Free Motion to Compel - District Court of Colorado - Colorado

Case 1:04-cv-01187-PSF-MJW

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Filed 08/03/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa Civil Action No. 04-F-1187 (MJW) SUSAN PENA, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, and SUZANNE LIENING, Defendants.

PLAINTIFF'S MOTION TO COMPEL F.R.C.P. 30(b)(6) DEPOSITION Comes now the Plaintiff, Susan Pena, by and through her attorneys, Bendinelli Law Office, P.C., and submits PLAINTIFF'S MOTION TO COMPEL F.R.C.P. 30(b)(6) DEPOSITION, stating and alleging as follows: CERTIFICATION Pursuant to D.C.COLO.L.CivR 7.1(A), Plaintiff's counsel conferred with Defendants' counsel on numerous occasions. See Defendant's March 2, 2005 letter, attached hereto as EXHIBIT 1; Plaintiff's April 1, 2005 letter, attached hereto as EXHIBIT 2; Defendant's April 7, 2005 letter, attached hereto as EXHIBIT 3; Plaintiff's April 11, 2005 letter, attached hereto as EXHIBIT 4; Parties April 11, 2005 emails, attached hereto as EXHIBIT 5; Defendant's April 11, 2005 letter, attached hereto as EXHIBIT 6; Defendant's April 12, 2005 letter, attached hereto as EXHIBIT 7; Plaintiff's April 12, 2005 letter, attached hereto as EXHIBIT 8; Plaintiff's May 16, 2005 letter, attached hereto as EXHIBIT 9; Defendant's May 16, 2005 letter, attached hereto as EXHIBIT 10; Defendant's May 17, 2005 letter, attached hereto as EXHIBIT 11; Plaintiff's May 20, 2005 letter, attached hereto as EXHIBIT 12; Defendant's June 2, 2005 letter, attached hereto as EXHIBIT 13; Plaintiff's June 10, 2005 letter, attached hereto as EXHIBIT 14; Defendant's June 16, 2005 letter, attached hereto as EXHIBIT 15; Plaintiff's June 20, 2005 letter, attached hereto as EXHIBIT 16; Defendant's June 21, 2005 letter, attached hereto as EXHIBIT 17; Plaintiff's June 21, 2005 letter, attached hereto as EXHIBIT 18. Despite conferring, the parties were unable to resolve the below issues.

Case 1:04-cv-01187-PSF-MJW

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BACKGROUND This case arises out of Travelers Property Casualty Insurance Company's (hereinafter "Defendant Travelers") and claims adjuster, Suzanne Liening's (hereinafter "Defendant Liening") bad faith handling of Plaintiff's workers' compensation claim. Plaintiff was injured in a work-related incident on March 7, 1999. As a result of her accident, she sustained a comminuted compound left ankle fracture requiring five (5) surgeries (including an ankle fusion) and a subsequent diagnosis of RSD. Since Plaintiff does not have a car or a driver's license, her treating physician, Dr. Steven Morgan ordered alternative transportation (taxi cab vouchers) as a medical necessity. On October 18, 2001 without change in the Plaintiff's circumstances (other than a new claim's adjuster assigned to the case (Defendant Liening)), Defendants refused to authorize further taxicab vouchers for Plaintiff. On November 1, 2001, Dr. Morgan sent a letter to Defendants, outlining the medical necessity of the taxicab vouchers. Despite this letter, Defendants refused to issue Plaintiff the taxicab vouchers. As a result of Defendants' unreasonable denial, Plaintiff was unable to attend critical medical appointments. Plaintiff was forced to miss an emergency psychiatric evaluation (Dr. Morgan's referral in response to Plaintiff's verbalization of suicidal idealizations) and other rehabilitation appointments for her ankle. Instead of providing the medically necessary vouchers, Defendant dispatched a surveillance team. Plaintiff was forced to file for a Workers' Compensation hearing for the care she required. On March 26, 2002, Administrative Law Judge Barbara S. Henk issued a Specific Findings of Fact, Conclusions of Law and Order stating that the Defendant willfully and unreasonably failed or refused to provide transportation to and from medical appointments from December 6, 2001 to March 26, 2002. The Order further stated that the behavior of the carrier was a willful refusal to provide medical treatment and their actions were unreasonable under an objective standard. In ALJ Henk's Specific Findings of Fact, Conclusions of Law and Order, Defendant was penalized $100.00 per day, from December 6, 2001 to March 26, 2002. After subsequent appeals, the Court of Appeals upheld ALJ Henk's findings. INTRODUCTION Plaintiff's counsel traveled to Dallas to depose Defendant Liening on April 18, 2005. Following Defendant Liening's deposition, Plaintiff requested a F.R.C.P. 30(b)(6) deposition of a Defendant Travelers' representative. On April 19, 2005, Plaintiff sent an area of inquiry notice in compliance with F.R.C.P. 30(b)(6). See Plaintiff's April 19, 2005 letter, attached hereto as EXHIBIT 19. Plaintiff's inquiry list consisted of the following:

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1. 2. 3.

4.

5.

Policies and procedures for Travelers' adjusters/employees relating to the handling of Colorado workers' compensation claims; Policies and procedures for Travelers' adjusters/employees relating to conducting surveillance on claimants, including knowledge of all manuals, guides, employee handbooks, and training materials regarding the same; Policies and procedures for Travelers' adjusters/employees relating to the issuance of taxicab vouchers and/or medical transportation, including knowledge of all manuals, guides employee handbooks, and training materials of the same; Policies and procedures for Travelers' adjusters/employees relating to ordering independent medical examinations for workers compensation claimants, including knowledge of Colorado Workers' Compensation law and knowledge of all Travelers' manuals, guides employee handbooks, and training materials regarding the same Travelers' policies and procedures for maintaining electronically generated information, including e-mails;

See EXHIBIT 19. Defendant Travelers will not agree to a proper F.R.C.P. 30(b)(6) deposition. Travelers refused to name a proper designee and instead stated that Plaintiff can redepose Defendant Liening. Defendant Liening is a named Defendant, and not a proper designee for Travelers. Attempting to produce co-Defendant Liening as a representative for Defendant Travelers is an attempt to circumvent Plaintiff's right of discovery and impedes the truth-finding process. For the following reasons, Defendant Travelers should be compelled to produce an appropriate representative of Travelers. ARGUMENT The scope of discovery is largely within the trial court's discretion. In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998). The trial court may control, limit, or prevent discovery that will not promote the administration of justice in the particular case. Hauk v. Superior Court of Los Angeles County, 391 P.2d 825 (1964); Jones v. Iowa State Highway Commission, 157 N.W.2d 86 (1968). Here, designating Defendant Liening is inappropriate and is an abuse of Defendant Travelers' right to chose its representative pursuant to C.R.C.P. 30(b)(6). Plaintiff is seeking information regarding Defendant Travelers' policies and procedures; the same policies and procedures of which Defendant Liening allegedly failed to comply. Defendant Liening is a party to this case and has her own interests to protect. Since she has already testified in this case, Plaintiff should have the right to seek truthful testimony that may contradict Defendant Liening's prior testimony. Permitting Defendant Liening to testify for Defendant Travelers will essentially foreclose Plaintiff's right to a C.R.C.P. 30(b)(6) deposition, since Defendant Liening's deposition was already taken. Given her conflict of interest, her testimony as a designee

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is not proper. As the trial court is charged with the duty to direct discovery that promotes the administration of justice, the court should Order Defendant Travelers' to designate a representative who is not a named party to testify regarding the aforementioned areas of inquiry. CONCLUSION WHEREFORE, Plaintiff respectfully requests that this Court compel Defendant Travelers to designate a F.R.C.P. 30(b)(6) representative, other than Defendant Liening, for deposition. Dated this 3rd day of August 2005. Respectfully Submitted, BENDINELLI LAW OFFICE, P.C. _______________________________ Marc F. Bendinelli, (# 28425) W. Joseph Lapham II, (#35061) Attorney for Plaintiff 11184 Huron St., Suite 10 Denver, CO 80234 (303) 940-9900

By:

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of August 2005, a true and correct copy of the foregoing PLAINTIFF'S MOTION TO COMPEL F.R.C.P. 30(b)(6) DEPOSITION was: Served via Facsimile transmission;

and was addressed to: Erik R. Neusch MONTGOMERY, KOLODNY, AMATUZIO & DUSBABEK, L.L.C. 475 17th St., 16th Floor Denver, CO 80202 United States District Court Clerk's Office - Civil Alfred A. Arraj United States Courthouse 901 19th Street Denver, Colorado 80294-3589

____________________________ Sarah Holliday

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