United States District Court, D. South Dakota, Southern Division
ORDER DENYING UNITY POINT SAINT LUKE'S MOTION TO
QUASH, Docket No. 67
VERONICA L. DUFFY United States Magistrate Judge
a personal injury lawsuit brought by plaintiff Katherine
Luckinbill, a resident of Nebraska, against defendant MAJ
Holdings, Inc. (“MAJ”), a South Dakota
corporation which owns and operates the Armour Quick Stop gas
station and convenience store in Armour, South Dakota.
Jurisdiction is founded upon the diverse citizenship of the
parties and an amount in controversy in excess of $75, 000.
Ms. Luckinbill's attorneys served a subpoena duces
tecum on third party Unity Point Health-St. Luke's
of Sioux City, Iowa (“Unity Point”). See
Docket No. 67-1. Unity Point has moved to quash the subpoena.
See Docket No. 67. The Honorable Lawrence L.
Piersol, United States District Judge, referred Unity
Point's motion to this magistrate judge for resolution.
See Docket No. 68; 28 U.S.C. § 636(b)(1)(A).
following facts are taken from the plaintiff's complaint
for the purpose of providing some context for evaluating
Unity Point's motion. Citation of these facts is not an
endorsement of their verity by the court.
21, 2014, Ms. Luckinbill entered the Armour Quick Stop. Upon
leaving that business, she stepped into a hole in the
sidewalk in front of the store, injuring her ankle. Employees
of the store told Ms. Luckinbill after she had been injured
that they were aware of the existence of the hole in the
sidewalk and that other persons had previously also fallen
into the hole and been injured. Ms. Luckinbill suffered a
broken ankle and asserts permanent injury and work
limitations which reduce her post-accident earning capacity.
She asserts a single count of negligence against MAJ in her
case has been pending for two years. It was scheduled to go
to trial June 27, 2017, and in anticipation of that date, the
parties filed motions in limine, proposed jury
instructions and verdict forms. On June 13, 2017, Ms.
Luckinbill moved to continue the trial. Docket 51. She had
seen her treating physician on June 5, 2017, and he had
revised his opinions as to the need for greater work
restrictions for Ms. Luckinbill and as to the need for future
care. Id. This, in turn, required Ms.
Luckinbill's vocational expert and economist to revise
their opinions as well. Id.
district court granted the continuance and later set the
trial date in this matter for July 24, 2018. Docket No. 65.
In addition, the district court ruled that the new medical
opinions from Ms. Luckinbill's doctor would be admissible
at trial as would any responsive expert opinions from
defendant. Docket No. 64. Following these events, Ms.
Luckinbill apparently submitted to an independent medical
examination (IME) with defendant's (also apparently)
designated expert, Dr. Douglas Martin. Dr. Martin's
deposition has since been taken by plaintiff's lawyers.
Dr. Martin is an employee of nonparty Unity Point.
November 15, 2017, plaintiff's counsel served Unity Point
with a subpoena duces tecum, which is the subject of
the pending motion. That subpoena demanded Unity Point
produce the following categories of information:
1. Any information indicating the complete caption or other
identifying information of all litigation and/or lawsuits in
the past three years in which your employee, Dr. Douglas W.
Martin, has prepared a report, provided a deposition, or
offered any testimony;
2.Any information indicating the gross annual billings Dr.
Martin or Unity Point Health has charged in the last three
years for Dr. Martin to prepare independent, impartial, or
adverse expert reports, give deposition testimony, and/or
give testimony at trial in the context of a litigation matter
3. Any information relating to the percentage of Dr.
Martin's annual income from Unity Point Health that is
derived from preparing independent, impartial, or adverse
expert reports, giving deposition testimony, and/or giving
testimony at trial at the request of any person or entity
(including but not limited to, a defendant, defendant's
insurer, defendant's employee, or defense attorney or law
4. A list, spreadsheet, or data file containing the names and
contact information of all individuals or entities requesting
or retaining Dr. Martin to prepare independent, impartial, or
adverse expert reports in the last three years including in
such list the amounts paid for said report by each individual
entity or the representative or insurer for each individual
or entity. If no such list, spreadsheet, or data file exists,
provide information sufficient to identify all such
individuals or entities and their contact information.
5. A list, spreadsheet, or data file containing the names and
contact information of all individuals who were the subject
of independent, impartial, or adverse expert reports prepared
by Dr. Martin in the past three years. If no such list,
spreadsheet, or data file exists, provide information