United States District Court, D. Maine
APRIL M. WOOD, Plaintiff,
UNITED STATES OF AMERICA, Defendant. MARK S. PRESCOTT, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER ON PLAINTIFFS' MOTIONS FOR PERMISSION TO
LEVY U.S. DISTRICT JUDGE
April M. Wood and Mark S. Prescott have moved for permission
to depose certain individuals in connection with the limited
discovery I have authorized in these and related cases on the
issue of fraudulent concealment. See ECF No. 72,
1:14-cv-399-JDL; ECF No. 56, 1:14-cv-551-JDL. They assert
that the discovery previously completed “leads to two
possible conclusions: the Government either committed gross
negligence regarding its evaluation and disclosure of Dr.
Franchini's malpractice and/or it fraudulently concealed
information.” Id. at 7. They seek to depose
Dr. Robert Sampson, Dr. Timothy Richardson, Ryan Lilly, Brian
G. Stiller, and Dr. Thomas Franchini. The first four
individuals are current or former employees of the Togus
Veterans Administration Medical Center who participated in
the clinical review of Dr. Franchini, whose treatment of the
plaintiffs is the basis for these actions. They also
contributed to the comprehensive written narrative the
Veterans Administration has produced as part of its written
responses to the plaintiffs' second set of
interrogatories and request for production of documents.
See ECF No.72-1 at 8, 1:14-cv-399-JDL; ECF No. 56-1
at 8, 1:14-cv-551-JDL.
Government opposes the motion. It argues that the plaintiffs
have failed to show good cause to re-open and expand the
discovery previously permitted in this case. See ECF
No. 79 at 6-8, 1:14-cv-399-JDL; ECF No. 61 at 6-8,
1:14-cv-551-JDL. Further, the Government contends that,
contrary to Plaintiffs' claims, the VA disclosure
policies detailed in the discovery conducted to date offer no
support for the fraudulent concealment claims or the new
“special relationship” theory identified in the
Plaintiffs' motions. Id. at 9. Finally, the VA
contends, any additional discovery will produce information
that is either cumulative of the discovery already completed
or irrelevant. Id. at 10-11.
previously stayed the period in which the Government must
plead in response to the Plaintiffs' amended complaints.
The Government intends to move to dismiss the amended
complaints on the basis of lack of subject matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) because, it
contends, the Plaintiffs' claims are barred by the
applicable statute of limitations. The plaintiffs intend to
resist dismissal by asserting that the statute of limitations
was tolled by operation of fraudulent concealment. The burden
will rest with the plaintiffs to demonstrate the existence of
subject matter jurisdiction. Aversa v. United
States, 99 F.3d 1200, 1209 (1st Cir. 1996).
careful consideration, I have concluded that the motions
should be granted in part. The discovery conducted to date
has produced information that explains the timetable and
process by which the Government made its disclosures to the
plaintiffs, but it has not produced information as to the
mindset of the individuals involved and, among other things,
whether they were cognizant of the applicable statute of
limitations during the more than two-year period that the
review of Dr. Franchini's performance was ongoing. In
addition, the plaintiffs have proceeded expeditiously in
making their discovery requests and seeking additional
discovery, and the granting of the motion will not extend
this preliminary discovery period more than an additional
90-days. Mindful that the plaintiffs' cases are subject
to dismissal as time-barred if they do not demonstrate
fraudulent concealment, I conclude that fairness bends toward
permitting them the additional limited discovery they seek.
conclude that the motions should be denied in part as to the
plaintiffs' request to depose Dr. Franchini. Dr.
Franchini's staff privileges at the Veterans
Administration Togus facility were suspended in April 2010,
and his employment ended that November. Plaintiffs do not
point to any information in the discovery completed to date
that Dr. Franchini participated in the review of his own
cases, or that he played any institutional role in the
disclosure of information to the plaintiffs after Dr.
Richardson first asked Dr. Sampson to evaluate a random
sample of Dr. Franchini's surgical cases. See
ECF No. 72-1 at 8, 1:14-cv-399-JDL; ECF No. 56-1 at 8,
1:14-cv-551-JDL. Plaintiffs' motions do not show a
plausible basis to conclude that Dr. Franchini might have
participated in fraudulently concealing the results of his
supervisors' evaluation of his own surgical performance.
it is ORDERED that:
Plaintiffs' motions, ECF No. 72 (Wood) and ECF No. 56
(Prescott), for additional discovery relevant to fraudulent
concealment are GRANTED IN PART. Plaintiffs shall schedule
and complete the depositions of Dr. Robert Sampson, Dr.
Timothy Richardson, Ryan Lilly, and Brian G. Stiller by
February 17, 2017.
Plaintiffs' motions for additional discovery relevant to
fraudulent concealment are DENIED in part to the extent that
they seek permission to depose Dr. Thomas Franchini.
previously ordered stay of the deadline for the Government to
answer or otherwise respond to the amended complaints filed
by Wood and Prescott ordered November 17, 2016, is lifted
(ECF No. 78 Wood and ECF No. 60 Prescott). The Government
shall answer or otherwise respond to the amended complaints
filed by Wood and Prescott by March 3, 2017.