Case Number: BC620804 Hearing Date: March 16, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

alice bryant,

Plaintiff,

v.

city of los angeles,

Defendant.

AND RELATED CROSS-ACTIONS.

Case No.: BC620804

Hearing Date: March 16, 2018

[TENTATIVE] order RE:

Plaintiff’s motion to quash subpoena duces tecum

BACKGROUND

This action arises out of injuries Plaintiff Alice Bryant (“Plaintiff”) sustained on August 6, 2015, when she tripped and fell over a rise in a concrete sidewalk. The complaint, filed May 17, 2016, alleges causes of action for general negligence and premises liability.

Plaintiff has filed the instant motion to quash Defendants Hans Rockenwagner and Patricia Rockenwagner’s (“the Rockenwagner Defendants”) deposition subpoena served on medical provider Satinder Bhatia, MD. The Rockenwagner Defendants served the deposition subpoena at issue on January 2, 2018. (See Mot., Exh. A.) The subpoena served on Dr. Bhatia seeks all documents and records pertaining to Plaintiff’s treatment, care, and examination, including charts, x-rays, images, studies taken, payment/discount for medical billings, billing information, charges, and all communications from and to Plaintiff from 10 years prior to the date of loss of August 6, 2015 to the present. The Rockenwagner Defendants oppose.

The Court notes that the Rockenwagner Defendants served similar subpoenas on medical providers of Plaintiff earlier in this litigation. Plaintiff moved to quash those subpoenas on grounds that the requests were overly broad and invaded Plaintiff’s privacy rights. At the hearing on November 29, 2017, the Court determined that the subpoenas were overbroad and modified the subpoenas to a period of 5 years and to the areas of the body that Plaintiff claims injury.

LEGAL STANDARD

If a subpoena requires the attendance of a witness or the production of documents, the court may, upon motion reasonably made, make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. (CCP §1987.1(a).)

In making an order pursuant to CCP §1987.1, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (CCP §1987.2(a).)

DISCUSSION

While plaintiffs are not obligated to sacrifice all privacy to seek redress for a specific physical, mental, or emotional injury, “they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 864; City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 232.) A plaintiff suing for personal injuries waives the physician-patient privilege to some extent, but this does not make discoverable all of a plaintiff’s lifetime medical history. (Britt, supra, 20 Cal.3d at 863-64.)

Plaintiff argues that the subpoena is overbroad and an unreasonable violation of Plaintiff’s right of privacy as it seeks disclosure of records beyond the injuries at issue and for a period of 10 years. Plaintiff argues the subpoena is not tailored to seek records related to the areas of the body that are similar and/or the same areas of the body to which Plaintiff is claiming injuries.

In opposition, the Rockenwagner Defendants argue that Plaintiff has placed her physical and mental health at issue because she claims injuries to her left hand, back, neck, and left hip, as well as depression, as a result of her fall. The Rockenwagner Defendants assert that Plaintiff claimed at her deposition that she suffered from depression as a result of the trip and fall in the instant case. (Castronovo Decl., at ¶ 4.) The Rockenwagner Defendants argue that the prior medical history of Plaintiff’s health (particularly at her age) is relevant to determine if she has any prior injuries or depression/anxiety. However, the Rockenwagner Defendants fail to provide sufficient evidence that Plaintiff is claiming depression as an injury resulting from the trip and fall in this case. Though Defense counsel’s declaration references Plaintiff’s testimony that she suffered from depression as a result of the August 6, 2015 trip and fall, neither of the deposition transcript excerpts that are attached to Defendants’ motion (Exhibits A and B) show any mention of depression by Plaintiff. Based on this inadequate showing, the subpoena will be narrowed not to require production of any mental health records.

The Rockenwagner Defendants further argue that the subpoena should not be restricted only to the body parts to which Plaintiff is claiming injury for this incident. Defense counsel states that their designated retained expert, Dr. James R. High, “indicated he needs the lab work, organs exams, etc. to complete a proper review of plaintiff’s claims as he does not know if any of these exam or test results contain information relevant to plaintiff’s claims. . .” (Castronovo Decl., at ¶¶ 13, 17.) Defendant does not provide any declaration or statement from Dr. High that explains what tests and examination records are needed or why Dr. High finds these records necessary. The Court finds that the barebones, conclusory statements in Defense counsel’s declaration are not enough of a showing to allow the Rockenwagner Defendants access to records which are protected by Plaintiff’s right to privacy. The Rockenwagner Defendant have failed to provide sufficient information to show that the discovery needs of the defense outweigh Plaintiff’s right to privacy. If the Rockenwagner Defendants persist that these tests are necessary to the analysis, they may issue another more specific subpoena that describes precisely what types of tests and examinations they seek. In addition, if another motion to quash is brought, the Rockenwagner Defendants must provide a declaration from the expert to explain what tests and records are being sought and for what purpose they may be relevant.

While Plaintiff’s medical records are arguably relevant to the action, the documents requested in the subpoena are overly broad in time and scope. As such, the subpoena will be modified and restricted in time for a period of 5 years prior to the subject incident to the present and in scope to require production of medical records described in the subpoena relevant to injuries or issues with Plaintiff’s back, neck, left hand, and left hip. As insufficient evidence has been shown that Plaintiff seeks damages associated with depression, mental health records need not be produced until Defendant demonstrates that Plaintiff has asserted a claim for depression as an injury resulting from the incident in this case.

CONCLUSION AND ORDER

Pursuant to CCP §1987.1, Plaintiff’s motion to quash is granted in part such that the subpoena is modified as discussed above. Each parties’ request for monetary sanctions is denied as there is a good faith dispute as to the proper scope of the subpoena.

Plaintiff is ordered to provide notice of this order.

DATED: March 16, 2018 ___________________________

Elaine Lu

Judge of the Superior Court