United States District Court, S.D. West Virginia, Bluefield
JANET GRAHAM, Administratrix of The Estate of Edna Marie McNeely, Plaintiff,
SUNIL KUMAR DHAR, M.D., BLUEFIELD CLINIC COMPANY, LLC, d/b/a BLUEFIELD CARDIOLOGY, and, BLUEFIELD HOSPITAL COMPANY, LLC, d/b/a BLUEFIELD REGIONAL MEDICAL CENTER, Defendants.
MEMORANDUM OPINION AND ORDER
A. FABER, SENIOR UNITED STATES DISTRICT JUDGE
before the court is plaintiff's Motion for Sanctions and
Entry of Default Judgment against defendant Bluefield
Hospital Company, LLC, d/b/a Bluefield Regional Medical
Center (“BRMC”). ECF No. 76. For the reasons that
follow, plaintiff's motion for sanctions and default
judgment is DENIED.
Factual and Procedural Background
are two primary grounds upon which plaintiff files her Motion
for Sanctions and Entry of Default Judgment, alleging that
BRMC violated Federal Rule of Civil Procedure 37(d)(1)(A)(i)
in both respects: that BRMC failed to produce witnesses to
answer Topics 11 and 12 of the 30(b)(6) Deposition Duces
Tecum; and that BRMC produced unprepared witnesses for the
30(b)(6) deposition. BRMC counters that it properly objected
to Topics 11 and 12; and that its witnesses were prepared,
plus plaintiff failed to meet and confer before filing her
motion for sanctions thereby not complying with Fed.R.Civ.P.
37(d)(1)(B) and L.R. Civ. P. 37.1(b).
Failure to Produce Witnesses as to Topics 11 and 12
6, 2019, plaintiff filed her Notice of Rule 30(b)(6)
Deposition Duces Tecum of defendant BRMC. See ECF
No. 62. In her Notice, plaintiff outlined 12 topics and
requested that a representative or representatives be
designated to testify regarding the topics. On August 9,
2019, BRMC filed its Objection and Partial Designation to
plaintiff's Notice of Rule 30(b)(6) Deposition Duces
Tecum. See ECF No. 72. BRMC objected to Topics 11
and 12 of the Notice, and partially designated corporate
representatives Rovanda Wills, David Rumley, and Stephen
Ward, M.D., to discuss Topics 1 - 10. Plaintiff filed no
response to BRMC's objection, and no communications were
had between the parties regarding any issues related to the
September 5, 2019, BRMC's counsel Megan Bosak confirmed
that all corporate representatives were available for
September 27, 2019. See ECF No. 76, Exh. 8. At the
start of the deposition of BRMC's corporate
representatives on September 27, 2019, plaintiff's
counsel Andrew Byrd inquired as to whether BRMC was refusing
to produce any witnesses for Topics 11 and 12. Attorney Bosak
confirmed on the record that BRMC had filed objections to
plaintiff's Rule 30(b)(6) Notice and was not producing
any witnesses for Topics 11 and 12 in light of its filed
objections. See ECF No. 76, Exh. 9.
Producing Unprepared Witnesses for 30(b)(6) Deposition
alleges that BRMC produced unprepared 30(b)(6) witnesses.
Specifically, plaintiff claims that Dr. Ward was unprepared
to testify as to Topics 5, 6, 8, and 10, and that Mr. Rumley
was unprepared to testify as to Topic 9. Plaintiff argues
that Dr. Ward was unprepared as to Topics 5 and 6 because he
had not calculated the exact number of cardiac
catheterization procedures performed by defendant Sunil Dhar,
M.D., and that Dr. Ward testified that another individual at
BRMC was more qualified than him to testify as to Topic 8. As
to Topic 10, plaintiff argues that Dr. Ward was unprepared
because he had no knowledge of the communications Topic 10
was seeking information on. Plaintiff further argued that Mr.
Rumley was unprepared as to Topic 9 because he neither
reviewed nor brought any documents to facilitate his
knowledge of the topic, and he would not have access to those
documents or the conversations surrounding those documents.
See ECF No. 76.
responds that, as to Topics 5 and 6, Dr. Ward expressly
testified he had prepared for the deposition by meeting with
Attorney Bosak and reviewing Dr. Dhar's case logs, and
that as to Topic 8, Dr. Ward was able to testify as to the
non-existence of the documents sought. As to Topic 10, BRMC
argues that Dr. Ward could testify to the information sought
based upon the medical records provided, even if he did not
have personal knowledge, and, moreover, that BRMC had already
provided all documents related to the Topic 10 area of
inquiry. BRMC also responds that as to Topic 9, Mr. Rumley
expressly testified that he was the person at BRMC with the
most knowledge on the topic, and that any gap in Mr.
Rumley's knowledge asserted by plaintiff is due to
plaintiff's Attorney Byrd asking questions to Mr. Rumley
outside the scope of Topic 9's inquiry. See ECF
best to begin by stating the relevant federal and local rules
of civil procedure at issue here. Fed.R.Civ.P. 37(d)(1)-(2)
is as follows:
(1) In General.
(A) Motion; Grounds for Sanctions. The court where the action
is pending may, on ...