Avilez v. Santiago

Background

The plaintiff, Jimmy Viera, as executor of Melissa Avilez’s estate, brought this Federal Tort Claims Act lawsuit against the United States. The complaint alleges that a federally deemed health center and its medical providers negligently failed to diagnose and treat Avilez’s breast cancer. The plaintiff asserts claims for conscious pain and suffering and wrongful death.

The United States noticed depositions of the plaintiff’s medical experts, Dr. Alexander Hindenberg and Dr. Martin Gubernick, for December 17 and 18, 2019, at the U.S. Attorney’s Office. The plaintiff asked the court to require one deposition to occur at the plaintiff’s court-reporting agency and the other at the plaintiff’s counsel’s office. The plaintiff did not give a specific reason for the request other than suggesting that the alternate locations would be more convenient for the experts. The United States opposed the request, arguing that the party noticing a deposition generally chooses its location and that its office would provide better access to voluminous medical records.

Legal standard

The court explained that the party noticing a deposition usually has the right to choose the location, although the other party may rebut that presumption by showing circumstances favoring a different site. Courts may also designate a location under Federal Rule of Civil Procedure 26(c)’s “good cause” standard, considering cost, convenience, and efficiency of the litigation.

Court’s analysis

The court held that the plaintiff did not rebut the presumption favoring the United States’ chosen location. The plaintiff provided no explicit reason or supporting case law for changing the locations.

The cost factor was neutral because the locations were accessible by public transportation and the difference in travel costs was minimal. Witness convenience was also largely neutral: the suggested locations were near the witnesses’ workplaces and near the U.S. Attorney’s Office, and the United States said it had selected dates accommodating the witnesses’ availability. The balance of convenience considerations nevertheless supported the United States’ position.

Litigation efficiency strongly favored the U.S. Attorney’s Office. The United States represented that the relevant medical records exceeded 8,000 pages. The court found that having easier access to those records would make the depositions more efficient, and it rejected the plaintiff’s argument that the experts had relied on a relatively small portion of the records. The court stated that the United States was entitled to question the witnesses about records it considered relevant.

Ruling

The court denied the plaintiff’s motion to compel. It directed the parties to hold Dr. Hindenberg’s and Dr. Gubernick’s depositions at the dates, times, and location noticed by the United States. The court also directed the plaintiff to file its December 2, 2019 letter on the electronic docket and warned that future failures to follow the court’s rules could result in sanctions.