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Shirley v. West American Insurance Co.

United States District Court, W.D. Kentucky, Louisville Division

May 27, 2015

MATTHEW SHIRLEY, Plaintiff,
v.
WEST AMERICAN INSURANCE COMPANY, Defendant.

MEMORANDUM OPINION AND ORDER

COLIN H. LINDSAY, Magistrate Judge.

This matter is before the Court on the motion to show cause ("Motion") (DN 27) filed by Defendant West American Insurance Company ("Defendant"). On May 26, 2015, the Court conducted a hearing, on the record, on the issues raised in the Motion. ( See DN 35.) For the following reasons, the Court holds in contempt Dr. Dennis Wagner, Ed.D. ("Dr. Wagner") pursuant to Rule 45(g) of the Federal Rules of Civil Procedure. Dr. Wagner shall comply in full with the terms of the instant Order.

Relevant Events

1. The Motion to Show Cause and Order for Hearing

The factual background underlying the Motion and the May 26, 2015 hearing is set forth in a previous Order of the Court (DN 35, "Order for Hearing"). Plaintiff Matthew Shirley ("Plaintiff") wishes to use Dr. Wagner as an expert witness in this case in relation to his claim for emotional distress damages. Defendant alleges in the Motion (DN 27) and in its subsequent memorandum (DN 34) that Dr. Wagner has failed to respond adequately to two subpoenas for medical records served on him by Defendant.

On May 18, 2015, the Court issued the Order for Hearing. The Court ordered as follows:

[T]he Court shall conduct a hearing in this matter on May 26, 2015 at 1:00 p.m. Dr. Wagner and counsel for both parties SHALL APPEAR IN PERSON. Dr. Wagner shall bring with him to the hearing all mental health treatment and counseling records, including psychotherapy notes, in his care, custody, or control, that relate to the Plaintiff Matthew Shirley. If the Court deems it necessary, it may conduct an in camera review of such documents. The Court will reserve a ruling on the motion to show cause (DN 27) until after the hearing.

(DN 35 at 3 (emphases in original).) The Order for Hearing was served electronically on counsel of record for both parties and on Dr. Wagner, by mail, at his place of business. ( Id. )

2. The May 26, 2015 Hearing

a. Discussion with Counsel

Dr. Wagner did not appear for the hearing on May 26, 2015. Counsel for Plaintiff stated that he last spoke to Dr. Wagner on May 21, 2015, at which time Dr. Wagner informed counsel that he had two patients scheduled for the afternoon of May 26, 2015, and that he would attempt to reschedule the patients. Counsel stated that he received no answer when he attempted to contact Dr. Wagner by telephone on the morning of the hearing.

Counsel for Defendant stated that Defendant has not received an objection of any kind from Dr. Wagner with respect to the two subpoenas. The only response received by Defendant consisted of two pages of medical records sent by Dr. Wagner via facsimile on or about April 30, 2015. The two pages relate to treatment of Plaintiff on January 26, 2015. The records were accepted as Defendant's Exhibit 1 and filed under seal. Counsel for each party stated that Dr. Wagner later sent to Plaintiff's counsel, also by facsimile, five pages of medical records. The five pages included the two pages previously sent to Defense counsel. Those records were accepted as Defendant's Exhibit 2 and filed under seal. Counsel for each party relayed to the Court his repeated efforts to contact Dr. Wagner regarding the lack of response to the subpoenas.

The Court concluded that Dr. Wagner's presence was required in order to address his failure to both (1) respond to the subpoenas issued by Defendant; and (2) appear pursuant to the Order for Hearing. The Court directed counsel for Plaintiff to contact Dr. Wagner and convey the Court's order ...


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