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Brown v. Coleman

September 8, 2009


The opinion of the court was delivered by: Ronald L. Ellis, United States Magistrate Judge



On February 19, 2007, Luisa Gutti Brown brought this action against Sydney Coleman, M.D., Kenneth Wemm, M.D., and Tribeca Plastic Surgery, alleging medical malpractice in connection with a June 2004 plastic surgery operation to correct facial asymmetries. (Compl. ¶¶ 13-14.) Brown retained Dr. Darrell L. Henderson as an expert witness to testify about whether Defendants met the minimum medical standard of care for the operation. Before the Court is a motion by Dr. Coleman and Tribeca Plastic Surgery to compel Dr. Henderson to produce 1) operating room records and logs from his offices for the last three years, and 2) executed authorizations for Defendants' counsel to access employment records from two schools where Dr. Henderson claims to have taught.

For the reasons that follow, Defendants' request to compel production of operating room records is DENIED. However, because Dr. Henderson's office purposely destroyed surgical logs after receiving the February 10, 2009 court order requiring their production, pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(ii) Brown is HEREBY PRECLUDED from providing any testimony regarding the number of fat grafting procedures Dr. Henderson has performed. Defendants' request to compel authorizations to verify Dr. Henderson's role at the two medical institutions is GRANTED.


Following a February 10, 2009 telephone conference with the Parties, this Court ordered Brown to produce a list of Dr. Henderson's continuing medical education classes and a list of all operating room procedures that Dr. Henderson had performed over the last three years. (Defs.' Notice of Mot. at 8.) On March 9, 2009, Brown submitted a response to that order indicating that Dr. Henderson's office does not keep surgical schedules after the procedures are completed, and does not retain accounts of his experience in performing fat grafting procedures. (Id.)

On April 29, 2009, Defendants moved to compel discovery with regard to information involving Dr. Henderson's qualifications. (Id. at 1.) Specifically, Defendants seek to compel Brown to produce Dr. Henderson's operating room records and logs from his offices from the last three years, as well as authorizations from Dr. Henderson to receive his employment records from Louisiana State University School of Medicine and Tulane University School of Medicine. (Id.)


A. Defendants' Request for Operating Room Records and Logs

Defendants seek to compel discovery of "Henderson's operating room records and logs from his offices during the last three years . . . ." (Defs.' Notice of Mot. at 6.) They claim that Dr. Henderson provided contradictory testimony regarding his experience in conducting fat grafting procedures. (Id. at 7, 8.) Defendants maintain that the surgical logs are needed in order to determine whether Dr. Henderson is qualified and credible as an expert in fat grafting. (Id. at 9.) In response to this Court's February 10, 2009 order to produce surgical logs, Brown submitted an affidavit wherein Dr. Henderson stated that he could not comply because surgical logs are not kept after the procedure is completed. (Pl.'s Mem. in Opp. to Defs.' Notice of Mot. (Pl.'s Mem.), Ex. F at 2.) Defendants argue that this response "strains credibility" because the response referred to "schedules," not "logs," and contend that Dr. Henderson was required to maintain detailed logs for the past three years in order to receive accreditation by the American Association for Accreditation of Ambulatory Surgery Facilities, Inc. (AAAASF).

In response to Defendants' motion, Brown first argues that the records and logs available would not indicate the true number of fat grafting procedures performed by Dr. Henderson. (Pl.'s Mem. at 8.) Brown asserts that fat grafting procedures play a role in many different plastic surgery procedures and are not explicitly recorded as such in the logs. (Id.) Brown admits, however, that Dr. Henderson did in fact maintain a detailed three-year surgical log to meet AAAASF accreditation requirements. (Id. at 9.) She maintains that Dr. Henderson's office was AAAASF accredited at the time of the February 10, 2009 order requiring production of the surgical logs. She further maintains that, for business reasons, Dr. Henderson's physician group decided to close its medical office on March 1, 2009, and therefore destroyed the detailed surgical logs thereafter. (Id. at 8, 9.) Brown contends that she cannot submit the detailed surgical logs pursuant to this Court's February 10, 2009 order. The only records presently available are 40,000 to 50,000 individual patient medical files. (Id. at 9.) Brown argues that it would be "unduly and unnecessarily burdensome and extremely expensive" because of "an antiquated computer system in his office" (Id. at 9, 11.) for Dr. Henderson to compile a list indicating the number of fat grafting procedures, or any other procedures, that he performed over the last three years. (Id. at 9.)

A court will only limit the discovery of relevant information when it determines that "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii). Brown does not dispute that the number of fat grafting procedures performed by Dr. Henderson, especially in recent years, is relevant to his qualifications as an expert witness. Were the surgery logs still available, they would of course be discoverable. In their absence, the question before the Court is whether Dr. Henderson should be required to examine the "40,000 -50,000 medical files" to ascertain which procedures involved fat grafting. This might be considered a fitting punishment for destroying the files, but it would be a substantial use of resources and require prolonged oversight, burdening not only Henderson, but also the Defendants and the Court. Defendants' motion to compel discovery of Dr. Henderson's operating room records and logs during the last three years is therefore DENIED.

Brown's explanation for Dr. Henderson's purposeful destruction of documents, explicitly ordered by the Court, however, is not adequate to avoid some penalty. Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 107 (2d Cir.2001) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)). Where a party violates a court order -- either by destroying evidence when directed to preserve it or by failing to produce information because relevant data has been destroyed -- Rule 37(b) of the Federal Rules of Civil Procedure provides that the court may impose a range of sanctions, including dismissal or judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment of attorneys' fees and costs.

Fed.R.Civ.P. 37(b); see Residential Funding Corp. v. DeGeorge Financial Corp., 306 F .3d 99, 106-07 (2d Cir.2002); Metropolitan Opera Association, Inc. v. Local 100, Hotel Employees and Restaurant Employees International Union, 212 F.R.D. 178, 219-20 (S.D.N.Y.2003). Sanctions may be imposed ...

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