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Al-Ameri v. Johns Hopkins Hospital

United States District Court, D. Maryland

May 26, 2016

Al-Ameri, et al.
The Johns Hopkins Hospital

         Dear Counsel:

         This 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.

         After 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.

         I. Background

         This 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.

         Among 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. 34-23].

         Defendant 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.

         II. Legal Standard

         Federal 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).

         III. Analysis

         Defendant 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 requests.[1]

         All of 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.

         Indeed, 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.

         The 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 an admission.”).

         Likewise, 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 ...

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