United States District Court, D. Maryland
Al-Ameri, et al.
The Johns Hopkins Hospital
case was referred to me by Judge Russell for discovery and
all related scheduling. [ECF No. 36]. Pursuant to this
referral, I reviewed Defendant’s Motion to Compel
Supplemental Discovery Responses and Document Production.
See [ECF No. 34]. Plaintiffs did not file an
Opposition. However, during a status conference call with
counsel for both parties on May 10, 2016, Plaintiffs noted
that they had prepared an Opposition, but conceded that it
had not been timely filed. Plaintiffs were instructed to
immediately file their Opposition, and to confer with
Defendant to determine whether Plaintiffs’ Opposition
resolved any of the discovery disputes. Plaintiffs filed
their Opposition on May 10, 2016. See [ECF No. 38].
Thereafter, counsel for both parties informed the Court that
none of the discovery disputes addressed in the Motion to
Compel had been resolved.
reviewing Plaintiffs’ Opposition, I held a second
status conference call on May 20, 2016, during which counsel
clarified their arguments with respect to the instant motion.
Pursuant to that discussion, Defendant’s Motion to
Compel is DENIED on the basis that compelling the discovery
sought would be futile. This letter explains my rationale.
medical malpractice action arises out of the now-deceased
Minor Plaintiff’s spinal deformity correction surgery,
which took place at Johns Hopkins Hospital (“the
Hospital”) in Baltimore, Maryland on February 24, 2012.
Compl. at ¶ 7, 8, [ECF No. 3]. Plaintiffs Saeed Al-Ameri
and Tina Assouidi Al-Ameri (“Plaintiffs” or
“the Al-Ameris”), the parents of the decedent,
allege that the Hospital was negligent in its care and
treatment of the Minor Plaintiff, which resulted in severe
and permanent injuries, including quadriplegia, as well as
her untimely death. Compl. ¶¶ 8-24. Plaintiffs also
allege that they lacked informed consent for the procedure
and treatment, and that, had they been fully advised of the
material risks associated with the procedure and treatment,
they would have refused the surgery. Id.
other damages, Plaintiffs seek compensation for all past
medical expenses related to the Defendant’s alleged
negligence. Plaintiffs assert that the Minor Plaintiff
received post- surgery care for her quadriplegia and other
impairments at Kennedy Krieger Institute in Baltimore and the
Children’s Hospital of Philadelphia in the United
States, and at the Johns Hopkins Tawam Hospital and the Amana
Long Term Care & Rehabilitation Hospital in the United
Arab Emirates, until her death on July 1, 2015. Def.’s
Mem. in Support of Mot. to Compel at 5, [ECF No. 34-1]. The
Minor Plaintiff was a citizen of the United Arab Emirates
(“UAE”). As a benefit of UAE citizenship, she
received health care at no cost to her or her family. The
UAE’s health insurance scheme is administered through
the Thiqa insurance company. As it did here, the UAE
government, through Thiqa, will, if necessary, arrange for
citizens to travel abroad to receive specialized treatment.
Plaintiffs have thus alleged, and the UAE embassy confirmed,
that the UAE government will be asserting a lien against any
recovery in this litigation. See Def.’s Mot.
to Compel Ex. 1 at 15, [ECF No. 34-3]; Ex. 21, [ECF No.
served Plaintiffs with its discovery requests on July 21,
2015. Def.’s Mot. to Compel at ¶ 2, [ECF No. 34].
Although Plaintiffs responded to Defendant’s
interrogatories and document requests on October 1, 2015,
see Def.’s Mot. to Compel Ex. 1, Defendant
contends that this response was insufficient. After
conferring with Plaintiffs’ counsel to address
purported deficiencies pursuant to Local Rules 104.7 and
104.8, Defendant filed the instant motion.
Rule of Civil Procedure 26(b)(1) permits discovery of
“any nonprivileged matter that is relevant to any
party’s claim or defense and proportional to the needs
of the case.” In determining proportionality, the Court
must consider “the importance of the issues at stake in
the action, the amount in controversy, the parties’
relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed
discovery outweighs its likely benefit.” Fed.R.Civ.P.
26(b)(1). Federal Rule 34, which governs requests for
document production, permits parties to request the
production of any documents or electronically stored
information within another party’s possession, custody,
or control. Fed.R.Civ.P. 34(a).
disputes as insufficient Plaintiffs’ responses to
Requests for Document Production Nos. 4, 5, 6, 7, 16, 17, 18,
19, 20, and 21, and Plaintiff’s answer to Interrogatory
No. 13. These requests seek documentation evidencing the
Minor Plaintiff’s medical expenses claimed as damages
(Requests Nos. 4 and 5); copies of any correspondence between
Plaintiffs and the Hospital that relate to the Minor
Plaintiff’s medical care and consent to the procedure
at the Hospital (Requests Nos. 6 and 7); copies of any
requests, forms, or applications for payment made by
Plaintiffs to Thiqa, the UAE national health insurance
provider, related to the Minor Plaintiff’s medical
expenses and care (Requests Nos. 16, 17, 18, and 19); and
information and any documentation evidencing the existence
and amount of any liens asserted in the outcome of this
litigation by the UAE government (Requests Nos. 20 and 21,
and Interrogatory No. 13). In addition, Defendant alleges
that Plaintiffs have not made themselves or their key
witnesses available for deposition, despite numerous
the disputed discovery requests seek documents that are
located in the UAE. Plaintiffs do not challenge the relevance
of the supplemental discovery sought, Defendant’s
entitlement to the discovery sought, or that
Plaintiffs’ heretofore-provided documents are not
sufficiently responsive to Defendant’s requests.
Rather, Plaintiffs assert that they have made good faith
efforts to obtain the requested documents from relevant
entities in the UAE, to no avail so far.
as to the Minor Plaintiff’s billing and care records
from UAE hospitals sought in Requests Nos. 4 and 5, the
record shows that Plaintiffs have attempted to contact Johns
Hopkins Tawam Hospital to obtain documents pertaining to the
Minor Plaintiff’s medical care for over a year.
See Pl.’s Opp. Ex. B [ECF No. 38-2]; Ex. C,
[ECF No. 38-3]. Plaintiffs have provided Defendant with
authorizations to independently obtain the medical records
from the UAE facilities. They have also provided Defendant
with a letter identifying the daily rate information for the
cost of care in the UAE, and records from the UAE hospitals
that were personally obtained by the Al-Ameris. Id.
at 4. Plaintiffs acknowledge, however, that these steps are
insufficient to resolve the discovery disputes, and that they
bear the continued burden of responsive production.
Similarly, as to the documents substantiating the amount of
the UAE’s lien sought in Requests Nos. 20 and 21, and
Interrogatory No. 13, Plaintiffs’ counsel maintains
that it has “made numerous efforts” to produce
itemized lien information from both the UAE hospitals and the
UAE embassy, and that “specific documentation should be
forthcoming.” Pl.’s Opp. at 7.
so-called “discovery dispute” regarding these
document requests, then, is not really a dispute at all.
Plaintiffs concede that they must produce the existing
requested documents, but the fact remains that, for over a
year, they have tried, and failed, to do so. Thus, as
discussed during the status conference call, there is no
reason to grant Defendant’s motion as to Requests Nos.
4, 5, 20, and 21, since doing so would be futile. Plaintiffs
are not engaging in gamesmanship or withholding information.
They acknowledge that the documents are crucial to the case,
but are presently unable to obtain them. Compelling these
documents would not suddenly change Plaintiffs’
situation or make the documents producible. See
Lumbermens Mut. Cas. v. United States, 70 Fed.Cl. 94, 97
(2006) (“We concur with Plaintiff that the documents
are relevant and that they should have been made available,
but ordering the Government to produce the documents that it
has represented either no longer exist, or are impossible to
locate, would be a futile act. Our ordering the Government to
compel discovery would not assist Plaintiff. Such an act
would serve only to command the Government to acknowledge on
the record that it cannot produce documents that should be
under its control. [The Government] has already offered such
compelling the documents sought in Requests Nos. 6, 7, 16,
17, 18, and 19 would be meaningless. Plaintiffs initially
responded, and re-affirmed in their Opposition, that they are
not in possession of any documents responsive to Requests
Nos. 6 and 7. These requests seek copies of all documents
that reflect or describe any conversations with or complaints
made to health care providers relevant to this case (Request
No. 6), and copies of electronic communications relating to