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Cynthia Sauer, et al v. Exelon Generation Co.

March 5, 2012


The opinion of the court was delivered by: Magistrate Judge Nan R. Nolan


Currently before the Court is Plaintiffs' Motion for Protective Order to Preclude the Deposition of Sarah Sauer. For the reasons stated below, Plaintiffs' Motion is denied.


Plaintiffs Cynthia Sauer and Joseph Sauer, individually and as parents and natural guardians of Sarah Sauer, a minor, initiated this lawsuit against Exelon Corporation, Exelon Generation Company, LLC, and UniTech Services Group, Inc. alleging that radioactive discharges from Defendants' facilities caused Sarah Sauer to develop brain cancer.*fn1 (Am. Compl. ¶¶ 6, 9, 11. 17, 21--22, 24--29.) Sarah Sauer was diagnosed with a medulloblastoma in April 2001, approximately three years after her family moved to Grundy County, where Exelon's Dresden Generating Station and UniTech's facility are located. (Id. ¶¶ 4--6, 17, 21, 23.) UniTech has contracts with Exelon to launder contaminated materials at its Morris, Illinois, facility. (Id. ¶¶ 23, 27.) Plaintiffs claim that radioactive releases from the Dresden nuclear power plant and discharges from UniTech's laundry traveled through the groundwater and exposed Sarah to radiation sufficient to cause her brain tumor. (See id. ¶¶ 9, 11, 24--29, 34--35, 47.) Specifically, Plaintiffs plead causes of action for:

(1) violation of the federal Price-Anderson Act; (2) negligence; (3) negligence per se; (4) strict liability; (5) private nuisance; (6) public nuisance; (7) willful and wonton infliction of emotional distress; (8) negligent infliction of emotional distress; and (9) fraud/concert of action/conspiracy. (Id. ¶¶ 59--113.)

This case was initiated by the filing of a Writ of Summons in the Court of Common Pleas in Philadelphia County, Pennsylvania, on August 26, 2009. (Am. Compl. ¶ 10.) On May 27, 2010, the case was removed to the Northern District of Illinois. The parties began serving discovery requests in October 2010, and on February 28, 2011, the case was referred to this Court for discovery supervision and the resolution of all discovery disputes.

Sarah Sauer was examined by Lisa F. Clunie, M.D. on December 13, 2010, and March 22, 2011. (Mot. Ex. C.) On September 9, 2011, Dr. Clunie completed a Physician's Report, in which she opined that Sarah "is incapacitated with regard to psychomotor ability, cognitive ability, [and] reasoning." (Id.) Dr. Clunie also concluded that Sarah "has difficulty with retention and retrieval of information."

(Id.) Nevertheless, Dr. Clunie stated that Sarah can "appear in Court without injury to her health." (Id.)

On September 23, 2011, Cynthia and Joseph Sauer petitioned the Circuit Court of Harrison County, Indiana, to appoint them as permanent guardians for Sarah Sauer. (Mot. Ex. B.) On November 9, 2011, the Circuit Court granted the uncontested petition, finding that Sarah is an incapacitated person. (Id.) Specifically, the Circuit Court found that Sarah suffers from weakened visual and motor skills, has difficulties with retaining and retrieving information and has [severe] incapacities that prevent her from making personal and financial decisions, all following brain surgery and treatment for brain malignancy, she is unable to maintain and care for her person, financial affairs and supervision, and for the prudent management of her property. (Id.) Accordingly, the Circuit Court appointed Cynthia and Joseph Sauer to be the permanent guardians over the person and estate of Sarah Sauer. (Id.)


In their Motion for Protective Order, Plaintiffs seek to preclude Defendants from taking Sarah Sauer's deposition. (Mot. 2, 7, 8.) Plaintiffs contend that because Sarah has been adjudicated incapacitated, she "cannot give competent testimony regarding the facts and circumstances that gave rise to this action." (Id. 3.) Alternatively, Plaintiffs suggest that the Court allow for an independent medical examination of Sarah or for a deposition limited to her current well being. (Id. 7.)

Defendants argue that Plaintiffs have failed to establish "good cause" to prevent Sarah Sauer's deposition. (Resp. 4--8.) They contend that under the Federal Rules of Evidence, Sarah is a competent witness. (Id. 4.)

The Federal Rules of Civil Procedure allow parties to "obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). "The federal discovery rules are liberal in order to assist in trial preparation and settlement." Cannon v. Burge, No. 05 C 2192, 2010 WL 3714991, at *1 (N.D. Ill. Sept. 14, 2010). Nevertheless, upon a showing of "good cause," courts have the authority to enter orders protecting "a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). However, "Courts commonly look unfavorably upon significant restrictions placed upon the discovery process" and the "burden rests upon the objecting party to show why a particular discovery request is improper." Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006); accord Cannon, 2010 WL 3714991, at *1. As with all discovery matters, the Court has broad discretion whether to compel discovery. See Kodish, 235 F.R.D. at 450.

Here, Plaintiffs have not met their burden to demonstrate good cause for precluding the deposition of Sarah Sauer. First, Plaintiffs do not dispute that as a party to this lawsuit, Sarah presumably has information relevant to the subject matter of her claims. Second, Plaintiffs do not allege any "annoyance, embarrassment, oppression, or undue burden or expense" under Rule 26(c)(1). Instead, Plaintiffs argue that the Court should preclude Sarah Sauer's deposition because she has "difficulty in ...

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