Opinion
CIV No. 01-799 MV/LFG
April 19, 2002
DISCOVERY ORDER
THIS MATTER is before the Court on Plaintiff's Motion for Protective Order and Limine Order Regarding Mental and/or Emotional Evidence, filed April 12, 2002 [Doc. 66]. On that same date, the Provident/UNUM Defendants ("Provident" or "Defendants") filed a Motion for Order Compelling Plaintiff to Execute Physical and Mental Medical Authorizations and Ordering Full Disclosure of Mental Health Information and an accompanying brief [Docs. 68, 70]. The Court issued a prior Order [doc. 62] permitting Provident to file its motion and brief in support of compelling discovery in combination with its response to Plaintiff's Motion for Protective Order. The Court determines that no oral argument is required. After carefully considering the pertinent law and pleadings [docs. 66-70], with attachments, the Court concludes that Plaintiff's Motion for Protective Order should be denied, as fully explained below. Plaintiff's request for a related Limine Order is denied, without prejudice, should Plaintiff wish to present it to the district judge who should make rulings regarding the admissibility of evidence at trial. Defendants' motion to compel will be granted.
Factual and Procedural Background
Plaintiff Dr. Harold Davis ("Davis") is a medical doctor/epidemiologist. In 1980 and 1990, he purchased two disability insurance policies from Provident Life and Accident Insurance Company. Davis alleges that in December 1998, he became totally disabled due to his condition of fibromyalgia and myofascial pain syndrome and that UNUM Provident paid him $4,000.00 per month in total disability benefits from June 1, 1999 through March 31, 2000. Davis' disabling limitations were described in part as having so much pain after sitting or standing for 30-40 minutes that he had to lie down for 15 to 20 minutes, and that he was unable to perform all duties of his occupation because he could not sit more than 10-20 minutes or stand in one place more than a few minutes. [Doc. 66, Ex. 4, p. 2.] After conducting surveillance on Davis, Provident contends Davis was engaging in activities (e.g., cross-country skiing, driving, and sitting), that were inconsistent with reports provided to Provident. Based on the surveillance and an investigation, Provident determined that Davis did not qualify for total disability under the terms of his policies and terminated his benefits on about May 12, 2000.
After his benefits were terminated, Davis filed a Complaint for Damages for Breach of Contract, Insurance Bad Faith, Violations of Insurance Practices Act and Unfair Trade Practices Act, Civil Conspiracy, Aiding and Abetting, Prima Facie Tort, and Punitive Damages. [Complaint, Doc. 1, attached to removal pleadings.] The Complaint does not seek damages for mental or emotional issues. The parties further agree that Davis does not claim to be psychologically disabled and does not request emotional/mental distress damages. [Doc. 1, Doc. 68, p. 2.]
Discovery Dispute
This discovery dispute concerns Provident's contention that they are entitled to access Davis' psychological records and history because Davis placed his mental condition at issue. Davis adamantly opposes the discovery contending that Provident's pursuit of such information is nothing more than a personal attack on him, a fishing expedition, and an attempt to dredge up "red herrings" and new reasons to excuse Provident's improper denial of his benefits.
To some extent, this dispute began with Davis' production of some of his own medical records revealing that several of his treating physicians and/or therapists found that Davis' depression is a "major culprit" in his illness, "his overall depression is a complicating factor in the overall outcome," "his picture is certainly not representative of typical myofascial pain syndrome, nor of fibromyalgia," it was not certain if Davis' reported pain was explained by pain syndrome, and the "pivotal issue" in the treatment of Davis was the "interface between physical pain syndrome and emotional pain." [Doc. 68, Davis' medical records and notes, attached as Exs. A, B, and D.]
Provident argues these types of medical reports showing that Davis' alleged disability consists of both physical and psychological components places his mental or emotional condition directly at issue, notwithstanding the fact that Davis does not claim a mental disability or seek emotional distress damages. Provident further asserts that the requested medical and/or psychological documentation is related to the reasons given by Provident for terminating Davis' benefits, and, is therefore, relevant.
Specifically, Provident requests complete medical and/or psychological records for treatment Davis received in 1998 and 1999, from Drs. Levine and Gerwin, physical therapist Jan Dommerholt and psychiatric counselor/therapist Laurel Nelson, each of whom treated Davis near the time he claimed to have been totally disabled. Provident also intends to ask these providers about Davis' medical and/or psychological conditions. These medical providers apparently are scheduled for depositions during the weeks of April 22 and 29, 2002. In addition, Provident asks for medical authorizations to be signed by Davis for a list of his health care providers [Doc. 68, Ex. I], from January 1, 1989 to present, that includes authorization for documentation of Davis' physical and mental/psychiatric conditions and treatment. Provident argues, in part, that records from as far back as 1989 are relevant to statements Davis made in applications for his disability insurance policies in 1990 and in 1998, and therefore, to the questions of possible misrepresentation and to his credibility.
Davis generally opposes all discovery requests "regarding [his] mental and emotional health" [docs. 66, p. 6; 69, p. 10]. He specifically requests that the depositions of psychiatrist Dr. Levine and psychiatric social counselor Nelson be precluded. With respect to the documents Davis already produced to Defendants containing references to his mental health and the interplay of depression with his pain syndrome, Davis argues he "never would have innocently produced these documents" had he known Provident was going to "attack him and attempt to create irrelevant non-issues of mental/emotional disability allegations."
Davis presents a plethora of reasons why he believes discovery should not be permitted regarding his mental or psychological condition, none of which the Court finds convincing. With respect to relevancy, Davis argues the requested mental health documents have no bearing on this lawsuit because Davis did not assert claims or damages mental and/or emotional issues. He also asserts that because Provident allegedly denied disability benefits to Davis based on an assessment of Davis' physical condition, discovery of later developed reasons regarding Davis' mental health is irrelevant and a harassment tactic. (See also Davis' related arguments asserting "mend the hold" doctrine and waiver and estoppel.). Davis further posits that Provident cannot discover the requested information because Defendants did not raise "a mental and/or emotional defense" in the Answer or affirmative defenses. In addition, Davis claims Defendants are precluded from obtaining medical records for more than five years under LR-Civ 26.3(d)(1) and that the psychotherapist-patient privilege protects the requested documents. In his reply, Davis adds that because of the 1990 disability policy's incontestability clause, Provident is estopped from rescinding that policy and/or perhaps from discovering documents that might relate to that policy. Davis also asserts that Provident would be violating its fiduciary duties by "attempting to create a non-existent mental/emotional disability." Finally, Davis raises issues about an insurance company's duty to promptly investigate claims and the impropriety or illegality of later developing new reasons to deny the claim.
Some of Davis' arguments may tend to raise issues regarding his substantive claims which will not be decided here, nor is this Court's ruling intended to address issues of admissibility of evidence at trial, which are better left to the district court.
Discussion
The starting point for discovery disputes is Fed.R.Civ.P. 26(b)(1). Rule 26 generally provides for a broad scope of discovery. A party may obtain discovery regarding any matter, "not privileged, that is relevant to the claim or defense of any party. . . ." "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." The broad discovery principle under the rules is intended to allow the parties to know as much as they can about each other's claims and defenses prior to trial so as to better evaluate a case for settlement or, alternatively, to be prepared to meet the proofs at the time of trial. Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980), cert. denied, 450 U.S. 918, 101 S.Ct. 1363 (1981). Moreover, liberal construction is given to the rules to avoid "trial by ambush." Id. at 797.Rule 26 also vests the court with broad discretion to tailor discovery as needed. Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 1597 (1998). The discovery rules provide federal courts with ample discretion to restrict discovery where the burden or expense of the proposed discovery outweighs its likely benefit. Bosaw v. National Treasury Employees' Union, 887 F. Supp. 1199, 1213 (S.D.Ind. 1995). In balancing the need for information against the burden of production or risk of harm, the court considers "the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(iii).
Committee comments to the amendments to Rule 26(b)(1) in 2000 provide that the court has authority to confine discovery to the claims and defenses asserted in the pleadings and that there is no entitlement to discovery to develop new claims or defenses. When there is an objection to discovery based on relevancy, the court determines whether the requested information goes beyond material relevant to the parties' claims or defenses and if deemed not relevant, "whether good cause exists for authorizing it so long as it is relevant to the subject matter of the action." Rule 26(b) Committee Comments; Fed.R.Civ.P. 26(b)(1). The committee commentary also explains that the dividing line between information relevant to the claims and defenses and that relevant to the subject matter cannot be defined with precision. For example, some information that might be properly discoverable includes that which could be used to impeach a likely witness, even though not otherwise relevant to the claims or defenses. Rule 26(b) Committee Comments.
Here, the Court concludes that the requested information about Davis' psychological/emotional condition and history is relevant to the parties' claims and defenses. Even if the proposed discovery somehow were deemed not clearly relevant, the Court finds good cause for authorizing the discovery as explained below.
I. RELEVANCY OF THE REQUESTED DISCOVERY
The failure to make a claim for emotional distress damages does not end the inquiry of whether Davis' psychological or mental condition is at issue in this litigation and/or whether discovery is permissible in this area. It would seem that Davis' diagnosis of fibromyalgia and myofascial pain syndrome, and his alleged total disability from those conditions, necessarily implicate his entire medical picture, including his psychological condition. This seems particularly true with a condition like fibromyalgia where psychological conditions and/or symptoms can be intertwined with physical problems. See Monroe v. Pacific Comprehensive Disability Benefit Plan, 971 F. Supp. 1310, 1313 (C.D.Cal. 1997) (discussing depression secondary to fibromyalgia).
It appears that Davis is attempting to neatly divide his physical symptoms from his emotional symptoms as if one has no bearing on the other. However, the testimony of some of his treating physicians belies this attempted division. For example, Dr. Levine (psychiatrist) stated that Davis first sought treatment from in 1994 for "depression secondary to the pain of severe, widespread myofascial pain syndrome. . . ." [Doc. 68, Ex. A.] Dr. Levine again saw Davis on December 3, 1998 "for depression due to the pain of another recurrence of severe, widespread myofascial pain syndrome.
On February 1, 1999, physical therapist Jan Dommerholt noted that "very little could be found as far as myofascial pain is concerned" and that there was a lack of objective findings," even though Davis was certain he was encountering myofascial pain. Ms. Dommerholt concluded that he "may benefit from better management of his depression, as I believe that his depression is a major culprit at this point, although he is convinced it is the pain that makes him depressed. . . ." [Doc. 68, Ex. B, Feb. 1, 1999 treatment report.] Ms. Dommerholt made similar comments about Davis' overall depression being a complicating factor" in a February 25, 1999 therapy report. [Doc. 68, Ex. B, Feb. 25, 1999 therapy report.]
In addition, Ms. Dommerholt comments in a number of records that there is no known etiology for his pain and about Davis' concern that he does not have an "adequate diagnosis." [Doc. 68, Ex. B.] Similarly, on February 22, 1999, social worker Nelson wrote that Dr. Gerwin wondered if Davis' reported pain was explained by the pain syndrome. [Doc. 68, Ex. D, 2-22-99 note.] On February 23, 1999, Ms. Nelson noted that Davis was very angry with her for disclosing his history to Dr. Gerwin and Dr. Levine because he was afraid he would be "dismissed as a crock" and "virtually medically `dismissed.'" [Doc. 68, Ex. D, 2-23-99 note.] Ms. Nelson updated Dr. Gerwin regarding Davis by informing him that she and Davis continued to address the "pivotal issue of the interface between physical pain syndrome and emotional pain." [Doc. 68, Ex. D, 3/4/99 email.]
On February 23, 1999, Dr. Gerwin noted his discussion with Davis "about the relationship of psychological stress and myofascial pain." [Doc. 68, Ex. B, Feb. 23, 1999 Progress Note.] On March 11, 1999, Dr. Gerwin wrote Ms. Nelson, stating that "the major issue remains [Davis'] lack of insight with regard to his emotional problems. He continues to focus on the physical and see the emotional or psychological as secondary or unrelated." [Doc. 68, Ex. D, 3/11/99 email.] Several of these medical records and communications also document difficulties with Davis as a patient, including his anger with providers for not making house calls and not permitting him to direct and/or control his treatment. [Doc. 68, Ex. D, 3/11/99 email; 2/25/99 note.]
These records, some of which Davis produced to Defendants, clearly show an interrelationship between his alleged disabling condition and his psychological condition. Indeed, it does not require too much reading between the lines to see that some of his health care providers questioned whether his depression might be a source of his disabling condition. Davis' alleged disability is squarely at issue in this lawsuit, and his emotional condition and/or health cannot be parceled out of the picture. To the contrary, they are inextricably intertwined.
Davis also argues that Provident looked only at his physical condition in granting and denying disability benefits. Thus, he contends that Provident cannot "mend the hold" now by finding new reasons to deny benefits, that Provident is estopped from raising irrelevant issues about his mental health and/or that Provident cannot raise or discover what it did not include in its Answer or affirmative defenses.
Davis' reliance on Cabrera v. National Foundation Life (an unpublished opinion from the New Mexico Supreme Court), is unavailing. The Cabrera decision was the result of an appeal after a jury verdict. The Court was examining, in part, whether the trial court erred in denying the defendant the opportunity to properly present its theory of the case at trial. Discovery matters, such as those before this Court, are governed by a different standard.
Based on the Court's reading of the pertinent documentation, it does not appear that Provident limited the denial of benefits to an examination of only Davis' physical condition. For example, in Provident's May 12, 2000 letter to Davis, denying the benefits, Provident notes that "Davis' complaints are subjective and his reports of his activities are contradictive with each other. . . ." [Doc. 66, Ex. 4] (emphasis added.) The letter also provides that ". . . Dr. Davis is self limiting and telling his medical providers what he can and can't do." [Id.] (emphasis added.) "There is insufficient medical evidence to support a physical medical disorder that would explain his complaints and claimed impairment." [Id.] Moreover, Provident's review of Davis' appeal of the denial of benefits also references Davis' psychological condition.
He had been said to be depressed and suicidal and was seeing a psychiatrist, Dr. Levin, and was on 225 mg of Effexor in 2/99. . . . Dr. Gerwin's records mention self induced bruising from excessive self massage of trigger points, during early 1999. So, the picture is one of inconsistencies and considerable psycho-social overlay and malingering is a possibility as well, given the gross inconsistencies in the file.
[Doc. 66, Ex. 5.] This documentation further demonstrates that Davis' mental and/or psychological condition was considered by Provident in denying his disability benefits and is, therefore, relevant to the claims and defenses of this case.
For similar reasons, Davis' arguments that Provident is estopped from "creat[ing] a second excuse for denial of disability payments" or that Provident cannot "mend the hold" to create a second basis for the denial are rejected [doc. 67, p. 9]. Based on the cited language above, it is doubtful that Davis could have been misled by Provident's explanations for denying Davis' benefits and his appeal. Clearly, his mental state was discussed in correspondence from Provident to Davis and at issue.
The Court also finds "good cause" for the discovery of Davis' mental health records and history. Clearly the medical records produced thus far, along with the documentation of Provident's denial of Davis' benefits, raise credibility questions. Davis' credibility is central to this lawsuit that involves his alleged disability and Provident's denial of benefits based on its disbelief that Davis' condition is totally disabling. Moreover, Provident's strategy in raising Davis' credibility and their doubt that Davis' condition is totally disabling should come as no surprise. In their Answer and affirmative defenses, Provident asserts that Davis' claims are barred by his own dishonesty and that his claim for benefits was denied as a result of his own conduct. [Doc. 7, Affirmative Defenses 6 and 8.]
Therefore, the Court finds that Davis' mental or psychological condition is relevant to the claims and defenses in this matter, and, in addition, that there is good cause for the requested discovery.
II. PSYCHOTHERAPIST-PATIENT PRIVILEGE
"Rule 501 of the Federal Rules of Evidence provides that state law supplies the rule of decision on privilege in diversity cases." Frontier Refining Inc. v. Gorman-Rupp Company, Inc., 136 F.3d 695, 699 (10th Cir. 1998). New Mexico Rules of Evidence set forth a general rule of privilege for confidential psychotherapist-patient communications. SCRA 11-504. An exception to the privilege exists where the communications are relevant to an issue of the physical, mental or emotional condition of the patient "in any proceeding in which the patient relies upon the condition as an element of the patient's claim or defense . . ." SCRA 11-504(D)(3).
Davis argues strenuously that he has not relied on his mental or emotional condition as an element of his claim. However, the problem with his argument is that the physician and health care providers document that his alleged disabling condition may derive from a mixture of physical and emotional sources. Therefore, his mental and emotional condition is an element of his claim of disability, and the privilege does not apply because he has waived it.
In addition, the Court finds that Davis waived any asserted privilege by voluntarily producing a number of the above-referenced medical records that discuss his mental or emotional condition. Thus, those communications are no longer confidential since they were disclosed.
III. REQUIRED INITIAL DISCLOSURES: LR-Civ 26.3(d)(1)
Davis claims that LR-Civ 26.3(d)(1) is support for his argument Provident is not entitled to any more than five years of medical records. That rule provides:
In all cases in which the physical or mental medical condition of a party is an issue, the party whose condition is an issue must make a good faith effort to produce the following information that the disclosing party may use to support its claims or defenses, unless solely for impeachment:
(1) a list of the name . . . of any healthcare provider, including without limitation, any physicians, . . . mental health counselors . . . which have treated the party within the last 5 years preceding the date of the occurrence set forth in the pleadings. . . .
Contrary to Davis' position, this rule does not limit what medical documentation can be requested during discovery or what should be produced during the course of the litigation, depending on the claims and defenses. Instead, the rule merely requires that parties make an early, good faith effort to produce five years of medical records, etc. without the need for a formal discovery request. Therefore, this local rule provides no support for limiting the discovery of medical record information to a period of five years.
IV. RELEVANCY OF MEDICAL AND MENTAL HEALTH RECORDS FROM JANUARY 1, 1989 TO SEPTEMBER 7, 1996
Davis asserts that Provident is entitled to medical records, excluding those with mental health information, from only September 7, 1996 to September 7, 2001. Provident seeks medical records, including mental health documentation from January 1, 1989 through the present. The Court will grant Provident's request. As stated above, Davis' medical records, including mental health and history information, is relevant to the claims and defenses presented. The requested discovery also appears reasonably calculated to lead to the discovery of admissible evidence regarding Davis' credibility, specific to his applications for disability coverage. Again, the Court gives no indication as to whether such information will be admissible at trial. At this stage in the litigation, the Court only determines that it is discoverable information.
While the requested period of information spans a rather long period — from 1989 to the present, Provident has provided examples of a number of inconsistencies in Davis' applications for disability insurance and the medical records already produced. Because Davis' credibility is critical to the issues in this litigation, including the denial of disability benefits, Davis will be ordered to sign appropriate medical authorizations for all people listed in Exhibit I, from January 1, 1989 to the present.
Conclusion
Consistent with a litigant's right to broad and flexible discovery and this Court's determination that Davis placed his emotional and psychological condition at issue in this litigation, the Court denies Plaintiff's Motion for Protective Order and grants Defendants' Motion to Compel. The parties each will bear their own costs and fees in connection with these motions, and the Court declines to award any of the requested sanctions.
IT IS THEREFORE ORDERED that:
(1) The Provident Defendants' Motion for Order Compelling Plaintiff to Execute Physical and Mental Medical Authorizations and Ordering Full Disclosure of Mental Health Information [doc. 70] is GRANTED;
(a) Davis is ordered to execute the requested physical and mental medical authorizations so that Defendants may obtain information from the health care providers whose depositions are scheduled;
(b) Provident will be permitted to ask questions of the health care providers regarding Davis' physical and mental health;
(c) Davis is ordered to execute the requested physical and mental medical authorizations for those health care providers listed in Exhibit I, for the period of January 1, 1989 to the present, including documentation of treatment for mental health issues, myofascial pain and fibromyalgia.
(2) Plaintiff's Motion for Protective Order and Limine Order Regarding Mental and/or Emotional Evidence [doc. 66] is DENIED.