Williams v. United States Elevator Corp.

125 F.R.D. 565, 1989 U.S. Dist. LEXIS 5392, 1989 WL 53978
CourtDistrict Court, District of Columbia
DecidedMay 16, 1989
DocketCiv. A. No. 88-0449-LFO
StatusPublished

This text of 125 F.R.D. 565 (Williams v. United States Elevator Corp.) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. United States Elevator Corp., 125 F.R.D. 565, 1989 U.S. Dist. LEXIS 5392, 1989 WL 53978 (D.D.C. 1989).

Opinion

MEMORANDUM

OBERDORFER, District Judge.

Plaintiff sues for injuries allegedly sustained during an incident on elevator 20 at the United States Department of Labor Building on August 20, 1986. Plaintiff has claimed as damages “pain and suffering, emotional distress, medical expenses, lost wages and future damages including emotional distress and medical expenses.” Joint Pretrial Order (filed Feb. 14, 1989) at 10. At trial, plaintiff intends to call Dr. William Thompson, M.D., the psychiatrist who has been treating plaintiff, “to offer testimony as to the mental and emotional injuries Ms. Williams sustained in this incident.” Id. at 2-3.

Because Dr. Thompson refused to release the records of his treatment of plaintiff, on February 15, 1989, defendant United States Elevator Corporation (“U.S. Elevator”) moved to compel production of those documents. An Order was issued on February 24, 1989,1 requiring Dr. Thompson to produce to defendant’s counsel his records pertaining to plaintiff on or before March 6,1989. After no such records were produced, defendant U.S. Elevator on March 20, 1989, moved for an order to show cause why Dr. Thompson should not be held in contempt of court, and on March 28, 1989, an Order was issued scheduling a show cause hearing for April 19, 1989. When Dr. Thompson did not attend the hearing scheduled for April 19, 1989, that hearing was rescheduled for May 4, 1989.

Because the evidence presented at the show cause hearing on May 4, 1989, proves beyond a reasonable doubt that Dr. Thompson knowingly refused to comply with the Order of February 24, 1989, Dr. Thompson must be found to have been in criminal contempt of court. Because he was never properly served with the Order of March 28,1989, however, Dr. Thompson cannot be found in contempt for failing to attend the show cause hearing scheduled for April 19, 1989.

I.

The factual background, as revealed from testimony given at the show cause hearing on May 4, 1989, is somewhat lengthy and confusing. On December 8, 1988, Michael Bourne, a professional process server, attempted to serve a subpoena on Dr. Thompson on behalf of defendant U.S. Elevator. The subpoena did not require Dr. Thompson’s presence, merely “all records including hand-written notes, memoranda, reports, records[,] charts and documents of any type and/or description pertaining to IMOGENE WILLIAMS, S.S. #579-72-3546.” Defendant’s Exhibit 18 (Hearing of May 4, 1989).

According to the testimony of his secretary, Delores Graziano, Dr. Thompson is only at his office at 6101 Landover Road, Cheverly, Maryland, on weekends and occasional Tuesdays and Wednesdays. Ms. Graziano answers Dr. Thompson’s office telephone from a phone in her home, located at 4225 75th Avenue, Landover Hills, Maryland, and Dr. Thompson’s business mail is received both at his Cheverly office and at Ms. Graziano’s Landover Hills home. Ms. Graziano testified that Mr. Bourne called Dr. Thompson in December of 1988 seeking to serve a subpoena and that she answered the call from the phone in her home and told Mr. Bourne that he could deliver the subpoena to 4225 75th Avenue, Landover Hills. Mr. Bourne then served Dr. Thompson by hand-delivering the subpoena to Ms. Graziano at her home.

Mr. Bourne testified on direct examination that Ms. Graziano stated that she was authorized to accept service of process on behalf of Dr. Thompson, and he so indicated in completing the return of service certificate. See Defendant’s Exhibit 1. On [567]*567cross-examination by Dr. Thompson,2 Ms. Graziano testified that in the past she has signed for certified mail addressed to Dr. Thompson. Furthermore, on cross-examination, Mr. Bourne testified that he has served individuals authorized to accept service of process on behalf of others numerous times and that Ms. Graziano appeared to understand the nature of the document served. His impression is borne out by Ms. Graziano’s testimony that she contacted Dr. Thompson and informed him of the subpoena within two hours of receiving it.

On December 16,1988, plaintiff executed an authorization permitting Dr. Thompson to release to defendant’s counsel “all available medicals, including psychiatric information concerning examinations and treatment rendered to me.” Defendant’s Exhibit 9. In late December 1988 and in January 1989, however, plaintiff informed Dr. Thompson that she only wanted him to release records pertaining to her treatment as a result of the incident on August 20, 1986, in the Department of Labor elevator. In spite of the subpoena, Dr. Thompson never released any of plaintiff’s records, even though plaintiff had never verbally withdrawn her consent to the release of records pertaining to the elevator incident. Furthermore, by early February 1989, plaintiff began to instruct Dr. Thompson and Ms. Graziano that she had changed her mind and would authorize the release of any and all documents pertaining to her held by Dr. Thompson.3

Because of Dr. Thompson’s refusal to release records and in response to a motion by defendant U.S. Elevator, the Court on February 24, 1989, ordered Dr. Thompson to

produce for inspection and copying “all records including handwritten notes, memoranda, reports, records, charts and documents of any type and/or description pertaining to Imogene Williams, S.S. # 579-72-3546” at the law offices of Martell, Donnelly, Gallagher & Kastantin, 9 North Adams Street, Rockville, Maryland 20850 on the 6th day of March, 1989 at 10:00 a.m., provided a copy of this order be served on the said William A. Thompson, Jr., M.D. on or before the 1st day of March, 1989.

Order of February 24, 1989. According to the uncontroverted testimony of Mr. Bourne and Ms. Graziano and the affidavit of service prepared by Mr. Bourne, the Order of February 24, 1989, was served and accepted by Ms. Graziano at her home on behalf of Dr. Thompson on February 28, 1989. Ms. Graziano testified that she informed Dr. Thompson of the Order within a few hours of receiving it and certainly before the end of that day. Although the Order was served on or before March 1, 1989, Dr. Thompson did not produce the requested documents nor respond in any other manner, such as stating objections based on doctor-patient privilege, prior to March 6, 1989, as ordered.

Therefore, in response to a motion by defendant U.S. Elevator, on March 28, 1989, the Court issued an Order to Show Cause that stated in pertinent part:

[I]t is this 28th day of March, 1989, hereby
ORDERED: that William A. Thompson, Jr., M.D. show cause, if any he may have, on or before April 12,1989, why he should not be held in contempt of court for not obeying the subpoena issued December 5, 1988 or this Court’s Order of February 23, 1989, and should not be [568]*568subjected to appropriate sanctions to effect compliance with those orders; and it is further
ORDERED: that the United States Marshals Service shall personally serve a copy of this order on William A. Thompson, Jr., M.D.; and it is further
ORDERED: that a show cause hearing shall be held on April 19,1989 at 9:00 A.M. in Courtroom No. 3.

Order of March 28, 1989. The United States Marshals Service never successfully served this Order. See Process Receipt and Return (filed April 26, 1989). Nevertheless, on April 14, 1989, Mr. Bourne served Ms. Graziano on behalf of Dr.

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Bluebook (online)
125 F.R.D. 565, 1989 U.S. Dist. LEXIS 5392, 1989 WL 53978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-united-states-elevator-corp-dcd-1989.