Cellphone Docs Excluded in Wrongful Death Case

     PITTSBURGH (CN) – Jail medical staff accused of failing to aid an inmate who later died of pneumonia cannot use documents secured after discovery to defend themselves in a wrongful death case, a magistrate judge ruled.
     Debra and Earl Black sued the medical staff of the Allegheny (Pa.) County Jail in Federal Court in April, claiming the inadequate care their son Derek received while he was an inmate ultimately led to his death.
     They base their claim on the alleged opinions of physicians at Mercy Hospital, part of the University of Pennsylvania Medical Center, who are claimed to have said the jail’s medical staff failed to respond to Derek’s Blacks “classic” symptoms of pneumonia, including a cough with “blood-tinged sputum” and chest discomfort. Derek Black died on May 6, 2012.
     The Blacks’ most recent motion sought to exclude five months of phone records subpoenaed by the defendants from T-Mobile. The Blacks argued that the defendant attorney, Stanley Winikoff, failed to properly serve them with a copy of the subpoena before sending it to T-Mobile, and that the subpoena was issued after the close of discovery on October 31, 2014.
     Winikoff claimed he failed to serve the family because the Adobe file was “damaged and could not be repaired.”
     He later said he verbally informed plaintiff of the subpoena at a post-discovery conference and sent a transmittal note, but no records were provided to support his claims.
     The Blacks argued that even if Winikoff sent a note informing them of the subpoena, he sent the note on the same day that the subpoena was served, and therefore did not properly allow plaintiff opportunity to object.
     They also asserted that Winikoff’s signature on the subpoena was dated November 20, 2014 — well after the close of discovery on October 31,2014 — and that other documents
     “unquestionably establish that he was engaging in discovery past the deadline.”
     The Blacks asked the court to sanction defendants by precluding the use of the documents for any purpose including a motion for summary judgment or at trial, and that defense counsel be ordered to destroy any documents obtained from T-Mobile.
     Magistrate Judge Cynthia Reed granted the Blacks motion stating, “defense counsel fails to cite any applicable legal authority in his filings with the court”
      Reed notes in her decision that by the defense counsel’s own admission, he violated Rule 45(a)(4) regarding court scheduling orders when he did not properly send a copy of the subpoena to the Blacks before sending it to T-Mobile. Instead defense counsel allegedly sent the subpoena to the Blacks and T-Mobile on the same day, October 27, 2014.
     According to the court, “[i]f the serving party fails to adhere to the notice requirement, the district court may, on motion from the opposing party, quash the subpoena.”
     In addition, Winikoff failed to respond to T-Mobile’s objections regarding unpaid subpoena costs until twenty days after the close of discovery, which made the subpoena invalid from October 27 until November 20.
     The ruling states documents produced by T-Mobile were not received until December 10, 2014, forty days after the close of discovery and less than two weeks before motions for summary judgment were due.
     “Although Mr. Winkoff claims that Plaintiffs have suffered no prejudice, the Court disagrees.” Reed wrote. “Mr. Winkoff’s blatant disregard of the notice requirement alone constitutes prejudice under the circumstances because Plaintiffs did not have the opportunity to object to the production of their personal information to the opposing party …
     “Additionally, the Court finds it completely unreasonable for a party to acquire documents after discovery has closed, without permission from the Court, without notice to the other side, and just 13 days from the summary judgment deadline, with intent to use that material in its motion for summary judgment and/or trial … Lastly, it is worth noting that in [a] related case… Mr. Winkoff, on separate occasions, has been admonished by the Court for failing to properly execute a subpoena [and] for failing to comply with the discovery deadlines set forth in the Court’s Case Management Order.”The court granted the sanctions and prohibited the medical defendants from using any documents obtained from the T-Mobile subpoena for any purpose, including support of motion for summary judgment and in trial for this case and the related case.

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