Adams v. Dolgencorp, LLC

Filing 50

ORDER denying 25 Motion to Quash, except that the time frame of the subpoena shall be limited to three years preceding the incident at issue in this lawsuit through the present date. It is further ordered that the parties shall advise Blue Cross B lue Shield of this court's ruling in order that Blue cross Blue Shield may comply with the subpoena within 21 days of this Order. It is further ordered that within 14 days of this Order, the parties shall submit a joint motion with a proposed protective order regarding confidential information. Signed by Magistrate Judge Docia L Dalby on June 7, 2012. (SR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRENDA ADAMS

CIVIL ACTION

VERSUS

NUMBER 11-784-FJP-DLD

DOLGENCORP, LLC
ORDER
This matter is before the court on a referral from the district court of plaintiff’s motion
to quash subpoena to Blue Cross Blue Shield. (rec.doc. 25) The matter is fully briefed.
Background
On May 29, 2011, plaintiff was a patron in one of the Dollar General stores when she
slipped and fell in a fluid substance on the floor, injuring her hand, wrist, and both knees.
On August 30, 2011, plaintiff filed suit in state court, which subsequently was removed to
this court based on diversity jurisdiction. Plaintiff claims the following damages:
a.

Bodily injuries, pain and suffering - past, present and future;

b.

Mental anguish and distress - past, present and future;

c.

Medical and pharmaceutical expenses - past, present, and future;

d.

Past and future lost wages and loss of earning capacity;

e.

Apprehension of insufficient medical attention to her injury;

f.

Inconvenience;

g.

Fear and fright;

h.

Embarrassment, humiliation, and aggravation;

i.

Loss of enjoyment of life;

j.

Loss of ability to participate in normal activities; and

k.

Continual pain and suffering.

(rec.doc. 1-1)
The Motion to Quash
Defendant issued a subpoena to Blue Cross Blue Shield on April 17, 2012,
requesting the following:
Certified copies of any and all insurance records, including but not limited to
applications for health insurance and renewals, all insurance policies,
supplemental coverage records, certificates and benefit schedules, claim file
records, a copy of insurance claims, personal injury claims, descriptions of
loss, medical records, police reports, claim diary, statements, reports,
photographs, correspondence and notes pertaining to any and all health
insurance records of member Brenda Adams, . . . for any and all periods of
time. (rec.doc. 25)
Plaintiff filed the instant motion, stating that she provided a complete list of her
medical providers, disclosed the minor pre-existing problems regarding her knees, and that
this information falls under the collateral source rule, which renders the documents
inadmissible and “outside the realm of relevance,” and as such, is an undue burden and
expense for Blue Cross and Blue Shield. Id. Plaintiff further contends that defendant
subpoenaed the information under La. R.S. 13:3715.1(B), and this statute only applies to
subpoenaing records from a healthcare provider, not an insurance company. Id.
Defendant contends that Blue Cross Blue Shield requested an extension on the
return date of May 16, 2012, which was granted by defendant, and “never indicated that
the production of plaintiff’s records will result in an undue burden or expense.” (rec.doc. 26)
Defendant argues that the records are relevant as plaintiff has claimed “bodily injuries, pain
and suffering - past, present, and future” and “medical and pharmaceutical expenses - past,
present, and future.” Moreover, defendant contends that its subpoena is reasonably
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calculated to lead to the discovery of the health care providers plaintiff has seen while
insured by Blue Cross Blue Shield, and in particular, it is seeking these records to review
any and all incident or accident reports, personal injury claims, and the healthcare
treatment codes used while plaintiff has been insured with Blue Cross Blue Shield.
Governing Law and Analysis
The first issue for the court to address is whether plaintiff has standing to challenge
a subpoena to a third party.

Under Federal Rule of Civil Procedure 45(c)(3), the

subpoenaed entity "is the only one entitled to challenge the subpoena” “unless a showing
is made that [a party] has a personal right to be protected or that the documents are subject
to a privilege.” Hertenstein v. Kimberly Home Health Care, 189 F.R.D. 620, 635
(D.Kan.1999), quoting Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D.Kan.1995);
Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.1979); and Jez v. Dow Chemical Co., Inc.,
402 F.Supp.2d 783 (S.D.Tex.2005). Plaintiff has made no such showing that she has a
personal right to be protected, i.e., a privacy interest, or that the documents are subject to
a privilege. Even assuming, arguendo, that she raised these grounds for challenging the
subpoena, “courts have routinely held that, by putting one's medical condition at issue in
a lawsuit, a plaintiff waives any privilege to which he may have otherwise been entitled as
to his privacy interests in his medical records.” Stogner v. Sturdivant, 2011 WL 4435254
(M.D. La. 2011), citing Midalgo v. McLaughlin, 2009 WL 890544, *2, n. 5 (N.D.N.Y.2009);
Bayne v. Provost, 359 F.Supp.2d 234, 238 (N.D.N.Y.2005). See also, Doe v. City of Chula
Vista, 196 F.R.D. 562 (S.D.Cal.1999).
Here, plaintiff has argued relevance and undue burden to the third party as grounds
for quashing the third-party subpoena; however, she lacks standing to bring this challenge
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as only the third-party entity has standing to raise these grounds. Plaintiff has failed to cite
to any authority otherwise. See, Public Service Co. Of Oklahoma v. A Plus, Inc., 2011 WL
691204, *5 (W.D. Ok. 2011); Keybank National Ass'n v. Perkins Rowe Associates, L.L.C.,
2011 WL 09108, at *2 (M.D. La. 2011); and Streck, Inc. V. Research & Diagnostic Systems,
Inc., 2009 WL 1562851, *3 (D. NE. 2009).
Finally, plaintiff asserts that the collateral source rule is applicable here and the
documents from Blue Cross Blue Shield therefore would be inadmissible, but provides no
argument in support of same. The collateral source rule simply holds that if an injured party
receives compensation for injuries from a source independent of the tortfeasor, the
payment should not be deducted from the damages that the tortfeasor must pay. Black's
Law Dictionary (7th ed.1999); see also Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th
Cir.1994).1 Here, the scope of discovery is broad, the information may be relevant to a
claim or defense in this matter, or lead to relevant information, and the mere fact that Blue
Cross Blue Shield may be a collateral source does not render all the information pertaining
to plaintiff in its files inadmissible at trial.
However, the court notes that the subpoena is for “any and all periods of time,”
which simply is too broad. Thus, the court will exercise its discretion in discovery matters
and limit the time period to three years preceding the incident through the present date.

1

Plaintiff also states that defendant cited to La.R.S. 13:3715.1(B) "as authority for obtaining the
insured's records, and this is the exclusive method for obtaining medical records from health care providers,
which is inapplicable to Blue Cross Blue Shield. Plaintiff argues that citing to this authority does not provide
defendant with a "legal basis to issue a subpoena" to Blue Cross Blue Shield. Assuming without deciding that
this methodology technically may not apply to insurers, the court notes that plaintiff has failed to support her
arguments in terms of Fed.R.Civ. P. 45, which is the rule at issue here. The court therefore declines to
address this ground as plaintiff has no standing; Blue Cross Blue Shield is the only entity entitled to challenge
the subpoena on this ground.

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Also, there may be documents within the requested records which may be considered
confidential information; thus, the court will order that the parties submit a joint motion with
a proposed protective order in accordance with the court's Administrative Procedures with
regard to confidential information.
Accordingly,
IT IS ORDERED that the motion to quash (rec.doc. 25) is DENIED, except that the
time frame of the subpoena shall be limited to three years preceding the incident at issue
in this lawsuit through the present date.
IT IS FURTHER ORDERED that the parties shall advise Blue Cross Blue Shield of
this court's ruling in order that Blue Cross Blue Shield may comply with the subpoena within
21 days of this Order.
IT IS FURTHER ORDERED that within 14 days of this Order, the parties shall
submit a joint motion with a proposed protective order regarding confidential information.
Signed in Baton Rouge, Louisiana, on June 7, 2012.

MAGISTRATE JUDGE DOCIA L. DALBY

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