Med. Assurance Co. Inc. v. Weinberger

• Decision Date: 20 June 2011
• Docket Number: Case No. 4:06 cv 117
• Parties: THE MEDICAL ASSURANCE COMPANY, INC., Plaintiff v. MARK S. WEINBERGER, M.D., et al., Defendants
• Court: U.S. District Court — Northern District of Indiana

THE MEDICAL ASSURANCE COMPANY, INC., Plaintiff

v.MARK S. WEINBERGER, M.D., et al., Defendants

Case No. 4:06 cv 117

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA LAFAYETTE DIVISION

ENTERED: June 20, 2011

OPINION AND ORDER

This matter is before the court on the Motion for Discovery Sanctions of the Plaintiff, the Medical Assurance Company, Inc., as to the Weinberger Defendants [DE 246] filed on April 4, 2011; the Motion for Protective Order [DE 248] filed by Medical Assurance on April 7, 2011; and the Motion to Compel the PCF's Answers to Interrogatories [DE 261] filed by Medical Assurance on April 13, 2011. For the following reasons, the Motion for Discovery Sanctions of the Plaintiff [DE 246] is DENIED, the Motion for Protective Order [DE 24 8] is GRANTED IN PART and DENIED IN PART, and the Motion to Compel the PCF's Answers to Interrogatories [DE 261] is DENIED.

Background

This matter arises from an insurance coverage dispute concerning liability for approximately 350 pending medical malpractice claims against Dr. Mark S. Weinberger and his businessentities (the Weinberger defendants). This case originally was filed in 2006, and was subject to stay until July 13, 2010. On appeal, the Seventh Circuit lifted the stay, and the case now is moving toward final disposition.

Discovery was set to close on December 31, 2010. However, the court noted in the January 7, 2011, docket entry that new discovery dates would be set at the May 5, 2011, status conference and ordered discovery re-opened. Throughout the course of the litigation, the parties have struggled to resolve discovery disputes independently.

After the stay was lifted, Medical Assurance served interrogatories upon the Weinberger defendants. The Weinberger defendants' responses were due on March 2, 2011, and on this day, the attorney for the Weinberger defendants, John Morse, moved for and was denied an extension of time to respond. Medical Assurance contacted Morse on multiple occasions to inquire when it could expect responses to the interrogatories. Medical Assurance twice agreed to extend the time for the Weinberger defendants to respond. The responses ultimately were due on March 22, 2011.

Morse represents that upon having his request for extension of time denied, he consulted with Weinberger's criminal defense attorney to prepare responses to the interrogatories. Weinberger and his business entities cited the Fifth Amendment and declinedto answer several of the interrogatories. Although the Weinberger defendants responded to the interrogatories, Medical Assurance now moves the court to sanction the Weinberger defendants for failing to respond timely and completely to the discovery request. Morse represents that the Weinberger defendants are preparing supplemental responses, and Weinberger's business entities will not refuse to respond on Fifth Amendment grounds.

Medical Assurance also moves to compel Stephen W. Robertson, Commissioner of the Indiana Department of Insurance and Administrator of the Indiana Patient's Compensation Fund (PCF), to respond to the interrogatories it served upon PCF. The interrogatories question the factual basis for PCF's claims and defenses and inquire about PCF's position on certain issues. PCF objects, arguing that the interrogatories are contention interrogatories and that compelling responses at this point of the litigation would be premature.

PCF served its own discovery upon Medical Assurance, including deposition notices explaining the subjects it intends to explore at the deposition. Among those deposition subjects are the facts relating to the underlying medical malpractice claims. Medical Assurance argues that the underlying malpractice claims are irrelevant to the present matter and exceed the scope of its pending motion for summary judgment to which discovery must belimited. Medical Assurance requests a protective order, striking certain subjects from PCF's deposition notice. The court will address these disputes in turn.

Discussion

The plaintiff, Medical Assurance, first requests sanctions against the Weinberger defendants for failing to respond to its written discovery requests. Although the Weinberger defendants submitted a response to Medical Assurance's interrogatories, Medical Assurance asserts that the responses were incomplete and evasive and should be regarded as a failure to respond. See Federal Rule of Civil Procedure 37(a)(4) (stating that evasive responses are treated as a failure to respond).

A response is deemed incomplete or evasive when the party does not fully respond with the information presently available that is not subject to a privilege. See Airtex Corp. v. Shelley Radiant Ceiling Co., 536 F.2d 145, 155 (7th Cir. 1976); Watkinson v. Great Atlantic & Pacific Tea Co., 38 Fed. R.Serv.2d 1310 (E.D. Pa. 1984). See generally Alliance to End Repression v. Rochford, 75 F.R.D. 438, 440 (N.D. Ill. 1976) (explaining that the defendant's interrogatory answers that failed to discuss defendant's personal knowledge were incomplete). Rule 37(d) addresses a party's remedies when another party fails to respond to its request for interrogatories:

(d) Party's Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or

Respond to a Request for Inspection.

(1) In General.

(A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if:

* * *

(ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response.

* * *

(3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.

Under Rule 37(b)(2)(A), the available sanctions include:

(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

(v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party.

Sanctions generally are imposed only where the party unjustifiably refuses to comply with discovery. Alliance to End Repression, 75 F.R.D. at 440 (explaining that the failure to comply must be willful); Rule 37 Advisory Committee Notes. The most severe sanctions, including dismissal, should be issued only when the failure to comply was the result of willfulness or bad faith, the deterrent value of Rule 37 cannot be achieved by the use of less drastic sanctions, or the failure to comply has prejudiced the opposing party's preparation for trial. See Metropolitan Life Insurance Company v. Cammon, 1989 WL 153558, *5 (N.D. Ill. 1989). See also National Hockey League v. Metro Hockey Club, Inc., 427 U.S. 639, 640, 96 S.Ct. 2778, 2779, 49 L.Ed.2d 747 (1976) (holding that 17 months of unanswered interrogatories combined with flagrant bad faith and callous disregard was ample justification to dismiss as a necessary deterrent).Nonetheless, "the Seventh Circuit has cautioned that a dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations." Govas v. Chalmers, 1989 WL 157506, *3 (N.D. Ill. 1989); Poulos v. Naas Foods, Inc., 959 F.2d 69, 75 (7th Cir. 1992)(referring to dismissal as a "drastic sanction" and noting that "we have recommended that courts consider lesser sanctions before imposing default judgments."); In re Thomas Consolidated Industries, Inc., 456 F.3d 719, 724-25 (7th Cir. 2006); Greviskes v. University Research Association, Inc., 417 F.3d 752, 759 (7th Cir. 2005) (imposing sanction of dismissal when plaintiff hid behind "a cloak of further fraud and deceit."). See also Bolanowski v. GMRI, Inc., 178 Fed.Appx. 57 9, 581 (7th Cir. 2006).

The Weinberger defendants admit that their responses to Medical Assurance's interrogatories were not complete and explain that this was due in part to the need for an extension of time to comply fully. The Weinberger defendants' attorney, John Morse, represents that after he requested and was denied an extension of time to respond he consulted with Weinberger's criminal defense attorney and prepared the discovery responses asserting Fifth Amendment rights. Morse contests that the court never explicitly stated that the Weinberger defendants could not assert the Fifth Amendment in response to discovery requests. The Weinbergerdefendants currently are preparing supplemental responses and do not intend to raise the Fifth Amendment as an objection to the discovery requests.

It appears that Morse attempted to circumvent the order denying him an extension of time to respond to discovery. He took it upon himself to extend the discovery deadline by raising clearly unfounded objections to the interrogatories with the intent to supplement his responses at a later date. It is well established that the Fifth Amendment right against self incrimi-nation is a right reserved to individuals and cannot be raised by corporate entities. Braswell v. United States, 487 U.S. 99, 10506, 108-09, 108 S.Ct. 2284, 2289, 101 L.Ed.2d 98 (1988) (explaining that a corporate officer could not assert the Fifth Amendment right against self incrimination in response to a federal grand jury subpoena); Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974) (explaining that a partner in a partnership could not refuse to produce records by asserting the Fifth Amendment); ...