Fung-Schwartz v. Cerner Corporation

Background

Plaintiffs Dr. Jennifer Fung-Schwartz and Jennifer Fung-Schwartz, DPM, LLC disputed discovery with defendants Cerner Healthcare Solutions, Inc. and Cerner Corporation. The disputes concerned: (1) defendants’ request for a protective order limiting a deposition notice under Federal Rule of Civil Procedure 30(b)(6); (2) plaintiffs’ request for billing data in electronic form; and (3) plaintiffs’ request to preclude four potential trial witnesses or, alternatively, expand the deposition topics. The court held a discovery conference on August 27, 2020, and stated that the order memorialized rulings made orally at that conference.

Rule 30(b)(6) Deposition

A Rule 30(b)(6) deposition requires an organization to designate and prepare one or more witnesses to testify about specified topics. The court found that all four topics in plaintiffs’ notice were overbroad, disproportionate to the needs of the case, or insufficiently specific. It ordered the deposition to occur by September 17, 2020, with the parties using their best efforts to limit testimony to seven hours in total, subject to allowances for delays caused by remote-deposition technology.

For Topic 1, the designated witness had to address which defendant, corporate affiliate, or third-party contractor performed services under the 2014 revenue-cycle-management contract. The witness also had to discuss Cerner’s contract-management system generally and whether plaintiffs’ sales orders and other contractual documents were countersigned, including whether any missing countersignature affected the parties’ obligations. The court did not require testimony about limitation of liability because it viewed that issue as legal rather than factual.

For Topic 2, the witness had to address Cerner’s interpretation and implementation of Department of Health and Human Services FAQ 2074; Cerner’s policies and practices for changing a customer’s electronic medical-record access because of nonpayment or a billing dispute; and training provided to personnel between the FAQ’s issuance and the alleged October 2016 restriction or cutoff of plaintiffs’ access. A witness also had to address whether defendants countersigned the parties’ 2006 business-associate contract and whether any missing countersignature affected the parties’ obligations under that contract or under the Health Insurance Portability and Accountability Act.

For Topic 3, the witness had to address the October 2016 incidents in which plaintiffs alleged that their electronic medical-record access, or access through Citrix, was restricted or cut off. The court did not require testimony about the January 2017 incident because it was not pleaded and involved an insurance-verification module rather than the electronic medical record.

For Topic 4, the witness had to address the specific business-office-services complaints identified in the second amended complaint. Defendants did not have to provide testimony about each complaint made by individual physicians or private medical practices during the specified period, but they had to assign codes, provide a key, or otherwise give plaintiffs enough information to identify which complaint documents concerned which complainants. The witness also had to address the existence, authenticity, and general nature of the produced complaints; the general nature of the later problem involving approximately 550,000 claims, including dozens of plaintiffs’ claims; and that problem’s specific effect on plaintiffs’ insurance claims.

Billing Data

Plaintiffs sought an order requiring defendants to make billing data available electronically for use by plaintiffs’ expert. Defendants argued that plaintiffs had already received or could access the requested data. Because the court could not resolve the parties’ factual dispute from the written submissions and counsel’s arguments, it ordered their technical experts or consultants to meet and confer by September 3, 2020, with counsel participating. The discussion had to address how to export, extract, or download the billing data, including the complete patient ledger for each patient for whom Cerner submitted a claim or sent a bill or statement. If the dispute continued, the parties had to notify the court by joint letter no later than September 4, 2020, supported by affidavits or other competent testimony from their technical experts.

Four Potential Witnesses

Plaintiffs asserted that defendants had identified four potential witnesses late: Alissa Walters, Casey Sanders, JD Slaughter, and Shawn Lerner. Defendants responded that three had previously been identified in interrogatory responses and that the disclosures followed issues raised by plaintiffs’ deposition notice. The court allowed plaintiffs to serve deposition notices for any of the four by September 4, 2020. For JD Slaughter, who was no longer employed by Cerner, plaintiffs also had to serve a subpoena unless Cerner’s counsel could accept one or arrange a voluntary appearance. The depositions had to be completed by September 25, 2020, and were limited to two hours each.

Discovery Schedule and Disposition

The court extended fact discovery to September 25, 2020, but only for the limited purposes described in the order. It set October 15, 2020, for affirmative expert reports; November 13, 2020, for rebuttal expert reports; and December 15, 2020, for expert depositions. All discovery had to be completed by December 15, 2020. The court described its action as granting some but not all of the requested relief; the opinion does not separately label each letter-motion as granted or denied.