Burke et al v. USF Reddaway, Inc.

Filing 82

ORDER re 49 MOTION to Quash and Production of Redacted Vazeen Records. Counsel for Defendant directed to produce redacted records in accordance with attached order. Counsel for Defendant shall contact Courtroom Administrator Katie Ogden (775-686-5758) to make arrangements to pick up records submitted in camera. Signed by Magistrate Judge William G. Cobb on 2/25/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES BURKE, an individual, by and
through his Guardian Ad Litem; ALYSSA
BURKE, an individual,

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Plaintiffs,
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vs.
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USF REDDAWAY INC., a corporation,
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Defendant.
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______________________________________)

3:13-cv-00017-LRH-WGC
ORDER
re: Motion to Quash (Doc. # 49)
and
Production of Redacted Vazeen Records

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Before the court is Defendant USF Reddaway’s Notice of Compliance. (Doc. # 81.) Defendant’s

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notice advises the court and counsel that a copy of Steve Kytle’s medical record from Dr. Mehdi Vazeen

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have been submitted to the court for in camera review as was required by this court’s order following

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the January 14, 2014, discovery conference. (Doc. # 71.)

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I. Background

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This lawsuit has arisen from a motor vehicle accident which occurred in Sparks, Nevada, on

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August 5, 2011. Plaintiff alleges that at approximately 9:00 p.m., Plaintiff James Burke (“Burke”) was

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walking across Greg Street at or near the intersection of 21st Street. As Burke crossed the center divider

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separating the eastbound and westbound traffic, he was struck by USF Reddaway’s (“Reddaway”)

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Freightliner truck with two attached 25 foot semi trailers. (Doc. #1 at 5-7).

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The Reddaway tractor-trailer was operated by its driver, Steve Kytle; Mr. Kytle is not a party to

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this litigation. (Doc. # 50 at 3.) Defendant alleges Burke was crossing Greg Street “in the middle of the

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street and at on unmarked and dark location without a designated crosswalk.” Defendant contends that

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after Burke was transported to the hospital, it was ascertained Plaintiff’s [his ?] blood alcohol level was

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at 0.230, “just short of three times the legal limit to drive in Nevada.” (Id.)

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Although the Reddaway driver (Mr. Kytle) was not named a defendant in this action, Reddaway

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admits Mr. Kytle was an agent or employee of Defendant. (Doc. # 6 at 3, ¶ 15.) Reddaway denies that

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either it or its agent Mr. Kytle was negligent, but that in any event, any negligence of Defendant was

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exceeded by that attributed to Plaintiff Burke, thereby precluding any recovery. (Id., at 5l ¶ 7.)

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During discovery conducted in this matter, an issue arose as to whether Mr. Kytle should have

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seen Burke when he (Burke) was crossing the street and whether his (Mr. Kytle’s) vision acuity played

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any role in not detecting the Plaintiff. It appears Mr. Kytle testified at deposition that at the time of the

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accident, he did not require corrective lenses to operate a commercial vehicle. He may have erroneously

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stated he was prescribed corrective lenses in January of 2012 (which would have been about five months

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after the accident), when he may actually have received that prescription in January of 2013. (Doc. # 50

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at 3; Doc. 41 at 23-26.)

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Because of this information, Plaintiff made a motion to extend discovery and expert disclosure

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deadlines. (Doc. # 41.) After hearing arguments of counsel, the court found there was good cause to

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extend the expert deadline with respect to a “vision” expert. (Doc. # 47 at 1.) The court allowed Plaintiff

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to re-depose Mr. Kytle as to any vision issues. The court also directed Defendant to provide Plaintiff

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Mr. Kytle’s most recent (post accident) Department of Transportation medical examinations and to file

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a notice of corrections as to Mr. Kytle’s previous deposition examination. (Id.)

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Thereafter, Plaintiff served subpoenas duces tecum on several of Mr. Kytle’s health care

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providers, to which Defendant filed motions to quash. (Doc. # 49, and # 60.)1 This present order pertains

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mainly to Plaintiff’s attempts to secure the records of Mehdi Vazeen, M.D., a medical provider (vision)

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who treated Mr. Kytle both before and after the accident. (Doc. # 49.)

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Defendant argued, inter alia, that since Mr. Kytle was not a party, his medical records were not

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discoverable. (Doc. # 50.) Defendant further argued that sufficient medical information regarding

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Doc. # 49 pertained to a subpoena of vision provider Mehdi Vazeen, M.D. Doc. # 60 pertained to subpoenas issued
to providers Mark Mannis, M.D., and Lenscrafters. The Defendant’s motion to quash as to Doc. # 60 was granted as to the
records Plaintiff sought to obtain from Lenscrafters and Dr. Mannis. (Doc. # 71 at 2.)

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Mr. Kytle’s health, including his vision records, have been produced, including his 2011 (pre-accident)

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and 2012 (post-accident) Department of Transportation physicals. Defendant stated “Mr. Kytle had

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simply mis-testified regarding the precise dates during his deposition.” (Doc # 50 at 3-4.)

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Plaintiff opposed the motion to quash the subpoena duces tecum. Plaintiff’s argument as to the
subpoenas regarding the vision providers was stated as follows:

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Moreover, discovery has also revealed issues regarding the credibility of
Mr. Kytle’s testimony about his vision. He previously made contradictory
statements about when he was first prescribed glasses (Ex. 2, “E-Mail re
Depo. Errors.”) He has now made specific claims about being prescribed
glasses and obtaining those glasses on a single day during a break in his
annual Department of Transportation (DOT) eye evaluation. (Ex. 2,
p. 205; Ex. 8, “DOT Exam 2013.”) This claim appears on its face to
strain credulity, but can easily be substantiated or contradicted by the
records Plaintiff has subpoenaed. And Mr. Kytle’s credibility regarding
what he saw at the time of the collision was already in question based
on the various accounts he has given. (Ex. 3, “Traffic Incident Report
[Redacted],” pp. 19, 28; Ex. 4, “1st Kytle Depo.,” pp. 131-36.)
Plaintiff simply seeks the truth regarding the critical issue of Mr. Kytle’s
vision–which was precisely the point of the Court’s order under which
this discovery is being conducted. The Court specifically extended
discovery to permit a further deposition of Mr. Kytle regarding his vision,
and explicitly permitted inquiry into “the identity of any health care
providers who examined him for matters relating to his vision and the
nature of the treatment he was provided.” (Doc. # 45, 3:27-4:4.) The
Court also extended the discovery deadline to January 8, 2014. (Id. 4:1012.) The Court, therefore, clearly intended Plaintiff to learn the identities
of Mr. Kytle’s eye care treaters, the nature of the treatment, and have time
to obtain their records.
(Doc. # 57 at 2:20-3:12.)
Additionally, Plaintiff referenced a more specific pre-accident vision issue pertaining to
Mr. Kyle, i.e., a diagnosis of “Fuchs’ dystrophy”:
These records are of particular relevance given the newly revealed
information, including a diagnosis of Fuchs’ dystrophy, disclosed by
Mr. Kytle at his deposition. (Ex. 1, pp. 189-90, 193.) Fuchs’ dystrophy is
“a disease of the cornea which is known to reduce contrast sensitivity and
to produce problems with night driving.” (Ex. 5, “Post Expert Rpt.,” p.
2.) Plaintiff’s visual perception expert, Dr Post has opined that the
condition may well have impacted Mr. Kytle’s ability to perceive
Mr. Burke if the condition existed at the time of the collision. (Id.) The
only way this can be determined is through the records subpoenaed.
Moreover, Mr. Kytle’s annual DOT eye examinations were not conducted
by a certified medical examiner or licensed optometrist, as required by
DOT regulations. 49 C.F.R. §§ 390.5, 391.43 (a)-(b); (Ex. 6, “Patin
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Depo.,” pp. 20-21, 23-24, 38-40; Ex. 9, “Meyer Depo.,” pp. 23-25).
Indeed the 20/40 right-eye vision recorded for Mr. Kytle in his 2011 DOT
exam prior to the collision would be borderline not only under both DOT
standards but also under Nevada’s vision screening standards for noncommercial drivers, even without a progressive eye disease such as
Fuchs’ dystrophy. 49 C.F.R. § 291.40(b)(10); Nev. Admin Code
§483.340; (Id.; Ex. 7, DOT Rpts.,” p. 000646).

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(Id., at 3:23-4:13.)

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Defendant replied to Plaintiff’s arguments, contending the vision issue is a “red-herring” because

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Mr. Kytle’s pre and post accident DOT examinations indicated he “was qualified to drive without any

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restriction on his vision.” (Doc. # 59 at 2, 3; footnote omitted.)2

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The court conducted an expedited hearing on Defendants’ motions to quash subpoenas on

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January 14, 2014. (Doc. # 71.) The court quashed the Plaintiff’s subpoenas served on two of Mr. Kytle’s

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vision providers, Lenscrafters and Dr. Mark Mannis, because Mr. Kytle had not consulted either of these

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providers until approximately one and one half years after the subject incident. (Doc. # 50 at 2; Doc. # 71

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at 2.)

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However, as to vision care which preceded the accident and any pre-accident treatment for a
vision condition known as “Fuchs’ dystrophy,” the court ordered:

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To the extent Plaintiff is seeking information relating to any treatment
Mr. Kytle had concerning eye care, this information shall be produced
and defendants’s motion to quash is denied. However, the medical
records produced by Dr. Vazeen shall be submitted for an in camera
review by the court. Defense counsel shall secure a medical authorization
from Mr. Kytle and secure the records from Dr. Mehdi Vazeen. A
complete record shall be produced to the court. Defense counsel shall
bates stamp the records prior to hand delivering them in a sealed envelope
to chambers. Defense counsel are instructed to file a notice with the court
once they have produced the documents for the in camera inspection.

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The court will determine what documents are appropriate to produce to
plaintiff and whether redaction(s) are necessary. If the court finds it
necessary to schedule a hearing regarding the records, the court will
schedule a date and time that is convenient for all parties. The court

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Defendant again disputed whether there has been an express or implied waiver by Mr. Kytle of the patientphysician privilege. (Doc. # 59 at 3–5); see also Doc. # 50 at 5-8.) This court did not specifically rule on the issue of whether
there had been a waiver of the privilege. (Doc. # 74 at 53-56.) Although Mr Kytle is not a party defendant, nevertheless
Reddaway is vicariously liable for any negligence, if any there is, attributable to its driver Steve Kytle. (Doc. #6.) Thus, the
court determines there is certain relevance from the standpoint of discoverability with regard to his visual acuity as may be
addressed in his vision records.

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notes, depending upon the outcome of the in camera review of the
records, the discovery deadlines (Doc. # 40) may need to be revised;
which again the court will address at a later time if necessary.
(Doc. # 71 at 2.)

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The court limited the examination of Dr. Vazeen’s records to any “vision issues for which

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[Mr. Kytle] was treated.” (Doc. # 74 at 57.) However, as noted above, this court acquiesced in the

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request of Defendant’s counsel that the court first undertake an in camera inspection before Dr. Vazeen’s

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records are produced in this matter.

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II. In Camera Review

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Defendant’s counsel has submitted documents bates stamped as VAZEEN 001-012. The court

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has undertaken a review of the Vazeen records. The court determines the records should be produced

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to Plaintiff’s counsel, with the following redactions to be made by Defendant’s counsel:

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VAZEEN002:

The non-ocular medications identified on this page should be
redacted; the court determines none of the medications is relevant
to any claim in this case.

VAZEEN 010-012:

3/13/13 consultation report of Mark Mannis, M.D. The court has
previously ruled the post-accident treatment records of
Dr. Mannis need not be produced. (Doc. # 72 at 2.)

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Counsel for Defendant is directed to effect the above described redactions and to thereafter serve
a copy of the redacted Vazeen records on Plaintiff’s counsel.
Counsel for Defendant shall contact Courtroom Administrator Katie Ogden (775.686.5758) to

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make arrangements to pick up the Vazeen records submitted in camera.

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IT IS SO ORDERED.

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DATED: February 25, 2014.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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