Case Number: 19STCV19955 Hearing Date: February 21, 2020 Dept: 29

Avila v. Torres, et al.

Motion to Quash Defendants’ Subpoenas for Plaintiff’s Employment and Pharmacy records; Request for Monetary Sanctions Against Defendant Carlos Torres and/or Andrea Cruz and/or Their Counsel of Record is GRANTED in part and DENIED in part.

The motions to quash the subpoenas to Rite Aid Corporation and CVS Pharmacy are DENIED. The motion to quash the subpoena to JAS Pacific is GRANTED in part and DENIED in part, as set forth below. The motion to quash the subpoena directed to the City of Los Angeles – Department of Building & Safety is DENIED AS MOOT. The request for sanctions is DENIED.

This case arises out of an automobile accident. Plaintiff alleges that he suffered traumatic brain injury, cervical and lumbar disc herniations, numbness and tingling in his legs, post-traumatic stress disorder, headaches, nausea, memory loss, concentration problems, sensitivity to light, mental fogginess, uncontrollable emotions and a nervous system disorder called pseudobulbar affect (which causes involuntary laughing and crying). Plaintiff also contends that he suffers from depression and various visual ailments as a result of the accident.

At his deposition, Plaintiff testified that he will possibly lose income in the future as a result of the accident because it is becoming more difficult for him to work, but Plaintiff attested in verified interrogatory responses that he is not seeking damages for loss of income or loss of earning capacity.

Plaintiff seeks to quash the following subpoenas:

(1) Subpoenas to Rite Aid Corporation and CVS Pharmacy, each dated December 20, 2019, seeking the production of records from July 18, 2007 that reflect the names of physicians who prescribed Plaintiff with any one of 45 listed medications. Defendants characterize these medications as pain medications, muscle relaxer medications, anxiety medications, vision related medications, concentration difficulty medications and sleep difficulty medications. The list also includes antidepressant medications, which were included on Plaintiff’s treatment plan for Plaintiff’s complaint of pseudobulbar affect.

(2) Subpoenas to JAS Pacific and to the City of Los Angeles – Department of Building & Safety for the following categories of records:

— records from July 18, 2007 to the present regarding workers’ compensation claims for pain or injury regarding only the following body parts or conditions: legs, arms, eyes, head, neck, back, brain, blurred vision, nausea, post traumatic stress disorder, depression, anxiety and headaches;

— records for that period regarding any physical impairment or limitation relating to those body parts or conditions;

— records from July 18, 2016 to the present reflecting days and hours absent from work relating to those body parts or conditions;

— records from July 18, 2016 to the present reflecting days and hours worked, including timesheets and documents reflecting shifts and hours scheduled to work; job duties, job title and employment capacity; job performance evaluations; income, commissions, bonuses and overtime; and gross and net income.

Plaintiff claims that these four subpoenas violate his right to privacy.

DISCUSSION

A. Pharmacy records

Litigants have a right to constitutionally protected right to privacy in their medical records. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Harris v. Superior Court, (1992) 3 Cal.App.4th 661, 665. However, there is an implicit waiver of a plaintiff’s constitutional rights to privacy for medical records directly relevant to a plaintiff’s claim. By filing a personal injury action plaintiffs place in issue their past and present physical and/or mental conditions related to the injury sued upon. All medical and/or psychological records that are directly related to the claimed injuries are discoverable. Ev.C. §§ 996, 1016; Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 C3d 844, 862-864, 143 CR 695, 706-708. Evidence of prior injuries to impeach a personal injury plaintiff’s credibility is relevant and admissible. (Dodson v. J. Pacific, Inc. (2007) 154 Cal. App. 4th 931, 936, fn 2).

On the other hand, “a patient can prevent disclosure of his or her medical history that is not directly relevant to the action.” (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Harris v. Superior Court, (1992) 3 Cal.App.4th 661, 665. Britt v. Sup.Ct. (San Diego Unified Port Dist.) (1978) 20 Cal. 3d 844, 864; Palay v. Sup.Ct. (County of Los Angeles) (1993) 18 Cal. App. 4th 919, 928-935.)

Here, Defendants seek the production of pharmacy records that will identify medical providers who prescribed plaintiff medications for treatment of neurological, cognitive, psychological and physical complaints similar to the injuries and conditions that Plaintiff claims were caused by this accident. Such evidence is directly relevant and reasonably calculated to lead to the discovery of admissible evidence. The evidence is relevant to whether the car accident caused these problems or whether they were pre-existing conditions for which Plaintiff was already receiving treatment. The evidence could also be used to impeach Plaintiff to the extent he claims that the issues arose only after the accident.

Plaintiff argues that only prescriptions for the precise medications that Plaintiff has been prescribed here would be relevant to his claim. Plaintiff’s argument if flawed. Past prescriptions for pain medications would be relevant to whether the accident caused the pain that Plaintiff currently suffered from, even if the past prescriptions were for a different pain medication than the ones he is currently prescribed. Similarly, past prescriptions for anti-depressants would be relevant to the determination of whether Plaintiff’s current symptoms of depression were caused by the accident or were pre-existing conditions.

In sum, the motion to quash the pharmacy subpoenas is DENIED.

B. Employment records

Defendants served subpoenas on JAS Pacific and to the City of Los Angeles – Department of Building & Safety. The City of Los Angeles – Department of Building & Safety has responded that it has no responsive records. Plaintiff’s motion to quash that subpoena is thus denied as moot.

The subpoena to JAS Pacific encompasses two categories of documents: documents related to injuries to the body parts at issue here and documents related to attendance and income.

Records regarding workers’ compensation claims for pain or injury regarding legs, arms, eyes, head, neck, back, brain, blurred vision, nausea, post-traumatic stress disorder, depression, anxiety and headaches are relevant and discoverable for the reasons stated above. The Court thus denies the motion to quash the subpoena with respect to such records. The same conclusion applies to documents reflecting any physical impairment or limitation relating to those body parts or conditions.

The subpoena also seeks employment records from July 18, 2016 related to job duties, job title and employment capacity; and job performance evaluations. These records are directly relevant to Plaintiff’s activity level after the accident and could corroborate or impeach Plaintiff’s claims of injury and impairment. Discovery of these documents is allowed. The motion to quash is denied as to these categories of records.

The subpoena is quashed to the extent that it seeks the production of documents related to income, commissions, bonuses and overtime; and gross and net income. Plaintiff has served interrogatory responses verifying under oath that he is not seeking damages for lost income or lost earning capacity. The Court expressly relies on those interrogatory responses and on Plaintiff’s counsel’s representations that Plaintiff is not seeking past or future lost income in granting the motion to quash with respect to this category.

The subpoena also seeks records from July 18, 2016 to the present reflecting days and hours worked, including timesheets and documents reflecting shifts and hours scheduled to work. Defendants argues that it is entitled to these records to test Plaintiff’s contention that he missed three days of work because of the accident. The subpoena is overbroad for that purpose. The subpoena is quashed with respect to these categories of documents.

Finally, the subpoena seeks records from July 18, 2016 to the present reflecting days and hours absent from work relating to those body parts or conditions. Defendants did not present any argument specifically related to this category. The Court denies the motion to quash this category to the extent that there are documents that specifically state that absences are related to the listed body parts or conditions. The request for documents “reflecting” such absences is too vague to be enforced.

C. Summary of ruling

Motions to quash the subpoenas to Rite Aid Corporation and CVS Pharmacy are DENIED.

Motion to quash the subpoena to JAS Pacific is GRANTED in part and DENIED in part. The motion is granted with respect to the following categories of documents: records from July 18, 2016 to the present reflecting days and hours worked, including timesheets and documents reflecting shifts and hours scheduled to work; income, commissions, bonuses and overtime; and gross and net income.

The motion to quash the subpoena to JAS Pacific is DENIED with respect to the following categories of documents:

— records from July 18, 2007 to the present regarding workers’ compensation claims for pain or injury regarding only the following body parts or conditions: legs, arms, eyes, head, neck, back, brain, blurred vision, nausea, post traumatic stress disorder, depression, anxiety and headaches;

— records for that period regarding any physical impairment or limitation relating to those body parts or conditions; records from July 18, 2016 to the present regarding job duties, job title and employment capacity; job performance evaluations;

— records from July 18, 2016 related to absences to the extent the records specifically state that the absences were caused by injuries to the body parts listed above, or were caused by the conditions listed above.

The motion to quash the subpoena directed to the City of Los Angeles – Department of Building & Safety is DENIED AS MOOT.

D. Request for sanctions

The Court finds that the imposition of sanctions would not be in the interest of justice here, and the Court therefore declines to impose them.

Moving party is ordered to give notice.