Fitzgerald v. Naumann ( 2005 )

Fitzgerald v. Naumann, No. S0718-01 CnC (Norton, J., May 24, 2005)
[The text of this Vermont trial court opinion is unofficial. It has been
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STATE OF VERMONT SUPERIOR COURT
Chittenden County, ss.: Docket No.S0718-01 CnC
FITZGERALD
v.
NAUMANN, et al.
ENTRY
Plaintiff Brian Fitzgerald’s amended complaint alleges medical
negligence against defendants Terence Naumann, M.D., Thomas
Chittenden Health Center, PLC, Bela Ratkovits, M.D., and Fletcher Allen
Health Care, Inc. (“Fletcher Allen”). Plaintiff has deposed the defendant
doctors and now seeks to depose doctors employed by Fletcher Allen.
Plaintiff has filed a motion to compel Fletcher Allen to make two of its
doctors available for deposition.1 Fletcher Allen opposes the motion and
1
A third doctor, Dr. Alsofrom, was included in the motion but has since
been deposed by Plaintiff’s counsel.
has moved, pursuant to V.R.C.P. 26(c), to protect the two doctors from
being deposed. For the reasons stated below, Fletcher Allen’s motion to
protect is denied. The court withholds judgment on Plaintiff’s motion to
compel, pending Plaintiff’s demonstration that the information sought is
relevant.
“Parties may obtain discovery regarding any matter, not privileged,
which is relevant to the subject matter involved in the pending action . . . .”
V.R.C.P. 26(b)(1). This relatively broad rule may be constricted when a
party from whom discovery is sought shows a need for protection “from
annoyance, embarrassment, oppression, or undue burden or expense.”
V.R.C.P. 26(c). “In other words, even though the information sought may
be relevant and not privileged under 26(b)(1), the court may refuse to order
a party to produce it. Schmitt v. Lalancette, 175 Vt. 284, 288 (2003).
Fletcher Allen opposes Plaintiff’s motion to compel by challenging the
relevance of any evidence the two doctors could provide and supports its
motion to protect by stressing the burden posed by allowing the doctors to
be deposed.
Plaintiff alleges that the defendants negligently failed to diagnose a
brain tumor. His case turns upon the appropriate standard of care for
interpreting CT scan results and the potential use of MRI scans to correctly
diagnose the tumor. The two remaining doctors Plaintiff seeks to depose,
Drs. Braff and Sturtevant, are current chairpersons of the Neuroradiology
Department and Radiology Department, respectively. Evidence suggests
that neither doctor held his or her current position at the time of the alleged
negligence and that Dr. Braff was not employed by Fletcher Allen until
after the alleged negligence occurred.
Plaintiff’s motion to compel does not argue the relevance of
deposing Drs. Braff and Sturtevant. Instead, Plaintiff relies on an off-the-
record conference between the parties held in chambers with Judge Katz.
Unfortunately, without a record the court is unable to confirm what was
decided there. The court cannot rule out the possibility that the doctors’
depositions might lead to relevant evidence, but it does not wish to
speculate what the relevance might be. Given that neither doctor appears to
have had a role in the alleged negligence, either as a treating physician or
supervisor, their relevance is not immediately obvious. Therefore, a ruling
on Plaintiff’s motion to compel is withheld, pending Plaintiff’s providing a
theory of relevance.
Fletcher Allen, in support of its motion to protect, seems to rely
primarily on its relevancy argument. Relevancy, however, is not a basis for
a protective order. See V.R.C.P. 26(c). Fletcher Allen also mentions that
depositions would take these doctors away from their busy practices, but
does not demonstrate that the burden or expense in this case is “undue.” Id.Fletcher Allen’s motion to protect is therefore denied.
Accordingly, Defendant Fletcher Allen Health Care, Inc.’s motion to
protect is denied. The court withholds judgment on Plaintiff Brian
Fitzgerald’s motion to compel discovery pending demonstration of the
relevance of the information sought.
Dated at Burlington, Vermont this ___ day of May, 2005.
______________________
Hon. Richard W. Norton
Presiding Judge