Giegerich v. National Beef Packing Company, LLC
Filing
46
MEMORANDUM AND ORDER granting in part and denying in part 33 Plaintiff's Motion to Compel; granting 35 Defendant's Motion to Compel. See order for details and important deadlines. Signed by Magistrate Judge Karen M. Humphreys on 1/9/2014. (sj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHAWN GIEGERICH,
Plaintiff,
v.
NATIONAL BEEF PACKING
COMPANY, LLC,
Defendant.
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Case No. 13-2392-JAR
MEMORANDUM AND ORDER
This matter is before the court on two motions: (1) plaintiff’s motion to compel
responses to his document requests (Doc. 33), and (2) defendant’s motion to compel
responses to discovery and for an order permitting ex parte communications with plaintiff’s
healthcare providers (Doc. 35).
For the reasons set forth below, plaintiff’s motion shall be
GRANTED IN PART and DENIED IN PART and defendant’s motion shall be GRANTED.
Background1
In January 2012, while he was employed as an over-the-road truck driver, plaintiff
was injured when he picked up a trailer at defendant’s Liberal, Kansas facility. Plaintiff
claims the muddy and uneven surface on which the trailer was located, combined with the
tightly parked location of the trailers, caused the trailer to jerk and strike him in the head.
1
These facts are taken from the Amended Complaint (Doc. 27).
As a result of the head injury, plaintiff claims serious permanent and progressive injuries to
his head and neck. Based on these injuries, plaintiff seeks recovery for pain and suffering,
past and future medical expenses, lost income, and diminished enjoyment of life.
Plaintiff’s Motion to Compel Discovery Responses (Doc. 33)
Plaintiff’s motion seeks to compel defendant’s responses to plaintiff’s First Request
for Production of Documents.
Counsel both agree that the requirements of D. Kan. Rule
37.2 have been met and that Request Nos. 9 and 20 remain at issue.
Request No. 9 seeks all time records for the date of plaintiff’s injury, to reflect which
employees might have been present. Defendant objects, arguing that the request is unduly
burdensome and seeks confidential information about its employees.
Defendant also
objects on the basis of relevance.
Defendant explains that the “loaded ready line” (“line”), the area of defendant’s
facility where plaintiff’s injury occurred, is the only location plaintiff could have accessed.
The line is situated so that employees working in other areas of the facility can neither
access the line nor see it from other locations. Defendant argues that the time records for
all employees working in other areas are not reasonably calculated to lead to the discovery
of admissible evidence. Additionally, defendant asserts that it does not keep time records
for all employees, but rather keeps only time records for its hourly employees. Without
waiving its objection, defendant identified four individuals who were working on the line on
the date of plaintiff’s injury, and provided the names and contact information for each
2
individual. Defendant also provided a time sheet which reflected its hourly employees
and/or agents working on the line on the date in question.
Plaintiff argues that discoverable information should be interpreted broadly and that
the request is narrowly tailored to one date and one location.
He asserts that the
information is reasonably calculated to lead to admissible evidence and also is essential
because the condition of the trailer staging area is directly at issue.
Plaintiff’s argument is contained in a single paragraph, and barely meets his burden
to show facial relevance.2 The burden then shifts to defendant to specifically demonstrate
how the request is not reasonably calculated to lead to the discovery of admissible
evidence.3 To meet that burden, defendant provided affidavits explaining the segregated
nature of the line. Defendant also produced the time records of those employees working
on the line, as well as the names and last known addresses of the four agents who were
assigned to the line at the time of plaintiff’s injury. Plaintiff did not respond to that
information in a reply or acknowledge in his motion that the information had been
produced.
Defendant has met its burden to dispute relevance and plaintiff’s motion
regarding Request No. 9 is therefore DENIED.
Request No. 20 seeks copies of all incident reports involving injuries in defendant’s
trailer staging area for the three years preceding plaintiff’s injury. Defendant objected but
2
3
See Johnson v. Kraft Foods N. Am., Inc., 238 F.R.D. 648, 653 (D. Kan. 2006).
See Jackson v. Coach, Inc., 2008 WL 782635, at *4 (D. Kan. Mar. 20, 2008).
3
produced the only incident report in its possession.
Plaintiff’s sole complaint is that the names of the reporting employee and the injured
party were redacted from the incident report. Defendant later provided a copy which
reveals the reporting employee’s name so that the only remaining redaction is the name of
the injured party. Defendant argues that this person should not be identified because the
report discusses the third-party’s medical condition and that person has not consented to
disclosure. Defendant also asserts that the incident report contains sufficient facts for the
court to determine that the incident was not “substantially similar” to plaintiff’s accident, so
that the incident report is not relevant because it is not admissible.
Defendant misstates the standard for discovery. Discoverable information need not
be admissible but only likely to lead to admissible evidence.4 Although defendant asserts
that there is nothing in the incident report to suggest whether or not the condition of the line
contributed to that accident, there are not enough facts supplied to make a conclusion. In
addition, any privacy concerns can be addressed by making such disclosure subject to a
protective order, to which plaintiff has agreed.5 Plaintiff’s motion is GRANTED as to
Request No. 20.
IT IS THEREFORE ORDERED that plaintiff’s motion (Doc. 33) is DENIED as to
Request No. 9 and GRANTED as to Request No. 20.
4
5
Fed. R. Civ. P. 26(b).
Pl.’s Mot., Doc.33, Ex. C.
4
Defendant shall produce an
unredacted copy of the incident report no later than January 17, 2014.
Defendant’s Motion to Compel Discovery Responses and
For an Order Allowing Ex Parte Communications (Doc. 35)
Defendant seeks to compel plaintiff’s responses to defendant’s First Interrogatories
and First Request for Production of Documents. Defendant has properly outlined and
certified the parties’ conference regarding this discovery dispute as required by D. Kan.
Rule 37.2. Plaintiff does not dispute this certification and agrees that disputes regarding
Interrogatory No. 13 and Request No. 17 remain outstanding.
I.
Scope of requested information – Interrogatory No. 13
Interrogatory No. 13 asks plaintiff to identify all medical providers with whom he has
consulted or from whom he has received treatment. The parties have now agreed to a
temporal limit on medical information for the past ten years.
But they disagree on whether
plaintiff’s responses to both requests should be limited to the head and neck injuries claimed
by plaintiff in his amended complaint.
Plaintiff cites Pratt v. Petelin for the proposition that the court can deny unfettered
access to a plaintiff’s health information. 6
However, the holding in Pratt is
distinguishable. The plaintiff in Pratt attempted to limit disclosure of her protected health
information to medical records specifically related to her thyroid and thyroid cancer
treatment. The court found this limitation “too narrow, given the extent and nature of her
6
Pratt v. Petelin, 2010 WL 446474 (D. Kan. Feb. 4, 2010).
5
claims and injuries,” also finding that plaintiff’s claims of emotional distress, inability to
work, and loss of enjoyment of life made relevant the medical history “beyond simply her
[thyroid issues].”7 Although the court limited disclosure by social workers, educators and
government agencies for specified reasons, the court did not narrow the request as plaintiff
suggests.
Rather, Pratt reinforces the defendant’s position that the broader nature of
plaintiff’s claims makes relevant his unlimited medical history.
Based on the pleadings and Rule 26 disclosures, defendant asserts that plaintiff will
claim total disability based on his injury.8 Plaintiff’s only attempt to dispute this assertion
is the statement that he is only claiming damages to his head and neck. Plaintiff has
presented his claims broadly including his head and neck injuries and also continued pain,
loss of enjoyment of life, and inability to work. Therefore, the unrestricted identification
of his medical providers, without limitation to plaintiff’s head and neck injury, is relevant to
the claims and defenses of this matter and likely to lead to the discovery of admissible
evidence.9 Plaintiff’s conclusory statement does not satisfy his burden to prove lack of
relevance.10
To the extent that plaintiff seeks to invoke the physician-patient privilege to limit
7
Id., at *4.
See, e.g., Doc. 36, Ex. B, at 5, noting that plaintiff “is not working.”
9
See Fed.R.Civ.P. 26(b).
10
Jackson v. Coach, Inc., 2008 WL 782635, at *4 (D. Kan. Mar. 20, 2008) (stating, “The party
opposing discovery is required to come forth with more than a mere conclusory statement that the
discovery is irrelevant and must specifically demonstrate how the request is not reasonably calculated
to lead to the discovery of admissible evidence.”).
6
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identification to those providers treating only his head and neck, that objection is overruled.
First, plaintiff waived the objection by not asserting it in his initial response to defendant’s
requests. 11 Even had the objection been properly asserted, this court “has repeatedly
rejected the concept of a limited waiver of the privilege under K.S.A. § 60-427(d)” and
accordingly any waiver cannot be limited to plaintiff’s head and neck conditions.12 It is
clear that no physician-patient privilege exists “in an action in which the condition of the
patient is an element or factor of the claim or defense of the patient.”13 Plaintiff has placed
his physical and mental condition at issue; therefore, the physician-patient privilege does not
apply. Accordingly, defendant’s motion to compel plaintiff’s response to Interrogatory
No. 13 is GRANTED.
II.
Records release and ex parte communication – Request No. 17
Request No. 17 asks plaintiff to execute a release which would allow defendant to
access plaintiff’s medical records. Similar to his response to Interrogatory No. 13, plaintiff
also objects to Request No. 17 as overbroad. Plaintiff executed a limited authorization but
restricted defendant’s access to the last ten years and to those records which are specific to
11
Cardenas v. Dorel Juvenile Grp., Inc., 230 F.R.D. 611, 621 (D. Kan. 2005) (“It is also well settled
that when a party fails to assert an objection in its initial response to the discovery request and raises it
for the first time in response to a motion to compel, the objection is deemed waived.”).
12
Bradley v. Val-Mejias, 2001 WL 1249339, at *9 (D. Kan. Oct. 9, 2001) (citing Lake v. Steeves,
161 F.R.D. 441 (D.Kan.1994); Evertson v. Dalkon Shield Claimants Trust, 1993 WL 245972
(D.Kan.1993); Bryant v. Hilst, 136 F.R.D. 487 (D.Kan.1991)).
13
K.S.A. § 60-427(d) (discussed by Pratt, 2010 WL 446474, at *3; Bradley, 2001 WL 1249339, at
*9.
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plaintiff’s head and neck. As discussed above, time limitations have been agreed upon,
and plaintiff’s assertion that disclosure should be limited to his head and neck is rejected.
Plaintiff’s assertion of a physician-patient privilege is likewise overruled.
Plaintiff further objects that the authorization would “improperly allow ex parte
communications” with plaintiff’s treating physicians.
He argues that ex parte
communications violate the Health Insurance Portability and Accountability Act
(“HIPAA”)14 and that defendant should use a statutorily recognized method of discovery.
Plaintiff’s general argument that ex parte communications would conflict with public policy
is directly contrary to this district’s extensive precedent allowing such communications.
Verbal disclosure of protected health information is certainly subject to HIPAA
requirements.
However, as long as the verbal disclosure complies with appropriate
procedure, this district has a firmly-established practice of allowing informal ex parte
interviews of a party’s treating physicians who are merely fact witnesses. 15 Ex parte
communications with fact witnesses have long been characterized as informal discovery and
considered to be more convenient and less expensive for both witnesses and counsel.16
Defendant requests that plaintiff be ordered to sign its proposed authorization and
release of medical records with no specified limitations. Plaintiff previously provided
14
See 45 C.F.R. § 164.512(e)(1)(i).
This Court recently issued a similar ruling in Utter v. Thompson, 2013 WL 2476697, at *1 n.2 (D.
Kan. June 7, 2013) (citing Madrid v. Williams, 2012 WL 2339829 (D. Kan. June 19, 2012) (including
a lengthy list of citations to analogous rulings by other judges in this district)). See also Pratt v.
Petelin, 2010 WL 446474, at *8.
16
See Lake v. Steeves, 161 F.R.D. 441, 442 (D. Kan. 1994).
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15
defendant his own limited authorization. However, neither party’s proposed authorization
appears appropriate in light of the following considerations.
Defendant does not elaborate on whether it seeks alcohol or drug evaluation or
treatment records aside from including those concerns in a list of items restricted in the
Pratt case, 17 and neither does plaintiff address these concerns in his response.
The
disclosure of alcohol or drug evaluations and treatment is regulated by both K.S.A. §
65-560218 and 42 U.S.C. § 290dd-2(b)(2)(C).19 Based on the parties’ failure to address
these statutes, the court declines to enter an order authorizing the disclosure of protected
information regarding the diagnosis and treatment of alcoholism or drug dependency.
However, defendant’s request for information about plaintiff’s mental and emotional
health is also addressed by K.S.A. § 65-5602. Plaintiff’s mental health is relevant to the
claims regarding loss of enjoyment of life and physicians have voiced concern regarding
potential psychological factors affecting his presentation of pain.20 Therefore, the court
finds that plaintiff has made his mental and emotional condition an issue in this case and the
exception to the privilege stated in K.S.A. § 65-5603(a)(3) applies. The court will allow
disclosure of information regarding diagnosis and treatment of any mental or emotional
17
Pl.’s Mem. Opp’n, Doc. 38 at 3.
K.S.A. § 65-5602 (“Privilege of patient of treatment facility to prevent disclosure of treatment and
of confidential communications” made for the “purposes of diagnosis or treatment of the patient's
mental, alcoholic, drug dependency or emotional condition.”).
19
42 U.S.C. § 290dd-2 (authorizing under certain circumstances the disclosure of records involving
substance abuse treatment programs conducted, regulated, or assisted by any department or agency of
the United States).
20
See, e.g., Doc. 36, Ex. B at p. 3 (statement of psychiatrist Dr. Jeffrey Wunder).
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18
condition.
Neither party addresses the disclosure of confidential HIV or AIDS-related
information or testing.21 This topic was included in plaintiff’s executed authorization but
was not marked for disclosure.22 Because the parties fail to provide reasons why such
information should be disclosed, the court is unable to determine whether the exceptions
found in K.S.A. § 65-6002(d) might apply. The court denies any request for records or ex
parte communications regarding the disclosure of HIV-related information or AIDS testing.
Based on these considerations, plaintiff is ordered to execute and forward to
defendant a proper authorization for release of medical information.
Additionally,
defendant should submit a proposed order, which shall include the following provisions:
Communications with treating providers will be limited to the relevant time
period, determined to be the past ten years;
Specific providers’ names;23
Treating physicians shall be specifically informed of their right to decline a
request for ex parte communications;24
An acknowledgment that the order does not allow disclosure of the diagnosis of
drug or alcohol dependency or treatment under 42 U.S.C. § 290dd-2 and 42
C.F.R., Part 2 or K.S.A. § 65-5602, but does allow disclosure of the diagnosis and
treatment of mental or emotional disorder under K.S.A. § 65-5603(a)(3);
21
K.S.A. § 65-6001 et seq. (discussing acquired immune deficiency syndrome, or “AIDS,” the
confidentiality of information concerning AIDS or HIV infection, and exceptions allowing
disclosure).
22
Doc. 35, Ex. D at 11.
23
Utter, 2013 WL 2476697, at *2 n.3 (citations omitted).
24
Id., at *2 n.4 (citations omitted).
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An acknowledgement that the order does not allow disclosure of HIV-AIDS
related information under K.S.A. § 65-6002(d); and
A restriction that prohibits the parties from misuse or unauthorized disclosure of
the protected health care information.25
After the order is filed, defendant will be allowed to communicate with the identified
medical providers.
Defendant is not required to provide plaintiff with advance notification
of ex parte communications with his healthcare providers.26 The motion and order serve as
sufficient advance notification.
IT IS THEREFORE ORDERED that defendant’s motion (Doc. 35) is GRANTED
consistent with the rulings herein. Plaintiff shall respond to defendant’s Interrogatory No. 13
on or before January 17, 2014 by identifying his medical providers for the past 10 years.
With regard to Request No. 17, plaintiff shall execute a proper authorization for release of
medical information to defendant, and defendant shall provide a proposed order allowing ex
parte communication for the court’s review no later than January 27, 2014. The order shall
incorporate the provisions noted herein.
25
See 45 C.F.R. § 164.512(e)(1)(v); see also Pratt, 2010 WL 446474, at *7.
See Brigham v. Colyer, 2010 WL 2131967, at *4 (D. Kan. May 27, 2010); Sample v. Zancanelli
Management Corp., 2008 WL 508726, at *2 (D. Kan. Feb. 21, 2008).
26
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IT IS SO ORDERED.
Dated at Wichita, Kansas this 9th day of January 2014.
S/ Karen M. Humphreys
KAREN M. HUMPHREYS
United States Magistrate Judge
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