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Hurd v. City of Lincoln

United States District Court, D. Nebraska

January 2, 2019

TROY M. HURD, Plaintiff,
v.
THE CITY OF LINCOLN, a political subdivision; et. al; Defendants.

          ORDER

          Cheryl R. Zwart United States Magistrate Judge

         Plaintiff has moved to compel the deposition of Jason Kruger, M.D. (Kruger), and for enlargement of the discovery deadlines to permit Plaintiff to retain a responsive expert if necessary and to subpoena medical records that may provide a basis for Kruger's testimony. (Filing No. 172). For the reasons discussed below, Plaintiff's motion will be denied.

         FACTUAL BACKGROUND

         Plaintiff's complaint was filed nearly three years ago, on February 26, 2016. (Filing No. 1). It is scheduled to be tried on February 5, 2019, with the pretrial conference scheduled for January 22, 2019.

         Plaintiff's complaint alleges he was retaliated against in his employment as a Lincoln firefighter because he complained to the City of Lincoln EEO department, and Roger Bonin about the unlawful harassment of Sara Khalil. He alleges that in response to his complaints on Khalil's behalf:

[Defendants imposed] retaliatory discipline, repeatedly intimidated Plaintiff following his protected activity with threats of discipline or discharge; ignored the retaliation; failed to properly investigate the retaliation, fabricated bases for disciplinary action; failed to ensure the promotional process was fair and free of retaliatory bias; failed to consider Plaintiff for the EMS supervisor position; spoke unfavorably of Plaintiff to fellow employees, supervisors, and others; and/or failed to protect Plaintiff from the retaliation and ensure that the harassment/retaliation was stopped by implementing proper safeguards and policies or disciplining/discharging the offenders.

(Filing No. 12, at CM/ECF p. 3).

         On April 26, 2012, Kruger, the Medical Director for Lincoln Fire and Rescue Department and Emergency Medical Services Oversight Authority, was involved in a decision to suspend Plaintiff's ability to perform Rapid Response Intubation (RSI) procedures. Plaintiff has been aware of Kruger's role in that decision since the day it was made, (Filing No. 108-6, at CM/ECF p. 11; Filing No. 108-12, at CM/ECF p. 4-5), and information regarding the RSI certification suspension was included within the NEOC file subpoenaed by Plaintiff's counsel in July of 2016. (Filing No. 20, at CM/ECF p. 1).

         Plaintiff filed an amended complaint on June 30, 2016. (Filing No. 18). Defendants' initial disclosures, served on June 30, 2016, did not list Dr. Kruger as a fact witness. (Filing No. 176-2). Plaintiff's initial disclosures, served on July 1, 2016, did not mention Kruger. Those disclosures also did not mention Bryan Kratochvil, Jeff Grasmick, Kendall Warnock, Greg Connolly, Amanda Benson, Ron Trouba, Jr., Mayor Chris Beutler, Linda Hurd, or Dan Duncan, witnesses Plaintiff now intends to call at trial. (Filing No. 176-1, at CM/ECF p. 4 ¶ 19; Filing No. 176-3).

         On September 27, 2016, Plaintiff served interrogatories on Defendant, including an interrogatory requesting the identity of witnesses with knowledge of the allegations in Plaintiff's complaint. (Filing No. 174-1, at CM/ECF p. 1 ¶ 3). Plaintiff's amended complaint does not mention denial of RSI privileges. (Filing No. 18). Defendants did not list Kruger in response to Plaintiff's interrogatory.

         In response to Plaintiff's extensive document discovery, Defendants produced nearly 16, 000 pages of emails. Their document production served on August 3, 2017 included emails from Bonin to Kruger regarding suspension of Hurd's RSI credentials. (Filing No. 176-1, at CM/ECF p. 2 ¶ 6).

         In October and November of 2017, the parties engaged in deposition discovery. Plaintiff deposed nine individuals for a total of 40 hours; Defendant deposed Plaintiff. (Filing No. 176-1, at CM/ECF p. 2 ¶ 9; Filing No. 176-4). Hurd testified that Bonin retaliated against him by suspending his ability to perform RSI while performing his paramedic duties. (Filing No. 115-5, at CM/ECF pp. 13-14). During the deposition, Plaintiff was questioned concerning the letter he received in April 2012. That letter notified him that his credentials to perform RSI were temporarily suspended due to two medical incidents, advised Plaintiff that those incidents were under investigation, and stated that upon completion of those investigations, Plaintiff would be required to meet with Bonin, Kruger, and Plaintiff's EMS Supervisor. The results of the investigation were later memorialized in a June 2012 letter stating Kruger decided to withdraw Plaintiff's RSI credentials. That letter was also discussed during Plaintiff's deposition. (Filing No. 115-8, at CM/ECF p. 14; Filing No. 115-9, at CM/ECF pp. 7-8).

         The fact witness deposition deadline previously set for December 15, 2017, (see Filing No. 49, at CM/ECF p. 2, ¶ 5(b)), was extended at Plaintiff's request to February 16, 2018. (Filing No. 100, at CM/ECF p. 2, ¶ 3). Plaintiff did not mention deposing Kruger as a basis for that extension. (Filing No. 101, audio file).

         Defendants moved for summary judgment on February 27, 2018, and Plaintiff responded a month later. (Filing No. 113). Defendants offered Kruger's affidavit in support of their motion, (Filing No. 108-12), and in reply, they filed an affidavit of Bonin, with documents attached, discussing communications with Kruger regarding suspension of Plaintiff's RSI credentials. (Filing No. 127-4). Plaintiff responded with his own affidavit essentially reiterating his ...


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