Opinion
CV-21-00167-PHX-ROS
10-13-2022
Honor Duvall, et al., Plaintiffs, v. Arizona Department of Child Safety, et al., Defendants.
ORDER
Honorable Roslyn O Silver, Senior United States District Judge.
Before the court are numerous allegations of discovery disputes between the Plaintiffs and Defendant Phoenix Children's Hospital Inc, and Defendants Dr. William S. Wood, Dr. Kathryn Coffman, Haley Dietzman, Zachar[y] Dion, Carey Lewis, and their Respective Spouses (“PCH Defendants”) (Docs. 104, 106, 108, and 109), a motion for sanctions (Docs. 114 and 130), and a motion for protective order (Doc. 137). On September 29, 2022 this Court ordered expedited briefing regarding what appeared to be the core issue underlying all of these various (and, as explained fully in the September 29, 2022 order, often improper) filings. Namely, the parties were ordered to explain why or why not the Plaintiffs' failure to disclose an expert witness renders the four claims against the PCH Defendants futile, such that they do not need to produce discovery. (Doc. 138 at 2).
Upon review of the briefing, and for the foregoing reasons, the Court finds in favor of Plaintiffs.
BACKGROUND
The precise chronology associated with this discovery dispute is a matter of contention among the parties. This section offers a background of the undisputed facts.
At some point prior to May 23, 2022, Plaintiffs served requests for production of documents (“RFPs”) and non-uniform interrogatories on several PCH Defendants. (Docs. 104-1, 104-2, 104-3, 104-4). In the RFPs, Plaintiffs requested a variety of records, including internal PCH correspondences, contracts between PCH and the individual PCH Defendants, a “roster” of PCH employees, and an accounting of money received from the government, including Arizona and the Arizona Department of Child Safety. See, e.g., (Doc. 104-1). The non-uniform interrogatory served on Defendant Kathryn Coffman asked Coffman to identify persons she spoke to, documents she reviewed, tests she ordered, and information regarding her compensation and the number of patients she saw at PCH. (Doc. 104-4).
On May 23, the PCH Defendants objected to many of these requests, in relevant part, on the ground that they were “overly broad, burdensome, irrelevant, . . . not reasonably calculated to lead to admissible evidence,” and “ambiguous.” See, e.g., (Doc. 104-1 at 8). And, most significantly, the PCH Defendants objected to requests for financial information with the following assertion: “Plaintiff's request also appears to be directed to allegations of punitive damages. Plaintiffs have yet to establish a basis for alleging punitive damages, and until such time are not permitted to obtain financial data to support such a claim.” (Doc. 104-1 at 5). The PCH Defendants claim to derive this principle from Arpaio v. Figueroa, 229 Ariz. 444 (Ct. App. 2012).
One PCH Defendant, Dr. Kathryn Coffman, declined to answer some RFPs and some interrogatory questions on the ground that she no longer works for PCH and does not have access to that information. (Docs. 104-3, 104-4).
Plaintiffs emailed the PCH Defendants on August 15 seeking to confer regarding the PCH Defendants' objections. (Doc. 104 at 2). The parties evidently met and conferred on August 25 and Plaintiffs claim the PCH Defendants “(1) agreed to produce the missing documents that are not financial, (2) refused to produce the missing financial information, and (3) agreed to provide their 3-page summary [of] the discovery dispute for a joint filing.” (Doc. 104 at 2). The PCH Defendants allegedly recanted these promises five days later, instead asserting the present discovery dispute is not “ripe” and informing Plaintiffs that the PCH Defendants would file for summary judgment if Plaintiffs did not voluntarily dismiss their claims against the PCH Defendants. (Docs. 104 at 2, 106-1, 106-2).
Meanwhile, Plaintiffs filed three motions for extensions of their expert disclosure deadlines; the Court granted the third extension to August 26, 2022. (Doc. 94). In March of 2022, the Plaintiffs' counsel had acknowledged in an email that “no one disputes that such expert testimony will be required here for the claims against your individually named clients.” (Doc. 109-1 at 2). Yet, on August 26, 2022, Plaintiffs failed to disclose a medical expert.
Plaintiffs characterize the disputed issues as follows:
1. “PCH refuses to produce any financial information regarding contracts between PCH, [the] State of Arizona, and/or [the Department of Child Services]m and regarding the PCH Child Protective Team.”
2. “PCH refuses to produce its contracts with Drs. Coffman, Wood, Cassidy, and any other PCH Defendant not specifically listed.”
3. “Drs. Wood and Coffman failed to produce the requested documents concerning information exchanged between the parties and in support of their responses to the non-uniform interrogatories and admissions.”
4. “Dr. Coffman refuses to produce her training records.”
5. “Dr. Coffman refuses to answer the interrogatory seeking information regarding her relationship with PCH's CPT.”(Do. 104 at 2-3). Plaintiffs argue these requests are targeted at evidence “relevant to Plaintiffs' claims that Defendants conspired to violate Plaintiffs['] civil rights (Claim 6), failed to provide the minimum accepted standard of care (Claim 11), intentionally inflicted emotional distress (Claim 15), and/or were negligent employers (Claim 16).” (Doc. 104 at 2).
The PCH Defendants argue they are not required to comply with the discovery requests because they believe Plaintiffs' claims against them are rendered futile due to Plaintiffs' failure to disclose expert witnesses by the August 26 disclosure deadline. (Doc. 106 at 4; Doc. 109 at 3-5). Indeed, the PCH Defendants have requested “that the Court defer a hearing or ruling on the discovery dispute until after [a] Motion for Summary Judgment is decided.” (Doc. 109 at 5). Plaintiffs argue the PCH Defendants' initial objections, and the more recent argument regarding expert witness disclosure, are without merit. (Docs. 104 at 4-5, 106 at 3-5).
On September 18, 2022, Plaintiffs filed a motion to strike PCH Defendants' motions (Doc. 106 and 109) and moved for sanctions pursuant to Fed.R.Civ.P. 16(f) and 26(g). (Doc. 114). They argued the motions were improper and meritless. (Doc. 114 at 5-6). Plaintiffs further argued the Court should impose sanctions on PCH Defendants for failing to comply with Court orders, and because their tactics “are an attempt to conceal evidence and frustrate discovery.” (Doc. 114 at 7). Plaintiffs further asked for an order prohibiting the PCH Defendants from using their own medical expert testimony. (Doc. 114 at 7). The PCH Defendants responded to this motion on September 23, arguing against sanctions, suggesting Plaintiffs have abused the discovery process. (Doc. 130). On September 26, Plaintiffs filed notices of six depositions. (Docs. 131, 132, 133, 134, 135, and 136).
On September 28, 2022, PCH Defendants filed a Motion for Protective Order to prevent those depositions. (Doc. 137). This Court ordered an expedited briefing schedule to bring this flurry of improper discovery motions to a close. (Doc. 138).
On October 12, 2022, PCH Defendants filed a Motion for Summary Judgment, rehearsing many of the same arguments it asserts in its briefing on the discovery issues. (Doc. 146). After filing the motion, PCH Defendants sought leave to extend the page limit for their already-filed motion. (Docs. 147 and 148).
ANALYSIS
Discovery is still open and is not scheduled to close until November 18, 2022. (Doc. 79). Under the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. . . . Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed.R.Civ.P. 26(b). While the timeline of events is complicated, it is clear the PCH Defendants have been seeking to avoid producing relevant and required discovery in this case for some time.
I. Discovery of Financial Information
The original discovery dispute, as discussed above, related to the PCH Defendants' objections to producing financial information. The PCH Defendants objected and refused to produce financial documents and contracts because of Arpaio v. Figueroa, 229 Ariz. 444 (Ct. App. 2012), which held that under Arizona law, a party must establish punitive damages will be permitted at trial before discovery on financial issues will be permitted. It does not appear that the Plaintiffs' requests for financial information and contracts were made for purposes of establishing punitive damages. Rather, the requests are relevant because, as Plaintiffs argue, they have alleged a conspiracy, and financial relationships between the various parties may well be relevant to that claim. (Doc. 104 at 4) (stating, e.g., that DCS pays PCH whenever a child is referred to DCS). The PCH Defendants will be ordered to comply with the discovery request. w
II. Failure to Name Expert Witness
There are four claims pending against the PCH Defendants. In Claim 6, Plaintiffs allege against Dr. Coffman, Dr. Wood, and an “unidentified” PCH social worker conspired to violate Plaintiffs' constitutional rights of freedom of association under the First Amendment, Due Process under the Fourteenth Amendment, and right not to have the child unlawfully seized under the Fourth and Fourteenth Amendments. In Claim 11, Plaintiffs allege medical negligence under Arizona law against Dr. Coffman, Dr. Wood, and Ms. Dietzman. In Claim 15, Plaintiffs allege intentional infliction of emotional distress (IIED) against PCH, Dr. Coffman, Ms. Dietzman, and Dr. Wood. In Claim 16, Plaintiffs allege PCH is liable for the purported negligence of its employees and agents.
The crux of the PCH Defendants' arguments, from the first discovery dispute to now, is that because Plaintiffs failed to disclose an expert witness, all of the claims against them will fail, and thus they are as a matter of law not be subject to discovery. Perhaps Plaintiffs' medical malpractice claim (Claim 11) will fail due to the lack of a medical expert to testify as to the standard of care. However, even if that is true, the two other substantive claims against the PCH Defendants-conspiracy to violate Plaintiffs constitutional rights (Claim 6) and IIED (Claim 15)-do not require establishing a medical standard of care as a predicate element. Nor does the claim for negligence by PCH based on the actions of its employees or agents (Claim 16). Indeed, the PCH Defendants cite no authority for their proposition to the contrary. (Doc. 145 at 7; Doc. 145 at 10-11). Thus, the lack of medical expert is not dispositive for all of Plaintiffs' claims. Discovery will continue.
Because of this ruling, the issue concerning the preclusive effect of the Juvenile Court's findings is moot presently. (Doc. 142 at 5-10; Doc. 145 at 2-7).
III. Additional Motions
Additionally, the PCH Defendants' Motion for Summary Judgment is improper; according to the Rule 16 Order issued in this case, the Court will not address dispositive motions, and they are not to be filed, until and after an Interim Rule 16 Status Conference takes place, at which point the parties and the Court will discuss whether dispositive motions are appropriate. (Doc. 79 at 4). The Rule 16 Order sets that conference for January 10, 2023, and establishes a deadline for dispositive motions in February 2023. The present motion is untimely, premature, and in clear violation of this Court's order. The PCH Defendants cannot use this tactic to evade discovery obligations and are warned that sanctions will be imposed in the future.
As detailed in the Court's September 29, 2022 order (Doc. 138), both parties have failed to comply with this Court's orders with respect to discovery disputes. Thus, the Court will deny Plaintiffs' recent motion for sanctions against PCH Defendants. (Doc. 114). However, should there be future violations of this Court's orders, this Court will not hesitate to sanction both parties for discovery violations.
CONCLUSION
Accordingly, IT IS ORDERED the Plaintiffs' Motion to Strike PCH Defendants' Pleadings and Motion for Sanctions (Doc. 114) is DENIED.
IT IS FURTHER ORDERED the PCH Defendants' Motion for Protective Order (Doc. 137) is DENIED.
IT IS FURTHER ORDERED the PCH Defendants' Motion for Summary Judgment (Doc. 146) is STRICKEN and Motion for Leave to File Excess Pages (Doc. 147 and Doc. 148) are DENIED AS MOOT.
IT IS FURTHER ORDERED the PCH Defendants must comply with discovery requests and depositions, and produce relevant financial information as requested by Plaintiff's.