Powers v. Memorial Sloan Kettering Cancer Center

Background

The parties submitted a joint letter in response to the court’s September 23, 2020 order. The court had asked them to identify each remaining fact witness, provide firm deposition dates, describe anticipated expert discovery beyond treating physicians, identify fact witnesses to be deposed, and explain why they needed additional time for expert discovery.

The letter listed completed and planned depositions involving the plaintiff, Steve Powers, Kathy Zak, treating physicians, social workers, medical providers, Memorial Sloan Kettering Cancer Center personnel, Ethicon, Inc., and other witnesses. Some dates were not confirmed, and the parties had objected to certain subpoenas and deposition notices.

Discovery issues described by the parties

The defendants objected to the plaintiff seeking more than ten depositions without first obtaining permission under Federal Rule of Civil Procedure 30(a)(2)(A)(i). They argued that the witness list was extensive, potentially cumulative, and imposing unnecessary costs. The plaintiff responded that the matter involved extensive treatment at multiple institutions and therefore more witnesses might have relevant information.

The defendants also objected to a subpoena for Stephen Solomon, M.D., asserting that medical records showed he was not involved in Erika Zak’s care and treatment. They said he would provide an affidavit and asked that the subpoena be withdrawn after the affidavit was received.

The defendants further objected to the plaintiff’s amended deposition notice seeking information from Memorial Sloan Kettering’s systems and records. They contended that the notice had deficiencies and opposed additional corporate depositions concerning substantive matters and defenses. The defendants also believed that additional damages witnesses would provide cumulative testimony, while the plaintiff’s counsel agreed to consider whether another witness might be more knowledgeable.

The plaintiff anticipated using retained experts, including an interventional radiologist and an economist, and possibly an oncologist, hepatologist, or other liver expert. The plaintiff also anticipated deposing experts designated by the defendants, then expected to number four. The parties said expert review would require more time because of more than 20,000 pages of medical records, medical and scientific literature, missing radiology films, possible pathology materials, and the expected completion of fact depositions and transcripts near the end of 2020 or later.

Court’s directive

The parties requested an additional sixty days, through March 31, 2021, to complete expert discovery. The order did not grant or deny that request and did not resolve the listed discovery disputes. Instead, the court stated that a telephone conference would be held on October 7, 2020, at 2:00 p.m., to discuss the parties’ proposed extensions to the discovery deadlines in the case management and scheduling order.

Judge Lorna G. Schofield also directed the parties to meet and confer by noon on October 6 about previously raised discovery disputes, excluding the disputes in the October 2 joint letter and including disputes identified in the September 30 joint letter and the plaintiff’s September 30 letter. The parties were required to file a joint letter identifying any disputes that remained for the court to resolve.