Wonch v. Meyer et al

Filing 30

MEMORANDUM AND ORDER regarding Motion 28 - 1) The plaintiff's objection, (Filing No. 27 ), is sustained and the defendant's motion, (Filing No. 28 ), is denied.2) On or before December 5, 2014, the plaintiff shall produce his medical records from Sidney Regional Medical Center and Banner Health for the last five years. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEREMY J. WONCH,
Plaintiff,

8:14CV166

vs.
MEMORANDUM AND ORDER
DEREK K. MEYER, Individually; and
NAVAJO EXPRESS, INC., a Colorado
Corporation;
Defendants.
The plaintiff’s complaint alleges he sustained injuries in a motor vehicle accident
caused by the defendant’s negligent, reckless, or willful conduct. (Filing No. 1). The
plaintiff requests damages to compensate him “for bodily injury and resulting pain and
suffering, disability, mental anguish, and/or loss of consortium. . . .” (Filing No. 1, at
CM/ECF p. 6). The defendant alleges the plaintiff’s injuries pre-existed the accident.
(Filing No. 14, at CM/ECF p. 2).

The defendant served a notice of its intent to serve a subpoena requiring Sidney
Regional Medical Center and Banner Health to produce:
All records of any nature whatsoever from any period of time whether
before or after the accident involved in this lawsuit, including all
correspondence, medical records, typed and handwritten notes and reports,
bills for services rendered, all items whatsoever, whether obtained by your
office or another, in the medical file of Jeremy J. Wonch . . .
(Filing No. 25). The plaintiff is 37 years old.

The plaintiff objects to the subpoena as overbroad and duplicative of the records
the plaintiff has offered to produce. (Filing No. 27). The defendant moves to overrule
that objection, stating the medical records are relevant to determining the nature and
extent of the plaintiff’s injuries arising from this accident, and that it is entitled to serve a

subpoena and collect the records itself rather than relying on the plaintiff’s production.
(Filing No. 28). The plaintiff argues the extent of records requested is harassing and
invades the plaintiff’s confidentiality by requiring disclosure of records for injuries and
illnesses that are not at issue in this case. (Filing No. 29).
Federal Rules of Civil Procedure 26 allows parties to obtain “discovery regarding
any nonprivileged matter that is relevant to any party's claim or defense. . . .” Fed. R. Civ.
P. 26(b)(1). But upon review of the record, the court finds nothing to indicate what type
of injury is at issue (e.g., head, back, neck, limb, etc), and the type of injury can impact
how many years of medical records, the source of records, and the type of records which
may be relevant.1 In addition, a claim of emotional distress does not necessarily waive
the physician- or psychologist-patient privilege as to all the plaintiff’ records. See, e.g.,
Heilman v. Waldron, 287 F.R.D. 467, 473 (D.Minn. 2012); Doe v. Presiding Bishop of
Church of Jesus Christ of Latter-Day Saints, 837 F.Supp.2d 1145 (D. Idaho 2011); St.
John v. Napolitano, 274 F.R.D. 12 (D.D.C. 2011). Finally, there is no showing that by
alleging physical and emotional distress injuries in the motor vehicle accident at issue the
plaintiff waived his privilege as to all medical records generated over the 37 years of his
life.

The plaintiff has agreed to provide the medical records for the past five years and
will be ordered to do so. While the defendant is not required to rely solely on the
plaintiff’s production, on the record currently before me I cannot ascertain whether and to
what degree additional time frames may be relevant to the claims or defenses alleged. In
the absence of that information, I cannot craft an appropriate limitations on the scope of
the defendant’s proposed subpoena.

1

Compare, e.g., records relevant to a claim that an arm was broken to those
claiming a blow to the head has impacted the plaintiff’s vision.
2

Accordingly,

IT IS ORDERED:
1)

The plaintiff’s objection, (Filing No. 27), is sustained and the defendant’s
motion, (Filing No. 28), is denied.

2)

On or before December 5, 2014, the plaintiff shall produce his medical
records from Sidney Regional Medical Center and Banner Health for the
last five years.

November 17, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of
Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.

3