Zeiner v. Messina Toombs

Filing 86

RULING denying 69 MOTION to Quash Request for Production and granting Motion for Protective Order by Robert Messina Toombs. Signed by Judge Holly B. Fitzsimmons on 8/28/14. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

LILLIAN ZEINER, EXECUTRIX,
ESTATE OF EDWARD ZEINER1
v.
ROBERT MESSINA TOOMBS,
CONSTANCE MESSINA, and
HUBBARD TOOMBS

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: CIV. NO. 3:12CV1414 (WWE)
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RULING ON DEFENDANT ROBERT MESSINA TOOMBS’
MOTION TO QUASH AND FOR PROTECTIVE ORDER [Doc. #69]
Plaintiff Lillian Zeiner, Executrix for the Estate of Edward
Zeiner, brings this action against defendant Robert Messina
Toombs and his parents, Constance Messina and Hubbard Toombs. The
case arises out of an alleged assault and battery that occurred
on June 21, 2011, at the Devereux Glenholme School (“Glenholme”),
in Washington, Connecticut. Glenholme serves children and
adolescents with emotional, behavioral and learning disabilities.
On June 21, 2011, Edward Zeiner, a school staff member, was
assaulted by then sixteen year old Robert Messina Toombs. Messina
Toombs had been accepted and admitted to the facility on June 8,
2011.
Plaintiff Edward Zeiner passed away on October 18, 2013. A
Motion to Substitute Party Plaintiff was filed on November 13,
2013, and granted thereafter. [Doc. ##49, 50].
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Procedural Background
By way of Complaint filed October 3, 2012, Edward Zeiner
brought this civil suit against Robert Messina Toombs, seeking
damages for personal and psychological injuries sustained as a
result of the incident. [Doc. #1].

Plaintiff alleged assault,

and battery and intentional infliction of emotional distress by
Messina Toombs. In a Second Amended Complaint dated March 1,
2013, Zeiner added Robert Messina Toombs’ parents, Constance
Messina and Hubbard Toombs, as defendants. [Doc. #30]. Plaintiff
alleges that the parents were negligent by enrolling Robert in an
institution for which they knew or should have known Robert was
not suited; failed to take steps to insure that third persons
with whom Robert would come into contact at Glenholme would be
protected; and failed to warn the staff at Glenholme, including
Zeiner, of Robert Messina Toombs’ history of violence and the
risk of harm he would present to them.2

[Doc. #30 ¶¶25-32].

Following his sentencing on criminal charges connected to
the assault and battery, Robert Messina Toombs allowed Glenholme
to release its file to counsel in this case, including his
confidential psychiatric and educational records. The Glenholme
records contain several reports of Dr. Roy Boorady. Robert
The Devereux Foundation (“Glenholme”) initially intervened in
the case on November 21, 2012, seeking reimbursement of Workers’
Compensation benefits it paid to Zeiner. [Doc. #12]. Glenholme
subsequently withdrew its Intervening Complaint on September 27,
2013. [Doc. #46].
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Messina Toombs was a patient of Dr. Boorady’s at the Child Mind
Institute, New York, N.Y.
A Notice of Deposition dated March 21, 2014, for defendants
Constance Messina and Hubbard Toombs requested that the parents
each produce, “All psychiatric records, consultation or treatment
notes by Dr. Ray [sic] Boorady concerning Robert Messina Toombs
for 2009 through 2011.”

[Doc. #62, Ex. A].

On April 3, 2014, Constance Messina and Hubbard Toombs filed
a Motion for Protective Order, objecting to the production of Dr.
Boorady’s records required by the Notice of Deposition. [Doc.
#62]. The parents argued, amongst other things, that
Robert Messina [Toombs] has a protected privilege
and privacy interest in his psychiatric treatment
records. He is of the age of majority and his
parents are not authorized to waive that right on
his behalf. Robert Messina [Toombs] is represented
by his own counsel in this case. Any records of
Robert’s psychiatric treatment which are not
already contained in the file of the Glenholme
School and disclosed to plaintiff’s counsel should
be sought through Robert, not these defendants.
[Doc. #62 at 5].
Robert Messina Toombs was born on September 19, 1994. Thus,
he reached the age of majority, eighteen years, for purposes of
the Federal Health Insurance Portability and Accountability Act
(HIPPA), on September 19, 2012.

See 45 C.F.R. §164.502(g); Conn.

Gen. Stat. §1-1d.

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The Motion for Protective Order was granted on April 10,
2014. [Doc. #68].

Discussion
On April 16, 2014, plaintiff served defendant Robert Messina
Toombs with a Notice of Deposition with a Request for Production
seeking, “All psychiatric records generated by Dr. Roy Baroody in
connection with his treatment of Robert Messina Toombs from 20092011.”

Defendant Messina Toombs seeks a protective order,

pursuant to Fed. R. Civ. P. 26(c), based on the privileged and
sensitive nature of the psychiatric records. [Doc. #69 at 2].
Federal Rule of Civil Procedure 34(a) permits a party to
make a request for documents or other information “within the
scope of Rule 26(b).” Under Fed. R. Civ. P. 26(b)(1),
Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any
party’s claim or defense-including the existence,
description, nature, custody, condition, and
location of any documents or other tangible things
and the identity and location of persons who know
of any discoverable matter. For good cause, the
court may order discovery of any matter relevant
to the subject matter involved in the action.
Relevant information need not be admissible at the
trial if the discovery appears reasonably
calculated to lead to the discovery of admissible
evidence.
Fed. R. Civ. P. 26(b)(1). Fed. R. Evid. 501 states that “in a
civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision.” In

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cases brought under diversity jurisdiction, courts utilize forum
state privilege law.

See Dixon v 80 Pine Street Corp., 516 F.2d

1278, 1280 (2d Cir. 1975) (“It is not contested that, in a
diversity case, the issue of privilege is to be governed by the
substantive law of the forum state . . . .”) (citing
Massachusetts Mut. Life Ins. Co. v. Brei, 311 F.2d 463, 465-66
(2d Cir. 1961)).
Defendant Messina Toombs seeks to maintain the
confidentiality of his treatment records and communications with
Dr. Boorady, pursuant to Connecticut law. See Conn. Gen. Stat. §
52–146e(a) (prohibiting psychiatrist from “disclos[ing] or
transmit[ting] any communications and records or the substance or
any part or any resume thereof which identify a patient to any
person, corporation or governmental agency without the consent of
the patient or his authorized representative”);

Conn. Gen. Stat.

§ 52–146d(3) (defining “consent” as “consent given in writing by
the patient or his authorized representative”); Conn. Gen. Stat.
§ 52–146j(b) (providing for private right of action for damages
against psychiatrist who violates these confidentiality
provisions).
Plaintiff seeks these treatment records to enable her to
assess the merits of defendants Constance Messina and Hubbard
Toombs’ contention that they disclosed all relevant psychiatric
information to Glenholme before Robert’s admission.
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It is

undisputed that at the time of Messina Toombs’ admission in June
2011, he was a unemancipated minor and his parents were acting on
his behalf when making medical and treatment decisions, including
the decision to enroll Robert at Glenholme.

The treatment

records and communications provided to Glenholme School at the
time of Messina Toombs’ admission and the assault on Edward
Zeiner, were provided by Robert Messina Toombs’ parents Constance
Messina and Hubbard Toombs. So the remaining dispute concerns
plaintiff’s demand for Dr. Boorady’s treatment records in the
face of Robert Messina Toombs’ invocation of the psychiatristpatient privilege. Plaintiff contends principally that the
protection of the privilege is not available by virtue of the
production of the Glenholme records in this case, and that they
are relevant to defendants’ contention that they provided the
School with all relevant psychiatric information before his
admission.
The Court finds that plaintiff has made a showing of good
cause, that Dr. Boorady’s records are “relevant to the subject
matter involved in the action” and necessary to test defendants
Constance Messina and Hubbard Toombs’ defense in this action.
Fed. R. Civ. P. 26(b)(1). The request “appears reasonably
calculated to lead to the discovery of admissible evidence,”
Fed. R. Civ. P. 26(b)(1). However, it is impossible to balance
the plaintiff’s need for the records against the invocation of
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the privilege without knowing the content of the records
disclosed and the records withheld to date.
The records will be disclosed preliminarily to the Court for
in camera review, along with a copy of Dr. Boorady’s records that
were produced by the Glenholme School in discovery.
Defendant Robert Messina Toombs will provide a signed
authorization for production of the “All psychiatric records,
consultation or treatment notes by Dr. Roy Boorady concerning
Robert Messina Toombs for 2009 through 2011,” with direction that
a copy of his records be produced to Judge Holly B. Fitzsimmons,
915 Lafayette Boulevard, Room 266, Bridgeport, CT, 06604.
Plaintiff will provide a copy of Dr. Boorady’s records that
were produced by the Glenholme School in discovery to the Court
within seven days.
CONCLUSION
Accordingly, defendant’s Motion to Quash is DENIED, subject
to reconsideration after the Court reviews the records in camera
and Motion for Protective Order [Doc. #69] is GRANTED. If the
Court determines that any of the records should be disclosed to
plaintiff, an appropriate Protective Order will enter.
The deadline for the close of discovery and completion of
expert depositions is November 17, 2014. [Doc. ##84, 85]. Damages
analysis is due by September 15, 2014. Dispositive motions are
due by January 15, 2015. Id.
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This is not a recommended ruling. This is a discovery ruling
and ruling on a motion for attorney’s fees which is reviewable
pursuant to the Aclearly erroneous@ statutory standard of review.
28 U.S.C. ' 636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L.
Civ. R. 72.2. As such, it is an order of the Court unless
reversed or modified by the district judge upon motion timely
made.
ENTERED at Bridgeport this 28th day of August 2014.

___/s/_____________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE

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