Opinion
Civil Action No. 03-2034.
July 21, 2004
MEMORANDUM AND ORDER
Presently before the court is Defendant Reconstructive Orthopaedic Associates, II, P.C.'s ("ROA") Motion to Compel Production of Medical Records, Information and Psychiatric Examination (the "Motion"). (Doc. No. 27.) Plaintiff filed a Response opposing the Motion arguing that she has not placed her mental health at issue in this action. (Doc. No. 29.) Plaintiff also filed a Cross-Motion for a Protective Order. (Doc. No. 29.) ROA filed a Reply Memorandum in further support of the Motion. (Doc. No. 30.)
The nature of the instant action is set forth in detail in plaintiff's Second Amended Complaint (Doc. No. 21), and numerous other documents in the record. Briefly, this action arises from plaintiff's claim for benefits under a Group Long Term Disability Policy (the "Policy") issued by defendant Northwestern Mutual Life Insurance Company ("Northwestern"). Plaintiff was employed by ROA. Northwestern denied plaintiff's claim because she was not insured under the Policy. Plaintiff claims, inter alia, that ROA failed to properly enroll her under the Policy. In her Second Amended Complaint, plaintiff seeks to recover from ROA, inter alia, "consequential and compensatory damages, including an amount equal to all benefits due under the subject policy and waiver of premiums, interest, costs, attorney's fees, and all other damages recoverable under the law," and punitive damages. (Second Amended Complaint at 6-11.)
For the reasons stated below, the Motion is GRANTED IN PART and DENIED IN PART. Plaintiff's Cross-Motion for a Protective Order is DENIED. 1. Federal Rules of Civil Procedure
The following Federal Rules of Civil Procedure are relevant to the instant matter. Fed.R.Civ.P. 26(a)(1)(C), relating to initial disclosures, requires the party seeking damages to provide:
a computation of any category of damages claimed by the disclosing party, making available for inspection and copying under Rule 34 the documents or other evidentiary material, not privileged or protected from disclosure, on which such computation is based, including materials bearing on the nature and extent of injuries suffered.
Fed.R.Civ.P. 26(b)(1) provides in pertinent part as follows:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
Fed.R.Civ.P. 35(a) provides:
When the mental or physical condition . . . of a party . . . is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination. . . . The order may be made only on motion for good cause shown. . . .
Fed.R.Civ.P. 35(a). 2. The Policy Exclusions and Limitations
The Policy contains an exclusion and a limitation which are relevant to the instant Motion. Section 5.1 of the Policy contains an exclusion for a disability caused by a pre-existing condition. (Mot. Ex. B, Policy at 3, § 5.1.) The Policy defines "Preexisting Condition" to mean: "This is a mental or physical condition for which you have consulted a Physician Or Practitioner, received medical treatment or services, or taken prescribed drugs or medications at any time during the Preexisting Condition Period shown in the Specifications." (Mot. Ex. B., Policy at 15, § 5.1.)
The Policy also provides a two year limitation on benefits for disabilities or losses due to any mental disorder. (Mot. Ex. B, Policy at 3, § 5.3.) The Policy further details that "[b]enefits will not be provided for more than 24 monthly benefit periods in total for your lifetime for all Disabilities or losses primarily due to any Mental Disorder." (Mot. Ex. B, Policy at 15, § 5.3.) The term "Mental Disorder" is defined to mean: "This is any disease, condition or disorder, whether organic or inorganic, customarily within the scope of treatment of psychiatrists, psychologists, psychotherapists or counselors. This includes, but is not limited to: . . . anxiety and depression." Id.
In her Second Amended Complaint, plaintiff seeks damages, "including an amount equal to all benefits due under the subject policy." (Second Amended Complaint at 6-11.) By requesting such damages, plaintiff has placed her mental health at issue in this action. In order for the amount of benefits she may be entitled to under the Policy to be calculated, it must be determined whether plaintiff falls under either of the above exclusion or limitation provisions. As such, plaintiff's mental condition is relevant to the instant proceeding and plaintiff placed her mental condition at issue by seeking benefits under the Policy.
Additionally, plaintiff claims disability due to a physical condition. ROA has the right to explore whether plaintiff suffers from any other potentially disabling condition, including a mental condition, which may impact on her ability to recover under the Policy.
Plaintiff's attempts to limit the scope of her claim must fail. Plaintiff asserts that she has made no claim for personal injuries, and has no cause of action for negligent or intentional infliction of emotional distress. (Response at 4.) Plaintiff also represents that she will not introduce expert testimony concerning any mental health condition or emotional distress.Id. This may be true but in determining the amount of benefits plaintiff may be due under the Policy, defense counsel has a right to determine whether any of the exclusions or limitations in the Policy apply and whether plaintiff's alleged disability is due to the condition she claims or to some other condition. Courts have held that "[i]t is not for a party to determine, by a unilateral review of documentation, whether information is relevant to the case." Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 135 (E.D. Pa. 2001). At the discovery stage of litigation, the evidence sought need only be relevant, and "need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed.R.Civ.P. 26(b)(1).
Similarly, plaintiff's argument that the medical records concerning her mental condition are privileged must be denied. Case law is clear that a party waives the federal common law psychotherapist-patient privilege by placing his or her mental condition at issue. Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D. Pa. 1997) (citing Jaffee v. Redmond, 518 U.S. 1 (1996)). See also Lowe v. Philadelphia Newspapers, Inc., 101 F.R.D. 296, 298 (E.D. Pa. 1983) ("The right of privacy as to plaintiff's personal history that a plaintiff might otherwise have must be balanced against the defendant's right to a fair trial.").
This court also notes that ROA is not engaged merely in a "fishing expedition" unsure of what its discovery efforts will produce. In its Motion, ROA represents, and plaintiff does not dispute, that the medical records that have been produced reveal that plaintiff "has been treated for anxiety and depression and, for many years, has been prescribed Buspar, an antidepressant." (Motion at 7.) It is likely, therefore, that evidence exists showing that plaintiff may suffer from a mental condition which is relevant to the instant action.
3. Psychiatric Examination
Fed.R.Civ.P. 35(a) authorizes a court to order a party to submit to a physical or mental examination "on motion for good cause shown." To obtain such an order, the moving party need show that: (1) the mental or physical condition of the party is in controversy; and (2) goods cause exists for the examination.Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964); Shirsat v. Mut. Pharm. Co., Inc., 169 F.R.D. 68, 69 (E.D. Pa. 1996). "Good cause requires a showing that the examination could adduce specific facts relevant to the cause of action and is necessary to the defendant's case." Womack v. Stevens Transp., Inc., 205 F.R.D. 445, 447 (E.D. Pa. 2001) (citation omitted). The Court, considering Fed.R.Civ.P. 35, recognized the basic premise that "the deposition-discovery rules are to be accorded a broad and liberal treatment." Schlagenhauf, 379 U.S. at 118 (citation omitted).
Here, ROA has filed an appropriate order seeking the mental examination. Plaintiff's mental condition is clearly in controversy by virtue of plaintiff's demand for payment of all benefits due under the Policy. ROA has established good cause by showing that the examination could adduce specific facts relevant to the cause of action and is necessary to its defense. ROA has exhausted alternative discovery procedures by seeking production of plaintiff's mental health records. Since plaintiff stipulates that she will not introduce expert testimony regarding plaintiff's mental condition, there will be no expert for ROA to cross-examine regarding this relevant issue. Consequently, ROA must obtain its own expert. Even with the production of those records, an examination is required for ROA's expert to formulate an opinion as to plaintiff's mental condition now and in the past, and to determine whether plaintiff's alleged disability is due, primarily, to a mental disorder.
Courts have held that there are two primary ways in which a plaintiff's mental or physical condition can be placed "in controversy" in the context of Fed.R.Civ.P. 35. The plaintiff can place her own mental or physical condition in controversy by claims made during the course of the litigation. Bowen v. Parking Auth. of the City of Camden, 214 F.R.D. 188, 192 (D.N.J. 2003). Another party may also place a plaintiff's mental or physical condition in controversy by way of a defense to an underlying action. Id. "In cases where the defendant seeks to make the plaintiff's mental state an issue, the defendant bears the burden of showing that the plaintiff's mental state is in controversy." Womack v. Stevens Transp, Inc., 205 F.R.D. 445, 447 (E.D. Pa. 2001). Here, plaintiff's mental state has been placed in controversy in both of these ways.
4. Discovery Requests At Issue A. Production of Documents Nos. 17, 18 and 19
Document Request Nos. 17 and 18 requested the following information:
17. Produce all documents which mention, discuss, describe, relate to, refer to or depict any treatment you received from the period of January 1, 1999 to the present for any medical, physical, emotional or psychological condition.
18. Produce all documents which mention, discuss, describe, relate to, refer to or depict any services, therapy or care rendered to you, by a physician, psychiatrist, psychologist, social worker, therapist, hospital or treatment center at any time since January 1, 1999.
(Mot. Ex. C, ¶¶ 17, 18.) Because plaintiff has placed her mental state at issue in this action, plaintiff shall respond fully to Document Requests 17 and 18.
The parties dispute whether plaintiff has complied fully with this request as it relates to her physical condition. In their Response to the Motion, plaintiff asserts that she "has produced every piece of paper in her possession and/or the possession of her counsel pertaining to her medical condition from 1999 through the present." (Response at 11.) However, ROA points out that plaintiff has not produced all documentation regarding her physical condition which exists. (Reply at 2.) ROA specifically identifies Dr. Corson as a physician plaintiff saw at Episcopal Hospital from whom it has received no medical records. Id. Moreover, ROA notes that plaintiff produced medical records from Dr. Kramer from December 1999, not from January 1999 as requested. In addition to producing all medical records concerning plaintiff's mental health for the relevant time period, plaintiff shall supplement her production of her medical records concerning her physical condition to fully comply with the document requests. Specifically, plaintiff and her counsel shall make every reasonable effort to obtain the relevant documents and produce them all consistent with this order. Additionally, plaintiff shall deliver to ROA signed Authorizations for Release of Medical Information for all medical and psychiatric providers from January 1, 1999 to the present in accordance with this Memorandum and Order.
Document Request No. 19 requested the following information:
19. Produce all documents relating to or evidencing any medications or drugs purchased or taken by you at any time since January 1, 1999, whether prescribed by a physician or not, including, but not limited to, any pharmacy bills, records, or invoices.
(Mot. Ex.C, ¶ 19.) In response, plaintiff stated that she "has produced all of her medical records and pharmacy records detailing her prescription medications," and that the request "is overly broad and unduly burdensome as it would require plaintiff to identify every aspirin, laxative, cold medication, over the counter remedy or herbal supplement which the plaintiff has purchased over a span of more than five years." (Response at 12.) ROA acknowledges that plaintiff has produced some medical records containing a list of medications plaintiff was taking at the time, but asserts that plaintiff produced no pharmacy records.
This court finds that the document request is overly broad and unduly burdensome. Therefore, plaintiff shall produce all of the requested information, including pharmacy records, with respect to prescribed medications only. Plaintiff need not produce the requested information regarding non-prescription medications.
B. Interrogatories Nos. 6-9
Interrogatory No. 6 states as follows:
6. Identify any medicines or drugs you have purchased or taken since January 1, 1999, whether prescribed by a physician or not, along with the name of any prescribing physician.
(Motion Ex. E, ¶ 6.) Plaintiff again complained that this discovery request was overly broad and unduly burdensome. The court agrees for the reasons stated above with respect to Document Request No. 19. Plaintiff shall respond fully to Interrogatory No. 6 as regards any and all medication she was prescribed along with the name of the prescribing physician.
Interrogatory Nos. 7 and 8 state as follows:
7. Identify all physicians, psychologists, therapists, social workers or others who have been consulted by, or who have rendered medical, therapeutic or consulting services to Plaintiff since January 1, 1999, and, for each, identified individual, provide:
a. name, address and telephone number;
b. dates of consultation; and
c. condition for which treatment was sought.
8. For each condition described in the answer to Interrogatory 7 above, identify:
a. the treatment received;
b. dates of consultation for each treatment; and
c. all medication prescribed, including frequency of intake, dosage and purpose of the medication and time period during which the medication was taken.
(Motion Ex. E, ¶¶ 7, 8.) Because plaintiff has placed her mental condition at issue in this action, plaintiff shall respond fully to Interrogatory Nos. 7 and 8.
The final discovery request at issue is Interrogatory No. 9 which requested as follows:
9. If any medical or psychiatric consultations, tests, evaluations, treatment or procedures have or will be performed on you by any physician, psychologist, or therapist, provide the following:
a. name, address and telephone number of the physician, psychologist or therapist;
b. educational background, specialty, membership in professional societies, list of publications, and lists [sic] of cases in which each has testified as a witness either at trial or hearing, or in pretrial discovery; and
c. type, date and result, if available, of each test, evaluation or procedure that was or is scheduled to be conducted.
(Motion Ex. E, ¶ 9.) Plaintiff raised numerous objections to this interrogatory including that it was overly broad and unduly burdensome to ask plaintiff to detail the "educational background, specialty, membership inn professional societies, list of publications, and list of cases in which the provider was has testified as a witness either at trial or hearing, or in pretrial discovery" for every physician plaintiff has seen in the last five years. (Motion Ex. F, at 2.)
This court finds that subpart b of Interrogatory No. 9 is overly broad and unduly burdensome. Plaintiff need not respond to subpart b of Interrogatory No. 9 unless the medical provider at issue will testify as an expert at trial, as described in Fed.R.Civ.P. 26(a)(2). Plaintiff shall respond fully to Interrogatory No. 9 subparts a and c.
For all the above reasons, it is hereby
ORDERED
1. Defendant ROA's Motion to Compel Production of Medical Records, Information and Psychiatric Examination (Doc. No. 27) is GRANTED IN PART and DENIED IN PART.
2. Plaintiff shall respond fully to Document Request Nos. 17 and 18 and Interrogatory Nos. 7 and 8.
3. Plaintiff shall respond fully to Interrogatory No. 9 subparts a and c; plaintiff need not respond to Interrogatory No. 9 subpart b unless the medical provider at issue will testify as an expert at trial, as described in Fed.R.Civ.P. 26(a)(2).
4. Plaintiff shall respond fully to Document Request No. 19 and Interrogatory No. 6 but only with respect to medication prescribed to plaintiff.
5. Plaintiff shall submit to a psychiatric examination in accordance with Fed.R.Civ.P. 35(a) on or before September 10, 2004. Plaintiff requested and defendant agreed to schedule plaintiff's examination either the day before or the day after plaintiff's deposition.
6. Plaintiff shall produce all responses required by this Memorandum and Order within fourteen (14) days from the date of this Order by delivering such responses to the office of defendant ROA's counsel at the following address: Hope A. Comisky, Esquire, Pepper Hamilton LLP, 3000 Two Logan Square, Eighteenth Arch Streets, Philadelphia, PA 19103.
7. Plaintiff shall deliver to defendant ROA's counsel within ten (10) days from the date of this Order signed Authorizations for Release of Medical Information for all of her medical and psychiatric providers from January 1, 1999 to the present at the address set forth in paragraph 6 above.
8. Plaintiff's Cross-Motion for a Protective Order is DENIED.