Warren et al v. Howmedica Osteonics Corp et al

Filing 49

MEMORANDUM AND ORDER; IT IS HEREBY ORDERED that the motion of plaintiffs Pamela and David to quash (Doc. 42 ) is sustained. However, defendant may reissue a restated subpoena to the hospital, after conferring with plaintiffs. Signed by Magistrate Judge David D. Noce on 09/02/2011; (DJO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAMELA WARREN and DAVID WARREN,
Plaintiffs,
v.
HOWMEDICA OSTEONICS CORP.
Defendant.

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No. 4:10 CV 1346 DDN

MEMORANDUM AND ORDER
This action is before the court on the motion of plaintiffs Pamela
Warren and David Warren to quash.

(Doc. 42.)

Oral arguments were heard

on August 24, 2011.
On July 14, 2011, defendant Howmedica Osteonics Corporation served
Jefferson Memorial Hospital a subpoena for:
Any and all records, reports, billing records, films, x-rays,
MRI, CT Scans pertaining to your care and treatment of Pamela
Warren. . . .
(Doc. 42-1.)

Plaintiffs filed the instant motion to quash this subpoena

on the grounds that it is overly broad and seeks information protected
by the physician-patient privilege.

Plaintiffs argue that only medical

issues relating to Pamela Warren’s hip are discoverable, and seek to
limit the scope of discovery accordingly.

Defendant argues that the

allegations in plaintiffs’ complaint are broad, and that almost all
medical testing and treatment could be relevant to plaintiffs’ claims.
Missouri law governs the scope of the physician-patient privilege
in this case.

Fed. R. Evid. 501; In re Baycol Prods. Litig., 219 F.R.D.

468, 469 (D. Minn. 2003).

Under Missouri law, the physician-patient

privilege precludes discovery of a plaintiff’s medical records, absent
waiver of the privilege by the plaintiff.

Mo. Rev. Stat. § 491.060(5);

Ingram v. Mut. of Omaha Ins. Co., 170 F. Supp. 2d 907, 912 (W.D. Mo.
2001).

A plaintiff waives this privilege by putting his or her physical

condition in issue in the pleadings, “insofar as information from doctors
or medical and hospital records bears on that issue.”
Jones v. Syler, 936 S.W.2d 805, 807 (Mo. 1997) (en banc).

State ex rel.

In their petition, plaintiffs allege damages arising from Pamela
Warren’s “pain, discomfort, loss of mobility, revision surgeries and
physical therapy.”

(Doc. 1-1 at ¶ 12.)

Plaintiffs also allege that

Pamela Warren incurred damages from “suffering, . . . [her inability to
perform] work and her usual activities, . . . decreased energy and
stamina, . . . [and her decreased ability] to function and enjoy the
normal pursuits of life.”

(Id. at ¶ 47.)

By the allegations in their petition, plaintiffs have placed many
facets of Pamela Warren’s health at issue.

The parties have indicated

that Pamela Warren has a complex medical history, with hip surgery as
early as when she was ten years old.

Given her systemic hip issues and

history of morbid obesity, a wide range of medical treatments and
diagnoses could be relevant. Defendant is entitled to Jefferson Memorial
Hospital’s records related to Pamela Warren’s hip pain and hip treatment,
as well as its records that could contain information relevant to Pamela
Warren’s hip condition.

For example, records regarding Pamela Warren’s

gastrointestinal bypass surgery could contain relevant information if xrays of her hip were obtained, or if blood testing revealed diseases
causing pain.

As an example of an area that would be outside the scope

of relevance, the parties have agreed that records pertaining to Pamela
Warren’s prenatal conditions would not contain information relevant to
this case.

Such medical records should not be disclosed.

Given Pamela Warren’s wide range and long history of medical
treatment, the court concludes that defendant is entitled to discover
more information than is only directly related to her hip condition.
However, because the parties may not know what all information the
hospital has to disclose about plaintiff, the court leaves it to the
parties to discuss and restate the subpoena to the hospital and to
fashion a protective order that protects medical information that is and
that might be disclosed but is outside the scope of the subpoena.

The

court declines to set temporal or other bright lines defining the scope
of discoverable medical records at this time, but will reconsider such
issues as discovery unfolds and issue arise.
Therefore, for the reasons discussed above,

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IT IS HEREBY ORDERED that the motion of plaintiffs Pamela and David
to quash (Doc. 42) is sustained.

However, defendant may reissue a

restated subpoena to the hospital, after conferring with plaintiffs.
/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on September 2, 2011.

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