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Funk v. Pinnacle Health Facilities Xxxii, LP

United States District Court, D. Kansas

February 22, 2019

MARK FUNK, et al., Plaintiffs,
v.
PINNACLE HEALTH FACILITIES XXXII, LP, et al., Defendants.

          MEMORANDUM & ORDER ON MOTION TO RECONSIDER

          HON. KENNETH G. GALE U.S. MAGISTRATE JUDGE

         Now before the Court is Plaintiffs' “Motion for Partial Reconsideration on Defendant's Motion for Protective Order.” (Doc. 143; prior motion Doc. 128; underlying Order Doc. 141.) Having reviewed the submissions of the parties, as well as related case filings, Plaintiffs' motion (Doc. 143) is GRANTED in part and DENIED in part as more fully set forth below.[1]

         FACTUAL BACKGROUND

         The factual background of this negligence and wrongful death suit was summarized in the underlying Order and is incorporated by reference. (Doc. 141, at 1-3.) In the underlying motion, Defendant Pinnacle Health Facilities XXXII, LP (hereinafter “Defendant”) contended, in relevant part, that “[t]he amended deposition notice lacks the ‘painstaking specificity' required by law and it subjects Defendant to an impossible task.” (Doc. 129, at 2.) As such, Defendant asks the Court to enter a protective order “prohibiting this improper attempt to run-up Defendant's fees and costs and to otherwise unduly burden and harass Defendant with unnecessary and irrelevant attempts at discovery.” (Id.)

         ANALYSIS

         I. Legal Standards.

         The legal standards for discovery, Rule 30(b)(6) depositions, and protective orders were discussed in the Court's underlying Order. (Doc. 141, at 3-6.) Those standards are incorporated herein by reference.

         As to the standards for a motion to reconsider, it “is not a second chance for the losing party to make its strongest case or to dress up arguments that previously failed.” Voelkel v. Gen. Motors Corp., 846 F.Supp. 1482, 1483 (D. Kan. 1994), aff'd, 43 F.3d 1484 (Table) (10th Cir. 1994). “A motion for reconsideration must be based on (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest injustice.” D. Kan. Rule 7.3 (emphasis added). Plaintiffs' motion is based on the third option.

         II. Rulings Disputed by Plaintiffs.

         A. Procedures Relating to Falls (Topics 1 and 19).

         The first topic in the deposition notice is “[f]acility procedures related to falls, fall prevention, and fall intervention including the content, location, format, formulation, retention of all such written policies.” (Doc. 94, at 1-2.) The second sentence of the topic instructs that the topic “includes all such policies and procedures that arise from federal or state regulations or statutes, as well as policies and procedures arising from standard practice, training, experience, or common law.” (Doc. 94, at 1.) Defendant objected that the topic is “broad and vague as stated.” (Doc. 129, at 8.)

         In the underlying Order, the Court held that the first sentence of the topic - facility procedures related to falls, fall prevention, and fall intervention - is self-explanatory and appropriate. The Court continued, however, that the remainder of the topic unnecessarily complicates and confuses the subject. The Court thus granted Defendant's objections, in part, striking second sentence of Topic 1.

         Plaintiffs now argue that “[t]he first sentence sets forth the topic of inquiry” while “[t]he second sentence merely provides particularity as to the scope of the inquiry, i.e., potential sources of policies or duties for Defendant's consideration.” (Doc. 143, at 3.) Plaintiffs contend that facially “this topic is neither vague nor overbroad” and Defendant has made “no valid showing of either.” (Id.)

         The Court notes, as it did in the underlying Order, that Plaintiffs' response to the underlying motion did not address these objections. (Doc. 141, at 10.) Further, Plaintiffs' brief did not even discuss Topic No. 1 specifically. (See generally Doc. 137.) As Defendant argues, “Plaintiffs could have made these same arguments in their Response to the Motion for Protective Order and chose not to do so.” (Doc. 148, at 5.) As such, these arguments are waived. Cf. McCoy v. Miller, No. 12-3050-JAR-KGS, 2014 WL 1977207, at *1 (D. Kan. May 15, 2014) (citing Marshall v. Charter, 75 F.3d 1421, 1426 (10th Cir.1996)) (holding that “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”). The Court DENIES Plaintiffs' motion to reconsider as to Topic No. 1.

         The underlying Order held that Topic 19 was cumulative of Topic 1. Topic 19 seeks a deponent as to Defendant's “policies and procedures, written or oral, for dealing with residents identified as fall risks, and for interventions and prevention of falls by elderly residents.” (Doc. 94, at 8.) Plaintiffs now ask that to have Topic 19 “reinstated, because it provides detailed, non-ambiguous directions as to specific policies about fall risk residents for which Plaintiffs seek information.” (Doc. 143, at 5.) Given the limitation placed on Topic 1, as well as the nature of Plaintiffs' factual allegations, the Court GRANTS Plaintiffs' motion as to Topic 19 and reinstates the topic for purposes of the 30(b)(6) deposition.

         B. Assessments (Topic 10).

         This topic seeks testimony regarding the assessments performed on decedent by Defendant's staff. (Doc. 94, at 5.) Defendant argued that the request is facially over broad and not ...


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