SCRANTON – A federal magistrate judge has denied the attempt of a Shohola nursing home to preclude discovery evidence in a wrongful death lawsuit against it, but added that plaintiff counsel must create a new case management plan by the end of the month to properly facilitate discovery, and pay its opposition’s fees.
U.S. Magistrate Judge Martin C. Carlson made such a ruling in a memorandum opinion on Nov. 9, in the litigation from Jeanne M. Hamill versus Twin Cedars Senior Living, LLC.
According to Carlson, the failures to comply with discovery guidelines “are grave errors that in our view warrant some sanctions”, but adding the Court further “recognized that this case involves claims arising out of a fatality and we do not believe that the lawyer’s error should redound to the detriment of the client.”
“Jeanne Hamill brought this case on behalf of her deceased husband on Feb. 10, 2020, and filed an amended complaint on March 17, 2020, which is currently the operative pleading in this case. The amended complaint alleges that Eugene Hamill became a resident of Twin Cedars on July 6, 2018. Mr. Hamill had several serious medical diagnoses, including hypertension, atrial fibrillation, and coronary artery disease, among others, and was required to wear a cardiac life vest,” Carlson stated.
“The complaint further alleges that on Sept. 11, 2018, Twin Cedars made arrangements to discharge Mr. Hamill from the facility. These arrangements allegedly included a three-hour Uber ride from Twin Cedars to Mr. Hamill’s home in Toms River, New Jersey. The complaint further alleges that Defendant Singer was responsible for these arrangements, and that she was told it was an unsafe discharge plan. Nonetheless, Mr. Hamill was discharged on Sept. 11, 2018 and an Uber took him to his residence in Toms River.”
During the trip to Toms River, the suit said Mr. Hamill began vomiting in the Uber, became unresponsive and required an EMS transport to Barnabas Health Community Center where he was intubated, put on a ventilator and placed in the Intensive Care Unit – where he then suffered a stroke and heart attack.
After receiving treatment in the ICU, Mr. Hamill was transferred to a Skilled Nursing Facility, where he remained until he passed away just over a year later on
Sept. 26, 2019. His widow, the plaintiff, then brought suit against the defendants, alleging claims of negligence, wrongful death and survival.
“According to the defendants’ current sanctions motion, the plaintiff has defaulted on her discovery obligations by providing inadequate responses to some discovery in November of 2020, by failing to timely schedule depositions in March of 2022, and by failing to make timely disclosures of expert witnesses by the June 2022 deadline prescribed by the Court. While plaintiff’s counsel has some disputes regarding deposition scheduling and the sufficiency of November 2020 discovery disclosures, with respect to the failure to make timely disclosure of expert witnesses, it seems undisputed that plaintiff’s counsel did not comply with our scheduling order,” Carlson said.
“This failure to provide timely expert discovery is potentially highly prejudicial to the plaintiff’s case. Indeed, that prejudice is illustrated by the fact that the defendants have moved for summary judgment, arguing in part that the plaintiff’s case fails as a matter of law due to the plaintiff’s failure to provide expert support for her claims. In the face of this potential harm to his client’s case, while plaintiff’s counsel has provided an explanation for this default rooted in some personal hardships, he has not provided an excuse for this delay, beyond noting that he has now made tardy expert witness disclosures. Nonetheless, these tardy disclosures, if accepted by the court, would now compel additional cost and expense by the defendants, who may well seek to depose the plaintiff’s expert and their own expert witnesses to respond to these belated disclosures.”
Carlson said the imposition of the harshest possible of sanctions – preclusion of evidence – would be prejudicial to the severe claims of fatal negligence and neglect leveled against the defendant, and given the gravity of such claims, the Court would not go as far as to preclude evidence in this case.
“On the other hand, while the defendants are undoubtedly prejudiced to some degree by the tardy disclosure of this information, we have the ability to cure this prejudice in large measure by allowing the defense to pursue expert discovery, and by compelling plaintiff’s counsel to pay reasonable expenses, including attorney's fees, caused by the failure to provide timely and fulsome discovery. Moreover, we note that this case is not yet scheduled for trial so there remains ample time in which to mitigate this prejudice to the defense,” Carlson said.
“In addition, we find that the discovery defaults by plaintiff’s counsel, while grave, were not done willfully. Rather, it appears that counsel simply neglected to fulfill some professional obligations due to other pressing personal concerns. In our view, on these facts exclusion of evidence – a sanction which punishes the client – would not be an appropriate response to counsel’s neglect.”
As a result, Carlson denied the motion to preclude the evidence in question, but added he would approve a request by defense counsel to require plaintiff’s counsel “to pay the reasonable expenses, including attorney's fees, caused by the failure to provide timely and fulsome discovery.”
U.S. District Court for the Middle District of Pennsylvania case 3:20-cv-00231
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com