Case Number: BC535589    Hearing Date: September 16, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

SALLY MUSSO, et al.,

Plaintiff(s),
v.
TIME WARNER CABLE, INC., et al.,

Defendant(s). Case No.: BC535589

Hearing Date: September 16, 2014

[TENTATIVE] ORDER RE:
PLAINTIFFS SALLY MUSSO AND JOHN MUSSO’S MOTION TO QUASH DEFENDANTS’ SUBPOENAS TO EDWARD HANZELIK, M.D., CEDARS SINAI MEDICAL CARE FOUNDATION, CEDARS-SINAI MEDICAL GROUP AND ROLLING OAKS RADIOLOGY, OR IN THE ALTERNATIVE, AN ORDER MODIFYING THE SUBPOENAS; REQUEST FOR SANCTIONS AGAINST DEFENDANTS AND/OR DEFENSE COUNSEL

Plaintiffs Sally Musso and John Musso’s Motion to Quash Defendants’ Subpoenas to Edward Hanzelik, M.D., Cedars Sinai Medical Care Foundation, Cedars-Sinai Medical Group and Rolling Oaks Radiology, or in the alternative, an Order Modifying the Subpoenas; Request for Sanctions Against Defendants and/or Defense Counsel is CONTINUED to allow the parties to file separate statements addressing each subpoena at issue pursuant to CRC Rule 3.1345.

The parties are ordered to confer with the Court clerk to obtain a mutually agreeable date for the continuance of this motion. Plaintiffs are ordered to file and serve their separate statement nine (9) court days in advance of the hearing, in accordance with CCP Section 1005(c). Time Warner and Lapp are ordered to file and serve their separate statement five (5) court days in advance of the hearing, in accordance with CCP Section 1005(c). The parties are further ordered to provide courtesy copies of their separate statements directly to Department 93 on the date of filing. No further briefing is allowed under this Order.

In addition, it appears that while there has been some attempt to Meet and Confer in this case, the Court is ordering that the parties have one in-person meet and confer session in an effort to narrow the discovery sought here and potentially to resolve the motion in advance of the continued court date.

Discussion

Plaintiffs move to quash the following deposition subpoenas, issued by Time Warner and Lapp:

1. July 23, 2014 subpoena to Edward Hanzeilk, M.D., which seeks “Documents and medical records, and all writings, including, but not limited to, all office, emergency room, inpatient, outpatient, and hospital charts and records; radiology materials and films, X-rays, MRI’s, and CT scans (a complete list of breakdown from your film library must be provided prior to production of requested films); billing charges and Insurance records, explanation of benefits (EOB5), billing off-sets, and records of payment. pertaining to the care, treatment, and examination of Sally Musso, DOB:04/05/1938, SSN: XXX-XX-7552, from 2/01/2002 to the present.”

2. July 23, 2014 subpoena to Cedars-Sinai Medical Group, which seeks “Documents and medical records and reports, and all writings, including, but not limited to, all office, emergency room, inpatient, outpatient, hospital charts and records, including, but not limited to records from Jana Posalski, M.D., pertaining to the care, treatment, and examination of Sally Musso, DOB:04/05/1938, SSN: XXX-X.X-7552 from 2/01/2002 to the present.”

3. July 23, 2014 subpoena to Cedars-Sinai Medical Group (X-rays), which seeks “Radiology materials and films, X-rays, MRI’s. and CT scans, including, but not limited to films from Jana Posalski, M.D., pertaining to the care, treatment, and examination of Sally Musso, DOB DOB:04/05/1938, SSN: XXX-XX-7552, from 2/01/2002 to the present. A complete list of breakdown from your film library must be provided prior to production of requested films.”

4. July 23, 2014 subpoena to Cedars-Sinai Medical Care Foundation, which seeks “Itemized statements of the billing charges, including insurance billing and records, explanation of benefits (EOBs), billing off-sets, and records of payment, Including, but not limited to records from Jana Posalski, M.D., pertaining to the case, treatment, and examination of Sally Musso, DOB:04/05/1938, SSN: XXX-XX-7552, from 2/01/2002 to the present.”

5. July 23, 2014 subpoena to Rolling Oaks Radiology c/o Radnet Management, Inc., which seeks “Documents and medical records and reports, and all writings, Including, but not limited to, all office, emergency room, Inpatient, outpatIent, hospItal charts and records; radiology materials and films, X-rays, MRI’s, and CT scans (a complete list of breakdown from your film library must be provided prior to production of requested films), pertaining to the care, treatment, and examination of Sally Musso, DOB:04/05/1938, SSN: XXX-XX-7552, from 2/01/2002 to the present.”

6. July 23, 2014 subpoena to Rolling Oaks Radiology c/o Radnet Management (Billing), which seeks “Itemized statements of the billing charges, including insurance billing and records, explanation of benefits (EOBs), billing off-sets, and records of payment, Including, but not limited to records from Jana Posalski, M.D., pertaining to the case, treatment, and examination of Sally Musso, DOB:04/05/1938, SSN: XXX-XX-7552, from 2/01/2002 to the present.”
(Motion, Rausher Decl. (“Rausher Decl.”) Exh. 1.)

Scope of Subpoenas

Plaintiff objects that the deposition subpoenas of medical care providers are overbroad insofar as they seek records without any time limitation or limitation as to what injuries she allegedly sustained in the motor vehicle accident. Plaintiff contends that the subpoenas violate her right to privacy in her medical records and that any disclosure of private information must be narrowly circumscribed and proceed in the least intrusive manner possible.

As the Court held in Britt v. Superior Court (1978) 20 Cal.3d 844:

[P]laintiffs 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.

(Id. at 864.) Time Warner and Lapp respond that the wide breadth and scope of the subpoenas is justified in light of Plaintiff Sally Musso’s injuries and polymyalgia.

Separate Statements

CRC Rule 3.1345 does not distinguish between discovery to parties and discovery to non-parties, and is applicable therefore to Plaintiffs’ Motion to Quash. Separate Statements are necessary here so the Court can sort out the issues argued by the parties as to the privacy issues involved here.

Meet and Confer

While the Discovery Code does not require counsel to meet and confer prior to filing a Motion to Quash, Plaintiffs’ counsel did attempt to meet and confer with defense counsel about the subpoenas before and after they were served. (Rausher Decl. ¶¶2-7 and Exhs. 1-5.) Defense counsel complains that the meet and confer letter sent on July 30, 2014 did not reach her office until August 1, 2014, at which point she was on vacation. (Opp., Morris Decl. (“Morris Decl.”) ¶9.) Plaintiffs’ counsel, however, was not made aware that defense counsel would be on vacation until August 18, 2014, well after the date of production of the subpoenas and the filing date of a motion to quash. (Morris Decl. ¶¶9-11.)

In any event, given the likelihood that some of all of the issues involved in the Motion to Quash may be resolved by a meet and confer session, the Court is ordering that counsel hold one in-person meet and confer session in an attempt to resolve issues raised by the subpoenas and these motions prior to the continued court date.

Plaintiffs are ordered to give notice.

Dated: September 16, 2014

_______________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court