GOOD v. BIOLIFE PLASMA SERVICES US (2023)

ORDER DENYING DEFENDANTS’ EMERGENCY MOTION FOR LEAVE TO TAKE DEPOSITION OF TREATING PHYSICIAN

In 2015, during a plasma donation screening, Plaintiff Tenley Good fainted after her finger was pricked, fell from a swivel chair, and then hit her head. She sued the plasma-donation center for negligence in 2018, alleging she suffered postconcussive symptoms, hearing loss, and personality changes. A jury trial will begin on April 4, 2023.

Eight weeks before trial, Defendants filed an emergency motion for leave to take the discovery deposition of Plaintiff's treating physician, Dr. Katherine Heidenreich.

The question presented is whether Defendants have demonstrated good cause.

I.

In October 2015, Plaintiff Tenley McLaughlin Good went to donate plasma at a center operated by Defendant BioLife Plasma Services. See Good v. Biolife Plasma Servs., L.P., No. 1:18-CV-11260, 2020 WL 736005, at *3 (E.D. Mich. Feb. 13, 2020), rev'd, 834 F. App'x 188 (6th Cir. 2020). Plaintiff sat in a swivel chair across the counter from BioLife employee Sylvia Roberts for the screening process. Roberts pricked Plaintiff's finger to collect a sample of her blood capillaries, and Plaintiff fainted within seconds. Id. Roberts tried to hold Plaintiff upright but could not. Id. Plaintiff spent a week in the hospital with postconcussive symptoms and now complains of hearing loss and personality changes. Id. at *3–4.

In March 2018, Plaintiff sued BioLife and its parent company under two theories of liability.¹ First, she claims Defendants negligently failed to take her medical history before collecting the capillary sample. See id. at *4. If they would have collected her medical history, she argues, then they would have learned what she knew: that she has fainted when seeing blood. See ECF No. 37 at PageID.2527–28. Second, she claims Defendants negligently positioned her in a relatively high swivel chair, too far from Roberts to prevent the fall. See Good, 2020 WL 736005, at *4, *7.

Discovery closed in April 2019. ECF No. 14 at PageID.77. In September 2019, while the parties’ cross-motions for summary judgment were pending, see ECF Nos. 32; 37, Plaintiff returned to the University of Michigan Health System for a follow-up appointment with Dr. Katherine Heidenreich, an otolaryngologist. ECF Nos. 167 at PageID.11427; 169 at PageID.11447–48. Plaintiff disclosed her treatment with Dr. Heidenreich to Defendant on October 17, 2019, by providing the medical records from the September 2019 visit. See ECF Nos. 55 at PageID.6573; 169 at PageID.11444. In response, Defendant filed a motion in limine to exclude Dr. Heidenreich's testimony. ECF No. 59. Plaintiff then noticed Dr. Heidenreich's deposition to preserve trial testimony, and Defendants filed a motion for a protective order to prevent Plaintiff from deposing Dr. Heidenreich until after this Court decided Defendants’ motion in limine. ECF No. 85. This Court ultimately granted summary judgment for Defendants, and both of Defendants’ motions regarding Dr. Heidenreich were denied as moot. See Good, 2020 WL 736005, at *8.

Plaintiff appealed, and the Sixth Circuit found triable questions of fact under both Plaintiff's theories. Good v. BioLife Plasma Servs., L.P., 834 F. App'x 188, 196–97 (6th Cir. 2020) (unpublished). Therefore, it reversed summary judgment for Defendants and remanded the case here for further proceedings. Id. at 200.

Five months after the remand, Defendants filed a motion to limit the testimony of Dr. Heidenreich, ECF No. 116, which was denied in June 2022, ECF No. 154. Notably, Defendants did not seek to depose Dr. Heidenreich. Instead, they waited three months and then filed a motion for reconsideration, ECF No. 157, which was denied in December 2022, ECF No. 163. Only then—six months after Defendants’ motion in limine was denied—did Defendants attempt to depose Dr. Heidenreich. ECF No. 167 at PageID.11428 (requesting to depose Dr. Heidenreich in January 2023). Plaintiff's counsel has objected to the discovery deposition, and “further communications could not resolve the dispute.” Id.

Accordingly, eight weeks before trial, Defendants filed an “Emergency Motion” to take Dr. Heidenreich's deposition after the close of discovery. ECF No. 167. Considering the imminent trial date, this Court directed Plaintiff to file an expedited response, ECF No. 168, which she submitted on February 12, 2023, ECF No. 169.

II.

“District courts have broad discretion under the rules of civil procedure to manage the discovery process and [to] control their dockets.” Marie v. Am. Red Cross, 771 F.3d 344, 366 (6th Cir. 2014). A scheduling order, including discovery deadlines, may be modified for good cause. Fed. R. Civ. P. 16(b)(4).

In the Sixth Circuit, “[t]he overarching inquiry” guiding the determination of whether good cause exists to modify a discovery deadline “is whether the moving party was diligent in pursuing discovery.” Bentowski v. Scene Mag., 637 F.3d 689, 696 (6th Cir. 2011). “Another relevant consideration is possible prejudice to the party opposing the modification.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002). A court need not determine whether the nonmoving party will be prejudiced unless “the movant proceeded diligently, and then only to ascertain whether there exist ‘additional reasons to deny a motion.’ ” Smith v. Holston Med. Grp., P.C., 595 F. App'x 474, 479 (6th Cir. 2014) (unpublished) (quoting Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992)).

Courts also consider when the moving party learned of the discovery issue, the length of discovery, whether the moving party was dilatory, and whether the adverse party responded to discovery requests. Williams v. AK Steel Dearborn Works, No. 17-CV-11394, 2019 WL 117333, at *1 (E.D. Mich. Jan. 7, 2019) (quoting Benkowski, 637 F.3d at 696 (6th Cir. 2011)). Some discovery disputes impel courts to “engage in a fact-specific inquiry of the claims at issue and the requested discovery.” See, e.g., Matthew N. Preston II, The Tweet Test: Attributing Presidential Intent to Agency Action, 10 Belmont L. Rev. 1, 14 (2022).

III.

Defendants seek leave to depose Dr. Heidenreich “in order to prepare for her potential trial testimony.” ECF No. 167 at PageID.11425. Defendants assert good cause exists ² to reopen discovery because Dr. Heidenreich could not have been deposed earlier, her expected testimony is important to the case, and the late deposition would not burden Plaintiff or delay trial. See generally id.

Plaintiff responds that Defendants have known of Dr. Heidenreich since October 2019 yet did not attempt to depose her until January 2023, and that permitting Defendants to depose Dr. Heidenreich now would create scheduling issues that would burden Plaintiff and delay trial. ECF No. 169 at PageID.11452–55.

Defendants did not diligently attempt to obtain Dr. Heidenreich's testimony when they first learned in June 2022 that she would testify at trial. Defendants’ only explanation for not seeking leave to depose Dr. Heidenreich sooner is that they had filed a motion to exclude her testimony. See ECF No. 167 at PageID.11427. Even if a pending motion in limine is sufficient justification for not seeking to depose a witness—it is not—that motion was denied in June 2022. ECF No. 154 at PageID.11224–27. Then, instead of attempting to depose Dr. Heidenreich, Defendants waited three months then filed a motion for reconsideration. ECF No. 157. True, Dr. Heidenreich's testimony is important, Defendants could not have deposed her before discovery ended, see ECF Nos. 167 at PageID.11428; 169 at PageID.11447, and Defendants diligently tried to exclude Dr. Heidenreich's testimony from trial, see ECF Nos. 59; 85; 116; 157. But Defendants’ substantial delay in seeking to depose Dr. Heidenreich belies any claim they have to reopen discovery less than two months before trial. See Carroll v. Young, No. 119CV00153GNSHBB, 2022 WL 14151977, at *6 (W.D. Ky. Oct. 24, 2022) (finding lack of diligence based on discovery motion filed two-and-a-half months after becoming aware of discovery issue); W. Leasing, Inc. v. W. Min. Dev., LLC, No. 418CV00038BJBHBB, 2023 WL 1788539, at *17 (W.D. Ky. Feb. 6, 2023) (finding lack of good cause for not adequately explaining failure to seek leave to extend expired discovery deadline soon after awareness of factual issue). For lack of diligence, Defendants have not demonstrated good cause. See Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002) (“The primary measure of Rule 16’s ‘good cause’ standard is the moving party's diligence.”).

In sum, Defendants have not demonstrated good cause to depose Dr. Heidenreich seven weeks before trial; they could have sought leave to depose her more than eight months ago. Accordingly, Defendants’ Motion will be denied.

IV.

Accordingly, it is ORDERED that Defendants’ Emergency Motion for Leave to take Dr. Heidenreich's Deposition, ECF No. 167, is DENIED.

This is not a final order and does not close the above-captioned case.

FOOTNOTES

1.   Plaintiff also sued for medical malpractice but later stipulated to dismiss it. See ECF Nos. 1 at PageID.11; 28.

2.   Defendants heavily rely on an unpublished case from the District Court for the District of Columbia, which found good cause to permit the defendants to depose the plaintiff's expert witness six weeks before trial. See ECF No. 167 at PageID. 11432 (citing Youssef v. Lynch, No. CV 11-1362, 2016 WL 10672226 (D.D.C. Apr. 1, 2016)). But that case did not involve a treating physician. And it has no binding effect in this Court. Pratt v. KSE Sportsman Media, Inc., 586 F. Supp. 3d 666, 674 (E.D. Mich. 2022) (“[O]pinions that are from neither the Supreme Court nor a circuit court of appeals․ do not ‘warrant’ anything in this Court.”) (quoting Hillman Power Co. v. On-Site Equip. Maint., Inc., 582 F. Supp. 3d 511, 516 (E.D. Mich. 2022)).

THOMAS L. LUDINGTON, United States District Judge