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Law360 (March 20, 2020, 7:04 PM EDT ) An Illinois magistrate judge on Friday imposed a protocol limiting the depositions of medical professionals and treatment providers amid the coronavirus outbreak.
U.S. Magistrate Judge Gabriel Fuentes said in an order that in cases before him, before any deposition discovery of medical treaters is scheduled and before any subpoenas are served on such witnesses, the parties must reach agreement on whether they should proceed by phone or decide if the depositions could be deferred pending a settlement conference.
It's a necessary step "to recognize the severity of the public health crisis and the role of courts and litigants in being public citizens during the crisis," he said in a personal injury case against Walmart.
"The court has before it a public record replete with references to the impact that community spread of COVID-19 could have, and is already having, on medical care providers, doctors, hospitals and staff," the judge said.
If a medical provider's deposition is still being sought after that phone meeting, the party seeking the deposition must submit a brief to the court providing the proposed deponent's name, hospital affiliation and area of practice or specialty, as well as their current and anticipated involvement in preparation or response to the COVID-19 public health emergency.
Counsel must also provide the nature and extent of the proposed deponent's involvement in the treatment of the plaintiff or other party, including the dates of treatment and the type of treatment provided, Judge Fuentes said.
And according to the order, that submission should also include the degree to which alternative avenues might be available to obtain the same discovery or sufficient discovery, such as the deposition of other witnesses, the admission of medical records, affidavits or depositions by written questions.
Vowing to "rule promptly" on requests made to depose medical treaters under the new protocol, the judge also said the new procedure may be changed or eliminated depending on how the outbreak proceeds.
In another case over injuries sustained from a car crash, Judge Fuentes issued similar protocol on Tuesday, saying courts, counsels and parties need to be prepared for medical care providers and the country's health system to be overwhelmed or strained to its limits.
"It is reasonable for all of us to expect that at this moment and at least for the next few weeks and possibly longer, the situation at hospitals and medical offices will be all hands on deck," the judge said. "All hands cannot be on deck if some of them are at a law office sitting for a deposition in a tort lawsuit."
Representatives of the parties could not be immediately reached for comment Friday.
Plaintiff Bonita Lipsey is represented by Chester L. Cameron Jr. of Taxman Pollock Murray and Bekkerman LLC.
Walmart is represented by James P. Balog and Ariel Terese Flood of O'Hagan Meyer LLC.
The case is Lipsey v. Walmart Inc., case number 1:19-cv-07681, in the U.S. District Court for the Northern District of Illinois.
--Editing by Orlando Lorenzo.
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