United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
J. NATHAN, District Judge
case concerns a motion to quash subpoenas issued in
connection with a case pending in the United States Court for
the District of New Jersey. The Movant, Lester Noah Shaw,
argues that subpoenas requiring his appearance to be deposed
as a third-party witness are unduly burdensome because they
impede his right to receive discovery before being deposed in
a separate state-court action brought by the same plaintiff,
Gianfranco Arena. For the reasons explained below, the motion
to quash is denied.
5, 2016, Gianfranco Arena commenced a breach of contract
action against RiverSource Life Insurance Company based on
RiverSource's invocation of a suicide exclusion to avoid
paying a death benefit on the life insurance policy of his
late wife, Christine Arena. Movant's Memo, in Support of
Motion ("Support"), Dkt. No. 3, at 1-2. RiverSource
subsequently removed the case to the United States District
Court for the District of New Jersey. Support at 2. In that
case ("the federal case"), Arena alleges that Dr.
Lester Noah Shaw treated Mrs. Arena from April 2, 2015 to
April 15, 2015. Federal Case Complaint, Dkt. No. 2-1,
¶¶ 12-21. Mrs. Arena hanged herself on April 21,
2015 and died on April 30, 2015 after her life support was
terminated. Federal Case Complaint ¶¶ 21, 24. Arena
argues that his wife's death was not the result of
suicide, but rather "a medically induced irresistible
impulse for Christine to harm herself, " Federal Case
Complaint ¶ 27, and that RiverSource is therefore
required to pay on the policy rather than rely on the
policy's suicide exception.
April 24, 2017, Arena commenced a medical malpractice action
against Shaw ("the state case"). State Case
Complaint, Dkt. No. 2-9. Arena alleges that Shaw negligently
treated Mrs. Arena, causing her to sustain emotional distress
and thereby causing her death. State Case Complaint
¶¶ 9-10. Arena and Shaw have begun engaging in
discovery, see, e.g., Dkt. Nos. 2-20 to -21, but
Shaw argues that such discovery is incomplete, Support at 4.
Arena and RiverSource served subpoenas commanding Shaw to
appear to be deposed in relation to the state case in late
2017. Arena Subpoena, Dkt. No. 2-13; see Letter
Responding to RiverSource Subpoena, Dkt. No. 2-16. Shaw now
moves to quash those subpoenas.
Rule of Civil Procedure 45 provides that a district court
"must quash or modify a subpoena that. . . subjects a
person to undue burden." Fed. R. Civ. Proc.
45(c)(3)(A)(iv). On a motion to quash, "[t]he party
issuing the subpoena must demonstrate that the information
sought is relevant and material to the allegations and claims
at issue in the proceedings." Night Hawk Ltd. v.
Briarpatch Ltd., No. 03-cv-1382 (RWS), 2003 WL 23018833,
at *8 (S.D.N.Y. Dec. 23, 2003). "A subpoena that
'pursues material with little apparent or likely
relevance to the subject matter' ... is likely to be
quashed as unreasonable even where the burden of compliance
would not be onerous." Kirschner v. Klemons,
No. 99-cv-4828 (RCC), 2005 WL 1214330, at *2 (S.D.N.Y. May
19, 2005) (citation omitted).
relevance has been established, "the movant bears the
burden of demonstrating an undue burden." Griffith
v. United States, No. M8-85 (JFK), 2007 WL 1222586, at
*2 (S.D.N.Y. Apr. 25, 2007). "Determinations of issues
of'undue burden' are committed to the discretion of
the trial court." Jones v. Hirschfeld, 219
F.R.D. 71, 74 (S.D.N.Y. 2003). "Whether a subpoena
subjects a witness to undue burden within the meaning of
[Rule 45(d)(3)(A)(iv)] 'depends upon such factors as
relevance . . . and the burden imposed.'" In re
Application of Operation y Supervision de Hoteles, S.A.,
No. 14-mc-0082 (PGG), 2015 WL 82007, at *4 (S.D.N.Y. Jan. 6,
2015) (alterations in original) (citations omitted).
Determining whether a subpoena imposes an undue burden
"requires a court to balance the interests served by
demanding compliance with the subpoena against the interests
furthered by quashing it, " which "calls upon the
trial court to consider whether the information is necessary
and whether it is available from any other source."
Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co.
Ams., 262 F.R.D. 293, 299-300 (S.D.N.Y. 2009) (quoting
9A Wright & Miller, Federal Practice and Procedure §
2463.1 (3d ed. 2008)). To demonstrate an undue burden, a
movant must "set forth the manner and extent of the
burden and the probable negative consequences of insisting on
compliance." Kirschner, 2005 WL 1214330, at *2.
The Motion to Quash Is Denied
Court concludes that the deposition subpoenas issued by Arena
and RiverSource are not unduly burdensome on Shaw. In
particular, the Court finds that Shaw's testimony is both
relevant and significant to the federal case, and that Shaw
has not demonstrated a sufficient burden if he is deposed.
it is clear that Shaw's testimony will be relevant in the
federal case. Courts in this circuit have held that
"treating physicians may testify as fact, rather than
expert, witnesses" and may testify "as to facts
acquired and opinions formed during [their] personal
consultation" with a patient. AH v. Connick,
No. 1 l-cv-5297 (NGG) (VMS), 2016 WL 3002403, at *7 (E.D.N.Y.
May 23, 2016) (alteration in original) (quoting Puglisi
v. Town of Hempstead Sanitary Dist. No. 2, No. 1
l-cv-0445 (PKC), 2013 WL 4046263, at *6 (E.D.N.Y. Aug. 8,
2013)); see also Palmieri v. Celebrity Cruise Lines,
Inc., 98-cv-2037 (LAP) (HBP), 2000 WL 310341, at *5
(S.D.N.Y. Mar. 27, 2000). Doctors are also allowed to testify
to their "opinions with respect to the injuries or
illnesses sustained as they causally relate to [the]
incident" that forms the basis of a court action as fact
witnesses. Palmieri, 2000 WL 310341, at *5 (quoting
Salas v. United States, 165 F.R.D. 31, 32 (W.D.N.Y.
federal case, it is anticipated that the primary issue will
be whether Mrs. Arena committed suicide or acted out of a
physical compulsion to harm herself. As a result, Shaw's
testimony about his observations of and opinions about Mrs.
Arena before she started medication and throughout the period
of her medication leading up to her death will be probative
of whether she had an intention to harm herself or was
physically compelled to do so. Because Shaw was the only
psychiatric doctor treating her, it is likely that he will be
able to testify to her state of mind more completely than any
other available witness.
Shaw has not demonstrated that he will face an unreasonable
burden if he is deposed in the state case. He argues that in
the state case, he is entitled to "responses to his
discovery demands" before he is deposed and, as a
result, if he is forced to attend a deposition in the federal
case before receiving his state discovery, "he will have
forfeited all of the rather substantial protections that the
New York Civil Practice Laws and Rules afford to
defendants." Support at 9. However, Shaw does not
explain specifically how he will be prejudiced or why his
testimony about his observations of Mrs. Arena's state of
mind would change based on outstanding discovery. His
generalized assertion is insufficient to demonstrate that
Shaw will face an undue burden if forced to comply with the
subpoenas. Moreover, the state-law protections that apply to
the state case have no bearing on the federal case and
therefore do not provide a reason to quash the subpoenas at
issue. See Trella v. Wal-Mart Stores, Inc., ...