Opinion
Civil Nos. 03-2919 (JRT/FLN), 03-2920 (JRT/FLN).
August 30, 2004
Daniel A. O'Fallon and Stephanie J. Kravetz, ROBINS, KAPLAN, MILLER CIRESI L.L.P., Minneapolis, MN, for plaintiffs.
Kim Schmid and Courtney Candalino, BOWMAN BROOKE, L.L.P., Minneapolis, MN, Albert J. Dahm, Michael Elvin, DAHM ELVIN, L.L.P., Fort Wayne, IN, for defendant.
ORDER AFFIRMING THE ORDER OF THE MAGISTRATE JUDGE
Plaintiffs brought this action against defendant Zimmer, Inc. ("Zimmer") alleging that a defect in Zimmer's hip implant, Centralign, gives rise to medical products liability. After learning of Zimmer's intent to conduct an ex parte interview of one of their physicians, plaintiffs sought a protective order to prevent Zimmer from interviewing their treating physicians without first giving notice to plaintiffs pursuant to Minnesota Statute § 595.02. United States Magistrate Judge Franklin L. Noel granted plaintiffs' Motion for Protective Order on April 1, 2004, prohibiting Zimmer from conducting ex parte interviews with any of plaintiffs' treating health care providers. Zimmer appeals. For the reasons set forth below, the Court affirms the Magistrate Judge's order.
ANALYSIS
I. Standard of Review
The standard of review applicable to an appeal of a magistrate judge's order on nondispositive pretrial matters is extremely deferential. Reko v. Creative Promotions, Inc., 70 F. Supp. 2d 1005, 1007 (D. Minn. 1999). This Court will reverse such an order only if it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). The Court will not reverse such an order unless, upon review of the parties' submissions, the Court is left "with the definite and firm conviction that a mistake has been committed." Chakeles v. Commissioner of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996).
II. Minnesota law rather than federal law controls this question.
Zimmer argues, as it did to the Magistrate Judge, that, assuming that the information it seeks may be privileged, federal law, as opposed to state law, should be applied to determine the scope of that privilege. The Magistrate Judge appears to have disagreed. The Magistrate Judge cited Gobuty v. Kavanagh, 795 F. Supp. 281 (D. Minn. 1992) in support of the order. As in this case, the defendants in Gobuty appealed a magistrate judge's order concluding that, under Minnesota law, the plaintiff's waiver of physician-patient privilege did not permit defendant to interview plaintiff's treating physicians without providing fifteen days notice to plaintiff and permitting plaintiff's representative to be present at the interview. Id. at 282. In affirming the magistrate judge, the court in Gobuty conducted a thorough analysis and concluded that § 595.02 and Minnesota Rule of Civil Procedure 35.04 do not directly conflict with a federal rule and may have a substantial effect on the litigation, and therefore control the extent of physician-patient privilege in federal diversity cases. 795 F. Supp. at 287-88 (discussing and applying Kuehn v. Shelcore, Inc., 686 F. Supp. 233 (D. Minn. 1988) and Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
This Court acknowledges, as did the Court in Gobuty, that Filz v. Mayo Foundation, 136 F.R.D. 165 (D. Minn. 1991), reached the opposite conclusion. However, the Gobuty court persuasively and thoroughly explained its disagreement with the Filz result. The reasoning and conclusion of the court in Gobuty recently has been cited approvingly and applied in this District. See, e.g., In re Baycol Prods. Litig., 219 F.R.D. 468, 473 (D. Minn. 2003). In light of the foregoing, the Magistrate Judge's apparent determination that Minnesota law defines the scope of the physician-patient privilege in this case is neither clearly erroneous nor contrary to law.
The Court also observes that the Court in Gobuty noted that even if it had concluded that federal law governed the scope of the privilege, it was "not convinced that the federal rules generally permit ex parte intervie ws of plaintiffs' treating physicians." Gobuty, 795 F. Supp. at 289, n. 2 (citations omitted).
III. Minnesota law prohibits ex parte interviews of the type contemplated by defendant without first giving notice to plaintiffs.
Zimmer argues that the Magistrate Judge's protective order is contrary to law because it prohibits ex parte interviews with plaintiffs' physicians about non-privileged information. Plaintiffs, in placing their medical conditions at issue, have waived physician-patient privilege with respect to treatment for those conditions. Minn. R. Civ. P. 35.03. That waiver, however, is limited by Minnesota Rule of Civil Procedure 35.04 ("Rule 35.04"), which provides only for disclosure of medical records related to the condition at issue. See also In re Baycol, 219 F.R.D. at 470; Youngren v. Youngren, 556 N.W.2d 228, 233 (Minn. 1996). Rule 35.04 prohibits depositions of treating physicians "except upon order of the court for good cause shown . . . and notice to the parties. . . ."
Informal discussions with treating physicians are governed by Minnesota Statute § 595.02, subd. 5:
This waiver [of physician-patient privilege] must permit all parties to the action, and their attorneys or authorized representatives, to informally discuss the information or opinion with the health care provider if the provider consents. Prior to an informal discussion with a health care provider, the defendant must mail written notice to the other party at least 15 days before the discussion. The plaintiff's attorney or authorized representative must have the opportunity to be present at any informal discussion. Appropriate medical authorizations permitting discussion must be provided by the party commencing the action upon request from any other party.
Minnesota Statute § 595.02 was enacted to ease the restrictive scheme announced by the Minnesota Supreme Court in Wenninger v. Muesing, 240 N.W.2d 333 (Minn. 1976), which required a plaintiff patient's written consent before a defendant could interview plaintiff's treating physician. 240 N.W.2d. at 336. The statute, rather than requiring a patient's permission, permits such interviews, provided the plaintiff is given notice and the opportunity to be present. The statute does not "allow unfettered access [by defendants] to plaintiffs' physicians." In re Baycol, 219 F.R.D. at 471.
Zimmer emphasizes that it wishes to interview plaintiffs' physician about his professional experience with and opinion of Centralign, based on his communications with the FDA in 1997 and 2000. Zimmer contends that the general nature of the interview and the physician's extensive use of the Centralign make it possible for the physician to discuss his experience with the Centralign without implicating plaintiffs' treatment. Zimmer argues that the information it seeks is not privileged, and that any applicable Minnesota law restricts only discussions of privileged information.
In support of its argument, Zimmer cites Maetzold v. Walgreen Co., in which the state court permitted plaintiff's physician to appear as an expert witness and to answer hypothetical questions which excluded information gained by the physician in treating plaintiff. 83 N.W.2d 233, 234-35 (Minn. 1957). The instant facts are distinguishable. In Maetzold, the expert offered testimony in open court. Here, Zimmer wishes to conduct private interviews with plaintiffs' treating physician.
Whether or not Zimmer intends to pose questions specifically implicating plaintiffs' treatment, the presence of plaintiffs' counsel at any informal interview is required because it "permits the patient to know what his doctor's testimony is, allays a patient's fears that his doctor may be disclosing personal confidences, and thus helps preserve the complete trust between doctor and patient which is essential to the successful treatment of the patient's condition." In re Baycol, 219 F.R.D. at 471 (citing Wenninger, 240 N.W.2d at 336-37.) "The presence of the patient's attorney during the doctor's examination also helps protect the doctor from unwittingly and improperly disclosing medical information about his patient." Id. Permitting Zimmer to conduct ex parte interviews of plaintiffs' physician is contrary to the language and purpose of the statute as interpreted by this Court and Minnesota courts.
This Court has previously stated that, on its face, Minnesota Statute § 595.02 "does not require, or even allow," defendants to conduct ex parte physician interviews. In re Baycol, 219 F.R.D. 468; Gobuty v. Kavanagh, 795 F. Supp. 281 (D. Minn. 1992). See also Wenninger, 240 N.W.2d 333. Plaintiffs must be given notice and an opportunity to be present at the interview. See In re Baycol, 219 F.R.D. at 470-71; Blohm v. Minneapolis Urological Surgeons, 442 N.W.2d 812 (Minn. 1989); see also Wenninger, 240 N.W.2d 333. The Magistrate Judge's Order granting plaintiffs' protective order is not clearly erroneous or contrary to law.
Nothing in Minnesota Statute § 595.02, subd. 5, or the Magistrate Judge's Order precludes Zimmer from deposing plaintiffs' physician, as appears to be planned, in addition to conducting an informal discussion with the physician in accordance with the statute.
IV. Plaintiffs' Request for Costs
Plaintiffs "ask that the defendant pay the costs and attorney's fees associated with opposing this appeal." In light of the conflicting authority within this District with respect to the issues raised in this appeal, the Court finds that awarding costs to plaintiffs is not warranted. The Court accordingly concludes that each side should bear its own costs.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that the Order of the Magistrate Judge dated April 1, 2004 [Civ. No. 03-2919, Doc. No. 41; Civ. No. 03-2920, Doc. No. 44] is AFFIRMED.