2017-00223951-CU-OE

Joyee Watkins vs. Dignity Health Foundation

Nature of Proceeding: Motion to Quash Subpoena

Filed By: Velez, Mark P.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Plaintiff Joyee Watkins’ (“Plaintiff”) motion to quash the subpoenas issued to Dignity Health Medical Foundation and CVS Pharmacy for Plaintiff’s medical and pharmacy records is GRANTED.

Defendants’ request for judicial notice is granted.

This is an employment action in which Plaintiff alleges causes of action for Retaliation for Disclosure of Information to a Government or Law Enforcement Agency and Disability Discrimination against Dignity Health Foundation, Dignity Health Medical Foundation, and Dignity Health (collectively, “Defendants”). Plaintiff complained that her co-worker was using dirty scopes on patients and Dignity determined after investigation that plaintiff was not cleaning her scopes. Plaintiff alleges she was terminated due to her complaint and a physical disability. Plaintiff claims she has suffered emotional distress damages caused by Defendants’ wrongful conduct.

On August 9, 2019, defense counsel issued deposition subpoenas for the production of business records to Dignity Health Medical Foundation – Woodland & Davis and CVS Pharmacy, Inc.

The Dignity subpoena seeks:

1. Plaintiff’s medical records and doctor’s notes related to “stress, anxiety, depression, depressive disorder or any mental or physical condition or disability related to stress, anxiety or depression at any time during August 23, 2018 to the present.”

2. Plaintiff’s medical records regarding prescriptions for Lorazepam, Tamezepam, and PHenetermine for the time period of August 23, 2018 to the present.

3. Notes issued by Corrine Case, PA and records or notes showing the reason any medical note issued by Corrine Case, PA was backdated.

4. Plaintiff’s medical records showing any screening of Plaintiff for any mental

health condition, including but not limited to stress, anxiety, depression, depressive disorder, or any other mental condition related to the same, from January 1, 2015, to the present.

The CVS subpoena seeks:

1. Prescription drug history records for PLAINTIFF during January 1, 2015 to the present pertaining to medications for the treatment of any mental health condition, such as (but not limited to) depression, anxiety, panic, or anger.

2. All DOCUMENTS pertaining to any prescription, refill, or purchase of Lorezapam, Temazepam, or Phentermine, including the first and every time a prescription for any such drugs was sent to and/or filled by CVS PHARMACY.

3. All DOCUMENTS showing any payment made by PLAINTIFF for any prescription, refill, or purchase of Lorezapam, Temazepam, or Phentermine.

4. All DOCUMENTS showing any prescriptions issued by Corrine Case, PA, Mark P. Ewens, M.D., any psychiatrist, or any medical provider for the treatment of PLAINTIFF for any mental health condition, such as (but not limited to) depression, anxiety, panic, or anger. [emphasis added]

The parties met and conferred regarding Defendants’ withdrawal of the subpoenas, but were unable to reach an agreement.

Plaintiff now moves to quash the subpoenas pursuant to her Constitutional right to privacy. Plaintiff argues she has expressly stipulated that: (1) no claim is being made for medical and emotional distress over and above that usually associated with the physical injuries claimed; and (2) no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages. As Plaintiff agreed to limit her emotional distress damages as outlined above, she argues the subpoenas seek private documents that are irrelevant. In support, she cites to CCP § 2032.320.

In opposition, Defendants argues the right to privacy is not absolute and Plaintiff has tendered a claim for emotional distress damages and waived her right to privacy by placing in issue the emotional and physical damages she attributes to Defendants.

Defendants argue Plaintiff’s claim that her medical and pharmacy records should not be subject to discovery on the grounds that she offered only to seek “garden variety emotional distress damages” has no support in fact or law. Defendants argue Plaintiff refused to enter into a formal stipulation, her claim for emotional distress damages, remains, and Plaintiff’s only legal basis for her contention (CCP § 2032.320) pertains to demands for mental examinations and is not on point. Defendants also point out the parties entered into a protective order on June 26, 2018, which protects Plaintiff’s privacy concerns. Defendants contend they have no other means by which to obtain this truthful information.

Defendant also argues Plaintiff cannot have an expectation of privacy because she did not object to the first subpoena served by Defendants seeking Plaintiff’s medical records from the same Dignity Health entity. The Court rejects this argument. Plaintiff’s lack of objection to a completely different subpoena, even if served on the same entity, has no bearing on the instant issue before the Court. The

As to Plaintiff’s argument that the subpoenas should be quashed because she has agreed to limit her emotional distress claim and not use any expert testimony, the Court agrees that Plaintiff has presented no legal authority in support of this contention. The only legal authority proffered by Plaintiff pertains to demands for mental examinations, which is not at issue here. Accordingly, this argument is rejected.

However, there is no dispute Plaintiff’s medical and pharmacy records are protected by the right to privacy. Nonetheless, 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; disapproved by Williams v. Superior Court (2017) 3 Cal.5th 531 only to the extent that the case assumed without conducting the Hill analysis that a compelling need is automatically required when a party seeks discovery of private information.) In situations such as these, where it is argued that a party waives protection by filing a lawsuit, the Court must construe the concept of waiver narrowly and the requisite “compelling public interest” is demonstrated only where the material sought is directly relevant to the litigation. Such waiver extends only to information relating to the medical conditions in question, and does not automatically open all of a patient’s past medical history to scrutiny. (Britt v. Superior Court (1978) 20 Cal.3d 844, 858-859.)

A plaintiff does not sacrifice all privacy rights in seeking redress for a specific medical condition. (Britt, supra, 20 Cal.3d. at 863-864 [citations omitted].) “As Lifschutz explains, plaintiffs are ‘not obligated to sacrifice all privacy to seek redress for a specific [physical,] mental or emotional injury’; while they may not withhold information which relates to any physical or mental condition which they have put in issue by bringing this lawsuit, they are entitled to retain the confidentiality of all unrelated medical or psychotherapeutic treatment they may have undergone in the past. The trial court thus obviously erred in ordering plaintiffs to disclose to defendant their entire lifetime medical histories and this aspect of the challenged discovery order must also be vacated.” (Id. at 864.)

Further, in order to pass constitutional scrutiny, the party seeking discovery into matters deemed private must show there is no less intrusive means to obtain this information. (See, e.g., Tien v. Superior Court (Tenet Healthcare Corp .) (2006) 139 Cal.App.4th 528, 539-540; In re Marriage of Harris (2004) 34 Cal.4th 210, 244.)

Here, Plaintiff has alleged Defendants retaliated against her for making a complaint to a government or law enforcement agency and that she was subjected to discrimination based on her medical disability. (Complaint ¶¶ 19-20, 22-36, and 37042.) Plaintiff alleges she suffered from anxiety and depressive disorder during her employment with Defendants and alleges Defendants’ actions exacerbated her mental and emotional condition. (Complaint ¶ 20.) Through discovery Plaintiff asked Defendants to admit that Plaintiff submitted a request for medical leave due to her anxiety and depressive disorder and that Defendants received a doctor’s note excusing Plaintiff from work due to her “protected medical condition.” (Solano Decl. ¶4, Exh. 2.) In discovery responses, Plaintiff attributed severe stress, anxiety and depression to Defendants’ adverse employment action. (Solano Decl. ¶5, Exhs. 1 and 3 (Response to Form Interrogatory Numbers 204.2 and 212.1.) Plaintiff also alleged her emotional injuries were becoming worse as a result of Defendants. (Solano Dec. at ¶6 and Exh. 4 (Response to Form Interrogatory 212.3].) Plaintiff claimed in discovery and testified that as a result of Defendants’ alleged unlawful conduct, she has sought treatment from the Dignity Health Woodland Clinic, purchased prescription medication including Lorazepam, Temazepam, and Phentermine from CVS Pharmacy to treat her symptoms, and spent $ 1,000 for treatment of such anxiety and depression. (Solano Decl. at ¶ 7, Exh. 5.)

While some of Plaintiff’s medical and pharmacy records may be relevant, the Court is not persuaded the subpoenas are narrowly tailored. Even though Plaintiff has tendered part of her mental health condition through her allegations in the complaint and her discovery responses, she has not tendered her entire mental health history. Some of the subpoena requests seek information not related to the issues that Plaintiff has tendered in this action. For example, part of the Dignity Health subpoena seeks Plaintiff’s medical records showing any screening of Plaintiff for any mental health condition, including but not limited to stress, anxiety, depression, depressive disorder, or any other mental condition related to the same, from January 1, 2015, to the present. Similarly, part of the CVN subpoena seeks prescription drug history records for Plaintiff during January 1, 2015 to the present pertaining to medications for the treatment of any mental health condition, such as (but not limited to) depression, anxiety, panic, or anger. The CVS subpoena also seeks all documents showing any prescriptions issued by Corrine Case, PA, Mark P. Ewens, M.D., any psychiatrist, or any medical provider for the treatment of Plaintiff for any mental health condition, such as (but not limited to) depression, anxiety, panic, or anger. While the requests refer specifically to certain mental health issues Plaintiff has placed at issue by filing this action, the phrase “including but not limited to” and referring to “any mental health condition” makes the subpoenas overbroad. Plaintiff has not placed her entire mental health condition at issue and, even though the requests are limited in time and that a protected order has been executed by the parties does not change the analysis. There is no showing that the subpoenas as framed seek information that is directly relevant and essential to a fair resolution of the lawsuit. (Britt, supra, at 859-860.)

While more narrowly tailored subpoenas may be appropriate, the instant subpoenas are not and the Court will not, sua sponte, undertake the task of defining what is appropriate, nor will it rewrite the subpoena. As a result, the motion to quash is granted, without prejudice to Defendant issuing appropriate subpoenas.

Defendants’ request for monetary sanctions is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.