UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

R. Lacey Colligan

v. Civil No. 16-cv-513-JD Opinion No.

Mary Hitchcock Memorial Hospital and Dartmouth Hitchcock Clinic

O R D E R

R. Lacey Colligan filed an employment discrimination

lawsuit against Mary Hitchcock Memorial Hospital and Dartmouth

Hitchcock Clinic (“Dartmouth-Hitchcock”), alleging disability

discrimination, infliction of emotional distress, and

defamation. Colligan moved to exclude Dartmouth-Hitchcock’s

expert witness, Bonnie Michelman, a proposed expert in medical

center security, under Federal Rule of Civil Procedure

37(c)(1). The court granted that motion in part and, among

other sanctions, ordered Michelman to sit for a second

deposition at the convenience of Colligan’s counsel. Colligan

now moves to compel Michelman to answer questions at her second

deposition about her experience and qualifications. Dartmouth-

Hitchcock objects.

Standard of Review

A court may compel a deponent to answer a question that is

relevant, proper, and not otherwise privileged if the deponent has “fail[ed] to answer a question asked under” Federal Rule of

Civil Procedure 30 or 31. Fed. R. Civ. P. 37(a)(3)(B)(i). An

expert witness must disclose the bases and reasons for her

opinion. See Fed. R. Civ. P. 26(a)(2)(B); Fed. R. Evid. 702.

Background

Colligan, a medical doctor, was an independent contractor

performing research with Dartmouth-Hitchcock. Dartmouth-

Hitchcock asserts that, early in the morning on September 1,

2015, the wife of a Dartmouth-Hitchcock executive reported that

a person, later identified as Colligan, came to her house and

threatened her and her husband. Dartmouth-Hitchcock terminated

its relationship with Colligan the same day and prohibited her

from accessing its public medical facility except for emergency

services and scheduled appointments. Colligan, who has post-

traumatic stress disorder, asserts in this lawsuit that

Dartmouth-Hitchcock’s termination of her contract and

restriction of her access to the medical center constituted

discrimination against her based on her disability.

In her preliminary report, Michelman opines that “[t]he

decision that [Dartmouth-Hitchcock] made to terminate Dr.

Colligan and restrict her from the medical campus except for

medical care needed for her or her family was reasonable given

her behavior.” Doc. 52-3 at 3. She states that Dartmouth-

2 Hitchcock’s actions on September 1, 2015, were “appropriate and

consistent with the reasonable practices [i]n other medical

centers.” Id. at 4.

Michelman adds that she formed her opinion using her

knowledge of “the escalation of risks, threats and violence in

healthcare” as well as her “30 plus years of experience as an

expert, consultant, practitioner, and industry leader.” Id. at

2-3. She states that the methodology she used in forming her

opinion “is consistent with good and accepted practices within

the security industry . . . .” Id.

Michelman’s curriculum vitae and her testimony show that

she has worked at Massachusetts General Hospital (“MGH”) for at

least twenty-seven years. Therefore, Michelman’s experience at

MGH forms the vast majority of the experience to which she

cites.

Discussion

Colligan moves to compel Michelman to answer questions in

three categories. First, Colligan seeks to compel answers

“about MGH’s security policies and procedures, as well as the

differences where applicable between such policies for MGH and

Defendants, specifically regarding disruptive people, workplace

violence and conflict and safeguarding people who may be victims

of crime or threats or fear.” Doc. 52-1 at 3-4. Second,

3 Colligan seeks answers to questions about Michelman’s

“operations” at MGH. Third, Colligan seeks from Michelman “the

details of her experiences at MGH and other hospitals regarding

specific instances of escalating risks, threats, and violence

. . . .” Id. at 5. In response, Dartmouth-Hitchcock argues

that these questions seek irrelevant information because

Michelman developed her opinion using her general experience,

not her specific experiences at MGH.

A. Comparisons of Policies and Procedures

During her first deposition, Michelman refused to answer

questions about MGH’s security policies and procedures and

questions about the differences, if any, between MGH’s policies

and procedures and those used at Dartmouth-Hitchcock. Michelman

cited the confidential and proprietary nature of the information

in refusing to answer the questions. Colligan moves to compel

those answers at Michelman’s second deposition. Dartmouth-

Hitchcock objects, claiming the information sought is irrelevant

and should not be compelled because it is proprietary

information.

Dartmouth-Hitchcock relies on Fitz, Inc. v. Ralph Wilson

Plastics Co.,

(D.N.J. 1999), in support of

its objection. In Fitz, however, an expert who testified in

support of the plaintiff’s claim that the defendant had designed

4 a defective adhesive product offered specific factual data to

support his opinion that the defendant’s design was flawed. See

For example, the expert, while maintaining the

confidentiality of a proprietary adhesive formula, noted the

relevant differences between the proprietary formula and the

formula alleged to be defective.

(“While he did not reveal

the exact composition of these adhesives, he testified that he

never developed an adhesive with the same antioxidants or resins

used by the defendants.”). Because the expert had established a

factual basis for his opinion, the court declined to compel the

expert to disclose further specifics about the proprietary

formula.

.

Here, in contrast, Michelman refused to answer questions

about the similarities or differences between the policies and

procedures at MGH and other medical centers. In her first

deposition, Michelman refused to answer even in general terms

questions about how she determined that Dartmouth-Hitchcock’s

practices were consistent with those of other medical centers.

Beyond noting that Massachusetts General Hospital has procedures

to attend to “disruptive people,” “workplace violence,” and

“conflict,” Michelman offered no information about the relevant

practices of medical centers other than Dartmouth-Hitchcock.

See doc. 52-2 at 43. Michelman also refused to answer a

5 question about the relevant differences, if any, between

Dartmouth-Hitchcock’s policy on addressing incidents like the

one alleged in this case and Massachusetts General Hospital’s

corresponding policy. Id. at 13. Without that information,

Colligan is unable to test the bases and methodology of

Michelman’s opinion. See Fed. R. Evid. 702 (“A witness who is

qualified as an expert . . . may testify in the form of an

opinion . . . [if] the testimony is based on sufficient facts or

data . . . .”). Therefore, for her opinions to be admissible,

Michelman will likely need to answer questions in her second

deposition about the similarities and differences between

Dartmouth-Hitchcock’s relevant security practices and those at

other medical centers.

The court, however, will not compel Michelman to answer

Colligan’s questions. Michelman may decline to answer the

questions, but Dartmouth-Hitchcock will run the risk that the

court, if requested by a properly supported motion, might

exclude some or all of her opinions.

B. “Operations” and Specific Incidents

Colligan states that Michelman refused to answer questions

about her “operations” at MGH. Other than the questions related

to Michelman’s comparative analysis of security policies

discussed above, Colligan does not identify any specific

6 questions in this category that Michelman failed to answer. See

Fed. R. Civ. P. 37(a)(3)(B)(i). In her motion, Colligan cites

only to Michelman’s general statement that she will not discuss

MGH’s operations. The issue, therefore, is not sufficiently

developed for the court to respond.

Colligan also asks the court to compel Michelman to answer

questions about her experiences with similar incidents at MGH

and other hospitals. Colligan cites an exchange during

Michelman’s first deposition in which she refused to identify

the specific hospital associated with a security incident that

she had described. However, during that exchange, Michelman did

not refuse to discuss her prior experience with similar security

incidents. The specific hospital at which any similar incident

occurred does not appear to have much significance in the

context of this case because the opinion given by Michelman was

limited to the reasonableness of Dartmouth-Hitchcock’s decision

on September 1, 2015, to take steps to prevent Dr. Colligan from

accessing the Dartmouth-Hitchcock facility.1

1 Although Michelman wrote in her preliminary report that Dartmouth-Hitchcock’s decision to “terminate Dr. Colligan and restrict her from the medical campus . . . was reasonable given her behavior,” Michelman clarified in her first deposition that her opinion was limited to the appropriateness of taking measures to mitigate the immediate security risk posed by Colligan given the facts available to Dartmouth-Hitchcock on September 1, 2015. Doc. 52-2 at 75-76, 122-23.

7 Conclusion

For the foregoing reasons, the motion to compel deposition

answers from Bonnie Michelman (doc. 52) is denied. The court,

however, places Dartmouth-Hitchcock on notice that Michelman’s

failure, absent an articulated compelling reason, to answer

relevant questions about her experience or the bases for her

opinions could lead to the exclusion of some or all of her

opinions. When the follow-up deposition of Michelman is taken,

it behooves both counsel, in light of the guidance the court has

provided in this order, to be specific with their questions and

objections so that the court will have a sufficient basis to

review objections and any requests to exclude opinions or to

provide other relief to either party.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

November 2, 2018

cc: William E. Christie, Esq. Natalie J. Laflamme, Esq. Timothy John McLaughlin, Esq. William D. Pandolph, Esq. Christopher James Pyles, Esq.

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