The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
As this case winds to an end, there are yet more discovery disputes to resolve.
On July 31, 2009, State Farm filed a Letter-Motion seeking a protective order or to strike Lavigna's 42 Requests to Admit. Dkt. No. 122. On August 5, 2009, Lavigna responded to State Farm's Letter-Motion with her Letter-Brief. Dkt. No. 123. Before this issue could be resolved, Plaintiff filed another Letter-Motion seeking a discovery conference to resolve the parties' dispute over State Farm's deposition of Dr. McCormack, Lavigna's treating physician, and Ms. Brenda Breen, Lavigna's occupational therapist/expert. Dkt. No. 125, Def.'s Lt.-Mot., dated Aug. 18, 2009. Pursuant to the Court's direction, on August 21, 2009, Lavigna responded with a Letter-Brief as to that issue. Dkt. No. 126. On September 4, 2009, a Discovery Hearing was held on the record. During the Discovery Hearing, the Court made several Rulings. Those Rulings are summarized and modified in one respect as follows:
Plaintiff's Request to Admit
On March 31, 2009, this Court held a Discovery Hearing, in which, we granted, inter alia, Plaintiff permission to serve requests to admit on the Defendant. When Plaintiff wanted further and more substantial verification of State Farm's responses to specific demands for discovery (Doc. Req. No. 34, Supp. Req. Nos. 6 & 8), this Court granted instead a request to admit verifying the accuracy of those responses. Immediately thereafter, the Court issued an Order on April 1, 2009, summarizing the Rulings we made during March 31st Discovery Hearing. Dkt. No. 96. In order to be fair to both parties, this Court expanded the ruling on requests for admission so that the ruling included State Farm by stating that "the parties, if they wish, may serve requests to admit. Id. at p. 6.
State Farm appealed the Court's April 1st Order on various grounds, which included the Court's granting of the requests to admit. Dkt. No. 106. While awaiting the Honorable Gary L. Sharpe, United States District Judge's determination of appeal, this Court, in the interim, issued another Discovery Order, dated June 2, 2009, stating, among other things, that "[w]ith exception of those issues currently before Judge Sharpe, which include, inter alia, whether Plaintiff would be permitted an opportunity to serve limited requests foro admissions, and this Court's present Order, no further factual discovery will be allowed." Dkt. No. 119 at p. 3. Shortly thereafter, Judge Sharpe issued an Order denying State Farm's appeal and affirming this Court's April 1, 2009 Order. Dkt. No. 120, Order, dated June 19, 2009. Upon receiving notification of Judge Sharpe's Order, this Court issued yet another Order, dated June 22, 2009. Dkt. No. 121. In terms of the requests to admit issue, this Court wrote, "[r]egarding Plaintiff's request to serve limited number of requests for admissions, to the extent that they have not been served, Plaintiff is directed to serve her requests for admission upon State Farm on or before June 30, 2009." Id. at p. 1.
On June 30, 2009, Lavigna served 42 requests for admissions to which State Farm objects. In State Farm's view, Plaintiff's 42 requests for admission did not comply with this Court's instruction for "limited" requests for admission. Lavigna posits that this Court did not limit the number of requests to admit. This Court acknowledges that it failed to define what is meant by limited. What the Court intended was to send a message to the parties not to propound an excessive number of requests to admit.
In light of the Court's failure and the vagaries as to what "limit" means to these parties, and the fact that the parties cannot agree as to what may constitute a reasonable number of requests for admission, the Court will do so now. Accordingly, each party may serve twenty (20) requests for admissions. On or before September 11, 2009, Lavigna shall identify which 20 of the 42 requests for admission she seeks from State Farm. Lavigna may propound an additional request for admission that pertains to State Farm's court ordered response, which directed it to disclose "the names and address of employees at State Farm's Ballston Spa Operational Center who sought a sit/stand workstations or part-time employment at full pay during [the] disability period[.]" See Dkt. No. 103, Order, dated Apr. 10, 2009, at p. 11. State Farm, if it wishes, may serve requests for admission upon Lavigna on or before September 11, 2009. Responses to the parties' requests for admission shall be served on or before October 12, 2009.
With respect to the request for admission that addresses the sit/stand workstation, the Court now modifies the Ruling it made on the record. Initially, Lavigna wanted the Court to allow her to propound another interrogatory as to this issue. During the Hearing, Lavigna represented to the Court that State Farm had qualified its answer to her previous interrogatory by stating that no "full-time" employee at its Ballston Spa Operational Center sought a sit/stand workstation. What Lavigna was seeking was a response that was directed at part-time employees, not full-time employees. State Farm read its answer which appeared to answer the Court's directed response on the issue. Moreover, State Farm's counsel represented, upon information and belief, that its response satisfied not only the court directed response but was inclusive of both full-time and part-time employees at the Ballston Spa Operational Center, and the Court accepted that response as being satisfactory. However, Lavigna asked this Court that if the requests for admission on this topic is responded to in the affirmative, that is that part-time employees sought and received a sit/stand workstation, then State Farm be directed to provide the names and addresses of those employees. The Court denied that request. Upon further reflection on this matter, if State Farm admits that part-time employees sought and received a sit/stand workstation, that disclosure may be relevant to Lavigna's claims. Accordingly, should State Farm admit that part-time employees at the Ballston Spa Operational Center sought and received a sit/stand workstation during the relevant period, the Court directs State Farm to provide the names of those employees and their corresponding address to Lavigna on or before October 12, 2009.*fn1
Plaintiff's Treating Physician, Dr. McCormack
A disputation has erupted over Lavigna's treating physician Dr. McCormack's deposition. In addition to being Lavigna's treating physician, he is also one of her experts. Notwithstanding McCormack's designation as one of Lavigna's experts, State Farm claims that he is a fact witness with regard to treatment notes, factual representations, progress notes, and statements made under the penalties of perjury that he has made to State Farm, State Farm's long term disability carrier, and the Social Security Administration, and, therefore, if deposed, Dr. McCormack is entitled to only the statutory subpoena fee and not a reasonable expert fee. Contrariwise, Lavigna asserts that Dr. McCormack is entitled to a reasonable fee for his prospective testimony, no matter the scope or nature of the inquiry may be.
In a previous Order, based upon Lavigna's representation that Dr. McCormack would be one of her expert witnesses, the Court denied State Farm's request to issue an order compelling Dr. McCormack to be deposed as a fact witness. Dkt. No. 67, Order, dated Dec. 3, 2008. The issue over the timing of Dr. McCormack's testimony and whether he would be deposed as a fact or an expert witness was appealed to Judge Sharpe. By an Order, dated May 7, 2009, Judge Sharpe concluded that this Court's ruling was "neither clearly erroneous, contrary to law, nor an abuse." Dkt. No. 111 at p. 4. However, Judge Sharpe, in footnote one of his decision, wrote, State Farm, however, correctly notes that not all testimony from a treating physician should be considered expert testimony entitled to an expert fee. Testimony "that reasonably may be considered to be opinions based upon specialized skill and knowledge that fall within Fed.R.Evid. 702 . . . may properly be characterized as an expert [testimony] and is entitled to a reasonable fee . . ." Lamere v. New York State Office of Aging, 2004 WL 1592669, at *1-2 (N.D.N.Y. 2004). Therefore, whether or not Lavigna's treating physician receives an expert fee, should he actually be deposed, depends on "the substance of the testimony . . . . If the treating physician's testimony is limited to pure observation, as explanation of treatment notes, etc., then the physician may properly be characterized as a fact witness and receive nothing more than the statutory witness fee . . ." Id.
Id. at pp 4-5, n.1.*fn2 And it is this footnote that State Farm primarily relies upon for its claim that Dr. McCormack can be deposed as a fact witness.
This Court opines that it will be virtually impossible to distinguish or delineate Dr. McCormack's factual observations from his professional opinions that he has expressed over the years regarding Lavigna's condition and disability; because they appear to be so intertwined and co-joined, they defy separation. However, the Court will not presume, at this juncture, that State Farm cannot limit Dr. McCormack's deposition to factual observations alone. It will be a fine line for State Farm to ...