POWELL et al v. UNITED PARCEL SERVICE, INC.

Filing 68

ORDER granting Deft UPS and Nonparty Moon's 59 Motion to Quash (see Order for details). Signed by Magistrate Judge Tim A. Baker on 4/13/2010. (SWM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION TAMMY POWELL and BOBBY POWELL, Individually and as CourtAppointed Guardian of His Wife, TAMMY POWELL, Plaintiffs, vs. UNITED PARCEL SERVICE, INC. Defendant. ) ) ) ) ) ) ) ) ) )

1:08-cv-1621-WTL-TAB

ORDER ON MOTION TO QUASH I. Introduction Plaintiffs Tammy and Bobby Powell requested the Wal-Mart Vision Center records of nonparty Raymond Moon. Moon and his employer, Defendant United Parcel Service, Inc., moved to quash the Powells' request based upon the physician-patient privilege. [Docket No. 59­60.] Because the records are protected by the physician-patient privilege and Moon has not waived the privilege by placing his eyesight at issue, the Court grants the motion to quash. [Docket No. 59.] II. Background On September 16, 2008, Tammy Powell's car crashed into a UPS truck driven by Moon, severely injuring Tammy. The Powells sued UPS, alleging that Moon's negligent operation of the UPS truck caused Tammy's injuries. During his deposition, Moon testified that he is nearsighted and wears glasses when driving. [Docket No. 62, Ex. G at 17.] Moon also testified that he had an eye exam at the Greenfield Wal-Mart Vision Center in December 2008, but he did not know whether his prescription was changed at that time. [Id. at 21­22.] Finally, Moon testified that he did not see Tammy's vehicle before the collision. [Id. at 118.]

In January 2010, the Powells served a request for production to non-party and a subpoena duces tecum on the Greenfield Wal-Mart Vision Center seeking Moon's vision records from 2002 through the present. [Docket No. 60, Ex. B.] UPS and Moon moved to quash. [Docket No. 59.] The parties briefed the issue and had a full opportunity to be heard during a March 15, 2010, telephonic status conference. The Court also reviewed the records at issue in camera. III. Discussion Indiana Code section 34-36-3-1 provides that physicians "shall not be required to testify . . . as to matters communicated to them by patients, in the course of their professional business, or advice given in such cases." This physician-patient privilege exists to "inspire full and complete disclosure of knowledge pertinent and necessary to a trustful and proper relationship." Green v. State, 274 N.E.2d 267, 273 (Ind. 1971). But the privilege is not absolute--the patient may waive it expressly or by implication. Vargas v. Shepherd, 903 N.E.2d 1026, 1030 (Ind. Ct. App. 2009). Waiver by implication is common when a party places his or her medical condition at issue, such as when a plaintiff seeks to recover for personal injury. Id. This case differs from the typical waiver case because the defendant and a nonparty, rather than the plaintiff, are asserting the physician-patient privilege. The primary Indiana case in which a defendant asserted the physician-patient privilege is Ley v. Blose, 698 N.E.2d 381 (Ind. Ct. App. 1998). Ley was a medical malpractice action in which the plaintiff sought the defendant physician's records for alcoholism treatment. The plaintiff argued that the physician had waived the physician-patient privilege as to his alcoholism records because during discovery he had conceded that he was an alcoholic and received treatment. The Court of Appeals rejected the plaintiff's argument that the defendant physician waived the privilege: 2

Unlike a personal injury plaintiff, Ley did not voluntarily place his physical or mental condition at issue. Rather, Blose made an issue of Ley's alcoholism, and Ley merely conceded that he was afflicted by and received treatment for the disease. Ley neither asserted alcoholism as an affirmative defense nor disclosed any specific details about his communications [in treatment]. Moreover, Ley affirmatively opposed disclosure of the records. Because these actions fail to evince an express or implied intention to waive the patient-physician privilege, we conclude that the trial court erred in ordering disclosure of Ley's patient records [for alcoholism treatment]. Id. at 384. As in Ley, the Powells had a full opportunity to depose Moon concerning his eyesight, and only the Powells' subpoena of Moon's vision records is contested. The Powells, not Moon, placed Moon's eyesight at issue by arguing that he was negligent in failing to see Tammy's vehicle. [See Docket No. 62 at 12.] Moon does not argue that poor vision excuses him from liability or that perfect vision forecloses the Powells' theory. Instead, like the defendant physician in Ley, Moon acknowledged that he wears corrective lenses but did not disclose any specific details about his communications with his optometrist. Further, Moon affirmatively opposed disclosure of his Wal-Mart Vision Center records. Under these circumstances, Moon has not placed his eyesight at issue, and he has not waived the privilege surrounding his WalMart Vision Center records. The Court therefore grants UPS and Moon's motion to quash. IV. Conclusion Because Moon has not waived the physician-patient privilege surrounding his Wal-Mart Vision Center records, the Court grants UPS and Moon's motion to quash. [Docket No. 59.] Dated: 04/13/2010
_______________________________ Tim A. Baker United States Magistrate Judge Southern District of Indiana

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Copies to: O. Daniel Ansa MORRISON ANSA HOLDEN ASSUNCAO & PROUGH, LLP Four Penn Center, Suite 900 1600 JFK Blvd. Philadelphia, PA 19103 Melissa Forcum Danielson KIGHTLINGER & GRAY [e-mail] John P. Lock MORRISON ANSA HOLDEN ASSUNCAO & PROUGH, LLP [e-mail] Jason Ruskin Reese WAGNER REESE & CROSSEN, LLP [e-mail] Jennifer Wright Schick MORRISON ANSA HOLDEN ASSUNCAO & PROUGH, LLP [e-mail] John P. Schuerman THE SCHUERMAN LAW FIRM [e-mail] Michael Wroblewski KIGHTLINGER & GRAY [e-mail] D. Bryce Zoeller KIGHTLINGER & GRAY [e-mail]

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