2012-00136815-CU-PA

Noel Gonzalez vs. Paratransit Incorporated

Nature of Proceeding: Motion to Compel Compliance with Subpoena

Filed By: Camy, William E.

Defendant’s Motion to Compel Compliance by Kaiser Permanente with medical
records subpoena seeking plaintiff Noel Gonzalez’ mental health records related to the
motor vehicle accident is granted.

Plaintiff was involved in a motor vehicle accident. Plaintiff seeks damages for pain and
suffering and emotional distress damages related to that accident. Plaintiff was
treated at Kaiser for a brief period after the accident. Plaintiff testified at his deposition
about the complaints he made to the mental health provider at Kaiser (Depo. plaintiff
page 123) The subpoena issued to Kaiser by defendant seeks “Any and all mental
health records related to patient’s accident of June 15, 2012.” The subpoena is
narrowly tailored to seek only those mental health medical records directly related to
the emotional distress damages arising out of the accident.

The plaintiff/patient is not obligated to sacrifice all privacy to seek redress for a specific
mental or emotional injury; the scope of the inquiry permitted depends upon the nature
of the injuries which the patient-litigant himself has brought before the court. In re
Lifschutz (1970) 2 C.3d 415, 435. Here, Plaintiff waived the psychotherapist-patient
privilege when he made a claim for emotional distress damages due to the accident
and later disclosed a significant part of the communication with his therapist in the
deposition. Ev Code 912(a). The materials sought are directly relevant to the emotional distress damages sought.
Davis v Superior Court (1992) 7 Cal.App.4th 1008, 1017.

In opposition, plaintiff contends that he has withdrawn his claims for psychological
injury but is still maintaining “claims for emotional distress that is the normal sequella
associated with the physical injuries he sustained such as pain, suffering and
emotional distress. In this assertion, plaintiff appears to attempt to invoke the “garden-
variety” argument, addressed in Davis, supra. However, the CCP provision allowing a
plaintiff to avoid a mental health exam by withdrawing a claim for all emotional distress
damages other than that usually associated with the physical injuries claimed does not
apply to a document request for mental health records that are directly related to the
claim for emotional distress. See CCP 2032.320(c)(1)(2). In this case, plaintiff testified
at his deposition that he told the counselor about his specific complaints including
trouble sleeping, nightmares, and flashbacks. Plaintiff wishes to testify as to these
subjects at trial. The records are therefore directly relevant and plaintiff’s interest in
keeping these records private is outweighed by the defendant’s right to discover
directly relevant information.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.