Bates v. Delmar Gardens North, Inc et al

Filing 41

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to compel (Doc. No. 35 ) is GRANTED in part and DENIED in part as set forth above. Plaintiff is directed to produce the materials in question as set forth above within fourtee n (14) days of the dateof this Memorandum and Order, subject to a stipulated protective order to be agreed upon by the parties. IT IS FURTHER ORDERED that Defendants' request for costs and attorneys' fees is DENIED. Signed by District Judge Audrey G. Fleissig on June 29, 2016. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BETSY BATES,
Plaintiff,
v.
DELMAR GARDENS NORTH, INC.,
et al.,

Defendants.

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Case No. 4:15-cv-00783-AGF

MEMORANDUM AND ORDER
This action, brought under Title III of the Americans with Disabilities Act, 42
U.S.C. § 12181, et seq.; section 504 of the Rehabilitation Act, 29 U.S.C. § 794; the
Missouri Human Rights Act, Mo. Rev. Stat. § 213.010, et seq.; and the Fair Housing Act,
42 U.S.C. § 3601, et seq., is before the Court on Defendants’ motion to compel Plaintiff
to produce certain medical information and records. For the reasons set forth below, the
motion shall be granted in part and denied in part.
BACKGROUND
Plaintiff, who is profoundly deaf, alleges that Defendants failed to provide her
with effective accommodations for her disability when she received care at Defendants’
facility in May 2013. Plaintiff alleges that she underwent hip surgery on May 14, 2013 at
Depaul Health Center and stayed there for recovery until May 18, 2013. Plaintiff alleges

that, on May 18, 2013, she was transported to Delmar Gardens North Rehabilitation
Center, a nursing facility owned and operated by Defendants, for further recovery,
rehabilitation, and physical therapy. According to Plaintiff, she is deaf, primarily
communicates in American Sign Language, cannot read lips, and requires a sign language
interpreter to communicate effectively in medical settings. Plaintiff alleges that she was
denied an on-site sign language interpreter despite her repeated requests, which resulted
in her not being able to communicate effectively with Defendants’ staff and deterred her
from using Defendants’ services in the future. Plaintiff alleges that she was discharged
on May 31, 2013, from Defendants’ facility without ever having been provided with an
interpreter or any other form of auxiliary aid or service that would allow her to fully and
effectively communicate. Plaintiff seeks, among other relief, compensatory damages for
the emotional distress caused by Defendants’ alleged failure to accommodate her
disability and an injunction requiring Defendants to implement and comply with certain
policies to adequately accommodate Plaintiff and other deaf persons in the future.
On or about September 8, 2015, Defendants served Plaintiff with a First Set of
Interrogatories and a First Request for the Production of Documents. On or about
November 18, 2015, Plaintiff responded to the interrogatories and the request for
production, but, according to Defendants, failed to provide full and complete answers.
Specifically, according to Defendants, Plaintiff failed to fully respond to Interrogatory
No. 8, Document Request No. 7, and Document Request No. 8.
Interrogatory No. 8 states as follows:

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Please identify every doctor, physician, health or medical practitioner,
hospital, clinic, institution, physical therapist, speech therapist,
occupational therapist, psychologist, psychiatrist, counselor, social worker,
or other health care provider that you have consulted, been examined by, or
been treated by during the period of January 1, 2005, through the date of
signing your responses to these interrogatories. For each, state the date(s) of
the examination(s), the reason for such examination(s) and/or treatment,
and identify all related documents.
(Doc. No. 35-1 at 7.)
Document Request No. 7 states as follows:
All documents or other tangible things referencing or reflecting any
consultations, visits, appointments, communications or correspondence
with any doctor, physician, health or medical practitioner, hospital, clinic,
institution, physical therapist, speech therapist, occupational therapist,
psychologist, psychiatrist, counselor, social worker, or other healthcare
provider from January 1, 2005, to the present, including but not limited to
medical history, medical records, doctors’ notes, and medical billing
statements for care, treatment, hospitalization, and/or prescription
medication.
(Doc No. 35-2 at 5.) Document Request No. 8 requests “[a]n executed copy of the
attached Medical Records Authorization.” Id.
In response to these requests, Plaintiff provided an executed release of medical
records limited to the period from May 14, 2013, to the present, which is the period when
she received hip surgery at Depaul Health Center and stayed at Defendants’ facility.
On April 25, 2016, counsel for the parties conferred in good faith regarding
Defendants’ request for Plaintiff’s medical information and records. Defendants
conveyed their belief that the medical records were discoverable to examine whether
Plaintiff had requested or received accommodations when receiving medical care in the
past, to address what her emotional state was prior to her stay at Defendants’ facility, and

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to identify whether her emotional distress was caused by something other than
Defendants’ alleged failure to accommodate her disability. Defendants also argue that
they are entitled to review Plaintiff’s medical records prior to her stay at Defendants’
facility to evaluate whether she does in fact need healthcare services on a regular basis,
which is the alleged basis for her request for injunctive relief. In addition, Defendants
offered to enter into a stipulated protective order to protect the confidentiality of the
medical records.
Plaintiff indicated that no additional medical information would be made available
unless Defendants would stipulate that no medical records would be used for any purpose
other than to address whether an accommodation was previously requested or provided.
Defendants did not agree to that stipulation, and Plaintiff has not supplemented her
responses to Defendants’ requests. On April 28, 2016, Defendants filed this motion to
compel Plaintiff to fully and completely respond to Interrogatory No. 8 and Document
Requests No. 7 and 8. Defendants also seek costs and attorneys’ fees in preparing and
pursuing their motion to compel.
In response, Plaintiff argues that the scope of discovery Defendants seek on the
topic of how Plaintiff communicates in a medical setting is disproportional to the needs
of the case. In response to Interrogatory No. 8, Plaintiff objects on the grounds that the
request is overbroad, oppressive or unduly burdensome; seeks information not material,
necessary, or relevant to the prosecution or defense of this action; is confidential or
personal in nature; and is not reasonably calculated to lead to the discovery of admissible

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evidence. In response to Document Requests No. 7 and 8, subject to and without waiving
the objections, Plaintiff states that she has already provided the name of the healthcare
provider who performed her hip surgery before she was transferred to Defendants’
facility. She has also provided a signed Health Insurance Portability and Accountability
Act (HIPAA) release for her records from this provider, limited to the period of her
surgery and recovery.
Plaintiff argues that, while how Plaintiff communicated in a medical setting in the
past may be relevant to Plaintiff’s ability to communicate during her treatment at
Defendants’ facility, seeking over eleven years’ worth of medical records from every
provider concerning any sort of medical treatment is not proportional to the needs of this
case as it falls outside the relevant time period and also seeks discovery of irrelevant,
highly confidential, and personal matters. Plaintiff argues that she has not put her entire
medical history in controversy by bringing a discrimination claim, and the burden
imposed on Plaintiff to recollect and reveal over eleven years’ worth of medical care,
including dates, reasons for treatment, and the names of the providers outweighs the
benefit in resolving this case.
Plaintiff proposes that the requested information should be limited to a more
reasonable period, for example, a two-year period, and the released information should be
used solely to address whether Plaintiff had requested accommodations in the past and
whether they were provided.
Plaintiff argues that her medical records are not relevant and will not become

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relevant to her emotional distress claims because she seeks only emotional distress
damages of the type inherent to the experience of discrimination and alleges no damages
that the medical records would tend to prove or disprove. Therefore, Plaintiff argues that
her emotional state prior to the alleged discrimination is of no importance in resolving the
claims against Defendants.
Plaintiff further argues that over eleven years’ medical records are irrelevant to
and disproportionate to Defendants’ needs in defending against Plaintiff’s claim for
injunctive relief. Plaintiff contends that the medical records she is willing to provide, for
the period of her hospital stay directly before her treatment at Defendants’ facility, as
well as Defendants’ own records, should suffice to establish that Plaintiff is an elderly
woman who requires regular healthcare.
Finally, Plaintiff argues that an award for Defendants’ costs and attorneys’ fees in
preparing and pursuing their motion to compel is unwarranted because Plaintiff has been
responsive in the discovery process and Plaintiff’s nondisclosure is substantially justified
as a genuine dispute exists over the relevance and proportionality of the information and
documents Defendants seek.
In reply, Defendants argue that a request for medical records from January 1, 2005
to the present is reasonable and necessary to permit an effective review of Plaintiff’s
previous experiences in medical settings. Defendants argue that the requested medical
records are relevant to Plaintiff’s claim for emotional distress damages because the
emotional distress damages are the focus of her claim, and that the records are relevant to

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Plaintiff’s claim for injunctive relief in order to evaluate whether Plaintiff suffers from
any conditions or illnesses that are likely to recur, and whether any of those illnesses are
likely to require the sort of rehabilitative care that would make Plaintiff likely to return to
Defendants’ facility.
Finally, Defendants argue that their requests put virtually no burden or expense on
Plaintiff because all Defendants request is that Plaintiff identify her healthcare providers
and provide authorizations for Defendants to seek medical records from those providers.
DISCUSSION
Under Federal Rule of Civil Procedure 26(b)(1), litigants may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources,
the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). “Information within this scope of discovery need not be
admissible in evidence to be discoverable.” Id. Relevancy in this context “has been
construed broadly to encompass any matter that bears on, or that reasonably could lead
to other matter that could bear on, any issue that is or may be in the case.” Jo Ann
Howard & Assocs., P.C. v. Cassity, 303 F.R.D. 539, 542 (E.D. Mo. 2014) (citation and
quotation omitted).
Defendants, as the moving party, bear the initial burden of showing that the
requested discovery is discoverable within the meaning of Rule 26. See Cent. States,

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Se. & Sw. Areas Pension Fund v. King Dodge, Inc., No. 4:11MC00233 AGF, 2011 WL
2784118, at *2 (E.D. Mo. July 15, 2011). “[A]fter the proponent of discovery makes a
threshold showing of relevance, the party opposing a motion to compel has the burden
of showing its objections are valid by providing specific explanations or factual support
as to how each discovery request is improper.” Cincinnati Ins. Co. v. Fine Home
Managers, Inc., No. 4:09CV234-DJS, 2010 WL 2990118, at *1 (E.D. Mo. July 27,
2010).
The Court believes that Plaintiff’s past medical records are relevant to determine
whether she has received accommodations and what kind of accommodations she has
received, if any, in medical settings. Indeed, Plaintiff acknowledges the relevance of
the medical records for this purpose, but she argues that the scope of the request should
be narrowed to a more limited time period. As discussed below, the Court will limit the
scope of the request, but not to the extent suggested by Plaintiff. Nor will the Court, at
this time, limit the purpose for which the records may be used by Defendants in this
case.
In addition to determining the extent of Plaintiff’s past accommodations, the
Court believes that some portion of the records sought by Defendants may become
relevant to Plaintiff’s request for emotional distress damages; specifically, the records
may be relevant in establishing that something other than Defendants’ alleged
discriminatory conduct caused Plaintiff’s emotional distress. See Eggering v. MHP,
Inc., No. 4:10CV01794 AGF, 2011 WL 6029956, at *2 (E.D. Mo. Dec. 5, 2011)

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(holding that records of treatment plaintiff may have received for emotional distress
prior to defendant’s discriminatory conduct were relevant and discoverable); E.E.O.C.
v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D. Cal. 2009) (“Defendant
should be able to determine whether Plaintiff’s emotional state may have been effected
by something other than Defendant’s alleged actions.”); Doverspike v. Chang O’Hara’s
Bistro, Inc., No. 03-5601 ADM/AJB, 2004 WL 5852443, at *3 (D. Minn. July 13,
2004) (“Defendants have a right to determine whether [plaintiffs] have relevant medical
history that indicates their emotional distress was caused in part by events and
circumstances independent of defendants’ conduct.”). The Court recognizes that the
medical records’ relevance depends on the evidence Plaintiff presents at trial to support
her claim for emotional distress damages; therefore, the Court reserves judgment as to
whether Defendants will be permitted to use any such records as evidence at trial. See
Eggering, 2011 WL 6029956, at *2.
The Court further believes that Plaintiff’s medical history may be relevant in her
pursuit of injunctive relief, and that Defendants are entitled to some portion of
Plaintiff’s medical records to evaluate whether Plaintiff suffers from any conditions or
illnesses that are likely to recur and cause her to return to Defendants’ facility. In fact,
Plaintiff concedes that her medical records are relevant in supporting her claim for
injunctive relief, but only disputes to what extent back in time her medical records
should be revealed.

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The Court agrees with Plaintiff that requiring Plaintiff to reveal eleven years’
medical records is not necessary for Defendants to adequately make their defense.
Therefore, the Court will limit the discovery of Plaintiff’s medical information and
records to five years preceding the alleged discriminatory conduct at issue. See, e.g.,
Auer v. City of Minot, No. 4:15-CV-00040-DLH-CSM, 2016 WL 1430023, at *9
(D.N.D. Apr. 11, 2016) (limiting the discovery of plaintiff’s mental health records to
four years prior to the alleged discriminatory conduct); Lewis v. Temp-Air, Inc., No.
4:14-CV-398 CDP, 2014 WL 5432122, *2 (E.D. Mo. Oct. 27, 2014) (limiting the
discovery of mental health records to three years prior to plaintiff’s termination by
defendant); Bujnicki v. Am. Paving & Excavating, Inc., No. 99-cv-0646S(SR), 2004
WL 1071736, at *19 (W.D.N.Y. Feb. 25, 2004) (permitting discovery of mental and
other health records, but only to two years prior to the commencement of plaintiff’s
employment with defendants); Garrett v. Sprint PCS, No. 00-2583-KHV, 2002 WL
181364, at *3 (D. Kan. Jan. 31, 2002) (limiting defendant’s request for medical and
psychological records to three years prior to the alleged discriminatory conduct);
McKenna v. Cruz, No. 98 CIV. 1853 (HBHBP), 1998 WL 809533, at *3 (S.D.N.Y.
Nov. 19, 1998) (limiting discovery of plaintiff’s mental health records to five years
prior to the alleged use of excessive force).
The Court believes that requiring such discovery will not put undue burden on
Plaintiff when limited to a five-year period. Furthermore, the Court will only require
Plaintiff to identify the names of healthcare providers during the five-year period and

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provide authorizations of the release of records, as that is the only information
Defendants claim to need. Finally, to protect the confidentiality of the medical records,
the Court will order that the information be produced subject to the parties entering a
stipulated protective order.
In light of the genuineness of the dispute over the relevance and proportionality of
the discovery requests and the result the Court has reached, the Court does not believe
that an award of costs or attorneys’ fees is warranted here.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion to compel (Doc. No. 35) is
GRANTED in part and DENIED in part as set forth above. Plaintiff is directed to
produce the materials in question as set forth above within fourteen (14) days of the date
of this Memorandum and Order, subject to a stipulated protective order to be agreed upon
by the parties.
IT IS FURTHER ORDERED that Defendants’ request for costs and attorneys’
fees is DENIED.
________________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of June, 2016

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