Ogburn v. American National Property & Casualty Company

Filing 57

ORDER by Magistrate Judge Nina Y. Wang on 9/30/15 granting in part and denying in part 45 Motion to Meet Ex Parte With Certain Medical Providers; and granting 47 Motion to Compel Neuropsychology Files. (bsimm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02339-LTB-NYW
STEVE OGBURN,
Plaintiff,
v.
AMERICAN NATIONAL PROPERTY & CASUALTY COMPANY,
Defendant.
ORDER
Magistrate Judge Nina Y. Wang
This civil action is before the court on Defendant American National Property & Casualty
Company’s (“Defendant”) Motion to Meet Ex Parte With Certain Medical Providers, filed on August 19,
2015 [#45] (“Motion to Meet Ex Parte”), and Defendant’s Motion to Compel Neuropsychology Files,
filed on August 20, 2015 [#47] (“Motion to Compel Neuropsychology Files”) (collectively, the
“Motions”).1 Pursuant to the Order Referring Case dated October 21, 2014 [#22], the February 10, 2015
Reassignment [#29], and the August 20, 2015 and August 21, 2015 Memoranda [#46, #48], the Motions
are before this Magistrate Judge. The court has reviewed the papers and exhibits submitted by both
Parties, considered the applicable case law, is sufficiently advised of the premises, and finds that oral
argument would not materially assist the court’s disposition of the Motions.

For the reasons stated

below, the Motion to Meet Ex Parte is GRANTED IN PART and DENIED IN PART. The Motion to
Compel Neuropsychology files is GRANTED.

1

This Order refers to the ECF docket number for documents, and the page number as assigned by the
court’s ECF system for consistency and ease of reference.

BACKGROUND
On August 22, 2015, Defendant American National Property & Casualty Company
(“Defendant”) removed this action from the County of Boulder District Court. [#1]. Plaintiff
Steve Ogburn’s (“Plaintiff” or “Mr. Ogburn”) Complaint asserts a single claim for breach of
contract against the Defendant for failure to pay uninsured motorist coverage allegedly due under
Plaintiff’s insurance policy with the Defendant, arising from a September 29, 2011 car accident.
[#3 at ¶¶ 3, 16-27]. Plaintiff alleges that he suffered “emotional, and/or psychological injuries,
and/or disabilities, and/or economic losses and injuries which injuries, damages, and losses are
permanent in nature and which losses Plaintiff has suffered in the past and will suffer in the
future.” [Id. at ¶ 13]. Plaintiff has subsequently represented that his injuries include “mental and
cognitive injuries from concussion and traumatic brain injury.” [#34 at 2].
The following reflects the sequence of care received by Mr. Ogburn, as set out in
Defendant’s instant Motion to Meet Ex Parte, which is not refuted by Plaintiff’s Response.
Compare [#45] with [#53]. Soon after the September 29, 2011 accident, Mr. Ogburn was
referred to neurologist Dr. William Wagner for treatment. [#45 at 5]. Between October of 2011
and December of 2012, Mr. Ogburn was seen by Dr. Wagner on at least eight occasions. [Id.].
The medical records reflect that Mr. Ogburn was treated by Dr. Wagner for medical conditions
potentially arising from the automobile accident at issue in this litigation, including migraines
and post-concussive syndrome. [Id.]. Plaintiff has disclosed Dr. Wagner as a non-retained
treating physician expert who may opine as to matters addressed in the relevant treatment
records, and as to the reasonableness of the costs incurred by Plaintiff in seeking and obtaining
treatment related to the car accident. [Id.].

2

On February 12, 2013, Plaintiff first visited Dr. Alexander Feldman. [Id.]. Between
February and August of 2013, Plaintiff visited Dr. Feldman on at least seven other occasions.
[Id.].

The relevant treatment records indicate that Mr. Ogburn sought treatment from Dr.

Feldman for medical conditions potentially arising from the September 29, 2011 automobile
accident, including post-concussive syndrome, headaches, and dizziness.

[Id. at 5-6].

Dr.

Feldman has also been designated by Plaintiff as a non-retained expert. [Id. at 6].
On July 23, 2015, Defendant propounded a discovery request on Plaintiff calling for
production of “copies of all neuropsychological test materials, including raw data, handwritten
notes, technician notes, and all related documents, for each and every neuropsychological
evaluation of Plaintiff, Steve Ogburn, including but not limited to those involving Thomas
Wodushek, Ph.D. and Mark Zacharewicz, M.D.” [#47 at 2]. Plaintiff has to date declined to
produce such materials to Defendant’s counsel, and has maintained that “licensed
psychologists/neuropsychologist are ethically bound to produce this information only to other
licensed psychologists/neuropsychologist.” [Id. at 2-3].
Defendant’s Motion to Meet Ex Parte seeks an order from this court permitting
Defendant’s counsel to meet ex parte with Dr. Wagner and Dr. Feldman.

[#45 at 6-7].

Defendant’s Motion to Compel Neuropsychology Files seeks production of relevant
neuropsychological test materials in Plaintiff’s possession, custody, and control, pursuant to the
terms of an appropriately tailored protective order pursuant to Fed. R. Civ. P. Rule 26(c)(1)(G).
[#44 at 4-7].

3

ANALYSIS
I.

Standard of Review
The general test of discoverability is whether the information sought by a discovery

request is “relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). This is a broad
standard meant to allow the parties to discover the information necessary to prove or disprove
their cases. Bagher v. Auto-Owners Insurance Company, No. 12–cv–00980–REB–KLM, 2013
WL 5417127, at *5 (D. Colo. Sept. 26, 2013).

Upon a showing of “good cause” by the

proponent of discovery, an even broader standard of “any matter relevant to the subject matter
involved in the action” may be applied. In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1188
(10th Cir. 2009).
The proper scope of discovery is bounded by the principles of proportionality. Fed. R.
Civ. P. 26(b)(2)(C); see also Qwest Commc’ns Int’l v. Worldquest Networks, Inc., 213 F.R.D.
418, 419 (D. Colo. 2003). Indeed, Rule 26(b)(2)(C) allows a court to limit discovery on motion
or on its own if it determines that: (1) the discovery sought is unreasonably cumulative or
duplicative, or may be obtained from some other source that is more convenient, less
burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to
obtain the information by discovery in the action; or (3) the burden or expense of the proposed
discovery outweighs its likely benefit, considering the needs of the case, the amount in
controversy, the parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues. Fed. R. Civ. P. 26(a)(2)(C). Fed. R. Civ. P.
Rule 26(c)(1)(G) provides that a court may also enter a protective order as to materials

4

containing “a trade secret or other confidential research, development, or commercial
information.”
In a civil action based upon a state cause of action, state law controls the determination of
privileges. White v. Am. Airlines, Inc., 915 F.2d 1414, 1424 (10th Cir. 1990). Under Colorado
law, communications between physicians and their patients are generally privileged. “Protecting
these communications from disclosure promotes ‘effective diagnosis and treatment of illness by
protecting the patient from the embarrassment and humiliation’ that could result from divulging
her medical information.” Reutter v. Weber, 179 P.3d 977, 980 (Colo. 2007) (quoting Alcon v.
Spicer, 113 P.3d 735, 738 (Colo. 2005)). Plaintiffs bear the burden of establishing applicability
of the physician-patient privilege, Alcon, 113 P.3d at 739, and “[i]ssues arising in the course of
pretrial discovery are committed to the discretion of the trial court.” Reutter, 179 P.3d at 984
(citation omitted).
“When a patient initiates a civil action and by alleging a physical or mental condition as
the basis for a claim of damages injects that issue into the case, the patient thereby impliedly
waives his or her physician-patient privilege with respect to that medical condition.” Samms v.
District Court, 908 P.2d 520, 524 (Colo. 1995) (citing Clark v. District Court, 668 P.2d 3, 8
(Colo. 1983)). The trial court has the authority to allow counsel for a party to conduct informal
interviews with an opposing party’s treating physicians if “the discussions are limited to relevant
non-privileged information and provided further that [the opposing party] must be given
reasonable notice of such interviews to permit her attorney to attend or to otherwise ensure that
privileged information is not discussed.” Samms, 908 P.2d at 529-30. Courts may permit parties
to conduct such interviews ex parte, without requiring that the plaintiff be permitted to attend,

5

where the “non-party medical providers do not possess residually privileged information [i.e.,
information as to which privilege has not been waived, by statute or otherwise].” Reutter, 179
P.3d at 982. In considering whether such ex parte interviews may be permitted, the trial court
should determine the risk of disclosure of residually privileged information by “taking into
account not only the evidence offered by the plaintiff-patient, but also the circumstances of the
plaintiff-patient's treatment and the likelihood that those circumstances could give rise to
residually privileged information.” Id.
II.

Application to Motion to Meet Ex Parte
Defendant argues that Plaintiff’s allegations that he suffered “emotional, and/or

psychological injuries, and/or disabilities” [#3 at ¶ 13], which have been represented to include
“mental and cognitive injuries from concussion and traumatic brain injury,” [#34 at 2], have
placed Plaintiff’s mental and cognitive condition at issue in this litigation.

[#45 at 6-7].

Defendant also argues that because the treatment records suggest Dr. Wagner and Dr. Feldman’s
care was focused on Plaintiff’s neurological condition subsequent to the automobile accident, the
“the risk of divulgement by them of [privileged medical] information irrelevant to this civil case
is non-existent.” [Id. at 5-6]. Defendant requests that defense counsel be permitted to interview
Dr. Wagner and Dr. Feldman ex parte, without Plaintiff or Plaintiff’s counsel present, to aid in
“in the efficient preparation of this case for trial.” [Id.]. Defendant cites decisions from courts in
the District of Colorado allowing such ex parte interviews to proceed in medical malpractice
actions, where the courts expressly determined that the risk of disclosure of “residually
privileged” information was low or non-existent. [Id. at 6] (citing Judge Boland’s January 15,
2010 Order [#34] in Zander v. Craig Hospital et al., 1:09-cv-02121-KHV-BNB (“Zander”),

6

allowing for ex parte interview of 22 medical providers in medical malpractice action, and Judge
Tafoya’s January 25, 2013 Order [#41] in Carter v. Loucks, 12-cv-01381-WYD-KMT
(“Loucks”), allowing for ex parte interviews in medical malpractice action]).
In opposing Defendants’ Motion to Meet Ex Parte, Plaintiff does not address Defendant’s
waiver arguments, but contends that Zander and Loucks are distinguishable from the instant case
because Zander and Loucks involved medical malpractice claims where interviews were sought
pertaining to the underlying course of care at issue in the litigation. [#53 at 2-3]. Plaintiff also
argues that the risk of disclosure of residually privileged information if Defendant’s counsel is
permitted to interview Dr. Wagner and Dr. Feldman ex parte is significant because information
pertaining to Mr. Ogburn’s “overall health and medical history” was shared during the course of
Mr. Ogburn’s treatments with Dr. Wagner and Dr. Feldman. [Id. at 4].
As the Colorado Supreme Court’s analysis of “at issue” waiver in Samms v. District
Court drew upon authority outside the medical malpractice context, the court finds that Samms
and Reutter govern this court’s privilege determinations. See Samms, 908 P.2d 520, 524 (Colo.
1995) (citing Clark v. District Court, 668 P.2d 3, 8 (Colo. 1983) (determining scope of “at issue”
waiver in wrongful death action against bar and bar manager)). The court also finds that Plaintiff
has placed his mental and cognitive condition at issue in this litigation. But on the record before
the court, it is unclear what other aspects of Plaintiff’s medical history may have been divulged
in the course of Plaintiff’s treatment by Dr. Wagner and Dr. Feldman. Given the record now
before it, the court orders that Defendant’s counsel may seek to interview Dr. Wagner and Dr.
Feldman regarding Plaintiff’s mental and cognitive condition, but Plaintiff must be provided
advance notice, and the opportunity to either be present, or for his counsel to be present, during

7

any such interview in order to guard against disclosure of any residually privileged information.
The court is not persuaded that ex parte interviews of Dr. Wagner and Dr. Feldman, without
Plaintiff or Plaintiff’s counsel present, present any efficiencies for preparation of this case for
trial.
III.

Application to Motion to Compel Neuropsychology Files
On July 23, 2015, Defendant propounded a discovery request on Plaintiff calling for

production of “copies of all neuropsychological test materials, including raw data, handwritten
notes, technician notes, and all related documents, for each and every neuropsychological
evaluation of Plaintiff, Steve Ogburn, including but not limited to those involving Thomas
Wodushek, Ph.D. and Mark Zacharewicz, M.D.” [#47 at 2]. Plaintiff objected on the purported
ground that “licensed psychologists/neuropsychologist are ethically bound to produce this
information only to other licensed psychologists/neuropsychologist.” [Id. at 2-3]. In opposing
Defendant’s Motion to Compel Neuropsychology Files, Plaintiff does not argue that these
materials are not relevant to the claims and defenses at issue in this action, or are shielded from
production by any potentially applicable privilege. [#54 at 3-6]. Plaintiff instead argues that the
materials are not in Plaintiff’s possession or control, based on the contention that the ethical
and/or copyright obligations of the mental health professionals responsible for the relevant
examinations preclude release to anyone other than qualified licensed psychologists. [Id. at 5-6].
However, this court has previously recognized that production of such materials to a party’s
counsel pursuant to an appropriately tailored protective order obviates any such contractual,
ethical or trade secret concerns. Frazier v. Board of County Com’rs of County of Arapahoe, No.
08–cv–02730–WYD–BNB, 2010 WL 447785, at *4 (Feb. 3, 2010). Defendant has submitted a

8

proposed Protective Order for the court’s review, [#55-1], but it is unclear what position Plaintiff
takes with respect to the proposed Protective Order.
Plaintiff is ordered to produce documents in Plaintiff’s possession, custody, or control
(including documents that Plaintiff may obtain on demand pursuant to the terms of this Order
and the Protective Order) responsive to Defendant’s July 23, 2015 discovery request seeking
copies of neuropsychological test materials arising out of any neuropsychological evaluation of
Plaintiff, no later than October 5, 2015, for disclosure to Defendant’s attorneys and experts
alone. To the extent that either Party seeks any additional limitations to disclosure, or a more
robust Protective Order, the Parties are directed to meet and confer pursuant to
D.C.COLO.LCivR 7.1(A), and jointly submit a proposed Protective Order for the court’s
consideration no later than October 5, 2015.
CONCLUSION
For the foregoing reasons, IT IS ORDERED:
(1)

Defendant’s Motion to Meet Ex Parte [#45] is GRANTED IN PART and
DENIED IN PART;

(2)

Defendant’s counsel may seek to informally interview Dr. Wagner and Dr.
Feldman concerning Plaintiff’s mental and cognitive condition, but must provide
notice to Plaintiff, and an opportunity for Plaintiff or Plaintiff’s counsel to be
present during any such interview;

(3)

Defendant’s Motion to Compel Neuropsychology Files [#47] is GRANTED;

(4)

Plaintiff shall produce all documents in his possession, custody, or control
responsive to Defendant’s July 23, 2015 request for neuropsychological test

9

materials, including documents that Plaintiff may obtain on demand from the
mental health professionals responsible for the relevant testing, no later than
October 5, 2015, for disclosure to Defendant’s attorneys and experts. To the
extent that either Party seeks additional limitations to disclosure, or a more robust
Protective Order, the Parties are directed to meet and confer and jointly submit a
proposed Protective Order for the court’s consideration no later than October 5,
2015.

DATED: September 30, 2015

BY THE COURT:

s/ Nina Y. Wang
United States Magistrate Judge

10