf's affidavit. In order to establish his claim for negligence, Plaintiff ultimately bears the burden to prove the elements of causation and damages.
Additionally, the Court would also stress that a jury trial was set to commence in this case on April 30, 2012. The Court continued the trial until it could rule on the parties' pending dispositive motions. As a result, an opportunity for additional discovery will not delay the trial in this matter or otherwise prejudice Plaintiff. For all of these reasons, the Court finds that it is appropriate to use the Rule 56(d) "safety valve" to head off a premature swing of the "summary judgment axe" as to the issues presented in Plaintiff's Motion. Therefore, Defendant's Rule 56(d) request is
As a final matter, Rule 56(d) states that when a non-moving party is granted the opportunity for discovery before it must respond to a motion for summary judgment, "the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any appropriate order."