CASE 0:11-cv-02732-SRN-JSM Document 38 Filed 10/11/12 Page 1 of 6 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Leonard Dobosenski, Case No. 11-cv-2732 (SRN/JSM) Plaintiff, v. CRST Van Expedited, Inc., ORDER AFFIRMING MAGISTRATE JUDGE ORDER DATED JUNE 13, 2012 Defendant. Robert N. Edwards, Robert N. Edwards, Chartered, 2150 3rd Avenue, Suite 300, Anoka, Minnesota 55303-2200 and Bruce W. Larson, Larson Law Office, 746 Mill Street, Wayzata, MN 55391, for Plaintiff. Patrick D. Reilly and Jessica A. Megorden, Erstad & Riemer, PA, 8009-34th Avenue South, Suite 200, Minneapolis, Minnesota 55425-4409, for Defendant. SUSAN RICHARD NELSON, United States District Judge I. INTRODUCTION This case is before the Court on Plaintiff Leonard Dobosenski s Motion to Compel discovery responses from Defendant CRST Van Expedited, Inc. (Doc. No. 19.) In an Order dated June 13, 2012, United States Magistrate Judge Janie S. Mayeron denied Plaintiff s motion. (Doc. No. 25.) Plaintiff now objects to the Order. (Doc. No. 28.) After reviewing the Order for clear error, 28 U.S.C. 636(b)(1)(A); accord D. Minn. L.R. 72.2(a), the Court affirms the Order for the reasons set forth below. II. BACKGROUND On December 15, 2009, Plaintiff was asleep in the upper bunk of his tractor-trailer 1

CASE 0:11-cv-02732-SRN-JSM Document 38 Filed 10/11/12 Page 2 of 6 rig parked in a rest stop near Flagstaff, Arizona. (Compl.. Doc. No. 1-1, II; Pl. s Mem. of Law in Supp. of Mot. to Compel, Doc. No. 16 ( Pl. s Initial Mem. ), at p. 1.) Defendant s employee was attempting to park her tractor-trailer rig in the space next to Plaintiff s vehicle, but instead crashed into it. (Compl., Doc. No. 1-1, III; Pl. s Initial Mem. at p. 1.) The crash caused Plaintiff to fall 6-8 feet out of his bunk onto the floor of his tractor and sustain injuries to his neck and left shoulder. (Compl., Doc. No. 1-1, IV; Pl. s Initial Mem. at p. 1.) On September 16, 2011, Plaintiff sued in Minnesota state court alleging that the Defendant was negligent. (Compl., Doc. No. 1-1.) Defendant removed the case to this Court on September 23, 2011 based on diversity jurisdiction. (Doc. No. 1.) Defendant has admitted liability. (Def. s Mem. of Law in Opp n to Pl. s Mot. to Compel, Doc. No. 21, at p. 1.) Defendant retained Dr. Paul Wicklund, an orthopedic surgeon, to serve as an expert witness to evaluate Plaintiff s alleged damages. (Pl. s Initial Mem. at pp. 2 3.) Plaintiff sought discovery from Defendant regarding Dr. Wicklund s background and relationship with Defendant s counsel, which Defendant refused to answer. (Doc. No. 19.) On May 30, 2012, Plaintiff filed a Motion to Compel seeking an order requiring Defendant or its counsel to provide the names and produce all documents for any injured person examined by Dr. Wicklund, the identity of the injured person s attorney, and the dates of the examinations for any examination where Dr. Wicklund was retained by Defendant or Defendant s counsel in the past seven years. (Doc. No. 19; Pl. s Objections to Magistrate Judge s Findings, Doc. No. 28 ( Pl. s Objections ), at pp. 1 2.) The Magistrate Judge held a hearing on Plaintiff s motion on June 13, 2012. (Doc. No. 24.) The Magistrate Judge denied Plaintiff s motion from the bench. (Doc. No. 25.) In 2

CASE 0:11-cv-02732-SRN-JSM Document 38 Filed 10/11/12 Page 3 of 6 an Order following the hearing, the Magistrate Judge stated that Defendant was required to provide the following information to Plaintiff: Pursuant to Rule 26(a)(2)(B)(v) of the Federal Rules of Civil Procedure, defendant shall provide to plaintiff... the following information for all cases in the last four years in which Dr. Paul Wicklund testified as an expert at trial or deposition: (1) the caption of the case number including the case name, case file number (except the claimant s social security number), the court where the case was filed; (2) whether the testimony was provided by Dr. Wicklund at trial, at a deposition, or both trial and deposition; and (3) whether the case was a worker s compensation case or other civil case. (Id.) On June 20, 2012, Plaintiff timely filed objections to the Magistrate Judge s Order, to which Defendant responded on July 3, 2012. (Doc. Nos. 28, 31.) III. DISCUSSION A. Standard of Review The standard of review for an appeal of a magistrate judge s order on a nondispositive issue is extremely deferential. Reko v. Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999). The Court must affirm the order unless it is clearly erroneous or contrary to law. 28 U.S.C. 636(b)(1)(A); accord D. Minn. LR 72.2(a). A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). If the magistrate judge s account of the evidence is plausible in light of the record viewed in its entirety, the reviewing court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. Bessemer City, 470 U.S. 564, 573 74 (1985). 3

CASE 0:11-cv-02732-SRN-JSM Document 38 Filed 10/11/12 Page 4 of 6 B. Objections Plaintiff objects to the Magistrate Judge s Order, arguing that it was clearly erroneous in denying the motion to compel. The Federal Rules authorize discovery regarding any nonprivileged matter that is relevant to any party s claim or defense... if [it] appears reasonably calculated to lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). Rule 26 is to be construed broadly and encompasses any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. In re Milk Prod. Antitrust Litig., 84 F.Supp.2d 1016, 1027 (D. Minn. 1997) (citations and internal quotation omitted). To ensure Rule 26(b) is not misapplied so as to allow fishing expeditions in discovery, a party must make a threshold showing of relevance. Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992). The threshold requirement of discoverability is met if the information sought is relevant to the subject matter involved in the pending action. Shelton v. Am. Motors, 805 F.2d 1323, 1326 (8th Cir. 1986). A court must limit discovery if it determines that the discovery sought can be obtained from some other source that is more convenient [or] less burdensome. Fed. R. Civ. P. 26(b)(2)(C)(i). In Stevenson v. Auto-Owners Ins. Co., this Court addressed the discoverability of information to demonstrate bias of doctors performing Independent Medical Examinations ( IMEs ). No. 06-cv-03200, slip. op. at 4 (D. Minn. June 9, 2008). The plaintiff in that case served subpoenas on various medical and legal firms seeking production of documents concerning payment to [the doctor] for expert testimony... [and] to specifically include each case name and number, the court in which each case is/was filed, and the amount of 4

CASE 0:11-cv-02732-SRN-JSM Document 38 Filed 10/11/12 Page 5 of 6 compensation received. Id. at 2. The defendant moved to quash the subpoenas. Id. The Court granted the motion to quash and stated that to demonstrate bias in the context of IMEs, it is sufficient for a doctor to be asked to give an approximate estimate for IMEs and total patients seen in a year. Id. at 7 (citation and internal quotations omitted). The Court also noted that discovery might be appropriate on the approximate amount of professional work a doctor devotes to litigation-related services, the income a doctor receives from litigation-related services, and the amount of work a doctor devotes to specific types of litigation-related services. Id. at 8 9 (citation and internal quotations omitted). The Magistrate Judge did not clearly err in denying Plaintiff s request to obtain information about Dr. Wicklund s prior expert reports for the past seven years where Dr. Wicklund was retained by defense counsel. Dr. Wicklund s prior expert reports are not relevant to determine the damages caused by the December 15, 2009 accident. Furthermore, there are less intrusive methods of discovery for Plaintiff to challenge Dr. Wicklund s credibility than obtaining medical records of non-parties, which likely contain personal and private information. The Magistrate Judge properly ordered the Defendant to provide, for all cases in the last four years in which Dr. Wicklund testified as an expert at trial or deposition, the case name, number, and court in which the case was filed, whether the testimony was at a deposition or at trial, and whether the case was a worker s compensation case or another civil matter. This information is sufficient for the Plaintiff to determine any credibility issues for Dr. Wicklund. Accordingly, in light of the deference accorded to orders of Magistrate Judges on non-dispositive issues, this Court finds that the Magistrate Judge s Order denying Plaintiff s Motion to Compel response to discovery was 5

CASE 0:11-cv-02732-SRN-JSM Document 38 Filed 10/11/12 Page 6 of 6 not clearly erroneous or contrary to law. THEREFORE, IT IS HEREBY ORDERED THAT: 1. Plaintiff s Objections (Doc. No. 28) to the Magistrate Judge s June 13, 2012, Order (Doc. No. 25) are OVERRULED; 2. The Magistrate Judge s June 13, 2012 Order (Doc. No. 25) is AFFIRMED; 3. Plaintiff s Motion to Compel Discovery Responses from Defendant (Doc. No. 19) is DENIED. Dated: October 11, 2012 s/susan Richard Nelson SUSAN RICHARD NELSON United States District Judge 6

STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT Case Type: Personal Injury Christiana Ocholi, vs. Mustafa Said, Ali M. Farah, and Abdiwahab Farah, Plaintiff, Court File No. 27-CV-10-25108 Judge William R. Howard ORDER DENYING PLAINTIFF S MOTION TO COMPEL Defendants. The above matter came on for hearing before the Honorable William R. Howard, Judge of the District Court, on October 7, 2011, pursuant to Plaintiff s Motion to Compel. Kristen R. Rice, Esq., Katz, Manka, Teplinsky, Graves & Sobol, Ltd., appeared on behalf of Plaintiff. Janine M. Loetscher, Esq., Bassford Remele, appeared on behalf of Defendants. Based upon the evidence presented, the parties motion papers, the arguments of counsel, all of the files, records, and proceedings herein, the Court makes the following: ORDER 1. Plaintiff s Motion to Compel is DENIED; 2. The following Memorandum is incorporated by reference. BY THE COURT: Dated: The Honorable William R. Howard Judge of the District Court

MEMORANDUM Plaintiff initiated this personal injury lawsuit after Plaintiff was allegedly injured during a car accident with Defendants on October 12, 2007. On June 1, 2011, Defendant s medical expert, orthopedic surgeon Dr. Gary Wyard, performed an Independent Medical Examination ( IME ) to evaluate Plaintiff s alleged injuries. Dr. Wyard issued two reports detailing his expert opinions, on June 8, 2011 and July 9, 2011 respectively. After Dr. Wyard issued his reports and two months after the discovery deadline Plaintiff brought the current motion to compel, seeking to obtain from Defendants extensive information regarding Dr. Wyard s practice and financial information. Plaintiff s discovery requests included the following: 1) the number of occasions in the past five years Taylor & Lance retained Dr. Wyard for independent or adverse medical examinations; 2) the number of occasions in the past five years American Family has retained Dr. Wyard for independent or adverse medical examinations; 3) the number of occasions in the last five years Dr. Wyard has performed independent or adverse medical examinations for any defendant, insurance company, or defense attorney, including but not limited to Gregory L. Wright; 4) the full case title, names, addresses and phone numbers of legal counsel involved; venue, and court file number and date of all other litigated cases in which Dr. Wyard has given testimony; 5) the amount of the total gross billings Dr. Wyard has charged to insurers, insurance defense attorneys and defendants in the last five years to perform independent or adverse medical examinations and to testify at depositions or trial; and 6) the total amount of gross income earned by Dr. Wyard from independent or adverse medical examinations, depositions, and testimony regarding concerning those examinations for the past five years. Plaintiff contends this information is necessary to establish Dr. Wyard s bias. Essentially, plaintiff argues that the relationship between Dr. Wyard and defendants is inherently 2

insidious and that his report, which contradicts the findings of Plaintiff s expert, can only be the product of bias in favor of the defense bar. Defendants provided Plaintiff with some relevant responsive information to these interrogatories, including the 1) amount paid to Dr. Wyard for performing the IME of Plaintiff and preparing the reports related to the IME, 2) the amount of Dr. Wyard s anticipated charges for trial testimony with respect to this lawsuit, 3) the number of IMEs Dr. Wyard has performed for American Family in the past five years, 4) the average number of IMEs he performs per week, 6) the number of patient visits and surgery he performs per week, and 7) a list of cases in which Dr. Wyard was identified as an expert medical witness for the last four years. Despite having this information, Plaintiff proceeded with her motion to compel additional information regarding Dr. Wyard, including financial information. Defendants oppose Plaintiff s motion and her attempts to obtain further information, on the grounds that (1) the information sought was not the appropriate subject of discovery requests and could be obtained, if at all, only through a subpoena, and (2) even if the information was somehow otherwise discoverable, without showing any evidence of bias on the part of Dr. Wyard, Plaintiff was not entitled to the discovery sought, either under the Minnesota Rules of Civil Procedure or otherwise. This Court recognizes the crucial role that expert medical testimony plays in personal injury lawsuits such as this one. However, a medical expert s willingness to testify may be chilled by extensive inquiry into the expert s personal affairs, financial or otherwise. Accordingly, courts must strike a balance between relevant information sought and the prejudicial effect of extensive requests for an expert s personal information. 3

This Court finds the opinion of Magistrate Judge Raymond Erickson s opinion in Stevenson v. Auto-Owners, No. 06-CV-03200-RLE (Minute Order, D. Minn. June 9, 2008) to be instructive and directly on point. In that case, Magistrate Judge Erickson granted the defendant s motion to quash a subpoena duces tecem seeking to obtain extensive personal financial information from defendant s medical expert, including seeking financial information regarding payment to the expert for testimony given over a four-year period. In quashing the subpoena, he noted that the courts are unalterably dependent upon the provision of medical opinion evidence, and that unless the medical profession continues to participate in the legal process through independent medical exams, for example, the entire system of jurisprudence will suffer. Id. at 5. After considering the likelihood that discovery of financial information would effectively chill expert testimony and confuse and prejudice the jury, in light of any alleged need for such information, Magistrate Judge Erickson concluded the proper balance between the need for such information and its potential to cause prejudice or confusion is as follows: It is sufficient for a doctor to be asked to give an approximate estimate for IMEs and total patients seen in a year; that the figures need not be exact (an honest estimate is sufficient); that the doctor should not be required to disclose the amount of money earned from expert witness work or to disclose his or her total income; and that income tax returns and Form 1099s need not be produced given their limited probative value. Id. at 7 8 (citing Elkins v. Syken, 672 So. 2d 517, 520-21 (Fla. 1996). Noting that the plaintiff failed to show any bias, Magistrate Judge Erickson concluded that discovery of further financial information from the expert was not warranted. Stevenson, No. 06-CV-03200-RLE, at 9 10. The same rationale holds true here. Plaintiff has provided no evidence of any bias on the part of Dr. Wyard. Indeed, the evidence submitted notably, the extensive number of patient visits and patient surgeries Dr. Wyard performs per week in comparison to the limited amount of IMEs directly contradicts a finding of bias. Accordingly, Plaintiff is not entitled to further 4

discovery of the financial or other personal information of Dr. Wyard beyond the extensive information Defendants have already provided. Perhaps in a different case where bias can clearly be shown, some further discovery on this point may be warranted. However, Plaintiff has not made the requisite showing of bias here, and her motion to compel is denied in its entirety. 5