Williams et al v. Feeney et al

Filing 122

MEMORANDUM AND ORDER - Defendant Ranchero's motion (Filing No. 110 ) to compel discovery is granted. Plaintiff shall produce the documents in question on or before April 27, 2015. The defendants' joint motion (Filing No. 113 ) to continue trial is denied. Ordered by Senior Judge Lyle E. Strom. (GJG)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
HOPE K. WILLIAMS as
Independent Administrator of
the Estate of her Father,
OLIN B. KICKLIGHTER, JR.,

)
)
)
)
)
Plaintiff,
)
)
v.
)
)
MARTIN FEENEY, Individually
)
and FEENEY XPRESS TRANSPORT; )
BARY FRANKLIN, individually, )
and RANCHERO, LLC,
)
)
Defendants.
)
______________________________)

8:13CV287

MEMORANDUM AND ORDER

This matter comes before the Court on two related
motions.

First, defendant Rachero L.L.C. (“Ranchero”) filed a

motion (Filing No. 110) to compel discovery of mental health
records belonging to the decedent, Olin Kicklighter
(“Kicklighter”).

Second, all defendants, Ranchero, Feeney Xpress

Transport, Inc. (“Xpress”), Martin Feeney (“Feeney”), and Bary
Franklin (“Franklin”), move (Filing No. 113) to continue the
trial in this matter for six months.
I.

The Court finds as follows.

BACKGROUND
Plaintiff, Hope Williams (“Williams”), is the

independent administrator of Kicklighter’s estate.

Kicklighter

died as a result of a multi-vehicle collision involving Franklin

and Feeney late in the evening of December 8, 2011.

These

motions center around Kicklighter’s medical records.
Kicklighter was a veteran and received health care
treatment at the Sacramento Veteran’s Administration Medical
Center (“the VA”) in California.

Around August 27, 2014, the

defendants served a notice of intent to subpoena the VA for the
production of Kicklighter’s medical records.

After plaintiff’s

counsel waived any objection, defendants served the subpoena on
the VA September 2, 2014.
without written consent.

The VA refused to divulge the records
Two months later, Williams authorized

records from May 1, 2005, through December 31, 2014, and
expressly limited consent to exclude psychiatric records.
The records arrived from the VA on February 9, 2015,
and included fifteen pages of psychiatric records, contrary to
the consent waiver.

Ultimately, the parties resolved the dispute

concerning those pages, and they were destroyed.
In the interim, the defendants received discovery from
another collision Kicklighter had in Alabama.

The Alabama

Uniform Traffic Crash Report indicated that on June 5, 2010,
eighteen months prior to his fatal collision in Nebraska,
Kicklighter saw ghosts on the highway.

These ghosts directed

Kicklighter to stop his vehicle and drive in reverse on the
highway.

Kicklighter complied with the apparitions and caused a
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collision.

The defendants, wishing to pursue concerns involving

Kicklighter’s mental health, seek to obtain Kicklighter’s VA
mental health records.

The defendants also seek a six-month

extension of the trial date.
Plaintiff’s counsel objected to the production of all
records in his “possession, custody or control, which deal in any
way with the health, whether mental or physical, of Olin B.
Kicklighter, Jr.” (Filing No. 111-1, at 101).

Specifically,

counsel objected that the request was overly broad, vague,
ambiguous, substantively irrelevant, temporally irrelevant, and
protected under the psychotherapist-patient privilege.
II.

LEGAL STANDARDS
In her objections, the plaintiff cites a recent

District of Nebraska case.

Filing No. 111-1, at 101 (citing

Gering v. Duetsch, No. 7:13CV5009, 2014 WL 7331824 (D. Neb. Dec.
19, 2014)).

The following excerpt discusses the legal standards

for discovery:
Parties may obtain discovery
regarding any nonprivileged matter
that is relevant to any party's
claim or defense. Broad discovery
is an important tool for the
litigant, and so relevant
information need not be admissible
at the trial if the discovery
appears reasonably calculated to
lead to the discovery of admissible
evidence. Accordingly, relevant
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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. However, the
proponent of discovery must make
some 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. 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). . . .
Id. at *4 (internal citations and quotations omitted).

The Court

then went on to discuss the physician-patient privilege as
follows:
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.
However, there is no privilege
under this rule as to
communications relevant to an issue
of the physical, mental, or
emotional condition of the patient
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in any proceeding in which he or
she relies upon the condition as an
element of his or her claim or
defense. 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.
Courts treat the physician-patient
privilege and its exception similar
to the analysis of a court-ordered
mental evaluation under Rule 35.
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.
Similarly, courts outside of
Nebraska have held “garden-variety”
or generic claims for emotional
distress damages do not implicate a
waiver of the privilege. Gardenvariety 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. 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

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emotional distress, physical
symptoms, or expert testimony.
Id. at *5-6 (internal citations and quotations omitted).
Defendants bear the burden to establish the requested materials
are relevant.

Williams, as the party asserting the privilege,

bears the burden to show that the documents being sought are
privileged, if relevant.

Schropp Indus., Inc. v. Washington

Cnty. Att’y's Office, 281 Neb. 152, 167, 794 N.W.2d 685, 687
(2011).
III. ANALYSIS
The Court cannot analyze the admissibility of the VA
mental records.

Williams argues the VA mental records are not

admissible at trial and therefore irrelevant.
8-9.

Filing No. 120 at

The Court is unable to determine the admissibility issues

with the VA mental records because it is not privy to the
contents of those records.
A.

RELEVANCE
The first issue is whether the defendants have made a

threshold showing that the VA mental records include “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.”
No. 7:13CV5009, at *4.

The parties have not disclosed the

specific contents of the VA mental health records.

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Gering,

On June 5, 2010, Kicklighter had driven backwards on a
highway because ghosts told him to do so.

The factual basis of

this case involves an accident, just over eighteen months later,
on a highway where Kicklighter was the front driver.

The VA

mental records in question span from May 1, 2005, through
December 31, 2014.

The parties do not dispute the relevancy of

this time period because the parties agreed the VA should supply
records for that time, and those dates span the two accidents.
The VA mental records could, at least, speak directly to the
defendants’ affirmative defense of contributory negligence.

The

Court finds the defendants sustained their burden that the VA
mental records include “any matter that bears on . . . any issue
that is . . . in the case.”
B.

Fed. R. Civ. P. 26(b)(1).

FEDERAL RULE OF CIVIL PROCEDURE 26
Williams also has the burden to establish that the

requested discovery does not come within the scope of relevance
as defined under Rule 26(b)(1).

Gering, No. 7:13CV5009, at *4.

Federal Rule of Civil Procedure 26(b)(1) cross cites to Federal
Rule of Civil Procedure 26(b)(2)(C).

Fed. R. Civ. P. 26(b)(1).

Rule 26(b)(2)(C) reads as follows:
On motion . . . the court must
limit the frequency or extent of
discovery otherwise allowed by
these rules or by local rule if it
determines that:
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(i) the discovery sought is
unreasonably cumulative or
duplicative, or can be obtained
from some other source that is more
convenient, less burdensome, or
less expensive;
(ii) the party seeking discovery
has had ample opportunity to obtain
the information by discovery in the
action; or
(iii) 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).
Williams argues the defendants have had ample time to
obtain the VA mental health records, which Ranchero first
requested in February 2015.

Filing No. 20, at 22.

She also

argues that the defendants have offered no explanation for their
failure to request such documents.

The Court does not agree.

The defendants first asked for Kicklight’s medical records as
early as July 14, 2014.

Filing No. 121-1, at 2.

Sometime after

that request, Williams submitted information regarding
Kicklighter’s 2010 collision.

On February 9, 2015, the

defendants received copies of the VA records.

The defendants

fought to maintain all of the documents, but ultimately destroyed
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fifteen pages thereof.

Ranchero now makes the current request.

The Court finds that the defendants lacked ample time to obtain
the documents and did not know of the existence of such documents
until recently.
Next, Williams argues that the burden and cost of
supplying the discovery outweighs the probative value.
No. 120, at 22.

Filing

Williams argues that Kicklighter’s mental health

will not become an issue at trial.

Williams argues that the

Court will exclude the evidence, so the cost and burden outweigh
its value.

The cost and burden of providing the information does

not outweigh the potential relevance of this discovery.
C.

FEDERAL IMMUNITY
The Court must also determine whether Nebraska or

federal law applies.

Williams originally argued for the

application of the psychotherapist-patient federal privilege.
According to Federal Rule of Evidence 501, however, state law
governs privilege regarding a “claim or defense for which state
law supplies the rule of decision.”

Fed. R. Evid. 501.

law controls the decision in this case.

Nebraska

See Advisory Committee

cmts. to Fed. R. Evid. 501.
D.

NEBRASKA PRIVILEGE
Here, the Court examines whether Nebraska privilege

prohibits the discovery of the VA mental health records, and in
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so doing, the Court analyzes whether Williams pled a “gardenvariety” mental health claim, whether the claim placed
Kicklighter’s mental health at issue, and whether the Nebraska
jury instructions require physical or mental health evidence.
The issue is whether Kicklighter’s mental health
condition is “an element of [Wiliiams’] claim or defense. . . .”
Neb. Rev. Stat. § 27-504(4)(b).

Generally, Nebraska’s physician-

patient privilege gives patients, or their personal
representative if the patient is deceased, the right to refuse to
disclose “confidential communications made during counseling
between himself . . . [and his] professional counselor. . . .”
Id.

The defendants rely on the following exception to this rule:
There 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 or, 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.

Neb. Rev. Stat. § 27-504(4)(c).

Williams bears the burden to

prove that the VA mental records are protected.

See Schropp

Indus., Inc. v. Washington Cnty. Att’y's Office, 281 Neb. 152,
794 N.W.2d 685 (2011).

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It is clear that when the plaintiff pleads emotional
distress, it is a “garden-variety” claim that does not constitute
a waiver of the privilege by the plaintiff.
7:13CV5009, at *6.

Gering, No.

Williams wants to establish that her claim

does not rise to the necessary level to waive the privilege.
However, if the patient is deceased, the privilege is waived when
either party relies upon the mental condition of the decedent in
a claim or defense.

This is important because Williams relies

exclusively upon cases wherein the plaintiff is not deceased and
those cases require the living plaintiff put her own mental state
in question.

See Filing No. 120, at 11-12 (citing Huber v.

Rohrig, 791 N.W.2d 590, 604 (Neb. 2010), Gering, No. 7:13CV5009,
2014 WL 7331824; cf. Garvin v. Coover, 202 Neb. 582, 276 N.W.2d
225 (1979) (no argument of mental illness), Rhein v. Caterpillar
Tractor Co., 314 N.W.2d 19 (Neb. 1982) (no mention of privilege
or mental state), Kroeger v. Safranek, 165 N.W.2d 221 (Neb. 1957)
(predating the privilege statute).
Conversely, the defendants attest that they believe
that the VA mental health records are necessary because they wish
to offer that evidence to substantiate their burden of proof for
their affirmative defense of contributory negligence.

Because

Kicklighter is deceased and the defendants assert the affirmative
defense of contributory negligence due to Kicklighter’s mental
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health and car accident history, the Court finds that the
defendants have sufficiently met the exception of the physicianpatient privilege to warrant discovery of the VA mental records.
See Neb. Rev. Stat. § 27-504(4)(c).
E.

CALIFORNIA CONSTITUTION
Under the California Constitution, citizens have an

inalienable right to privacy that can only be overcome when a
party seeking medical records shows the information sought is
will be “directly relevant to the claim or defense.”

Harris v.

Superior Ct., 3 Cal. App. 4th 661, 665 (2d Dist. 1992).

The

Court finds that the VA mental records will be relevant to the
defendants’ defense.
IV.

CONCLUSION
The Court will grant the defendants’ motion.

The VA

mental records are relevant to whether Kicklighter was a
competent driver, particularly in light of the 2010 Alabama
traffic incident.

The records may offer information as to

Kicklighter’s medications and fitness on the day of the accident.
The scope of this order does not determine whether the VA mental
records will be admissible at trial.

The facts before the Court

are sufficient to determine that the VA mental records are
discoverable.

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The production of the fifteen pages of documents should
not hinder the progression of this case.

The motion to continue

the trial will be denied.
IT IS ORDERED:
1) Defendant Ranchero’s motion (Filing No. 110) to
compel discovery is granted.

Plaintiff shall produce the

documents in question on or before April 27, 2015.
2) The defendants’ joint motion (Filing No. 113) to
continue trial is denied.
DATED this 22nd day of April, 2015.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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