Westby v. Schaefer

338 P.3d 1220, 157 Idaho 616, 2014 Ida. LEXIS 307
CourtIdaho Supreme Court
DecidedNovember 25, 2014
DocketNo. 40587
StatusPublished
Cited by17 cases

This text of 338 P.3d 1220 (Westby v. Schaefer) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Westby v. Schaefer, 338 P.3d 1220, 157 Idaho 616, 2014 Ida. LEXIS 307 (Idaho 2014).

Opinion

BURDICK, Chief Justice.

Christian Westby, James Westby, and Kristina Westby (collectively “the Westbys”) permissively appealed the Canyon County district court’s denial of the Westbys’ motion to reconsider the court’s protective order granted to Mercy Medical Center and Dr. Gregory Schaefer.

This case arose from the Westbys’ claim that Dr. Schaefer’s and Mercy Medical’s negligence resulted in lifelong brain damage to Christian Westby. Near the end of discovery, the district court granted Mercy Medical and Dr. Schaefer’s protective order motion to prohibit the Westbys from deposing Mercy Medical and Dr. Schaefer’s expert witnesses. The district court later denied the Westbys’ motion to reconsider that protective order. The Westbys argue that the district court abused its discretion by not requiring any showing of good cause or unreasonable delay and basing its decision on a mistaken belief that the Westbys were dilatory. We vacate and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Christian Westby was bom in November of 2007 to James and Kristina Westby. The Westbys alleged that Christian suffered brain damage from severe head trauma at [618]*618birth as a result of Dr. Schaefer and Mercy Medical’s negligence. Dr. Schaefer and Mercy Medical denied negligence.

The court set the trial for June 5, 2012. Dr. Schaefer and Mercy Medical’s expert disclosure deadline was February 6, 2012. The pre-trial order stated that “discovery shall be completed no later than May 4, 2012.” Dr. Schaefer disclosed his fourteen expert witnesses on February 6, 2012. Mercy Medical disclosed its expert witnesses on February 23, 2012, with the Westbys’ permission because Mercy Medical’s attorney was ill. Mercy Medical disclosed seventeen expert witnesses and additional treating providers. Those treating providers included three nurses and five doctors that had treated Christian and Kristina Westby.

The parties conducted an unsuccessful mediation on March 28, 2012. Two days later, the Westbys faxed a letter to defense counsel asking to depose eight experts. The Westbys’ attorney proposed six dates in April and noted he was also available May 7 through May 18. On April 4, 2012, Dr. Schaefer filed a motion to prohibit the Westbys from taking his experts’ depositions. Dr. Schaefer argued that taking expert depositions at this stage in the litigation was untimely, unreasonable, an extreme hardship, and that seven of the expert witnesses resided out of state. Later in the day on April 4, the Westbys faxed to defense counsel notice to take the depositions of nine expert witnesses at the office of Westbys’ counsel. The notices scheduled the depositions on April 17,18, 24, and 27, 2012.

On April 9, 2012, Dr. Schaefer filed another motion: a protective order motion for eight of the nine experts the Westbys gave notice to depose.1 Mercy Medical joined this motion and also joined Dr. Schaefer’s April 4 motion to prohibit depositions. Dr. Schaefer and Mercy Medical argued that the Westbys’ proposed dates did not give reasonable notice because the Westbys had ample opportunity to take the depositions much earlier. They also argued that the depositions were unilaterally scheduled at the Westbys’ counsel’s office in Boise and seven of the experts had to travel from other states.

The district court heard Dr. Schaefer’s and Mercy Medical’s motion to prohibit depositions and their protective order motion on April 11, 2012. The parties argued about what disclosure was necessary and whether the Westbys’ deposition requests were timely. During the hearing, the court recessed and encouraged the parties to discuss the issue. Mercy Medical supported its motion with an affidavit from its attorney, who averred that during that recess the Westbys’ attorney, Mr. Chasan, said that he did not believe it was necessary to depose the experts and he would attempt to persuade his co-counsel, Mr. Kamitomo, of that. Mercy Medical’s attorney averred that Mercy Medical and Dr. Schaefer’s attorneys agreed to vacate and continue the hearing based upon this representation.

After the recess, Mr. Chasan agreed on the record to continue the motion and report back to the court: “So, Judge, we have agreed to continue the motion and the hearing, and I’m going to talk to co-counsel and we will confer among ourselves and then report back to the Court.” He also noted that “all issues are on the table” and the court would hear if there was a further problem. The court confirmed that the next hearing would take place May 1, 2012. Mr. Chasan agreed and commented, “Of course, by then, this issue will be a little late.”

On April 18, 2012, the Westbys filed a motion to strike the defense experts or alternatively compel expert depositions. This motion addressed the same protective order issues that the court continued at the April 11 hearing.

On April 23, the Westbys moved to continue the trial. The next day the district court held a telephonic hearing about vacating the trial. Mr. Kamitomo stated that his request was due to a family member’s illness and “not being asked for any inappropriate delay or to reopen discovery.” Mercy Medical and Dr. Schaefer opposed the motion, arguing [619]*619that Mr. Chasan could try the case without Mr. Kamitomo and that everyone had planned their schedules around the trial dates. The court decided to vacate and reset the trial date:

I’m going to go ahead and vacate the trial. I hope I’m doing the right thing at this point in time. I appreciate the arguments that were made to me. I just think that at this point probably it would be best, since he’s been in it since the beginning, to vacate it and reset it.

The court then repeatedly noted that it would not extend the discovery deadlines:

I am not extending any of the discovery. All those deadlines have been set, and so, again, I am going to freeze the status quo.

The court ended up resetting the trial date for October 15 through November 15, 2013.

On May 1, 2012, three days before the discovery deadline, the court heard the Westbys’ April 18 motion to compel expert depositions. The court also heard Dr. Schaefer’s and Mercy Medical’s April 4 Motion to Prohibit Expert Depositions and April 9 Motion for Protective Order. These two motions were continued from the April 11 hearing. The court consolidated these three motions and heard them together because all three motions were essentially the same. At the hearing, the court acknowledged that the discovery deadline had not passed. However, the court granted the protection order and prohibited the Westbys from taking those depositions. The court stated:

In ruling today, I cite Avila, A-v-i-l-a, versus Wahlquist, 126 Idaho 745, a 1995 case. And I quote, “Control of discovery is within the discretion of the trial court.”
Now, when I vacated the trial on April 11th, I also indicated to counsel that I was maintaining the discovery deadline. On that date, I heard arguments from the defendants that it would be almost impossible to make their experts available for depositions because of everyone’s busy schedule.
I acknowledge that the discovery cutoff has not passed. It is on May 4th. But because of the delay caused between April 11th and this date, I conclude, based on the facts of this case and the discretionary powers of this Court, that the plaintiffs shall be precluded from deposing defendants’ experts.

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Cite This Page — Counsel Stack

Bluebook (online)
338 P.3d 1220, 157 Idaho 616, 2014 Ida. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/westby-v-schaefer-idaho-2014.