United States District Court, D. Maryland
Mark Coulson, United States Magistrate Judge
consent of the parties, this case was referred to me for all
further proceeding. (ECF No. 12). Presently pending before
the Court is Defendant's Motion to Compel [third party]
Fink and Carney Reporting and Video Services'
(“Fink & Carney”) Compliance with Subpoena
and Court Order and Request for Fees and Costs. (ECF No. 30).
The Court also reviewed Fink & Carney's
Opposition. (ECF No. 59). As set forth more fully
below, Defendant's Motion is GRANTED in part and DENIED
of background, this is a medical malpractice action before
the Court based on its diversity jurisdiction after
Plaintiffs' complied with the provisions of
Maryland's Health Care Malpractice Claims Act,
§§ 3-2A-01, et seq, Md. Cts. & Jud.
Proc. Code Ann. (the “Act”), which, as a
condition precedent, requires that medical malpractice claims
are first filed with Maryland's Health Claims Alternative
Dispute Resolution Office. Once a plaintiff files a valid
Certificate of Merit and accompanying expert report, a
plaintiff may unilaterally waive out of Health Claims
jurisdiction and re-file in an appropriate state or federal
court pursuant to §3-2A-06B of the Act, as Plaintiffs
have done here.
this is a medical malpractice case, the parties have
identified expert witnesses, including Dr. Martin Gubernick,
a standard of care witness for the Plaintiffs. Dr. Gubernick
practices Obstetrics and Gynecology in New York City. Dr.
Gubernick has been designated as an expert witness on
previous occasions, and has provided both trial and
deposition testimony in such cases. Fink & Carney is a
well-known court reporting and deposition hosting service in
Manhattan. Because of its reputation and convenient location,
Fink & Carney is a frequent deposition site choice for
lawyers and witnesses in the Greater New York City area, such
as Dr. Gubernick.
prevents expert witnesses devoting more than 20% of their
professional time to medical-legal work from offering
standard of care testimony at trial. Id. at
3-2A-04(b)(4).Defendant is, therefore, trying to develop
evidence that Dr. Gubernick's expert work exceeds this
limit such that he would be excluded from offering standard
of care testimony at trial. (ECF No. 43 at 3-4).
Additionally, Defendant is attempting to develop impeachment
material as to Dr. Gubernick, including trying to gather
information on the volume his medical-legal activities and
therefore portray him as a “professional
witness.” (ECF No. 30 at ¶ 9).
those goals, on May 15, 2018, Defendant served a subpoena
duces tecum on Fink & Carney in New York seeking
documents related to Dr. Gubernick's deposition activity
at Fink & Carney for the past five years. (ECF No. 38-1).
Fink & Carney, through New York counsel, filed a Motion
to Quash or Modify as a miscellaneous case in the United
States District Court for the Southern District of New York
raising various arguments about burden and confidential
business information. (ECF No. 38). On July 9, 2018, the
Honorable Katherine B. Forrest held that although the
information sought was relevant to the issue of Dr.
Gubernick's ability to give standard of care testimony
under the Act's “20% Rule, ” strict
compliance with the subpoena would be unduly burdensome to
Fink & Carney. (ECF No. 30-1). Thus, while Judge Forrest
denied the motion to quash, she did grant a modification of
the subpoena's requirements, limiting Fink &
Carney's required response to a three-year period, and
limiting the content of that response to providing the name
of the case in which Dr. Gubernick was deposed, date of the
deposition, and the names of attending counsel if otherwise
reasonably obtainable by Fink & Carney from a centralized
source or database. Id. By agreement of counsel, the
compliance date for the subpoena as modified was extended to
August 20, 2018. (ECF No. 30-2).
meantime, Defendant filed a separate letter in the
miscellaneous case seeking to compel compliance with a
subpoena previously served on Dr. Gubernick himself.
Plaintiffs moved (with Dr. Gubernick's consent) to
transfer that issue to this Court pursuant to Rule 45(f) of
the Federal Rules of Civil Procedure, a motion granted by
Judge Forrest on August 16, 2018. (ECF No. 30-3). After the
parties sought clarification, Judge Forrest further ordered
on August 23, 2018 that her previous transfer order applied
to the entire case, including any future motion to compel
Fink & Carney's compliance with Judge Forrest's
July 9, 2018 order for modified compliance. (ECF No. 30-4).
August 30, 2018, Defendant filed the instant Motion to Compel
seeking Fink & Carney's compliance with Judge
Forrest's August 16, 2018 order. (ECF No. 30). In sum,
Defendant argues that the transfer should have no effect on
Fink & Carney's previously promised compliance with
Judge Forrest's lawful order. For its part, Fink &
Carney urges the Court to revisit Judge Forrest's ruling.
In particular, Fink & Carney asks this Court to find that
the Act's “20% Rule” of witness exclusion is
in conflict with Rule 702 of the Federal Rules of Evidence
governing testimony by an expert witness that contains no
such restriction. Fink & Carney further argues that if
the 20% Rule is inapplicable in federal court, there is no
longer any relevance to the information Defendant seeks.
Court need not, at this time, reach the question of whether
the Act's 20% Rule also operates as a rule of witness
exclusion in federal court so as to provide appropriate
justification for the information that Defendant seeks from
Fink & Carney. Whether or not the 20% Rule applies, the
information sought is relevant to attempt to impeach Dr.
Gubernick as to the magnitude of his expert witness
activities in general, particularly if, as Defendant seems to
suggest, it might contradict testimony that Dr. Gubernick may
have given on that topic in the past. (ECF No. 43 at 4 and
n.4). This could then allow Defendant to try to characterize
Dr. Gubernick to the jury as a professional witness whose
medical opinions should be discounted.The Court also
sees no reason to re-weigh the burden and confidentiality
arguments already addressed by Judge Forrest, especially in
the face of Fink & Carney's previous willingness and
ability to comply with that order within a reasonable
timeframe. (ECF Nos. 30-2 and 30-5). Accordingly, Fink &
Carney will comply with Judge Forrest's July 9, 2018
order on or before October 12, 2018.
parties (and subsequent parties) are cautioned that, by this
opinion, this Court is not giving its blessing to wholesale,
intrusive discovery of a proposed expert witness's
medical-legal activities or financial records as a matter of
course. The prospect of being subject to such discovery can
have a chilling effect on an expert witness's willingness
to participate on behalf of a party, something that, as a
matter of public policy, is of concern particularly where it
involves an ancillary issue.
Court is also aware of the burdens that such discovery can
place upon third-party businesses, such as Fink & Carney,
should they be continually called upon to respond to
subpoenas and discovery and to disclose information about
their customers and business. The Court's willingness to
enforce such efforts will depend on an individualized
analysis of the particular circumstances of the case and
their interplay with the relevancy, proportionality, and
efficiency requirements contained in the Federal Rules of
Civil Procedure. Of significance in this case are Judge
Forrest's conclusions in weighing the compliance burdens
in this particular case and Fink & Carney's previous
willingness and ability to comply with that ruling. (ECF Nos.
30-2 and 30-5). This does not, however, preclude Fink &
Carney or other third parties from raising such arguments
with regard to future subpoenas and/or in future cases.
Defendant's request for fees and costs, it is denied.
Fink & Carney has acted in good faith in its
communication with the Southern District, this Court, and
Defense Counsel as it sorted through the jurisdictional
issues presented in this ...