2012-00126576-CU-PO

Jason Starn vs. Smoke Island;No Limit Smoke Shop

Nature of Proceeding:    Motion to Compel Production of Documents

Filed By:   Kelly, Crystal L. Filed By:   Kelly, Crystal L.

Defendant Still Smoking’s unopposed motion to compel Aegis Medical System to
produce documents is granted.

Defendant’s request for judicial notice is granted.

In this action, Plaintiff alleges he suffered injury after inhaling nitrous oxide from
whipping cream canisters.  Plaintiff’s discovery responses indicate that he has used
alcohol and narcotics and has been in treatment facilities.  Defendant believes that the
side effects from such use are similar to the effects from any injury from inhaling
nitrous oxide.  One of Plaintiff’s treating physicians works for non-party Aegis Medical
Systems’ (“AMS”), a narcotics treatment facility close to Plaintiff’s residence and
Defendant sought to determine whether Plaintiff received treatment there.  Defendant
served a subpoena on AMS to obtain Plaintiff’s medical records and also served a
notice of consumer on Plaintiff’s counsel.  Plaintiff did not file a notice to quash or
modify the subpoena prior to the date of production.  AMS refused to produce the
documents without Plaintiff’s authorization or court order based on federal law
pertaining to treatment facilities.  Since the motion was filed, Plaintiff has authorized
AMS to release the requested records but AMS still has not produced the records.
(Kelly Reply Decl. 3.)

In ruling on discovery motions, the court must balance competing rights-the right of a
litigant to discover relevant facts and the right of an individual to maintain reasonable
privacy. Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.
Here, the requested records are directly relevant given that Plaintiff used narcotics
before, during, and after the times when he alleges that he inhaled nitrous oxide and
the conditions which he attributes to nitrous oxide use are also caused by alcohol and
narcotics abuse.  Further one of Plaintiff’s treating physicians works at AMS which is
less than a quarter mile from Plaintiff’s residence.  The documents are not privileged
as Plaintiff has placed his specific medical condition regarding any potential treatment
at AMS for narcotics at issue.  (In re Lifschutz (1970) 2 Cal.3d 415, 433-434.)  Thus,
the requested documents are both directly relevant and not privileged.

The authority relied upon by AMS in its correspondence with Defendant makes clear
that the Court may order disclosure if it finds good cause to do so after weighing the
public interest and need for disclosure against “the injury to the patient, to the
physician-patient relationship, and to the treatment services.”  (42 USC § 290dd-2(b)
(2)(C).)  Here, Plaintiff did not object, file a motion to quash or modify the subpoena
after being served with the notice to consumer.  (CCP § 1985.3(g).)  Further, since the
motion was filed, Plaintiff authorized AMS to release the requested records but AMS
still has not produced the records.  (Kelly Reply Decl. 3.)  Defendant has no other
means of obtaining these records and information.  In addition, the public interest and
need for disclosure outweigh any injury in production of the records,  as any records
AMS has related to Plaintiff’s treatment are directly relevant to the claimed injuries in
this lawsuit given the similarities between the effects of inhaling nitrous oxide and the
effects of narcotics and alcohol use and Plaintiff has authorized AMS to release the
records.

As a result, the motion is granted.  No later than December 31, 2013, AMS shall
produce the records requested in compliance with the subpoena which is the subject
of the instant motion.