United States District Court, D. Nebraska
THOMAS D. THALKEN, Magistrate Judge.
This matter is before the court on the defendants', Michael Matthews, M.D. (Dr. Matthews) and Cheyenne County Hospital Association, Inc. (CCHA), Motion to Compel and for Sanctions (Filing No. 30). The defendants filed a brief (Filing No. 31) and index of evidence (Filing No. 32) in support of the motion. The plaintiff, Alexander Lund (Lund), filed a brief (Filing No. 33) in opposition. The defendants filed a brief (Filing No. 34) and index of evidence (Filing No. 35) in reply.
This action relates to injuries Lund sustained while under Dr. Matthews' medical care at Memorial Health Center (MHC) in Sidney, Cheyenne County, Nebraska, on January 9 and 10, 1994. See Filing No. 1 - Complaint. Cathleen Lund, Lund's mother, was admitted to MHC on January 9, 1994, and gave birth to Lund on January 10, 1994. Id. ¶¶ 2, 13. Due to alleged mismanagement of Cathleen Lund's prenatal care and the labor and delivery of Lund by Dr. Matthews and MHC employees, Lund suffered a permanent brachial plexus injury, cervical and spinal injuries, and other birth trauma. Id. ¶¶ 15, 17-18.
On December 12, 2013, defendants' counsel, Mark A. Christensen (Mr. Christensen), scheduled Lund for a deposition. See Filing No. 32-1 - Mr. Christensen Aff. ¶ 2. Lund was present with his counsel, Patrick J. Cullan (Mr. Cullan). Id. After experiencing difficulties deposing Lund, Mr. Christensen terminated the deposition. Id. ¶ 3, Filing No. 32-1 - Lund Depo. p. 50-54. Subsequently, the defendants filed the instant motion to compel and for sanctions. See Filing No. 30 - Motion.
The defendants argue Mr. Cullan violated discovery rules during Lund's deposition by interrupting with an excessive number of baseless objections. See Filing No. 31 - Brief p. 3. The defendants contend after Mr. Christensen concluded background questions and began asking questions relevant to Lund's lawsuit, Mr. Cullan began offering suggestive speaking objections that shaped Lund's answers in a way to prevent meaningful discovery. Id. at 3-4. For example, the defendants cite the following exchange during Lund's deposition:
Q. What made you decide to sue Dr. Matthews? Mr. Cullan: Object to the form, foundation
A. I don't know, I -
Mr. Cullan: I guess I'll object to the form, foundation of that question, other than the fact that he's been injured by the wrongdoing of Dr. Matthews.
Q. You still need to answer.
A. Yeah. I would say that was pretty spot on.
See Filing No. 32-1 - Lund Depo. p. 28:17-15 to 29:1-4. The defendants assert such a speaking objection is highly inappropriate and merits sanctions. See Filing No. 31 - Brief p. 4. Thereafter, the defendants argue Mr. Christensen attempted to address three topics without avail due to Mr. Cullan's objections. Id. 4-5. The topics were: a statement Cathleen Lund made to Lund, individuals Lund spoke with about filing the lawsuit, and Lund's physical condition. Id.
The defendants contend after Lund "offered a sliver of potentially relevant testimony, stating that his mother told him the nurses had her legs pressed up' once problems appeared during his delivery, Mr. Cullan prevented Mr. Christensen from inquiring further into the statement with repeated speaking objections and suggestions to [Lund], which [Lund] eventually took." Id. at 4-5. The defendants argue the following objections with added commentary were improper and coached Lund: "That misstates his testimony, but go ahead if you know where the legs were pushed up" (Filing No. 32-1 - Lund Depo. p. 34:21-23); "That's asking for him to speculate" ( Id. at 33:24-34:1); "He doesn't know what she meant by that" ( Id. at 35:1-2); "If you recall specifically. If you don't -" ( Id. at 35:7-8); "If that's what you recall, that's what you recall. You obviously can't interpret what she's saying, but to the best of your recollection as you sit here today, or can you not recall with accuracy?" ( Id. at 36:4-9). The defendants argue Mr. Cullan's improper objections foreclosed Mr. Christensen from learning what Lund knew about Cathleen Lund's statement because Lund took suggestions from Mr. Cullan and stated Lund could not remember the conversation with his mother. See Filing No. 31 - Brief p. 5.
The second topic the defendants assert Mr. Cullan prevented Mr. Christensen from addressing was who Lund spoke with about the lawsuit before filing the lawsuit. Id. at 5-12. The defendants argue Mr. Christensen sought to identify individuals with knowledge of Lund's lawsuit and did not seek to discover the substance of communications protected by the attorney-client privilege. Id. However, the defendants argue, Mr. Cullan's baseless objections effectively frustrated the questioning and guided Lund to answers that precluded a fair examination. Id. (citing Filing No. 32-1 - Lund Depo. p. 36-40). Additionally, the defendants contend during this line of questioning, Mr. Cullan ...