Reply_to_plaintiffs_opposition_to_motion_to_comepel__roberts

Reply

Cal. Super. - 6th Dist.April 8, 2019

5 Oo 0 3 a N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 47 28 Jacobson Markham Sacramento, California 19CV 345934 Santa Clara - Civil R. Ngu Electronically Filed Richard M. Jacobson, Esq. — SBN 114520 by Superior Court of CA, Joseph T. Urbanic, Esq. - SBN 302094 ntv of Santa Clara JACOBSON MARKHAM, L.L.P. i bas0 Tite AL 8950 Cal Center Drive, Suite 210 Reviewed By: R. Nguyen Sacramento, CA 95826 Case #19CV345934 fel (P10)B54-5969 Envelope: 4413683 Fax: (916) 854-5965 Attorneys for Defendants FedEx Freight, Inc. and Christopher Yory SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA CARMELA MARIA CABALU, an individual, Case No.: 19CV345934 DEFENDANTS FEDEX FREIGHT, INC. Plaintiffs, AND CHRISTOPHER YORY’S REPLY TO PLAINTIF’S OPPOSITION TO Vs. DEFENDANTS’ MOTION TO COMPEL DAVID C. ROBERTS, PH.D.’S COMPLIANCE WITH MEDICAL FEDEX FREIGHT, INC. an Arkansas RECORDS SUBPOENA Corporation; CHRISTOPHER YORY, and individual, and DOES 1 through 50, inclusive, Date: June 11, 2020 Time: 9:00 a.m. Dept: 21 Trial: TBD Defendants. I INTRODUCTION Defendants FEDEX FREIGHT, INC. and CHRISTOPHER YORY (“Defendants”) hereby reply to Plaintiff CARMELA MARIA CABALU’S (“Plaintiff”) Opposition to Defendants’ Motion to Compel David C. Roberts, Ph.D.’s Compliance with Medical Records Subpoena (“Opposition”). II. LEGAL ARGUMENT Plaintiff's Opposition has two essential arguments: (1) Defendants have no compelling interest in the records sought, and (2) Defendants’ motion is untimely. Both will be addressed below. 1 yen DEFENDANTS FEDEX FREIGHT, INC. AND CHRISTOPHER YORY’S REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DAVID C. ROBERTS, PH.D.’S COMPLIANCE WITH MEDICAL RECORDS SUBPOENA. EN No 0 O N in 10 11 12 13 14 15 16 17 18 19 20 21 22 ic 24 25 26 27 28 Jacobson Markham Sacramento, California a. Defendants Have A Compelling Interest in The Records Sought. Defendants are not arguing that Plaintiff's treatment records with Dr. Roberts are not private. All medical records are private. Defendants argue that the records should be produced despite being private because: (1) Plaintiff waived her objection to their production, and (2) the records produced by Plaintiff indicate psychological factors may be influencing pain complaints. First, Plaintiff produced records from prior psychologist in response to written discovery. See Declaration of Joseph T. Urbanic in Support of Defendants Motion to Compel David C. Roberts, Ph.D., to Comply with the Medical Records Subpoena (“Urbanic Dec.”) at 9 2. Plaintiff identified anxiety and other psychological injuries stemming from the accident in written discovery. | 2d. Plaintiff testified at her deposition that she has been diagnosed with PTSD by a treating psychologist. /d. at § 7. She has put her claimed psychological injury at issue. Plaintiffs’ production of psychologist records and claim of psychological injuries from this accident waive any privacy objections related to her mental health treatment, especially since she sought this treatment post- accident. These are records “directly related” to the accident. Plaintiffs counsel has attempted to nullify this issue by serving amended discovery responses the same day he filed the Opposition. See Plaintiff's Opposition at Exhibit 2. However, Plaintiffs document production in response to Defendants’ Request for Production of Document Set One, still contains her psychological records and her claimed psychological injury within those records. Additionally, Plaintiff had an opportunity to amend her deposition testimony for clarity related to her statement that she was diagnosed with PTSD after the accident, but failed to do so. Her mental health in relation to this accident remains at issue. Second, as mentioned in Defendants motion, Plaintiff's psychological treatment records indicate she has greater complaints and symptoms than could be verified medically with pain disorder and related psychological factors. See Urbanic Dec. at § 8. In sum, her treating psychologist indicated her mental health was directly impacting her treatment and pain complaints beyond what could be verified. This opinion directly goes to a potential psychological injury, but also the severity and legitimacy of her physical injuries. Defendants have a right to explore these defenses. /1/ 2. DEFENDANTS FEDEX FREIGHT, INC. AND CHRISTOPHER YORY’S REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DAVID C. ROBERTS, PH.D.’S COMPLIANCE WITH MEDICAL RECORDS SUBPOENA, S C xe a S N o N 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jacobson Markham Sacramento, California b. Defendants’ Motion is Timely. Plaintiff argues that Defendants’ Motion is not timely and cites Cal. Code Civ. Pro. § 2025.480. However, this section establishes a timeline for the filing of a motion to compel at the completion of the deposition record or when a third-party objects to a subpoena. However, neither has occurred. Dr. Robert's office indicated to Defendants’ process server that a HIPPA authorization was required for his production, not that he was objecting to the production. /d. at § 3. Plaintiff subsequently refused to sign an authorization. Now, the only avenue for Defendants to obtain the production is a motion to compel so a Court order could accompany the subpoena in lieu of a NIPPA authorization. No objection was made by Dr. Roberts. In fact, no objection was made by any party, including Plaintiff. If Plaintiff truly objected to the production of these records, the appropriate response to the subpoena would be a Motion to Quash, which was never filed. III. CONCLUSION Based on the foregoing and Defendants’ moving papers, Defendants respectfully request the Courts GRANT Defendants” Motion to Compel David C. Roberts, Ph.D.’s Compliance with Medical Records. Dated: June 4, 2020 JACOBSON MARKHAM, L.L.P. By A h__ RICHA . JACOBSON, ESQ. JOSEP RBANIC, ESQ. Attorneys for Defendants FEDEX FREIGHT, INC. and CHRISTOPHER YORY 23- DEFENDANTS FEDEX FREIGHT, INC. AND CHRISTOPHER YORY’S REPLY TO PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DAVID C. ROBERTS, PH.D.’S COMPLIANCE WITH MEDICAL RECORDS SUBPOENA. OO ® 3 N BR W R e m D D N D N D N N N ) m m e e d o e m e m p m e n e m e m AN B W N m , O Y ® a R B o = & 27 | 28 Jacobson Markham Sacramento. California PROOF OF SERVICE Cabalu v. FedEx Freight, Inc., et al. Santa Clara County Superior Court Case No. 19CV345934 I'am employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action; my business address is 8950 Cal Center Drive, Suite 210, Sacramento, California 95826-3228. On Jume 4, 2020, I served the foregoing document(s) described as: * DEFENDANTS FEDEX FREIGHT, INC. AND CHRISTOPHER YORY’S REPLY TO PLAINTIF'S OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL DAVID C. ROBERTS, PH.D.’S COMPLIANCE WITH MEDICAL RECORDS SUBPOENA by placing the original or a true copy thereof enclosed in a sealed envelope addressed as follows: Daniel B. Miller, Esq. Attorneys for Plaintiff Bobby Saadian, Esq. Colin M. Jones, Esq. Wilshire Law Firm 3055 Wilshire Boulevard, 12" Floor Los Angeles, CA 90010 Tel: 213.381.9988 daniel@wilshirelawfirm.com Fax: 213.381.9989 O BY U.S. MAIL I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Sacramento, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or, postage meter date is more than one day after date of deposit for mailing in affidavit. 0 BY PERSONAL SERVICE by personally delivering, or causing to be delivered, a true copy thereof, in accordance with Code of Civil Procedure §1011, to the person(s) set forth above at the addresses above. BY ELECTRONIC SERVICE by transmitting a PDF version of this document by electronic mail to the party(s) identified above using the e- mail address(es) indicated. Executed on June 4, 2020, at Sacramento, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. PROOF OF SERVICE