BRIAN LEON M.D. FACP, DEBORAH LEON, Husband and Wife, Plaintiffs, v. INDIANA UNIVERSITY HEALTH CARE ASSOCIATES, INC., Defendant No. 1:22-cv-00937-JRS-MG United States District Court, S.D. Indiana, Indianapolis Division Filed November 01, 2023 Counsel George W. Pendygraft, George W. Pendygraft, P.C., Indianapolis, IN, for Plaintiffs. Laurie E. Martin, Molly Broadhead, Riley H. Floyd, Hoover Hull Turner LLP, Indianapolis, IN, for Defendant. Garcia, Mario, United States Magistrate Judge ORDER *1 This Order comes upon Plaintiffs’ Motion to Quash Notice of Deborah Leon and Motion for Protective Order, [Filing No. 99], and Defendant's Opposition to Deborah Leon's Motion to Quash and Motion for Protective Order, [Filing No. 104]. For the following reasons, the Court DENIES Plaintiff Deborah Leon's Motion. I. BACKGROUND Dr. Brian Leon formerly worked at Indiana University Health Care. [Filing No. 1-2.] The Hospital sent him a non-renewal letter on October 1, 2020. [Filing No. 1-2.] Dr. Leon initiated this lawsuit on April 24, 2022, and brings numerous claims arising under federal and state law against Defendant Indiana University Health Care (“IUHC”).[1] [Filing No. 1., Filing No. 1-1.] While Mrs. Leon may arguably have some limited knowledge bearing on several of Dr. Leon's independent claims against IUHC, Mrs. Leon brings claims of Loss of Consortium and Intentional Infliction of Emotional Distress. [Filing No. 1, Filing No. 1-1.] Mrs. Leon served her initial disclosures on September 13, 2022, and identified herself as an individual likely to have discoverable information about her claims and alleged damages. [Filing No. 33, Filing No. 104.] Defendant has also named Mrs. Leon on its preliminary witness list. [Filing No. 45]. On September 1, 2023, Defendant served a notice of deposition on Mrs. Leon, seeking to take her deposition on September 29, 2023. [Filing No. 99-1.] After contacting Defendant's counsel several times and conferring with them on the matter, Mrs. Leon filed her Motion to Quash and for Protective Order on September 26, 2023. [Filing No. 99.] Mrs. Leon suffered a stroke on June 30, 2020. [Filing No. 99.] For reasons discussed below, Mrs. Leon argues that having her deposition taken poses a serious health risk, which risk requires the Court issue an order prohibiting Defendant from taking her deposition. [Filing No. 99.] II. LEGAL STANDARD The Federal Rules of Civil Procedure allow a party, by oral questions, to “depose any person, including a party, without leave of court [.]” Fed. R. Civ. P. 30(a)(1). However, “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense....” Fed. R. Civ. P. 26(c)(1)(A). Plaintiff has the burden of establishing good cause under Fed. R. Civ. P. 26(c)(1).“[A] party seeking to prevent a deposition carries a heavy burden to show why the discovery should be denied.” “[I]t is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances.” CSX Transp., Inc. v. Zayo Grp., LLC, 2023 WL 5487090, at *1 (S.D. Ind. Aug. 24, 2023). In reviewing a discovery dispute, the court has broad discretion to “fashion appropriate limitations.” Arassi v. Weber-Stephen Products, LLC., 2014 WL 1385336 (E.D. Wisc. April 9, 2014). III. DISCUSSION *2 Mrs. Leon argues she suffers from medical and mental conditions that would either be exacerbated by being subjected to deposition, or which would make the deposition ineffective or even useless. In the first category, she maintains that “deposing her could result in worsening anxiety, panic attack or an acute exacerbation of her Major Depressive Disorder.” [Filing No. 99.] Most seriously, Mrs. Leon fears the deposition could result in heart attack or a second stroke. [Filing No. 99.] In the second category, Mrs. Leon discusses her non-fluent aphasia and transcortical aphasia, both of which can result in confusion and difficulty answering questions cogently. [Filing No. 99.] She also struggles with general recall and often confuses “dates, occurrences, and details.” [Filing No. 99.] In support of her Motion to Quash and for Protective Order, she submits affidavits from Robert Pascuzzi, M.D.—the neurologist who treated her after her ischemic stroke—and Plaintiff Brian Leon, M.D.—Mrs. Leon's husband, also a physician. [Filing No. 99-2, Filing No. 99-3.] Mrs. Leon states (which statements are supported by the affidavits) that her conditions can manifest in facial expressions or physical reactions that are inappropriate to time and place or that do not match her emotional reactions to events or conversations. [Filing No. 99-2.] Finally, Mrs. Leon argues that IUHC seeks testimony that has already been elicited through Mrs. Leon's interrogatory answers. According to her argument, the deposition poses not only a risk but an unnecessary one: she could be harmed, and no new information would be revealed. Defendant argues that Mrs. Leon's concerns do not amount to good cause warranting a blanket order prohibiting her deposition. In support, Defendant points to the affidavits, which they argue primarily indicate that Mrs. Leon struggles with anxiety, depression, and recall and offer no conclusions that a deposition would be “fatal or a direct threat to her life.” [Filing No. 205.] Moreover, Defendants argue that as a Plaintiff, Mrs. Leon has thrust her knowledge into the spotlight. Having initiated the lawsuit, she cannot now avoid deposition practice, which is a fundamental course of litigation. Defendants also argue Plaintiff cites to distinguishable case law. In response to Mrs. Leon's argument that her interrogatory responses are a suitable alternative to a live deposition, Defendant states it is entitled to probe her answers at a deposition and to go beyond the scope of the interrogatory answers to other relevant lines of inquiry.[2] In her reply brief, Mrs. Leon emphasizes that Defendant did not provide any independent medical evidence that contradicts the affidavits of Drs. Pascuzzi and Leon, and points to Dr. Pascuzzi's September 16, 2021, assessment that she “had major neurocognitive deficits that seriously impaired her ability to communicate orally.” She also argues that, given the discovery already conducted and Defendant's ability to proceed with a written deposition of Mrs. Leon, the cost-benefit analysis weighs against an oral deposition. Defendant argues there is “no credible basis” for Defendant to believe that Mrs. Leon will offer testimony that Defendant cannot glean from written discovery and Dr. Leon's testimony. *3 When moving for a motion to quash, the plaintiff bears the burden to show that the discovery requested imposes an undue burden. (Malibu Media, LLC v. John Does 1-14, 2012 WL 6115653, (N.D. Ind. Dec. 10, 2012). When moving for a protective order, the Plaintiff must show good cause for the relief sought. Johnson v. Jung, 2007 WL 1373181, (N.D. Ill. May 10, 2017). Plaintiff's motions for protective order and to quash seek the same extraordinary relief: to prevent Defendant from deposing Mrs. Leon. The Court's below determination in denying Plaintiff Mrs. Leon's request is consistent with the standard under either approach. Resolving this motion involves weighing serious considerations posed by Mrs. Leon's health against prejudice to the Defendant—who must adequately defend itself against her claims. The Court approaches this decision with caution; however, it finds that Defendant should be entitled to take Mrs. Leon's deposition with several imposed accommodations. Mrs. Leon's concerns regarding her memory or ability to order dates and events are not the extraordinary circumstances contemplated by the remedy of a protective order. Moreover, neither affidavit presents evidence that the deposition would pose a critical or near-critical risk to her health (or even serious medical harm)—instead citing general concerns with stress, anxiety, and depressive disorder. [See Filing No 99-1; 99-2.] Indeed, while generally affirming her husband's statements about Mrs. Leon's health, her neurologist's affidavit does not include his independent opinion that the deposition poses a risk of heart attack or stroke. Nor does Dr. Leon's affidavit mention risk of heart attack or a secondary stroke. The Court will not play doctor in evaluating the affidavits, nor it is it required to. A plain reading shows that the concern lies largely with Mrs. Leon's ability to effectively communicate and display proper responses to a deposition setting. The Court declines to adopt a rule in which a showing of any serious health condition and “potential adverse effects on [a plaintiff's] health” calls for a protective order barring a party's deposition. Rather, many individuals struggle to communicate and experience health issues—for any number of reasons. These considerations, even when combined with a generalized fear of the impact of stress and anxiety given Plaintiff's earlier stroke—are not sufficient to bar the Mrs. Leon's deposition altogether when the Court can instead impose limitations that will mitigate the stress of a deposition.[3] In sum, analysis of the affidavits leads the Court to believe that the deposition will be uncomfortable, unwelcome, and difficult for Mrs. Leon, and potentially unhelpful to Defendants. Moreover, the Court gives credence to the possibility that it could worsen Mrs. Leon's depressive disorder. However, while the realities Mrs. Leon suffers are far from trivial, they are distinguishable from the extraordinary medical circumstances the various courts considered in the cases Plaintiff cites as support. Bedford v. Am. Honda Motor Co., Civil Action No. 1:18-CV-175-GHD-DAS (N.D. Miss. Dec 20, 2019), Frideres v. Schlitx, 150 F.R.D. 153 (S.D. Iowa 1993), and In re McCorhill Publishing, Inc., 91 B.R. 223 (S.D. N.Y. 1988). See also Arassi v. Weber-Stephen Products, LLC., 2014 WL 1385336 (E.D. Wisc. April 9, 2014) (denying a motion to quash the deposition of two minor children where the plaintiff argued that the deposition could harm their mental health but the magistrate was not “persuaded that measures and limitations cannot be fashioned to protect the children from any irreparable harm.”). *4 Mrs. Leon argues that Defendant failed to present physician testimony challenging Dr. Pascuzzi's opinion. It is true that Defendant did not present an affidavit contradicting Plaintiff's submitted testimony. However, the Court can make its assessment independent of any evidence rebutting Mrs. Leon's affidavits. Their conclusions, which are taken as true, do not rise to a level of an emergent medical need in which no accommodations could possibility mitigate the stress or potential danger of a deposition setting. Finally, the Court disagrees that the deposition notice seeks cumulative testimony merely because Defendant has already issued written discovery. Plaintiff has not presented evidence that she has been issued unduly burdensome discovery. The fact that Defendant has received answers to written discovery does not mean Defendant cannot further explore Plaintiff's knowledge of her claims and damages at a live deposition. Furthermore, Mrs. Leon certainly has valuable knowledge about her lost wage claim—which seeks treble damages annualized at $65,000. Defendant is entitled to pose reasonable questions about the source and extent of her damages. And Plaintiff Dr. Leon's testimony is not a footprint substitute for Mrs. Leon's testimony regarding her loss of consortium and IIED claims. Mrs. Leon believes that questioning her about finances and damages, given her expressive aphasia and transcortical aphasia, is “unreasonable and cruel.” The Court disagrees—but cautions Defendant to take the utmost care in the phrasing of its questions and in avoiding unnecessary questioning. Precluding a defendant from taking a plaintiff's deposition is an extraordinary measure that is seldom appropriate. In this case, it is not appropriate. While Mrs. Leon's health is a concern, the Court finds it is a concern that can and should be addressed by imposing a number of accommodations. The Parties are directed to adhere to the following limitations: • Breaks shall be taken every 30 minutes.[4] • The deposition shall take place at a reasonable location of Mrs. Leon's choosing (including her home, and/or via remote means). • The deposition shall be limited to three and a half hours total (which time does not include breaks), taken over the course of either two days or one day with the first chapter in the morning and the second in the afternoon. • The Parties shall notify the Court of the date and time of the deposition. If schedule allows, the Court will be available by phone if needed. Trial is currently set for April 1, 2023, although Defendant recently filed an unopposed motion to continue trial date. [Filing No. 108.] Select case management deadlines were recently further extended per the Parties’ respective requests. [Filing No. 110]. To prevent protraction of the remaining deadlines,[5] the Defendant is directed to take Mrs. Leon's deposition within 21 days of this Order. IV. CONCLUSION Based on the foregoing, Mrs. Leon's Motion to Quash and Motion for Protective Order, [99], is DENIED. Footnotes [1] Including claims for and/or under: Retaliatory Discharge, Section 1983, ADEA, Breach of Contract, Breach of Agency Relationship, Indiana Wage Payment, Fraudulent Misrepresentation, Unjust Enrichment, Interference, Intentional Infliction of Emotional Distress, Third-Party Beneficiary Benefit Deprivation, Crime Victim Relief Act, Defamation, Invasion of Right of Privacy, Loss of Consortium, and Restraint of Trade. [2] Defendant finds Mrs. Leon's social and travel history significant. The Court declines to speculate whether Mrs. Leon's ability to engage in travel with family and social engagements with friends or acquaintances—activities assumed to be non-stressful—shed any light on her ability to have her deposition taken. [3] Moreover, depositions are not always useful. The party taking a deposition often walks away frustrated by the testimony they received. Regardless, the opportunity to take a plaintiff's deposition is an important cog in the litigation wheel and the Court declines to adopt an opposing party's view that deposing their witness would not be useful. [4] Counsel is reminded of the possibility that the witness may be inquired as to communications that she has during break and should be familiar with the Court's recent ruling on this matter in Blackledge, et al. v. United Parcel Service, Inc., 1:22-cv-01947-SEB-MG, at Filing No. 66, in which it found that discussions between a witness and his attorney during a deposition break relating to a pending deposition question are not privileged for the purposes of Rule 30(c)(2). [5] The dispositive motion deadline is anchored by the date of Mrs. Leon’s deposition.