Kozlov v. Associated Wholesale Grocers, Inc. et al

Filing 283

ORDER - The Motion for Protective Order filed by Associated Wholesale Grocers, Inc. and Pamela Scott (Case No. 4:10-cv-03211, filing 267); Case No. 4:10-cv-03212, filing 270; Case No. 8:10-cv-03191, filing 286) is granted, in part, as set forth above. Member Cases: 4:10-cv-03211-LSC-FG3, 4:10-cv-03212-LSC-FG3, 8:10-cv-03191-LSC-FG3. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
IGOR KOZLOV,
Plaintiff,
vs.
ASSOCIATED WHOLESALE
GROCERS, INC., et al.,
Defendants.
ANDREI TCHIKOBAVA,
Plaintiff,
vs.
ASSOCIATED WHOLESALE
GROCERS, INC., et al.,
Defendants.

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PAMELA SCOTT, Personal
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Representative of the Estate of Michael )
E. Scott, Deceased,
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Plaintiff,
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vs.
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IGOR KOZLOV, ALBATROSS
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EXPRESS, LLC and UNICK, LLC,
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Defendants.
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4:10-cv-03211
ORDER

4:10-cv-03212

8:10-cv-03191

This matter is before the Court upon the Motion for Protective Order filed by
Associated Wholesale Grocers, Inc. (“AWG”) and Pamela Scott (“Ms. Scott”) (Case No.
4:10-cv-03211, filing 267); Case No. 4:10-cv-03212, filing 270; Case No. 8:10-cv-03191,

filing 286.) For the reasons explained below, the motion will be granted, in part.
BACKGROUND
These consolidated actions arise out of a motor-vehicle accident between a tractor
trailer driven by Michael Scott (“Mr. Scott”), deceased, and a tractor trailer driven by Igor
Kozlov (“Kozlov”). In his Complaint, Kozlov alleges that Mr. Scott acted negligently,
thereby causing the accident which resulted in injuries to Kozlov. AWG was Mr. Scott’s
employer at the time of the accident.
On June 17, 2014, Kozlov filed a Notice to Take Deposition of Dr. Bruce Williams
and Subpoena Duces Tecum. Dr. Williams was Mr. Scott’s primary care physician. The
Notice requests that Dr. Williams produce the following documents:
True, correct, and complete copies of all medical records of any kind,
including, but not limited to, medical reports, consultation reports, doctors’
notes, nurses’ notes, correspondence, and documentary material of any kind,
including but not limited to drug or alcohol records and health information
related to psychological or psychiatric conditions, including psychotherapy
notes, relating in any way to: Michael E. Scott.
(Case No. 4:10-cv-03211, filing 265.) On June 17, 2014, Kozlov also filed a Notice to Take
Videotaped Trial Deposition of P. Brent Koprivica, M.D. (Case No. 4:10-cv-03211, filing
264.) Dr. Koprivica had evaluated Mr. Scott in connection with a workers’ compensation
claim Mr. Scott filed following a motor vehicle accident which occurred in 1997.
AWG and Ms. Scott have moved for a protective order precluding Kozlov from
deposing Dr. Williams and Dr. Koprivica. With respect to Dr. Williams, AWG and Ms.
Scott request, in the alternative, that the scope of the deposition be limited to specific health
conditions of Mr. Scott and to a relevant time period.

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DISCUSSION
I.

Deposition of Dr. Williams

AWG and Ms. Scott contend that the Notice pertaining to Dr. Williams is overly
broad as it is not limited in time or scope. Kozlov maintains that discovery related to the
injuries that Mr. Scott sustained in the 1997 motor vehicle accident is relevant to Kozlov’s
claim that Mr. Scott’s negligence was the cause of the accident at issue. The Court
previously found that information related to the 1997 accident is relevant and could lead to
the discovery of admissible evidence. (Case No. 4:10-cv-03211, filing 183.) However, in
a separate order relating to issues pertaining to the 1997 accident, the Court found that
subpoenas containing identical language to that contained in the Notice involved here were
overly broad. (Case No. 4:10-cv-03211, filing 201.) Consistent with this prior ruling, the
Court concludes that the subject Notice is overly broad.
Kozlov, seemingly recognizing the Court’s prior orders, has now consented to limiting
the Notice as follows: (1) to the time of the 1997 accident until Mr. Scott’s death on August
9, 2010; and (2) to treatment for injuries sustained or related to the 1997 incident, or any
other condition that could impact Mr. Scott’s ability to competently drive commercially,
which includes any psychological or psychiatric conditions, or any issues relating to drug or
alcohol dependence or abuse, and/or any issues concerning fatigue. The Court finds this
proposed limitation reasonable.
In addition to arguing that the Notice is overly broad, AWG and Ms. Scott maintain
that the information sought is protected by the physician-patient privilege. This privilege
permits a patient, or his or her personal representative, to “refuse to disclose and to prevent
any other person from disclosing confidential communications made for the purposes of
diagnosis or treatment of his or her physical, mental, or emotional condition.” Neb. Rev.
Stat. § 27-504. There is no privilege under this rule, however, as to “communications
relevant to an issue of the physical, mental, or emotional condition of the patient . . . after the
patient’s death, in any proceeding in which any party relies upon the condition as an element
of his or her claim or defense.” Id.

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The Court is not convinced that the requested information is protected by the
physician-patient privilege. Mr. Scott’s medical condition appears relevant to the issues in
this lawsuit. Specifically, Kozlov maintains that the evidence shows that Mr. Scott may have
suffered from ongoing medical issues that compromised his ability to drive safely. Thus, Mr.
Scott’s medical condition is central to the claims and defenses of several parties.
Considering the above, the Court will limit the Notice as proposed by Kozlov.
Specifically, it will be limited (1) to the time of the 1997 accident until Mr. Scott’s death on
August 9, 2010; and (2) to treatment for injuries sustained or related to the 1997 incident, or
any other condition that could impact Mr. Scott’s ability to competently drive commercially,
which includes any psychological or psychiatric conditions, or any issues relating to drug or
alcohol dependence or abuse, and/or any issues concerning fatigue.
II.

Deposition of Dr. Koprivica

Following the 1997 accident, Mr. Scott pursued a workers’ compensation claim and,
during the course of his claim, was examined by Dr. Koprivica. Dr. Koprivica, who was not
Mr. Scott’s treating physician, issued a report on April 29, 1999, stating that Mr. Scott would
remain on Dilantin indefinitely. Mr. Scott starting taking the seizure medication Dilantin
following the 1997 accident. It is unknown when, or if, Mr. Scott stopped taking the
medication.
AWG and Scott claim that any information that could be obtained from Dr. Koprivica
is irrelevant because there is no evidence that connects the injuries suffered by Mr. Scott in
the 1997 accident to the accident involved in this litigation. The Court has previously
concluded that information pertaining to the 1997 accident is discoverable. In light of his
knowledge pertaining to the 1997 accident, Dr. Koprivica may have information relevant to
the issues involved in this case. Therefore, the Court will permit this deposition to go
forward.
Accordingly,
IT IS ORDERED that the Motion for Protective Order filed by Associated Wholesale
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Grocers, Inc. and Pamela Scott (Case No. 4:10-cv-03211, filing 267); Case No. 4:10-cv03212, filing 270; Case No. 8:10-cv-03191, filing 286) is granted, in part, as set forth above.
DATED July 7, 2014.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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