Powers v. Memorial Sloan Kettering Cancer Center

Background

The order addressed multiple discovery and case-management requests. The deadline for completing all fact discovery had previously been extended to November 25, 2020. Plaintiff sought additional time to complete the deposition of Dr. Ronald DeMatteo, take the depositions of Dr. Nancy Kemeny and Dr. Constantinos Sofocleous, and complete third-party discovery from Ethicon, Inc. Plaintiff also sought an order requiring Memorial Sloan Kettering to produce a new witness prepared to testify about certain information-technology matters.

Plaintiff separately challenged Defendants’ assertion of New York medical peer-review privilege and sought to compel production of audit trails and metadata for certain electronic medical records. Plaintiff also sought supplemental responses to discovery requests. Defendants sought to compel a HIPAA-compliant authorization allowing inspection of original pathology specimens or preparation of new sections from specimens related to Erika Zak’s liver biopsy, asked the court to require future filings by 5:00 p.m. on the due date, and requested that seven family members or friends who had not been deposed be barred from testifying at trial about liability.

Discovery extensions and deposition requests

The court granted Plaintiff’s requests to take the depositions of Dr. Nancy Kemeny and Dr. Constantinos Sofocleous. The court granted Plaintiff’s request to extend the deadline for completing third-party discovery from Ethicon. The court granted in part Plaintiff’s request to extend the fact-discovery deadline. The deadline was extended to December 20, 2020, solely to complete Dr. Ronald DeMatteo’s deposition, conduct the depositions of Dr. Nancy Kemeny and Dr. Constantinos Sofocleous, and complete third-party discovery from Ethicon.

Regarding the requested new information-technology witness, the court directed Defendants to file a copy of the deposition transcript cited in their responsive letter. The court stated that it would decide the parties’ papers on that issue after reviewing the transcript. The order therefore did not rule on the merits of that request.

Privilege assertions

The court directed Defendants to file a supplemental affidavit clarifying whether the withheld emails were part of the formal review process for Dr. Constantinos Sofocleous and whether the Quality Assurance review was conducted as part of a hospital-wide plan to improve quality and prevent malpractice. The court also directed Defendants to file under seal and submit for in-camera review, meaning private review by the judge, the withheld email authored by Dr. Sofocleous and addressed to Jorge Capote and the Legal Department.

Motions to compel

The court construed Plaintiff’s pre-motion letter concerning audit trails and metadata as a motion to compel and denied it under the court’s earlier order, as untimely and not proportional to the needs of the case. The court also construed Plaintiff’s separate pre-motion letter concerning metadata and audit trails related to Ms. Zak’s consent visits as a motion to compel and denied it for substantially the reasons stated in Defendants’ response.

The court construed Plaintiff’s request for supplemental discovery responses as a motion to compel and denied it as untimely and not proportional to the needs of the case.

The court construed Defendants’ request for an authorization concerning the pathology specimens as a motion to compel and denied it as untimely and not proportional to the needs of the case. The court also denied Defendants’ request to require future filings by 5:00 p.m. on their due dates because the applicable electronic-filing rules allowed a filing before midnight local time to be timely.

Proposed trial witnesses

The court denied Defendants’ request to preclude the seven family members or friends from testifying at trial about liability. The denial was without prejudice to renewal as a motion in limine if Plaintiff identified any of those individuals as trial witnesses.

Disposition

This was a discovery-management order, not a decision on the underlying claims. The court granted some discovery requests, granted the fact-discovery extension in part, denied several motions to compel, and denied the witness-preclusion request without prejudice. The clerk was directed to close the motions at Docket Nos. 117, 119, 122, 127, 133, and 135.