Opinion
C.A. No. 08C-01-053 WLW.
Submitted: February 6, 2009.
Decided: February 12, 2009.
Upon Plaintiff's Motion to Disclose Defendant's Drug and Alcohol Records. Denied.
Upon Plaintiff's Motion to Compel Defendant's Criminal History. Granted.
David A. Boswell, Esquire of Schmittinger Rodriguez, P.A., Rehoboth Beach, Delaware; attorneys for Plaintiff.
Ronald W. Hartnett, Jr., Esquire of Reger Rizzo Darnall, LLP, Wilmington, Delaware; attorneys for Defendants.
ORDER
FACTS
On February 2, 2006, Guillermo Fernandez ("Plaintiff") was working as a landscaper in an area adjacent to Pot Bunker Road in the Baywood Greens development near Millsboro, Sussex County, Delaware. Wayne G. Perry ("Defendant Perry") was driving a concrete truck owned and maintained by Atlantic Concrete Company, Inc. ("Defendant Atlantic Concrete"), on Pot Bunker Way. Plaintiff alleges that Defendant Perry drove the truck with its 12-foot concrete chute unrestrained, and that the chute swung out as Defendant Perry rounded a curve on Pot Bunker Way, hitting Plaintiff in the head. As a result, Plaintiff allegedly sustained severe injuries to his head, face, and eye, and Plaintiff's knee was injured when he was knocked to the ground. On January 31, 2008, Plaintiff filed a Complaint against Defendant Perry and Defendant Atlantic Concrete.
Defendant Atlantic Concrete's owner, David Jones, testified by deposition that Defendant Perry was terminated from his employment because he refused to provide a urine sample after the incident on February 2, 2006. On the morning of February 3, 2006, Defendant Perry provided a urine sample that tested positive for cocaine. Defendant Perry testified in his deposition that he ingested two lines of cocaine on the evening February 2, 2006, after the incident, but denied that he was under the influence of drugs or alcohol at the time of the incident.
Defendant Perry also testified at his deposition that his sole criminal conviction was for trespassing in connection with a hunting incident in the late 1970s, and that he had never been charged with a felony or a crime involving dishonesty. Plaintiff's counsel subsequently received records from the Justice of the Peace Court No. 7 documenting that Defendant Perry had been convicted of theft, criminal trespass, and conspiracy on March 29, 1984. Plaintiff also alleges that a criminal docket entry in the Court of Common Pleas reveals a charge of delivery of a non-narcotic schedule I substance in October 1984. Defendant Perry also denied driving with an invalid license on the day of the incident, but records obtained by Plaintiff's counsel indicate that his license was suspended in August 2005, six months before the incident.
Q. Have you been charged with theft or shoplifting or criminal impersonation or perjury or anything of that nature?
A. No.
Dep. Tr. of Defendant Perry at 98.
Plaintiff indicated in his motion to compel Defendant Perry's criminal history that these convictions were in 2004, but a review of the records show Defendant Perry was convicted in 1984.
Q. I guess what I'm trying to figure out is if you were charged with a failure to reinstate on 2/22/06, is it possible you didn't have a valid license on February 2nd, `06 when this accident happened?
A. No.
Q. Do you know when it was your license was suspended that you failed to reinstate it?
A. No, I don't.
Q. I mean obviously these records don't tell all, but my inference is that you were suspended in either 9/13/05 or 12/7/05 and it remained suspended until you were charged with failure to reinstate on 2/22/06.
A. This got cleared.
Dep. Tr. of Defendant Perry at 153-54.
Plaintiff has filed two motions: a motion to disclose Defendant Perry's drug and alcohol records pursuant to 42 C.F.R. § 2.64 on December 29, 2008, and a motion to compel Defendant Perry's criminal history on January 16, 2009. Defendants filed responses to both motions on January 30, 2009. Arguments were heard in chambers on February 6, 2009.
Plaintiff's Arguments
Plaintiff argues that Defendant Perry's drug and alcohol records should be disclosed because this lawsuit not only involves Defendant Perry's conduct and possible drug use on the date of the incident, but also questions Defendant Atlantic Concrete's conduct in hiring Defendant Perry to drive a concrete truck. Defendant Perry's license was allegedly suspended several times in the past for moving violations involving drugs and alcohol, and he had just been fired from his previous employer for marijuana and cocaine use. Plaintiff argues that disclosure of these records is directly relevant to Plaintiff's claims for compensatory and punitive damages, for negligent and reckless hiring and entrustment, and for negligent and reckless operation of the concrete truck.
Plaintiff maintains that Defendant Perry has repeatedly misrepresented his criminal and driving history. Therefore, Plaintiff argues that Defendants should be compelled to produce Defendant Perry's criminal history because it may lead to the discovery of admissible evidence relevant to his prior conviction for drug-related offenses, or relevant to his credibility.
Defendant's Arguments
Defendants argue that Defendant Perry's drug and alcohol records should not be disclosed because they contain highly sensitive personal information, which is not reasonably calculated to lead to the discovery of admissible information. Defendants maintain that Plaintiff has failed to present any expert evidence, i.e. a toxicology report, which would demonstrate that Defendant Perry was intoxicated at the time of the incident, and only seeks this information to humiliate and embarrass Defendant Perry. Therefore, Defendants argue, the request for the rehabilitation records is highly prejudicial and not relevant to the issues in this case.With regard to the motion to disclose the drug and alcohol records, Defendants argue that the language of the proposed Order enclosed with Plaintiff's motion is highly prejudicial and inflammatory toward Defendants. Defendants contend that if the Court grants Plaintiff's motion, the language of paragraphs one and three be stricken, because that language goes beyond what is necessary for the relief being sought, and is akin to the Court's admission of issues Plaintiff must prove at trial.
Defendants also argue that the Court should deny Plaintiff's motion to compel Defendant Perry's criminal history because the convictions fall outside the ten-year period outlined in Rule 609(b), and would not be admissible under Rule 404(b). Furthermore, Defendants argue that there is no indication from Defendant Perry's deposition transcript that he implicitly denied any drug-related criminal history, only that he could not remember. Defendants also argue that Defendant Perry did not deny he was driving with a suspended license on the day of the incident; his belief was that the potential suspension was "cleared." Without some evidence to demonstrate the probative value of this information, Defendants contend that what remains is highly prejudicial evidence for the purpose of embarrassing, humiliating, and disparaging Defendant Perry.
DISCUSSION
The issues discussed below are viewed by the Court from a discovery standpoint, and will be addressed as such. The admissibility at trial of the evidence Plaintiff requests will not be considered at this time.
A. Motion to Disclose Drug and Alcohol Records
42 C.F.R. § 2.64 provides:
(a) Application. An order authorizing the disclosure of patient records for purposes other than criminal investigation or prosecution may be applied for by any person having a legally recognized interest in the disclosure which is sought. . . .
(d) Criteria for entry of order. An order under this section may be entered only if the court determines that good cause exists. To make this determination, the court must find that:
(1) Other ways of obtaining the information are not available or would not be effective; and
(2) The public interest and need for the disclosure outweigh the potential injury to the patient, the physician-patient relationship and the treatment services.
In the case sub judice, Plaintiff argues that the disclosure of Defendant Perry's drug and alcohol records is relevant to Plaintiff's claims against Defendants. The Court disagrees. Plaintiff has been provided with copies of Defendant Perry's records from People's Place, which were part of Defendant Perry's employment file during his employment with Atlantic Concrete. Defendant Perry's urine sample taken the day after the incident was positive for cocaine, and he admitted using cocaine after the incident. Plaintiff has also been provided with a copy of Defendant Perry's driving record and records from former employers.
Plaintiff has gathered ample evidence of Defendant Perry's drug and alcohol use through his own investigation and discovery provided by Defendants. The Court finds that the public interest and need for the disclosure of Defendant Perry's drug and alcohol records do not outweigh the potential injury to Defendant Perry. Therefore, Plaintiff's motion is denied.
B. Motion to Compel Criminal History
Delaware Rule of Evidence 609 provides in pertinent part:
(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted but only if the crime (1) constituted a felony under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
D.R.E. 609(a)-(b).
D.R.E. 404(b) provides that "[e]vidence of other crimes is not admissible to prove the character of a person in order to show action in conformity therewith."
D.R.E. 609 and D.R.E. 404(b) specifically address the admissibility at trial of the records Plaintiff requests. The Court is only considering the discoverability of Defendant Perry's criminal history, not its admissibility at trial. Therefore, an analysis under D.R.E. 609 and D.R.E. 404(b) is premature.
Plaintiff seeks Defendant Perry's criminal history based on his deposition testimony and evidence Plaintiff uncovered afterward. Plaintiff maintains that Defendant Perry has repeatedly misrepresented his criminal and driving history, and that a complete criminal history may lead to the discovery of admissible evidence relevant to his prior conviction for drug-related offenses, or evidence relevant to his credibility.
The Court has reviewed Defendant Perry's deposition testimony and the records provided by Plaintiff from the Justice of the Peace Court and the Court of Common Pleas. Defendant Perry did not disclose his theft conviction after being specifically asked if he had ever been "charged with theft or shoplifting or criminal impersonation or perjury or anything of that nature." Regardless of whether Defendant Perry was confused as Defendants argue, or intentionally misrepresenting his criminal history as Plaintiff argues, Plaintiff cannot reasonably rely on Defendant Perry's deposition testimony to provide a complete and accurate criminal history. Therefore, the Court finds that Plaintiff is entitled to Defendant Perry's criminal history.
CONCLUSION
For the foregoing reasons the Court finds as follows:
Plaintiff's motion for disclosure of drug and alcohol records pursuant to 42 C.F.R. § 2.64 is denied .
Plaintiff's motion to compel Defendant Perry's criminal record is granted . IT IS SO ORDERED.