RODRIGUEZ v. THE CITY OF NEW BRUNSWICK et al

Filing 117

OPINION filed. Signed by Judge Freda L. Wolfson on 11/21/2017. (km)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
VICTOR RODRIGUEZ,
:
:
Plaintiff,
:
Civil Action No.: 12-4722 (FLW)
:
v.
:
OPINION
:
THE CITY OF NEW BRUNSWICK,
:
et al.,
:
:
Defendants.
:
____________________________________:
WOLFSON, District Judge:
Defendant Police Officer Christopher Bornheimer 1 (“Defendant” or “Officer
Bornheimer”) appeals the Magistrate Judge’s Order, dated April 7, 2017, barring
Defendant’s expert, Dr. George Herlitz, from testifying at trial and striking the
doctor’s report. Plaintiff Victor Rodriquez (“Plaintiff”) opposes the appeal. For
the reasons set forth below, Defendant’s appeal is DENIED.

The Magistrate

Judge’s decision is hereby AFFIRMED. More specifically, the Magistrate Judge’s
decision to disqualify Dr. Herlitz as an expert and to strike Dr. Herlitz’s report is
affirmed, and that Defendant is precluded from obtaining a new expert at this
late stage of litigation.
BACKGROUND
The Court will only recount facts necessary to resolve the instant appeal.
Plaintiff brought this excessive-force action against Defendant for permanent
The only remaining defendant is Officer Bornheimer. All other named
defendants have been voluntarily dismissed by Plaintiff.
1

1

injuries he sustained as a result of a gunshot wound allegedly fired by
Defendant. Plaintiff alleges that he was an innocent victim involved in a gangrelated incident, wherein members of a gang attempted to rob Plaintiff on the
streets of New Brunswick, New Jersey. Plaintiff further alleges that at the time
the incident occurred, Officer Bornheimer and other officers observed the alleged
assault, however, they did not intervene. Fearing for his life, Plaintiff avers that
he ran toward an adjacent corner to retrieve a blank gun from a backpack, and
that he fired two blank rounds into the air in an effort to fend off the gang
members. According to Plaintiff, after firing the shots, he ran past the officers,
who were in an unmarked police vehicle.

Plaintiff alleges that without any

warning or a command, the law enforcement officers opened fire on Plaintiff,
hitting him in the back of his legs and the rear of his body. As alleged, the shots
caused Plaintiff to sprawl forward on the ground, and once he fell to the ground,
Plaintiff released his gun and it slid far out of his reach to the other side of the
road. Plaintiff claims that, after the initial shots, he could still feel and move his
lower extremities. Significantly, according to Plaintiff, as he was lying on the
street face down with his hands extended outward, posing no threat, Officer
Bornheimer exited the rear-passenger side door and shot Plaintiff again in the
middle of Plaintiff’s back; this caused Plaintiff’s lower body to go numb. Because
of the injuries, Plaintiff is now a paraplegic and permanently disabled. 2 The
instant § 1983 action was brought in July 2012 based on these factual
Plaintiff was indicted for his acts committed during the subject incident.
However, it is unclear from the record on this appeal what specific charges were
brought against Plaintiff.
2

2

allegations. It is important to note that Plaintiff’s excessive force claim is not
based on the injuries caused by the initial shots, which appeared to have entered
Plaintiff’s legs and side torso; rather, the claim centers on the allegedly
gratuitous gunshot made by Officer Bornheimer, which entered the area of
Plaintiff’s lumbar spine. It is Plaintiff’s position that his permanent injuries were
caused by that specific gun shot.
During the course of the litigation, the parties engaged in extensive
discovery, including all medical related issues.

During discovery, Plaintiff

identified Robert Wood Johnson (“RWJ”) as the hospital where he was treated
after the incident. Plaintiff underwent emergency surgery performed by on-call
trauma surgeons, Drs. George Herlitz and Vicente Garcias.

In July 2014,

Plaintiff provided the records he obtained from RWJ to Defendant, which
contained operative records and diagrams depicting the entry wounds of the
bullets.

At the request of Defendant, Plaintiff signed an authorization form,

pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”),
permitting the release of the medical records maintained by RWJ. The standard
Form states that Plaintiff gives permission to RWJ to release “[a]ll records, new
patient reports/questionnaires, original x-ray films, MRI films, CT scan films,
bone scan films, intraoperative photographs and/or any other type of films in
[RWJ’s] possession or control concerning the treatment or care provided to
[Plaintiff] . . . .” Pl.’s undated HIPAA Form (emphasis added).
In addition, the Magistrate Judge ordered the Middlesex County
Prosecutor’s Office (“MCPO”) to release all records in its possession regarding the
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subject incident, including documents the MCPO had received from RWJ and
any recorded interviews conducted with RWJ physicians.

Included in those

documents are notes from a MCPO investigator, Karleen Duca, that detailed her
conversation with Dr. Herlitz, who was one of Plaintiff’s treating physicians at
the time Plaintiff was hospitalized. The interview took place after Dr. Herlitz
performed Plaintiff’s surgery. According to the interview notes, it is Dr. Herlitz’s
opinion that the bullet that entered Plaintiff’s torso, which hit Plaintiff’s colon,
was the same one that severed Plaintiff’s spinal cord, causing Plaintiff’s
permanent injuries.

However, Plaintiff produced an expert report from Paul

Ratzker, M.D., wherein the doctor noted that Plaintiff suffered a gunshot wound
to his lumbar spine, and that his paraplegic conditions were caused by this
wound. See Ratzker Report dated September 22, 2015.
Defendant, without obtaining any prior authorization from Plaintiff,
consulted with Dr. Herlitz concerning the trajectory of the bullets. Defendant
also retained Dr. Herlitz as an expert in this case; in that connection, the doctor
authored a report in September 2016, upon which Defendant relies in this
litigation. In the report, Dr. Herlitz opined that the bullet which entered below
Plaintiff’s left shoulder blade was not responsible for his neurologic injury;
instead, the bullet that fired into Plaintiff’s left flank caused his spinal cord injury
and its course of travel within his body is most consistent with having been fired
into his left side. See Herlitz Report dated September 13, 2016. In essence, Dr.
Herlitz’s opinions contradicted those of Plaintiff’s experts.

4

Fact discovery in this case closed on June 30, 2016, and Plaintiff was
directed to serve all expert reports by July 1, 2016, while Defendant was directed
to serve his expert reports by September 15, 2016. On September 22, 2016,
Plaintiff objected to Dr. Herlitz’s report and requested that Defendant be barred
from calling Dr. Herlitz as an expert at the time of trial and that the report be
barred. A formal motion in that regard was filed by Plaintiff before the Magistrate
Judge. In her decision, the Magistrate Judge barred Dr. Herlitz’s expert report
and trial testimony. The Magistrate Judge reasoned that because Defendant
failed to obtain a HIPAA authorization from Plaintiff, Defendant’s ex parte
communications with Dr. Herltiz are in violation of HIPAA, and that Plaintiff did
not otherwise waive the confidentiality of his protected health information. See
Letter Order dated April 7, 2017. Indeed, based on the HIPAA violations, the
Magistrate Judge found that preclusion was appropriate:
Having determined that Defendants were required to obtain a
[HIPAA] authorization from Plaintiff before having ex parte
communications with Dr. Herlitz, the Court turns to whether Dr.
Herlitz should be precluded from serving as one of Defendants’
experts. Here, the Court finds that preclusion is appropriate.
Permitting Defendants to rely upon Dr. Herlitz as a witness despite
their failure to obtain a HIPPA authorization from Plaintiff violates
[HIPAA] which, in and of itself may warrant preclusion, but
permitting Defendants to rely upon Dr. Herlitz as a witness despite
their failure to obtain a [HIPAA] authorization from Plaintiff would
also be unfairly prejudicial to Plaintiff. Plaintiff would be forced to
confront his own trauma surgeon at trial. The fact that Plaintiff’s
own trauma surgeon takes an adverse position to Plaintiff could
have a substantial impact on how the jury views the evidence in this
case. Had Defendants secured the requisite [HIPAA] authorization
for Dr. Herlitz, Plaintiff would have been on notice of Defendants’
communications with Dr. Herlitz and could have developed a trial
strategy to address same, but Defendants failed to obtain the
necessary authorization.
5

***
. . . Indeed, though this case filed in July 2012, it was not until
September 15, 2016 that Defendants identified Dr. Herlitz, by name,
as a witness.
Id. at p. 5.
In addition, the Magistrate Judge denied Defendant’s request to reopen
discovery for the sole purpose of retaining a new expert and serving a report and
an extension of time to file motions for summary judgment after the expert report
is served. The Magistrate Judge found that “Defendants selected their expert at
their peril. The Court’s decision regarding Dr. Herlitz, M.D. is no different than
when an expert is struck on Daubert or other substantive grounds. The party is
not entitled to retain a substitute.” Email Decision dated April 11, 2017.
Defendant’s appeal ensued.
DISCUSSION
I.

Standard of Review
A district court reviews decisions on nondispositive matters by a

magistrate judge under the “clearly erroneous or contrary to law” standard. 28
U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72; Andrews v. Goodyear Tire & Rubber Co.,
191 F.R.D. 59, 67 (D.N.J. 2000). A decision is clearly erroneous “when, although
there may be some evidence to support it, the reviewing court, after considering
the entirety of the evidence, is ‘left with the definite and firm conviction that a
mistake has been committed.’” Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518
(D.N.J. 2008) (citations omitted). A decision is contrary to law when it
misinterprets or misapplies the law. Id. (citation omitted). Under this standard,

6

the magistrate judge is accorded wide discretion, NLRB v. Frazier, 966 F.2d 812,
815 (3d Cir. 1992), and “the party filing the [appeal] bears the burden of
demonstrating that the magistrate judge’s decision was clearly erroneous or
contrary to law.” Marks v. Struble, 347 F. Supp. 2d 136, 149 (D.N.J. 2004)
(citation omitted).
Importantly, “[w]here a magistrate judge is authorized to exercise his or
her discretion, the decision will be reversed only for an abuse of that discretion.”
Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998)
(citation omitted); see 12 Wright, Miller & Marcus, Federal Practice and
Procedure: Civil 2d § 3069 (2d ed. 1997). The deferential standard of review is
particularly appropriate where the magistrate judge managed the case from the
outset, and thus has a thorough knowledge of the proceedings. Cooper Hosp.,
183 F.R.D. at 127 (quoting Public Interest Research Group v. Hercules, Inc., 830
F. Supp. 1525, 1547 (D.N.J. 1993), aff’d on other grounds and rev’d on other
grounds, 50 F.3d 1239 (3d Cir. 1995)).
Here, while the parties, generally, do not dispute that the Magistrate
Judge’s ruling to bar Dr. Herlitz’s report and testimony — a nondispositive
decision — be reviewed under the clearly erroneous standard, Defendant,
nonetheless, argues that this Court should treat, for the purposes of this appeal,
the Magistrate Judge’s decision as dispositive and review it de novo. Defendant
reasons that if the Magistrate Judge’s rulings were to stand, “Plaintiff’s
presentation to a finder of fact would be misleading as it is not supported by the
evidence and does not aid in the search for the truth.” Def.’s Br., p. 8. Defendant
7

goes on to argue that “[i]f [he] cannot contradict Plaintiff’s expert reports with the
information explained by Dr. Herlitz, or another trauma surgeon, [Defendant]
will be severely prejudiced from presenting critical evidence to a jury, which
would be inconsistent with the Court’s function.” Id. In other words, Defendant
claims that because the ruling would severely impair his defenses at trial, this
Court should elevate a clearly nondispositive ruling to a dispositive one, such
that Defendant’s interests would be protected at trial. However, I have not been
able to locate, and Defendant has not cited any, case law for such a novel legal
proposition.

Contrary to Defendant’s arguments, applying the appropriate

standard of review does not turn on how a Magistrate Judge’s ruling would
ultimately affect a party’s interests; rather, it is the nature of a decision that
dictates the proper level of review. Indeed, any adverse decision against a party,
including those that are nondispositive, can impair a party’s litigation strategy
or defenses. As such, I find Defendant’s argument in this context without merit.
The Magistrate Judge’s decision on this appeal will be reviewed under the clearly
erroneous standard.
II.

HIPAA
The Magistrate Judge determined that the knowledge of Dr. Herlitz was

confidential because it was gained through his examination of Plaintiff; that
knowledge is protected by HIPAA. On appeal, Defendant first argues that he has
complied with HIPAA requirements because Plaintiff authorized the release of
the records maintained by RWJ, and based on that authorization, Plaintiff has
permitted Dr. Herlitz, as an employee of RWJ, to release medical records
8

authored by the doctor.

Defendant further argues that because there is no

federal common law of physician-patient privilege, New Jersey’s privilege applies,
and in that respect, Plaintiff has waived the privilege by placing his medical
condition in issue. Defendant’s arguments are contrary to law.
Neither the Magistrate Judge’s decision nor the parties’ briefings contain
any discussion regarding HIPAA’s statutory scheme, or the interplay of the
federal health information protection laws and New Jersey’s statutory or
common law counterpart. Because HIPAA and New Jersey’s physician-patient
privilege are important to the resolution of the issues on appeal, I will discuss
the relevant laws in detail. 3
In 1996, Congress passed HIPAA, 42 U.S.C. 1320d et seq., which governs
the dissemination of protected health information. “[Through] HIPAA, Congress
has spoken about the protection that must be extended to patients regarding
their health related information.” EEOC v. Boston Mkt. Corp., No. CV 03-4227,
2004 U.S. Dist. LEXIS 27338, at *7 (E.D.N.Y. Dec. 16, 2004) (internal quotations
omitted); Wade v. Vabnick-Wener, 922 F. Supp. 2d 679, 685 (W.D. Tenn. 2010);
Nw. Mem’l Hosp. v. Ashcroft, 362 F.3d 923, 924 (7th Cir. 2004). This statute is
also “a complex piece of legislation that addresses the exchange of health-related
information,” Nat’l Abortion Fed’n v. Ashcroft, No. 03-8695, 2004 U.S. Dist.

Unfortunately, neither the Third Circuit nor courts in this district have
squarely addressed the issues in this case. In fact, there is a dearth of case law
nationwide regarding HIPAA in the context of the issues presented on this
appeal. Thus, this Court examines the relevant out-of-circuit authorities that
have discussed HIPAA violations pertaining to unauthorized ex parte
communications.
3

9

LEXIS 4530, at *5 (S.D.N.Y. Mar. 19, 2004), which has “radically changed the
landscape of how litigators can conduct informal discovery in cases involving
medical treatment.” Law v. Zuckerman, 307 F. Supp. 2d 705, 711 (D. Md. 2004).
Indeed, HIPAA embodies federal government’s recognition of “the importance of
protecting the privacy of health information in the midst of the rapid evolution
of health information systems.” South Carolina Med. Assoc. v. Thompson, 327
F.3d 346, 348 (4th Cir. 2003).
In order to accomplish such tasks, Congress delegated to the Secretary of
Health and Human Services broad authority to promulgate rules and regulations
protecting the privacy of patient health information. Nw. Mem’l Hosp., 362 F.3d
at 924 (citing 42 U.S.C. § 1320d-2(d)). These regulations impose strict limitations
on the ability of certain health care providers to release a patient’s medical
records or discuss medical history without express consent. Zukerman, 307 F.
Supp. 2d at 710-11.
HIPAA’s preemption provision provides that the statute and the
regulations promulgated thereunder supersede “any contrary provision of State
law” except as provided in 42 U.S.C. § 1320d-7(a)( 2). See 42 U.S.C. § 1320d7(a)(1). The regulations define a “state law” to “mean a constitution, statute,
regulation, rule, common law, or other State action having the force and effect
of law.” 45 C.F.R. § 160.202. State laws are contrary to HIPAA if: (1) it would be
impossible for the health care provider to comply simultaneously with HIPAA
and the state directive; or (2) the state provision stands as an obstacle to the
accomplishment of the full objectives of HIPAA. 45 C.F.R. § 160.202.
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However, on the other hand, HIPAA does not preempt state law that is
“more stringent” than the provisions of HIPAA or its regulations. Nw. Mem’l
Hosp., 362 F.3d at 926 (citing 45 C.F.R. § 160.203(b)); Zuckerman, 307 F. Supp.
2d at 709; Cong. v. Tillman, No. 09-10419, 2009 U.S. Dist. LEXIS 50501, at *3
(E.D. Mich. June 16, 2009); Stewart v. Louisiana Clinic, No. 99-1767, 2002 U.S.
Dist. LEXIS 24062, at *9 (E.D. La. Dec. 12, 2002). To meet the “more stringent”
requirement, a state law must “provide[ ] greater protection for the individual
who is the subject of the individually identifiable health information” than the
standard set forth by HIPAA and its regulations. 45 C.F.R. § 160.202(6). Stated
differently, state law is more stringent if it “prohibits or restricts a use or
disclosure in circumstances upon which such use or disclosure,” HIPAA would
otherwise permit. 45 C.F.R. § 160.202. Accordingly, the Court must determine
whether HIPAA preempt state law in this case.
In deciding preemption in this context, the Court must first examine
Federal Rule of Evidence 501. Rule 501 states that “privilege” is interpreted
pursuant to federal common law except that “in a civil case, state law governs
privilege regarding a claim or defense for which state law supplies the rule of
decision.” Fed R. Evid. 501. Although the state of New Jersey has legislated a
physician-patient privilege, see N.J.S.A. 2A:84A-22.2, state privilege laws do not
govern in federal question cases. See Wm. T. Thompson Co. v. General Nutrition
Corp., 671 F.2d 100, 103 (3d Cir. 1982). However, where state law provides the
rule of decision, such as in diversity cases, state privilege law will govern.
Samuelson v. Susen, 576 F.2d 546, 549-50 (3d Cir. 1978). Thus, it is necessary
11

to determine whether federal common law or the New Jersey state statute applies
to the doctor-patient privilege at issue. “To do so, a district court in a federal
proceeding must examine the claims for which the discovery is sought and the
basis for the Court’s jurisdiction.” Hannah v. Wal-Mart Stores, Inc., No. 12-1361,
2014 U.S. Dist. LEXIS 75745, at *16 (D. Conn. Jun 4, 2014) (citation omitted).
Here, Plaintiff invokes the subject matter of this Court pursuant to 28
U.S.C. § 1331, “federal claim” jurisdiction with respect to his § 1983 causes of
action. Although Plaintiff also raises state law claims under the New Jersey Civil
Rights Act, along with his federal claims, the privileges recognized under federal
law, i.e., those privileges recognized by Rule 501, govern here. See Pearson v.
Miller, 211 F.3d 57, 65-66 (3d Cir. 2000) (explaining that federal privilege law is
applicable to cases presenting federal and state law claims). Indeed, where there
is federal question jurisdiction and the evidence sought is relevant to both federal
and state law claims, the privileges involved in the case are governed by the
principles of federal law. See von Bulow by Auersperg v. von Bulow, 811 F.2d
136, 141 (2d Cir. 1987), cert. denied sub. nom., Reynolds v. von Bulow by
Auersperg, 481 U.S. 1015 (1987); Ziemann v. Burlington Cnty Bridge Comm’n,
155 F.R.D. 497, 503 (D.N.J. 1994) (“[W]here federal jurisdiction is based upon
the presence of federal claims (although there are state law claims as well), Rule
501 mandates that the federal common law of privileges applies”). Thus, contrary
to Defendant’s argument, state law physician-patient privilege does not apply
here.

12

However, it is well-settled that the federal common law does not recognize
a physician-patient privilege. See Whalen v. Roe, 429 U.S. 589, 608 n.28 (1977);
Lentz v. Graco Inc., No. 05–3047, 2007 U.S. Dist. LEXIS 59282, at *12 (D.N.J.
Aug. 14, 2007) (noting that “there is no federal physician-patient privilege”
(citation omitted)); Acquarola v. Boeing Co., No. 03–2486, 2004 U.S. Dist. LEXIS
4495, at *10 (E.D. Pa. Feb. 26, 2004) (asserting that “[n]either federal common
law nor federal statutory law recognizes a broad physician-patient privilege”
(citation omitted)); Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 131 (E.D. Pa.
1997) (noting that, “the federal common law does not recognize a more general
physician-patient privilege”) (citations omitted).

Hence, without a recognized

privilege in this context, the Court must defer to HIPAA’s privacy rules to
determine whether Defendant can engage in ex parte communications with Dr.
Herlitz, pursuant to Fed. R. Evid. 501’s savings clause. See Nat’l Abortion Fed’n,
2004 U.S. Dist. LEXIS 4530, at *19-20 (“Rule 501’s savings clause requires
federal courts to fashion common law in the light of reason and experience . . .
when Congress has not spoken to a particular issue,” but because “Congress
has spoken on the privacy of medical records through HIPAA, HIPAA and the
regulations promulgated thereunder . . . control the protections provided to
patient medical records held by hospitals” in federal question cases. (internal
citations, alterations, and quotations omitted)); see, e.g., Hannah, 2014 U.S.
Dist. LEXIS, at *17-19; see also 45 C.F.R. § 160.512(b)(11).
As I have indicated earlier, as its general privacy rule, HIPAA places strict
limitations on the ability of health care providers to release a patient’s medical
13

records or discuss the patient’s medical history without the consent of the
patient.

HIPAA’s privacy rules set forth standards and procedures for the

collection and disclosure of “protected health information.”

The information

includes:
[any information, whether oral or recorded in any form or medium,
that]:
(1) [i]s created or received by a health care provider, health
plan, employer, or health care clearinghouse; and
(2) Relates to the past, present, or future physical or mental
health or condition of an individual; the provision of health
care to an individual; or the past, present, or future payment
for the provision of health care to an individual; and
(i) That identifies the individual; or
(ii) With respect to which there is a reasonable basis to
believe the information can be used to identify the
individual.
45 C.F.R. § 160.103 (defining “individually identifiable health information,”
which generally encompasses “protected health information”).

These rules

establish patients’ rights and require that health professionals implement
various procedures regarding the use of and access to health care information.
HIPAA prohibits “covered entities” from using and disclosing private health
information as required or permitted by the regulations. 45 C.F.R. § 164.501
and § 160.103. There are three categories of “covered entities”: 1) health plans;
2) health care clearinghouses; and 3) health care providers. 45 C.F.R. § 160.103.
Relevant here, health care provider means a “provider of service” (as defined in
42 U.S.C. § 1395x(u)), a provider of “medical and other health services” (as
defined in 42 U.S.C. § 1395x(s)), and any other person or organization who
14

furnishes, bills, or is paid for health care in the normal course of business. 45
C.F.R. § 160.103. Indeed, these rules are expansively interpreted to protect
patient’s privacy. See Smith v. Am. Home Prods. Corp. v. Wyeth-Ayerst Pharm.,
372 N.J. Super. 105, 111 (Law Div. 2003).
Importantly, the privacy rules prohibit covered entities, including health
care providers, from using or disclosing private health information in any form
oral, written or electronic, except as permitted under the rules. 45 C.F.R. §
164.502(a). Indeed, the regulations provide certain exceptions to the general
rule against disclosure of patient health information without the patients’ prior
written consent.
One such exception relates to the disclosures made in connection with
judicial and administrative proceedings. See 45 C.F.R. § 164.512(e). Health care
providers may disclose protected health information within judicial and
administrative proceedings according to the following guidelines:
(1) Permitted disclosures. A covered entity may disclose protected
health information in the course of any judicial or administrative
proceeding:
(i) In response to an order of a court or administrative
tribunal, provided that the covered entity discloses only the
protected health information expressly authorized by such
order; or
(ii) In response to a subpoena, discovery request, or other
lawful process, that is not accompanied by an order of a court
or administrative tribunal, if
(A) The covered entity receives satisfactory assurance .
. . from the party seeking the information that
reasonable efforts have been made by such party to
ensure that the individual who is the subject of the
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protected health information that has been requested
has been given notice of the request; or
(B) The covered entity receives satisfactory assurance .
. . from the party seeking the information that
reasonable efforts have been made by such party to
secure a qualified protective order that meets the
requirements of paragraph (e)(1)(v) of this section.
45 C.F.R. § 164.512(e)(1). The Secretary defines “satisfactory assurance” as “a
written statement and accompanying documentation” which demonstrates that:
(A) the party requesting such information has made a good
faith attempt to provide written notice to the individual (or, if
the individual's location is unknown, to mail a notice to the
individual's last known address);
(B) The notice included sufficient information about the
litigation or proceeding in which the protected health
information is requested to permit the individual to raise an
objection to the court . . .; and
(C) The time for the individual to raise objections to the court
. . . has elapsed, and:
(1) No objections were filed; or
(2) All objections filed by the individual have been
resolved by the court . . . and the disclosures being
sought are consistent with such resolution.
45 C.F.R. § 164.512(e)(1)(iii). Significantly, a proper protective order must both
prohibit the parties from using or disclosing the patient’s health information for
any purpose not related to the judicial proceeding in which its production was
ordered and require that the parties return or destroy the disclosed information
(as well as all copies made thereof) at the end of the proceedings. 45 C.F.R. §
164.512(e)(1)(v).

16

In sum, the HIPAA regulations allow health care providers to disclose
patient health information in connection with judicial proceedings: (1) in
response to an order of the court, but only to the extent allowed by the language
of the order; or (2) in response to a subpoena or formal discovery request where
the requesting party assures the provider that either the patient was made aware
of the request but did not object or the requesting party has made reasonable
efforts to secure a proper protective order. See Wade, 922 F. Supp. 2d at 687;
Zuckerman, 307 F. Supp. 2d at 711; Boston Mkt, 2004 U.S. Dist. LEXIS 27338,
at *15; Nat’l Abortion Fed’n, 2004 U.S. Dist. LEXIS 4530, at *7; see also 45 C.F.R.
§ 164.512(e)(1)(i), (ii). To be sure, under HIPAA, judicial oversight is essential.
More specifically, relevant to this case, courts are cautious in permitting
defense counsel from engaging in ex parte communications with plaintiff’s
physicians, in line with HIPAA’s underlying strong policy against disclosing
patient health information. It is the collective conclusion of courts across the
country that although ex parte communications are not per se prohibited by
HIPAA, when notice was not given to Plaintiff in advance of the communications
and Plaintiff has not expressly authorized disclosure, counsel must at the very
least secure a qualified protective order consistent with HIPAA’s privacy rules.
See Bayne v. Provost, 359 F. Supp. 2d 234, 241 (N.D.N.Y. 2005) (“We may
reasonably infer that if a qualified protective order . . . was in place then an ex
parte discussion with the health provider would be appropriate.” (internal
citations omitted)); Tillman, 2009 U.S. Dist. LEXIS 50501, at *4 (E.D. Mich. June
16, 2009) (“[D]efendants may conduct an ex parte oral interview with [plaintiff’s]
17

physician if a qualified protective order . . . is first put in place.” (alteration
original) (quoting Holman v. Rasak, 761 N.W.2d 391, 395 (Mich Ct. App. 2008)));
Palazzolo v. Mann, No. 09-10043, 2009 U.S. Dist. LEXIS 22348, at *8 (E.D. Mich.
Mar. 19, 2009) (finding that defendants may conduct ex parte interviews with
plaintiff's treating physicians, provided that HIPAA judicial requirements are
met, such as obtaining a protective order)); Croskey v. BMW of N. Am., No. 0273747, 2005 U.S. Dist. LEXIS 43442, at *13 (E.D. Mich. Nov. 14, 2005) (“A
qualified protective [order] requires neither specific notice to Plaintiff's counsel
nor Plaintiff's consent before Defendant may interview Plaintiff's treating
physician ex parte.”); Crenshaw v. Mony Life Ins. Co., 318 F. Supp. 2d 1015,
1029 (S.D. Cal. 2004) (finding that in the absence of express authorization,
“HIPAA does not [permit] ex parte contacts with healthcare providers,” without a
protect order in place); Zuckerman, 307 F. Supp. 2d at 710 (“Counsel should now
be far more cautious in their contacts with medical fact witnesses to ensure that
they do not run afoul of HIPAA’s regulatory scheme.”); Boston Mkt., 2004 U.S.
Dist. LEXIS 27338, at *20-21 (“The strong policy underlying HIPAA would appear
to trump the reasoning of those pre-HIPAA decisions that allowed defense
counsel ex parte access to plaintiff's treating physicians . . . .”).
Here, at the outset, I note that by authorizing Defendant to obtain records
from RWJ, Plaintiff did not authorize Defendant to conduct ex parte
communications with Plaintiff’s treating surgeon, Dr. Herlitz. 4

Indeed, the

Contrary to Defendant’s assertions, Dr. Herlitz, as a medical provider,
qualifies as one of the “covered entities” under HIPAA, and as a result, the doctor
4

18

language of the scope of the authorization is quite clear: “[a]ll records, new
patient reports/questionnaires, original x-ray films, MRI films, CT scan films,
bone scan films, intraoperative photographs and/or any other type of films in
[RWJ’s] possession or control concerning the treatment or care provided to
[Plaintiff] . . . .” Pl.’s undated HIPAA Form. No credible argument can be made
that this language authorized the release of anything beyond Plaintiff's records.
This authorization does not contemplate nor authorize Defendant's counsel to
inquire about or otherwise receive other aspects of the Plaintiff's medical
information, especially posing a series of questions about Plaintiff's condition to
his treating surgeon. As such, Defendant's argument that the authorization
provided for the communication under HIPPA is unpersuasive to say the least.
See 42 U.S.C. § 1320d-2 (stating that the intent of HIPAA is to ensure the
integrity and confidentiality of patients’ medical information and to protect
against unauthorized uses or disclosures of the information); see also Nw. Mem’l
Hosp., 362 F.3d at 924; Maillaro v. New York Presbyterian Hosp., No. 10-3474,
2011 U.S. Dist. LEXIS 117467, at *6 (D.N.J. Oct. 12, 2011).

Rather, the

authorization must have contained an express consent to speak to Dr. Herlitz,
not simply a consent to obtain records.
Next, Defendant insists that the type of information disclosed by Dr.
Herlitz is not private health information entitled to protection under HIPAA or

is mandated by HIPAA from disclosing Plaintiff’s private health information,
without satisfying one of the exceptions of disclosure contained in HIPAA.
19

New Jersey’s physician-patient privilege. 5 Defendant’s argument is incorrect.
As preliminary matter, there is no dispute that Defendant did not receive express
consent from Plaintiff before speaking to Dr. Herlitz on an ex parte basis. Indeed,
as noted earlier, Plaintiff’s consent was limited to physical records from RWJ.
Also, there is no dispute that defense counsel did not seek a protective order or
otherwise comply with HIPAA regulations, i.e., formal discovery request or
subpoena. Accordingly, Defendant’s ex parte communications with Dr. Herlitz
clearly ran afoul of HIPAA, and it follows that any information obtained by
Defendant as a result of consulting with Dr. Herlitz violated HIPAA.
Furthermore, contrary to Defendant’s argument, the information that
defense counsel sought from Dr. Herltiz is clearly protected by HIPAA. Indeed,
under HIPPA, private health information includes any information, whether oral
or recorded in any form or medium, that: (1) is created by a health care provider,
health plan, public health authority, employer, life insurer, school or university
or health care clearinghouse; and (2) relates to the past, present or future
physical or mental health or condition of an individual; the provision of health
care to an individual; or the past, present or future payment for the provision of
health care to an individual. See 45 C.F.R. § 160.103 (various provisions). There
is no doubt, under that regulation, the information obtained by Dr. Herlitz in
treating Plaintiff is squarely protected by HIPAA. As the Magistrate Judge noted
in her decision, Dr. Herlitz’s expert opinions were based, in part, on the
Because New Jersey’s physician-patient privilege does not govern in this
federal question case, all of Defendant’s legal arguments based on that privilege
are without merit.
5

20

information he obtained while providing medical care to Plaintiff as his trauma
surgeon, in addition to a review of Plaintiff’s medical records. As such, in order
to engage in ex parte communications with Dr. Herlitz, Defendant was required
to adhere to HIPAA disclosure rules made in connection with judicial and
administrative proceedings. See 45 C.F.R. § 164.512(e)(1).
Moreover, Defendant argues, under New Jersey law, that Plaintiff has
waived his physician-patient privilege by filing this lawsuit and placing his
medical condition at issue. Defendant’s argument is incorrect for many reasons.
For one, New Jersey’s physician-patient privilege does not control in this federal
question case. Thus, any state authorities upon which Defendant rely are not
relevant. Second, it may well be that before the enactment of HIPAA, the filing
of a lawsuit for personal injury or malpractice may waive the state common law
physician-patient privilege with respect to any injury, disease, or condition at
issue in the lawsuit; however, importantly, following the enactment of HIPAA,
the filing of a lawsuit does not waive the confidentiality of health information,
unless the patient gives written consent, see 45 C.F.R. §§ 164.508, 164.510, or
counsel obtains a court order. See Soto v. ABX Air, Inc., No. 07-11035, 2010 U.S.
Dist. LEXIS 117116, at *3 (E.D. Mich. Nov. 3, 2010); Tillman, 2009 U.S. Dist.
LEXIS 50501, at *3-4; Graham v. Carroll, No. 10-065, 2011 U.S. Dist. LEXIS
29190, at *5 (N.D. Fla. Mar. 9, 2011)(finding that under HIPAA, “[t]he fact that
the Plaintiff has filed a lawsuit placing his medical condition in issue does . . .
waive the confidentiality of health information, and unless the patient gives
written consent[,] the medical provider may only disclose confidential health
21

information under the steps outlined in HIPPA.”); Murphy v. Dulay, 975 F. Supp.
2d 1200, 1204 (N.D. Fla. 2013), vacated on other grounds, 768 F.3d 1360 (11th
Cir. 2014).

Based on these foregoing determinations, I conclude that the

Magistrate Judge did not clearly err when finding that Defendant violated HIPAA
disclosure rules.
Next, the Court determines whether the Magistrate Judge abused her
discretion when she disqualified Dr. Herlitz as an expert in this case.

“Federal

courts have the inherent power to disqualify experts” in certain circumstances
to protect the integrity of the adversary process and to promote public confidence
in the legal system. Koch Refining Co. v. Jennifer L. Boudreaux MV, 85 F.3d 1178,
1181 (5th Cir. 1996) (citations omitted); see Syngenta Seeds, Inc. v. Monsanto
Co., No. 02-1331, 2004 U.S. Dist. LEXIS 19817, at *4 (D. Del. Sept. 27, 2004);
United States ex rel., Cherry Hill Convalescent Ctr., Inc. v. Healthcare Rehab Sys.,
Inc., 994 F. Supp. 244, 248 (D.N.J. 1997); Butamax Advanced Biofuels LLC v.
Gevo, Inc., 2012 U.S. Dist. LEXIS 145880, at *4 (D. Del. Oct. 10, 2012); Greene,
Tweed of Del., Inc. v. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 426, 428 (E.D.
Pa. 2001). A court derives its power to disqualify from the “duty to preserve
confidence in the fairness and integrity of judicial proceedings, and to protect
privileges which may be breached if an expert is permitted to switch sides in
pending litigation.” Novartis AG v. Apotex Inc., No. 09-5614, 2011 U.S. Dist.
LEXIS 15177, at *3 (D.N.J. Jan. 24, 2011).
In determining disqualification, courts use a two-prong test to determine
whether an expert who had a prior relationship with a party should be
22

disqualified: (1) whether it was "objectively reasonable for the first party . . . to
believe that a confidential relationship existed”; and (2) whether “that party
disclose[d] any confidential information to the expert.” Cherry Hill, 994 F. Supp.
at 249 (quoting Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 579 (D.N.J.
1994)).
Courts should also balance competing policy objectives in determining
whether an expert should be disqualified. Cordy, 156 F.R.D. at 580. The policy
objectives in favor of disqualification “include the court’s interest in preventing
conflicts of interest and in maintaining judicial integrity.” Cherry Hill, 994 F.
Supp. at 251 (citation omitted). The policy objectives weighing against
disqualification “include maintaining accessibility to experts with specialized
knowledge and encouraging experts to pursue their professions.” Id. (citation
omitted). The party seeking disqualification, bears the burden of proof on these
issues. Cordy, 156 F.R.D. at 580 (citation omitted).
Here, the Magistrate Judge found that Plaintiff had carried his burden of
proof as to disqualification; the Judge based her decision on the fact that
Defendant violated Plaintiff’s confidentiality under HIPAA. I do not find that the
Magistrate Judge abused her discretion.

As this Court has already stated,

Congress enacted HIPAA to advance its interests in protecting a patient’s private
health information from unauthorized and abusive disclosures. HIPAA and its
regulations is clear: this “strong policy” cannot be circumvented by medical
providers or counsel in litigation. When HIPAA violations occur, it is within the
court’s purview to impose the proper sanctions. See Crenshaw, 318 F. Supp. 2d
23

at 1030; Zuckerman, 307 F. Supp. 2d 705, at 712-13; Belote v. Strange, No.
262591, 2005 Mich. App. LEXIS 2642, *16-17 (Mich. App. Ct. October 25, 2005)
(treating a HIPAA violation as a sanctionable discovery violation under state
court rules, and finding that “[a]s with every discovery violation, whether and in
what manner the violation should be sanctioned is a matter committed to the
sound discretion of the court.”).
As the Magistrate Judge noted, it is clear that Defendant was aware that
Plaintiff and Dr. Herlitz had a prior confidential, physician-patient relationship.
And, the Court has already determined that as a result of that relationship, Dr.
Herlitz possesses confidential health information pertaining to Plaintiff. Indeed,
while Plaintiff did not designate Dr. Herlitz as an expert or a fact witness, defense
counsel, nonetheless, conceded that he engaged in ex parte communications
with Dr. Herlitz seeking explanation of Plaintiff’s medical records obtained from
RWJ. Defense counsel further concedes that, without any notice to Plaintiff or
the Court, counsel consulted with Dr. Herlitz and, in fact, hired the doctor as a
defense expert. Dr. Herlitz, then, authored a report, dated, September 13, 2016
— two days prior to Defendant’s deadline to serve his expert report. Under these
circumstances, the Magistrate Judge did not err by finding that Plaintiff had
satisfied the two-prong test.
Furthermore, the policy objectives favor disqualification. The practice of
unqualified ex parte communications with a plaintiff’s treating physician when
examined under federal principles has been heavily criticized by some district
courts. See Terrebonne v. B & J Martin, Inc., No. 16-8630, 2017 U.S. Dist. LEXIS
24

38635, at *11-14 (E.D. La. Mar. 17, 2017) (collecting cases). Indeed, it is the
collective view of those courts that because the physician-patient relationship is
based on the time-honored tradition of mutual trust, the unauthorized
communications

with

physicians

by

defense

counsel

undermines

that

relationship and erodes its trust and confidence. See In re Xarelto (Rivaroboxan)
Prod. Liab. Litig., MDL No. 2592, 2016 U.S. Dist. LEXIS 30822, at *17-18 (E.D.
La. Mar. 9, 2016) (finding that “[t]he physician-patient relationship is based on
mutual trust, and ex parte contacts between physicians and defendants . . .
undermine that relationship. No patient wants to hear that his or her doctor
engaged in unsupervised discussions with a person that the patient sued. This
may lead the patient to be less forthcoming with doctors who have spent years
developing a relationship of trust and confidence”); In re Vioxx Prods. Liab. Litig.,
230 F.R.D. 473, 477 (E.D. La. 2005). Here, while Plaintiff’s relationship with Dr.
Herlitz may not have been longstanding, nonetheless, from a policy perspective,
like the Magistrate Judge, this Court finds defense counsel’s violation of HIPAA
and the long established physician-patient trust, to be deeply troubling.
Accordingly, the Magistrate Judge was well within her discretion to disqualify
Dr. Herlitz as an expert witness and did not err by striking the doctor’s report.
I also agree with the Magistrate Judge’s finding that defense counsel
enlisted the help of Dr. Herlitz at his own peril. I am cognizant that by
disqualifying Dr. Herlitz, Defendant would be deprived of proffering an expert to
refute Plaintiff’s evidence on the issue of causation.

However, given the

inappropriate conduct on the part of the defense, the Magistrate Judge exercised
25

her sound discretion to preclude Defendant from obtaining a new expert at this
late stage of litigation. I so conclude because defense counsel had more than
sufficient time to obtain an authorization from Plaintiff before engaging Dr.
Herlitz; indeed, counsel sought Plaintiff’s authorization before procuring RWJ’s
medical records. In that regard, defense counsel clearly knew his obligations
under HIPAA, yet, counsel deliberately had ex parte communications with Dr.
Herlitz — without notifying Plaintiff or securing the necessary court order —
blatantly disregarding Plaintiff’s private health information protected by HIPAA.
Compounding counsel’s errors, Plaintiff was only made aware that his treating
surgeon had become Defendant’s causation expert in September 2016, when
discovery concluded. It appears that defense counsel engaged in litigation by
surprise

—

conduct this Court simply cannot ignore. Therefore, it was not an

abuse of discretion for the Magistrate Judge to disallow defense counsel from
obtaining a new expert, while acknowledging that some prejudice will inure to
Defendant. 6

Indeed, Defendant provides no explanation why formal discovery was not
taken of Dr. Herlitz, on notice to Plaintiff, and then an independent expert
retained.
6

26

CONCLUSION
For the reasons set forth above, Defendant’s appeal of the Magistrate
Judge’s decision is DENIED. The Magistrate Judge’s decision dated April 7,
2017, is hereby AFFIRMED. More specifically, the Magistrate Judge’s decision
to disqualify Dr. Herlitz as an expert and to strike Dr. Herlitz’s report is affirmed,
and Defendant is precluded from obtaining a new expert.

DATE: November 21, 2017

/s/ Freda L. Wolfson_____
Freda L. Wolfson, U.S.D.J.

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