Opinion
CV 10-4645 (ADS)(WDW)
10-21-2011
Roberta WEISBECKER, Plaintiff, v. SAYVILLE UNION FREE SCHOOL DISTRICT, Rose Castello in Her Official and Individual Capacities, and Rosemary F. Jones, in Her Official and Individual Capacities, Defendants.
Deborah Lee Rubin, James Aldo Vagnini, Valli Kane & Vagnini LLP, Garden City, NY, for Plaintiff. Mark N. Reinharz, Jessica C. Satriano, Bond Schoeneck & King, PLLC, Garden City, NY, for Defendants.
2011 WL 13307926 Only the Westlaw citation is currently available. Signed 10/21/2011
Attorneys and Law Firms
Deborah Lee Rubin, James Aldo Vagnini, Valli Kane & Vagnini LLP, Garden City, NY, for Plaintiff.
Mark N. Reinharz, Jessica C. Satriano, Bond Schoeneck & King, PLLC, Garden City, NY, for Defendants.
ORDER
WILLIAM D. WALL, UNITED STATES MAGISTRATE JUDGE
*1 Before the court is the defendants' motion to compel the plaintiff's responses to interrogatories and document demands that seek information about the plaintiff's medical and psychological history. See Docket Entry (“DE”) [12]. The motion is opposed by the plaintiff, but only as it relates to her medical records. See DE [13]. Plaintiff concedes that records regarding her emotional and psychological condition must be produced, and indeed states that she has agreed to execute releases for those records. The remaining issue is the extent to which defendants are entitled to medical records pertaining to her physical health. The plaintiff has also submitted a request to extend discovery deadlines, see DE [14], that is opposed by defendants, see DE [15]. Both motions are granted to the extent indicated below.
Defendants' Motion to Compel
In her complaint, plaintiff alleges that she has been “physically and emotionally damaged in an amount that is not presently calculable due to the ongoing and future effects.” Compl. ¶¶ 79, DE [1]. She repeats her claim for physical damages in the Wherefore clause of the complaint by demanding judgment for, inter alia, “physical and emotional distress.” In light of the allegations in the complaint and some of plaintiff's responses to interrogatories, defendants argue that plaintiff has placed her medical condition at issue and therefore, any privilege attached to her medical records has been waived. Plaintiff asserts that she should not be compelled to release her entire medical record because she is not claiming physical injury. In her opposition, she references a purported agreement with defense counsel whereby it was agreed that if she withdrew her claims for physical injury, “which were alleged in error,” it would be unnecessary for her to produce her entire medical record. Pl.'s ltr. at 1. She further claims that defendants later took the position that there was no agreement; she does not, however, expressly state that she has withdrawn her claim for damages related to alleged physical injury, nor does the docket reflect any such action on her part. As long as her claim for physical damages remains, defendants are entitled to the discovery they seek.
Irrespective of whether plaintiff's claim for physical injury will be withdrawn, defendants' motion must still be granted in part. Plaintiff's desire to limit discovery of her medical records to those pertaining solely to her mental and emotional health does not afford the defendant an opportunity to explore other possible conditions that may be the source of plaintiff's alleged injury. Generally, a defendant should not be given an “unfettered right to pursue discovery into [plaintiff's] entire medical history.” Manessis v N.Y. City Dep't of Transp., 2002 WL 31115032, *11 (S.D.N.Y. Sept. 24, 2002). There are, however, circumstances under which a defendant may examine plaintiff's medical records to determine if another condition could be the source of plaintiff's injury. See, e.g., Bridges v Eastman Kodak Co., 850 F.Supp. 216, 223 (S.D.N.Y. 1994) (permitting defendants to conduct a limited inquiry into the plaintiff's medical history in an effort to show that their emotional distress was caused at least in part by events and circumstances that were not related to the cause of action). This does not mean that the defendants may engage in a “fishing expedition by inquiring into matters totally irrelevant to the issue of emotional distress.” Id.
*2 Here, defendants note that plaintiff suffered a late term miscarriage one or two years prior to commencement of this litigation and as such, have identified a serious physical condition that may be an independent cause of, or contributor to, plaintiff's emotional distress. Medical records may be produced where a defendant's request is based on more than just mere speculation about their relevance. Cf. Alden v. Time Warner, Inc., 1995 WL 679238, at *2 (S.D.N.Y. Nov. 14, 1995) (denying access to plaintiff's medical records based on nothing more than speculation about their relevance); Evanko v Elec. Sys. Assoc., Inc., 1993 WL 14458 (S.D.N.Y. Jan. 8, 1993) (denying unrestricted access to plaintiff's medical records where defendant made no meaningful showing of their relevance beyond a general claim that any physical condition might cause emotional distress). As defendants have identified a specific possible cause for plaintiff's emotional distress, they should be permitted to review her medical records regarding that cause.
Plaintiff in her opposition relies on this court's ruling in Duck v Port Jefferson School Dist., 2008 WL 2079916 (E.D.N.Y. May 14, 2008), claiming that the Duck case presented “a set of facts very similar to the case at hand.” I find Duck distinguishable on at least two bases. First, plaintiff's emotional distress claims in Duck were likely of the least serious “garden variety.” See generally Olsen v. County of Nassau, 615 F.Supp.2d 35, 46 (E.D.N.Y. 2009) (categorizing emotional distress claims into three general types - “garden variety,” “significant,” and “egregious”). According to defendants, plaintiff has alleged, in both her complaint and interrogatory responses, that she has “(a) suffered from anxiety attacks and emotional breakdowns; (b) experienced severe emotional pain and suffering, loss of reputation and loss of integrity; (c) been physically and emotionally damaged.” Defs' letter at 2. In her letter in opposition to the motion, she does not argue that her emotional injuries are garden variety, nor does she state that she will not call a mental health expert at trial. Thus, it appears that unlike the plaintiff in Duck, Weisbecker is alleging that she has suffered either significant or egregious emotional distress. Second, although it was determined in the Duck case that defendants' demand for medical records was overbroad, there was no evidence Duck had suffered a physical condition that could have bearing on her emotional damages claim. Defendants here have identified a physical condition, Weisbecker's late term miscarriage, that may impact her emotional well-being, and they are entitled to explore her records in that regard.
Plaintiff shall, no later than October 28, 2011, formally withdraw any claim for damages relating to physical injury. If she fails to do so, she is directed to provide medical authorizations for all providers for the time period of calendar year 2007 to date. If she withdraws her physical damages claim, she is directed to provide releases for all medical records pertaining to her miscarriage. In addition, to the extent they have not already done so, defendants are directed to provide plaintiff with the appropriate releases directed to the providers with records relating to her mental and emotional health identified by plaintiff in her response to Interrogatory No. 2. The parties are directed to complete the preparation, exchange, and execution of all medical authorizations no later than November 2, 2011. Any records produced will be subject to a confidentiality order to be negotiated by the parties and submitted to the court for approval.
Plaintiffs Motion to Extend Discovery
Plaintiff seeks an extension of time to complete discovery based on the apparent inability to schedule the deposition of defendant Rosemary Jones. According to plaintiff, the only date provided by defendant prior to the close of discovery on November 2, 2011 was not convenient for plaintiff herself to attend. Plaintiff claims that Jones will be in Florida until “sometime in December” and as a result, she seeks to extend discovery to January 16, 2012 an extension of approximately 2 ½ months. Defendants oppose the motion, noting that the plaintiff has only herself to blame for failing to complete Jones's deposition. They further advise that Jones is returning on or about December 6th.
*3 In light of the above ruling regarding production of plaintiff s medical records, I am inclined to grant a short discovery extension. Accordingly, plaintiffs motion is granted to the following extent:
• December 16, 2011: Completion of all discovery, inclusive of expert discovery. Depositions of experts may be taken at any time before trial.
• January 4, 2012: Any party seeking to make a dispositive motion must take the first action beginning the motion process by this date.
• The pretrial conference scheduled for November 30, 2011 is adjourned to January 18, 2012 at 11:00 a.m. A joint proposed pretrial order in compliance with the district judge's requirements must be electronically filed prior to this conference.
No further extensions will be granted.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2011 WL 13307926