DUKES v. COX et al

Filing 109

Order Following In Camera Review. Ms. Dukes is granted a protective order against providing any of the redacted information and records to the defendants, except for the information stated in the Order. For the revised redacted page 2, Ms. Dukes sha ll produce the revised document to the defendants within fourteen (14) days of this entry. The plaintiff's Request for Copy of Transcript and Request for Continuance of Response (Dkt. 108 ) is denied without prejudice in part and denied in part. Signed by Magistrate Judge Debra McVicker Lynch on 10/17/2011. (LH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THERESA L. DUKES,
Plaintiff,
v.
ERIC COX, et al.,
Defendants.

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CASE NO. 1:09-cv-1440-JMS-DML

Order Following In Camera Review
On June 8, 2011, the court held a discovery hearing on plaintiff Theresa L. Dukes’s
objection to production of certain medical records the defendants sought in discovery. As
reflected in its entry dated June 10, 2011, the court ordered Ms. Dukes to produce (1) all mental
and emotional health information for the 10-year period before the incident at issue (which
occurred in November 2007), erring on the side of concluding that treatment is pertinent to
mental and emotional health, and (2) all physical medical health records for that period “to the
extent that the record relates in any way or is similar to the physical injuries the plaintiff claims
in this case.” (See Dkt. 77).
Following the court’s June 10 entry, the parties brought to the court’s attention several
disputes about whether Ms. Dukes has produced all of the records she was ordered to produce.
At a telephone status conference held September 16, 2011, the parties identified one remaining
dispute regarding the medical records: whether redactions Ms. Dukes made to some of the
medical records are appropriate. Defendants Eric Cox, Joe Schmidt, and Jeff Sego have
requested that the court order Ms. Dukes to produce her medical records without redactions. The
court ordered Ms. Dukes to submit the records for an in camera inspection by the court and

permitted the parties to file briefs on the applicable legal analysis governing the withholding or
redaction of medical records in this case. (See Dkt. 103).
The defendants’ position (Dkt. 102) is that the court should not permit Ms. Dukes to
redact any information from her medical records because only an expert in the pertinent medical
field(s) is capable of determining whether information in a plaintiff’s medical records is relevant
to the medical conditions a plaintiff has put at issue in litigation. Their position—which they
have supported with neither legal authority nor discussion of the particular physical and
emotional injuries for which Ms. Dukes seeks damages in this case—goes too far. Its logic
would mean that a plaintiff’s entire medical history is always relevant and discoverable in every
case in which he or she claims damages for any personal injury. That position is inconsistent
with myriad case law—state and federal—addressing the boundaries of discovery in personal
injury cases and the extent to which a plaintiff has put his or her medical history at issue.
For example, in cases governed by the Indiana rules of trial procedure, the Indiana
Supreme Court has forbidden defense counsel from interviewing a personal injury plaintiff’s
doctors on an ex parte basis because of the risk that defense counsel could inquire into and
obtain (inadvertently or not) medical information that the plaintiff has not put at issue and which
remains protected from disclosure by the doctor-patient evidentiary privilege. Cua v. Morrison,
626 N.E.2d 581, 584 (Ind. Ct. App. 1993), aff’d and adopted, 636 N.E.2d. 1248 (Ind. 1994).
Courts in this district, while allowing in some circumstances ex parte interviews of a plaintiff’s
doctors, recognize the need to protect against defense counsel’s probing of sensitive medical
information that is not relevant to the litigation. See Patton v. Novartis Consumer Health, Inc.,
2005 WL 1799509 (S.D. Ind. July 25, 2005). In Patton, then-district Judge Hamilton noted that
a party’s waiver of doctor-patient privilege by filing suit and putting medical conditions at issue

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applies only to “‘those matters causally and historically related to the condition put in issue and
which have a direct medical relevance to the claim, counterclaim, or defense made.’” 2005 WL
1799509 at *1 (quoting Collins v. Bair, 268 N.E.2d 95, 101 (Ind. 1971) (emphasis in Collins)).
The defendants’ assertion that they and their experts—and not the court—must be the sole and
final arbiters of what medical information is relevant cannot be squared with these decisions.
The court has carefully reviewed the medical records submitted by Ms. Dukes. Although
the court can agree in principle with the defendants that a court may not always have the
necessary expertise to distinguish relevant medical information from irrelevant medical
information, the court is confident that it can do so with respect to the redacted medical records
and information at issue here. Except for some general medical history and vital signs
information appearing on page two of a March 12, 2003 record from Sarasota Memorial
Healthcare System, the medical information redacted by Ms. Dukes is not relevant to the
physical and mental health matters at issue in this litigation, and Ms. Dukes is not required to
provide it in an unredacted form. With respect to page two of the Sarasota record, the court
orders that Ms. Dukes revise her redaction so that the following information is revealed: (1) The
first sentence of the second full paragraph beginning with “She also” and ending with “excise”
and (2) All of the next 10 paragraphs, beginning with the paragraph starting “Her past medical”
and ending with the paragraph (or line) that starts with the word “Cardiovascular.” Ms. Dukes
may maintain the redactions to the top two lines on page 2, the first full paragraph on page 2, the
portion of the second full paragraph not described above, and the last two lines on page 2.
Conclusion
Ms. Dukes is granted a protective order against providing any of the redacted
information and records to the defendants (except for the information identified above). For the

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revised redacted page 2, Ms. Dukes shall produce the revised document to the defendants within
fourteen (14) days of this entry. In addition, by separate entry, the court will enter a protective
order so that medical information (or other sensitive, private information) is maintained in
confidence and restricted to use for purposes of this litigation only.1
So ORDERED.
10/17/2011
Date: _____________________

____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana

Distribution:
Scott Leroy Barnhart
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
William W. Barrett
WILLIAMS HEWITT BARRETT & WILKOWSKI LLP
[e-mail]
Daniel Joseph Layden
WILLIAMS BARRETT & WILKOWSKI, LLP
[e-mail]
Cory Christian Voight
INDIANA OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Theresa L. Dukes
133 West Market Street, #307
Indianapolis, IN 46204
1

Ms. Dukes recently filed a Request for Copy of Transcript and Request for Continuance of
Response (Dkt. 108). As for her request for a transcript of the September 16, 2011 conference,
Ms. Dukes need not seek leave of court to obtain a transcript; she need only make arrangements
with the court reporter to purchase a transcript. To the extent Ms. Dukes seeks by her motion a
copy of the transcript without charge, her motion does not establish the necessary grounds for
that request. Her motion is DENIED WITHOUT PREJUDICE. As to the request for a
continuance to respond as permitted by the court’s earlier order, the court has already granted
Ms. Dukes one continuance and, in light of this order, a response is unnecessary. That request is
also therefore DENIED.
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