Bouchard v. DHL Global Bus Svcs

Filing 63

RULING (see attached) granting 40 Defendant's Motion to Compel. Plaintiff is required to provide signed authorizations in the form attached as Exhibit A to Defendant's Motion to Compel on or before October 11, 2011. Defendant's mot ion for reimbursement for the attorney's fees associated with this motion to compel is denied as not justified under the circumstances. In light of Defendant's need to obtain and review these medical records prior to deposing Plaintiff, the discovery deadline is December 2, 2011, and the dispositive motions deadline is January 31, 2012. Signed by Judge Charles S. Haight, Jr. on September 27, 2011. (Lacedonia, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LORRAINE BOUCHARD,
Plaintiff,
v.

3:09-cv-1222 (CSH)

DHL EXPRESS (USA), INC.,
Defendant.

RULING ON MOTION TO COMPEL
HAIGHT, Senior District Judge:
Plaintiff Lorraine Bouchard, a former employee of Defendant DHL Express (USA), Inc.
(“DHL”), brings this action alleging that Defendant discriminated against her on the basis of
gender and age. In a four count amended complaint, Plaintiff has asserted claims of gender
discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§
2000e et seq. (“Title VII”) (Count One), gender discrimination in violation of the Connecticut
Fair Employment Practices Act, Conn. Gen. Stat. §§ 46a-60 et seq. (“CFEPA”) (Count Two), age
discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et
seq. (“ADEA”) (Count Three), and age discrimination in violation of CFEPA (Count Four).
Plaintiff’s Amended Complaint seeks damages for emotional distress with respect to all four
claims. [Doc. 5 at ¶¶ 42, 44, 46, 48, and Demand for Relief at ¶ 3.] Defendant moves pursuant
to Federal Rules of Civil Procedure 26, 34, and 37 for an order requiring Plaintiff to execute
authorizations so that Defendant may obtain information from Plaintiff’s health care providers
related to Plaintiff’s claims of emotional distress. For the reasons stated herein, Defendant’s
Motion to Compel [Doc. 40] is GRANTED.

Plaintiff placed her mental condition at issue when she sought emotional distress damages
with respect to all the claims in this case, and when she stated in her responses to interrogatories
that she has suffered “severe emotional distress and anxiety” as a result of losing her job with
Defendant. [Doc. 41, Exhibit C, Defendant’s Interrogatories and Requests for Production of
January 13, 2010, with Plaintiff’s February 26, 2010 objections and responses thereto, at 5.]
Therefore, Defendant is entitled to discovery related to her emotional distress claims. Plaintiff
has stated that she “has no objection to the production of relevant medical records relating to her
emotional distress, including all records from Plaintiff’s mental health treatment providers during
the relevant time period.” [Doc. 42 at 2.]
The interrogatory in question, number seven, states as follows: “Identify every physician,
social worker, mental health professional, and other counselor, including, but not limited to a
psychiatrist, psychologist, and/or religious counselor, with whom you consulted or treated from
February 12, 1998 to the present. For each, specify the person’s name and business address, the
date of consultation, and diagnosis, if any. In addition, for each health care provider, please
execute an Authorization (attached) for [Defendant] DHL to obtain copies of your records.”
[Doc. 41, Ex. C, at 7.] The parties’ briefs on the motion to compel discuss four of Plaintiff’s
health care providers. Plaintiff has already provided some records from her primary care doctor,
but Defendant is not satisfied that Plaintiff has produced all the relevant records from that source.
With respect to the second provider, Kathy Tkacz, Plaintiff states that she “does not oppose the
discovery of relevant records from Kathy Tkacz” [Doc. 42 at 1], yet to date, Plaintiff has failed to
provide these records or to execute a release so that Defendant can obtain them directly. With

2

respect to the third and fourth health care providers, Shannon Stauffer1 and Peter Black, who
were identified by Plaintiff in response to the interrogatory, Plaintiff now claims that they never
treated her. [Doc. 42 at 1] Defendant is understandably reluctant to simply rely on this changed
representation, in light of the fact that Plaintiff named those medical providers under oath in her
interrogatory response. Therefore, the Court hereby orders Plaintiff to execute the release
authorizations for all four of these medical providers in the form attached as Exhibit A to
Defendant’s Motion to Compel on or before October 11, 2011. If in fact some providers never
treated Plaintiff and therefore have no responsive records, they will undoubtedly indicate as
much to Defendant upon receipt of the signed release form.
Plaintiff also argues that Defendant’s request for authorizations for every treatment
provider since 1998 is unreasonable and overbroad, and unnecessarily violates Plaintiff’s privacy.
However, as Defendant notes, Plaintiff now seeks to assert this objection in response to the
motion to compel, but did not do so in a timely manner during discovery, having served her
responses to the interrogatories more than a week after the deadline without having obtained an
extension of time to do so. Furthermore, Plaintiff’s response stated only, “Plaintiff objects to this
Interrogatory request in that the Plaintiff will not execute an authorization for Defendant’s use in
obtaining medical records.” [Doc 41, Ex. C, at 7.] Plaintiff’s response did not specify any
ground for the objection or provide any reason for refusing to execute the authorizations. The
Court finds that Plaintiff has waived any objection with respect to the breadth of the
interrogatory. If Plaintiff has had other providers meeting the description in Interrogatory #7, in
1

This individual is referred to as Dr. Shannon Stauffer in the briefs and Dr. Shannon
Straffer in the response to interrogatories. It is not clear to the Court which is the correct
spelling.
3

addition to those providers discussed in this ruling, she should execute authorizations for those
providers as well by October 11, 2011.
CONCLUSION
For the reasons stated herein, Defendant’s Motion to Compel [Doc. 40] is GRANTED,
and Plaintiff is required to provide signed authorizations in the form attached as Exhibit A to
Defendant’s Motion to Compel on or before October 11, 2011. Defendant’s motion for
reimbursement for the attorney’s fees associated with this motion to compel is denied as not
justified under the circumstances. In light of Defendant’s need to obtain and review these
medical records prior to deposing Plaintiff, the discovery deadline is December 2, 2011, and the
dispositive motions deadline is January 31, 2012.
SO ORDERED.
Dated: New Haven, Connecticut, September 27, 2011.
/s/ Charles S. Haight, Jr. ______
Charles S. Haight, Jr.
Senior United States District Judge

4