Borrero v. Secretary John Wetzel et al
Filing
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MEMORANDUM OPINION AND ORDER - IT IS ORDERED as follows: 1. First, the plaintiffs motion to quash, (Doc. 23.), motion of objection (Doc. 29.), motion for order (Doc. 32.), and motion for extension of time (Doc. 33.) are DENIED, and it is ORDERED tha t the medical records of the plaintiff are to be released to defense counsel within 20 days of this order. 2. Second, this disclosure is subject to a protective order requiring defense counsel to maintain confidentiality of the records by not disclos ing any portion of the contents to anyone other than the court, the attorneys, parties involved in the matter, and expert witnesses; by not releasing any portion of the records to other third-parties, without prior express approval of the court; by destroying the records at the conclusion of the litigation; and by not using the information contained in the records for purposes other than prosecuting this lawsuit. Signed by Magistrate Judge Martin C. Carlson on April 24, 2013. (kjn)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
HECTOR BORRERO,
Plaintiff
v.
JOHN WETZEL, et al.,
Defendants
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Civil No. 3:12-CV-1934
(Judge Mariani)
(Magistrate Judge Carlson)
MEMORANDUM OPINION AND ORDER
I.
Statement of Facts and of the Case
This case comes before the court for resolution of a discovery dispute regarding
whether the plaintiff’s medical records are properly subject to disclosure and
inspection by counsel for the defendants. For the reasons set forth below, we find
that the allegations in the plaintiff’s complaint put his medical condition at issue in
this case, and, therefore, require disclosure of these records to defense counsel.
The pertinent facts relating to this discovery dispute can be simply stated. The
plaintiff, a state inmate, has filed an amended complaint which described an alleged
lack of proper medical treatment for his Hepatitis C; claimed that one defendant, Dr.
Moll, who was plaintiff’s psychiatrist, did not properly perform his duties under
Department of Corrections (“DOC”) policies; and alleged that Dr. Moll lied about
plaintiff’s ability to begin treatment for Hepatitis C. In particular, plaintiff asserted
that Dr. Moll “only once spoke to plaintiff and never once treated plaintiff for any
medical illness or interview plaintiff about this treatment as is protocol under DOC
policy 13.2.1 Section 16.” Furthermore, in his amended complaint, plaintiff referred
to several different grievances that he allegedly filed concerning his perceived
mistreatment by prison medical and mental health personnel, but asserted that he had
only fully exhausted the grievance process for one of his complaints.
Presented with these allegations, on or about March 22, 2013, counsel for Dr.
Moll served the three separate subpoenas in an attempt to gather information related
to the present lawsuit, initiated by plaintiff, alleging perceived medical and mental
health mistreatment by Dr. Moll and the other named defendants. Two of the
subpoenas were directed to SCI-Smithfield, the DOC institution where the plaintiff
is currently housed, requesting: (1) “a full and complete copy of all medical,
psychological and psychiatric records pertaining to inmate Hector Alexander Borrero,
Inmate Number JB-2013[;]” and (2) “a full and complete copy of any and all
grievance records pertaining to Inmate Hector Alexander Borrero, Inmate Number
JB-2013.” The third subpoena was directed to the Department of Corrections and
requested “full and complete copies of the following documents pertaining to Inmate
Hector Alexander Borrero, Inmate Number JB-2013: (1) grievance files, including
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grievances, rulings, appeals, etc.; (2) Inmate Requests to Staff Members (DC-135A);
and (3) all records of misconduct charges, hearings and penalties.”
On April 1, 2013, plaintiff filed a Motion to Quash or Modify Subpoena
arguing that the court should quash or modify Dr. Moll’s subpoenas because he
asserts that the subpoenas require disclosure of privileged or protected matter and no
exception or waiver applies. However, because we find that the subpoenas seek
information relating to matters relevant to this lawsuit, and further conclude that
Borrero has waived any medical confidentiality by making allegations which put his
medical condition squarely at issue in this case, we will deny this motion to quash,
and the related motions filed by Borrero.
II.
Discussion
Several basic guiding principles inform our resolution of the instant discovery
dispute. At the outset, the scope of what type of discovery may be compelled is
defined by Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provides as
follows:
(1) Scope in General. Unless otherwise limited by court order, the scope
of discovery is as follows: Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense –
including the existence, description, nature, custody, condition, and
location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good
cause, the court may order discovery of any matter relevant to the
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subject matter involved in the action. Relevant information need not be
admissible at trial if the discovery appears reasonably calculated to lead
to the discovery of admissible evidence. All discovery is subject to the
limitations imposed by Rule 26(b)(2)( C ).
Fed. R. Civ. P., Rule 26(b)(1).
Rulings regarding the proper scope of discovery, and the extent to which
discovery may be compelled, are matters consigned to the court’s discretion and
judgment. Thus, it has long been held that decisions regarding motions to compel are
“committed to the sound discretion of the district court.” DiGregorio v. First
Rediscount Corp., 506 F.2d 781, 788 (3d Cir. 1974). Similarly, issues relating to the
scope of discovery permitted under Rule 26 also rest in the sound discretion of the
Court. Wisniewski v. Johns-Manville Corp., 812 F.2d 81, 90 (3d Cir. 1987). Thus,
a court’s decisions regarding the conduct of discovery, and whether to compel
disclosure of certain information, will be disturbed only upon a showing of an abuse
of discretion. Marroquin-Manriquez v. I.N.S., 699 F.2d 129, 134 (3d Cir. 1983).
This far-reaching discretion extends to rulings by United States Magistrate Judges on
discovery matters. In this regard:
District courts provide magistrate judges with particularly broad
discretion in resolving discovery disputes. See Farmers & Merchs. Nat'l
Bank v. San Clemente Fin. Group Sec., Inc., 174 F.R.D. 572, 585
(D.N.J.1997). When a magistrate judge's decision involves a
discretionary [discovery] matter . . . , “courts in this district have
determined that the clearly erroneous standard implicitly becomes an
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abuse of discretion standard.” Saldi v. Paul Revere Life Ins. Co., 224
F.R.D. 169, 174 (E.D.Pa.2004) (citing Scott Paper Co. v. United States,
943 F.Supp. 501, 502 (E.D.Pa.1996)). Under that standard, a magistrate
judge's discovery ruling “is entitled to great deference and is reversible
only for abuse of discretion.” Kresefky v. Panasonic Commc'ns and
Sys. Co., 169 F.R.D. 54, 64 (D.N.J.1996); see also Hasbrouck v.
BankAmerica Hous. Servs., 190 F.R.D. 42, 44-45 (N.D.N.Y.1999)
(holding that discovery rulings are reviewed under abuse of discretion
standard rather than de novo standard); EEOC v. Mr. Gold, Inc., 223
F.R.D. 100, 102 (E.D.N.Y.2004) (holding that a magistrate judge's
resolution of discovery disputes deserves substantial deference and
should be reversed only if there is an abuse of discretion).
Halsey v. Pfeiffer, No. 09-1138, 2010 WL 3735702, *1 (D.N.J. Sept.
17, 2010).
This discretion is guided, however, by certain basic principles. Thus, at the
outset, it is clear that Rule 26's broad definition of that which can be obtained through
discovery reaches only “nonprivileged matter that is relevant to any party’s claim or
defense.” Therefore, valid claims of relevance and privilege still cabin and restrict
the court’s discretion in ruling on discovery issues. Furthermore, the scope of
discovery permitted by Rule 26 embraces all “relevant information” a concept which
is defined in the following terms: “Relevant information need not be admissible at
trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.”
A party seeking discovery bears the initial burden of proving the relevance of
the requested information. Morrison v. Philadelphia Housing Auth., 203 F.R.D. 195,
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196 (E.D.Pa. 2001). Once that initial burden is met, “the party resisting the discovery
has the burden to establish the lack of relevance by demonstrating that the requested
discovery (1) does not come within the broad scope of relevance as defined under
Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of broad
disclosure.” In re Urethane Antitrust Litigation, 261 F.R.D. 570, 573 (D.Kan. 2009).
Furthermore, in the context of a request for access to medical records of a
plaintiff who has put his physical condition at issue though the allegations made in
his lawsuit, this court has previously defined for us the standards which control our
evaluation of such discovery disputes. In this setting, we have repeatedly held that
when a plaintiff puts his mental and emotional health at issue in a civil lawsuit he
implicitly waives the protection of the doctor-patient privilege with respect to his
medical records. See, e.g., Smith v. Cent. Dauphin Sch. Dist., 1:05-CV-01003, 2007
WL 188569 (M.D. Pa. Jan. 22, 2007)(held, when a plaintiff puts her mental health at
issue in a civil law suit, however, she impliedly waives the protection of the
privilege); Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 135 (E.D. Pa. 2001), citing
Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 130 (E.D.Pa.1997) (holding that
“a party waives the privilege by placing her mental condition at issue”); Topol v.
Trustees of the Univ. of Pa., 160 F.R.D. 476, 477 (E.D.Pa.1995) (“Having placed her
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mental state in issue, plaintiff waived any applicable psychotherapist-patient
privilege.”), Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.2000) (same); Sidor
v. Reno, No. 95 Civ. 9588(KMW), 1998 WL 164823, at *2–3 (S.D.N.Y. April 7,
1998) (same); Kerman v. City of New York, No. 96 CIV. 7865(LMM), 1997 WL
666261, at *3 (S.D.N.Y. Oct.24, 1997) (same); Alden v. Time Warner, Inc., No. 94
CIV. 6109(JFK), 1995 WL 679238, at *2 (S.D.N.Y. Nov.14, 1995) (same).
Thus, while courts consistently hold that “[i]t would be unfair to allow
plaintiffs to unilaterally determine the amount of harm defendant caused, without
allowing the defendant or the fact-finder to argue, consider and weigh other relevant
factors of emotional stress,” Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 136 (E.D.
Pa. 2001), it is also well “recognize[d] that [the] plaintiff has a privacy interest in
maintaining the confidentiality of h[is] records of . . . health treatment.” Smith v.
Cent. Dauphin Sch. Dist., 1:05-CV-01003, 2007 WL 188569 (M.D. Pa. Jan. 22,
2007). Balancing these competing interests, in the exercise of their discretion, courts
have directed that medical “records at issue should be disclosed subject to a
protective order, [requiring] defendants [to] maintain confidentiality of the records
by not disclosing any portion of the contents to anyone other than the court, the
attorneys (and their staff) involved in the matter, and expert witnesses; by not
releasing any portion of the records to third-parties; by destroying the records at the
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conclusion of the litigation . . . ; and by not using the information contained in the
records for purposes other than prosecuting this lawsuit.” Furey v. Wolfe, CIV.A. 101820, 2012 WL 877115 (E.D. Pa. Mar. 15, 2012).
This is the approach that we will adopt in the instant case. Finding that the
plaintiff’s assertions put these medical matters at issue in this litigation, we conclude
that the plaintiff has waived any broad claim of privilege. We further conclude that
the plaintiff’s medical records are relevant to the issues raised by his claims in this
lawsuit, and therefore direct that the medical records be provided to defense counsel
subject to a protective order requiring defense counsel to maintain confidentiality of
the records by not disclosing any portion of the contents to anyone other than the
court, the attorneys, parties involved in the matter, and expert witnesses; by not
releasing any portion of the records to other third-parties, without prior express
approval of the court; by destroying the records at the conclusion of the litigation; and
by not using the information contained in the records for purposes other than
prosecuting this lawsuit.
III.
Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED as follows:
1.
First, the plaintiff’s motion to quash, (Doc. 23.), motion of objection
(Doc. 29.), motion for order (Doc. 32.), and motion for extension of time
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(Doc. 33.) are DENIED, and it is ORDERED that the medical records
of the plaintiff are to be released to defense counsel within 20 days of
this order.
2.
Second, this disclosure is subject to a protective order requiring defense
counsel to maintain confidentiality of the records by not disclosing any
portion of the contents to anyone other than the court, the attorneys,
parties involved in the matter, and expert witnesses; by not releasing any
portion of the records to other third-parties, without prior express
approval of the court; by destroying the records at the conclusion of the
litigation; and by not using the information contained in the records for
purposes other than prosecuting this lawsuit.
So ordered this 24th day of April 2013.
S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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