2014-00172093-CU-PA

Tara Morgan vs. Carol Lynn Froelick

Nature of Proceeding: Motion to Quash Deposition Subpoena

Filed By: Pawloski, Keith R.

Defendant Kenneth George Eaton’s (“Mr. Eaton”) motion for quash deposition subpoena for production of business records on Mercy San Juan Medical Center (“Mercy”) is ruled upon as follows.

This action arises from a motor vehicle accident that occurred on April 23, 2013. Plaintiffs Tara Morgan and Richard Kamahana (collectively, “Plaintiffs”) allege Mr. Eaton, the driver, and defendant Carol Lynn Froelick (“Ms. Froelick”), the passenger, caused injuries and damages due to the accident. Plaintiffs filed their complaint on November 24, 2014, alleging causes of action for motor vehicle and general negligence.

On March 16, 2018, Plaintiffs’ counsel served a deposition subpoena for business records on Mercy seeking the following:

“ANY AND ALL MEDICAL RECORDS TO INCLUDE BUT NOT.LIMITED TO NURSE’S NOTES, FINDINGS, MEDICAL HISTORIES, S.O.A.P. NOTES, CONSULTATION REPORTS, OFFICE NOTES, PATIENT QUESTIONNAIRE FORMS, SIGN IN SHEETS, PHYSICAL EXAMINATION FILES, CORRESPONDENCE REGRDING THE PATIENTS CARE OR TREATMENT, PHYSICAL THERAPY TREATMENT, TRAUMA

TREATMENT, ER TREATMENT, AMBULANCE RECORDS, RADIOLOGY REPORTS, INPATIENT AND OUTPATIENT RECORDS, EMERGENCY ROOM AND LAB REPORTS, PRESCRIPTION AND PHARMACY RECORDS, PATHOLOGY RECORDS AND ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY REGARDING: Kenneth George Eaton, born on June 1, 1956, FOR THE DATE RANGE OF 4/23/2013 TO 4/24/2013.”

Mr. Eaton moves to quash the subpoena on the grounds that it invades his right to privacy and the requests are irrelevant, overbroad, unreasonable, unduly burdensome and oppressive. Mr. Eaton contends his medical information is wholly irrelevant as he is not asserting any bodily injury claims in this matter.

There is no dispute Mr. Eaton’s medical records are protected by the right to privacy. However, such right is not absolute and private information may be subject to discovery where the party seeking such discovery demonstrates a compelling need for the information and that the information cannot reasonably be obtained through less intrusive means of discovery such as depositions. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525-526.) It is of course also true that the physician-patient privilege is waived as to physical or mental conditions placed at issue in a personal injury action. (Evid. Code §§ 996, 1016.) But even in such cases a party “is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864 [citations omitted].) Thus, an implicit waiver of a party’s constitutional rights encompasses only discovery directly relevant to the plaintiff’s claim and essential to the fair resolution of the lawsuit. (Id. at p. 859.) Here, Mr. Eaton is not seeking to recover for personal injuries he received. Thus, it cannot be said that he has tendered any physical or mental condition in this action.

In opposition, Plaintiffs contend this information is relevant to their potential claim for punitive damages and if the subpoena is quashed, they will be unable to ascertain whether Mr. Eaton was driving under the influence at the time of the collision. Plaintiffs argue Mr. Eaton and his passenger, Ms. Froelick, originally stated in discovery responses that they had not had any alcohol or drugs 24 hours prior to the incident, but later both admitted they had consumed wine with dinner. Plaintiffs contend no field sobriety test was administered to Mr. Eaton at the scene of the accident because his injuries required that he be rushed to Mercy. Plaintiffs further contend they have attempted to depose Mr. Eaton, but his deposition has been delayed due to his incarceration (he was released in the Spring of 2017), and since his release defense counsel have consistently asked that Mr. Eaton’s deposition be postponed. Based on the foregoing, Plaintiffs reason they have no other means to obtain the information sought.

During the meet and confer process, Plaintiffs advised defense that the subpoena could be limited to the ER lab results and to information regarding drug and alcohol intake, and also suggested a first view agreement of the medical records with a privilege log. Defense counsel has not responded.

The Court would agree that the information sought regarding whether Mr. Eaton had drugs or alcohol in his system is directly relevant to a potential claim for punitive damages. Punitive damages are available in personal injury actions against one who drives while knowingly intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890.)

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. [citation omitted] One who willfully consumes alcoholic beverage to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver has a history of drunk driving incidents.” (Id. at 897-898.) A claim for punitive damages can be premised on despicable conduct involving consumption of alcoholic beverages. (Id. at 899.) Such alleged conduct demonstrates, in the words of Dean Prosser, “such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Id.; see also Burg v. Municipal Court, (1983) 35 Cal. 3d 257, 262.)

Plaintiffs have also indicated no field sobriety test was taken, that Mr. Eaton altered his written discovery responses regarding his consumption of alcohol prior to the accident, and defense counsel has made it difficult to schedule Mr. Eaton’s deposition. Given the history of Mr. Eaton’s contradictory testimony and the delay in scheduling his deposition, the Court is persuaded that at least some of Mr. Eaton’s medical records are needed for Plaintiffs to obtain the information. However, as currently written, the Court finds the subpoena is not narrowly tailored as it seeks “any and all medical records” of Mr. Eaton for the time period.

As Plaintiffs have agreed, and the Court agrees, the subpoena shall be limited to the following:

“ER lab results regarding drug and alcohol intake information for Kenneth George Eaton, born on June 1, 1956, for the date range of 4/23/2013 TO 4/24/2013.”

Accordingly, Mr. Eaton’s motion to quash is GRANTED in part and DENIED in part.