No protective order action against retirement community

Where plaintiff seeks to depose a representative of defendant Hickory Hill Retirement Community, defendant’s motion for a protective order regarding some of the deposition topics is denied.

Decision

“Pursuant to Rule 4:5(b)(6), plaintiff, Matthew Charles Henderson, asked that defendant Hickory Hill Retirement Community, LLC (Hickory Hill), designate an authorized representative to appear at a deposition and to testify regarding certain topics. Pursuant to Rule 4:l(c), Hickory Hill filed a motion for a protective order regarding some of those topics. The parties have narrowed the dispute to three topics –topic 13, topic 27, and topic 28. I will discuss these topics below.

“Topic 13 deals with a report from the Department of Social Services regarding Charles L. Henderson (Henderson). Topic 28, which is related to topic 13, deals with prior regulatory violations on the part of Hickory Hill. Hickory Hill argues that these topics cover matters that are not related to the allegations that are contained in plaintiffs Complaint. 

“In addition, Hickory Hill argues that these topics implicate testimony regarding prior violations, which are inappropriately prejudicial, or subsequent remedial measures, which are inadmissible under Virginia Code §8.01-418.1. Henderson argues that these topics are pertinent as regards notice and punitive damages. At the hearing, Mr. Downey noted that at this point, all plaintiff is asking that the topics be covered in discovery, with the understanding that their admissibility at trial is a different question, which can be addressed later in a motion in limine.

“Under Rule 4: l(b), a party may obtain discovery on matters that are ‘relevant to the subject matter involved in the pending action’, and ‘It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonable calculated to lead to the discovery of admissible evidence.’ 

“I understand Hickory Hill’s position, and I have reservations about whether some of the matters that are covered in topics 13 and 28 would be admissible at trial. Based upon the liberal standard contained in Rule 4:l(b), however, I am reluctant to cut off plaintiff’s inquiry at the discovery stage. Therefore, as to these topics, Hickory Hill’s motion for a protective order is denied.

“The disputed portion of topic 27 involves certain marketing materials that Hickory Hill used. Hickory Hill argues that since I granted the defense’s motion for summary judgment as to plaintiff’s claim under the Virginia Consumer Protection Act, these materials are irrelevant.

“Plaintiff argues that he is entitled to explore topic 27 because the ‘admission’s [sic] process and representations made during same, are still relevant to Plaintiff’s negligence claim as they provide context and meaning to Mr. Henderson’s admission, as well as the expectations of his son.’ …

“In addition, plaintiff argues that he was under the impression that Henderson would be seen by a doctor, but that Henderson never was, and that Hickory Hill’s staff represented that they would be hydrating Henderson frequently. In reply to plaintiffs arguments, Hickory Hill argues that any representations that were made to plaintiff when Henderson was admitted to Hickory Hill would involve Hickory Hill’s staff, not the marketing materials.

“Topic 27 is a close question, and I have some question as to whether any testimony regarding the marketing materials would be admissible at trial. But again, based on Rule 4:l(b), I am reluctant to cut off plaintiff’s inquiry at the discovery stage. Therefore, as to this topic, Hickory Hill’s motion for a protective order is denied.”

Henderson v. Hickory Hill Retirement Community, et al., Case No. CL-19-187, Oct. 30, 2020, Nottoway County Cir. Ct. (Cella). Jeffrey J. Downey, Nancy F. Reynolds for the parties. VLW 020-8-140, 2 pp.