Gering v. Deutsche

Filing 68

ORDER - IT IS ORDERED: The defendant's Motion to Resolve Plaintiff's Objection to Defendant's Subpoena (Filing No. 55 ) is granted. The court sustains the plaintiffs' objections for the reasons stated above. The defendant's Motion to Strike Plaintiff's Evidence (Filing No. 65 ) is denied. Ordered by Magistrate Judge Thomas D. Thalken. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JENNIFER GERING, individually
and as the parent and natural
guardian of BRAXTYN HESPE,
DYLAN GERING, and
TREVYN GERING,

7:13CV5009
ORDER

Plaintiffs,
vs.
DANNY DEUTSCH, d/b/a
DEUTSCH TRUCKING,
Defendant.
This matter is before the court on the defendant’s Motion to Resolve Plaintiff’s
Objection to Defendant’s Subpoena (Filing No. 55). The defendant filed a brief (Filing
No. 56) and an index of evidence (Filing No. 57) in support of the motion. The plaintiffs
filed a brief (Filing No. 60) in response. The defendant filed a brief (Filing No. 61) and
an index of evidence (Filing Nos. 62-63) in reply. After the defendant filed his reply, the
plaintiffs filed an additional index of evidence (Filing No. 64). The defendant then filed a
Motion to Strike Plaintiff’s Evidence (Filing No. 65).

BACKGROUND
This case arises from the collision of a four-door sedan and a semi-truck on
November 10, 2010, on eastbound Highway 20 between Crawford and Chadron,
Nebraska. See Filing No. 1 - Complaint ¶¶ 6-8. The plaintiff Jennifer Gering (Gering)
was driving the sedan with her three children, ages 10, 12, and 16, in the front and back
seats. Id. ¶ 6. Gering alleges the defendant driver of the semi-truck was “tailgating” for
approximately eleven miles and struck her vehicle when she slowed to accommodate a
turning vehicle. Id. ¶¶ 7-8. The collision caused the sedan to move eighty-six feet and
broke the driver’s seat. Id. ¶ 8. The complaint alleges Gering and the children suffered
injuries caused by the defendant’s negligence. Id. ¶¶ 8-12. Specifically, Gering
suffered serious injuries and has sustained damages,
including but not limited to:
a.
Temporary and permanent injuries to her back, left
and right shoulders, neck, arms, elbows and nerves;

b.
Hospital, doctor, medical, and related expenses in the
minimum amount of $112,250.00 which are reasonabl[y]
expected to continue in the future;
c.
A loss of earnings in the minimum amount of
$3,400.00; an expected future loss of earnings, as well as a
loss of earning capacity;
d.
Loss of opportunities and enjoyment of life since the
accident, and she will continue to suffer such losses in the
future;
e.
Physical pain and mental anguish, and she will
continue to suffer physical pain and mental anguish in the
future.
Id. ¶ 10. Separately, the plaintiffs’ counsel wrote in a letter that the “collision resulted in
physical and emotional damages,” to Gering who was “plagued with thoughts of what
might have been,” and she suffered “flashbacks” and “many signs and symptoms of
post traumatic stress.” See Filing No. 49-1 May 7, 2013, Letter p. 6-8.
On April 4, 2014, the court entered the final progression order setting discovery
and other deadlines, including trial. See Filing No. 23. As part of the order, the court
set October 1, 2014, for discovery motions “as to matters which are then ripe for
decision.” Id. ¶ 2(c). On May 1, 2014, the defendant filed and served notice of intent to
serve subpoenas duces tecum on Valley Hope Drug Rehab Centers (Valley Hope) and
Western Nebraska Behavioral Health, among others. See Filing No. 27. On May 5,
2014, the defendant received the plaintiffs’ objections to such subpoenas. See Filing
No. 57-1 p. 9 Ex. B. The plaintiffs objected to issuance of the subpoenas due to their
requests for “psychological records of any kind,” arguing Gering did not place her
mental condition at issue in this matter.

Id. at 1.

The plaintiffs also argued the

requested information is subject to privilege, fails to incorporate a reasonable temporal
limit, and improperly includes irrelevant billing records. Id. at 1-2.
The defendant filed the instant motion on November 26, 2014. See Filing No. 55.
The defendant seeks judicial review of the plaintiffs’ objections to issuance of the
subpoenas for Valley Hope and Western Nebraska Behavioral Health, pursuant to
Nebraska Civil Rule 45.1(b). Id. The defendant argues the plaintiffs placed Gering’s
physical, mental, and emotional health at issue based on the plain language in the
complaint and the content of counsel’s May 7, 2013, Letter. Id. at 2-3. Additionally, the
defendant states the records already obtained indicate Gering likely suffers physical,
mental, and emotional health issues stemming from sources other than the November
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10, 2010, collision. Id. at 3. The defendant argues he is entitled to discovery from
Gering’s mental health providers under the subpoenas to determine the causes of
Gering’s injuries because it is “reasonable to assume that [Gering] would have
discussed . . . her physical and emotional injuries . . . with her mental health providers.”
Id.
The plaintiffs oppose issuance of the subpoenas. See Filing No. 60 - Brief. The
plaintiffs assert the defendant’s motion is not ripe for determination because the
defendant failed to comply with federal statutes requiring the defendant to provide the
subject record holders appropriate notice or an opportunity for hearing.

Id. at 3-5.

Moreover, the plaintiffs contend Gering has not placed her mental health at issue and
insufficient justification exists to allow the requested discovery, especially given the
voluminous and comprehensive medical records already produced. Id. at 5-11. Finally,
Gering asserts she has never been a patient at Western Nebraska Behavioral Health.
Id. at 3.
The defendant denies the applicability of the federal statutes and regulations
cited by the plaintiffs, but would agree to any additional process or confidentiality
protections necessary. See Filing No. 61 - Reply p. 2-5. The defendant denies the
sufficiency of previous document production and contends “the best place to look for
further evidence of [physical or substance abuse] would logically be [Gering’s] mental
health and substance abuse records, because one would assume that she would be
more forthcoming with these medical providers regarding the true cause of her injuries.”
Id. at 7. The defendant suggests, despite Gering’s denial, that records from Western
Nebraska Behavioral Health must exist because another medical record states, Gering
would be “set up with Dr. Cate Hazeldine’s Group,” which group appears to the
defendant to be Western Nebraska Behavioral Health because the doctor is listed as a
provider at Western Nebraska Behavioral Health. Id. at 5-6 (citing Filing No. 62 Pemberton Aff. ¶¶ 5-6 and attached Exs. A and B). The defendant argues if no records
exist, then the plaintiffs “should not oppose . . . so strenuously.” Id. at 6.
The plaintiffs’ post-briefing index of evidence contains a December 10, 2014,
letter from Dr. Jones-Hazledine from Western Nebraska Behavioral Health stating, “We
have received a release of information for records of one Jennifer Gering. We have no
such records, as Jennifer Gering is not a patient of this clinic.” See Filing No. 64 - Ex.
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1(A). Additionally, the plaintiffs filed a privacy policy posted by Valley Hope Association.
Id. Ex. 1(B). The defendant objects to the court’s reliance on this evidence, arguing the
plaintiffs were “sandbagging” by filing unsupported hearsay evidence outside the
standard briefing schedule without leave of court. See Filing No. 65. The defendant’s
motion to strike will be denied. While the evidence was filed outside the normal briefing
schedule, it was filed in direct response to (and within one day of) the defendant’s reply
containing derisive comments noting a lack of such evidence.

Additionally, the

evidence is redundant of other statements made by the plaintiffs’ counsel and evidence
in the record.

ANALYSIS
As an initial matter, the plaintiffs contend the defendant’s motion is not ripe for
the court’s determination because the defendant failed to provide notice of the proposed
discovery requests to the non-parties. See Filing No. 60 - Brief p. 3-5. However, the
defendant’s pre-issuance notice to the plaintiffs, rather than the proposed non-parties, is
explicitly required under the court’s local rules. See NECivR 45.1. The rule allows time
for the adverse party to object, as was done in this case, before notice is given to the
proposed non-parties. Id. Under the local rules, the parties then have an opportunity to
resolve their discovery dispute “in accordance with NECivR 7.1,” without diminishing the
availability of objections allowed under the federal rules to the non-parties. Id.
Nevertheless, the defendant has failed to comply with Rule 7.1.
specifically, provides:
To curtail undue delay in the administration of justice, this
court only considers a discovery motion in which the moving
party, in the written motion, shows that after personal
consultation with opposing parties and sincere attempts to
resolve differences, the parties cannot reach an accord.
This showing must also state the date, time, and place of the
communications and the names of all participating persons.
“Personal
consultation”
means
person-to-person
conversation, either in person or on the telephone. An
exchange of letters, faxes, voice mail messages, or emails is
also personal consultation for purposes of this rule upon a
showing that person-to-person conversation was attempted
by the moving party and thwarted by the nonmoving party.
NECivR 7.1(i).
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The rule

The defendant fails to provide any showing the parties conferred prior to his filing
the instant discovery motion. The defendant indicates only that he supplied notice of his
intent to serve the proposed subpoenas for non-parties on May 1, 2014, and within five
days, the plaintiffs served objections to the notice of intent. See Filing No. 55 - Motion
p. 1. According to the parties’ filings, the defendant made no additional mention of
these proposed subpoenas until November 26, 2014. For this reason alone the court
may deny the defendant’s motion for failure to comply with Rule 7.1(i).
The defendant’s failure to confer also renders the defendant’s motion untimely.
The defendant filed the discovery motion on November 26, 2014, despite the court’s
April 4, 2014, order setting an October 1, 2014, deadline for discovery motions “as to
matters which are then ripe for decision.” See Filing No. 23 ¶ 2(c). The plaintiffs’
objections to the defendant’s proposed subpoenas were ripe in May. Although the
defendant relies, in part, on a May 7, 2013, letter filed by the plaintiff on October 28,
2014, the defendant fails to justify the delay in filing the current motion, without first
conferring with the plaintiffs’ counsel about the discovery dispute. See Filing No. 49-1
May 7, 2013, Letter; see generally Filing No. 55 - Motion.
Assuming the defendant had complied with the procedural prerequisites to his
motion, the court sustains the plaintiffs’ objections on their merits. A threshold level of
relevance is lacking with regard to either proposed non-party’s records.

Gering’s

counsel affirmatively stated Gering did not treat at Western Nebraska Behavioral
Health. See Filing No. 60 - Brief p. 3. The defendant confirmed Gering had never
disclosed treatment at such facility and the defendant only anticipated such treatment
based on a medical record indicating a plan to “set up” Gering with a particular doctor’s
group for counseling due to anxiety. See Filing No. 61 - Reply p. 5-6; Filing No. 62 Ex.
1(A). Subsequently, the plaintiffs provided verification from the non-party confirming no
records exist. See Filing No. 64 - Ex. 1(A). In consideration of the defendant’s failure to
sustain his burden of showing Western Nebraska Behavioral Health possesses
potentially relevant information, any request to subpoena records is denied. See Fed.
R. Civ. P. 26(b)(1).
The parties do not dispute whether Valley Hope possesses records associated
with Gering. The defendant contends the records are relevant because “it is reasonable
to assume [Gering] would have discussed . . . physical and emotional injuries [other
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than those caused by the November 10, 2010, collision] with her mental health
providers.” See Filing No. 55 - Motion p. 3. The defendant asserts Gering has placed
her physical and emotional health at issue in this case and, therefore, statements
Gering made to mental health providers may reveal physical and psychological injuries
unassociated with the November 10, 2010, collision, but for which Gering is seeking
compensation in this case. See Filing No. 56 - Brief p. 4-6. The defendant’s assertions
are based on other record evidence Gering sustained injuries from accidents related to
alcohol use and physical assaults. Id.
“Parties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). “Broad discovery is an
important tool for the litigant, and so ‘[r]elevant information need not be admissible at
the trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.’” WWP, Inc. v. Wounded Warriors Family Support, Inc., 628
F.3d 1032, 1039 (8th Cir. 2011) (alteration in original) (quoting Fed. R. Civ. P.
26(b)(1)). Accordingly, relevant information includes “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.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). “However,
the proponent of discovery must make ‘[s]ome threshold showing of relevance . . .
before parties are required to open wide the doors of discovery and to produce a variety
of information which does not reasonably bear upon the issues in the case.’” Prism
Tech., LLC v. Adobe Sys., Inc., 284 F.R.D. 448, 449 (D. Neb. 2012) (alterations in
original) (quoting Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992)).
Accordingly, once the requesting party meets the threshold relevance burden, “the party
resisting the discovery has the burden to establish that the requested discovery does
not come within the scope of relevance as defined under Rule 26(b)(1), or is of such
marginal relevance that the potential harm occasioned by the discovery would outweigh
the ordinary presumption in favor of broad disclosure.” Moses v. Halstead, 236 F.R.D.
667, 671 (D. Kan. 2006).
The court has authority to limit the scope of discovery. Roberts v. Shawnee
Mission Ford, Inc., 352 F.3d 358, 361 (8th Cir. 2003). The Federal Rules authorize the
court to limit discovery that is “unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less burdensome, or less
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expensive.” Fed. R. Civ. P. 26(b)(2)(C)(i). Moreover, the court may also limit discovery
after considering “the burden or expense of the proposed discovery outweighs its likely
benefit, considering the needs of the case, the amount in controversy, the parties’
resources, the importance of the issues at stake in the action, and the importance of the
discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii).
The plaintiffs’ objections indicate her reliance, in part, on a physician-patient
privilege shielding Valley Hope’s records from production.

See Filing No. 57-1 -

Objections p. 1-2. Under Nebraska statute:
A patient has a privilege 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 among himself or herself, his or her physician, or
persons who are participating in the diagnosis or treatment
under the direction of the physician, including members of
the patient’s family.
Neb. Rev. Stat. § 27-504(2)(a).
However, “[t]here is no privilege under this rule as to communications relevant to
an issue of the physical, mental, or emotional condition of the patient in any proceeding
in which he or she relies upon the condition as an element of his or her claim or
defense . . . .” Neb. Rev. Stat. § 27-504(4)(c). “The purpose behind the patient-litigant
exception to the physician-patient privilege is to prevent the patient from making his
condition an element of the dispute, and then invoke the privilege to prevent the
opposing party from ascertaining the true condition of the patient.”

Branch v.

Wilkinson, 256 N.W.2d 307, 315 (Neb. 1977) (“We do not believe that this exception
should be invoked where the patient merely denies allegations by the opposing party
concerning his condition [of intoxication].”).
Courts treat the physician-patient privilege and its exception similar to the
analysis of a court-ordered mental evaluation under Rule 35. See Fritsch v. City of
Chula Vista, 187 F.R.D. 614, 631-32 & n.5 (S.D. Cal. 1999) (discussing Jaffee v.
Redmond, 518 U.S. 1 (1996) and other courts’ treatment of comparative standards). In
Nebraska, “a routine allegation of negligence in a personal injury action does not put a
party’s mental condition ‘in controversy’ for purposes of the federal counterpart to our
Rule 35.” Huber v. Rohrig, 791 N.W.2d 590, 603 (Neb. 2010) (citing Schlagenhauf v.
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Holder, 379 U.S. 104, 117-18 (1964) (requiring “an affirmative showing . . . that each
condition as to which the examination is sought is really and genuinely in controversy
and that good cause exists for ordering each particular examination”).
Courts commonly conclude that plaintiffs can be ordered to
undergo mental condition examinations where one or more
of the following claims are present:
(1) a cause of action for intentional or negligent
infliction of emotional distress; (2) an allegation
of a specific mental or psychiatric injury or
disorder; (3) a claim of unusually severe
emotional distress; (4) plaintiff’s offer of expert
testimony to support a claim of emotional
distress; and/or (5) plaintiff’s concession that
his or her mental condition is in controversy
within the meaning of [Fed. R. Civ. P.] 35.
Huber, 791 N.W.2d at 603-04 (citation omitted).
Similarly, courts outside of Nebraska have held “garden-variety” or generic
claims for emotional distress damages do not implicate a waiver of the privilege. See
Kennedy v. Municipality of Anchorage, 305 P.3d 1284, 1291-92 (Alaska 2013);
Johnson v. Trujillo, 977 P.2d 152 (Colo. 1999). “Garden-variety claims will typically
involve emotions rather than conditions. Limiting potential claims in this way ensures
that the alleged distress will fall within the common experience of jurors such that they
can readily understand the nature or severity of the emotional distress.” Kennedy, 305
P.3d at 1292; see Johnson, 977 P.2d at 157 (noting no waiver “where the mental
suffering alleged does not exceed what an ordinary person would likely experience in
similar circumstances”). By contrast, “[a] claim is not a garden-variety anguish claim if it
involves a diagnosable mental disease or disorder, medical treatment or medication,
longstanding, severe, or permanent emotional distress, physical symptoms, or expert
testimony.” Kennedy, 305 P.3d at 1292.
The defendant contends the plaintiffs rely on Gering’s physical, mental, and
emotional conditions sufficiently to place them in controversy in this action, generally.
Additionally, the defendant contends the plaintiffs specifically place the conditions in
controversy in a manner to allow the defendant access to Valley Hope’s records. The
plaintiffs deny the type of claims asserted, primarily for physical injuries, put Gering’s
mental health in controversy. See Filing No. 60 - Brief p. 9-10. Although the plaintiffs
admit they seek non-economic damages, for general physical pain and mental suffering
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associated with the collision, the plaintiffs argue such pain and suffering does not rise to
the extent necessary to place Gering’s mental health in controversy or allow access to
Valley Hope’s records. Id. The plaintiffs focus on the language in their complaint,
rather than the statements made in the May 7, 2013, Letter. Moreover, the plaintiffs
emphasize they did not include separate claims for emotional distress. Id. at 11.
The plaintiffs’ complaint describes Gering’s damages in terms of “loss of
opportunities and enjoyment of life” and “mental anguish” now and in the future. See
Filing No. 1 - Complaint. The May 7, 2013, Letter, is not an operative pleading in this
matter. The May 7, 2013, Letter was a settlement demand letter sent to the defendant’s
insurance carrier. See Filing No. 50 - Brief p. 5; Filing No. 49 - Letter. The plaintiffs
filed the May 7, 2013, Letter in this case on October 28, 2014, in opposition to a motion
to extend time, to show the plaintiffs had previously made the defendant aware of
Gering’s intent to seek damages for loss of earning capacity. See Filing No. 50 - Brief
p. 5-6, 11-12 (noting the complaint’s explicit inclusion of a claim for loss of earning
capacity). Additionally, the plaintiffs referenced the May 7, 2013, Letter as an example
of notice of certain of Gering’s physical injuries. Id. at 9. The plaintiffs’ brief notes
Gering’s damages are:

“injuries to her neck, shoulders, back, arms, elbows, and

nerves.” See Filing No. 60 - Brief p. 9. The plaintiffs emphasize, Gering “has not
alleged any specific cause of action for intentional or negligent infliction of emotional
distress; a specific mental or psychiatric injury, or offered an expert who will testify in
support of a chief claim of emotional/psychiatric distress.” Id. The plaintiffs describe
their non-economic claims “[a]s in most car accident cases, [the plaintiffs] have suffered
pain and mental anguish flowing from their specific bodily injuries.” Id.
Based on the pleadings in this case and the plaintiffs’ representations to the court
about their claims, Gering’s claims are garden-variety mental anguish claims and do not
waive her physician-patient privilege. In any event, the defendant had sufficient other
means to conduct discovery about the plaintiffs’ physical injuries, such as depositions of
Gering, health care providers, and other witnesses.

Finally, the defendant fails to

sustain his burden of showing relevance of any statements Gering made to mental
health providers at Valley Hope regarding incidents and physical injuries predating and
distinct from the November 10, 2010, collision, particularly in light of Gering’s other
discoverable medical records related to her physical injuries. Upon consideration,
9

IT IS ORDERED:
1.

The defendant’s Motion to Resolve Plaintiff’s Objection to Defendant’s

Subpoena (Filing No. 55) is granted.
2.

The court sustains the plaintiffs’ objections for the reasons stated above.

3.

The defendant’s Motion to Strike Plaintiff’s Evidence (Filing No. 65) is

denied.
Dated this 19th day of December, 2014.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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