Mississippi Coast Physicians, LLC et al v. Multiplan, Inc.

MOTION to Strike Supplemental Discovery Responses

S.D. Miss.December 13, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION MISSISSIPPI COAST PHYSICIANS LLC and BIENVILLE ORTHOPAEDIC SPECIALISTS LLC PLAINTIFFS VS. CIVIL ACTION NO: 1:16-CV-00273-HSO-JCG MULTIPLAN, INC. DEFENDANT PLAINTIFFS’ MOTION TO STRIKE SUPPLEMENTAL DISCOVERY RESPONSES COME NOW Mississippi Coast Physicians, LLC and Bienville Orthopaedic Specialists, LLC (the “Physicians”) and respectfully move this Court pursuant to Federal Rules of Civil Procedure 26(e) and 37(c) and Local Rule 26(a) to strike Defendant Multiplan, Inc.’s Supplemental Responses to Plaintiffs’ First Set of Interrogatories and exclude all witnesses identified therein from testifying at trial. In support of this Motion, the Physicians state as follows: 1. On November 2, 2016, the Physicians propounded on Multiplan, Inc. (“Multiplan”) their First Set of Interrogatories and Requests for Production seeking, among other things, the identity of all individuals Multiplan may call as witnesses at trial. (Attached as Ex. “1”). Multiplan responded on January 9, 2017. (Attached as Ex. “2”). 2. On February 17, 2017, Multiplan served its Rule 26 Initial Disclosures on the Physicians. (Attached as Ex. “3”). 3. On August 3, 2017, this Court’s deadline for completion of all discovery expired. As of that date, Multiplan had not supplemented its discovery responses or its Initial Disclosures to identify any additional witnesses or persons with knowledge of discoverable information. Case 1:16-cv-00273-HSO-JCG Document 82 Filed 12/13/17 Page 1 of 4 2 4. The Physicians’ suit against Multiplan rests, in large part, on its claims that Multiplan had, in violation of the “Participating Group Practice Agreement” (the “Group Agreement”) between Multiplan and the Physicians, allowed certain unauthorized payors to discount their payments to the Physicians for medical services rendered. On August 17, 2017, Multiplan filed a Motion for Summary Judgment [Doc. # 71] claiming that its discounting or “repricing” practices under the Group Agreement were, in fact, appropriate. Multiplan’s Motion was supported entirely by the testimony of five (5) witnesses never previously disclosed to the Physicians: Kelly M. Basel, Kathryn Farley-Agee, Robert Evans, Dan Moore and Joseph Pagano. 5. On November 6, 2017, more than three (3) months after the close of discovery and less than three (3) months before trial, Multiplan attempted to supplement its responses to the Physicians’ First Set of Interrogatories and Requests for Production and retroactively identify the above-listed individuals (except Kelly Basel), as well as three (3) others not previously disclosed, as potential trial witnesses. (Attached as Ex. “4”). Additionally, Multiplan also identified as potential witnesses “[a]ny and all individuals identified in MPI’s Initial Disclosures” and “[a]ny and all individuals identified in Plaintiffs’ Initial Disclosures.” 6. Throughout the course of discovery, Multiplan had an obligation under Federal Rule of Civil Procedure 26(e) to supplement its discovery responses and Initial Disclosures in a timely manner if it learned that in some material respect the responses or disclosures were incomplete or incorrect, and if the additional or corrective information had not otherwise been made known to the Physicians during the discovery process or in writing. Fed. R. Civ. P. 26(e). More particularly, Multiplan was “under a duty to supplement disclosures at appropriate Case 1:16-cv-00273-HSO-JCG Document 82 Filed 12/13/17 Page 2 of 4 3 intervals under Fed. R. Civ. P. 26(e) and in no event later than the discovery deadline established by the case management order.” L. U. Civ. R. 26(a)(5). 7. Further, Federal Rule of Civil Procedure 37(c)(1) says, “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). 8. Multiplan’s eleventh-hour disclosure of seven (7) new witnesses three (3) months after the close of discovery, as well as its vague, ambiguous references to other yet-to-be- identified witnesses, violates both Fed. R. Civ. P. 26 and L. U. Civ. R. 26. At this late date, the Physicians do not have sufficient time in which to depose each witness, conduct follow-up discovery and alter their trial strategy as necessary. Thus, allowing Multiplan to introduce the testimony of these witnesses at trial – testimony upon which Multiplan’s defense relies – would be highly prejudicial to the Physicians. FOR THESE REASONS, the Physicians respectfully ask this Court to strike Multiplan’s Supplemental Responses to Plaintiffs’ First Set of Interrogatories and Requests for Production and exclude the testimony of all witnesses identified therein who were not previously disclosed to the Physicians through formal discovery. Date: December 13, 2017. Respectfully submitted, /s/ H. Ruston Comley Lewis W. Bell (MSB # 2337) H. Ruston Comley (MSB # 102307) WATKINS & EAGER PLLC Post Office Box 650 Jackson, Mississippi 39205-0650 (601) 948-6470 Case 1:16-cv-00273-HSO-JCG Document 82 Filed 12/13/17 Page 3 of 4 4 lbell@watkinseager.com rcomley@watkinseager.com ATTORNEYS FOR PHYSICIANS CERTIFICATE OF SERVICE I, H. Ruston Comley, do hereby certify that I have this date filed the foregoing document with the Clerk of the Court via the CM/ECF system which sent notification of such filing to all counsel of record. This, the 13 th day of December, 2017. /s/ H. Ruston Comley H. Ruston Comley Case 1:16-cv-00273-HSO-JCG Document 82 Filed 12/13/17 Page 4 of 4