Kohari v. Jessie et al

Filing 79

MEMORANDUM OPINION AND ORDER denying Plaintiff's 75 MOTION to Quash Subpoena to Hurley Drug Company; granting a protective order modifying the scope of the subpoena duces tecum; directing Hurley Drug Company to produce records as more fully set forth herein; directing the parties to sign and tender the Agreed Protective Order found on the Court's website; further directing counsel for Defendants to provide a copy of this Order to Hurley Drug Company, or to otherwise advise Hurley Drug Company of the limitations imposed on the subpoena duces tecum by this Order. Signed by Magistrate Judge Cheryl A. Eifert on 4/3/2014. (cc: attys) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
J. TIMOTHY KOHARI, D.O.,
Plaintiff,
v.

Case No.: 2:13-cv-09072

CHRISTOPHER D. JESSIE and
JESSIE & JESSIE, A.C.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Quash Subpoena to Hurley Drug
Company. (ECF No. 75). Defendants have filed a response in opposition to the motion,
(ECF No. 76), and the time for filing a reply memorandum has expired. For the reasons
that follow, the court DENIES Plaintiff’s motion to quash, but GRANTS Plaintiff a
protective order under Federal Rule of Civil Procedure 26 modifying the subpoena duces
tecum to narrow the scope of the protected health information to be produced by Hurley
Drug Company.
I.

Relevant Facts
Plaintiff, J. Timothy Kohari, D.O., operated a medical practice in the Williamson,

West Virginia area until 2008 when he decided to retire. While in practice, Plaintiff
engaged Defendants to provide general accounting, management advisory, and tax
services to him personally and to his office. In December 2009, the Internal Revenue
Service initiated an audit of Plaintiff’s practice, which continued through May 2011.
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According to Plaintiff, both before and during the IRS audit, Defendants provided him
with incompetent advice, violated professional standards, and breached express and
implied duties to both him and his business. As a result, Plaintiff claims to have incurred
substantial financial loss, suffered emotional distress and other noneconomic injuries,
and is now threatened with criminal prosecution for income tax invasion. On April 25,
2013, Plaintiff filed the complaint herein, charging Defendants with professional
malpractice, breach of contract, fraud and/or misrepresentation, and breach of fiduciary
duty. Plaintiff demands compensatory and punitive damages.
In the course of discovery, Plaintiff identified Mr. Daniel Selby as an expert
witness. Mr. Selby intends to testify, in relevant part, that certain acts by Defendants led
to the demise of Plaintiff’s medical practice in 2008. Mr. Selby is further expected to
testify that the present value of Plaintiff’s practice, had it not been forced to close, is over
$5,000,000; thereby, supplying evidence of a large portion of Plaintiff’s alleged
compensatory damages.
Defendants strenuously deny playing any role in Plaintiff’s decision to close his
practice, instead contending that Plaintiff chose to voluntarily retire from medicine for a
variety of reasons. Most significant to this motion, Defendants claim that Plaintiff
developed “a problem” with hydrocodone cough syrup that resulted in the loss of
patients and alienated significant members of his workforce, including his medical
partner and officer manager. Defendants apparently discovered this information during
depositions of Plaintiff’s former staff, who testified regarding Plaintiff’s alleged use of
hydrocodone cough syrup, which he purportedly obtained from Hurley Drug Company.
Accordingly, Defendants served a subpoena duces tecum on Hurley Drug Company
requesting production of “any and all documents and records regarding J. Timothy
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Kohari, D.O., DOB xx/xx/58, SSN xxx-xx-1600, including but not limited to his entire
employment file, and records of prescriptions that he has filled at your facility.”1
II.

Positions of the Parties
Plaintiff argues that the subpoena should be quashed pursuant to Federal Rule of

Civil Procedure 45(d)(3)(A)(iii) because it requires the disclosure of privileged or
protected materials for which no exception or waiver applies. (ECF No. 75 at 2). Plaintiff
contends that his prescription records constitute private medical information, which
may only be discovered upon a showing of relevancy and a showing that he has placed
his medical condition at issue. Plaintiff emphasizes that he has made no claim that
would cause his prescription records to be relevant, nor has he placed his physical or
mental condition at issue in the case. Finally, Plaintiff confirms that he has not executed
a waiver or authorization for the release of this information. (Id. at 3).
To the contrary, Defendants argue that Plaintiff placed his physical and mental
condition at issue by claiming that Defendants caused his medical practice to close and
by seeking over $5,000,000 in damages related to the closure. In Defendants’ view, the
evidence strongly suggests that Plaintiff’s abuse of hydrocodone led to his personal and
professional decline and ultimately to his decision to retire. The reason for Plaintiff’s
retirement is fair game for discovery, and Defendants have every right to fully explore
this theory of defense. Therefore, the prescription records are plainly relevant, and
Plaintiff has waived any right he has to keep them confidential.

At a recent hearing, the parties mentioned that Plaintiff is now an employee of Hurley Drug Company.
Although Plaintiff asks to quash the subpoena in its entirety, he makes no argument in regard to the
employment records. Clearly, Plaintiff’s current employment is relevant to his damages claim; therefore,
some, if not all, of his employment records are subject to production. Because Plaintiff lodges no specific
objection to the production of any type or category of employment record, nor claims any particular
privilege or protection, the undersigned places no limitations on the subpoena duces tecum as it relates to
records other than prescriptions.

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In addition, Defendants argue that no privilege attaches to prescription records.
Pointing to the decision of the Supreme Court of Appeals of West Virginia in State ex.
rel. Allen v. Bedell, 193 W.Va. 32, 35, 454 S.E.2d 77, 80 (1994), Defendants assert that
the only “health care” privilege recognized in West Virginia is between psychotherapist
and patient. That privilege has not been extended to pharmacists and patients. (ECF No.
76). Similarly, there is no federal pharmacist/patient privilege. Accordingly, Rule
45(d)(3)(A)(iii) is inapplicable, and Defendants are entitled to discover Plaintiff’s
pharmaceutical history as long as it is relevant to a claim or defense in the case.
III.

Discussion
Federal Rule of Civil Procedure 45(d) sets forth the protections available to a

person subject to or affected by a subpoena. In particular, Rule 45(d)(3) outlines when a
court must quash or modify a subpoena, when it may do so, and when the court may
direct compliance under specified conditions. Here, Plaintiff argues the application of
Rule 45(d)(3)(A)(iii), which requires a court, on timely motion, to quash or modify a
subpoena that requires disclosure of privileged or other protected matter, “if no
exception or waiver applies.”
As a general rule, “only the party or person to whom the subpoena is directed has
standing to move to quash or otherwise object to a subpoena.” Transcor, Inc. v. Furney
Charters, Inc., 212 F.R.D. 588, 590 (D.Kan. 2003) (citation omitted). However, an
exception exists when the person objecting has a personal right or privilege in the
information sought by the requester. Singletary v. Sterling Transport Company, Inc.,
289 F.R.D. 237, 239 (E.D.Va. 2012). Although the subpoena in this case is directed to
Hurley Drug Company, the Court finds as a preliminary matter that Plaintiff has the
requisite standing. Clearly, Plaintiff has a personal right or privilege in his employment
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and prescription records, and a corresponding right to move to quash the subpoena
duces tecum seeking those records.
The

undersigned

will

first

address

Defendants’

argument

that

Rule

45(d)(3)(A)(iii) does not apply given the absence of a state or federal pharmacist/patient
privilege. In an action based on diversity of citizenship, where state law supplies the rule
of decision, the privilege of a person shall also be determined in accordance with state
law. Fed. R. Evid. 501. Defendant is correct that the State of West Virginia has not
codified a pharmacist/patient privilege, nor have West Virginia courts recognized such a
privilege. Consequently, no privilege attaches to Plaintiff’s prescription records.
Moreover, health care records are not the type of “other protected” materials
intended by Rule Fed. R. Civ. P. 45(d)(3)(A)(iii). Instead, this provision commonly
refers to testimony or documents that, “although not privileged, [are] nevertheless
protected from compelled disclosure, such as attorney work product or trial preparation
materials.” Vol. 9 Moore’s Federal Practice, § 45.51[3] (Matthew Bender 3d ed). In
contrast, the disclosure of medical records, including prescription records, may be
compelled when they are relevant to the claims or defenses in the case and appear
reasonably calculated to lead to the discovery of admissible evidence. Accordingly, Rule
45(d)(3)(A)(iii) does not directly govern this issue.
Nonetheless, the Supreme Court of Appeals of West Virginia has acknowledged
that health care records are, by nature, highly confidential and thus entitled to special
protection from unfettered release. Keplinger v. Virginia Elec. and Power Co., 208
W.Va. 11, 23, 537 S.E.2d 632, 644 (2000). Therefore, even when a plaintiff’s medical
condition is placed at issue in a West Virginia action (i.e. is relevant), it does not
automatically follow that the defendant is entitled to collect all of the plaintiff’s medical
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records. Rather, the defendant is permitted only to obtain those records pertaining to
the condition that has been placed at issue. Id. (“While we acknowledge that a person
who has filed a civil action that places a medical condition at issue has impliedly
consented to the release of medical information, this implied consent involves only
medical information related to the condition placed at issue. In this regard, we stated in
Kitzmiller that ‘the absence of [a physician-patient] privilege contemplates the release of
medical information only as it relates to the condition a plaintiff has placed at issue in a
lawsuit; it does not efface the highly confidential nature of the physician-patient
relationship that arises by express or implied contract’”).
Similarly, the federal government, recognizing an ever-increasing need to
regulate the release of confidential medical information, implemented the Health
Insurance Portability and Accountability Act of 1996 (“HIPAA”). Pub. L. 104-191.
HIPAA applies to most health care providers, including pharmacies, 45 C.F.R. §§
160.102(a)(3), 160.103, and governs the use and disclosure of individually identifiable
health information, also called “protected health information” Id. at § 160.103. Under
HIPAA’s Privacy Rule, health care providers may disclose protected health information
for judicial proceedings as long as they meet certain requirements that reduce the risk of
misuse, as well as unintended and unnecessary re-disclosures. 45 C.F.R. §
164.512(e)(1)(i)-(vi).
Although Plaintiff’s prescription records may not fall squarely within the
parameters of Rule 45(d)(3)(A)(iii), these records are unquestionably entitled to special
consideration when determining whether, and the extent to which, they should be
disclosed. In the context of discovery, “Rule 45 adopts the standards codified in Rule 26
which allows for the discovery of any matter ‘not privileged, that is relevant to the claim
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or defense of any party’ when the discovery request ‘appears reasonably calculated to
lead to the discovery of admissible evidence.’” Schaaf v. SmithKline Beecham Corp., 233
F.R.D. 451, 453 (E.D.N.C. 2005). Nevertheless, simply because information is
discoverable under Rule 26 “does not mean that discovery must be had.” Id. (citing
Nicholas v. Wyndham Int'l, Inc., 373 F.3d 537, 543 (4th Cir. 2004)). The same
limitations to discovery requests found in Rule 26 should be applied to a subpoena
served pursuant to Rule 45. See, e.g., HDSherer LLC v. Natural Molecular Testing
Corp, 292 F.R.D. 305, 308 (D.S.C. 2013) (“Rule 45 does not list irrelevance or
overbreadth as reasons for quashing a subpoena. However, the scope of discovery
allowed under a subpoena is the same as the scope of discovery allowed under Rule 26.”)
(citing Cook v. Howard, 484 Fed.Appx. 805, 812 (4th Cir. Aug. 24, 2012) (“Although
Rule 45(c) sets forth additional grounds on which a subpoena against a third party may
be quashed[,] ... those factors are co-extensive with the general rules governing all
discovery that are set forth in Rule 26.”)). Therefore, in this case, the Court must
consider Plaintiff’s motion under the standards set forth in Federal Rule of Civil
Procedure 26 and may fashion a protective order quashing or modifying the subpoena to
the extent that it seeks discovery which is irrelevant, overly broad, annoying,
embarrassing, oppressive, unduly burdensome or expensive, unreasonably cumulative
or duplicative.
Plaintiff argues that the subpoena should be quashed because his claims revolve
around the quality of Defendants’ professional services, and in no way place his medical
condition at issue. Plaintiff asserts that Defendants are engaging in a fishing expedition
in the hope of establishing “some unfounded and irrelevant assertion.” (ECF No. 75 at
2). In response, Defendants contend that Plaintiff placed his pharmaceutical use at issue
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when he claimed that Defendants caused the demise of his medical practice; particularly
given the testimony describing Plaintiff’s behavior when he was using hydrocodone
cough syrup.
The undersigned agrees that Plaintiff did not initially place his use of medication
at issue, but when he alleged the loss of his practice as an element of damages, he clearly
made the reasons for that loss relevant to the claims and defenses in this action. Plaintiff
voluntarily asserted the claim; thus, Defendants are entitled to explore and rebut it.
Moreover, Plaintiff’s contention that Defendants are engaging in a fishing
expedition is unpersuasive in light of the testimony of Plaintiff’s former employee and
colleague, who described Plaintiff’s erratic behavior in 2007 and 2008, which they
attributed to his use of hydrocodone cough syrup, and which they blamed for the decline
of his medical practice and the departure of his staff. Accordingly, the undersigned finds
that records pertaining to Plaintiff’s use of hydrocodone, and other narcotic medications
that might mimic or exacerbate the effects of hydrocodone, during the period of 20062008 are relevant, and should in fairness be disclosed to Defendants. To the extent that
such prescription records exist and are disclosed in this case, safeguards should be
implemented to prevent misuse and re-disclosure of the records outside of the litigation.
On the other hand, the undersigned further finds that records reflecting other
types of prescriptions and covering other periods of time are not particularly germane to
the claims and defenses in this action, and their disclosure would be unnecessarily
intrusive and potentially embarrassing to Plaintiff. Consequently, those records are
entitled to protection from disclosure under Federal Rule of Civil Procedure 26.

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IV.

Order
Wherefore, the Court DENIES Plaintiff’s Motion to Quash the subpoena to

Hurley Drug Company on the grounds that Plaintiff’s employment records and some of
his prescription records are relevant and discoverable in this action. However, Plaintiff
is entitled to a protective order under Rule 26 limiting the prescription records that are
produced and providing safeguards on the use and re-disclosure of those records. For
that reason, the Court GRANTS a protective order modifying the scope of the subpoena
duces tecum such that, in regard to the request for Plaintiff’s prescription records,
Hurley Drug Company is ORDERED to produce records reflecting only the following:
prescriptions of medications which include hydrocodone, and/or any other
narcotic medication, for the years 2006-2008. In addition, the parties are hereby
ORDERED to sign and tender the Agreed Protective Order found on the Court’s
website. The prescription records produced by Hurley Drug Company shall be
considered confidential under the Agreed Protective Order and shall be handled in
accordance with its terms. Counsel for Defendants is further ORDERED to provide a
copy of this Order to Hurley Drug Company, or to otherwise advise Hurley Drug
Company of the limitations imposed on the subpoena duces tecum by this Order.
The Clerk is instructed to provide a copy of this Order to counsel of record.
ENTERED: April 3, 2014

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