Bandru v. Fawzen

46 Pa. D. & C.5th 1
Pennsylvania Court of Common Pleas, Lackawanna County·Decided March 16, 2015·No. No. 13 CV 3959·Published

Opinion

NEALON, J.,

ORDER

Plaintiff, Kevin Bandru (“Bandru”), has filed a de novo appeal of the special trial master’s order dated January 8, 2015, granting the motion of defendant, Rose Fawzen (“Fawzen”), to strike Bandru’s objections to records subpoenas that Fawzen has addressed to Bandru’s health care providers and two automobile insurers. The instant discovery appeal involves the proper balance between [3]*3the liberal allowance of broad discovery in civil litigation and the proscription against overly expansive “fishing expeditions” into matters of dubious relevance. The parties have filed their respective memoranda of law, and following the completion of oral argument on February 24, 2015, Bandru’s appeal was submitted for a decision.

Bandru and Fawzen were involved in an automobile accident on September 1, 2012, at the intersection of Boulevard Avenue and East Market Street in Scranton. (Docket Entry No. 1 at ¶¶ 5-6; Docket Entry No. 5 at ¶¶ 5-6). Bandru contends that as a result of the accident, which was caused by Fawzen’s failure to stop at a red traffic light, he has suffered “a closed head injury, neck pain, jaw pain, clicking sensation in the jaw, headache, concussion, post-concussive syndrome, vertigo, unsteadiness, disorientation, myofascial pain syndrome, cervical strain, cerebral contusion, cochlea injury, tinnitus, memory loss, acute TMD (temperomandibular joint dysfunction), thoracalgia, post-traumatic vision disorder, and shock to his nerves and nervous system, all of which caused him, continue to cause him and will/may cause him for an indefinite time in the future great pain, agony and suffering, both physical and mental.” (Docket Entry No. 1 at ¶7). Bandru seeks to recover damages for past and future economic and non-economic losses. {Id. at ¶¶ 8-12).

Pursuant to Pa.R.C.P. 4009.21 and 4009.24, Fawzen served notice of her intent to subpoena Bandru’s records from the Veterans Affairs Medical Center, Matthew Berger, M.D., Lisa Starr, M.A., Geisinger Community Medical Center, and White Crossings Medical Group, and in response, Bandru filed objections to those subpoenas [4]*4under Pa.R.C.P. 4009.21(c).1 (Docket Entry Nos. 22-37). The gravamen of Bandru’s objections is that Fawzen seeks records “going back to [Bandru’s] date of birth more than 52 years ago,” and that the records requests are “overly broad” and seek “information that is not relevant and is not likely to lead to the discovery of admissible evidence.” (Id. at p. 1). Bandru further asserts that he does not object to certain subpoenas which are “reasonably limited in time and scope.” (Id.).

After Fawzen subsequently furnished notice of her intention to subpoena records from Dr. Gregory E. Cali, Dr. Darlene Dunay, Carl W. O’Hara, D.C., Dr. W. Timothy Ward of the University of Pittsburgh Orthopedic Surgery Department, The Wound Institute Research Center, William F. Dougherty, Nationwide Insurance Company, and CNA Insurance Company, Bandru filed additional objections pursuant to Rule 4009.21(c) raising objections that are identical to his earlier objections. (Docket Entry Nos. 41-53). On January 8, 2015, Fawzen presented a “Motion to Strike plaintiff’s objections to subpoenas” to the Special Trial Master in accordance with Lacka. Co. R.C.P. 4000.1.2 (Docket Entry No. 57). Fawzen alleged in her motion that Bandru testified during his discovery deposition “that he had extensive dental work done at the VA Hospital in the mid-1980s,” “that he was injured in previous motor vehicle accidents,” “that he treated for [5]*5his injuries from the previous accidents at CMC (now known as Geisinger CMC),” and “that he treated with Dr. Salko of Whites Crossing Medical Group and that he could not recall whether or not he treated with Dr. William Dougherty.” (Id. at ¶¶ 16-19). Fawzen further averred that in Bandru’s interrogatory answers, he “stated that he had seen Drs. Starr, Berger, Salko and Dougherty.” (Id. at ¶ 20). In support of her discovery motion, Fawzen argued that she “is entitled to retrieve and receive documentation relative to [Bandru’s] past medical history and any and all documents pertaining to [Bandru’s] past medical care and treatment to ascertain whether any of the injuries alleged by [Bandru] existed prior to the accident and/or whether [Bandru] was involved in any prior accidents, incidents, etc. in which he sustained personal injuries.” (Id at ¶ 21).

Bandru maintains that “[ajlthough the Special Trial Master agreed that the subpoenas were too broad and needed to be limited in scope, he granted [Fawzen’s] Motion which allows the subpoenas to be served without any restrictions on the information sought.” (Docket Entry No. 61 at p. 3). Bandru acknowledges that he was involved in prior automobile accidents in 1991, 1993 and 1998 in which he sustained a concussion and injuries to his low back, shoulder and knees, but asserts that “[f]or years before this collision, [he] was a personal trainer and ran multiple marathons (and ultra marathons of greater than fifty miles) every year.” (Id. at pp. 1-2,4). According to Bandru, in response to Fawzen’s discovery seeking the identity of all health care providers who have ever treated him during his lifetime, “[h]e identified treatment he received when in the military in 1985 or 1986 for a colon infection, appendicitis and dental work,” as well as “a psychiatrist and psychologist he treated with about [6]*615 years ago for anxiety and depression.” {Id. at p. 2). Bandru argues that “[t]he fact that [he] received dental treatment while in the military 30 years ago has no bearing on his traumatically induced jaw injury from the current collision,” and that “[tjreating for anxiety and depression 15 years ago has no bearing on the current issues.” {Id. at p. 4). Bandru posits that Fawzen’s requests for those medical records and the files of the automobile insurers relative to his 1991,1993 and 1998 accidents are “nothing more than a fishing expedition to try to dig up some ancient record which could be used to distract and misdirect a jury from the issues in this case.” {Id.).

In her opposing brief, Fawzen submits that she has learned through Bandru’s discovery responses that he injured his arm in the 1991 accident, his shoulder in the 1993 accident, and his head in the 1998 accident, which resulted in post-concussion syndrome that caused him to experience “dizziness, memory loss, depression and anxiety.” (Docket Entry No. 63 at p. 3). Fawzen asserts that she is entitled to obtain “the records of [Bandru’s] automobile insurer, Nationwide Insurance Company, pertaining to [his] prior motor vehicle accidents” since Bandru “has placed all of his claimed injuries at issue regarding their origin, extent, duration and impact.” {Id. at pp. 2-3). She further avers that (a) the VA Hospital’s records concerning Bandru’s dental treatment “while in the United States Air Force in the 1980s” could be relevant to his current “claim of jaw pain,” (b) his “past history of pleurisy would be instructive in trial preparation,” and (c) other records in her counsel’s possession reflect that Bandru treated with Dr. Gregory Salko of Whites Crossing Medical Group “as late as 2002 offering a history of concussion, fatigue, malaise, headache, insomnia and [7]*7hearing loss, all which overlay the injuries presently claimed.” (Id. at p. 4).

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