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Short v. Womack

January 5, 2010

KAYDEE N. SHORT AND CHADWICK C. SHORT, HUSBAND AND WIFE, PLAINTIFFS,
v.
RE: LARRY WOMACK, M.D., INDIVIDUALLY AND D/B/A VISION CORRECTION CENTERS; AND STEVEN J. FERGUSON, O.D., INDIVIDUALLY AND D/B/A VISION CORRECTION CENTERS AND D/B/A DUNES EYE CONSULTANTS, DEFENDANTS.



The opinion of the court was delivered by: John E. Simko United States Magistrate Judge

OPINION AND ORDER MOTION TO COMPEL

Pending is plaintiffs' motion to compel defendant Ferguson to produce documents pursuant to their Requests for Production 14, 15, 16, & 17 (Doc. 43).

BACKGROUND

Plaintiffs allege that defendant Womack is an ophthalmologist licensed to practice medicine in South Dakota and that defendant Ferguson is an optometrist licensed to practice optometry in South Dakota. Plaintiffs allege that each defendant is liable to plaintiffs jointly and severally for Dr. Womack's medical negligence while performing eye surgery on Kaydee Short and for Dr. Ferguson's medical negligence while performing follow-up care for Kaydee Short. Plaintiffs also allege deceptive trade practices on the part of defendants in violation of SDCL 37-24-1 & 6, SDCL 53-4-4 through 6, and SDCL 20-10-2.*fn1 (Doc. 1). Plaintiffs filed their motion to compel (Doc. 43) supported with an affidavit from counsel, but did not simultaneously file a supporting brief as required by Local Rule 7.2 and did not certify the parties had met and conferred to try to resolve the dispute before the motion to compel was filed as is required by Local Rule 37.1. Plaintiffs certified under LR 37.1 "that . . . good faith efforts via written correspondence and electronic mail" have been made to resolve the discovery dispute.*fn2 Plaintiffs assert Ferguson's response to the motion to compel is untimely. Plaintiffs argue Ferguson does not have legal authority to assert his cross claim for indemnity or contribution against Womack. SDCL 37-11-5.

Defendant Ferguson acknowledges that he is an optometrist and provided optometric services to Kaydee Short. He denies that he was negligent, that he engaged in any deceptive trade practices, and denies doing business as Vision Corrections Centers at any time material to plaintiffs' allegations. Ferguson cross claimed against Womack for indemnity or alternatively for a determination of the relative percentages of fault and contribution between joint tortfeasors. (Docs. 7 & 29). Ferguson asserts the motion to compel is untimely, was not supported by a brief, that the plaintiffs failed to meet and confer before filing the motion to compel. On the merits Ferguson asserts that as an independent contractor, by definition he had no financial interest in Vision Correction Centers and by definition his "d/b/a Dunes Eye Consultants" is not a separate entity in which there could be a financial interest.

Defendant Womack d/b/a Vision Correction Centers acknowledges that he is an ophthalmologist who treated Kaydee Short, but denies medical negligence and all other claims against him. Womack denies that Ferguson is entitled to indemnity or to contribution. (Docs. 13 & 30). Womack has filed a motion for partial summary judgment (Doc. 39). The target of the motion is the claim for deceptive trade practices, fraud and deceit (Doc. 40). Womack is not directly involved in this discovery dispute.

Ferguson has filed a motion for summary judgment. (Doc. 44). In his supporting brief the lawsuit is characterized as a "rather straightforward malpractice claim . . . complicated/obfuscated by an additional claim of deceptive trade practice, along with fraud and deceit." (Doc. 45, p. 1). Ferguson acknowledges in his brief that he determined Kaydee Short was a suitable candidate for eye surgery and provided her with options. He was not present during the surgery. There is no dispute the surgery occurred in 2005. In 2007, Ferguson "purchased the name Vision Correction Centers." (Doc. 45, p. 3).

Shorts' summary of the background is:

Plaintiffs Kaydee and Chad Short filed their Complaint on October 17, 2007 (Doc. 1) containing causes of action against Dr. Womack and Dr. Ferguson, individually and doing business as Vision Correction Centers in the case of Dr. Womack, and individually and doing business as Vision Correction Centers and Dunes Eye Consultants, in the case of Dr. Ferguson. Claims are made against Dr. Womack and Dr. Ferguson, jointly and severally, for medical malpractice, deceptive trade practices, and fraud and deceit. Plaintiff Chad Short has a cause of action for loss of consortium. Jurisdiction is based upon diversity of citizenship under 28 U.S.C. § 1332. Dr. Ferguson filed his Separate Answer on November 7, 2007. (Doc. 7). Dr. Womack filed a Separate Answer on December 21, 2007. (Doc. 13). On November 17, 2008, Dr. Ferguson filed a Cross-claim against Dr. Womack. (Doc. 29). Dr. Ferguson's Cross-claim requests complete indemnification from Dr. Womack as to any damages that may be awarded to Plaintiffs, and in the event indemnification is denied, that the relative degrees of fault be determined between Ferguson and Womack and that Ferguson be awarded contribution from Womack. (Doc. 29).

(Doc. 58, p. 2). Plaintiffs allege business relationships among Womack, Ferguson, Paul Ehlen, and various business entities owned by one or more of them separately and jointly. Ehlen owned the LASIK surgery equipment. There were informal and contractual arrangements between Ehlen and Womack and Womack and Ferguson. Plaintiffs also allege a past business relationship between Womack and Dr. Vance Thompson. (Doc. 58, pp. 3-5).

ANALYSIS

Request For Production 14 is for all documents that contain, refer to, or reflect Ferguson's ownership, investment, or financial interest in Vision Correction Centers or Dunes Eye Consultants. Ferguson's response was that he had no ownership interest, investment interest, or financial interest in Vision Correction Centers. He objected to furnishing documents about Dunes Eye Consultants stating there is no dispute that he was the sole owner. Beyond that response, Ferguson asserts his financial information is not relevant.

Request For Production 15 is for all documents that contain, refer to, or reflect Ferguson's or Womack's ownership, investment, or financial interest in Vision Correction Centers or Dunes Eye Consultants regardless of the date. Ferguson's response refers to the response to Request For Production 14. Additionally, Ferguson objects that information after December, 2007, is not relevant.

Request For Production 16 is for all documents that contain, refer to, or reflect the nature of the entity and the ownership of Vision Correction Centers or Dunes Eye Consultants, regardless of the date. Ferguson's response ...


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