Colon et al v. Metro-North Commuter Railroad Company et al

Filing 68

ORDER granting 55 Motion to Compel. Signed by Judge Donna F. Martinez on 4/3/14. (Nichols, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MILTON OMAR COLON et al.,
Plaintiffs,
v.
METRO-NORTH COMMUTER
RAILROAD COMPANY et al.,
Defendants.

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CASE NO. 3:13CV325(JAM)

RULING AND ORDER
In this diversity action, plaintiffs Milton Omar Colon and
Arlene Davis bring personal injury claims under state law
alleging negligence, reckless misconduct and loss of consortium
against defendants Metro-North Commuter Railroad Company and
Metropolitan Transportation Authority.

Colon sustained severe

injuries after he climbed and fell from a tower supporting highvoltage electrical wires over railroad tracks.

Pending before

the court is defendants' Motion to Compel responses to its first
set of discovery requests.1

(Doc. #55.)

The motion is GRANTED.

Defendants issued fairly typical interrogatories and
requests for production to Colon aimed at discovering
information relevant to damages, potential witnesses, and the
like.

1

Colon objected to a majority of the discovery requests.

District Judge Alvin W. Thompson referred the motion to the
undersigned. (Doc. #58.) The court conducted oral argument on
April 2, 2014.

He advanced objections of attorney-client privilege, work
product protection and burdensomeness as to some responses but
withdrew most of those objections at oral argument.

His

remaining objection is that his history of drug abuse and
treatment is privileged pursuant to state and federal statutes
that protect substance abuse and psychological treatment
records.
Colon argues that any responsive statement or document that
refers to his substance abuse treatment, even tangentially, is
privileged.

The argument misapprehends the protection afforded

by the relevant statutes.

Colon relies on Conn. Gen. Stat. §§

52-146c, 52-146q and 52-146s.

These statutes protect from

disclosure communications between a patient and his
psychologist, licensed clinical social worker or professional
counselor, respectively.

Defendants have not asked Colon to

produce records of those communications, nor have they asked the
treaters to reveal the content of those communications.

Colon

also cites 42 U.S.C. § 290dd–2, which protects the
confidentiality of records of substance abuse treatment
maintained by federally-assisted programs.2

2

Only one of

Rule 501 of the Federal Rules of Evidence provides that "in
a civil case, state law governs privilege regarding a claim or
defense for which state law supplies the rule of decision."
Section 290dd–2 has been incorporated into the analogous
Connecticut statute, Conn. Gen. Stat. § 17a-688(c). See State
2

defendants' requests seeks records that might be maintained by
such a program.
In view of the foregoing, the court orders as follows:
1. Interrogatories ## 7, 9, 11, 12, 13, 15, 16, 18 and 22
and Requests for Production ## 1 and 6 are granted in full.
2. Interrogatory #8 is granted in full.

Plaintiff's

counsel is directed to Fed. R. Civ. P. 33(d) for guidance on how
to specify where the responsive information can be found.
3. Interrogatory #14 is granted in part as follows.

Colon

shall provide responsive information from the period four years
prior to the date of his injuries.
4. Interrogatories ## 19 and 20 are granted in full.
Defendants have asked for superficial information that amounts
to no more than Colon would be required to disclose in a
privilege log.

See Fed. R. Civ. P. 26(b)(5)(A)(ii); D. Conn. L.

Civ. R. 26(e).
5. Interrogatory #23 and Requests for Production ## 2, 5,
12 and 14 are granted in full.

Colon shall provide the relevant

authorizations as promised during oral argument.
6. Request for Production #11 is granted in full.

To the

extent that the responsive records are maintained in connection
with a substance abuse treatment program that receives federal

v. Rollinson, 203 Conn. 64, 654 (1987) (citing former versions
of both statutes).
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assistance within the meaning of § 290dd–2, there is good cause
for the court to order the disclosure.

See 42 U.S.C. § 290dd–

2(b)(2)(C) (court may order disclosure for "good cause" after
weighing public interest and need for disclosure against injury
to patient, to physician-patient relationship, and to treatment
services); 42 CFR § 2.63(a)(3) (good cause may be found where,
in litigation, patient offers testimony or other evidence
pertaining to content of confidential communications).

Colon

alleges that defendants' negligent failure to provide adequate
warnings on the tower was a substantial factor in causing his
injuries.

He expressly alleges that he "was not able to

appreciate the danger presented by Tower #1043, its ladder
system and its attached high voltage electric transmission
lines."

This places his psychological condition and admitted

substance abuse at issue and necessitates the disclosure.3

See

Doe v. Marsh, 899 F. Supp. 933, 935 (N.D.N.Y. 1995) (ordering
disclosure under § 290dd–2 because plaintiff "may not have it
both ways and claim damages yet seek to conceal evidence which
may very well pertain directly to his claim").
In connection with an order of disclosure under § 290dd–2,
the court must impose appropriate safeguards against
unauthorized disclosure.

See 42 U.S.C. § 290dd–2(b)(2)(C); 42

3

Colon has admitted in discovery that he received methadone
treatment that morning and smoked marijuana about an hour before
he was injured.
4

CFR § 2.64(e).

Only the specific "records of blood alcohol

testing or drug screens" from the 48 hours immediately prior to
the alleged incident, as requested in Request #11, must be
disclosed.

To the extent that defendants receive records of

Colon's psychological or substance abuse treatment, they shall
treat those records as "Designated Material" pursuant to the
court's Standing Protective Order (doc. #3).
SO ORDERED at Hartford, Connecticut this 3rd day of April,
2014.
________________/s/___________
Donna F. Martinez
United States Magistrate Judge

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