Soto et al v. The City of New York et al

Filing 145

OPINION & ORDER: For the reasons stated herein, Plaintiffs' letter motion to set aside the Opinion is denied. Not only does the Court agree with Judge Gorenstein's thoughtful analysis, but Plaintiffs' argument at best establishes th at "reasonable minds may differ" as to whether HIPAA permits Plaintiffs to withhold their consent to allow Defendants' counsel to communicate with Plaintiffs' medical providers. Tiffany & Co., 2013 WL 5677020, at * 1. Accordingl y, Plaintiffs have failed to meet their burden to establish that the Opinion is clearly erroneous or contrary to law. In their joint letter due on or before December 7, 2015, see Dkt. 144, the parties shall inform the Court whether - and if so, how - this order affects the status of the case. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 11/24/2015) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONI CALLY FILED
DOC#:
DATE FILED: 11/24/2015

EDGAR SOTO JR., et al.,
Plaintiffs,
V.

No. 12-CV-6911 (RA)
OPINION & ORDER

THE CITY OF NEW YORK, et al.,
Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiffs in this action allege that they sustained physical and psychological injuries
resulting from excessive force used by New York City Police Department officers in an incident
that occurred on May 7, 2012.

On October 20, 2015, Magistrate Judge Gorenstein issued a

Memorandum Opinion (the "Opinion") ordering Plaintiffs "to provide releases compliant with the
Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936
('HIP AA') and its regulations that would authorize [P]laintiffs' medical providers to orally discuss
[P]laintiffs' health information with defense counsel." Dkt. 135 at 1. On October 26, 2015,
Plaintiffs moved by letter pursuant to Federal Rule of Civil Procedure 72(a) to set aside the
Opinion. See Dkt. 13 3. For the reasons that follow, Plaintiffs' motion is denied.
"Matters concerning discovery generally are considered 'nondispositive' of the litigation."
Arista Records, LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). District judges may "modify or

set aside any part of [a magistrate judge's nondispositive] order that is clearly erroneous or is
contrary to law." Fed. R. Civ. P. 72(a). 1 "Under this highly deferential standard, magistrate judges

1

Plaintiffs originally argued in their Jetter motion that the Court should review the Opinion de nova pursuant
to Rule 72(b)(3), see Dkt. 133 at 2, but subsequently acknowledged in their reply letter that the Opinion could be set

'are afforded broad discretion in resolving nondispositive disputes and reversal is appropriate only
if their discretion is abused."' Thai Lao Lignite (Thai.) Co. v. Gov 't of Lao People's Democratic
Republic, 924 F. Supp. 2d 508, 511-12 (S.D.N.Y. 2013) (quoting Ritchie Risk-Linked Strategies
Trading (Ir.), Ltd. v. Coventry First, LLC, 282 F.R.D. 76, 78 (S.D.N.Y. 2012)). "A magistrate
judge's ruling is contrary to law if it fails to apply or misapplies relevant statutes, case law, or rules
of procedure, and is clearly erroneous if the district court is left with the definite and firm
conviction that a mistake has been committed." Id. at 512 (internal alterations, quotations, and
citations omitted). "[T]he fact that reasonable minds may differ on the wisdom of granting a
party's motion is not sufficient to overturn a magistrate judge's decision." Tiffany & Co. v. Costco
Wholesale Corp., No. 13-CV-1041 (LTS), 2013 WL 5677020, at *1 (S.D.N.Y. Oct. 18, 2013)
(internal quotations and alterations omitted).

After considering the Opinion, the parties'

submissions, see Dkt. 133, 139 & 142, and the record in this case in light of the deferential standard
of review, the Court is satisfied that the Opinion was neither clearly erroneous nor contrary to law.
In the Opinion, Judge Gorenstein considered whether HIP AA pro hi bi ts Defendants'
counsel from communicating orally with Plaintiffs' medical providers even after Plaintiffs had
forfeited their privacy in (and Defendants already had access to) Plaintiffs' written medical records
from those very same providers. There is no dispute that, as a result of bringing this lawsuit,
"(P]laintiffs forfeited their right to claim privacy in the records of their medical treatment," or that
Plaintiffs "executed forms that authorize the release of their written medical records" to
Defendants. Op. at 1-2. Plaintiffs contend, however, that HIPAA did not require them to allow
Defendants' counsel to conduct "ex parte interviews" with Plaintiffs' medical providers absent a
showing of need.

See id. at 2.

Judge Gorenstein disagreed, finding no reason to treat oral

aside only if it is "contrary to law" or "clearly erroneous," Dkt. 142 at 1. The Court agrees that the Opinion relates to
a nondispositive matter governed by Rule 72(a).

2

communications about Plaintiffs' medical treatment differently than written medical records, nor
to treat Plaintiffs' medical providers differently than any other non-party witnesses who may be
contacted by Defendants' counsel. See id. at 2-4. The Opinion thus concluded that Plaintiffs were
not entitled to withhold the written authorization required by HIP AA.
In reaching his conclusion, Judge Gorenstein relied on Sforza v. City ofNew York, No. 07CV-6122 (DLC), 2008 WL 4701313 (S.D.N.Y. Oct. 24, 2008), in which Judge Cote similarly
allowed the defendants' counsel to communicate orally with the plaintiffs medical providers
despite the plaintiff's refusal to execute a written authorization. In Sforza, the plaintiff alleged in
part that police officers "refused to allow her to be treated by [Emergency Medical Technicians
("EMTs")] who were present at the scene of her arrest." 2008 WL 4701313, at * 1. After the
defendants' counsel "identified certain EMTs who may have been working near the scene of the
incident on the night of the plaintiff's arrest," the plaintiff refused to authorize the defendants'
counsel from speaking with those individuals to determine whether they were present when the
plaintiff was arrested.

Id.

The court ordered that the defendants' counsel be permitted to

communicate with the EMTs, noting that nothing in HIPAA prohibited such an order and that
interviewing the EMTs "may very well alleviate the need to take their depositions and save the
plaintiff, defendants, and the EMTs the cost and burden of more formal discovery." Id. at *3. In
so doing, the court distinguished three district court cases that relied on HIP AA in refusing to
permit defense counsel from communicating with the plaintiffs' medical providers. See id. at *2
(distinguishing Eng v. Blood, No. 04-CV-1146 (NAM), 2008 WL 2788894 (N.D.N.Y. July 17,
2008); Fralick v. Chautauqua Cnty. Chapter ofAm. Nat 'l Red Cross, No. 06-CV-340S (Sr), 2007
WL 475322 (W.D.N.Y. Feb. 9, 2007); and E.E.O.C. v. Boston Mkt. Corp., No. 03-CV-4227

3

(LOW), 2004 WL 3327264 (E.D.N.Y. Dec. 16, 2004)). The Opinion explicitly noted its agreement
with Sforza that Eng, Fralick, and Boston Market Corp. were "unpersuasive." Op. at 5.
Plaintiffs now contend that the Opinion is clearly erroneous and contrary to law. See Dkt.
133 at 4-5; Dkt. 142 at 1. Plaintiffs argue that Sforza is "distinguishable" because the plaintiff in
that case could not identify the EMTs who may have been present at her arrest, while Plaintiffs
here have identified their medical providers. Dkt. 133 at 4. Plaintiffs also argue that Defendants
have failed to identify why ex parte interviews with Plaintiffs' medical providers are necessary
and that, at the very least, Plaintiffs' counsel should be present at any interview conducted by
Defendants' counsel. See id. at 3.
The Court disagrees. Nothing in Sforza suggests that its logic is limited to its factual
circumstances, nor are the facts in Sforza meaningfully distinguishable from the facts here. As
noted in the Opinion, "there are approximately 90 medical providers at issue" in this case. Op. at
2. While the identities of these providers are known, it is not clear at this juncture which of these
providers have knowledge relevant to Plaintiffs' claims. 2 And as was the case in Sforza, allowing
Defendants to interview these providers informally may "alleviate the need to take their
depositions and save the plaintiff[ s], defendants, and the [providers] the cost and burden of more
formal discovery." Sforza, 2008 WL 4701313, at *3. Given the number of medical providers at
issue in this case, the Court agrees with Defendants that requiring each medical provider to be
deposed would amount to "a significant waste of money, resources and time for all involved."

2
Plaintiffs argue that the list of healthcare providers can easily be narrowed because they "only disclosed
four experts who are healthcare professionals and there were only four surgeons who operated on [Plaintiffs]." Dkt.
142 at 1. There is no reason to assume, however, that of the 96 potential witnesses identified in Plaintiffs' initial
disclosures, Plaintiffs' experts and surgeons are the only healthcare providers who have knowledge relevant to
Plaintiffs' claims.

4

Dkt. 139 at 2. Defendants' counsel should therefore be permitted to contact Plaintiffs' medical
providers to determine which of them, if any, may have knowledge relevant to Plaintiffs' claims. 3
For the reasons stated above, Plaintiffs' letter motion to set aside the Opinion is denied.
Not only does the Court agree with Judge Gorenstein's thoughtful analysis, but Plaintiffs'
argument at best establishes that "reasonable minds may differ" as to whether HIP AA permits
Plaintiffs to withhold their consent to allow Defendants' counsel to communicate with Plainitffs'
medical providers. Tiffany & Co., 2013 WL 5677020, at * 1. Accordingly, Plaintiffs have failed
to meet their burden to establish that the Opinion is clearly erroneous or contrary to law.
In their joint letter due on or before December 7, 2015, see Dkt. 144, the parties shall inform
the Court whether-and if so, how-this order affects the status of the case.
SO ORDERED.
November 24, 2015
New York, New York

Dated:

Ron e Abrams
United States District Judge

3

Defendants' counsel may communicate with Plaintiffs' medical providers outside the presence of Plaintiffs'
counsel. As Judge Gorenstein noted in the Opinion, "normally nothing stops an attorney from contacting an
unrepresented witness directly." Op. at 2. Once the restrictions imposed by HIPAA are removed, Plaintiffs' medical
providers are no different from any other fact witnesses. Defendants should nonetheless "specifically identify" to
Plaintiffs any medical providers contacted by Defendants' counsel. Dkt. 139 at 2. Plaintiffs' counsel is of course free
to contact any of these individuals in order to reduce the perceived risk of being surprised by any testimony at trial.
See Dkt. 133 at 2-3.

5