Hansen v. United States ( 2023 )

8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 1 of 14 - Page ID # 225 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Hansen et al v. The United States of America 8:21-cv-00371-BCB-MDN To assist the Court in more efficiently addressing the parties’ discovery dispute(s), the parties shall meet and confer, and jointly complete the following chart. The purpose of this chart is to succinctly state each party’s position and the last compromise offered when the parties met and conferred. The fully completed chart shall be e-mailed to chambers of the assigned magistrate judge. The moving party is: Lisa Hansen, Plaintiff by Robert W. Futhey The responding party is: USA, Defendant by Danielle Rowley Note: If discovery from both parties is at issue, provide a separate sheet for each moving party. Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise Def. Response to The accounting Produce all medical Def. has not billed D-010827 reflects Def. has no Request for records of expenses bills, statements, Plaintiff for any billings paid to third responsive records Production No. 3: incurred for Mr. invoices, expense treatment it provided parties. VA needs to that were created in Defendant has Hansen’s medical statements, and to him at the VA. produce information the ordinary course adequately AND treatment at the VA accounting records Def. produced for its internal costs. of business. At the responded and Hospital are relevant related to Michael’s payments it made on last discovery answered. Def. Response to and discoverable, treatment at the VA. behalf of Mr. Hansen The request is not dispute conference, Interrogatory No. 17: related to the for community based just limited to “bills” Judge Nelson damages Plaintiffs medical services. or “invoices.” It asks indicated Plf. can are seeking. for “medical expense use an expert to summaries” related establish costs. to Mr. Hansen’s medical care at the VA. Like all government organizations, the VA clearly tracks its costs associated with the services 1 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 2 of 14 - Page ID # 226 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise provided. This information should be produced. Def. Answer to VA’s contention that The Government The request does not The requested Def. stands on its Interrog. No. 9: the amounts previously agreed to seek the identity of information, which prior objections. Defendant's Plaintiffs seek in this produce information the name(s) of the the Government None of the claims objections are case is not fair and in response to this claimant/plaintiff for previously agreed to listed were litigated. sustained. reasonable. interrogatory. each claim. Def. provide, should be There is no However, the provided information produced. jurisdictional Government withheld regarding the result information to (1)the identify the of each claim. Def. provide. Def. has name(s) of the admitted liability. fully responded. claimant/plaintiff for Claims filed against each claim, (2) the the VA are not jurisdiction where it relevant to the issue was filed and (3) of damages. information regarding the specific result of each claim (e.g., the specific amount paid in settlement or verdict, if applicable.) Def. Answer to VA’s contention that Identify every claim, Def. admitted Plaintiffs are willing Def. stands on its Interrog. No. 14: the amounts lawsuit, proceeding, liability. Claims filed to limit this prior objections. At Plaintiffs seek in this and investigation against the VA are interrogatory to the last discovery Defendant's case is not fair and involving an not relevant to the claims/lawsuits dispute conference, objections are reasonable. allegation of issue of damages. involving the VA Judge Nelson sustained. substandard care Hospital in Omaha agreed information 2 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 3 of 14 - Page ID # 227 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise provided by and involving claims about claims is not personnel between of delay in diagnosis relevant to the sole January 1, 2010 and or treatment of issue of damages. November 1, 2020. cancer in a patient allegedly resulting in the injury or death of the patient. Similar to how insurance coverage information is discoverable (even though it is usually not admissible), this information will be useful for evaluating possible settlement in the case, short of a trial. Plaintiff’s 30(b)(6) The Defendant does not have an objection to Topic Nos. 1, 2, 3, 8, 9, and 12. Deposition Notice (Filing No. 92) The Defendant has no objection to Topic No. 7, provided it is limited to documents and communication known or reasonably available to the VA. With the understanding that Plaintiff will hold in abeyance Topic No. 10 until after Defendant’s expert disclosures are made, there is no objection. The Defendant has no objection to Topic No. 11, provided that Plaintiff is not seeking information that is privileged. Each topic where there remains a substantive dispute are discussed below in the chart. Topic Nos. 4, 5, and The treatment These topics were Lacks reasonable 6 Michael received included in the prior particularity. Mr. 3 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 4 of 14 - Page ID # 228 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise from the VA and his 30(b)(6) notice. Hansen’s treatment overall health Judge Nelson gave at the Omaha VA did Defendant's objections condition. an initial response in not start until 2017. are overruled, except November that they All of his treatment that topic 4 shall be were acceptable was complex and limited to Mr. categories. multidisciplinary. The Hansen's treatment at number of different the Omaha VA providers Mr. Hospital beginning in Hansen has seen June 2017. since 2010 is likely close to 100, if not more. Topic No. 13 VA’s contention that This category has Lacks reasonable the amounts been reduced in particularity and not Plaintiffs seek in this scope from the prior relevant to the issue case is not fair and Rule 30(b)(6) notice of damages. Judge Defendant's reasonable. to only involve Nelson already objections are claims/lawsuits indicated he would sustained. Similar to how involving the VA grant Def. objections. insurance coverage Hospital in Omaha information is and involving claims discoverable (even of delay in diagnosis though it is usually or treatment of not admissible), this cancer in a patient information will be allegedly resulting in useful for evaluating the injury or death of possible settlement the patient. It seeks in the case, short of information on a trial. similar claims. Topic No. 14 Damages suffered The VA Lacks reasonable by plaintiffs, representatives who particularity and not disclosed the delay relevant to the issue 4 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 5 of 14 - Page ID # 229 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise including emotional in treatment of of damages. Plaintiff distress damages. Michael’s lung is not entitled to nodule did not follow emotional distress Defendant's the VA’s procedures damages in a objections are for how such wrongful death overruled. disclosures of action. adverse events should be disclosed to patients. There has been testimony in the case that Michael and Lisa were suffered emotional distress damages relating to the VA’s disclosure of the adverse event. Topic No. 15 Damages and This topic was Lacks reasonable credibility of included in the prior particularity and not Defendant’s 30(b)(6) notice. relevant to the issue Defendant's witnesses who claim Judge Nelson gave of damages. Judge objections are Michael and Lisa an initial response in Nelson already sustained. were not damaged November that this indicated he would as a result of delay in was not an grant Def. objections treatment of acceptable category. Michael’s lung cancer Plaintiffs request that they be permitted to proceed with this topic after further 5 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 6 of 14 - Page ID # 230 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise discussion with Judge Nelson. Topic No. 16 Plaintiff’s damages, This information Lacks reasonable specifically the costs clearly goes to a particularity. The associated with category of United States cannot Defendant's Michael’s treatments recoverable attest to the costs objections are for lung cancer and damages, i.e., incurred by any other sustained, in part. for end-of-life care. medical expenses person or entity. Plaintiff may incurred in inquire as to connection with The VA did not billings paid to Michael’s lung generate a bill, third parties and cancer treatment and medical expense explore general end-of-life care. summary or questioning about statement of account the VA's The Defendant has for the services it inventory, billing, claimed no provided to Mr. and accounting information exists Hansen, in the because the VA ordinary course of methods for does not “bill” business. As Judge tracking care patients. To the Nelson indicated, Plf. provided and extent the Defendant can use an expert to supplies used in is claiming no establish the costs of treatment, etc. information exists in care. its possession regarding the expenses incurred for Michael’s care, it should be required to produce a witness to testify to this assertion. 6 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 7 of 14 - Page ID # 231 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise Additionally, Michael received—and the VA paid for—certain community based providers for care administered to Michael outside of the VA hospital, but related to his lung cancer treatment and end-of-life care. Plaintiffs are entitled to know if the VA contests the fairness, reasonableness, and necessity of these expenses. Topic No. 17 Plaintiff is required to This information is Def. has not alleged prove compliance clearly relevant to an Plf. failed to comply Defendant's with the Federal Tort essential element of with the Claims Act Plaintiff’s claim, i.e., requirements of the objections are compliance with the FTCA. Def. is willing sustained subject Federal Tort Claims to stipulate to to the parties' Act. Plaintiff’s compliance reaching an with the FTCA. agreeable The parties have stipulation. discussed entering into a stipulation as to these matters. However, to the extent a stipulation cannot be reached, 7 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 8 of 14 - Page ID # 232 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise Plaintiff should be permitted to inquire regarding this topic. Topic No. 18 Foundation for the The parties have Def. is willing to admissibility of discussed entering stipulate to Defendant's documents in the into a stipulation as foundation for VA objections are case. to these matters. records. sustained subject to However, to the the parties' extent a stipulation reaching an cannot be reached, agreeable Plaintiff should be stipulation. permitted to inquire regarding this topic. Topic No. 19 The existence of See, e.g., Topic No. Lacks reasonable relevant documents 16, Request for particularity and not and information Production No. 3, relevant to the issue related to Plaintiff’s and Interrogatory No. of damages. Judge Defendant's damages. 17, discussed above, Nelson already objections are related to medical indicated he would sustained. expenses incurred grant Def. objections for Michael’s treatments. The Defendant has claimed no responsive documents exist. Plaintiff should be permitted to inquire about the VA’s record-keeping practices. 8 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 9 of 14 - Page ID # 233 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise Additionally, VA witnesses have claimed the only document related to the disclosure of the adverse event to Michael and Lisa is a one-page record. See Laura Whale Depo., at 79:7-10 (“Q. Are there other documents that are created under the handbook besides what we see here in Exhibit 32 that it reports? A. No. Qis there any other documentation at all related to the institutional disclosure that are created pursuant to the Handbook 1004.08? A. No other documentation; just data.”) Topic Nos. 20-23 Seeks information These topics are the 30(b)(6) contention related to the factual functional equivalent topics are overbroad and legal basis of of contention and improper. Def. several matters interrogatories, 30(b)(6) designee plead by Defendant which are expressly cannot know the 9 8:21-cv-00371-BCB-MDN Doc # 101 Filed: 01/26/23 Page 10 of 14 - Page ID # 234 Moving Party: Lisa Hansen, Plaintiff by Robert W. Futhey Moving Party’s Last Responding Party’s Discovery Request Relevant to prove... Moving Party’s Responding Party’s Court’s Ruling Offered Last Offered at Issue Initial Position Initial Position Compromise Compromise in its amended permitted under Rule factual and legal answer to Plaintiff’s 33. Plaintiff is basis of Def. complaint. entitled to know the Amended Answer Defendant's underlying basis of without receiving the objections are Defendant’s denials responses from sustained. of Plaintiff’s counsel. allegations. Defendant cannot simply hide behind the cloak of “work product,” if they are contesting these matters. Counsel for Lisa Hansen, Plaintiff: Robert W. Futhey Counsel for USA, Defendant: Timothy R. Hook, Danielle Rowley Date: January 24, 2023. IT IS SO ORDERED. Dated this 26th day of January, 2023. BY THE COURT: s/Michael D. Nelson United States Magistrate Judge 10 _—_a) FRASER STRYKER PC LLO LAWYERS 500 ENERGY PLAZA 409 SOUTH 17TH STREET OMAHA, NEBRASKA 68102-2663 ROBERT W. FUTHEY TELEPHONE 402.341.6000 DIRECT DIAL: 402.978.5267 TELEFAX 402.341.8290 RFUTHEY@FRASERSTRYKER.COM WWW.FRASERSTRYKER.COM January 24, 2023 VIA EMAIL — nelson@ned.uscourts.gov The Honorable Michael D. Nelson United States Magistrate Judge 111 South 18" Plaza Suite 2210 Omaha, Nebraska 68102 RE: Hansen v. USA, Case No. 8:21-cv-371-BCB-MDN Plaintiff's Letter regarding Discovery Dispute Dear Judge Nelson: Please accept this in connection with the discovery dispute conference scheduled for Thursday, January 26, 2023, at 10:00 a.m. The specific issues in dispute are set forth on the joint discovery chart sent contemporaneously with this letter. In preparation for the conference, the parties conducted meet-and-confer calls on January 17” and 23", In this letter, ] want to highlight a few of the categories of information in dispute between the parties. The first has to do with the costs associated with Michael’s lung cancer treatment and end-of-life care provided by the VA. These matters are at issue in Request for Production No. 3, Interrogatory No. 17, and 30(b)(6) Topic No. 16. The Government has claimed that it has no bills/invoices for Michael and it doesn’t track costs associated with patients. As an initial matter, the requested information is broader than just “bills” or “invoices.” For example, RFP No. 3 seeks “medical expense summaries.” Also, it strains all reason that the Department of Veterans Affairs has no information as to the cost, for example, of a chemotherapy infusion that it administered to Michael. This information is clearly relevant to a category of damages. See, e.g., NJI 2d Civ. 4.01 (recognizing recoverable damages in a tort action include “[t]he reasonable value of the medical (, hospital, nursing and similar) care and supplies reasonably needed by and actually provided to the plaintiff. ...”); see also Neb. Rev. Stat. § 44-2819 (recognizing in medical malpractice actions that costs for medical expenses are recoverable, but may be subject to a credit after trial.”). The full amount of damages to be recovered 1s also potentially relevant to any offers to confess/offers for judgment made by the parties. The Court should require the Government to produce relevant information and a witness on these issues. Next, Plaintiff respectfully requests the Court require the Government to respond fully to Interrogatory Nos. 9 and 14, and 30(b)(6) Topic 13. This information is relevant to ascertaining Hon. Michael Nelson January 24, 2023 Page 2 whether the Government’s assertion that Plaintiffs’ claimed damages are excessive. These items relate to other similar claims—involving delayed diagnosis and treatment of cancer resulting in injury or death at the VA Hospital in Omaha. Courts have routinely found that information related to other claims involving a defendant is discoverable, even if it is not necessarily admissible at trial. See, e.g., Ala. Aircraft Indus., Inc. v. Boeing Co., No. 2:11-CV-3577-RDP, 2015 U.S. Dist. LEXIS 192391, at *6-7 (N.D. Ala. Jan. 26, 2015); Tarnoski v. Old Republic Ins. Co., No. 06- 12397, 2007 U.S. Dist. LEXIS 40234, at *4-6 (E.D. Mich. June 4, 2007) (“Merely because evidence of the settlement itself is inadmissible, does not mean that the information Plaintiff seeks is irrelevant and that information encompassed by Plaintiff's request cannot reasonably [be] calculated to lead to the discovery of admissible evidence.”). Such information may also be relevant to “credibility, impeaching, or cross-examining a witness at trial.” Garcia v. Cty. of Stanislaus, No. 1:21-cv-00331-JLT-SAB, 2022 U.S. Dist. LEXIS 166453, at *78 (E.D. Cal. Sep. 14, 2022). Additionally, such information should be discoverable similar to how information about a defendant’s insurance coverage is discoverable under Fed. R. Civ. P. 26(a)(1)(iv), even though insurance information is generally not admissible. Disclosure of insurance coverage enables the parties to make the same realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation. Finally, because this information is obtainable pursuant to a FOIA request, there can be no claim that this information is sensitive or confidential to the Government. Finally, 30(b)(6) Topic Nos. 20, 21, 22, and 23 ask the Government to produce a witness who can explain the factual and legal basis for its denial of certain matters alleged in Plaintiff's Complaint. The Government claims these inquiries will disclose “work product.” However, that assertion is not sufficient to prevent discovery as to why the Government has denied certain matters alleged in the case related to Plaintiff's claims. These topics are directly analogous to contention interrogatories, which are expressly authorized by Fed. R. Civ. P. 33(a)(2). The simple fact of the matter is that Plaintiffs have pled certain facts and opinions, and the Government has denied those matters. Plaintiff is entitled to find out the basis of the Government’s denials of these matters at some point before the trial. The Court should require the Government to produce a witness so that Plaintiffs can understand the basis for the Government’s denials of these matters. I am happy to discuss these matters and the others raised on the discovery chart with you on Thursday morning. Thank you for your assistance in reviewing these matters. Respectfully submitted, Robert W. Futhey FOR THE FIRM Sp, I EEE IEEE I III IIE IE IEEE IEEE cn United States Attorney ry District of Ne ey) istrict of Nebraska Te 1620 Dodge Street, Suite 1400 PH: (402) 661-3700 “ss Omaha, Nebraska 68102-1594 FAX: (402) 661-3081 TTY: (402) 345-6976 January 24, 2023 VIA EMAIL nelson@ned.uscourts.gov Honorable Michael D. Nelson United States Magistrate Judge 111 South 18" Plaza, Suite 2210 Omaha, NE 68102 Re: Elizabeth Hansen v. USA, Case No. 8:21CV371 Discovery Dispute Statement Magistrate Judge Nelson: Please consider this letter as the United States of America’s discovery dispute position statement. A telephone conference is scheduled to occur on January 26, 2023, at 10:00 a.m. This dispute involves both written discovery and a Rule 30(b)(6) deposition. As you know, the United States has admitted liability in this matter and as such, the only issue for trial is the nature and extent of the Plaintiff's damages. Written Discovery At the last discovery dispute conference, the Court indicated that information about claims against the VA (Interrogatories No. 9 and 14) were not relevant to the issue of damages. The United States agreed to respond to Interrogatory No. 9 prior to the admission of liability and has since fully responded. The United States never agreed to supplement its response to Interrogatory 14. The United States has fully responded to Interrogatory No. 17 and Request for Production No. 3. As the undersigned has indicated to Plaintiffs counsel and the Court, the VA did not generate a bill, medical expense summary or statement of account for the services it provided to Mr. Hansen. As such, there is nothing to supplement. Amended Rule 30(b)(6) Notice Plaintiff's Amended Rule 30(b)(6) Notice is still over broad and lacks reasonable particularity. Without reasonable particularity, the United States is unable to designate and prepare individuals to testify on its behalf. The United States’ specific objections are as follows: Topic 4: Lacks reasonable particularity, not relevant and not proportional to the needs of the case. Mr. Hansen did not seek treatment with the Omaha VA until 2017. Any treatment prior to that was provided at a different VA, outside of the District of Nebraska. Producing a designee for this topic would be unduly burdensome and expensive. Additionally, as addressed below for Topics 5 and 6, Mr. Hansen’s treatment was complex and multidisciplinary. Honorable Judge Nelson Page 2 January 24, 2023 Topic 5: Lacks reasonable particularity. Mr. Hansen’s was hospitalized the entire month of July 2019. His treatment was both complex and multidisciplinary. During that month, he was seen by Nephrology, General Surgery, Emergency Department, Radiology, Infectious Disease, Critical Care, and Palliative Care. Ms. Hansen estimated he was seen by “over 20 doctors” during this time. Topic 6: Lacks reasonable particularity. During this time period, Mr. Hansen was seen by Primary Care, Dermatology, Radiology, General Surgery, Hematology/Oncology, Pulmonology, and Palliative Care. Plaintiff needs to provide reasonable particularity as to the type of services and treatment, so that the United States can designate and prepare individuals to testify on its behalf. Topics 13, 15, and 19: Lack reasonable particularity, not relevant to the issue of damages and not proportional to the needs of the case. The Court already indicated it would grant the United States objections to these topics. Topic 14: Lacks reasonable particularity, not relevant to the issue of damages and not proportional to the needs of the case. An institutional disclosure is merely notice of an adverse event which has nothing to do with Plaintiffs damages in this matter. Further, Plaintiff cannot seek an expert opinion as to whether certain “practices” complied with VA “policies.” Instead, testimony must be confined to matters “known or reasonably available to the organization.” Topic 16: Lacks reasonable particularity. Additionally, the United States cannot attest to the costs incurred by any other person or entity. The VA did not generate a bill, medical expense summary or statement of account for the services provided to Mr. Hansen. Topics 20-23: These topics impermissibly seek the United States counsel’s work product. See Blackmore v. Union Pac. R.R. Co., No. 8:21CV318, 2022 WL 3718115 (D. Neb. Aug. 29, 2022). Plaintiff noticed the Rule 30(b)(6) deposition for February 1, 2023. Assuming we reach a resolution on Thursday, the United States requests thirty (30) days to prepare its designees. Thank you for your time and assistance with this matter. I look forward to speaking with you on Thursday. Respectively, STEVEN A. RUSSELL United States Attorney District of Nebraska By: Danielle Rowley Assistant U.S. Attorney