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Luckinbill v. MAJ Holdings, Inc.

United States District Court, D. South Dakota, Southern Division

March 2, 2018

KATHERINE LUCKINBILL, Plaintiff,
v.
MAJ HOLDINGS, INC., A SOUTH DAKOTA CORPORATION; Defendant.

          ORDER DENYING UNITY POINT SAINT LUKE'S MOTION TO QUASH, Docket No. 67

          VERONICA L. DUFFY United States Magistrate Judge

         INTRODUCTION

         This is 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).

         FACTS

         The 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.

         On May 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 complaint.

         This 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.

         The 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.

         On 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 and/or lawsuit;
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 firm).
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 ...

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