Opinion
1584CV02372
02-06-2018
Kimberly KIRKWOOD-BOULTER[1] et al.[2] v. Carrie A. COLEMAN, M.D. et al.[3]
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT MASSACHUSETTS GENERAL HOSPITAL’S MOTION FOR PROTECTIVE ORDER
Anthony M. Campo, Justice of the Superior Court
A discovery dispute in this case raises the important question of the difference between expert testimony and a hospital’s obligation to designate officers, directors, or managing agents to testify on its behalf under Massachusetts Rule of Civil Procedure 30(b)(6). The plaintiffs brought this medical malpractice action against Massachusetts General Hospital ("MGH"), its employees who provided the care, and a staffing agency for injuries sustained during Kimberly Kirkwood-Boulter’s labor and delivery of her son, Aiden Boulter. The plaintiffs noticed a Rule 30(b)(6) deposition for MGH to testify about its internal policies ("Topic 7"):
Topic 7: Whether, how and why the rules, regulations, customs, policies, practices, guidelines, and procedures referenced in paragraphs 1-5 were or were not followed with respect to the labor of Kimberly Boulter and the delivery of Aiden Boulter.
MGH filed this response:
Response No. 7: Objection: The defendant objects to this topic as it seeks information that is overly broad in scope, has no reasonable time limitation, is unduly burdensome, seeks information not relevant to the case at bar, and is not reasonably calculated to lead to the discovery of admissible evidence. The burden is on the plaintiffs to affirmatively establish negligence, not on the defendant to affirmatively establish that it, and its agents and employees, were not negligent. The defendant further objects to this topic to the extent that it improperly seeks to obtain expert testimony from the defendant.
The plaintiffs thereafter moved to compel several discovery disputes. The court granted the plaintiffs’ motion but permitted MGH to submit a brief regarding Topic 7. MGH now moves for a protective order under Mass.R.Civ.P. 26(c) to preclude any discovery related to Topic 7. After a hearing, and upon review and consideration, MGH’s motion is DENIED.
DISCUSSION
At issue is whether MGH must comply with Mass.R.Civ.P. 30(b)(6). Case law pertaining to hospital designees under Mass.R.Civ.P. 30(b)(6) is sparse. Therefore, it is instructive to refer to the Federal Rules of Civil Procedure. Reporters’ Notes to Mass.R.Civ.P. 1 (1973); see Strom v. American Honda Motor Co., 423 Mass. 330, 335 (1996) (" ‘Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts, ’ Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987), ‘absent compelling reasons to the contrary or significant differences in content.’ Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 180 (1975)"). The Federal rules were amended in 1970 to include Rule 30(b)(6) as a method to curb organizations from using their size and complexity to their advantage by "bandying" their opponents with a series of organizational employees who are "deposed in turn but each disclaims knowledge of facts that are clearly known to the persons in the organization and thereby to it." Committee’s Note to Fed.R.Civ.P. 30(b)(6) (1970).
Mass.R.Civ.P. 30(b)(6) provides, in relevant part: "A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify ... The persons so designated shall testify as to matters known or reasonably available to the organization."
Fed.R.Civ.P. 30(b)(6) provides, in relevant part: "In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify ... The persons designated must testify about information known or reasonably available to the organization."
MGH contends that complying with Mass.R.Civ.P. 30(b)(6) is tantamount to providing expert testimony as to whether its employees were negligent. This misinterprets the rule’s purpose and the plaintiffs’ request. Rule 30(b)(6) requires a party to offer testimony about protocols that were in place and potential deviations from them. Therefore, when an organization designates an individual to testify, that designee is testifying on the organization’s behalf. See Gleason v. Source Perrier, S.A., 28 Mass.App.Ct. 561, 569 (1990). The deposition would not, as MGH contends, compel a doctor to offer expert testimony about whether MGH’s employees were negligent. Rather, the deposition would concern MGH’s internal practices and protocols when the plaintiffs received treatment and whether those internal practices and protocols were followed, or not followed as the case may be. See Wilson v. Lakner, 228 F.R.D. 524, 530 (D.Md. 2005) ("Rule 30(b)(6) means what it says ... [entities] must produce live witnesses who know or can reasonably find out what happened in given circumstances").
Although MGH does not raise any arguments relating to peer review privilege, the court notes that it does not waive MGH’s obligation to designate a witness or witnesses that must be prepared to respond to plaintiffs’ 30(b)(6) notice. See Wilson, 228 F.R.D. at 529.
MGH’s argument that it does not employ anyone who can offer testimony regarding Topic 7 fares no better. It is MGH’s burden to identify a knowledgeable witness and to take reasonable steps to educate that designee. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 17 (1st Cir. 2000). MGH asserts that designating someone to testify to Topic 7 is difficult. That may be true, but without more, it is also insufficient to overcome MGH’s obligation to comply with Rule 30(b)(6). See Gleason, 28 Mass.App.Ct. at 568, quoting Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C. Cir. 1986) ("The law concerning who may properly be designated as a managing agent is sketchy. Largely because of the vast variety of factual circumstances to which the concept must be applied, the standard, like so many others in the law, remains a functional one to be determined largely on a case-by-case basis"). MGH’s designee will have the burden to testify on matters known to MGH and matters reasonably available to it. Baker v. St. Paul Travelers Ins. Co., 670 F.3d 119, 124 (1st Cir. 2012), citing Fed.R.Civ.P. 30(b)(6); see Wilson, 228 F.R.D. at 527 ("There can be no question that the rule imposes a duty to prepare the designee [ ] ... [that] goes beyond matters personally known to the designee or to matters in which that designee was personally involved") (citations and internal quotations omitted). This is why the notice of deposition must state with reasonable particularity the matters for the examination. Pina v. Children’s Place, 740 F.3d 785, 791 n.6 (1st Cir. 2014); Mass.R.Civ.P. 30(b)(6).
MGH is a medical care provider with an international reputation. Yet it argues that it does not employ anyone who can testify to the policies set forth in Topic 7. The court finds this assertion difficult to accept. MGH’s website touts its uniform standard of care. Presumably MGH’s website assertion to the community at large of "one standard of care" and "uniform treatment approach" can be described by a corporate designee, both regarding its own standard of care, and whether that standard was followed in the circumstances that give rise this litigation. Even assuming arguendo that MGH does not employ someone who can testify to Topic 7 would not relieve MGH of its obligation to comply with Rule 30(b)(6); MGH must prepare its designee to testify. Foster-Miller, Inc., 210 F.3d at 17.
"Unlike many other hospitals, our program does not include private practice physicians. This benefits our patients because ... our clinicians adhere to a uniform treatment approach, resulting in continuity of care[.]" MGH, Obstetrics Program: Overview, http://www.massgeneral.org/obgyn/services/treatmentprograms.aspx?id.=1379 (last visited Feb. 5, 2018); "The Department of Obstetric & Gynecology has earned its reputation as an international leader in women’s health by ... [p]roviding one standard of care to all women regardless of financial circumstances." MGH, About the Department of Obstetrics & Gynecology, http://www.massgeneral.org/obgyn/about/ (last visited Feb. 5, 2018).
MGH has not demonstrated that it is entitled to preferential treatment under Mass.R.Civ.P. 30(b)(6). This is an obligation that is required of all corporate defendants. Accordingly, it must comply with the rule and designate officers, directors, or managing agents to testify on its behalf regarding Topic 7.
ORDER
For the foregoing reasons, it is hereby ORDERED that Massachusetts General Health’s motion for a protective order under Mass.R.Civ.P. 26(c) to preclude any discovery related to Topic 7 is DENIED. The plaintiffs’ motion for sanctions is also DENIED.