Samaan v. St. Joseph Hosp.

• Decision Date: 06 December 2010
• Docket Number: No. 1:09–cv–00656–JAW.,1:09–cv–00656–JAW.
• Citation: 744 F.Supp.2d 372
• Parties: Anton K. SAMAAN, Plaintiff,v.ST. JOSEPH HOSPITAL, et al., Defendants.
• Court: U.S. District Court — District of Maine

744 F.Supp.2d 372

Anton K. SAMAAN, Plaintiff,

v.ST. JOSEPH HOSPITAL, et al., Defendants.

No. 1:09–cv–00656–JAW.

United States District Court, D. Maine.

Dec. 6, 2010.

John P. Flynn, III, Daniel G. Lilley Law Offices, P.A., Portland, ME, for Plaintiff.James F. Martemucci, L. John Topchik, Germani Martemucci Riggle & Hill, Jeffrey D. Russell, Thomas V. Laprade, Lambert Coffin, Portland, ME, for Defendants.

ORDER

JOHN A. WOODCOCK, JR., Chief Judge.

With a Daubert ¹ hearing scheduled for hearing in a matter of days, the parties are locked in an intractable dispute over a few hundred dollars about whether the cost of videoconferencing should be split by two or three. Concluding that for purposes of the upcoming hearing, the Defendants' positions are identical, the Court orders the cost of videoconferencing be divided by two.

I. STATEMENT OF FACTS

On October 14, 2010, the Court denied Dr. David Kaplan's motion to exclude the expert testimony of Dr. Ravi Tikoo concerning the likely consequences of his alleged failure to administer tissue plasminogen activator (t-PA). Order on Mot. in Limine, 744 F.Supp.2d 367, 2010 WL 4053672 (D.Me.2010). In the Order, however, the Court suggested that “it would benefit from a greater understanding of the foundation for the experts' opinions and from more illuminating and less adjectival advocacy.” Id. at 372, at 9. Taking the Court's cue, Dr. Kaplan moved for a Daubert hearing on the expert witness issue.² Def. David Kaplan, M.D.'s Mot. for Recons. of the Court's Order on his Mot. for Summ. J. or in the Alternative for a Daubert Hearing on the Admissibility of the Opinions of the Pl.'s Causation Expert (Docket # 53). Mr. Samaan responded and Dr. Kaplan replied, and on November 15, 2010, the Court granted the motion for a Daubert hearing. Order Granting Mot. for Daubert Hearing (Docket # 68) ( Order ). On November 17, 2010, the Court held a telephone conference of counsel and encouraged the parties to use videoconferencing to minimize the expense of expert testimony. After consulting with counsel, the Court scheduled the Daubert hearing for December 9, 2010.

On December 3, 2010, after being informed that counsel had reached an impasse regarding the upcoming Daubert hearing, the Court held another telephone conference. The essence of the dispute is the division of the cost of the videoconferencing, which is estimated to be roughly $2,640.³ The Plaintiff wants the cost divided by three and the Defendants want the cost divided by two. Under Mr. Samaan's calculation, he would be responsible for about $880 and each Defendant would be responsible for the same; under the Defendants' calculation, Mr. Samaan would be responsible for $1,320, and each Defendant for $660. Thus, as the parties are unable to compromise, the Court must intervene in a dispute involving $440 for the Plaintiff and $220 for each Defendant.

Mr. Samaan's basic point is that his case is against both Dr. Kaplan and St. Joseph Hospital and since there are three parties, the cost of videoconferencing should be split three ways. The Defendants disagree. They contend that when they wish to be treated as separate defendants, Mr. Samaan objects and insists that they be treated as one. For example, they point to a discovery dispute in which, at Mr. Samaan's urging, the Magistrate Judge treated the Defendants as one entity for purposes of asking interrogatories.

However, the Defendants maintain that whenever it suits him, Mr. Samaan switches position and demands they be treated separately. Thus, St. Joseph pressed its understanding that Mr. Samaan's claim against the Hospital is purely a vicarious liability claim, hinging on Dr. Kaplan's liability as its Emergency Room physician, and both Defendants asserted that Mr. Samaan has been playing coy about whether he is going to assert a direct liability claim against the Hospital. They charge that even now, as discovery has closed and trial is looming, they still do not know Mr. Samaan's theory of the case against St. Joseph Hospital.

Mr. Samaan replied in effect that it is Dr. Kaplan who is to blame, since the Doctor has said different things at different times about a critical fact. When Mr. Samaan was on the plane heading for the United States and began to experience symptoms, a physician volunteered to perform an assessment, diagnosed a stroke, and directed the plane to land quickly. Further, the physician, presumably realizing that the time of the onset of the stroke was critical, apparently wrote the time down and this critical piece of information was passed to hospital employees. According to Mr. Samaan, Dr. Kaplan has been inconsistent about whether the hospital employees gave him this critical information when Mr. Samaan was in the St. Joseph Emergency Room. If the hospital employees did so, it is unlikely St. Joseph would be independently liable, but if they failed to do so, there could be a separate basis for liability inculpating the Hospital and exculpating the Doctor. Thus, Mr. Samaan says, he cannot definitively decide whether his claim against St. Joseph Hospital is direct, vicarious, or a combination of the two until Dr. Kaplan definitely decides whether he did or did not receive this critical information.

Finally, Mr. Samaan says that for him a few hundred dollars is a substantial amount of money. He is now significantly disabled from the stroke and is living in New York City on a small monthly allotment. He contrasts his financial straits with the apparent assets of the Defendants and their insurers.

II. DISCUSSION

The parties' charges and countercharges over larger issues of discovery, theories of liability, shifting positions, and...