IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ODESSA MOSLEY, et al., :

Plaintiffs, :

vs. : CA 09-0284-KD-C

WYETH, INC., et al., :

Defendants.

ORDER

This cause is before the Court on defendant PLIVA, Inc.’s motion to

compel discovery from plaintiffs (Doc. 96; see also Doc. 97) and plaintiffs’

response (Doc. 105). Upon a consideration of these pleadings, with

attachments, as well as all other pertinent pleadings in this case, this order is

entered pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 72.2(a) & (c)(1).

FINDINGS OF FACT

1. On May 21, 2009, plaintiffs filed this lawsuit against PLIVA,

Inc. and others asserting entitlement to damages and other relief from the

defendants based upon their negligence (Doc. 1, ¶¶ 4.01-4.04), strict liability

(id. at ¶¶ 4.05-4.07), breach of express and implied warranties (id. at ¶¶ 4.08-

4.09), misrepresentation and fraud (id. at ¶¶ 4.10-4.15), and gross negligence

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 1 of 28
1 Ms. Mosley’s husband, Ulysses Mosley, seeks damages for loss of consortium.

(Doc.1, at 24)

2

(id. at ¶¶ 5.01-5.03),1 due to injuries suffered by Odessa Mosley as a result of

her prescribed long-term use of Reglan/metoclopramide (id. at ¶¶ 3.15 & 3.16).

According to Mrs. Mosley, she began ingesting Reglan/metoclopramide as

prescribed on a long-term basis beginning in 2005. (See id. at ¶¶ 3.08-3.13) 

2. The parties filed their Rule 26(f) report on August 13, 2009.

(Doc. 51) In paragraph 4, the defendants specifically identified the following

subjects for which discovery would be needed: “[P]roduct identification;

Plaintiff Odessa Mosley’s past and current health, medical conditions, and

treatment, including, without limitation, all aspects of her experience and

treatment for the symptoms of gastroesophageal reflux disease or other

gastrointestinal disorders, and tardive dyskinesia; plaintiffs’ education and

employment history; and all other issues material to the measure of damages

sought by plaintiffs.” (Id. at 2, ¶ 4) The report otherwise reads, in relevant part,

as follows:

Executed Authorizations. Defendants request that plaintiffs

be required to provide blank, executed medical

authorization forms and employment authorization forms

from plaintiff Odessa Mosley by September 18, 2009.

Defendants will use the forms to obtain Mrs. Mosley’s

medical and employment records and will provide copies of

all documents obtained to plaintiffs’ counsel. If required by

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3

the Court, defendants will agree to provide plaintiffs’ counsel

fourteen (14) days notice before sending a completed

authorization form to a medical provider or employer so that

plaintiffs’ counsel may object to such authorization, if desired.

Defendants make this request because experience in the

metoclopramide litigation has shown that the gathering of

medical and employment records is the most time-consuming

aspect of discovery, but the most important aspect that must be

completed before meaningful depositions can take place.

Experience also has shown that, without the provision of blank

authorizations, significant delays can occur between the times

that specific authorizations are requested and executed

authorizations are provided. Literally, defense counsel has

waited for periods of 6-9 months before such executed

authorizations have been provided, despite repeated requests and

reminders.

Plaintiff’s (sic) counsel is willing to execute medical

authorizations that are specifically targeted to identified medical

provider, but objects to blank authorizations. Experience has

shown that such blank authorizations are ripe for misuse and

delving into clearly irrelevant matters, are not restricted to date,

and thus have been used for purposes not related to relevant

discovery. Likewise, Plaintiffs have no objection to obtaining

relevant employment records, but again experience has shown

that employment records can often contain matters that are

irrelevant to litigation. Plaintiffs have proposed a process by

which employment records are produced first to plaintiff’s (sic)

counsel– if any records are believed to be privileged, irrelevant

or otherwise protected from discovery, plaintiff’s (sic) counsel

will file such materials in camera for the Court to evaluate

whether they are truly relevant and discoverable. Allowing

defendants to obtain the records without such a redaction period

prevents the protection of any such materials.

(Id. at 5, ¶ 12 (emphasis supplied)) 

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 3 of 28
2 To this end, the parties filed a joint motion for protective order on September 9,

2009 (Doc. 63) and the undersigned entered the protective on September 10, 2009 (Doc. 66).

4

3. The Rule 16(b) scheduling order was entered in this case on

August 26, 2009 and reads, in relevant part, as follows:

1. ISSUES SUBJECT TO DISCOVERY. Those

specific discovery issues identified by the parties in paragraph

4 of their Rule 26(f) report are the only issues subject to

discovery.

...

19. OTHER MATTERS.

A. The parties are to prepare and submit a proposed

protective order (see paragraph 12 of Rule 26(f)

Report) not later than September 18, 2009.2

B. Plaintiffs shall provide defendants with executed

medical authorization forms and employment

authorization forms by September 18, 2009.

Defendants will complete the executed forms and

provide plaintiffs with fourteen (14) days notice

before sending a completed form to a medical

provider or employer. Within this 14-day period,

should plaintiff object to any request for medical

or employment information, that request is not to

be sent pending a resolution of the objection

informally by the parties or by court order. This

procedure will protect plaintiffs’ opportunity to

preclude the production of privileged, irrelevant

or otherwise protected information. Documents

are not to be filed under seal without specific

authority from the Court.

(Doc. 53, at 1, ¶ 1 & 8-9, ¶ 19 (footnote added; emphasis in original)) 

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4. On December 8, 2009, PLIVA’s national counsel, Rex A.

Littrell, Esquire, penned a letter to plaintiffs’ counsel “inquiring about the nonprovision of authorization forms and providing blank medical authorization

forms to [] Plaintiffs’ counsel.” (Doc. 97, Exhibit A, Declaration of Rex A.

Littrell, at ¶ 4) Littrell informed plaintiffs’ counsel that once he received the

executed authorizations from Mrs. Mosley he planned on sending the forms to

thirteen (13) medical providers and two (2) pharmacies. (Id.)

5. On December 9, 2009, PLIVA served its first set of

interrogatories to plaintiff Odessa Mosley, its first set of interrogatories to

plaintiff Ulysses Mosley, and its first request for production of documents to

Odessa Mosley. (Doc. 97, Littrell declar., at ¶ 9) PLIVA’s Interrogatory No.

1 to Odessa Mosley requested her complete identity, including her social

security number (see Doc. 97, Exhibit 2 to Littrell declar., at 4); Interrogatory

No. 3 requested the identity of Mrs. Mosley’s family members, more

specifically, her children, parents, grandparents, aunts, uncles, brothers, sisters,

and cousins (id.); and Interrogatory No. 7 requested detailed information

regarding Mrs. Mosley’s medical history and providers (see id.). PLIVA’s

Document Production Request 22 sought Mrs. Mosley’s execution of

authorizations/consents for release of various records. (See id., at 5 & Exhibit

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6

4 to Littrell declar., at 8) Finally, PLIVA’s Interrogatory No. 9 to Ulysses

Mosley requested an itemization of each element of damages he was

requesting. (See Doc. 97, Littrell declar., at ¶ 17) 

6. On December 30, 2009, Littrell penned a letter to plaintiffs’

counsel regarding execution of medical and employment authorization forms.

(Doc. 105, Exhibit 1)

I am writing in response to Bill’s letter dated December

29, 2009, regarding the medical authorization form executed by

Mrs. Mosley. In that letter, Bill states that Ms. Mosley does not

give her permission for the defendants to use the form to obtain

medical records from five medical providers. However, the letter

provides no explanation for Mrs. Mosley’s objection to the use

of the authorization form to obtain records from those five

providers.

In an attempt to resolve this issue informally pursuant to

Paragraph 19.B of the of the Scheduling Order entered by the

Court on August 26, 2009, please contact me at your soonest

convenience to provide me with the reason(s) for Mrs. Mosley’s

objection to the use of the authorization to obtain records from

these medical providers. At a minimum, I will need to know

when she saw such providers and for what condition(s) and

whether any of them prescribed any medications to her.

Furthermore, I will tell you now that it is my position that, at a

minimum, I believe medical records from Mrs. Mosley’s visits

to any medical provider, either before or after she began using

metoclopramide, are either relevant or at least calculated to lead

to the discovery of admissible evidence because they reflect

whether or not the providers noted any type of abnormal

movements by Mrs. Mosley during her visits to them. However,

I of course am willing to discuss the issue further with you. In

the interim, the defendants will use the executed form to obtain

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medical records from the other ten providers and pharmacies

listed in Bill’s December 29 letter.

In addition, having reviewed the Scheduling Order in this

case again, I note that Paragraph 19.B requires the provision of

blank employment authorization forms. I will forward you blank

employment authorization forms next week.

With respect to your objection to the provision of

executed authorization forms from Mr. Mosley, please note that

Paragraph 19.B of the Scheduling Order requires that he also

provide executed medical and employment authorization forms.

However, on behalf of PLIVA, I am willing to consider not

obtaining the required authorization forms from him if plaintiffs

will stipulate that (1) Mr. Mosley will not assert that he saw any

type of medical provider as a result of the alleged injuries to

Mrs. Mosley; (2) Mr. Mosley will not assert that he missed any

work as a result of the alleged injuries to Mrs. Mosley; and (3)

Mr. Mosley will not be seeking any type of damages for alleged

physical or mental injuries or for missed work as a part of his

consortium claim. However, I do not yet know the other

defendants’ position on this issue, so I will consult with them

about it. In the interim, please let me know if plaintiffs will

agree to the above.

Please contact me as soon as possible about these issues.

Defendants are behind schedule obtaining medical records as a

result of plaintiffs’ failure to provide executed authorization

forms back in September as required by the Scheduling Order,

so time is of the essence. Thank you for your anticipated

cooperation.

(Id.) One of plaintiffs’ attorneys, William B. Curtis, Esquire, responded to

the foregoing letter by letter dated January 5, 2010. (See Doc. 97, Exhibit 1 to

Littrell declar.) Neither plaintiffs or defendant PLIVA has provided this Court

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with a copy of Mr. Curtis’ letter but a flavor of same can be discerned from

Mr. Littrell’s letter in response dated January 6, 2010. (See id.)

I am writing in response to Bill’s letter dated January 5,

2010, written in response to my letter dated December 30, 2009.

It is my understanding from Bill’s that Mrs. Mosley continues

to object to the use of her executed medical authorization to

obtain medical records from the five medical providers listed in

Bill’s letter. Unfortunately, although Bill asserts that “the five

different medical providers listed are not evenly remotely

related to the consumption of metoclopramide or the injuries

resulting therefrom,” Bill did not provide me with the

information I requested in my December 30 letter so that

defendants can determine whether to pursue documents from the

requested providers. Because defendants’ discovery attempts

already have been delayed approximately 3 months as a result

of Mrs. Mosley’s failure to provide her executed blank

authorization as required by Paragraph 19.B of the Scheduling

Order in this case, I must insist that you provide that information

by no later than Friday, January 8, or PLIVA will be forced to

file a motion to compel discovery. However, I also am willing

to discuss the issue further with you and other defense counsel

if you would like to have a conference call on the afternoon of

January 11. Let me know if you would like to schedule a call to

discuss this issue.

I am not going to respond to Bill’s assertion that PLIVA

has engaged in a “pattern and history of fishing into records not

even remotely related to metoclopramide or the injuries resulting

therefrom,” other than to state that the assertion is nonsense. My

December 30 [letter] sets forth PLIVA’s position regarding the

relevancy of medical records, and PLIVA stands by that

position. 

I also note that Bill’s letter did not address the provision

of an executed medical authorization form by Mr. Mosley. My

December 30 letter suggested a possible compromise on that

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9

issue. Please let me know by January 8 if that proposed

compromise is acceptable. I am still waiting to hear from other

defendants regarding the proposal also.

Finally, enclosed are blank employment authorization

forms for Mr. and Mrs. Mosley’s signature. Provision of those

executed authorizations also is required by Paragraph 19.B of

the Scheduling Order, but executed forms have not been

provided before now. Mr. Mosley does not need to provide the

executed form if the parties all agree on the compromise

proposed in my December 30 letter. Please provide the executed

forms as quickly as possible. 

In conclusion, I must state that I am dismayed by your

offices’ emerging pattern of blocking and/or delaying legitimate

discovery requested by the defendants in this case and other

metoclopramide cases. Discovery schedules agreed to by the

parties in all cases, including this case, are premised on the

belief that cooperation in discovery will take place. However,

the failure to provide necessary authorizations by required

deadlines and unilateral assertions that discovery will not be

permitted because allegedly “irrelevant” throw those agreed

schedules into chaos and unnecessarily necessitate motion

practice. I am hoping the emerging pattern can be reversed in

this and other cases.

Thanks for your anticipated cooperation. Again, please

let me know if you would like to conduct a conference call to

discuss these issues on Monday, January 11, 2009 (sic).

(Id.) 

7. Plaintiff Odessa Mosley served her answers and objections to

PLIVA’s first set of interrogatories and her responses and objections to the

defendant’s first request for production of documents on January 11, 2010.

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 9 of 28
10

(Doc. 97, Exhibits 2 & 4 to Littrell declar.) In addition, plaintiff Ulysses

Mosley served his answers and objections to PLIVA’s first set of

interrogatories on January 11, 2010. (Doc. 97, Exhibit 3 to Littrell declar.) 

8. Odessa Mosley’s answers and objections to PLIVA’s first set of

interrogatories reads, in relevant part, as follows:

1. Please identify yourself. Four (sic) purposes of this

interrogatory, a complete identification should include

your full name, including any former names or aliases,

present residential address, date and place of birth, and

driver’s license and social security numbers.

ANSWER:

Odessa Mosley

31262 Coleman Lane

Spanish Fort, AL 36527

DOB: – born in Alabama.

DL #: 6327125

SSN: 

Plaintiff objects to providing her social security

number. This request is overly broad, is not

calculated to lead to evidence that would be

relevant or admissible at trial, violates Plaintiff’s

right of privacy, and violates the provisions of the

Social Security Act.

...

3. Please identify your family members. For purposes of

this interrogatory, please state the full name, including

former names and aliases, the current or last known

address and telephone number, date and place of birth,

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 10 of 28
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and date and place of death (if applicable) of each of

[y]our children (including any step-children or adopted

children), parents, grandparents, aunts, uncles, brothers,

sisters, and cousins.

ANSWER:

Carl Mosley– son. Date of birth: 

Plaintiff objects to the remainder of this

interrogatory on the basis that it is overly broad

and seeks information not calculated to lead to

admissible evidence. In addition, please refer to

Plaintiffs’ Disclosure responses, and any

supplements thereafter, for complete contact

information of individuals with any discoverable

information.

...

7. Please provide a complete medical treatment history. For

purposes of this Interrogatory, a complete medical

treatment history should include the name, address, and

telephone number of each Health Care Provider and/or

Health Care Facility (as defined above) where you were

ever hospitalized or received care, treatment, or

medication, inpatient or outpatient, for any mental or

physical illness, injury, condition, or disability and, for

each such Health Care Provider and/or Health Care

Facility, state the illness, injury, condition, or disability

for which you were hospitalized, confined, treated, or

received medication or care; the type or nature of the

care, treatment, or medications received; and the

inclusive dates for each.

ANSWER:

Plaintiff objects as harassing. Please refer to the

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medical/pharmacy records.

(Doc. 97, Exhibit 2 to Littrell declar., at 4, 4-5 & 6) Moreover, Odessa

Mosley’s responses and objections to PLIVA’s first request for production of

documents reads, in part, as follows:

22. Please sign and date the attached Authorizations for

release of various records of plaintiff (sic). If you refuse

to execute any of the attached Authorizations, please

state precisely and specifically the legal and factual

grounds upon which such refusal is based.

RESPONSE:

Defendant has attached the authorizations listed below;

Plaintiff objects to signing these authorizations on

the grounds that it would allow for impermissible

and irrelevant fishing expeditions into matters that

are not relevant.

1. Medical Authorization to Disclose Personal Health

Information (for Ulysses Mosley)

2. Medicare Authorization to Disclose Personal

Health Information

3. Consent for Release of Information from

Social Security Administration (for Ulysses

Mosley)

4. Consent for Release of Information from

Social Security Administration

5. Authorization to Release Financial Records

(for Ulysses and Odessa Mosley)

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6. Authorization to Release Employment Records

(for Ulysses Mosley)

7. Authorization to Release Employment Records

(for Odessa Mosley)

8. Authorization to Release Educational

Information (for Ulysses Mosley)

9. Authorization to Release Educational

Information (for Odessa Mosley)

(Doc. 97, Exhibit 4 to Littrell declar., at 8-9) Finally, plaintiff Ulysses

Mosley’s answers and objections to PLIVA’s first set of interrogatories reads,

in part, as follows:

9. Please itemize each element of damages that you are

claiming on your own behalf, including, but not limited

to[,] medical and hospital expenses; past and future

pecuniary loss; loss of consortium and grief; and any

other element of damages claimed, by including the

specific dollar amounts you are claiming and by

identifying the manner in which each amount [w]as

computed. If you are claiming that you have been out of

work due to plaintiff Odessa Mosley’s alleged injury,

please state the dates you were out of work, and the name

of your employer.

ANSWER:

Plaintiff Ulysses Mosley has suffered loss of

consortium, both past and present. Plaintiff

objects to the remainder of the interrogatory in

that it is overly broad and burdensome for an

Interrogatory and would more appropriately be

addressed by way of deposition.

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(Doc. 97, Exhibit 3 to Littrell declar., at 6-7) 

9. According to PLIVA’s national counsel, Rex Littrell, “[u]pon

receipt of Plaintiffs’ interrogatory answers and document production

responses, [he] attempted in good faith to resolve this discovery dispute

without the need for court action. However, Plaintiff’s counsel did not respond

to [the] request to conduct a conference to discuss the issue.” (Doc. 97, Littrell

declar., at ¶ 18)

10. PLIVA filed its motion to compel on January 29, 2010 (Docs.

96-97); plaintiffs’ joined the motion to compel, as ordered (see Doc. 99), on

February 17, 2010 (Doc. 105). 

CONCLUSIONS OF LAW

A. Interrogatories.

1. Federal Rule of Civil Procedure 33 governs interrogatories to

parties. Interrogatories must be answered by the party to whom they are

directed under oath and must be signed by the person making the answers.

Fed.R.Civ.P. 33(b)(3) & (5); see Estrada v. Palm Beach Metro Transportation,

LLC, 2008 WL 1995097, *1 (S.D. Fla. 2008) (“Federal Rule of Civil

Procedure 33 clearly states that Interrogatory Responses must be answered

‘under oath.’”); Cherenfant v. Nationwide Credit, Inc., 2004 WL 5315889, *1

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15

n.2 (S.D. Fla. 2004) (“Federal Rule of Civil Procedure 33(b)(3) requires a

party to sign interrogatory answers ‘under oath.’”). In addition, “the attorney

who objects must sign any objections.” Fed.R.Civ.P. 33(b)(5). 

2. In this case, neither plaintiff signed the answers to the

interrogatories propounded by defendant PLIVA. (See Doc. 97, Exhibits 2 &

4 to Littrell declar.) While this failure on the part of plaintiffs is technically

sanctionable, see Walls v. Paulson, 250 F.R.D. 48, 52 (D. D.C. 2008) (“Rule

33(b)(5) could not be more clear: ‘The person who makes the answers must

sign them, and the attorney who objects must sign any objection.’ [] This

requirement is critical because interrogatories serve not only as a discovery

device but as a means of producing admissible evidence; there is no better

example of an admission of a party opponent, which is admissible because it

is not hearsay, than an answer to an interrogatory.’ . . . Moreover, the plaintiff

not only failed to sign her initial response to the interrogatories, but she also

failed to sign her supplemental response. . . . Accordingly, the plaintiff is

subject to sanctions for this oversight as well.”), the only manner in which this

Court will sanction plaintiffs in this regard is by ordering them to immediately

sign their interrogatory responses as required by Rule 33(b)(5) nunc pro tunc

to January 11, 2010 and to caution them that any future failure to sign

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interrogatory responses will result in an appropriate monetary sanction. The

undersigned deems this an appropriate “sanction” at this point in time since

PLIVA’s real bone of contention with plaintiffs involves the “objections”

interposed by plaintiffs to identified interrogatories (see Doc. 97, at 4-5 & 6).

3. “The propounding party may seek an order to compel further

responses regarding ‘an objection to or other failure to answer an

interrogatory.’” James Brooks Co., Inc. v. Certain Underwriters at Lloyd’s

London, 2006 WL 2168195, *3 (E.D. Cal. 2006). Once the low burden of

relevance of the requested discovery is established, “the legal burden regarding

the defense of a motion to compel resides with the party opposing the

discovery request.” Heartland Surgical Specialty Hospital, LLC v. Midwest

Division, Inc., 2007 WL 950282, *1 (D. Kan. 2007) (citations omitted). 

4. Turning first to Interrogatory 9 propounded to plaintiff Ulysses

Mosley, it cannot be gainsaid that this interrogatory is relevant on its face,

based on the allegations in the complaint and Mr. Mosley’s state-law claim for

loss of consortium, thereby shifting the burden of persuasion to support his

objections to plaintiff Ulysses Mosley. In this regard, “[a] party resisting

discovery has the burden to support its objection[;]” therefore, an objecting

party’s failure to provide argument or evidence in support its objections (e.g.,

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vagueness, ambiguity, privilege, etc.) to propounded discovery will result in

the court’s overruling of such objections. Black & Veatch Int’l Co. v. Foster

Wheeler Energy Corp., 2001 WL 1718295, *2 (D. Kan. 2001) (citations

omitted); see also Continental Illinois Nat’l Bank & Trust Co. of Chicago v.

Caton, 136 F.R.D. 682, 685 (D. Kan. 1991) (“Bare assertions that the

discovery requested is overly broad, burdensome, oppressive or irrelevant are

ordinarily insufficient, standing alone, to bar production. . . . It is therefore

[the] burden [of the party opposing discovery] . . . to clarify and explain how

each discovery request is irrelevant, not reasonably calculated to lead to the

discovery of admissible evidence, or burdensome.”); see Swackhammer v.

Sprint Corp. PCS, 225 F.R.D. 658, 661-662 (D. Kan. 2004) (“Unless an

interrogatory is overly broad on its face, the party resisting discovery has the

burden to support its overbreadth objection.”). Accordingly, plaintiff Ulysses

Mosley’s bare assertion that Interrogatory 9 propounded to him is “ overly

broad and burdensome for an Interrogatory and would more appropriately be

addressed by way of deposition[,]” (Doc. 97, Exhibit 3 to Littrell declar., at 7)

is due to be and hereby is OVERRULED. Plaintiff Ulysses is ORDERED to

answer this interrogatory completely and non-evasively not later than March

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3 While it is now clear that Mr. Mosley is making no claim for lost income/wages

or income potential (Doc. 105, at 6) or a claim for any physical or psychological injury to

himself in connection with the claims herein (id. at 7) and that ALABAMA LAW OF

DAMAGES at § 20:3 provides that “[t]he spouse is not required to itemize the services that he or

she claims was lost[,]” these are “objections” which should have been interposed by counsel on

January 11, 2010, not now. Because they were not interposed then they are now waived and this

plaintiff is to specifically make such statements in answer to Interrogatory 9, that is, that he is

not seeking recovery of any such damages. In addition, plaintiff Ulysses Mosley can certainly

identify whether he seeks recovery for any expenses incurred in the procurement of medical

services for treatment of his wife’s tardive dyskinesia and the amount he seeks to recover

therefor, see Morrisson v. Clark, 196 Ala. 670, 72 So. 305, 309 (Ala. 1916), identify more

specifically what his loss of consortium claim entails, for example, that his claim includes loss of

sexual relations as well as loss of “‘love, companionship, affection, society, comfort, solace,

support, . . . and services,’” Ex parte N.P., 676 So.2d 928, 931 (Ala. 1996), and the general

amount he now has in mind to ask the jury to award him for loss of consortium. In doing so,

however, plaintiff does not have to state he wants a certain sum for loss of sexual relations,

another certain sum for loss of love, etc.; he simply need state he is seeking a sum certain for

loss of sexual relations, love, companionship, services, etc., that is, everything that characterizes

his loss of consortium claim. 

4 This concession by plaintiffs’ counsel, as well as other concessions (see Doc. 105,

at 6), makes it clear to the undersigned that this matter could have been significantly narrowed

by the parties had counsel been more cooperative. The undersigned takes this opportunity to

remind counsel that cooperation during discovery is expected in this district. See

INTRODUCTION TO CIVIL DISCOVERY PRACTICE IN THE SOUTHERN DISTRICT OF

ALABAMA, at I.A. (Civil Practice Federal Court Committee 1998). Should the spirit of

18

17, 2010.

3

5. With respect to the interrogatories propounded to Odessa Mosley

to which PLIVA takes issue, it is clear to the undersigned that PLIVA’s

motion to compel this plaintiff to provide her social security number in

response to Interrogatory No. 1 (Doc. 97, at 4) is now MOOT inasmuch as

Mrs. Mosley’s counsel has agreed to provide this number, along with Mr.

Mosley’s social security number under cover of letter (Doc. 105, at 2).4

 If

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cooperative discovery envisioned by this Court’s Discovery Plan remain cast aside in this case,

the undersigned will find it necessary to hold a hearing at which the presence of lead counsel

will be required. 

19

plaintiffs have yet to provide these numbers to PLIVA’s counsel they are

ORDERED to do so not later than March 17, 2010. 

6. Interrogatory No. 3 propounded to plaintiff Odessa Mosley

requested her to identify by name, address, and telephone number her children,

parents, grandparents, aunts, uncles, brothers, sisters, and cousins and, where

applicable, the date and place of death of any foregoing family members.

Given plaintiff’s claim that her tardive dyskinesia was caused by prolonged

use of Reglan/metoclopramide, as opposed to a genetic predisposition to same,

and the defendants’ defenses to Mrs. Mosley’s claims, the undersigned is of

the opinion that the information PLIVA seeks in Interrogatory No. 3 is

arguably relevant. (See Doc. 105, at 4 (“Even if an argument could ne made

that Pliva has an interest in learning the medical conditions of remote relatives,

records of those medical conditions are protected under HIPAA.”)) However,

the interrogatory is also overly broad on its face to the extent it seeks the

identity of all of Mrs. Mosley’s cousins. The interrogatory is not otherwise

overly broad and, therefore, this plaintiff’s base assertion in this regard (as

well as the bare assertion that same is irrelevant) is OVERRULED and Mrs.

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Mosley is ORDERED to identify by name, address, and telephone number

(or by date and place of death) her parents, grandparents, aunts, uncles,

brothers and sisters not later than March 17, 2010.

7. Turning to the final interrogatory made the basis of the motion

to compel, Interrogatory No. 7 to Odessa Mosley, there can be no doubt that

Mrs. Mosley’s medical treatment history is relevant to the claims she makes

in the complaint. However, Interrogatory No. 7 is also unequivocally over

broad on its face because the interrogatory does not confine itself to a certain

period of time; instead, it appears that PLIVA desires to discover Mrs.

Mosley’s medical treatment history from the day she was born to date. (See

Doc. 97, Exhibit 2 to Littrell declar., at 6) Because it is overly broad on its face

it is also, as Odessa Mosley’s counsel asserts, harassing. Therefore, in

response to this interrogatory Mrs. Mosley’s counsel properly referred PLIVA

to the medical/pharmacy records. This Court will not compel any further

response to this interrogatory. 

B. Document Production Request No. 22 to Odessa Mosley.

8. The undersigned considers PLIVA’s document request 22 in

connection with its overarching contention that plaintiffs have not provided it

with all the executed medical authorization forms and executed employment

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 20 of 28
21

authorization forms contemplated in the Rule 16(b) scheduling order (see Doc.

97, at 1-3) since this document request specifically asks plaintiffs to execute

the following authorizations and consents:

1. Medicare Authorization to Disclose Personal Health

Information (for Ulysses Mosley)

2. Medicare Authorization to Disclose Personal Health

Information

3. Consent for Release of Information from Social Security

Administration (for Ulysses Mosley)

4. Consent for Release of Information from Social Security

Administration

5. Authorization to Release Financial Records (for Ulysses

and Odessa Mosley)

6. Authorization for Employment Records (for Ulysses

Mosley)

7. Authorization to Release Employment Records (for

Odessa Mosley)

8. Authorization to Release Educational Information (for

Ulysses Mosley)

9. Authorization to Release Educational Information (for

Odessa Mosley)

(Doc. 97, Exhibit 4 to Littrell declar., at 8-9)

9. While it is clear that this Court set forth a procedure for the

parties to follow with respect to medical and employment authorization forms

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 21 of 28
5 The parties simply eliminated one step of the procedure doing it in this manner.

6 Six of the thirteen medical providers had been disclosed in plaintiffs’ initial

disclosures. (Doc. 97, Littrell declar., at ¶ 4) The remaining seven (7) medical providers were

gleaned by PLIVA from plaintiff Odessa Mosley’s pharmacy records. (Id.)

22

(Doc. 53, ¶ 19.B.) and that plaintiffs failed to provide defendants with

executed blank forms by September 18, 2009 (compare id. with Doc. 97, at 2),

it is also apparent to the undersigned that PLIVA did not begin to push

plaintiff on this front until early December of 2009 (see Doc. 97, at 2). Once

PLIVA sent its December 8, 2009 letter to plaintiffs’ counsel, however, the

procedure set forth by the undersigned was expected to be followed. In

particular, though PLIVA actually provided blank medical authorization forms

to plaintiffs’ counsel for their convenience (instead of what should have been

the reverse, plaintiffs’ counsel sending blank medical authorization forms to

defendants),5

 and indicated to plaintiffs’ counsel that PLIVA would be sending

the form executed by Odessa Mosley to 13 medical providers6

 and 2

pharmacies, plaintiffs should have specifically informed PLIVA, in the letter

penned December 28, 2009, of their objections to sending the form to any of

the medical providers listed (see Doc. 53, at ¶ 19.B. (“Within this 14-day

period, should plaintiff object to any request for medical or employment

information, that request is not to be sent pending a resolution of the objection

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 22 of 28
7 Based upon plaintiffs’ brief, it is clear that the five medical providers are the

following: (1) Dr. George Corbett, Mrs. Mosley’s orthopedic surgeon; (2) Dr. Erin Dawkins,

Mrs. Mosley’s gynecologist; (3) Dr. C. Douglas Harrell, Mrs. Mosley’s dentist; (4) Dr. Heather

Haley, Mrs. Mosley’s dermatologist; and (5) Dr. Charles Smith, Mrs. Mosley’s general surgeon.

(Doc. 105, at 2)

23

informally by the parties or by court order. This procedure will protect

plaintiffs’ opportunity to preclude the production of privileged, irrelevant or

otherwise protected information.”)). However, all that is apparent to the

undersigned is that when plaintiffs’ counsel forwarded the blank authorization

form signed by Odessa Mosley to counsel for PLIVA, permission was given

for use of the form to obtain medical records from the 2 pharmacies and 8

medical providers but for the remaining five medical providers plaintiffs’

counsel refused to give permission to use the form to obtain records from them

(Doc. 97, Littrell declar., at ¶ 5) without specifically identifying why they were

objecting to use of the form to obtain medical records from those five medical

providers.7

 Therefore, plaintiffs’ January 5, 2010 suggestion that the records

from these five providers are irrelevant comes too late and is OVERRULED.

Accordingly, the undersigned AUTHORIZES PLIVA to use the medical

authorization form executed by Odessa Mosley to obtain medical records from

Dr. George Corbett, Dr. Erin Dawkins, Dr. C. Douglas Harrell, Dr. Heather

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 23 of 28
8 Inasmuch as these five medical providers were identified by PLIVA from

pharmacy records voluntarily disclosed by plaintiff Odessa Mosley it is unclear to the

undersigned how plaintiffs can so confidently stake the position that records from these five

providers are wholly irrelevant or that review of same cannot possibly lead to the discovery of

admissible evidence. 

24

Haley, and Dr. Charles Smith.8

10. In addition, while plaintiffs refused, in the letter dated December

29, 2009, to produce an executed medical authorization for Mr. Mosley (Doc.

97, Littrell declar., at ¶ 5), and, as a result, have certainly waived any

legitimate objection they might have to producing same, in light of the

plaintiffs’ admission that Mr. Mosley has sought no medical treatment related

to his loss of consortium claim, the undersigned does not find it necessary, at

this point in time, to order Mr. Mosley to execute a medical authorization

form. While Mr. Mosley can certainly give testimony regarding any “physical

and mental injuries” he has incurred as a result of his wife’s injuries, he can

offer no medical evidence in support thereof given his position that none

exists. This portion of the motion to compel is found to be MOOT.

Accordingly, at present, the undersigned will not require Mr. Mosley, in

connection with production request No. 22 propounded to Odessa Mosley, to

execute a medical authorization for release of health records or execute a

consent for release of information from the Social Security Administration.

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 24 of 28
25

The undersigned agrees with plaintiffs that these documents are not relevant

to this matter at present since Mr. Mosley has stipulated that he never saw any

type of medical provider as a result of the alleged injuries to his wife (see Doc.

97, at 3). 

11. What remains of PLIVA’s production request No. 22 to Odessa

Mosley consists of the (1) medicare authorization to disclose personal health

information; (2) consent for release of information from Social Security

Administration; (3) authorization for release of financial records; (4)

authorization to release employment records (for Ulysses Mosley); (5)

authorization to release employment records (for Odessa Mosley); (6)

authorization to release educational information (for Ulysses Mosley); and (7)

authorization to release educational information (for Odessa Mosley).

Plaintiffs objected to signing the foregoing authorizations in connection with

this request for production “on the grounds that it would allow for

impermissible and irrelevant fishing expeditions into matters that are not

relevant.” (Doc. 97, Exhibit 4 to Littrell declar., at 8) While the undersigned

agrees with plaintiffs that neither the financial records of the Mosleys or the

employment or educational information of Ulysses Mosley are relevant to any

claim or defense in this case, particularly in light of Mr. Mosley’s

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 25 of 28
9 In other words, Ulysses Mosley has effectively stipulated that he will not assert

that he missed any work as a result of the alleged injuries to Mrs. Mosley and that he will not be

seeking any damages for missed work as a part of his consortium claim (see Doc. 97, at 3). The

undersigned would also note in connection with the Rule 26(f) report the defendants only

mentioned obtaining Odessa Mosley’s medical and employment records by executed

authorizations, not Ulysses Mosley’s medical and employment records. (See Doc. 51, at 5) 

26

representation that he is not claiming any damages for lost wages (Doc. 105,

at 4),9

 there can be no agreement that Odessa Mosley’s medicare health

information, employment records, and educational records are not relevant to

the claims or defenses asserted in this case, the defendants specifically stating

in the Rule 26(f) report that “discovery will be needed on . . . Plaintiff Odessa

Mosley’s past and current health, medical conditions, and treatment, including,

without limitation, all aspects of her experience and treatment for the

symptoms of gastroesophageal reflux disease or other gastrointestinal

disorders, and tardive dyskinesia; plaintiffs’ education and employment

history; and all other issues material to the measure of damages sought by

plaintiffs[,]” (Doc. 51, at ¶ 4 (emphasis supplied)) and the undersigned

specifically noting that discovery would be limited by the issues set forth in ¶

4 of the Rule 26(f) report (Doc. 53, ¶ 1). Accordingly, plaintiff Odessa Mosley

is ORDERED to provide defendant PLIVA with the following executed

authorizations not later than March 17, 2010: (1) medicare authorization to

disclose personal health information; (2) consent for release of information

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 26 of 28
10 Given Mrs. Mosley’s emphatic position that she “is not seeking lost wage or lost

earning capacity damages[]” (Doc. 105, at 3), the parties can, of course, mutually agree that there

is no longer any reason for Mrs. Mosley to execute the authorization for her employment

records. However, if PLIVA insists on execution of the authorization for employment records,

Mrs. Mosley must provide that authorization to this defendant. 

27

from Social Security Administration; (3) authorization to release employment

records;10 and (4) authorization to release educational information. 

12. The undersigned declines to grant PLIVA an award of attorney’s

fees incurred in bringing its motion to compel. (See Doc. 97, at 12) 

CONCLUSION

In light of the foregoing, defendant PLIVA, Inc.’s motion to compel

(Doc. 96; see also Doc. 97) is GRANTED IN PART and DENIED IN

PART. Plaintiffs are ORDERED to supply PLIVA with the following

information not later than March 17, 2010: (1) the identity, by name, address,

and telephone number (or by date and place of death) of Odessa Mosley’s

parents, grandparents, aunts, uncles, brothers and sisters, in response to

Interrogatory No. 3 to Odessa Mosley; (2) a complete and non-evasive answer

to Interrogatory No. 9 propounded to Ulysses Mosley; and (3) Odessa Mosley

is to execute a medicare authorization to disclose personal health information,

a consent for release of information from Social Security Administration, an

authorization to release employment records, and an authorization to release

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 27 of 28
11 As indicated in the body of this order, plaintiffs are to immediately sign their

interrogatory responses as required by Fed.R.Civ.P. 33(b)(5) nunc pro tunc to January 11, 2010.

28

educational information.11 In addition, the undersigned specifically

AUTHORIZES PLIVA to use Odessa Mosley’s signed medical authorization

form to obtain medical records from Dr. George Corbett, Dr. Erin Dawkins,

Dr. C. Douglas Harrell, Dr. Heather Haley, and Dr. Charles Smith. The

remaining portion of PLIVA’s motion to compel is deemed MOOT or

otherwise is DENIED, as heretofore indicated.

DONE and ORDERED this the 3rd day of March, 2010. 

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00284-KD-C Document 106 Filed 03/03/10 Page 28 of 28