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K.B. v. Methodist Healthcare-Memphis Hospitals

United States District Court, W.D. Tennessee, Western Division

October 31, 2017

K.B., by and through her natural parent, JENNIFER QASSIS; and LILLIAN KNOX-BENDER, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
METHODIST HEALTHCARE-MEMPHIS HOSPITALS d/b/a Methodist Hospital and Le Bonheur Children's Hospital, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO COMPEL

          TU M. PHAM UNITED STATES MAGISTRATE JUDGE

         Before the court by order of reference (ECF No. 25) is defendant Methodist Healthcare-Memphis Hospitals d/b/a Methodist Hospital and Le Bonheur Children's Hospital's ("Methodist") Motion to Compel James E. Blount IV to Respond to Discovery, filed July 10, 2017. (ECF No. 19.) Plaintiffs K.B. and Lillian Knox-Bender filed a response on July 24, 2017. (ECF No. 29.) The court held a hearing on the motion on August 23, 2017. (ECF No. 39.) For the following reasons, the court denies Methodist's motion.

         I. BACKGROUND

         In 2007, James E. Blount IV represented a plaintiff in a class action against Methodist in state court, alleging that Methodist used improper billing practices. (ECF No. 19-15.) Since the original suit, Methodist has twice removed the case to federal court, and on both occasions the case was remanded. (ECF No. 24 at 1-2.) On June 9, 2017, Methodist removed the case to federal court for the third time, creating the instant case. (ECF No. 1.)

         In the present iteration of the suit, K.B. and Knox-Bender claim that Methodist overbilled them and their insurance companies. (ECF No. 44-2 at 2-3.) They are suing Methodist for breach of contract, unjust enrichment, and violating the Tennessee Consumer Protection Act. (Id. at 4-9.) K.B. and Knox-Bender argue that any applicable statutes of limitations should be tolled due to Methodist's allegedly fraudulent concealment of its practices. (Id. at 13.) They seek compensation for the alleged overpayments, punitive damages, and an injunction. (Id. at 14-15.)

         Over the course of the lawsuit, Blount, despite serving as lead trial counsel, has elected to submit four personal affidavits to aid his clients' case. He submitted the first affidavit on September 29, 2010, to support a motion for partial summary judgment. (ECF No. 19 at 7-8, No 19-1.) In this affidavit, he stated that Jennifer Qassis hired him to represent her child, K.B., in a personal injury claim resulting from a car accident, that the tortfeasor's liability insurance carrier paid him settlement funds, and that he then provided a portion of those funds to Methodist. (ECF No. 19-1 at 3.) Blount submitted the second affidavit on June 21, 2013, to support a response opposing Methodist's motion to dismiss the suit. (ECF No. 19 at 7-8, No. 19-10.) In this affidavit, he stated that during the settlement negotiations Methodist contacted him about the balance owed on K.B.'s account and demanded payment from the proceeds of the settlement. (ECF No. 19-10 at 2.) Blount submitted the third affidavit on January 7, 2016, to support a now withdrawn motion for sanctions. (ECF No. 19 at 7-8, No. 19-19.) In this affidavit, he stated that on the day he was supposed to depose the defendant no one appeared for the deposition. (ECF No. 19-19 at 2-3.) Blount submitted his fourth affidavit on August 29, 2016, to support a now withdrawn motion for partial summary judgment and injunctive relief. (ECF No. 19 at 7-8, No. 19-3.) In this affidavit, he listed examples of the poor treatment that he and his clients had received from Methodist. (ECF No. 19-3 at 3.)

         The examples in Blount's fourth affidavit include the following: Blount stated that he received bills from Methodist failing to reflect payments that Methodist received from health insurers. (Id.) He stated that he received copies of General Condition of Admissions ("GCOA") forms and that Methodist required patients to sign the forms before receiving medical treatment. (Id.) He stated that he received "letters, faxes, telephone calls and bills" from Methodist demanding more money from his clients than his clients owed. (Id.) He stated that Methodist's "misrepresentations" about the amount of money that patients owed "needlessly prolong the process" and might deprive his clients of "money that they justly deserve." (Id.) Finally, he stated that to his knowledge Methodist has never reimbursed overpayments. (Id.)

         In light of the contents of Blount's affidavits as well as Methodist's belief that Blount "orchestrat[ed] the circumstances giving rise" to the suit, on July 10, 2017, Methodist filed a motion to compel Blount to respond to discovery and sit for an oral deposition. (ECF No. 19 at 1.) Methodist seeks to depose Blount on the following subjects: (1) Blount's and his clients' understanding of Methodist's billing practices; (2) various communications that Blount has had with Methodist; (3) Blount and his co-counsel's access to legible copies of GCOA contracts prior to 2016; and (4) Blount's handling of K.B.'s prior tort claims and settlement. (Id. at 11-14.)

         On July 24, 2017, K.B. and Knox-Bender responded in opposition to Methodist's motion to compel. (ECF No. 29 at 1.) In this motion, they argue that Methodist has not met the heightened standard necessary for deposing an opposing party's legal counsel. (Id. at 1-3.) They ask that, if this court does order Blount to submit to a deposition, the court also allow plaintiffs' counsel to depose defense attorney Buckner Wellford concerning his involvement in a minor settlement in state court. (Id. at 3.)

         II. ANALYSIS

         According to the Federal Rules of Civil Procedure, "a party may . . . depose any person." Fed.R.Civ.P. 30(a) (1) (emphasis added). However, because of the need to protect trial counsel from gratuitous burdens and costs, as well as the need to preserve the efficient function of the adversarial system, courts are wary of the discovery tactic of deposing opposing counsel. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); see also Graves v. Shelby Cty. Bd. of Educ, No. 2: 14-CV-02992-DKV, 2015 WL 13116991, at *5 (W.D. Tenn. Sept. 11, 2015) ("[D]eposing the counsel of an opposing party . has been discouraged by many courts as a means of discovery.").

         With due regard for these concerns, the Sixth Circuit has adopted the Shelton test, which sets a heightened standard that a party must overcome in order to obtain discovery from opposing counsel. Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628-29 (6th Cir. 2002) (citing Shelton, 805 F.2d at 1327) . The Shelton test applies in "those instances when the attorney to be deposed is either trial/litigation counsel or the subject matter of the deposition may elicit litigation strategy." Ellipsis, Inc. v. Color Works, Inc., 227 F.R.D. 496, 497 (W.D. Tenn. 2005) . James Blount IV is K.B. and Knox-Bender's trial counsel. Therefore, the Shelton test applies.

         According to the Shelton test, in order to depose Blount, Methodist must demonstrate that (1) deposing Blount is the only way to obtain the information it seeks, (2) this information is relevant and not privileged, and (3) the information is crucial to Methodist's preparation of the case. See Alomari v. Ohio Dep't of Pub. Safety, 626 F. App' x 558, 573 (6th Cir. 2015) (quoting Nationwide, 278 F.3d at 628). For each of the subjects about which Methodist seeks to depose Blount, Methodist fails to meet one or more of these three requirements.

         A. Methodist's ...


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