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IN THE DISTRICT COURT IN AND FOR CHEROKEE COUNTY
STATE OF OKLAHOMA
DEBRA E. PROCTOR,
Plaintiff,
Case No.: CJ-2023-29
Vv.
Judge Joshua Cc. King
ROBERTO DAVID SUAREZ-SOTO, we
ROBERTO SUAREZ, and SYLVIA Zi {3
b
soTo,
Cy
Li cUU
Defendants. Depa
By
PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO COMPEL
COMES NOW Plaintiff Debra E. Proctor, by and through her attorney, James E.
Frasier, in response to the Defendants’ Motion to Compel and states as follows:
STATEMENT OF FACTS
This case arises out of a motor vehicle accident wherein the Defendant Roberto
David Suarez-Soto did strike the Plaintiff, Debra Proctor, with his vehicle while she was
a pedestrian. The Defendants filed this motion to compel on July 3, 2023 in which they
request three items: a signed medical authorization, a signed order allowing the
gathering of Plaintiff's pharmaceutical records, and the disclosure of expert witnesses
along with the supporting materials.
ARGUMENTS & AUTHORITIES
A. Medical Authorizations and Pharmacy Disclosures
The Defendants in their motion have requested a medical authorization that does
not have a time limitation. The Plaintiff objected to the initial authorization as produced
in discovery as it was unlimited in relation to body part and was not addressed to any
\\FFH-VM-DC Shared Folders\Company\Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel.wpd/vs
requires the identification of
specific medical providers as required by HIPAA. HIPAA
the execution of a medic al authorization. See
for
45 CFR
a medical provider
t non-relevant
(ii). Further, a body part limitation is required to protec
164.508(c)(1)
to medical records
medical records as the Plaintiff is only required to allow access
is in agreement
which are an element of her claim. See 12 O.S. 2503(D)(8). The Plaintiff
is limited in
with the Defendants that they are entitled to a medical authorization, which
the Plaintiff
body part and states specific providers, but which is not limited in time as
has testified to pre-existing conditions to certain body parts.
The Defendants have also requested an order to be signed and submitted to the
court allowing for the gathering of the Plaintiffs pharmaceutical records. The Plaintiff
has agreed to that as long as there is a relevant time period prescribed as required by
12 O.S. 2803 (D). The Plaintiff is willing and ready to sign an order granting the
Defendant’s access to the Plaintiff's pharmaceutical records going back three years
from the date of the accident. This would cover any claimed pharmacy expenses and
any that could be relevant in the past as well.
OnJuly 14, 2023, the Plaintiff did offer the Defendant a medical authorization that
was limited in body part, would be addressed to specific providers and was unlimited
in time along with their agreement to sign a pharmacy order that was limited to three
years prior to the accident, but the Plaintiff has not received a response from the
Defendant.
B. Expert Witness Disclosure
The second item that the Defendant has requested is the disclosure of the
experts which the Plaintiff intends to use at trial along with the related document
\\EFH-VM-DC Shared Folders\Company/Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel.wpdivs
who her expert will
disclosures related to experts. The Plaintiff has not yet identified
accident and is not ina
be, and moreover, the Plaintiff is still receiving care for this
cite no law that
position to properly identify an expert at this time. The Defendants
before a certain
says that expert disclosures must be made within a certain period or
event. This case has been on file and in litigation for less than six months and no
scheduling order has been entered.
The Defendants allege that the Plaintiff has failed to supplement discovery
responses as to their expert, but the answers, at this time, remain the same, namely,
that the Plaintiff has not retained an expert at this time. The Plaintiff has suggested to
the Defendants that the way to resolve this matter would be to enter an Agreed
Scheduling Order with the court with those dates certain for expert disclosure.
Further, Defendants seek expert disclosure information in a way not
contemplated by the Oklahoma Discovery Code. Defendants have propounded
seven requests for production of documents, but 12 O.S. 3226(B)(4) provides that
expert discovery is limited only to a) certain delineated interrogatories and b)
deposition of the witness. There is no provision for requests for production of
documents. And, although some of those requests include otherwise discoverable
information, some do not, such as attorney-expert correspondence.
Wherefore, premises considered, Plaintiff prays that the Motion to Compel be
denied and any other relief the Court deems just and equitable.
\\FFH-VM-DC Shared Folders\Company\Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel.wpd/vs
Respectfully submitted,
JER, FRASIER & HICKMAN, LLP
By:
James E. Frasier,OBA #310!
Frank W Frasier, OBA #17864
Steven R. Hickman, OBA #4172
Adam R. Burnett, OBA #33853
1700 Southwest Blvd.
Tulsa, OK 74107
Phone: (918) 584-4724
Fax: (918) 583-5637
E-mail: frasier@tulsa.com
CERTIFICATE OF MAILING
Ihereby certify that a true and correct copy of the foregoing instrument was
mailed to the following:
Eric J. Begin
Bradley E. Bowlby
Starr, Begin & King
1800 S Baltimore Avenue, Suite 550
Tulsa, OK 74119
Alin He-
dated this | at day of July, 2023.
\\FFH-VM-DC\Shared Folders\Company\Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel. wpd/vs
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IN THE DISTRICT COURT IN AND FOR CHEROKEE COUNTY STATE OF OKLAHOMA DEBRA E. PROCTOR, Plaintiff, Case No.: CJ-2023-29 Vv. Judge Joshua Cc. King ROBERTO DAVID SUAREZ-SOTO, we ROBERTO SUAREZ, and SYLVIA Zi {3 b soTo, Cy Li cUU Defendants. Depa By PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO COMPEL COMES NOW Plaintiff Debra E. Proctor, by and through her attorney, James E. Frasier, in response to the Defendants’ Motion to Compel and states as follows: STATEMENT OF FACTS This case arises out of a motor vehicle accident wherein the Defendant Roberto David Suarez-Soto did strike the Plaintiff, Debra Proctor, with his vehicle while she was a pedestrian. The Defendants filed this motion to compel on July 3, 2023 in which they request three items: a signed medical authorization, a signed order allowing the gathering of Plaintiff's pharmaceutical records, and the disclosure of expert witnesses along with the supporting materials. ARGUMENTS & AUTHORITIES A. Medical Authorizations and Pharmacy Disclosures The Defendants in their motion have requested a medical authorization that does not have a time limitation. The Plaintiff objected to the initial authorization as produced in discovery as it was unlimited in relation to body part and was not addressed to any \\FFH-VM-DC Shared Folders\Company\Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel.wpd/vs requires the identification of specific medical providers as required by HIPAA. HIPAA the execution of a medic al authorization. See for 45 CFR a medical provider t non-relevant (ii). Further, a body part limitation is required to protec 164.508(c)(1) to medical records medical records as the Plaintiff is only required to allow access is in agreement which are an element of her claim. See 12 O.S. 2503(D)(8). The Plaintiff is limited in with the Defendants that they are entitled to a medical authorization, which the Plaintiff body part and states specific providers, but which is not limited in time as has testified to pre-existing conditions to certain body parts. The Defendants have also requested an order to be signed and submitted to the court allowing for the gathering of the Plaintiffs pharmaceutical records. The Plaintiff has agreed to that as long as there is a relevant time period prescribed as required by 12 O.S. 2803 (D). The Plaintiff is willing and ready to sign an order granting the Defendant’s access to the Plaintiff's pharmaceutical records going back three years from the date of the accident. This would cover any claimed pharmacy expenses and any that could be relevant in the past as well. OnJuly 14, 2023, the Plaintiff did offer the Defendant a medical authorization that was limited in body part, would be addressed to specific providers and was unlimited in time along with their agreement to sign a pharmacy order that was limited to three years prior to the accident, but the Plaintiff has not received a response from the Defendant. B. Expert Witness Disclosure The second item that the Defendant has requested is the disclosure of the experts which the Plaintiff intends to use at trial along with the related document \\EFH-VM-DC Shared Folders\Company/Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel.wpdivs who her expert will disclosures related to experts. The Plaintiff has not yet identified accident and is not ina be, and moreover, the Plaintiff is still receiving care for this cite no law that position to properly identify an expert at this time. The Defendants before a certain says that expert disclosures must be made within a certain period or event. This case has been on file and in litigation for less than six months and no scheduling order has been entered. The Defendants allege that the Plaintiff has failed to supplement discovery responses as to their expert, but the answers, at this time, remain the same, namely, that the Plaintiff has not retained an expert at this time. The Plaintiff has suggested to the Defendants that the way to resolve this matter would be to enter an Agreed Scheduling Order with the court with those dates certain for expert disclosure. Further, Defendants seek expert disclosure information in a way not contemplated by the Oklahoma Discovery Code. Defendants have propounded seven requests for production of documents, but 12 O.S. 3226(B)(4) provides that expert discovery is limited only to a) certain delineated interrogatories and b) deposition of the witness. There is no provision for requests for production of documents. And, although some of those requests include otherwise discoverable information, some do not, such as attorney-expert correspondence. Wherefore, premises considered, Plaintiff prays that the Motion to Compel be denied and any other relief the Court deems just and equitable. \\FFH-VM-DC Shared Folders\Company\Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel.wpd/vs Respectfully submitted, JER, FRASIER & HICKMAN, LLP By: James E. Frasier,OBA #310! Frank W Frasier, OBA #17864 Steven R. Hickman, OBA #4172 Adam R. Burnett, OBA #33853 1700 Southwest Blvd. Tulsa, OK 74107 Phone: (918) 584-4724 Fax: (918) 583-5637 E-mail: frasier@tulsa.com CERTIFICATE OF MAILING Ihereby certify that a true and correct copy of the foregoing instrument was mailed to the following: Eric J. Begin Bradley E. Bowlby Starr, Begin & King 1800 S Baltimore Avenue, Suite 550 Tulsa, OK 74119 Alin He- dated this | at day of July, 2023. \\FFH-VM-DC\Shared Folders\Company\Clients\OPEN\Liz\CLIENT FILES\Proctor, Debra E. 23-2028\Resp to Defendants’ Motion to Compel. wpd/vs