Kirk v. Schaeffler Group USA, Inc. et al
ORDER denying 34 motion to quash. Signed on June 20, 2014 by Chief District Judge Greg Kays. (Lehr, Jonathan)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
JODELLE L. KIRK,
SCHAEFFLER GROUP USA, INC., d/b/a
FAG BEARINGS CORP.;
FAG HOLDING, LLC;
WAYNE ALLISON; and
FAG BEARINGS, LLC,
ORDER DENYING MOTION TO QUASH SUBPOENA
This case arises from Plaintiff Jodelle L. Kirk’s allegations that trichloroethylene
(“TCE”) released from a manufacturing plant injured her. Now before the Court is Third-Party
Janice Kirk’s Motion to Quash Subpoena Duces Tecum and for Order of Protection (Doc. 34).
Plaintiff joins the motion (Doc. 39). 1
Defendants have sought medical records related to autoimmune illnesses from Plaintiff’s
mother Janice Kirk (“Mrs. Kirk”), a third-party to this litigation, to determine whether a family
history of autoimmune illness may have caused Plaintiff’s autoimmune hepatitis. Mrs. Kirk has
invoked her physician-patient privilege to keep these records confidential and non-discoverable,
and she moves to quash the subpoena. For the following reasons, the motion is DENIED.
Plaintiff is suing Defendants alleging, among other things, that she suffers from an
autoimmune hepatitis caused by exposure to TCE released from FAG Bearings’ manufacturing
plant in Joplin, Missouri. Plaintiff’s own expert acknowledges that the origin of Plaintiff’s
The Court refers to Plaintiff and Mrs. Kirk together as “Movants.”
autoimmune illness may be genetic, and the record indicates that Plaintiff’s mother, Mrs. Kirk,
suffers from at least one autoimmune illness. Defendants seek to review Mrs. Kirk’s medical
records related to autoimmune illness to explore whether the cause of Plaintiff’s autoimmune
hepatitis might be genetic.
Plaintiff’s counsel had previously represented to Defendants that they also represented
Mrs. Kirk, and Defendants should contact Mrs. Kirk through Plaintiff’s counsel. Accordingly,
Defendants asked Plaintiff’s counsel to provide them with additional information about Mrs.
Kirk’s autoimmune illness. In response, Plaintiff’s counsel stated that they did not represent
Mrs. Kirk in connection with a request for records or a subpoena.
Consequently, on March 1, 2014, Defendants served Mrs. Kirk with a subpoena which
requested both her personal appearance at a deposition and the production of “all documents and
communications reflecting the identity of any Medical Provider who provided any treatment to
you for any autoimmune illness or disorder, including but not limited to Graves Disease.” The
subpoena limited the request to records relating to autoimmune illnesses. Defense counsel also
wrote to Mrs. Kirk’s current counsel explaining the relevance of these medical records and
offering to discuss reasonable steps to safeguard Mrs. Kirk’s privacy.
In response, Mrs. Kirk filed the pending motion to quash.
Defendants do not currently know which medical providers diagnosed or treated Mrs.
Kirk for her autoimmune illness. Defendants worded the subpoena to identify those medical
providers so they could serve them with subpoenas, as required by Missouri law, to obtain Mrs.
Kirk’s medical records related to her autoimmune illness.
Federal Rule of Civil Procedure 45(d)(3)(A)(iii) provides that the district court issuing a
subpoena must quash or modify a subpoena if the subpoena requires the disclosure of privileged
or other protected matter and no exception or waiver applies. Because this is a diversity action,
Missouri state law provides the applicable rule on evidentiary privileges. Simon v. G.D. Searle
& Co., 816 F.2d 397, 402 (8th Cir. 1987). Although third-party medical records are privileged
under Missouri law, their discovery is permitted under certain circumstances. See State ex rel.
Wilfong v. Schaeperkoetter, 933 S.W.2d 407, 409 (Mo. 1996) (Benton, J.). Under Missouri law,
a judge may order discovery of an otherwise privileged third-party’s medical records if (1) the
records are relevant to a claim at issue, and (2) adequate safeguards are provided to protect the
third-party as much as possible. Id. at 410. While the caselaw does not explicitly require a
litigant seeking a third-party’s medical records to meet a heightened standard of relevance, in
practice, courts deny access to such records unless the litigant demonstrates the subpoena is
reasonably likely to lead to the discovery of admissible evidence on this issue. See, e.g., id.;
State ex. rel. Allison v. Mouton, 278 S.W.3d 737, 741-42 (Mo. Ct. App. 2009). Finally, “[t]he
only proper procedure to compel discovery of such records is by subpoena duces tecum.” State
ex rel. Wilfong, 933 S.W.2d at 408. 2
While Movants characterize Missouri’s physician-patient privilege as absolute, applying in every situation, and
dissolvable only upon waiver, State ex rel. Wilfong emphasizes that “[t]he circumstances, facts and interests of
justice determine the applicability of the physician-patient privilege to a particular situation.” 933 S.W.2d at 409.
The records are relevant to an important claim at issue, and the subpoena is
reasonably likely to lead to the discovery of admissible evidence on this claim.
Here, the information sought by Defendants is directly relevant to a crucial issue in this
case, namely whether TCE caused Plaintiff’s autoimmune hepatitis. If the origin of Plaintiff’s
autoimmune hepatitis is genetic, then Defendants did not cause her illness.
Defendants have also demonstrated that the subpoena is reasonably likely to lead to the
discovery of admissible evidence on this issue.
They have placed evidence in the record
indicating that Plaintiff’s mother suffers from at least one autoimmune illness, Graves’ Disease.
One of Plaintiff’s doctors, a treating pediatric gastroenterologist, wrote a letter alluding to the
fact that Plaintiff’s mother had recently experienced the onset of Graves’ Disease (Doc. 38-7 at
2). Plaintiff’s own expert testified at his deposition that Graves’ Disease is an autoimmune
illness, and that “[a]utoimmune illnesses certainly can have a genetic basis, so, therefore, it
would be important to know about a patient’s family history of autoimmune illnesses if they also
have an autoimmune illness” (Doc. 38-8 at 5). 3
Movants do not acknowledge or discuss this evidence. Instead, they simply deny that the
records are relevant, and they dismiss as a “mere defense theory” the possibility that genetic
factors, and not Defendants’ actions, are responsible for Plaintiff’s autoimmune hepatitis (Doc.
45 at 4). Although State ex. rel. Wilfong clearly controls, Movants make no attempt to argue the
subpoena should not be issued under Wilfong.
Other evidence in the record confirms that this is a legitimate line of inquiry. For example, a water sample taken
from Plaintiff’s family’s well in December 1991 and tested by the Environmental Protection Agency detected no
TCE in the water (Doc. 48-2). This result is consistent with Defendants’ theory that Plaintiff’s autoimmune hepatitis
was more likely the result of genetic factors than exposure to TCE. If Plaintiff was never exposed to TCE, then her
illness must have been caused by something else, e.g., genetic factors.
The Court finds no merit to these arguments. To begin, the fact that Defendants are
seeking discovery on a theory of defense is irrelevant. Plaintiff’s allegation that exposure to
TCE caused her to develop autoimmune hepatitis is also only a “theory,” namely Plaintiff’s
theory of liability. The Federal Rules of Civil Procedure do not provide different discovery rules
for defendants’ theories and for plaintiffs’ theories. Rather, the primary purpose of discovery is
to allow both parties access to the facts behind the allegations. See Daniels v. City of Sioux City,
294 F.R.D. 590, 512 (N.D. Iowa 2013) (observing the purpose of discovery is to allow access to
the information essential to litigation of the facts behind discovery, to eliminate surprise, and to
promote settlement). Consequently, the fact that Defendants are seeking discovery on one of
their theories of defense is no more remarkable than the fact that Plaintiff is pursuing discovery
on her theories of liability, and it provides no basis for quashing the subpoena.
What Movants apparently meant to argue or are attempting to argue is that Defendant’s
theory is based on nothing more than speculation, and the Court should not permit discovery of a
third-party’s medical records based on speculation. The Court recognizes that Missouri law
extends a great deal of protection to third-party medical records, and it agrees that Missouri law
does not authorize a litigant to go on a “fishing expedition” through a third-party’s records. But
that is not what is happening here. Defendants’ request is clearly not the product of speculation
or wishful thinking. Defendants have placed facts on the record demonstrating that the subpoena
is reasonably likely to yield information that is directly relevant to an important issue in the case.
This differentiates this case from those cases where the litigant was denied access to the thirdparty’s medical records. See, e.g., State ex rel. Wilfong, 933 S.W.2d at 409-10 (noting the
plaintiff’s siblings medical records were irrelevant because there was no evidence that the
siblings suffered from similar genetic disorders). Consequently, the first prong of the analysis is
The subpoena provides adequate safeguards to protect Mrs. Kirk as much as
The second prong of the analysis considers whether the subpoena provides adequate
safeguards to protect the third-party as much as possible. Although Movants do not contest this
factor, the Court has conducted its own analysis of the subpoena and finds it provides adequate
safeguards for two reasons. First, the subpoena is narrowly written to discover only the identity
of medical providers who provided treatment to Mrs. Kirk for autoimmune illnesses or disorders,
including but not limited to Graves’ Disease. She does not have to disclose the identity of any
other medical providers. The Court cannot think of a more narrowly worded request. Second,
Defendants have also offered to take any reasonable steps, such as stipulating to a protective
order or submitting the records for an in camera review, to safeguard Mrs. Kirk’s medical
records. Defense counsel are officers of the court, and the Court sees no reason to question their
word. Consequently, the Court finds the subpoena protects Mrs. Kirk’s privacy as much as
possible while still allowing Defendants to investigate Plaintiff’s family medical history.
Because Defendants’ subpoena duces tecum meets the standard set out under Missouri
law to subpoena a third-party’s medical records, Movants’ motion (Doc. 34) is DENIED.
IT IS SO ORDERED.
June 20, 2014
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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