Doctor Sues Lumenis - TN - 2011

Doctor Sues Lumenis - TN - 2011

PostPosted by DCNGA » Tue Jan 17, 2012 4:02 pm

From 2011: http://scholar.google.com/scholar_case? ... s_ylo=2009

STEVEN BENGELSDORF, MD, PLLC, et al., Plaintiffs,
v.
LUMENIS, INC., Defendant.
No. 3:09-0911.
United States District Court, M.D. Tennessee, Nashville Division.

March 21, 2011.

MEMORANDUM AND ORDER

JOHN S. BRYANT, Magistrate Judge.

Defendant has filed its motion to clarify (Docket Entry No. 78), seeking a clarification of a prior ruling of the Court (Docket Entry No. 68). Plaintiffs have filed their motion to enforce the same ruling (Docket Entry No. 80), to which defendant has filed a response in opposition (Docket Entry No. 96).

The earlier ruling of the Court that has prompted these two motions is found in a sentence in the Court's memorandum and order of February 9, 2011, ruling upon plaintiffs' motion to compel discovery (Docket Entry No. 68). The sentence in question reads as follows: "The Court finds that defendant Lumenis should produce any reports or notices from consumers, customers, governmental agencies or any other source related to excessive error messages, system shutdowns or other interruptions of patient treatment on the Lumenis One device, whether attributable to software problems, switching modules, or any other cause." (Docket Entry No. 68 at 5).

Defendant Lumenis, in its motion for clarification, apparently seeks a ruling limiting its obligation to respond to include only those reports, complaints or notices of problems that ultimately required that a device be replaced (Docket Entry No. 78 at 1). This was not the Court's intent. The original complaint in this case asserts that plaintiffs experienced (1) excessive error messages, (2) system shutdowns, and (3) other interruptions in the operation of its Lumenis One while treatment was being administered to patients. The Court's intent in its prior ruling was to require Lumenis to produce in discovery any reports or notices from any source related to substantially similar problems on other Lumenis One devices, regardless of any action taken as a result of such reports or notices.

Defendant Lumenis's motion for clarification (Docket Entry No. 78) is GRANTED, consistent with the foregoing explanation.

Plaintiffs' motion to enforce (Docket Entry No. 80) seeks an expansive interpretation of the Court's previous ruling. Specifically, plaintiffs apparently believe that the Court's previous ruling should be read to require Lumenis to provide any reports or notices relating to at least 21 specific categories (Docket Entry No. 81 at 6-7) including, "complete service records of any and all Lumenis One devices." This very expansive interpretation exceeds the limits of the Court's prior ruling. Accordingly, plaintiffs' motion to enforce (Docket Entry No. 80) is DENIED.

It is so ORDERED.



AND

http://scholar.google.com/scholar_case? ... s_ylo=2009


STEVEN BENGELSDORF, MD, PLLC, et al., Plaintiffs,
v.
LUMENIS, INC., Defendant.
No. 3:09-0911.
United States District Court, M.D. Tennessee, Nashville Division.

February 9, 2011.

MEMORANDUM AND ORDER

JOHN S. BRYANT, Magistrate Judge.

Plaintiffs have filed their Motion To Compel Responses to Interrogatories and Requests for Production of Documents (Docket Entry No. 24), to which defendant responded in opposition (Docket Entry No. 26).

Plaintiffs thereafter filed their "Motion for Leave To File Reply in Support of Motion To Compel and for Leave To Amend Complaint, If Necessary" (Docket Entry No. 30). The Court granted plaintiffs leave to file a reply in support of their motion to compel (Docket Entry No. 33).

Plaintiffs filed a motion for a hearing on their motion to compel responses (Docket Entry No. 31).

Defendant filed a response in opposition to plaintiffs' motion for leave to amend, if necessary (Docket Entry No. 58).

For the reasons stated below, the undersigned Magistrate Judge grants in part and denies in part plaintiffs' motion to compel responses (Docket Entry No. 24), denies without prejudice plaintiffs' motion for leave to amend complaint, if necessary (Docket Entry No. 30), and denies plaintiffs' motion for hearing (Docket Entry No. 33).

Plaintiffs' motion to compel responses. Plaintiffs seek an order compelling defendant Lumenis to serve "full and complete responses" to four interrogatories served jointly with companion requests for production: numbers 11, 12, 13 and 15. Lumenis has previously served objections that plaintiffs insist lack merit and responses that plaintiffs characterize as insufficient.

Rule 26(b)(1) of the Federal Rules of Civil Procedure permits discovery of "any nonprivileged matter that is relevant to any party's claim or defense." Relevance for discovery purposes is construed broadly. Discoverable evidence need not be admissible at trial; rather, information is discoverable if it is "reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1). Nevertheless, discovery does have "ultimate and necessary boundaries," Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), "and it is well established that the scope of discovery is within the sound discretion of the trial court." Coleman v. Am. Red Cross, 23 F.3d 1091, 1096 (6th Cir. 1994).

PInterrogatory No. 11/Request for Production No. 11: Please describe any consumer reports or any other reports regarding the Lumenis One, including complaints, malfunctions, patient injury, recalls, and any alerts or other reports from any governmental agency, department or administration, including but not limited to the Food and Drug Administration.

Response No. 11: Objection. This interrogatory seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence. It seeks information that is confidential, private, proprietary and/or trade secret. It seeks information protected by HIPPA. Notwithstanding and subject to these objections, Lumenis responds as follows: The information requested is publicly available from the FDA's Manufacturer and User Facility Device Experience data base.

Defendant Lumenis objects to this interrogatory and document request primarily on grounds of relevance. Specifically, defendant argues that the scope of this interrogatory and document request exceeds that which is reasonably relevant to any of the claims raised in the complaint. Summarizing, the complaint alleges that plaintiff Bengelsdorf, a physician, purchased a Lumenis One device from the defendant in August 2006. Plaintiffs assert that the Lumenis One device consists of three different modules that can be used to perform many treatments, including photo rejuvenation, laser hair removal, and laser vein removal. In addition, the Lumenis One includes an integrated patient data base used by the operator for storing and tracking patient treatment information, such as dates, device settings, and duration of treatments for individual patients.

The complaint alleges that since purchasing the Lumenis One plaintiffs have experienced "continuous problems with the machine, including numerous error messages and, at times, a system shutdown in the middle of patient treatment." Due to ongoing problems and numerous service visits required to keep the machine operational, plaintiffs allege that upon expiration of the warranty plaintiff Center entered into a Service Contract Agreement with Lumenis on April 1, 2009. Pursuant to this contract, defendant Lumenis agreed to provide service on the Lumenis One for a period of one year.

After plaintiffs experienced ongoing problems, described as "error messages and complete failure of the machine during patient treatments," a Lumenis service technician informed plaintiffs that the Lumenis One needed a software update. This software update was attempted on May 5, 2009. The complaint alleges that, during the course of this supposed software update, Lumenis technicians negligently deleted all of the data from the patient database on the Lumenis One. Thereafter, the complaint alleges, the Lumenis technicians requested plaintiffs' data backup, purportedly to perform a software update on the backup. Actually, the technicians intended to use the backup to restore the data that they had negligently deleted from plaintiffs' device. However, the complaint alleges that Lumenis technicians then negligently deleted the patient data from plaintiffs' backup database as well. Subsequent efforts to restore the lost data have been unsuccessful.

The complaint contains six numbered counts: (1) breach of the Service Contract Agreement by failing to cure the ongoing problems with the Lumenis One and deletion of data from the Lumenis One database and its backup; (2) negligence in failing to provide service on the Lumenis One and in deleting the patient treatment data previously described; (3) gross negligence in "the deletion of the backup key for the Lumenis One database and the failure to cure the ongoing problems with the Lumenis One"; (4) fraudulent misrepresentation in failing to disclose that the Lumenis One's database had been deleted during the software update; (5) misrepresentation by concealment by failing to disclose that the Lumenis technicians had deleted the patient database when they requested access to the plaintiffs' backup key; and (6) violation of the Tennessee Consumer Protection Act by "misrepresenting and failing to inform Plaintiffs of the deletion of the database on the Lumenis One and requesting Plaintiffs' backup key, resulting in the deletion of almost three years of patient treatment data."

Given the foregoing allegations, the undersigned Magistrate Judge finds that plaintiffs' motion to compel with respect to interrogatory and request for production No. 11 should be GRANTED in part and DENIED in part. The Court finds that defendant Lumenis should produce any reports or notices from consumers, customers, governmental agencies or any other source related to excessive error messages, system shutdowns or other interruptions in patient treatment on the Lumenis One device, whether attributable to software problems, switching modules, or any other cause. To the extent that plaintiffs' interrogatory and request for production seeks information about "patient injury, recalls, or other types of malfunctions," the Court finds that such matters are not relevant to claims raised by the plaintiffs in this action and, to that extent, plaintiffs' motion to compel should be denied.

Interrogatory and Request for Production Nos. 12 and 13:

Interrogatory and Request Nos. 12 and 13 seek information regarding two Lumenis products other than the Lumenis One. These requests and the defendant's responses read as follows:

Interrogatory and Request No. 12: Please describe the M22 Lumenis device and specifically, how it is different from the Lumenis One.

Response No. 12: Objection. This interrogatory seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence. It seeks information that is confidential, proprietary, and/or trade secret. Notwithstanding and subject to these objections, Lumenis responds as follows: See response to Request for Production No. 12.

Supplemental Response No. 12: The Lumenis One offers Universal IPL, LightSheer Diode Laser, and an Nd:Yag laser. The M22 does not offer the LightSheer capability.

Interrogatory and Request No. 13: Please describe the Lumenis DUET device and specifically, whether there have been any reported problems with its software.

Response No. 13: Objection. This interrogatory seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence. It seeks information that is confidential, proprietary, and/or trade secret. Notwithstanding and subject to these objections, Lumenis responds as follows: See response to Request for Production No. 13.

Supplemental Response: The Lumenis Duet consists of two LightSheer heads, a LightSheer ET and LightSheer HS.

Plaintiffs argue that defendant's objections lack merit and that its responses are insufficient. Specifically, plaintiffs maintain that the Lumenis response "does not describe all of the component hardware and software of the M22 Lumenis device or all of the differences between the M22 device and the Lumenis One." Plaintiffs argue that the M22 device was designed and released as the "next generation" Lumenis One device, and was originally named the "Lumenis Two." Plaintiffs maintain that release of the M22 device was necessitated because of Lumenis's recognition of deficiencies in the Lumenis One.

Similarly, plaintiffs argue that "[i]t is likely Lumenis designed the Lumenis DUET device in an attempt to eliminate known problems with the Lumenis One by eliminating or changing problematic elements of that device." Based upon this assertion, plaintiffs argue that information regarding the design and operation of the Lumenis DUET device is relevant to claims raised in this case.

In opposition to plaintiffs' motion to compel, defendant Lumenis has filed the declarations of Omer Peled and Robert Mann (Docket Entry Nos. 27 and 28). Mr. Peled is the Global Director of Intellectual Property for Lumenis and Mr. Mann is the Senior Vice President and General Manager of Lumenis Inc.'s Aesthetic Business. In these two declarations, Mr. Peled and Mr. Mann state that plaintiffs' arguments about the origins and design purposes of both the M22 device and the DUET device are incorrect. Specifically, neither of these devices were developed as an intended replacement for the Lumenis One, nor were they designed to "eliminate known problems with the Lumenis One," as plaintiffs claim. According to the declarations of Mr. Peled and Mr. Mann, these three Lumenis devices serve different purposes in Lumenis's product line "and are geared toward different end users." (Docket Entry No. 28). According to these two declarations, the M22 and DUET products are materially different from the Lumenis One, including but not limited to their use of different software programs.

Based upon the record before the Court, the undersigned Magistrate Judge finds that the Lumenis M22 device and the Lumenis DUET device are materially dissimilar to the Lumenis One, and, therefore, that their designs are not relevant to the issues raised in this case. In addition, the undersigned Magistrate Judge finds that the information contained in the declarations of Mr. Peled and Mr. Mann constitute a sufficient response to interrogatories No. 12 and 13 such that a motion to compel further response must be denied.

Interrogatory No. 15 and Request for Production No. 15: Please describe any data, including Clinical Data, information, reports, or other documents provided to the Food and Drug Administration prior to marketing and selling the Lumenis One in the United States and specifically any information regarding the switching module and software control for the switching module.

Response No. 15: Objection. This interrogatory is overly broad and unduly burdensome. This interrogatory seeks information that is irrelevant and unlikely to lead to the discovery of admissible evidence. It seeks information that is confidential, proprietary, and/or trade secret. Notwithstanding and subject to these objections, Lumenis responds as follows: See response to Request for Production No. 15.

Supplemental Response No. 15: The Lumenis One received FDA approval based on its similarity to the predicate devices, which included the Lumenis Family of Intense Pulsed Light and IPL/Nd:Yag Systems, the LightSheer Pulsed Diode Array Laser System, and the Aluma Skin Renewal System.

As the above response states, defendant Lumenis has objected to producing all information provided to the Food and Drug Administration in connection with its premarket notification for the Lumenis One on grounds of relevance and the confidential and proprietary nature of the information. Based upon the allegations in the complaint, the undersigned Magistrate Judge finds that the request, which seeks "any data" provided to the FDA prior to marketing the Lumenis One to be excessive and unduly broad. For example, plaintiff's request would include all technical data relating to the effectiveness of the laser and light therapy elements of this machine, although these components are not challenged or questioned in the complaint. From a reading of the complaint, and from the documents supporting plaintiffs' motion to compel, it appears that plaintiffs are primarily interested in information relating to the switching module and software control for the switching module and the Rossi Patient Database included as components on the Lumenis One device. It further appears that plaintiffs suspect, at least preliminarily, that the excessive error messages and interruptions of patient treatment alleged in the complaint may be related to these components of the Lumenis One.

The undersigned Magistrate Judge finds that a request seeking "all data" supplied to the FDA is overly broad and unduly burdensome and, considering the highly proprietary and confidential nature of such data, the undersigned Magistrate Judge finds that plaintiffs' motion to compel response to the interrogatory and request for production as written must be denied.

Plaintiffs have combined their motion for leave to file a reply in support of their motion to compel with a motion for leave to amend their complaint, "if necessary" (Docket Entry No. 30). the Court previously granted that motion to the extent of leave to file a reply (Docket Entry No. 33).

Rule 15(a) of the Federal Rules of Civil Procedure provides that the court "should freely give leave [to amend pleadings] when justice so requires." Although plaintiffs seek leave to amend their complaint "if necessary," they have not filed a copy of the amendments they propose. Therefore, in the absence of a statement of the amendments that plaintiffs seek to make, the undersigned Magistrate Judge lacks any basis to determine whether "justice so requires." Therefore, the Court DENIES plaintiffs' motion for leave to amend their complaint without prejudice to their filing a properly supported motion.

Finally, plaintiffs have filed a motion for hearing on their motion to file reply in support of their motion to compel and to amend the complaint, if necessary (Docket Entry No. 31). In view of the extensive briefing on these motions, the Court finds that a hearing would not be helpful in resolving these matters. Therefore, plaintiffs' motion for a hearing is DENIED.

Summarizing, the Court:

1. grants in part and denies in part plaintiffs' motion to compel (Docket Entry No. 24). The Court grants plaintiffs' motion and orders defendant Lumenis to produce, on or before February 25, 2011, any reports, complaints or notices from consumers, customers, governmental agencies or other sources related to excessive error messages, system shutdowns or other interruptions in patient treatment on the Lumenis One device, whether attributable to software problems, switching modules, or other causes. The Court otherwise denies plaintiffs' motion to compel;
2. Plaintiffs' motion for leave to amend the complaint, "if necessary," (Docket Entry No. 30) is denied without prejudice to plaintiffs' right to file a motion for leave to amend with proper support; and
3. Plaintiffs' motion for hearing (Docket Entry No. 31) is denied.


AND

http://scholar.google.com/scholar_case? ... s_ylo=2009

STEVEN BENGELSDORF, MD, PLLC, et al., Plaintiffs,
v.
LUMENIS, INC., Defendant.
No. 3:09-0911.
United States District Court, M.D. Tennessee, Nashville Division.

February 11, 2011.

MEMORANDUM AND ORDER

JOHN S. BRYANT, Magistrate Judge.

Pending is defendant Lumenis's motion to compel responses to discovery requests and subpoena duces tecum (Docket Entry No. 35) to which plaintiffs have filed a response in opposition (Docket Entry Nos. 52 and 53).

Defendant Lumenis filed a motion for leave to file a reply (Docket Entry No. 48), to which plaintiffs responded in opposition (Docket Entry No. 50).

Defendant Lumenis filed its motion for a hearing (Docket Entry No. 56) and a second motion for leave to file a reply in support of its motion to compel (Docket Entry No. 57).

For the reasons stated below, the undersigned Magistrate Judge GRANTS in part and DENIES in part defendant Lumenis's motion to compel responses (Docket Entry No. 35), GRANTS defendant's motions for leave to file a reply (Docket Entry Nos. 48 and 57), and DENIES defendant's motion for a hearing (Docket Entry No. 56).


Defendant's Motion To Compel

By its motion, defendant Lumenis seeks an order compelling plaintiffs to make complete responses to initial disclosures required by Rule 26(a) of the Federal Rules of Civil Procedure and certain interrogatories and requests for production of documents, and compelling third-party Osborne & Co. P.C., plaintiffs' accountant, to respond to a subpoena duces tecum dated July 1, 2010. Defendant also seeks an award of monetary sanctions.

The discovery requests at issue in this motion relate to the plaintiffs' claims of economic damages. Rule 26(a)(1)(A)(iii) requires a party to provide to the other parties "a computation of each category of damages claimed by the disclosing party — who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered." While it appears that plaintiffs have disclosed a number of different categories of damages for which they seek recovery, defendant asserts that plaintiffs have not provided a computation of the amounts of these various categories of damages, nor have they produced the documents or other evidentiary materials on which each such computation is based. Plaintiffs concede that they have not provided such computations, but they assert that such computations may be based upon expert testimony. Similarly, while it appears that plaintiffs have produced a number of pertinent documents, they have stated their willingness to produce additional documents supporting their damages claims as soon as an appropriate protective order is entered. The undersigned Magistrate Judge entered a protective order submitted jointly by the parties on March 15, 2010 (Docket Entry No. 16), so the lack of a protective order should no longer be an obstacle to plaintiffs' production of pertinent records and documents supporting their damage claims.

From a review of the record and the multiple filings of the parties, the undersigned Magistrate Judge finds that plaintiffs should supplement their initial disclosures on or before Friday, February 25, 2011, and, in compliance with Rule 26(a) provide "a computation of each category of damages claimed" and "make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered."


Responses To Interrogatories And Requests For Production

Defendant Lumenis further seeks an order compelling plaintiffs to make supplemental responses to certain interrogatories and requests for production of documents.

Rule 26(b)(1) of the Federal Rules of Civil Procedure states the general rule that, unless otherwise limited by court order, parties "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter." This rule further states that relevant information "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."

Interrogatory No. 1 and Request for Production No. 1 seek a statement of the specific damages claimed by plaintiffs, the bases therefor, identification of documents referring to or relating to such damages, and the identity of persons with knowledge of facts relating to such damages. Plaintiffs have objected to these requests on the grounds that it has retained, or will be retaining, an expert to offer expert testimony on the nature and amounts of these damages. While plaintiffs may certainly employ an accountant or other expert to perform necessary calculations as well as testify as an expert witness at trial, this does not relieve plaintiffs of their obligation to perform such calculations and reveal them in response to discovery. Moreover, their decision to employ an expert witness at trial does not entitle plaintiffs to defer responding to this discovery until the deadline for disclosing opinions of expert witnesses, which usually occurs fairly late in the discovery process. The Court also notes that most if not all of the records and documents upon which plaintiffs' claims of economic damages are based have been within plaintiffs' custody or control since the filing of this action. The undersigned Magistrate Judge therefore finds that defendant's motion to compel responses to Interrogatory No. 1 and Request for Production No. 1 should be GRANTED and, to the extent plaintiffs have not already done so, plaintiffs shall make a full and complete response to these two requests.

Request for Production Nos. 18, 21, 22, and 23 seek income statements, records of compensation paid to persons who provided treatment to Dr. Bengelsdorf's patients, records reflecting gross revenue to plaintiffs derived from use of any Lumenis One device, and similar records reflecting gross revenue received by plaintiffs derived from their use of any light-based or laser-based medical device other than a Lumenis One. In view of the plaintiffs' claims that persistent problems with the Lumenis One and defendant's failure to cure such problems caused financial losses to plaintiffs, the undersigned Magistrate Judge finds that documents requested by these four requests are discoverable, and that defendant's motion to compel complete responses to these four requests should be GRANTED. Accordingly, to the extent that plaintiffs have not already done so, they shall serve a supplemental response that includes all additional documents within their custody or control that are responsive to these four requests, to include documents and records from 2006 to the present.

Interrogatory No. 6 and Request for Production No. 2 seek information relating to other light-based or laser-based medical equipment obtained by plaintiffs. From the parties' filings (Docket Entry No. 36 at 14), it appears that plaintiffs have made a complete production of information and records relating to their purchases in 2009 of equipment manufactured by the Candela Corporation.

Request for Production No. 9 seeks documents relating to any "capital equipment acquisitions, whether by lease or purchase." Plaintiffs have objected to this request on the grounds that they receive frequent communications from equipment manufacturers advertising their products and that production of these documents would be unduly burdensome. It further appears that plaintiffs have produced documents relating to the purchase of the Candela devices referenced in response to Interrogatory No. 6 above. The undersigned Magistrate Judge finds that the gravamen of this request does not seek incidental advertisements or other communications from equipment manufacturers that did not lead to a purchase. Rather, this request seeks information about any major equipment acquisition by plaintiffs the cost of which, or the revenue from which, may have had a material impact on income generated by plaintiffs' practice. To this limited extent, the undersigned Magistrate Judge finds that defendant's motion to compel should be GRANTED. To the extent that plaintiffs have not already done so, they shall produce responsive documents related to any major equipment acquisition, by lease or purchase, from January 1, 2006 to the present.

Request for Production No. 15 seeks documents relating to "the space occupied by The Franklin Center." The undersigned Magistrate Judge finds that certain documents responsive to this request may be relevant to plaintiffs' claim that replacement of the Lumenis One device will require certain modifications to be made to The Franklin Center's surgical suite (Complaint at ¶ 33). While Request No. 15 as written probably is unduly broad, the undersigned Magistrate Judge GRANTS defendant's motion to compel to the extent that plaintiffs shall produce all documents or other records reflecting or related to any claim that they will be required to incur costs for office modifications as the result of any alleged act or omission by the defendant.

Request for Production No. 16 seeks documents or other evidence related to training of any of plaintiffs' employees or agents in the use of any light-based medical device. The undersigned Magistrate Judge finds that documents responsive to this request may be relevant to plaintiffs' allegation that acquisition of alternative equipment to replace the Lumenis One will require that The Franklin Center's staff be retrained. The Court GRANTS defendant's motion to compel with respect to any documents or other information relating to training of plaintiffs' staff in the use of light-based equipment from 2006 to the present.

Request for Production Nos. 24 and 26 seek documents or other tangible evidence of any communications between the plaintiffs and the defendant, including complete copies of all contracts between these parties. Plaintiffs have objected apparently on grounds of undue burden, because of what they characterize as "numerous communications since 2006 with Defendant's service and sales agents" such that they cannot possibly produce all documents regarding such communications. Defendant by this request likely seeks to avoid being "blindsided" later with evidence of prior communications by their agents. While this request should not be interpreted to include documents relating to communications between counsel for the parties since this lawsuit was filed, the Court OVERRULES plaintiffs' objections and GRANTS defendant's motion to compel responses to this request to the extent that any prior communications between agents for these parties has any materiality to any claim or defense raised in this lawsuit.

Interrogatories Nos. 1 and 2 served on plaintiff Dr. Bengelsdorf seeks the identity of all healthcare providers, counselors and psychologists who have treated him for the past ten years and, in particular, the identity of any provider who has treated Dr. Bengelsdorf for any condition he alleges is related to or caused by the facts giving rise to this lawsuit. These discovery requests apparently are related to the claim in the complaint that Dr. Bengelsdorf has suffered emotional distress and strain as a result of the defendant's acts or omissions and that Dr. Bengelsdorf and his wife are "actively seeking marital counseling as a result of the incidents that form the basis of the complaint." In their response in opposition to defendant's motion to compel, plaintiffs state that they have "opted not to pursue damages based on" emotional stress or strain or other types of personal injury damages (Docket Entry No. 52 at 22). Based upon the Court's finding that plaintiffs have abandoned any claim for personal injury, whether based upon emotional distress or otherwise, the Court DENIES defendant's motion to compel responses to Interrogatories No. 1 and 2 to Dr. Bengelsdorf as no longer relevant to this case.


The Subpoena Duces Tecum Served On Osborne & Co. P.C.

Defendant also seeks an order compelling the accounting firm of Osborne & Co. P.C. to serve responses to a subpoena duces tecum. Osborne & Co. is the accounting firm for plaintiffs. The subpoena served by defendant requires Osborne & Co. to produce its "entire file" regarding Dr. and Mrs. Bengelsdorf, The Franklin Center, and United Surgical Associates. United Surgical Associates is identified in the parties' motion papers as an entity wholly owned by Dr. Bengelsdorf through which he conducts his locum tenens practice.

Defendant states in its papers, in effect, that it resorted to serving this subpoena on plaintiffs' accounting firm after plaintiffs themselves refused to produce the information sought. The undersigned Magistrate Judge DENIES defendant's motion to compel production pursuant to its subpoena served on Osborne & Co. P.C. for two reasons. First, the Court finds that a subpoena requiring production of the accountants' "entire file" on Dr. and Mrs. Bengelsdorf, The Franklin Center and United Surgical Associates is unduly broad and almost certainly will result in the disclosure of a great deal of confidential financial information that is unrelated to claims in this case. Second, the Court finds that any information held by the plaintiffs' accountants are within the "custody or control" of plaintiffs, since the accountants presumably are employed by them. Therefore, to the extent that the Court requires plaintiffs to produce pertinent information in response to discovery, the Court deems that plaintiffs would have an obligation to obtain such information from their accountants in order to make production. For these two reasons, the undersigned Magistrate Judge DENIES defendant's motion to compel files from Osborne & Co. P.C. without prejudice to defendant's right to file a similar motion upon a showing that plaintiffs have failed to produce information after being ordered to do so by the Court.

Finally, because plaintiffs apparently made substantial disclosures and responses before defendant's motion to compel was filed, and the Court found that defendant's motion should be DENIED in part. The undersigned Magistrate Judge finds that an award of sanctions or expenses would be unjust, and therefore that defendant's request for such an award must be DENIED.


Summary

As stated above in this memorandum, the undersigned Magistrate Judge GRANTS in part and DENIES in part defendant Lumenis's motion to compel responses to discovery requests and subpoena duces tecum (Docket Entry No. 35); GRANTS defendant's motions for leave to file a reply (Docket Entry Nos. 48 and 57); and DENIES defendant's motion for a hearing (Docket Entry No. 56).

Plaintiffs' supplemental responses to interrogatories and requests for production, as ordered above, shall be made on or before March 1, 2011.

"It is a good thing to learn caution from the misfortunes of others."

"If you wish to succeed in life, make perseverance your bosom friend, experience your wise counselor, caution your elder brother, and hope your guardian genius."
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