Free Motion to Quash - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' MOTION TO QUASH SUBPOENA OF DR. STEPHEN BROWN/ MOTION FOR PROTECTIVE ORDER

Pursuant to Rules 45 and 26(c), Federal Rules of Civil Procedure, Defendants respectfully request that the subpoena compelling Dr. Stephen Brown's appearance to testify at the trial scheduled to begin on January 9, 2007 be quashed based on non-disclosure of this witness and because Defendants have withdrawn Dr. Brown as a witness.1 Fed. R. Evid. 45(c)(3) states that a subpoena can be quashed if it subjects a person to undue burden. Plaintiff's subpoena disrupts Dr. Brown's medical practice and causes him economic harm.

1

See Subpoena to Dr. Stephen Brown, Exhibit 1.

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I.

FACTUAL BACKGROUND Dr. Brown is an orthopedic physician. He was retained by Defendants as a

testifying expert and disclosed on August 2, 2004. Dr. Brown issued a 26(a) (2)(b) report containing his opinions. See Exhibit 2. Plaintiff never listed Dr. Brown as a witness in her Rule 26 statement, nor indicated he would be called in as a witness in her section of the Joint Pretrial Order. At the December 15, 2006 Pretrial Conference, during argument on Plaintiff's Motion in Limine to exclude Dr. Brown as a witness from trial, defense counsel advised the Court and counsel that Defendants were withdrawing Dr. Brown as a witness from trial. Since then, Defendants have "officially" notified Plaintiff of their withdrawal of Dr. Brown as well as all exhibits relating to Dr. Brown. Despite Defendants' withdrawal of Dr. Brown as a witness, Plaintiff issued a subpoena compelling his appearance at trial for January 9, 2007 which is in Plaintiff's case in chief. Defendants requested Plaintiff withdraw the subpoena, but Plaintiff refused. Defendants explained that Dr. Brown is holding open this day, unable to schedule patients, and is losing revenue, all to testify for Plaintiff in a case where he has been withdrawn as Defendants' witness and has never been listed as Plaintiff's witness. Defendants have communicated with Plaintiff several times in an effort to resolve this matter to no avail. See correspondence attached as Exhibit 3. II. LEGAL ARGUMENT A. The subpoena should be quashed and protective order issued. Rule 45(c)(3) allows this Court to protect Dr. Brown from appearing at trial where he has been withdrawn as a testifying witness and has never been listed as a witness by Plaintiff. Ferguson v. Michael Foods, Inc., 189 F.R.D. 408 ( D. Minn. 1999) is on

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point. In that case plaintiff sought to call defendants' medical expert as an adverse witness during her case in chief after the defendants had withdrawn the expert. 189 F.R.D. at 409. Defendants in that case had disclosed the medical expert in compliance with the judge's strict discovery deadline and plaintiff had made no such disclosure. One week before trial began, plaintiff informed defendants of her intent to call the witness at trial. Noting that designating an expert witness does not create an "entitlement" to use an opposing parties expert at trial the court held that plaintiff should not be able call defendants' witness at trial. Id. The court held that allowing the plaintiff to use the expert at trial would "(1) perversely reward the plaintiff for not timely designating its own expert; (2) perversely penalize defendants for adhering to the magistrate's scheduling order; and (3) undermine a principal objective of Rule 26, namely, `to prevent a party from piggybacking on another party's trial preparation.'" 189 F.R.D. at 409, quoting House v. Combined Ins. Co. of Am., 168 F.R.D. 236 (N.D. Iowa 1996). The court also expressed concern about the unfair prejudice defendants would suffer if the jury found out that defendants had initially hired the expert and then withdrawn him upon learning of his opinion. 189 F.R.D. at 410. In the instant case Plaintiff has mirrored the actions of the plaintiff in Ferguson by failing to disclose this witness before the discovery deadline and announcing her intention to call Dr. Brown as a witness at the eleventh hour. Allowing Plaintiff to call Dr. Brown as a witness effectively allows her to circumvent the disclosure deadline and the requirements of Rule 26(a)(2)(B). In addition, Alper v. U.S. is instructive. In Alper, 190 F.R.D. 281 (D. Mass. 2000), the Court granted a Motion to Quash where a party subpoenaed a witness to testify at trial and included a request for production of documents. The Court found that the subpoena requesting documents at trial, which should have been issued during the course of discovery, should be quashed "because it improperly circumvented the discovery
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schedule." Rule 26(c), F.R.C.P., authorizes the Court to issue an order shielding Dr. Brown from being called as a witness in this case. Defendants respectfully request such an order be made. In this case, Plaintiff has similarly attempted to "circumvent the discovery schedule" by subpoenaing an expert witness that Defendants have withdrawn. Dr. Brown was listed as an expert witness by Defendants on August 2, 2004 and withdrawn by Defendants on December 15, 2006. On December 13, 2006, Plaintiff's counsel sent Dr. Brown correspondence and a "subpoena in a civil case" demanding that he appear as a witness in the subject trial. Defendants object to Dr. Brown as a witness because he has been withdrawn as a witness by Defendants, Plaintiff never listed this witness in her Rule 26 Statement or answers to discovery, nor did she prepare a Rule 26(a)(2)(B) Report for Dr. Brown. B. Dr. Brown is entitled to reasonable fees if called to testify. If the subpoena is not quashed, Dr. Brown is entitled to be paid for his time testifying and preparation for his testimony. Rule 26(b)(4)(c), Fed. RC.P., requires a party seeking discovery from another's expert to pay the reasonable fees spent in responding to the discovery. While testimony at trial may not be considered true "discovery", in this case it should be since Plaintiff never deposed Dr. Brown before trial, so calling him at trial will be like taking his deposition. Further, Dr. Brown has closed this matter. Re-opening for Plaintiff, getting back up to speed just for her, is no different than preparing to respond to "discovery". Further, if Dr. Brown is called, Dr. Brown's testimony is based on the materials that he reviewed as an expert and his examination of Plaintiff and any testimony must be limited to that disclosed in his expert report. Dr. Brown is entitled to be paid his
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fees which are $2,000 for the first two hours and $500 for each hour after, rather than the $45 witness fee. Dr. Brown estimates that to prepare and testify at trial will cost $2,960. See. Exhibit 4. If Plaintiff desires to call Dr. Brown as an expert witness, she must bear the cost of his testimony. C. Dr. Brown is entitled to sanctions and defendants their reasonable attorneys fees incurred in bringing this motion. Rule 26(c) empowers the Court to award attorneys fees for the bringing of this Motion. Defendants respectfully request that the Court award reasonable attorneys fees.
III. CONCLUSION

Based on the foregoing, Defendants respectfully request that the Court quash Plaintiff's Subpoena compelling Dr. Brown to testify at the trial scheduled to begin on January 9, 2007, issue the Protective Order and award Defendants their attorneys fees and costs. DATED this 8th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Kathleen L. Wieneke Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson Electronically filed and served this 8th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST

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COPY hand delivered this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

By

/s/Victoria G. Wells

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