Wissell v. Fletcher Allen Health Care, Inc., No. 232-2-12 Cncv (Grearson, J., May 22, 2014)

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                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                         CIVIL DIVISION
Chittenden Unit                                                                                        Docket No. 232-2-12 Cncv


HEATHER WISSELL, Individually, and as
Administratrix for the Estate of Dylan M. Wissell
      Plaintiff

           v.

FLETCHER ALLEN HEALTH CARE, INC.
     Defendant

     DECISION AND ORDER ON DEFENDANT’S MOTION TO QUASH RULE 30(b)
                         DEPOSITION NOTICES

        Defendant has filed a motion to quash Plaintiff’s Rule 30(b) deposition notices on the
following bases: (1) the notices are untimely; (2) they seek information that would not tend to
lead to the discovery of relevant evidence; and (3) to the extent they do seek information that
would lead to relevant evidence, such information has already been supplied to Plaintiff. For the
reasons stated below, Defendant’s motion to quash is granted as to one deposition notice
(seeking FAHC’s position and polices on informed consent), and denied as to all others.

           With respect to discovery procedure, Rule 29 provides as follows:

           Unless a Superior Judge orders otherwise, the parties may by written stipulation
           (1) provide that depositions may be taken before any person, at any time or place,
           upon any notice, and in any manner and when so taken may be used like other
           depositions, and (2) modify the procedures provided by these rules for other
           methods of discovery.

V.R.C.P. 29. Rule 30 contains the general requirements for depositions upon oral examination.
“After commencement of the action, any party may take the testimony of any person, including a
party, by deposition upon oral examination.” V.R.C.P. 30(a). “A party desiring to take the
deposition of any person upon oral examination shall give notice in writing to every other party
to the action at least ten days before the time of taking the deposition.” V.R.C.P. 30(b)(1). The
deposition notice must “state the time and place for taking the deposition and the name and
address of each person to be examined, if known, and, if the name is not known, a general
description sufficient to identify the person or the particular class or group to which the person
belongs.” Id.

       V.R.C.P. 30(b)(6) allows for a party to take a deposition of an entity, by deposing
individuals who are designated, by the entity, to speak on behalf of said entity. Specifically,
V.R.C.P. 30(b)(6) states that
       [a] party may in the party’s notice name as the deponent a public or private
       corporation or a partnership or association or governmental agency and designate
       with reasonable particularity the matters on which examination is requested. The
       organization so named shall designate one or more officers, directors, or
       managing agents, or other persons who consent to testify on its behalf, and may
       set forth, for each person designated, the matters on which the person will testify.
       The persons so designated shall testify as to matters known or reasonably
       available to the organization. This paragraph (b)(6) does not preclude taking a
       deposition by any other procedure authorized in these rules.

V.R.C.P. 30(b)(6). “Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to the claim or
defense of the party seeking discovery or to the claim or defense of any other party.” V.R.C.P.
26(b)(1). That the information sought will be inadmissible at trial is not a ground for objection,
as long as the information sought “appears reasonably calculated to lead to the discovery of
admissible evidence.” Id. Trial courts have “broad discretion regarding discovery matters in
active litigation.” Pease v. Windsor Development Review Bd., 2011 VT 103, ¶ 29, 190 Vt. 639
(2011), see also Ley v. Dall, 150 Vt. 383, 386 (1988) (quoting Borden Co. v. Sylk, 410 F.2d 843,
845 (3d Cir. 1969)) (“‘It is a well-established principle that the scope and conduct of discovery
are within the sound discretion of the trial court.’”).

Relevance/Duplicative Nature of Information Sought in Deposition Notices

       Defendant has moved to quash six deposition notices. The Court considers each
deposition notice in turn. The first three notices seek the following information from FAHC,
while the other three seek information from specific employees of FAHC.

   (1) FAHC statistics for the Cardiothoracic Department on issues involving mortality rates
       and complication rates for all valvular surgeries conducted from 2005-2010

        Plaintiff claims that these statistics are relevant to the issue of whether Dr. Schmoker
disclosed accurate risk levels for Dylan regarding the Ross Procedure and the other valve
procedures that were contemplated. The Court agrees. Lack of informed consent is defined as, in
pertinent part, “[t]he failure of the person providing the professional treatment or diagnosis to
disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits
involved.” 12 V.S.A. § 1909(a)(1) (emphasis added). One of Plaintiff’s claims is, essentially, that
Dr. Schmoker violated § 1909(a)(1) by misrepresenting the difference between the risk level of
the Ross Procedure and the risk level of the alternatives. The risk levels of the alternatives to the
Ross Procedure that were contemplated for Dylan are clearly “relevant to the subject matter
involved in the pending action,” or are reasonably calculated to lead to admissible evidence.
V.R.C.P. 26(b)(1). The mortality and complication rates for these procedures at FAHC could
reasonably have been relied upon by Dr. Schmoker in determining the risk for Dylan in
undergoing the Ross Procedure as opposed to the alternatives, and could shed some light on what
a “reasonable medical practitioner under similar circumstances would have disclosed.” 12 V.S.A.
§ 1909(a)(1). If the information produced turns out to be of limited relevance, Defendant is

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entitled to argue for its exclusion at trial, or argue for its limited weight to the jury. Therefore,
Defendant’s motion to quash is denied as to the FAHC statistics. The statistics, however, shall
be limited to February 2005 through February 2010, and only for the following operations: (1)
mechanical valves; (2) bioprosthetic valves; (3) valve sparing root replacement; and (4)
pulmonary autograph (Ross Procedure).

   (2) FAHC’s position and policies on what information needs to be provided to patients in
       order to properly obtain informed consent of patients;

        Any response to this request would likely be duplicative and irrelevant. There is no
reason to believe that FAHC’s “belief” or “position” on informed consent would be any different
than its policy, which has already been provided to Plaintiff. Furthermore, FAHC’s belief is
irrelevant because, as Defendant points out, a physician’s duty to disclose particular information
in order to obtain informed consent is provided by statute. See 12 V.S.A. § 1909. It is up to a jury
to determine, based on the evidence presented at trial, whether the patient was provided
sufficient information as required by § 1909(a)(1), and whether the physician provided a
reasonable response to a specific question as required by § 1909(d). To any extent the
information requested by this particular deposition notice could be relevant to determining
whether Dr. Schmoker provided a reasonable response to Plaintiff’s question under § 1909(d)—
for instance, information on how the policy is interpreted—that information could be obtained
from the depositions of Dr. Macauley and Dr. Ittleman, which the Court will allow. See infra.
Accordingly, Defendant’s motion to quash is granted as to this deposition notice.

   (3) FAHC’s position and policies on referring patients to other health care facilities outside
       Vermont.

         An alleged failure to refer a patient to another health care facility would be an issue of
medical negligence rather than informed consent. There are no pending medical negligence
claims in this case. However, the question of whether a physician must inform a patient of the
possibility of undergoing the procedure at other, out-of-state medical facilities could fall within
the purview of the informed consent doctrine. The failure to disclose such information is not
actionable under 12 V.S.A. § 1909(a)(1), but may be actionable under § 1909(d) if the question
posed to the physician sought such information. The Court has denied summary judgment as to
Plaintiff’s § 1909(d) claim because Plaintiff has demonstrated genuine issues of material fact
which allow her to move forward to jury consideration of that claim. Therefore, Plaintiff may
seek additional facts which may be relevant to that claim. As stated above, if the information
produced turns out to be of limited relevance, Defendant is entitled to argue for its exclusion at
trial, or argue for its limited weight to the jury. Accordingly, Defendant’s motion to quash is
denied as to this deposition notice.

   (4) Robert C. Macauley, M.D., Medical Director, Clinical Ethics at FAHC

        Dr. Macauley apparently participated in the creation of the FAHC informed consent
policy, and is listed as the Reviewer for the policy. Plaintiff wishes to ask Dr. Macauley if he
believes that an FAHC patient, after inquiry, is entitled to know the experience of a surgeon with
a particular procedure, and “whether the only thing that matters is that the surgeon feels

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comfortable doing the procedure.” Pl.’s Resp. Def.’s Supplemental Mem. Supp. Mot. to Quash
Dep. Notices (“PR”) 4. Plaintiff also wishes to inquire into whether Dr. Macauley believes that
Dr. Schmoker’s actions and statements are consistent with FAHC’s informed consent policy,
FAHC’s patient’s bill of rights, the State of Vermont’s patient bill of rights, and the Vermont
informed consent statute. Id. 4–5.

        Defendant argues that Dr. Macauley is not a cardiothoracic surgeon, does not know what
the foreseeable risks of a Ross Procedure might be, and had nothing at all to do with Dylan’s
care. Defendant admits that Dr. Macauley participated in the creation of the Fletcher Allen policy
on informed consent, but that he “has no expertise on which to judge the adequacy of the precise
risks pertinent to a particular rare heart surgery.” Def.’s Supplemental Mem. Supp. Mot. Quash
Deposition Notices (“Def.’s Supplemental Mem.”) 2.

        The Court believes that testimony of Dr. Macauley could be relevant to Plaintiff’s §
1909(d) claim. Although Dr. Macauley is not a cardiothoracic surgeon and does not know the
foreseeable risks of a Ross Procedure, he may be able to testify about the interpretation of the
informed consent policy as to a physician’s obligation to respond to a patient’s inquiry. This
information could be relevant in considering whether Dr. Schmoker provided a reasonable
response to Plaintiff’s question. Accordingly, Defendant’s motion to quash the deposition notice
of Dr. Ittleman is denied.

        However, the Court reminds Plaintiff not to misrepresent Dr. Schmoker’s deposition
testimony if using it while deposing Dr. Macauley or any other witness. In the Court’s view, Dr.
Schmoker’s testimony in its full context was fairly clear that he believed he had no affirmative
duty to provide information on his experience in obtaining the patient’s informed consent, but
that he would provide such information if requested. Deposition of Joseph Schmoker 51–52 (Ex.
8 to Def.’s Supplemental Mem.). The real issue seems to be whether such information was
requested, and if so, whether the response to the request was reasonable.

   (5) Frank Ittleman, M.D., Division Chief, Cardiothoracic Surgery at FAHC

        Plaintiff contends that Dr. Ittleman, as chair of the cardiothoracic department at FAHC,
“will likely possess critical information concerning the obligation of cardiac surgeons to respond
to an inquiry from a patient concerning their experience with a particular procedure.” PR at 4.
Plaintiff also suggests that Dr. Ittleman may be the individual with the most information
concerning the mortality rates and complication rates for valvular surgeries from 2005-2010 and
is therefore the likely 30(b)(6) candidate, but that FAHC “appears to want to block this inquiry
by possibly naming Dr. Schmoker as their 30(b)(6) designee on issues involving informed
consent.” Id.

       Defendant contends that Dr. Ittleman does not do the Ross Procedure, and that he had “no
involvement in the work-up of the plaintiff for surgery, or in providing the decedent with
information on which to make an informed consent.” Def.’s Supplemental Mem. 2.

       Like Dr. Macauley’s testimony, Dr. Ittleman’s testimony as to how Fletcher Allen’s
informed consent policy is interpreted by surgeons within the cardiothoracic department

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regarding the obligation to respond could be relevant in considering whether Dr. Schmoker’s
response to Plaintiff’s question was “reasonable” or whether Dr. Schmoker “withh[e]ld any
requested information.” 12 V.S.A. § 1909(d). As such, it appears “reasonably calculated” to lead
to the discovery of relevant, admissible evidence. Accordingly, Defendant’s motion to quash the
deposition notice of Dr. Ittleman is denied.

   (6) Keith Nagle, M.D.

       Dr. Nagle’s testimony is apparently related to damages and the level of consciousness
Dylan sustained after his return to the emergency room up until the time of his death. Defendant
appears to concede the relevance of Dr. Nagle’s testimony. Therefore, Defendant’s motion to
quash the deposition of Dr. Nagle is denied.

Timeliness of Deposition Notices

        As to the timeliness of the notices, the Court observes that there have been three separate
stipulated discovery schedules in this case:

      The initial discovery schedule, stipulated to by the parties and approved by the
       Court, provided that the deadline for depositions of all witnesses other than
       experts “shall be scheduled and taken no later than May 1, 2013.”
       Discovery/Alternative Dispute Resolution Stipulation and Order (dated July 17,
       2012).

      The first amended discovery schedule, stipulated to by the parties and approved
       by the Court, extended this deadline until June 1, 2013. See First Amended
       Discovery/Alternative Dispute Resolution Stipulation and Order (dated Feb. 21,
       2013).

      The second amended discovery schedule, again stipulated to by the parties and
       approved by the Court, extended this deadline until November 1, 2013. See
       Second Amended Discovery/Alternative Dispute Resolution Stipulation and
       Order (dated Sept. 9, 2013).

Defendant points out that the second amended discovery schedule was approved at a status
conference on September 9, 2013, after the deadline for fact witness depositions in the previous
discovery schedule (June 1, 2013) had passed. According to Defendant, the first three deposition
notices at issue here were dated September 5, 2013, and apparently received by Defendant’s
counsel on September 9, 2013, after the status conference at which the discovery schedule was
amended. The depositions of Drs. Ittleman and Macauley were then noticed on September 20,
2013, and the deposition of Dr. Nagle was noticed on September 23, 2013. Defendant contends
that while the second amended discovery schedule “included a new date for the completion of
any last minute fact depositions (until November 1), it was not to allow the taking of 5 or 6 new
depositions on issues remote from the facts of this case that this small additional window was
created.” Def.’s Supplemental Mem. 2. Defendant represents that if Plaintiff had requested only
one fact witness, such as Dr. Nagle, Defendant would not have filed a motion to quash.

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However, Defendant contends that plaintiff “has deliberately disregarded the spirit of the minor
extension of the discovery schedule that was necessitated by plaintiff’s failure to make her expert
available within the time contemplated by the previous discovery schedule,” and that therefore
the Court should “limit additional deposition discovery to what is absolutely necessary and not
previously covered or available to plaintiff if requested in a timely manner.” Id. at 2–3.

        In their respective memos, both Plaintiff’s counsel and Defendant’s counsel argue back
and forth about whether the information requested in the deposition notices was “informally”
requested during the summer of 2013, and whether opposing counsel responded to said informal
request. The Court will not delve into when and whether counsel phoned or wrote to opposing
counsel, what was or was not said or written during those alleged conversations or exchanges,
what counsel meant by alleged representations to one another, and whether counsel’s office
made a “typo” on the discovery schedule stipulation. Nor will the Court attempt to discern the
“spirit” of the alleged “minor” extension of the discovery schedule. The requested depositions at
issue here, the last one of which was noticed on September 23, 2013, could reasonably have been
scheduled and completed by the November 1, 2013 deadline provided in the second amended
discovery schedule. Therefore, the Court will deny Defendant’s motion to quash to the extent it
is based on untimeliness.

                                            ORDER

       For the foregoing reasons, Defendant’s Motion to Quash Rule 30(b) Deposition Notices
is granted in part and denied in part. The motion is granted as to the deposition notice
requesting “FAHC’s position and policies on what information needs to be provided to patients
in order to properly obtain informed consent of patients.” The motion is denied as to all other
deposition notices. The parties may proceed with the depositions that are not quashed, subject to
any limitations stated above in the Court’s decision. The deadline to schedule and complete those
depositions, and only those depositions, shall be extended until July 31, 2014.

       So Ordered.

       Dated at Burlington, Vermont, May 20, 2014.


                                                            ___________________
                                                            Brian J. Grearson
                                                            Superior Court Judge




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