In Re: Rex Templeton, Jr.
Filing
4
ORDER granting in part and denying in part 1 Motion to Quash; granting in part and denying in part 2 Motion to Quash. Signed by Magistrate Judge G. R. Smith on 9/30/2013. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
IN RE: REX TEMPLETON, JR,
)
)
Pertaining to:
)
)
)
Case No. MC413-019
)
IN RE: POM WONDERFUL LLC
MARKETING AND SALES
PRACTICES LITIGATION,
MDL 2199, C.D. Cal.
)
)
)
)
ORDER
Rex Templeton, Jr. moves "to Quash and/or Modify the Subpoena
issued from this Court to [his doctor,] Paul Bradley, M.D." Doe. 2 at 1.
He similarly moves to quash a medical records subpoena served upon
him. Doe. 1. Pom Wonderful, LLC (Pom), which served the subpoenas,
opposes. Doe. 3.
I. BACKGROUND
Templeton is part of a class action certified in In re Porn Wonderful
LLC., 2012 WL 4490860 (C.D. Cal. Sep. 28, 2012) (Porn). That court's
background description is useful here:
Defendant POM Wonderful LLC ("Porn") produces pomegranate
juice products. (Master Consolidated Complaint ("MCC") at 4 ¶ 4.)
Porn's advertisements claim that Porn juice products have a variety
of health-related benefits, and that these health claims are
supported by tens of millions of dollars in medical research. (MCC
at 4 ¶11 5-10.) Plaintiffs allege that Porn's claims are false and/or
misleading. (See, e.g. MCC ¶ 11.) Plaintiffs therefore brought this
purported class action, alleging violations of 1) California's False
Advertising Law ("FAL"), Cal. Bus. & Prof.Code § 17200, et seq. , 2)
California's Unfair Competition Law ("UCL"), Cal. Civ.Code §
17200, et seq., and 3) California's Consumer Legal Remedies Act
("CLRA"), Cal. Civ.Code § 1750, et seq.
* ***
Given the wide geographical and temporal scope over which Pom
disseminated its health claims and the apparent success of Porn's
marketing efforts, Plaintiffs need not present individualized
evidence of reliance at this stage, as reliance can be inferred.'
Id. at * 1, 5 (footnote added); see also McManus v. Sturm Foods Inc.,
F.R.D. -, 2013 WL 4510109 at * 4 (S.D. Ill. Aug. 26, 2013) (inferred
reliance at the class level).
The Porn court certified a class alleging violations of those
California laws. Porn, 2012 WL 4490860 at * 7. Porn then subpoenaed
Templeton's medical records. Doc. 1 at 16-21; doc. 2 at 17-21. The
subpoenas' sweep is broad -- Porn basically wants Templeton's entire
Nevertheless, Templeton does not dispute Porn's showing (doe. 3 at 8) that he must
demonstrate reliance.
1
medical record, even billing, "from January 1, 2002 to the present." Doc.
1 at 19; doc. 2 at 20.
II. ANALYSIS
Templeton argues that "[w]hether and what particular medical
ailments [he] may have had that may have influenced the initial decision
to purchase the Product is not at issue. The issue is whether [Porn]
made false and/or misleading representations regarding the healthrelated benefits of the Product." Doc. 2 at 3•2 So "[w]hether or not any
particular Plaintiff in the [class] was diagnosed or treated for any of the
diseases which POM claimed or claims to prevent, mitigate or treat, is
not relevant, and any minima' relevancy would be clearly outweighed by
the privacy concerns that inherently surround one's medical records."
Id. at 6. Since delving into his medical records is not justified,
Templeton concludes that Porn's subpoena must be quashed. Id. at 5-12.
But Templeton's claim, Porn responds, is premised on its product's
promised health benefits that plaintiff claims never materialized.
Indeed, Porn further contends,
Porn says Dr. Bradley has already complied but it won't review that production
until this Court has ruled on the instant motion. Doc. 3 at 7 n. 2.
2
3
[p]laintiff elaborated on his central claim by testifying in deposition
that he believed the Juice would mitigate cardiovascular diseases.
Under the law, Porn "may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or
defense." Fed. R. Civ. P. 26(b)(1). Because [Templeton] has put his
medical history at issue by claiming that he believed that Porn
could treat, cure, mitigate, or prevent specific diseases and that the
Juice did not provide those health benefits, [his] medical records
clearly fall within the category of permissible discovery.
Doc. 3 at 1 (emphasis added). 3
"Fed. R. Civ. P. 45 does not include relevance as an enumerated
reason for quashing a subpoena. It is well settled, however, that the
scope of discovery under a subpoena is the same as the scope of discovery
under Rule 26(b) and Rule 34." Transcor, Inc. v. Furney Charters, Inc.,
212 F.R.D. 588, 591 (D. Kan. 2003); accord Cofield v. City of LaGrange,
Ga., 913 F. Supp. 608, 614 (D.D.C. 1996) (federal courts have the
authority to quash subpoenas that seek material that is clearly
irrelevant). Rule 26(b) expressly permits "discovery regarding any
Templeton, Porn reminds,
testified that prior to purchasing the Juice, he had been diagnosed with high
cholesterol. See Moran Deci., Ex. B (Mar. 14, 2012 Dep. of Rex Templeton, pp.
49:17-20). Plaintiff also testified that he purchased the Juice believing it
would prevent heart disease, prostate cancer, age related diseases and erectile
dysfunction. See id., p. 58:15-18. Indeed, he drank the Juice because he
thought it would not raise his cholesterol and would prevent heart disease. See
id., p. 85:2-8. But Plaintiff testified that he did not recall whether or not Porn
had any effect on his cholesterol. See Id., p. 51:10-14.
Doc. 3 at 2. Templeton refutes none of this.
matter, not privileged, that is relevant to the claim or defense of any
party." Fed. R. Civ. P. 26(b) (emphasis added). Relevancy under this
rule has been "broadly construed" to encompass "any possibility' that
the information sought may be relevant to the claim or defense of any
party." Transcor, Inc., 212 F.R.D. at 591.
Federal courts, as do the state courts', routinely authorize medical
records discovery upon a sufficient relevancy showing. Relevancy,
however, is assessed by the degree to which the plaintiff placed his
medical condition at issue.
Compare Sandoval v. American Building
Maint. Indus., Inc., 267 F.R.D. 257, 265-70 (D. Minn. 2007) (defendants
in Title VII action in which plaintiffs sought compensatory damages only
Compare Harris v. Tenet Healthsystem Spalding, Inc., 746 Ga. App. 623 (2013)
(trial court did not abuse its discretion in determining that medical center defendants
in medical malpractice action provided good cause for a qualified protective order
allowing defendants to conduct ex parte interviews with the health care providers
who treated deceased patient), and Porter v. Litigation Mgt., Inc., 767 N.E.2d 735
(Ohio App. 8th Dist. 2001) (employer was entitled to discover all of former employee's
medical and psychological records from clinic, in employee's wrongful-discharge
action; records contained information relevant to employer's defense that employee
acted irrationally during time of employment), with Burns v. Canales, 2006 WL
461518 at * 2-3 (Tex. App. Feb. 28, 2006) (material that client requested in
malpractice action against former attorney, which material included medical records
and photographs of attorney taken when attorney was past victim of an assault, were
irrelevant to the elements of the malpractice action, and therefore, were outside the
scope of discovery, although client asserted that attorney had an obligation to inform
him that she had been the victim of a crime that caused her physical and financial
damages); 4 AM. JuR. TRIALS 223 (Motions for Production and Inspection) (2013).
for emotional distress were entitled to discover medical records reflecting
mental health issues and the manifestation of those mental health
issues) with Fairfax Hosp. By and Through INOVA Health Sys. Hosp.,
Inc. v. Curtis, 492 S.E.2d 642, 644-45 (Va. 1997) (patient did not
manifestly place her medical condition at issue by filing medical
malpractice action against hospital in her capacity as administrator for
her deceased daughter's estate, such that hospital violated its duty not to
disclose patient's confidential medical records by unilaterally
disseminating those records to attorney and nurse in connection with
underlying malpractice action prior to obtaining consent from patient or
determination from judicial officer that patient's medical condition was
at issue).
Even if a plaintiffs physical or mental condition is not in
controversy, relevancy can still be shown if his condition constitutes a
significant source of his damages. See Holter v. Wells Fargo and Co., 281
F.R.D. 340 1 342-43 (D. Minn. 2001) (employer was entitled, in former
employee's disability discrimination suit against it, to discover
information and medical records bearing on diagnosis or treatment for
any of employee's mental, emotional, and psychological issues from date
she first was diagnosed with anxiety and depression to present, where
employee alleged that she was suffering from impairment involving
mental illness, and significant source of her damages arose out of alleged
emotional distress caused by employer), accord, Williams v. NPC Intern.,
Inc., 224 F.R.D. 612, 613 (N.D. Miss. 2004).
Porn conditionally prevails here. Templeton in essence alleged he
had medical problems (high cholesterol, etc.) and when he purchased
Porn's juice he relied on Porn's advertised representations that it would
help with those problems. At bottom, he is suing Porn for its false
representations -- that Porn's product did not deliver the health benefits
Porn claimed. And Templeton has refused to stipulate that he will not
put his medical condition at issue or call any of his physicians as
witnesses at trial. 5 That makes his medical records relevant. They in
The Court notes this showing from Porn, which Templeton has not refuted:
Plaintiff states that his physical condition is not at issue, including
whether or not he had been diagnosed or treated for any of the diseases
and health-related conditions referred to in the MCC and whether that
fact influenced his decision to purchase the Juice. See Pl.'s Motion, pp.
1-3. However, Plaintiff refused to stipulate that he will not put his
physical condition at issue or call as witnesses at trial any of his doctors.
Moran Decl., ¶ 4. Specifically, Plaintiff refused to agree not to introduce
testimony, documents or other evidence related to: (1) whether he has
been treated for or diagnosed with any disease or health condition,
including, but not limited to, those referred to in the MCC; (2) whether
he purchased the Juice to treat, cure, or mitigate any disease or health
7
theory could show, for example, that the juice in some way did work. See
Stanley v. Bayer Healthcare LLC, 2011 WL 5569761 *2.3 (S.D. Cal. Nov.
16, 2011) (directing plaintiff to provide gastrointestinal-health-based
medical records to defendant sued by plaintiff for making fraudulent
digestive benefits and improved immune health claims about its "Colon
Health Probiotic Caps") (citing Weiss v. AstraZeneca Pharm., 2010 WL
3387220 at *1420 (Cal. App. Aug. 30, 2010) (examining plaintiffs'
medical background, including testimony from their physicians, in a false
pharmaceutical advertising case)). However, the Court fails to see how
plaintiffs medical billing bears any relevance, so the subpoenas are
quashed to that extent.' Also, Porn's subpoenas are quashed outright
(and thus, the Court will grant Templeton's quash motion) if Templeton,
condition, including, but not limited to, those referred to in the MCC;
and (3) whether the Juice had any effect on his health, including, but
not limited to, treating, curing or mitigating any disease or health
condition, including, but not limited to, those referred to in the MCC.
See id. Thus, despite his assertion in the Motion, there is a strong
possibility that Plaintiff would sandbag Porn at trial, attempting to
bring his health into the picture, accompanied by some contrived
explanation for the reversal. Porn would be irreparably prejudiced by
such gamesmanship if prevented from obtaining discovery related to
Plaintiff's physical condition in the form of his medical records that he
put directly at issue.
Doc. 3 at 5-6 (emphasis added).
Conceivably the medical bills could reveal coding showing what a treatment was
for. The Court will reconsider if Pom clarifies that point.
6
[J
within 11 days of the date this Order is served, stipulates "that he will
not put his physical condition at issue or call as witnesses at trial any of
his doctors." Supra, n. 5.
III. CONCLUSION
Rex Templeton, Jr.'s motions to quash (docs. 1 & 2) are
GRANTED in part (no billing shall be produced) and otherwise
DENIED without prejudice to his right to renew them' upon his filing of
the above-noted stipulation.
SO ORDERED this Oay of September, 2013.
UNITKI~ STAVES MAGISTRATE JUDGE
SOUTIIERN DISTRICT OF GEORGIA
Should he then prevail, Porn must turn over to Templeton the medical records that
Dr. Bradley already produced to it.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?