United States District Court, D. New Mexico
STEVE P. SHULTZABERGER, Plaintiff,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO
SUPPLEMENT DISCOVERY AND ALLOWING A SECOND DEPOSITION OF DR.
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Plaintiff Steve
Shultzaberger's motion for an extension of time to
supplement discovery and supplement the deposition of Gregory
Misenhimer, MD, Shultzaberger's treating surgeon. (Doc.
42). Despite the title, Shultzaberger asks the Court for
leave to re-depose Dr. Misenhimer. In the motion,
Shultzaberger's attorney owns up to a “procedural
mistake” he made by failing to elicit critical
testimony from Dr. Misenhimer to firm up medical causation:
whether Defendant State Farm Mutual Automobile Insurance
Company's insured, MW, caused Shultzaberger's
injuries. Without a second deposition, Shultzaberger
maintains, he will not be able to oppose State Farm's
motion for summary judgment and, ultimately, succeed at
trial. State Farm disagrees and asserts Shultzaberger has not
established good cause for another deposition. With the
consent of the parties to conduct dispositive proceedings,
see 28 U.S.C. § 636(c), the Court has reviewed
the parties' submissions and considered the applicable
law. Having done so, the Court GRANTS
Shultzaberger's motion in part.
23, 2013, MW drove her parents' Toyota into
Shultzaberger's truck. She was talking on her cell phone
and rolled a stop sign. (Doc. 1-2, Compl., ¶¶ 4-5).
The collision caused Shultzaberger's truck to “spin
on two wheels” and sustain severe damage.
(Id., ¶ 6). Shultzaberger himself allegedly
suffered “grave injuries” necessitating
evaluation and treatment for chest, hip, back, and neck
injuries at the Lincoln County Medical Center. (Id.,
¶¶ 6, 11). MW was cited by local police for failure
to yield the right of way. (Id., ¶9). At the
time of the accident, Shultzaberger was insured by State
Farm. (Id., ¶ 15). Despite underinsured
motorist coverage (“UIM”) in the policy for the
medical expenses he incurred as a result of the collision,
State Farm did not pay those charges, which Shultzaberger
believes is State Farm's typical business practice.
(Id., ¶¶ 15-18).
February 19, 2016, Shultzaberger sued MW through her parents
in the Twelfth Judicial District for Lincoln County, New
Mexico. (Doc. 1-2). Shultzaberger alleged MW's
negligence-and her parents' in entrusting her the
Toyota-caused his personal injuries and property damage.
(Id., ¶¶ 4-14) (captioning the causes of
action as “negligence” and “negligent
entrustment”). Shultzaberger also named State Farm for
breach of the UIM provision of the insurance policy and bad
faith. (Id., ¶¶ 15-20). Shortly
thereafter, MW's parents settled all claims against them
and MW by tendering the $25, 000 personal-injury limits of
their GEICO automobile policy. (Docs. 1-3; 1-4). State Farm
ultimately removed this action on October 12, 2017, on the
basis of the Court's diversity jurisdiction. (Doc. 1).
December 6, 2017, the Court entered a pretrial scheduling
order. (Doc. 14). The order afforded Shultzaberger until
February 28, 2018 to designate experts and June 29, 2018 to
complete discovery. (Doc. 14). On February 2, 2018, the
parties deposed Dr. Misenhimer. (Doc. 37-1, Misenhimer Dep.).
Dr. Misenhimer testified that he performed a two-level neck
fusion on Shultzaberger in December 2015, some years after MW
drove her parent's vehicle into Shultzaberger's
truck. (Id., at 5; 14). Dr. Misenhimer also
explained that Shultzaberger did not tell him about the
accident; Shultzaberger “presented with complaints of
neck pain and with a history of [a] previous surgery, ”
and Dr. Misenhimer assumed that the pain had returned
gradually as part of degradation of the pervious surgery.
(Id., at 6). During his questioning,
Shultzaberger's attorney informed Dr. Misenhimer
“this lawsuit is about a car accident where
[Shultzaberger] was struck from the side while going down the
street” and asked “if somebody were t-boned on
the side of their car, would that cause a prior laminectomy
to become undone or cause further damage?” (Doc. 35-1,
Misenhimer Dep. at 8-9). Dr. Misenhimer answered that
“to say that the accident totally disrupted the surgery
is probably not true, but the accident undoubtedly caused
pain by a whiplash-type incident, where his head was either
thrown forward and backward or side to side at the time of
the accident.” (Id., at 10).
April 13, 2018, Shultzaberger noticed Dr. Misenhimer for a
second deposition. (Doc. 35-2). State Farm subsequently moved
for a protective order on the ground that Shultzaberger had a
full and fair opportunity to question Dr. Misenhimer and that
it should not be put to the expense of a second deposition
under these circumstances. (Doc. 35). Following a hearing,
Chief Magistrate Judge Carmen Garza granted the motion, but
permitted Shultzaberger to seek leave to re-depose Dr.
Misenhimer as required by Federal Rule of Civil Procedure 30.
(Docs. 38; 41). State Farm also filed a motion for summary
judgment asserting that Shultzaberger could not prove MW
caused his injuries. (Doc. 37). On April 30 and May 1, 2018,
Shultzaberger asked for an extension of time to supplement
discovery and to file a response to State Farm's
dispositive motion, respectively. (Docs. 42 & 43). The
Court granted the latter as unopposed, and noted it would set
a deadline for submitting a response to the former once the
Court disposed of the motion for a second deposition, which
is now before the Court. (Doc. 44).
Rule of Civil Procedure 30(a)(2)(A)(ii) provides that
“a party must obtain leave of court [to conduct a
deposition], and the court must grant leave to the extent
consistent with [Federal] Rule 26(b)(1) and (2) . . . if the
deponent has already been deposed in the case.” When
determining whether to grant leave, the Court has broad
discretion to consider all relevant circumstances and examine
the equities. See Dixon v. Certainteed Corp., 164
F.R.D. 685, 690 (D. Kan. 1996). Although second depositions
are generally disfavored, see id., the Court must
“be careful not to deprive a party of discovery that is
reasonably necessary . . . to develop and prepare the
case.” Ast v. BNSF Ry. Co., 2011 U.S. Dist.
LEXIS 123838, at *2 (D. Kan. Oct. 25, 2011) (citation
omitted). “The party seeking a[n order allowing a
second deposition] is expected to show good cause to justify
such an order.” Fed.R.Civ.P. 30 Advisory Committee
Notes, 2000 Amendments. Rule 26(b) identifies the factors
that guide the exercise of discretion. See Fed. R.
Civ. P. 30(a)(2)(A)(ii). Under Rule 26(b)(1), the subject
matter of a second deposition must be relevant to a claim and
“proportional to the needs of the case[.]”
Fed.R.Civ.P. 26(b)(1). Rule 26(b)(2) requires the Court to
consider (1) whether a second deposition would be
“unreasonably cumulatively or duplicative”; (2)
the movant “has had other opportunities” to
obtain the information sought; and (3) the burden outweighs
the benefit. Fed.R.Civ.P. 26(b)(2)(i)-(iii).
the Rule 26(b)(1) and (2) factors, the exercise of discretion
favors a second deposition. As an initial matter, the Court
observes that Shultzaberger has not presented the best case
to re-depose Dr. Misenhimer. Proximate causation has been
central to the lawsuit since its inception and is an
essential element of Shultzaberger's cause of action for
a breach of the insurance contract. See State Farm Mut.
Auto. Ins. Co. v. Barker, 96 P.3d 336, 339 (N.M. Ct.
App. 2004) (requiring proof of the underlying
tortfeasor's negligence-“duty, breach, proximate
cause, and loss or damages” that exceed the
tortfeasor's policy limits). If Shultzaberger would have
required surgery notwithstanding the accident, then
Shultzaberger may not be able to meet his burden either on
summary judgment or trial on the merits. It appears
Shultzaberger's attorney had the foresight to ask some
questions of Dr. Misenhimer aimed to address this issue.
(Doc. 35-1, at 8-9; 10) (informing Dr. Misenhimer that the
lawsuit concerned a car accident, asking “if somebody
were t-boned on the side of their car would that cause a
prior laminectomy to become undone or cause further damage,
” and receiving the answer that “to say that the
accident totally disrupted the surgery is probably not true,
but the accident undoubtedly caused pain by a whiplash-type
incident”). From what the Court can discern from the
deposition transcript provided, the lack of follow up on this
critical line of questioning is apparent and troubling.
the Court does not condone counsel's conduct and finds
disingenuous the assertion that causation was not at issue in
the deposition as well as counsel's claim that he did not
further pursue causation in reliance on the defense
attorney's statement that the case could be settled after
discovery was complete, Shultzaberger's attorney did take
ownership of his oversight. Moreover, the discussion of the
significance of causation highlights that it squarely falls
within Rule 26(b)(1)'s permissible scope of discovery.
Thus, a second deposition would address issues germane and
proportional to Shultzaberger's case.
Farm's argument that a second deposition would be
cumulative or duplicative is not without some force or that
Shultzaberger had an opportunity to obtain the information he
seeks. In a broad sense, Shultzaberger did recognize
causation was at issue and did ask some questions about it.
Viewed more narrowly, however, questions directed to the
whiplash Shultzaberger may have sustained as well as the
resulting pain were not asked. Nor did Shultzaberger inquire
as to what Dr. Misenhimer meant when he answered
Shultzaberger's hypothetical t-bone question. Even if a
second deposition might be duplicative or cumulative, it
would not be “unreasonably” so, especially in
light of the small amount of causation testimony elicited and
State Farm's lack of specific argument on this point. At
any rate, the Court can adequately protect State Farm by
limiting the deposition to causation alone. See Fed.
R. Civ. P. 26(b). The Court is cognizant that Shultzaberger
could have, and likely should have, asked more causation
questions during the first proceeding or conducted written
discovery on the element. At this point, however, the Court
takes at Shultzaberger's attorney at his word and
declines to take his admitted oversight as a basis to deprive
his client of needed information.
is some burden to a second deposition. State Farm will face
attorney's fees and, potentially, travel expenses.
Moreover, there will be some delay to the case. But the Court
is unable to attribute any concrete prejudice to State Farm.
Discovery is still open and trial is not scheduled until
December 3, 2018. In fact, Shultzaberger anticipated only a
thirty minute second deposition when he argued against State
Farm's motion for protective order. State Farm could
elect to participate in the deposition by telephone. Further,
any monetary prejudice is alleviated by shifting costs to
Shultzaberger. The Court will require Dr. Misenhimer's
appearance fee to be paid by Shultzaberger. Should State Fam
wish to have its attorney personally appear, Shultzaberger
will reimburse the attorney's mileage at the prevailing
IRS rate from Las Cruces, ...