United States District Court, D. Nebraska
TROY M. HURD, Plaintiff,
THE CITY OF LINCOLN, a political subdivision; et. al; Defendants.
R. Zwart United States Magistrate Judge
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
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.
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
(Filing No. 12, at CM/ECF p. 3).
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).
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.
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
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
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).
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).
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 ...